The Constitutional Court found No 253 / 2010 Coll.

Motion denied.

1. In accordance with Article 95 (2) of the Constitution of the Czech Republic, the appellant requested that the Constitutional Court issue a finding repealing Article 13 of Act No. 82 / 1998 Coll., on liability for damage caused in the exercise of public authority by decision or maladministration and amending the Act of the Czech National Council No. 358 / 1992 Coll., on notaries and their activities (notarial order), as amended. The Constitutional Court, as amended, (hereinafter referred to as "the Constitutional Court Act ') and, with reference to § 71c of that Act, referred to Parliament, the President of the Republic and the Government as a party to the proceedings (note this definition of the parties to the proceedings is clearly incorrect, because the group of participants in the event that the Constitutional Court decides to abolish laws or other legislation is defined by Paragraph 69 of the Law on the Constitutional Court).

2. In the proposal, the appellant briefly described the development of the dispute. In particular, he stated that by interim judgment of 14 October 2004 No 30 C 47 / 2003-86 in the case of the plaintiff of the commercial company CODUM, s. r. o., against the defendant of the Czech Republic (for which the Ministry of Health is acting), the claim claimed by the claimant is justified as the claimant has declared to the health insurance undertaking the care carried out, but the insurance company has determined, according to the limits set by the relevant government decisions, the value of the point which it has limited in time and quantity, and the reduction of the remuneration for the care provided in excess of those limits. In the appellant's view, when issuing these decisions, the Government exceeded the scope of its authorisation as defined in § 17 (5) of Act No. 48 / 1997 Coll., on Public Health Insurance and amending and supplementing certain related laws, as amended, and thus committed maladministration within the meaning of § 13 of Act No. 82 / 1998 Coll. On appeal of the defendant, the Municipal Court in Prague confirmed the judgment of the appellant and agreed with his view that, if the Government exceeded its mandate, it had committed maladministration within the meaning of Act No. 82 / 1998 Coll. The defendant's appeal by the Supreme Court annulled the two previous judgments because, in his view, the issue of a legislative act is not an official procedure of the Government, but is the result of its legislative activity, and it cannot be regarded as an maladministration within the meaning of § 13 of Act No 82 / 1998 Coll.

3. On the substance of the case, after citing the contested provision, the appellant merely pointed out that the maladministration is not regulated by law, even if the public authority exceeds its powers in relation to derived standards, so that the interpretation of that provision leads in practice to the effect that any standard-making activity of a public authority is de facto untouchable, even if the public authority exceeds its authority in respect of the intrinsic standard, so that both the authorities and the government may arbitrarily and arbitrarily, in respect of the intrinsic norm, exceed the authorisation without, in the event that it causes any other damage, they are liable for breach of their obligations. This is contrary to the wording of Article 2 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), which lays down limits on the exercise of State authority in such a way that state authority may only be exercised in cases and within the limits laid down by law, in the manner provided for by the law and Article 4 (3) The Charter then states that legal restrictions on fundamental rights and freedoms must apply equally to all cases which fulfil the conditions laid down and, finally, Article 36 (3) The Charter then states that everyone has the right to compensation for damage caused to him by an unlawful decision of a court, other state or public authority or by an incorrect official procedure. In addition, the appellant added that, when assessing whether the Government's practice of making cited decisions is an incorrect official procedure, he found no other option than that described above to be assessed by the Government in accordance with the substantive rule which it requests to be repealed.

4. For the reasons set out above, the appellant considers that the provision of Section 13 of Act No. 82 / 1998 Coll. is contrary to the constitutional order of the Czech Republic and therefore proposed that the Constitutional Court annul that provision.

5. The Chamber of Deputies of the Parliament of the Czech Republic, in its brief statement signed by its Vice-President Miroslava Nemcová, on behalf of President Ing. Miloslav Vlček, only stated that the second sentence of this text was inserted into the provision in question: "An incorrect official procedure is also a breach of the obligation to act or to give a decision within the statutory deadline. ', the draft law was subsequently approved at the third reading on 12 February 1998 (149 against none of the other Members present), therefore it was adopted after a proper legislative procedure, signed by the relevant constitutional officials and declared in the ECR. No opinion was taken by the Chamber of Deputies on its own content.

6. The Senate of the Parliament of the Czech Republic, in its observations signed by its President, MUDr. he informed that the Senate had interrupted the negotiations on the proposal and that the subsequent continuation of negotiations within the constitutional 30-day period had not occurred, so the draft law was adopted in accordance with Article 46 (3) of the Constitution of the Czech Republic. He then informed about the procedure for discussing the proposal to amend the provision in question, i.e. the adoption of Act No. 160 / 2006 Coll. The Senate then stressed that no objections were raised in the negotiations on the draft law or in the negotiations on the draft amendment which would point to the absence of a precise definition of the concept of "maladministration 'and questioned the constitutionality of the provisions of Section 13 of the Act. He concluded from this that the Senate accepted the opinion of the appellant of the law expressed in the explanatory memorandum that a concise definition of the concept of" maladministration' could not be made for its multiplicity. The interpretation of the concept is thus left to legal (in particular judicial) practice. He also pointed out the information provided in the general section of the explanatory memorandum to the draft amendment of the law, which states that there are areas of State liability for damage caused by the exercise of public authority, which is not regulated by Law 82 / 1998 Coll. in its current version, although it is up-to-date issues (de lehferenda is explicitly mentioned also the regulation of State liability for damage caused by illegal legislation and infringement of the obligation to issue legislation). The assessment of the possible contradiction of the contested provision of § 13 of Act No. 82 / 1998 Coll., as amended, with Articles 2 (2), 4 (3) and 36 (3) of the Charter leaves the consideration of the Constitutional Court to the full.

7. In the course of the proceedings, it provided its comprehensive observations - without a call from the Constitutional Court - by CODUM, s.r.o. It stated that it was aware that it was not a party to or an intervener in the proceedings pending before the Constitutional Court, but that it was a party to the proceedings from which the application arose and therefore the decision of the Constitutional Court would be directly concerned. Following a comprehensive analysis of the issue of the interpretation of maladministration and its consequences, it was considered that the State's liability for damage caused by a sublegal norm contrary to the laws of a higher legal force is a regular part of the democratic rule of law and that the right to such compensation constitutes the content of the law under Article 36 (3) of the Charter. It therefore proposed that the Constitutional Court should abolish Article 13 of Law No 82 / 1998 Coll. thereby giving the legislator the opportunity to adopt a constitutionally conformal legal regulation which would have to include clear conditions for determining the State's responsibility for the legislative activity of executive power. Since CODUM, s. r. o., is not a party to this proceedings, the Constitutional Court could not take into account the content of its observations.

8. From the file of the District Court for Prague 1 sp. zn. 30 C 47 / 2003 The Constitutional Court found that there was an action in which the applicant, CODUM, s. r. o., sought alternative (in addition to explaining that she meant subjective cumulation in the form of a separate procedural community on the part of the defendants) against two defendants (referred to as 1. Czech Republic - Government of the Czech Republic, 2. The Ministry of Finance of the Czech Republic, subsequently more precisely designated as the Czech Republic - Ministry of Finance of the Czech Republic), and consequently against the Czech Republic - Ministry of Finance, compensation for damages of CZK 1 353 037.04 with the facilities which it was created as an operator of a non-state health facility by the incorrect procedure of the Government in establishing the volume and time limits on which compensation for the health care provided. On 14 October 2004, the Circuit Court issued interim judgment No 30 C 47 / 2003-86, which found entitlement to the ground-based maladministration to be justified, saw maladministration in the setting of time limits and quantitative limits, the fixing of the remuneration for the so-called excess health care claimed and the setting of the amount of the "urgent care 'point in the form of a government regulation, since the Government did so without legal authorisation for such regulation. The defendant appealed against a first-degree decision challenging the legal assessment of the case, but the City Court of Prague confirmed the contested decision by judgment of 24 February 2005 No 20 Co 526 / 2004-108. In his reasoning, he stated, inter alia, that the appellant's objection to the government bearing only political responsibility for its decisions was not justified. The Government is the executive authority, and if, by its decision-making procedure, it exceeded the scope of its authorisation as defined in Article 17 (5) of Act No. 48 / 1997 Coll., in breach of that Act, it erred in its legislative procedure, thereby fulfilling the features of the maladministration in the exercise of public authority under Article 13 of Act No. 82 / 1998 Coll. The Court of Appeal referred to the finding of the Constitutional Court, sp. zn. I. ÚS 245 / 98 of 22.9.1999 (N 128 / 15 of SbNU 221 *), under which Law No 58 / 1969 Coll., on liability for damage caused by a decision of a State authority or by its maladministration, does not preclude the application of a claim from maladministration of the Government, even if, in Paragraph 1 (1) of the Act cited, the authorities which may have committed maladministration, which at the same time admits that, even if the law on a particular case of damage arising from the State's activities excludes or limits the State's liability, it shall be applied on the responsibility of the State for damage of Article 36 (3) of the Charter directly, as a consequence of the constitutional order of the Czech Republic. He added that the fact that the government's decisions themselves are of a normative nature is irrelevant from the point of view of the State's liability under maladministration. The defendant appealed against the judgment of the Municipal Court in Prague, the reasoning of which concentrated in particular on the claim that legislative activity is neither an official procedure nor a decision-making process, that it is in fact a licence for the issue of substatutory regulations entrusted to the Government by the Constitution of the Czech Republic. By judgment of 26 September 2007 No 25 Cdo 2064 / 2005-131, the Supreme Court annulled the two previous judgments (remarked by the Ministry of Health as an organisational component entitled to act as State) and referred the case back to the District Court for Prague 1 for further proceedings. It accentuated [using the Constitutional Court's finding sp. zn. Therefore, he did not agree with the view of the Court of Appeal, which was the responsibility of the State for the maladministration, even in the case of the legislative procedure of the Government, and concluded that if the legislative activity or inaction of the public authority cannot be regarded as an maladministration, the State's liability for damage caused by maladministration within the meaning of Article 13 of Law No 82 / 1998 Coll. and Article 18 of Law No 58 / 1969 Coll. The judgment of the Supreme Court challenged the applicant's constitutional complaint (the appellant interrupted the proceedings until the time of the decision on the constitutional complaint), which was rejected as inadmissible by the order of the Constitutional Court of 22.5.2008 sp. zn. II. ÚS 492 / 08 (available at http: / / nalus.ujud.cz). Subsequently, the applicant submitted an application to bring the case before the Constitutional Court, which was granted by the District Court for Prague 1 (see sub A.).

9. The Constitutional Court is required - in accordance with Paragraph 68 (2) of the Law on the Constitutional Court - to first examine whether the law, the unconstitutionality of whose provision is contested, has been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner. The appellant seeks the annulment of § 13 of Act No. 82 / 1998 Coll., on liability for damage caused in the exercise of public authority by decision or by incorrect official procedure and amending the Act of the Czech National Council No. 358 / 1992 Coll., on notaries and their activities (notarial order).

10. It was found from the respective website that the bill was submitted to the Chamber of Deputies by the Government on 2 October 1997. After the prescribed procedure, the draft law was approved on 12 February 1998 by order No 646; of the 167 Members present, 149, against none. The Senate began to discuss the submitted proposal on 5 March 1998, when it adopted Resolution 98020, in which it stated that, because of the absence of a representative of the Government of the Czech Republic as a promoter of the bill, which would clarify the Government's position on the comments made by the Senators, the Senate's work was seriously hampered and asked the Prime Minister to remedy it; By order No 98021, he suspended the hearing. Since the Senate did not continue the negotiations, the Act was signed by the President of the Chamber of Deputies, the President and the Prime Minister and declared in the Collection of Laws in the amount of 31 under the number 82 / 1998 Coll. with effect from 15 May 1998.

11. The original wording of the contested provision of Paragraph 13 of Law No 82 / 1998 Coll. was as follows:

"(1) The State is liable for damage caused by maladministration. An incorrect official procedure is also a breach of the obligation to act or to take a decision within the statutory period.

(2) The right to compensation is for him to whom damage has been caused by maladministration. "

12. The government then submitted to the Chamber of Deputies an amendment to Act No. 82 / 1998 Coll., on 8.9.2005, which was approved on 27.1.2006, with 131 votes in favour of 158 Members present, no one was against. The Senate discussed the draft amendment on 16 March 2006 and approved it as referred to by the Chamber of Deputies. After signature by the relevant constitutional authorities, the Act was published on 27 April 2006 in the Collection of Laws under number 160 / 2006 Coll. and became effective on the date of its publication.

13. After the amendment, the provisions of Section 13 of Law No 82 / 1998 Coll. are amended as follows:

"(1) The State is liable for damage caused by maladministration. An incorrect official procedure is also a breach of the obligation to act or to take a decision within the statutory period. If the law does not provide for a time limit for the implementation of an act or a decision to be taken, a breach of the obligation to act or to take a decision shall also be deemed to be an maladministration within a reasonable period of time.

(2) The right to compensation shall be granted to him who has been harmed by maladministration.

14. The Constitutional Court notes that Law No 82 / 1998 Coll. and Law No 160 / 2006 Coll. were adopted and issued within the limits of the Constitution of the established competence and the constitutionally prescribed manner, or that it did not find anything in this procedure that would prove otherwise.

15. The Constitutional Court first assessed the question whether the appellant is entitled to file an application for annulment of the contested provision of Act No. 82 / 1998 Coll. Article 95 (2) of the Constitution of the Czech Republic defines the active legitimacy of the Court of First Instance to bring an application for annulment of the law, or its provision, in such a way that if the Court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it will bring the matter before the Constitutional Court. Paragraph 64 (3) of the Law on the Constitutional Court states that the application for the annulment of the law or its individual provisions is also entitled to be lodged by the court in the context of its decision-making activities pursuant to Article 95 (2) of the Constitution of the Czech Republic.

16. In the present case (see the findings made by the Constitutional Court on the file of the District Court for Prague 1 sp. zn. 30 C 47 / 2003), in view of the subject matter of the dispute in which the applicant sought compensation against the intervener for the damage caused by the alleged maladministration, the contested provision is applied, thus fulfilling the requirement of Article 95 (2) of the Constitution of the Czech Republic. This application of § 13 of Act No. 82 / 1998 Coll., as amended, is the result of the procedure chosen by the Court of First Instance, although there may be reasonable doubts as to its accuracy. However, the Constitutional Court admits that, even in such situations, the appellant, i.e. the general court, may be regarded as being actively legitimate in bringing an application for annulment of the provisions of the law which it intends to apply in its decision-making. For this reason, the Constitutional Court has taken action for substantive examination of the application. In the event of doubt as to the applicant's active legitimacy, an interpretation should be chosen to enable the proposal to be dealt with in substance.

17. The appellant's constitutional arguments against the contested provision are concentrated in the assertion that the maladministration is not defined in its sense, given the variety of its forms (as provided for in the explanatory memorandum to the law), but its wording is so vague that its interpretation leads in practice to the fact that any standard-making activity of a public authority is de facto untouchable, even if the public authority exceeds its authority in relation to the intrinsic norm, so that the authorities and the government can in any way and arbitrarily exceed the power of authority in the event that it causes other damage in such a procedure (Part III of the proposal, see paragraph 3 above). The Constitutional Court does not agree with this claim. It is the task of each general court to clarify by appropriate interpretative methods the content of the term "maladministration 'used. It is a notoriety that there is a set of interpretative rules, for example, the content of the relevant concept must first be identified by means of grammatical (in terms of the possible importance of the various terms used), logical (in terms of the interconnections of the terms used) or systematic (in terms of the classification of terms in the structure of the whole legislation), etc.; only adequate application of these rules may then lead to the conclusion that any procedure by the public authority which, in its exercise, is contrary to generally binding legislation or to the principles of its execution. If it is possible in this way to interpret the concept of" maladministration', the Constitutional Court does not find the contested provision contradicted by Article 2 (2) of the Charter or Article 4 (3) of the Charter.

18. The Constitutional Court considers it necessary to examine the appellant's actual motives for formulating the application for annulment of the contested provision. It is clear that the true motive of the proposal lies in the opposition to the Supreme Court's legal opinion expressed in the decision of appeal, which interprets the "maladministration 'in such a way that it does not constitute a normative activity or a failure to act by a public authority (see recital (4) to the Supreme Court judgment of 26.9.2007, No 25 Cdo 2064 / 2005-131), and in the unwillingness to follow that view. In particular, this means that it is not the indeterminate or vague wording of the contested provision, but whether the maladministration involves the issue of a legislative act of executive power which was contrary to the rule of higher legal force. The conclusion of the Supreme Court is also in line with the Constitutional Court's legal opinion expressed in the Opinion in sp. zn. The exception to the right to compensation resulting from the unlawful failure of the legislator (which is not the case here) was derived directly from the constitutional order and from the finding of the Constitutional Court.

19. The Constitutional Court further adds that the applicant (CODUM, s. r. o.) was also a party to the proceedings before the Constitutional Court under sp. zn. III. ÚS 407 / 99 of 9.11.2000 (N 165 / 20 SbNU 171), in which specific articles of the Government of the Czech Republic No 657 of 23 June 1999 and of the Government of the Czech Republic No 1374 of 22.12.1999 were challenged. The Constitutional Court, by decision of 9.11.2000, rejected the application as an application made by the persons not authorised, referring to the finding in the case sp. zn. In the light of these conclusions, it was up to the applicant to seek compliance with the relevant health insurance company and in this procedure the court - within the meaning of Article 95 (1) of the Constitution of the Czech Republic - was able to assess the compliance of this provision with the law (possibly with an international treaty which is part of the legal order of the Czech Republic).

20. In relation to its own application following the procedure, the Constitutional Court finds that there are no grounds for repealing the provisions of Article 13 of Act No. 82 / 1998 Coll., as amended, since that provision is not in itself contrary to Article 2 (2) of the Charter or Article 4 (3) of the Charter and, finally, to Article 36 (3) of the Charter and therefore rejected the proposal of the District Court for Prague 1 pursuant to Article 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court.