The Constitutional Court found no 124 / 2021 Coll.
The Constitutional Court found of 26 January 2021 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
10.03.2021
124
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 22 / 17 on 26 January 2021 in plenary composed of the President of the Court of Paul Rychetský and judges and judges Louis David, Jaroslav Fenyk, Josef Fiale, Jan Filip, Jaromír Jirsa, Tomáš Licensee, Vladimir Sládeček, Radovan Suchanek (Judge of the Rapporteur), Pavel Šámal, Kateřina Šimáková, Vojtěčka, Milír Tomková, David Uhlířír and Jiří Zemánek, represented by JUdr. Peter Slouvou, Ph.D., based by Aradierská 166, Praha 9, on the annulment of the first law of the Czech National Council No. 114 / 1992 Coll., on the conservation of Nature and Landscape, in the text of Law 225 / 2017 Coll.
as follows:
I. Proposal for the repeal of § 70 paragraph 3 of the First Act of the Czech National Council No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 225 / 2017 Coll., in the words "under this Act" is rejected.
II. The procedure for the application for annulment of § 4 paragraphs 9, 10 and 11 of Act No. 183 / 2006 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended by Act No. 225 / 2017 Coll., is hereby terminated.
Reasons
Subject matter
1. A group of 17 Senators submitted to the Constitutional Court on 22.8.2017, accompanied by a submission received on 17.10.2017, turned to the Constitutional Court pursuant to § 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court on the application for annulment of § 70 (3) of the First Law of the Czech National Council No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 225 / 2017 Coll., in the words "pursuant to this Act" and § 4 (9) to (11) of Act No. 183 / 2006 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended by Act No. 225 / 2017 Coll.
2. Act No. 225 / 2017 Coll., amending Act No. 183 / 2006 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended, and other related laws (hereinafter referred to as the "Amendment Act"), the legislator amended with effect from 1 January 2018 more than four dozen legislation mainly on the section of the Building Administration, Environmental Protection and Tax Management, including Act No. 183 / 2006 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended (hereinafter referred to as "Construction Act") and Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended, (hereinafter referred to as "Nature Protection and Landscape Act"). In particular, Section 6 of Article VII (17) of Law No 225 / 2017 Coll. amended the provisions of Section 70 (3) of the Nature and Landscape Conservation Act by replacing the words "administrative procedure 'with the words" procedure under that law', thereby limiting the scope of those procedures in which participation is granted to associations established for the protection of nature and landscape. Article 4 (1) Point 12 of the amending Act then added paragraphs 9 to 11 to Section 4 of the Building Act, which govern the issue of the review of the illegal binding opinion of the institution concerned, to a certain extent different from the general legislation contained in Act No 500 / 2004 Coll., the Administrative Code, as amended, ("the Administrative Regulation ').
3. It follows from the explanatory memorandum to the amending law, as well as from the Government's observations as an intervener, that one of the main purposes of the amended legislation as a whole should be, inter alia, the shortening of the length and reduction of the complexity of the zoning and construction proceedings (or the authorisation processes of sensu lato). In some cases, the association also takes part in these proceedings (in the words of the Nature and Landscape Conservation Act, still "civil associations'), whose activities are the conservation of nature and landscape according to the Statutes.
4. The applicant challenges the amended provisions of the Nature and Landscape Conservation Act (§ 70 (3)) and the Construction Act (§ 4 (9) to (11), i.e. as amended by Act No. 225 / 2017 Coll. That requirement is based, in general, on the allegation that those provisions infringe in particular the right to seek, in accordance with the procedure laid down in their law, an independent and impartial court and, in specified cases, with another public authority pursuant to Article 36 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) in conjunction with the right to a favourable environment under Article 35 (1) of the Charter and, in its presence, the Charter, as well as the law referred to in Article 38 (2) of the Charter, in order that everyone be dealt with in public, without undue delay, and in its presence with the possibility of making known any evidence. According to it, the contested legislation also denies the constitutional order for compliance with obligations under international law for the Czech Republic [Article 1 (2) of the Constitution of the Czech Republic ("the Constitution ')].
5. The role of the Constitutional Court in this proceeding is to assess whether the contested provisions of the Building Act and the Nature and Landscape Protection Act are contrary to the constitutional order or not [Article 87 (1) (a) of the Constitution]. To this end, the Constitutional Court examines both the maintenance of legal competence in the form of compliance with the constitutional limits for the adoption and publication of the law, as well as the content assessment of the contested provisions of the laws, namely the view of constitutional order (cf. Filip, J. In Bahěľová, L., Filip, J., Molek, P., Podrazký, M., Sukánek, R., Šimek, V., Vyhnánek, L. Constitution of the Czech Republic. Comment. Praha: Linde, 2010, p. 1082). On the contrary, it is not for the Constitutional Court to examine whether the legislation adopted by the legislature is the best solution, or that aspect cannot, in principle, justify the annulment of the contested provisions of the law.
Arguments of the appellant
6. First, the appellant draws closer to the difference in legislation contained in Section 70 (3) of the Act on Nature and Landscape Conservation, as amended by Act No. 225 / 2017 Coll., and after its effectiveness. Whereas, before the amending Act, the public (s) concerned were guaranteed participation in all administrative procedures, including zoning, building and additional permit procedures, provided that they could affect the interests of nature and landscape conservation, the contested legislation limited this right only to those under the Nature and Landscape Conservation Act. From the words "procedure under this law" contained in Section 70 (3) of the Nature and Landscape Protection Act, the appellant, using the argument and contrario, identifies that no other proceedings other than those under the Nature and Landscape Conservation Act will be able to participate in environmental associations. In particular, the appellant is concerned about the exclusion of the participation of these associations from decision-making processes in the so-called "medium-sized projects," which, according to the applicant, account for more than 90% of all construction projects in the Czech Republic. The appellant considers that the legislation thus amended is incompatible with Article 36 (1) and (4) of the Charter, Article 38 (2) of the First Charter, Article 4 (4) of the Charter, all in conjunction with Article 11 (1) of the Charter and Article 1 (1) of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') and in particular Article 35 (1) of the Charter guaranteeing the right to a favourable environment.
7. From Article 36 (1) of the Charter and following Article 38 (2) of the First Charter, the appellant imports a constitutionally guaranteed "basic procedural right to participate in proceedings" or "basic procedural right to be a party to proceedings." According to her, in concreto means that "if a law provides a certain administrative authority with the power to decide on (subjective) rights of persons, then, on the basis of Articles 36 (1) and 38 (2) of the first Charter, it must not only (i) regulate administrative procedures as such, but also (ii) guarantee each person... the person concerned in the constitutional sense... the status of a participant which allows him to claim his right '.
8. Subsequently, the appellant defines a total of five categories of persons who, according to her, may potentially be affected by their subjective rights by the implementation of the construction project. It stresses that, in addition to the builder, owners (not only) of neighbouring land and persons having rights in rem in respect of such land, they are also persons with a right of property other than property law which is linked to land, construction or other immovable property and may be affected by a construction intention. It is, in particular, an obligation to use or rights derived from family law. The next group shall be composed of all those to whom the "constitutionally guaranteed fundamental right to a favourable environment pursuant to Article 35 (1) of the Charter, in the form and extent to which laws are implemented in accordance with Article 41 (1) of the Charter. This includes, in particular... the statutory rights regarding the general use of natural public goods..." which the appellant demonstrates on several examples. However, these last two groups are not guaranteed to participate in sensu lato authorisation procedures. This is to be contrary to Article 1 (1) of the Additional Protocol to the Convention, which includes, under the term "property ', binding rights to real estate. The appellant also points out that § 1044 of Act No. 89 / 2012 Coll., Civil Code, also grants to tenants, users and respondents" similar rights of defence of its property rights to a case guaranteed by the owner... Therefore, if the law guarantees the Detenders of cases a separate protection of their property rights in a level of private law, the constitutional and legal arrangements in force can hardly be legitimately interpreted as not being guaranteed in a level of public law. "
9. The appellant further argues that the right to a favourable environment under Article 35 (1) of the Charter, which it considers to overlap with the right of ownership and other private property rights. It also refers to the finding of 30 May 2014, sp. zn. In conclusion, Article 1 (1) of Resolution No 77 of the Council of Europe Committee of Ministers on the Protection of Individuals with regard to Acts of Administrative Authorities indirectly supports the above arguments.
10. The documents must be governed directly by law, including the heading of the parties and their status. No person can then be excluded by law from the possibility of seeking protection of his right. The legislation contained in Section 70 (3) of the Nature and Landscape Protection Act, the appellant undergoes the proportionality test and concludes that the provision in question does not meet the criterion of necessity. In this context, it is set out against the explanatory memorandum to the amending law, or against the justification of the amendment by Members Bc. František Adámek and Jaroslav Foldyny, according to which the provision in question aims to prevent excessive and unfounded blockages in construction and potential economic development. According to the appellant, there is no expert study showing that environmental associations unduly prolong administrative proceedings or commit significant obstruction. According to its view, Parliament has approved the provisions of the law in question excluding the participation of the associations in administrative proceedings (and thus the public concerned in the form of tenants, smugglers and other persons who are shown the relative property right to real estate, as well as all having the right to a favourable environment), not on the basis of objective and empirically confirmed data, but only on the basis of "subjective bias'.
11. According to the appellant, "as a result of the combination of the amendment carried out by Act 225 / 2017 Coll. and the form of binding opinions issued under the Act on Nature and Landscape Protection, the public administration will thus decide on a number of issues affecting the interests of nature and landscape protection without any involvement of the public concerned '. That is constitutionally unacceptable from her point of view. The appellant is of the opinion that" the abolition of the participation of other persons concerned (in the form of associations) in administrative proceedings on medium-sized projects under the construction law cannot be effectively compensated even by maintaining, where appropriate, their right to judicial protection of the lawfulness of the decision of the building office following an action under Article 36 (2) of the Charter and Article 65 et seq. The reason for this is, according to the appellant, in particular that this judicial protection comes up to ex post or to the legal power of an administrative decision. Furthermore, in its proposal, it stresses that the negative consequences of the winding-up of the associations are reinforced in administrative procedures by an institutional problem consisting of the so-called split (mixed) model, where the decision-making on construction projects is allegedly influenced by the financial, personnel and interest of regional entrepreneurs with the policies under the influence of the construction authorities (point 62 of the proposal). Consequently, as a result of the amended legislation, "if the construction office issues a decision on the location or permit of the construction in contravention of or even without a binding opinion of the nature conservation authority, there is no one, other than the participants, who could, for this reason, challenge it in the administrative procedure'.
12. In its submission of 16 October 2017, the appellant added the justification for its proposal and stated that the most important contribution of the participation of the associations in administrative proceedings affecting the conservation of nature and landscape is protection against disproportionate construction and mining projects which, if not for these associations, would otherwise have been authorised by the public administration. This is demonstrated by the author on the example of "20 environmental cases in the Czech Republic," where the activity of the association allegedly contributed to the protection of the constitutionally guaranteed right to a favourable environment.
13. As regards the proposal to repeal paragraphs 4 (9) to 11 of the Construction Act, the appellant submits that Section 4 (9) of the Construction Act introduces a special restrictive regime for reviewing binding opinions when they can be examined only on appeal of the party to the proceedings against a subsequent administrative decision in accordance with the procedure laid down in Article 149 (4) of the Administrative Regulation (as amended by 31 December 2017). However, Article 4 (9) of the Construction Act also sees the appellant as special to Article 149 (5) of the Administrative Regulation (as amended by 31.12.2017), which results in the fact that, for the purposes of the procedure under the Construction Act, the legality of binding opinions issued by the authorities concerned cannot be formally examined. The appellant concludes from this that "a review of a binding opinion is therefore only possible on the basis of an appeal, that is to say the party's initiative ', which is problematic, since, in the context of the appeal procedure, the administrative authority can" review the binding opinion only from the point of view of legality but not also from the point of view of (factual) correctness...'.
14. In addition, the appellant considers that the reference treatment of binding opinions serving as the basis for a decision under the construction law is not a "revocation or amendment of a binding position by an administrative authority superior to the authority concerned where a decision that has been subject to a binding opinion of the institution concerned, whose annulment or amendment has been decided by a superior administrative authority and which has at the same time established a right under that law to its addressees and has already acquired legal authority '.
15. However, there is no reasonable and legitimate reason for the abovementioned "preferential treatment" according to the appellant in the rule of law. The contested provisions are thus contrary to Article 1 (1) of the Constitution, as well as to the constitutional principle of equality and Article 36 (1) of the Charter, respectively, since the contested legislation "unjustifiably gives participants procedural privileges in the procedure under the building law compared to those in the proceedings under all other laws' (paragraph 78 of the proposal).
16. The appellant also contests the unconstitutionality of the annual ex-ante review procedure in relation to the binding opinion provided for in Article 4 (10) of the Building Act. However, in the light of real practice in the procedures under the building law, this means in many cases that the legality of binding opinions issued for the purposes of the building law is not only in the review procedure but even in the appeal proceedings. However, according to the appellant, this significantly undermines the protection of the rights of participants in the procedures under the building law compared to the protection of the rights of participants in the proceedings under all other laws without legitimate reason. Here too, the appellant sees a contradiction with Article 1 (1) of the Constitution and Article 36 (1) of the Charter.
17. In addition to the alleged unconstitutionality of § 4 (9) to (11) of the Building Act, the appellant adds that the contested provisions are also contrary to Article 1 (2) of the Constitution in conjunction with Article 1 (1) (sic - note) (e) and Article 11 (1) and (4) of Directive 2011 / 92 / EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment (EIA Directive). According to the appellant, this Union directive implies an international legal obligation for the Czech Republic to conduct an administrative procedure in which the legality of the binding opinions of the EIA is examined "fairly and impartially '. However, where such an administrative review is restricted or excluded or does not take place in the same way and under the same conditions as a review of other binding opinions under the scheme under Section 149 of the Administrative Regulation, it is hardly possible to be a" fair' procedure within the meaning of Article 11 (4) of the EIA Directive.
Proceedings before the Constitutional Court
18. The Judge-Rapporteur sent a proposal to the Chamber of Deputies and the Senate in accordance with Rule 69 of the Law on the Constitutional Court, as well as to the Government and the Ombudsman as authorities entitled to intervene as interveners.
Observation of Parliament's chambers
19. The Chamber of Deputies, signed by its President, expressed its views on the course of the legislative process which led to the adoption of an amendment. The government bill was distributed to Members as House Press No. 927 on 3 October 2016. The first reading of the draft law took place on 26 October 2016. The bill was ordered to discuss the Committee on Public Administration and Regional Development (Guarantee Committee), the Environment Committee and the Economic Committee. The resolution of the individual committees has been duly delivered to Members. The second reading of the draft law took place on 28 February 2017 and the amendments were incorporated as print No 927 / 5, which was delivered to Members on 1 March 2017. The third reading of the draft law took place on 5 April 2017, when the proposal was approved by the Chamber of Deputies as amended by Resolution 1609.
20. The provisions of the amending Act were tabled and approved as amendments in the House of Press No 927 / 5 under the heading F.3, in the proposal A), and A.5, in the proposal B). The Ministry of Regional Development submitted a favourable opinion on both amendments, the opinion of the Ministry of Environment on Amendment F.3 was disagreeable.
21. The bill was passed on to the Senate Chamber of Deputies on 9 May 2017. The Senate discussed the bill on 7 June 2017 as Senate Press No. 108 and, by Resolution No. 180, returned the bill to the Chamber of Deputies with amendments. The Chamber of Deputies on the bill returned by the Senate acted on 27 June 2017, when Resolution 1714 maintained the original bill according to House Press No. 927 / 7. The Act would be signed by the President of the Republic on 13 July 2017. In its observations, the Chamber of Deputies concludes that the draft law was adopted by a constitutional procedure.
22. It follows from the Senate's observations signed by its President that, following the referral of the Senate's draft law, this proposal was discussed by the Committee on Territorial Development, Public Administration and the Environment as a committee of guarantee and also by the Committee on Economy, Agriculture and Transport and by the Committee on Constitutional Law. The Guarantee Committee, which discussed the draft law on 30 May 2017, did not adopt any resolution on it because none of the proposals submitted received the necessary majority. By its Resolution of 23 May 2017, the Committee on Economic, Agriculture and Transport proposed to approve the legal draft as submitted. In its resolution of 17 May 2017, the Constitutional Legal Committee recommended the rejection of the draft law.
23. At the Senate plenary, there was a debate on the bill for almost 8 hours, which led to a total of 31 amendments. The amendments concerned both the deletion of the words' according to this law 'in the proposed amendment to the Act on the Conservation of Nature and the Landscape, as well as the modification of the special regime when reviewing binding opinions under the Construction Act. Of the 31 amendments tabled to the plenary, 19 were finally approved, including those which provided for the deletion of specific rules for the review of binding opinions under the construction law regime.
Government observations
24. On 1 November 2017, the Constitutional Court received a notification from the Government signed by the Minister for Human Rights, Equal Opportunities and Legislation that the Government, by its Resolution No 715 of 11 October 2017, approved its entry into the proceedings and proposes that the Constitutional Court reject the proposal in full.
25. At the outset, the Government points out that it does not claim that the exclusive problems of excessive length and complexity of the zoning and construction proceedings are merely a wide-ranging possibility of participation by the associations and an extensive and repeated review of binding opinions. The Government pointed out that the amendment made by Act No. 225 / 2017 Coll. was considerably wider and brought about a number of other legislative changes aimed at speeding up and simplifying authorisation processes. At the same time, however, it pointed out that the former virtually unlimited possibility of the associations' participation in territorial and construction proceedings was one of the causes of lengthy and inefficient administrative procedures. Moreover, in many cases, these associations did not even operate at the site of the construction project, when there were seldom cases of fully-assigned associations which were intended to "blackmail the builder and demand financial compensation for ending their participation and obstruction."
26. According to the Government, the appellant completely ignores the legislative context in which Paragraph 70 of the Nature and Landscape Conservation Act existed and continues to exist. Environmental rights enshrined in Article 35 (1) The Charter can only be invoked within the limits of the laws implementing this right. At the same time, the Government notes that, in practice, the right to a favourable environment is most often confronted with a constitutionally guaranteed property right under Article 11 of the Charter, which, unlike the right to a favourable environment, is directly enforceable.
27. The earlier legislation of Paragraph 70 (3) of the Nature and Landscape Protection Act refers to the government in a comparative view as a certain anomaly, which had its place in the legal order perhaps shortly after the fall of the Communist regime. At present, however, there is no rational reason for such a wide-ranging participation in administrative proceedings. Neither Union nor international law implies any (indirectly identifiable) obligation for the Czech Republic to ensure public participation in the form of en bloc associations in all territorial and construction procedures, without any link to the size of the project and its potential environmental impact.
28. Even after the amendment of the Act took effect, the associations remained free to participate in a wide range of administrative procedures in which the potential environmental impact of the project could be identified. As a result, the Government refers to a number of administrative procedures, which the associations may continue to participate in. This is in particular the territorial management, construction management and other management under the building law and other laws defined as the follow-up procedure under Section 3 (g) of Act No. 100 / 2001 Coll., on environmental impact assessment and on the amendment of some related laws (Act on Environmental Impact Assessment), as amended, ("EIA Act '), including the so-called sub-limited projects. Furthermore, the participation of these associations is ensured in the procedure for the issue of an integrated authorisation under Act No. 76 / 2002 Coll., on integrated pollution prevention and control, on the integrated pollution register and on the amendment of certain laws (the Integrated Prevention Act), as amended, (the" Integrated Prevention Act'), in the procedures under Act No. 254 / 2001 Coll., on water and amending certain laws (Water Act), as amended, as well as in a number of administrative procedures under the Nature and Landscape Protection Act.
29. At the same time, the Government contends that the appellant's caselaw cited by the Constitutional Court concerning the constitutionality of the administrative proceedings concerns only persons whose subjective public law has been decided in the proceedings. However, in the case of (not) the participation of environmental associations in administrative proceedings, there is no such thing. In the view of the Government, participation in administrative proceedings cannot, in the view of the Government, arise even to persons affected by the intention in a hypothetical and indirect manner, i.e. in the potential use of public goods or the use of property in the form of tenants, etc., i.e. not in the use of their own property. The claimed subjective rights of residents and tenants cannot be imported from an extensively conceived definition of the concepts of nature and landscape. The Government considers that the essence of the rights of use is to allow a particular matter to be used, not to allow a decision on its legal or factual fate. Since these persons (typically tenants) acquire their rights exclusively through the owner, it makes no sense for them to be allowed in the territorial and building procedure to decide the fate of the case, regardless of the owner's decision, or even contrary to his will.
30. As regards the alleged inadequacy of the contested provisions, the Government states that the premise itself is already incorrect to apply the proportionality test to the case. With reference to the former case law of the Constitutional Court, the Government considers that the restriction of the right to a favourable environment is subject to a rationality test, not a proportionality test. Moreover, the amendment in question did not intervene in the essential content of the law, as the scope of the right to participate in administrative proceedings has only changed. According to the Government, this restriction is reasonable, justified and ultimately results in "a much more proportionate protection of the right of the parties concerned directly to a fair trial in the form of simplification and acceleration of proceedings." By referring to a whole series of decisions by the administrative courts, the government demonstrates the obstructive behaviour of the associations. Similarly, the Government states that the systemic obstruction of environmental societies, including the application of objections to "systemic bias", had exceeded such a limit that the Ministry of Local Development had to address this issue on the basis of a government resolution.
31. In another part of its statement, the Government denies that the unconstitutional provision of § 4 (9) to (11) of the Building Act would be. According to the Government, no other administrative procedure can be found in our legal system in which the binding opinions of the administrative authorities concerned are of the same importance as in the procedures under the construction law. The adoption of several specific rules on the review of binding opinions is therefore entirely reasonable and fully in the terms of the caselaw cited by the appellant. The alleged "preferential treatment 'is therefore" based on objective, rational and justifiable grounds'. In addition, this is not the first case of a preferential restriction on the review procedure, as the Government points out in the example of the exclusion of the review procedure in relation to the decision authorising the transfer to the property registered in the property register.
32. At the same time, the Government draws attention to the misinterpretation of Paragraph 4 (9) of the Building Act by the appellant. In the view of the Government, § 4 (9) of the Building Act is only in relation to § 149 (5) (from 1.1.2018 paragraph 6) of the Administrative Order, but not to § 149 (4) (from 1.1.2018 paragraph 5). In addition, in relation to the procedure under Section 149 (4) (from 1.1.2018 to 1.1.2018) of the Administrative Regulation, the special rule for calculating the annual objective deadline for initiating the review procedure does not apply. It is therefore necessary, in accordance with the general provision of Paragraph 96 (1) of the Administrative Regulation, to continue to calculate the starting date from the legal authority of the decision.
33. Finally, paragraphs 9 to 11 of Section 4 of the Construction Act are not, according to the Government's belief, even contrary to the EIA Directive. This provides for the minimum standard requirements required by the Member States, but not for the same rules for the review of all binding opinions across the legal order of the Member State. The amended legislation, according to the Government, is even better in line with the need for timely management required by the Directive, as the deadlines for initiating the review have been reduced overall.
Observations of the Ombudsman
34. By a notice of 21 September 2017, the Ombudsman entered the proceedings as an intervener. On 23 October 2017 the Constitutional Court then received its observations on the application. In it, it proposed that the Constitutional Court fully complied with the proposal to abolish the contested provisions of the Nature and Landscape Protection and Construction Act.
35. The Ombudsman reiterates, for the most part, the arguments put forward by the appellant, but with the exception that he initially applies a rationality test to assess the constitutionality of Paragraph 70 (3) of the Nature and Landscape Protection Act. It concludes that the amended wording of this provision interferes with the essential core of the right to a favourable environment under Article 35 (1) and (2) of the Charter. In fact, the only important type of procedure in which the public will be able to participate in the decision of a public authority will be the environmental impact assessment process under the EIA Act. According to the Ombudsman, this protection is insufficient from the perspective of Article 35 (1) and (2) of the Charter and is in principle contradictory to the Convention on Access to Information, Public Participation in Decision-Making and Access to Legal Protection in Environmental Matters (Communication of the Ministry of Foreign Affairs No. 124 / 2004 Coll. p., hereinafter referred to as the Aarhus Convention). As a result of intervening in the core of the right to a favourable environment under Article 35 (1) of the Charter, the Ombudsman is taking a proportionality test. It considers that the contested provisions of the law are not capable of achieving the objective of speeding up authorisation processes. Therefore, the provision in question will not pass the first criterion of the proportionality test, of which the Ombudsman imports its unconstitutionality.
36. The Ombudsman's proposal to repeal paragraphs 4 (9) to 11 of the Building Law only briefly states that the amended legislation may easily result in the expiry of the annual pre-emptive period at the time of the appeal procedure, as a result of which it is no longer possible to amend or revoke an illegal binding opinion. At the same time, the Ombudsman considers it undesirable to introduce another exception to the general rules of administrative procedure under the administrative rules.
Expression of Professor JUDr. Milan Damohorsky, DrSc.
37. On 23. 1. 2018, the Constitutional Court received an unsolicited brief statement by Prof. JUDr. Milan Damohorsky, DrSc, (Head of the Department of Environmental Law of the Faculty of Law of Charles University) on the proposed proposal, marked as amicus curiae brief. It states that "as the only professor in the field of environmental law in the Czech Republic," he is allowed to submit a statement to the Constitutional Court in which he expresses his support for the proposal to abolish the contested provisions of the Nature and Landscape Protection and Construction Act. It points out that "the amendment is the most important thing that has been its own purpose and purpose in paragraph 3 of Paragraph 70 of the Nature and Landscape Conservation Act for 25 years'. In fact, if it limited the public's right (i.e. associations) to participation in administrative procedures under the Nature and Landscape Conservation Act, it completely neglected the key systemic aspect that a number of key issues affecting nature and landscape conservation interests are assessed by nature conservation bodies under the Nature and Landscape Conservation Act, not in administrative (decision-making) but in simplified procedure by means of binding opinions. This simplified procedure cannot be attended by anyone who does not have the status of a participant in a (downstream) administrative procedure under a building law, particularly in territorial proceedings. If, as a result of the amendment, associations now lose participation in administrative procedures under the building law, they will also lose the opportunity to participate in the issue of (background) binding opinions of nature conservation authorities. As a result of this serious systemic problem referred to by the appellant, the nature of Paragraph 70 (3) of the Nature and Landscape Conservation Act is largely emptied after amendment. He also referred to the amendment to the EIA Act implemented by Act No. 326 / 2017 Coll., which also limited public participation in administrative proceedings from 1 November 2017.
Observation of the Economic Chamber of the Czech Republic
38. The Constitutional Court received on 29 March 2018 an unsolicited statement from the Chamber of Commerce of the Czech Republic ("the Chamber of Commerce"), drawn up on its behalf by Prof. JUDr. Aleš Gerloch, CSc., marked as "the opinion of amicus curiae." On the basis of the legal analysis, it concluded that the amended legislation is constitutionally consistent.
39. According to the Chamber of Commerce, the proposal creates a false impression that "the law must guarantee the existence of a kind of privileged position of the associations whose main activity is the conservation of nature and landscape, the associations being entitled to intervene in any administrative procedure in which nature and landscape conservation may be affected '. However, the Chamber of Commerce considers it evident that the amendment of Paragraph 70 (3) of the Nature and Landscape Conservation Act does not affect the constitutionality, since there is no constitutional guarantee of the right of the associations to participate in certain procedures.
40. Article 36 (1) itself The Charter refers to the right to claim "your right" in a court or other body. However, associations do not have such a material subjective right. In the view of the Chamber of Commerce, the appellant incorrectly considers the procedural rights of the associations to be autonomous or existing regardless of the adequate substantive rights to be protected in the administrative proceedings. The appellant's argument that the protection of relative property rights is to be implemented through the Nature and Landscape Conservation Act overlooks the substantive scope of the Act. Moreover, it would be completely irrational for the legislator to make the protection of such rights conditional on the requirement to establish an environmental society. Moreover, the appellant does not explain the relationship between associations established for the protection of nature and landscape (i.e. not property or other rights) and the protection of property and exploitation rights.
41. The Chamber of Commerce points out that the right to a favourable environment can only be invoked within the limits of the laws implementing that right. It is clear that the right to a favourable environment has not been eliminated, only a procedural aspect has been limited in its application. With regard to the alleged interference in the right to a favourable environment in the "legal forms' demonstrated by the appellant, it is not in any way explained how the right to access the landscape (typically forest or public green use) is related to the right to a favourable environment, when, as a result, it would be optimal to ban free access to the landscape from an environmental point of view. Finally, if the appellant's argument is ultimately aimed at alleging a breach of the right to a favourable environment, it should be recalled that the legislator is not bound by the principle of proportionality, but by rationality.
42. With regard to the application for annulment of paragraphs 4 (9) to 11 of the Building Act, the Chamber of Commerce states that the appellant is incorrectly based on the assumption of the general illegality of binding opinions. In general, according to the Chamber of Commerce, the problem is not the very unconstitutional nature of the provisions of the building law in question, but their interpretation by the appellant. It allegedly does not respect the principle of the primacy of constitutionally consistent interpretation before the repeal of the law or part thereof. It follows from the opinion of the Chamber of Commerce that the reference contained in Paragraph 4 (4) of the Building Act to Paragraph 149 (4) (now paragraph 5) of the Administrative Regulation does not preclude the procedure laid down in Section 149 (6) of the Administrative Order, as in force from 1 January 2018. According to the Chamber of Commerce, the appellant appears to have overlooked the possibility for the party to notify the administrative authority of the management of the proceedings under the construction law on the existence of an allegedly unlawful binding opinion, which would result in the procedure under Paragraph 149 (5) in conjunction with § 94 et seq. of the administrative order. It is, in essence, a very specific form of concentration of administrative proceedings which prevents the objection of an unlawful binding opinion from being raised only in the appeal proceedings (but which is not and is not excluded by the priori if the annual ex-ante limitation period is not yet expired).
Replication of the appellant
43. The Judge-Rapporteur sent to the appellant all the above observations of the parties, the interveners and the opinions of the amicorum curiae. The appellant used its right of reply to the Government's observations and the opinion of the Chamber of Commerce.
44. In the reply to the Government's observations, the appellant refers to a substantial part of it, but generally it repeats or explains the arguments already put forward in the proposal. In a number of places, the Government considers the claims to be senseless, selectively assessed and based on the distortion of its arguments. First of all, the appellant states that the government, the Ministry of Regional Development and no one else has statistical data on the average length of authorisation procedures. Nor do they have any statistics, let alone studies, which suggest that associations unduly prolong administrative proceedings or are being obstructed. Therefore, the Government's claim on the obstruction of environmental associations in administrative proceedings is incorrect, unfounded and unverifiable.
45. The appellant further contends that it is not true that the Government asserts that the appellant's caselaw cited by the Constitutional Court concerning the constitutionality of the administrative proceedings concerns only persons whose subjective public law has been decided in the proceedings. According to the Government, the finding of 16.1.2007 sp. zn.
46. The reply points out that so-called residents are competent to claim shortening on their public subjective rights to use natural goods, and the government did not understand the appellant's argument at all. The appellant also recalls that it does not rely on Article 6 (1) of the Convention, but also on Articles 36 (1) and 38 (2) of the Charter. For this reason, the arguments of the Government referring to the caselaw on the application of Article 6 (1) of the Convention should be considered to be imprecise.
47. The applicant reiterates that rental and exploitation law is "own property" and that these groups of persons may be directly (not only hypothetically) affected by the construction plan. This follows from the fact that the care of landscape accessibility is an integral element of nature and landscape conservation according to the definition contained in Section 2 (1) of the Nature and Landscape Conservation Act. In its reply, the appellant restates that both the right of rent and the pacht are of a substantive nature. The Government cannot deny the logical link between the separate law of the tenants, the users and the other respondents in order to protect their rights to the case under Paragraph 1044 of the Civil Code, in the context of private law and the requirement to protect them adequately, in particular in territorial proceedings, in the context of public law.
48. The point of the proposal is, according to the appellant, "the allegation of unconstitutionality is to restrict the fundamental right to a fair trial ', while the proposal does not, in isolation, claim to restrict the right to a favourable environment. The Government is allegedly subjecting the appellant to arguments which it did not apply. At the same time, however, in the next instance of the reply, the appellant recalls that, in completing the proposal, the Constitutional Court presented a list of 20 environmental cases relating to" medium-sized projects, "for which the participation of the associations contributed to the rescue of natural values determining the quality of life of citizens.
49. In other points of the reply, the appellant points out that the right to a favourable environment is not in contrast to property rights, but that, on the contrary, these rights usually intersect and overlap in specific cases. It also reiterates its argument on the risks of the systemic bias of the construction administration, which the amended legislation will further deepen. The problem of biased objections is, according to the appellant, common and cannot be solved by withdrawing the right of participation in administrative proceedings from the associations.
50. The Government's observations on the application for annulment of paragraphs 4 (9) to 11 of the Building Act are only briefly addressed by the appellant. It states that the Government's argument on the exclusion of the review procedure laid down in the Administrative Regulation in Paragraph 94 (2) does not at all concern the recovery of proceedings, binding opinions or certain types of administrative decisions.
51. In its reply to the observations of the Chamber of Commerce, the appellant, of the vast majority, reiterates the arguments already put forward in the proposal and in the reply to the observations of the Government. It points out that the substance of the proposal is primarily the allegation of an unconstitutional restriction on the right to a fair trial, both in connection with the right of peaceful use of property within the meaning of Article 1 (1) of the Additional Protocol to the Convention and in connection with the right to a favourable environment under Article 35 (1) of the Charter. The right to access the countryside is, in its view, part of nature conservation and thus part of the environment. According to the appellant, it is legitimate for members of the environmental associations within it to protect their private property rights, including the rights of use, if they are in line with the public interest in the protection of nature and landscape. It is unacceptable that the so-called resident law should completely and unexceptionally exclude from authorisation processes. The Chamber of Commerce argues that it considers that it does not in principle know the difference between the main parties and the interveners, which it considers regrettable... if it has taken over the role of a state-authorized legislator in 2018 and writes a draft new building law.
Oral proceedings
52. The Constitutional Court concluded that further clarification of the case cannot be expected from oral proceedings and therefore, in accordance with Article 44 of the Constitutional Court Act, as amended, it decided without its regulation.
Proceedings before the Constitutional Court
53. Under Article 64 (1) (b) of the Law on the Constitutional Court, a group of at least 17 senators has the right to apply for annulment of the law or its individual provisions. The proposal in this case was made by a group of just 17 senators, represented by a lawyer, who, in accordance with Article 64 (5) of the Law on the Constitutional Court, as amended, attached a signature signed by each of these senators. The appellant is therefore actively legitimised to submit this proposal.
54. The Constitutional Court found no grounds for inadmissibility of the application under Section 66 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., and - except for the contested provisions of the Construction Act (see paragraphs 55 to 57 below) - neither the ground for termination of proceedings under Section 67 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll. The Constitutional Court finds that, pursuant to Article 87 (1) (a) of the Constitution, it is competent to consider an application which fulfils all the legal requirements.
55. In the course of the proceedings before the Constitutional Court, all the contested provisions of the building law were amended (§ 4 (9) to (11)). Part of the twenty-first Act No. 403 / 2020 Coll., amending Act No. 416 / 2009 Coll., on speeding up the construction of transport, water, energy and electronic communications infrastructure, as amended, and other related laws, (namely Article XXIV (5) thereof), effective from 1. 1. 2021 (Article XXXII of the Act), there has been a fundamental change in the content of the contested provisions or its replacement with other provisions. The new amendment concerns the extension of the deadline for the issue of the binding opinion, which provides for the fiction of the issuance of the binding opinion (Section 4 (9) of the building law) and the subsequent amendment of the new binding opinion (Section 4 (10) of the building law), which does not apply to binding opinions newly defined in Section 4 (12) of the building law. In Paragraph 4 (11), the Construction Act provides for the establishment of the start of the deadline for the initiation of the review procedure and for the withdrawal or amendment of a binding opinion in the review procedure for a binding opinion under Section 4 (2) (a) of the Building Act. In this case, the deadline for the initiation of the review procedure is set in a completely different way from that contained in the legislation contained in Section 4 (10) of the Construction Act, as amended by Act No. 225 / 2017 Coll., i.e. the one contested by the appellant.
56. The Constitutional Court found that the appellant's objections to the amendment were fundamental [cf. Paragraph 4 (9) and (10) of the Building Act, as amended by Act No. 403 / 2020 Coll., are covered by a substance other than that which was the subject of the same provisions of the Construction Act as the appellant. With regard to Article 4 (11) of the Building Act, as amended by Act No. 403 / 2020 Coll., it regulates the running of the deadline for initiating the review procedure differently from the legislation of § 4 (10) of the Building Act as contested by the appellant. Consequently, as a result of such a substantial amendment to the contested provisions of the building law, the appellant's argument (if the Constitutional Court disagrees with the establishment of procedural derogations in the building law from the general rules of the administrative order) was no longer relevant in this case.
57. Paragraph 67 (1) of the Law on the Constitutional Court provides that the Constitutional Court shall terminate the proceedings if the law or its individual provisions which are proposed to be annulled cease to be in force before the end of the proceedings before the Constitutional Court. It follows from the case-law of the Constitutional Court [cf. sp. zn. Pl. ÚS 32 / 15, judgment of 31.10.2001 sp. zn. Pl. ÚS 15 / 01 (N 164 / 24 CollU 201; 424 / 2001 Coll.) and order of 26.9.2000 sp. zn. ÚS 35 / 2000 (U 33 / 19 CollU 297)] that the expiry of the contested provisions of the Law within the meaning of Paragraph 67 of the Law on the Constitutional Court, as amended by Act No 48 / 2002 Coll., must also be understood by the amendment described above. Since the appellant seeks annulment of the provisions of § 4 paragraphs 9 to 11 of the Building Act, as amended by Act No. 403 / 2020 Coll., the conditions for partial termination of proceedings under § 67 paragraph 1 of the Law on the Constitutional Court (see sp. zn. The Constitutional Court therefore stopped the procedure for the application for annulment of § 4 paragraphs 9, 10 and 11 of the Building Act, as amended by Act No. 225 / 2017 Coll. That procedure is a manifestation of the commitment of the Constitutional Court by a petition from whose borders (ultra petitum) the decision cannot be taken [cf. the finding of 13.12.1995 sp. zn. ÚS 8 / 95 (N 83 / 4 SbNU 279; 29 / 1996 Coll.)].
58. In the remaining part, i.e. in the application for annulment of Paragraph 70 (3) of the First Act on Nature Conservation and Landscape in the words "under this Act ', all the conditions for its substantive assessment are fulfilled when the Constitutional Court found no reason to terminate proceedings under Section 67 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.
Constitutional conformity of the legislative process
59. The Constitutional Court dealt with the course of the legislative process and found that the figures given in the statements of the Chamber of Deputies and the Senate correspond to the facts. In addition to these observations, the Constitutional Court has verified that the draft amending Act was first voted on by the Chamber of Deputies on 27 June 2017, in accordance with Article 47 (2) of the Constitution (Voting Order No 35), as approved by the Senate, according to the House of Press 927 / 8, in that the proposal was not adopted because of the 143 Members present, 17 Members were opposed to 54 and 72 Members abstained.
60. The draft amendment law was subsequently passed in the version in which it was referred to the Senate, according to the House of Press 927 / 7, at the same meeting of the Chamber of Deputies (Voting Order No 36), by voting in favour of the draft 117 Members, against 7 Members and 22 abstentions. The bill was thus adopted by a qualified majority of all Members (Article 47 (3) in fine Constitution).
61. The figures given in the statements of the Chamber of Deputies and the Senate, together with other information found by the Constitutional Court of the Chamber of Deputies, show that the amending law was adopted in the Constitution, laid down by Parliament's competence (Article 15 (1) of the Constitution) and in a constitutional manner. These facts were not even questioned by the appellant.
Text of the contested provision of the Nature and Landscape Conservation Act
62. The valid and effective wording of the provisions of Paragraph 70 (3) of the First Act on Nature and Landscape Conservation is as follows, the contested provision being marked in bold:
"(3) A civil association shall be entitled, under the conditions and in the cases referred to in paragraph 2, to take part in proceedings under this Law if it notifies its participation in writing within eight days of the date on which it was notified by the competent administrative authority of the initiation of proceedings; in this case, it shall have the status of party. ';
Substantial examination of the proposal to abolish the contested provision of the Nature and Landscape Conservation Act
General considerations
63. The Charter, in Article 36 (1), provides that "everyone may seek, in accordance with the procedure laid down in his or her right, from an independent and impartial court and, in specified cases, from another institution," each "shall have the right, in accordance with the first sentence of Article 38 (2), to have his or her case dealt with in public, without undue delay and in his or her presence and to be able to comment on all the evidence carried out." It is precisely the breach of these two, to a large extent linked guarantees provided by the Charter, that the appellant (apart from the other rights) is contested.
64. It follows from the systematic interpretation of Article 36 (1) of the Charter and the words "other authority" that this right also applies to administrative proceedings as a procedure with an administrative or public authority different from the court. However, this applies only as long as it is a case provided for by law ("in the cases provided for '), the Charter expressly provides that the conditions and details of the exercise of that right shall be governed by the law (Article 36 (4) of the Charter). However, as a matter of principle, it must not be excluded from the jurisdiction of a court to review decisions relating to fundamental rights and freedoms under the Charter (Article 36 (2) in fine Charter). In a broader sense, therefore, it is possible to talk about everyone's right to a specific procedure for claiming their rights.
65. It follows from the linguistic and objective teleological interpretation that the fundamental condition for the granting of such a procedural right is the real existence of its own right to be protected in proceedings. In doing so, it is necessary to distinguish subjective material law from mere, albeit possibly qualified, interest. Whereas the substantive scope of Article 36 (1) and (4) of the Charter, or the constitutional guarantee of that right, can undoubtedly be derived from the first case, in the absence of any subjective right belonging to a particular person to whom protection is to be granted in the proceedings.
66. In particular, in relation to the participation of the associations, this difference can be demonstrated to some extent, according to the Constitutional Court, also in the rules on the legal form of the legal form of the legal form of the legal basis in the action against a decision of an administrative body pursuant to Article 65 of Act No 150 / 2002 Coll., the Administrative Rules, as amended, (hereinafter referred to as "the ECR '). That special plea is governed by Paragraph 65 (2) of their separate provision, since they are generally not bodies which could be affected by an administrative decision in their own legal sphere, unlike the applicants pursuant to Article 65 (1) of the EC Treaty. In legal practice, this group of applicants is often referred to as the traditional term" candidates', since "such persons in proceedings before an administrative authority cannot be affected in the sphere of their substantive status... '(Delighted, L. In Pozšil, L. et al. Administrative Rules of Procedure. Comment. Praha: Leges, 2014, p. 58). These are therefore persons who" have a certain interest in the outcome of the procedure (usually given by their interest in public matters, i.e. respect for the rights and obligations of others), but can not be found any right or obligation in the proceedings at issue which would testify to them personally' (Shuranek, P. In Jemelka, M. et al. Administrative Rules of Procedure. Comment. Praha: C. H. Beck, 2013, p. 507). As a typical example of these proceedings, the case-law and commentary literature refer to the participation of associations in the field of nature and landscape conservation under the Act on Nature and Landscape Protection, the EIA Act, the Water Act and the Integrated Prevention Act (resolution of the extended Senate of the Supreme Administrative Court of 23 March 2005 No 6 A 25 / 2002-42; cf. Kühn, Z. In Kühn, Z., Kocourek, T. et al. Administrative Rules of Procedure. Comment. Praha: Wolters Kluwer, 2019, p. 526-527; I did, L. In I did. Administrative Rules of Procedure. Comment. Praha: Leges, 2014, p. 58). It is noted that this is precisely the concept of the legal sphere, which guarantees the flexibility necessary to avoid the exclusion of certain categories of actions and persons concerned from the constitutional protection provided for in Article 36 of the Charter and Article 6 (1) of the Convention (see Shuranek, P. In Jemelka, M. et al. Administrative Rules of Procedure. Comment. Praha: C. H. Beck, 2013, p. 491). It should be noted that by a special plea of legitimacy pursuant to § 65 (2) of the EC Treaty, the possibility of an action of the Federal Government under § 65 (1) of the same law is not excluded, according to part of the review case-law, of teaching and priori. However, this does not imply the need for the participation of the associations in all administrative proceedings, let alone the constitutional right to be a party to these administrative proceedings en bloc (point 79).
67. Right under Article 36 (1) The Charter must also be interpreted systematically in relation to Article 38 (2) of the Charter, the infringement of which the appellant also contests. The Constitutional Court has already concluded in the past that Article 38 (2) The Charter applies only to persons whose rights and obligations are to be negotiated in the proceedings - only they have a constitutional right to participate in the proceedings and to comment on all the evidence carried out [the finding of 10.1.1996 sp. zn.
68. The issue of participation in administrative proceedings was dealt with by the Constitutional Court in the abstract control of constitutionality in particular in the finding of 22.3.2000 sp. zn. Pl. ÚS 2 / 99 (N 42 / 17 SbNU 295; 95 / 2000 Coll.), in which Article 78 (1) of Act No. 50 / 1976 Coll., on zoning planning and construction rules (Construction Act) was abolished by the then legislature excluding the owner of the land on which the foreign construction was carried out from the approval procedure. In this finding, the Constitutional Court (on which the appellant also relies its argument) stated that "with the exclusion from the clearance procedure, the owner of the land is in an unequal position when, without reasonable grounds, he is granted fewer rights than the builder. This means that the owner of the land which meets the requirements of the builder and agrees to the construction (since without this consent the construction could not be started) loses the opportunity to participate in the procedure in which, inter alia, the State authority is to be qualified to assess whether the construction was carried out in accordance with the documentation. Moreover, such an arrangement means that the owner of the land is also excluded from the right to seek judicial protection because, if he is not a party to the administrative procedure, he is not even actively authorised to bring an administrative action (§ 250 (2) of the Civil Code)... That unfavourable position of certain entities is then enhanced by the definition of the bodies actively authorised to bring an administrative action pursuant to § 250 (2) o. s. s. '" In other words, that the owner of the land is excluded from administrative proceedings and consequently also from judicial protection, the Constitutional Court considers that the legislature, which has a constitutional dimension, is in error.'
69. On the issue of the participation of so-called environmental associations in judicial proceedings, in particular in relation to the right to a favourable environment under Article 35 (1) of the Charter, the Constitutional Court expressed itself in several of its decisions, with its decision-making activities being developed. In its resolution of 6.1.1998 sp. zn. I. ÚS 282 / 97 (U 2 / 10 SbNU 339), the Constitutional Court concluded that "the right to a favourable environment and timely and complete information on the state of the environment and natural resources cannot be applied to legal persons. It is clear that environmental rights are only for individuals, since they are biological organisms which, unlike legal persons, are subject to any negative environmental effects. The environmental characteristics, as implemented by Act No. 17 / 1992 Coll., on the Environment, also correspond to this. In its resolution of 21 November 2007 in sp. zn. IV. ÚS 1791 / 07 (not published in SbNU, available at http: / / nalus.ujud.cz), the Constitutional Court stressed that the complainant, as a legal person, is undoubtedly subject to the fundamental procedural right of judicial protection, but only if it was the subject of a decision by the public authority of its substantive fundamental rights and freedoms.
70. In a later decision, to which the appellant also refers, the Constitutional Court stated that "the reduction in rights cannot be interpreted as strictly as the Supreme Administrative Court does to the detriment of federal bodies established to protect nature and landscape. The reduction in rights cannot in principle be civilized only for possible interference with property owners' rights or, in other words, for imitations affecting or threatening property owners (rightholders) lying within the scope of regulation of general measures... In this case, it is desirable that the area for judicial protection be given not only to individuals themselves, but also to the legal entities in which they are brought together. In this case, it also directs, with the projection into the Czech legal environment, to interpret passages of the Aarhus Convention, which have found their observations in § 70 (1) and related law... on the conservation of nature and landscape..." [Constitutional Court found on 13.10.2015 sp. zn. IV. ÚS 3572 / 14 (N 185 / 79 SbNU 97)]. The Constitutional Court then found that it would not stand a flat-rate conclusion that the civil associations (now the associations) set up for the purpose of protecting nature, landscape and the environment did not demonstrate the active procedural legitimacy of § 101a (1) s. s. s., to submit a proposal to abolish measures of a general nature (zoning plan). The applicant's substantive legitimacy to abolish a measure of a general nature is based on the condition that it is justified by the claim that it has been reduced on its rights by that measure, issued by the administrative authority. However, the Constitutional Court already points out at this point that it was a Senate decision affecting, in essence, the need for a constitutionally consistent interpretation of the provisions of the Administrative Rules of the Court of Justice, only in the proceedings for the annulment of measures of a general nature (the zoning plan) or part thereof.
71. As regards the right to a favourable environment pursuant to Article 35 (1) of the Charter, the infringement of which is ultimately contested by the appellant, the Constitutional Court has previously ruled that it is a right of relative content [finding of 25.10.1995 sp. zn. Pl. ÚS 17 / 95 (N 67 / 4 SbNU 157; 271 / 1995 Coll.)]. At the same time, it should be recalled that it is a right falling within the scope of Article 41 (1) of the Charter, i.e. one which can only be invoked within the limits of the laws implementing it. Thus, the right to a favourable environment enshrined in Article 35 (1) of the Charter and systematically falling under the title of the Fourth Charter, referred to as "Economic, Social and Cultural Rights', is not directly related to individuals. In the light of the finding of 30 May 2017 sp. zn.
72. In the case of acts affecting economic, social and cultural rights, the Constitutional Court, in a substantive examination of their constitutionality, refers to the so-called "rationality test '[the findings of 20.5.2008 sp. zn. Pl. Pl. ÚS 1 / 08 (N 91 / 49 CollU 273; 251 / 2008 Coll.), of 27.1.2015 sp. zl. ÚS 37 / 16 (119 / 2019 Sb.)]. The law on the conservation of nature and landscapes undoubtedly touches on the right to a favourable environment, which is evident from the provision of § 1 of this law, which states that" the purpose of the law is... to contribute to maintaining and restoring the natural balance in the landscape, to protecting the diversity of forms of life, natural values and beauty, to the gentle management of natural resources and to create a Natura 2000 system in accordance with the law of the European Communities in the Czech Republic. The economic, social and cultural needs of the population and regional and local circumstances must be taken into account. "Infringement of the right to a favourable environment pursuant to Article 35 (1) The Charter is also objected to by the author herself (although, as she points out in her reply and not in isolation), or the violation of other constitutional rights is linked precisely to the violation of the right to a favourable environment.
73. Rationality Test The Constitutional Court has also recently used in the assessment of the constitutionality of the restriction of the right of the public concerned to participate in the environmental impact assessment process of so-called priority transport projects, when it rejected the proposal to repeal the provisions of Section 23a of the EIA Act [the finding of 17.7.2019 sp. zn. Here, too, the appellant objected to an infringement of Article 36 of the Charter or an infringement of the right to a favourable environment under Article 35 of the Charter even (unlike the appellant in the present proceedings).
74. In the light of the above findings, the rationality test consists of the following steps: 1. the definition of the essential content (core) of the right in terms of its substance and meaning; 2. an assessment of whether the claim requested interferes with the essential content (core) of that right; 3. an assessment of whether the interests against the claim are legitimate, or whether it is not a arbitrary substantial reduction in the overall standard of protection of constitutionally guaranteed rights (whether the legislation pursues a legitimate objective), and a fourth assessment of whether the legislation is reasonable (rational) in view of the conflicting interests, although not necessarily the best, most appropriate, effective or wisest. At the same time, "it is only in the event of a possible finding in step 2 that the law affects the very essential content of the fundamental law, that a proportionality test should come up, inter alia, to assess whether intervention in the essential content of the law is justified by the absolute exceptional nature of the current situation, which would justify such interference '(Constitutional Court finding sp. zl. ÚS 1 / 08).
75. No rule of law can be interpreted in isolation without any link to other provisions of the law or the rule of law as a whole. The Constitutional Court has therefore also taken into account the purpose of the rules governing the participation of the associations in the Act on Nature Protection and the Landscape. It states that "nature conservation under this law is carried out with the direct participation of citizens, through their civil associations and voluntary bodies or assets." According to Article 70 (2) of the same Act, the civil association (the terminology of the Civil Code by the Association) means "a civil association or its organisational unit whose principal mission under the Statutes is to protect nature and landscape." The mission of these associations was clearly not and is not, or should not be, the protection of the relative property (in particular the exploitation) rights of their members in administrative proceedings. At the same time, in the view of the Constitutional Court, it must be assumed that the legislation before the amendment law (to which the appellant would like to return) did not confer a right of use on the parties in the territorial and construction proceedings of this title.
Application of the general bases of the constitutional review to the contested provision
76. First, the Constitutional Court addressed the appellant's objection that the contested provision was contrary to Articles 36 (1) and 38 (2) of the Charter. After an assessment made in the light of the above general considerations, it concluded that the contested provision would stand from a constitutional point of view.
77. Claim of the non-constitutionality of restrictions on the participation of the associations in administrative proceedings is based on the idea of a general "basic procedural right to participate in proceedings." The Constitutional Court considers that it is an essential and unsurpassed constitutional bail-out that the jurisdiction of the Court must not preclude the review of decisions relating to fundamental rights and freedoms under the Charter (Article 36 (2) of the Charter). However, as regards participation in administrative proceedings as the words of the Charter of Procedure "with another institution ', it cannot be overlooked that this cannot always be claimed in accordance with Article 36 (1) of the Charter, but only in" specified cases'. In other cases, it is an independent and impartial court in which the procedural provisions laid down in the procedure may be invoked by a constitutional right under the Charter. In the Act on Nature Conservation and Landscape Protection, as well as in other laws (namely the EIA Act, the Integrated Prevention Act or the Water Act), the legislator laid down cases where associations as participants may enter the relevant administrative proceedings.
78. The applicant, apparently aware that Article 36 (1) The Charter serves to protect the rights, and not just the interests that the associations pursue, it provides a structure according to which the associations protect the rights of use of residents, in particular tenants, as well as the right to a favourable environment implemented primarily in the form of a statutory right to free access to forests or the use of public green. From the caselaw cited in paragraph 70 above, it then makes it necessary to grant the parties en bloc in administrative proceedings. However, this conclusion cannot be inferred from the caselaw cited above. On that point, the Constitutional Court pointed out that this case-law (not moreover affecting the abstract control of constitutionality) essentially relates to the interpretation of the provisions of the administrative order in the procedure for abolishing measures of a general nature (zoning plan). It is intended to ensure that persons who have joined together in a society for the purpose of protecting their own, in particular, constitutionally guaranteed property rights, are not harmed solely on that basis. Although these findings relate only to the question of legitimacy in the proceedings for annulment of measures of a general nature, the case-law of the administrative courts and of professional literature, their conclusions were, in principle, also related to the pleas in law under Paragraph 65 (1) of the EC Treaty (closer to Kühn, Z. In Kühn, Z., Kocourek, T. et al. Administrative Rules of Procedure. Comment. Praha: Wolters Kluwer, 2019, p. 527; Omačka, V. Environmental associations in the position of prosecutors or what the Czech administrative courts are dealing with. Court views. This Decision is addressed to the Member States.
79. However, it is not possible to pass on the findings of the Constitutional Court, as set out in the judgment in paragraph I. ÚS 59 / 14, concerning the plane of the legal legitimacy under the administrative rules, to the participation of the associations in administrative proceedings, when the conditions of participation in these proceedings are clearly defined by the legislator (see Vomáček, V. Ecological associations in the position of the applicants or with which the Czech administrative courts are dealing. Court views. This Regulation shall be binding in its entirety and directly applicable in all Member States. The Constitutional Court is aware of the judgment of the Supreme Administrative Court of 16.11.2016 No 1 As 182 / 2016-28 which, in principle, transferred the conclusions resulting from the case-law of the Constitutional Court cited in paragraph 70 to the terms of the association's participation in the procedure under Paragraph 70 (3) of the Nature and Landscape Conservation Act. Already at the time, this approach was subjected to criticism in the expert literature, according to which this conclusion, which is also taken over by the appellant, "does not seem too happy, because the legislator clearly defined the conditions for participation in the proceedings, in addition, it opens up a number of unintended problems with the outlined interpretation..." (Vomačka, V. Ecological associations in the position of the applicants or with what the Czech administrative courts are facing. Court views. This Regulation shall be binding in its entirety and directly applicable in all Member States. After all, this very isolated judgment, or the conclusion contained in it, was overcome by later caselaw when the Supreme Administrative Court came to the conclusion, in its judgment of 5 October 2017, No 7 As 303 / 2016-42 (see, in particular, paragraph 68 of its preamble), exactly the opposite, in which it pointed out that the premises presented by the appellant could not be extended to proceedings under Paragraph 70 of the Nature and Landscape Protection Act.
80. In the objection to the property issue, in particular the rights of the beneficiaries, which must be protected in administrative proceedings, the purpose and inadequacy of the appellant's argument cannot be seen. This implies that these rights are to be protected precisely by nature and landscape societies. However, the requirement that these rights of use be protected in administrative proceedings by civil associations under the Nature and Landscape Conservation Act is clearly unreasonable. It can be argued that it is entirely unfounded for the persons concerned to have to establish associations to protect their ownership or exploitation rights, all the more so with the purpose defined in the Statutes as "nature and landscape protection '.
81. In the view of the Constitutional Court, the legislation on participation in the territorial proceedings, as well as the construction procedure, which, according to the appellant, is the most negatively affected by the amended legislation on the holding of the associations, is sufficiently complex and guarantees the protection of property rights and other rights in kind which may be directly affected by the intention (cf. Section 85 (2) of the Building Act in the case of territorial proceedings, Section 109 of the Construction Act in the case of building proceedings). In addition, the appellant also requests the admission of a participant entitled to the relative property rights (in particular the use rights), but only through the nature and landscape societies. According to the Constitutional Court, it is not clear how these rights of relative property rights are to be affected by their constitutional rights and freedoms. Nor does the scope of the concept of property within the meaning of Article 1 of the Additional Protocol to the Convention, which the Constitutional Court is well aware is an autonomous term. Here, too, the appellant has made some simplification since it is not always possible to consider the lease as "property 'of the lessee (cf. the ECHR decision in the JLS case against Spain of 27 April 1999 No 41917 / 98). The Constitutional Court also recalls that, according to the case law of the European Court of Human Rights itself, the Convention serves only to protect" practical and effective law', not "theoretical or illusory 'rights (judgment of the ECHR of 22 June 2006 in Case No 7548 / 04 Bianchi v Switzerland).
82. Moreover, the appellant's argument can be seen as inconsistent, since even the previous legislation for which the appellant is pleading back did not confer a right to participate in all possible relative property rights (in particular in the case of use). The legislature would then have to grant the argument ad absurdum to the legislature in administrative proceedings (in particular territorial and construction), even to the beneficiaries of the accommodation agreement, the users of Airbnb services, etc., as they may be interrupted during their stay by the implementation of the construction project. This is clearly absurd, not to mention the fact that the group of parties to the administrative procedure could not in principle be established (not only) in the absence of a public list of these rights. After all, even the appellant's stressed lease is generally not registered in the real estate register and therefore does not have any substantive effects in this case, since it cannot normally be subsummed under any of the rights under § 85 (2) or § 109 of the Building Act.
83. The formally guaranteed right to participate in the above-mentioned group of persons (all the more so, if it is to take place through the Nature and Landscape Protection Association) cannot in any way, even indirectly, be taken from the private law of the Civil Code, which states that "if someone has a cause with him, without the presumption under Paragraph 1043, he may exercise the right of the owner to protect himself in his own name." It is entirely up to the legislator to consider whether it will grant the right to file a reivination and negative action not only to the owners, but also to mere offenders, on its own behalf. Even when using an analogy, the less constitutional rule, it is not possible to deduce from the obligation of the State to guarantee participation in administrative proceedings by mere tenants. This is all the more true if they could also act in it contrary to the interests of the property owner. This is a construct that, after all, does not allow a civil code, because "the action under Paragraph 1044 cannot be successfully brought against the owner or against an honest holder who, by contract, is to hand over the matter to him in detention..." (Slept, J. In Sleeped, J. and kol. Civil Code III. Praha: C. H. Beck, 2013, p. 252).
84. If, despite the above arguments, associations and other persons not granted participation in certain administrative proceedings were affected by their rights and freedoms by a decision of the administrative authority (typically a decision to place the construction or permit the construction), they may, in accordance with Article 36 (1) and (2) of the Charter, apply to the administrative court. The review of administrative decisions by the administrative court is not excluded, the procedural (plea) legitimacy of the action against an administrative decision pursuant to Paragraph 65 (1) of the EC Treaty is already based on a simple assertion of shortening its rights by an administrative decision, whether directly or as a result of a breach of its rights in the previous proceedings. Therefore, the condition for a procedural legitimacy for bringing an action under Paragraph 65 (1) of the EC Treaty is not to participate in administrative proceedings. Whether or not the rights of the applicant have been shortened by administrative decisions is not a question of procedural legitimacy, but of substantive legitimacy, or of the veracity of the administrative action. These conclusions are in line not only with the views of the Court of Law, but also with the approach taken by the Supreme Administrative Court, according to which, in relation to Paragraph 65 (1) of the EC Treaty, the "active legal legitimacy in the administrative system... is not conditional on the complainant's participation in the previous administrative proceedings or proceedings resulting in the contested decision of the defendant '(judgment of the Supreme Administrative Court of 17 April 2014 No 7 As 30 / 2014-26). Persons who consider that they have been affected by a decision of an administrative authority on their rights are thus procedural legitimate for bringing an administrative action (§ 65 (1) of the EC Treaty), even if they were not parties to the previous administrative proceedings, because they were not involved in the words of Article 36 (1) of the Charter on a" specified case' where they could have been involved in "with another institution '.
85. The legislation currently under review in the light of the above cannot be seen to be the same or similar elements as those contained in the legislation of the previous building law, whose provision not recognised as participating in the approval procedure of the owner of the land has been abolished by the finding of sp. zn. Pl. ÚS 2 / 99. It is this finding that the appellant relies on her argument. If the Constitutional Court omits that there has been an exclusion in the present case of a party in administrative proceedings, which is evidenced by a directly enforceable right under Article 11 (1) of the Charter (not only the right of use or indirectly enforceable right to a favourable environment), such exclusion from the group of participants has resulted in the possibility of seeking its right in court. This resulted from the then and later repealed legislation contained in Part Five of the Civil Code (Section 250 (2)). That was because it only gave the parties the legal basis to the administrative authority. However, as the Constitutional Court pointed out in the previous paragraphs, the plea is now given by a simple assertion of shortening its rights and is not conditional on participation in the previous administrative procedure. In the present case, therefore, the constitutional right to judicial protection under Article 36 (1) of the Charter is not excluded. The appellant's argument that the judicial review is ex post will not be refuted. The contested administrative decision can be granted suspensory effect on a proposal from the applicant (§ 73 pp.).
86. The Constitutional Court does not see similar elements of the present case or in the decision of 16.1.2007 sp. zn. It was because the decision on the reimbursement of medicines in the Czech Republic was not based on objective criteria, was not justified and at the same time not subject to judicial review, the absence of a possibility of judicial review leading to a breach of Article 36 (1) of the Charter is not given in the present case. Moreover, by the Constitutional Court, the repealed legislation denied the principle of equality or distorted free competition in the market for medicinal products for human use.
87. For the sake of completeness, the Constitutional Court states that the obligation of the State to ensure the participation of the associations en bloc in all administrative proceedings does not result from any other case-law of the Constitutional Court cited by the appellant, in particular from the finding of page I of the ÚS 59 / 14. It was already the Supreme Administrative Court which, in its judgment of 15 July 2015 No 2 As 30 / 2015-38, correctly stated that the reference finding of the Constitutional Court "cannot be interpreted as allowing environmental associations to seek protection of the right to a favourable environment or other rights attaching to its members in any proceedings involving such a association... Therefore, in the present case, the complainant is not entitled to object to the contradiction of the construction in place with the territorial plan without further but only to the extent that it concerns nature and landscape '.
88. As regards the alleged interference with the right to a favourable environment, the Constitutional Court explained in paragraphs 72 to 74 above why it decided to apply the rationality test.
89. In the first step of the rationality test, the Constitutional Court first addressed the definition of the essential content of this law. In support of this, it came out of Article 2 of Act No. 17 / 1992 Coll., on the Environment, as amended, ("the Environmental Act '), according to which the environment is" all that creates the natural conditions of the existence of organisms, including humans, and is a prerequisite for their further development. Its components are mainly air, water, rocks, soil, organisms, ecosystems and energy'. To date, the essential content of this right itself has been defined in particular by the legal doctrine which, in its material legal component (which exists in addition to the right to obtain information on the environment), sees "the obligation of the State to ensure that no environmental component is affected to such an extent as would make it impossible to realise the basic needs of man. The state must therefore set such limits for pollution... so that individuals can satisfy their basic needs in order to preserve their health" (Tomossková, V., Tomossek, M. In Müller, H. and kol. Right to a favourable environment: New interpretative approaches. Prague: Institute of State and Law of the CAS, 2016, p. 140). In accordance with the above and in the light of the finding of 17 July 2019 sp. zn.
90. Subsequently, the Constitutional Court assessed whether the legislation contained in Section 70 (3) of the Nature and Landscape Conservation Act in the words "under this Act ', as amended by the amending Act, had intervened in the essential content (core) of the right to a favourable environment under Article 35 (1) of the Charter. It concluded that it did not, since the provisions concerned only narrowed (i.e. not excluded) the procedural aspect of the application of this right in administrative (not also judicial) proceedings. Moreover, environmental associations may continue to participate in administrative procedures, where the possibility of real and serious nature and landscape conservation can be identified. In particular (in addition to the procedure under the Nature Conservation and Landscape Protection Act), it concerns management and procedures under the integrated prevention, EIA and Water Act. However, the very nature of the right to a favourable environment, as defined in the previous point, has not been eliminated. Therefore, there was no reason for the Constitutional Court to subsequently apply a stricter proportionality test (see paragraph 74).
91. At the same time, the legislation contained in the contested provision of the Constitutional Court considers it legitimate, all the more so if it is guided by an attempt to accelerate the territorial and building proceedings. If the appellant also contends, in relation to the infringement of the right to a favourable environment, that infringement pursuant to Article 38 (2) of the Charter, it cannot be borne in mind that that provision also lays down the right to discuss a case "without undue delay '. It follows from the Government's statement that the amendment of the Nature and Landscape Conservation Act was aimed at avoiding delays and disproportionate length of management or authorisation processes in building law. The appellant takes the view, in principle, that there is no study showing that the participation of the associations in these proceedings is due to delays in territorial and building proceedings. However, it cannot be inferred from the constitutional order that the promoter of the bill (or the amendment thereto) should be supported by a qualified study from which statistically verified data would justify the proposed legislation. It should also be noted that there is also probably no study confirming the opposite conclusion with which the appellant operates. On the contrary, the Government, as an intervener of the proceedings, referred immediately to several final decisions of the administrative courts, which have described the practices of some so-called" environmental associations' in administrative proceedings as obstructive actions. Although there may not be a comprehensive study assessing the length of all individual authorisation processes in the Czech Republic or the causes of the alleged disproportionate length of some of them, the premise can be expressed that, with the widening circle of the parties to the proceedings, the length of those processes may generally be extended. The wider the number of participants, the more individual procedural actions are carried out in summary, which can ultimately extend the overall duration of the proceedings. In assessing the legitimacy of the contested legislation, the Constitutional Court also took into account its finding of 17.7.2019 sp. zn. In this finding, the Constitutional Court concluded that "the interest in speeding up the authorisation process of priority transport projects and their subsequent implementation is also reflected in the company's legitimate expectations of taking measures which lead to a reduction of the negative consequences, in particular, of transit road transport to the health of the population and to an improvement in the state of the environment '. This can also reasonably be applied to proceedings on so-called medium-sized projects.
92. In the final step of the rationality test, the role of the Constitutional Court is to assess the contested provision of the law from the point of view of its rationality (rationality) sensu stricto. Done at Brussels, 17 July 2019. The Constitutional Court concluded that "it must, with respect to the division of power and when assessing the step of reason in the rationality test, be restrained in relation to the legislative elections made by the legislator on possible other solutions. It cannot, especially in the absence of the appellant's argument, consider alternatives by the legislator of the chosen solution and assess whether they would achieve the legitimate objectives pursued at a similar level '. In the present case, too, the appellant calls into question the criterion of suitability and necessity in the proportionality test (when the appellant's rationality test, unlike not only the Government and the Chamber of Commerce, but also the Public Security Service did not exercise rights). While one can imagine many, perhaps even more appropriate and effective ways to prevent delays in certain administrative proceedings, the Constitutional Court does not evaluate the contested legislation as unconstitutional even in the final step of the rationality test. Moreover, the restriction of the participation of the associations in certain administrative proceedings was not the only change to lead to an effective and faster territorial and construction procedure, but was part of a large number of accompanying changes in the regulations on building and environmental law (see paragraph 2).
93. The Constitutional Court, in addition to the appellant's objections, notes that the contested legislation does not find contradictory even with Article 7 of the Constitution, according to which the State ensures that natural resources are used in a fair manner and that natural assets are protected. In fact, even if the Constitutional Court admitted that the so-called 'environmental associations' are making a major contribution to the protection of natural resources, it cannot be seen in the very limitation of their participation in certain administrative proceedings that the violation of Article 7 of the Constitution, which primarily concerns the state's activities itself, is a violation. This is all the more true when these associations can continue to take part in administrative procedures in which the possibility of affecting nature and landscape can be identified (see paragraph 90) and, therefore, natural resources or natural wealth. Preventive function of the protection of the environment and natural resources referred to in Article 7 The Constitution implements in particular the Environmental Act, the Nature and Landscape Protection Act, the EIA Act and the Integrated Prevention Act [cf. In Sládecek, V., Mikule, V., Suchanek, R., Syllova, J. Constitution of the Czech Republic. 2. Vyd. Praha: C. H. Beck, 2016, p. 92). However, the participation of the associations in administrative proceedings under these laws was not excluded or narrowed by Law No 225 / 2017 Coll..
94. Following the previous point, the Constitutional Court observes that it did not find a contradiction between the contested provision and Article 35 (2) of the Charter, which guarantees the right to timely and complete information on the state of the environment and natural resources. The contested provision of the Nature and Landscape Protection Act does not affect the right to information on the environment, which is regulated at the legal level in the separate Act No. 123 / 1998 Coll., on the right to information on the environment, as amended, ("the Environmental Information Right Act '). It should be pointed out here that the association, as a legal entity, is an eligible applicant [§ 2 (c) of the Environmental Information Law] for environmental information and that this right to information is not linked to the participation of the associations in administrative proceedings. The applicant (s) may not even justify its request for environmental information (Section 3 of the Law on the right to environmental information), which constitutes a transposition of Article 3 (1) of Directive 2003 / 4 / EC of the European Parliament and of the Council on public access to environmental information and repealing Council Directive 90 / 313 / EEC, according to which the applicant does not need to demonstrate his legitimate interest in obtaining environmental information (see Jelínková, J. In Jelínková, J., Tuháček, M. Law on the right to environmental information. Practical comment. Praha: Wolters Kluwer, p. 29 et seq.).
95. If there is an objection to a breach of international legal obligations of the Czech Republic, the Constitutional Court does not consider it justified. The appellant imports the constitutional right of the associations to participate in the administrative proceedings en bloc only from an article of Resolution 77 of the Council of Europe Committee of Ministers (31). As it itself states, it imposes this right indirectly without any further argument. The argument of this resolution, which, moreover, according to the Constitutional Court, does not imply any such right, has zero constitutional legal relevance since, because of its non-binding nature, it cannot restrict the legislature to adopt legislation.
96. In addition to the appellants' objections, the Constitutional Court observes that it does not consider the contested provision of the law to be incompatible with the so-called Aarhus Convention. The Ombudsman failed to mention that it does not guarantee the participation of the so-called public (associations) in all decision-making processes but only in "deciding on specific activities' (Article 6 of the Aarhus Convention). In accordance with Article 6 (1) (a) of the Aarhus Convention, each Contracting Party shall, in particular," apply the provisions of this Article in view of the decision on whether to authorise the proposed activities listed in Annex I '. This list of activities is based on national provisions, in particular the Integrated Prevention Act. According to Section 7 (1) (e) of the Integrated Prevention Act, the parties to the integrated authorisation proceedings are, inter alia, civil associations (associations) whose activities are the enforcement and protection of public interests under specific legislation. Similarly, the participation of the so-called environmental associations is guaranteed in procedures under the Water Act (§ 115 (7), or EIA, which provides a number of procedural rights to the so-called public concerned. Article 9 (2) (b) of the Aarhus Convention (access to legal protection) also limits those obligations to the activities referred to in Article 6, i.e. not to all projects and procedures, but only to those selected, for which there is a real risk of serious interference with the right to a favourable environment. It can therefore be concluded that the obligations under the Aarhus Convention are complied with. Irrespective of this conclusion, it should be further noted that the text of the Aarhus Convention "cannot be inferred from the fact that this Convention is a direct source of any civil rights or obligations, let alone fundamental rights or freedoms' (Resolution of 21 November 2007, sp. zn. IV. ÚS 1791 / 07). The provisions of the Aarhus Convention relating to public participation in certain decision-making processes do not have the character of self-execution (to define e.g. Mlsna, P. In Rychetský, P. et al. Law on Security of the Czech Republic. Comment. Praha: Wolters Kluwer, 2015, p. 109), which is why they do not have direct effect (finding of 30 May 2014 sp. zn. I. ÚS 59 / 14, paragraph 19 in conjunction with point 5). Therefore, even if Article 6 of the Aarhus Convention applies to any construction (or other) projects, the right of any party to participate in the proceedings concerning that project cannot be derived from it directly applicable. As a result, it is also possible to mention the opinion held in the legal doctrine that" an international treaty that is not enforceable alone cannot establish the derogation power of any court '(Mysna, P., Priestess, J. International Treaty in Czech law: Theoretical bases, negotiation, approval, ratification, announcement and application. Praha: Linde, 2009, p. 184).
Conclusion
97. Article 70 (3) of the First Act on the Conservation of Nature and Landscape in Words "under this Act, the Constitutional Court decided, for those reasons, to reject the proposal.
98. Since the contested provisions of § 4 paragraphs 9 to 11 of the Construction Act, as amended by Act No. 225 / 2017 Coll., were substantially amended and thus ceased to be valid in the course of the proceedings before the Constitutional Court (paragraphs 55 to 57), the Constitutional Court has suspended the proceedings for the annulment of them.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, they took a different position on the statement I of the decision of the Plenary and on the grounds of the Judge Louis David, Jan Filip, Jaromír Jirsa, Kateřina Šimáková, Vojtěch Šimělek, David Carbon and Jiří Zemánek.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No. 124 / 2021 Coll., on the application for annulment of Section 70 (3) of Act No. 114 / 1992 Coll., on Nature and Landscape Conservation, as amended, and Sections 4 (9) to (11) of Act No. 183 / 2006 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 10.03.2021 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Public Contracts 1
Příkazní smlouva na výkon funkce technického dozoru stavebníka a koordinátora BOZP na akci: SÚS Val....
Správa a údržba silnic Zlínska, s.r.o.
IS Projekt, s.r.o.
169 400 CZK
26.09.2024
Source:
Hlídač státu
(CC BY 3.0 CZ)
The regulation text is for informational purposes only.
Comments 0