The Constitutional Court found no 285 / 2001 Coll.
The Constitutional Court's finding of 20 June 2001 on the application to issue a finding that a decision of the President of the Republic of 29 November 2000 on the appointment of the Governor and Vice-Governor of the Czech National Bank requires the co-signature of the Prime Minister or his authorised member of the Government
Valid
The Constitutional Tribunal found
Text versions:
03.08.2001
285
FIND
The Constitutional Court
On behalf of the Czech Republic
On 20 June 2001, the Constitutional Court decided in plenary on the proposal of the Prime Minister and the Government of the Czech Republic to issue a finding that the decision of the President of the Republic of 29 November 2000 appointing Zdeňka Tům as Governor of the Czech National Bank and Lužek Niedermayer as Vice-Governor of the Czech National Bank requires the co-signature of the Prime Minister or of his authorised member of the Government,
as follows:
Motion denied.
Reasons
The Constitutional Court received on 20 April 2001 a proposal to initiate the procedure by which the Prime Minister and the Government of the Czech Republic, referring to Article 87 (1) (k) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 120 of Act No. 182 / 1993 Coll., on the Constitutional Court, seek the issue of a finding that the decision of the President of the Republic of 29.11.2000 on the appointment of the Governor and Vice-Governor of the Czech National Bank (hereinafter referred to as" the ČNB') require the co-signature of the Prime Minister or of the Government by him. In their introduction, they state that the President of the Republic of Václav Havel appointed Zdeněk Tům Governor of ČNB and Ludek Niedermayer as Vice-Governor of ČNB without calling on the Prime Minister to co-sign these decisions in accordance with Article 63 (3) of the Constitution and without having previously withdrawn Zdeněk Tům from the post of Vice-Governor of ČNB and Ludek Niedermayer from the post of member of the Banking Board of ČNB (hereinafter referred to as the "Banking Board ') appointed from the heads of ČNB. In the preamble, the appellants state that the Government does not dispute the previous practice of the President of the Republic, who has not submitted his decisions to the Prime Minister for co-signature since 1993, although it believes that" such decisions of the President of the Republic are not valid without the co-signature of the Prime Minister'. In such a procedure, the Prime Minister or the Government is shortened by its competence to consider the co-signature of the President's decision or the decision to co-sign. Since this is a legal issue of extraordinary importance and scope, and the President of the Republic insists on the opinion and procedure he has taken, the Prime Minister and the Government turn to the Constitutional Court as a judicial authority for the protection of constitutionality, proposing that, in this dispute, the President of the Republic and the Prime Minister (or the Government) should take a decision as State bodies.
The fundamental issue to be addressed by the Constitutional Court is therefore the requirement of government counter-signature in each appointment of the Governor and Vice-Governor of the CNB as President of the Republic, starting on 29.11.2000. The Government, in its proposal, has neglected the previous action of the President of the Republic, who, since 1993, has not presented his decisions on the appointment of the Governor and the Vice-Governor to the Prime Minister, but states that the Prime Minister (or the Government) has been shortened in his competence and that the Constitutional Court must rule in this dispute and change this Constitution contrary to practice.
From a general point of view, the Prime Minister and the Government of the Czech Republic base its proposal on the view that, from the principles of representative democracy, it is also necessary to draw on the priority of decision-making by a political authority responsible for its decisions. To that effect, it shall interpret the relationship between Articles 62 and 63 (2) of the Constitution. Whereas Article 62 The Constitution specifies those powers which the President of the Republic exercises separately and which he does not need the approval of the Prime Minister, Article 63 (2) The Constitution then sets out a second heading of the President's powers, namely those to which the President of the Republic needs the contrasignations of the Prime Minister or of his authorised member. Article 63 (3) The constitution on the contrasignations of decision-making in this area of the President's jurisdiction is merely a logical consequence of the irresponsibility of the President of the Republic in the performance of his duties and a means of enabling the government to assume responsibility. These provisions also apply to those of the President's "powers not specifically provided for in the Constitutional Law ', provided that they are provided for by law. The proposal foresees that the right to appoint the governor and vice-governors of the CNB (§ 6 (2) of Act No. 6 / 1993 Coll., on the Czech National Bank) is precisely the new power of the President, which is not explicitly stated in Article 62 of the Constitution, since there is explicitly only so much provision that the President of the Republic (without a signature)" appoints members of the Banking Board of the Czech National Bank. "Therefore, the appointment of the Governor and Vice-Governor of ČNB as the President of the Republic - according to the opinion of the Prime Minister and the Government - requires the co-signature of the Prime Minister or of his authorised member of the Government to be valid. According to the applicants for the appointment of the Governor and the Vice-Governor it is a new Constitution unknown, powers established by Act No. 6 / 1993 Coll. The applicants state that the Constitution does not mention the Governor and the Vice-Governor at all in Article 98, dedicated exclusively to the CNB, nor in Article 62 (k).
To justify the fact that the function of Governor and Vice-Governor is something new, unsubordinate to Article 62 (1) of the Treaty. (k) the Constitution, the appellants point out the provisions of several laws which indicate that "the powers of the Governor and the Vice-Governors are not linked solely to their membership of the Banking Board (where the Governor is essentially the first among equals)," and that "in particular the Governor has a serious competence which is unrelated to his membership of the Banking Board and which is granted to him as a monocratic body." In the view of the appellants, the Act grants the Bank Board the status of the CNB's Supreme Managing Authority, but its competence defines only an example of matters of more fundamental importance and does not mention at all who is entitled to act and decide on other matters. "In the highest instance, it is the governor, as a monocratic body, whose position is essentially comparable to that of the so-called head of the central administration."
In the view of the applicants, the function of Governor and Vice-Governor of the CNB is not simply the designation of some members of the Banking Board, but the designation of senior administrative officials of the CNB exercising significant and independent powers, and therefore their appointment is not based on Article 62 (1) of the Treaty. k) The Constitution but is an expression of the next President's power under Act No. 6 / 1993 Coll. From these premises, the proposal to initiate the procedure shows that the appointment of the Governor and the Vice-Governor constitutes a new power provided for by the ordinary law and therefore subject to contrasignature.
The appellants also point to the continuity of Act No. 6 / 1993 Coll. on the previous modification of the Federal State Bank of Czechoslovakia, whose Governor was appointed President of the Republic on a proposal from the Government, and vice-governors on a proposal from the Governor discussed with the Government. According to the appellants, there is no reason to believe that the Constitution and Act No. 6 / 1993 Coll. would want to derogate from this recent regulation so much that they would completely exclude the government from the process of appointing the Governor and Vice-Governor.
The proposal further argues that the appointment of the Governor and Vice-Governor of the CNB took place without their prior appeal from their current positions in the Banking Board, i.e. Zdeněk Tůma from the post of Vice-Governor and Ludek Niedermayer from the post of member of the Banking Board. Such an appeal would require counter-signature, and it is in this regard that the link between this objection and the fundamental issue of the conflict of competence is clear.
The Constitutional Court has received a statement from the President of the Republic on the application for the opening of the proceedings on the dispute, which argues in particular that the new detailed proposal does not comply with the requirements of the Constitution and the Law on the Constitutional Court. It is not possible to apply § 124 (1) of Act No 182 / 1993 Coll., if the contested decision actually exists and is followed. According to the systematic breakdown of Act No. 182 / 1993 Coll., § 124 can be applied only if no decision has yet been taken. In the present case, however, it is necessary to apply Paragraph 125 (1) and to request the annulment of the decision already taken. However, this is not what the government does, so the Constitutional Court should reject the submission again. It is also noted that the appellants do not contest the decision to appoint another Vice-Governor of Oldřich Dadek of 11.2.1999, although he is still in office and the decision is also not accompanied by the co-signature of the Prime Minister or his authorised member of government. The proposal is intrinsically contradictory even in that the petition includes a variant of co-signature of an authorised member of the government, although in this case none of the Prime Minister's members have been identified, which is clear evidence of a request for an abstract interpretation of the Constitution alone.
The President of the Republic also states that the appointment of all members of the Banking Board is also indicated in the list of powers under Article 62 of the Constitution, which are under its own discretion. The President of the Republic is convinced that Act No. 6 / 1993 Coll., which implements this provision in detail and identifies the individual functions of members of the Banking Board, does not create a new original power of the President of the Republic, which would then require the cooperation of the Prime Minister under Article 63 (2) and (3) of the Constitution. If the designation of functions in the Act were to be understood as a new appointment power of the President of the Republic, then also in the specification and description of the functions of four other members of the Banking Board in the Act, Article 62 (1) of the Act. (k) the Constitution is de facto excluded and therefore not applicable. In such a case, the President of the Republic could not appoint any of the members of the Banking Board separately. Since the lower legal force standard cannot change the higher legal force standard, such an interpretation of the Constitution and the law cannot be imagined.
According to the President of the Republic, the intention of the legislator was not to restrict the powers of the President of the Republic, given in Article 62 (1) of the Treaty. k) The Constitution, but the establishment of functions within the Banking Board and the establishment of criteria for the selection of the four members of the Banking Board, who can only be appointed from among ČNB's managers. On the confirmation of his view, he points to the stenographer from the plenary meeting of the Czech National Council and from the resolution of the Constitutional Law Committee of the Czech National Council of 17 December 1992, where the government draft of this law was discussed, and also states that the opinion of other competent constitutional officials has not changed since then, as evidenced by the speech of the current Deputy Prime Minister for Legislation in the Senate plenary on 7 August 2000. According to the President of the Republic, the legislator did not consider it necessary to distinguish between members of the Banking Board from the point of view of their appointment, by leaving only irrelevant functional differences in their position to the ordinary law. The President of the Republic considers that the Constitution does not know the functions of Governor and Vice-Governor and therefore their appointment is based on a legally based competence. In addition to the fact that they are also members of the Banking Board and that Act No. 6 / 1993 Coll. is to be interpreted by means of the Constitution and not the Constitution by means of the Act, it is also to be pointed out that the time sequence of adoption of both standards is also necessary. The Constitution was adopted on 16 December 1992 and Act No. 6 / 1993 Coll. only the following day. Thus, the Constitution could not operate at all with terms it did not know or need.
The Prime Minister submitted a reply to the Constitutional Court on the position of the President of the Republic, pointing out the need for a substantive decision. In his view, the decision of the President of the Republic of 29.11.2000 by which he appointed Zdeněk Toho Governor and Ludek Niedermayer as Vice-Governor of ČNB has not yet become valid. Consequently, the proposal does not follow the procedure under Article 125 (1) of Act No. 182 / 1993 Coll. (i.e. the annulment of the decision). Since it considers the Governor and the Vice-Governors of the CNB to be monocratic bodies with significant independent powers and powers, the Prime Minister requires their appointment by the procedure laid down in Article 63 (3) and (4) of the Constitution (with a contrasign), as opposed to the other (four) members of the Banking Board, for which he considers the procedure laid down in Article 62 (2). k) The Constitution without the contrasignations of the Prime Minister or his authorised member of the Government as constitutional.
The Constitutional Court recalls that the appellants have already submitted to the Constitutional Court on 22 December 2000 a proposal in substance, in which the indeterminate wording of the petition did not allow the Constitutional Court to take a substantive decision (sp. zn. This lack of the current proposal by the Prime Minister and the Government on the decision of the Constitutional Court eliminated the fact that the petitioners in the petition contested the annulment of the President of the Republic's decision of 29.11.2000, by which he appointed Zdeněk Tům the Governor and Ludek Niedermayer as Vice-Governor of the CNB, because it was not submitted to the Prime Minister for co-signature.
Since the Prime Minister's proposal and the Government's proposal point out that there is no question of the earlier action of the President of the Republic, which did not submit to the Prime Minister the appointment of the Governor and the Vice-Governors to contradict the Prime Minister, and given that the Government in the proposal points out the need to change the procedure for the future, the Constitutional Court again considered whether this is a genuine dispute of competence or merely a request for a "futuro 'opinion (in this last case the Constitutional Court would be forced to reject the proposal). The unusual practice of the government is still that it only asks for an opinion" on an abstract level "in accordance with § 124 (1) of Act No. 182 / 1993 Coll., despite the fact that its proposal challenged a very specific decision by the President of the Republic and it would therefore be appropriate to seek its annulment under § 125 (1) of Act No. 182 / 1993 Coll., as the President of the Republic objects. The Constitutional Court considered this serious objection, but did not find any reason to reject the proposal in this respect, nor in the circumstances that later the amendment of Act No. 6 / 1993 Coll. (" the Act on CNB') by Act No. 442 / 2000 Coll., amending Act No. 6 / 1993 Coll., on the Czech National Bank, as a specific decision was contested in the present case, at the time of the Law No. 6 / 1993 Coll. The question of the constitutionality of some of the provisions of the amendment to the Act on CNB is, moreover, the subject of a different procedure before the Constitutional Court, which was conducted under the Pl. ÚS 59 / 2000.
The opinion of the appellants that they could not comply with § 125 of Act No. 182 / 1993 Coll. on the ground that the decision to appoint the President of the Republic "has undoubtedly been taken by the President of the Republic as the competent authority," will not stand. This fact does not interfere with the application of § 125 (1) of Act No. 182 / 1993 Coll., since the contested decision of the President of the Republic is undoubtedly - in accordance with the requirement of that provision - a decision of the institution which is a party to the proceedings and was given on the subject referred to in the motion to initiate proceedings. In its reply, the Prime Minister states that the annulment of the contested decisions of the President of the Republic is not required because those decisions have not yet entered into force. Only when the President of the Republic has submitted these decisions to the Prime Minister for his co-signature will it be shown whether they will become effective and therefore legal.
After consideration of all the circumstances, the Constitutional Court decided that it was a proposal to initiate proceedings on the dispute of jurisdiction pursuant to Article 120 (1) of Act No 182 / 1993 Coll. The proposal challenges the specific decision of the President of the Republic and, in conclusion, calls for the Constitutional Court to decide by decision pursuant to § 124 (1) of Act No 182 / 1993 Coll. by "In order to give effect to the decision of the President of the Republic of 29 November 2000, by which he appointed Zdeňka Tům as Governor of the Czech National Bank and Ludek Niedermayer as Vice-Governor of the Czech National Bank, the co-signature of the Prime Minister or his authorised member of the Government is required." Although this proposal does not refer to Paragraph 125 (1) of Law 182 / 1993 Coll. and does not specifically seek "the annulment of the contested decision ', even if it did not do so, Article 125 (1) of the Law 182 / 1993 Coll. is a matter for the Constitutional Court to abolish, by its finding, a decision on which another authority is competent in the case referred to in the application to initiate proceedings. The contested decision is stated precisely in the Prime Minister's proposal and in the government's proposal, so there is no doubt about what is in it.
When the Constitutional Court concluded that the proposal of the Prime Minister and the Government fulfilled the conditions of Section Eighth Title of Part Two of Act No 182 / 1993 Coll., it initiated proceedings in a dispute over the scope of the powers of the state bodies under Article 87 (1) (k) of the Constitution and Article 120 of Act No 182 / 1993 Coll.
The proposal to initiate the procedure is based on four lines of argument:
on the argument of "monocratic 'elements as Governor of the CNB,
on the comparative interpretation of other appointment acts pursuant to Article 62 of the Constitution,
on the interpretation of the intention of the legislator or legislator and the link to the previous regulation,
reference to the principles of a parliamentary democratic constitutional state.
1. The appointment of members of the Banking Board as Governor and Vice-Governor of the CNB shall be carried out by a single appointment act. On this basis, the appellants also rely on the awareness of unpredictable complications and potential dysfunction, which would give rise to double separate appointments, by one member of the Banking Board and by one governor or vice-governor of the CNB, all the more so in a situation where no legal obligation - as in the Constitutional Court - is laid down to select the three representatives of the Banking Board from among its already appointed members. However, although it is not a new appointment act and, to that end, it is not a new power under Article 63 of the Constitution, the applicants are of the opinion that the position of Governor of the CNB is so different from that of the other members of the Banking Board that its powers under the laws entitle the appointment procedure under Article 63 (2) and not under Article 62 of the Constitution.
According to the appellants, the Act (Section 5 of the ČNB Act) grants the status of the "Supreme Managing Authority of the Czech National Bank" to the Banking Board as a college body, but its reserved competence "defines only by example, a list of matters of more fundamental importance. The Act on the CNB hardly mentions who is entitled to act and decide on other matters' and, according to the applicants, it can therefore be concluded that, in the highest instance, the Governor is the Governor, as a monocratic body with independent powers and powers, which significantly exceed the powers and powers resulting from membership of the Banking Board as a college body.
However, both claims do not correspond to reality. First of all, the Act on CNB does not define the scope of the Banking Board "only by example ', but in Section 5 (1) it clearly outlines the main tasks of the Banking Board and also refers to the Banking Board as a whole as" the CNB's Supreme Managing Authority'. In the second paragraph, the Bank Board lists another series of powers by the words "in particular '. This does not mean limiting the scope of the Banking Board, but, on the contrary, the possibility of including other, unnamed issues in that competence. Therefore, the purpose of this provision is not to narrow down, but to extend the area of decision-making of the Banking Board.
The status of Governor of the CNB as a "monocratic body with separate decision-making powers" is generally called into question by this regulation. However, the specific references made by the appellants to the legal powers of the governor to justify his monocratic status will not stand.
If we consider that the monocratic body embodies a person who acts and decides as an institution, while the representative of the college body acts solely on its behalf and is fully bound by its decision, then the attempt to see the Governor of ČNB as a single monocratic body will not stand. The CNB Governor is one of the members of the Banking Board, as the CNB Act provides that the Banking Board is composed of the Governor, two Vice-Governors and four other CNB managers (Section 6 (1) of the CNB Act). The Bank Board is by law the highest governing body as a college so that individual members of the Banking Board do not have decision-making powers. As regards the Governor, his position differs from that of the other members by presiding over the Banking Board, either by himself or by the Vice-Governor (Section 7 of the Act on CNB), by acting on behalf of the CNB on the outside or by the Vice-Governor (Section 8), and by being entitled to participate with the vote of the government's advisory meetings (Section 11). Even in this regard, however, no element of the monocratic position of the Governor vis-à-vis the Banking Board can be seen if it is obliged to respect its opinion and to interpret its position, not to mention that it is not a decision-making power but merely an advisory function in this case. Moreover, in the framework of the Banking Board, the appellants also grant the Governor only the position of first among equals. In the whole text of the CNB Act, only the provision of Paragraph 50 (2) can be found as regards the further powers of the Governor, according to which the CNB staff may be exempted from professional secrecy in the interests of the public interest. The above provisions are the only exceptions in favour of the Governor, while the CNB Act contains a long series of provisions which understand what the applicants call "other things' as the competence of the Banking Board as a college.
The applicants further state that the Governor of the CNB has the power to sign the legislation issued by the CNB and published in the Collection of Acts pursuant to Section 4 of Act No. 309 / 1999 Coll., on the Collection of Laws and on the Collection of International Contracts. Nor can this power be seen as an expression of the monocratic decision made by the Governor of the CNB, since, like the Constitution, when declaring laws, it prescribes a range of persons who sign laws; Even in this case, the signature of the Governor of ČNB has no constitutional significance. Its duty is to sign the declared standard and the refusal to sign cannot be considered as an obstacle to the validity of such a standard.
The appellants also invoke the powers of the Governor of the CNB in the administrative proceedings conducted by the CNB when deciding on the decomposition [§ 61 of Act No. 71 / 1967 Coll., on the Administrative Procedure (Administrative Order)] or the review of the decision outside the appeal procedure (§ 65 (1) of the Administrative Order). In fact, the Governor of the CNB also decides on these terms of reference "on the basis of a proposal by the CNB" (§ 61 (2), § 65 (1) of the Administrative Order). In addition, both the CNB Act (§ 46 (5) and Act No. 21 / 1992 Coll., on Banks, (§ 41) and Act No. 219 / 1995 Coll., the Foreign Exchange Act (§ 3 (5)) entrust to the Banking Council as a body in more important matters. In other cases, the Bank Board is the highest managing body of the CNB, which regulates its rules of procedure (Section 7 (2) of the CNB Act).
It follows from the foregoing that the Constitutional Court cannot attest to the appellants, since no new powers are conferred on the President of the Republic in these laws, nor does the position of Governor and Vice-Governors in the Banking Board exceed, as compared to other members, the framework of the Banking Board in such a way as to be understood as new bodies requiring a new separate appointment by the President of the Republic. The Act on CNB does not extend the appointment rights of the President of the Republic to new appointment powers, because according to the Constitution, the President appoints all members of the Banking Board without the Constitution specifically specifying their individual designations. Nor does the Constitution have the need (as opposed to other cases of appointment pursuant to Article 62) to specify in detail how many of these members are and are referred to. This is regulated by the CNB law, which states that it is the governor, two vice-governors and four other members. It therefore specifies the composition of the Banking Board. Since the Act on CNB was declared one day later than the Constitution itself and its text was known at the time of the adoption of the Constitution, it can be assumed that the legislator would have acted in a different way in formulating Article 62 (k) if it were to introduce a different method of appointing the Governor from other members.
2. The Constitutional Court also dealt with the comparison of appointment modalities in all cases of the competence of the President of the Republic under Article 62 of the Constitution. It did so in the light of the appellants' objection that under (k) of this Article the Constitution states that the President of the Republic shall appoint members of the Banking Board, whereas under (e) it shall be distributed that it shall appoint not only the judge of the Constitutional Court but also its President and Vice-Presidents, although in this case the President and Vice-Presidents shall also be Judges and therefore members of the full Constitutional Court. According to the appellants, the Constitution does so because the President and Vice-Presidents still have other specific responsibilities associated with this function. However, the proposal does not state why the Constitution is not similar in the case of the Governor of ČNB, to which the promoters also attribute other specific powers associated with its function. If this were indeed the case, the Constitution, as the appellants imagine, would also have to explicitly state in this case the appointment scheme under Article 62 of the Constitution, which it did not do.
According to the Constitutional Court, the causes of the different appointment formula used in Article 62 of the Constitution are mainly in different circumstances. The different appointment arrangements for Article 62 (e) in the case of the Constitutional Court, as well as for Article 62 (j) in the case of the Supreme Audit Office and Article 62 (a) in the case of the appointment of the President and other members of the Government as compared to Article 62 (k), are largely due to the fact that, for all three cases referred to above, a person appointed to the head of the institution had to be appointed, because its appointment was modified in a different manner from that of the appointment of the other members of that body. It should also be noted that there is also a call for synergies between the members of these bodies (Senate, Chamber of Deputies, Prime Minister). For example, in point (a), the regime for appointing and withdrawing the Prime Minister and other members of the Government is different. For other members of the Government referred to in Article 68 (2) The Constitution shall take place only on the initiative of the Prime Minister. For the members of the Constitutional Court (point (e)): the President and Vice-Presidents are also distinguished because their appointment from the judges of the Constitutional Court does not require the assent of the Senate (Article 84 (2) of the Constitution). Point (j) refers explicitly to the President and Vice-President of the Supreme Audit Office, since Article 97 (2) These persons are appointed by the President of the Republic on a proposal from the Chamber of Deputies, while the other members are elected by the House of Deputies on a proposal from the President of the Supreme Audit Office. It is precisely because for all members of the Banking Board no different method of appointment of the Governor and vice-governors is foreseen, the text of Article 62 (k) was limited to a brief wording: "Appoints members of the Banking Board of the Czech National Bank."
In this context, the Constitutional Court considers it necessary to emphasise the fundamental difference in the arrangements for the appointment of the President of the Republic against the President and Vice-Presidents of the Constitutional Court and against the Governor and Vice-Governors of the CNB. The Constitution provides for the appointment of all judges of the Constitutional Court (including those designated as President and Vice-Presidents in Article 62) as a condition for the assent of the Senate (Article 84 (2)). The Constitutional Tribunal is aware in this case that the subsequent appointment of the Presidents and Vice-Presidents of the existing Judges of the Constitutional Court must be expressly governed by constitutional and not by ordinary law, provided that a different regime is applied and that the method of appointment laid down in Article 62 (k) is excluded in such cases.
Unlike the Constitutional Court in the case of the Banking Board, the Constitution does not distinguish between the various members of the Banking Board. If, in this case, the Constitution does not explicitly distinguish between the terms of appointment of the Governor and the Vice-Governor of the CNB from those laid down for all members of the Banking Board, it cannot be inferred from the ordinary law which states that, in addition to the other members, the Bank Board and the Governor and the Vice-Governors are members of the Board of Directors, any other method of appointment may be derived for some of the members of the Banking Board, unless the Constitution itself expressly permits it.
In contrast to the Constitutional Court, where the President of the Republic selects the President and Vice-Presidents from the circle of the already appointed Judges of the Constitutional Court, in the case of the appointment of the Governor and Vice-Governor of the CNB, the President of the Republic shall not be obliged to appoint these persons from the existing members of the Banking Board. In contrast to the rules of the Constitutional Court, in this case the Constitution does not foresee at all two distinct appointment schemes for the Governor and vice-governors on the one hand and for the other members of the Banking Board on the other hand, and allows the Governor and vice-governors to be appointed by a single act at the same time as the members of the Banking Board. The less it can be imported from the ordinary law, not to mention that the simple list of members of the Banking Board in § 6 of the ČNB Act is not at all eligible for this conclusion.
At the same time, however, there are rational reasons for the appointment of the Governor and vice-governors in § 6 (2) and 6 (3) separately from the appointment of four other members of the Banking Board. They consist in the fact that the two paragraphs contain different conditions for appointment: four other members of the Banking Board, unlike the Governor and vice-governors, are mandatorily appointed "from among the managers' of the CNB (it should be noted that this constitutional restrictive condition was not contested). Should the legislator intend to carry out the appointment of the Governor and the Vice-Governors and other members of the Banking Board in two different ways, or the appointment of the Governor and Vice-Governors only after their appointment as members of the Banking Board by another appointment instrument specifying the function in the Banking Board, he would have to make a constitutional distinction in such a way as he did in other nomination cases in Article 62 of the Constitution.
The elementary constitutional rule is that if two distinct appointment schemes are established in the Constitution area, the exclusive powers of the President of the Republic are defined, it is essential that both of these schemes are defined directly in the Constitutional Law. Compliance with this assumption is "condicio sine qua non."
In favour of a single appointment act for all members of the Banking Board, there is also one common six-year term of office (Section 6 (4) of the Act on ČNB), which neither changes nor transfers in the status of individual members (e.g. later taking over as Governor by one of the members of the Banking Board). If the President has appointed members of the Banking Board at a given date, a new deadline shall not start to run by the later appointment of one of them as Governor.
In the opinion of the Constitutional Court, therefore, the computation of the appointment modalities in accordance with Article 62 of the Constitution does not support the government proposal.
3. The appellants also point to the continuation of the CNB Act on the previous modification of the Czechoslovak State Bank, whose governor was appointed by the President of the Republic on a proposal from the Government and vice-governors on a proposal from the Governor, discussed with the Federal Government. This law was allegedly a model for the CNB Act in a number of directions. According to the appellants, there is no reason to assume that the Constitution and the Act on ČNB would want to derogate from this recent amendment so much that they would completely exclude the government from the process of appointing the governor and vice-governors.
However, documents showing the genesis of the CNB Act contradict this view by the appellants. The Constitutional Court found that the proposal to take over the previous modification was rejected by the Czech National Council in the drafting of the Act on ČNB. As is apparent from the record from the meeting of the Czech National Council on 17 December 1992, which discussed the Government Bill on CNB, the House adopted the unanimous opinion of the Constitutional Legal Committee, which expressed the view that: "The Constitution of the President's Appointment Right does not restrict any of its provisions in any way." (record of the 11th meeting of the ČNR VII. parliamentary term). The President of the Republic, in his observations on the proposal to initiate the proceedings on the dispute of jurisdiction, states that this view is held by the constitutional authorities of the then competent constitutional officials today and points out the speech of the current Deputy Prime Minister for Legislation in the Senate plenary on 7 August 2000, which he called the appointment of members of the Banking Board, i.e. the Governor, Vice-Governor and other members, as "the exclusive competence of the President, an unlimited contrasigation '(stenorecord of the Senate's proceedings of 7 August 2000).
The issue of the continuation of the previous arrangements The Constitutional Court notes that the law on the CNB legislature was undoubtedly based on a different constitutional situation, since the law on the Czechoslovak State Bank was adopted earlier as a quasi-constitutional regulation comparable to the organic law and, above all, in a federative state, where the cooperation of a college body, i.e. a government composed of representatives of both the Czech and Slovak representatives, was an institutionally counter to the appointment powers of the President of the Republic as one (party independent) person. After the Federation broke up, these considerations in the legal regulation of the CNB had already fallen out or lost their original dimension.
Legal opinion that Article 62 The Constitution expresses the right of the President of the Republic to appoint all members of the Banking Board without contrasignature, being respected and practised from 1993 continuously until the debate on the amendment to the ČNB Act in 2000. This interpretation was thus confirmed even with gradually developed constitutional practice. It is known that constitutional customs, conventions are of great importance in the constitutional state, precisely by composing the constitution into a functional unit and filling the space between a sharp expression of constitutional principles and institutions and the variability of constitutional situations. In a democratic rule of law, it is hardly conceivable that the interpretation of the Constitution and its corresponding constitutional customs, respected and unchallenged throughout the period since its creation, should be challenged by its purposeful disinterpretation and the entire practice of the Constitution, including a series of decisions that have never been challenged.
However, it is not essential to verify to what extent the formal requirements of "constitutional practice" are fulfilled, but the simple fact that, for more than eight years on the basis of a value and institutional consensus in constitutional terms, a procedure which repeatedly and unequivocally confirmed the interpretation of Article 62 (1) has been practised without the opposition of any constitutional authority. (k) Constitution within the meaning of the exclusive competence of the President of the Republic when appointing the Governor and Vice-Governor of the CNB, that is to say, powers which are not subject to the contrasignature of the Prime Minister or of his authorised member of the Government.
Equally important is the fact that, despite legal reservations about this procedure, with which the Prime Minister and the Government referred to the Constitutional Court for the first time on 20 December 2000, these institutions have in fact recognised and are currently continuing to recognise a situation which, according to their claim, is contrary to the competence established by the Constitution. This is an expression of the fact that the appellants only attacked the appointment of the governor and one of the vice-governors and abandoned the appointment of the second vice-governor, although his appointment, according to the appellants' opinion, was also in a manner which they call unconstitutional and invalid. If the government has recognised the appointments contested by other factual acts, for example by correspondence between the Prime Minister himself, the Deputy Prime Minister and the individual ministers, invitations to attend meetings of the Government and other acts of agreement, there is an undesirable state of uncertainty in legal relations, the risks of which are not, to a decisive degree, in the dispute between the parties standing but the natural and legal persons whose rights have been decided, not to mention the uncertainty about the status of carriers of individual functions on the outside at all and towards abroad.
Although by order of Government No. 1210 of 28 November 2000, the Prime Minister and the other 12 members of the Government unanimously decided that "they did not agree to co-sign the decision of the President of the Republic to appoint Zdenek Tům as Governor of the Czech National Bank and Ludek Niedermayer as Vice-Governor of the Czech National Bank," the Prime Minister and the other members of the Government continue to deal with Zdeněk Tůma as Governor of the Czech National Bank. For example, in a letter of 28 February 2001, Prime Minister Miloš Zeman informed Zdeněka Tům that he would be informed and invited to attend as "Governor of the Czech National Bank '. This also implies recognition of the individual functions of the Governor, including in the emission activities of the CNB, and therefore of Zdeněk Tůma's signature right on newly issued banknotes, despite the fact that the Government, by denying consent to his appointment, has legally challenged the validity of this and all other acts of the CNB, even if the obligation to sign-off would be recognised as constitutional.
However, not only the current practice, but also the amendment to the Act on CNB No. 442 / 2000 Coll. shows clearly that the legislator did not rely on the obligation to contrasign the appointment acts of the Governor and Vice-Governor of CNB. The appellants justify the obligation of the President of the Republic to submit those appointment acts to the Prime Minister for co-signature by deducting that obligation from the text of Section 6 (2) of the CNB Act, according to which the President of the Republic will appoint the Governor and Vice-Governors of the CNB. It should be noted that the exact same wording is contained in Section 6 (2) of the amendment to the Act on CNB, from which the government interpretation would have to conclude that the obligation to sign the contract still applies. On the other hand, however, in Paragraph 6 (3) of the amendment, the legislature provided for the government to propose the governor and vice-governors. It is inconceivable that the legislature, which links the President's decision to the previous proposal by the Government, would still want to insist on the contrasignature of the Appointment Act by the Prime Minister, which would necessarily result from the Government's interpretation of Paragraph 6 (2) of the amendment. It is therefore clear that the legislator only understood and understood Article 6 (2) as a list and designation of persons who are members of the Banking Board.
4. The Government also points out that, from the principles of the democratic rule of law, from the principle that the people are the source of all state power and that state power serves all citizens, as well as from the concept of a Constitution based on the idea of parliamentary democracy, it is necessary to take precedence over the decision of a state body which is not responsible for its decisions and to state that, should the case be considered to be questionable, the interpretation of the decision of the President of the Republic under Article 63 of the Constitution should be given priority.
While this may be accepted in general terms, it cannot be said, however, that even in a democratic rule of law and in the parliamentary form of government, the measure may be a measure which fully complies with these principles of exclusion of government counter-signature where specific reasons justify the protection of an institution which, according to the Constitution, is to be independent of the government in its guidelines, since the right of counter-signature would allow the government to decide at least on the personnel composition of the Banking Board. Under these circumstances, the appointment right exercised by the supranational president is, although it is not directly linked to the approval of a government composed of representatives of one or more political parties, part of the guarantees of independence of the CNB. The independence of the CNB is a constitutional value resulting from both Article 98 of the Constitution ("its activities can only be affected by the law ') and its location in the separate title of the Sixth Constitution, as well as from Article 62 (1) of the Constitution. k) The Constitution and the Act on ČNB, in particular from its Section 9 (1) (" When securing its main objective, the Czech National Bank is independent of the Government's instructions. ").
Within the democratic rule of law, it is undoubtedly possible to imagine a central bank's position, which contains more elements of synergies and coordination with the government (as is the case with the German Federal Bank, for example). However, in each country, it is up to the legislator to consider adjusting these relations with regard to the situation and needs of its own country, and such a constitutional choice must be made subject to the interpretation of the National Bank Act. In so doing, the principle in the constitutional state is that ordinary law must not exceed the Constitution. If the Constitution provides for a rule, an exception to that rule is possible only if the Constitution itself or later of the Constitutional Act expressly allows such an exception. The provisions of the ordinary law cannot reinterpret the Constitution into a form which it clearly does not have. The interpretation process goes the other way, always from constitutional regulations to laws, unless the constitutional regulation itself expressly provides for an exception.
The CNB Act does not regulate any new appointment powers of the President of the Republic, which would not be in Article 62 (1) of the Treaty. (k) Constitution contained. It only mentions the composition of the Bank Board in terms of the number and designation of its members. Since the government's interpretation does not deny the exclusive power of the President of the Republic to appoint all members of the Banking Board, recognition of the right to counter-signature would lead to a solution which would at the same time enable the Head of State, on the one hand, to independently appoint all members of the Banking Board and, on the other hand, to refuse the approval of the Governor and the Vice-Governor - which in itself contains more dysfunctional potential than, for example, the appointment on a proposal from the Government, in which negotiations and agreements are required in advance. In this context, consider that the President of the Republic pursuant to Article 62 (1) of the Treaty. k) The Constitution appoints all members of the Banking Board, and since according to the Act on ČNB the Banking Board is seven members, so it appoints all seven members of the Banking Board and is not restricted in this respect. If the appointment of the Governor and Vice-Governor referred to in Article 6 (2) of the CNB Act were to be understood as separate, from Article 62 (1) of the CNB Act. (k) The Constitution of the Separate Appointment, subject to Article 63 of the Constitution, could either refuse consent to the appointment of one of the seven members of the Banking Board by the Governor, or even the appointment of the Governor of the ČNB as a non-member of the Banking Board. However, since the Governor is a member of the Banking Board under the CNB Act, in that case one of the seven already appointed members of the Banking Board would have to leave his post, as the Banking Board is legally seven members. I'm sure he could make room for the newly appointed governor if he wanted to. However, it could only be withdrawn if the conditions laid down in § 6 (6) of the CNB Act were fulfilled, which would normally not have occurred.
The proposed government concept is thus unacceptable not only in view of Article 62 (1) of the Treaty. (k) a constitution which does not know the double separate appointment of a member first and then the governor or vice-governor, respectively, but also because it is a solution which is contrary to the principle of proportionality of legislation and the principle of legal certainty and would, from a constitutional point of view, be a provision potentially dysfunctional with its schizophrenic elements.
The applicants seem to be aware of these circumstances and therefore want to maintain their concept of a different method of appointing the Governor and the Vice-governors on one side and the other members of the Banking Board, while preventing the separate (double) method of appointing the Governor and the Vice-governors as such and the Governor and Vice-governors as members of the Banking Board. However, they do so at the cost of interpretation which contradicts the Constitution. In the opinion of the appellants, the Governor and the Vice-Governors of the CNB are to be appointed with the contrasignature of the Prime Minister (pursuant to Article 63 (3) and (4) of the Constitution), with the fact that they will become members of the Banking Board "directly by law ', while the appointment of the other four members of the Banking Board is left to the President of the Republic in accordance with Article 62 (1). (k) Constitution (i.e. without contrasignature).
In fact, however, the Governor is not a member of the Banking Board directly from the Act on CNB, but directly and primarily from the Constitution itself, since according to the Constitution, the President of the Republic appoints without exception all members of the Banking Board in the manner referred to in Article 62 (k). If the CNB Act defines these members of the Banking Board as governors, vice-governors and other members, it shall in no way (and the ordinary law cannot even exclude) exclude the Governor and the two vice-governors from the Constitution the designated appointment of the President of the Republic.
The fact is, therefore, that the current Constitution does not know any membership of the Banking Board which could arise without the appointment of the President of the Republic on the basis of Article 62 (1) of the Treaty. k) Constitution only and directly by law. It is also unconstitutional that, according to the same article, the President of the Republic appoints - as the appellants claim in his reply - only the other (four) members of the Banking Board who "remain" after the appointment of the Governor and the two Vice-Governors. This is contrary to the quoted article of the Constitution, according to which the President of the Republic appoints not only some but all members of the Banking Board without the obligation of counter-signature.
The interpretation of the appellants' interpretation limits the right of appointment laid down in the Constitution in three cases, even by an interpretation of a simple law which, according to the appellants' ideas, makes Article 62 (k) not applicable to the appointment of the Governor and the Vice-Governors and only applicable to "four other members of the Banking Board '. It should also be added that Article 63 (2) The Constitution is to establish the possibility and conditions of a potential extension of the President's powers and not to limit them. This is in line with the wording on the right of the President to exercise, i.e. also others, new powers which, although not explicitly mentioned in the Constitutional Law, are laid down by law.
It should be added that Article 98 (2) of the Constitution, which entrusts the Implementing Act on the Czech National Bank in the area of the appointment law of the President of the Republic, speaks against the interpretations of the applicants only of the "further details'. Such details are, for example, the provisions of the Banking Board Act that the Governor, two Vice-Governors and four other members are members. The introduction of the Prime Minister's mandatory counter-signature for the appointment of three persons from seven members of the Banking Board is in no way a detail but a substantial limitation on the constitutional rights of the President of the Republic guaranteed in Article 62 (1). (k) the Constitution. Because Article 98 (2) At the same time, the Constitution must be understood as a defined framework, which must not be exceeded by the Implementing Act on CNB, the attempt to derive the obligation of counter-signature from the text of the CNB Act rather than calling it unconstitutional, as it is not a modification of the details but a fundamental change in constitutional scope.
Although the Prime Minister and the Government are fundamentally convinced that the appointment of the Governor and the Vice-Governor of the CNB is subject to the counter-signature of the Prime Minister or of his appointed member of the Government, it is, in fact, challenging only the appointment of the Governor and one Vice-Governor of the CNB as an unconstitutional and invalid only the appointment of the second of the current vice-governors, leaving without objections the same method of appointment (without contraindication). This brings an element of libel to the rule of law. In the view of the Constitutional Court, it would not be possible to merge with the rule of law the other parallel coexistence of two different appointment systems, according to which one of the current vice-governors needed and did not need the Prime Minister's signature for his appointment.
The Constitutional Court did not accept a reasonable or objection that the President of the Republic had to withdraw both members of the Banking Board from their current positions on the Banking Board before being appointed to the functions of Governor and Vice-Governor. This transfer of functions took place during the six-year term of office of both members of the Banking Board, none of the conditions of § 6 (6) of the ČNB Act being fulfilled without which the appeal procedure cannot be applied at all. The whole concept of the law confirms the intention of the Constitution to create from the CNB an institution that is independent of the government in the performance of its main task. If the appeals of members of the Banking Board were extended to those internal transfers within the Banking Board, they would be subject to the approval of the Government and thus become an element threatening its independence from the Government. Therefore, in this state of constitutional and legal regulation, it is impossible to attest to the manner in which the President of the Republic appointed Zdeněk Tůma "as an existing member of the Banking Board of the Czech National Bank" by the Governor, with "the current function of the Vice-Governor of the Czech National Bank being terminated by this date." Likewise, the appointment of Ludek Niedermayer as Vice-Governor may be found without being removed from his post as a member of the Banking Board as a constitutional and legal solution. Even in his appointment, the new six-year period of his office did not begin to run.
The provisions of Article 62 (2) (a) shall be decisive in assessing this issue. (k) Constitution in the sense that it defines the Banking Board as a non-differentiated summary of all its members, without specifying the differences in their position. Only a lower legal standard, namely the CNB Act, states that all these members of the Banking Board are appointed for six years and that these members are seven: the Governor, two vice-governors and four other members. If the law provides for appointment for a certain period of time, i.e. a total of six years, that period may not be exceeded. During this term of office, the law makes no distinction between members of the Banking Board. The Bank Board shall be a college management body which shall act in the College and in which the Governor shall be "primus inter pares'. Should the Governor be appointed a person who is not yet a member of the Banking Board, this appointment would begin with a period of six years, but if a person who is already a member of the Banking Board and who has already passed a part of the six-year term of the Board of Directors does not give rise to the appointment of the Governor or the right to run a new one, such as a" Governor 'six-year period, or the possibility of a formal appeal pursuant to Article 6 (6) of the ČNB Act, which determines the circumstances from which can be withdrawn by way of tax. Under that provision, a member of the Banking Board may be removed from office only if he has been legally convicted of a criminal offence or, as decided by the Banking Board, has lost his capacity to perform his duties or, at his own request, transferred to the Banking Board. It may also be withdrawn if it takes up the duties referred to in paragraph 5. None of these conditions laid down by law in the contested case were fulfilled.
For all these reasons, the Constitutional Court decided on the basis of § 124 (1) of Act No. 182 / 1993 Coll., that it was for the President of the Republic to give a decision, as he did in the case in the application for the opening of proceedings concerning this jurisdiction and therefore rejected the proposal of the Prime Minister and the Government of the Czech Republic.
President of the Constitutional Court:
JUDr. Kessler v. r.
Pursuant to Article 14 of Law No 182 / 1993 Coll. they took a different view on the decision of the full judge JUDr. Vojen Güttler, JUDr. Miloš Holecek, JUDr. Ivan Janů, JUDr. Zdeněk Kessler and JUDr. Jiří Malenovský and on his justification the Judges JUDr. Pavel Holländer and JUDr. Vladimir Jurka.
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Regulation Information
| Citation | The Constitutional Court found no. 285 / 2001 Coll., on the application for the issue of the finding that a decision of the President of the Republic of 29 November 2000 on the appointment of the Governor and Vice-Governor of the Czech National Bank is required with the co-signature of the Prime Minister or his authorised member of the Government |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 03.08.2001 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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