The Constitutional Court found no 30 / 2019 Coll.
The Constitutional Court found on 18 December 2018 Coll.
Valid
30
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under point Pl. ÚS 4 / 18 on 18 December 2018 in plenary composed of the President of the Court of Paul Rychetský and the Judges and judges of Louis David, Josef Fiale, Jan Filip, Jaromír Jirsy, Jan Musil, Radovana Suchanka, Kateřina Šimáčková, Vojtěho Šimíček (Judge of the Rapporteur), Milady Tomková, David Híchíř and Jiří Zemánek on the proposal of the Senate Group of the Parliament of the Czech Republic, represented by JUDr Petrou Humlichlíčková, lawyer and from the air traffic, "§ 12 (1), third sentence," on the cancellation of the provisions of Section 11 (1), third sentence of the third sentence, § 11 (3) of the second sentence in the words, "with the noise from transport of the Senate, p.
as follows:
1. The proposal to repeal the provisions of § 11 (1) third sentence, § 11 (3) second sentence in words "except for noise from road, rail and air traffic," § 12 (1) third sentence, § 12 (3) third sentence in words "except for noise from road, rail and air traffic," § 12 (4), (5), (6), § 20 (3), § 20 (4) third sentence and the parts of Annex 3 to Government Regulation No 272 / 2011 Coll., on the protection of health against adverse effects of noise and vibration, as amended, is rejected.
2. The proposal for the abolition of the Methodological Instructions of the Ministry of Health - the main hygienist of the Czech Republic for the measurement and evaluation of noise in the extracurricular environment, published on 18 October 2017 in the Journal of the Ministry of Health under No 11 / 2017, is rejected.
Reasons
Summary of the subject matter
1. By a proposal submitted pursuant to the provisions of § 64 (2) (b) of Act No 182 / 1993 Coll., on the Constitutional Court, a group of 10 Senators (hereinafter referred to as "the draftsman") seeks the annulment of the provisions of § 11 (1), third sentence, § 11 (3), second sentence, in the words "except for noise from road, rail and air traffic," § 12 (4), third sentence, § 12 (3), third sentence, in the words "with the exception of noise from road, rail and from air traffic," § 12 (4), (6), § 20 (3), and parts of Annex 3 to the Government No 272 / 2011 Coll., on health protection against the adverse effects of noise and vibrations, as amended, (hereinafter referred to "Regulation"); Methodology for the measurement and assessment of noise in the non-working environment of 11.12.2001 No. HEM-300-11.12.01-34065 ("2001 methodology ') and Methodology for the assessment of noise in the outdoor space of buildings of 1.11.2010 No. 62545 / 2010-OZV-32.3.-1.11.2010 (" 2010 methodology'). The contested provisions generally set allowed noise limits in different situations and conditions.
2. The reason for the proposal is, according to the author, the above-average burden on the population of the Czech Republic is excessive noise, which has negative consequences for health and overall well-being of the population. It considers that the contested noise limits, in particular in the field of road transport (the proposal does not affect the sources of noise in the working environment), and consequently the criteria for their calculation and measurement, are too modest and inadequate to the current possibilities of the company. This legislative generosity is not necessary, because there are many effective countermeasures, the application of which would lead to a real reduction in noise intervention.
3. The appellant therefore considers those provisions to be contradictory to the right to health [Article 31 of the Charter of Fundamental Rights and Freedoms ("the Charter ')], the right to a favourable environment (Article 35 (1) and (3) of the Charter) and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (" the Convention'). Finally, it argues that both the regulation and the two methodologies were not issued within the limits of the law and the regulation also undertransposed Union law and were adopted in an untransparent manner. For the reasons given, it proposes to repeal both the provisions of the Regulation and the two methodologies.
Text of the contested provisions of the Regulation
4. In the interests of greater clarity, the Constitutional Court also sets out the full text of the contested provisions; the parts proposed for cancellation are marked in bold.
5.
Hygienic noise limits in protected indoor spaces of buildings
(1) The sound level A LAeq, T and the maximum sound level A Lamax are equivalent to the noise level A LAeq, T or corresponding levels in the frequency bands. The equivalent sound pressure level A Lacq, T is set for 8 continuous and consecutive hours (LAeq, 8h) at night for the loudest 1 hour (LAeq, 1h). For road and rail noise and air traffic noise, the equivalent sound pressure level A LAeq, T shall be determined for the whole day (LAeq, 16h) and the whole night (LAeq, 8h). In the case of air traffic noise, the hygiene limit in the protected indoor areas of the buildings applies to a typical flight day.
(3) Hygienic limit of maximum sound level A shall be determined for noise spreading from sources within the object by adding the basic maximum sound pressure level A Lamax equal to 40 dB and corrections taking into account the type of protected interior space and the daytime and night time referred to in Annex 2 to this Regulation. In the case of noise with tone components, except noise from road, rail and air traffic, additional correction -5 dB shall be added. Noise from sources inside the building, with the exception of noise from construction activity, is also considered to be noise from sources located outside this building, which penetrates this building in a way other than air, in particular by constructions or subsoil.
Hygienic noise limits in protected outdoor areas of buildings and in protected outdoor areas
(1) The indicative noise indicator, except for high energy impulse noise, is the equivalent sound pressure level A LAeq, T and the corresponding levels in the frequency bands. During the day it is set for 8 continuous and consecutive loudest hours (LAeq, 8h), at night for the loudest 1 hour (LA-cq, 1h). For road and rail noise and air traffic noise, the equivalent sound pressure level A LAeq, T shall be determined for the whole day (LAeq, 16h) and the whole night (LAeq, 8h).
(3) The hygiene limit of the equivalent sound pressure level A, with the exception of air traffic noise and high energy impulse noise, is determined by the sum of the basic sound pressure level A Laeq, T 50 dB and the corrections taking into account the type of protected space and the daytime and night hours listed in Table 1 of Part A of Annex 3 to this Regulation. For high impulse noise, additional correction -12 dB is added. In the case of noise with tone components, except noise from road, rail and air traffic, additional correction -5 dB shall be added.
(4) The old noise load LAeq, 16h for the day and LAeq, 8h for the night shall be determined by measuring or calculating from the data on the annual average daily intensity and traffic composition in 2000 provided by the administrator, where appropriate, by the owner of the infrastructure or rail. The hygiene limit laid down for the old noise load applies to integrated sections of infrastructure or runway.
(5) Hygienic limit of equivalent sound level And the old noise load determined by the sum of the basic sound pressure level A LAeq, T 50 dB and the correction for the old noise load set out in Table 1 of Part A of Annex 3 to this Regulation shall remain as follows:
(a) after laying of a new road surface, maintenance and reconstruction of railway tracks or road extensions, while maintaining the road or runway direction or height line; and
(b) for short-term routes.
(6) Hygienic limit of equivalent sound level A old noise load determined by the sum of the basic sound pressure level A LAeq, T 50 dB and correction for the old noise load given in Table 1 of Part Annex 3 to this Regulation shall not apply where the noise caused by road and rail transport has increased by more than 2 dB after 1 January 2001 in the infrastructure or runway section concerned. In this case, the hygiene limit equivalent to the sound level A LAeq, T shall be determined in accordance with the procedure laid down in paragraph 3. However, if the value of road and rail noise before its increase by more than 2 dB according to the first sentence was higher than the values given in Table 2 of Part A of Annex 3 to this Regulation, additional correction + 5 dB shall be added to the sanitary limits equivalent to the sound pressure level A LAeq, T as determined in paragraph 3.
(3) In the protected exterior space of buildings, sound pressure levels are determined for the falling sound wave.
(4) When measuring noise in protected outdoor spaces of buildings, protected outdoor space and in protected indoor spaces of buildings, an uncertainty shall be given, which means extended combined standard measurement uncertainty. The uncertainty shall be applied in the assessment of the measured values. The resulting sound level value does not exceed the hygiene limit if the resulting equivalent sound level after deduction of the uncertainty is equal to or below the hygiene limit or the resulting maximum sound level is equal to or below the hygiene limit. ';
Annex 3 to Government Regulation No. 272 / 2011 Coll., as amended by Government Regulation No. 217 / 2016 Coll.:
"Determination of health limits for noise in protected outdoor areas of buildings and in protected outdoor areas
Table 1
Correction for the determination of hygiene noise limits in protected outdoor areas of buildings and in protected outdoor areas
| Druh chráněného prostoru | Korekce [dB] | |||
|---|---|---|---|---|
| 1) | 2) | 3) | 4) | |
| Chráněný venkovní prostor staveb lůžkových zdravotnických zařízení včetně lázní | -5 | 0 | +5 | +15 |
| Chráněný venkovní prostor lůžkových zdravotnických zařízení včetně lázní | 0 | 0 | +5 | +15 |
| Chráněný venkovní prostor ostatních staveb a chráněný ostatní venkovní prostor | 0 | +5 | +10 | +20 |
The corrections given in the table are not added.
For night time, additional correction -10 dB is added for the protected outdoor space of buildings, except for noise from rail transport, where correction -5 dB is used.
The correction rules set out in Table 1:
1) It shall be used for noise from the operation of stationary sources and noise from railway stations providing train work, in particular the sorting and assembly of freight trains, the inspection of trains and the repair of wagons. For noise from railway stations providing trains that were put into service before 1 November 2011, additional correction + 5 dB is added for night time.
2) It shall be used for noise from rail, III-class roads, III-class local roads and special purpose roads within the meaning of Article 7 (1) of Act No. 13 / 1997 Coll., on roads, as amended.
3) It shall be used for noise from traffic on motorways, first and second class roads and local roads in the territory where noise from traffic on these roads is predominant over noise from traffic on other roads. It shall be used for traffic noise on rails in the track protection zone.
4) It shall be used to determine the value of the hygiene limit of the old noise load.
Table 2
Noise values from road and rail transport for use of additional correction + 5 dB according to § 12 (6) third sentence
| Pozemní komunikace a železniční dráhy | Doba dne | LAeq,T [dB] |
|---|---|---|
| Dálnice, silnice I. a II. tř., místní komunikace I. a II. tř. | Denní | 65 |
| Noční | 55 | |
| Silnice III. tř., komunikace III. tř. a účelové komunikace | Denní | 60 |
| Noční | 50 | |
| Železniční dráhy v ochranném pásmu dráhy | Denní | 65 |
| Noční | 60 | |
| Železniční dráhy mimo ochranné pásmo dráhy | Denní | 60 |
| Noční | 55 |
Arguments of the appellant
6. The appellant submits that the basic act of protection against adverse noise is Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related acts, as amended, (hereinafter referred to as the "Act on the Protection of Public Health '), which, however, regulates the problem of noise only in general. More detailed regulation is contained only in implementing legislation - regulation. This sets certain noise limits, but it also reduces noise on roads in certain cases (according to the author unjustifiably). In particular, the following situations are to apply:
- Paragraph 12 (1) of the Regulation: In the case of noise from transport loads, the real noise level is averaged over the whole day (16 hours) and the whole night (8 hours) time. This means, for example, that very noisy hours above the morning are "compensated" by calm hours in the middle of the night and, as a result, the noise limit is met, although residents are exposed to high noise loads.
- Paragraph 11 and Article 12 (3) of the Regulation: Limit for noise with tone components is not explicitly applied to road transport, although the tone component is typical of it.
- Paragraph 12 (4) of the Regulation: The Institute of Old Noise Load allows for the tolerance of higher noise limits from transport in protected outdoor areas and protected outdoor areas of construction, if this noise originates in a situation arising before 1 January 2001. The regulation does not contain any deadlines for removing the old noise burden, but the Institute is not defined at all in the Public Health Protection Act.
- Paragraph 20 (3) of the Regulation: In the protected outdoor space of buildings, noise is only set for the falling sound wave (correction), although residents are also exposed to reflected sound waves (e.g. from the facade of the house).
- Paragraph 20 (4) of the Regulation: The calculation of noise is reduced by uncertainty of measurement, which leads to the fact that even if the actual noise measured exceeds the limit and is not respected with a high degree of probability, due to the deduction of the measurement uncertainty, it is complied with according to that provision.
- Annex 3, Part And Table 1 of the Regulation: It contains corrections for road noise, which is the most common source of noise in the Czech Republic. However, the Public Health Act does not foresee that the limit on the protection of the population should be less favourable to infrastructure. Corrections make exceptions a rule. The table also provides for corrections for the protected outdoor space of buildings (more than 2 metres from the buildings intended for housing), with a noise limit significantly higher than for the protected outdoor space of buildings (up to 2 metres from the buildings intended for living). People in gardens, for example, are thus exposed to noise and damage to human health.
- Methodologies 2001 and 2010: They define noise measurement procedures, inter alia significantly narrowing the range of situations under which measurements can be made. The conditions in which noise levels are higher are excluded.
7. The purpose of Article 35 (1) of the Charter is to protect the environment. According to the author, it is possible to deduce by teleological interpretation of provisions and when applying the precautionary principle (cf. Section 13 of Act No. 17 / 1992 Coll., on the Environment) that uncertainty in measurement, correction and other rules related to noise must be applied in such a way that the environment and human health are always protected. If the law foresees a limit and does not foresee a reduction, it is unconstitutional to do so under the law.
8. In addition, the appellant cites the case law of the Constitutional Court on substatutory standards and claims that the contested regulation and both methodologies were not issued within the limits laid down by the law. Although the aim of the Public Health Protection Act is to protect against the negative effects of noise loads, the regulations without explicit legal authorisation cause noise to not be measured at all in the most noisy periods of time or to reduce the measured noise for evaluation purposes in different ways. The rules in question are directly contrary to the objectives and purpose of the law.
9. With a general reference to international conventions, the appellant introduces a ban on reducing the level of protection of fundamental rights (standstill doctrine). The rule also applies in relation to the right to a favourable environment, according to the quoted technical literature. The appellant submits that, although noise hazards persist, protection from its negative effects is reduced over time. The claim is supported by several examples already presented in point 6 of this finding.
10. The Czech legislation according to the author undertransposes Directive 2002 / 49 / EC of the European Parliament and of the Council of 25 October 2002 on the assessment and management of noise in the outdoor environment (the "Noise Directive"). However, the Noise Directive foresees the introduction of an evening noise limit, Government Decree No. 272 / 2011 Coll., on the protection of health against adverse effects of noise and vibration, as amended, does not provide for this specific indicator, although it has practical merit.
11. The appellant argues that the public has been completely excluded from discussing the regulation and both methodologies. This failed to comply with the requirements of the Aarhus Convention (Convention on access to information, public participation in decision-making and access to justice in environmental matters; published under No. 124 / 2004 Coll. s.) and did not take into account the long-term interest of citizens in noise protection.
12. The applicant also submits that the contested legislation infringes Article 8 of the Convention. The case law of the European Court of Human Rights links the quoted right to the peaceful use of dwellings (as part of the right to privacy) to protection against the negative effects of environmental pollution. The Czech state protects its population from excessive noise insufficiently.
13. For the reasons set out above, the appellant proposes that the above-mentioned parts of the Regulation and the two methodologies be abolished on the date of the publication of the finding in the Collection of Laws.
Proceedings before the Constitutional Court
Government observations
14. The Constitutional Court, pursuant to § 69 (1) of the Law on the Constitutional Court, has sent the application in question for the annulment of the contested provisions to the Government and the Ministry of Health for observations.
15. The Government states that, in its view, the issue raised is, in particular, a professional issue falling within the scope of the executive and legislation, not the power of the court. Therefore, the arguments evidencing the constitutionality of the contested provisions are mainly of a professional nature.
16. The expression first summarises the basic principles of the legislation in question, stressing the need to distinguish between long-term and short-term noise exposures. Only in the first case is a negative impact on human health demonstrated and legislation therefore sets the limits. Any limit may not be taken as an absolute limit between the safety of the non-border and the health damage when it is exceeded. Limits in this respect only express a certain convention in terms of a compromise between the possibilities of society and health requirements. In other words, exceeding the limit does not automatically mean direct health threats, but a threat to health protection (legal aspect).
17. Compliance with the proposal would in principle mean establishing a uniform noise limit (50 dB at day, 40 dB at night) for all noise sources and all situations. While the levels mentioned in its documents are mentioned by the World Health Organisation (hereinafter referred to as the WHO), they are exclusively recommended and forward-looking levels, i.e. that states should be directed towards them where feasible. In the normal built-up area, for example, the limit of 40 dB would be exceeded in the outdoor area already when passing several vehicles per hour. In addition, the distinction between noise sources and situations in which noise acts corresponds to real practical conditions and is also commonly applied abroad.
18. The specific (technical) objections of the appellant shall be contradicted by the Government as follows:
- Noise measurement averaging: The results of epidemiological studies show only the relationship between long-term exposure to excessive noise and negative health consequences. In view of this, the limits are established on the basis of the long-term average noise burden. The approach also corresponds to globally accepted procedures.
- Noise with a tone component: both the practice in other European Union countries (hereinafter referred to as "EU") and the CSN standard do not consider traffic noise to be a noise with a tone component as it does not contain this component permanently. Any short-term occurrence of the tone component may be caused, for example, by a defect, which is nevertheless to be immediately removed and does not call into question the exclusion from the limit.
- Impact sound wave: The Institute of Protected Outdoor Space of Buildings is a tool for assessing the degree of exposure of the object due to sound penetrating inside, therefore the reflected sound is not counted. The opposite approach would deny the purpose of the institute.
- Institute of Old Noise Load: The Institute allows for the tolerance of excessive noise levels (at an unsurpassed ceiling of 70 dB in the day and 60 dB in the night) in cases of historical load for which the company does not currently have technical or financial resources to put in the current limits of corresponding states. However, if more than 2 dB rises from baseline, tolerance is no longer possible and current limits are applied. Last but not least, it is appropriate to stress that the old noise load relates solely to traffic and outdoor noise.
- Measurement uncertainty: International standards provide that States must set out the areas for acceptance and rejection of measurement results (decision limit or level) when measuring. However, they do not determine how they are to be defined. The design of the decision-making limit in the Czech Republic is based on the requirement contained in the provision of Section 30 (1) of the Act on the Protection of Public Health, according to which the noise limits must not be exceeded. Such a breach must be clearly demonstrated by the State to the operator, which means applying the limit to the upper decision level. In other words, there must be a high statistical probability that the limit is exceeded. In addition, it should be recalled that a possible crossing of the border cannot be considered as a direct threat to health, but only a breach of the level of acceptable risk.
- Difference between the limits for the protected outdoor area and for the outdoor space for the protection of buildings at night: At the time of the day the limit for both spaces coincides, in the time of the night the limit for the first one is tightened. The adjustment has a logical basis, it is not expected that at night the outdoor areas normally serve for recreation or rest. A reduction in the limit would require a comprehensive measure, especially for large-scale land, with no positive health effects.
- Noise measurement under non-standard conditions: The conditions of objective noise measurement are clearly laid down by international rules in the Czech Republic by standard ČSN ISO 1996-2. This specifies that values should be related to the year-round average state. Only under defined standard criteria can representative, accurate and reproducible measurements be guaranteed. After all, under unfavourable conditions (e.g. rain or high temperature) it is often not technically possible to perform measurements (microphones, etc.). Measurements shall not be prohibited even outside the recommended time limits; it shall only be taken into account if the current conditions comply with those requirements.
19. Implementation of the Noise Directive: Noise indicator for the evening was transposed into Czech legal order by Decree of the Ministry of Health No. 523 / 2006 Coll., laying down the limit values of noise indicators, their calculation, the essential requirements for the content of strategic noise maps and action plans and the conditions for public participation in their preparation (Noise Survey Order). The indicator is used, in accordance with the purpose of the directive, in the creation of action plans for noise prevention measures, i.e. by legislation not related to the contested rules. From the point of view of the government's health, there was no evidence of any special relationship between noise load and health consequences in this part of the day and therefore no specific noise limit for the evening was established.
20. Insufficient hearing: The Aarhus Convention is not, according to the case law of the Constitutional Court, a direct source of any civil rights and obligations. Above all, however, the appellant's claim, according to the Government, is false as the public was allowed to comment on the draft regulation.
21. The Decree does not, according to the Government, interfere with the conditions of the derived standard defined by the case law of the Constitutional Court. Act No. 258 / 2000 Coll., on the Protection of Public Health and on the Amendment of Certain Related Laws, Paragraph 34 (1) states: "The implementing legislation will adjust the hygiene limits of noise and vibration for daytime and night periods, the way in which they are measured and evaluated." Paragraph 108 (3) of Act No. 258 / 2000 Coll., as amended by Act No. 267 / 2015 Coll., expressly states that the Government's Decree is to be the form of implementing legislation. The regulation is sufficiently specific and does not interfere in matters reserved for the law, it does not determine the primary obligations of persons. The Government gives several other examples in which the Act empowers different entities to issue substatutory regulations setting limits for different situations or products.
22. Methodologies 2001 and 2010 do not, according to the Government's observations, have the character of any other legislation in formal or material terms. Therefore, they cannot be reviewed in the standard control procedure.
23. The Government also analyses the appellant's recommendations for measures that actually reduce noise loads. It recognises that speed reduction, silent asphalt or noise-proof walls can be effective and are, moreover, widely used. However, in view of the reduction of transmission, real field restrictions and available financial resources, their use cannot be foreseen to the extent required by the appellant to meet the reduced noise limits.
24. The Government considers the proposal to be unfounded and requests its rejection; the part relating to the two methodologies then proposes to refuse on grounds of the lack of jurisdiction of the Constitutional Court. Should the Constitutional Court decide to comply with the application or part of the application, the Government asks that the enforceability of the finding be postponed for at least 12 months in order to provide sufficient space for the adoption of the new regulation.
25. The Ministry of Health did not comment on the proposal.
Observations of the Ombudsman
26. At the request of the Constitutional Court pursuant to § 69 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, whether it entered the proceedings as an intervener, the Ombudsman stated that it had decided not to exercise its procedural right and not to intervene.
Opinion of the Czech Chamber of Commerce
27. The Constitutional Court has received an unsolicited statement from the Chamber of Commerce of the Czech Republic (hereinafter referred to as the Chamber of Commerce), on behalf of the lawyer Mgr. František Korbel, Ph.D. The Chamber of Commerce states that compliance with the proposal would have significantly negative effects on business and the economic situation in the Czech Republic. It subsequently refutes the appellant's arguments in detail. However, since the reasons given are largely overlapping with the government's above-mentioned claims, the Constitutional Court does not consider their repetition to be useful. The opinion agrees that the contested regulation is not unconstitutional. In the case of both methodologies, it is an inadmissible proposal, according to the Chamber of Commerce, since the methodologies were replaced in 2017 by the Methodology of the Ministry of Health - the Czech chief hygienist for measurement and assessment of noise in an out-of-work environment, published on 18 October 2017 in the Ministry of Health Bulletin under No 11 / 2017 ("the 2017 methodology ').
Replication of the appellant
28. The Government's observations and opinions of the Chamber of Commerce have been sent by the Constitutional Court to the appellant for a reply. The appellant points out that the regulation of the method of measuring noise and demonstrating compliance with the limits makes it possible to increase noise burden, which is paradoxical in the period of the demonstrably rich Czech Republic. As there is currently no effort to improve the situation by legislation, there is no other option than to require the repeal of part of the implementing provisions.
29. The appellant deals briefly with the counter-arguments of the Government and the Chamber of Commerce against its original objections. In particular, they argue:
- It's not logical to average noise throughout the night. When residents are exposed to high noise loads in certain hours, they cannot then be claimed to have "slept healthily" on average.
- The tone component of noise is not unique but rather regular for intensely used communications. The flat application of the correction does not allow evaluation of the presence of the tone component in individual cases.
- Reflection from the facade should be counted, as people are normally on balconies or terraces and should also be adequately protected here.
- Since most communications are owned by public bodies, it makes no sense that the correction of measurement uncertainty should be applied to their benefit. It is the responsibility of these bodies to protect citizens. The measurement uncertainty allows for the tolerance of up to twice the amount of noise compared to the noise without the use of the correction.
- The old noise load institute has been used for 18 years, and therefore it is not a temporary tool, there is essentially no effort to solve the problem.
- A statutory regulation cannot impose an obligation on the public to tolerate noise which is demonstrably harmful to health.
30. The applicant reacts to the 2017 published methodology by taking over, in its view, the previous conditions for measuring noise, which allow to measure only when noise is lower than usual. However, in the present situation, the appellant states that it proposes the withdrawal of the methodology 2017. The fact that in the original proposal the methodology had already been abolished implies that this cancellation was only at the time of processing. The Constitutional Court therefore assumed in the next instance that the appellant requested, instead of the 2001 and 2010 annulment, a replacement methodology 2017.
Abandonment of oral proceedings
31. Pursuant to Article 44 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court decided on a case without the oral hearing because it could not be expected to further clarify the case.
Active procedural legitimacy and management conditions
32. The application was submitted by a group of 10 Senators and Senators, which, pursuant to Article 64 (2) (b) of the Constitutional Court Act, is entitled by the appellant to submit an application for annulment of another legislation; the intention of the legislators to support the proposal has been certified to the proposal accompanied by a signature. The proposal contains all the legal requirements and, in view of the amendment of the petition made in the reply of the appellant of 4 July 2018, is not inadmissible pursuant to Section 66 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., (§ 63 of the Law on the Constitutional Court in conjunction with Section 95 (1) of Act No. 99 / 1963 Coll., the Civil Code, as amended by Act No. 30 / 2000 Coll.); there are no grounds for terminating the procedure under Paragraph 67 of the same Law.
Assessment of procedural conditions and competence for the adoption of the Regulation
33. In the procedure for checking standards pursuant to Article 87 (1) (b) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), the Constitutional Court within the meaning of Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., examines whether the "other legislation" has been adopted and issued in a constitutional manner and within the limits of the Constitution established competence.
34. The Government shall be entitled to issue the Regulation in accordance with Article 78 of the Constitution. The regulation was approved by Government Resolution No. 631 of 24 August 2011, the final text was published in the Collection of Laws on 23 September 2011 in the amount 97 under No. 272 / 2011 Coll., effective on 1 November 2011. The later amendment to the regulation was approved by Government Resolution No 535 of 15 June 2016 and was published in the Collection of Laws on 15 July 2016 in amount 84 under No. 217 / 2016 Coll. with effect from 30 July 2016. The last amendment to the regulation was approved by Government Resolution No. 624 on 3 October 2018 and was published in the Collection of Laws on 25 October 2018 in the amount of 121 under No. 241 / 2018 Coll. with effect from 9 November 2018.
35. The constitutional conditions of procedure and competence foreseen for the adoption of the Regulation have been fulfilled.
The Constitutional Court's own review
Assessment of whether a regulation was issued within the limits of the law
36. The Constitutional Court first took the view that the appellant's objection that the contested provisions of the Regulation had not been issued within the limits of the law, which is in contradiction with its objectives and purpose.
37. The authorisation of the Government as the authority issuing the Decree [cf. the decision of 9.2.2010 sp. zn. Pl. ÚS 6 / 07 (N 20 / 56 SbNU 207; 66 / 2010 Coll.), all decisions of the Constitutional Court are available at http: / / nalus.ujud.cz], as assessed in paragraph 34 of this Decision, is only one of the constitutional conditions of the law of the law. Article 78 The Constitution stipulates that the Government may issue regulations for the implementation of the law and within its limits. The Constitutional Court has interpreted the limits of the substatutory normative formation in a number of decisions [to the latest summary including the application for specific cases cf. the finding of 12 December 2017 sp. zn. Pl. ÚS 26 / 16 (8 / 2018 Coll.); the finding of 11 September 2018 sp. zn. Pl. ÚS 24 / 17 (235 / 2018 Coll.)]. As is apparent from Article 78 of the Constitution, the law does not need to empower the Government to enact a regulation (it may "remain silent '), but it must not deviate from the legal limits and, even with the express agreement of the legislator, the Government is not authorised by the regulation to regulate questions outside the subject matter of the implementing act [cf. Case C-62.2010 sp. zl. ÚS 6 / 07 (N 20 / 56 SbNU 207; 66 / 2010 Sb.)]. This negative criterion is also supplemented by a (stricter) positive criterion - the regulation should be kept within the limits of at least the purpose and meaning of the law. In other words, the legislator should show in the law the will to adjust above the legal standard [the scope for the sphere of the regulation, the finding of 25 October 1995 sp. zn. ÚS 17 / 95 (N 67 / 4 CollNU 157; 271 / 1995 Coll.)]. It should also be stressed that the Regulation does not impose primary rights and obligations (Article 4 (1) of the Charter) or impose limits on fundamental rights and freedoms (Article 4 (2) of the Charter) [cf. the finding of 10.7.1996 sp. zn.
38. The Public Health Protection Act in § 30 defines in detail noise and vibrations (not their limits), regulates the obligation of operators and owners of different facilities and objects not to exceed noise limits and also defines different types of protected spaces from noise (see below). Paragraph 34 (1) of the same Act states: "The implementing legislation will regulate the hygiene limits of noise and vibrations for daytime and night periods, the way in which they are measured and evaluated. 'Finally, Paragraph 108 (3) of Act No. 258 / 2000 Coll., as amended by Act No. 267 / 2015 Coll., empowers the Government to be the implementing regulation. It is therefore clear that, in this case, the legislator expressly authorised the government to issue a regulation, thereby showing the will to make more detailed arrangements beyond the general legal standard.
39. It should be noted that the appellant, contrary to the situation in a number of proceedings cited above, in which the Constitutional Court dealt with the issue of the constitutionality of the substatutory standard (see also the finding of 30 June 2004 sp. pl. ÚS 23 / 02 (N 89 / 33 SbNU 353; 476 / 2004 Coll.) on which the proposal is based) did not challenge the mandate itself to issue a substatutory regulation in the Public Health Protection Act. The authorisation in question cannot therefore be examined in the present proceeding. However, the Constitutional Court considers it appropriate to state that, although the Public Health Protection Act does not contain any (or default) noise limit and leaves it to the Government, the provisions of Paragraph 108 (4) of Law No 258 / 2000 Coll. defines a number of specific conditions which must be taken into account when establishing noise hygiene limits.
40. The appellant also does not consider the whole regulation, but only parts of it. Consequently, the appellant's objections can in principle be interpreted as not respecting the meaning and purpose of the Act on the Protection of Public Health in certain provisions of the Regulation, or limiting the fundamental rights claimed without the necessary legal authorisation.
41. However, the Constitutional Court does not agree with the appellant's argument. For reasons which will be explained below, the determination of the hygiene limits of noise and the way in which they are measured is one of the activities which correspond to the following citation from the case-law of the Constitutional Court: "It is appropriate to maintain an adjustment to the details of a statutory regulation which can be more operationally amended '(cf. Moreover, as mentioned above, Section 108 (4) of Act No. 258 / 2000 Coll. lays down criteria for the determination of hygiene limits, inter alia, it refers to the assessment of health risks arising from living conditions and lifestyle, current scientific knowledge or recommendations of the WHO. Even if the real basis of the appellant's assertion is that noise is not measured at all at certain times or that the measured value decreases in different ways, the proposal does not show how this should contradict the purpose and purpose of the law or, without legal authorisation, restrict the right to health or to the favourable environment. On the contrary, the Government's statement and the explanatory memorandum to the regulation clearly show that the definition of the limits and the manner in which they are applied in the implementing regulation are complementary to the provisions contained in Section 30 of the Public Health Protection Act and correspond to the conditions contained in Section 108 (4) of the Act.
Assessment of the objection to non-transparency of the adoption of regulations
42. The last of the appellant's "procedural" objections is against the fact that the regulation was adopted without transparency and without proper public consultation.
43. First of all, it should be noted that the process of adopting substatutory rules is, by definition, less open to the public than when adopting laws. A significant contribution of the Czech executive to greater transparency can therefore be considered to be the fact that a number of relevant information from the course of the approval of the substatutory regulations, including the results of the inter-ministerial comment procedure, is freely accessible within the Government of the Czech Republic under the administration of the administered eKlep Internet database for the public (available at https: / / apps.odk.cz / veklep). On the contrary, in the Czech Republic, unlike for example Slovakia, active public involvement in the executive phase of the preparation of legal or statutory legislation is not formalised. The legislative rules of the Government, approved by Government Resolution 188 of 19.3.1999, as amended, do not prohibit public participation in the inter-ministerial comment procedure (and can therefore make comments), but do not at the same time oblige the body submitting the draft legislative act to deal with the comments submitted by the public [the violation of the legislative rules of the Government does not, moreover, constitute a constitutionally inconsistent legislative process, with the finding of 13 December 2016 sp. zn. ÚS 19 / 16 (N 237 / 83 CollNU 677; 8 / 2017 Coll.), paragraph 56]. In the present case, the right of the public to settle comments cannot be derived from the Aarhus Convention referred to, since it is primarily of a programming nature and is not a direct source of any rights and obligations (e.g. the Constitutional Court Resolution of 2 September 2010 sp. zn. I. ÚS 2660 / 08).
44. Of course, the overarching framework does not prevent the legislator from settling or even taking public comments into account. Contrary to the appellant's claim, that is what the Ministry of Health did when discussing the draft amendment to the regulation in 2016. A total of 15 initiatives were received by the public (NGOs, municipalities, associations, individuals) in inter-ministerial proceedings, on which the individual points were very detailed. The resulting written opinion was subsequently published on the Ministry's website (the text available at http: / / www.mzcr.cz / documents / opinions-draft- and-pripominkam- submitted-to-public). In the light of the above, the Constitutional Court does not consider that the process of preparing the regulation would be untransparent or inaccessible to the public.
Assessment of whether the Regulation infringes fundamental health and environmental protection rights
45. The dictionary of writing Czech interprets the word noise as "a mixture of irregular and diverse sounds at different heights and at different strengths" (version of 2011, available at http: / / ssjc.ujc.cas.cz), suggesting the unpleasant nature of the noise. Paragraph 30 (2) of the Act on the Protection of Public Health defines noise directly as a sound which can be harmful to health. Noise emissions are a natural part of a number of natural processes, but there is no doubt that harmful noise is primarily a civilisation phenomenon and human activity is currently the main source. The noise protection is a classic variation of a situation in which it is necessary to protect a man from himself.
46. The negative effect of noise on human health cannot be contradicted. The Constitutional Court therefore considers it superfluous to refer here to any easily accessible statistics or the results of a large number of studies and other relevant sources which prove that. Nor does any of the parties deny this notoriety. It is also obvious, however, that modern human society is unable to secure its existence without creating noise - a typical example of noise coming from passenger or freight transport. It is therefore the task of public authority to strike a balance between the two legitimate interests. At the heart of the proposal under consideration, the objection is that a significant part of the Czech legislation is not so balanced and in the end it favours the interests of noise-makers over the protection of the population.
47. Although the background to the harmful nature of noise for human health is undeniable, it is also impossible to objectify it in any way in terms of setting a specific, precise limit from which noise already manifestly damages health. Noise can take on different strengths and forms and each person also has a different level of noise resistance in terms of general (e.g. age or genetic predisposition) and momentary (e.g. health status) characteristics. So is the other side of the equation. The expected noise level at the pulsating city intersection or near the mining facility will be different from in the city park or bedroom area. All these factors must be taken into account when setting noise emission limits, which are essentially highly professional, based on the latest knowledge of health, physics, transport and construction.
48. The Constitutional Court rejects the Government's argument that the issues dealt with in this case and the priori do not fall within the jurisdiction of the judiciary. The courts do not and cannot resign from the review of cases in which the decision depends on the assessment of expert or scientific questions (cf. Isses in Science and Technology, 2000, No 4), although this can often lead to controversial results (for all cases, a number of scientists disagree with the decision of the Court of Justice of the European Union of 21.6.2017 against Sanofi Pasteur MSD, C-621 / 15, all decisions of the Court of Justice of the European Union are available at https: / / curia.europa.eu / jcms / jcms / j _ 6 / en /). However, it follows from the purpose and principles of the abstract control of standards procedure that the Constitutional Court cannot have the ambition to pursue a review of purely technical issues of the type of method of calculation of the statistical deviation of noise measurement or of whether such or a different correction from the general noise limit is justified in the area of the protected railway band from the point of view of health [for example, the finding of 26.5.2009 sp. zl. ÚS 40 / 08 (N 120 / 53 SbNU 501; 241 / 2009 Coll.), paragraph 91. In order to make similar decisions, the government has the necessary administrative and expert facilities and resources and it is therefore primarily up to it to assess all the necessary factors in their completeness and taking into account the current state of knowledge. In fact, all the contested provisions of the regulation can be placed under these technical technical questions. In addition, the discretion of the court to examine these issues is common from other constitutional courts (cf., for example, the decision of the Austrian Federal Constitutional Court on the direct issue of noise limits, of 4.10.2018 sp. zn. E 1818 / 2018, available at https: / / www.vfgh.gv.at / index.de.html).
49. The Constitutional Court decided to examine the proposal in a comprehensive manner as a whole, not to examine in detail the meaning and effectiveness of the individual provisions of the Regulation (or the related measures), as the Government has expressed (cf. paragraph 18 of this finding) and the Chamber of Commerce. Indeed, as has already been mentioned above several times, the appellant also submits in principle that only a set of contested provisions causes the State to resign from noise protection and thereby harms the fundamental rights contained in Articles 31 and 35 (1) of the Charter. From a constitutional point of view, it is not the way in which individual technical standards are conceived and formulated, but the overall effects of such regulation. For these reasons, too, the Constitutional Court did not agree to a positive definition of the content of the health rights [cf.] but the finding of the Constitutional Court of 5.12.2012 sp. zn. IV. ÚS 444 / 11 (N 200 / 67 SbNU 573), paragraph 10] and the favourable environment (see for example Müller, Hana. Right to a favourable environment: Experience of selected European countries and proposals for future application in the Czech Republic. Prague: Institute of State and Law of the CAS, 2018, p. 133 - 201). It was thus limited to examining whether the contested regulation pursues a legitimate objective and whether the means used to achieve it are reasonable, albeit not necessarily the best, most effective, or wisest [narrower version of the rationality test, mutatis mutandis the finding of 29.5.2013 sp. zn.
50. The Constitutional Court considers it appropriate to put the issue in an international context first. Noise emissions are a global problem and are given great attention by the international organisation of bees with the WHO (cf. an overview of the activities available at http: / / www.eu.int / en / health-topics / environment-and-health / noise / noise), the topic is also in the EU's interest (cf. Action and documents available at http: / / ec.europa.eu / environment / noise / index _ en.htm). Although the noise-related threats are similar in all developed countries, the two appointed bodies accept that each state has other cultural, historical and economic conditions that determine its ability and ability to reduce noise. Thus, the role of inter-state actors in noise policy lies primarily in the collection of various indicators and data, possibly providing various examples of good practice and recommendations. Thus, neither the SSO nor the EU set any (e.g. minimum) mandatory noise limits and left them within the competence of the States.
51. States have the discretion not only to set noise limits, but also their structure. The vast majority of noise protection regulations take into account the differences between noise sources, the different harmful effects of noise on health and the variability of the situations in which noise acts. Therefore, for example, Article 3 (s) of the Noise Directive explicitly admits that "limits' may vary for different types of noise (noise from road, rail, air, industrial activities, etc.), different environments and different sensitivities of the population; may also be different for existing and new situations (if the situation is changed in terms of source of noise or use of the environment) '. This often gives rise to a very complex solution involving a number of binding and non-binding rules.
52. Although Articles 31 and 35 (1) of the Charter are the basis of the Czech legislation on noise protection, they can only be invoked within the limits of implementing laws (Article 41 (1) of the Charter). In the case of noise, this is a frequently cited act on the protection of public health. As has been said above, it defines in detail both positive and negative noise (Paragraph 30 (2)) and further introduces and defines basic concepts in the noise protection structure. First, it distinguishes between the daily (6.00 - 22.00 hours) and the night (22.00 - 6.00 hours) by the time (Paragraph 34 (2)), since noise has different health effects in each part of the day. Secondly, it distinguishes from the area where the sound is operating, between the 1st protected outdoor space (unbuilt land used for recreation, spa rehabilitation and teaching, except for forest and agricultural land and outdoor workplaces), the 2nd protected outdoor space of buildings (space within 2 metres of the perimeter, significant from the point of view of the intrusion of noise from the outside into the interior of buildings) and the 3rd protected internal space of buildings (accommodation rooms in buildings for education, health and social purposes and living rooms in all buildings) (Paragraph 30 (3)). In addition, the Public Health Protection Act lays down the obligations of different persons to ensure that the limits for individual premises are not exceeded (Section 30 (1)), and provides for the possibility of temporary exemptions from non-compliance with noise limits (Section 31). Finally, it is appropriate to reiterate that the specific determination of the limits for the different situations and the way in which they are measured is laid down in the implementing regulation (Section 34 (1) of Act No. 258 / 2000 Coll.), which is the contested regulation.
53. The Czech noise protection system is based on the establishment of binding national fixed noise limits. The limits for the design of the noise in question from transport are considered to be long-term and their excess is derived from diameters over daily or night hours. An alternative approach that would result in the measurement being exceeded only in the most noisy stages of the day / week (e.g. traffic peaks) would be unparalleled and not very justified, since only for long-term continuous (contrary to impact) exposure to extensive noise is scientifically proven to have a potential negative impact on human health (Environmental Noise Guidelines for the European Region). Copenhagen: World Health Organisation Regional Office for Europe, 2018, p. 10). The default limit is applied to the interior residential space of the buildings and is 40 dB for living rooms at the time of the day, 30 dB at the time of the night. In addition to the more stringent corrections to both values affecting specific types of internal spaces (e.g. hospital rooms, cf. Annex 2 to the Regulation) and the average values currently discussed when assessing the overrun of the limits do not derive from the Regulation on the internal spaces of buildings any exceptions challenged by the appellant. As far as the internal residential areas of the buildings are concerned, the Constitutional Court could not overlook that in the interior of the dwellings, where people legitimately expect the highest level of protection from external noise and where they are most often present, the Czech legislation guarantees them a very high standard of protection from noise and hence quoted fundamental rights.
54. The system of fixed limits is also applied in the Czech Republic to other premises, i.e. protected outdoor areas of buildings (due to the specific nature and purpose of the category already explained in the Government's statement, be left to the side) and, in particular, to protected external areas. This solution is unusual compared to other EU countries and there are even countries that do not know the noise limits from outdoor transport (e.g. the United Kingdom or Belgium). In others, there are limits for external areas as recommended guide values, which become binding only in the case of e.g. the implementation of new transport projects. The Czech situation, allowing noise limits to be exceeded in the outdoor area, is quite unique from a comparative point of view in Europe (cf. National Reference Laboratory for Municipal Noise. Noise legislation - an overview of the EU's decision-making approaches. Available at http: / / www.nrl.cz / Content / files / news / Nohlukova _ legislation _ country _ EU-zavery.pdf). The uniqueness at first sight may look like progressive protection for the population, but the latter does not allow specific circumstances and situations to be taken into account and thus make it impossible to apply proportional solutions. In the end, this may result in partially inescapable disputes in which, despite the conclusion on the unlawful infringement of noise limits, the courts also find that there is no possibility of (immediate) correction [cf. By the way, in 2012, a substantive draft of the new Noise Act (never approved) criticised and planned to bring legislation closer to other EU countries (cf. Final report on the impact assessment of RIA regulation, available at http: / / www.mstcr.cz / Quality ABezpeci / documents / vecny- zamer- o-protected-public-health- pre-noise-and-noise-in-commun _ 6160 _ 1092 _ 29.html).
55. It is precisely with regard to the existing unique Czech solution that it is necessary to consider also the contested exceptions and corrections for the external premises contained in the regulation. The Constitutional Court does not agree with the appellant that their application would result in the resignation of the State to protect the population from noise. On the contrary, legislative "block relief" is a legitimate response by the legislator to a unique system of legally enforceable fixed noise limits in the outdoor area. In practical terms, even the appellant's reasoning that compliance with the proposal (removal of exceptions and corrections) would ultimately automatically ensure a real reduction in noise imitations. It can be reasonably assumed that this step would, in the light of objective facts, lead to rather a mass increase in the number of noise-related infringements, typically in the need either to fine the road owners (and thus to drain them from the means for possible noise-related measures), or to close them directly (and thus restrict the beneficiaries). However, as pointed out above, it is the task of the executive and legislative powers, in particular, to strike a balance between those public interests and fundamental rights on the basis of a transparent and rational assessment of the various factors (generally, Müller, Hana, too. Right to Environment, Balancing of Competiting Interests and Proportionality. The Lawyer Quarterly, 2018, No 2, p. 129 - 137).
56. For the reasons set out above, the Constitutional Court considers that the contested provisions of the Regulation pursue a legitimate objective and the means chosen to achieve it can be considered reasonable within the meaning of the framework defined in point 49 of this finding. At the same time, it reiterates that the limits are set in accordance with Article 108 (4) of Law No 258 / 2000 Coll. with regard to the assessment of health risks arising from living conditions and lifestyle, current scientific knowledge or recommendations of the WHO. Compliance with these standards is evidenced by a reasoned report on the regulation and the Government's observations.
57. Last but not least, the Constitutional Court recalls that the Czech legal order contains several means of legal protection which allow noise to be defended beyond noise limits. In public law it is mainly the Institute of the so-called well-being of housing (alternatively also the quality of the environment, cf. Decree No. 501 / 2006 Coll., general requirements for the use of the territory, as amended). The Supreme Administrative Court defines this concept as follows:... "a summary of factors and influences which contribute to making housing healthy and suitable for all categories of users, or to creating an appropriate atmosphere of quiet housing; The comfort of housing is mainly due to the quality of individual environmental components, e.g. low noise levels (from transport, production, entertainment, construction works etc.)" (see judgment of 2.2.2006 sp. zn. 2 As 44 / 2005, all decisions of the Supreme Administrative Court are available at http: / / www.nsjus.cz /). The housing comfort is then assessed by the competent building office for specific construction projects, taking into account the local specificities of the site and the individual can claim it in this respect. The case law shows that there is a degree of autonomy in the concept of well-being on hygiene limits. The authorities concerned may take into account from the point of view of the assessment of housing well-being that the limit values are respected, but the measured noise values are at the upper limits of the permissible range (sp. zn. 2 As 44 / 2005). Failure to exceed the health limit limits does not imply automatic compliance with the housing welfare requirement in general (judgment of the Supreme Administrative Court of 4.3.2009 sp. zn. 6 As 38 / 2008). The housing well-being institute is in practice dynamically developed and widely used (Vojtěch, Vojtěch). NSS case-law: Comfortable living and environmental quality. The Court's views, 2015, No 11-12, pp. 386-391).
58. In private law, a certain level of protection can be ensured through the ownership restrictions of the ban on imis (§ 1013 (1) of Act No. 89 / 2012 Coll., Civil Code). The provision requires the owner to refrain, inter alia, from any noise on his property from interfering with the property of another owner to the extent "disproportionate to local circumstances." The settled case-law also applies to noise from transport, taking into account whether the imis (here noise and dust) of the harassing claimant exceed the limits laid down in sanitary or other public legislation (but these limits are only an ancillary, albeit significant indicator - cf. § 1 o., in relation to the relationship between public and private law) '(cf. Judgment of the Supreme Court of 3 June 2015 sp. zn. 22 Cdo 3277 / 2014, all decisions of the Supreme Court are available at http: / / www.njus.cz). The professional literature also analyses the applicability of Paragraph 1013 (2) of the Civil Code, which allows the owners of neighbouring land to obtain at least a monetary compensation for damage caused by imism (including noise) from the operation of an officially approved plant or similar facility (cf. Voluntary, Eva, Spážil, Jiří. Immunity caused by the officially approved operation of a plant or similar facility in the new Civil Code. The Commission therefore concludes that the measures in question constitute State aid within the meaning of Article 107 (1) TFEU.
59. Thus, the means in question provide protection both in terms of reducing the future noise burden (housing welfare institute) and in the form of intervention against the existing noise burden (neighbourhood imisation institute). From the point of view of the findings of the subject under review, some "independence" of noise limits is crucial. State authorities or courts may assess specific situations and conclude that even if the noise limits are not exceeded, the local noise conditions are excessive and, where appropriate, invite the owner to rectify. This concept, in essence, makes it more appropriate than the area limits to apply the proportionality mentioned and take account of specific situations and circumstances. Although the Constitutional Court has not, for the reasons previously mentioned, agreed to analyse the content of the right to a favourable environment as enshrined in Article 35 (1) of the Charter, the institutions discussed and the practice of public authorities in their enforcement can be considered as one of the manifestations of the fundamental law cited.
Requirement not to reduce the substantive level of protection of fundamental rights
60. Furthermore, the appellant considers that the regulation and its amendment have reduced the level of noise protection for the population compared to the original situation. It refers to the so-called standstill doctrine and states that (in the proposal for an unspecified) international treaty, the objective of the permanent increase (i.e. the ban on reduction) of the level of protected rights is enshrined. According to the appellant, the approach is to be applied particularly in the field of the environment. To substantiate its claim, it refers to the popularisation article of Michel Prieur (Non-Regression in Environmental Law. Sapiens, 2012, No 2), which seeks to support the idea of analysing selected international declarations, the constitutional law of different countries and the case law of national and national courts. The appellant concludes that only if there is a change in circumstances such as species is no longer threatened can environmental protection be reduced.
61. According to the Constitutional Court, however, it is not possible to deduce from the Czech constitutional order the absolute general application of the standstill doctrine in the substantive legal protection of fundamental rights. Although the Constitutional Court did so with reference to the essential elements of the democratic rule of law (Article 9 (2) of the Constitution) for the procedural level of protection of fundamental rights and freedoms [Obiter dieto of 25.6.2002 sp. zn. Pl. ÚS 36 / 01 (N 80 / 26 SbNU 317; 403 / 2002 Sb.)], its case law does not give rise to the analogous application of the thesis for the substantive scope of fundamental rights. On the contrary, the decision-making practice of the Constitutional Court can be implicitly inferred from the contrary, i.e. the level of protection of fundamental rights already achieved can be reduced under certain conditions, in particular when it concerns rights subject to Article 41 (1) of the Charter.
62. The distinction between the procedural and substantive levels of protection is also justified from a practical point of view. The first group of rights is a "non-zero game," and the reduction in the level of protection here leads in principle only to the limitation of the rights of individuals to public power, not among individuals. However, in the case of the second group, decision-making is much more complex and often has the character of a "zero game." Typically, the social rights associated with the role of the State in securing them create a dilemma in terms of allocating public budgets. If, for example, a flat-rate allowance for children is abolished, with the aim of raising the funds for the poorest children, the result of the assessment of the "reduction 'level of protection is far from clear. Last but not least, if (in the abstract) it is constitutionally permissible to reduce the framework for the protection of fundamental rights (e.g. to abolish a given dose), the more so can be adapted to the different parameters constituting the individual" building blocks' of this protection (e.g. reduce the amount of the dose or the circle of people to whom it belongs). To insist otherwise would ultimately block the creation of any state policy.
63. The outcome of the assessment will not be different even in the case of the right to a favourable environment. For example, Article 37 While the Charter of Fundamental Rights of the European Union contains an obligation to improve the quality of the environment, but explicitly only to take into account this requirement when creating EU policies, the commitment is not addressed directly to the Member States. The interpretation of Article 35 of the Charter of the existence of a standstill doctrine cannot be relied upon, nor does it make a doctrine (e.g. Kokeš, Marian. Article 35. In: Wagner, Elishka et al. Charter of Fundamental Rights and Freedoms: Comment. Praha: Wolters Kluwer, 2012, p. 712 - 715). Thus, while it is a normative basis that compliance with the principles of sustainable development and the ambition to increase the level of environmental protection should be among the main objectives of the modern state, the general framework presented at the previous point of the finding is constitutionally applicable and the conclusion that there is no and priori unconstitutional reduction in the level of protection of the right to a favourable environment.
64. However, the outlines outlined are only limited in the current procedure. It cannot be excluded that, in certain respects, some of the changes contained in the regulation or its amendment may have reduced the level of protection of citizens from noise. However, as above, the Constitutional Court does not feel called upon to examine in which specific parameters and with what precise consequences this is (was). It is up to the legislator (executive) to evaluate, justify and decide on a qualified basis how the various technical variables of the noise protection system should be changed in relation to various legitimate interests, including, where appropriate, the weakening of environmental protection. The Constitutional Court is merely reviewing arbitrary and irrational excesses, which it did not find in the present case.
Assessment of the proposal in the light of the case law of the European Court of Human Rights
65. The applicant submits that the anti-noise policy of the Czech Republic infringes the right to respect for private and family life, housing and correspondence (Article 8 of the Convention). It is not apparent from the proposal whether the objection is complementary to the previous argument based on infringement of Articles 31 and 35 (1). The Charter or a stand-alone claim based on a different degree of protection of the right in question in the Convention. The justification suggests the first option, as the emphasis is on the alleged lack of activity of the Czech Republic in the application of noise prevention measures.
66. The caselaw of the European Court of Human Rights ("ECHR") indeed interprets Article 8 of the Convention and the right to respect for dwellings in such a way that its content is also the right to the peaceful use of dwellings, including the protection against excessive noise (e.g. Hatton v United Kingdom, 8.7.2003, complaint No 36022 / 97, paragraph 96, all ESLP decisions are available on https: / / hudoc.echr.coe.int). However, like this finding, the ESLP states that it is necessary to seek to balance the individual's interest in protecting against noise and conflicting interests of society, while the States have a wide margin of discretion in relation to the form and outcome of such balancing (cf. Giacomelli v Italy, paragraph 80). In other words, the State is entitled to apply a number of reasons why the noise protection is limited, thus explaining how it tried to improve noise protection. Only if these measures are manifestly insufficient in the present case can the infringement of Article 8 of the Convention be found (cf. Case No 2345 / 06, paragraph 23). However, the approach to assess the degree of fulfilment of the State's positive commitments is usually conditional on so-called internal irregularities, which most often means that the local noise limits have been exceeded (Moreno Gómez v Spain, 16.11.2004, complaint 4143 / 02, paragraph 60; by analogy Cuenca Zarzoso v Spain, 16.1.2018, complaint 23383 / 12).
67. The infringement of Article 8 of the Convention in relation to noise protection shall always be assessed individually by the ESLP according to the circumstances of the case. In view of this, the appellant's allegation of a flat infringement of the right to peaceful use of dwellings under the contested provisions of the Regulation is difficult to defend. In addition, it can be concluded from the short analysis made by the ECHR case-law that one of the important indicators of infringement of Article 8 of the Convention may be exceeding the local noise limits. At the same time, the ESLP does not use its own (autonomous) noise limits, but is based on those which were in force at the time and place of the case under review (in more detail Fernández, Telmo Esteban. Environmental cases in the ECHR. A focus in noise pollution. Anuario de Acción Humanitaria y Derechos Humanos, 2009, No 6, p. 142 - 145). The ESLP has not yet questioned the values or structure of noise limits in individual countries, although they differ considerably (cf. points 50 to 51 of this finding). It should also be recalled that the above mentioned housing welfare institute (point 57 of this finding) implicitly contains elements of peaceful use of housing. There is therefore no reason to believe that the Czech legislation on noise protection infringes Article 8 of the Convention.
Jurisdiction of the Constitutional Court pursuant to Article 87 (1) (b) of the Constitution and the application for revocation of the methodology 2017
68. According to the appellant of methodology 2001 and 2010, the details relating to the individual proposals contested by the provisions of the Regulation are laid down. In particular, it is an adjustment to the ways in which and how noise is to be measured and how the evaluation is carried out, whether the limits have been exceeded. It therefore requires the removal of both methodologies. As explained above, the arguments originally used against the 2001 and 2010 methodologies are applied in the appellant's reply to the 2017 methodology following a change of petite.
69. Before the Constitutional Court could proceed to a substantive examination of the appellant's claim, it had to assess primarily its competence to the constitutional review of methodology 2017. The question is whether it can be assigned to the category of "other legislation 'referred to in Article 87 (1) (b) of the Constitution.
70. Science defines legislation as a "binding written document expressing the content of legal standards as rules of human behaviour" and defines it by formal features, namely the powers of the body which issued it, by the legal procedure of creation and by the legally established form of publication (Knapp, Viktor. Law theory. Praha: C. H. Beck, 1995, p. 131). The case law of the Constitutional Court relating to the concept of "other legislation 'recognises the importance of formal characteristics, but considers the material dimension of the law to be decisive [the finding of 23.5.2000 sp. zn. ÚS 24 / 99 (N 73 / 18 SbNU 135; 167 / 2000 Coll.)]. When assessing the material dimension of the legislation, its content characteristics, such as durability or universality, and functional features, are assessed, that is, if the regulation regulates the behaviour of legal entities (details including examples of Philip, Jan. Article 87. In: Bahlužová, Lenka a kol. Constitution of the Czech Republic: Comment. Praha: Linde, 2010, p. 1096 - 1101). However, neither the doctrine nor the Constitutional Court has, at a specific level, addressed the subsumption of the Ministry's methodological instructions under the term" other legislation. "
71. In the decision of 20.11.2002 sp. zn. However, the situation is substantially different in the present case. Although the methodology 2017 was issued by a state body with legislative powers, i.e. the Ministry of Health, the main hygienist of the Czech Republic, in the Official Journal, it does not make it a legal act subject to review under Article 87 (1) (b) of the Constitution. The 2017 methodology is not issued on the basis of legal authorisation but is based on the authority of its author, i.e. the Ministry of Health, of the addressees of the order resulting from Section 80 (1) (a) of the Public Health Protection Act. It is addressed only as a methodological tool to public health authorities, health institutes and the State Health Institute, unifying their noise load measurement procedure, thus identifying for them (and anyone outside the Ministry of Subordinate Administrative Offices) how to measure, how to evaluate measurement results, how to conduct a protocol and evaluate results in order to maintain the same conditions for further control measurements (otherwise there would be danger of lean intervention). The Methodology is therefore not addressed to drivers, musical bands, shooters, etc., but does not specify their obligations, but only determines the methodology of procedure for finding out that non-compliant law enforcement bodies violate noise standards, but which are provided for in the legislation. Only such authoritarian findings associated with sanctions can constitute an intervention in the fundamental rights and freedoms of legal entities, whereas a breach of the 2017 methodology will be addressed within the system of public health authorities. On the other hand, the purpose of issuing the 2017 methodology is to "unify the method of measuring and evaluating sound pressure levels determining the noise indicators measured in the protected outdoor space, the protected exterior space of buildings and the protected internal space of buildings." Its content is detailed, especially from the CSN standards based on how to proceed and how to process and evaluate measured values. In other words, the 2017 methodology intends not to normalise human behavior rules, but is primarily a methodological tool. The guidelines are addressed exclusively to public health authorities, health institutes and the State Health Institute, thus limiting the scope of the 2017 methodology to designated addressees, and in this respect, the internal normative instructions designed to unify the procedures of the authorities concerned and not to lay down rights and obligations for other bodies (natural and legal persons) outside that public health protection system.
72. On the basis of the arguments set out above, the Constitutional Court considers that the methodology 2017 cannot be regarded as another law under Article 87 (1) (b) of the Constitution and therefore rejected the application for its annulment because of its lack of competence [Paragraph 43 (1) (d) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 77 / 1998 Coll.].
Conclusion
73. For all the above reasons, the Constitutional Court partially rejected the application pursuant to § 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, and partly rejected pursuant to § 43 (1) (d) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 77 / 1998 Coll.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Louis David took a different position to justify the decision.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No 30 / 2019 Coll., on the application for annulment of certain provisions of Government Decree No. 272 / 2011 Coll., on the protection of health against adverse effects of noise and vibration, as amended by Government Decree No. 217 / 2016 Coll. |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 07.02.2019 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0