Found at the Constitutional Court of the Czech Republic No. 35 / 1994 Coll.
Findings of the Constitutional Court of the Czech Republic of 19 January 1994 concerning the application for annulment of the Decree of the City of Zdár nad Sázavou on the principles of sales time on the territory of Zdár nad Sázavou
Valid
35
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided in plenary on 19 January 1994 on a proposal by the Regional Office in Ždár nad Sázavou to repeal the Decree of the City of Ždár nad Sázavou on the principles of sales time in the town of Ždár nad Sázavou as follows:
The Decree of the City of Ždár nad Sázavou on the principles of sales time on the territory of the city of Ždár nad Sázavou, adopted by the City Council in Ždár nad Sázavou with effect from 6 April 1992, is hereby repealed with effect from the date of the declaration of findings in the Collection of Laws.
Reasons (substantial part)
On 16 July 1993, the Constitutional Court of the Czech Republic received a proposal from the Regional Office in Ždár nad Sázavou to repeal the Decree of the City of Ždár nad Sázavou on the principles of sales time on the territory of Ždár nad Sázavou, adopted by the City Council in Ždár nad Sázavou with effect from 6 April 1992. The purpose of that decree is to determine the minimum minimum selling time of all operating units on the territory of the city by determining opening and closing times.
On 1 April 1992, the District Office in Žďar nad Sazavou initiated the District Prosecutor's Office in Žďar nad Sazavou to examine the legality of the decree cited. On 8 June 1992, the district attorney in Ždár nad Sázavou lodged a protest against the Decree of the City of Ždár nad Sázavou on the principles of sales time on the territory of the town of Ždár nad Sázavou on the basis of Article 15 (1) of Act No. 60 / 1965 Coll., on the Prosecutor's Office, as amended.
On 14 May 1992 the District Office suspended the execution of the Order because of its contravention with the quoted Act pursuant to Article 62 (1) of the Czech National Council Act No. 367 / 1990 Coll., on the municipalities, as amended.
At its meeting on 22 June 1992, the City Council in Žďar nad Sázavou discussed the suspension of the execution of the said Decree by the District Office in Žďar nad Sázavou, refusing to cancel it.
Following the rejection of the Regional Office in Ždár nad Sázavou on 2 July 1992 pursuant to § 62 paragraph 1 of the Act of the Czech National Council No. 367 / 1990 Coll., on municipalities, as amended, submitted the case to the Czech National Council. On 22 April 1993, the Chamber of Deputies of the Parliament of the Czech Republic announced to the President of the Regional Office in Ždár nad Sázavou that, pursuant to Article 87 (1) (b) of the Constitution of the Czech Republic, the Constitutional Court of the Czech Republic is competent to decide on the subject. It recommended the District Office in Žďar nad Sázavou to contact the Constitutional Court of the Czech Republic in the present case after the appointment of its judges by the President of the Republic.
At the request of the Constitutional Court of the Czech Republic pursuant to § 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, the Mayor of the City of Ždár nad Sázavou, in his observations of 20 October 1993 on the application for annulment of the Decree in question, justifies its adoption by the municipality's authority to issue generally binding regulations for the performance of its tasks (§ 16 of the Act of the Czech National Council No. 367 / 1990 Coll., on municipalities, as amended), and according to Article 14 of the Act cited, the municipality is obliged to provide economic, social and cultural development in its territory. As a reason for the adoption of the decree on the principle of sales time, the mayor of the city considers that it is necessary to allow the citizens of the city to procure purchases, particularly in the absence of working hours.
Pursuant to Article 87 (1) (b) of the Constitution of the Czech Republic, the Constitutional Court of the Czech Republic decides to repeal other legislation or its individual provisions if they are contrary to a constitutional law, law or international treaty pursuant to Article 10 of the Constitution of the Czech Republic. The Constitutional Court of the Czech Republic, in proceedings concerning the annulment of laws and other laws (i.e. also in proceedings concerning the annulment of the law of the municipality), assesses the content of the law or other legislation according to the aspects contained in the provisions of Section 68 (2) of Act No. 182 / 1993 Coll., which in the general binding decree of the municipality include competence (legal authorisation), compliance with the laws of the higher degree of legal force and compliance with the legislation of the normative process.
On the issue of the validity of the contested Order, the Constitutional Court of the Czech Republic made a finding at the oral hearing on 19 January 1994. On the question of the Constitutional Court of the Czech Republic, the representative of the Public Prosecutor's Office in Ždár nad Sázavou stated that, in the context of the review of the Decree on the principles of sales time in Ždár nad Sázavou, the question of its proper declaration and effectiveness was also examined and no defects were found in this respect.
Article 79 (3) The constitutions of the Czech Republic may legislate on the basis and within the limits of the law if they are empowered by the law. Under Article 104 (3) of the Constitution of the Czech Republic, councils may, within the limits of their competence, issue generally binding regulations. The definition of these empowerment provisions needs to be interpreted by the systematic classification of sensitive standards in the Constitution of the Czech Republic. If Article 79 (3) The Constitution of the Czech Republic is classified in Title Three: Power Executive, then Article 104 (3) of the Constitution of the Czech Republic in Title Seven: Territorial Authority. It can therefore be concluded that the empowering provision contained in Article 79 (3) The Constitution of the Czech Republic shall apply to the power to issue generally binding Regulations in the delegated jurisdiction (i.e. where the municipality exercises state administration to the extent provided for by specific laws) and empowering the provisions contained in Article 104 (3) of the Constitution of the Czech Republic to the power to issue generally binding Regulations in the separate jurisdiction of the municipality.
In the first place, therefore, it must be clarified which jurisdiction the contested municipal decree was issued and whether there is legal authority to issue it.
According to the provisions of § 21 of the Czech National Council Act No. 367 / 1990 Coll., on municipalities, as amended, the municipality exercises state administration (delegated scope) to the extent provided for by the special laws, and according to § 24 (1) of the Act, the municipality may issue generally binding regulations in matters falling within the delegation of powers in the law and within its limits.
In the legal order of the Czech Republic the issue of "time-regulated sale of products" is addressed only by Act No. 634 / 1992 Coll., on Consumer Protection, as amended by Act No. 217 / 1993 Coll. According to Article 22 (4) of the Act, "the time-regulated sales of products are declared by the authorities competent under the law '. However, that law, authorising the authorities to declare a time-regulated sale of products, has not yet been published. Therefore, there is no legal authorisation for the issue of a generally binding decree on the regulation of sales time in the field of the delegation of the municipalities.
The development of the concept of self-government has come from its understanding of the law. According to him, "the legal concept of self-government means that it manages someone other than the State '(J. Hoetzel, Czechoslovak Administrative Law. Part general. Prague 1937, p. 161), i.e. it manages public corporations. At present, however, the purely formal way of understanding" legal self-government "is already overcome. Self-government must be seen as a democratic organisational form of self-care for the citizens' groups concerned, independent and under state supervision. For self-government, the concept of independence and state supervision means that it is established and implemented under the law (s) and under the state control of the lawfulness of its decisions (by the courts). However, it is not subordinate to public authorities (in particular public authorities), i.e. by law (or by general law) defined by the framework.
Article 8, 99 and 100 (1) The Constitution of the Czech Republic is a community of citizens with a right to self-administration. The municipality is therefore a self-governing general public authority.
Where the application of the public authority of municipalities also involves unilateral establishment of the rights and obligations of natural and legal persons, the jurisdiction of municipalities shall be limited to Article 2 (4) of the Constitution of the Czech Republic, Article 2 (3) and Article 4 (1) of the Charter of Fundamental Rights and Freedoms.
Pursuant to Article 4 (1) of the Charter of Fundamental Rights and Freedoms, obligations may be imposed only under the law and within its limits; also pursuant to Article 2 (4) of the Constitution of the Czech Republic and Article 2 (3) of the Charter of Fundamental Rights and Freedoms, no one may be forced to do what the law does not impose. It is necessary to conclude from these provisions that, in cases where the municipality acts as a body determining the obligations of a citizen by unilateral orders and prohibitions, Article 2 (4) of the Constitution of the Czech Republic and Article 2 (3) of the Charter of Fundamental Rights and Freedoms apply.
The municipality can therefore issue generally binding decrees containing legal obligations only on the basis and within the limits of the law. The municipality is therefore only entitled to issue a general binding decree containing legal obligations in the event of express legal authorisation.
It follows from the above that the list contained in the provision of § 14 paragraph 1 of the Act of the Czech National Council No. 367 / 1990 Coll., on municipalities, as amended, must be regarded as exhaustive in terms of its interpretation in the sense of the legal authorisation to issue generally binding municipal decrees. Its demonstrative dictation, as well as the universality of the definition of the municipality's self-governing competence contained in § 14 (2) of the Act of the Czech National Council No. 367 / 1990 Coll., on municipalities, as amended, must be applied only to the municipality's self-governing competence in which the municipality does not act as a body for the citizen to determine obligations by unilateral orders and prohibitions.
According to § 14 (1) (i), (p) of the Act of the Czech National Council No. 367 / 1990 Coll., on municipalities, as amended, the municipality may issue a general binding decree on the operation of equipment to meet the needs of citizens, if they are owned by the municipality. However, the Decree of the City of Ždár nad Sázavou on the principles of sales time on the territory of the city of Ždár nad Sázavou concerns all "operating units on the territory of the city of Ždár nad Sázavou," as a result of which it is contrary to the sensitivity. empowering the provisions of the Act of the Czech National Council No. 367 / 1990 Coll., on municipalities, as amended, and thus also with the provision of Article 104 (3) of the Constitution of the Czech Republic.
Under the provisions of Section 64 (3) of Act No 182 / 1993 Coll., the head of the District Office is actively legitimised to propose the repeal of the legislation issued by the municipality in its own jurisdiction. The contested generally binding decree was accepted from the municipality's position as a separate body, as is also evidenced by the opinion of the Mayor of Ždár nad Sázavou of 20 October 1993. By its content it infringed the relevant authorisation provisions of the Constitution of the Czech Republic and the Act of the Czech National Council No. 367 / 1990 Coll., on municipalities, as amended, and therefore cannot be regarded as a law issued by the municipality under its separate jurisdiction. The question arises from the question whether in the present case the municipality's representative fulfils the conditions of active legitimacy under § 64 (3) of Act No. 182 / 1993 Coll.
According to the provisions of Paragraph 43 (1) (d) of Act No 182 / 1993 Coll. the submission of a proposal "manifestly unjustified person" is the reason for its rejection. The appellant must only be regarded as a manifestly unauthorized person to submit a proposal in those cases where there is no doubt in the assessment of the active legitimacy. The assessment of the municipality's separate competence under a group of such cases cannot be underestimated. In the present case, therefore, the appellant is not a "person manifestly unjustified 'and therefore the condition of refusal of the application under Paragraph 43 (1) (d) of Act No 182 / 1993 Coll.
If the proposal was not rejected and there were no grounds for the termination of proceedings in the course of proceedings, the Constitutional Court of the Czech Republic is required, pursuant to Article 68 (1) of Act No. 182 / 1993 Coll. to discuss and decide the matter meritantly. As already stated, the assessment of non-statutory legislation, "if contrary to a constitutional law, law or international treaty pursuant to Article 10 of the Constitution of the Czech Republic" [Article 87 (1) (b) of the Constitution of the Czech Republic], is first based on a review of Article 68 (2) of Law No 182 / 1993 Coll. whether they were adopted and issued within the limits of the Constitution of the established competence. "Therefore, the breach of constitutional competence in the issue of the substatutory law is the reason for the annulment of the Decree of the City of Ždár nad Sázavou pursuant to Article 87 (1) (b) of the Constitution of the Czech Republic and Article 70 (1) of Act No. 182 / 1993 Coll. of the Decree of the City of Ždár nad Sázavou: Principles of Sales Time in the City of Ždár nad Sázavou.
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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Regulation Information
| Citation | Found by the Constitutional Court of the Czech Republic No. 35 / 1994 Coll., on the application for annulment of the Decree of the City of Ždár nad Sázavou on the principles of the sales time in the town of Ždár nad Sázavou |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 01.03.1994 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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