Found at the Constitutional Court of the Czech Republic No. 271 / 1995 Coll.

Motion denied.

On 19 June 1995, a motion by a group of 29 Members of the Chamber of Deputies of the Parliament of the Czech Republic, lodged within the meaning of Article 87 (1) (b) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), was served on the Constitutional Court. This proposal calls for the repeal of Government Decree No. 104 / 1994 Coll., which has been declared a binding part of the territorial plan of the large town of Pilsen's regional conurbation. The approval of this zoning plan was reserved by the Government within the meaning of Article 27 (1) of Act No. 50 / 1976 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended, (similar to the Agglomeration of Brno, Ostrava, etc.).

As is apparent from the proposal, a group of Members criticises the government, in particular, the procedure by which it reached its decision, which was expressed in the form of a government resolution. First of all, it argues that further changes to the zoning plan, originally approved by the Government in 1988 and later amended in 1991 and 1994, were to be dealt with in the manner provided for in paragraphs 21 to 25 of the Building Act, in particular with the regional authorities and municipalities whose territories were to be affected by the change. If that is not the case, the Government's approval act is illegal. Another objection goes against the fact that the Ministry of Economic Affairs did not ensure the publication of the draft zoning plan in an appropriate manner, that public comments were not taken into account and that the Government had discussed and approved the proposal without the opinion of the Ministry of the Environment, thus contrary to the law. In the fact that citizens have been deprived of the opportunity to comment, the appellants also see violations of fundamental rights under Article 35 (1), (2) of the Charter of Fundamental Rights ("the Charter '). The representing Members have been appointed by Mr JUDr. Jiří Vydil. At the meeting on 25 October 1995, he clarified the proposal that the reason for the submission was that part of the regulation defining the corridor of motorway D 5 in the city of Pilsen. It further stated that it maintained that the final option of the solution had not been legally negotiated and that the executive power had infringed Article 2 (2) of the Charter by its procedure, since State power could only be exercised within the limits laid down by the law and in the manner laid down by the law.

The Constitutional Court asked, within the meaning of Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, the Government of the Czech Republic, as a party to the proceedings, to comment on the application within the legal period. In the statement of the Government signed by the Minister and the Head of the Office of the Government of the Czech Republic by Dr. Igor Germans, it is first of all argued that the proposal is directed almost exclusively against the procedure for the procurement of the zoning plan, or against other acts that preceded its approval, but does not contest the actual text of the government regulation with the law. Only its own text can be the subject of a proposal and would fall within the competence of the Constitutional Court. However, if the procurement and approval process of the land planning documents carried out by the public authorities in the area of spatial planning is challenged, this executive activity shall not be subject to the jurisdiction of the Constitutional Court.

On the other points, the Government's statement deals more closely with proving that the individual information on which the proposal is based is not complete and accurate. In particular, the Government contends that the statutory hearing was carried out by the Land Planning Authority, in this case the Ministry of Economy. This authority also requested the opinion of the Ministry of the Environment according to the Act of the Czech National Council No. 244 / 1992 Coll., on Environmental Impact Assessment, and this opinion was issued after the prescribed public consultation. In conclusion, the Government therefore proposes that the Constitutional Court reject the proposal.

The Government also sent a record to the Constitutional Court from the meeting of the Government meeting of 6 April 1994, where it was stated under point 5 that the Government had discussed the proposal submitted by the Ministry of Economic Affairs and adopted Resolution 177. This resolution was also presented by the Government and it follows from it that the Government approved amendments and additions to the binding part of the urban plan of the large area of Pilsen regional conurbation in the direction of the route D 5 Prague - Rozvadov in the region of Pilsen and at the same time approved a regulation declaring a binding part of this territorial plan. The Government resolution shall be accompanied by a verification clause of the Government Office.

In addition, at the meeting on 25 October 1995, the Government's representatives stated that the variant approved and declared by the contested regulation was further specified and renegotiated with the Ministry of the Environment. In an effort to minimize adverse impacts, Valík will lead the tunnel through the hill and not the notch. They do not deny that the negotiations were very long and very problematic, but the petitioner followed the law and always sought to harmonise conflict interests.

On 28 June 1995, an application lodged by the Civil Association for the Protection of the Natural Branch of Vrch Val near Pilsen was also served on the Constitutional Court. The proposal was marked as a motion to repeal Government Decree 104 / 1994 Coll. with the fact that the appellant is hereby attached to the motion of Members on the same subject and is therefore considered to be intervening. This proposal was rejected by the Judge-Rapporteur by a resolution of 17.8.1995, pursuant to the provisions of § 43 (1) (d) of Law No 182 / 1993 Coll. as a proposal made by an entity manifestly unjustified, since it is beyond any doubt that a civil association cannot submit a proposal for the annulment of a law other than with a constitutional complaint and under the conditions set out in § 74 of Law No 182 / 1993 Coll. Paragraph 69 of the Act does not know the intervening party (the party to the proceedings is, in addition to the appellant, only the legislator).

The proposal challenges a government order declaring a binding part of the territorial plan of a large territorial unit. It should be noted that according to the legislation in force - the construction law, as amended - the planning documentation is processed in three stages - for large territorial units, residential services and zones, without any further definition of such concepts. Territorial planning documentation of large territorial units is subject to compulsory environmental impact assessment according to the Czech National Council Act No. 244 / 1992 Coll. As regards the categories of documentation, the law distinguishes between the territorial forecast, the territorial plan and the territorial project. The territorial plan under consideration is intended to address the functional definition and layout of the areas and to establish basic principles for the organisation of the territory, the procedure for their use and the conditions for construction. The documentation is discussed by the authority which acquired it - in the case at hand, the Ministry of Economy. Article 21 to 25 of the Building Act provides for the formalities and conditions for consideration of the draft zoning documentation, and the approval is provided for in paragraphs 26 to 28 of this Act. The approval authority shall decide which part of the plan is binding and which part is indicative. In the present case, the Government of the Republic reserved the approval pursuant to Paragraph 27 (2) of the Building Act. As regards the binding nature of the zoning documentation, it is particularly important that the provisions of Paragraph 29 (2) of the Building Act, according to which the competent authority, i.e. the government or the municipal council, will first approve the zoning plan and then declare its binding part. If the government has approved the zoning plan, it will do so by its regulation.

In a particular case, the Government, as a zoning authority, decided first by Resolution 177 of 6 April 1994 to amend the zoning plan as regards the management of the motorway D 5 Prague - Rozvadov in the city of Pilsen. Subsequently, the Government, by its Decree No 104 / 1994 Coll., announced the whole binding part of the plan. The proposal is therefore the subject of this government regulation, which is primarily of a notification nature. In particular, on the basis of a clarification of the proposal, the part of it which concerns the management of the D 5 motorway in the city of Pilsen.

In particular, the Constitutional Court had to address the question of the nature of the contested regulation and, if at all, of the regulatory nature. After considering all the facts, the Constitutional Court considered that the contested government regulation is a normative act, but only in that part (Annex 2), which contains the definition of public utility structures for which it is possible. possible expropriation of land, buildings and rights (Section 108 (3) of the Building Act). It is not known in advance which number of entities can be directly affected by the implementation of such defined public utility structures. The contested regulation declares not only the motorway corridor D 5, but also some other structures (e.g. the main landfill site of solid municipal waste, other communication structures, etc.).

According to Article 68 (2) of Law No 182 / 1993 Coll., it is for the Constitutional Court to assess the content of the legislation in the proceedings for the annulment of laws and other laws in the light of its compliance with constitutional laws, international treaties under Article 10 of the Constitution and, in the present case, also with the laws and, further, to determine whether the law was adopted and issued within the limits of the constitutional competence and the constitutionally prescribed manner.

As regards the content of the contested government regulation, the Constitutional Court takes the view that its task is to determine whether this legislation complies with the Constitution, constitutional laws, treaties under Article 10 of the Constitution and, in this case, also with the laws. In the light of these assumptions, and the Constitutional Court notes that they have been fulfilled, the assessment of the veracity and effectiveness of the decisions of the Government approving the territorial plan is outside the competence of the Constitutional Court. The zoning plan itself is a measure for the future, so it is a standard for future development of the area and an expression of an effort to reconcile public interests with those of the local interest. Nor can it be accepted that this act of the Government interferes with the self-governing competence of the municipalities, since the approval of the zoning documentation is not an autonomous but transferred by the municipality [Paragraph 36 (3) of Act No. 367 / 1990 Coll., on municipalities (municipal establishment)]. It is undeniable that a solution which will be without any contradictions and comments may be difficult to find when dealing with these complex issues. It is up to the executive to take a final decision by considering all the pros and cons, and it is clear that it is not for the Constitutional Court to intervene in this sphere of executive power. The government's responsibility for the possible negative consequences of such a decision is political, not legal.

Another aspect assessed by the Constitutional Court within the meaning of Paragraph 68 (2) of the Law on the Constitutional Court was whether a government regulation was adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner. On the basis of the documents provided by the Government, the Constitutional Court has no doubt that the provisions of Article 76 (2) of the Constitution have been complied with when the Government's resolution in question was adopted. Article 78 The Government is entitled to issue regulations for the implementation of the Act and within its limits. The government therefore does not need an explicit delegation in the relevant law, but the regulation cannot deviate from the legal limits - so it cannot be a praeter legem. In other words, they must remain within the limits of a law which is either expressly defined or resulting from the meaning and purpose of the law. In general, however, it is never entirely free to consider an executive, because it is always limited by the Constitution, international treaties and general legal principles. From these views, the Constitutional Court has no doubt that the Decree of Government No. 104 / 1994 Coll. was issued within the limits of the Constitution, as it is entitled to approve this degree and this category of planning documentation. It is also empowered to declare a binding part of the territorial plan of a large territorial unit as a government order.

The last question that the Constitutional Court had to address was whether the contested legislation was adopted in a constitutional manner. In dealing with this issue, the Constitutional Court had to first assess whether this assessment also included an examination of the administrative procedure for the acquisition, approval and modification of planning documentation, in particular compliance with all provisions of § 21 to 31 of the Building Act. The answer to this question is that it is not for the Constitutional Court to examine this wide. The Constitutional Court means the legislative procedures contained in the constitutional laws or, where applicable, the procedures laid down in other laws, provided that constitutional principles are distributed by them. However, the examination of a law within the system of state administration does not fall within the powers of review of the Constitutional Court unless it interferes with constitutionally guaranteed rights. As a result of the activities of the executive bodies, the Government's resolution and only then the Government's decree declaring a binding part of the approved territorial plan. In the opinion of the Constitutional Court, the criterion of the constitutionality of this government regulation can only be that the regulation is not contrary to the purpose and purpose of the building law as a whole. However, such a contradiction was not found by the court and could therefore not attest to the appellants' view that the Government had infringed Article 2 (2) of the Charter by its procedure. Similarly, the Constitutional Court did not find that there had been an alleged breach of the fundamental right under Article 35 (1), (2) of the Charter, i.e. the right of everyone to a favourable environment and to timely and complete information on its situation. These rights may be invoked under Article 41 (1) of the Charter only within the limits of the laws implementing those provisions. In addition, the Constitutional Court states that the right to a favourable environment is undoubtedly a right with relative content and must be interpreted from many aspects and always in the light of a particular matter. In the case under consideration, the Constitutional Court did not find its infringement.

For these reasons, the Constitutional Court decided on the proposal of a group of Members as set out in the operative part.