The Constitutional Court found No. 124 / 2009 Coll.

Act No. 544 / 2005 Coll., on the construction of the take-off and landing track 06R - 24L Prague Ruzyně Airport, is repealed on the date of the publication of this finding in the Collection of Laws.

1. On 24 June 2008, the Constitutional Court received a proposal from 17 Senators of the Senate of the Parliament of the Czech Republic, to which another Senator (Karel Schwarzenberg) (hereinafter "the promoters') joined the Constitutional Court on the abolition of Act No. 544 / 2005 Coll., on the construction of the take-off and landing track 06R - 24L of Prague Ruzyně Airport (hereinafter" the contested law ') for its contradiction with Articles 1, 2 (1) and (3), Articles 81 and 90 of the Constitution of the Czech Republic (hereinafter "the Constitution') and Articles 11 and 36 of the Charter of Fundamental Rights and Freedoms (hereinafter" the Charter ').

2. First, the appellants argue that the contested law is at odds with the principle of division of power and democratic rule of law under Article 2 (3) of the Constitution. According to the promoters, the principle of division of power is the cornerstone of a democratic rule of law. It follows from the Constitution (Article 2 (3)) that individual powers should not interfere with their respective competences. The legislature is governed by Rule 15 of the Constitution of Parliament and the activities of this Rule are understood only by law, law. The law should be such an act of public authority, which generally regulates the range of relations on which it affects. The issue of the universality of the rule of law as its basic character has already been dealt with by the Constitutional Court, e.g. in the sp. zn. The Act on the construction of the take-off and landing runway 06R - 24L Prague Ruzyně Airport will be exhausted in a single moment (by the implementation of a specific construction). The legislature has chosen an approach to legislation which totally violates the principles recognised for law making. In essence, the process of Parliament of the Czech Republic undermines the principles of a democratic rule of law. Such a procedure would be justified perhaps at a time of historical breakthroughs in social development, but not in the conditions of a stable free society. The inadmissibility of such a solution will in particular be revealed at the ad absurdum brought to the idea of other similar legislation. The general nature of the legal standard is defined in law-making theory as being general both in the subject matter of the legal standard and in the addressees of the legal standard. The general scope of the subject-matter of the legislation is that the rule of law defines its substance in general. The legislation must not address specific individual cases but lay down rules on repetitive procedures or takes place. The object of the contested law in § 1 is defined uniquely and not generally, all the questions addressed therein fall only on a particular runway. Thus, this legal act loses the features of the law and, in terms of terms, receives the essentials of an individual legal act, typically a decision. However, the decision can only be made by the executive, not by the legislator, which implies, inter alia, the constitutional principle that state power can only be exercised in cases, within the limits and in the ways laid down by the law. Moreover, this direct undue overlap on the constitutional plane is reflected in a specific administrative procedure - expropriation. Expropriation is possible only on the basis of the law, in this case for the purposes set out in Section 170 of Act No. 183 / 2006 Coll., on zoning and construction rules (Construction Act) and under the conditions laid down in Act No. 184 / 2006 Coll., on the withdrawal or limitation of property rights to land or construction (Expropriation Act). The last law cited in § 3 (1) states that expropriation is permissible only if the public interest in achieving the purpose of expropriation outweighs the preservation of the rights expropriated to date. According to Article 4 (2) of Act No 184 / 2006 Coll., the public interest in expropriation must be demonstrated in the expropriation procedure. However, in the case of a procedure under the contested law, the administrative authority has no discretion. The legislator of the construction of § 1, in conjunction with § 2 (5) of the contested law, has already de facto expropriated land located in the area necessary for the construction of the runway. Paragraph 2 (5) of the contested law provides that the public interest in the expropriation of land, buildings and their rights for the construction of the runway shall be demonstrated by reference to that law in the expropriation procedure. However, the weighting of public interests in the expropriation procedure is an essential part of it and the exclusive competence of the expropriation office, the executive body. The legal structure presented by the Parliament of the Czech Republic attracted the exercise of the powers of the expropriation office, and thus essentially took the role of superior executive body, which it is not and cannot be, according to the Constitution.

3. Furthermore, the appellants argue that the contested law is in dispute with the right to judicial review (Article 36 of the Charter), Articles 81 and 90 of the Constitution, as well as with Article 11 of the Charter. The contested law in Paragraph 2 (4) prohibits the administrative authority from suspending proceedings in order to resolve a civil objection or another question referred for a preliminary ruling. The construction or expropriation office shall stay the proceedings if such an objection occurs and invite the party to bring the action. While the contested law does not directly prohibit judicial review of civil claims, it does, in fact, prevent judicial review or at least its effectiveness. By the time the court comes to its conclusion and judgment, the runway will at least be under construction and the ownership of the property owner concerned will be trampled irreparably. In particular, the expropriation decision is an actionable action with suspensive effect by law (Section 28 (3) of Act No. 184 / 2006 Coll.). However, even this solution does not need to guarantee sufficient judicial protection of property rights, because it is precisely because of the unexplained ownership ratios that the defendant does not have to be actively legitimised to bring an action. Another problem that arises in the case of judicial review of decisions given under the contested law is the question of the scope of that review. Since the legislature has, in addition to its powers, identified the runway as a public-interest construction, the administrative court will not consider whether the administrative authority has gone beyond the scope of the administrative discretion, whether it has correctly assessed the advantage of the public interest over the particular owner's interest. In fact, compliance with the law is only given by the administrative authority to refer to the contested law, without considering the case in the particular case.

4. The Chamber of Deputies of the Parliament of the Czech Republic, in its observations of 3 March 2009, merely described the procedure for the adoption of the contested law, having been adopted after a properly implemented legislative process, signed by the relevant constitutional authorities and declared in the Collection of Laws.

5. The Senate of the Parliament of the Czech Republic, in its observations of 26 February 2009, stated that the Committee on Economy, Agriculture and Transport, as a committee of guarantee, as well as a committee of constitutional and legal advice, recommended the Senate to reject the bill. The two committees took the view that the legislation under assessment by introducing a special procedure against the owners of the land affected by the statutory structures was not fully consistent with Article 11 (1) of the Charter. The ownership of these entities will thus acquire content and protection other than that of other entities. The rights of the parties to the proceedings will be significantly modified as compared to those of the parties to the proceedings concerning "ordinary 'transport structures, where they will be implemented in accordance with the general rules. This can result in the weakening of the principle of equality of citizens before the law under Article 1 of the Charter. The committees also found a breach of the constitutional division of power between legislative and executive powers, as defined in Title II and the Third Constitution. The Act provides that the above buildings are carried out in the public interest, even if this possible conclusion is to be the result of an individual assessment of all interests in the territory by the competent administrative authorities. This eliminates the legal order of the procedures in place, thus excluding the possibility of reviewing the administrative discretion of an independent court in the administrative justice system, thereby limiting the right to judicial protection guaranteed by Article 36 of the Charter. The Court of Justice of the European Union (" the Court of Justice'), and the Court of Justice of the European Union ("the Court of Justice '), and the Court of Justice of the European Union (" the Court of Justice'), shall have the power to decide on any possible infringement of the contested law.

6. Since the parties to the proceedings agreed to waive the oral hearing and the Constitutional Court considers that further clarification of the case cannot be expected from the hearing, the conditions for the Constitutional Court to rule on the case in question without the order of the oral hearing (Section 44 (2) of Act No 182 / 1993 Coll., on the Constitutional Court) have been fulfilled.

7. The Constitutional Court, in accordance with Paragraph 68 (2) of the Law on the Constitutional Court, has assessed whether a law whose provision is assessed from a constitutional point of view has been adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure.

8. The Constitutional Court found that the Chamber of Deputies approved the parliamentary draft of the contested law under House Press No. 160 at its 48th session of 26 October 2005. The bill was passed on to the Senate, which did not adopt a resolution. The contested law was then signed and duly declared in the Collection of Laws under No. 544 / 2005 Coll.; it became effective on 30 December 2005. The contested law was thus adopted in a constitutionally prescribed manner and within the limits of the Constitution provided for competence, in compliance with the rules laid down in Article 39 (1) and (2) of the Constitution.

9. The Constitutional Court notes that the application complies with all the formalities laid down by the Constitutional Court Act and that there is no impediment to its hearing by the Constitutional Court.

10. The contested law, as amended, contains the following text:

The take-off and landing runway 06R - 24L Prague Ruzyně Airport, corresponding to its location as a valid urban plan of the capital city of Prague and the current urban plan of Hostivice, as well as all the buildings which will ensure its operation in the field of technical infrastructure (hereinafter referred to as the "take-off and landing runway ') are of public interest.

(1) In administrative proceedings relating to the construction of the runway, the management deadlines laid down by special legislation2) shall be halved. If the period is given by an odd number of days, it shall expire on the day following that on which half the period falls.

(2) In all administrative procedures, as well as in other activities relating to the construction of the runway, the competent administrative authorities shall not require opinions from those authorities concerned which submitted their opinions at the earlier stages of the preparation of the runway construction.

(3) The administrative procedure concerning the construction of the runway cannot be interrupted

(a) for the reasons set out in § 137 (1) and (2) of the Construction Act,

(b) on the grounds set out in Paragraph 64 (1) (c) of the Administrative Regulation;

(c) pursuant to Paragraph 64 (2) and (3) of the Administrative Regulation.

(4) If otherwise the reason for the interruption of the administrative procedure is to assess the civil or other objection pursuant to a special rule of law (3), or the preliminary question under an administrative order which has not been decided by the competent authority, the competent administrative authority shall take its own judgment on it, regardless of the possibility of initiating proceedings in a court or other authority and shall decide on the objection without delay. The appeal lodged against the decision shall not have suspensory effect.

(5) In the expropriation proceedings for land, buildings and their rights for the construction of the runway, failure to reach an agreement under a special legislature4), the non-conclusion of the agreement shall be deemed to be the usual expropriation at the spot and time price within 30 days of the date of receipt of the offer of compensation. The public interest in the expropriation of land, buildings and their rights for the construction of the runway shall be demonstrated in the expropriation procedure by reference to this law.

(1) Paragraphs 1 and 2 apply mutatis mutandis to procedures for issuing opinions and comments on the construction of the runway which are not subject to administrative procedure.

(2) Administrative proceedings initiated before the date of entry into force of this Act shall be completed in accordance with existing legislation.

(3) Unless otherwise provided for in this Act, the procedures relating to the construction of the runway shall be governed by special Law 5), the Construction Act and the Administrative Code.

This Act shall take effect on the day of its publication.

11. The Constitutional Court first assessed the constitutional conformity of § 1 of the contested law, for reasons of systemacy.

The same issue was previously dealt with by the Constitutional Court, in particular in the case sp. zn. Pl. ÚS 24 / 04 [found on 28.6.2005 (N 130 / 37 SbNU 641; 327 / 2005 Sb.)], in which the provisions of § 3a of Act No. 114 / 1995 Coll., on inland navigation, as amended, under which it applied: "The development and modernisation of the water path defined by the Elbe by the river km 129,1 (Pardubice), on the State border with the Federal Republic of Germany and the water flow of Vlutava from the river km 91,5 (Trebenice), including the Vranany - Horín after the confluent with the Elbe, including the oral part of the water flow of Berounka to the port of Radotin, is in the public interest '. The Constitutional Court, cited by the finding, annulled that provision, inter alia, stating that" Proving of public interest is necessary in the event of the expropriation or forced restriction of property rights pursuant to Article 11 (4) of the Charter and the subsequent provision of § 108 of Act No. 50 / 1976 Coll., on zoning and construction rules (Construction Act), as amended. In the light of the original wording of the contested provision, it is also appropriate to cite the provisions of § 43 of Act No 114 / 1992 Coll., on the conservation of nature and landscape, as amended, "Exceptions to the prohibition in specially protected territories pursuant to § 16, 26, 29, 34, § 35 (2), § 36 (2), § 45h and 45i in cases where the public interest is significantly outweighed by the interest of nature protection are permitted by the Government in each case." The contested provision of Section 3a of the Inland Navigation Act therefore precludes the administrative authority from seeking public interest in the development and modernisation of the waterway in question, since it is already determined by the law itself. Such a solution, i.e. the declaration of public interest in a specific matter by law, is considered by the Constitutional Court to be unconstitutional... The public interest in a particular case is established during the administrative procedure on the basis of a measure of various specific interests, considering all contradictions and comments. The rationale of the decision, the central point of which is the question of the existence of public interest, must then clearly indicate why the public interest prevailed over a number of private, particular interests. The public interest must be found in the decision-making process on a particular issue (typically on expropriation) and cannot be established in a particular matter and priori. For these reasons, the determination of the public interest in a particular case is typically executive powers and not legislative. For the contested provision of the law, it cannot be ascertained for what reasons the legislator has granted the development and modernisation of a specifically defined waterway status of public interest, whether it has identified any conflicting interests and how it has dealt with their existence. It is clear, moreover, that these circumstances cannot even be established as the legislative process is not equipped with the means to assess individual cases with all their context and implications... The contested provision did not only intervene in executive power, but also limited the right to judicial review. Any administrative decisions (such as the expropriation) taken in connection with the construction and modernisation of the waterway in question will be subject to review by the administrative court, but the question of the existence of a public interest will be excluded from this review, since it is already established by the law to which the general courts under Article 95 (1) of the Constitution are bound. In the absence of the contested provision, the general courts could examine whether the administrative authorities did not exceed the statutory limits of administrative discretion when applying the indefinite legal term "public interest' in a particular situation (cf. § 78 (1) of the Administrative Rules). However, the contested regulation de facto excludes... Although the contested provision is not entirely excluded from the judicial review, its restriction is so serious that the conclusions expressed in the finding are also fully affected by the case under consideration. In view of the above arguments, the Constitutional Court considers that the contested provision of Paragraph 3a of the Inland Navigation Act is incompatible with the principles of the rule of law, in particular the principle of division of power, and is contrary to Articles 1, 2 (1) and (3), 81 and 90 of the Constitution, as well as Article 36 of the Charter. Therefore, from the point of view of the proposed constitutional bail-out, the proposal to repeal the provisions of Section 3a of the Inland Navigation Act appears justified. '

12. In view of the fact that the arguments and conclusions cited are similar to those set out in Section 1 of the contested law, the Constitutional Court found no reason to derogate from them, it is sufficient for a brief reference to the finding cited and to conclude that Article 1 of the contested law is incompatible with the principles of the rule of law, in particular the principle of division of powers, and is contrary to Articles 1, 2 (1) and (3), 81 and 90 of the Constitution, as well as the right to judicial review under Article 36 of the Charter. Therefore, the application for its annulment was found to be justified.

13. The Constitutional Court notes, on this point, that Parliament has been brought to the attention of its unconstitutionality when negotiating the contested law. The finding of the sp. zn. Pl. ÚS 24 / 04 (see above) was already known at the time of its adoption, and was already brought to the attention of Members at the first reading of the draft of the contested law by Mr Jiří Pospíšil, who, at the second reading, reproduced the contents of the quoted finding and concluded that, inter alia, Article 1 of the contested law was unconstitutional. Similarly, Mrs Eva Dundáčková has spoken in the debate. After all, in its negative opinion on the draft contested law, the Government has already pointed out the unconstitutionality of, inter alia, its § 1. However, none of the Members have actually tried to deal with the arguments leading to the Constitutional Court in the debate (i.e. in constitutional law), so it cannot be concluded, for example, that there would be "only 'a different argument-based constitutional opinion as a reason not to deal with the quoted finding of the Constitutional Court.

The Senate did not adopt a resolution, despite all that was indicated on the draft act under appeal, with its committee of constitutional and legal committees on the economy, agriculture and transport adopting a resolution recommending the Senate to reject the draft act under appeal.

The President of the Republic did not use the Institute of the right to return the adopted law to the Chamber of Deputies, as foreseen in Article 50 (1) of the Constitution, and signed the contested law.

14. The Constitutional Court calls on the legislative power to deal more consistently with the constitutional consistency of the draft laws under discussion for futuro, particularly in the context of the existing case law of the Constitutional Court, which is even highlighted during the legislative process.

15. In the previous paragraph, the argument cited and the conclusion of § 1 of the contested law also falls, mutatis mutandis, to § 2 (5) in fine, according to which "The public interest in the expropriation of land, buildings and their rights for the construction of the runway shall be demonstrated by reference to that law in the expropriation procedure '. That is why the Constitutional Court, as an unconstitutional body, annulled this provision of the contested law.

16. With regard to the remaining provisions, the need to abolish them also arises from their accesoric nature in relation to the annulled provision of Paragraph 1 of the contested law, which is the only one sufficiently specific to the buildings to which the contested law is to apply, since their very existence would lose reasonable meaning, would not be applicable in practice. Their subsequent unconstitutionality also leads to their abolition.

17. The common denominator of these provisions is that the previous substantive arguments and conclusions (i.e. the parties to a particular legal public interest) do not affect their case as they do not contain a declaration of public interest in a specific case by law. It is only a matter of adapting certain derogatory procedural rules from general procedural rules enshrined in administrative legislation.

18. The appellants argue that the provisions of the contested law in question, derogating from the general rule, provide for a unique case, which is, at the same time, out of one of the fundamental material characteristics of the concept of a law which is universality. This, in itself, is supposed to result in the unconstitutional nature of such a law.

19. If the Constitutional Court accepted such an argument from the appellants, it would mean that any legislation governing a unique case would mean unconstitutional. However, the Constitutional Court has already formulated in its case law [cf. sp. zn. Pl. ÚS 12 / 02 of 19.2.2003 (N 20 / 29 SbNU 167; 83 / 2003 Coll.)] the conditions for exceptions, which would allow the constitutionality of a law governing a unique (i.e. a specific) case to be considered, that is to say, provided that the law on a unique case does not constitute a breach of the principle of equality. The first point of view to be tested is the criterion of assessing the constitutionality of a state of non-Accesoric inequality: "The principle of equality does not, however, offer any real restriction on the laws relating to a unique case, because it is now allowing something unique and exceptional to be treated, according to its specificities. The question, however, is whether there really is such a special nature in this case that the general arrangements seem arbitrary and the regulation is proportionate for a unique case. To the extent that the law on a unique case is the expression of ratia - not just voluntas - it is integrated into the structured structure of the rule of law." (H. Schneider, Gesetzgebung, 2. Auflage, Heidelberg 1991, p. 31). If the adoption of a law on a unique case is not an expression of voluntas, there must therefore be rational arguments for it. It is not part of the power of the Constitutional Court to assess the degree of this rationality. The second aspect is the criterion for assessing the constitutionality of the status based on the Accesoric inequality; that is the inadmissibility of the inequality resulting in the issue of constitutional rights and freedoms.

20. From the point of view of the indicated constitutional maximum, the application for annulment of the provisions of § 2 (1), (2), (3), (4) and (5) of the contested law appears justified.

In fact, the legislature is creating an unjustified inequality, already from the point of view of non-accesoric inequality, as it lacks the legislator explicitly expressed or implicitly stated in the legislative regulation, which could be regarded as an expression of ratia. It does not thus put forward any rational arguments in support of the conclusion that it is precisely for the procedure for (in the contested law regulated) construction in view of its specific nature that a different legal regime is to be established, i.e. different procedural standards (as compared to the general regulation). If the legislator had in mind, as a reason for the different regulation of the above-mentioned unique case, a public interest in speeding up the implementation of the construction in question by shortening the administrative procedure, it could still be argued in relation to another construction, including "ordinary 'transport structures, that is to say, the same type of (airport) or other public infrastructure structures, where it would be carried out in accordance with the general rules. In such cases, too, it would be possible to find public interest in their implementation in the context of a particular procedure, as a result of which an interest could be declared to accelerate their implementation. In addition, the above conclusion on the unconstitutional nature of the declaration of public interest contested by the law of the regulated construction can be found in a constitutional manner only in administrative proceedings, which is a logical consequence of which the public interest cannot be accepted either (cf. the explanatory note:" This means that not only the construction of the VPD itself is in the public interest, but also in the public interest is a significant acceleration of its implementation').

The provisions cited in the contested law will not stand up to the application of the criterion of Accesoric Inequality, since they establish an inequality which has the effect of affecting fundamental rights and freedoms, namely Article 11 (1), second sentence, of the Charter under which the right of ownership of all owners has the same legal content and protection. As a result of the shortening of administrative time limits, the exclusion of certain ordinary procedural institutes (e.g. suspension of proceedings) and the modification of the general expropriation procedure will give rise to ownership rights by the construction of the entities concerned as a result of protection other than those of other entities not affected by the construction.

21. The Constitutional Court concludes that the contested law is contrary to Articles 1, 11 (1), second sentence, Article 36 and Article 37 (3) of the Charter, and Articles 1, 2 (1) and (3), 81 and 90 of the Constitution. The Constitutional Court found the motion to be justified and therefore annulled the contested law.