The Constitutional Court found No 186 / 2019 Coll.
The Constitutional Court found on 18 June 2019 sp. zn. Pl. ÚS 25 / 15 in the case of an application to declare unconstitutionality § 10 paragraph 4 (b) of Act No. 13 / 1997 Coll., on roads
Valid
The Constitutional Tribunal found
Text versions:
25.07.2019
186
FIND
The Constitutional Court
On behalf of the Republic
On 18 June 2019, the Constitutional Court decided, under point Pl.
as follows:
Motion denied.
Reasons
Definition of the case
1. The Regional Court in Prague (hereinafter also "the applicant") has proposed, pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter "the Constitution") and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, a declaration of inconstitutionality § 10 (4) (b) of Act No. 13 / 1997 Coll., on roads, as amended, as effective until 30 December 2015.
2. The applicant alleged that it is bringing proceedings against the administrative decision of the applicant MORAVAN DEVELOP, s. r. o., IČO 26905604, based in Brno, Zábrdovická 15 / 16a, seeking the annulment of the decision of the Regional Office of the Central Bohemian Region, which was supplemented in part, in the section confirmed by the decision of the Road Administration to reject the applicant's application for land connection to local communications. The reason for the rejection was the opposition of the owner of the infrastructure, the municipality of Ondřejov, which was necessary for connection pursuant to § 10 (4) (b) of the Road Act, as effective until 30 December 2015. According to the applicant, the practice of the municipality was malicious and damaged it in its rights.
3. The Regional Court in Prague, in the preliminary examination of the case, concluded that Article 10 (4) (b) of the Road Act, as amended by 30 December 2015, cannot be interpreted in a manner consistent with the constitutional order of the applicant. In his view, this provision is contrary to the right to judicial protection, the right to protection of property and equality in rights. The following considerations led to this:
4. Local communications are owned by the municipality in whose territory the communication is located. According to the contested provision, the Road Administration was obliged to seek prior consent from the owner of the infrastructure concerned before the permit was issued to connect the adjacent property to local communications. In the administration of the judiciary, the view has been established that it is not possible to comply with a request for connection in the case of a local communications owner's disagreement. The consent or disapproval of the owner is not a sub-summary administrative act which the administrative court could examine pursuant to Paragraph 75 (2) of the Administrative Rules. The Regional Court in Prague has identified with this interpretation, but considers it problematic that the law does not define any grounds for consent and does not define the appropriate procedure. Such an arrangement, according to the Regional Court, does not fulfil any obvious purpose and does not allow the owner of the neighbouring property legal defence against bullying by the owner of the communication. Although the explanatory note refers to the possibility of defence under § 3 (1) of Act No. 40 / 1964 Coll., Civil Code, as amended by Act No. 509 / 1991 Coll., i.e. as effective since 1.1.1992. However, the prohibition of abuse of rights and the prohibition of the exercise of a right contrary to good manners may only lead to the finding of illegality not to give consent, but not to the desired connection. This conclusion is also based on the decision-making activities of civil courts, according to which the private right of access to neighbouring infrastructure is not given. Such an approach is ensured only within the framework of the public subjective right of general use of infrastructure.
5. The Regional Court in Prague has described the lack of protection of the right of the owner of the land adjacent to the infrastructure to be connected to it as unconstitutional, as it is from its point of view a denial of access to justice (denegatio iustiae), i.e. a violation of Article 36 of the Charter of Fundamental Rights and Freedoms ("the Charter '). The nature of the problem lies, in the Court's view, not in the absence of judicial control, but in the construction of the Road Law itself, which requires the consent of the infrastructure owner. Territorial communications are public goods and their ownership is reserved for public corporations within the meaning of Article 11 (2) of the Charter of Fundamental Rights and Freedoms: the State, the counties and municipalities (the imperfection of ownership transfer rules can exceptionally be their owners and other persons). The purpose of this regulation is to ensure the simplest, uninterrupted use of communications by the public, regardless of the property ratios to the land on which the communication is located. Thus, the exercise of the property right thus designed by public corporations cannot be arbitrary: the aim of the management of public goods is to best satisfy the communication needs of the public; in the case of local communications, it is based on the municipality's knowledge of local communication needs. The actual procedure for the authorisation to connect the property to the road infrastructure is guided by the aspects of maintaining the highest possible quality of compliance with the communication needs, which the municipality automatically protects already because the procedure is conducted as a matter of fact and locally competent road administration of its local competent municipal authority. If other relevant aspects exist from the point of view of the interest of the municipality, they can be effectively applied in the procedure under the Building Act [Act No. 183 / 2006 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended]. Therefore, the granting of the consent pursuant to Article 10 (4) (b) of the Road Act, as effective by 30 December 2015, does not have any substantive justification as it cannot rely on any aspect which would not be considered in another procedure. This is also the case of the applicant for whose action the Regional Court is having proceedings: the municipality of Ondřejov justified its opposition by failing to comply with the requirements of Decree of the Ministry of Regional Development No 501 / 2006 Coll., on the general requirements for the use of the territory, which should have been dealt with in the administrative procedure. Therefore, the consent institute under the contested provision has the potential to intervene intensively in the constitutionally guaranteed rights of land owners seeking access to the infrastructure.
6. Another reason for the violation of the constitutional order was found by the Regional Court in an unjustified advantage of public (municipal) ownership over the ownership of private persons. According to the law, local communications are to be owned by municipalities, while special purpose communications may be owned by private persons. However, the need for consent for connection to special purpose communications is not given, i.e. municipalities can prevent the connection of land to the communication by not giving consent, while owners of special purpose communications cannot. However, there is no reason for such a fundamental advantage, all the more so because, by its nature, it is closer to the purpose of communication and local communication of the IV class, which is the case before the Regional Court.
Proceedings before the Constitutional Court
7. Parliament's Chamber of Deputies stated that the bill, including the now contested provision, was discussed as a government bill (Press No 43) in the second parliamentary term. The proposal was approved on 15 May 2001, with 113 out of 156 Members voting for it.
8. The Senate stated that it approved the bill in the first term of office (Document No 1997 / 1 / 0) in the form approved by the Chamber of Deputies; All 59 senators and senators present have voted in favour. The content of the contested provision was not debated. The contested provision was later amended by Act No. 268 / 2015 Coll., amending Act No. 13 / 1997 Coll., on Road, as amended, Act No. 361 / 2000 Coll., on Road Traffic and on Amendments to Certain Acts (Road Traffic Act), as amended, and other related laws. This amendment, which turned the owner's consent into an opinion of the owner, was actually supported by the Senate because the amendments adopted did not concern the part amending Article 10 (4) (b) of the Road Law.
9. The Government stated that the proposal by the Regional Court is only factually directed against the request for the consent of the municipality, not against all the provisions laid down in Paragraph 10 (4) (b) of the Road Law. Its cancellation would call into question the competence of road administrations to decide on the permission to connect land to communication, modify such connection or cancel it. However, this power is not unconstitutional, it is necessary, on the contrary, because it allows the protection of infrastructure and the safety of traffic on it. It is also used to eliminate a large number of slopes on local roads whose nature excludes this.
10. The Government did not agree that the contested provision preferred public ownership to the ownership of private and, where appropriate, the ownership of motorways, roads and local roads against the ownership of special-purpose communications. Motorways and roads are obviously different from special purpose roads, local roads serve mainly local transport in the area of the village (local first class roads can then be built as speed local roads intended exclusively for two-track motor vehicles). On the other hand, purpose communications serve to combine individual real estate items for the needs of their owners. This difference in nature is reflected in the different legislation on the connection of land to them.
11. The appellant's claim is incorrect that the municipality can effectively apply other aspects than safety and continuity of operation in the context of territorial and construction management, which it considers relevant for the interests of the municipality. In such procedures, the owner of the local communication may defend his interests only if the authorisation of the establishment of the convention is related to further follow-up proceedings under the building law. This is not a rule, however, since in practice there are gatherings for land used for agricultural purposes or gatherings which have previously been authorised in the procedure under the construction law. In such cases, there is no follow-up to the convention clearance procedure and the local communication owner can defend his interest only through consent.
12. The Ombudsman stated that Paragraph 10 (4) (b) of the Road Law, as amended by 30 December 2015, was in practice causing problems. The consent was necessary and the owner of the communication is not bound by any other conditions. Any disagreement cannot be replaced, even in the case of bullying. In the legislation, the institution of the consent of the municipality as a conditional act appears more and more frequently and there is concern that this right will not be abused by the municipalities. It is therefore appropriate for the Constitutional Court to comment on the question of the limits of the autonomy of the will of the municipalities in cases where they possess public goods or protect the general interest. The Ombudsman proposed that the Constitutional Court comply with the proposal.
Procedural assumptions for discussion of the proposal
13. Article 95 (2) The Constitution states that the court shall bring the case before the Constitutional Court if it concludes that the law to be applied in the resolution of the case is contrary to the constitutional order.
14. This is a case of so-called specific (incident) and not abstract control of standards. The General Court is entitled to make a proposal if it proposes the repeal of the law or its individual provision, the application of which is to be immediate, or if necessary its unavoidable application, and not just a hypothetical use or other broader context [Resolution sp. zn. It follows from the purpose and purpose of the specific control of the constitutionality of legal standards that the law (or its provision) to be applied in the resolution of the case is only one which obstructs the achievement of a desirable, i.e. a constitutional, consensus result; If not removed, the outcome of the present proceedings would be different [point 26 of the sp. zn.
15. It is for the appellant to put forward, on the one hand, an adequate argument that the contested law (its individual provision) is contrary to the constitutional order but, at the same time, to point out and prove that the use of the contested provision is unavoidable and only its abolition will result in the achievement of the desired constitutional consensus result [finding sp. zn. In particular, the Constitutional Court may conclude that the application of the contested provision is not necessary for the referring court to do so if the appellant's conclusion would be manifestly unsustainable [the finding of the sp. zn.
16. The Constitutional Court has also previously concluded that under Article 95 (2): The Constitution may be discussed in substance by the Court of First Instance for the declaration of the unconstitutionality of the already repealed Act (or its provision) if it is still applicable to the present case and regulates in particular the relationship between the individual and the public authority [the findings sp. zn.
17. In the case under appeal, the administrative authorities used § 10 (4) (b) of the Road Act, in its version effective until 30 December 2015, by rejecting the applicant's request to allow the applicant's property to be connected to local communications pursuant to § 51 (3) of Act No. 500 / 2004 Coll., the administrative order, in the absence of the consent of the municipality of Ondřejov as the owner of the communication. The assessment of the legality of the decision of the Regional Authority of the Central Bohemian Region depends on whether the consent of the owner of the local communication is a necessary condition for a positive decision to permit the connection. The possible declaration of inconstitutionality of the contested provision would be a reason for the illegality of the decision of the Regional Office of the Central Bohemian Region and would lead to compliance with the action. The Road Law therefore contained in Paragraph 10 (4) (b) a provision which will be used to resolve the case and which prevents the result which the appellant considers to be consistent with the constitutional order.
18. In this context, the Government pointed out that Paragraph 10 (4) (b) of the Road Act, as effective by 30 December 2015, regulates a greater number of relations than the regional court considers to be unconstitutional. In that context, it should be recalled that the Constitutional Court, pursuant to Article 87 (1) (a) and (b) of the Constitution of the Czech Republic, decides not only to repeal laws and other legislation but also to repeal their individual provisions. In so doing, any part of the text of the legislative act with a normative content must be understood. It is therefore an expression containing any language means intended to express the legal standard or any of the components of its substance, or the legal consequence [finding sp. zn. The Constitutional Court has therefore examined only the above obligation to consent to the connection of the municipality, not the regulation of other relations contained in Section 10 (4) (b) of the Road Law.
19. The Constitutional Court was aware, when deciding, that the applicant in the proceedings before the Regional Court could be able to protect her alleged right by re-filing an application for authorisation to be joined under the new legal conditions effective from 31 December 2015 (the negative decision does not constitute an obstacle to the matter decided under Paragraph 48 (2) of the Administrative Regulation). However, this is of no direct relevance to the proceedings before the appellant itself, as it must review the decision according to the original legal situation (§ 75 (1) of Act No. 150 / 2002 Coll., Administrative Rules). In other words, the decision of the Constitutional Court is not necessary for the protection of the rights of the applicant MORAVAN DEVELOP, s. r. o., but is necessary for the decision of the Regional Court in Prague on the substance of the case until there is a reason for the termination of the action (satisfaction of the applicant under § 62 of the Rules of Procedure of Administrative or Withdrawal pursuant to § 37 (4) of the same Law; to stop the application from 10.5.2013 in the interim proceedings, see resolution NSS No.6 Ads 18 / 2012- 191 of 23.1.2013 and § 6 Ads 18 / 2012211 of 10.5.2013). The applicant's active procedural legitimacy is therefore given.
20. Since the Constitutional Court had no doubts as to the fulfilment of the further conditions of the procedure, the Constitutional Court took a substantive approach. According to § 44 of the First Law No. 182 / 1993 Coll., on the Constitutional Court, as amended, he abandoned oral proceedings because further clarification of the case could not be expected.
Self-assessment
21. The contested provision is part of § 10 (4) (b) of the Road Act, which, in its version effective until 30 December 2015, provided that the competent road administration, prior to issuing a permit to connect the adjacent property to the motorway, road or local communication, to modify such connection or to revoke it, would require the prior consent of the owner of the infrastructure concerned and, in the case of a motorway or express road, also the prior approval of the Ministry of Interior, in other cases the prior approval of the competent authority of the Czech Police.
22. The Constitutional Court, pursuant to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., was concerned with whether the contested provision was adopted within the limits of the Constitution established competence and by the constitutional procedure. In view of the observations made by both chambers of Parliament, the available descriptions of the legislative procedure for the adoption of the relevant law, as well as the fact that the legislative procedure is not even questioned by the appellant, it can be considered that the condition of constitutional conformity of the legislative process has been met.
Owning local roads reserved for municipalities
23. Ground communication is a transport route intended for use by road and other vehicles and pedestrians, including fixed facilities necessary to ensure such use and its safety. Land roads are divided into four categories: motorways, roads, local roads and special purpose roads (Section 2 of the Road Act).
24. The classification of infrastructure as a motorway, road or local road is decided by the competent road administration on the basis of its designation, transport significance and construction equipment (Section 3 (1) of the Road Act). However, for the categorisation of infrastructure, the right of ownership is essential, as only the State, the Region or the Municipality (Section 9 (1) of the Road Act) can be the owner of the roads as construction, except for special purpose roads. This means that a journey owned by a private person can only be a purpose communication, regardless of its destination, transport significance and construction equipment (except as foreseen in Section 3 (3) of the Road Transport Act, i.e. in the case of the conclusion of a contract on a future transfer contract of ownership). This also applies to communications that arose under previous regulations (cf. Resolution No. 9 As 15 / 2012-27 of 29 January 2014, No. 3028 / 2014 Coll. NSS).
25. The legislation in the Road Act monitors the public interest in the existence and functioning of the infrastructure network, without which modern society cannot be imagined. This public interest is so essential that it can lead to expropriation, if certain conditions are met, (for example, if it is land for the construction of a motorway) or a restriction on property rights [for example in the case of special purpose communications, see, for example, the find in sp. zn. II. ÚS 268 / 06 of 9.1.2008 (N 2 / 48 CollNU 9), paragraph 28 et seq.]. In order to ensure this public interest, ownership of local roads, roads and motorways is by law reserved for municipalities, counties and state. This is one of the exceptional cases where the legislature has exercised its authority in accordance with Article 11 (2) of the Charter to provide that certain assets "necessary to safeguard the needs of the whole company, the development of the national economy and the public interest may only be owned by the State, the municipality or the designated legal persons'. However, this regulation is not intended to improve the legal status of municipalities, regions or the State in any way. On the other hand, it is generally burdensome by the law of the designated property by the burden of caring for the entrusted infrastructure, inter alia, in such a way that such communication is safe for the people who use it. This follows both directly from the nature of the public interest pursued by this scheme and from the fact that ownership is liable (Article 11 (3) of the Charter).
26. The exclusive ownership of motorways, roads and local roads serves to satisfy the public's transport needs by allowing everyone to use the infrastructure in a free and normal manner and for the purposes for which they are intended, provided that they do so within the limits of the regulations governing road traffic and under the conditions laid down by the Road Law (§ 19 (1) of this Act). At the same time, the possibility of general use of motorways, roads and local roads is one of the limits of the ownership rights of their owners: they are obliged to examine, maintain and correct their communications (Section 9 (3) and (6) of the Road Transport Act) without, however, having the possibility of regulating who and to what extent uses such communications. They are also responsible for certain cases of damage (Section 27 of the Road Transport Act). In this context, the Constitutional Court has repeatedly stated that the status of municipalities as owners of infrastructure is very specific - they do not have the right to regulate traffic in any way and thus affect the possible negative consequences of such operations [e.g., the findings of point 2.2 (II) of 4.2.2016 (N 25 / 80 of the SbNU 299) and point 4.1 / 11 of the Official Journal of the European Union (N 8 / 64 of the SbNU 77)].
27. The obligation of municipalities and regions as self-governing corporations and the State to take care of local communications and roads and ensure that such communications are safe for users is not in itself contradictory with constitutional order because the Charter explicitly provides for such an option in the case of municipalities (Article 11 (2) and (3) of the Charter already referred to). Similarly, this applies to regions (such as "designated legal persons' within the meaning of Article 11 (2) of the Charter), as the regions have the same legal character as municipalities (they are territorial autonomous bodies pursuant to Articles 99 and 100 (1) of the Constitution). The ownership of municipalities, regions and the State on local roads, roads and motorways is therefore based on Article 11 (2) of the Charter and is therefore of a specific nature as it serves to ensure the public interest. For municipalities and counties, it contains primarily the obligations [finding sp. zn. I. ÚS 2315 / 15 of 12.4.2016 (N 64 / 81 SbNU 99)].
The exercise of the municipality's ownership right to local roads
28. According to the contested provision, the municipality as owner had to give its prior consent to the connection of the neighbouring property to local communications. This is about the use of a private-law institution for a relationship which does not correspond to typical private-law ratios: the municipality is a public-law corporation which is designed to take care of the universal development of its territory and the needs of its citizens, as well as to protect the public interest in the performance of its tasks [Paragraph 2 (2) of Act No. 128 / 2000 Coll., on municipalities (municipal establishment), as amended by Act No. 313 / 2002 Coll.]. Although local communications are the property of municipalities which cannot, however, be treated as ordinary owners (§ 1012 of Act No. 89 / 2012 Coll., Civil Code), i.e. within the limits of the legal order, treat them arbitrarily and exclude others from this. On the contrary, it is their job to ensure the general use of communications.
29. In this respect, it was stated in the literature that the granting of consent to the connection of communications by the municipality was rather an exercise of competence in the protection of the relevant public interest in the operation of a public-service establishment which corresponds in substance to the binding opinion of the institution concerned, rather than to the exercise of property rights (Vedral, J. Some cases of the use of private-law institutes in public law. ASPI, 2011. LIT37153CZ). However, the Constitutional Court concluded that, in the case of the contested provision, there is no doubt about the intention of the legislator to construct the assent as a private law institute: the linguistic expression of § 10 (4) (b) of the Road Act, as amended by 30 December 2015, is clear and its amendment made by Act No 268 / 2015 Coll. also. Thus, there is no reason to deviate from the literal wording of the legal provision in the light of the conclusions of sp. zn.
30. In granting the consent of the municipality it is therefore the exercise of the right of ownership, but in carrying out the public task. The Constitutional Court in the finds sp. zn. III. ÚS 495 / 02 of 4.3.2004 (N 33 / 32 SbNU 303) and sp. zn. I. ÚS 125 / 10 of 1.9.2010 (N 180 / 58 SbNU 579) concluded that, even in cases where the State or the municipality acts as a participant in a private legal relationship governed by private law, its status could not be further identified as an individual. Even in such relations, the State does not have a genuine autonomous will, its conduct must always be governed by law, even if the State represents other entities under its authority. Therefore, when assessing the position of a State in such relations, the main dimension of the State in which it performs its principal function, namely State power, cannot be fully abstract from the second. This conclusion will then also apply to municipalities that are holders of constitutionally guaranteed public (self-governing) power. In this respect, municipalities as road owners cannot act arbitrarily or discriminately.
(31) Another question, however, is whether the exercise of the municipality's right of ownership of local communications in the form of non-consent to the connection must be subject to judicial review. The exercise of the right of ownership, even if aimed at ensuring the general use of communication, falls within the constitutionally guaranteed self-administration of the municipality (the administration of its legally reserved property) and the intervention in its exercise is only possible in the manner provided for by the law (Article 101 (4) of the Constitution). The Act did not provide for such a method by 30 December 2015, neither in § 10 (4) (b) of the Road Act nor in the provisions relating thereto. There is also a practical problem of selecting the review criteria. The exercise of the municipality's right of ownership is to correspond to the interests of the municipality or its citizens. It is the representatives of the municipality and its citizens who must consider what procedure or combination of procedures best meets the needs of the municipality and its citizens, and they are primarily responsible for this decision making. The competition and conflicts between the various interests of citizens and the entire community must be dealt with primarily by political means - the state authorities are not even adapted for such a comprehensive assessment of issues of a predominantly political nature.
32. Thus, the requirement of the existence of judicial protection against the non-consent does not stem from the very nature of the exercise of the municipality's right of ownership to safeguard the general interest. The need for judicial protection can result only from specific constitutional guarantees or sub-constitutional arrangements. In this respect, for example, it is possible to defend itself in court against the discriminatory behaviour of the municipality in not giving its consent where the owner of the real estate adjacent to the road is thereby affected by natural law. However, this is for the assessment of a matter of no direct relevance, since the finding of discriminatory behaviour in the granting of consent does not replace that consent and therefore does not address the question raised by the proposing Regional Court.
33. The Regional Court found the grounds for the need for judicial control in Article 36 (1) of the Charter, since it considered its absence to be a denial of justice and Article 11 of the Charter, since it considered the failure to give consent to it to intervene in the ownership of the owner of the immovable property adjacent to local communications.
Opposition with Article 36 of the Charter of Fundamental Rights and Freedoms
34. The Charter of Fundamental Rights and Freedoms in Article 36 (1) guarantees judicial or other protection provided for in a manner to protect "its right," which is broader than the terms "fundamental rights and freedoms under the Charter" (Article 36 (2) of the Charter) or "fundamental rights and freedoms" (Article 4 of the Constitution). Guarantee under Article 36 (1) The Charter therefore serves to protect substantive rights, including of a sub-constitutional nature (for example, the difference in the nature of the protected right is reflected in the intensity of the constitutional review in the procedure for a constitutional complaint).
35. Therefore, the very fact that there is no judicial protection against non-consent is not relevant to the conclusion on constitutionality (therefore "denied judicial justice"), but whether it must exist. It is therefore necessary that first there be a material right of the owner of the neighbouring property to connect to the communication and consequently the right to prior consent of the municipality to the connection. This right of the owner of the neighbouring property from § 10 (4) (b) of the Road Act, as effective until 30 December 2015, did not apply.
36. Thus, the need for judicial control not to grant consent to the connection does not result from the amendment of the Road Act itself and does not result from the right to judicial or other protection under Article 36 (1) of the Charter.
37. Guarantee for the possibility of seeking the right laid down in accordance with the procedure laid down in Article 36 (1) The Charter is supplemented by special arrangements for judicial control of public administration. Article 36 (2) The Charter is valid for those who "claim to have been shortened on their rights by a decision of a public authority may refer the court to examine the legality of such a decision, unless otherwise provided for by the law. However, the review of decisions relating to fundamental rights and freedoms under the Charter shall not be excluded from the jurisdiction of the court. 'For the application of the second sentence of Article 36 (2) The Charter is essential in the case of this Decision (a) if it is indeed fundamental rights and freedoms under the Charter, (b) if it is a specific fundamental right or freedom, not just a general one, everything affecting the concept (the fundamental rights and freedoms as such, the democratic order of fundamental rights and freedoms, social rights or political rights as a certain category), (c) if it is a decision by a public authority [it is an autonomous concept of constitutional law, cf. point 20 of the judgment of 16 December 2014 (N 228 / 75 of the SbNU 539; 14 / 2015 Coll.)], (d) the fundamental rights and freedoms will actually be applicable [Fr.
38. Those constitutional guarantees therefore require the legislator to introduce judicial control over decisions of public authorities from which decisions concerning fundamental rights and freedoms under the Charter will not be excluded. The constitutional guarantee of the review of decisions of public authorities shall be fulfilled where an act deemed to be a decision within the meaning of Article 36 (2): The Charter can be reviewed by the Court (regardless of the choice of a specific procedure or even a branch of the judiciary). The very way in which a review is conducted before an administrative court (or finding a right before a civil court) falls, in general, under the guarantee of seeking the right established by the procedure. The procedure provided for must not be restrictive enough to make the exercise of that right in fact impossible. Similarly, by its procedure, the court may not extend the exceptions to judicial review foreseen by law [exceptiones non sunt extendendae, cf. the finding sp. zn. III. ÚS 1526 / 12 of 19.2.2013 (N 31 / 68 CollNU 335)], or accept the exceptions expressly prohibited by the second sentence of Article 36 (2) of the Charter.
39. The contested provision corresponds to the requirements of Article 36 (2) of the Charter. If there is a question of the review of the decision authorising the connection, this is clearly subject to judicial review - the application of the Regional Court to initiate proceedings sp. zn. As regards the review of the failure to give consent, it is necessary to base the above definition of the nature of the exercise of the municipality's right of ownership of local communications. Non-consent is not a decision within the meaning of Article 36 (2) of the Charter (or any other intervention, if any other intervention should fall under the safeguards of this Article), since it is not legally designed in form and does not constitute, alter, revoke or determine the subjective rights of the property owners from the position of superior.
Opposition with Article 11 of the Charter of Fundamental Rights and Freedoms
40. Another reason for the unconstitutionality was the appellant's undue interference in the constitutionally guaranteed property ownership right of the owner of the property adjacent to the local communication, consisting of the impossibility of its connection to the communication without the consent of the municipality. However, the right to connect real estate to local communications does not result from Article 11 of the Charter.
41. The Constitutional Court has already repeatedly stated the content of the guarantees of Article 11 of the Charter: the Charter itself does not contain a definition of the content of ownership. The second sentence of Article 11 (1) of the Charter refers to a law which sets out the specific content of the property right, which is even different in the nuances - given the specificities of the individual legal order in defining the specific content of the traditional ownership triad - frequently. The Act is intended to determine the content of the property law as a general legal category and the Charter constitutes a constitutional guarantee guaranteeing the unity of the contents of that category [Findings sp. zn.
42. The constitutional rule defining the content of the property right does not specify the content of the property right itself, but provides it with a reference to the amendment of the Civil Code and, in conjunction with it, the specific content of the property right can be acquired as a category protected by constitutional order. Article 1012 of the Civil Code of 2012 (formerly Section 123 of Act No. 40 / 1964 Coll., Civil Code, as amended by 1.1.1992), provides that the owner has the "right to dispose of his property within the limits of the legal order and to exclude other persons from it. It shall be prohibited for the owner to cause, in addition to the appropriate circumstances, serious interference with the rights of other persons, as well as to carry out acts the primary purpose of which is to harass or harm other persons. 'The substance of the property right regulation is, as stated above, the limitation of its implementation within the limits of the law (cf. quoted finding sp. zn. Pl. ÚS 34 / 03).
43. Protection of Article 11 The Charter is therefore not a property as such (its value expression and status stability), but itself a property right to it [finding sp. zn. Pl. ÚS 33 / 15 of 7.11.2017 (422 / 2017 Coll.)], expressed usually in the form of the so-called ownership triad, partial rights of the owner, which are the right to hold, use and enjoy and dispose of the property [cf. sp. zn. Pl. ÚS 27 / 16 of 18.12.2018 (51 / 2019 Coll.) or sp.
44. In the light of the arguments set out above, the provisions of Article 11 (4) of the Charter, which does not imply any inadmissibility of any restriction on the right of ownership or, where appropriate, without compensation, should also be examined. Intervention into property law is to be understood only as a restriction which excludes the exercise of property rights either entirely or to an extent that significantly prevents the exercise of ownership rights in one of its constituents.
45. However, this is not the case in the case of the contested § 10 (4) (b) of the Road Act, in its version effective until 30 December 2015, because the owner of the immovable property adjacent to local communications is not the contested contested provision of the law in its property law (the possibility to hold, use and dispose of the property) in any way limited (in fact, even the Supreme Court concluded that the property right does not imply a private right of access to adjacent land communications, cf. In fact, it is limited only in the possibility of using real estate beyond the current state, i.e. typically in the possibility of improving the use of land by its connection to local communications via a raid. However rational (typically to improve accessibility and thus increase value) is not a law that follows from Article 11 of the Charter. The establishment of legal conditions for obtaining such a right is not a restriction on the right of ownership guaranteed by constitutional order.
46. The decision to allow access under the contested § 10 (4) (b) of the Road Act, as effective until 30 December 2015, has only affected the direct connection of the property to neighbouring local communications, road or motorway by establishing a convention or raid. This is without prejudice to and without prejudice to the right of general use of communications (except for the regulation of rules for access to the road, cf. § 23 of Act No. 361 / 2000 Coll., on road traffic and on amendments to certain laws (Road Traffic Act), as amended). In addition, the Road Act foresees, within the framework of the categorisation of roads, that the connection of individual real estate with other roads serves without further purpose communication (cf. Section 7 of this Act).
47. This is also the answer to the appellant's view that the need for the owner's consent to the connection of the adjacent property is discriminatory for the applicant to be connected in the sense that the consent was only required for local communications (roads and motorways), but not for communication purpose. If the legal purpose of the special-purpose communications is to connect individual properties, or to connect with other roads, while local communications mainly serve local transport within the territory of the municipality (Section 6 of the Road Act), the setting of different conditions for connection to communication of different categories is rational. It is not about the different protection of ownership of owners of special-purpose and other communications, as their positions are not comparable. The need for the consent of local road owners to the direct connection of the property thus corresponds to their obligation to allow the general use of the communication and the maintenance of the communication for that purpose. They can thus influence the number of direct exits and raids where the nature of the communication for which legal and economic responsibility does not allow. By contrast, a dedicated communication, which is publicly available and directly connected to the adjacent plot, may arise either with the consent of its owner or of its legal predecessor, or for compensation where the consent is not given [page II of the ÚS 268 / 06 of 9.1.2008 (N 2 / 48 CollNU 9)].
Conclusion
48. For those reasons, the Constitutional Court concluded that the contested provision was not in accordance with the constitutional order, namely Articles 36 (1) and (2) and 11 of the Charter of Fundamental Rights and Freedoms. Therefore, he rejected the proposal for the declaration of non-constitutionality of Article 10 (4) (b) of Act No. 13 / 1997 Coll., on roads, as effective by 30 December 2015, pursuant to Article 70 (2) of the Law on the Constitutional Court.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no. 186 / 2019 Coll., on the application to declare unconstitutional Article 10 (4) (b) of Act No. 13 / 1997 Coll., on roads |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 25.07.2019 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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