The Constitutional Court found no 235 / 2018 Coll.
The Constitutional Court found of 11 September 2018 sp. zn.
Valid
235
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 24 / 17 on 11 September 2018 in plenary composed of the President of the Court of Pavel Rychetský and judges Jaroslav Fenyk, Josef Fialy, Jan Filip, Jaromír Jirsy, Jan Musil, Vladimir Sládeček, Radovan Suchánek, Kateřina Šimáčková, Vojtěho Šimíček, Milady Tomková (Judge of the Rapporteur), David Uhlír and Jiří Zemánek, on the proposal of the Supreme Administrative Court on the abolition of Act No. 361 / 2003 Coll., on the service ratio of the members of the Security Corps, as amended Act, Act No 362 / 2003 Coll.
as follows:
Paragraph 48 (2) of Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, as amended by Act No. 530 / 2005 Coll., amending Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, as amended, Act No. 362 / 2003 Coll., on the amendment of the laws relating to the adoption of the Law on the service of members of the Security Corps, as amended, Act No. 586 / 1992 Coll., on income taxes, as amended, and Act No. 153 / 1994 Coll., on the intelligence services of the Czech Republic, as amended, shall be repealed on 30 June 2019.
Reasons
Definition of the case
1. Pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended (hereinafter referred to as" the Law on the Constitutional Court'), the Supreme Administrative Court (hereinafter referred to as "the Law on the Constitutional Court ') submitted an application for annulment of Article 48 (2) of Act No. 361 / 2003 Coll., on the service ratio of members of the Security Councils, as amended by Act No. 530 / 2005 Coll. (hereinafter referred to as" the Law on the Service Ratio').
(2) The contested provision is as follows: "A national may not engage in any activity other than a service under this law; This restriction shall not apply to the cases referred to in Sections 29, 31 and 33 (a) and to other activities provided for by internal acts issued to the Security Board directors. ';
3. The appellant makes an application for annulment of the provision in question in connection with the appeal procedure of the applicant, who was dismissed from service by the Director of the Fire Rescue Corps of the City of Prague for business reasons (keeping accounts for the association of owners of the units of which the applicant is a member), in order to breach the above mentioned provision of the Law on the Service.
4. The appellant submits that the exemptions from the prohibition on gainful activity provided for in Articles 29, 31 and 33 (a) of the Law on the service relationship with the complainant do not fall. The procedure thus involved a dispute concerning the application of the derogation provided for by the law, but rather by the order of the Director General of the Fire Rescue Corps of the Czech Republic of 28.3.2013 for the implementation of § 48 (2) of Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, according to which Article 1 (1) (f) provides that the prohibition of gainful activity under Article 48 (2) of the Law on the service relationship does not apply to "the management of own property '. The Director of the Fire Department of the capital of Prague and the Municipal Court in Prague concluded that the applicant was not involved in the management of its own assets.
5. In proceedings before administrative courts, it is common ground that the applicant carried out that activity (keeping accounts). However, the appellant concludes that the way in which the applicant's gainful activity was prohibited is contrary to the constitutional rules and therefore proposes the annulment of the contested provision of the Law on Service.
Claim of the applicant
6. The unconstitutional nature of the contested provision is primarily seen by the appellant as contrary to the rule of law. The appellant submits that the restriction or prohibition on other gainful activities of members of the Security Corps, as enshrined in the contested provision, is a restriction of the fundamental right to freedom of choice of profession, the right to do business and to obtain the means for their living needs by working under Article 26 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '). According to Article 26 (2) of the Charter, this restriction is possible only by law, not by an internal act. Article 44 of the Charter and Article 4 (2) of the Charter also apply to the law.
7. According to the appellant, the contested provision containing powers for the directors of the relevant Security Corps to lay down the limits of the fundamental right to conduct business and to pursue the economic (gainful) activity of the legislator exceeded the constitutional limits for the delegation of standards pursuant to Article 79 (3) of the Constitution, in conjunction with Article 15 (1) of the Constitution. In fact, the Act does not provide for any basis or limits or framework in which the Director of the relevant Security Corps is to issue an implementing substatutory regulation, and is also empowered to regulate these issues by an internal management act which cannot even be regarded as a generally binding law. Thus, there has been a breach of the fundamental constitutional principle of a democratic rule of law guaranteeing the freedom of each individual, as set out in Article 2 (4) of the Constitution and Article 2 (3) of the Charter, that everyone can do what is not prohibited by law and no one must be forced to do what the law does not impose. Therefore, the limits of fundamental rights and freedoms must be regulated by law, which is adopted by a democratically elected Parliament in an open, transparent and verifiable legislative process, and not - compared to the quality of the law - by arbitral internal rules.
8. According to the appellant, the reservation of the law cannot be circumvented by the fact that the law annulates a certain basic law and provides the administrative authority with a blank check for possible softening of the prohibition, in no way limited to the scope of the addressees and the scope of the softening. It is only, and only, a service official who, by internal acts of procedure, that is, not by law, without any legal criteria, that is to say arbitrarily, defines the scope and conditions of the application of a constitutionally guaranteed fundamental right (in other words, its boundaries), even if it does so in general against a group of subordinate members. The applicant refers by analogy to the findings of sp. zn. Pl. ÚS 23 / 02 of 30.6.2004 (N 89 / 33 SbNU 353; 476 / 2004 Coll.) and sp. zn.
9. The appellant recalls that, pursuant to Paragraph 42 (1) (f) of the Law on the service relationship of members of the Security Corps, the infringement of the prohibition laid down in the contested provision (or prohibition resulting from an internal act of the Director of the Security Corps) is without further obligation, i.e. without any warning or warning and the possibility to remedy the adverse situation within a reasonable period of time. The legislation thus creates an unacceptable state of legal uncertainty for members of the security corps whose service is otherwise regulated in detail by law precisely in order to ensure that the performance of their service is predictable in terms of terms and duration and guaranteed by the State, also by providing judicial protection.
10. However, according to the appellant, the judicial protection cannot be fully implemented in the present case. Even if the administrative court were to disregard an internal order which is not a law and in accordance with Article 95 (1), The Constitution has assessed the matter only through the primacy of the law or law, the incriminated provision of the complainant is prohibited from other gainful activity without exception and the legal prohibition was violated by the complainant. According to the appellant, however, it would be a reverse of the role of the court and administrative body if judicial protection should depend on the application and interpretation of internal acts of proceedings which are not even legal. This could result in an infringement of Article 36 (2) of the Fine Charter, since the definition of the limits of the fundamental right or freedom in the internal law and the decision on whether they have been exceeded falls outside the jurisdiction of the judicial authority.
11. According to the appellant, there is also inequality between members of the Security Corps and other professions for which the Charter also admits, in Article 44, restrictions on the fundamental right to engage in other economic activities, namely judges, prosecutors, professional soldiers, civil servants or officials of local and local authorities. For these professions, the restrictions are specified by law in terms of scope and, where appropriate, the purpose of the restriction. In addition, due to the authorisation of the various directors of the security corps to modify the internal instructions, the applicant considers that the scope of the restrictions may vary even within the different security corps.
12. Another reason for unconstitutionality is that the contested provision for members of the Security Corps completely - at the level of the law - eliminates the fundamental right to business and other gainful activities. However, the Charter allows this right only to be restricted (Articles 26 (2) and 44 of the Charter), provided that its substance and meaning are maintained (Article 4 (4) of the Charter). The appellant recalls the previous legislation, which laid down clear exceptions to the prohibition of business or other gainful activity at the level of the law.
13. The appellant is aware that its constitutionally conformal interpretation takes precedence over the deregulation of the law, but such an interpretation has not been found without being beyond the limits of the imperative of binding law under Article 95 (2) of the Constitution. It therefore proposes the annulment of the contested provision on the date of the publication of the finding in the Collection of Laws.
14. In the light of the scope of the proposed deregulation, the appellant states that the application cannot be limited to a part of the provision defined by the words "and to other activities provided for by internal acts issued by the directors of the Security Corps', since even the possible removal of only that unconstitutional provision would maintain an unconstitutional consequence for the applicant in the sentence before the semicolon of the divestment of her service for the breach of the unconditional and complete prohibition of business and other gainful activity provided for in the first part of the contested provision. However, there would be an unconstitutionality consisting of the complete elimination of the fundamental right, which, according to the Charter, can only be restricted. The two parts of the contested provision of Paragraph 48 (2) of the Law on the Service Ratio (part of the sentence before the semicolon and part of the sentence after the semicolon) are, according to the appellant, unconstitutional in particular in combination with each other, and must also - if they are not abolished by the Constitutional Court - apply them to the case.
15. Similarly, the exclusion of part of the provision as defined by the words "this restriction does not apply to cases referred to in Sections 29, 31 and 33 (a) 'from the derogatory proposal is not, according to the appellant, possible; its retention in the legislation would lack any linguistic and normative meaning, since the part of the sentence cannot exist separately without the introductory part.
Observations of the parties and the intervener
16. The Constitutional Court requested observations from the parties and the intervener.
17. For the Chamber of Deputies, its President Jan Hamáček sent a statement on 13. 10. 2017, which briefly summarised the course of the legislative process of the adoption of the Act on the Service Ratio of Members of the Security Corps as well as Act No 530 / 2005 Coll., amending Act No. 361 / 2003 Coll., on the Service Ratio of Members of the Security Corps, as amended, Act No. 586 / 1992 Coll., as amended, and Act No. 153 / 1994 Coll., on the Intelligence Services of the Czech Republic, as amended, ("Act No. 530 / 2005 Coll."). Law 530 / 2005 Coll. changed the dictation of the contested provision to the present form. The statement also points out that the text of the contested provision was fully restated in the adoption of Law No 530 / 2005 Coll. on a proposal by Mr Peter Iblo mentioned in the summary of the amendments under point D. On the amendment, the rapporteur, Mr Pavel Severa, Minister of the Interior, recommended, however, to accept the amendment. Finally, the President of the Chamber of Deputies notes that Parliament has given its assent to the draft law through a constitutional procedure, the law has been signed by the relevant constitutional authorities and properly declared.
18. On 30 October 2017, the Senate received comments from its President Milan Štěch, who summarised the legislative process in the Senate in relation to both the Law on the Service Ratio of Members of the Security Corps and in relation to Act No 530 / 2005 Coll. and states that the Senate decided not to deal with the draft Act No 530 / 2005 Coll. and the bill was thus adopted. It also recalls the previous legislation of Act No. 186 / 1992 Coll., on the service relationship of members of the Police of the Czech Republic, as amended, in conjunction with § 10 (1) of Act No. 238 / 2000 Coll., on the Fire Department of the Czech Republic and on the amendment of certain laws, as well as the wording of § 48 (2) of the Act on the service relationship of members of the armed corps before the amendment, with at least a framework definition of the activities which persons in the relevant service relationship can carry out. The assessment of the constitutionality of the contested provision leaves it entirely to the Constitutional Court.
19. On 23 October 2017, the Government of the Czech Republic ("the Government") approved its entry into the proceedings before the Constitutional Court, proposed the rejection of the application and authorised the Minister of Interior to represent the Constitutional Court. It also authorised the Minister for Human Rights, Equal Opportunities and Legislation to make comments on the proposal, in cooperation with the Minister for the Interior.
20. On 15. 11. 2017, the Constitutional Court received observations from the Minister for Human Rights, Equal Opportunities and Legislation by Jan Chvojka, in which the Government states, after recap of the proposal by the Supreme Administrative Court, that the contested provision does not undermine the legal certainty or legitimate expectations of citizens and members of the Security Corps, since the denunciation of any business or other gainful activity is already provided for in Section 13 (1) (i) of Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, as amended by Act No 586 / 2004 Coll., as one of the preconditions for admission to service. As this is a basic precondition for admission to service, a member of the Security Corps must fulfil this requirement throughout the duration of the service. Any exceptions to the prohibition of gainful activity (irrespective of whether they are provided for by an internal regulation or an individual act as in other laws governing state employment relations) can be seen as a correction of the rigidity of the law in justified cases, but this is not an intervention of such intensity as to undermine legal certainty.
21. The Government further submits that the limitation of the fundamental right under Article 26 of the Charter does not take place, the conditions for the performance of the service are known to the tenderers in advance, and quotes from the finding of the Constitutional Court sp. zn. Pl. ÚS 3 / 2000 of 21.6.2000 (N 93 / 18 SbNU 287; 231 / 2000 Coll.), according to which "price regulation does not prevent anyone from doing any other economic activity, since everyone has the freedom to decide whether to do business in a given area under the conditions."
22. The Government's statement also compares the contested legislation with that relating to judges and prosecutors and states that the contested provision does not infringe equality in the guarantees of fundamental rights, since the possibility of carrying out other gainful activities may, on the contrary, be wider for members of the Security Councils than for judges and prosecutors, if they so provide for an internal regulation. Similarly, it rejects the alleged breach of equality in comparison with the legislation on civil service, professional soldiers or civil servants of local and regional authorities, since all three laws contain the condition of the written consent of the service body or local authorities to carry out other gainful activities.
23. Thus, according to the Government, these provisions provide for a form of discretion, which must also be taken into account when issuing an internal act of the Director of the Security Corps, with no obligation to issue an authorisation to pursue other gainful activities in any of the three acts mentioned. Although the explicit condition "if this activity does not affect the performance of his service or other important interest in the service 'is laid down for the professional soldier, the government considers that this exemption results from the service relationship law also but implicitly, i.e. the important interest of the service must also be taken into account.
24. According to the Government, the legislation on professional soldiers, civil servants under the Civil Service regime and civil servants of local and local authorities therefore contains a similar possibility to those contained in the contested provision, the difference in whether the possibility of granting an exemption applies to individuals or to the entire security body is not decisive for the assessment of the constitutionality of the institute. The Government states that, on the contrary, for members of the Security Corps, the contested structure constitutes a higher degree of legal certainty, as the conditions for granting an exemption from the exercise of another occupation are laid down in a uniform manner for all members of the Security Corps, whereas professional soldiers, officials of the local authorities and civil servants under Act No. 234 / 2014 Coll., on the Civil Service, as amended, must always await an individual decision on the matter, the outcome of which may be any.
25. The Government also recalls that the fundamental right guaranteed by Article 26 The Charter falls within the category of economic, social and cultural rights and therefore a rationality test can be applied to the case under consideration, as formulated in the sp. zn. According to the Government, the contested legislation will stand in that test. The purpose and substance of the economic law provided for in Article 26 The Charter is the freedom of an individual to choose his or her profession or to engage in business or other economic activities, in particular in order to obtain the provision of his or her own or, where appropriate, family or loved ones. The members of the Security Corps are guaranteed above average financial collateral, and the contested provision does not therefore concern the essential nature of the exercise of the fundamental right in question, since the possibility of material security is also fully preserved in this form. The legal objective of the regulation in question is to require the impartiality and independence of the security corps, as well as to maintain the widest possible availability of time for the performance of the service of a national, as this activity is essential for maintaining the essential functions of the State and protecting its citizens and property. The legal means used to achieve this objective is, according to the Government, reasonable, since the design of the law undoubtedly helps to achieve the above legitimate objective, although it may not necessarily be the best, best, most effective or wisest option. According to the Government, members of the Security Corps may in fact engage in other gainful activities, albeit on the basis of internal regulations of the Director of the Security Corps.
26. The Government, referring to the find sp. zn. The legislator, according to the Government, acted within the limits of its competence by establishing restrictive instruments (limitation of gainful activity with exceptions) with regard to their suitability and effectiveness, which is the legislator's primary task.
27. The Government also recalls the priority of constitutionally conformistic interpretation rather than derogation, with the fact that the restriction laid down in the contested provision and also in § 13 (1) (i) of Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, as amended by Act No. 586 / 2004 Coll., cannot be interpreted in isolation but always in the context of constitutional order. According to the Government, for example, the freedom of scientific research and the freedom of artistic creation, which is guaranteed by Article 15 (2) of the Charter, cannot be prohibited for members of the Security Corps, nor can the management of their own property under Article 11 of the Charter. The right of ownership shall include, inter alia, the right to hold, use, enjoy and dispose of the property, all of which are potentially profitable. The contested provision does not, according to the Government, eliminate the right to pursue a gainful activity, which is limited only in the interests of the proper, other duties of the uninterrupted, the performance of the service or in view of a potential conflict of interest.
28. The Government therefore proposes to reject the application for annulment of the provision in question, since it considers that its constitutionally conformal interpretation is possible.
29. Ombudsman Anna Shabat by letter of 17 October 2017 It informed the Constitutional Court that it did not intervene in the proceedings. In addition, it stated that it was in agreement with the proposal of the Supreme Administrative Court.
Replication of the applicant
30. The observations received were sent to the appellant, who, in reply to them, states that only the government provided factual arguments for the proposal and therefore responds more closely to the Government's observations. Arguments of the Government by the provision of § 13 paragraph 1 (i) of Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, as amended by Act No. 586 / 2004 Coll., do not alter the appellant's argument. Both Article 48 (2) and Article 13 (1) (i) contain an absolute prohibition on other gainful activities, from which Article 48 (2) allows exemptions in the form of activities provided for by internal acts issued to the Director of Security Councils. It is precisely the regime of exceptions, the form of their determination and the legitimate public authority to determine them, which the appellant considers to be contrary to the constitutional reservation of the law. To argue the need to correct the hardness of the law, the appellant states that the removal of the hardness of the law from the nature of the case presupposes individualised decisions aimed at assessing the intensity of the impact of the law on the particular situation of a particular person. Here, however, there has been a transfer of legislative competence, which is the responsibility of the legislative power, to an executive power, even to a public authority which cannot have legislative competence, even by delegation, under the Constitution, and is intended to do so not by general binding legislation, but by internal instruction.
31. The appellant further submits that the Government's argument of finding the Constitutional Court sp. zn. Admission applicants, or already recruited members, have the freedom to decide whether to join or remain in the service at the price of accepting the restrictions imposed on them under Article 44 of the Charter. However, this shall apply as long as these restrictions comply with the conditions of limitation of the fundamental rights prescribed by the Charter. However, this is called into question by the applicant.
32. Arguments of the Government by other service conditions in fact confirm the appellant's reservations that equality in the guarantees of fundamental rights and freedoms between members in different service conditions may be undermined by a different regime. The appellant does not agree that the regulation in the law on the service relationship is more favourable than other service professions. On the other hand, from the point of view of procedural defence, this legislation is less advantageous as it deprives members of the service from the possibility of defence against a negative individual and individual administrative decision on an application for an exemption or consent to a gainful activity; they are not issued and the member is released without further notice.
33. While the appellant agrees with the Government's assertion that there is a social and economic right at stake which should be determined by the legislator. However, the legislature did not give any scope and content to that right in the contested provision. Although the limits of Article 41 (1) of the Charter apply to the right in question, the implementing act must indeed establish the limits of the law and not give them to the executive authorities in a blinding manner, even in forms other than the legislation. Only when the scope and content of the law or its limits are laid down by law can their constitutionality be measured by a rationality test.
34. Finally, the appellant recalls, in the meantime, the announced finding of the Constitutional Court in the case of electronic registration of sales [finding sp. zn. The Constitutional Court on the violation of the law and constitutional rules of the legislature delegation annulled the authorisation provisions for the Government to exclude certain sales from the scope of the obligation to register, namely to mitigate the statutory obligation. As in the present case, it was Article 26 of the Charter, the procedural level of protection of this fundamental right should be the same for both the entrepreneurs and the servants of the State as defined in Article 44 of the Charter. The appellant recalls that if it did not comply with the similarly designed authorisation provisions for the Government, the more so it could not stand in relation to regulation which does not even have the form of legislation.
35. In conclusion, the appellant states that it is not about the content of a specific internal act of the Director of the Security Corps, but about the issue of dramatically exceeding the importance of the complainant's individual case before the Supreme Administrative Court. The draftsman recalls the historical experience that an undemocratic, authoritarian or totalitarian regime suppresses the constitutional principle of the division of power, while the importance of legislative power declines in favour of one power centre in the sphere of a widely conceived executive. The constitutional provisions of the rule of law and the limits of the delegation of legislative power in the current Constitution are the answer to this historical experience, and even in a liberal democratic regime, governments may be tempted by executive standards, particularly in situations of paralyzed parliaments and minority governments. The finding of the Constitutional Court will thus also be relevant to any future "worse weather," not only for members of the Security Corps and the Armed Forces, but also for other categories of persons in Article 44 of the Charter, including judges.
Abandonment of oral proceedings
36. As the Constitutional Court did not expect further clarification of the case from the oral hearing, it waived it under Paragraph 44 of the Constitutional Court Act.
Terms and conditions of the formal assessment of the proposal
37. The Constitutional Court notes that it is competent to discuss the application in question, which was submitted to it by a legitimate appellant pursuant to Paragraph 64 (3) of the Constitutional Court Act. The application is admissible and fulfils all the statutory requirements. Thus, the Constitutional Court may have made a substantive review of the contested provision.
Review of the procedure for the adoption of the contested provision
38. The Constitutional Court, in accordance with Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., first examined whether the contested provision was adopted within the limits of the Constitution established competence and by the constitutional procedure. On the basis of the observations of the two chambers of the Parliament of the Czech Republic and on the basis of the relevant stenoprotocols from the chamber meetings (available at www.psp.cz and www.senat.cz), the Constitutional Court concluded that no procedural defects occurred when adopting the contested provision.
39. In the fourth parliamentary term of the Chamber of Deputies, the bill on the service ratio of members of the Security Corps was discussed as House Press 256. The Chamber of Deputies gave its assent to the draft law at the third reading on 2 July 2003 at its 18th session in vote 260, when of the 178 Members present voted in favour of the draft 130 Members, 7 voted against. The bill was returned to the Chamber of Deputies by the Senate with amendments. On 23 September 2003, at its 20th meeting, the Chamber of Deputies approved the draft law as referred to the Senate; of 183 Members present voted in favour of 108 Members, against 41. The Act was published on 31 October 2003 under No 361 / 2003 Coll.
40. The text of the contested provision was amended by Act No. 530 / 2005 Coll. The bill was discussed in the Chamber of Deputies in the fourth parliamentary term as the 1002 House Press. The Chamber of Deputies agreed to this bill at its third reading on 26 October 2005 at its 48th meeting. The proposal was adopted in vote 498; of the 177 Members present voted in favour of 128, against 5. The text of the contested provision of Paragraph 48 (2) was adapted on the basis of a proposal by Mr Peter Ible, as set out in the summary of amendments under point D. In vote 489 of the 177 Members present in favour of the amendment, 102 Members voted, 54 votes against. On 30 November 2005, the Senate decided not to deal with the bill. The Act was declared on 29 December 2005 under no. 530 / 2005 Coll.
41. The condition of the constitutional conformity of the legislative process has been fulfilled in relation to the contested provision, which, moreover, the appellant does not dispute.
A substantive review of the contested provision
Derogation of the contested provision
42. The contested Paragraph 48 (2) of the Law on the Service Ratio provides: "A national may not engage in any business other than a service under that law; This restriction shall not apply to the cases referred to in Sections 29, 31 and 33 (a) and to other activities provided for by internal acts issued to the Security Board directors. ';
43. The cases referred to in paragraphs 29, 31 and 33 (a) of the Law on the service of which, according to the classification of the contested provision, there is no prohibition of gainful activity constitute general exceptions concerning members in active reserve (§ 29), members in special reserve (§ 31) and members in unpaid reserve because of parental leave [§ 33 (a)]. However, for the normal performance of the service, the law does not provide for any, whether specifically or at least in general or a type-defined exemption from the prohibition of gainful activity, merely refers to internal acts of procedure which may result from such exceptions. However, the Act does not provide for any conditions or criteria on which the exemptions should be based or any limits or parameters of such exemptions.
44. According to the Government Bill No. 530 / 2005 Coll. (Press 1002, IV Elections of the Chamber of Deputies of the Parliament of the Czech Republic, 2005), Paragraph 48 (2) of the Act on the service relationship of members of the Security Corps was to read as follows: "A member may, with the written consent of an official, engage in other gainful activities than a service under this Act, if such activity cannot lead to a conflict of interest, a threat to the good name of the Security Corps or a member, or to the ability to perform duties properly. The consent of the official shall not be required in the cases referred to in Sections 29, 31 and 33 (a), for the activities of the representative, for the management of the property or for the gainful activity in the exercise of custody. ';
45. However, as noted above, thanks to the amendments, the approved version of Paragraph 48 (2) was significantly different from the quoted Government Bill No. 530 / 2005 Coll., or also from the previous concept of a prohibition on gainful activity and exemptions from that prohibition, which was contained in Section 152 of Act No. 186 / 1992 Coll., on the service relationship of members of the Czech Police, which according to Section 10 (1) of Act No. 238 / 2000 Coll., on the Fire Department of the Czech Republic and on the amendment of certain laws, also applied to members of the Fire Department.
General principles concerning constitutional reservation of the law
46. In view of the assessment of the constitutionality of the contested provision, the optics of the alleged infringement of the law are the relevant provisions of Article 4 (1) of the Charter, according to which "obligations may be imposed only on the basis of and within the limits of the law and only with respect to fundamental rights and freedoms' and Article 4 (2) of the Charter, under which" the limits of fundamental rights and freedoms may be governed by law only '. Article 2 (3) The Charter then states that "everyone can do what is not forbidden by law and no one must be forced to do what the law does not impose."
47. In the light of the activities limited by the contested provisions, the relevant right is "the right to free choice of profession and preparation for it, as well as the right to engage in other economic activities' under Article 26 (1) of the Charter, as well as the" right to acquire funds for the purposes of their living 'guaranteed in Article 26 (3) of the Charter. Article 26 (2) of the Charter provides that "the law may lay down conditions and restrictions for the pursuit of certain professions or activities'.
48. The right to business, to pursue an economic activity or to acquire funds for the purposes of its living needs by works falls under the scheme of Article 41 (1) of the Charter under which "the rights referred to in Article 26... The Charter may be invoked only within the limits of the laws implementing these provisions."
49. According to Article 44 of the Charter, "the law may restrict the right to business and other economic activity and the law referred to in Article 20 (2); to civil and territorial authorities' employees in the functions they designate, including the law referred to in Article 27 (4); to members of the security forces and to members of the armed forces, the rights referred to in Articles 18, 19 and 27 (1) to (3), where relevant for the performance of the service. The law may limit the right to strike to those in the professions which are immediately necessary for the protection of life and health." According to that provision, the right to business and other economic activity may therefore be limited, inter alia, to members of the Security Corps and members of the Armed Forces, with restrictions being required to take the form of a law.
50. The Constitutional Court has already expressed its views on the question of the reservation of the law and the limits of the delegated standard. In the judgment of the Court of First Instance in Case C-482 / 99, the Court of Justice of the European Union has held that the Court of Justice of the European Union ("the Court of Justice of the European Union ') has consistently held that the Court of Justice of the European Union (" the Court of Justice of the European Union') does not have jurisdiction to rule on the interpretation of the law of the Court of Justice of the European Union. The Constitutional Court specifically stated in relation to government regulations that the Government cannot be empowered to regulate questions of constitutionally reserved legislators such as the imposition of primary obligations (Article 4 (1) of the Charter) or the establishment of limits on fundamental rights and freedoms (Article 4 (2) of the Charter).
51. In the past, therefore, the Constitutional Court annulled, for example, the legal authorisation which transferred to the Government the definition of the content and extent of the conditions and the application of the right to free healthcare under Article 31 of the Charter [sp. zn. Similarly in the sp. zn. Pl. ÚS 3 / 15 of 30.5.2017 (231 / 2017 Coll.) The Constitutional Court stated that the statutory conditions under which medical devices may be provided for public health insurance cover constitute the limits of the fundamental right of suppliers of medical devices to carry out other economic activities under Article 26 (1) of the Charter. According to the cited finding, a law which lays down the limits of fundamental rights and freedoms in such a general or vague manner that the determination of their content effectively leaves the practice of state authorities or other bodies to the contrary, subject to the law referred to in Article 4 (2) of the Charter. The Constitutional Court also annulled the legal authority which, contrary to Article 39 of the Charter, delegated the definition of the substance of the offence to the Government Order [finding sp. zn. Pl. ÚS 13 / 12 of 23.7.2013 (N 126 / 70 of the SbNU 147; 259 / 2013 Coll.)] in a situation where no criteria were laid down by the Authorising Provisions, the Government therefore did not specify the law on its basis, but directly supplemented the facts.
52. In the sp. zn. Pl. ÚS 23 / 02 of 30.6.2004 (N 89 / 33 SbNU 353; 476 / 2004 Coll.) The Constitutional Court recalled the importance of the principle of division of power when limiting the delegation of standards and stated that "in order to ensure the efficient performance of public administration, it is appropriate to leave the regulation of the details to the statutory legislation which can be amended more operationally. Therefore, the constitutional order of the Czech Republic allows the legislator to authorise the executive authorities under certain conditions to legislate. However, the authority must be explicit and the content of the substatutory provision must comply with the law which it implements and must therefore be issued on its basis and within its limits. However, if Parliament resigns to the definition of the relevant framework and gives a blank mandate to the executive to determine what is right, what are the rights and obligations of persons, or what are the powers and duties of administrative authorities, then it violates the principle of a limited delegation of standards, thereby violating the principles of division of power."
53. In the Decision concerning the electronic registration of sales [finding sp. zn. The lack of definition of any criteria can only be seen from the fact that the law uses exactly the same general criteria for the complete exclusion from registration and for inclusion in the simplified scheme. It is therefore entirely up to the government to consider whether it will remove the revenue from the records entirely once and for all or only temporarily or include it in the simplified scheme "(paragraph 111). As the Constitutional Court further added, in the case of electronic records of sales, it must primarily be defined by law as to who the obligation of registration is affecting and to what extent, and against any excessive interpretation and application of the authorisation," the law itself does not contain any mechanisms or restrictions which, for example, prevent it from being a government regulation which determines what sales will be registered and under what regime '. It is also not decisive, according to the finding, in point Pl. ÚS 26 / 16, that the contested authorisation provisions (contained in the relevant regulation of the Government or merely the guideline) impose no other obligations or restrictions on fundamental rights and freedoms, but provide for exceptions, since, from the point of view of the principle of equality, "tax entities whose economic activity has not been exempted may be in a worse position than those exempted. The legislature itself must sufficiently determine - rationally and predictably - the possibility of excluding a tax entity from the records of sales, in such a way that constitutional equality in rights is fulfilled" (paragraph 112).
54. Thus, it follows from the Constitutional Court's decision-making practice that it is not constitutional to admit ambiguity, vagueness, or even the absence of legal criteria in a delegation of standards to executive authorities. Nor does the construction of a law consisting of the law defining the limits of fundamental law in such a way that it generally prohibits or directs (provides for an obligation), the subsequent acts of the executive providing for exemptions from that obligation, without any criteria and limits, or in the absence of a clear and concrete definition of those criteria and limits.
55. It can be summed up that the content and scope of the obligation laid down or the limits of the fundamental right must always be governed by law.
Application to the case under assessment
56. It is clear from the classification of the contested legislation that the legislator was not intended to exclude entirely any other gainful activity for persons in service. The Government also states in its observations that the purpose of the contested legislation is not to exclude the business or the pursuit of an economic activity entirely, or that it is not constitutionally even possible to exercise other constitutional rights. The legislature "only" compared to the previous legislation or legislation proposed by the Government in the amendment carried out by Act No. 530 / 2005 Coll. (cf. above), expressly entrusted the definition of exceptions to internal acts of management issued by the Director of Security Councils. The provision stating that "this restriction does not apply to... other activities provided for by internal acts issued by the directors of the Security Corps' shows the legislature's intention not to prohibit the activity or business entirely, that is to say, exemptions from the ban, but to leave them entirely to the will (or the pleasure) of the directors of the Security Corps. At the same time, however, in the absence of such authorisation by the directors of the security corps, the exercise of another gainful activity by persons in service would be completely impossible under the contested provision.
57. The key constitutional question is therefore whether the legislation in question can, from the point of view of constitutional principles, particularly the reservations of the law on the restriction of fundamental rights, be upheld.
58. The situation currently under assessment by the Constitutional Court is an analogous situation which was addressed in the assessment of the empowerment provisions in Act No. 112 / 2016 Coll., on the registration of sales. It is again subject to a review of the general regulation in relation to the law guaranteed by Article 26 of the Charter, with the exceptions to that regulation being provided for in the case at hand only by an internal management act.
59. At the same time, the legislature has granted a flat-rate ban on the exercise of any gainful activity to persons in service in the security corps, but has left their content and scope entirely to the internal act of the director of the relevant security corps, without any legal limits or criteria.
60. The law itself does not provide for any exceptions, even those traditionally appearing in other similar regulations, such as the administration of own property or scientific, educational, literary, publicity or artistic activity [cf. § 24 paragraph 6 of Act No. 283 / 1993 Coll., on the Public Prosecutor's Office, as amended, § 47 of Act No. 221 / 1999 Coll., on professional soldiers, as amended by Act No. 192 / 2003 Coll., § 85 of Act No. 4 / 2002 Coll., on Courts, Judges, Adversaries and Government of Courts, and on the amendment of certain laws, § 81 paragraph 2 of Act No. 234 / 2014 Coll., as amended by Act No. 4 / 2002 Coll.
61. The above mentioned exceptions are intended, among other things, to serve, as the government admits, to exercise other constitutional rights (property law, freedom of scientific research, artistic creation, or freedom of expression). However, these exemptions do not come from the law in the case at hand. The assessment of the constitutionality of the contested legal provision does not alter the fact that these exemptions are currently contained in internal acts. However, the Constitutional Court does not assess the scope or proportionality of these exceptions (it does not examine internal procedural acts), but the way in which those exceptions are legally enshrined. Thus, the Constitutional Court cannot take any account of the current internal acts (guidelines) of the directors of the security corps, as it assesses the compliance of the law with the constitutional order, and the constitutional problem lies precisely and only in the legal regulation on the basis of which those exceptions were enshrined.
62. If, in the finding of sp. zn.
63. If the Government considers that the contested legislation will stand in the rationality test, it should be noted that the rationality test can examine whether a law setting the limits of fundamental law under Article 26 of the Charter is at least reasonable (if the core of the law itself is not affected), even if it does not necessarily represent the best or optimal solution. However, the condition of that examination is that the limits of a certain right or the conditions for its enforcement are laid down in the law and can therefore be tested. However, in the case at hand, the legislature has completely resigned from establishing the limits of the law under Article 26 of the Charter, so it is not possible to assess the rationality of the legal limits because they do not exist.
64. If the limits were to be that economic activity, or business, is completely prohibited (which the government also denies in its observations), it would be an internally contradictory provision, as the law generally provides for the existence of exemptions, only the content of which unconstitutionally delegates to internal procedural acts. At the level of the law, there was no specific exception to the prohibition of other gainful activities, except for the reference to § 29, § 31 and § 33 (a) of the Staff Act, which, however, only concerns specific situations (see above) and which are not general exceptions applicable to all members of the Security Corps.
65. The Constitutional Court recalls that certain activities which are carried out in parallel with the performance of the service (management of own property, literary, scientific, artistic, educational, publicist) are implemented by other constitutional rights other than those under Article 26 of the Charter, namely rights which do not fall under the restrictive regime of Article 41 (1) of the Charter, e.g. property rights in the management of own property. However, the restriction of rights outside the provisions of Article 41 (1) of the Charter cannot be satisfied with a restraint test of rationality. However, the question of the use of a prudent test of rationality or a rigorous test of proportionality, as mentioned above, is not on the agenda, since it is not clear from the classification of the contested provision whether and to what extent rights other than those under Article 41 (1) of the Charter should also be restricted.
66. From the point of view of the alleged breach of the law's reservation, the requirement of the law's reservation is a formal constitutional rule which always applies and cannot therefore be tested for its rationality, thus considering the possibility of its failure to comply with it as a rational step pursuing a certain legitimate objective, as the government, in fact, requires.
67. The limits of the fundamental right must be governed by law, and according to Article 4 (3) of the Charter "the legal restrictions on fundamental rights and freedoms must apply equally to all cases which fulfil the conditions laid down '. Therefore, in the interests of equality before the law in order to limit fundamental rights and freedoms, it is necessary that the specific scope of the fundamental right to be guaranteed by the legislator to the individual should be legal and apply equally to all bodies. Thus, the contested legislation does not in any way guarantee that, for all cases which are by their nature similar, the limits of the law under Article 26 of the Charter will also be laid down mutatis mutandis. For example, individual security directors may provide for exceptions differently without any reasonable reason for any difference between the safety authorities. Therefore, even in terms of maintaining equality in rights or the prohibition of arbitrage (Article 1 of the Charter), it is necessary that the above-mentioned reservations of the law be respected in the limitation of fundamental rights.
68. The reserve of the law cannot be circumvented by limiting a certain basic right to a greater extent than is actually intended, or by making it totally impossible to exercise it, and then by means of the regulatory acts of the executive, exceptions are laid down, which re-extend the scope of the fundamental right and, in fact, ultimately, set its limits in general. The purpose of the law's reservations that the legislator itself must, within the framework of the division of powers, lay down the limits of a particular fundamental right would be completely denied by this procedure.
69. The Government's argument that the legal limits for empowerment are "implicitly" in the law, or that they can be inferred by a constitutional interpretation of the contested provision, is not shared by the Constitutional Court. Article 26 (2) of the Charter binds "conditions and restrictions on the pursuit of certain professions or activities" to the law, as well as Article 44 of the Charter provides for restrictions in the form of a law, which corresponds to the reservation of the law as defined in Article 4 (1) and (2) of the Charter. An argument of constitutionally conformistic interpretation consisting of the fact that certain activities (management of own property, virtually literary, scientific, artistic or educational activities) must always be one of the exceptions, as this results from constitutional rules in order to protect other fundamental rights and therefore the explicit regulation in the law is not necessary.
70. On the one hand, it cannot be accepted that the purpose of the contested provision is to counterbalance the self-interest in the proper performance of the service, on the one hand, and the exercise of the constitutional rights of members of the Security Corps (not only the rights covered by Article 41 (1) of the Charter) on the other hand, but at the same time, at the same time, at the same time, at the same time, to resign entirely from the role of legislator from the point of view of Article 2 (3) and Article 4 (1) and (2) of the Charter, and to delegate without further establishing the limits of fundamental rights to the executive authorities, not even on the statutory implementing provisions, but only on internal procedural acts.
71. Therefore, the contested provision could not, in view of its consistency with the constitutional order, namely the requirement of a reservation of law in establishing the limits of fundamental rights.
72. Therefore, for the reasons set out above, the Constitutional Court complied with the proposal and pursuant to Article 70 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., annulled the contested provision for a contradiction with Articles 2 (3), 4 (1) and (2), 26 (2) and 44 of the Charter.
The temporal effects of the finding
73. The devolving effects of the finding have been postponed by the Constitutional Court in order to give the legislator the opportunity to formulate the contested provision in constitutional conformity. The Constitutional Court is aware of the classification of Paragraph 13 (1) (i) of Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, as amended by Act No. 586 / 2004 Coll., according to which only a citizen who "does not carry out business or other gainful activities and is not a member of the management or control bodies of the legal entities engaged in the business activity 'may be admitted to service, whereas, in view of the limited active legitimacy of the appellant in the procedure for specific control of legislation (Article 95 (2) of the Constitution), that provision was not contested in this procedure. The annulment of the contested provision would already have resulted in legal uncertainty as to the existence of a prohibition of gainful activity for members of the Security Corps at the time of publication of the finding in the Collection of Acts No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, as amended, that the candidate would not be required to pursue any other gainful activity, but would no longer be able to release the member of the Security Council from the service if he started to engage in any activity (as a result of a derogation not limited).
74. The legal situation of the absence of any restrictions on the working or business of members of the Security Corps, both in terms of potential conflicts of interest and interest in the proper performance of the service, appears undesirable and disproportionate.
75. For those reasons, the enforceability of the finding and the provision of sufficient space for the legislator to adopt constitutional conformity legislation has been postponed.
76. In the meantime, from the publication of this finding to the period of application of the new legislation, although administrative courts are formally obliged to apply the contested provision as a valid part of the rule of law, they are, however, obliged to apply it in the light of Article 4 The Constitution shall provide protection for the fundamental rights of the parties and strike a fair balance between the interest in the proper performance of the service in the Security Corps, on the one hand, and the rights of members of the Security Corps which are restricted by the repealed legislation, on the other hand. The aspects which may be taken into account are, for example, contained in the draft legislation referred to in paragraph 44. If the legislator has resigned from balancing these interests or rights by temporarily delaying the limits of fundamental law under Article 26 of the Charter or other constitutional rights guaranteed, but without further delegating those limits to internal procedural acts, the courts are required to temporarily establish those limits until they are laid down by the legislator itself by adopting new legislation.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 235 / 2018 Coll., on the application for annulment of § 48 paragraph 2 of Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, as amended by Act No. 530 / 2005 Coll. |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 18.10.2018 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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