The Constitutional Court found no 24 / 2024 Coll.
Findings of the Constitutional Court sp. zn. Pl. ÚS 7 / 23 on the application for annulment of § 23a paragraph 3 of the last sentence of Act No. 100 / 2001 Coll., on Environmental Impact Assessment and on the amendment of certain related laws (Act on Environmental Impact Assessment), as amended
Valid
24
FIND
The Constitutional Court
of 20 December 2023
sp. zn. Pl. ÚS 7 / 23 concerning the proposal to repeal § 23a paragraph 3 of the last sentence of Act No. 100 / 2001 Coll., on Environmental Impact Assessment and on the amendment of certain related laws (Act on Environmental Impact Assessment), as amended
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 7 / 23 on 20 December 2023 in plenary composed of the President of the Court of Josef Baxy and judges and judges of Lucie Dolanská Bányai, Josef Fiala, Jaromír Jirsa, Veronica Christian, Zdeňka Kühn, Kateřina Ronovská, Jan Svatona, Pavel Šámal, Vojtěch Šimíček, David Uhlíř, Jan Winter, Jiří Zemánka and Daniela Zeman (Judge of the Rapporteur) on the proposal of the Regional Court in Ostrava to repeal § 23a paragraph 3 of the last sentence of Act No. 100 / 2001 Coll., on the Environmental Impact Assessment of Environmental Effects (Act), on the Change of Environmental Effects of the Czech Republic, as a Participant of the Czech Republic as a Participant, as a Participant, in the Czech Republic, as a Court of 20 December 2023, in plenary, in the Act amending Act No. 23 / 2001 Coll.
as follows:
Motion denied.
Reasons
Subject matter
1. Before the Regional Court in Ostrava ("Regional Court" or "applicant"), for which the President of Chamber 38 A JUDr. Monika Javor is acting, proceedings for the action of Children of the Earth - Club for Sustainable Transport ("the Prosecutor") against the decision of the Minister of Transport of 30 June 2022 No. 10 / 2018- 510- RK / 76 which was partially amended and confirmed in the rest by the decision of the Ministry of Transport, the Department of Infrastructure and the Territorial Plan of 25 October 2017 No. 564 / 2014- 910- IPK / 38, which allowed the construction of "Silnice R48 Frydec- Místek, Obcht" in the range of five buildings.
2. From the requested court file, the Constitutional Court found that the construction procedure had been opened on 29 August 2014 and concerned a part of the circumference of the city of Frýdek-Místek with a total length of 370 metres. The first stage building permit of the Ministry of Transport was issued on 24 February 2015, No 564 / 2014-910-IPK / 14.
3. The Ministry of the Environment issued on 6 February 2017 under No 2143 / 580 / 16, 63940 / ENV a special binding opinion pursuant to § 23a of Act No. 100 / 2001 Coll., on Environmental Impact Assessment and on the amendment of certain related laws (Act on Environmental Impact Assessment), as amended ("EIA Act"). The Institute of special binding opinion for so-called priority transport structures was enshrined in the legal order by Act No. 256 / 2016 Coll., amending the EIA Act with effect from 5 August 2016.
4. On the basis of the applicant's decomposition, the initial building permit was revoked by decision of the Minister of Transport of 19.7.2017 No 31 / 2015-510-RK / 48 and the case was referred back to the Ministry of Transport for further proceedings.
5. The new (in point 1) of the construction permit of 25 October 2017 attacked the applicant by decomposition of 27 November 2017. The Minister for Transport rejected the decomposition and confirmed the contested decision by decision of 19 November 2018 No 10 / 2018- 510- RK / 33.
6. The Regional Court, by judgment of 13.8.2019 No 39 A 5 / 2019-86, subsequently dismissed the action which the applicant sought to repeal the decision of the Ministry of Transport of 25.10.2017 and the decision of the Minister of Transport of 19.11.2018.
7. The applicant lodged an appeal on 16 September 2019. The Supreme Administrative Court, by judgment of 31.3.2022 sp. zn. 5 As 333 / 2019-92, annulled the decision of the Regional Court of 13.8.2019 and the decision of the Minister of Transport on the decomposition of the applicant of 19.11.2018.
8. In the meantime, by the adoption of Act No. 413 / 2021 Coll., amending Act No. 100 / 2001 Coll., on Environmental Impact Assessment and on the Amendment of Certain Related Acts (Act on Environmental Impact Assessment), as amended, to establish the now contested provision § 23a (3) of the last EIA Act.
9. The Minister of Transport, by the contested decision of 30 June 2022, redecided to decompose the applicant on 27 November 2017, partially amending and confirming the decision of the Ministry of Transport of 25 October 2017.
10. The applicant in the proceedings before the Regional Court argues, inter alia, the inconstitutionality of Section 23a (3) of the last sentence of the EIA Act. The Regional Court agreed with the applicant's argument concerning the alleged inconstitutionality of Section 23a (3) of the last sentence of the EIA Act, and concluded that the provision of the EIA Act was required to apply in court proceedings and therefore, on 20 February 2023, pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 64 (3) of Law 182 / 1993 Coll., on the Constitutional Court, as amended (hereinafter referred to as" the Law on the Constitutional Court'), submitted a proposal for its annulment.
Article 23a (3), last sentence, of the EIA Act
11. The contested provision of Paragraph 23a (3) of the last sentence of the EIA Act reads: "The opinion must be valid at the time of the decision in subsequent proceedings at first instance." The Constitutional Court for Transparency and the context of the case below cites the wording of the whole of Paragraph 23a, with the view that the contested provision is highlighted.
(1) For the purposes of this Act, a priority transport plan shall mean an intention,
(a) which is located on the trans-European transport network (14);
(b) for which a territorial decision has been taken no later than 31 March 2015;
(c) for which a consensual opinion has been delivered on the assessment of the effects under Act No. 244 / 1992 Coll., on the assessment of the environmental effects ("Act No. 244 / 1992 Coll."); and
(d) laid down by a regulation by the Government.
(2) The competent authority shall always be the Ministry in the case of a priority transport project.
(3) The competent authority shall issue a binding opinion on the priority transport project on the effects of the priority transport project on the environment, which is the basis for the decision in subsequent proceedings. The binding opinion referred to in the first sentence shall include measures to prevent, exclude, reduce or compensate for adverse effects on the environment. The validity of the binding opinion under the first sentence shall be 5 years. The opinion shall be valid at the time of the decision in the subsequent proceedings at first instance.
(4) When issuing a binding opinion on the effects of a priority transport project on the environment, the competent authority shall take into account effective environmental and public health legislation.
(5) A binding opinion on the effects of a priority transport project on the environment shall be issued at the request of the notifier, which shall include a basis containing a description of the current technical solution of the project and its impact on the environment and public health; the application may be submitted by 31 January 2017 at the latest. In the case of a priority transport project as defined by the Government by the Regulation, the notifier shall also state in the supporting document referred to in the first sentence the outline of the main variants studied and the key reasons for its choice in relation to the environmental impact. Paragraph 6 to 9 shall not apply when issuing a binding opinion on the effects of a priority transport project on the environment. Where a consensual binding opinion has been delivered on the effects of a priority transport project on the environment, the opinion referred to in Article 9a (1) shall not be required in subsequent proceedings.
(6) A binding opinion on the effects of a priority transport project on the environment and the documents for its publication will be published by the competent authority on the Internet.
(7) The procedure in which a decision is taken in accordance with specific legislation authorising the placing or execution of a priority transport project for which a binding opinion has been given on the effects of a priority transport project on the environment is a follow-up procedure.
(8) In the follow-up procedure, the competent authority shall verify that there have been no changes to the priority transport plan that could have a significant negative impact on the environment. Article 9a (4) and (5) shall apply mutatis mutandis to the verification referred to in the first sentence; the amendments shall be assessed against the intention described in the supporting document referred to in paragraph 5. Where, on the basis of the verification referred to in the first sentence, a dissenting binding opinion has been delivered, the administrative authority leading the follow-up procedure shall reject the application.
(9) The administrative authority conducting the follow-up shall include in its decision measures to prevent, exclude, reduce or compensate for the adverse effects on the environment referred to in the binding opinions referred to in paragraphs 3 and 8.
(10) The opinion on the assessment of the effects issued under Act No. 244 / 1992 Coll. for the priority transport project referred to in paragraph 1, Article II (1) of Act No. 39 / 2015 Coll., amending Act No. 100 / 2001 Coll., on the assessment of the effects on the environment and on the amendment of certain related laws (Act on Environmental Impact Assessment), as amended, shall not apply. ';
Active procedural legitimacy and management conditions
12. If, in the context of its decision-making activities, the court concludes that the law or its individual provision to be applied in the resolution of the case is contrary to the constitutional order, it is entitled to apply for annulment of the law or its individual provisions (Article 95 (2) of the Constitution and Article 64 (3) of the Law on the Constitutional Court). The law must be applied immediately and inevitably in the present case [see for example the Resolution of 23.10.2000 sp. zn. Pl. ÚS 39 / 2000 (U 39 / 20 SbNU 353)] and at the same time must prevent the desired (constitutionally conformal) result [for example, the finding of 6.3.2007 sp. zn. Pl. ÚS 3 / 06 (N 41 / 44 SbNU 517; 149 / 2007 Sb.), paragraph 26 or the finding of 28.1.2014 sp.
13. The Regional Court has filed an application for annulment of Paragraph 23a (3) of the last sentence of the EIA Act as it is to be used in proceedings brought before it under sp. footnote 38 A 6 / 2022. The action is directed against the building permit - the above mentioned decision of the Minister of Transport of 30 June 2022, which decided on the decomposition towards the above mentioned first-stage decision of the Ministry of Transport of 25 October 2017. These decisions authorised the construction under the so-called priority transport project within the meaning of Section 23a of the EIA Act. The Ministry of Transport's decision-making was based, inter alia, on a binding opinion of the Ministry of the Environment to assess the environmental effects of the project of 6 February 2017 No 2143 / 580 / 16, 63940 / ENV, issued pursuant to Section 23a (3) of the EIA Act (so-called binding opinion on the environmental effects of the priority transport project).
14. Paragraph 23a (3) of the EIA Act states that "the validity of a binding opinion under the first sentence is 5 years." The amendment of the EIA Act implemented by Act No. 413 / 2021 Coll. with effect from 20.11.2021 included in § 23a (3) the contested provision (last sentence) stating that "the opinion must be valid at the time of the decision in subsequent proceedings at first instance '.
15. It is common ground that the first step decision of the Ministry of Transport of 25 October 2017 was issued within the five-year period laid down in Section 23a (3) of the EIA Act, as well as that the second step decision (decision of the Minister of Transport on the decomposition of the applicant) was issued (after a procedural procedure recap from above in points 2-9) to 30 June 2022, i.e. five years after the adoption of the binding opinion of the Ministry of the Environment of 6 February 2017.
16. The applicant, in proceedings before the Regional Court, contends that the contested decision of the Minister of Transport of 22 June 2022 was delivered at the time when the binding opinion of the Ministry of the Environment of 6 February 2017 was no longer valid. The claimant submits that, without the adoption of Act No. 413 / 2021 Coll., which amended Section 23a (3) of the EIA Act, "it would have ended in accordance with the present wording of Section 23a (3) of the EIA Act, on 6 February 2022, and it would have been the duty of the defendant to ensure a new review of the EIA Opinion, or for that reason it would have been appropriate to repeal the first step decision '.
17. The Regional Court identified the applicant's proposal in this section. It stated that, in the context of the judicial review, it was required to apply the revised provision of Section 23a (3) of the EIA Act, as implemented by Act No. 413 / 2021 Coll., and, should that provision be found to be unconstitutional, it would be obliged to repeal the contested decision of the Minister of Transport on the illegality of the underlying binding opinion, since it expired on the date of the contested decision.
18. If the Regional Court concludes that the binding ground for an administrative decision is illegal (no longer valid), it shall also repeal the subsequent administrative decision under review (§ 75 (2), second sentence of Act No. 150 / 2002 Coll., the Administrative Rules) [see, for example, the judgment of the Supreme Administrative Court of 13.5.2003 No. 7 A 146 / 2001-29, publ. under No. 2 / 2003 Coll., NSS, as well as the finding of 17.7.2019 sp. zn. Pl. ÚS 44 / 18 (N 134 / 95 CollNU 124; 225 / 2019 Coll.), Part IV].
19. The Constitutional Court concludes that the Regional Court applies the contested provision in its proceedings and, should it be unconstitutional, that conclusion would have an impact on the outcome of the proceedings. The Regional Court is therefore actively authorised to file an application for annulment of the provision under review.
20. The proposal contains all the legal requirements required and is admissible under Section 66 of the Constitutional Court Act.
21. The Constitutional Court decided on a proposal without a regulation of oral proceedings because it did not carry out the taking of evidence within the meaning of Paragraph 44 of the First Law on the Constitutional Court and further clarification of the case could not be expected from the hearing.
Arguments of the appellant
22. The appellant submits that the contested provision infringes the right to a favourable environment guaranteed by Article 35 of the Charter of Fundamental Rights and Freedoms ("the Charter '). It considers the legislation to be expedient, since its aim was to ensure that at least two priority transport structures did not need to be reassessed. In fact, the contested legislation extends the validity of the opinions on priority transport projects issued under Section 23a (3) of the EIA Act indefinitely. The appellant considers that the update of the EIA opinion is a key feature of that opinion. In support of this argument, it cites from the judgment of the Supreme Administrative Court of 17 December 2021 No 1 As 326 / 2018-86 (No 4292 / 2022 Coll. NSS), which follows the case law of the Court of Justice of the European Union and which strongly underlines the current relevance of the environmental impact assessment.
23. According to the appellant, the contested legislation will not stand in the rationality test, the optics of which are assessed for interference in environmental law, especially in the final fourth step. According to the appellant, as a result of the contested legislation, the purpose of establishing the five-year period for the validity of the binding opinion under Section 23a (3) of the EIA Law is to deny, in particular in the current context of the opinion. The appellant recalls the explanatory memorandum to Act No. 256 / 2016 Coll., which amended the EIA Act and incorporated the new Section 23a. According to the explanatory memorandum, "in view of the necessity of this opinion, its validity is limited to 5 years, without the possibility of further extension. This is a reflection of the European Commission's demands'. By establishing now the contested provision, irrespective of the duration of the follow-up to the priority project procedure, on the basis of the binding opinion of the EIA in force at the time of the first stage decision, without in any way ensuring the obligation to update the opinion, projects may be implemented without taking into account actual negative environmental impacts and, consequently, infringements of the right to a favourable environment under Article 35 (1) of the Charter.
Observations of the parties and the intervener
24. The Constitutional Court called on the Chamber of Deputies and the Senate of Parliament (as parties), the Government and the Ombudsman (as potential interveners) to comment on the proposal (Section 69 of the Constitutional Court Act). The Ombudsman stated that he would not intervene.
25. The Chamber of Deputies of the contested provision stated that the parliamentary bill later proclaimed under No 413 / 2021 Coll. was circulated to Members as print No 1304 on 17.8.2021. At the same time, the petitioners proposed that the Chamber of Deputies should give its consent at first reading. This took place on 15 September 2021 at the 118th session, the Chamber of Deputies agreed to approve the proposal at first reading and the law was adopted by Resolution 1783. On 29 September 2021, the bill was passed on to the Senate and it was discussed at the 17th meeting as Senate Document No 158 and adopted Resolution No 315 approving the bill. The President of the Republic signed the Act on 15.11.2021.
26. The Senate summarised the view of the Regional Court in its observations. He also stated that the bill had been passed on to him on 29 September 2021 and that the Senate had discussed it as print No 158. The proposal was discussed in the Committee on Territorial Development, Public Administration and the Environment (Guarantee Committee), the Constitutional Legal Committee and the Committee on Economic, Agriculture and Transport. All committees were discussed on 20 October 2021 and all three committees recommended the Senate to approve the bill without amendment on the same day. In the first two committees, constitutionality was not the subject of discussion; in the Committee on Economic, Agriculture and Transport it was discussed that the amendment could be contrary to the agreement with the European Commission on the original compromise solution of Section 23a of the EIA Act, which was a condition of co-financing transport projects. Similarly, the latter Committee has thematic the possibility of a general conflict with European Union law. The Senate also noted that the entire provision of Section 23a of the Act on Environmental Impact Assessment is repealed as of 1 July 2023 by Act No 284 / 2021 Coll., which amends certain laws in connection with the adoption of the Building Act, [then the amendment of the Derogation clause to 1 January 2024 - note of the Constitutional Court].
27. In principle, the Government does not agree with the procedure of the Regional Court or with the application for annulment of the contested provision. It considers them consistent with the constitutional order of the Czech Republic. First of all, the Government proposes to reject the proposal as manifestly unfounded, since it considers that the Regional Court can interpret the contested provision in a constitutional manner. The Court of First Instance, in its view, is not bound by the verbatim text of the law, in which case it did not even attempt a constitutional conformal interpretation or a rationality test before the submission of the application.
28. In general, the Government refers to the rejection of sp. zn. In that finding, the Constitutional Court refuted the arguments on the non-universality of the legislation, carried out a rationality test of Section 23a of the EIA Act, found no infringement of the right to a favourable environment, confirmed the legitimacy of the objective pursued and refuted the presumption of exclusion of the public concerned from judicial protection in matters of priority transport structures. According to the Government, the fundamental reason for the adoption of the now contested provision (in addition to the objective already declared in the explanatory memorandum, i.e. "to avoid possible interpretative contradictions which exist in professional circles') was the existence of a legitimate expectation of the company to implement such measures (whether factual or legislative), which would lead to a reduction of the negative consequences of transit road transport to the health of the population and which would contribute significantly to the improvement of the environment, in particular in urban conurbations of this type of transport, to the enormous burden.
29. Each of the transport projects chosen by the Government from a number of transport infrastructure structures and which fulfil the statutory conditions (§ 23a) meets the definition of public interest, as the priority implementation of each individual project will enable the actual achievement of many important objectives. These include the right to a favourable environment (Article 35 of the Charter), the right to health protection (Article 31 of the Charter), the protection against the negative effects of environmental pollution (Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms), the obligation to improve the quality of the environment within the meaning of Article 37 of the Charter of Fundamental Rights of the European Union, the fulfilment of the purpose of the EIA Act or the obligations of the Czech Republic under the Aarhus Convention, the principle of legitimate expectations and the principle of the protection of the rights of participants already in good faith.
30. Other objectives pursued by the whole of Section 23a of the EIA Act included the fulfilment of the obligations of the Czech Republic under Regulation (EU) No 1315 / 2013 of the European Parliament and of the Council of 11 December 2013 on Union guidelines for the development of the trans-European transport network and repealing Decision No 661 / 2010 / EU, resulting from the content of the Government Concept Document Transport Sector Strategy, which was a necessary document for the approval of the Operational Programme for Transport for the period 2014- 2020, or resulting from the public interest in the full use of the financial resources allocated under that Operational Programme and other economic and social impacts. The Government also pointed out that the construction was already at the stage when the final territorial decision was taken (the public concerned had the opportunity to participate), in which the route and variant of the line construction had already been established, there was property legal settlement and part of the construction was actually in place, part of the construction was in operation, the routes were also introduced into the urban plans of the municipalities in the Moravian-Silesian Region. Therefore, the re-implementation of the complete EIA process, including the assessment of route variants, would be irrelevant and counterproductive. The government would also consider it problematic in terms of protecting the rights acquired in good faith and legitimate expectations.
31. In its observations, the Government further summarised the development of the entire building authorisation procedure concerning the dispute brought before the Regional Court. In the course of the proceedings, the proceedings were divided into two separate parts and since 2017 various proceedings have been conducted before administrative authorities and courts. In the course of the legal proceedings, an application for annulment of Section 23a of the EIA Act, which ended in the rejection of the sp. zn. The applicant also proposed that a question be referred for a preliminary ruling to the Court of Justice of the European Union, but following the rejection of the Constitutional Court's finding, the courts did not do so. The Supreme Administrative Court, after almost three years of lodging a complaint, annulled both the judicial and administrative decisions and brought the matter back to the Ministry of Transport. Now both administrative decisions were again challenged in court and the issue of jurisdiction between the Municipal Court in Prague and the Regional Court, which was also decided by the Supreme Administrative Court. Finally, at the beginning of 2023, the Regional Court had already rejected one of the cases and in the other, it put forward a proposal to abolish the provisions of the law. In addition, the courts did not grant the applicants suspensory effect, thus according to the building permit and the conditions of the EIA, which are taken over, the construction in question was almost built (the test operation takes place on this building). The Government, according to its words, tries to describe by this description that the procedure of the administrative courts in the case is not optimal, certain proceedings lasted more than 3 years and does not consider the content of their decisions to be consistent either. This was also the reason for the adoption of the contested legislation.
32. In its observations, the Government further undergoes the regulation of the rationality test using the conclusions of the finding of Pl. ÚS 44 / 18. They claim that the contested legislation does not affect the core of the law in question. It further specifies the legitimate objectives of the contested legislation and states that the legitimate objective was primarily to eliminate interpretation ambiguities concerning the interpretation of the current wording of Paragraph 23a (3) of the Law and to bring it into line with the concept of the law. Moreover, the legislation was literally taken from the "analogous' provision of § 9a (3). The legal objective of ensuring interpretation ambiguities meets the principles of legal certainty and predictability of law. As regards rationality in the narrowest sense, the Government states that the appellant has in no way demonstrated the inadequacy of the regulation, while the Government rejects the assertion of fixing the validity of the opinion indefinitely. The contested provision does not allow an extension of the binding opinion, as the appellant or the claimant contends, in contrast to Section 9a (4) of the EIA Law, where the possibility of extending the binding opinion is expressly regulated. The contested legislation cannot lead to any changes to the validity of the binding opinion; it only leads to the removal of interpretation ambiguities. The adoption of a decision at first instance shall not render the binding opinion forever valid.
33. The binding opinion issued must be valid at the time of the decision of the first stage body, so it could be used, if necessary, even if the latter were to confirm the decision. However, if the first-degree decision were to be annulled, whether by a superior body or by courts, the binding opinion could no longer be used. The contested legislation is sensible and meets all four steps of the rationality test.
34. From a practical point of view, it is not even clear, according to the Government, what would have been the procedure if the Constitutional Court had complied with the deregation proposal, as the construction is already legally located - but on the basis (according to the appellant) of the "invalid 'opinion of the EIA. In the case of the Frýdku bypass - The site is even almost built. It is therefore unclear what the' new 'EIA should address, if any.
35. Finally, the Government states that it does not know that the European Commission would initiate infringement proceedings with the Czech Republic (pursuant to Article 258 of the Treaty on the Functioning of the European Union) in connection with the adoption of the contested legislation or that any communication would be conducted. The European Commission did not raise any objections to the financing of the parties' projects that the contested legislation should be contrary to the agreement between the Czech Republic and the European Commission in 2016.
36. At the request of the Constitutional Court, the Government supplemented the submission of an agreement with the European Commission of 2016, which it mentioned in its initial observations. It stated that it was not a genuine bilateral agreement between the Czech Republic and the European Commission, but rather an agreed way to correctly transpose the EIA Directive and not to jeopardise the construction of priority buildings. It can be seen from the attached communication that then Prime Minister B. Sobotka sent the English version of the draft text to the then President of the European Commission, J. -C. Juncker. In its reply, the European Commission takes note of the progress of the Czech authorities in the matter and confirms the efforts to resolve the precarious situation regarding priority transport structures. Finally, as the Czech Government itself stated in the accompanying letter, further exemptions should not be granted in the future ("going forward, no further exemptions will be granted '). Therefore, if there were other problems arising from Czech legislation, the European Commission would no longer have to adjust the conditions for carrying out environmental impact assessments and priority transport structures would have to undergo a normal environmental impact assessment, such as those governed by the basic provisions of the EIA Act. The communication was conducted in 2016 in relation to the legislation adopted at the time, not to the now assessed addition from 2021.
37. The Government therefore proposes that the Constitutional Court reject or reject the application.
38. The Constitutional Court sent all the observations to the appellant who no longer responded to them and did not use the possibility of a reply.
Review of the procedure for the adoption of the contested provisions
39. The Constitutional Court, in accordance with Paragraph 68 (2) of the Law on the Constitutional Court, first examined whether the contested provision was adopted within the limits of the Constitution laid down by competence and by a constitutional procedure.
40. Paragraph 23a (3) of the last sentence of the EIA Act was inserted into that Act by Act No. 413 / 2021 Coll. Parliament had the power to adopt this law pursuant to Article 15 (1) of the Constitution.
41. From the statements of both its chambers and publicly available documents relating to the legislative process, the Constitutional Court found that the parliamentary bill had been circulated to Members as Press No. 1304 on 17.8.2021 and it was also proposed that the Chamber of Deputies should give its consent at first reading (Section 90 (2) of the Rules of Procedure of the Chamber of Deputies). The Chamber of Deputies adopted on 15 September 2021 at the 118th session of Resolution 1783, by which it gave its assent to the continuation of the negotiations on the House of Press No. 1304, so that it could be agreed at first reading, while at the same time agreeing to the parliamentary bill. 118 Members came to the vote, 102 of them voted in favour of the bill, and no one opposed the bill. Subsequently, the bill was passed on to the Senate, which at the 17th meeting as Senate Press No. 158 discussed it and adopted Resolution No 315 approving the bill. A total of 49 senators voted in favour of the bill, 11 abstentions and no one was against it. The President of the Republic signed the Act on 15.11.2021 and on 19.11.2021 the Act was published in the Collection of Laws in the amount of 187 under No 413 / 2021 Coll. The Constitutional Court concludes that the law was adopted in a constitutional manner.
A substantive review of the contested provision
General considerations of the legislation under assessment
42. The Constitutional Court states that, on the basis of a proposal from the same appellant, it has already dealt with the constitutionality of the entire Section 23a of the EIA Act (as it was before the entry into force of the now contested provision) in the Pl. ÚS 44 / 18. The Constitutional Court considers it appropriate to briefly approximate the specifics and purposes of Section 23a of the EIA Act or its relationship to the general EIA procedure regime, as summarised in the Pl. ÚS 44 / 18 (paragraphs 1-7), as well as the subsequent key conclusions of the finding of Pl. ÚS 44 / 18.
EIA Standard Process
43. The EIA process of assessing the environmental effects of the project, as provided for in the EIA Act, is an environmental protection instrument through which one of the most important principles of environmental protection is met, namely the principle of prevention. The aim of the EIA process was to establish an effective preventive system for assessing the effects of projects and concepts on the environment and public health as a tool for a comprehensive systematic examination of the consequences of proposed projects for the environment (public health) and to ensure that environmental and public health interests are considered in decision-making processes (see Section 1 of the EIA Act). The purpose of the Institute's environmental impact assessment is to obtain an objective technical basis (binding opinion) on the environmental impact of the project for the follow-up administrative procedure or procedure. The content of the opinion on the assessment of the environmental effects of the project is binding and must be reflected in the operative part of the follow-up administrative action, most frequently the administrative decision.
44. According to Section 5 of the EIA Act, the EIA process includes the identification, description, assessment and evaluation of the expected direct and indirect significant effects of the implementation and non-implementation of the environmental plan (paragraph 1). The assessment of the project shall assess the environmental effects in its preparation, implementation, operation and eventual termination and, where appropriate, the consequences of its liquidation, as well as the rehabilitation or reclamation of the territory, provided that the obligation to recover or reclamation is laid down in specific legislation. The effects related to the normal operation of the project and resulting from its vulnerability to serious accidents or disasters relevant to the project (paragraph 3) shall be taken into account. The assessment shall include a proposal (so-called mitigation) for measures to prevent potential significant negative effects on the environment by implementing the project, to exclude, reduce, mitigate or minimise it, and, where appropriate, to increase beneficial environmental effects by implementing the project, including an assessment of the expected effects of the proposed measures, and a proposal for measures to monitor potential significant negative effects on the environment, unless otherwise required by other legislation (paragraph 4).
45. The environmental impact assessment process shall be initiated by the notification of the project to the competent administrative authority (Regional Office or Ministry of Environment), which shall subsequently, if it fulfils the legal requirements, publish it and send it to the authorities and local authorities concerned. Everyone (i.e. the public, the public concerned - in particular the so-called environmental associations, the authorities concerned and the local authorities) has the opportunity to comment in writing on the project within 30 days of the date of publication of the notice. The notification shall, as a general rule, be followed for the second group of projects and their changes to the screening procedure for their potential significant environmental impact; it may result either in a decision that the project will not be the subject of an environmental assessment or, on the contrary, a reasoned written conclusion that the project will be assessed in terms of its environmental impact. Subsequently, the notifier shall ensure that the documentation is processed by an authorised person. Within 30 days of the publication of the information on the dossier, everyone shall have the opportunity to make their views known in writing and, if the public disagrees with the dossier, the administrative authority shall order public consultation. Thereafter, the competent authority shall contractually arrange for the processing of an opinion by an authorised person, which shall draw it up on the basis of documentation and observations submitted, taking into account the conclusions resulting from the public consultation, if any. The report is a key basis for a binding opinion subsequently issued on the assessment of the effects of the implementation of the project on the environment (impacts on the territory, population and public health, air and climate, soil and natural resources, biodiversity, etc.).
46. Pursuant to Article II (1) of Act No. 39 / 2015 Coll., amending Act No. 100 / 2001 Coll., on Environmental Impact Assessment and on the Amendment of Certain Related Laws (Environmental Impact Assessment Act), as amended, and other related Laws, it is true that "[u] opinions on the environmental impact assessment issued before the date of entry into force of this Act shall be issued by the competent authority on the basis of a notice of initiation sent to that Office by the Administrative Office responsible for conducting the follow-up proceedings or following a request from the notifier before the start of the subsequent procedure, after having verified that their content is in accordance with the requirements of the legislation which they are transposing Directive 2011 / 92 / 2011 / EU. The competent authority shall at the same time specify in the binding opinion referred to in the first sentence which of the conditions set out in the opinion on the assessment of the effects of the implementation of the project on the environment the administrative authorities responsible for conducting subsequent proceedings are required to include in their decisions. If it is not possible to issue a consensual binding opinion under the first sentence, the intention must be subject to a reassessment pursuant to § 4 of Act No. 100 / 2001 Coll., on the assessment of environmental effects and on the amendment of certain related laws (Act on Environmental Impact Assessment), as effective after the date of entry into force of this Act '. In other words, for binding opinions on environmental impact assessments issued by 31.3.2015 (i.e. pursuant to Act No. 244 / 1992 Coll., on environmental impact assessment, as amended), they must assess their compliance with the current regulatory requirements and, on the basis of this assessment, either a confirmatory binding opinion will be issued or the intention to re-assess its environmental effects under existing legislation, since the" old' binding opinion no longer meets its requirements.
Specific EIA process concerning priority transport structures - Section 23a of the EIA Act
47. Contrary to the standard EIA process described above, Section 23a of the EIA Act provides for a different (simplified) EIA process concerning so-called priority transport projects. Paragraph 23a was inserted into the Act by Act No. 256 / 2016 Coll., amending the EIA Act with effect from 5 August 2016. (b) for which a territorial decision has been issued no later than 31 March 2015; For these key transport projects the application of the above mentioned Article II (1) of Act No. 39 / 2015 Coll., i.e. the obligation to issue a confirmatory binding opinion or to carry out a reassessment of their environmental impact, is excluded.
48. In the case of priority transport projects, only the Ministry of the Environment will issue a new binding opinion on their environmental effects (cf. paragraph 3 above), without prior publication of the procedural stages under paragraphs 6 to 9 of the EIA Act (notification of the intention, investigation procedure, submission of documentation, processing of the opinion, public opinion, public opinion, the public concerned, the authorities concerned and the local authorities concerned, public consultation, etc.). As follows from the explanatory memorandum to Act No. 256 / 2016 Coll., the aim was to establish § 23a to complete the implementation of priority transport projects or to prevent delays in their preparation by allowing the continuation of authorisation processes without the new implementation of the EIA corresponding to the new legislation. In order to assess the impact of a priority transport project on the environment, a special binding opinion of the Ministry of the Environment, which is the basis for the decision in subsequent proceedings, is therefore sufficient. Paragraph 23a (3) limits the validity of this special binding opinion to five years.
49. Paragraph 23a, in its then version, was subject to review by the Constitutional Court in the proceedings sp. v. Pl. ÚS 44 / 18, which did not find its inconstitutionality. Finally, the final sentence of Paragraph 23a (3), which was now contested, was supplemented by Law No 413 / 2021 Coll. under which "[s] tanovice must be valid at the time of the decision in subsequent proceedings at first instance '.
Conclusion on the constitutionality of Section 23a of the EIA Act
50. The Constitutional Court dealt, inter alia, with the alleged undue interference in the right of the public concerned to participate in the process of environmental impact assessment under Article 35 (1) of the Charter in finding Pl. ÚS 44 / 18. The Constitutional Court summarized that the restriction of the rights of the public concerned followed a legitimate objective, did not interfere with the core (essential content) of the right to a favourable environment and stood in the rationality test.
51. Summary that "the objective of the unique, exceptional and territorial and time-limited contested legislation is in particular to accelerate or rather not slow down the process of implementing priority transport projects which were at the stage of advanced preparedness at the time of its adoption. In accordance with the specific procedure laid down in the contested provision, it is not necessary to repeat the entire classic process of assessing the effects of projects on the environment, but it is possible, without the previous stages of the procedure and without the active participation of the public concerned, only to issue a binding opinion on the effects of priority transport projects on the environment, which is the basis of successive administrative procedures and procedures (in particular construction procedures), to which the public concerned is able to participate and to exercise their rights, including against the content of the binding opinion itself on the effects of projects on the environment '(point 64).
52. Furthermore, the Constitutional Court concluded that "the possibility for the public concerned to defend itself against subsequent administrative actions by administrative action is also maintained, in which assessment can also examine the legality of the underlying binding opinion on the effects of priority transport projects on the environment. The Constitutional Court has subjected the contested regulation to a rationality test and concluded that Section 23a of the Act on Environmental Impact Assessment constitutes a reasonable degree of limitation of public participation in the environmental impact assessment process for priority transport projects. The public concerned still has wide scope to participate in successive and related procedures and procedures concerning the effects of priority transport projects on the environment '(paragraph 65).
Assessment of the constitutionality of the contested provision
Application of Article 35 (1) of the Charter
53. The appellant alleges the inconstitutionality of the contested legislation on grounds of infringement of the right to a favourable environment. Thus, the Constitutional Court had first to assess whether Article 35 (1) of the Charter was applicable even in the current situation or whether the contested legislation concerned the right to a favourable environment.
54. The appellant contends that there is a risk that the binding opinion of the EIA, issued pursuant to Article 23a at the time of the decision of the administrative authority at the second stage, is immaterial because the validity of the opinion is based on a decision at first instance and it is in no way taken into account how long the follow-up proceedings take place, for example following the appeals of the courts. In addition, it should be pointed out that the present case does not formally extend the validity of the opinion as it remains valid after the amendment for five years, whereas the extension of the opinion was not enshrined (contrary to the legislation in Section 9a (4) of the EIA Act). In fact, this is a question of whether the opinion issued pursuant to Paragraph 23a is up to date or whether it is relevant at the time when the decision is taken in the second instance (in the interim procedure). As has been pointed out above, the whole EIA process aims to assess the environmental impact of a project, which includes the existence of background opinions, including a special opinion issued pursuant to Paragraph 23a. The specific regime of the underlying opinions for priority transport projects set out in Section 23a, including the now contested provision, concerns the right of the public concerned to participate in procedures and procedures whose objects (construction projects) may affect the environment. According to the Constitutional Court's decision-making practice, this right is part of the right to a favourable environment guaranteed by Article 35 (1) of the Charter [cf. find sp. zn. III. ÚS 70 / 97 of 10.7.1997 (N 96 / 8 SbNU 375) or the already cited finding sp. zn. ÚS 44 / 18].
55. Although the present case is not a new form of restriction of public participation in the process of assessing the impact of the project on the environment (this was the very introduction of Article 23a and was the subject of an assessment in the Pl. ÚS 44 / 18), but "only 'the question of the specification of the procedural phase, on which a binding opinion issued pursuant to Article 23a is to be valid, does not preclude the applicability of Article 35 (1) of the Charter. Even the possible illegality of the opinion delivered pursuant to § 23a at the time of the decision at the second instance, even if the Constitutional Court has already addressed a specific process relating to priority transport structures, concerns Article 35 (1) of the Charter, since the contested provision cannot be completely separated from the context of the whole of § 23a. The purpose of the EIA process is, in general, to evaluate the environmental impact of the project, while the current background is one of the important aspects of the whole process. The Constitutional Court therefore concludes that the contested provision affects the right to a favourable environment, or that Article 35 (1) The Charter is applicable in the present case.
Article 41 (1) of the Charter - Rationality Test
56. For the rights referred to in Article 41 (1) of the Charter, that is to say also for the law guaranteed by Article 35 (1) of the Charter, those rights may be sought "only within the limits of the laws implementing those provisions'. The Constitutional Court for the procedure in matters of standard control (whether abstract or specific) concluded that the constitutionality of the laws which affect the rights referred to in Article 41 (1) of the Charter is assessed by a restraint test, namely the rationality test [cf. the finding of 5.10.2006 sp. zn. Pl. ÚS 61 / 04 (N 181 / 43 SbNU 57; 16 / 2007 Sb.) or the finding of 20.5.2008 sp. zn. Pl. ÚS 1 / 08 (N 91 / 49 SbNU 273; 251 / 2008 Sb.)]. Thus, the differential test of rationality reflects the compromise between the attempt to respect the legislature's wide discretion in the regulation of the rights under Article 41 (1) of the Charter, but at the same time not to give such rights (guarantee of Article 4 (4) of the Charter) to legislators fully available to fulfil any content.
57. The rationality test consists of four steps: 1. the definition of the essential content of economic, social or cultural law (its core); 2. an assessment of whether the claim requested affects the core of that right (its essential content); 3. an assessment of whether the interests against the claim are legitimate (from a constitutional point of view); 4. Consideration of whether the law on entitlement is reasonable (rational) in view of conflicting legitimate interests, although not necessarily the best, most appropriate, most effective or wisest. In the event that the law affects the very essential content of the fundamental right, the contested measure is examined by the proportionality test, which would assess, inter alia, "whether intervention in the essential content of the law is justified by the absolute exceptional nature of the current situation which would justify such intervention '[see the finding of 20.5.2008 sp. zn. ÚS 1 / 08 (N 91 / 49 SbNU 273; 251 / 2008 Coll.].
Absence of interference in essential content (core) of the right to a favourable environment
58. The Constitutional Court first assessed whether the contested provision affects the core or essential content of the right to a favourable environment. As it has already summed up in the finding of Pl. ÚS 44 / 18, the environment can be characterized according to § 2 of Act No. 17 / 1992 Coll., on the Environment, as amended, as "[...] everything that creates the natural conditions of the existence of organisms including man and is a prerequisite for their further development. Its components are mainly air, water, rocks, soil, organisms, ecosystems and energy '. As part of the environment" [...] everything surrounding man and the quality of his life depends on [see the find of 22.4.2008 sp. zn. ÚS 35 / 06 (N 72 / 49 SbNU 67; 286 / 2008 Coll.)]. Core right to a favourable environment as referred to in Article 35 (1) In particular, the Charter is the possibility for everyone to seek the protection of the natural environmental conditions of their existence and sustainable development, with which it corresponds to a positive commitment by the State to safeguard the inherited natural wealth, to ensure the gentle use of natural resources and to protect natural wealth (preamble and Article 7 of the Constitution). A positive commitment by the State is therefore, inter alia, to protect against environmental interference to an extent that would make it impossible to realise the basic needs of man.
59. In the Found Pl. ÚS 44 / 18 The Constitutional Court has pointed out to the limitation of the right of public participation in the EIA process that the provisions of Section 23a of the EIA Act concern a procedural aspect of the right to a favourable environment, adding that "a binding opinion on the effects of a priority transport project on the environment is only a underlying act for follow-up proceedings and procedures that the public concerned may, in conjunction with Section 9c (g) of the Environmental Impact Assessment Act (in particular, construction proceedings), as well as its content may be subject to judicial review '. It took into account that the restriction only takes place in a" narrow circle of transport projects', as well as that the regulation of Paragraph 23a does not restrict the right of the public to "seek protection of the constitutional right to a favourable environment as a constitutional value and public good '. The Constitutional Court therefore concluded, in the case sp. zn.
60. All the above-mentioned aspects have been taken into account by the Constitutional Court in the present case. The contested legislation regulates the procedural aspect of the right to a favourable environment, so the partial procedural regulation of one of the laws (EIA) implementing the right to a favourable environment is challenged. The contested legislation does not directly affect the "realisation of the basic life needs of man" (unlike, for example, access to drinking water, etc.). At the same time, it concerns only selected priority transport structures, so it is not an overall modification of the EIA process in the Czech Republic against all intentions. The contested regulation remains unaffected by the possibility of defending the right to a favourable environment for the public concerned (typically through environmental associations) in administrative proceedings and before the courts, as evidenced by the repeated submission of decomposition by the applicant against the building permit, as well as the action before the Regional Court itself. Thus, even in the present case, the Constitutional Court concludes that the contested provision does not interfere with the very core (substance, essential content) of the constitutionally guaranteed right to a favourable environment and therefore considers the constitutionality of the legislation as a criterion of its rationality (rationality).
Assessment of the existence of legitimate objectives pursued by the contested regulation
61. The Constitutional Court also addressed the question of whether the contested provision pursues a legitimate objective, namely whether it is an arbitrary reduction in the overall standard of fundamental rights.
62. The legal objectives of the contested legislation cannot be completely separated from the legitimate objectives of the entire Section 23a of the EIA Act. As is apparent from the explanatory memorandum to Act No. 413 / 2021 Coll., the sentence under appeal has now been added to the provisions of § 23a precisely in order not to thwart the whole purpose of § 23a. The explanatory memorandum states, inter alia, that "The legislation governing binding opinions on the effects of a priority transport project on the environment is completely independent and unique (in the words of the Constitutional Court, unique, territorial and time-limited - to this see the finding of the Constitutional Court of Pl. ÚS 44 / 18) and the procedures for the standard process of assessing the environmental effects of the project pursuant to § 4 et seq. The law does not apply in the case of a binding opinion under Paragraph 23a of the Law. The validity of a binding opinion on the effects of a priority transport project on the environment is 5 years under the applicable legislation. The possible legal interpretation of the question of the validity of this binding opinion is that, at the moment of the legal authority's decision (at first or second instance), the opinion must be valid. This is the case, therefore, with regard to the two last priority transport structures (out of 10), which do not yet have all the necessary building permits to implement them, i.e. the construction of the motorway D1 0136 Říkovice - Přerov and D49 Hulín - Fryšták, is a serious problem in which, in view of the existing adjustment of the decision-making processes under the construction law (construction and zoning) and in particular the active activities of the interest associations, it is not possible to achieve a binding position of a final building permit in respect of the whole construction, regardless of the very advanced stage (degree) of project preparation - construction. As a result, it will be necessary (in the event that the binding opinion is binding on the legal power of the subsequent decision) to have the new EIA opinion processed, of course for the whole project, not just for the missing (i.e. not yet authorised) building objects. Further to this, it is also necessary to consider the possible consequences of the new EIA assessment on the currently legally authorised (and often also implemented) partial building permits for certain building buildings, when technical standards have also changed in the meantime. This will therefore entail not only a significant economic burden on the budget, both as a result of the de facto non-applicability of existing documents (relevant project documentation, authorising decisions by the authorities, etc.) of the very advanced preparation of buildings, but also as a result of the removal of buildings already constructed. either way, these costs are already in the order of hundreds of millions to billions of CZK."
63. As in the procedure in point Pl ÚS 44 / 18, it is therefore a key question here whether the "running 'priority transport structures forming the trans-European transport network will not need to be carried out by the complete EIA process, but whether (in addition to the original underlying opinions - see paragraph 46 above) only a binding opinion issued under Section 23a will suffice, with the opinion now being bound by the legislation under appeal to close the proceedings at first instance. The legal objective of the contested regulation is as consistent as in the procedure sp. zn. The Constitutional Court accepts the Government's assertion that the aim of the completion of priority transport structures is, as a general rule, to reduce the negative consequences of transit road transport to the health of the population, in particular in urban conurbations burdened by transit transport, to protect legitimate expectations and to protect the rights of participants acquired in good faith in procedures already under way, as well as the development of the trans-European transport network, or to fulfil the obligations of the Czech Republic under Regulation (EU) No 1315 / 2013 of the European Parliament and of the Council on Union guidelines for the development of the trans-European transport network and repealing Decision No 661 / 2010 / EU.
64. Likewise, the Constitutional Court accepts as a legitimate objective of the contested legislation the prevention of interpretation disputes in the event that the moment on which the binding opinion issued pursuant to Paragraph 23a is to be valid would not be expressly added to the law. The completion of the procedural phase to which the opinion relates is undoubtedly eligible to contribute to legal certainty or to the prevention of interpretation disputes. The already cited explanatory memorandum states, inter alia, "In the professional circles, there are widespread (at first sight perhaps logical but legally unfounded) opinions that the validity of the binding opinion according to the provisions of § 9a of the Law [here the validity of the opinion is also bound by the first-degree decision - note of the Constitutional Court] is applicable by analogy to priority transport structures. It is therefore necessary to remove this uncertainty by supplementing the existing legislation, both in substance and in logic, which does not effectively extend or alter the period of validity of the binding opinion for priority transport projects, but merely brings into line with the legislation already in force on the environmental impact assessment process (EIA) as a whole, so as to eliminate any doubts and ambiguities in which such (by this draft law) procedure corresponds to the overall concept of the Law '. In this respect, the legitimate objective of the contested legislation can thus be accepted as the value of legal certainty, since the explicit establishment of the procedural phase on which the opinion is to be valid leads to greater certainty and predictability than the import of that process by interpretation.
65. The Constitutional Court thus finds that the contested legislation pursues specific legitimate objectives and is therefore not merely a sign of unfounded (no legitimate) objective of interference with constitutionally guaranteed rights.
Rationality of the contested legislation
66. Finally, the Constitutional Court had to assess whether the contested legislation could achieve the legitimate objective pursued, or legitimate objectives pursued, and whether, in view of the conflicting interests, the legislation was at least reasonable (rational), even if not necessarily best, most appropriate, most effective or wisest.
67. The appellant contradicts the rationality of the chosen solution and states that "it cannot be ruled out that, for some [construction], it may be possible, for example in the course of a judicial review or a review by the Constitutional Court as a result, to repeal the decision in the follow-up proceedings', whereas" regardless of the course of time, it will still be sufficient that the priority binding opinion of the EIA was valid at the time of the decision in the follow-up proceedings', which the appellant considers to be contradictory with the requirement of the current opinion.
68. The Constitutional Court is aware of the risk arising from the contested legislation, which is accentuated by the appellant. At the same time, however, he had to consider whether the very fact that the opinion is based on an administrative decision at first instance constitutes an irrational means of achieving the objectives pursued. The Constitutional Court concluded, for the reasons set out below, that the link between the validity of the opinion at the time of the first stage decision is one of the possible rational ways of defining the moment on which the opinion is bound. Moreover, the EIA Law also uses this method of determining the time at which a given underlying decision is to be valid in § 9a (3).
69. The key point in the case under examination is that the contested legislation does not in itself cause without further irrational consequences, which can only be given by the passage of time in a particular procedure. These consequences are always dependent on the course and, in particular, the duration of the proceedings, typically on the number of possible appeals by the administrative courts or the Constitutional Court or, in general, on the time interval between the issue of the underlying decision and the issue of a secondary decision in the subsequent proceedings. While it is necessary to agree with the appellant that the possible negative consequence of the legislation in the form of a non-up-to-date opinion cannot be ruled out, it cannot be automatically summed up on the basis of the wording of the contested provision.
70. The appellant's alleged risk that in certain situations (or procedural constellations), although the underlying opinion may be completely out of date but still be legally relevant, cannot lead to the conclusion that this risk is present in each situation, or always without taking into account the length of the particular procedure or the specific circumstances of the case. In other words, there is a difference in substance where degradation is decided, for example, in the same year when the opinion expired (subject to its validity at the time of the administrative decision at first instance) or, for example, at 10 years.
71. It follows that the lack of the legislation under review is rather than its current content a lack of guarantee that the opinion issued under Section 23a of the EIA Law will not be applicable for a disproportionate period of time. However, this does not make the provision under review unconstitutional. If this situation were indeed to arise and could lead to a specific breach of public subjective rights, it could be objected to in subsequent administrative proceedings (since the EIA process is always the basis for further follow-up). It is not for the Constitutional Court to answer the question of whether this procedure is ideal and effective, since it clearly does not interfere with constitutional rights in this context.
72. In the light of the legitimate objectives pursued by the legislature by amending the legislation, or even earlier by including the whole of Section 23a in the EIA Act, the Constitutional Court had to assess whether the risk of permanent acceptance of the contested legislation and thus the factually inapplicable opinion issued pursuant to Section 23a could be prevented otherwise than by a deregation of the Constitutional Court against the contested legislation.
73. In general, when reviewing administrative decisions, administrative courts may revoke both the decision of the appeal body and the decision of the first instance body (cf. § 78 (3) of the Administrative Rules). When the first stage administrative decision is annulled, it would no longer be possible to re-use the underlying opinion which has expired in the meantime. The legal system therefore contains an insurance policy to prevent a hypothetical risk that the administrative authorities and, consequently, the administrative courts would be forced to "endlessly 'accept the underlying opinion issued under Paragraph 23a, which would, however, be completely useless from a material point of view because of the passage of time. The result of the contested legislation is not, therefore, automatic acceptance of the underlying opinion issued pursuant to Paragraph 23a as once and for all (" indefinitely') of the applicable or, respectively, relevant.
74. At the same time the Constitutional Court, as in the case sp. zn. However, the annulment of the contested legislation would automatically prevent the purpose of the whole of Paragraph 23a (in relation to certain construction or management), although it is not built for certain reasons that, in each individual "on-going 'procedure, the interest in the protection of the right under Article 35 (1) of the Charter could outweigh the protection of the legitimate objectives pursued.
75. The Constitutional Court is aware that the specific and already constitutionally acceptable (Pl. ÚS 44 / 18) exemption from the standard EIA process enshrined in § 23a should not be "prolonged" in disproportionately so that the purpose and purpose of the underlying opinions issued under § 23a are completely denied in the specific proceedings. At the same time, however, the Constitutional Court did not find that the contested legislation itself had always led to these consequences without further action and therefore did not proceed to its deregation.
76. If the appellant draws attention to the agreement between the Government of the Czech Republic and the European Commission, it must be noted that it is a political agreement, not a source of law. Nor is it a reference criterion for the review of the constitutionality of the contested provision in the proceedings under Article 87 (1) (a) of the Constitution, since that is constitutional order, namely Article 35 (1) of the Charter in the case at hand.
77. The Constitutional Court thus summarises that the contested legislation does not affect the very core of the right to a favourable environment, pursues legitimate objectives and constitutes a rational means of achieving them. If the Constitutional Court, in its finding Pl. ÚS 44 / 18, accepted that a certain degree of intervention in the procedural component of the right to a favourable environment (limitation of public participation in the assessment processes) was a rational means of achieving the legitimate objectives pursued, it had to take into account that, in the present case, it was not such an intensive intervention in the law in question (specification of the procedural phase on which the opinion is being considered), as was the case in Pl. ÚS 44 / 18, in order to thwart the purpose of Article 23a or the legitimate objectives pursued by it. The appellant is not bound by the provisions of the contested regulation, as, on the one hand, it depends on the conduct of a specific procedure and the factor of the passage of time, and, on the other hand, administrative courts may always prevent any excessive consequences when assessing the particular circumstances of the case.
Conclusion
78. The Constitutional Court therefore concludes that, pursuant to Paragraph 70 (2) of the Law on the Constitutional Court, it rejected the application because it did not find that the contested provision of Paragraph 23a (3) of the last sentence of the EIA Act was contrary to the constitutional order.
President of the Constitutional Court:
JUDr.
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Regulation Information
| Citation | The Constitutional Court found no 24 / 2024 Coll., sp. zn. Pl. ÚS 7 / 23 on the application for annulment of § 23a (3) of the last sentence of Act No. 100 / 2001 Coll., on Environmental Impact Assessment and on the amendment of certain related laws (Act on Environmental Impact Assessment), as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 08.02.2024 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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