Found at the Constitutional Court of the Czech Republic No. 168 / 1995 Coll.

Motion denied.

On 20 January 1995 The Constitutional Court has received a proposal from the President of the Republic to repeal the provisions of § 34 of the Act of the Czech National Council No. 360 / 1992 Coll., on the pursuit of the profession of authorized architects and on the pursuit of the professions of authorized engineers and technicians active in the construction process, as amended by the Acts No. 164 / 1993 Coll. and No. 275 / 1994 Coll., for the contradiction with Article 1 of the Charter of Fundamental Rights and Freedoms proclaimed by the President of the Czech National Council under No. 2 / 1993 Coll.

The appellant stated that the Act of ČNR No. 360 / 1992 Coll. introduced with effect from 7 July 1992 as a special condition for the operation of defined activities in the construction of the acquisition of authorisation in the relevant field. The law requires natural persons to verify the competence of authorizations if they wish to carry out selected professional activities in construction. Legal and natural persons operating under the Commercial Code may also carry out selected activities under construction only if they ensure their performance by authorised persons (employees). The conditions for obtaining authorisation are: citizenship of the Czech Republic and permanent residence in the Czech Republic, full legal capacity, integrity, university education in the relevant field, professional experience in prescribed length, successful examination of professional competence and composition of prescribed promise.

At the same time, the Act laid down conditions for the termination, withdrawal and suspension of authorisation in Sections 10 and 11; in Sections 12 to 16 of the Authorised Persons, the obligation to take insurance out of liability for damage caused by the performance of this activity (§ 16) and the obligation to submit to disciplinary action and disciplinary action (§ 20 to 22) in breach of the obligations laid down in this Act.

Paragraph 34 of the Act No. 360 / 1992 Coll., as amended by Acts No. 164 / 1993 Coll. and No. 275 / 1994 Coll., allows persons holding a project authorisation or certificate of special competence to carry out a construction activity, issued on the basis of the regulations in force before the Act No. 360 / 1992 Coll., i.e. before 7 July 1992, to carry out selected activities under this Act. In order to obtain an authorisation or certificate according to the previous modification (Act No. 50 / 1976 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended by Act No. 103 / 1990 Coll. and Act No. 262 / 1992 Coll., Federal Ministry of Technical and Investment Development Decree No. 8 / 1983 Coll., on the special competence for certain activities in construction, as amended by Decree No. 73 / 1987 Coll., Decree No. 186 / 1990 Coll., on the authorisation of project activities), and for the exercise of these professions, the conditions were significantly different to those introduced by the Act No. 360 / 1992 Coll. Therefore, in the original § 34 of the Act, the legislature provided for the validity of earlier authorisations only for a specific - transitional - period, within one year of the effectiveness of the Act (i.e. until 7.7.1993), which was then extended by Act No 164 / 1993 Coll. until 31.12.1994.

The purpose of this transitional arrangement was to enable citizens applying for authorisation to comply with the conditions of the law and to submit the required formalities and the relevant chambers which the law had just established to organise new competences for performance in the specified areas and activities.

This purpose of the transitional measure is also apparent from the still applicable Article II of Act No. 262 / 1992 Coll., amending and supplementing Act No. 50 / 1976 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended by Act No. 103 / 1990 Coll., according to which legal and natural persons operating in the construction sector cannot, after the expiry of the prescribed period of the selected activity, provide, unless they have a prescribed certificate of professional competence - authorisation.

More demanding requirements for the pursuit of the profession in selected professions in the construction industry reflected in the entire ČNR Act No. 360 / 1992 Coll. are justified by the public interest in the protection of third parties, e.g. in terms of safety of buildings, compulsory statutory insurance etc. They have not yet been changed by the legislator and apply to all citizens.

However, the last amendment to the Act No. 360 / 1992 Coll. of the Act No. 275 / 1994 Coll. was deleted from Paragraph 34 the deadline "only until 31.12.1994," and thus contrary to the original intention of the legislator, the transitional measure of the Act became a permanent part of the legislation.

As a result of such legislation, a certain number of persons were thus allowed for an unlimited period of time to carry out a qualified construction and project activity in which there is a significant public interest, without any prescribed authorisation.

The appellant assessed the extent to which this legal situation is in line with the constitutional principle of equality in rights, as set out in Article 1 of the Charter of Fundamental Rights and Freedoms, which is regarded as a relative legal equality of bodies and which requires the application of the same right for the same factual circumstances. In this respect, the appellant was based on Decision No 11 / 1992 Collections of the resolutions and findings of the Constitutional Court of the Czech Republic, which is also invoked by the Constitutional Court, e.g. in its findings No 3 and 9. It follows from this principle that the unjustified differences which infringe this principle must be regarded as unconstitutional.

The legislature challenged § 34 of the ČNR Act No. 360 / 1992 Coll., as amended, introduced two different schemes for the pursuit of a single profession without any rational or objective reasons. The reason expressed in the explanatory memorandum to Act No. 275 / 1994 Coll., that "this issue will be regulated by a new legal regulation following an amendment to the building order 'cannot be accepted. The bill promoter cannot commit to what Parliament will or will not accept in the future.

In the contested provision, the appellant also finds infringement of Article 1 of the Constitution, according to which the Czech Republic is a legal state based on respect for law.

One of the principles of the rule of law is the principle of legal certainty, which is decisive for every democratic rule of law (see Found No. 15 / 1993 Collection of finds and resolutions of the Constitutional Court of the Czech Republic). By merely amending Paragraph 34, the legislature has made the transitional measure permanent, not including in the other subsequent provisions of the Law on the Law on the Rights and Duties of Authorised Persons (i.e. what should apply from the new authorisation legislation to persons who have been granted an authorisation or certificate to carry out construction activities under the old rules, such as compulsory insurance, disciplinary liability), it has infringed the principle of legal certainty as referred to in Article 1 of the Constitution.

The Parliament of the Czech Republic, as a party to the proceedings in its observations signed by the President of the Chamber of Deputies, stated that the legislature had acted in the belief that the law was in conformity with the Constitution and the law of the Czech Republic and that it was now at the Constitutional Court to assess the constitutionality of the law in the context of the proposal of the President of the Republic and to give the relevant decision. He stated that the contested legislation, which is intended to keep different types of authorisation until the new law has been dealt with in a comprehensive manner, did not infringe the principle of equality, because it is up to the legislator to declare the earlier authorisation obtained sooner or later equivalent to the authorisation obtained under the later law or not.

The Constitutional Court found out from the Collection of Laws that the Act of the Czech National Council of 7 May 1992 on the pursuit of the profession of authorized architects and the pursuit of the profession of authorized engineers and technicians active in the construction process was published under No 360 / 1992 Coll.. According to § 34 of the person entitled to project activity or certificate of special competence to carry out activities under the existing rules (Act No. 50 / 1976 Coll., as amended by Act No. 103 / 1990 Coll. and Act No. 262 / 1992 Coll., Federal Ministry of Technical and Investment Development Decree No. 8 / 1983 Coll., as amended by Decree No. 73 / 1987 Coll., and the Decree of the State Commission for Scientific and Technical Development No. 186 / 1990 Coll.), they can carry out selected activities under this Act only within one year from the date of its effectiveness. The Act came into force on 7 July 1992. However, even before the expiry of the annual deadline on 20 May 1993, Parliament of the Czech Republic adopted Act No. 164 / 1993 Coll., amending and supplementing Act No. 360 / 1992 Coll. In Article I (2) of the amendment it was stipulated that, in Article 34, the words "only one year from the date of application of this Act 'were replaced by the words" only 31 December 1994'. The legislative development of this legislation was completed by the Act of the Parliament of the Czech Republic dated 28 December 1994 No. 275 / 1994 Coll., which was § 34 of the Czech National Council Act No. 360 / 1992 Coll., as amended by Act No. 164 / 1993 Coll., so that the words "only until 31 December 1994" are deleted.

Also from the Collection of Laws, as well as from the communication from the President of the Chamber of Deputies of the Parliament of the Czech Republic, the Chamber of Deputies No. 1299 and the shorthand report on the 25th meeting of the Chamber of Deputies, the Constitutional Court also found that the Chamber of Deputies was discussing the second amendment of the Act on the basis of the legislative initiative of Mr Miloslav Excellent and the other 12 Members. In the explanatory memorandum, the promoters stated that the Czech Chamber of Architects and the Czech Chamber of Authorised Engineers and Techniques in the Construction, which were entrusted with the provision of written applications and under the conditions laid down by the Act of Authorisation, were established, inter alia, as authorised natural persons to perform professional activities in the construction and at the same time as a special condition for the operation of the business. The transitional provision of Paragraph 34 allowed that, except for this principle, the selected activities under the law may also be carried out by persons who have been granted an authorisation for a project activity or a certificate of special competence to carry out activities under construction under existing regulations without authorisation, but only until 7 May (correct July) 1993 and later until 31 December 1994. The proposed amendment envisages abolishing this restriction completely, with the issue being regulated by a new legal standard following the amendment of the building law. The draft Act was addressed by the Economic Committee, the Committee on Public Administration, Regional Development and the Environment, and the Committee on Science, Education, Culture, Youth and Sports, and all three committees recommended its approval (House Press 1364). At the meeting of the Chamber of Deputies, the Chamber of Deputies explained that the original time limit was based on the assumption that during 1994 there would be a comprehensive legal regulation of the professional chambers, but this did not happen because neither the amendments nor the building law and the trade law, such as the Higher Education Act, had been adopted, and therefore the time limit for the validity of the project authorisation and the certificate of special competence to carry out the construction activities would be improved until the new and better law could be better resolved. The meeting of the Chamber of Deputies on 8 December 1994 was attended by 117 Members, of which 110 voted in favour, 1 voted against, 3 abstentions and 3 abstentions. The Chamber of Deputies remained on the law on 27 December 1994 after its return by the President of the Republic, and also by the necessary increased quota. This fact was declared by the Resolution No. 276 / 1994 Coll. The law has been signed by the relevant constitutional authorities and has been duly declared.

The Constitutional Court has thus established, as required by Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, that the contested law was adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure.

Then, also according to Article 68 (2) of Act No. 182 / 1993 Coll., the Constitutional Court assessed the content of Section 34 of the Act No. 360 / 1992 Coll., as amended by Acts No. 164 / 1993 Coll. and No. 275 / 1994 Coll., the abolition of which was proposed by the President of the Republic pursuant to Article 87 (1) (a) of the Constitution and Article 64 (1) (a) of the Act No. 182 / 1993 Coll., in view of its compliance with the constitutional laws and international treaties under Article 10 of the Constitution.

The equality category enshrined in Article 1 of the Charter of Fundamental Rights and Freedoms, the violation of which is criticised by the appellant of the law, belongs to those fundamental human rights which, by their nature, constitute social values constituting the company's values. In the social process, these values function only ideally as typical categories of target ideas that cannot completely be covered with social reality and can only be achieved in an approximation way. Equality could therefore become a universal, every social form and phenomenon of contact, a principle only at the objective of social and historical development, but it can only be appealed to within certain limits in the context of this development. There is no recipe for determining what should be equal, but it is hardly possible, in the opinion of the Constitutional Court, to have doubts that egalitarian universalism would necessarily produce deeply dysfunctional social effects. Therefore, any equality in social events can only be an equality of "on the march," a development shape whose continuous oscillation in the area of continuity of tension between the pursuit of total equality and the pursuit of total inequality substitutes its own goal. Therefore, equality can only coincide with reality in certain basic data, otherwise, given the tendency of its extensive and intensive increase, efforts to establish it may be at a threshold that can only be crossed at the cost of violating, for example, freedom. As one of the basic conditions of the social and historical process, equality is brought into a completely consistent relationship with freedom, with which it is subject to one another and which is based on both mutual support and conflict. Just as extreme egalitarian demands threaten the very essence of freedom, it is the opposite. For all these reasons, the Constitutional Court therefore appears to have an inadequate tendency to incorporate every effort to achieve equality into the framework of the escalation of fundamental human rights, which, by their nature, transcends "everyday policy." This therefore also means that inequality in social relations, if it is to affect fundamental human rights, must reach an intensity which is doubtful, at least in a certain way, already the very essence of equality. This is usually the case when an infringement of another fundamental right, such as the right to own property pursuant to Article 11 of the Charter of Fundamental Rights, one of the political rights referred to in Article 17 et seq. The Charter of Fundamental Rights and Freedoms, the rights of national and ethnic minorities referred to in Article 24 et seq. Charter of Fundamental Rights and Freedoms, etc. While freedom is in substance given directly by the essence of the individual, equality usually requires "interlinks," a relation to other social values. As should be the case for the reasons set out below, in the present case, the appellant lacks the alleged breach of the principles of equality, namely this relation with other fundamental rights, and thus the intensity of pushing them to the level of fundamental human rights.

The justification for the proposal for the annulment of § 34 of the ČNR Act No. 360 / 1992 Coll., as amended, can be summarised in the statement that the legislator introduced two different schemes for the pursuit of a single profession, for which there were neither rational nor objective reasons. In the contested provision, the appellant finds an infringement of Article 1 of the Constitution according to which the Czech Republic is a sovereign, unified and democratic rule of law based on respect for the rights and freedoms of man and citizen. One of the principles of the rule of law is, according to the appellant's opinion, the principle of legal certainty, which was alleged to have been violated, inter alia, by the fact that Paragraph 34 of the Act on Transitional Measures made the status permanent. The point is that the legislator has established that persons who have been granted an authorisation for a project activity or a certificate of special competence to carry out activities under construction under existing regulations may carry out selected activities under this law.

It was therefore necessary to examine in particular the substance of the existing legal status, which is governed by the applicable law of construction (Act No. 50 / 1976 Coll., as amended by Act No. 103 / 1990 Coll. and Act No. 262 / 1992 Coll.) and the implementing provisions issued for its implementation (in particular Decree No. 8 / 1983 Coll., as amended by Decree No. 73 / 1987 Coll., and Decree No. 186 / 1990 Coll.). The building law lays down the basic conditions of special eligibility for certain activities under construction (§ 45 et seq.). The detailed arrangements shall include those implementing provisions.

Within the meaning of these Regulations, "specific competence '(as a summary of theoretical knowledge, practical experience and skills acquired for the proper performance of selected activities of decisive importance for the protection of the interests of the company and related to the preparation, design, authorisation, implementation and approval of buildings) shall be verified by examination. According to Article 6 (1) of Decree No. 8 / 1983 Coll., as amended by Decree No. 73 / 1987 Coll., it is essential that the central government sets out the test rules, the material requirements of the tests and the competence of the test committees. Pursuant to Article 12 (1), (2) of the Decree, central government bodies are required to provide for additional training of licence holders at least every five years, while holders are required to submit to a written test or other form of verification of knowledge from supplementary training. If the holder of the licence does not carry out a work activity for more than five years for which the licence has been issued, he may continue that activity only after prior training. According to Article 13 of the Decree, if the State Building Authority finds that workers with a special qualification are repeatedly in breach of the interests of the company during construction, it will give the competent authority of the State Administration an incentive to review the special competence. The conditions for withdrawal of the licence are also laid down in Section 14 of the Order.

Further conditions for the authorisation procedure and special eligibility are laid down in Decree No 186 / 1990 Coll. It lays down, inter alia, the conditions of education and practice to be certified when applying for a test. This decree is then referred to in Annex 2 to the Commercial Act (Act No. 455 / 1991 Coll., as amended), which, under the heading of the bound trade - SKUPINA 213: Construction - under the scope of the project activity in investment construction, defines as a certificate of competence for the exercise of this business, the "licence for project activity (special qualification certificate) 'according to § 2 and 5 of Decree No. 186 / 1990 Coll.

Furthermore, the Trade Act lays down general and special conditions for the operation of trade, the scope of the trade licence, the obligation of the entrepreneur, as well as the conditions for the revocation of trade licence. At the same time, it provides for fines for infringements of the Trade Code. In the present case, therefore, Article 26 (1), (2) of the Charter of Fundamental Rights and Freedoms, under which everyone has the right to do business within the limits of the law, is specified by the Trade Act. It should be noted that, in the legal order, there are numerous rules based on the principle of acquired rights and that those who have passed various examinations which justify the exercise of the profession under the old standards may exercise them, even if the new rules provide for different conditions in the future. It is therefore common that tests carried out in accordance with the old regulations apply even after the new regulations have been adopted (even for various degrees awarded, such as higher education and scientific degrees). Even in these cases, the legislator is based on the principle of legal certainty and trust in law. Specific cases are then addressed in the transitional and final provisions of the relevant laws.

In the light of the foregoing, it can be concluded that persons operating under those rules are engaged, in accordance with the law, on the basis of properly acquired rights (inter alia, in confidence in the trade law and the laws which follow), which can be withdrawn or restricted only under the law, the content and extradition of which is legislative, that is to say Parliament, and as such reflects its legitimate political will.

Thus, if the legislator has decided to regulate the pursuit of the profession of authorised architects in the future and the pursuit of the profession of authorised engineers and technicians active in the construction sector, this does not in itself change the legal status of those operating under the existing rules. It is, however, a matter of Parliament's political will to regulate the pursuit of certain professions or trades which are carried out in accordance with existing rules. In the present case, the current authorisations remain in force under the law. As indicated above, this is not unusual in the legal order of matters, as the legislator has so often acted, inter alia, to ensure confidence in acquired rights, legal certainty and stability of the legal position. In the present case, there is a certain legislative shift in Parliament's will regarding the text of Article 34 of the Act. However, this is quite common in our dynamic legal order. The fact that Article 34 of the Law underwent a certain legislative development process does not, in the opinion of the Constitutional Court, create its unconstitutionality as it represents Parliament's current legitimate political will, expressed in the form of a law.

As regards the alleged infringement of equality in rights, the Constitutional Court concluded, on the basis of the above facts and considerations, that there was no breach of the Constitution in the present case. In order to preserve the rights acquired, Parliament has decided to retain the existing authorisation after considering the situation. Like any law, this is valid until another later legislative solution. With regard to the principle of equality, it is already clear from the opinion of the former Constitutional Court of the Czech and Slovak Federal Republic, published under No 11 of the Reports of the Resolution and Finances of the Constitutional Court of the CSFR of 1992, that the principle of equality concerns equality of relative and special standards may lay down specific criteria for certain disciplines. In the present case, when assessing the weight of legal certainty, stability and protection of acquired rights (which also represent public values), Parliament decided in the transitional provisions to maintain the existing authorisation. In the view of the Constitutional Court, this cannot be regarded as a breach of the principle of equality in this particular case, which would justify the repeal of the law for its contradiction with the Constitution.

After examining the Constitutional Court's proposal, the Court concluded that the alleged infringement of Article 1 of the Constitution, according to which the Czech Republic is a sovereign, unified and democratic rule of law based on respect for the rights and freedoms of man and citizen, under which the concept of the appellant also undermines the principle of legal certainty, and Article 1 of the first sentence of the Charter of Fundamental Rights and Freedoms, according to which people are free and equal in dignity and in law, constitutes, in the present case, a general claim which does not justify the conclusion on the non-constitutionality of Article 34 of the Act No 360 / 1992 Coll., as amended. Similarly, the Constitutional Court found that the contested provision of the law was not in conflict with other constitutional laws or international treaties pursuant to Article 10 of the Constitution and therefore rejected the proposal under Paragraph 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court.