The Constitutional Court found no 210 / 2005 Coll.
The Constitutional Court found of 22 March 2005 on the application for the annulment of the generally binding Prostějova Decree No 8 / 2003 on compensation for environmental damage in the capture of public green in the property of Prostějov
Valid
The Constitutional Tribunal found
Text versions:
30.05.2005
210
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court ruled on 22 March 2005 in plenary composed of JUDr. Stanislav Balík, JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří Mucha, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav Excellent and JUDr. Eliška Wagner (Judge of the Rapporteur) in the application by the Minister of the Interior of Mgr. František Bublan to the abolition of the generally binding decree of Prostějova City No. 8 / 2003 on compensation for environmental damage to public green in the property of Prostějova,
as follows:
The general binding Decree of Prostějov No 8 / 2003 on compensation for environmental damage in the acquisition of public green in the property of Prostějov is repealed for the contradiction with Article 10 (c) of the Act on Municipality interpreted in accordance with Article 11 (5) of the Charter of Fundamental Rights and Freedoms on the day of the publication of this finding in the Collection of Laws.
Reasons
By a proposal of 16 November 2004, fulfilling both the content and formal requirements of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the "Law on the Constitutional Court '), the Minister of the Interior seeks the annulment of the generally binding Decree of the City of Prostějova No. 8 / 2003 on compensation for environmental damage in the occupation of public green in the property of the City of Prostějov for its contradiction with the law.
The quoted Decree became effective on 1 January 2004. By measure dated 12.10.2004 No MS-1655 / 2-2004, the Ministry of the Interior initiated an administrative procedure to suspend the effectiveness of this legislation. The decision to suspend the application of the legislation cited on 12.10.2004 No. MS-1655 / 2- 2004 was delivered to the city of Prostějov on 1.11.2004. Since the City of Prostějov did not remedy, the appellant submitted to the Constitutional Court an application pursuant to Article 87 (1) (b) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 64 (2) (g) of the Law on the Constitutional Court for the annulment of this Decree. The text of the general binding decree quoted is as follows:
GENERAL OBLIGATIONS No 8 / 2003
on compensation for environmental damage in the occupation of public green in the City of Prostějov
On 18.11.2003, in accordance with the provisions of § 10 (c) and § 84 (2) (i) of Act No. 128 / 2000 Coll., on Municipality (municipal establishment), as amended, the Municipality of Prostějov issued this general binding decree.
Subject matter
(1) The City of Prostějov, by this generally binding decree, provides, in order to protect and develop public green in the property of the city of Prostějov, for compensation for environmental damage in the occupation of public green and for the felling of timber grown outside the forest owned by the city of Prostějov.
(2) This generally binding decree also sets out the details of the compensation for environmental damage, in particular the amount of compensation, its maturity and the method of payment.
Definition of certain terms
According to this general binding decree:
(a) public greenery publicly accessible on land owned by the city of Prostějov, in particular all lawns, including beds, as well as individually growing trees;
(b) any activity in the field of public green that will lead to the permanent removal of the lawn or other public green in connection with the construction or establishment of, in particular, storage, parking, entry, advertising areas and other areas,
(c) timber growing outside the forest of any timber owned by the city of Prostějov growing on the property of Prostějov;
d) Green City Manager Prostějov or its authorised user or person with whom the city of Prostějov as owner of the land or its authorised user enters into a green maintenance agreement,
(e) compensation for environmental damage, the financial compensation for the required take-up of public green or the felling of timber owned by the city of Prostějov.
Amount of compensation for environmental damage
(1) The compensation for environmental damage in the collection of public green is set at CZK 250 for each and every 1 m2 of public green.
(2) The compensation for environmental damage when cutting wood growing outside the forest is set at CZK 5,000 for each wood.
Maturity and method of payment of the environmental compensation
(1) Any person at whose request the competent authority of Prostějov has approved the lease or sale of land for a purpose linked to the capture of public green shall pay compensation for environmental damage at the appropriate amount before the conclusion of the lease or purchase contract. If the compensation for environmental damage is not paid to the city of Prostějov, the lease or purchase contract will not be concluded. The environmental damage compensation for the acquisition of public green is not part of the rent on land or the purchase price of land when the land is purchased.
(2) Everyone in whose interest an application for permission to cut wood growing outside the forest will pay compensation for environmental damage of CZK 5,000 for each wood. After this amount has been paid, the Department of City Property Management shall, on behalf of the owner of the city's land, request permission from the State Administration to cut down the timber growing outside the forest. In the event that a decision not to allow felling of timber outside the forest is given by the State authority, the compensation paid shall be reimbursed to the person who paid it within 1 month of the date of the acquisition of the decision.
(3) Compensation for environmental damage may be paid
(a) by transfer without cash from an account held with the bank to the relevant account of the city of Prostějov;
(b) cash
1. by means of a money institution or postal licence holder for the relevant account of the city of Prostějov;
2. staff entrusted with the city of Prostějov receive cash payments; the staff member is obliged to issue a certificate for the payment received.
(4) The date of payment of the compensation for environmental damage shall be deemed to be:
(a) in the case of cash transfers from a bank account, the date on which the amount was indicated;
(b) in the case of cash payments, the date on which the bank, the holder of the postal licence or the employee authorised by the City of Prostějov accepted or took over the amount.
Common provisions
(1) Continuous monitoring of compliance with this decree is provided by the employees of the city of Prostějov in the Department of City Property Management, the Department of Municipal Services and the Environmental Department of the Municipal Office in Prostějov.
(2) This general binding decree is without prejudice to the rights and obligations laid down in the specific legislation2).
Efficacy
This generally binding decree shall take effect on 1 January 2004.
1) Paragraph 8 (1) of Act No. 114 / 1992 Coll., on Nature and Landscape Conservation, as amended
2) e.g. Act No. 114 / 1992 Coll., on Nature and Landscape Conservation, as amended, Decree No. 395 / 1992 Coll., implementing certain provisions of the Czech National Council Act No. 114 / 1992 Coll., on Nature and Landscape Conservation
In its submission, the appellant submits that the Decree in question is contrary to the law because it sets out obligations (prohibitions) without a legal basis and beyond the separate jurisdiction of the municipality, which is contrary to Articles 2 (3) and 4 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) and Articles 2 (4) and 104 (3) of the Constitution. In particular, it argues that no legal authorisation is provided for in any law that would give the municipality the possibility of adjusting the issue of compensation for environmental damage by a binding decree, that is to say, the municipality regulates matters beyond its own competence in the decree cited. The appellant also points out that the definition contained in the Decree ("environmental damage '," timber growing outside the forest') differs from the legal definitions of the terms. As regards the provisions of Article 3 (1) and (2) of the Decree, the appellant states that a law has not yet been adopted which makes it mandatory to calculate the environmental damage and therefore the municipality cannot, in this case, adjust the compensation for the environmental damage caused by the competent authority. It also points out that, in a generally binding decree, the municipality cannot lay down the terms and conditions of a private relationship, nor can it, in addition to being empowered by law, impose administrative charges or civil compensation. In view of this, the Minister for the Interior proposes that, under the heading of the decree cited, the Constitutional Court's findings be annulled.
The party to the proceedings, Prostějov City, commented on the proposal of the Minister of the Interior in that he disagrees with its arguments, since it considers that the adoption of the Decree did not exceed the legal provisions laid down by the Municipality Act. On the specific objections of the appellant, it states that, although the term "environmental damage 'is defined in Act No. 17 / 1992 Coll., on the environment, as amended, but this alone cannot mean that, when using this phrase, it cannot be given any other broader or otherwise specified content, since in a particular case the decree in question uses it as a specific specification of the title of the decree, which is intended to characterise its subject matter and content, and that it no longer specified in its text. Similarly, it considers that the concept of" felling of timber "is referred to in Act No. 114 / 1992 Coll., on the conservation of nature and landscape, as amended, as being a completely general concept, which is logical if we see felling of timber as a human activity and not a natural activity that goes beyond the human will. It further states that the abovementioned decree did not infringe Article 2 (4) of the Constitution or Article 4 (1) of the Charter, since that decree was issued in a legally foreseeable form and within the limits of the authority which is legally empowered to do so, and thus regulates the relations between the territorial authority and the population that lives within the territorial authority, which are relations, respectively, which may differ in their content within the meaning of the relationship between the citizen - state, citizen - municipality. Nor does the provision of Article 104 (3) of the Constitution infringe the provision of Article 104 (3) of the Constitution as it was issued under the provisions of § 35 (1) of the Act No. 128 / 2000 Coll., on municipalities (municipal establishment), as amended, when this decree authorises the municipality to manage matters which are in the interest of the municipality and its citizens. In the view of the City of Prostějov, the appellant's argument of intervention in private law cannot be upheld, since this objection does not support the law or the philosophy of the law of the Czech Republic, when, as an example to support this argument, it must be noted that the municipality has the right, in the context of the declaration of intent to sell or lease the property belonging to the municipality, to lay down different conditions which may make the conclusion of the contract in question conditional upon the conclusion of the relevant contract, when the price may not be the only criterion. The so-called intention to sell or rent is an act of public law, and if it were to accede to the philosophy stated by the appellant, this would be unconstitutional. The appellant's objection that the fixing of the compensation is in the form of an administrative charge does not, according to the City of Prostějov, support this objection in the interpretation of the concept, since it is a matter of setting a penential priority (probably" pecuniary') compensation instead of a restitution, when that payment is clearly assigned to a specific chapter of the municipality's budget, for which the public green development in the municipality is covered for the fees thus paid and supported by the bioflora. In view of that, the party proposes that the Constitutional Court reject the proposal of the Minister of Interior.
The Ombudsman stated on the invitation to the Constitutional Court whether he intends to intervene (Paragraph 69 (2) of the Law on the Constitutional Court) that he would not intervene.
The Constitutional Court, having noted the formal admissibility of the application, examined, within the meaning of Article 68 (2) of the Law on the Constitutional Court, whether the general binding decree was issued in a constitutional manner. The generally binding decree was duly adopted at the 12th session of the Prostějov City Council on 18 November 2003 by 26 votes in the presence of 30 representatives (out of 35), one abstention, three abstentions, one absent and four excused. It was posted on 28.11.2003 and married on 17.12.2003. The generally binding decree cited was therefore adopted by the authority empowered to do so [§ 12 (1), § 84 (2) (i), § 87 of Act No. 128 / 2000 Coll., as amended].
A further condition of the procedure under Paragraph 64 (2) of the Law on the Constitutional Court is also that the law under which the lawfulness and constitutionality of the contested law is assessed be annulled or that the law which the appellant contends to infringe does not expire or expire. In the present case, the Act No. 368 / 1992, as amended, was repealed in the course of the procedure on the submitted proposal and replaced with effect from 16 January 2005 by Act No. 634 / 2004 Coll., on administrative fees. However, this amendment does not affect the proposal.
The Constitutional Court has chosen the following test for the examination of the contested general binding decree:
1. Examination of the authority of the municipality to issue generally binding regulations.
2. An examination of the question whether the municipality was not outside the legal scope (ultra vires) when issuing a generally binding decree.
3. Solving the question of whether the municipality did not take advantage of the law conferred on it in issuing a generally binding decree.
4. Review of the contents of the decree in terms of "insanity" (unreasonabless).
It should be noted that the first two criteria are formal criteria, the other two relate to the content of the contested regulation itself, even though the latter two criteria show aspects of ultra vires (in the material sense).
Ad 1. By providing for Article 104 (3) of the Constitution, according to which councils may, within the limits of their competence, issue generally binding regulations, municipalities have been given the power to issue generally binding regulations. In this sense, the Constitutional Court follows on from the decision taken by the Constitutional Court in Case 5 / 99 ÚS 5 / 99, published under No 216 / 1999 Coll. and published in the Collection of finds and orders of the Constitutional Court ("the Reports of Decisions'), Volume 15, Found No 112. It follows that this standard of community creation must be seen as an original law.
Since the contested general binding decree was issued by the municipality's representative in the manner set out in point III of the present decision, it can be concluded that the municipality acted in a constitutionally consistent manner in exercising its powers.
Ad 2. By means of the abovementioned Article 104 (3) The Constitution for the purpose of determining the jurisdiction of municipalities to issue generally binding decrees is the provision of § 35 paragraph 3 (a) of Act No. 128 / 2000 Coll., on Municipality (municipal establishment). According to that provision, the municipality is governed by the law in the exercise of its separate competence (as defined in Paragraph 35 (1) of the Municipality Act) when issuing generally binding decrees. This legal order corresponds to the definition of the material areas in which the municipality is entitled to the original, i.e. without legal authorisation, in the true sense (finding sp. zn.
It follows from Section 10 (c) of the Municipality Act that the municipality is entitled to impose obligations under a general binding decree, inter alia, for the protection of the environment, greenery in the buildings and other public green (public green). This authority of the municipality, although in other areas of individual competence, reflected the finding of sp. zn. Pl. ÚS 4 / 2000, published under No 51 / 2001 Coll. and published in the ECR, Volume 20, Found No. 189.
Thus, where a municipality in the above-mentioned area issues a generally binding decree, such conduct cannot be considered to be ultra vires, in other words, the municipality is in such a case in a material area which has been entrusted by law to it under its own jurisdiction.
In the present case, the generally binding Decree on the determination of compensation for environmental damage in the occupation of public green and the felling of timber grown outside the forest owned by the city of Prostějov is the subject of the contested decree in order to protect and develop public green in the property of Prostějov.
If the appellant contends that the law does not contain a legal authorisation which would give the municipality the opportunity to adapt the matter to a generally binding decree, that is to say, that the City of Prostějov regulates matters outside its separate scope in a generally binding decree, its argument cannot be entirely accepted. It is clear from the above that the separate competence of the municipality is to impose environmental and specific obligations in relation to public green. From this point of view, it cannot be argued that the municipality would step out of the legal limits laid down for its legally defined separate competence in the field of the issuing of generally binding decrees, i.e. it cannot be argued without further ado that the municipality acted ultra vires in the exercise of its statutory powers.
Ad 3. The other question, however, is whether the municipality has abused the law conferred upon it a separate competence.
Abuse of this scope represents the exercise of power in a legally entrusted area by means of monitoring a purpose that is not subject to the law, by means of the second way of ignoring relevant considerations when taking decisions, or vice versa.
In the present case, the general purpose of the Decree was to protect and develop public green in the City of Prostějov, the means of which was to achieve this purpose was to fix "the compensation for environmental damage to the harvesting of public green and the felling of timber grown outside the forest owned by the City of Prostějov '(Article 1 (1) of the Ordinary Decree). In other words, while the Act [Paragraph 10 (c) of the Municipality Act] entrusts the municipality with the imposition of environmental and public green obligations, the content of these obligations cannot be determined by contravening the mandatory legal standards or constitutional order.
Although the decree calls the financial performance "compensation," it also provides that this "compensation for the acquisition of public green" is not part of the rent on land or part of the purchase price of land (Article 4 (1) of the contested general binding decree). Therefore, if it is not part of the contract, it is clear that it is a payment made to the municipality in order to safeguard its interest or the interest of its citizens who, in the view of the municipality - see its observations - benefit from the provision of that interest. Thus, the addressee of the standards contained in the generally binding decree is to pay the municipality by its nature a public levy in order to obtain the benefit it receives, even if it is not always a fully equivalent mutual benefit. Payment is to be made at one time. It follows from this characteristic that the payment foreseen by the contested general binding decree, which is referred to as a replacement by the decree itself, is to be regarded as a fee, however, from the nature of the established legal institute, which the Law (in this case Act No. 565 / 1990 Coll., on Local Charges, as amended) does not foresee (see the Dictionary of Public Law Czechoslovak, St. III, Brno 1934, p. 204, or M. Bakš et al., Financial Law, 3rd edition, C. H. Beck, Prague 2003, p. 21, 85, 195, 325).
The Constitutional Court adds to the above that Act No. 114 / 1992 Coll., on the Conservation of Nature and Landscape, as amended, foresees the issue of a special law in Paragraph 9 (3), which would provide for a levy on wood felling in the budget of the municipality. Since such a law has not yet been issued, there is no legal basis for the adjustment contained in the contested general binding decree.
Therefore, the obligation which the municipality has to impose within the framework of a factually defined separate competence within the meaning of Section 10 of the Municipality Act must be interpreted in such a way that the prohibition or order imposed does not conflict with mandatory legal standards or even constitutional order. In the present case, the restrictive interpretation of Section 10 of the Municipality Act stems mainly from Article 11 (5) of the Charter of Fundamental Rights and Freedoms, according to which taxes and charges can only be imposed by law. This law is the above mentioned Act No. 565 / 1990 Coll., on Local Charges, as amended. Thus, the municipality must not provide for new charges by a generally binding decree, even in the area of individual competence, such authorisation is only for the Parliament of the Czech Republic.
By introducing, to the extent that the municipality's separate competence, a legal institute - a charge, the contested general binding decree, it overlooked that its introduction was reserved only for the law, the municipality committed an abuse of its separate competence by taking into account, at the present time, the order of constitutional order, i.e. Article 11 (5) of the Charter in the application and interpretation of § 10 (c) of the Municipality Act.
In view of this finding, it considers The Constitutional Court considers it superfluous to address the other reservations raised by the appellant, as the finding itself must lead to the annulment of the general binding decree under appeal.
For the same reason it was no longer possible to apply the fourth step of the above test.
In view of the above, the Constitutional Court had no choice but to comply with the proposal of the Minister for the Interior and Prostějova City Decree No 8 / 2003 on compensation for environmental damage in respect of the acquisition of public green in the property of Prostějov without an oral order with the consent of the parties in full for its contradiction with Article 10 (c) of the Municipality Act interpreted in accordance with Article 11 (5) of the Charter of Fundamental Rights and Freedoms. The generally binding decree quoted will be repealed in its entirety on the date of publication of this finding in the Collection of Laws (Section 70 (1) of the Constitutional Court Act).
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No 210 / 2005 Coll., on the application for annulment of the generally binding Prostějova Decree No 8 / 2003 on compensation for environmental damage in the capture of public green in the property of Prostějov |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.05.2005 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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