The Constitutional Court found no 134 / 2005 Coll.
The Constitutional Court found of 25 January 2005 on the application for annulment of Article 98 (4) of Act No. 458 / 2000 Coll., on the Terms and Conditions of Business and on the Enforcement of Government Administration in the Energy Sector and on the amendment of certain laws (Energy Act)
Valid
The Constitutional Tribunal found
Text versions:
07.04.2005
134
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 25 January 2005 in plenary composed of JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Ivan Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří Mucha, JUDr. Jan Musil, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav Excellent, JUDr. Eliška Wagner, JUDr.
as follows:
The proposal of the Regional Court in Prague to repeal the provisions of § 98 (4) of Act No. 458 / 2000 Coll. is rejected.
Reasons
Definition and recap of the proposal
On 17 May 2004, the Constitutional Court received a proposal from the Regional Court in Prague to abolish the provisions of Article 98 (4) of Act 458 / 2000 Coll., on the terms and conditions of business and on the exercise of state administration in the energy sector and on the amendment of certain laws (the Energy Act) for its contradiction with Article 11 (4) of the Charter of Fundamental Rights and Freedoms (the Charter).
In the proceedings conducted by the Regional Court in Kladno under sp. zn. 19 C 164 / 2001, the action against defendant T., s. r. o., was pending for payment of the amount of CZK 9,000. The object of the dispute was the alleged claim of the applicant to issue an unjustified enrichment of CZK 9,000, which was intended to compensate for the use of non-residential premises by the defendant in the house owned by the applicant for a period of one month. The defendant argued that it was the holder of a licence for the establishment and operation of heat distribution facilities and had an exchange station in the applicant's premises. This exchange station was put into service in 1970 and is bound by real estate as a legal liability. The operation of an activity which corresponds to an authorisation of a material burden shall not give rise to the defendant unfounded enrichment. The Court of First Instance dismissed the action by giving the defendant's argument completely to the contrary. The applicant appealed against the judgment and the Regional Court in Prague confirmed the judgment of the Court of First Instance by judgment of 6.11.2002 No 30 Co 351 / 2002-57, as it fully complied with the legal views contained in the primordial judgment.
On the basis of a constitutional complaint from the applicant, the judgment of the Court of Appeal was annulled by the judgment of the Court of Appeal in Case C-137 / 03 ÚS of 18.11.2003 (Collection of finds and order of the Constitutional Court, Volume 31, Found No 135). The Constitutional Court took the view that, from Article 1 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), which is a fundamental interpretative guide to the activities of all the authorities of the state power of the Czech Republic, it can be concluded that even with the preservation of (essential) continuity with the "old law ', the interpretation and application of the legal standards must be subject to their content material sense. The Constitution therefore clearly accentuates the value discount with the" old (communist) regime "and stresses the protection of fundamental rights and freedoms resulting from the constitutional order of the Czech Republic.
The Constitutional Court further notes that after November 1989 there were major political and economic changes in Czechoslovakia, now in the Czech Republic. As a result, a new value system of modern democratic society has been introduced, with the eyes of which old legal standards need to be interpreted, if they still exist. This system provides, inter alia, appropriate protection for the right of ownership, which is one of the fundamental human rights. Such protection is also the case in a particular case. This is not prevented - neither in the actual grammatical text - nor in the provisions of § 45 (3) of Act No 222 / 1994 Coll., on the terms and conditions of business and on the exercise of government administration in the energy sector and on the State Energy Inspection, nor in the provisions of § 98 (4) currently in force in the Energy Act, since those provisions only provide that the authorisation of foreign property and the restrictions on its use which arose before the Act is effective remain unaffected. It concluded that the user of an exchange station has this obligation all the more because he is a business entity operating an exchange station for commercial purposes.
The Regional Court in Prague, having received the above-mentioned finding of the Constitutional Court which annulled its judgment, suspended the proceedings for appeal of the applicant pursuant to § 109 (1) (c) of Act No. 99 / 1963 Coll., Civil Code, as amended, and referred, pursuant to § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, to the Constitutional Court with a motion for annulment of § 98 (4) of the Energy Act. In the proposal it argues that in the present case the exchange station was built on the basis of a decision on the admissibility of the construction of 28.4.1969 and a permanent permit was issued on 7.7.1970. At that time the issue was regulated by Act No. 79 / 1957 Coll., on the production, distribution and consumption of electricity (electricity law). According to Article 22 of the Act, inter alia, for the construction and operation of electricity lines and their accessories on foreign real estate to the extent that the construction is permitted, energy undertakings are not obliged to provide compensation, and the obligation to suffer the exercise of these authorisations is bound by the property in question as a material burden. According to Section 38 of the Electricity Act, in conjunction with Section 18 of the Government Decree No. 80 / 1957 Coll., implementing Act No. 79 / 1957 Coll., on the production, distribution and consumption of electricity (Electricity Act), that provision of the Electricity Act also applies mutatis mutandis to heat distribution equipment with accessories, which means, inter alia, exchangers up to 30 m2.
Following the repeal of that Decree by Act No. 89 / 1987 Coll., on the production, distribution and consumption of heat (hereinafter referred to as the "Heat Act '), the same authorisations of energy undertakings were material burdens on the properties concerned, which were not included in the property records. In doing so, it was possible to apply for one-off compensation within six months of the date on which the use of the installation in question was authorised, provided that the use of the property which was owned and used by the citizen or in the personal use of the citizen was significantly restricted by the exercise of that authorisation.
The Heat Act was repealed by Act No 222 / 1994 Coll., on the Terms and Conditions of Business and on the Performance of State Administration in the Energy Sector and on State Energy Inspection. According to Article 45 (3) of the Act, the authorisation for foreign real estate as well as the restrictions on its use which arose prior to the application of the Act remain unaffected. This Act was repealed by the now applicable Energy Act, which essentially took over the wording of Paragraph 45 (3) of Act No 222 / 1994 Coll.
The Regional Court in Prague shows from the above-mentioned developments that, under the applicable legal regulations, the exchange station in question can be used as a free set-up material burden. Taking into account the above-mentioned view of the Constitutional Court, this limitation must be regarded as contradictory to Article 11 (4) of the Charter, according to which such a compulsory restriction on ownership is only possible in the public interest, on the basis of the law and as compensation. If, according to Paragraph 98 (4) of the Energy Act, the authorisation for foreign real estate and the restriction of its use, which arose prior to the application of the Act, remains unaffected, according to the logical and grammatical interpretation, in the view of the Regional Court in Prague the right to use foreign property free of charge for the operation of the heat distribution plant, i.e. in the form originally established. If the provisions of Paragraph 98 (4) of the Energy Act are in force, the imposition of an obligation to pay compensation to the owner of the property for the limitation of its right of ownership by the operation of a heat distribution plant would be contrary to that legal provision.
Thus, the Regional Court in Prague proposes that the Constitutional Court should abolish the provisions of Paragraph 98 (4) of the Energy Act for its contradiction with Article 11 (4) of the Charter.
Recital of the essential parts of the observations of the parties
The Constitutional Court sent a motion to initiate proceedings in accordance with the provisions of § 69 of the Act to the parties - Chamber of Deputies and Senate of the Parliament of the Czech Republic.
The Chamber of Deputies stated that the motive for taking over the contested legal provision, which is identical in substance to the previous regulation pursuant to Article 45 (3) of Act 222 / 1994 Coll., was to maintain legal continuity in cases of previously allocated authorisations for the production and distribution of electricity, gas and heat. It considers that the contested legal provision with the object of the dispute, which is the obligation to pay compensation for the compulsory restriction of property rights, is unrelated and does not prevent the property owner from being protected by its property rights. It therefore does not consider the proposal to be justified.
The Senate stated that the contradiction of the contested legal provision with Article 11 (4) of the Charter in its debate prior to the adoption of the resolution on the draft law was not supported by any argument, and the Constitutional Court found no such contradiction in its decision sp. zn. I. ÚS 137 / 03. Otherwise, major comments were made against the draft law. They concerned, on the one hand, the fragmentation of the compensation scheme within the time series of statutory adjustments gradually adopted, the inadequacy of the one-off compensation to the burden incurred and the obligation on the owner to carry out work in connection with the maintenance of energy installations in the protection zones at his own expense. The generalisation of these criticisms led to the rejection of the draft law.
Derogation of the contested legal provision
Paragraph 98 (4) of the Energy Act reads as follows:
"(4) Authorisations for foreign real estate as well as restrictions on their use which arose prior to the application of this law shall remain unaffected. '.
Conditions for the applicant's active legitimacy
The application for annulment of the provision of § 98 (4) of the Energy Act was submitted by the Regional Court in Prague in connection with its decision-making activities (proceedings conducted by that court under sp. zn. 30 Co 351 / 2002) pursuant to Article 95 (2) of the Constitution and thus in accordance with the conditions contained in the provision of § 64 (3) of the Act. In the present case, the appellant can therefore be found to fulfil the conditions of active legitimacy.
Constitutional conformity of the legislative process
The Constitutional Court is required, in accordance with the provisions of Section 68 (2) of the Law, to assess whether the contested law has been adopted and issued in a constitutional manner.
From the House Press 535 of the Third Election of the Chamber of Deputies, the Constitutional Court found that the Energy Act had been proposed by a government which did not justify the provisions of Paragraph 98 (4). From the resolution of the Economic Committee of the 44th meeting, held on 6 September 2000, the Constitutional Court found that it had been recommended to discuss and approve the draft law with amendments, but did not concern the provisions of Paragraph 98 (4). The resolution of the Chamber of Deputies of the 27th session of the third parliamentary term, held on 21 September 2000, gave its assent to the Government's proposal for an Energy Act, as amended by the approved amendments. In the vote, order number 212 of the 185 Members present was 144 for, 21 against.
The resolution of the Senate Committee on European Integration from the 38th meeting of the second term of office, held on 11 October 2000, recommended the approval of the law as referred to by the Chamber of Deputies. At its 53rd meeting, held on 24 October 2000, the Senate Committee on Economic, Agriculture and Transport recommended returning the bill to the Chamber of Deputies with amendments. However, the amendments did not concern the provisions of Paragraph 98 (4). By a resolution of the 22nd meeting of the second term, held on 25 October 2000, the Senate rejected the draft Energy Act. It follows from vote 42 that 51 of the senators present were in favour of, against, the 8 to reject the bill.
By order of the Chamber of Deputies of the 29th session of the third parliamentary term, held on 28 November 2000, the Senate rejected the draft Energy Act. It follows from vote 29 that for the bill, 195 Members were present, 136 were opposed.
The President signed the Act on 13 December 2000, was delivered to the Prime Minister for signature on 15 December 2000 and was announced on 29 December 2000 in the Collection of Laws in the amount of 131 under No 458 / 2000 Coll.
The Constitutional Court notes that the Energy Act was adopted in a constitutional manner.
Content compliance of the contested provision with the constitutional order
The contested provision of Paragraph 98 (4) of the Energy Act is a provision which maintains the continuity of the authorisation for foreign real estate as well as the restrictions on its use which arose before the Act was effective. This is a provision which affects private law relations, for which the principle of non-retroactivity generally applies. This principle has been based so far (except for minor exceptions) on the provisions of all civil law laws adopted in our territory following the repeal of the General Civil Code of 1811. The establishment of legal relations and the claims arising from them before the new arrangements are therefore assessed in principle in accordance with the rules in force at the time of their creation. From this point of view, the contested provision is not a standard solution to a comparable issue, and this method of legal regulation cannot in any way be regarded as contradictory to constitutional order. If it is about rights to things like this, any interference with those rights which is not based on the free decision of the rightholder or a constitutionally consistent law would be a violation of the right to own the property which is enshrined in Article 11 of the Charter.
The appellant relies on the finding of the Constitutional Court sp. zn. I. ÚS 137 / 03 of 18.11.2003. It's based on a case that makes decisions. The point is that in 1969 a heat distribution plant - an exchange station - was built in this building on the basis of a decision on the admissibility of the construction. According to the legislation in force at the time, the so-called legal material burden has been created, which bursts the object of the construction up to now. The existence of this material burden of authorising the heating operator to use the heat distribution plant and the burdensome owner of the building free of charge was not affected by any amendment to the electricity bill on the basis of which it was established, even under the legislation currently in force. On the basis of the above-mentioned finding of the Constitutional Court, the appellant concludes that the validity of this restriction on property rights is contrary to Article 11 (4) of the Charter, since the compulsory restriction on property rights is only possible for compensation.
First of all, it should be pointed out that there is no such thing as a reference to the Constitutional Court. On the contrary, the Constitutional Court considers the existence of legal burdens in kind that have been created under previous legislation to be legitimate. In fact, if he had not shared such an opinion, he would have had to proceed in accordance with § 64 (1) (c) of the Act and propose the repeal of § 98 (4) of the Energy Act. The Senate of the Constitutional Court merely concluded that the use of an exchange station free of charge would burden the property owner so much that such interference in its right of ownership could not be fairly requested.
The appellant argues that if, pursuant to Paragraph 98 (4) of the Energy Act, the entitlement to foreign property as well as the restrictions on its use, which arose before the Act was effective, is maintained and unaffected, the right to use foreign property free of charge for the operation of the heat distribution plant, in the form it was established, is not affected by logical and grammatical interpretation. This implies that it is not possible in a constitutional way to interpret the impact of the contested provision in such a way that, while maintaining the material burdens arising under the previous arrangements, in particular during the period of communism, any cash performance can be successfully claimed by the holder of the authorisation from such a material burden.
The Constitutional Court does not share such an opinion. On the one hand, the fact remains that, when establishing material burdens under the law, the compensation for the restriction of property rights is (and has always been) designed as a one-off compensation, payable within the statutory time limits, to the owner of the property on which the established liability is imposed. This can be inferred from the price regulations in force earlier and today. In accordance with the second sentence of Paragraph 22 (2) of the Second Electricity Act (as well as the subsequent laws in this area), it could, within three months of the date on which the work was put into permanent operation (use), the owner or the user of the property, which was not in state socialist ownership, request that the energy undertaking provide it with adequate one-off compensation if the establishment of the management was substantially limited in the use of the property. Therefore, it was possible to create a burden in kind free of charge only where the assets were owned by the State. This was logical as there was no reason for the State to pay itself a compensation. If such property has been privatised after 1989, the acquirer has acquired it with this burden and it cannot be said that the burden would be free of charge. It was up to the new acquirer, as one of the contracting parties, to include such a burden in the price of the assets transferred.
The material burdens established under the law (i.e. not only under the Energy Act) have a specific regime, governed by the public law on the basis of which it was established. Even if they have an undisputed public law element in the way they are created and the purpose they serve, it cannot be ignored that they also have a significant private law element. Civil law defines a material burden as the right of someone other than the owner of a thing that limits him to being obliged to suffer something, to abstain or to act. So-called legal material burdens have this character too. After all, the laws under which they arise denote them by this term. However, their scheme is not entirely identical to the contractual burden scheme, since it is governed by the special rules governing the activities for which they have been carried out. However, it is not a comprehensive regulation which would exclude the application of the general regulation of civil law to material burdens. Therefore, where such special provisions do not have special arrangements, their arrangements are governed by the general civil rules.
Furthermore, the issue must be viewed according to the principle of false retroactivity. According to this principle, the rights and obligations arising from the set-up of the substantive burden result not from the legislation on which it was created, but from the current legal regulation of the legal substantive burdens. Where the current special provisions on legal burdens in kind do not provide for compensation relating to their performance, the private law rules should be applied. Paragraph 151n (3) of Act No. 40 / 1964 Coll., Civil Code, as amended, shows that the holder of the authorisation is obliged to bear the appropriate costs of maintaining (maintenance) the matter burdened with material burden and of repairing it. Consequently, the burden of substance cannot be used entirely free of charge, but for remuneration, which includes expenditure relating to the maintenance of the case and its corrections. If these costs are not borne by the burden in kind, they receive unjustified enrichment, as they were paid for by the owner of the case for what he was entitled to pay himself. The determination of the particular form of such remuneration is a matter of an agreement which is justified by the burden in kind with the burden in kind. If no agreement is reached, the court shall, on the application of one of them, decide on the matter.
In the present case, therefore, the contested legal provision can be interpreted in a constitutional way in accordance with the view expressed in the Constitutional Court's finding of sp. zn. I. ÚS 137 / 03. In view of all the above reasons, the Constitutional Court therefore rejected the application for annulment of Paragraph 98 (4) of the Energy Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No 134 / 2005 Coll., of 25 January 2005 on the application for annulment of Paragraph 98 (4) of Act No. 458 / 2000 Coll., on the Terms and Conditions of Business and on the Enforcement of Government Administration in Energy Industries and on the amendment of certain laws (Energy Act) |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 07.04.2005 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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