The Constitutional Court found no 225 / 2024 Coll.
Findings of the Constitutional Court sp. zn. Pl. ÚS 32 / 23 concerning the application for annulment of certain provisions of Act No. 115 / 2001 Coll., on the promotion of sport, as amended, certain provisions of Act No. 234 / 2014 Coll., on the Civil Service, as amended, and of Act No. 49 / 2023 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the office of representatives of state power and certain state bodies and judges and Members of the European Parliament, as amended, and Act No. 49 / 2023 Coll., amending Act No. 115 / 2001 Coll., on the promotion of sport, as amended, and certain other laws
Valid
The Constitutional Tribunal found
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225
FIND
The Constitutional Court
of 28 May 2024
sp. zn. Pl. ÚS 32 / 23 concerning the proposal to repeal certain provisions of Act No. 115 / 2001 Coll., on the promotion of sport, as amended, certain provisions of Act No. 234 / 2014 Coll., on Civil Service, as amended, certain provisions of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the office of representatives of state power and of certain state authorities and judges and Members of the European Parliament, as amended, and Act No. 49 / 2023 Coll., amending Act No. 115 / 2001 Coll., on the promotion of sport, as amended, and certain other laws
On behalf of the Republic
In the Official Journal of the European Union, p. 1.
as follows:
Motion denied.
Reasons
Summary of the subject matter
1. The International Federation of Football Associations (hereinafter referred to as "FIFA") considers its Statutes to be "FIFA Institute and World Football" (quoted according to WEATHERHILL, Stephen. Principles and Practice in EU Sports Law. Oxford: OUP, 2017, p. 10). The statement attentively expresses the belief of the sport environment that sports rules and regulations are to function globally and thus be as independent as possible from the states. Finally, the assessment of offside in the football match should take place according to the same criteria for the Stephen and Horka Derby Derby in the Olomouc District Championship and the World Cup finals between France and Argentina. According to this concept, sport is to be ideally guided by an autonomous set of legal standards (so-called sports law or lex sport), which shows sufficient degree of substantive and procedural legitimacy to be applied without the independence of national and, if possible, international law. However, even the greatest defenders of this approach cannot ignore the reality of the state's continuing power monopoly. On the contrary, regulation in the field of sport is not possible in many ways without the intervention of national law. The result, combining the requirements for projecting numerous specific elements of sport into particular national laws, often causes difficult to resolve contradictions (HAMERIK, Pavel, in more detail. Sports law: The search for a balance between a specific sport arrangement and a valid right. Prague: Institute of State and Law, 2012, in particular p. 5 to 17).
2. The matter under consideration fits into the presented comprehensive scheme and brings it to constitutional law. The legislature prepared and approved an amendment to Act No. 115 / 2001 Coll., on the Promotion of Sport, as amended, (hereinafter referred to as the "ZPS" or "Act on the Promotion of Sport"), which was intended, inter alia, to streamline the management structure of the previously established National Sports Agency (hereinafter referred to as "the Agency") and, in particular, to improve the conditions for combating doping in the Czech Republic, to legally establish the existence of the National Arbitration Court for Sport (hereinafter referred to as "the Court for Sport"). According to the author, the changes contained in the amendment are contrary to the practice of the Czech legal order and violate the chosen fundamental rights (in particular the autonomy of sports organisations) and the principles guaranteed by the constitutional order.
Text of the contested provisions
3. The contested provisions of the Act on the promotion of sport are worded as follows:
Scope of the Agency
(1) Agency
...
(f) establish a contribution organisation for the purpose of fulfilling commitments under the International Convention against Doping in Sports (4); The Agency may also decide to amend the contribution organisation of which it is the founder under this Act. The measure by which the Agency decides to change the contribution organisation shall include an addition to the instrument of incorporation or, where appropriate, the instrument of incorporation of the newly created contribution organisation,
(g) ensures that the anti-doping programme is implemented through the contribution organisation referred to in point (f);
(h) organise and control the implementation of the anti-doping programme;
(i) issue a programme to prevent the effects of sports competitions and other negative phenomena in sport, in particular the manifestations of racism, all types and forms of discrimination, doping and violence;
...
(5) The Agency issues an ethical code governing staff and other representatives of the Agency in their activities. The Code also includes rules of contact between staff and representatives of the Agency and representatives of sports organisations and other sports actors. A conscious serious breach of the Code of Ethics shall be regarded as a breach of the service of a civil servant and a serious breach of the obligation of the employee.
President of the Agency, Vice-President of the Agency and Council
(1) The Council has three members. The Chairman of the Agency shall be a member of the Board and its Chairman. The Vice-President of the Agency shall be a member of the Board and its Vice-President.
(2) The President of the Agency, the Vice-President of the Agency and a member of the Board shall be appointed and dismissed by the Government on a proposal from the Prime Minister. The term of office of the President of the Agency, Vice-President of the Agency and member of the Board shall be 5 years. The President of the Agency, the Vice-President of the Agency and a member of the Board may be re-appointed for a maximum of two consecutive terms of office.
(3) The President of the Agency, the Vice-President of the Agency or a member of the Board may be appointed as a person whose knowledge, experience and moral qualities are a precondition for him to hold his office properly and who:
a) is a national of the Czech Republic,
(b) reach the age of 30 years;
(c) is fully competent;
(d) is fair; for the purposes of this Act, a natural person who has been convicted of a criminal offence in a final manner shall not be deemed to be righteous unless he is treated as if he were not convicted,
(e) has a university degree obtained by study in the Master's study programme;
(f) has at least 5 years of experience in the management function; and
(g) has experience in the organisation and administration of sport.
(4) The function of the President of the Agency, the Vice-President of the Agency or a member of the Board is incompatible with that of the President of the Republic, a Member or a Senator, a Member of the European Parliament, a Member of the Government, a Member of the Supreme Audit Office, a member of the Banking Board of the Czech National Bank, the Ombudsman and a member of the Authority of the Authority, with the exception of the function of a non-authorised member of the representative. The President of the Agency, the Vice-President of the Agency or a member of the Board shall not serve as a political party or political movement.
(5) The function of the President of the Agency, the Vice-President of the Agency or a member of the Board is incompatible with the exercise of the duties of a member of the managing, supervisory or supervisory body of entrepreneurs, the exercise of any function in a sports organisation and the pursuit of business, advisory or brokering activities and other gainful activities in the field of sport, with the exception of that of scientific, publicity or pedagogical activities. The participation of the President of the Agency, the Vice-President of the Agency or a member of the Board in a company engaged in sport shall be excluded.
(6) The function of the President of the Agency, the Vice-President of the Agency or a member of the Board is hereby terminated
(a) the expiry of the term of office;
(b) appeals; the appeal must be justified,
(c) giving up the function; or
(d) death or declaration of death.
(7) The President of the Agency shall be regarded as Head of Staff and as a Service Authority under the Civil Service Act; Decisions on civil service matters, with the exception of decisions on admission to service, appointment to the post of superior, removal from the post of representative or termination of service, may be delegated to the Vice-President of the Agency. The President of the Agency, the Vice-President of the Agency or a member of the Board shall be entitled to give orders to a civil servant under the Civil Service Act. The President of the Agency or Vice-President of the Agency shall act on behalf of the State in employment relations.
(8) The functions of the President of the Agency, the Vice-President of the Agency or a member of the Board are public functions7); remuneration is governed by special legislation8). The President of the Agency, the Vice-President of the Agency or a member of the Board may not work for the Agency in a fundamental employment relationship.
Activities of the Board
(1) The President of the Agency shall convene and manage the meetings of the Board. The President of the Agency or Vice-President of the Agency shall convene a meeting of the Board without undue delay even if at least two members of the Board or Supervisory Committee so request by their resolution.
(2) The Council is quorum if all members participate. The Council shall act by a majority of its members.
(3) The Council approves the resolution
(a) the draft plan referred to in Article 3a (1) (a);
(b) the draft action plan for the promotion of sport referred to in Article 3a (1) (n);
(c) the draft budget of the Agency and the Agency's final account;
(d) financial instruments for promoting sport, in particular subsidy programmes and calls for subsidies from the State budget and rules for contributions from the State budget, under the conditions laid down in the budget rules and in accordance with the chapter and budget of the Agency chapter in the State budget;
(e) the Rules of Procedure of the Council;
(f) the Agency's code of ethics; and
(g) other documents if they reserve it; This shall be without prejudice to the decision of the Agency in the procedure for granting or withdrawing the subsidy.
(4) The Council is empowered by resolution to impose tasks on the President of the Agency within the scope of the Agency under Article 3a, with the exception of decisions by the Agency in the procedure for granting or withdrawing the subsidy.
(5) The Council is responsible for carrying out the duties of the State's organisational body and the Chapter Manager in accordance with the budget regular 9).
(6) Minutes shall be taken from the Board meeting, which shall clearly show the votes of each member.
Supervisory Board
(1) The Supervisory Committee has 10 members. The Supervisory Committee shall elect a chairman and two Vice-Presidents from among its members.
(2) Half of the members of the Supervisory Committee are elected and withdrawn by the Chamber of Deputies of the Parliament of the Czech Republic; Half of the members of the Supervisory Committee are elected and withdrawn by the Senate of the Parliament of the Czech Republic. The term of office of a member of the Supervisory Committee shall be 4 years.
(3) A member of the Supervisory Committee may be appointed a person who:
a) is a national of the Czech Republic,
(b) is fully arbitrary; and
(c) is fair; for the purposes of this Act, a natural person who has been convicted of a criminal offence in a final manner shall not be considered to be righteous unless he or she is regarded as not being convicted.
(4) Membership of the Supervisory Committee is incompatible with the function of President of the Agency, Vice-President of the Agency or member of the Board. A member of the Supervisory Committee may not work for the Agency in a fundamental employment relationship or in a service relationship.
(5) The function of a member of the Supervisory Board is hereby terminated
(a) the expiry of the term of office;
(b) appeals; the appeal must be justified,
(c) giving up the function; or
(d) death or declaration of death.
(6) Membership of the Supervisory Board is a public function performed free of charge; the member of the Supervisory Board shall be entitled to reimbursement of travel expenses related to the performance of his duties, to the same extent as the staff member, and the place of permanent residence of the member of the Supervisory Board shall be deemed to be a regular place of work for the purposes of travel compensation.
Activities of the Supervisory Commission
(1) The Supervisory Committee shall monitor the Agency's activities and management; the other bodies of the Agency provide it with synergies. Members of the Supervisory Committee shall be entitled to consult all documents and records of the Agency.
(2) The Chairman of the Supervisory Board shall convene and manage the meetings of the Supervisory Board. In his absence, he shall be represented by the Vice-President of the Supervisory Commission. The meetings of the Supervisory Committee shall be held at least four times a year. The Chairman of the Supervisory Committee or Vice-Chair of the Supervisory Committee shall convene a meeting of the Supervisory Committee without undue delay even if at least five members of the Supervisory Committee so request.
(3) The Supervisory Committee shall decide by a majority of its members.
(4) The Supervisory Committee shall approve its Rules of Procedure.
(5) The chairman and vice-chairmen of the Supervisory Committee are entitled to attend the meetings of the Board.
(6) The President of the Agency, the Vice-President of the Agency or a member of the Board is required to appear in person at a meeting of the Supervisory Board if the Supervisory Board so requests, unless serious reasons prevent it from doing so, and to provide the information and explanations requested, provided that the provision of such information does not obstruct legal reasons.
(7) When identifying deficiencies in the Agency's activities or management, the Supervisory Committee shall adopt a resolution on the deficiencies. The Chairman of the Supervisory Committee shall inform the Council and the Prime Minister of the adoption of the resolution and its reasons without undue delay.
(8) The Supervisory Committee may adopt a resolution on the complaint to appeal the President of the Agency, the Vice-President of the Agency or a member of the Board. The Chairman of the Supervisory Board shall, without undue delay, initiate a reasoned appeal to the Prime Minister.
...
National Arbitration Court for Sport
(1) The Agency establishes a National Arbitration Court for Sport (hereinafter referred to as "the Court"). The seat of the Tribunal shall be that of the Agency. The Court of First Instance shall perform the tasks entrusted to it independently of the Agency and shall not be bound by the Agency's instructions.
(2) The Court of First Instance shall have jurisdiction in disputes relating to doping as well as in disputes relating to disciplinary offences of sportsmen or members of sports organisations, provided that they so request, in accordance with their internal rules. The Statute of the Court of First Instance (hereinafter referred to as the Statute) sets out the details.
(3) The Bureau of the Court of First Instance, composed of five members, shall be the President of the Court of First Instance, the First and Second Vice-President of the Court of First Instance and the two members of the Bureau of the Court of First Instance, hereinafter referred to as "the Bureau of the Court of First Instance '. The office of a member of the Bureau of the Court of First Instance shall be an honorary and unpaid office. The term of office of all the members of the Bureau of the Tribunal shall be six years.
(4) The members of the Bureau of the Court of First Instance are appointed by the Board of the Agency. A member of the Bureau of the Court of First Instance must have completed a university degree in the Master's study programme in the field of law and practice in the field of sports law of at least 3 years.
(5) The members of the Bureau of the Court of First Instance are independent in the performance of their duties and their impartiality must not be jeopardised. Members of the Bureau of the Court of First Instance may not be dismissed against their will except for a serious breach of the Statute. All members of the Bureau of the Tribunal may be reappointed.
(6) The procedure before the Court of First Instance is not an arbitration procedure within the meaning of Act No. 216 / 1994 Coll., on arbitration and on the enforcement of arbitration findings, as amended. At the same time, the Court of First Instance is not a permanent arbitral tribunal within the meaning of Article 13 of Act No. 216 / 1994 Coll., on Arbitration and on the Enforcement of Arbitration Findings, as amended, and the proceedings before the institutions of the Court of First Instance are not in the nature of decisions of the Arbitration Commission of the Association.
(7) The Court of First Instance is not a separate entity, does not keep separate accounts and does not manage separately. All accounts relating to the activities of the Court of First Instance shall be managed by the Agency.
Arguments of the appellant
4. On the one hand, the appellant imports the inconstitutionality of the entire Act (Amendments) No 49 / 2023 Coll. amending Act No. 115 / 2001 Coll., on the Promotion of Sport, as amended, and some other laws, since the manner in which it was adopted infringed the principles of the conformal norm expressed primarily in the Constitutional Court's finding of 15.2.2007 sp. zn. In the event of a failure of this objection, the appellant shall, in substance, define itself against the above-mentioned provisions of the amended SPS, which it considers to be contrary to Articles 1 (1), 81, 90 and 91 (1) of the Constitution, Article 20 (3), (4) and Article 36 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '). The parts of the SPS concerned also oppose Article 11 of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as" the Convention'), Article 22 (1), (2) of the International Covenant on Civil and Political Rights and Article 7 to 12 of the International Convention against Doping in Sport (hereinafter referred to as "the Convention against Doping ').
Opposition against the establishment of the National Arbitration Court for Sport (§ 3g ZPS)
5. The Constitution provides that the judicial authority is exercised by independent courts and is to provide the protection of rights in accordance with Article 90 of the Constitution. The system of courts defines Article 91 (1) taxiously However, it is not possible to establish specific courts, with some of these courts being called otherwise. Of course, there are other bodies in the company that are referred to as courts (e.g. arbitration courts), but they are not state bodies.
6. The Sport Tribunal is established on the basis of the contested provision and is part of the Agency as an administrative body. He's not an umpire. In accordance with its scope as defined in § 3g (2) of the SPS, it provides protection for rights. Even if the law does not formally denote it, for the reasons set out above, it must necessarily be a state institution and a special court, thereby exceeding the exhaustive list in Article 91 (1) of the Constitution. The Court of Sport must act in accordance with a procedural law against participants. Since it is part of an administrative office, this Regulation must be an administrative order. But it is not designed to act as a judicial authority. In addition, the alleged independence of the Sport Tribunal is denied, as the party concerned could have brought a breakdown to the President of the Agency against its decision - the legal conclusions of its decisions would then be binding on the Sport Tribunal. In this way, the construction is clearly not legislative and denies the rule of law under Article 1 (1) of the Constitution.
7. The right to join freely, enshrined in Article 20 of the Charter, naturally also concerns sports associations. Sport can be supported by the State in various ways, but it is not a state activity. The settled case-law of the Constitutional Court interprets Article 20 (4) The Charter by guaranteeing the right of association to associations and associations, with the exception of extreme cases of autonomy of internal affairs, which is protected against State interference, including courts (e.g. resolution of 3.4.2007 sp. zn. IV. ÚS 111 / 07). The establishment of the Sport Tribunal violates the principle of autonomy. It is not for the State to establish similar bodies, in addition to the very indefinite scope of "doping disputes, as well as disputes concerning disciplinary offences by athletes or members of sports organisations'. The State may also provide for certain prohibitions in the field of sport, but it must do so in the form of offences or offences which can be dealt with by general courts. Similarly, it is certainly possible to intervene in the activities of associations and associations, but it can only happen under the conditions foreseen in Article 20 (3) of the Charter (legal form, necessity in a democratic society, for protection in the provisions defined - and strictly interpreted - values). The requirements in question are not met by the Court of First Instance: the fulfilment of the criteria of necessity is lacking and it is not clear which values are to be protected. In addition to the Charter, the need to fulfil the defined conditions also follows the above mentioned international agreements.
8. Furthermore, the activity of the Sport Tribunal infringes the right of an individual to hear the case before the ordinary court and the prohibition of discrimination. As has already been explained, the Sport Tribunal may, within its jurisdiction, decide on disciplinary delicacies and, therefore, the rights and obligations of the participants, but it is not the ordinary court foreseen in Article 91 (1) of the Constitution. The State allows alternative dispute resolution in arbitration proceedings, but this is subject to prior agreement of the parties (e.g. in the form of an arbitration agreement). However, the contested provision only requires the approval of associations, not individual members as potential participants in the future. In addition, the Clave can give its consent even after joining the Clave. Fundamental rights are individual and cannot be restricted by collective decisions.
9. The content of the provision is contrary to Article 7 to 12 of the Convention against Doping, which as a ratified international treaty is part of the legal order of the Czech Republic. The provisions in question confer only a coordinating role on the States in combating doping, i.e. financial support for controls and testing. The fight against doping is not expected to be taken over by states; this task is to be done by self-governing sports associations.
Opposition against the Agency's competence to implement, organise and control the anti-doping programme [Sections 3a (1) (f) to (i) of the SPS]
10. The fight against doping and influencing competition results is certainly necessary, but it is still part of the sport activity. The existence of rules and programmes to combat doping is not in itself an unconstitutional one, but it is a violation of constitutional order if the State is doing so in the form of public intervention.
11. The appellant's legal arguments on this point almost literally overlap with the objections raised against the establishment of the Court of First Instance, so the Constitutional Court will not recap them again.
Opposition against the Agency's possibility of issuing an Ethics Code (Section 3a (5) of the SPS)
12. The State issues legal standards by which it may impose obligations. It's not his job to create morals or ethical rules. The Agency, as an administrative office, shall also be entitled to issue internal rules of service or as an employer. However, the legislator chose the concept of an ethical code that does not foresee the rule of law and is not a source of law. Obligations cannot be established in a dubious normative manner as this is contrary to the rule of law (Article 1 (1) of the Constitution) and Article 79 (3) of the Constitution.
Opposition against the establishment of the Board and Supervisory Committee of the Agency (Sections 3b to 3e of the SPS)
13. The law introduces the concept of "advice," but it does not show what the subject is and what its meaning is. The Council is not defined in Section 2 of the SPS, which contains basic concepts, and should therefore correspond to the general meaning of the concept used in the legal order (principle of non-contradiction). That is not the case, however, the ZPS does not provide advice as the executive body of the Agency.
14. The structure contained in the ZPS deviates from public administration to private administration, the establishment of a board and supervisory commission rather corresponds to the organisation of entities according to Act No. 90 / 2012 Coll., on Commercial corporations and cooperatives (Act on Commercial Corporations), as amended. The Agency was a typical administrative authority until the revised amendment, but it has now created a "cat-dog," which ignores the differences between the central administration body, the other central administration body and entities of the grant agency of the Czech Republic. The government as a whole should be responsible for the executive power of the Chamber of Deputies, not for the oversight of the Supervisory Commission of Parliament's chambers.
15. The contested provisions infringe the principle of the rule of law (Article 1 (1) of the Constitution), the principle of division of power and the position of the Government as the supreme executive body (Article 67 (1) of the Constitution), since, as a result, the chambers of Parliament were empowered by the establishment of the Board and the Supervisory Committee of the Management and Control of the Agency as an administrative body.
Opposition against the method of adoption of Act No. 49 / 2023 Coll.
16. In addition to the content of the selected provisions, the applicant also disputes the process of adopting Act No. 49 / 2023 Coll. In addition to the repeal of the entire Act (Amendment) No. 49 / 2023 Coll. it proposes the abolition of all the provisions of the Act (amended) of the Act on the Support of Sport, Act No. 234 / 2014 Coll., on the Civil Service, as amended, and Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of the State Government and of certain state bodies and judges and Members of the European Parliament, as amended.
17. The bill was tabled on 20 July 2022 as a parliamentary proposal in particular by Members of the Government Coalition. Paragraph 3g of the ZPS was not part of the proposal, it appeared only between 1 and 2 reading in the form of a comprehensive amendment tabled in the framework of the Committee on Science, Education, Culture, Youth and Sports, the author being the same Member (Karel Haas of the ODS) who represented the group of Members responsible for submitting the bill. By this procedure, the Government was unable to express such a fundamental change to the original draft law (cf. Article 44 (1) of the Constitution) and, by "skipping" the first reading, Members were also reduced to their rights. The appellant is convinced that the amendment in question had a complex character and had absolutely changed the original draft law. This practice is prohibited by the above-mentioned finding of sp. zn.
Proceedings before the Constitutional Court
18. The Constitutional Court has, in accordance with Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, sent a proposal for the opening of proceedings for observations to the Chamber of Deputies, the Senate, the Government and the Ombudsman.
Observations of the Chamber of Deputies
19. The Chamber of Deputies reviewed the circumstances leading to the adoption of Act No. 49 / 2023 Coll. in the Chamber of Deputies. The proposal was discussed as House Press No. 270, the final text was approved on 14 December 2022 with a ratio of 107 votes for, no one opposed, 61 abstentions. After the Senate returned the bill with amendments to the Chamber of Deputies, the proposal was approved by the Chamber of Deputies as amended by the Senate amendments (99 votes in favour, 43 against, 6 abstentions).
20. The Guarantee Committee adopted a set of amendments on the proposal (House Press No. 270 / 5). The Chamber of Deputies does not agree with the appellant's assertion that this was a comprehensive amendment, so it was not formally marked anywhere and neither was the text of the original bill replaced materially. The amendment package in question was supported by all the members of the guarantee committee, the changes largely responded to the Government's position on the original bill (House Press No. 270 / 1) and reflected discussions and suggestions from representatives of the sports environment and all the parliamentary clubs.
21. The House of Deputies refers to the stenoprotocols of the negotiations as regards the appellant's objections. It follows that the differences were known to Members. Since they approved the bill, it can be assumed that it was not considered unconstitutional. The impulse to set up the Sport Court came from a sports environment. As regards the collective management and control body of the Agency, the expression refers to the Government's position on the draft law according to which such a model is possible.
Statement by the Senate
22. The Senate's observations summarise the course of the legislative process. The Committee on Education, Science, Culture, Human Rights and Petitions, as a guarantee committee, adopted, after discussion, an amendment aimed at making the exercise of the powers of the Sport Tribunal conditional on disciplinary offences of the applications of the sports organisations concerned. The proposal was widely debated in plenary, but the debate was primarily about the financing of sport, and not about the issues that the draftsman contended with, perhaps the unconstitutional nature of the bill was not objected. In the vote, the Senate returned the bill to the Chamber of Deputies as amended (59 votes in favour, 2 abstentions).
Government observations
23. The Government has informed the Constitutional Court that it has decided not to exercise its right to intervene.
The Ombudsman's observations
24. The Ombudsman informed the Constitutional Court that he had decided not to exercise his right to intervene.
Unsolicited opinion of the National Sports Agency and the Antidoping Committee of the Czech Republic
(administration of amice curiae)
25. The Constitutional Court received unsolicited comments from the Agency and the Antidoping Committee of the Czech Republic (hereinafter referred to as the "Antidoping Committee"). Neither party has the status of party or intervener within the meaning of Section 28 of the Constitutional Court Act. The Rules of Procedure before the Constitutional Court do not govern amici curiae. In the current case, the Constitutional Court has decided not only to recap the opinion sent but to continue to work with the arguments used in it. As is apparent from the current overview of the relevant facts, the agencies are affected by the contested legal provisions. Similarly, the Antidoping Committee, established by the Agency in the form of a contribution organisation, is concerned with fulfilling the commitments of the Anti-Doping Convention. Moreover, it cannot be overlooked that the adopted law was submitted as a parliamentary initiative. The statements of the Chamber of Deputies and the Senate naturally reflect the course of the legislative process in the relevant chambers rather than explain the reasons for the parliamentary majority voting for the bill. As the Government has decided not to intervene, the submission sent by amici curiae is, in principle, the only basis which, in the proceedings, defends in detail the constitutionality of the contested provisions. Last but not least, taking into account the opinion of the players in relation to the sport environment seems meaningful in a situation where the initiative to draft the law came from sports organisations (cf. the Chamber of Deputies and the stenoprotocols to discuss the bill on its soil).
Rejection of objections against the competence of the National Sports Agency to implement, organise and control the anti-doping programme [§ 3a (1) (f) to (i) of the ZPS].
26. The statement rejects the appellant's assertion that, under the Doping Convention, the fight against Doping should be within the competence of sports associations. On the contrary, pursuant to Article 3 to 5 of this International Treaty, they are Member States which undertake to ensure compliance with the Convention against Doping and the World Anti-Doping Code (hereinafter referred to as the Code). This was adopted by the World Anti-Doping Agency in 2003 and, while States cannot be its signatories, they have committed themselves formally to it by ratifying the Doping Convention. Member States are not obliged to delegate the obligation to act in accordance with the two documents to sports associations, the way in which the commitments of the Anti-Doping Convention are fulfilled is left to their discretion.
27. According to the Code, the national anti-doping organisation is to be operationally independent of both the sports environment and the government. In the Czech Republic, the Antidoping Committee acts as such entity. It only implements the anti-doping policy defined in the contested provisions of § 3a (1) (f) to (i) of the SPS, not the Agency, as imported by the appellant. The Anti-Doping Committee is functionally independent of the Agency, and only the Agency, as a contribution organisation, approves its budget annually. However, the State has been providing the budget for the Anti-Doping Committee since its establishment, without ever calling it into question (previously through the Ministry of Education). The Antidoping Committee publishes the Directive on control and penalty of doping in sport in the Czech Republic (hereinafter referred to as the "Directive '), which is binding on all sports organisations and in the sports environment of moving entities. It can be agreed with the author that the Directive limits the autonomy of sports associations in the field of doping, but this intervention naturally results from the above-mentioned international obligations of the Czech Republic.
28. The text of the conflicted provisions is part of the Act on the promotion of sport since the adoption of the amendment by Act No. 178 / 2019 Coll., the revised amendment No. 49 / 2023 Coll. only moved them to other parts of the ZPS and recalculated them. In addition, since the start of its effectiveness in 2001, the ZPS has included similar arrangements for the fight against doping, with the difference that the Ministry of Education performed the same function as the Agency. The solution used in the Czech Republic is no different from the one applied in other analogue countries, and the connection of the anti-doping organization with the state works for example in Slovakia, Poland, Germany or France.
Rejection of objections against the establishment of the National Arbitration Court for Sport (§ 3g ZPS)
29. The position in the introduction states that the appellant's argument generally ignores the grounds for the establishment of the Court of First Instance for sport, and at the same time it is clearly based on the ignorance of the facts and the specifics of the sport environment. Most objections merely express opposition to the rule of law, but it cannot be inferred from its unconstitutional nature.
30. The Code in Article 8.1 requires an anti-doping organisation to provide a fair hearing before a fair, impartial and operationally independent decision-making body to the person accused of violating the anti-doping rules. The Sports Court meets all the requirements. Its position is also enshrined in the Directive, pursuant to Article 8.1 of the Directive, the Anti-Doping Committee transferred part of its liability (first instance proceedings) to the Court of First Instance. The proceedings before the Court of First Instance are not governed by the rules of procedure, as the appellant claims wrong (nor can it be brought against its decision to the President of the Agency because the Court of First Instance is not its body), but by the Statute of the National Arbitration Court for Sport (hereinafter referred to as "Statut ', available at https: / / nsa.gov.cz / 2023 / 02 / 230215 _ NRSS _ Statut.pdf) and the Rules of Procedure of the National Arbitration for Sport (hereinafter referred to as" CC% 81-r% CC% 8Ca% CC / nsa.gov.cz / wp-content / uploads / 2023 / 02 / 230215 _ NRSS _ Regulation'. Similar rules apply where the Court of First Instance decides in the second instance as a so-called national anti-doping appeal body. Article 13.2.2 The Directive confirms the independence and impartiality of the Court of Sports.
31. The reason for the establishment of the Sport Tribunal was to better ensure the protection of the fundamental rights of athletes. In fact, pending the establishment of the body under discussion, the first-stage proceedings for doping disputes were carried out by the disciplinary bodies of the relevant sports association. This practice has produced very unsatisfactory results in terms of the international documents appointed, in terms of the content of decisions, sanctions, as well as the principles of impartiality and independence of decision-makers. No sports organisation opposed the formation of the Sport Tribunal, but they were dominant in bearing the burden of often very complex disputes.
32. The Sport Court has a completely specific position and the procedure before it is not similar to the procedure before any other authority in the Czech Republic. This is based on the special position of sport itself, as well as efforts to harmonise the global fight against doping, formally reflected by the existence of international documents cited many times. It can therefore be argued that the Sport Court is a sui generis court established to fulfil the international obligations of the Czech Republic in the field of doping. It is not a permanent arbitration panel, it is not the nature of the arbitration panel's decision, it is not a court within the meaning of Article 91 (1) of the Constitution. It can be likened to the College on the section for the protection of classified information, which the Constitutional Court, in its decision of 26.4.2005 sp. zn. Pl. ÚS 11 / 04 (N 89 / 37 SbNU 207; 220 / 2005 Coll.) also referred to as the authority of sui generis. Given its exceptional nature, neither is the designation of a court misleading. This is a similar situation to that of the Sports Arbitration Court (hereinafter referred to as "CAS ') in Lausanne, which is also not a court, but only a body for arbitration settlement of sport disputes. The model for the Court of Sport and the rules of procedure before it was the CAS and its procedural rules. By the way, it serves as an appeal against almost all decisions of the Court of Sports.
33. As regards objections to the mandatorial competence of the Court of Sport in doping cases, the Czech Republic has committed itself internationally (see above) to combating it, this is a matter for public health. The autonomy of sports associations is not affected, as sports organisations lack autonomy in this area for reasons already explained. Furthermore, the Court of Sport may decide on disciplinary delicacies of athletes or members of sports organisations if they so request. In this optional jurisdiction, amici curiae sees nothing particularly unconstitutional.
Repulsion of objections against the possibility of the National Sports Agency issuing the Code of Ethics (§ 3a (5) of the SPS)
34. The statement does not share the appellant's belief that the Code of Ethics is not a service provision under the Civil Service Act or an internal employer's provision under the Labour Code. The legal effects of the Code of Ethics in this respect are sufficiently regulated by Section 3 (5) of the SPS. Ethics codes reflect growing public demands for public administration.
Repayment of objections against the establishment of the Board and Supervisory Commission of the National Sports Agency (§ 3b to 3e ZPS)
35. In the appellant's argument, the constitutional dimension is merely an objection to a breach of the division of power. However, the establishment of a Supervisory Commission does not jeopardise this principle because it strengthens parliamentary control of public administration. It is not problematic if the representatives of the people and the authority with higher legitimacy participate in the control and activity of the body which decides on significant subsidies from the state budget.
36. The appellant does not agree with the introduction of private legal elements into the public administration organisation. However, this procedure does not in itself constitute a violation of the constitutional order, the distinction between the two areas is complicated and there is no agreement in the teaching. Moreover, collective bodies are also common within public bodies. The claim about the Council's unclear position can be refuted by reference to the legal regulation of its composition and scope, the content of which defines everything sufficiently. There is no ambiguity about the administrative decision-making framework within the Agency - at first instance, the Agency decides on the decomposition, and its chairman decides on the decomposition. Similarly, the constitutional dimension lacks an objection criticising the Agency's failure to fit into the existing concept of administrative bodies, because constitutional order does not prohibit legislators from choosing another (other) model.
Replication of the appellant
37. The parties' comments and opinions of the Agency and the Antidoping Committee were forwarded by the Constitutional Court to the appellant. Its replica responds solely to the content of the administration of amici curiae.
38. In relation to the Convention against Doping, the appellant persists in the assertion that this document allows the State to combat Doping only by coordinating action. Where the Antidoping Committee is a contributory organisation, it follows from the nature of these bodies that they are dependent on their founder.
39. In establishing the Sport Tribunal, the specificities of the sport environment cannot outweigh the restriction of the taxation list of courts in Article 91 (1) of the Constitution. If the legislature wanted to introduce specific rules on doping disputes, it could have introduced the regulation of special procedural rights into the civil Code, or opted for a form of a special procedure in the administrative judiciary, including, where appropriate, qualified alternates. In principle, the admission that the Sport Court is a sui generis court confirms the appellant's conviction that it is a constitutionally unacceptable special court. The referring of the opinion of the College on the protection of classified information is also eloquent, as the Constitutional Court's finding was abolished.
40. The Opinion states that the Sport Tribunal, as part of the Administrative Body (Agency), does not comply with the administrative rules and the appeal body against the decision of the Sport Tribunal is the CAS. Amicus curiae, however, does not explain which law this is supposed to come from. There is no exclusion of the Agency and the Court of Sport from the administrative order. It is also not possible for an appeal against the decision of the Czech state body to be decided by an arbitration tribunal in another state. The appellant therefore further objects to a breach of the sovereignty of the Czech Republic (Article 1 (1) of the Constitution).
Abandonment of oral proceedings
41. In accordance with Article 44 of the Constitutional Court Act, as amended, the Constitutional Court decided on a case without holding an oral hearing because it could not be expected to further clarify the case.
Active procedural legitimacy and management conditions
42. The Constitutional Court is responsible for discussing the application for annulment of the contested provisions of the Act on the promotion of sport and of the entire Act No. 49 / 2023 Coll. The appellant is actively authorised to submit the application and the contested provisions are a valid part of the legal order. The Constitutional Court could therefore proceed to a substantive examination of the application.
Review of the consistency of the adoption of Act No. 49 / 2023 Coll.
43. In accordance with Article 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court dealt first and foremost with whether the contested legal provisions were adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure.
44. Arguments of the author contradicts the way the bill is adopted. As a result, in a possible petition, it proposes to repeal the entire adopted law (amendment) No 49 / 2023 Coll. together with all the provisions of the laws which amended it (cf. the header of the finding). The appellant's procedure corresponds to the decision-making practice of the Constitutional Court. According to this amendment, the law does not have a separate existence, as its content becomes part of the text of amended laws. However, the exceptions are those where the question of legislative competence, competence or procedure of adopting an amending law, which is extraordinary with the content of the amended law [finding of 1.10.2019 sp. zn.
45. The only objection by the appellant to the unconstitutional nature of the adoption of the contested law is that the essential part of the law entered into the legislative process only in the form of a so-called comprehensive amendment tabled by the resolution of the Guarantee Committee on Science, Education, Culture, Youth and Sports. This procedure, according to the appellant, damages the constitutionally guaranteed rights of both the Government and the Members, which is due to the reference found by Mr Pl. ÚS 77 / 06.
46. The Constitutional Court does not share the appellant's beliefs. First of all, it seems questionable whether the proposed amendment can be called 'comprehensive' at all. In fact, although this term is normally used in the doctrine and case law of the local court (cf.), there is no agreement on its content. It is probably most appropriate to follow the definition used on the House of Deputies' website, according to which the comprehensive amendment constitutes a "fundamentally revised original bill '(Legislative process in the Chamber of Deputies, available at https: / / www.psp.cz / sqw / hp.sqw? k = 173). The assessment of the degree of principle of reprocessing is necessarily subjective in this concept. As the appellant itself admits, in the present case, the contested amendment stated' only 'one new institute - the Sport Court - in the rest contained substantive and legislative amendments to the provisions already contained in the original draft law. Indeed, in the debate during the second and third reading, some Members (including Mr Radek Vondráček, acting as the author) used the adjective" complex' in the amendment, on the contrary, the author of the amendment, Karel Haas, expressly rejected this term and preferred the term "comprehensive amendment '(cf. stenographic registration 48th meeting of 14.12.2022, available at https: / / www.psp.cz / eknih / 2021ps / stenprot / 048schuz / 48-2.html). The idea of using a comprehensive amendment is also rejected by the Chamber of Deputies in its observations.
47. On the basis of the standard grammatical interpretation of the phrase "fundamentally revised 'and the comparison with the cases of complex amendments examined in previous findings (cf. this point of the finding below), the Constitutional Court considers that the case at hand was not a model case of the institute under discussion. Even after the amendment, the draft law concerned the same issue and the provisions governing the Sport Court were only a partial (albeit important) section of the entire amendment. However, the appellant's objection would also be unfounded if the Constitutional Court were to suggest otherwise. As indicated above, the Constitutional Court has dealt with the issue of the constitutionality (model) of complex amendments in the past several times, and contrary to the appellant's assertion, it has never concluded that this practice would be contrary to the constitutional rules of the legislative process, even in the reference point in point (b) of Article 5 (1) of Directive 77 / 06 (cf. paragraph 57 containing only a reference to recommendations on how the government should proceed according to the doctrine). The Constitutional Court considers that it would be superfluous to repeat here the extensive passages from previous decisions explaining the approach of the present court [cf. First argument in the finding of 6.10.2010 sp. zn. Pl. ÚS 39 / 08 (N 207 / 59 SbNU 3; 294 / 2010 Sb.), paragraphs 39 to 42, then e.g. the finding of 30.6.2015 sp. pl. ÚS 21 / 14 (N 122 / 77 SbNU 759; 199 / 2015 Sb.), paragraphs 134 to 136 and other caselaw cited therein].
48. The Constitutional Court verified the course of the legislative process of Law No 49 / 2023 Coll. and beyond the appellant's objections, based on the observations received by the parties and publicly available resources (cf. Summary of the discussion and approval of the draft law in both chambers of Parliament, available at https: / / www.psp.cz / sqw / historie.sqw? T = 270 & O = 9). It did not find any constitutional defects on the basis of the evidence, and it can therefore be concluded that Law No 49 / 2023 Coll. was adopted in a constitutionally consistent manner. He took on 1 April 2023, including the contested provisions.
A substantive review of the contested provisions of the Law on the Promotion of Sport
49. In the Czech Republic, more or less regularly a large proportion of the population is sports (see Sports Statistics). Praha: Czech Statistical Office, 2021, p. 20 to 25). Most do so in an organised manner in the position of athletes (§ 2 (3) of the ZPS) registered in sports organisations (§ 2 (2) of the ZPS). Under the wings of 14763 sports organisations, associated with 75 national sports federations, more than 4.1 million athletes are registered in total (data from the so-called Sports Register, available at https: / / redstriksportu.cz / dashboard, many individuals are of course registered in more sports organisations).
50. The basic elements of the structure of the sports environment are sports clubs (sections), in the legal form they are dominant associations within the meaning of § 214 (1) of the Civil Code. The local sports club (e.g. the Olomouc Association of Orientation Runners) is usually a member of the National Sports Federation (e.g. the Czech Association of Orientation Sports), which has the legal form of the Federal Association of Associations (§ 214 (2) of the Civil Code). In addition, the club may be part of the subsidiary associations (§ 228 (1) of the Civil Code) of the National Sports Federation (e.g. ČSOS Hanácká Region - Regional Association of Orientation Sports of the Olomouc Region). In addition, there is the possibility of connecting sports clubs and national sports federations to other associations of the Czech Union of Sport or the Czech Olympic Committee. In this somewhat opaque knitting, the rights and obligations of athletes are not always clearly defined, and it is often not even clear which level of associations (except local) the athlete is actually a member. However, these "irregularities' do not have a greater impact on the constitutional review, and the Constitutional Court therefore does not take them further into account except for exceptions.
51. The membership of athletes in sports organisations (associations) fulfils the right of association protected by Article 20 of the Charter. This right has an individual and collective dimension [EXCELLENT, Stephen. Article 20 (Association law). Charter of Fundamental Rights and Freedoms - commentary. Praha: C. H. Beck, 2021, block 5]. The first of these expresses the right to establish an individual with other specific groups (here specifically associations), or to participate in the activities of the group (s) already established (cf. Section 214 (1) of the Civil Code). The basic principle of an individual concept is voluntary - entry or exit from a particular society must be possible only on the basis of an individual's will (Article 215 (1) of the Civil Code), which should be clearly stated (e.g. by application, on the contrary, the "spontaneous" formation of membership is not generally permissible, see the judgment of the Supreme Court of 30 May 2018, sp. zn. 29 Cdo 2721 / 2018). However, in the case of the exercise of sports activity, compliance with this principle is weakened. In fact, national sports federations have a monopoly over the organisation of sports competitions or competitions, and if a recreational athlete intends to compete with others in an organised manner, he can only do so realistically as a member of one of the relevant associations (cf. Legal status of professional athletes and professional sports contracts. Praha: C. H. Beck, 2022, p. 13 to 14). The voluntary membership of the association is even more doubtful among professional athletes, since without participation in competitions conditional on membership of the association, it loses the opportunity to earn a profit (by analogy, judgment of the European Court of Human Rights of 2 October 2018 Mutu and Pechstein against Switzerland, Complaints No 40575 / 10 and 67474 / 10, § 113). On the contrary, the case-law of the Supreme Court states that membership of the association as a condition for participation in a particular (albeit monopoly) sport competition does not infringe the principle of voluntary nature, since it is not a legal requirement and individuals are not prevented from organising their own races (resolution of the Supreme Court of 8.12.2021 sp. zn. 27 Cdo. 3842 / 2020, paragraphs 35 to 37). Despite this disagreement, in the subsequent review (pseudo), the voluntary nature of sports associations is seen.
52. The collective dimension of the grouping right consists of the right of the grouping (association) to establish and exist, the fundamental principle of its operation being, having regard to the principle of separation of the association from the State (cf. Article 20 (4) of the Charter), a requirement for membership (federal autonomy) in which the State is entitled to intervene only in the necessary cases [finding of 12.12.2006 sp. zn. I. ÚS 90 / 06 (N 223 / 43 SbNU 497), paragraph 12]. By violating the federal autonomy of sports organisations, the appellant is largely justifying the unconstitutionality of the factually contested provisions of the SPS. It does so both in relation to the nature and powers of the Sport Tribunal (§ 3g of the SPS) and the selected powers of the Agency [§ 3a (1) (f) to (i) of the SPS] and the objections raised below are settled in that order.
Review of the constitutionality of the National Arbitration Court for Sport and its powers (§ 3g ZPS)
53. The main part of the proposal is defined against the establishment of the Sport Tribunal in the SPS. The objections can be divided into two headings. The first attacks the institutional nature of the institution. The appellant considers the Court of Sport to be a state institution which is intended to be a court, but which is not listed in the exhaustive list of the system of general courts in Article 91 (1) of the Constitution. It is therefore an organ created in breach of the Constitution. Secondly, the appellant does not agree with the factual scope of the Sport Tribunal set up in Paragraph 3g (2) of the SPS. The circuits are to a certain extent interlinked, but they have a separate basis, and if the first of them were to be met, the second review would become pointless. The Constitutional Court will therefore settle both lines separately.
54. Before the review itself, the Constitutional Court considers it important to state that the Court of First Instance for Sport was not established on the basis of an authorisation in § 3g of the SPS. The Agency was set up in 2022 and was legally established in 2021 by the amended Articles 8.1.1 and 13.2.2 of the Directive. Thus, at least in relation to anti-doping disputes, its operation was not subject to legal authorisation. Paragraph 3g of the ZPS aimed rather at specifying the position of the Sport Tribunal in relation to other parts of the Czech legal order (cf. below). However, the relevant provisions of the Directive cannot be repealed by the Constitutional Court because the appellant did not challenge them. However, even if it did so, the Constitutional Court would not be competent to abolish them, since the Directive does not constitute another law under Article 87 (1) (b) of the Constitution [analogous to the finding of 18 December 2018 sp. zn. The Antidoping Committee, as a contributory organisation, lacks the power to issue secondary legislation (and contrario Article 79 (3) of the Constitution), so the Directive can only be considered as an internal (parafiscal) regulatory act (KNAPP, Viktor. Law theory. Praha: C. H. Beck, 1995, p. 52). The Constitutional Court, of course, is unable to predict and does not intend to speculate whether, or how, after the annulment of § 3g of the SPS, the Sport Court would continue to act. It merely draws attention to the uniqueness of the situation in which even a satisfactory decision by the Constitutional Court would not formally bring about any change in the legal relations in question.
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Regulation Information
| Citation | The Constitutional Court found no 225 / 2024 Coll., sp. zn. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 25.07.2024 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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