43/2001 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 10. January 2001 in plenary on the draft group

Senators on the repeal of section 9 and 10 of the Act No. 125/1997 Coll., on wastes, in

amended by Act No. 37/2000 Coll., as follows:



The proposal is rejected.



Justification



(I).



On 5 July 2004. 4.2000 filed a group of 17 Senators of the Parliament of the United Kingdom

According to § 64 para. 1 (b). b) Act No. 182/1993 Coll., on the Constitutional Court,

(hereinafter referred to as the "law on the Constitutional Court") proposal to repeal article. I, point 4

Act No. 37/2000 Coll., amending Act No. 125/1997 Coll., on

waste framework directive, as amended, (hereinafter referred to as the "law on waste").

The contested part of the law is, in the opinion of the appellants in breach of article. 3

paragraph. 1, art. 4 (4). 1, 2 and 4 and article. 11 (1) 5 Charter of fundamental rights

and freedoms ("the Charter").



The design understands the Constitutional Court brought by (according to its settled case-law) as

the proposal to repeal the relevant part of the Act No. 125/1997 Coll., on wastes, and

It amended (novel), therefore also in the provisions, which

new law on waste contains and whose top marked modified section

the amendment are attacked. In this respect, only briefly refers to its

comparable decisions made in the past, the core of which is the

the finding that the amendment does not have a canonical existence.



The proposal of a group of Senators to repeal that part of the law is justified by the

as follows:



The law on waste is constructed on the principle that, under the system of collection, sorting,

use and disposal of municipal waste fully corresponds to the municipality.

Amendment in the opinion of the appellants ' liability of the villages softens and

rozmělňuje, by empowering a municipality to establish a fee for the handling of

household waste, which the municipality can choose at a flat rate regardless of the

whether the taxpayer will incorporate into the system of management of municipal waste,

that the municipality has designated, or arrange for its disposal outside of this system.



The appellants argue that the mandate of the village to the introduction and collection of the fee

for the management of municipal waste can be regarded as the legal authority,

introducing a new fee. Should it be treated as

as with other compulsory fees, it was to be classified into

the existing system of taxes and fees. The mandate in the amendment of the law on

waste and the whole structure of the fee is, however, on this view, faulty,

because the fee for management of municipal waste does not include all

the attributes of this mandatory benefits. In accordance with the system of taxes and

fees must each newly introduced charge include the determination of the base

the charge, its size, the method of charging taxpayers, budget

the determination of the income from the fee and fee penalties for failure.

Adjustment contained in the contested parts of the law does not contain any attributes

charge and those that contains, you can have doubts about their

correctness or accuracy. This lack of fro

the promoters will conflict with the article. 4 (4). 1, 2 and 4 and article. 11 (1) 5 of the Charter.



Furthermore, the appellants argue that the contested part of the law does not distinguish whether the

natural person defined as a taxpayer (the "natural person in whose

the activities of the municipal waste arises ") is plugged into the system, which the municipality

established for the disposal of municipal waste, or outside it. On

the difference from the original editing challenged part of the law does not give individuals

municipal waste, producing a legal option to get rid of the fee

obligations by showing that waste themselves or take advantage of it themselves

break.



They argue, too, that the fee is not deducted from the actual volume of

household waste, but has to be determined based on incorrect and

vague criteria, IE. on the number and capacity of containers, or on the number of

users of the apartment. Such a system will be based on the appellants ' Act

demotivačně and as a result may be perceived as an infringement of article 81(1). 7

The Constitution of the Czech Republic (hereinafter referred to as "the Constitution"). The contested adjustment is also

in the opinion of the appellants largely reduces the liability of municipalities for

efficiency and rationalization of the management of municipal waste. The introduction of the

such charges would paušalizaci regardless of whether the

taxpayers who use municipal waste management system specified by the municipalities,

or not.



II.



The Constitutional Court's assessment of the draft requested pursuant to section 69 of the Act on the constitutional

Court representation of the Chamber of Deputies and the Senate of the Czech

of the Republic.



The Chamber of deputies in its observations indicated that law No 37/2000 Sb.

was discussed in that body as parliamentary print no. 229. The proposal was

submitted by a group of members of Parliament in May 1999 and by the explanatory memorandum was

It aims to respond to the situation on the basis of the experience with

by the law on waste in the field of management of municipal waste. In

practice, have shown some of the problems and as the most problematic seemed

being part of the law governing the remuneration for the collection, sorting and disposal

municipal waste such as contracting, factually, the regulated price paid

natural persons. Especially in the big cities and municipalities were

entities that use the system without the Treaty collection and the collection set

municipalities. According to the explanatory memorandum to the amendment introduces the possibility to set general

a binding Decree in a separate scope of local system collection, removal,

sorting, recovery and disposal of municipal waste, including system

the management of construction waste and to establish and collect a fee for the

municipal waste. This option in § 10 (1). 5 of the Act on waste permits

the definition of the maximum amount of the fee, and shall be treated as a

some other local taxes, where the municipality also may provide

their amount according to local conditions, and always within the limits laid down by law.

The proposal to repeal parts of the law, then the Chamber of Deputies

It stated that in its opinion, the proposal does not contain a clear legal

the arguments for the adjudication of the matter from the constitutional aspects, rather they are in

It listed the material or arguments are given different legal opinions on the

the legitimacy of the solution of the problem dealing with household waste. The appellants

is not clearly expressed, in contradiction with the Charter what fro

or the Constitution, the argument is conducted in a plane rather than substantive technical

legal. The Chamber of Deputies expressed the opinion that the legislature

acted for the consideration of the law in conformity with the applicable constitutional procedure and

in the belief that the adopted law is not contrary to the Constitution, the constitutional

policy or legal order of the Czech Republic. While the Constitutional

the Court, in the context of the examination of the proposal to assess the constitutionality of

the relevant provisions of the Act and issued the appropriate decision.



In its statement, the Senate said that doubts about the constitutionality of the charge

introduced by the amendment to the Act on waste were raised and at the hearing

The Senate. During the discussions it was noted that the inclusion of the new

the fee for municipal waste to act fully does not fit into

the current system of legal regulation of fees. According to § 14 para. 1 (b). (h))

Act No. 367/1990 Coll., on municipalities (municipal establishment), as amended

legislation belongs to a separate municipality and the determination of the scope of the types of

local taxes and their rates generally binding decrees. These

generally binding decrees must be according to § 16 para. 2 Act No. 367/1990

In accordance with the laws and generally binding legal regulations issued by the

Central Government authorities to implement them. A special law,

which governs the types and amounts of the fees the municipality in a separate

scope of generally binding Decree edit is Act No. 564/1990 Coll.

on local fees, as amended, (hereinafter referred to as "the law of

local fees "). The adjustment of the fees in a separate scope of municipalities without

regardless of the specific name of the fee meets the characters always local

of the fee. The non-inclusion of a fee for municipal waste into local law

In addition, there is no specific fee is justified. Furthermore, the Senate, in its

the observations stated that the Charter in its article. 4 (4). 1 provides that

obligations may be imposed only on the basis and within the limits of the law,

While the article. 11 (1) 5 of the Charter clarifies the policy so that taxes and

fees may be imposed only on the basis of the law. It deduced that the Senate

the limits of a particular kind of charge, IE. its amount, shall be made by law.

The municipality then when determining the type of fee and rates can generally binding

the decree to decide which types of fees provided for in the Act,

will collect on its territory, and may set a rate only to

the maximum amount of the law. Because of this, you can, in particular, the provisions of §

10, paragraph 1. 5 of the amendment to the Act on waste can be considered insufficient, as there

There is no specific minimum rates introduced insurmountable

the fee, but only the border estimated that is bound on the expected

eligible cost to the municipality resulting from the mode of management of municipal

waste. A specific maximum amount will depend on the individual

cases, inter alia, on the cost that will be posted to the body which

will carry out the collection, collection, sorting, or disposal of waste.

The fee structure does not contain or referred to other necessary attributes

the fee, such as maturity, or the reasons for the reduction or waiver


the fee due to the mitigation or removal of hardness and conditions

exemption from the fee.



The Senate debated the amendment to the Act on waste on its 12. a meeting of the

second term on 10. December 20, 1999. After extensive discussion

the draft of this law, because when his hearing held

the constitutional shortcomings, for which he could not agree with the proposal.



Without prompting, the Constitutional Court and the opinion has been submitted to the representatives of the municipalities,

meeting on 4 December 2002. 5.2000 on a work meeting, delivered by the design.

As a result of it, that does not agree with the proposal to repeal that part of the

the law on waste. Disagree with the objection that the amendment of the law on waste

is not limited by the amount of the fee and the basis for its calculation is not clearly

established. In their opinion, is § 10 para. 5 of the amendment to the Act on waste

specific enough in determining the maximum amount of the fee. Each municipality

must approve the fee in the form of generally binding decrees, and it would be

irresponsible to assume that the references more cumbersome

the inhabitants of the higher charge are not reflective of the actual cost. In

the fact of the village will continue to subsidize the treatment of municipal waste

from their budgets. Fully suits them way to determine the amount of the fee

as set out in the amendment of the law on waste, because in every municipality may be

residents provided a range of services, in a different amount of charge

inevitably reflected for example. the distance from the landfill, the price for

waste disposal in a landfill, etc. Representatives of the municipalities also told the reservations

against the assertion that introduces a flat fee regardless of,

whether and to what extent taxpayers use system of municipal waste specified

municipalities. To do this, said that that the law admits the possibility of

the determination of the fee in addition to the forms of kapitační for example. the container volume,

the number of collection containers, etc. The experiences of communities that have implemented

kapitační fee, are such that after its introduction has increased the purity

of the village. Furthermore, the representatives of the municipalities indicated that, in the amendment to the law on waste is

provided that the management fee shall be exercised by a municipality, and contended that the provisions of the

general law cannot deal with the way the collection and payment of a fee, the

questions can be dealt with only in general binding by Decree. Essential

the objection expressed by the representatives of municipalities against the claim that the amendment of the law on

waste directive does not allow, to a natural person has chosen the option to dispose of the

management in accordance with the regulations, except as provided for in the Ordinance

the Ordinance of the municipality, and this limits one of the fundamental rights of the citizen-right

options when using the services and the management of your property. Stated that the

previous edit led to the fact that citizens shunned the use of the system

the collection of waste designated by the municipalities with the allegations, which challenged the

the merits of this procedure. Representatives of the municipalities provided yet another

the comments, however, are no longer subject to specific points of the proposal,

but in General, the Defense adopted the amendment to the waste framework directive. Attention

also the fact that it is essential that the Constitutional Court considered the possible consequences of the

legal discontinuity when many municipalities already in accordance with the amendment of the law on

waste carried out an often irreversible changes in the system of payments, abolished the

the previous contractual relationships with individuals or owners (administrators)

real estate.



III.



With the draft of the law in favour of 9 July 2004. November 1999 the necessary majority

the consent of the Chamber of Deputies, the Senate on 10. December 1999 draft law

It has refused. The Chamber of Deputies then according to art. paragraph 47. 1 of the Constitution on 18 July 2005.

in January 2000, a draft law in the same terms again. The President of the

Republic Day 3. February 2000, used his powers under the article. 50 of the Constitution and

law of the Chamber of Deputies came back, that its resolution of 22 December 2004. February

2000 continued to act. This resolution was published in the collection of laws

under no 38/2000 Coll. and Act was promulgated under no. 37/2000 Sb.



IV.



The original modification management of municipal waste management and remuneration for the collection, sorting,

and disposal of municipal waste was contained in sections 9 and 10 of the law on

waste. Under this scheme the system of collection, sorting, recovery and

disposal of municipal waste could, in its separate municipality

the scope of a binding Decree generally edit; Edit could include

the system of management of construction waste. Natural persons from the date of

provided for by Decree are required to separate municipal waste

to collect, collate and transmit for processing according to the established

the system, if there was no evidence the waste themselves or have themselves benefited from

destroy, in accordance with the law. The mode of proof of this fact,

governing the municipality once again generally binding Decree. To do business in the area

management of municipal waste in the territory of the municipality, it was always necessary to consent

the municipality, which also defined the conditions under which it can be

This consent given. On the grant of consent shall be decided in the administrative

control. Remuneration for the collection, sorting and disposal of municipal waste was

provided as the price for these activities in the amount corresponding to the specific

the legislation (Act No. 526/1990 Coll., on prices, as amended

regulations). The originators of municipal waste, who on the basis of a written agreement

use system of municipal waste collection and separation, pay the price

agreed in the agreement with the municipality. Remuneration for the collection, sorting and disposal

municipal waste was income of the municipality and the village of this income was paid by the

costs associated with the separate collection, collection, sorting, and

disposal of municipal waste.



Act No. 37/2000 was amended the law on waste in the design

the contested provisions of sections 9 and 10. Referred to the amendment of the law on waste

the legislation was changed. Dispose of household waste on

the territory of the municipality can either the municipality or the person entitled on the basis of the written

the consent of the municipality. Maintain the jurisdiction of the municipality, in its separate

the scope of the edit in general binding by a decree of the local system for the collection,

collection, sorting, recovery and disposal of municipal waste, including

construction waste management. At the same time, however, the village of this Decree has

the newly establish the amount of the fee for the collection, use, and disposal of wastes

including the method of his selection. In this adaptation is included to change the existing

access to pay for the disposal of municipal waste, when from the original price

for service on the new legislation takes the form of a fee.

The new legislation also enshrined duty of individuals to procrastinate

waste at designated places and generally binding from the date fixed

by Decree of the municipal waste separately to collect, collate and transmit to the

recovery or disposal in accordance with the system provided for municipalities. In

amended by section 10 of the law on waste is closer to the defined fee

municipal waste. The municipality may, in general binding decree to establish and collect

the fee for municipal waste arising in its territory, when the taxpayer

is any natural person, when the activities of municipal waste arises.

The amendment introduces the concept of the payer of the charge, which is the owner or Manager

of the building or property, where municipal waste is produced, and that the fee for the

municipal waste rozúčtuje to individual taxpayers, while on this

distributions shall apply mutatis mutandis the provisions of streamlining services

United with the rent of the apartment. The taxpayer and the fee payer can, under certain

conditions coincide. Furthermore, the new legislation provides that management fee

carries out a village. If the fee is not paid on time or in the correct amount,

fee payment amount of the municipality assessment. In section 10, paragraph 1. 5 of the law on

waste is there a maximum amount of the fee, which is determined by the

anticipated eligible costs of the municipality resulting from the mode

management of municipal waste management and committed to individual taxpayers

According to the number and volume of containers to drop waste per

individual property or the number of users of apartments and having regard to the

the level of classification of the waste. The fee may also be applied even

the costs associated with the lease of containers for swapping the waste. Fee

for municipal waste is the income of the municipality.



In the.



The appellants as the main reason for the application for revocation as defined under the Act

They state that the amendment softens and rozmělňuje responsibility of the municipality in the system

collection, sorting, recovery and disposal of municipal waste by

empowers a municipality to establish a fee for the disposal of household waste,

that the municipality can choose at a flat rate regardless of whether the taxpayer

be incorporated into the system, or shall ensure that the waste disposal outside of this

the system.



The Constitutional Court considers that a change in the design of remuneration for municipal waste, and

even in the form of a fee, it is the responsibility of the State and is legitimate, as well as

the definition of radius of taxpayers the appropriate charge. The determination of a wide

heading payers fee for municipal waste is, in the opinion of the constitutional

the Court justified by the particular public interest in the protection of the

environment from pollution. All natural persons, in the

the activities of municipal waste is produced, it is obliged to enter into

municipalities guaranteed disposal method of municipal waste. About the fact that

the environment (protection and care) is becoming essential

the priority of each company, perhaps it is not necessary to lead a more comprehensive


the arguments put forward. The municipalities of guaranteed and operated system of collection, disposal

etc. municipal waste assumes such procedures, which are friendly to the

the environment and disturb is the minimum of the range. Of course, the

the previous law called for friendly and the environment

There is a municipal waste disposal method, but if this

activities undertaken as a paid service, it was possible to exclude from the

organized collection of persons who provide waste disposal otherwise.

The Constitutional Court, unlike the application considers that the amended

on the contrary, the responsibility of the municipality of adjustment for municipal waste tightens in the

the direction that the municipality is required to ensure the collection and disposal of all

municipal waste in its territory and it doesn't move the responsibility to other

bodies. Certainly, it would be possible (and probably the very extensively) to discuss

approaches to the environment, whether we as a Liberal,

or conservative, even in the area of waste management, in principle, however,

must be stated that legitimate and factually correct, each access

saving nature. The approach in the contested amendment to this character

undoubtedly carries.



The second group of the appellants ' objections constitute reservations concerning the method and

the scope of the definition of municipal waste charge in the revised legal

Edit, when the plaintiffs argue that the law does not include the adjustment of the

all the attributes of the fee so that it was possible to conclude according to art. 11

paragraph. 5 of the Charter, that the charge is determined on the basis of the law.



If we start from the word "store" in the Charter, it can be concluded that the

the constitutional law provides the concepts of tax and fee as concepts objectively

equivalent in terms of the obligations of a public nature.



The amendment to the waste framework directive introduced a new adjustment of the remuneration for the management of

household waste, in the form of a fee for municipal waste (hereinafter

"fee"), which lays down a village within their individual

and that is managed and its reception. According to those specifications

can be inferred that the law on waste, as amended by

established a new kind of local tax.



The local charges are in our legal system, modified by Act No. 564/1990

Coll. on local fees, as subsequently amended. In paragraph 1 of this

the Act contained an exhaustive list of fees that municipalities choose

are further specified the different types of charges, their

the subject, the person liable to pay the appropriate fee, the maximum rate of

each charge. The Act provides for more general questions, IE.

penalties for non-payment of fees on time or in the correct amount, period, in

which can be unpaid fees levied against the power of the village contains lay down

the introduction of fees generally binding Decree, which will be adjusted

the details of the collection of a fee, the fee rate, specific reporting

obligation to the emergence of fee, maturity, credits and any

exemption from fees. In General, it is also modified the permissions of the village to reduce the

or waive fees if it is necessary to reduce or eliminate

hardness in particular cases. In proceedings concerning charges is

law established subsidiary scope of Act No. 337/1992

Coll., on administration of taxes and fees, as amended, (hereinafter referred to as

the "law on the administration of taxes and fees").



For the adjudication of the matter still is needed to remind the § 14 para. 1 (b). (h))

Act No. 367/1990 Coll., as amended, which is

provided that, in a separate scope of the village include the determination of the types of

local taxes and their rates based on a special law with reference to the

the law on local charges.



From these provisions that the amendment to the Act on waste was introduced

a new kind of fee, which by its nature is reminiscent of local tax, but

due to the taxativnímu enumeration of the species of local fees cannot be under the

the law on local fees included. Amendment to the Act on waste itself this

the question has not modified, IE. the law on local fees directly

nenovelizovala. The question is whether the amendments to the law on waste in the

regarding the fee for municipal waste can be considered as an indirect amendment

the law on local charges. In the opinion of the Constitutional Court, however,

This is not even about the indirect amendments to the law on local charges, because

In addition to specifying that an admin fee is a village and municipality of edit options

the fee for municipal waste generally binding Decree is not in the amendment

the law on waste contained more binding law on local charges.

For the same reason, you cannot infer or subsidiary competence of the law on

local fees, even if the Constitutional Court finds that addressed themes

is offered to a clearer and organičtějšímu inclusion in the law on

local fees.



The law on waste in the establishments the provisions (sections 9 and 10) lays down the

above all, the permissions of the municipality to adjust this charge generally binding

by a decree in which it is possible to define the amount of the fee, including the manner of its

selection, provides for the community as an administrator of the charge, sets out the budget destination

fee income, the taxpayer, subject, and defines the basis for the fee and the

Specifies the rules for determining the rate of the fee.



The Constitution in article. 2 (2). 4 provides that each citizen can do, what is not

prohibited by law, and no one shall be forced to do what the law does not oblige.

A similar provision is contained in article. 2 (2). 3 of the Charter, specifying in

article. 4 (4). 1 of the Charter, where it is established that the obligation can be

saved only on the basis and within the limits of the law and only in the conservation

fundamental rights and freedoms. In relation to the taxes and fees is in place

recall article. 11 (1) 5 of the Charter, which States that taxes and fees

can be stored only on the basis of the law. That tax and fee obligations and

their conditions of emergence of the match referred to basic law

zakotvenému in the Charter, must have its basis in the law. Legislation,

as can be inferred from the theoretical analyses, must specify requirements

the fees of the relationship. the elements of the charge, which are the subject

charge, fee, the basis of object of the fee, the fee rate, relief and

exemption from the fee, maturity of the fee and the penalties for failure to meet

fee obligations. Subject to tax as a subjective commitment to certain

the person to the State's legal standard specified conduct, action or behavior

persons. Legal reason (title) of the tax is determined by special law, and on the basis of

It is also the obligation of a person to the State. Tax

(fee) obligation arises the fulfillment of certain legally defined

legal facts, terms and conditions, which are based on the State (municipalities)

legal right to tax (fee) and on the part of the person's tax (the fees)

commitment. The tax has enforceable character (based on the law is selected)

the law defines precisely the facts establishing the tax liability, the amount and

time limit for payment. Unlike the fee, however, the tax is a financial

transactions which are not collected as compensation for individual advantage.



In relation to the definition of the basis of the charge and the rates include certain

doubts in relation to the specific method, as these attributes

the fee adjusted. The specificity of this fee lies in the fact that it is

taxpayers (individuals) cannot be determined according to the number and volume of

containers to drop waste or by the number of users of the flats, that is,

creates the impression of a fee paid in fixed amounts (that is, a

rate), but according to the definition of the basis upon which the fee shall

This is the price for services rendered, because the fee is calculated according to the

anticipated eligible costs of the municipality resulting from the mode

management of municipal waste. The concept of the estimated eligible costs

community management mode of municipal waste but the amendment

the law on waste is not precisely defined, due to the nature of the steps

set the base but cannot be accurately defined. Themselves in the village

its observations acknowledge that these costs can vary widely,

can influence a number of facts outside the village itself (e.g., the cost

the body which, on the basis of the written consent of the municipality will be with household

dispose of waste). In this respect, however, the maximum amount of the fee cannot be

apparently to establish simple and single amount, because with regard to the

its construction (which simply cannot be determined otherwise) is not possible.



Amendment to the Act on waste in § 10 (1). 3 specifies that the administration fee

carries out the village, which it introduced in their territory, even from the perspective of law

on administration of taxes and fees. The administration of taxes and fees pursuant to § 1 (1). 2

the law means the right authority to which it is for the administration of the tax or

the fee (in this case) do the necessary measures to properly and

the full findings of the establishment and fulfilment of tax obligations, in particular the

to seek tax subjects, taxes to mete out, select, charge,

to enforce or review under the law on the administration of taxes and fees for their

meet in a specified amount and time. At the same time, the law on administration of taxes and

defines the obligations of taxpayers and fees relating to the performance of their

fees, maturity and enforceability of fee. The law on the

the administration of taxes and fees also specifies penalties for non-compliance fee

obligations and accepts the possibility of using the Institute of remission when


non-compliance fees. The fixed fee (its attributes)

You can relate particular provisions contained in particular in the sixth

the law on the administration of taxes and fees; decisions in this field made by the

are also subject to judicial review pursuant to section 244 et seq.. of the civil

Code of civil procedure. Therefore, in the opinion of the Constitutional Court held that the

the subsidiary application of the law on the administration of taxes and fees are by law

modified theory mentioned additional attributes of the charge so that

It can be concluded that the fee for municipal waste is determined on the basis

the law, which is fulfilled the requirement of article. 11 (1) 5 of the Charter.



The Constitutional Court did not find that the challenged provisions of the Act on waste

was in conflict with the constitutional law or international agreement under article.

10 of the Constitution, and therefore the proposal from a group of Senators has rejected.



The President of the Constitutional Court:



JUDr. Kessler v. r.