The Constitutional Court found no 404 / 2002 Coll.

On 2 January 2002, the Constitutional Court received notification of the motion of the Senate 5 A of the Supreme Court in Prague, by which the appellant, referring to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), seeks the annulment of the provisions of § 19 (1) of Act No. 129 / 2000 Coll., on the regions (regional establishment), expressed in the words "The State has the right to make free transfer or transfer of movable property, rights and immovable property to the county, and to reserve, in financial participation in the acquisition of such property, the provision of conditions for further management and handling of such property."

The appellant stated that, under sp. zn. 5 A 73 / 01, he is conducting an administrative action against the defendant Ministry of Education, Youth and Sports (hereinafter referred to as "the Ministry '). By that action, the Pilsen Region seeks the annulment of an administrative act issued pursuant to the provisions of § 1 (1) and (2) of Act No. 157 / 2000 Coll., on the transition of certain items, rights and obligations from the property of the Czech Republic to the property of the regions by which the Ministry transferred the Pilsen Region to the jurisdiction of the cases, rights and obligations with which the pre-school establishments, schools and educational establishments specified in Annex A1 to that Decision, including those pre-school establishments, schools and educational establishments, have been managed by the Ministry with effect from 1 April 2001. This Decision also transferred to the property of the Pilsen Region of immovable property listed in Annex B, Part I.A, Part B / 1 and Part B / 1b to that Decision and movable property listed in Annex B, Part I.B to that Decision. In particular, the Plzeň Region argued in the application that the Ministry, referring to Article 19 of the Regional Law in that Decision, laid down four conditions for the further management and handling of transferred immovable property which restrict it as owner and which it considers illegal. The conditions laid down by the Ministry are so broad and restrictive that they exceed the possibilities given by the Ministry by law, as they interfere with the rights of the county as owner by paralyzing the full exercise of ownership rights. At the same time, it is also called into question by the Constitution the guaranteed right to self-administration of the region as a higher local authority. In its observations on the application, the Ministry stated that the conditions laid down were based on the provisions of Section 19 of the Regional Act and that the Ministry had not infringed or exceeded the law. It recognises that the conditions are restrictive, but the State has a responsibility to create adequate conditions for the fulfilment of the constitutional right to education, and a change in the use of educational property could cause serious problems.

The Supreme Court in Prague took note of the order of the Constitutional Court of 21 August 2001 sp. zn. II. ÚS 326 / 01, which rejected the Complaints of the Pilsen Region for inadmissibility, since he, as a complainant, did not use up all the remedies provided by the Law on the Protection of the Law or lodged a constitutional complaint in a situation where the review of the decision of the Ministry is simultaneously sought in accordance with the procedure laid down in § 244 et seq., Act No. 99 / 1963 Coll., Civil Code, as amended, (hereinafter referred to as amended). When considering an administrative action in the case at hand, the Supreme Court considered that the provisions of Paragraph 19 (1) of the Regional Law are contrary to the constitutional order of the Czech Republic, provided that "the State has the right to transfer or transfer movable property, rights and immovable property free of charge to the county and to make a financial contribution to the acquisition of such property subject to the reservation of the conditions for the further management and handling of such property ', without the law at the same time determining the substance of the State's authorisation, i.e. the extent and manner in which the State will be bound. Therefore, the Court of First Instance annulled the case under § 109 (1) (c) o. s.

The appellant, referring to Articles 2 (3), 8, 99, 101 (3) and (4) of the Constitution and Article 2 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), argues that the region manages its property independently and is running on its own account and is an attribute of self-government. The State can therefore intervene in the right to self-government only if the protection of the law so requires and only in the manner laid down by the law. The Regional Act lays down the obligations of the Region in the management of the Region and provides for a method of monitoring the management of the Region in the provisions of § 17 et seq. Moreover, contrary to the provisions on the control of the economy, the Act establishes the right of the State to reserve, in the event of a free transfer or transfer of movable property, rights and immovable property to the region and of financial participation in the acquisition of such property, conditions for further management and management. The appellant admits the State's interest in providing education and the need for material and financial assurance of that interest, as well as the possibility for the State to intervene in the self-administration of municipalities and regions and to commit them to obligations aimed at ensuring the right to education. However, it must specify the cases, limits and methods of intervention. According to the appellant's view, Paragraph 19 of the Regional Law sets out only cases where the State can reserve the setting of conditions, but does not provide for limits or methods for such determination. The State can thus bind the region to any conditions and also penalise their failure to comply. The appellant considers this situation to be contradictory to the constitutional order, in particular with Article 2 (3) of the Constitution, according to which state authority serves all citizens and can be applied only in cases, limits and methods provided for by the law, and with Article 101 (4) of the Constitution, according to which the State may intervene in the activities of the local authorities only if the protection of the law so requires and in the manner laid down by the law.

The appellant further stated with reference to that decision of the Constitutional Court sp. zn. II. ÚS 326 / 01 that it was to examine in the present case the legality of the contested decision within the limits set by the action, i.e. whether conditions 2 - 4 [2] need the prior written consent of the Ministry to change the purpose of the use of real estate or parts thereof outside the scope of the first condition, to sell, exchange, donate, deposit into the property of another person or to borrow or rent real estate or parts thereof for a period of more than one year; 3. the obligation to give back the State, i.e., in the event of impossibility to use the property under condition 1 and the refusal of consent to change its use or to sell, exchange, donation or deposit into the property of another person, the obligation to submit to the Ministry within 90 days of the refusal to grant such property to the State; 4. in the absence of consent to the loan or lease provided for in condition 2, the obligation of the county to submit a draft contract confirmed by the county as the borrower for the loan of such real estate to the Ministry or other persons designated by it, within 90 days of the refusal of consent, shall be determined in accordance with the law. In view of the above wording of Section 19 (1) of the Regional Law, the appellant concludes that the legal provision under which the court could rule on the legality of the conditions specifically laid down is missing. In the present situation, the Administrative Office has no legal definition to determine the conditions and therefore does not logically infringe the law by laying down the conditions of any, except in the case of the absurd, erratic logic of the case, etc. In the appellant's view, the absolute freedom of the administration thus understood is contrary to the Constitution. However, if the appellant, as a judicial body, had accepted, in the absence of a legal regulation of the limits and the manner in which the conditions for the review of the legality of the decision were to be determined, it would have considered it only in relation to the general provisions of the law, the purpose and purpose of the establishment of the regions and the reasons for the transfer or transfer of the State's assets to those public corporations, and it would have attempted to replace what the legislator did not expressly impart with and by which it did not commit executive power, in the present case it would have assumed a role which it does not belong, namely the role of the legislator, and thus would have infringed the principle of division of power.

In conclusion, the appellant submits that the present arrangement, which allows for the arbitrary establishment of completely different conditions for the treatment of transferred property or in connection with the transfer of property or financial participation in the acquisition of such property, is not only contrary to the "predictability of the decision 'but primarily contrary to the principle of equality. Having regard to Articles 100 (1) and 101 (3) and (4), The legal arrangements may not create the possibility of inuniform, unrestricted State interference or leveraging in the setting of conditions, but a legal framework must be provided for the limits and manner of such intervention, which shall be valid for all cases of the same type, shall ensure the same conditions for the treatment of the property in question in all regions, and all counties shall be equal in terms of limiting their activities by the State.

According to Article 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court requested comments from the Chamber of Deputies and the Senate of the Parliament of the Czech Republic as participants on the proposal.

President of the Chamber of Deputies of the Parliament of the Czech Republic ("the Chamber of Deputies') Václav Klaus stated on the proposal that the legislature acted in the belief that the law adopted was in line with the Constitution, the constitutional order and the rule of law. It also referred to the explanatory memorandum to the Government's proposal for a Regional Law, according to which the Act also lays down the conditions under which the property acquired with the State's participation may be disposed of. The scope of the Ministry of Finance will also allow for the control of the treatment of State funds granted to the regions for the performance of state administration. It considers the appellant's interpretation to be expedient. The appellant does not take into account the tasks of the State in the field of education provision or that the State must also take care of the material and financial security of the right to education. He is therefore entitled by law to intervene in the area of decision-making of municipalities and regions. The State is also obliged to take into account the specific conditions and needs of each region. The original government proposal tied the acquisition of property to the county's prior approval. The version adopted by the Chamber of Deputies guarantees the regions that no further approval by the State for the management and management of the property will be necessary if the conditions laid down are fulfilled. It also points out that the proposal to abolish Article 19 (1) of the Regional Law should also be considered unfounded because the provisions of Article 19 (2) and (3) are expressly linked to it and would be ineffective in practice. It considers that the legal situation would not improve by abolishing that provision. Finally, it adds that the Regional Law has been approved, signed by the relevant constitutional authorities and duly declared.

President of the Senate of the Parliament of the Czech Republic (Senate) Petr Pithart, in his opinion, described the process of approving the county law in the Senate. On the content of the proposal, he then stated that Paragraph 19 (1) of the Regional Law was incorporated into the law in order to ensure the use of assets for "public-service 'purposes by the State in the event of a free transfer or transfer of assets, in particular where it imposes an obligation on the State to provide for one of its activities. However, when implementing those powers, the State should ensure that the restrictions applied are not contrary to Articles 1 and 4 of the Charter, i.e. that the substance and the meaning of ownership are investigated and that the restrictions are not misused for purposes other than those for which they were established. He recalled that it was a unilateral act against the acquirer that the acquirer could not influence by its will. Finally, the President of the Senate stated that the proposal submitted by the Supreme Court in Prague showed that the Pilsen Region had made a proposal for the annulment of the" whole "decision. In the event of its annulment, the State will regain ownership of the assets referred to in the Decision and it cannot be excluded that the Regional Contributory Organisations would become the result of § 2 (1) of Act No. 157 / 2000 Coll., as amended, of State Contributions Organisations with all the consequences associated with it.

The Constitutional Court first examined, in accordance with Article 68 (2) of Act No. 182 / 1993 Coll., as amended, whether the law in respect of which the appellant objects to the unconstitutionality of its provisions had been adopted and issued within the limits of the Constitution established competence and by the constitutional procedure. From the observations of the Chamber of Deputies and the Senate, as well as from the relevant parliamentary press and from the voting data of the Constitutional Court, the Chamber of Deputies found that the Chamber of Deputies had approved the bill on the regions at its 22nd meeting of 8 March 2000, when 118 of the 183 Members and Members present had spoken to it and opposed them. 59 The Senate approved the bill at its 18th meeting on 12 April 2000. Of the 73 senators and senators present, 45 voted against it and 22 opposed it. The Regional Act was signed by the President of the Czech Republic on 4 May 2000. The Act was published on 15 May 2000 in the Collection of Laws in the amount of 38 under No 129 / 2000 Coll. Thus, the Regional Law was adopted and issued in a constitutionally prescribed manner and within the limits of the Constitution, in compliance with the rules laid down in Article 39 (1) and (2) of the Constitution.

The appellant requests the annulment of the provisions of Paragraph 19 (1) of the Regional Law by the proposal. According to that provision, the State has the right to reserve, in the event of a free transfer or transfer of movable property, rights and immovable property to the region and in the event of a financial contribution to the acquisition of such property, the conditions for the further management and management of such property.

When deciding pursuant to Article 87 (1) (a) of the Constitution, the Constitutional Court finds, in substance, whether the contested provisions are in accordance with the constitutional order (so that their abolition is not necessary) or whether those provisions are not constitutional. However, the proposal for the repeal of a law, other legislation or individual provisions thereof is in substance dealt with only if the law, other legislation or individual provisions have not expired before the end of the proceedings before the Constitutional Court. If such a situation arises and the law, other legislation or their individual provisions cease to be in force, the Constitutional Court shall, in accordance with Article 67 (1) of the Law on the Constitutional Court, terminate the proceedings.

The Constitutional Court has verified that the County Act has been amended repeatedly. The amendment by Act No 231 / 2002 Coll. This amendment repealed, inter alia, Article 19 (30). Repeal of the first paragraph of Paragraph 19 is sought by the appellant. This law was duly passed by the Chamber of Deputies on 26 March 2002. The Senate has not discussed the bill. On 17 May 2002 the law was delivered to the President of the Czech Republic and signed it on 23 May 2002. It was published in the Collection of Laws of 87 sent out on 4 June 2002 with the provision that it took effect on 1 January 2003, with the exception of points 26 and 79, but which do not concern the contested provision.

In this context, the Constitutional Court was forced to ask whether it could decide on the case or whether the procedure laid down in Article 67 (1) of Act 182 / 1993 Coll., that is to say, the termination of the procedure, i.e. whether the provision of the law whose annulment is proposed expired before the end of the proceedings before the Constitutional Court.

The reason for the inadmissibility of the proposal in the standard control procedure, or the reason for the termination of such a procedure, is, according to the applicable regulation, the absence of validity for the repeal of the proposed legislation and not therefore the lack of effectiveness. From this point of view, the contested provision of Paragraph 19 (1) of Act No 129 / 2000 Coll. should be regarded as being both valid and effective at the date of the decision of the Constitutional Court, and the derogation is due to take place on 1 January 2003. The proposal of the Supreme Court must therefore be considered admissible, all the more so because, in the decision of 10 January 2001 sp. zn. Pl. ÚS 33 / 2000 (published under No 78 / 2001 Coll. and published in the Collection of Finances and Resolutions of the Constitutional Court, Volume 21, Found No 5), the Constitutional Court took the view that if the court submits an opinion in accordance with the procedure laid down in Article 95 (2) of the Constitution, the law is no longer valid, it is adequate to give an opinion on the constitutionality of such a law.

One of the basic attributes of self-government is the right of self-management units to manage their property separately, on their own account and responsibility. The content of the property right shall constitute the right of the owner to hold the item, to use it, to enjoy its fruits and benefits, and to dispose of the item. The possibility of dealing with a case is considered to be crucial. However, as is apparent from a particular case in which the Supreme Court in Prague has suspended the procedure and submitted the provisions of Paragraph 19 (1) of the Regional Law for the examination of the Constitutional Court, that provision, in some cases or by some ministries, unilaterally limits that right to the acquired property in such a way that it makes the self-governing regions the administrator of foreign property rather than the owner. It must be borne in mind that the state, in which the State feels entitled to commit itself to the self-governing regions under any conditions which, in addition, are penalised by any significant fines, is contrary to Article 101 (4) of the Constitution, according to which the State can only intervene in the activities of the local authorities if it requires the protection of the law and only in the manner laid down by the law. However, the contested valid and effective wording of Paragraph 19 (1) of the Regional Law does not contain any legal definition for determining the conditions for the management of acquired property and therefore provides for absolute freedom or, rather, the possibility for the authorities of the State to enjoy it. Such a situation makes it possible that in the same cases it may not be treated the same way, the possible future decisions of the authorities of the State are unpredictable, and in its consequences it may seriously infringe the equality of self-governing entities to which the property is transferred or transferred. In this case, the procedure of the State is fundamentally different from the procedure for the transfer of the property to municipalities which acquired the property directly from the Act No. 172 / 1991 Coll., on the transfer of certain items from the property of the Czech Republic to the property of the municipalities, as amended, which did not provide for any additional conditions for the management of the municipality with the property thus acquired, nor did it make the transfer conditional on any decision by the central authorities with the possibility of reservation of conditions.

In addition to those reservations, the valid and effective wording of Paragraph 19 (1) of the Regional Law raises doubts in terms of legal theory and established legal terminology, including both the transfer of assets and its transition under the same scheme. The transfer of assets takes place on the basis of legal fact, in this case Act No. 157 / 2000 Coll., as amended, or independently of the will of the entity. In such a case, the conditions for the disposal of such property may be laid down only by law and not by an administrative authority. However, that law does not provide for any conditions attached to that transition. It merely regulates the formalities of future administrative decisions and as the only provision which, to a certain extent, limits future owners, only the provision of § 4 can be considered, according to which where a restitution claim has been or will be claimed, the region becomes a compulsory person under special rules. On the other hand, the transfer of ownership takes place by contract and other conditions can undoubtedly be negotiated in this bilateral act. The provisions of paragraphs 19 (2) and 19 (3) of the Regional Act, which penalise infringements of obligations imposed under paragraph 1, follow this confusion without distinction, although such a penalty would only be considered in the breach of the obligations or conditions laid down in the transfer of ownership of the former, whereas such penalties would be difficult to comply with if the Region concluded a transfer agreement with the State as a public body. In such a case, sanctions may only be negotiated in the contract.

These problems were probably also known by the Government, which, in the draft amendment to the Regional Act, proposed a different wording of Paragraph 19, which was not accepted by the Legislative Council, and this paragraph was finally removed from the law (with effect from 1 January 2003). However, from the general part of the explanatory memorandum it follows that the amendment to the Regional Act (No 231 / 2002 Coll.) is intended, inter alia, to extend the scope of the regions, which is necessary for the regions to be fully able to fulfil their mission, which according to the Constitution, belongs to them as significant regional authorities. In so far as the legislature has annulled Article 19 of the Regional Act, it can be considered, in view of the circumstances, that it is recognised that the provisions of Article 19 did not comply with the constitutional requirements of Article 101 (4) of the Constitution by design and that, by its generality and uncertainty, it did not fulfil the characteristics of predictability, sufficient precision and clarity which characterises the term "law 'in the rule of law. By failing to fulfil the above-mentioned characteristics, Paragraph 19 clearly did not provide sufficient protection to the addressees (regions) against the indiscretions or aspirations of state authority. The contested provision thus allowed new owners to be limited in their rights under Article 11 of the Charter in a way which does not conserve the meaning and substance of those rights and is therefore contrary to Article 4 (4) of the Charter. This situation would not be in accordance with the European Charter of Local Self-Government, which was incorporated into the law of the Czech Republic by the Communication of the Ministry of Foreign Affairs No. 181 / 1999 Coll. with effect from 1 September 1999. Pursuant to Article 8 of the European Charter of Local Government, any administrative supervision of the Autonomous Communities may be exercised only as provided for by the Constitution or the law.

For all the above reasons, the Constitutional Court complied with the motion of the Supreme Court in Prague and the provisions of § 19 (1) of the Regional Law were annulled on the day of the publication of this finding in the Collection of Laws.

The Constitutional Court also considered the abolition of subsequent paragraphs 2 and 3 of Article 19 of the Regional Law, knowing that, in the decision of 31 October 2001 in sp. zn. In this finding, the Constitutional Court stated that, in a situation where, as a result of the annulment of a provision of law, a provision other than that of the content which has been abolished has lost reasonable meaning, that is to say that it loses the validity of its normative existence, there is also a reason for the annulment of that provision without being an ultra petitum procedure. In this case, the Constitutional Court has limited itself to the abolition of a key provision which has been expressly contested, namely Article 19 (1) of the Regional Law.