The Constitutional Court found No. 43 / 2001 Coll.

Motion denied.

On 5 April 2000, a group of 17 Senators of the Parliament of the Czech Republic, pursuant to Article 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court ("the Law on the Constitutional Court '), submitted an application for annulment of Article I (4) of Act No. 37 / 2000 Coll., amending Act No. 125 / 1997 Coll., on Waste, as amended, (" the Waste Act'). The contested part of the law is, in the appellants' view, contrary to Articles 3 (1), 4 (1), (2) and (4) and 11 (5) of the Charter of Fundamental Rights and Freedoms ("the Charter ').

This proposal is understood by the Constitutional Court (according to its established case law) as a proposal to abolish the relevant part of Act No. 125 / 1997 Coll., on Waste, as amended (Amendments), that is to say also in the provisions that the New Waste Act contains and the above-mentioned parts of which have been amended by the amendment. In this respect, it only briefly refers to its comparable decisions made in the past, the core of which is that the amendment to the law does not have its own normative existence.

The motion of a group of senators to abolish that part of the law is justified as follows:

The Waste Act is designed on the principle that the municipal waste collection, sorting, recovery and disposal system is fully the responsibility of the municipality. In the appellants' view, the amendment softens and dilutes the responsibility of the municipality by authorising the municipality to introduce a municipal waste management charge which the municipality could collect on a flat-rate basis, regardless of whether the taxpayer is integrated into the municipal waste management system designated by the municipality or ensures that it is disposed of outside that system.

The applicants argue that the municipality's authorisation to introduce and collect a municipal waste charge can be considered a legal authorisation introducing a new charge. Should it be treated in the same way as other compulsory charges, it had to be included in an existing system of taxes and charges. However, the authorisation given in the amendment to the Waste Act and the entire construction of the charge is flawed from this point of view, because the municipal waste charge does not contain all the attributes of this compulsory levy. In accordance with the applicable system of taxes and charges, each newly introduced fee shall include the determination of the basis of the fee, its amount, the fees, the method of charging, the budgetary determination of the fee revenue and the penalty for non-compliance. The regulation contained in the contested part of the Act does not contain all the attributes of the charge and, for those it contains, it may be doubted that they are correct or accurate. It is in this lack that the applicants see a conflict with Articles 4 (1), (2) and (4) and 11 (5) of the Charter.

Furthermore, the appellants argue that the contested part of the law does not distinguish between whether or not a natural person defined as a taxpayer ("natural person whose activity produces municipal waste ') is involved in a system which the municipality has established for the disposal of municipal waste. Contrary to the original regulation, the contested part of the Act does not give the natural persons producing municipal waste the legal possibility to waive the charge by proving that they have used the waste themselves or disposed of it themselves.

They also argue that the level of the charge is not derived from the actual volume of municipal waste but is to be determined according to incorrect and inaccurate criteria, i.e. the number and volume of containers or the number of users of the apartment. According to the applicants, such an arrangement will be demotivative and, as a result, may be seen as a violation of Article 7 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution). In the appellants' view, the contested regulation also significantly reduces the responsibility of municipalities for saving and rationalising municipal waste management. The introduction of these charges would be a flat-rate measure, whether or not taxpayers are using a municipal waste management system designated by the municipality.

In order to examine the proposal, the Constitutional Court requested the expression of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic in accordance with Section 69 of the Law on the Constitutional Court.

The Chamber of Deputies stated in its observations that Law No 37 / 2000 Coll. was discussed in this institution as House Press No. 229. The proposal was submitted by a group of Members in May 1999 and, according to the explanatory memorandum, its aim was to respond to the situation on the basis of the annual experience of the application of the Waste Act to the municipal waste management sector. In practice, some of the difficulties appeared to be the most problematic part of the law governing the payment for the collection, sorting and disposal of municipal waste as contract, in substance, price paid by natural persons to the municipality. In particular, in large cities and municipalities, entities that without a contract benefited from the collection and collection system established by the municipality. According to the explanatory memorandum, the amendment provides for the possibility to establish a local collection, collection, collection, sorting, recovery and disposal system for municipal waste, including the management of construction waste, by a generally binding decree, and also to levy a municipal waste charge. This possibility allows for the definition of the maximum amount of the charge in Section 10 (5) of the Waste Act, which is treated in a similar manner to certain other local charges, where municipalities can also determine their level according to local conditions and always within the limits laid down by the law. On the proposal for the annulment of a part of the Act itself, the Chamber of Deputies stated that, in its view, the proposal does not contain clear legal arguments for the assessment of the matter from a constitutional legal point of view, rather it contains factual arguments or different legal opinions on the legitimacy of dealing with the problem of municipal waste. The appellants were not quite clear about what they saw as a contradiction with the Charter or the Constitution, and the argument is based on a level more factually technical than legal. The Chamber of Deputies expressed its view that the legislature acted in accordance with the constitutional procedure in force and that the law adopted was not contrary to the Constitution, the constitutional order or the legal order of the Czech Republic. However, he left it to the Constitutional Court to examine the constitutionality of the provisions in question in the context of the proposal and to give the relevant decision.

In its observations, the Senate stated that doubts as to the constitutionality of the fee introduced by the amendment to the Waste Act were raised also in the Senate proceedings. When discussing the law, it was noted that the inclusion of a new municipal waste charge in the Waste Act did not fully fall within the current system of charging legislation. According to Article 14 (1) (h) of Act No. 367 / 1990 Coll., on Municipality (municipal establishment), as amended, the municipality's separate competence and the determination of the types of local charges and their rates are generally binding by decree. According to Article 16 (2) of Act No. 367 / 1990 Coll., these generally binding decrees must be in accordance with the laws and general binding laws issued by central government authorities for their implementation. The special law which regulates the types and amounts of the fees which the municipality may, under the separate scope of the generally binding decree, regulate is Act No. 565 / 1990 Coll., on Local Charges, as amended, ("the Law on Local Charges'). The adjustment of the fees in the municipality's separate jurisdiction, regardless of the specific name of the fee, always fulfils the local fee characteristics. Moreover, the non-inclusion of the municipal waste charge in the Local Charges Act is not justified by any specific reason. Furthermore, the Senate stated in its observations that the Charter provided in Article 4 (1) that obligations could only be imposed by law and within its limits, and Article 11 (5) The Charter specifies this principle in such a way that taxes and charges can only be imposed by law. From this, the Senate concluded that the limits of a certain type of charge, i.e. its amount, must be given by law. In determining the type of charge and the rates, the municipality may decide by means of a generally binding decree which of the types of charge laid down in the law will be levied on its territory, the rate being fixed only up to the maximum amount laid down by the law. For this reason, in particular, the provisions of Paragraph 10 (5) of the amendment to the Waste Act can be considered insufficient, as there is no specific limit to the level of the charge imposed, but only the threshold foreseen, which is linked to the municipality's expected legitimate costs resulting from the municipal waste management scheme. The specific maximum amount will therefore depend on, inter alia, the costs to be charged by the entity to carry out the collection, collection, sorting or disposal of waste. That fee structure does not include any other necessary fee attributes, such as maturity, or reasons for reducing or waiving the fee to mitigate or eliminate the hardness and conditions for exemption.

The Senate discussed the draft amendment to the Waste Act at its 12th meeting of the second term of office on 10 December 1999. After an extensive discussion, he rejected the bill because he found constitutional shortcomings in its discussion for which he could not agree.

Without a call from the Constitutional Court, the opinion of the representatives of the municipalities who met on 4 May 2000 at the working meeting on the proposal was also submitted. It indicated that it did not agree with the proposal to abolish that part of the Waste Act. It does not agree with the objection that the amendment to the Waste Act does not limit the amount of the fee and the basis for its calculation is not clearly established. In their view, Section 10 (5) of the amendment to the Waste Act is sufficiently specific when setting the maximum amount of the charge. Each municipality must approve the fee in the form of a generally binding decree and it would be irresponsible to assume that the municipal council would charge the population a higher charge not corresponding to the actual costs. In fact, municipalities will continue to fund the management of municipal waste from their budgets. They are fully satisfied with the method of determining the amount of the fee laid down in the amendment to the Waste Act, since a different range of services may be provided to the inhabitants in each municipality, and the different amounts of the fee are bound to reflect, for example, the distance of the waste landfill from the municipality, the cost of storing waste in the landfill, etc. The representatives of the municipalities also made reservations against the claim that a flat-rate fee is being introduced, whether and to what extent taxpayers are using the municipal waste system designated by the municipality. In addition to the capitalisation form, they claimed that the adjustment contained in the Act allows for the possibility of setting the fee in addition to the capitalisation form for example on the volume of the collection vessel, depending on the number of collection vessels etc. The experience of the municipalities that introduced the capitalisation fee is such that the purity of the municipality increased after its introduction. In addition, the representatives of the municipalities indicated that the amendment to the Waste Act provided that the administration of the charge was carried out by the municipality and argued that the provisions of the General Law could not address the method of collecting and the maturity of the charge, these issues could only be dealt with by a generally binding decree. The representatives of the municipalities raised a major objection to the claim that the amendment to the Waste Act does not allow a natural person to choose to dispose of waste in accordance with the rules other than those laid down in the generally binding municipal decree, thereby limiting one of the citizens' fundamental rights - the right to choose when using services and handling his property. They stated that the previous regulation led to citizens avoiding the use of a waste collection system established by the municipality with claims which seriously questioned the merits of this procedure. The representatives of the municipalities made further comments, which, however, no longer relate to the specific points of the proposal, but generally defend the amendments adopted by the Waste Act. They also pointed out that it was necessary for the Constitutional Court to consider the possible consequences of legal discontinuance, when a number of municipalities had already made frequently irreversible changes to the reimbursement system in accordance with the amendment to the Waste Act, and had abolished previous contractual relations with natural persons or property owners.

The Senate rejected the bill on 10 December 1999. The Chamber of Deputies then readopted the draft law in accordance with Article 47 (1) of the Constitution on 18 January 2000, as amended. On 3 February 2000, the President of the Republic exercised his powers under Article 50 of the Constitution and returned the law to the Chamber of Deputies, which, by its resolution of 22 February 2000, maintained the law. This resolution was published in the Collection of Laws under No. 38 / 2000 Coll. and the Act was published under No. 37 / 2000 Coll.

The original treatment of municipal waste and the remuneration for the collection, sorting and disposal of municipal waste was contained in Sections 9 and 10 of the Waste Act. According to this regulation, the municipal waste collection, sorting, recovery and disposal system could be adapted by a generally binding decree within its own competence; the modification may include a system for the management of construction waste. Natural persons have been required to collect, sort and transfer municipal waste separately from the date laid down by the decree, for processing under the system provided that they have not demonstrated that they have used it themselves or disposed of it themselves in accordance with the law. The method of proving this was again governed by a general binding decree. In order to do business in the area of municipal waste management in the territory of the municipality, the consent of the municipality concerned was always required, which also laid down the conditions under which such consent could be given. The approval was decided in the administrative procedure. Reimbursement for the collection, sorting and disposal of municipal waste was granted as a price for these activities corresponding to specific legislation (Act No. 526 / 1990 Coll., on Prices, as amended). The originators of municipal waste, which by written agreement used the system of collection and sorting of municipal waste, paid the price agreed in agreement with the municipality. The payment for the collection, sorting and disposal of municipal waste was the income of the municipality, and from this income the municipality paid the costs of sorting, sorting, sorting, recovery and disposal of municipal waste.

Act No. 37 / 2000 Coll. amended the Waste Act and the draft contested provisions § 9 and 10. That amendment to the Waste Act amended that legislation. Thus, either the municipality or the beneficiary can handle municipal waste on the territory of the municipality on the basis of the municipality's written consent. The municipality's competence to adapt the local collection, collection, sorting, recovery and disposal of municipal waste, including the management of construction waste, has remained within its own competence by means of a generally binding decree. At the same time, however, this decree resets the amount of the collection, recovery and disposal charge, including the way in which it is collected. This regulation includes a change in the existing approach to the payment for the disposal of municipal waste, when the new legislation has gone from the original price for the service to the form of a charge. The new legislation also laid down the obligation for natural persons to put waste away in places designated for that purpose and to collect, sort and transfer municipal waste separately from the date laid down by the generally binding municipal decree for recovery or disposal under the system established by the municipalities. The amended Section 10 of the Waste Act further defines the municipal waste charge. The municipality may, by means of a generally binding decree, determine and levy a charge for municipal waste arising from its territory, whereby any natural person in whose activity municipal waste is generated is liable. The amendment introduces the concept of a fee payer, which is the owner or manager of a building or real estate where municipal waste is generated, and which charges the municipal waste charge to individual taxpayers, and the rules on the price adjustment of the services associated with the rent of the apartment apply mutatis mutandis to that distribution. The payer and the payer may blend under certain conditions. Furthermore, the new legislation provides that the administration of the charge is carried out by the municipality. If the fee is not paid in time or at the correct amount, the municipality shall charge the fee by means of payment. Paragraph 10 (5) of the Waste Act sets out the maximum amount of the fee to be charged by the municipality on the basis of the estimated eligible costs resulting from the municipal waste management regime and allocated to individual taxpayers, according to the number and volume of containers for disposal of individual real estate waste or the number of users of flats and taking into account the level of classification of such waste. The fee may also reflect the costs of renting containers for disposal. The municipal waste charge is the income of the municipality.

The appellants state, as the main reason for the proposal to abolish the defined part of the Act, that the amendment softens and dilutes the responsibility of the municipality for the collection, sorting, recovery and disposal of municipal waste by authorising the municipality to introduce a charge for the management of municipal waste that the municipality could collect on a flat-rate basis, whether the taxpayer is integrated into the system or ensures the disposal of waste outside that system.

The Constitutional Court considers that the change in the construction of the municipal waste payment, even in the form of a charge, is the responsibility of the State and is legitimate, as well as the definition of the charging zone for the relevant fee. In the opinion of the Constitutional Court, the determination of a wide range of municipal waste charges is justified primarily by the public interest in protecting the environment against waste pollution. All natural persons in whose activities municipal waste is generated shall be required to include themselves in the municipalities guaranteed the means of disposal of municipal waste. The fact that the environment (its protection and its care) becomes an essential priority for every society, perhaps there is no need for a more comprehensive argument. The municipality guaranteed and operated a system of collection, disposal, etc., of municipal waste foresees environmentally sound practices and distorts them to the minimum possible extent. Of course, the previous legislation also appealed to a friendly and environmentally friendly way of disposing of municipal waste, but, if this activity was carried out as a paid service, it could be excluded from the organised collection of persons who otherwise managed to dispose of waste. The Constitutional Court, contrary to the proposal submitted, considers that the amended regulation, on the contrary, strengthens the responsibility of the municipality for municipal waste in that it is obliged to ensure the collection and disposal of all municipal waste in its territory and does not transfer responsibility to other bodies. It would certainly be possible (and probably very widely) to discuss environmental approaches, whether we would call them liberal or conservative, including in the area of waste management, but it must be said in principle that every approach that saves nature is legitimate and factually correct. The approach chosen by the contested amendment undoubtedly bears that character.

The second group of objections of the appellants consists of reservations as to the manner and extent of the definition of the municipal waste charge in the amended legislation, where the appellants argue that the legal regulation does not contain an adjustment to all the attributes of the charge in order to establish, pursuant to Article 11 (5) of the Charter, that the fee is set on the basis of the law.

It can be concluded from the word "save" in the Charter that constitutional law refers to tax and charge as objectively equivalent in terms of public law.

The amendment to the Waste Act introduced new arrangements for the payment of municipal waste management, in the form of a municipal waste charge (hereinafter referred to as "the levy '), which is set by the municipality within its own competence and which is managed and received by the municipality. According to that specification, it can be concluded that a new type of local charge is thus provided for in the amended version of the Waste Act.

Local fees are regulated by Act No. 565 / 1990 Coll., on Local Charges, as amended. Section 1 of this Act contains a taxa list of fees which municipalities can collect, and the various types of fees, their subject matter, persons obliged to pay the charge, the maximum rate of each charge are further specified. That law also provides for other general issues, i.e. penalties for non-payment of fees on time or at the correct level, time limits within which unpaid fees can be assessed, the authority of the municipality to provide for the introduction of charges by a generally binding decree setting out the details of the collection of fees, the specific rate of charges, the reporting obligation for charging, the maturity, the relief and any exemption from charges. As a general rule, the authority of the municipality to reduce or waive fees is also provided that this is necessary to mitigate or eliminate hardness in specific cases. The subsidiary application of Act No. 337 / 1992 Coll., on the Administration of Taxes and Taxes, as amended, ("the Taxes and Taxes Administration Act '), is laid down in that Act.

In order to assess the case, it is also necessary to recall Article 14 (1) (h) of Act No. 367 / 1990 Coll., as amended, which provides that the definition of the types of local charges and their rates under the Special Act, with reference to the Local Charges Act, falls within the separate jurisdiction of the municipality.

It follows from those provisions that the amendment to the Waste Act introduced a new type of charge, which, by its nature, resembles a local charge, but cannot be included under the Local Charges Act due to the taxic list of types of local charges. The amendment to the Waste Act itself did not alter this issue, i.e. the Local Charges Act did not directly affect it. The question is whether the amendment to the Waste Act in the section on the municipal waste charge can be regarded as an indirect amendment to the Local Fees Act. In the view of the Constitutional Court, however, this is not even an indirect amendment to the Local Charges Act, because, in addition to determining that the charge manager is a municipality, and the possibility of the municipality adjusting the municipal waste charge by a generally binding decree is not included in the amendment to the Local Charges Act. For the same reason, it is not possible to deduce the subsidiary application of the Local Charges Act, even though the Constitutional Court notes that the topic addressed was offered for clearer and more organisational inclusion in the Local Charges Act.

The Waste Act in the provisions under assessment (Sections 9 and 10) defines, in particular, the authority of the municipality to adjust this fee by a generally binding decree, in which the amount of the charge can be defined, including the way in which it is collected, the municipality determines as the administrator of the charge, defines the budgetary determination of the income from the charge, defines the taxpayer, the subject matter and the basis of the charge, and also the rules for determining the fee rate.

The Constitution provides in Article 2 (4) that every citizen may do what is not prohibited by law and no one must be forced to do what the law does not impose. A similar provision is contained in Article 2 (3) of the Charter, specifying in Article 4 (1) of the Charter, where it is provided that obligations may be imposed only on the basis of law and within its limits and only with respect to fundamental rights and freedoms. In relation to taxes and charges, it is appropriate to mention Article 11 (5) of the Charter, which provides that taxes and charges may only be imposed by law. In order to comply with the basic law enshrined in the Charter, the tax and tax obligations and the conditions for their formation must be based on the law. The legal arrangements, as can be derived from theoretical analyses, must determine the requirements of the charge relationship, the so-called elements of the charge, the subject-matter of the charge, the basis of the charge, the rate of charge, the relief and exemption from the charge, the maturity of the fee and the penalties for failure to comply with the fee obligation. The subject matter of the tax as a subjective commitment by a person to the State is the legal standard for the conduct, conduct or conduct of persons. The legal reason (title) of the tax is given by a special law and, on the basis of it, the commitment of a person to the State is also made. The tax (charge) obligation arises by fulfilling certain legal facts, conditions which give rise to a legal right to tax on the part of the State (municipality) and to a liability on the part of the person (tax). The tax has a enforceable character (under the law is collected), the law defines precisely the facts establishing the tax liability, the amount and the maturity period. However, contrary to the charge, the tax is cash transactions which are not levied as compensation for an individual advantage.

In relation to the definition of the basis of the fee and its rate, certain doubts may be raised in relation to the specific method as modified by these charges attributes. The specificity of this fee is that, although it is determined by the number and volume of containers for disposal of waste or by the number of users of flats, it gives the impression of a fee paid by fixed amounts (i.e. a certain rate), the basis on which the charge is based is the price for the services provided, because the charge is calculated on the basis of the municipality's expected eligible costs resulting from the municipal waste management scheme. The concept of the municipality's presumed legitimate costs resulting from the municipal waste management regime is not precisely defined by the amendment to the Waste Act, but, given the nature of the base thus established, it cannot be precisely defined. In their observations, the municipality itself admits that these costs may differ significantly, which may be influenced by a number of facts outside the municipality itself (e.g. the costs of an entity which, on the basis of the municipality's written consent, will handle municipal waste). In this respect, however, the maximum amount of the fee may not be set simply and in a uniform amount, because it is not possible to do so in view of its construction (which simply cannot be determined otherwise).

The amendment to the Waste Act in § 10 (3) stipulates that the administration of the levy is carried out by the municipality which introduced it on its territory, including from the point of view of the Tax and Fee Management Act. Article 1 (2) of the Law provides for the right of the authority to which the administration of the tax or charge is responsible (in this case the municipality) to take the measures necessary for the correct and complete determination, determination and fulfilment of the tax obligations, in particular the right to seek the tax entities, to assess, collect, account, enforce or check their compliance with the law on the administration of taxes and charges at a specified level and time. At the same time, the Taxes and Charges Management Act also defines the obligations of taxpayers in respect of the performance of their fee obligations, maturity and enforceability. The Law on the Administration of Taxes and Taxes also provides for penalties for non-compliance with the fee obligations and allows the possibility of recourse to the Institute of Remission in the event of non-compliance. In particular, the provisions contained in Part Six of the Tax and Fees Administration Act may be applied to the fee (its attributes). decisions taken in this field shall also be subject to judicial review under § 244 et seq. In the view of the Constitutional Court, it can therefore be concluded that the subsidiary application of the Law on the Administration of Taxes and Fees is also regulated by law in the theory of the other attributes of the charge, so that it can be concluded that the municipal waste charge is determined on the basis of the law, thus fulfilling the requirement of Article 11 (5) of the Charter.

The Constitutional Court did not find the contested provisions of the Waste Act to be contrary to a constitutional law or an international treaty pursuant to Article 10 of the Constitution and therefore rejected the proposal of a group of Senators.