The Constitutional Court found no 528 / 2002 Coll.
The Constitutional Court found of 20 November 2002 on the application for annulment of Article 10 of Act No. 526 / 1990 Coll., on Prices, and for the cancellation of the area of the Ministry of Finance No. 06 / 2002 setting out the maximum rental from the apartment, the maximum price of the services provided with the use of the apartment and the rules for the actuarial rent in the apartment and amending the area of the Ministry of Finance No. 01 / 2002 and the cancellation of items No 5 and No 6 of Part I of Section A and heading No 9 of Part II of the area of the Ministry of Finance No. 01 / 2002 issuing a list of goods with regulated prices
Valid
The Constitutional Tribunal found
Text versions:
18.12.2002
528
FIND
The Constitutional Court
On behalf of the Czech Republic
On 20 November 2002, the Constitutional Court decided in plenary on the proposal of a group of senators of the Senate of the Parliament of the Czech Republic to abolish Article 10 of Act No. 526 / 1990 Coll., on prices, and on the cancellation of the Exposition of the Ministry of Finance No. 06 / 2002, setting out the maximum rent from the apartment, the maximum price of the services provided with the use of the apartment and the rule on the factually adjusted rent in the apartment and amending the Exposition of the Ministry of Finance No. 01 / 2002, and on the proposal of the Ombudsman JUDr. Otakara Motál to cancel items 5 and 6 of Section I. A and item No. 9 of Part II of the Exposition of the Ministry of Finance No. 01 / 2002, issuing a list of goods with regulated prices,
as follows:
The proposal to repeal Article 10 of Act No. 526 / 1990 Coll., on Prices, is rejected.
The measurement of MF No 06 / 2002 fixing the maximum rent from the flat, the maximum price of the services provided with the use of the flat and the rules for the factually adjusted rent in the flat and amending the area of MF No 01 / 2002 shall be deleted.
The procedure for the application for annulment of the provisions of item 5 and item 6 of Part I of Section A and item 9 of Part II of the MF issue list of goods with regulated prices shall be terminated.
Reasons
On 4 March 2002, the Constitutional Court received an application from the Ombudsman to abolish the provisions of item 5 (Hire of an apartment), item 6 (Services provided with the use of an apartment) of Section I (A) and item 9 (Hire of an apartment other than that referred to in item 5 (I) and item 10 (II) of this notice) of Part II of issue of a list of goods with regulated prices ("measure No 01 / 2002 '). This notice was issued on 28 November 2001, published in the Price Bulletin on 5 December 2001 and became effective on 1 January 2002.
The Ombudsman justified his proposal in such a way that measure No 01 / 2002 was issued on the basis of § 10 of Act No. 526 / 1990 Coll., on Prices. In his view, this provision empowers the price authorities to include goods for which price regulation is applied in the form of an officially fixed price pursuant to § 5 and in-kind price guidance pursuant to § 6 of the Price Law in the list of goods with regulated prices and to publish that list in the Price Bulletin. The scope of the Ministry of Finance in the field of price regulation is given by § 2 of Act No. 265 / 1991 Coll., on the competence of the authorities of the Czech Republic in the field of prices, as amended, according to which the Ministry of Finance issues laws for regulation and negotiation of prices, the determination of disproportionate economic benefits and unjustified property benefits in connection with price violations, price records, provision of price information, price control.
The Ombudsman proposed in Section I A measure No 01 / 2002 (list of goods to which the official prices apply) shall cancel item No 5, where point 1 provides that, from 1 January 2002 to 30 June 2002, the maximum monthly rent in an apartment, including an apartment in a family house, in which, on 31 December 2001, the rent was regulated by the maximum price in accordance with Decree No. 176 / 1993 Coll., on rent from an apartment and payment for the supply provided with the use of the apartment, as amended, hereinafter referred to as "the rental order ', the rent in force on 31 December 2001, with any adjustments in accordance with points 5 to 7. Point 2 of Lot No 5 provides for a new method of calculating the maximum price officially fixed, with effect from 1 July 2002.
He also proposed to cancel Part I A measure No 01 / 2002, item 6, under point 1 of which the prices for services provided with the use of an apartment, which also included services which, at 31 December 2001, were subject to the regulation of the prices of services provided with the use of an apartment under the rental order, may be negotiated between the supplier of the service and the lessor or, for services provided directly by the lessor, at a maximum of the amount specified by the decision of the price authority or up to the price prevailing at the point and time, unless the price of the service is regulated by the decision of the price authority.
Finally, it proposed cancelling item 9 in Part II of the notice No 01 / 2002 (list of goods for which factually adjusted prices apply), which also includes the rent of an apartment in addition to the rental of apartments for which the rent is regulated under item No 5 of Part I and item No 10 of Part II of the notice. The rent entered into in rental contracts concluded until 31 December 2001 for apartments whose construction or completion was authorised after 30 June 1993 and whose financing involved public funds shall not be altered under this provision.
According to the Ombudsman, Exposition No 01 / 2002 is, from a formal legal point of view, a legal provision and shows the attributes of a legislative act both from formal (method of adoption, publication, validity and effectiveness) and mainly from content (regulatory, general legal obligation). It refers to the conclusions of the Constitutional Court according to which the classification of the sources of the right must be based on the material concept of the rule of law, as well as the case law of the European Court of Human Rights (e.g. the decision of Spacek, s. r. o., v. Czech Republic), according to which the concept of law must be understood in a material and not in a formal sense. The rent regulation, according to the appellant, is such a significant interference in the legal status of owners of flats and tenants that it cannot be regulated by a price scale, whether by its nature it is an act of law or a source of law. In this context he referred to Article 79 (3) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and stated that the legal delegation in § 2 (2) of Act No. 265 / 1991 Coll., as amended, is too general to specify the way and form of price regulation. Paragraph 10 of the Price Act then provides for a decision as a form. In view of the importance and content of such regulation, the rules governing rent in the form of a price notice, according to the Ombudsman, are contrary to Article 79 (3) of the Constitution when the price notice fulfils the characteristics of a legal provision in a material but not formal sense. This contradiction of content and form cannot be removed by interpretation. The process of the Ministry of Finance is therefore unconstitutional and contradicts the fundamental principles of the democratic rule of law. In addition, the law in the form of a rental order, repealed by the Constitutional Court by the decision No 231 / 2000 Coll., and further the approximate carry-over of its content, but now already in the form of a price notice, and not in the form of a decree, is being prolongated by the definition No 01 / 2002. The grace period for the adoption of the new legislation until 31 December 2001 has not been used and the unconstitutional state described in that finding remains. In this context, he drew attention to Article 11 of the International Covenant on Economic, Social and Cultural Rights, which regulates the right to an adequate standard of living, including equal access to housing. Although this provision has an approximation character (Article 2 (1) of the Pact), the State is nevertheless obliged to ensure equal access to the exercise of this right and not to create an unjustified difference between the different owners of the defined categories of flats, as well as their tenants. The Ombudsman also considers that this form of regulation is unconstitutional. The rent regulation does not act on an address but on a flat-rate and flat-rate basis, so that it does not distinguish between the increased social and economic protection of the tenant at all. This also calls into question the purpose of maintaining social reconciliation as a general social interest when the principle of proportionality, which, as a basic rule, constitutes the provision of protection to those who do not have the means to pay rent, is violated. The result of such regulation is the parallel existence of artificially maintained different rental levels and resulting unequal conditions in access to rental housing. Similarly, the housing market is distorted where there is demand for rent-controlled dwellings, the nature of which shows that such flats can only be subject to the black market. This also disproportionately increases the rent on the free housing market, which is also a sign of unequal access to rental housing.
The Ombudsman also drew attention to the possible inconstitutionality of Section 10 of the Price Act, noting that it was not, however, justified on the proposal.
On 3 April 2002, the Constitutional Court received a motion from a group of 18 Senators, headed by Robert Kolář and Michael Žantovský, to abolish Exposition No 01 / 2002 in the "rental of the apartment 'section, that is to say the part previously challenged by the Ombudsman's proposal of 4 March 2002. Furthermore, the submission contained a proposal to repeal Section 10 of the Price Act.
On this proposal led under sp. zn. Pl. ÚS 10 / 02 The Constitutional Court, by order of the First Chamber No. Pl. ÚS 10 / 02- 13 of 15 May 2002, decided that, in the part in which the provisions of headings No 5 and No 6 of Part I of Section A and No 9 of Part II of the Exposition No 01 / 2002 are to be repealed, the application is rejected for inadmissibility. At the same time, it was decided that a group of Senators had the right to take part in the proceedings in Pl. ÚS 8 / 02 as an intervener pursuant to § 35 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court. Furthermore, by order No Pl. ÚS 8 / 02, Pl. ÚS 10 / 02- 16 of 28 May 2002, the Constitutional Court decided to bring the two cases to the joint proceedings and provided that this procedure would continue to be conducted under the sp. above ÚS 8 / 02.
The group of Senators combined in its proposal the argument on the non-constitutionality of both measure 01 / 2002 and Section 10 of the Price Act, with the objections to the constitutionality of the measure being essentially identical to the earlier argument of the Ombudsman sub I. A. Specifically, it states that Exposition 01 / 2002 refers, from the point of view of formal, to the empowering provision of Article 10 of Act No 526 / 1990 Coll., under which it is issued. In accordance with the provisions of § 1 (6) of Act No. 526 / 1990 Coll., as amended, price formation can only be directed when the market is threatened by the effects of the restriction on competition or this requires an exceptional market situation. However, none of these conditions was fulfilled. This is also demonstrated by the results of the 2001 census, houses and flats, according to which there are more than 500000 flats in the Czech Republic, where no one is reported permanently. The situation of rental housing in the Czech Republic does not show signs of a sudden exceptional market situation, it is constant in the long term and only reflects the conceptually unmodified and unresolved housing and social situation since the early 1990s. In view of the accepted principles of the rule of law, the State is only entitled to do what is entrusted to it by law. In the case of unjustified and unjustifiable regulation of the maximum monthly rent by means of price scale No 01 / 2002, the Ministry of Finance, according to the applicants, committed infringement of Articles 2 (2) and 4 (2) and (4) of the Charter of Fundamental Rights and Freedoms ("the Charter '). The protection of the freedom of the contractual will, which is a derivative of the constitutional protection of property rights pursuant to Article 11 (1) of the Charter, is also a necessary part of the democratic rule of law. Therefore, price regulation is an exceptional and acceptable measure only under strictly limited conditions respecting the structure of the regulated price, which includes both legitimate costs and reasonable (normal) profit comparable to the interest rate of long-term deposits. According to the Civil Code, the rent is mainly paid for the temporary transfer of the apartment to the lessee, taking into account the value of the apartment. Price regulation should always be enshrined in a subsidiary position, i.e. only in the absence of agreement between the Parties. The current rent regulation is unfair, because paradoxically, it provides the largest subsidies to the best-living households at the expense of the socially weak, especially young families, creating conditions for the creation of an illegal housing market and rental rights, increasing regional unemployment and causing, rather than resolving, a housing crisis.
In the view of the group of Senators and the anti-constitutional, the definition of the empowering provision of Section 10 of the Price Act is already questionable. The definition of rights and obligations on the basis of the statutory delegation contained in Section 10 of the Price Act leads to a situation in which the contested measure may have been issued. However, the definition of that delegation is only general. However, empowerment must be sufficiently specific to regulate a particular issue only within the framework of the law. In the case of the provisions of Section 10 of the Price Act, this is a flat-rate authorisation, which, moreover, formally leads to the issue of a quasi-implementing regulation.
In addition, a group of senators stated that the specific reference standard dealing with the rent adjustment and the remuneration for the use of the apartment will be found in the provision of Section 696 (1) of the Civil Code (hereinafter "o. z '). However, the relationship between the provisions of § 696 (1) and § 10 of the Price Act is not a relationship of general and special legislation, but a relationship of special standard and general authorisation to issue (apparently) non-normal acts. There is no internal relationship between these legal standards. It appears from the nature of the case and from the provisions of Paragraph 696 (1) above that the specific legislation governing the issue of maximum monthly rent is to be the law, which in the appellants' view is evidenced by the finding No 231 / 2000 Coll. The Government shall also be empowered to regulate the matter on the basis of the general authorisation contained in Article 78 of the Constitution.
If this is not the case and the matter does not necessarily need to be regulated by the law or regulation of the Government, then the situation must be interpreted as meaning that the provisions of § 696 (1) ° W contain the usual and the Constitution of the foreseen authorisation for the competent ministry to issue a statutory law governing maximum monthly rent. This legislation, foreseen in the provisions of § 696 (1) (z), is necessarily measure No 01 / 2002, which, according to the case law of the Constitutional Court, also meets the characteristics of the law in a material but not strictly formal sense. Paragraph 696 (1) ° W does not distinguish, from a content point of view, dwellings in which rental housing is carried out into different groups of such dwellings and thus does not empower the public authorities to adjust the rent only for a particular group of such dwellings. From this point of view too, sublegal legislation is illegal and unconstitutional, going beyond legal legislation. In this context, it was also pointed out to the purpose of Exposition No 01 / 2002, when in 2001 the government wanted to regulate this issue by law, whose proposal was rejected by the Chamber of Deputies. However, because the government did not enforce its own bill, the situation should have been resolved by the Ministry of Finance. This solution is completely unacceptable under the rule of law. This procedure, according to the appellants' view, is manifestly circumventing the very meaning and substance of the formation of standards and - in relation to the finding of the Constitutional Court No 231 / 2000 Coll. - also an open breach of Article 89 (2) of the Constitution, according to which enforceable decisions of the Constitutional Court are binding on all the institutions and persons.
Paragraph 10 of the Price Act provides for such a procedure because it is not sufficiently specific and obvious, according to the applicants. This creates a situation where there is a sufficiently precise scope open to public authorities for the issue of unexamined legislative acts which, in some cases, even substitute for the function of law - as happened in the present case. Here, the appellant points out the finding No. 96 / 2001 Coll. (sp. zn. ÚS 45 / 2000, Collection of finds and orders of the Constitutional Court, St. 21, Found No. 30) in which the Constitutional Court defined the principles of the derived standard of execution - extradition by a legitimate entity, non-interference in matters reserved by law, the apparent will of the legislator to regulate above the legal standard.
In the present case, however, it is clear from the appellant's point of view that the judicated constitutional rules for derived standards have not been respected, in relation to the provisions of Section 10 of the Price Act (it does not contain "the legislator's clear will to regulate above the legal standard ') and, in particular, in relation to Exposition No 01 / 2002. Moreover, the legal conditions of application of that provision, as foreseen in the provision of § 1 paragraph 6 of Act No. 526 / 1990 Coll., were not fulfilled. The contested provision of Section 10 of the Law on prices in relation to the arrangement of rents also does not correspond to the provision of Section 696 (1) (c) of the Act and therefore a difficult foreseeable situation of considerable legal uncertainty arises for legal parties.
Therefore, in the event that the Constitutional Court concludes that the situation created cannot be interpreted as meaning that measure No 01 / 2002 is a law, a group of Senators also proposed to abolish the entire provision of Section 10 of the Price Act as well as the measure in question. The reason for the annulment of this legal provision is that, in such a case, the State, on its basis, issues an anti-constitutional quasi decision with all the material characteristics of the legislative legislation, which significantly affects the rights and obligations of entities, which is not possible and admissible in the rule of law. In other words, Paragraph 10 of the Price Act creates a situation in its application which is clearly not foreseen by Article 79 (3) of the Constitution. According to this article, ministries can "legislate under and within the limits of the law if they are empowered to do so." Therefore, there is no constitutional presumption that the ministries issue other decisions of normative content, with the exception of individual legal acts. If the Constitutional Court concludes that measure No 01 / 2002 is not a law, then the competence contained in the provisions of Section 10 of the Price Act goes beyond the provisions of Article 79 (3) of the Constitution and is therefore grounds for repealing that provision. The application for annulment of Paragraph 10 of the Price Act in this case is also made by a group of Senators because, if the Constitutional Court deviated from its case-law and considered measure No 01 / 2002 not to be a law, it would become a manifestly unjustified appellant.
In conclusion, a group of senators therefore proposed that the Constitutional Court should abolish the "measure of the Ministry of Finance of the Czech Republic No 01 / 2002 and the provisions of Section 10 of Act No. 526 / 1990 Coll., on Prices, as amended," for their contradiction with Article 89 (2) and Article 1 of the Constitution, according to which the Czech Republic is a democratic rule of law and also contrary to Article 79 (3) of the Constitution, Articles 1, 3, 4 and 11 of the Charter and Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention '). Moreover, the unlawful nature of the contested measure No 01 / 2002 also results from its contravention with the provisions of Section 10 of the Price Act and the provisions of Section 696 (1) (z). The annulment should be carried out without delay as the Constitutional Court, according to the appellant, has given the legislature sufficient time to draw up a new legislation in good time when the rent order was repealed (Pl. ÚS 3 / 2000).
Thus, in its petition, a group of Senators no longer formulate a proposal for the annulment of Paragraph 10 of the Price Act only in case the Constitutional Court deviates from its established case-law and the measures No 01 / 2002 are not regarded as legislation.
In accordance with Articles 42 (4) and 69 (1) of Act No. 182 / 1993 Coll., as amended by Act No. 77 / 1998 Coll. and Act No. 18 / 2000 Coll., the Judge of the Rapporteur requested the observations of the two chambers of Parliament of the Czech Republic, since Section 10 of the Price Act was adopted by the Federal Assembly in 1990. It also requested the opinion of the Ministry of Finance, on the one hand, pursuant to the above-mentioned provisions of the Law on the Constitutional Court, on the other, on the proposal for the annulment of the quoted items of the notice No 01 / 2002 and, on the other hand, on Article 48 (2) of the same Law, on the proposal for the annulment of Article 10 of the Price Act.
On behalf of the Chamber of Deputies, its President, Dr Lubomír Zaoralek, sent his observations, who merely stated the circumstances of the adoption of the Price Act on 27 November 1990 and stated that it was up to the Constitutional Court to examine the matter and to give a decision.
On behalf of the Senate, his President, Doc. JUDr. Petr Pithart, submitted that Section 10 of the Price Act was approved by the Federal Assembly on 27 November 1990, i.e. before the constitution of the Senate. It has not yet been amended and therefore the arguments raised by the debate in the Senate bodies cannot be supported. However, he took a qualified position on behalf of the Senate, pointing out that Paragraph 10 of the Price Act is merely a provision on the formal arrangements for the inclusion and publication of decisions by price authorities in the "list of goods', not an authorisation clause, when the authorisation itself is contained in Section 1 (6) of the Price Act. He pointed out that the Ministry of Finance can follow § 2 (2) of Act No. 265 / 1991 Coll., as amended, according to which the Ministry of Finance also issues regulations for the regulation and negotiation of prices. Since Article 79 (3) The Constitution does not prescribe the form of legislation, it can be considered that the Price Law addresses price regulation in a constitutional manner, as well as some other laws. The use of Article 1 (6) empowerment is also legitimate in relation to Article 696 (1) (z), since the Price Act is a cross-cutting law and has general validity where there is no other derogation. The price regulation system does not contradict Article 4 (1) of the Charter, which can also be inferred from the case law of the Constitutional Court. By directing prices, the State merely sets out a framework in which the agreement of the Contracting Parties can move. However, as regards the possibility of a unilateral increase in rent by the lessor, this would be possible only by agreement or if specific legislation so provides (§ 696 (1) o. z.). This should be the law, because according to the subscriber, the regulation of the substatutory standard could be found to be a solution which does not correspond to constitutional order. Finally, the President of the Senate made a large comment on the possible consequences of the abolition of the area No 01 / 2002, where he considered that the condition would only be preserved until Parliament had adopted the new regulation foreseen in Paragraph 696 (1) (z). As regards the consequences of the repeal of Section 10 of the Price Act, he stated that the form of publication of decisions on price regulation would become unadjusted and, therefore, in such a case, the legislature and the Ministry of Finance would have to give sufficient time to resolve the situation.
Under Section 48 (2) of the Law on the Constitutional Court, the Minister of Finance, Ing. Jiří Rusnok, commented on the proposal of a group of senators to abolish Paragraph 10 of the Law on Prices and Exposition No. 01 / 2002, in which he disputed its pledges concerning the unsatisfactory demand for apartments, the advantage of the best-living families, discrimination against young families with children, the reason for the existence of vacant apartments (they are excessively expensive). As regards the nature of the issuing of price quotations, it states that they are not a legislation of lower legal force, the rights and obligations which they provide are of a legal nature. It is therefore not an unjustified act interfering with a matter of its nature to be governed by law. However, price regulation cannot be dealt with directly by law, as this would be difficult for its operational performance. In order to do this, the State establishes expert price authorities. The denial of these facts only in view of the alleged lack of State-regulated rent would therefore inevitably be a denial of the entire system of State-regulated prices wherever a balanced supply and demand market cannot be created (e.g. energy, gas, sewerage, etc.). The collapse of this system as a result of inadequate interference with the Price Act would have unforeseeable consequences for the entire state economy. In addition, by abolishing Section 10 of the Price Act, the Ministry of Finance will not be deprived of the right to decide on prices, but only temporarily becomes more difficult to publish price decisions. The rent is not an unspecified remuneration to the lessor, as the appellant contends, which is out of state control. According to § 877 ° W, this is a price within the meaning of the Price Act. By a price decision, the State exercises its superior position in the field of administrative law. If it agrees with the appellant, it is in that the price decision is not a provision under Paragraph 696 (1) z. The Constitutional Court itself stated that in the case of rent from an apartment, the State must ensure protection against misuse of ownership. In this context, the Ministry of Finance pointed out that the finding No 231 / 2000 Coll. was not sufficiently justified to be based on the view of the Constitutional Court. On the one hand, this is understandable because the Constitutional Court is not a price authority and therefore cannot carry out the correct calculation, on the other hand, the finding is easily misused even against the public interest, as we are now seeing in the Ministry of Finance.
In addition, the comments point to a problematic approach to the calculation of the rent by a group of senators. Without a specific way of calculating the data, the Ministry of Finance cannot take an opinion. In this context, it stated the results of its investigations in this case for municipalities which, in its view, show the profitability of the rent. It also attempted to conduct such an investigation with private apartment owners. Of the 220 respondents, only 48 replied, the others refused to disclose the price information, one of which was contested by the Ministry at the Constitutional Court. In his view, the replies obtained indicate that the regulated rent allows reasonable profits to be made, but not the maximum profit as on the non-regulated market, which is the objective of the private lessors' efforts.
Finally, the Ministry stated that the appellant did not provide any figures in support of its claims on the facts relevant for the calculation of the economically legitimate rent and asked to be supplemented. The applicants should also present to the Constitutional Court their idea of how, if they succeed, they will be treated against tenants with valid lease contracts, as this is a matter of exceptional social importance in which the State cannot gamble with the public interest and must not lose the opportunity to protect them continuously. The Ministry of Finance therefore, as the authority of the State responsible for this area, requires the Constitutional Court to clearly and undeniably state all the evidence it has received and to state how it has assessed it. It also calls for the Constitutional Court to give a clear indication of how to increase the rent - both calculatively and legally - in rental contracts concluded under other price conditions in the past and, finally, to verify the economic continuity of its decision before its decision, as its scope will be quite extraordinary.
As regards the combined proposal of the Ombudsman to abolish the relevant provisions of Exposition No 01 / 2002, the Ministry of Finance, as a party to the proceedings, took its position under Paragraph 69 (1) of the Law on the Constitutional Court by submitting the Minister of Finance to Ing. Jiří Rusnok. In this submission, the party stated that it was in agreement with the finding of the Constitutional Court of 17.2.1999, sp. zn. II. ÚS 53 / 97, according to which the Ministry of Finance's pricing decision is not a law. Therefore, Article 79 (3) of the Constitution cannot apply to it. It also disagrees with the Ombudsman's argument regarding Article 2 (2) of Act No. 265 / 1991 Coll., as amended, since it is a competent regulation, the application of which depends on the substantive regulation. The price decision cannot take the form of a decree, as it is of a professional nature, it must be issued quickly (even from an hour to an hour) and cannot be made dependent on publication in the Collection of Laws. It would completely degrade its effectiveness by subjecting them to a reminder procedure. Paragraph 10 of the Price Act is a general authorisation for all price regulation by all price authorities. Following its annulment, the State would not have the possibility of price regulation, for which the participant refuses to bear economic responsibility in view of the unforeseen economic and social consequences. All advanced countries recognise the importance and necessity of price regulation. Such intervention would be unprecedented in European conditions.
Furthermore, the participant stressed the right to protect the public interest against misuse of property (Article 11 (3) of the Charter, Article 1 of the Additional Protocol to the Convention). Therefore, if the price regulation carried out under Section 10 of the Price Law complies with generally accepted rules of justice and if it shows a reasonable relationship between the resources used and the objectives pursued, it cannot, in the opinion of the participant, be unconstitutional. On the finding No 231 / 2000 Coll., cited by the appellant, the party stated that the Constitutional Court had testified to the appellants at the time, without allowing the public to assess the evidence which it had followed in its conclusion that the price regulation contained in the cancelled rental order had reduced the price by eliminating at least the cost of recovery and, in that case, denying the purpose and function of ownership, given all the costs which had been demonstrated and necessarily incurred. The Constitutional Court also did not state how to regulate the rent in order to avoid a breach of constitutionality. Therefore, the participant continued to regulate the way for which it bears both economic and legal responsibility.
At the same time, the finding No 231 / 2000 Coll. cannot be interpreted as discriminating against different categories of owners by denying some substantial rights of ownership, as the appellant contends. In this context, the Constitutional Court pointed out the principle of contractual autonomy and also stated that price regulation does not prevent anyone from doing or operating any other economic activity under Article 26 (1) of the Charter, since everyone has the freedom to decide whether to do business in a given area under the conditions. Moreover, the rent regulation does not apply to newly concluded lease contracts and is therefore not in the way of business activity. Price regulation applies only to apartments rented on the effective date of this decree. Such goods cannot be withdrawn from the lessee because his lease is valid and must be respected by the State. Nor can it be done by the landlord, since the rent of the apartment is a protected legal relationship which can be terminated for reasons which do not include increased rent. Similarly, the appellant's wrong view is that after the cancellation of the measure No 01 / 2002, the lessor will be able to determine the rent on its own account. According to the subscriber, price regulation was, from the outset, a measure to increase rent solely to the benefit of the lessors, when the State allowed a unilateral increase in rent in the contractual relations, even if it had not been contracted, it had to limit its scope by price regulation. In this respect, he stated that the neglect of the housing fund taken over by the State by the restituents and municipalities did not cause the existing tenant of the apartment, so this issue cannot be addressed at its expense by setting a price of high profit. Profit was generally not assimilated and consumed outside the house, so that restituents and municipalities did not receive from the state together with houses and accumulated funds. However, even in these circumstances, the State cannot be required to provide the lessor with the possibility of rapidly producing normally long-term accumulated resources. The subject of price regulation is not compensation for the time of state ownership of current owners' homes.
Furthermore, the participant referred to the results of its investigations (see above) with municipalities and private owners of rental houses. In this context he stated what the tenants paid under Government Decree No. 258 / 1995 Coll., implementing the Civil Code, of his (small repairs, routine maintenance, full price of services provided with the use of the apartment, full price of the new equipment of the apartment) and asked what the operating costs were - according to the finding of the Constitutional Court No. 231 / 2000 Coll. evidently and legitimately incurred - were paid by the lessor.
On 11 November 2002, the Ministry of Finance sent information to the Constitutional Court pointing out that it was preparing an update on the price scale No 01 / 2002, which issued a list of goods with regulated prices. On 15 November 2002 it was published in the Price Bulletin of MF order No 06 / 2002, setting maximum rent from the apartment, maximum price of the services provided with the use of the apartment and rules for factually rectified rent in the apartment, and amending the area MF number 01 / 2002 (hereinafter referred to as measure No 06 / 2002). In its section 4, items 5 and 6 of Part I of Section A and 9 of Part II of the Exposition No 01 / 2002, which were challenged by the Ombudsman, are deleted with effect from 15 November 2002 by the proposal of 4 March 2002 to repeal them. This has led to a situation where the legislation or its individual provisions, the annulment of which is proposed, have expired before the end of the proceedings before the Constitutional Court. Paragraph 67 (1) of Law No 182 / 1993 Coll. solves this situation by providing that the procedure is terminated in such a case.
In the course of the proceedings, the lawyer of the appellant (a group of senators), within the meaning of the provisions of § 63 of Law No 182 / 1993 Coll. and § 95 (1) of the Civil Code (hereinafter referred to as "o.s. '), extended the original application for annulment of measure No 06 / 2002. The extension of the application for annulment of measure No 06 / 2002 was allowed, in accordance with the present case law of the Constitutional Court, after the suspension of the oral procedure by a resolution, in view of the fact that the content of the two notices is virtually identical. The conditions of § 95 (2) o. s. have also been fulfilled, when the results of the present proceedings could be the basis for the extended proposal procedure. In particular, it was essential for the present procedure that the measure was identical to the cancelled measure No 01 / 2002, in particular in view of the alleged inconstitutionality or illegality which should have been decided in this procedure.
The Constitutional Court first proceeded to examine the formal requirements of the application for annulment of Section 10 of the Price Act. First of all, it should be noted that the wording of the statement of reasons for the proposal, which requires the annulment of Paragraph 10 of the Price Act, did not affect the examination of the proposal of a group of Senators only in the event that the directly contested measure was not abolished. In the petition, this cancellation is no longer only required in event, and therefore the Constitutional Court had to proceed in the above-mentioned order of proposals, although the vast majority of the arguments put forward by the appellant are directed only against the scope as such.
The Constitutional Court notes that the application for annulment of Section 10 of the Price Act was submitted by a legitimate appellant in accordance with Section 64 (1) (b) of Act No. 182 / 1993 Coll. The conditions of admissibility laid down in Section 66 (1) of the Constitutional Court Act were also fulfilled in the present case. The proposal was found admissible and the Constitutional Court was able to proceed further within the meaning of Section 68 of the Law on the Constitutional Court, as amended, i.e. to assess gradually the fulfilment of procedural, competence and content requirements of the Constitution. As regards the first two requirements, it should be noted that the contested provision of the Price Act was adopted and issued during the period of validity of the previous constitutional arrangements for the division of legislative competence between the Federation and the Republic and the legislative process, and therefore the Constitutional Court has no longer assessed the fulfilment of the provisions of Article 66 (2) of the Law on the Constitutional Court, as amended.
As regards the content elements, i.e. the compliance of Section 10 of the Price Act with the constitutional order (Article 87 (1) (a) of the Constitution, as amended by Constitutional Act No 395 / 2001 Coll.) and the international obligations of the Czech Republic (Article 1 (2) of the Constitution, as amended by Constitutional Act No 395 / 2001 Coll.), he concluded that this provision did not contradict those requirements and therefore rejected the proposal in this section.
The Constitutional Court considered this as follows. The group of senators essentially only attacks the area resulting from the application of Section 10 of the Price Act. However, the possible non-constitutional application of a particular provision of the law cannot serve as a reason for abolishing the very provision of the law that is not. The contested provision of the Price Act provides that "Goods subject to price regulation pursuant to Sections 5 and 6 shall be included by the price authorities by decision in the list of goods with regulated prices (hereinafter referred to as the list). The list and prices within its scope and the goods for which price regulation is applied pursuant to Section 8 shall be published by the price authorities in the Price Bulletin. '
This provision, in the view of the Constitutional Court, merely summarises cases of price regulation and provides for a legally binding form of publication in the Price Bulletin. Therefore, if the appellant were to succeed, it would have to demonstrate the inconstitutionality not only of the contested measure, which it argues. It would also have to demonstrate the inconstitutionality of, on the one hand, the legal institute of price regulation as one of the key instruments of the state's pricing policy, and it would have to prove it in the case of all the legislation governing it. Only if he could prove that any price regulation carried out in this form is unconstitutional would that provision have to be repealed. This would mean that the application of Section 10 of the Price Act will always be triggered in view of its normalisation and general commitment of the unconstitutional state. In the present case, however, this is not the case and the appellant does not even claim it.
The Constitutional Court did not consider it necessary to assess the very question of the admissibility of price regulation as such, since the proposal was directed only against the admissibility of price regulation of rent and other related issues (against its form and content). It should be recalled here that the Constitutional Court has already taken a position on this issue, with the result that it has recognised price regulation as a constitutional form of the implementation of the state's policy [in particular in the findings sp. zn. Pl. ÚS 24 / 99 (No 167 / 2000 Coll.; Collection of findings and resolutions of the Constitutional Court, Sv. 18, Sv. 93), Sp. Similarly, there is no reservation against the application of the Law on prices in relation to the regulation of rent, since its Paragraph 1 (4) does not explicitly exclude this, whereas Paragraph 1 (3) of the same Law does not expressly provide for the possibility of regulation of rent. Paragraph 696 (1) of the Code is then a general authorisation which can be applied at all times, while regulation under the Price Act only under special conditions defined by this Act.
The appellant argues that the definition of the provisions of Section 10 of the Price Act as an empowering provision is already an unconstitutional one. The definition of rights and obligations on the basis of the statutory delegation contained in Section 10 of the Price Act, according to him, leads to the situation that the contested measure may have been issued. However, empowerment must be sufficiently specific to regulate a particular issue only within it. In the case of the provisions of Section 10 of the Price Act, it is, in his view, a flat-rate authorisation, which, moreover, leads in formal terms to the issue of quasi implementing provisions. This creates a situation where there is a sufficiently precise scope open to public authorities for the issue of unexamined legislative acts which, in some cases, even substitute for the function of law - as happened in the present case.
To this end, it should be noted that in the present case it is not an authorisation provision. The competition of the Ministry of Finance for price regulation arises from § 1 paragraph 7 of the Price Act in conjunction with the relevant provisions of Act No. 265 / 1991 Coll., as amended. The actual authorisation to regulate prices is contained in Section 1 (6) of the Price Act. Its limits are set for cases where the market is threatened by the effects of the restriction on competition or where this requires an exceptional market situation. We find the setting of additional conditions in Section 3 of the Price Act, which requires the definition of a range of addressees of a price decision, and in Section 4 thereof, which sets out the methods of price regulation. Further details are provided in Sections 5, 6 and 8 of the Price Act to which Section 10 refers. From the point of view of the legal form of price regulation, the statutory regulation empowers the Ministry of Finance to do so:
(a) in the form of a price decision (§ 2 (1) of Act No. 265 / 1991 Coll., as amended by Act No. 135 / 1994 Coll. and Act No. 151 / 1997 Coll., in conjunction with § 3 (1) of the Price Act), by which it places the specified goods in the list of goods at regulated prices and publishes the list and prices within it in the Price Bulletin (§ 10 of the Price Act); or
(b) in the form of a law in the narrow sense of the word (§ 2 (2) of Act No. 265 / 1991 Coll., as amended by Act No. 135 / 1994 Coll. and Act No. 151 / 1997 Coll., according to which the Ministry of Finance issues "laws for the regulation and negotiation of prices, the determination of disproportionate economic benefits and the unjustified asset benefits in connection with the breach of price regulations, price records, the provision of price information, price control."
Similar dualism of regulation is foreseen in Article 2c of Act No. 265 / 1991 Coll., as amended by Act No. 458 / 2000 Coll., in the case of another price authority such as the Energy Regulatory Authority. Only in the case of the Government of § 9 of the Price Act provides that the form of the pricing moratorium must be used exclusively in the narrow sense of the word - the Government's regulation - as stated in the Collection of Laws (see also Case 167 / 2000 Coll.).
Thus, in terms of the form of pricing regulation, sedes materiae is found in § 3 (form of price decision) and § 4 of the Price Law (methods of price regulation), not in § 10 thereof (method of publication of the list of goods and regulated prices). Moreover, Section 10 of the Price Act cannot be interpreted in isolation from the full content of the Price Act (in particular Sections 1 (6) and 1 (3)), including references to § 5 (definition of the officially fixed price and its types), § 6 (definition of the conditions for the substantive regulation of the prices of goods) and § 8 (definition of time-adjusted prices). Without the repeal of other related provisions of the Price Act, the purpose pursued by the appellant could not even be achieved.
As regards the contested excess of the authorisation thus interpreted (in view of the systematic interpretation of the Price Act), it is a matter of assessing the constitutionality of the contested measure (see below). At this point, the Constitutional Court merely considers it necessary to state that exceeding the powers to implement the law or any other infringement of the law does not lead to the inconstitutionality of the law itself, but, at the most, to the illegality of the legal act which has been given by virtue of the exceeded powers.
In the light of the requirements of the mandate, the Constitutional Court also considers it necessary to refer to the finding on the application of a group of Senators to repeal Article I (4) of Act No. 37 / 2000 Coll., amending Act No. 125 / 1997 Coll., on waste, as amended, in the case of the subsequent legislation, and in the case of the material regulation, Pl. ÚS 14 / 2000 (Act No. 43 / 2001 Coll., Collection of finds and resolutions of the Constitutional Court, Sv. 21, Sb. 4), in which it stated, in the case of the regulation of the material, where the costs may differ significantly, that "the concept of the envisaged legitimate costs of the municipality resulting from the treatment of municipal waste, are not precisely defined on the other hand, because of the nature of the substance thus determined. 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 simply not possible to do so in view of its construction (which simply cannot be determined otherwise)." In other words, the fact that the law itself allows certain material to be adjusted in the light of the nature of the case by implementing (and therefore more flexible) regulation does not necessarily lead to the inconstitutionality of such an authorisation provision. As has already been noted, this is not the case in the case of Section 10 of the Price Act, but it may be relevant for any assessment of the chosen form of price regulation in the case of rent.
Furthermore, the appellant argues that the provisions of Paragraph 696 (1) (z), which provide that "The method of calculating the rent, the remuneration for transactions provided with the use of an apartment, the method of payment and the cases in which the lessor is entitled to increase the rent unilaterally, the remuneration for transactions provided with the use of an apartment, and to amend the other terms of the lease contract, provide for specific legislation." In his view, this provision is the specific reference standard, and there is no general and specific relationship between it and Section 10 of the Price Act.
Even this objection could not be taken into account when assessing the constitutionality of Section 10. As is known, the authorisation of § 696 (1) o. z. has not yet been used, or the attempt to do so was unsuccessful in 2001 [see the Government bill on rent from the apartment and the payment of the price of services provided with the use of the apartment and on the amendment of the civil code (Law on rental from the apartment). Parliament of the Czech Republic. Chamber of Deputies 2000. Printing No 883]. There is nothing to prevent the issue of rent, namely the situation in which "the lessor is entitled to increase the rent unilaterally, the remuneration for the service provided with the use of the apartment and to change the other terms of the lease contract ', being adjusted under the General Price Law. However, the condition will be that the conditions for price regulation set out in Section 1 (6) of this Act be met, that the regulation concerns price regulation (not other terms of the lease agreement) and that the content and form of such regulation are consistent with the constitutional order and international obligations of the Czech Republic. In such a case, the application of the Price Act in the field of the regulation of the specially assigned questions in § 696 (1) ° W may not be in itself unconstitutional. However, the assessment of the relationship between these two laws and their provisions, in particular § 696 (1) and § 877 (2) and § 10 of the Price Act, cannot be the subject of a constitutional procedure before the Constitutional Court.
The appellant was therefore unable to demonstrate that the provisions of Section 10 of the Price Act would be contrary to Article 79 (3) of the Constitution, since the constitutional order for the legislation of ministries and other administrative authorities does not explicitly prescribe the legal form. Therefore, Article 79 (3) of the Constitution could not be contradicted in the context of an assessment of the expressly constitutional rule of law. This also applies to his objections to Section 10 of the Price Law in terms of the admissibility of price regulation of rent, as set out below.
Thereafter, the Constitutional Court was to proceed with the assessment of the constitutionality of measure No 01 / 2002, which was challenged by the Ombudsman's proposal of 4 March 2002. However, since the contested parts of measure No 01 / 2002 were abolished, this part of the procedure had to be terminated. The Constitutional Court merely states that all the conditions have been laid down for the decision when it has already dealt with the question of whether a price notice can be regarded as a law in its case-law. It did so in the Found No. 167 / 2000 Coll., where it deviated from the legal opinion expressed in the Found sp. zn. II. ÚS 53 / 97 (Collection of finds and resolutions of the Constitutional Court, Sv. 13, Found No. 26), which is invoked in its Opinion of the Ministry of Finance. It concluded that, in the case of a price notice published in the Ministry of Health Bulletin, the legislation was legal regardless of the absence of a corresponding form. The Constitutional Court therefore takes the view that, where the form required for legislation does not meet all the requirements, whereas the content and legal functions do, compliance with the content of the law is decisive. The same conclusions apply to the conditions for assessing the legality of measure No 06 / 2002.
The competition of the Ministry of Finance for the issue of the price notice results from the above interpretations on the Price Act and Act No. 265 / 1991 Coll., as amended. From this point of view, no objections could be raised in terms of the constitutionality and legality of its extradition. However, this can only be stated for the time being from the point of view of the very competence of the measure. In addition to this, the Constitutional Court has to state that it considers it to be an attempt to circumvent the purpose of Paragraph 67 (1) of the Constitutional Court Act and an attempt to prevent the exercise of the constitutional judiciary.
From the point of view of the questions set out by the Constitutional Court for a solution, it should be noted that it did not consider it necessary to address objections which are outside its competence. This means, in particular, the question of determining the rules for the calculation of rent and its calculation. By the way, it points out to this objection by the Ministry of Finance that the infringement of Article 4 (3) of the Charter, in the spirit of the previous finding No 231 / 2000 Coll. also sees a different modification of the rules on the calculation of rent in accordance with points 2 and 3 of Part I of Section A, and points 2 and 3 of Part II of the Act, which are also taken into account in the new adaptation by definition No 06 / 2002 as points 2, 3 and 4 of item No 1 and points 2 and 3 of item No 3. It also takes the view that, where there are other grounds for the repeal of the legislation, it does not assess the fulfilment of the conditions laid down in Paragraph 1 (6) of the Price Act, since such questions are primarily a matter of consideration by the political authorities of the State (similar to, for example, the fulfilment of the conditions of Article 33 (1) of the Constitution in the event of a legal measure), and the Constitutional Court, as a judicial authority, takes the view of minimising the interference in their discretion in such matters.
The Constitutional Court also did not assess whether the Ministry of Finance, by its concept of rent regulation, had also intervened in the competences of the Ministry of Local Development, including, inter alia, matters of regional policy, housing policy, the development of a housing and housing fund and the rental of apartments and non-residential premises (§ 14 (1) of Act No. 2 / 1969 Coll., on the establishment of ministries and other central government bodies of the Czech Socialist Republic, as amended by Act No. 272 / 1996 Coll.), as this was not necessary in the light of the following arguments.
As regards the content elements, i.e. the compliance of the above provisions of measure No 06 / 2002 with the constitutional order or laws [Article 87 (1) (b) of the Constitution, as amended by the Constitutional Law No 395 / 2001 Coll.], or the international obligations of the Czech Republic (Article 1 (2) of the Constitution, as amended by the Constitutional Law No 395 / 2001 Coll.) and by the law, the Constitutional Court concluded that the proposal for their annulment was justified.
There were no impediments to the Constitutional Court in the negotiations as well as on the extended application for the annulment of measure No 06 / 2002, which was prosecuted by the same objections to inconstitutionality and illegality. In accordance with § 95 (2) o. s., the course of the proceedings could also have been a basis for a decision, if measure No 06 / 2002 is lawful. In addition, another fundamental objection was that the Ministry of Finance, through its practice, infringes not only the Price Act, but also the constitutional rules. For the third time (for the first time in the form of a decree, the second and third steps in the price area), the rent regulation applies practically the same content, which has already been declared unconstitutional by the Constitutional Court. Thus, Article 89 (2) of the Constitution did not infringe the legal opinion of the Constitutional Court expressed in Case 231 / 2000 Coll., which repealed the Order of the Ministry of Finance No 176 / 1993 Coll., as amended, on 31 December 2001, and which had already been decided on a similar issue on the constitutionality of the rent regulation. In this finding, the Constitutional Court took the view that:
(a) The protection of tenants has been a permanent part of our rule of law since the 1920s, and the fact that it is not expressly enshrined in the Charter, as Article 11 of the International Covenant on Economic, Social and Cultural Rights, Article 16 of the European Social Charter and Article 4 of the Additional Protocol to the Charter has fulfilled this role in our rule of law. The possibility of regulating the rent was also recognised with reference to the decision of the European Court of Human Rights of 19 December 1989 (A-169) in Mellacher and others against Austria. With regard to Article 1 (2) of the Constitution, as amended by the Constitutional Act No. 395 / 2001 Coll., these commitments of the Czech Republic to respect the protection of rental relations apply from 1 June 2002.
(b) The Constitutional Court also rejected the arguments of the applicants at the time, according to which only a certain group of tenants is protected by the rent regulation and a group of owners with regulated rent is discriminated against. It referred to the principle of contractual autonomy and the right to do business under Article 26 (1) of the Charter.
(c) However, the Constitutional Court recognised a breach of the principle of fair (fair) balance, when the rent regulation did not take into account the process of destruction of property law after February 1948 in the area of housing management. The housing fund was thus restructured, but without the funds accumulated for its maintenance.
(d) The Constitutional Court has recognised an infringement of Article 1 of the Additional Protocol to the Convention, as well as of the law enshrined in Article 11 (1) of the Charter, when the category of owners concerned, including the municipalities owning rental houses, are denied some of the essential rights constituting their ownership. It therefore found an infringement of Article 4 (4) of the Charter.
(e) Moreover, in view of the fact that these owners, in a number of cases, are forced to pay for what the Constitutional Court considered to be a matter of a social nature and responsibility requiring a responsible and balanced approach by the State and the entire company, the Constitutional Court has expressed its legal opinion that, if price regulation is not to exceed the limits of constitutionality, it must not clearly reduce the price in such a way as to eliminate at least their return, given all the costs shown and necessarily incurred, since in such a case it would in fact imply a denial of the purpose and of all the functions of ownership.
(f) The Constitutional Court has not contested the obligation of such lessors as regards the issue of the increase in rent to comply with certain restrictions, but this can only happen if the conditions under Article 4 (3) and (4) of the Charter are met, which was not fulfilled in the case of Decree No. 176 / 1993 Coll., as amended. Certain categories of owners were forced to subject themselves to substantial restrictions on their property rights, while others did not, and this restriction took place in the contested decree in a way that was hardly related to the examination of the substance of the property right.
(g) The Constitutional Court also did not dispute the obligation of the tenants to intervene in the contractual relationship by a third party when the State, by its measures, enters into the area of the contracted lease arrangements and allows them to increase unilaterally.
The Constitutional Court did not find - except for the exception set out below - the need to deviate from the legal opinions expressed in the decision No 231 / 2000 Coll. However, in order to be able to apply them in the present case to Exposition No 06 / 2002, it was necessary to assess whether these adjustments were at least identical in substantial parts. On this basis, the Constitutional Court assessed the correlation between the two adjustments and concluded that not only point 1 of Lot No 1 of Exposition No 06 / 2002, where only the present amendment from Exposition No 01 / 2002 is taken over, but also the other content of Exposition No 1 of Exposition No 06 / 2002 is substantially consistent with the content of that part of the rent regulation in Decree No 176 / 1993 Coll., as amended, which was declared unconstitutional or that the derogations are not relevant from the point of view of constitutional review.
The difference between the two adjustments is therefore not first in their content but in the chosen form of regulation in terms of the assessment of constitutionality. The appellant considers it unconstitutional. In this respect, it should be noted that the price decision under review, which is intended to be an instrument of the State price regulation policy, also lays down the general rules under which the parties are to proceed when determining the level of the rent. This makes it different from the rest of the area No 01 / 2002. This price decision was only included in this notice to replace the repealed Decree No. 176 / 1993 Coll., as amended, and was also removed from it on 15 November 2002 and re-published with the apparent intention of preventing the Constitutional Court from taking a decision on the matter. Therefore, measure No 06 / 2002 also deviates from the statutory price regulation conditions laid down by the Price Act.
However, according to Article 3 (1) of the Price Act, price regulation is meant to establish or direct price adjustments by price authorities and local authorities. In particular, Article 4 sets out the following ways of regulating prices: (a) pricing; (b) to guide their development following material conditions; (c) directing price movements over time; (d) price moratorium;
The content of the price decision is defined by deciding to include the goods defined in detail (Sections 5, 6 and 8 of the Price Act) in the list of goods and determined in a specified manner (Section 4 of the Price Act). Its mission is not to regulate behaviour in a manner other than that determined by this law in relation to § 877 o. z. The regulation in the contested headings of measure No 06 / 2002 thus goes beyond the legal framework which is given by concepts such as:
(a) an official price, i.e. the maximum price, minimum price and fixed price, limited to other material or time conditions (Section 5 of the Price Act);
(b) in-kind price guidance, that is to say, setting the conditions for negotiating prices in terms of the maximum extent of a possible increase in the price of the goods within the defined period or the maximum proportion in which the price increase of the specified inputs can be reflected in the price of the specified period or in the determination of a binding pricing procedure or in the calculation thereof (Section 6 of the Price Act);
(c) time-adjusted prices, i.e. prices for which a minimum time-limit has to be set for the announcement of the price increase envisaged, or a minimum time-limit after which the price increase may be envisaged, or a time-limited ban on the resale of goods (Section 8 of the Price Act).
According to Article 3 (2) of the Price Act, price decisions are binding on the range of addressees defined therein. Thus, the Price Act empowers the price authorities to determine the addressees. However, this must happen in a way that respects the constitutional order of the Czech Republic. This definition does not differ from any other legislation, in particular the Civil Code, in measure No 06 / 2002. Here too, the general term "tenant," "lessor," is used, so that such provision requires further individualisation of the compulsory or authorised entity (general nature of the regulation). However, with regard to legal authorisation to determine the scope of the addressees, this procedure cannot in itself be considered unconstitutional or illegal. This is no longer the case for defining terms such as "apartment," "category," because this is no longer about the circle of addressees. It is not the task of a price decision to define what the term "flat of a certain category" is. It is the same as if the price area is trying to define what the composition of medicines, for example, whose prices regulate, what their quality is, etc.
Similarly, the legal authorisation is exceeded in the case of the further content of the contested part of measure No 06 / 2002, where the rules of conduct of the designated circle of entities are generally laid down. These rules are general and therefore have legal features, i.e. they require further clarification. However, the Price Act allows them to regulate the behaviour of designated entities only by imposing an obligation on them to negotiate officially or factually directed prices for specific goods as defined in the Price Decision in the form of the five above-mentioned price regulation (Section 4 of the Price Act). From this point of view, Directive No 06 / 2002 sets out the rules governing the conduct of the parties to the lease contract in a manner which is incompatible with the mission of price regulation and which is reserved by law under the conditions laid down by the Charter or is entrusted to the contractual freedom of the parties in accordance with the constitutional principle of the autonomy of private law bodies. Thus, the measure No 06 / 2002 provides, for example, that "the lessor shall notify the lessee of the increase of the rent before its due date '(point 4 of item No 1) or determine when the lease of certain items may be negotiated by agreement (point 8 of item No 1), although the constitutional principle of the autonomy of the contractual will (Article 2 (3) of the Charter) is based on the opposite concept. The measure also regulates other relationships between the lessee and the lessor when changing the category of the apartment or improving its equipment (point 5 (1)) and, in particular, in the case of setting the price of the services provided together with the use of the apartment, where it also regulates the relationship between suppliers of such services (collection of waste, lighting, lifts, checking and cleaning of the chimney, etc.), the owners of the apartments which use these services together with the tenants (point 7 (2), or also provides for rules for resolving disputes between tenants concerning the price of the services provided together with the use of the apartment [point 2 (c)]. Item 2 also provides for the provision, payment and settlement of advances for services connected with residence. Therefore, even in the case of Exposition No 2 No 06 / 2002, it is not a price decision in the true sense of the word, but a substitute for the lack of legislation in the aforementioned sense, i.e. in the form of a law or an implementing decree. The same applies also to Exposition No 3 No 06 / 2002, both in terms of its normative nature and in terms of its also being based on the situation as at 31.12.2001, i.e. on the date on which it became enforceable in Case No 231 / 2000 Coll., which repealed Decree No. 176 / 1993 Coll., as amended. As regards the proposal to abolish item 3, the Constitutional Court does not comment on the constitutional nature of its content, in particular in terms of the criteria for economic eligible costs, where only the average monthly rate of growth of the aggregate index of construction works prices in the previous year is not taken into account. However, from the point of view of the legal form of the regulation, instead of the price decision, it is also about replacing the legislation by the legislator and implementing rules. Therefore, irrespective of the other position of tenants and tenants of such apartments as compared to tenants and tenants under heading No 1, the Constitutional Court concluded that this part of the measure No 06 / 2002 did not correspond to the authorisation of the Ministry of Finance in the Price Act and Act No. 265 / 1991 Coll.
The purpose of replacing the lack of legislation envisaged by § 696 (1) ° W, thus led the Ministry of Finance to be forced beyond the legal authorisation (and beyond its scope) for the content of price regulation and its methods to establish the rules of conduct of designated entities (owners and tenants of a particular type of apartment, or suppliers of services, owners of apartments) which result from them when determining the amount of rent in rental contracts. However, the price decision is not intended for this adjustment. This also results from the systematic interpretation of Article 2 (1) of Act No. 265 / 1991 Coll., as amended, according to which the Ministry of Finance exercises competence in the application, regulation and control of the prices of products, performances, works and services, unless otherwise provided for in that Act. That scope shall in no way include other than the above regulatory arrangements. It is only Paragraph 2 (2) of the same Act that allows the Ministry of Finance to issue regulations for the regulation and negotiation of prices, the determination of disproportionate economic benefits and the unjustified asset benefits in connection with price violations, price records, provision of price information, price control. For this regulation, however, the competent law cited requires the issue of a law, which does not, however, mean a price decision published in the Price Bulletin, but a law published in the Collection of Laws and issued on the basis of an express authorisation for a specifically designated executive authority. Therefore, the Constitutional Court necessarily considers the choice of a form of pricing decision as the second remaining powers of the Ministry of Finance not only as a purposeful starting point for resolving problems in the area of state housing policy, but also as a starting point for illegal, going beyond the above-mentioned provisions of the Price Act and beyond the competence conferred on the Ministry of Finance. This can be seen in comparison with the uncancelled area No 01 / 2002. The Ministry of Finance, for example, also regulates the prices of rail fares by definition No 01 / 2002, but does not regulate its own rules of conduct of passengers and transporters, as the Civil Code, the Railway Act and Decree No. 175 / 2000 Coll., on the transport rules for public rail and road passenger transport, i.e. legislation in the narrow sense. Similarly, it regulates, for example, the price of performance associated with abortion, but not the conditions for its implementation, etc.
In addition to the legal authorisation, the measure No 06 / 2002 not only regulates prices but defines the concepts used in the law. As a public act, not only defines, for example, the concept of "public funds' in point 6 (a) of item 3, but also the term" member of the household '(point 3 of item 2), although the heading of the household members for the area of civil relations, where there is no doubt also the area of rental, defines § 115 o. z. Here, Exposition No 06 / 2002 goes illegally beyond not only the Price Act. If it were to be seen as a specific legislation (which replaces the measure in a functionally and materially) pursuant to § 696 (1) (z), it would exceed the authorisation given therein. Even in the event of a situation referred to in Paragraph 1 (6) on prices, such a definition is not possible. Similarly, size No 06 / 2002 defines categories of flats, determines the essentials of the bathroom and toilet, defines the basic accessories of the apartment, living room etc.
The Constitutional Court did not consider it necessary to deal with the various provisions of Exposition No 06 / 2002, since the remedy can only be made by cancelling those provisions as a whole and by adopting the corresponding legal regulation. The measure No 06 / 2002 is clearly not only a price decision within the meaning of the Price Act and Act No. 265 / 1991 Coll., but also an attempt to replace the legislation which was repealed as unconstitutional by the Act No. 231 / 2000 Coll. However, where, in addition to the prices, the Ministry of Finance regulates the behaviour of the lessors and tenants in a manner that is reserved for the law and within its limits, while respecting fundamental rights and freedoms as well as the implementing regulation, this is a conflict with Article 4 (1) and (2) of the Charter. There is no doubt that this is done beyond the Price Act, on the basis of the above.
In addition, the Constitutional Court considers it necessary to draw further conclusions which it has reached in this context, and which, notwithstanding the assessment of the form of rent regulation and the efforts of the Ministry of Finance to circumvent the Constitutional Court law, also lead to the need to abolish the contested parts of the measure not only as contrary to the law but also as unconstitutional.
As regards the issue of price regulation, it should be noted that, by choosing this path of regulation, it has been affected by the rule of law in the rule of law. This form of interference in the relationships of tenants and lessors allows you to circumvent the basic rules of law making, in particular, the laws that are reserved in the event of an adjustment that interferes with the fundamental rights and freedoms of an individual. Such a lawyer thus avoids both a reminder procedure and minimum democratic requirements for law making. This is not a problem of self-regulation by the legal means defined by law, but of the fact that, in the present case, a price decision is in fact a solution to issues the regulation of which should be reserved in a democratic rule of law by a democratically legitimate legislator (even from the point of view of the social agreement which is argued by the participant) or by the sublegal legislation within the limits of the powers given by that legislator.
Many misunderstandings arise from the very concept of price regulation of rent. In itself, in a democratic state, it is not considered unconstitutional if it is based on market prices dependent on the location of houses, and it must be determined from which sources it comes, but must respect the 'fair balance' between the imperatives of general interest and the protection of the fundamental rights of the individual.
Price regulation in our country is based on user relations with apartments, which have generally been established by an administrative act of the State on the allocation of an apartment, not by a contract based on the free will of both parties. This concept, based on a doctrine that considered the rental of privately-owned apartments to be exploitation, sought to move the lease into the social services sector and set aside the management of flats from the market economy. An incomplete transformation of the so-called personal use of apartments into rental conditions in 1992 created a dual system for us, which cannot be compared to legal regulation in the European Union. The mere change in the terminology of "personal use of the apartment 'to" rental of the apartment', while maintaining the content of these concepts, did not result in a real transformation of legal regulation corresponding to the market economy system. In this sense, therefore, any argument referring to the decisions of the European Court of Human Rights and European Union law is of limited validity.
The rental ratio according to European standards is usually temporary, whereas in our country it is essentially closed for an indefinite period, and since the transitions of the right of personal use of the apartment were very similar to the rights of inheritance, the right of personal use of the apartment was established in fact a lasting relationship and evolved into a quasi-ownership. The worst part is that, over a long period of time, this concept has gone into general legal consciousness and has great inertia. As has been said, the vast majority of past rental relationships were not created by a free treaty, but by an administrative order often against the will of the owners in accordance with the concept of a gradual transfer of the entire housing fund into the so-called higher socialist forms of ownership. Thus, the so-called housing law has become part of public law and is not well comparable to the European concept of a classic private-law rental institution. Moreover, this hybrid legal relationship, referred to as socialism as personal use and now only renamed for rent, has also moved from the scope of binding rights to some new rights of substance. This transformation has been and remains in fact in real life: people selling and buying rented apartments, often in obscured form of exchanges, but more recently also openly in so-called severance. The extent of the transfer of rights of use to apartments or tenants is comparable with the inheritance of these apartments, whereas it is more limited in European law. In European law, there is no separate provision for the exchange of flats, a different provision is made for grounds of notice and the obligation to provide a replacement apartment.
Similarly to legal comparative and economic considerations, the key concept of rent regulation cannot be compared. In European standards, rent regulation is based on market housing prices. These include, in addition to the market prices of land and houses, the market costs of their repair, management and maintenance as well as a reasonable profit. Our rental price structure is generally based on the order prices, which were based on a fundamentally different concept of housing as a social service, paid mainly from social resources. This system excluded the effect on housing prices by a territorial difference in land rent. The current attempts to compromise between the two concepts not only do not benefit from the allocation and information effect of market prices, but lead to the use of the entire housing fund, the injustice of its distribution and corruption.
The argument in favour of maintaining price regulation of rent by quoting European sources of law is only meaningful in this whole reasoning if we understand it in a "European 'or" Western' concept, not as a preservation, or merely by adapting to the development of costs and price inflation, which are constructed on completely different principles without taking account of the impact of the market.
The correlation between the price regulation of rent and the lagging of the transformation of civil law relations regulating housing is reflected in the solution to the fundamental contradiction of any modern housing policy, namely the search for a balance between the principle of the protection of tenants and the principle of the protection of property. The biggest breach of this balance is that, at the dual stage of transformation in our country, subsidies granted to tenants from social resources through low rent prices were passed on to some tenants-private owners who acquired nationalised houses in restitution. These owners must pay for the operation, maintenance and repair of their own resources. The costs of "social policy through low rent 'were transferred from the State to the lessor. It is therefore no wonder that the relationships between such a randomly selected group of tenants and the similarly randomly created group of lessors are rapidly deteriorating. This situation is unique compared to other European states and should be quickly removed.
In this context, we need to return to the fundamental objection to the violation of equality in rights. If, in 2000, the Constitutional Court did not pay particular attention to the issue [see sub-paragraph IV (B) (b) above], this was because it decided at the time when it was envisaged (see the observations of the Ministry of Local Development cited in Found No 231 / 2000 Coll.) that, by the end of 2001 at the latest, this non-constitutional and illegal interference with the status of lessors would be removed by an adjustment following § 696 (1) ° W in the form of a rental law which will allow a separate and market-authentic development of the rent price, but at the same time effective protection of the lessee the lessee the lessee as consumers against undue price jumps and disproportionate requirements of the lessor unreasonable requirements of the lessor the lessor. That didn't happen. Therefore, the Constitutional Court must now address this aspect in particular in two respects.
The first is the issue of equality in the treatment of individuals by state authorities. In the case of rent regulation by the originally contested measure No 01 / 2002, there is no doubt that there is a breach of equality and discrimination, since one group of entities of property rights (owners and tenants of apartments under the scheme No 9 of Part II of the measure No 01 / 2002) were treated differently and their assets did not have the same legal content as those of other tenants. However, in view of the social dependence of ownership (Article 11 (3) of the Charter), which is reflected in particular in rental apartments, this does not preclude the legislator from regulating rental relationships in such a way as to protect them in a reasonable manner both the interests of the owner (the lessor) and the lessee, and in a certain period of time the interests of one party (usually tenants) may be preferred, but not permanently and no longer unilaterally.
Pursuant to Article 1 (2) of the Additional Protocol to the Convention, the provision of Article 1 (1) on the right to peaceful use of property does not prevent States from adopting laws which they consider necessary to regulate the use of property in accordance with the general interest. In this context, the European Court of Human Rights usually points out that mass changes in this area would create considerable social tensions and threaten public order, so that the application of the provisions of Article 1 (2) of the Additional Protocol to the Convention is generally recognised in the framework of the State's discretion. At the same time, however, state measures must respect the 'fair balance' between the imperatives of general interest and the protection of the fundamental rights of the individual. These include protection against discrimination which occurs in the event of a difference in treatment if it "lacks objective and reasonable justification ', i.e. if it does not pursue a" legitimate objective' or if there is no "reasonable relationship 'between the resources used and the objective pursued. The Contracting States have some scope to assess whether and to what extent the differences between otherwise analogous situations justify differences in treatment (e.g. Larkos versus Cyprus of 18 February 1999. Summary of judgments of the European Court of Human Rights, 1999, No 6, p. 129). Thus, the inequality itself does not always mean a non-constitutional state, or it may be an intervention justified by other important interests in protection, e.g. other fundamental rights.
According to the Constitutional Court, there is no permanent sustainable situation from the point of view of constitutionality resulting from distorted housing policy conditions until 1989. The Constitutional Court takes the view that rental relationships which are protected by price regulation were not created in the normal conditions of the rule of law, but by the transformation of user relations to apartments which were established by an administrative act of the State (even against the will of the owner), not by the free will of two Contracting Parties. Just after 1989, such a situation could be taken into account in the rental (user) relations since 1948 (see, in this context, the BvR 3 51 / 91 decision of the German Constitutional Court of 22.11.1994, which recognised the temporary takeover of the GDR's rental pricing regulations). The Constitutional Court recognised such a transformation as constitutionally conformal in the finding of sp. zn. Pl. ÚS 37 / 93 (No 86 / 1994 Coll.; Collection of finds and resolutions of the Constitutional Court, Sv. 1, Sv. 9) in view of the need to create a state of sufficient legal certainty for existing, albeit deformed, user relations. He stated that even if the owners of private houses were actually disadvantaged compared to other owners, this would be balanced by the public interest in the transformation of former user relations to housing in a protected rent institution.
The Constitutional Court takes the view that the reasons for the legal solution just after 1989, when Decree No. 176 / 1993 Coll., are already losing their strength. This is particularly the case where the actual existence of the rental relationship is not the case, but the regulation of the lease in the manner in which the measure No 06 / 2002 does so. The ownership of rental apartments is also property and therefore cannot be permanently excluded from the regular legal regime and subject to a special scheme, unless there are serious reasons. Those circumstances were certainly appropriate, but such a situation in the form of restrictions on the status of tenants of this category could not be maintained on a permanent basis, even if an appropriate form of regulation was chosen by law. The state must therefore find another way to deal with the rent situation in these apartments. The Constitutional Court has given him sufficient time to do so until the end of 2001, when, in accordance with the legal possibility provided for in Paragraph 70 (1) of the Constitutional Court Act, the existing unconstitutional state of the rent regulation for certain categories of housing. Another time and by failing to address this adjustment provided for in the constitutional way, this situation of discrimination is further deepening, and it does not follow from the procedure of the Ministry of Finance that it would be intended to change this constitutionally unsatisfactory state, as finally illustrated by the issue of Exposition No. 06 / 2002, where from 15 November 2002 to 30 June 2003 the present state is maintained, which is essentially based on Decree No. 176 / 1993 Coll., which was abolished as unconstitutional.
The Constitutional Court is not a price authority and its role in this procedure has not been to determine how many tenants the rent is in order or not. It is natural that it is not possible to clearly determine for each individual rental relationship whether the regulated rent is or is not adequate (see, in other contexts, Case 43 / 2001 Coll.). However, where the State considers it necessary to regulate the rent price, it is necessary to adapt the procedure in order to enable the lessor, in his case and for his flat, to demonstrate that this is indeed the case and that the lease does not fulfil the business functions of the latter, but rather the functions of the social state. Nor is it possible to evaluate the fixing of the coefficient 1.04, since it is clearly a temporary measure which cannot be sustained even from the point of view of the Price Act. The measure does not contain an indication of the costs the rent should cover, such as, in particular, the costs of use and repair, the return on capital employed, the location and attractiveness of the flat and the reasonable profit (cf. Section 16 (2) of the Price Act). As a rule, the market responds to these aspects. If the State has already committed itself to adjusting the rent, such fundamental issues of possible future disputes cannot arbitrarily pass. In order to do this, the legislator must create the necessary tools both from the point of view of the lessors and tenants who must be able to defend themselves. If the State provides address contributions to social rent, it is also the legislature's responsibility to ensure that such contributions actually come where they are intended, i.e. in the hands of the lessors.
Price regulation in itself cannot be considered unconstitutional in a democratic rule of law. It is therefore always a question of consideration in which cases (type of goods and services), against whom (manufacturer, seller), what form (price decision, statutory regulation, law) and to what extent (principle of proportionality, protection of substance and meaning of fundamental law or freedom) it is permissible to apply it. The Ministry of Finance's claim that price regulation must be carried out only in this way, since intervention from hour to hour is sometimes required, is generally acceptable, but not for the housing sector, where traditional emphasis is placed on the stability of emerging and existing rental conditions. Finally, even until the end of 2001, this issue was dealt with by legislation. The question of how this material is regulated is therefore first reserved by the legislators.
The European Court of Human Rights has dealt more than once with the Institute of regulated rent (e.g. Spadea and Scalabrino against Italy on 28 September 1995, Scollo against Italy on 28 September 1995, Velosa Bareto against Portugal on 21 November 1995 or Immobiliare Saffi against Italy on 28 July 1999). However, he was generally concerned about whether the protection of the rental relationship could be recognised even in the case of the owner's housing needs. As regards the admissibility of rent regulation, the Court of Human Rights judgment No 2 of the European Court of Human Rights in the Mellacher and Others case against Austria (see Publications of the European Court of Human Rights. Series A: Judgments and Decisions. Vol. 169. 2. Here, on the basis of the interpretation of Article 1 of the Additional Protocol to the Convention, the European Court of Human Rights concluded that it was neither formal nor de facto expropriation as there was no form of transfer of ownership. The complainants were not deprived of the right to receive, use, rent or sell their property. While the rental regulation removed part of their income from their lease, the European Court of Human Rights considers this to be merely a regulation of the use of ownership (paragraph 44 of the judgment, p. 25), which cannot be regarded as a breach of Article 1 (2) of the Additional Protocol to the Convention, since it is not a measure without a rational basis. This is all the more true because housing is a central concern of social and economic policy in modern society. It therefore leaves a wide margin of discretion for the States in terms of both the assessment of the severity of the problem and the choice of the adjustment of the measures chosen (point 45, p. 25-26).
In the opinion of the Constitutional Court, the benchmarks which are applied to the assessment of State actions under national constitutional order may be stricter than those used by the European Court of Human Rights in assessing compliance with the Convention. The European standard on the protection of property rights and the prohibition of discrimination may appear different under the Convention than under the rules of the Charter only in relation to national circumstances where the Charter may lay down higher requirements for State action in relation to an individual. At the same time, it should be stressed that housing policy in each State can pursue different objectives and that it is very difficult to compare the situation in this area in the Czech Republic and in the countries of Western Europe. However, this does not change his obligation to provide protection to a particular group of owners when all owners of the same type are guaranteed, pursuant to Article 11 (1) of the Charter, that their property rights will be governed primarily by law (not by price decisions) and that they will have the same content and protection.
The protection of property rights does not preclude the regulation of rent (in particular Article 11 (3) and Article 26 (1) and (2) of the Charter) as a constitutional form for the implementation of state policy in the event that it moves within the framework of the defined constitutional order and international obligations of the Czech Republic, the existence of both the public interest justified for the application of guidance (control) measures and the selection of detailed rules for the implementation of such measures must be carefully considered. State interference must respect a reasonable (fair) balance between the requirement of the general interest of society and that of protecting the fundamental rights of the individual. This means that there must be a reasonable (well-founded) relationship of proportionality between the resources used and the objectives pursued [see the findings sp. zn.
While the rental regulation is not an expropriation, it may concern the content of the concept of ownership. Owning from the Charter (Article 11 (3)) is no longer regarded as an unlimited right, but may be restricted under the Charter (Article 11 (4)) only by law and under the conditions laid down by the Charter (Article 4 (2)) and only to the extent that it does not affect the substance of the property (which cannot become a mere husk de-content), (Article 4 (4), and even under that restriction, there is a prohibition of discrimination (Article 4 (3) of the Charter). The rule in this field is therefore to determine the lease agreement (Article 2 (3) of the Charter) as a free (not any) rent, its regulation being an exception which should be limited in time to the necessary period.
The Constitutional Court therefore finds that Exposition No 06 / 2002 is contrary to the constitutional order, the international obligations of the Czech Republic and the laws both in terms of its content and its corresponding legal form. In particular, Article 2 (2) of the Charter and Article 2 (3) of the Constitution, in conjunction with Articles 1, 4 (3) and (4) and Article 11 (1) of the Charter and Article 1 of the Additional Protocol to the Convention in conjunction with Article 14 of the Convention, were infringed when the Ministry of Finance did not respect its legally defined scope in the field of price regulation and intervened in the field of regulation reserved for the laws. At the same time, it discriminated against a special group of owners in accordance with its practice, without establishing a "reasonable ratio 'between the funds used and the objective pursued, taking into account the period elapsed since 1989. It also exceeded the authority of the Ministry of Finance when it was issued, which also adjusted the relations by price decision and defined the concepts that should be reserved for the laws and implementing legislation issued on their basis. This also violated Articles 1 and 15 of the Constitution, which establish the principle of democratic rule of law and the constitutional principle of division of power. As it replaced its own legislation by its content and function of measure No 06 / 2002, the Constitutional Court was forced to abolish it with regard to its content and form.
President of the Constitutional Court:
v. JUDr. Holecek v. r.
Vice-President
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, the Judge JUDr. Pavel Varvarovský took a different position on the decision of the full Judge and, on the grounds of that, the Judges JUDr. Pavel Holländer, JUDr. Vladimir Jurka and JUDr. Jiří Malenovský took a different position.
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Regulation Information
| Citation | The Constitutional Court found no 528 / 2002 Coll., on the application for annulment of Article 10 of Act No. 526 / 1990 Coll., on prices, and on the cancellation of the area of the Ministry of Finance No. 06 / 2002 setting out the maximum rent from the apartment, the maximum price of the services provided with the use of the apartment and the rules for the actuarial rent in the apartment and amending the area of the Ministry of Finance No. 01 / 2002 and the cancellation of items No 5 and No 6 of Part I of Section A and heading 9 of Part II of the area of the Ministry of Finance No. 01 / 2002 issuing the list of goods with regulated prices |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 18.12.2002 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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