The Constitutional Court found No 111 / 2024 Coll.
Findings of the Constitutional Court sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
07.05.2024
111
FIND
The Constitutional Court
of 3 April 2024
sp. zn. Pl. ÚS 35 / 23 concerning the proposal to repeal Article I (2), (5), (6), (7), (17) and (20) and Article II of Government Regulation No 433 / 2022 Coll., amending Government Regulation No. 272 / 2011 Coll., on the protection of health against adverse effects of noise and vibration, as amended
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 35 / 23 on 3 April 2024 in plenary composed of the President of the Court of Josef Boxy and judges and judges Lucie Dolanská Bányai, Josef Fiala, Milan Hulmák, Jaromír Jirsy, Veronica Christian, Zdeněk Kühn, Tomáš Liččník, Kateřina Ronovská, Jan Svatona, Pavel Šámal, Vojtěch Šimíček, David Uhíří, Jan Wintra and Daniela Zeman (Judge of the Rapporteur) on the motion of the 23 Senators, for which is dealt with by Senator Jitka Seitlová, Mgr. Beata Sabolová, LL.M., a lawyer, with the seat of Balbínova 223 l.
as follows:
I. The proposal to repeal Article I (2), (5), (6), (7), (17) and (20) of Government Decree No. 433 / 2022 Coll., amending Government Decree No. 272 / 2011 Coll., on the protection of health against adverse effects of noise and vibration, as amended, is rejected.
II. The proposal to repeal Article II of Government Decree No. 433 / 2022 Coll., amending Government Decree No. 272 / 2011 Coll., on the protection of health against adverse effects of noise and vibration, as amended, is rejected.
Reasons
Definition of the case
1. By a proposal submitted pursuant to Article 87 (1) (b) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) of 14.7.2023, a group of 23 Senators (hereinafter referred to as the "applicant") seeks the annulment of the above-mentioned provisions of Government Decree No. 433 / 2022 Coll., amending Government Decree No. 272 / 2011 Coll., on the protection of health against adverse effects of noise and vibration, as amended (hereinafter referred to as "Regulation No. 433 / 2022 Coll.").
2. Regulation 433 / 2022 Coll. was adopted by the Government on 7.12.2022 and became effective on 1.7.2023.
3. The appellant asks for a preliminary ruling under Article 39 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., on grounds of public interest in the protection of health and "for the threat of serious damage and harm." In addition, the appellant asks "to defer the effectiveness of Regulation No. 433 / 2022 Coll.," if such a procedure can be adduced by the interpretation of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (the Law on the Constitutional Court).
Text of the contested provisions
4. The contested provisions of Regulation No 433 / 2022 Coll. read:
2. in § 2, point (n): "(n) the railway station marshalling stations providing train work, train inspection and wagon repair,"
...
5. in Article 2, point (p) shall be deleted;
Points (q) and (r) shall be renumbered as points (p) and (q).
6. In Article 2 (p): "(p) maintenance, reconstruction, modernization or optimisation of the track activity related to the replacement or renewal of railway superstructure, bottom and related equipment, underlining and grinding of tracks, possibly the addition of track, pre-electrification, electrification of track or other related modifications,"
7. in Article 2, the following point (q) is inserted after point (p): "(q) the maintenance, reconstruction, modernisation or capacity of the infrastructure is added:" (q) the activity related to the laying of a new road surface or the expansion of the road while maintaining the road direction or height line or any other related modification, including the associated short-term route; "
Point (q) shall be renumbered as point (r).
...
17. Paragraph 12 (4) to (6) is deleted.
Paragraphs 7 to 9 shall be renumbered paragraphs 4 to 6.
...
20. Part A of Annex 3 reads as follows:
Correction for the determination of hygiene noise limits in protected outdoor areas of buildings and in protected outdoor areas
| Druh chráněného prostoru | Korekce [dB] | ||
|---|---|---|---|
| 1) | 2) | 3) | |
| Chráněný venkovní prostor staveb lůžkových zdravotnických zařízení včetně lázní | -5 | +5 | +13 |
| Chráněný venkovní prostor lůžkových zdravotnických zařízení včetně lázní | 0 | +5 | +13 |
| Chráněný venkovní prostor ostatních staveb a chráněný ostatní venkovní prostor | 0 | +10 | +18 |
The corrections given in the table are not added.
For night time, additional correction -10 dB is added for the protected outdoor space of buildings, except for traffic noise on railway and tram tracks where correction -5 dB is used. If there is a combination of infrastructure with different hygiene noise limits, the resulting noise limit shall be determined according to the communication from which the contribution of noise from transport to that communication is predominant.
Rules for the application of the correction set out in the table:
1) It shall be used for stationary noise. A further correction + 5 dB is added for the ranking station which was put into service before 1 November 2011.
2) It shall apply to road and rail noise which have been placed and authorised by a decision or measure under another legislation after 31 December 2000.
3) It shall apply to road and rail noise which have been placed and authorised by a decision or measure under another legislation before 1 January 2001. It shall also apply to noise from transport, if it is an activity under § 2 (p) or (q) on these roads and railways carried out after 1 January 2001. ';
Transitional provision
Hygienic noise limits determined in accordance with § 12 (3) and Annex 3 to Decree No. 272 / 2011 Coll., as effective from the date of entry into force of this Regulation, shall not apply to noise prevention measures.
(a) to limit noise from road and rail transport in procedures and procedures initiated and in the case of buildings authorised or collapse under other legislation before the date of entry into force of this Regulation and the procedures and procedures shall be completed in accordance with existing legislation; or
(b) approved by the public health authority in the form of a temporary permit pursuant to Article 31 of Act No. 258 / 2000 Coll., on the protection of public health and amending certain related laws, as amended, before the date of entry into force of this Regulation, provided that the noise in the protected outdoor areas and in the protected outdoor areas of buildings does not exceed the value of the noise which has been objectified by the measurement at the reference control point when the noise measure is put into use; this noise value plus 0,5 dB shall be considered as a hygiene noise limit during the period of validity of that condition. ';
Arguments of the appellant
5. The appellant claims that the contested provisions exceeded the legal authorisation to issue government regulations (Article 78 of the Constitution) and thus infringed Article 1 (1) of the Constitution prohibiting the libido. It also alleges that the infringement of the "principle of the legality of the regulation of certain fundamental rights', namely the infringement of the right to health protection under Article 31 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter ') and the right to a favourable environment under Article 35 (1) and (3) of the Charter, "in conjunction with the infringement... Article 1 (1) and Article 2 (3) of the Constitution for Chaos, Unbalance and Unpredictability of Legislation'.
6. The current noise control system as a whole is incomprehensible and uncompact, it would deserve overall technical revision and rationalisation. However, in view of the complexity and scope of the case under consideration, the appellant proposes only the repeal of those provisions of Regulation No 433 / 2022 Coll., which lead to an increase in the hygiene limits of road and rail noise in protected outdoor areas of construction.
7. Government regulations must be issued for the implementation of the law and within its limits. The limits of the Law were exceeded in the case of the contested provisions. The limits for the Government Decree according to the appellant are set out in § 1 (c), § 2 (2) and § 80 (1) of Act No. 258 / 2000 Coll., on the protection of public health and on the amendment of certain related laws, as amended, (hereinafter referred to as "the Act on the Protection of Public Health '), under which the statutory regulation of noise reduction, not its increase, protection of public health, not its threat, and improvement of the health status of the population and not its deterioration. Also in other provisions of the Act (§ 81, 81a, 81b), the competence of individual ministries is defined by the aim of noise reduction.
8. The excess of the legal limit is also imported by the appellant from Section 108 (5) of the Public Health Protection Act, according to which "the hygiene limits and requirements to be laid down by the implementing legislation issued under this Act, the Ministry of Health provides for a health risk assessment... ', stating that no risk assessment has taken place. The arguments of the Ministry of Health (hereinafter" the Ministry') in the explanatory memorandum are not supported by specific data. According to the appellant, the Ombudsman's observations were also not dealt with in the comment procedure.
9. The contested provisions were "an enormous, several-fold increase in allowed noise" compared to previous limits. The contested provisions have extended the scope of the buildings to which the increased limits will apply, the introduction of new increased limits for so-called "old buildings" essentially corresponding to the limits for so-called old noise loads. The specific limit in the railway protection zone has also been abolished. It is not clear how many kilometres of transport structures will fall under an increased limit corresponding to the old noise load limit, but the author assumes that it will be up to 80% of all transport structures. It considers that the contested regulation is a defect in the fact that, in the response procedure, an overview of these buildings was not submitted.
10. By increasing noise limits without implementing any other measures to reduce noise and extending the scope of these covered transport structures, the government has substantially limited the legal framework allowing for requiring and enforcing measures to implement noise-related measures.
11. The result of Regulation No. 433 / 2022 Coll. is also a de facto increase in the permissible noise in the protected indoor spaces of buildings as a result of the application of Paragraph 30 (1) of the last Act on the Protection of Public Health (compliance with the obligation to protect against noise in the protected outdoor area of the construction is also considered to be the fulfilment of this obligation in the protected internal space of the construction).
12. The increase in permissible noise levels has a negative impact on public health, the appellant refers to the recommendations of the World Health Organisation (WHO) 2018 (Environmental Noise Guidelines for the European Region). The WHO Recommendation calls for an excessive noise load to be reduced in Europe up to the level of noise levels defined there, i.e. lower than those referred to in Regulation No 433 / 2022 Coll.
13. The appellant also refers to Directive 2002 / 49 / EC on the assessment and management of ambient noise ("Directive 2002 / 49 / EC"). While the Directive does not provide for a specific objective of reducing noise in the Member States, nor does it provide for enforceable uniform noise limits, it provides for an obligation to process strategic noise maps and noise reduction action plans. Action plans are to be developed for areas where specific indicators with noise levels above 55 dB per day and above 50 dB per night have been exceeded.
14. The applicant respects the interest in building public infrastructure, but the government's authority to adjust noise limits is limited solely by the interest in protecting public health, improving it and reducing environmental noise. The appellant also illustrates a study according to which the implementation of noise prevention measures will also be paid to the States economically compared with the cost of follow-up healthcare for noise diseases. Due to the increase in noise limits, the noise protection burden will be transferred from noise originators, respectively managers and owners of transport structures to residents living in noise-laden areas.
15. As regards the infringement of Articles 31 and 35 (1) and (3) of the Charter, the applicant states that environmental standards should be established in such a way as to avoid endangering human health and the environment. According to Article 12 (1) of Act No. 17 / 1992 Coll., on the Environment, "the permissible level of environmental pollution is determined by the limit values laid down by specific regulations; these values shall be determined in accordance with the level of knowledge achieved in such a way as to avoid endangering human health and to avoid endangering other living organisms and other environmental compartments'. According to the appellant, the conditions for Regulation No 433 / 2022 Coll. were not met, the legal limits were exceeded.
16. Regulation No. 433 / 2022 Coll. is generally incomprehensible and unpredictable, the way in which the applicable limit is determined is set in a complex and "recombined" way, thus violating the principle of predictability and the prohibition of arbitrary. A rationality and proportionality test was to be applied, for which the appellant states that if the objective pursued is to protect public health, it cannot be achieved by Regulation No 433 / 2022 Coll. The reduction of noise load is economically advantageous and can be ensured by less expensive measures. In addition, there is inequality between individual owners of public space.
17. With the effect of Regulation No 433 / 2022 Coll., i.e. from 1 July 2023, construction projects may be placed or authorised according to new noise limits, in the case of previously unbroken projects, the possibility may be used to request a change of construction before completion already under new noise limits, in the case of projects with the exception granted, new noise limits shall also be applied after the exception. For this reason, the appellant asks for the preliminary classification of the present case and for the postponement of the effectiveness of Regulation No 433 / 2022 Coll.
Statement by the Government and the Ministry
18. The Constitutional Court requested, pursuant to Article 69 (1) and (3) of the Law on the Constitutional Court, the expression of the Government as a party to the proceedings, the Ombudsman as a potential party to the proceedings and the statement of the Ministry.
19. The Ombudsman stated on 10.8.2023 that he would not exercise procedural rights under Paragraph 69 (3) of the Constitutional Court Act and would not intervene.
Government observations
20. In its observations of 5 September 2023, the Government states that the contested provisions have been adopted in a constitutional manner and within the limits of the Constitution laid down by competence and comply with both laws and constitutional order. The appellant challenges the amendment legislation, but it does not have a separate regulatory existence, but it becomes part of the amended standard. The appellant formally contends that the standard competence (legal authorisation) is exceeded, but only the selected provisions of the amendment have been challenged. In addition, the question of government competence for the adoption of Government Decree No. 272 / 2011 Coll., on the protection of health against the adverse effects of noise and vibrations, as amended ("Regulation No. 272 / 2011 Coll. ') was already assessed by the Constitutional Court in the decision of 18 December 2018 sp. zn. The proposal should therefore be rejected in addition to the part affecting transitional provisions.
21. The Government recalls that the issue raised is of a professional nature and primarily belongs to the layout of legislative and executive, not judicial. In part, the Government refers to the separately requested statement by the Ministry with which it identifies. The main reason for the adoption of the contested legislation was the need to rationalise the existing approach to protecting public health from noise, so as to preserve the development of public infrastructure while maintaining the protection of public health from noise, as well as the protection of nature and the favourable environment. In practice, the application of previous legislation has often led, from the point of view of fulfilling its purpose, to undesirable (and often paradoxical) states, and has therefore been regarded by the professional public and the application practice as overtaken.
22. In its extensive statement, the government further describes the details of noise detection mechanisms, the problems of previous application practice, the setting of hygiene limits for "old 'and" new' communications. It states that the maximum permissible values have been set only depending on the age of the infrastructure or runway, which is the approach usual in a number of Member States of the European Union. Regulation No. 433 / 2022 Coll. unified the categorisation of infrastructure, one general hygiene limit was modified for all classes of infrastructure, taking into account the distribution by age. The consequences of a local increase in noise from transport related to the new construction may be assessed in the context of its authorisation, where the operators concerned have the possibility to participate in the zoning and construction proceedings and, where appropriate, use other means of legal protection. The Government justifies the abolition of the distinction between the hygiene limits within and outside the railway protection zone (i.e. the introduction of a single hygiene limit for the runway).
23. The Government does not agree that the legal authorisation is exceeded. It is clear from Article 108 (4) of the Public Health Act that the legislator expressly authorised the Government to issue a regulation, thereby showing the will to make more detailed arrangements beyond the general legal standard.
24. As regards the argument of Directive 2002 / 49 / EC, the Government recalls that each Member State of the European Union determines the specific value of the limits on its own terms. The WHO's recommended values (50 dB daily and 40 dB nocturnal limit) consider the WHO itself as the recommended target value to be as close as possible in the long term. According to the Government, this strategic noise target cannot be confused with the immediately applicable noise limits, as the appellant does. The hygiene noise limit is not an absolute health threshold, but it is a compromise between health and socio-economic requirements and the possibilities of society.
25. On the appellant's argument that only (from the point of view of the legislature) "noise reduction 'is possible, the Government states that the Constitutional Court has already dealt with the so-called standstill doctrine in the Pl. ÚS 4 / 18, the conclusions of which are detailed. In view of the legal limits, the newly set noise limits are sufficiently effective measures aimed at reducing noise in general in relation to a situation where these limits would not be regulated at all, which also applies to the modified range of buildings.
26. The Government further demonstrates the inefficiency of certain noise measures when setting strict limits, or calls into question the appellant's assertion that there is a range of ways to reduce noise. According to the Government, the objection concerning the alleged inclarity, unpredictability and complexity of the determination of the hygiene noise limit is unfounded, as the purpose of Regulation No 433 / 2022 Coll. was to rationalise and simplify the legislation. The previous legislation has been assessed as overtaking and causing a completely paradoxical situation where temporary (initially transitional) institutes have become rigid mechanisms that have virtually not ensured the protection of public health from noise; In addition, they caused complications in project planning and further development of transport infrastructure. Regulation No 433 / 2022 Coll. brought the harmonisation and simplification of the administrative procedures of the various public health authorities, which results in a clarification of the whole approach to traffic noise regulation.
27. The proposal should therefore be partially rejected and partially rejected or rejected as a whole.
Statement by the Ministry
28. In its observations of 1 September 2023, the Ministry states that the legal authorisation was not exceeded when Regulation No 433 / 2022 was issued. The author's interpretation that the legal limit for amending Regulation No. 272 / 2011 Coll. is always "noise reduction" is absurd and cannot stand. The law uses the turnover of "area of assessment and noise reduction ', which is merely a name for the separation of the activities of the authorities whose scope is given by the Act on Public Health Protection. In pursuing its public health policy, the State balances various conflicting interests, including through a proportionate reduction in the standard of rights of one of the interested groups. The Public Health Protection Act does not provide for any health limits and leaves their identification or change to the executive. If it were to be concluded that the government cannot increase noise limits, the legislator would undoubtedly resolve such a crucial step by setting itself the value of the noise limit, thereby limiting the government's competence in the area of noise. However, this did not happen.
29. The Ministry also refers to the conclusions of Pl ÚS 4 / 18, on which it also relies in its arguments. It states that Regulation No 433 / 2022 Coll., or its contested provisions, are not the result of arbitrary or irrational excesses but a thorough expert assessment. On the objection of non-compliance with the conditions of Section 108 (5) of the Public Health Protection Act, the Ministry states that "assessment of health risks' is a broad concept which is implemented in many different ways. The preparation of Regulation No. 433 / 2022 Coll. took place for about 2 years, both Ministry experts and experts from the National Reference Laboratory for Municipal Noise at the Health Institute in Ostrava were involved. The process of assessing health risks continued throughout the preparation of the Regulation. The Ministry was based on documents and information from the WHO (Environmental Noise Guidelines 2018) or European Network of the Heads of Environment Protection Agencies (Interest Group on Noise Abatement) and EEA (European Topic Centre Human Health and the Environment).
30. The Institute of Old Noise Load was abandoned for its difficult and complicated application in practice. However, the Ministry recalls that for the old noise load the limits of 70 / 60 dB were tightened to 68 / 58 dB. On "old 'roads, the new noise limits are 2 dB tightening. The same principle applies to railway transport. The strict noise limits for Class III infrastructures and special purpose communications have become unrealistic and unsustainable in the context of the development of population mobility. There is no reason to set a different noise limit according to the communication class for road surroundings because the source and nature of the noise (road transport) are in all cases the same and its health effects are the same. The aim of Regulation No 433 / 2022 Coll. was to simplify the existing regulations on noise limits and to establish them clearly, uniformly and predictably.
31. The Ministry also makes a detailed statement on the appellant's objections concerning noise limits, given the limited scope of the review, it is not necessary to develop this argument.
32. As regards the preparation of Regulation No. 433 / 2022 Coll. the Ministry states that several inter-ministerial meetings took place in 2021 and 2022. The comments of all points of comment were duly settled. The appellant incorrectly states that the Ombudsman's comment has not been settled. The Ombudsman took note of his observations and did not insist on a conflict. The material was submitted to the government without contradiction.
33. As regards the alleged objection to the inclarity, unpredictability and complexity of the determination of the hygiene noise limit, the Ministry states that the aim of the contested provisions was, inter alia, to rationalise and simplify the approach to protecting public health from noise.
34. The Ministry thus proposes to reject the proposal.
Replication of the appellant
35. The applicant, in a reply of 2.11.2023, states that all relevant arguments are already mentioned in the proposal, and explicitly responds only to the observations of the Ministry. It does not submit a separate reply to the Government's observations as the Government's observations do not give any fundamentally different arguments than those of the Ministry.
36. The Ministry did not deal with the alleged actual increase in noise load in the indoor areas following Paragraph 30 (1) of the Act on Public Health Protection. In its observations, the Ministry devalues interest in the protection of public health and does not respect its own competence.
37. While the Ministry states that the preparation of the regulation lasted two years and with whom it cooperated in the preparation, it did not provide any concrete analysis. The Ministry does not demonstrate that higher limits are sufficient to ensure the same level of health protection. According to the appellant, investments in noise prevention measures will be returned several times.
Abandonment of oral proceedings
38. As the Constitutional Court did not expect further clarification of the case from the oral hearing, it abandoned the oral hearing under Paragraph 44 of the Constitutional Court Act.
Review of the contested provisions
Review scope
39. In the present case, the Constitutional Court took first of all into account the appellant's challenge to the selected provisions of amending Regulation No 433 / 2022 Coll., including transitional provisions (Article II), but none of the provisions of the original amended Regulation No 272 / 2011 Coll., namely the provision of that regulation which sets the health limits for noise. At the same time, it does not challenge amending Regulation No 433 / 2022 Coll. as a whole, although it accuses the Government of exceeding its competence in issuing it, and calls for a "deferral of its effectiveness'.
40. It follows from the settled case-law of the Constitutional Court that the amendment to the law does not have a separate legislative existence, which is acquired only as part of the amended legislation. Therefore, by a proposal pursuant to Article 87 (1) (a) or (b) of the Constitution, this amended legislation can be effectively challenged as a carrier of the normative content [cf. the finding of 8.10.1996 sp. pl. ÚS 5 / 96 (N 98 / 6 SbNU 203; 286 / 1996 Coll.), 12.3.2002 sp. zn. Pl. ÚS 33 / 01 (N 28 / 25 SbNU 215; 145 / 2002 Sb.) or 25.9.2018 sp. Pl. ÚS 18 / 17 (N 156 / 90 SbNU 525; 261 / 2018 Sb.].
41. The appellant challenges the individual partial amendment points without reflecting the current decision-making practice of the Constitutional Court in the proposal, arguing with it, or the form of a petition challenging the partial amendment points further (knowing the present decision-making practice of the Constitutional Court). Nor did the appellant react in any way to the Government's explicit warning of the impossibility of revising the individual amendment points in substance. Thus, the Constitutional Court based its constant case-law on the present case and found no reason to deviate from it on the basis of the present proposal. Therefore, it could not deal with the part of the proposal which requires a substantive review of the content of Article I (2), (5), (6), (7), (17) and (20) of Regulation No 433 / 2022 Coll.
42. Where, on the contrary, the amendment contains separate provisions which were not included in the text of the amended regulation, the amendment itself may be challenged [cf., for example, the finding of 20.6.2006 sp. zn. Pl. ÚS 38 / 04 (N 125 / 41 SbNU 551; 409 / 2006 Coll.), paragraph 24, or the resolution of 5.8.2014 sp. zn. Pl. ÚS 26 / 13, paragraph 20]. It may, for example, be the transitional provisions of the amending Regulation, as in the case at hand. The content of the transitional provision of Article II of Regulation No 433 / 2022 Coll., which has a separate normative existence, can therefore be examined in a meritative manner.
43. However, it also appears from the Constitutional Court's decision-making practice that, when the lack of normative competence or infringement of the constitutionally prescribed procedure for the adoption of the law is contested in the legislative procedure [cf.
44. The appellant contends that the infringement of Article 78 of the Constitution (the Decree of the Government must be issued for the implementation of the law and within its limits), and that the limits of the law have been exceeded in the case of the contested provisions. The Constitutional Court also assesses by law (§ 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.) whether the provision was adopted within the limits of the Constitution by a defined competence and by a constitutional procedure.
Assessment of procedural conditions and competence for the adoption of government regulations
45. The Constitutional Court, in accordance with Paragraph 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., first examined whether Regulation No. 433 / 2022 Coll. was adopted within the limits of the Constitution established competence and by the constitutional procedure.
46. In accordance with Article 78 of the Constitution, the Government is entitled to issue a government order. The Decree was approved by the Government by Decree No. 1010 of 7.12.2022, the final text was published in the Collection of Laws on 23.12.2022 under No. 433 / 2022 Coll. with effect from 1.7.2023.
47. The Constitutional Court recalls that regulatory competence by means of government regulations is a separate power of order under Article 78 of the Constitution, the Government is entitled to issue regulations for the implementation of the law and within its limits and does not require any special authorisation from Parliament. The Government's regulation cannot deviate from the legal limits, i.e. it cannot be a praeter legem, and must remain within the limits of the law which are either expressly defined or resulting from the meaning and purpose of the law [e.g. the finding of 14.2.2001 sp. zn. ÚS 45 / 2000 (N 30 / 21 SbNU 261; 96 / 2001 Sb.)]. Thus, a government regulation must be issued (1) by an authorised body, (2) cannot interfere in matters reserved for the law, and (3) the legislator's will to regulate above the legal standard must therefore be open to the sphere of the regulation. The Government's regulation can thus specify in more detail the issue covered by the basic features already laid down by the law itself [cf. e.g. the finding of 16 October 2001 sp. zn. Pl. ÚS 5 / 01 (N 149 / 24 SbNU 79; 410 / 2001 Coll.)].
48. The basis for Regulation No. 272 / 2011 Coll., or any changes thereto, including Regulation No. 433 / 2022 Coll., is the Act on the Protection of Public Health, which defines noise and vibrations in § 30, regulates the obligation for operators and owners of various devices and objects not to exceed noise limits and also defines different types of protected spaces from noise. Paragraph 34 (1) of the same Act states: "The implementing legislation will regulate the hygiene limits of noise and vibrations for daytime and night periods, the way in which they are measured and evaluated. 'Paragraph 108 (4) of the Act on Public Health Protection specifies that a government regulation will be an implementing regulation. Thus, the legislature expressly expressed its willingness to make more detailed arrangements under the legislation, with Section 108 (5) defining the conditions to be taken into account when setting noise hygiene limits.
49. The appellant contends, inter alia, that Regulation No 433 / 2022 Coll. was not issued "for the implementation of the law and within its limits," as required by Article 78 of the Constitution, since, contrary to the text of the Act on the Protection of Public Health, "it does not" reduce the noise limits or serve "to protect" health. At the same time, they claim that the "principle of the legality of the regulation of certain fundamental rights' (namely Articles 31 and 35 of the Charter) has been infringed. In fact, the appellant makes two reservations (from the point of view of exceeding the government's competence): firstly, it is not possible to set noise limits by simply a government regulation, since it is a regulation of fundamental rights and, secondly, it is not possible to increase those limits, or the extent of the territory (buildings, objects) with higher limits, because the law only provides for reductions.
50. The Constitutional Court, in its finding Pl. ÚS 4 / 18, which rejected the application for annulment of the selected provisions of Decree No. 272 / 2011 Coll., as amended, rejected the argument of the appellant (a group of senators) that noise limits could not be established by the Government's regulation. According to the Constitutional Court, "the determination of the hygiene limits of noise and the way in which they are measured is one of the activities which correspond to the following citation in the case-law of the Constitutional Court: ', in order to ensure the efficient performance of the public administration, it is appropriate to leave an adjustment to the details of a statutory regulation which may be more operationally amended' '.
51. If the Constitutional Court finds that the noise limits themselves can be established from the point of view of Articles 31 and 35 of the Charter by a government regulation, and not necessarily by law, then a partial amendment of individual regulatory parameters (e.g. the amendment regulation as in the present case) cannot constitute a departure from the government's competence.
52. If there is a second alleged reason for exceeding the constitutional mandate, that is to say, exceeding the formal limits of the Public Health Act, the appellant is based only on the language interpretation of the relevant provisions of the law or concepts such as "noise reduction 'or" improving the health of the population'. Therefore, if the Act on the Protection of Public Health is defined in several places, that the subject of the legislation is "noise reduction '," protection of public health' or "improvement of the health status of the population ', the general objectives of the law and the definition of the subject matter of its regulation. However, it cannot be inferred from these general terms that the implementing provisions regulating the individual partial (often very technical) aspects of the various public health policies would be unchanged or allow for a single possibility of change, namely by tightening the limits, parameters or conditions already defined.
53. It is necessary to take into account the necessary degree of space available to the legislator himself in the regulation of the rights set out in Article 41 (1) of the Charter, all the more the executive in determining the technical sub-parameters of regulation in substatutory regulations. Only on the public health protection section are there, for example, a number of substatutory regulations governing sanitary requirements for drinking water, for products intended for direct contact with drinking or raw water, for swimming pools, for premises and the operation of facilities for education and education, for food services, for food contact products, for toys and products for children under 3 years of age, for the operation of health facilities and social care institutions, for the environment of selected buildings, etc. Once established sub-technical parameters of a particular sublegal regulation do not constitute an untenable and no longer constitutionally relevant limit preventing a possible change of legislation (albeit reducing the standard of protection) in the future.
54. The Constitutional Court in the finding of Pl. ÚS 4 / 18 refused the application of the standstill doctrine, i.e. the requirement of a permanent increase (or ban on reductions) of the substantive level of fundamental rights, in particular when it comes to rights subject to the provisions of Article 41 (1) of the Charter. He added that, typically in the case of the social rights associated with the role of the State in its security, a dilemma arises in terms of the allocation of public funds, with the constitutionally permissible (in abstract terms) to reduce the framework of protection of fundamental rights, the more likely it is to adjust the different parameters constituting the individual "building blocks' of that protection. To insist otherwise would ultimately block the creation of any state policy. Although, from a normative point of view, compliance with the principles of sustainable development and the ambition to increase the level of environmental protection should be among the main objectives of the modern state, there is no priori any reduction in the level of protection of the right to a favourable environment (cf. Pl. ÚS 4 / 18, paragraphs 61 to 63).
55. Nor does the decision-making practice of the European Court of Human Rights ("ECHR ') relating to Article 8 of the Convention, to which the applicant refers in the reply, imply a constant increase or no reduction in the standard of national public noise protection. The States in this area have a wide margin of discretion (cf. Giacomelli's judgment against Italy of 2.11.2006, Complaint No 59909 / 00, § 80) and the ECHR does not apply any autonomous noise limits, but is based primarily on those which were in force at the time and place of the case under review and is based on an individual assessment of a particular case (cf. Pl. ÚS 4 / 18, paragraphs 65- 67).
56. The Constitutional Court merely adds to the appellants' arguments based on the WHO recommendation or Directive 2002 / 49 / EC that neither the WHO nor the European Union impose any (e.g. minimum) mandatory noise limits and retain their designation within the jurisdiction of the States. States have a discretion not only in determining the level of noise limits, but also in their structure (see in more detail Pl. ÚS 4 / 18, paragraphs 50-53). Thus, it cannot be concluded from the WHO recommendation or European law regulations that the noise limits could not be increased once.
57. All the above conclusions are logically reflected in the entitlement to the content of the implementing legislation or in the interpretation of the legal limits for those provisions. The objective of the Act, as well as the implementing provisions it has issued, is to protect public health, improve the health of the population or reduce noise, as it is the general objectives of the legislation as a whole, regardless of the partial changes to the various technical parameters of the legislation. Thus, it cannot be mechanically imported that the government's constitutional authority under Article 78 of the Constitution is exceeded solely to mitigate certain conditions of public health protection (e.g. increase in noise limits) as compared to previous legislation. Otherwise, for example, it would not be possible to correct strictly defined conditions or limits (e.g. also due to incorrect political considerations) at all. The Constitutional Court concludes in this part that the increase in noise limits alone cannot lead to a conclusion on the non-respect of constitutional authority in the form of exceeding the formal limits of the Act on the Protection of Public Health.
58. The excess of the legal limit is also imported by the appellant from Section 108 (5) of the Act on Public Health Protection, according to which "the hygiene limits and requirements to be laid down by the implementing legislation issued under this Act, the Ministry of Health shall determine, on the basis of an assessment of the health risks arising from natural, living and working conditions and the manner of life, current scientific knowledge, the international obligations of the Czech Republic in this field and the recommendations of the World Health Organisation '. The applicant submits that no risk assessment has taken place. In its observations, the Ministry maintains that the conditions of Section 108 (5) of the Act on Public Health Protection have been fulfilled, or that health risks have been assessed, summarising the course of all the negotiations prior to the issue of Regulation No. 433 / 2022 Coll., cooperation with the National Reference Laboratory for Municipal Noise at the Health Institute in Ostrava, refers to the documents on which it was based, including WHO documents. However, Article 108 (5) of the Act on Public Health Protection does not imply (in addition, in the form of a legal limit for the Government's regulation) that a specific analysis is required (as requested by the appellant in the reply) that" the state of knowledge would change in the sense that noise is less harmful or harmful from a higher level than that foreseen by the WHO' or that "the proposed higher limits are sufficient to ensure an equal level of health protection, or that increased health costs can be assumed at a certain level that is acceptable to the company '. Therefore, the failure by the appellant of the required analysis cannot lead to the conclusion that the legal limits for substatutory standard production are unconstitutional, or as a result of the lack of the government's competence to issue Decree No. 433 / 2022 Coll.
59. The appellant's assertion of contradictions in the submission of the draft Decree No. 433 / 2022 Coll. for consideration by the Government was refuted by a documented settlement table by the Ministry. Moreover, any discrepancies with points of reference cannot lead to a conclusion on the unconstitutional way of adopting a government regulation, since the submission of a proposal for a government 'without contradictions' is neither constitutional nor legal condition for the adoption of a government regulation.
60. Thus, the Constitutional Court concludes that Regulation No 433 / 2022 Coll. was adopted by the Constitution by an authorised authority, within the limits of the Constitution laid down by competence and in a constitutional manner (Articles 76 (1) and 78 of the Constitution).
Substantial assessment of transitional provisions
61. The Constitutional Court further dealt with Article II of Regulation No 433 / 2022 Coll., since only that provision is formally eligible for substantive review.
62. The appellant does not contest the specific provisions of Regulation No. 272 / 2011 Coll. (contrary to sp. zn. Pl. ÚS 4 / 18), so it does not consider the normative provisions against which they are, in part, actually arguing, such as the new values of noise limits or the definition of buildings or objects to which the new values relate (see paragraphs 40 et seq.). Thus, the Constitutional Court cannot address the partial technical parameters of the new legislation enshrined in § 2, 12 or Annex 3 to Regulation No 272 / 2011 Coll.
63. The contested transitional provision provides that "the sanitary noise limits set in accordance with § 12 (3) and Annex 3 to Government Regulation No. 272 / 2011 Coll., as effective from the date of entry into force of this Regulation, shall not apply to the noise measures defined in the transitional provisions (cf. paragraph II above). For other noise prevention measures, new hygiene noise limits are already applied and contrario. Although the appellant states that since 1.7.2023 construction projects may be placed or authorised according to new noise limits, in the case of previously uncollapsed projects, the possibility may be used to request a change of construction before the completion of the new noise limits, or that, in the case of projects with a derogation, new noise limits may also apply after the expiry of the derogation, but rather than the intertemporal effects of the transitional provision itself, the specific new values of noise limits or the change in scope (objects, construction) to which new values are to apply.
64. It is not the intertemporal effect of inconstitutionality or lawfulness of legislation in the case at hand. On the contrary, the contested definition of the rules on applicability of existing or new rules is one of a number of possible rational options for determining the temporal effects of the change in legislation. The Constitutional Court does not find any pleas in law in the contested provision, nor does the appellant claim (in terms of intertemporal effects themselves).
65. Although the appellant contends that the result of the contested legislation is precisely "irrational excesses acting in a comprehensive manner ', or criticises the legislation being chaotic, incomprehensible and inaccurate, it is not only a transitional provision which does not in itself indicate a complex excess. Moreover, by abolishing it, the alleged lack of clarity and unpredictability of the regulation would be enhanced, as it would not have the intertemporal effects of the new regulation.
66. The Constitutional Court therefore concludes that it did not find the reason for the derogation of the contested provision.
Conclusion
67. The Constitutional Court therefore summarises that, in the part in which the application is directed against Article I (2), (5), (6), (7), (17) and (20) of Regulation No 433 / 2022 Coll., namely the individual amendment points, it rejected the application for manifest unfounded (operative part I) pursuant to Article 43 (2) (b) in conjunction with Article 43 (2) (a) of the Law on the Constitutional Court and Article 1 (2) (b) of the decision of the Constitutional Court of 25 March 2014 No Org. 24 / 14 on the appearance of jurisdiction (Notice No 52 / 2014 Coll.).
68. In the part in which the proposal was directed against Article II of Government Decree No. 433 / 2022 Coll., the Constitutional Court rejected it pursuant to Paragraph 70 (2) of the Law on the Constitutional Court because it did not find its inconstitutionality (operative part II).
69. Since the proposal on the substance was partially rejected and partly rejected, the Constitutional Court did not address the proposal to "defer the effectiveness of Government Decree No. 433 / 2022 Coll."
70. The Constitutional Court did not decide separately on the application for a preliminary hearing pursuant to Article 39 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., because the proposal was decided in the shortest possible time.
President of the Constitutional Court:
JUDr.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No 111 / 2024 Coll., sp. zn. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 07.05.2024 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Public Contracts 1
Smlouva o dílo na PD na akci "ZŠ Nuselská - instalace úsporných zdrojů vytápění"
Město Havlíčkův Brod
CERGO ENERGY s.r.o.
471 900 CZK
10.06.2024
Source:
Hlídač státu
(CC BY 3.0 CZ)
The regulation text is for informational purposes only.
Comments 0