The Constitutional Court found No 5 / 2022 Coll.
The Constitutional Court found of 30 November 2021 sp. zn. Pl. ÚS 18 / 21 in the case of the application for annulment of certain provisions of Act No. 35 / 2021 Coll., on the Collection of Legislation of Territorial Authorities and certain Administrative Offices, Section 12 of Act No. 128 / 2000 Coll., on Municipality (Municipal Establishment), as amended, Section 8 of Act No. 129 / 2000 Coll., on Regions (Regional Establishment), as amended, and Section 45 of Act No. 131 / 2000 Coll., on the Capital of Prague, as amended
Valid
5
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 18 / 21 on 30 November 2021 in plenary composed of the President of the Court of Pavel Rychetský and Judges Jaroslav Fenyk, Josef Fiale, Jan Filip, Jaromír Jirsa, Tomáš Lichovník, Vladimir Sládeček, Radovana Sučánek, Pavel Šámal, Kateřina Šimáková, Vojtěch Šimíček, David Uhlíř and Jiří Zemánek (Judge), on a proposal by the group of Senators, represented by JUDr. Polčák, a lawyer, based on § 4 (1) (a) (a), (2) (1) (1) (1) (1) (1) (1) (1) (1) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2
as follows:
Motion denied.
Reasons
Recital of the opening proposal
1. A group of 26 Senate Senators of Parliament (hereinafter referred to as "the draftsman") with a proposal received by the Constitutional Court on 17. 3. 2021 sought the annulment of part of the provisions of Paragraph 1 (1) (a) in the words "general binding regulations and" and paragraphs 2 (1), 4 (1) and 9 (3) of Act No. 35 / 2021 Coll., on the Collection of Law No. 128 / 2000 Coll., "§ 8 of Act No. 129 / 2000 Coll., on the Regional Act, as amended by Act No. 36 / 2021 Coll. According to the appellant, the inclusion of self-regulatory provisions, in particular general binding regulations, which are the expression of the original self-regulatory standard, in the scheme of Law No 35 / 2021 Coll. and by the provision of cross-compliance with their validity and effectiveness by publication in the Collection of Laws of Local Government and certain administrative authorities (hereinafter referred to as" the Collection of Laws'), the legislature infringed the constitutional rules guaranteed by the law of local authorities on self-government [Article 8 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ')] and the right of their representatives to issue generally binding regulations within its scope (Article 104 (3).
2. In its proposal, the appellant questions the presumption that the Government has brought forward draft Law No. 35 / 2021 Coll. and Act No. 36 / 2021 Coll., amending certain laws in the context of the adoption of the Law on the Collection of Laws of Local Government and of certain administrative bodies, Parliament, that in practice the local authorities do not properly fulfil their legal obligation to publish in a manner that allows remote access all their legislation.
3. If the Government quotes in the explanatory memorandum to Law No 35 / 2021 Coll. the decision of the Constitutional Court and of the European Court of Human Rights, the appellant points out that these decisions do not refer to the admissibility of the application of self-governing legislation to their publication in a national collection administered by the State. In the case of the finding of 12.4.2016 sp. zn. I. ÚS 2315 / 15 (N 64 / 81 SbNU 99), which refers to the publication of all the laws of the municipalities and regions on the Internet or their central accessibility, the appellant asks why the government did not use the mechanism to which the Constitutional Court pointed out, i.e. why the legitimate objectives of the proper availability of the rules cannot be achieved under the current legislation by means of the obligation of the local authorities to send generally binding regulations and regulations to the competent supervisory authorities [§ 12 (6) of Act No. 128 / 2000 Coll., on the municipalities (regional establishment), as amended by Act No. 36 / 2021 Coll., (hereinafter referred to as "the Act on the municipalities'), § 8 (9) of Act No. 129 / 2000 Coll. If the Government points out that the Ministry of the Interior is not informed of a self-governing standard, it is appropriate to improve communication between national authorities and institutions, not burden external bodies, in addition to the constitutional order. In fact, if it is such a serious and long-term problem, the government should have responded to it earlier, in a way that would not burden the local authorities with a number of responsibilities, all the more so as to be merely a bridging solution until the construction of a new e-collection system. The appellant points out that, for example, for small municipalities in particular, it will also be difficult for staff to fulfil the newly set obligations.
4. The appellant does not call into question the government's requirement to be aware of the law, but states that the existing legislation is based on this principle, which makes the legislation of the county or of the City of Prague the law of the City of Prague (§ 8 (2) of the Regional Law, § 45 (2) of the Law on the City of Prague) subject to the validity of the self-administrative legislation. If the government considers that effective regulation or its application in practice is not optimal, it should have chosen the path of adequate repairs and additions rather than radical reconstructions due to regulatory constraints. In the first place, the government should have thoroughly documented how serious and frequent the problem of not publishing self-governing legislation on the relevant websites.
5. The appellant points to Article 104 (3) of the Constitution, according to which general binding regulations are original legislation and constitute a manifestation of a constitutional right to self-government, in this sense the Constitution does not foresee the independence of non-governmental bodies. The validity and effectiveness of the legislation of self-government solely on their own actions (although the conditions are laid down by law) also plays an important role in terms of the decentralisation of power. Therefore, putting state power into the hands of such a powerful instrument as making it conditional on the entry into force of self-government legislation by publishing them is a step of considerable risk and potentially abusive. This also applies to the fact that the announcement is entrusted to the Ministry of the Interior, which is simultaneously a supervisory body against the authorities, where, in view of the significant competence of the Ministry of the Interior towards the authorities, the appellant fears their possible abuse.
6. The appellant disagrees with the manner in which the government carried out the proportionality test in the explanatory report and submits its own assessment, in which, for the reasons set out above, the proposed legislation failed, in particular, in terms of the criteria of necessity and proportionality in the narrower sense.
Observations of the parties and interveners on the content of the application
7. The Constitutional Court, pursuant to Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), invited the Chamber of Deputies and the Senate as parties to the proceedings and the Government and the Ombudsman as interveners to comment on the content of the application.
8. In its observations, the Chamber of Deputies stated that the Government submitted proposals for both laws, then published under No 35 / 2021 Coll. and No 36 / 2021 Coll., on 26 August 2019. The Chamber of Deputies discussed the proposals at first reading on 10 March 2020 and ordered them to be discussed by the Committee on Public Administration and Regional Development, which discussed them in substance on 14 May 2020 and issued a resolution which was published under the numbers of House Prints 575 / 2 and 576 / 2. The Chamber of Deputies then discussed and agreed to the proposals of both laws at second reading on 23 October 2020 and at third reading on 13 November 2020. The Chamber of Deputies moved on 24 November 2020 to draft Senate laws, which it rejected at its meeting on 16 December 2020. The Chamber of Deputies has repeatedly discussed the proposals for both laws on 19 January 2021. It follows from the relevant stenoprotocol that the proposals were adopted when 146 Members voted against the proposal in the final vote on the House of Press 575 / 5 of the 172 Members present, 12 Members voted against the proposal, and 17 Members voted against the House of Press 576 / 5 of the 173 Members present. The laws were delivered on 21 January 2021 to the President of the Republic, who signed them on 22 January 2021. The laws were published in the Collection of Laws in the amount of 17 sent out on 3 February 2021 under numbers 35 / 2021 Coll. and 36 / 2021 Coll.
9. In his observations, the Senate stated that the Chamber of Deputies had passed on the two bills on 23 November 2020. Proposals for laws have been ordered by the Committee on Territorial Development, Public Administration and the Environment as a guarantee and constitutional legal committee. At its second meeting on 9 December 2020, the Guarantee Committee adopted Resolution 5 and 6 recommending the Senate to reject the draft laws. At its 4th meeting on 9 December 2020, the Constitutional Legal Committee adopted Resolution 12 and 13 recommending the Senate to return the draft laws to the Chamber of Deputies with amendments. The Senate rejected the draft of both laws on 16 December 2020.
10. Government on 15.7.2021 It informed the Constitutional Court that it was intervening, proposed the rejection of the application and authorised the Minister of Justice, in cooperation with the Minister of the Interior, to draw up the Government's observations on the application.
11. In its observations, the Government referred to the explanatory memorandum to Act No. 35 / 2021 Coll. and further stated that the practical problems associated with the current declaration of the legislation of local authorities and, in particular, the failure to fulfil the obligations relating to the publication of legislation and their transmission to supervisory authorities by certain municipalities had a fundamental effect on the real possibility for the addressees of the legislation to be aware of their content. Effective legislation therefore no longer ensures that the addressees of such legislation are informed to an extent that could be considered optimal in view of the current state of information technology. The Government has pointed out that the Ministry of the Interior, in its control activities, is faced with cases where generally binding regulations published on the website of a particular municipality are not up-to-date (they are also published for several years of invalid general binding regulations or are not currently in force), as well as cases where municipalities do not publish their generally binding regulations on the website at all, or not in the version sent to the Ministry of the Interior as a supervisory authority (from 2015 to 2019, the infringement was found in 299 of 463 checks, in the last five years the Ministry of the Ministry of the Interior found to be non-compliance with the obligation of the Ministry of the Ministry of the Interior to the 28% of the controlled municipalities, a high proportion of municipalities not sending generally binding regulations in accordance with the Act was recorded in the Ministry of Interior in spring 2020 as part of a mini study in which 210 municipalities).
12. According to the Government, these insights of the Ministry of the Interior demonstrate the substantive justification for not using the legislative option, in which the Collection of Legislation would be formed ex post after the validity and effectiveness of the legislation had become effective on the basis of their transmission to the Ministry of the Interior by individual local authorities. Nor would the provision of penalties for failure of municipalities to send legislation to supervisory authorities ensure that all legislation is sent to those authorities. This must also be added in the form of personnel implications and administrative costs necessary to enforce the obligation. Nor can it be forgotten that an ex post solution based on the publication of legislation sent by local authorities would necessarily lead to the existence, for a certain period of time, of valid municipal and regional rules which would not yet be traceable in the Collection of Legislation. This would significantly reduce the information value of the Legislative Collection and the certainty of the addressees of the law on the legislation currently in force. The Government stresses that the legislation adopted does not in any way interfere with the very legislative activity of the local authorities and only affects the way of publication, i.e. the very publication of legislation, which is currently also regulated at the level of the law. The publication in the Legislative Collection will not be in the hands of its administrator, i.e. the Ministry of the Interior, but will be carried out by the local authority itself, by sending the text of the legislation by means of an electronic form to the data box set up by the administrator. By delivering the legislation to the data box, this legislation will be published in the Collection of Legislation and thus declared. Therefore, there can be no interference by the State in the process of declaring the legislation of local authorities.
13. The Government then, in its observations, followed up the proportionality test and concluded that, in a situation where the current method of publication of the legislation of the local authorities proved to be unsatisfactory, the repeal of the proposed legislation is an acceptable legislative instrument in order to achieve its primary objective of recognition of the applicable and effective law. The local authorities are given a reasonable period of time (three years after the entry into force of Act No. 35 / 2021 Coll.), in which the legislation in force will have to be published in the Collection of Legislation. At the same time, the need to achieve the purpose of optimising the publication of the legislation of local authorities and increasing the guarantee of the predictability of the law and the related principle of legal certainty and equality before the law is fulfilled. In view of the comparison of the gravity of the conflicting rights, the so-called principle of proportionality (in the narrowest sense), the introduction of the obligation of municipalities and counties cannot be regarded as a disproportionate means of regulating their normative powers, or perhaps even as a borderline interference by the State in the exercise of self-government, in view of the fact that they are in a central administration.
14. Finally, the Government notes that the Legislative Collection is designed and built by law as a completely independent and arbitrary information system, whose possible connection to the e-Collection system in the future cannot affect the assessment of the concept currently being applied in relation to constitutional law. At the same time, the Government rejects the appellant's opposition to the administrative difficulty of the new legislation for municipalities, since from a technical point of view, the obligation for generally binding municipal decrees will be fulfilled identically as it has so far been by sending a message to the Data Box to the Ministry of Interior; the difference is practically only in that the municipalities complete the information on the generally binding decree in the prepared simple form. In addition, Law 36 / 2021 Coll. abolished the obligation for local authorities to publish legislation issued by them on their website, which in turn means reducing their administrative burden. The Government therefore proposes that the Constitutional Court reject the proposal.
15. The Ombudsman informed the Constitutional Court on 29 June 2021 that he did not intervene.
16. The Constitutional Court sent observations by the parties and interveners to the appellant's representatives in order to be able to comment.
17. In its reply, the appellant points out, first of all, that, in the Government's observations, the analysis of the content of the Constitution concerning the declaration of normative acts does not fully exist. It is precisely the fundamental distinction contained in Article 52 (1) of the Constitution, which states that "it is necessary to declare the law in force ', whereas in Article 104 (3) no such conditionality is provided for by the Constitution, in the light of the other constitutional guarantees provided for in Article 8 and the title of the Seventh Constitution, it raises doubts as to the material under appeal. Furthermore, the appellant does not agree with the Government's statement that the declared emergency situation did not affect the way in which the draft laws were discussed, while the Government also refers to an exception in the form of restrictions on public participation in committee meetings. If the results of the checks carried out by the Ministry of the Interior on the discharge of obligations under Act No. 106 / 1999 Coll., on free access to information, as amended, (hereinafter referred to as" Act No. 106 / 1999 Coll.') and from the municipal establishment (sending of the declared legislation to the Ministry of the Interior), there is no indication of how many of these infringements relate to deficiencies in the publication of the legislation. The appellant considers that, if this obligation is not fulfilled to a certain extent by the authorities, the question remains whether it is not because, given the formal nature of this obligation, the authorities still have doubts about its relevance. This does not mean that perhaps the local authorities do not properly declare their normative regulations as prescribed.
18. The appellant reiterates its opposition to the legal repeal of all the legislature of the Authority, which will take place on the basis of Article 9 (3) of Act No. 35 / 2021 Coll., if they are not inserted into the Collection of Legislation within 3 years of the entry into force of the contested Act. If the Government speaks in its statement that the new system for self-administration does not entail an increase in administrative complexity, since the existing obligation to send the legislation to the supervisory authority is merely replaced by the obligation to send it to the Legislative Collection, the appellant points out the possible negative effects of the failure to comply with the obligation in question, since the failure to send the legislation to the supervisory authority did not have as fatal consequences as the failure to send the legislation to the Legislative Collection. According to the appellant, the "tightening of the screws' in relation to the self-governing bodies, which have been granted a constitutional right to the original norm, is under attack.
19. The appellant recalls that more suitable solutions were available to take more faithful account of the conflicting constitutional principles, such as the possibility of sanctions for those of self-government, which would neglect to insert legislation into a national collection with a registered character, or to streamline the current mechanism for sending the declared legislation to supervisory authorities, whose current formal nature can hardly be imposed solely on the authorities.
20. The appellant points to the legislation in the Slovak Republic where, pursuant to § 6 (9) of Act No. 369 / 1990 Zb., o obecnom zriadení, je "vyvozsenie nariadenia na úradnej tabuli in the municipality podmienkou its validity; the district of Tu sa nariadenie zvereniová aj na webovom mansion of the village." In the Federal Republic of Germany, where Article 28 of the Constitution (Basic Law) refers to the considerable autonomy of local authorities, the regulation of these matters is left to the individual Länder, for example, under Article 26 of the Bavarian municipal constitution, the validity and effectiveness of the legislation itself is based on their own acts of publication. The Communication from the Association of Local Government of the Czech Republic shows that the similarly administrative process of publishing "local" binding regulations is not yet established in any analogue country of the European Union.
21. By its submission of 13.10.2021, the appellant supplemented its reply by a detailed comparison of the legislation governing the publication of the legislation of the local authorities of other States (the Republic of Austria, the Republic of Poland and the Kingdom of Spain). The appellant submits that, in the above states, municipal orders are published on the official record of the municipality or, where appropriate, in its municipal Journal, which is also a general condition to which their validity and effectiveness are also attached. There are exceptions (the Republic of Poland and the Kingdom of Spain, where the ordinances of the lowest local authorities are published in the official journals of higher local authorities), but the validity and effectiveness of self-government legislation are not linked to, or conditional on, the act of the State. In this respect, the appellant submits that, in comparative terms, the contested regulation deviates completely from the principles which govern the validity and effectiveness of self-governing legislation in comparable democratic legal states.
Text of the contested provisions
22. The Constitutional Court states the full text of the relevant provisions, highlighting the proposed part in bold.
Article 1 (1) of Act No. 35 / 2021 Coll.
(1) A Collection of laws and regulations of local and local authorities and certain administrative offices (hereinafter referred to as the "Collection of laws") is hereby established as a public administration information system. In the Collection of Legislation:
(a) declare general binding regulations and regulations issued by local authorities (hereinafter referred to as "the law of the local authority") and legislation issued by administrative authorities, where other legislation so provides (hereinafter referred to as "administrative law"); and
(b) publish acts provided for by this Law which arise in the exercise of the powers of the territorial authorities or in the context of that exercise (hereinafter referred to as "the Act").
Article 1 (2) of Act No. 35 / 2021 Coll.
(2) The Ministry of the Interior is the Administrator of the Collection of Legislation (the "Administrator").
Article 2 (1) of Act No. 35 / 2021 Coll.
(1) The legislation of the local authority and the law of the administrative authority are published in the Collection of Legislation.
Article 4 (1) of Act No. 35 / 2021 Coll.
(1) The legislation of the local authority and the law of the administrative authority shall become applicable by virtue of Article 2.
Article 9 (3) of Act No. 35 / 2021 Coll.
(3) The legislation referred to in paragraph 1, which has not been published in the Collection of Legislation referred to in paragraph 1, shall cease to be in force by the expiry of the period referred to in paragraph 1.
Section 12 of Act No. 128 / 2000 Coll.
The Law on the Collection of Legislation of Local Authorities and certain Administrative Offices provides for the procedure for the publication of generally binding orders and orders of the municipality (hereinafter referred to as the "municipal law ') and the conditions for the entry into force and application of the municipal legislation.
Section 8 of Act No. 129 / 2000 Coll.
(1) The generally binding county regulations must comply with the laws and regulations of the county must comply with the laws and regulations issued by the government and the central administration.
(2) The procedure for the publication of generally binding decrees and regulations of the county (hereinafter referred to as the "county law") and the conditions for the entry into force and application of the county law are laid down in the Law on the Collection of Legislation of Local Authorities and certain administrative offices.
§ 45 of Act No. 131 / 2000 Coll.
The law on the Collection of Legislation of Local Self-Government Entities and certain Administrative Offices provides for a procedure for the publication of generally binding regulations and regulations of the City of Prague (hereinafter referred to as "the law of the City of Prague ') and the conditions for the entry into force and effectiveness of the law of the City of Prague.
The applicant's active legitimacy and management conditions
23. Pursuant to Article 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, a group of at least 17 senators has the right to apply for the annulment of the Act or its individual provisions. A group of 26 senators made this proposal. In accordance with Article 64 (5) of the Law on the Constitutional Court, as amended by Act No. 320 / 2002 Coll., it also attached to it a signature document to which each of them individually confirmed that it was attached to the application. The applicant therefore fulfils the condition of active legitimacy.
24. The proposal contains all the legal requirements required and is admissible within the meaning of Section 66 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll. At the same time, there are no grounds to terminate the procedure under Paragraph 67 of the same Law.
Constitutional conformity of the legislative process
25. Pursuant to Article 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court, in addition to assessing the compliance of the contested provision with the constitutional order, ascertains whether the law has been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure.
26. Given that the appellant did not object to the fault of the legislative process or to the overrun of Parliament's constitutional competence, it is not necessary to examine this issue further in the light of the principles of the process economy, in addition to taking into account the observations submitted by the Chamber of Deputies and the Senate, to verify the progress of the legislative process from a publicly available source of information to https: / / www.psp.cz.
27. If the appellant argued that both laws had been discussed and adopted for a substantial part in an emergency situation, where the possibility of participating in the proceedings of legal bodies and legal entities representing their interests was made more difficult by the appellant, since they had primarily devoted their capacity to mitigating the consequences of the Covid-19 pandemic, which also applies to the possibility of the public and interest associations to participate in the deliberations of legal proposals, the Constitutional Court finds that the appellant itself admits that, for example, the Association of Local Government of the Czech Republic, which represents a third of all municipalities and cities in the Czech Republic, has applied a number of complaints to the proposals. In its comments on the proposal, the Government also stated that the proposed options of the solution were repeatedly discussed with representatives of the Association of Local Government of the Czech Republic and the Association of Cities and Municipality of the Czech Republic and the Association of Regions of the Czech Republic, the draft law took place on 14. 2. 2. - 14. 3. 2019 in which the interest associations of local authorities and individual regions applied their comments.
Abandonment of oral proceedings
28. In accordance with Article 44 of the Law on the Constitutional Court, the Constitutional Court decided on a case without oral hearing, as it could not be expected to further clarify the case.
Meritorious review of the proposal
General considerations
29. Article 8 of the Constitution guarantees the self-administration of territorial units. Article 99 of the Constitution provides that the Czech Republic is to be divided into municipalities which are basic local authorities and regions which are higher local authorities. These are public-law corporations that are gifted with legal personality. According to Article 100 (1) of the first Constitution, territorial authorities are the territorial communities of citizens who have the right to self-administration. Territorial Authority is thus defined in the provision cited as a constitutionally guaranteed law, the content of which is further defined in Act No. 128 / 2000 Coll. and in Act No. 129 / 2000 Coll. The basic features of self-administration are the administration of own affairs, the creation of own self-governing bodies, the power to issue individual acts and legislation within the framework of the self-governing competence and, finally, to own the property, to have its own budget and to manage itself (Articles 101 to 104 of the Constitution). From the authorities of the municipality, the Constitution regulates only the council, which the municipality separately manages (Article 101 (1)), other derived bodies are regulated only at the level of the law, leaving their creation in the hands of the legislator. Article 101 (1) and (2) of the Constitution refers to the representative bodies as bodies which are engaged in the general exercise of self-government. This provision is followed by the regulation of the powers of the councils contained in Act No. 128 / 2000 Coll., in Act No. 129 / 2000 Coll. and in Act No. 131 / 2000 Coll. The ability of the State to intervene in the activities of local and local authorities is limited by Article 101 (4) of the Constitution, which allows such intervention only if the protection of the law so requires, and only in the manner laid down by the law.
30. Article 104 (3) of the Constitution, which empowers the representatives within the limits of its competence to issue generally binding regulations, shall be applicable to the assessment of compliance with the draft provisions with the Constitution. The representative body exercises this power at meetings which are public by law (§ 93 (3) of Act No. 128 / 2000 Coll., § 42 (1) of Act No. 129 / 2000 Coll. and § 60 (4) of the Act No. 131 / 2000 Coll.), the representative body is able to decide if an absolute majority of its members are present, the consent of the majority of all members of the council (§ 87 of the Act No. 128 / 2000 Coll. and § 40 (2) of Act No. 129 / 2000 Coll.) is required to approve the proposal for the adoption of a generally binding decree.
31. The Act on Municipality also lays down the conditions for the entry into force of the municipal law, namely in § 12 (1), under which generally binding orders and orders of the municipality must be declared, which is a condition for the validity of the municipal law. The declaration shall be made by posting the municipal legislation on the official plate of the municipal office for 15 days. The date of publication of the municipal legislation is the first day of its hanging on the official plate. In addition, the municipality may publish the municipal legislation in the usual manner. The general binding decree of the county and the order of the county take effect on the date of the publication in the Regional Legislation Bulletin (Section 8 (2) of the Regional Law), the publication of the law of the City of Prague by publication in the Collection of Legislation of the City of Prague (Section 45 (2) of the Law on the City of Prague), in exceptional cases, the law of the City of Prague can be declared by hanging on the official plate of the City of Prague and on the official boards of the offices of the urban areas concerned.
32. As already mentioned, the municipal legislation is announced on the official plate of the municipal office for 15 days. The original of a general binding decree, together with the signatures of the mayor and vice-mayor, is being posted. The first day of hanging may not be earlier than the date of approval of the legislation by the competent authority of the municipality. The municipality may also publish the legislation in the usual manner, but this no longer affects the legal effects of the publication. The municipal authority is to ensure that the legislation is posted on the official plate without undue delay after its approval. The official plate must be continuously open to the public (Section 26 (1) of Act No. 500 / 2004 Coll., Administrative Regulations), as a rule on the building of the municipal office, the documents on which it is to be protected against normal damage. The date of suspension and the date of removal of the document shall be recorded on the documents posted. The content of the official plate shall also be published in a way that allows remote access. As a general rule, the Municipal Office shall fulfil this obligation by setting up websites on which it makes the content of an official record available. It may also act in accordance with Paragraph 26 (3) of the Administrative Regulation, i.e. conclude a public contract on the publication of the content of an official plate in a manner that allows long-distance access to the municipality with extended scope in which it has its registered office. The content of documents published on an electronic official record is always the responsibility of the municipality whose official record is concerned, even if another body carries out the service. Even after the general binding decree has been removed from the official record and its entry into force, its text must be published in a way that allows remote access (on the website), on the basis of § 5 (2) and (4) of Act No. 106 / 1999 Coll. If the legislation does not directly mention the provisions on effectiveness, the municipal legislation shall become effective pursuant to Paragraph 12 (2) of the Act on Municipality on the 15th day following the date of publication. Where an urgent general interest so requires, an earlier start of effectiveness may exceptionally be established, but first on the date of publication. The general binding decree may be amended or repealed only by another general binding decree; in cases of unlawful general binding orders they may be annulled by a decision of the Constitutional Court.
33. Supervision of the issue and content of generally binding municipal decrees is exercised by the Act No. 128 / 2000 Coll. Ministry of Interior, through the Department of Public Administration, Supervision and Control. According to Section 12 (6) of the Municipality Act, municipalities are required to send a general binding decree to the Ministry of the Interior immediately after the date of its publication, i.e. its hanging on the official plate of the municipal office. According to § 17 (1) of Act No. 300 / 2008 Coll., on electronic acts and authorized conversion of documents, the municipality is obliged to send generally binding decrees to the Ministry of the Interior through a data box. General binding regulations shall be sent with an indication of their hanging on the official plate, including the signature of the mayor and the deputy mayor by hand. The Ministry of the Interior shall assess the compliance of the generally binding decree with the law and draw up its legal analysis. In the event that the Ministry of the Interior finds a contradiction of a generally binding decree with the law, the municipality concerned shall ask for redress and provide it with the necessary methodological assistance for this purpose. If the municipality is not willing to make a correction, the Ministry of the Interior shall apply repressive supervisory measures pursuant to Section 123 of Act No. 128 / 2000 Coll., i.e. first officially invites the municipality to remedy. If the municipality fails to remedy it within a legal 60-day period, the Ministry of the Interior shall initiate administrative proceedings which result in the suspension of the validity of a generally binding decree (or only some of its provisions) and the subsequent application for its annulment (or only some of its provisions) to the Constitutional Court. If a generally binding decree is in clear conflict with human rights and fundamental freedoms, the Ministry of the Interior may suspend its effectiveness without a prior call for redress. If the municipality does not agree with the statement of the Ministry of the Interior that a general binding decree is contrary to the law, it may, contrary to its decision to suspend its effectiveness, give the Minister of the Interior a breakdown. Whether a specific generally binding decree is contrary to the law is binding only by the Constitutional Court, the Ministry of the Interior merely suspends its effectiveness (by analogy, § 81 of Act No. 129 / 2000 Coll. and § 106 of Act No. 131 / 2000 Coll.).
34. The Constitutional Court, with respect to the principle of the rule of law enshrined in Article 1 (1) of the Constitution, interpreted the general framework of the constitutional limits of State intervention in the territorial government in the decision of 30.9.2002 sp. zn. IV. ÚS 331 / 02 (N 113 / 27 of the SbNU 245), so that the requirement to protect the law pursuant to Article 101 (4) of the Constitution, namely the possibility of the State intervening in the exercise of the territorial authority, must be interpreted very strictly, as it is a constitutional exemption involving the constitutional guarantee of the right to self-government. In other words, when assessing the legality of such intervention, the relevant law cannot be interpreted extensively, even if such an interpretation is logical, effective and reasonable. According to the Constitutional Court, the State's intervention in the constitutionally guaranteed right to self-government can only be allowed in a situation where the violation of the Law of the Territorial Authority is imported in total by subsumption under the legal standard laid down by secundum et intra, not by the praeter legem.
35. In the finding of 7.9.2011 sp. zn. The Constitution itself does not directly mention the specific areas in which the right to territorial self-government can be implemented and entrusts the determination of the details of the law in accordance with Article 104 (1) of the Constitution (such as Article 10 of the municipal constitution), but this does not mean that the constitutional guarantee of the right to local self-government is formally exhausted only by the provision of a reservation of the law. The constitutional guarantee of the right to territorial autonomy undoubtedly has a material aspect; the implementing act cannot defuse or de facto eliminate the content of the constitutionally guaranteed right to territorial self-government '. In the decision of 22.5.2007 sp. zn. The Constitutional Court, thus in its cited finding, of 6 May 2013 sp. zn.
36. The explanatory memorandum referred to by the Government states that a new public administration information system is being developed, entitled "Collection of legislation of local and local authorities'. It will enact the legislation of local and local authorities (generally binding regulations and regulations issued by municipalities, county and capital of Prague) and the legislation issued by administrative authorities, provided that this is provided for in a special law. The new rules for the publication of the legislation of local and local authorities, which are still contained in the Act on Municipality, the Act on Regions and the Law on the Capital City of Prague, are thus laid down. The legislation of administrative offices not declared in the Collection of Laws will be published in the Collection of Laws according to the proposed regulation, thereby integrating it into a comprehensive database of acts relating to the activities of public authorities and strengthening the legal certainty of their addressees. The newly established information system will also serve to publish acts which arise in the exercise of the powers of the local authorities or in the context of this exercise listed in Section 8 of Act No. 35 / 2021 Coll.
37. The appellant, for the reasons set out in the proposal described above, requests the exclusion of generally binding municipal decrees from the scope of Act No. 35 / 2021 Coll. (application for annulment of Section 1 (1) of Act No. 35 / 2021 Coll. in the words "general binding decree"). The appellant does not dispute the importance of the availability of legislation to its addressees, but considers that it is sufficient in this respect to the existing legislation which obliges territorial authorities to send generally binding regulations and regulations to the competent supervisory authorities (§ 12 (6) of the Municipality Act, § 8 (9) of the Regional Law and § 45 (12) of the Prague Capital Act).
38. On the other hand, the Government argues that, although territorial authorities have a legal obligation to publish all their legislation issued in a way that allows remote access, in practice this legal obligation is not always fulfilled, as a result of which there is a significant restriction on the possibility for addressees to know their content (except for the possibility of consulting the competent authority of the local authorities or the Ministry of Interior), which weakens the legal certainty of the addressees of the legislation.
Application of the general bases of the constitutional review to the contested provisions
39. On the basis of those provisions of the constitutional order and the legal views expressed in its relevant findings, the Constitutional Court reached the following conclusions in an abstract check of the constitutionality of the contested provisions.
40. It is clear from the text of the proposal that its focus is primarily not to disagree with the appellants with the compulsory declaration of general binding decrees in the Collection of Legislation [Paragraph 1 (1) (a) of Act No. 35 / 2021 Coll.], but above all that Article 4 (1), in conjunction with Article 2 (1) thereof, makes the acquisition of their validity subject to publication in the Collection of Legislation. This is also related to the rejection of the concept that the legislation of the local authorities and the administrative authorities issued before the entry into force of this Act will cease to be in force within three years (from the date of entry into force of this Act) unless they are published in the Collection of Legislation by that date (Section 9 (3) of Act No. 35 / 2021 Coll.).
41. The Constitutional Court, in its case-law, admits to the generally binding decrees the nature of the original standards for which municipalities are authorised directly at the level of the Constitution and do not need further explicit powers by law [e.g. the finding of 22.3.2005 sp. zn. Pl. ÚS 63 / 04 (N 61 / 36 SbNU 663; 210 / 2005 Coll.) or the finding of 13.9.2006 sp. zn. Pl. ÚS 57 / 05 (N 160 / 42 SbNU 317; 486 / 2006 Coll.)]. The power to legislate is therefore under the protection of the Constitution, whereas the actual content of that power is fulfilled by law (Section 10 of Act No. 128 / 2000 Coll., which defines the scope in which the municipality may impose obligations by a generally binding decree). The generally binding regulations are adopted, as is apparent from Article 104 (3) of the Constitution, the council of the municipality, this activity is reserved for the representatives and cannot be carried out by other authorities of the municipality. In this legal situation, Act No. 35 / 2021 Coll. did not change anything, only the provisions of the Act on municipalities, the Act on counties and the Law on the Capital City of Prague were affected, laying down the conditions for the entry into force and effectiveness of the legislation of the municipality, county and capital city of Prague. In contrast to the present state, when the law was declared on the official board of the municipal office, in the Regional Legislation Bulletin or in the Collection of Legislation of the City of Prague, the legislation of the local authority and the administration is published in the Collection of Legislation under Act No. 35 / 2021 Coll. It is therefore a matter of setting up a new process, or a form, such as the content of the regulations concerned by their addressees. In the right of the local authority to issue or not to issue legislation, to decide on its content and the manner in which it is to be adopted, the proposed legislation, except for the contested provision of Paragraph 9 (3) of Law No 35 / 2021 Coll. is not affected (see Sub-51). The newly regulated declaration of legislation by publication in the Collection of Legislation will be carried out by the territorial body or administrative office which issued the legislation by sending its text (in an open and machine-readable format) and its metadata by means of an electronic form to the data box set up by the administrator for this purpose (§ 2 (2) of Act No. 35 / 2021 Coll.). The described procedure therefore replaces, de facto, the existing obligation for the municipality to send the legislation declared to the supervisory authority, as has so far been the case by means of a data box. It follows from the above that the legislation contained in Sections 1 (1) and 2 (1) of Law No 35 / 2021 Coll. did not interfere with the law of the local authorities on the self-administration pursuant to Article 100 (1) of the Constitution or the law of their councils to issue generally binding regulations within the limits of their scope.
42. This also applies to the application for annulment of § 1 paragraph 2 of Act No. 35 / 2021 Coll., according to which the Ministry of Interior is the administrator of the Collection of Legislation. The appellant considers the fact that the announcement of general binding decrees in the Collection of Legislation is entrusted to the Ministry of the Interior to be problematic, as the Ministry of the Interior is simultaneously a supervisory authority in relation to the local authorities, which could abuse its powers towards them.
43. However, it does not appear from the content of Paragraph 1 (2) and the related provisions of Act No. 35 / 2021 Coll., that the Administrator of the Collection of Legislation could interfere with the publication process when they are published by delivery to the data box of the administrator. It is therefore not clear how the Ministry of the Interior could abuse its status as administrator of the Collection of Legislation. The already effective legislation entrusts the exercise of control and supervision in the area of self-government to the Ministry of the Interior, with specific methods of intervention varying depending on whether supervision is exercised over the legislative activities of the councils (adoption of generally binding decrees) or other resolutions and measures taken in the exercise of self-administration. However, the basic principle is that only their legality or, where appropriate, constitutionality is examined in the supervisory framework, as described in paragraph 33 above. The Ministry of the Interior is entitled only to the establishment, i.e. the postponement of the effectiveness of these acts, the final decision is entrusted to the Constitutional Court when it comes to checking the legality and constitutionality of legislation.
44. In its observations on the proposal, the Government states that the Ministry of the Interior, in its supervisory activities carried out on the basis of § 123 et seq. of Act No. 128 / 2000 Coll., has long been in contact with the fact that municipalities do not publish on their website the current wording of the general binding regulations in force or do not publish them at all. The Government admits that these errors are not systematically recorded by the Ministry of the Interior, as opposed to the failure to fulfil the obligation of the municipality to send to the Ministry of the Interior a general binding decree, where the breach of this obligation was recorded in 28% of the municipalities audited in 2013-2020. The appellant, in a situation in which the Government points to that defect, insists on the government's obligation to document in detail how serious and frequent the problem of not publishing self-governing legislation on the relevant website. In the proposal and in particular in the reply, the appellant asks whether the cause is not yet the formal nature of the municipality's obligation to send the declared legislation to the Ministry of the Interior, which was clearly reflected in the approach of the administration to the fulfilment of that obligation and could have been a reason for the self-government's doubts about its relevance. According to the appellant, if that obligation had become practical, it would have been possible to expect a change in the position of the authorities.
45. The Constitutional Court is aware of its conclusions reached in the finding of 13.8.2002 sp. zn. ÚS 1 / 02 (N 104 / 27 CollNU 167, 404 / 2002 Coll.), in which it concluded that supervisory measures against self-government should be predictable, based on clear and identifiable reasons, and the supervisory authorities should, in their supervisory activities, maintain the principle of equality between individual territorial units. However, the cross-compliance of the legislation of the local authorities with their publication in the Collection of Laws cannot be regarded as a penalty of its kind by the Ministry of the Interior, as the applicant does, but is a construction designed to ensure that all the legislation in force in the Collection of Laws is in place.
46. The Constitutional Court considers that the Government has sufficiently substantiated its assertions that municipalities do not always properly publish data and documents in accordance with § 5 (4) of Act No. 106 / 1999 Coll. in a manner that allows remote access and that municipalities do not properly send general binding orders to the Ministry of the Interior in accordance with § 12 (6) of the Act on Municipality. It must not be forgotten that publications (not only the legislation of the local authorities) have a purely practical justification: knowledge of the right of its addressees [ignorant iuris non excusat, cf. also the finding of 17.12.1997 sp. zn. Otherwise, it is difficult to justify the requirement of compliance or to impose penalties for infringements. While the appellant can be attested that the Government has not indicated the number of municipalities in the event of failure to publish legislation issued within their scope in a way that allows remote access, this is in no way essential for the alleged government's intention, expressed in the explanatory report to Act No. 35 / 2021 Coll., that is to say the intention to create a publicly and freely accessible electronic information system (central database) in which the content of generally binding regulations and regulations of all local authorities in the Czech Republic as well as the legislation of certain administrative bodies not published in the Collection of Laws can be sought out. The Constitutional Court agrees with the Government that this objective would not be achieved if the sending of the legislation would be left to the "voluntary 'of the local authorities, as has been the case so far, when the entry into force of the legislation is not bound by the obligation of the municipality to send it to the Ministry of the Interior. In contrast to the non-compliance with the obligation to publish the legislation in the municipality's website, which the government did not provide with specific data, the failure of the municipality to send the legislation in question immediately after the date of their publication to the Ministry of Interior, the Government specified the number of infringements detected in each year.
47. It is therefore clear, as the Government stated in its observations, that the newly established moment of the entry into force of the legislation of the local authority and of the administrative authority is an acceptable legislative instrument to achieve the primary objective pursued, which is the knowledge of the applicable and effective law. On the contrary, the appellant's claim that it was a "sparrow cannon ', as the government had a whole range of instruments to achieve that objective, cannot be attested by the Constitutional Court or accepted by its claim that the Ministry of the Interior would already have a comprehensive set of all municipalities issued legislation if municipalities were convinced of the relevance of that legal obligation. The fact that certain municipalities do not comply properly with their legal obligation laid down in Article 12 (6) of the Municipality Act cannot be used as an argument for the assertion that the performance of that obligation by the Ministry of the Interior would be consistently enforced and sanctioned, it would not be necessary to make the legislation of the local authority subject to the condition of the law by publication in the Collection of Legislation. It is merely a speculative assertion by the appellant that does not push her argument to constitutional law. This also applies to its conclusion that, if the failure of municipalities to fulfil their obligations to send the legislation they have declared to supervisory authorities is a serious problem, the administration should have responded to it earlier.
48. The appellant and the Government point to the finding of 12 April 2016 sp. zn. I. ÚS 2315 / 15 (N 64 / 81 SbNU 99) in which the Constitutional Court stated that effective legislation... "reduces the chance that a court on its own initiative applies the law of the municipality or county, and the search for such legislation - particularly municipal, not published on the Internet - is associated with greater practical difficulties for the courts. These facts place greater demands on the parties and their representatives, who - in order to increase their prospects for success - usually have to actively argue with these regulations themselves. In conclusion, the Constitutional Court notes that these difficulties would have been removed if all the municipal and regional legislation had been published on the Internet or had been centrally made available - the municipal and regional legislation had already been collected by regional authorities and the Ministry of the Interior or other relevant central administration [cf. § 12 (6) of the Municipality Act, § 8 (9) of the County Act and § 45 (12) of the City of Prague]." In the explanatory memorandum, the Government interprets the conclusions of the finding cited by the Constitutional Court as referring to the possibility of recognising and applying the legal standards of the local authorities of the absence of an information platform in which all the legislation of the local authorities would be centrally collected and published in a way that allows remote access. On the contrary, the appellant points out that the Constitutional Court has provided a clear indication of how, while ensuring the availability of the rules of self-government, effective legislation already requires the local authorities to send the relevant legislation to supervisory authorities.
49. The Constitutional Court notes that, in the cited finding of preamble considerations, it was aimed at creating a centrally accessible database of municipal or regional legislation, in the interest of the courts and parties to proceedings for which it is difficult to seek such legislation for now in force and effective legislation. However, it does not appear from the findings of the finding that the Constitutional Court referred to the fact that municipal and regional legislation is already being collected by regional authorities and by the Ministry of Interior or other competent central administration, it should in itself resolve these problems, on the contrary it is clear from the statement of reasons for the finding that the legislation thus collected could be the basis for the creation of that database. The question of the date of entry into force of the legislation so published was not addressed by the Constitutional Court, but undoubtedly meant a complete database, not dependent on the mere willingness, or the real ability of municipalities and regions to fulfil their legal obligation and send legislation to the supervisory authority.
50. When the appellant refers in her reply to the mere formal nature of the obligation laid down in Article 12 (6) of the Municipality Act, it is not clear what the formality in its mind means, nor how it would have imagined the streamlining of the current mechanism for the transmission of declared legislation to supervisory authorities. This also relates to the question of administrative complexity, which is viewed by the appellant in the light of the possible negative consequences of the failure to fulfil the obligation in question. In other words, according to the appellant, there will be a situation where, in an attempt to avert the serious impact that is imminent in the event of non-compliance with their obligations, they will take "preventive measures', which will lead to an increase in administrative complexity. The Constitutional Court notes that even the administrative burden which the appellant considers should be incurred in this way cannot be an argument that the obligation of municipalities to send general binding regulations to the data box of the Administrator of the Collection under the penalty of their invalidity has been found to interfere with the right of the Councils to issue generally binding decrees (Article 104 (3) of the Constitution), all the more so as to replace the previous obligation of the municipality to send a general binding decree immediately after the date of its publication to the Ministry of the Interior.
51. The requirement for the completeness of the newly created Collection of laws implies the need to supplement it with the legislation already adopted by the existing and effective legislation of the Authority (Section 9 (1) and (3) of Act No. 35 / 2021 Coll.). The appellant considers that this is to be done under the penalty of the expiry of the legislation concerned by the expiry of a period of three years from the date of entry into force of this law as an invasive interference with the law of the local authorities. However, although the appellant may appear to be subject to a flat-rate "automatic" expiry due to the existing legislation on the legislation which has been declared eligible to intervene in the law guaranteed by Article 104 (3) of the Constitution, it must be considered essential that the territorial authorities and authorities have a period of three years to publish the legislation which they have issued in the Collection of Legislation, i.e. up to 1 January 2025. In so doing, the appellant's argument cannot be upheld that the representatives of the municipalities or the addressees of the legislation need not be aware of the obligation or its consequences. The authorities of the municipalities or officials of the municipal and regional authorities are undoubtedly aware of the legislation relating to their activities, not to mention the methodological assistance provided by the Ministry of the Interior to the municipalities.
52. If the addressees of the legislation are not changed, the legislation published before the entry into force of Act No. 35 / 2021 Coll. will be available on the municipal website and will be published in the Collection of Legislation no later than three years after the date of entry into force of the law. If this is not the case, the legislation will expire, as will all newly adopted legislation, which will not be published in the Collection of Legislation. Only then will the requirement arising from the concept of a rule of law pursuant to Article 1 (1) of the Constitution, under which the entity of the law can count on (since 1.1.2025) that everything in the Collection of Laws captures the status of law with territorial scope. If the municipality does not respect the requirement to acquaint everyone in this legal manner with its legislation, then it will go against the requirement of access to the law. The Constitutional Court concludes that compliance with this requirement is not linked to arbitrary or arbitrary requirements in terms of time and the manner in which they are met, but, on the contrary, there is a sufficient period of time by law to fulfil this obligation imposed on municipalities as public bodies (Article 101 (3) of the Constitution). This will achieve the intended objective of publishing all the legislation in force in the local authorities in a coherent manner in the Collection of Legislation. The fact that only in the Collection of Legislation published will be part of the law in force will undoubtedly be made known to the public; moreover, the principle that it does not excuse ignorance of the law cannot be ignored.
53. If the appellant criticises the implementation of the proportionality test, as carried out by the Government, the Constitutional Court notes that the contested legislation does not in any way restrict territorial authorities as public bodies under Article 101 (3) of the Constitution in the process of their standardisation. The constitutional bases of the right to self-administration are preserved and aligned with the possibilities of making legislation available. Their publication in the newly created Legislative Collection merely pursues the objective of collecting a set of existing legislation in one public accessible place. Therefore, by publishing it in the Collection of Legislation, it does not constitute an interference with the principle of the rule of law under Article 1 (1) of the Constitution.
54. Nor does the appellant's reference to foreign legislation concerning the publication of legislation (Slovak Republic, Austrian Republic, Federal Republic of Germany, Polish Republic and Kingdom of Spain) change the above. The different means of publication of the legislation of territorial authorities in itself does not constitute a relevant reason for establishing the unconstitutional nature of the contested provisions, nor does the appellant, in addition to referring to a "departure from the principles', point out any other reason. That is the fact that the contested legislation is not even contrary to Article 4 (4) of the European Charter of Local Government (Notice of the Ministry of Foreign Affairs No. 181 / 1999 Coll.), which does not provide for the publication of the legislation of the local authorities and according to which the central or regional authority may intervene in the competence granted by the local community or restrict it, only if the law so provides.
Conclusion
55. For all these reasons, the Constitutional Court found no reason to repeal the contested legal provisions because they do not lead - contrary to the rule of law under Article 1 (1) of the Constitution - to a breach of the constitutionally protected fundamental rights guaranteed in Articles 8 or 100 (1) and 104 (3) of the Constitution. The Constitutional Court therefore, pursuant to § 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, the application for the annulment of Section 1 (1) (a) in the words "general binding decree and" and § 2 (1), § 4 (1) and § 9 (3) of Act No. 35 / 2021 Coll., § 12 of Act No. 128 / 2000 Coll., § 8 of Act No. 129 / 2000 Coll. and § 45 of Act No. 131 / 2000 Coll. was rejected.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No 5 / 2022 Coll., on the application for annulment of certain provisions of Act No. 35 / 2021 Coll., on the Collection of Laws of Local Government Entities and Certain Administrative Offices, Section 12 of Act No. 128 / 2000 Coll., on Municipality (Municipal Establishment), as amended, Section 8 of Act No. 129 / 2000 Coll., on Regions (Regional Establishment), as amended, and Section 45 of Act No. 131 / 2000 Coll., on the City of Prague, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 19.01.2022 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
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