The Constitutional Court found No 53 / 2003 Coll.
The Constitutional Court found of 5 February 2003 on the application for annulment of points 2, 5, 6, 7, 8, 9 and 11 of Article CXVII of Act No. 320 / 2002 Coll., on the amendment and repeal of certain laws in connection with the termination of the activities of the district authorities
Valid
53
FIND
The Constitutional Court
On behalf of the Czech Republic
On 5 February 2003, the Constitutional Court decided in plenary on the proposal of a group of Senators of the Parliament of the Czech Republic to abolish points 2, 5, 6, 7, 8, 9 and 11 of Article CXVII of Act No. 320 / 2002 Coll., on the amendment and repeal of certain laws in connection with the termination of the activities of the district authorities,
as follows:
Motion denied.
Reasons
The group of senators submitted to the Constitutional Court pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, a proposal to repeal certain provisions of Act No. 320 / 2002 Coll., on the amendment and repeal of certain laws in connection with the cessation of the activities of the county authorities.
The group of senators requests the annulment of the legislation which provides for the transition of employment to the civil servants of the county authorities whose abolition of the law, the selected provisions of which are proposed to be repealed, is prescribed by Article CXVII (1) of Act No. 320 / 2002 Coll., to the local authorities (municipalities and cities responsible for the exercise of the delegation and the county) without the decision of the workers concerned and without the consent of the competent authorities. The legislation governing this amendment is contained in points 2, 5 and 8 of CXVII of Law No. 320 / 2002 Coll. of the following text:
2. The rights and obligations arising from the employment relations of employees of the Czech Republic who are assigned to work in the district offices (hereinafter referred to as the "employees of the district office") shall be transferred from the Czech Republic to the local authorities in cases where the activities of the employees of the district office provided for by this or by special law are transferred to the local authorities.
5. In the event that no agreement has been reached in accordance with point 3 by 1 September 2002 at the latest, the number and rules on staff delimitation shall be laid down for the relevant local authorities or administrative offices on a proposal from the county authority's heads and with the recommendation of the Regional Office's Director of the Ministry of Interior.
8. Paragraph 102 (2) (j) of Act No. 128 / 2000 Coll., on municipalities (municipal establishment), and Paragraph 59 (1) (b) of Act No. 129 / 2000 Coll., on counties (regional establishment), on the determination of the number of employees of the local authorities shall not apply to the cases referred to in point 2.
The Senator Group argues that it has infringed and restricted the fundamental rights and principles of the organisation of public authority laid down in Articles 8, 79 (3) and 100 (1) and 101 (4) of the Constitution, Article 2 (2), Article 4 (1), (2) and (4) and Article 9 of the Charter of Fundamental Rights and Freedoms ("the Charter '), Article 6 (1) of the Charter of Local Self-Government (" Charter') and Article 4 (2) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ').
The Group of Senators refers to Articles 8 and 100 of the Constitution, which declare the Autonomous Communities of citizens with the right to self-administration by means of a share in the exercise of public authority through their representatives. It recalls the decisions of the Constitutional Court (Pl. ÚS 1 / 96) and Article 3 (1) of the Charter, according to which the local authorities are an expression of the capacity of local authorities within the limits of the law, under their responsibility and in the interests of the local population to regulate and manage part of public affairs. This includes the possibility of determining the number of self-government employees. State interference in this autonomy is a self-government degradation before 1989, a model of national committees under control. The local authorities shall be independent bodies acting on their behalf, which shall also be responsible as employers. Autonomous decision-making on employees is determined by § 102 of Act No. 128 / 2000 Coll., on municipalities (municipal establishment), and § 59 of Act No. 129 / 2000 Coll., on regions (regional establishment). Article 6 (1) Charts are local communities that establish their own internal structure according to their needs. The authoritarian demolition of employees distorts the autonomous management of the self-government of its own property by forcing them to use part of it for remuneration. The state of local finance is not taken into account.
A group of senators recognises that the local government is not unlimited, it may be interfered with to protect the law and the law as established. The contested provisions of the law, according to a group of senators, are not capable of bringing about the transition of employment relations under Section 249 of the Labour Code. Point 2 of the appeal constitutes a general declaration on the basis of which no skirt is feasible, which, moreover, results from its effectiveness only from 1.1.2003. The transition is therefore possible only by agreement (point 3) or delimitation (point 5). Nothing can be objected to. On the contrary, authoritarian delimitation (paragraph 5) constitutes a violation of the constitutional principles for legislative regulation, as it is not the law, but the Ministry of the Interior, who decides on the delimitation of workers to individual authorities. Thus, the legislature's obligation under Article 4 (1) of the Charter to impose obligations only under the law and within its limits is infringed. Nor is the requirement of Article 79 (3) of the Constitution that the administrative authorities may issue legislation only under the law and within its limits if they are empowered by law to do so. The legislator did not set limits to this legislative activity of the Ministry of Interior. Point 5 governs "rules and figures'. According to a group of senators, this means that the decision of the Ministry is of a normative nature. The Constitutional Court has repeatedly stated that neither the legislature nor the executive authority can have any form of law at their disposal, but must follow the Constitution's directive and the requirements of transparency, accessibility and clarity (Case No 167 / 2000 Coll. of 23.5.2000 sp. zn. In the present case, this requirement is not met because it is not clear whether the decision is published and to whom it is served. By law, it is not possible to deduce to which territorial body the workers are to switch. In practice, the head of the district office decides. There are no remedies against such decisions. The Government thus applies in breach of Article 2 (2) of the Charter as there are no legal limits to regulation. It is also a violation of Article 101 of the Constitution. In fact, interference with the activities of the local authorities is to be determined by law to protect it. The abolition of the county authorities is not a necessary reason to employ former State employees.
The group of senators also points to the need to assess the contested institutes of Act No. 320 / 2002 Coll. from the point of view of employees. Employees are obliged by delimitation to another entity, probably to work in another place and perhaps another kind without their will. The conclusion of the forced nature of such work does not change the possibility of termination, as the employee will have to carry out the work during the period of notice. Besides, he wouldn't be in charge of severance. The contested regulation therefore runs counter to Article 4 (2) of the Convention and Article 9 (1) of the Charter prohibiting forced labour, none of which is met. Moreover, the imposition of forced labour does not determine the law, but the decision of delimitation.
In the light of the link between the employment relationship of the employees of the county authorities and the local authorities, a group of Senators also proposes to abolish the related provisions, points 6, 7, 9 and 11 of CXVII of Act No. 320 / 2002 Coll., the text of which is as follows:
6. The exercise of the rights and obligations arising from the employment relations of a member of the District Office's staff in cases where the activities of a member of the District Office provided for by this Law do not go to the local authorities under paragraph 2, shall pass from the District Office to the State Representation Office in matters of property, unless otherwise provided for by a special regulation. These employees will ensure that the tasks related to the closure of the district authorities are carried out after 1 January 2003.
7. The claims of the employees of the district authorities from employment relations which have not been transferred to the relevant local authorities pursuant to point 2, as well as the claims of the Czech Republic from labour relations towards the employees of the district authorities, satisfy and apply the Ministry of Finance on behalf of the State.
9. Paragraph 251d of the Labour Code shall not apply to the procedure laid down in paragraphs 2 and 3.
11. Matters owned by the Czech Republic, with which the regional authorities were responsible and which are needed to carry out the activities transposing under this Act within the jurisdiction of the local authorities and are used by the employees of the district office covered by point 2, shall, with the exception of those referred to in point 12 on 1 January 2003, be transferred from the ownership of the Czech Republic to the local authority to which the rights and obligations of the labour relations of the county office staff are transferred.
The Chamber of Deputies of the Parliament of the Czech Republic refers in its observations to the explanatory report on the draft law, which recalls that the draft law also addresses the employment relations of existing employees of the county authorities. The purpose of the provisions on delimitation is to ensure the proper performance of the public administration by the local authorities to which the respective competences will be transferred, by trained staff already carrying out these activities. In cases where the staff member does not agree to a transfer to a local self-governing body or the Ministry of the Interior, the work law will be followed. The appellants' view appears to be purposeful and unilateral as they do not respect the requirements for the exercise of state power, namely the need for a professional apparatus. Personnel measures are linked to public administration reform. As the agreement of the Contracting Parties is an essential condition of delimitation, it is not in any event forced labour or services. Compliance with the proposal threatens to jeopardise the working and social security of the workers of the district authorities who have agreed to transfer themselves and their agenda to regional or municipal authorities with extended scope. The law has been properly approved, signed by the relevant constitutional authorities and declared. The Chamber of Deputies believes that the law is in accordance with the constitutional order and the rule of law.
The Senate of the Parliament of the Czech Republic recalls in its observations the circumstances of the discussion of the law. An amendment has been tabled pointing to the inadmissibility of authoritarian delimitation as an illegal intervention in the local and regional authorities. However, the Senate did not agree with this proposal. With the amendments adopted by the Senate, the bill was returned to the Chamber of Deputies. On the proposal of a group of senators, the Senate recalls that, pursuant to Article 105 of the Constitution, the exercise of state administration can only be entrusted by law to the authorities of the state. Law No. 320 / 2002 Coll. is just it. To an unprecedented extent, it transfers the state administration's performance to local and regional authorities and certain activities are entrusted to territorial authorities. Its purpose is to strengthen the status of territorial authorities significantly, not to restrict their constitutional right to self-administration. The contested provisions ensure proper implementation of the transfer of competence to municipalities and regions. The exercise of the administration is a decision on the rights and obligations of citizens and legal persons. It is therefore in the general interest to provide sufficient staffing to designated local authorities. The general arrangements for the contested point 2 specify other provisions which favour the territorial authorities in determining the number of employees. Authoritarian delimitation is an extreme option. In this context, provision shall also be made for the non-necessity of the decision of the board of the local authority on the number of employees. Self-administration of municipalities and regions is not an inviolable value. Territorial authorities are public corporations whose priority is not to protect their own interests, but above all to care for the needs of citizens and to defend the public interest in the performance of their tasks. The quality of decision-making is certainly this public interest. The Senate concluded that the staffing of the reform of public administration through the transfer of employees of the abolished district authorities to municipalities and regions would provide the most effective quality decision-making practice. It therefore agreed to the legislation in question. This decision was also supported by assurances from the Minister for the Interior that, in the framework of the organisational measures linked to the reform of the public administration, the corresponding wage resources would be transferred to the local authorities together with the State's employees. Furthermore, it considers that the legislation creates a sufficient legal framework for the implementation of the transfer of employees. To refer to the forced nature of the transition work on the basis of the delimitation, the Senate states that it would then have to be found as both an unconstitutional and general regulation of the transition of rights and obligations provided for in a number of other laws. The transition of rights and obligations from employment relationships means that there is a change of employer when a new employer enters all the rights and obligations of an existing employer. Otherwise, nothing changes about employment. The recipient employer shall also be bound by the type of work agreed in the employment contract and the place of work. If the employer is unable to allocate the agreed work, it will have to negotiate the change. Only when an employee would not accept it is it considered, for example, the termination of employment. Until then, it would be an obstacle to working on the employer's side. The reason for the termination of employment is that the staff member should have severance payments.
The group of Senators, in a reply to the positions of the Chamber of Deputies and the Senate, stresses that the reform of self-government by law does not strengthen, as it is a transfer of the agenda in the delegation. He denies the Senate's claims that a deal is always a condition of delimitation. It draws attention to the fact that Parliament's chambers have not made sufficient comments on the question of the legal basis for determining the number and rules of staff delimitation to local authorities or administrations, and recalls the existing conflicts between municipalities and the abolished county authorities. In many ways, a group of senators considers parallel to labour law to be inconvenient. In order to reassure the Minister of the Interior that the transfer of staff from the State to the local authorities will be financially secured, which contributed to the adoption of the law, a group of senators notes that there are no such claims by law and that the financing of the transfer is governed only by a government resolution, and only for 2003.
A group of 20 senators submitted a motion to abolish the various provisions of the law as a legitimate appellant. In the course of the proceedings, since there was no reason to reject the application nor was there any reason to stop the proceedings, the Constitutional Court discussed the application and decided on it (Section 68 (1) of the Constitutional Court Act).
The Constitutional Court then dealt with the case under Paragraph 68 (2) of the Constitutional Court Act. The Constitutional Court has verified that the law, the provisions of which are proposed for annulment, has been properly discussed and approved by the two chambers of Parliament, has been signed by the relevant constitutional authorities and has been published in the Collection of Laws, and has stated that the law has been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
Later The Constitutional Court has examined the content of the contested provisions of the law in terms of their compliance with constitutional laws and international treaties pursuant to Article 10 of the Constitution.
The opposition of a group of senators against the authority of the Ministry of Interior to authoritative delimit the workers of the disturbed county authorities to the authorities of the counties, towns and municipalities can be distinguished into three basic and important:
1. a notice of infringement of the right to self-administration;
2. a reservation against the forced nature of the work of an authoritatively de-limited employee; and
3. an indication of a unclear and legally insufficiently substantiated decision-making procedure for delimitation.
The guarantee of the Territorial Authority under the Constitution is laconic. In addition to the distinction between local and regional levels of self-government (Article 99), the territorial authority is regarded as a right of the territorial community of citizens growing out of its characteristics and abilities, as stated by the Constitutional Court, as recalled by the finding of 19 November 1996 sp. zn. Pl. ÚS 1 / 96 (Collection of finds and resolutions of the Constitutional Court, Volume 6, p. 375; found under No 294 / 1996 Coll.).
"The Constitutional Court considers local government to be an indispensable component of the development of democracy. Local government is an expression of the right and ability of local authorities, within the limits of the law, under its responsibility and in the interests of the local population, to regulate and manage a part of public affairs. '
The Constitution allows this ability to be enforced by, inter alia, establishing the legal personality of the local authorities and counting on the self-governing bodies to have their own assets and manage according to their own budget (Article 101 (3)). At the constitutional level, the democratic nature of self-government in the guarantee of elected representatives is also confirmed (Articles 101 (1) and (2) and 102). However, the Constitution also envisages a state-owned single self-government regime in the form of a legal framework. The definition of the part of public affairs which the local or regional community of citizens is capable of managing is entrusted to legislators, or to state authorities (Article 104), and not to legislators who, at the highest level of national law, define matters of local importance. A number of other European states are also counting on the legislature's mandate to define matters of limited territorial importance entrusted to the local authorities.
The constitutional right to self-government must certainly not be emptied by the legislator, but it is certain that the legislator has wide scope for determining matters best managed at local or regional level without major intervention by the central State. Unpolitically, out of legal, economic, political and other aspects, it is hardly possible to determine in advance which matters have a local or regional impact and therefore deserve to be excluded from central power. Deciding on the competences of the local government is always political. Even issues of local or regional nature may be of national importance, such as those affecting fundamental human rights and freedoms, or the consequences may be transferred across the borders of the local self-governing community, which is increasingly common in the context of high population mobility.
It cannot be omitted that the Constitution explicitly provides (Article 105) for the participation of territorial authorities in the exercise of State authority on the basis of statutory mandates. Of course, such mediation of the exercise of public authority entails the subordination of self-governing bodies to state control, the purpose of which is to ensure the quality of the exercise of state power. This subordination must, of course, also foresee the law. The constitutional text does not state clearly whether the state authorities can be entrusted with the administration by authoritative means, or that such a legal transmission can only be carried out on the basis of an agreement between the State and the respective local authorities. In light of the emphasis on self-governance, there would certainly be a more burdensome demand for consensus. On the other hand, however, it is clear that the uniform exercise of State power delegated to us by municipalities, cities and regions is generally accepted and has never been questioned as incompatible with the right of local communities to self-government. As such, it is not disputed by a group of senators in their proposal to repeal certain provisions of Act No. 320 / 2002 Coll.
The Czech Constitutional Standard of Local Government is supplemented and enriched by the standard resulting from the international obligations of the Czech Republic, namely the Charter of Local Government negotiated on 15 October 1985, which entered into force for the Czech Republic on 1 September 1999, published in the Council of Europe under No 122 ETS and in the Czech Republic under No 181 / 1999 Coll. and No 369 / 1999 Coll.
The Charter is not a classic human rights treaty, it is not about individuals, but about citizens' communities, it establishes collective rights. This implies the particularities of its interpretation and application. The rules expressed by it, which constitute a European standard of local government, are hardly directly applicable (self-execution). The European Territorial Authority Standard is expressed in terms of the characteristics to be reported by the Contracting Party's administration or the rights to be enjoyed. The Contracting Parties have an obligation to guarantee their territorial authority a certain number of such rights as determined by the Charter. The rights guaranteed by the Charter of the Territorial Authority of the Contracting Parties shall be framework. The Charter itself envisages in a number of provisions detailed national legislation, which certainly represents the limits within which local authorities will move. It certainly does not guarantee complete freedom of territorial self-government. It is not a European tradition. The laws, or other provisions of the choice and tradition of the Contracting Parties, may specify in detail the range of matters managed by the Territorial Authority, including those which the Authority is required to monitor, its organisation, including the form and position of individual authorities, the framework for the management, the allocation of assets and its financial resources. At all times, the Charter does not make territorial self-government sovereign bodies approaching states.
The Charter is not equipped with tough enforcement tools, there is a lack of a mechanism for dealing with complaints from self-government on the violation of the Charter by States Parties, let alone an effective targeted tool for enforcing the standard against states actually violating the Charter. Only political instruments are available; Contracting Parties are obliged to inform the Council of Europe of changes to the legislative arrangements (Article 14), the Council of Europe is preparing regular reports on the state of the Territorial Authority and bodies representing the Territorial Authority as well as institutions monitoring the state and development of the Territorial Authority in each Member State, primarily the Congress of Local and Regional Authorities of Europe. However, there is no uniform authoritative interpretation of the Charter provisions, which would separate cases of possible State control from the incompatible regulation. At the same time, the recommendations of the Council of Europe institutions and bodies to the States towards their legislation and the practice of territorial self-governance are of limited importance. The provisions of the Charter are not normally invoked.
Of course, the weakness of the Charter enforcement instruments does not change its commitment. The Charter is not merely a declaration, it is a genuine international treaty that binds its Contracting Parties. The Constitutional Court is entitled to assess the compliance of the Czech law with it (Article 112 (1) in conjunction with Article 1 (2) of the Constitution, as amended), on the basis of a wide-ranging - to international law that is compliant with it (Article 87 (1) (a) of the Constitution as amended). Neither the framework nature of the Charter nor the specific nature of the collective rights expressed by it as a benchmark for the abstract control of the constitutionality of laws. However, it cannot be forgotten that it is of a general nature, which opens wide scope for the political discretion of the legislator of the Contracting Party when establishing the relevant legislative framework. The Constitutional Court is certainly not called upon to reconsider this political move, only to verify that the Charter of Limits has not been exceeded.
It can be concluded from the provisions of both the Constitution and the Charter that legal restrictions and guidelines for the operation of territorial self-government are acceptable. They cannot, of course, completely abolish these rules of territorial self-government. However, individual arrangements can be rather strict and binding if justified reasons are relevant.
The Charter does not contain explicit provisions on the transfer of the exercise of State authority to territorial authorities. Certainly, it is not prohibited by international law for the Czech Republic, but excessive burdensome self-administration by the performance of state administration may threaten its property and financial independence. Moreover, the extensive exercise of delegated powers by the authorities of the local authorities may bring its officials into a "schizophrenic 'position where they will have to take into account both the interests of the local community and the interests of the state. However, the prohibition of forced administration by the Authority cannot be inferred from the Charter. In the context of the Czech reform of the Regional Administration of Congress, the Czech Republic's 2000 Recommendation No 77 encouraged the strengthening of its independent competence, inter alia, by reducing the dependency of the government in the exercise of its delegation. The Council of Europe is therefore aware of the problems posed by the transfer of state power to self-government for its operation. However, this transfer was also one of the main elements of decentralisation in the Czech Republic carried out by the reform of the public administration in 2000 (Act No. 128 / 2000 Coll., No. 129 / 2000 Coll. and No. 131 / 2000 Coll., on the capital of Prague, and other legislation). It can hardly be considered incompatible with the main trend of the Charter.
The transition of officials of the disturbed district offices is linked to the transfer of state power to the regions and selected cities and municipalities. In fact, all the entrusted agenda is designated by Act No. 320 / 2002 Coll. as a delegated competence. At present, when the regional level of self-government is being created, it is reasonable to doubt the ability of the regions to immediately self-assert the exercise of state power. To some extent, the same applies to newly mandated cities and municipalities, which, although they have existed for more than ten years, will never, of course, have such a large and specialised specialist apparatus as the regions. Therefore, authoritarian delimitation can be seen as a transitional measure. Regions and entrusted cities and municipalities are opening up a certain scope for a gradual change of staff according to their intentions through reorganisation, application of qualification requirements and so on. This process will be subject to limited control by the central authorities of the State, the sole purpose of which is to prevent the threat or failure of state administration in the devolved area, towns or municipalities. The authorisation of authoritarian delimitation by Act No. 320 / 2002 Coll. is a restriction on the autonomy of municipalities, towns and regions to determine the number of employees of their municipal, urban or regional authority [§ 102 (2) (j) of the Municipality Act or § 59 (1) (b) of the Regional Act], but it is a legal restriction. The provision on authoritarian delimitation under Act No. 320 / 2002 Coll. acts in this respect as a lex specialis in relation to those provisions of the Act on Territorial Authority.
Authoritarian delimitation is a departure from the principle of the autonomy of local communities (territorial authorities) in creating their own administrative structures (Article 6 (1) of the Charter). Given the particularities outlined, this can hardly be considered a violation of the Charter. A new model of territorial self-government, linked to the wide performance of a single government, is being created in the Czech Republic. The Charter's distinction is abstentive, this international treaty refers to autonomy defined by more general legal limits.
The authoritative delimitation of officials of the abolished county authorities into the region and the entrusted cities and municipalities constitute a certain intervention in the property situation of the local self-government; municipalities, towns and regions have legal personality separate from the State, are equipped with their own property and manage according to their own budget (Article 101 (3) of the Constitution). However, detailed legal regulation of the management of the territorial government is acceptable, and the administration does not mean the sovereignty of local communities (Article 101 (4) of the Constitution).
The Czech Territorial Authority is not entirely independent in the area of the economy, even in other respects. Taxes are collected uniformly throughout the country according to national legislation, only for certain taxes and charges the State allows municipalities, cities and regions to be within certain limits when setting tariffs. The State also determines the method of distribution of tax revenue, today with a high degree of redistribution [Act No. 243 / 2000 Coll., on the budgetary determination of the proceeds of certain taxes to local authorities and certain state funds (Act on the Budget Determination of Taxation)]. The large differences in the property of the regions, municipalities and towns also brought the transfer of part of the state property (Act No. 172 / 1991 Coll., on the transfer of some of the property of the Czech Republic to the ownership of the municipalities). The management of cities, municipalities and regions significantly influence the subsidy activities of the central authorities of the state. The investments carried out in the municipality's territory have a significant impact on local or regional conditions. The remuneration arrangements for officials and employees of local and local authorities are also nationwide. The management of municipalities, cities and regions also significantly affects the urgency and complexity of the needs they meet within their own competence.
Indeed, a state-owned, separate local government, comparable to perhaps early self-government in the USA, does not exist in the Czech Republic and its introduction is unimaginable for many reasons. Comparable legal definitions and restrictions on the operation and provision of local authorities exist in all European states. The Charter respects this fact and lays down only principles for the sources of territorial self-government; they are intended to correspond to the tasks of the local authority (Article 9 (2)) and their use is to be as free as possible where the actual self-governing activity is concerned (Article 9 (1)). The Charter does not talk about the financing of the state administration.
The framework for the financing of territorial units, as well as the definition of their tasks, must undoubtedly not lead to a financial collapse while maintaining economy (Articles 100 (1) and 101 of the Constitution, Article 9 (4) and (7) of the Charter). Therefore, the view of the authoritative delimitation and the action of the de-limited workers of the abolished county authorities within the regions, entrusted cities and municipalities in the light of the Charter and the Constitution must depend on the way in which the State finances the delegation. The current legislation is not entirely clear. The individual laws on local authorities provide for contributions to the exercise of state administration in the delegated capacity (Section 62 of the Municipality Act, Section 29 (2) of the Regional Law, as amended). This contribution is decided by the executive of the state (Government of the Czech Republic, Ministry of Interior, Ministry of Finance). The above-mentioned laws do not formulate a more detailed directive for determining the amount of the contribution, and there is no indication of the procedures for negotiating that amount or dispute resolution mechanisms. However, the complex legal provisions on contributions may still be interpreted in a constitutional and international legal manner by guaranteeing the cost of carrying out a delegated administration.
Therefore, the Constitutional Court intends to refrain from early intervention. However, it would act if it found that the amount of the contribution or the circumstances of its granting clearly did not correspond to the tasks assigned to the local authority. The lack of funding for the exercise of State authority in the delegated field threatens the very existence of a functioning territorial authority. The principles expressed by both the Constitution and the Charter would thus be violated. However, more detailed legislative arrangements for the financing of the administration by local authorities appear desirable.
The assessment of the authoritative delimitation of the employees of the county authorities to the authorities of the local authorities by decision of the Ministry of the Interior on the proposal of the head of the district office in view of the objection to the inadmissibility of forced labour is not possible without reminding of other comparable cases that our law allows.
For example, automatic succession in the place of the employer occurs when an existing employer dies, when the new employer becomes heirs (taking into account the rules for the settlement of the inheritance and with a view to protecting the interests of the employee as a creditor), when the legal entities of the same and different types are merged, when the legal person is divided, when the company is sold or in connection with the insolvency of the employer. A change often more significant than a formal change in the employer may also appear to be a substantial change in the management or member of the employer's company or other legal entity.
Undoubtedly, the main reason for automatically maintaining employment in these cases is to protect an employee from the threat of unemployment. Some changes occur unexpectedly and immediately (the death of the employer), while others can be predicted, but they occur rather quickly (sales of the company in difficulty). Allowing a successor to terminate employment rights and obligations would open up an area for abuse of this possibility, and many measures could be implemented by the employer only to get rid of his employment obligations.
Another reason for automatically maintaining employment in these cases is the protection of the property interests of the new employer, who is the general successor to the legal situation of the original employer. The immediate departure of workers who would not have to agree to continue their employment could cause considerable economic damage to the employer, and there would also be a threat to the interests of third parties - customers and customers of goods and services - in many businesses and institutions, and a general threat cannot be ruled out.
The continuity of employment with the new employer is, of course, only imaginable if the additional requirements of employment remain unchanged and correspond to the agreed conditions. This applies in particular to the type of work, remuneration, place of performance or time (duration of employment, working hours and rest periods). Other working conditions are set authoritatively and will remain intact when the employer is changed, e.g. rules on safety of work.
The right for a foreseeable and upcoming change on the part of the employer in certain outlined cases under the European standard reintroduces certain obligations of the former employer: informing employees or consulting trade unions. All this only confirms the normal practice of switching employees to other employers without their express consent not only in the Czech Republic but also in Western European countries.
The transformation of the private and public sector in the Czech Republic has been accompanied countless times after 1990 by a change in the legal form of the employer. The extensive privatisation of the Czech economy cannot be mentioned. The continuity of employment in these cases has never been described and understood as imposing forced labour. The authoritarian delimitation of state officials into self-government units, or only within the public sector, constitutes in this respect a change which is not the most serious because of its impact on employees.
In view of the employer's legitimate interests, the possibility of refusing work for a new employer shall be sufficiently assured of the possibility of dismissal of the staff member without stating the reason for the obligation to work temporarily within two months' notice. This can be considered appropriate in view of the normal possibilities of a normal employer to acquire new employees.
The obligation of a staff member to work after a period of notice represents a certain "tax" on employees for the legislative stabilisation of employment conditions by a modern social state. Under such conditions, the employer also deserves some stabilisation in the field of employment relations.
The Constitutional Court has not yet expressed its views on those aspects of employment in respect of fundamental law under Article 9 of the Charter. Nor does the case-law of the European Court of Human Rights reflect Article 4 of the Convention prohibiting slave or forced labour be spoken in a way which supports the opinion of a group of senators. No authoritative interpretation of the unfavourable model foreseen by Act No. 320 / 2002 Coll. is given in this respect or in relation to the right to earn a living in a freely chosen job pursuant to Article 1 (2) of the European Social Charter. The Convention on Forced or Compulsory Work (No 29) can hardly be seen as an obstacle to this model. International Labour Organisation (No. 506 / 1990 Coll.), which aims at slave and feudal practices and robot duty. It won't even help a slight foreign comparison. The German Federal Constitutional Court has so far not spoken unfavourably to comparable German legislation in any of its judgments cited in the publications.
The following information may be provided for the authoritative delimitation of employees of district officials to municipal, urban and regional authorities, as prescribed by Act No. 320 / 2002 Coll.
The type of work carried out shall remain the same or comparable; the competent local authority shall take the place of the State as an employer where the activity of the staff member concerned falls within the competence of the local authority. In a particular case, it certainly depends on the wording of the type of work in the employment contract. The need for a consensual change in the type of work is certainly common in the context of the transfer of state administration performance.
The pay conditions are maintained, and Act No. 143 / 1992 Coll., on the salary and remuneration for on-call time in the budget and in some other organisations and bodies will continue to apply, as it currently stands.
Since regional and municipal authorities usually reside in municipalities and cities other than the disturbed district offices, the removal of officials will be common. In all cases of authoritarian delimitation to a place of work in another municipality, an agreement between an official of the district office designated to act in employment relations with the relevant employee is required to change the place of work after 1 January 2003.
An employee of the District Office who refuses to delimit himself to a delegated territorial authority could have prevented him from giving up his employment in a timely manner. The final timetable for cancelling the district authorities is known half a year in advance; the reform of decentralised state administration is being prepared even longer. In view of the qualifications of the civil servants concerned, as well as the role of the county authorities in its implementation, their lack of awareness of the changes to be made to them in person cannot be allowed.
In practice, the authoritative demolition of the employees of the district authorities describes the Methodology for the implementation of the transfer of the employees of the district authorities to the local authorities of the Ministry of Interior on 9 July 2002, which envisages the refusal of the transition to the local authorities to take account of the change in the place of work by a part of the employees of the abolished county authorities and, in such a case, indicates the possibility of the district authorities' dismissal as an employer of redundancy caused by organisational changes. The same instruction takes note of the need to change the type of work carried out, stressing the need for an agreement between the employee and the employer. In the event of disagreement, the statement given by the staff member for its redundancy is also taken into account. The Ministry of the Interior has chosen for internal needs such an interpretation of the relevant provisions of Act No. 320 / 2002 Coll., which protects the position of officials of disturbed district offices above constitutional or international standards, which can only be welcomed.
The objections concerning non-compliance with the legal form point to the concise provisions of Act No. 320 / 2002 Coll., which do not explicitly answer any question. For example, it is not clear to what extent, if at all, the Ministry of the Interior's binding proposal is the priority of the disturbed District Office and the recommendation of the Regional Office Director. There is also no outline of the solution to the disagreement between the priority proposal and the recommendation of the Director. At the same time, the tasks of the Director of the Regional Office and the expectations to which it is subject are not easy, but the Director is also to defend the interest of the Region and the interest of the State in the exercise of State authority by the Region and in the control of municipalities and cities in their exercise of State authority.
The individual decisions of the Ministry on the authoritative delimitation of employees of the abolished county authorities to the regions, towns and municipalities also appear to be a matter of dispute. It is best to characterise decisions - whether taken collectively for whole counties or counties, or separately for individual trade unions and departments and individual cities or municipalities - as collective legal acts, but not legislative acts, as they provide for the regulation of legal ratios of well-defined physical (de-limited officials) and legal (respective counties, mandated cities and municipalities) persons. Only the provisions of Act No. 320 / 2002 Coll.
Law 320 / 2002 Coll. does not provide for more precise rules on how to take account of agreements under point 3 when preparing and issuing decisions on authoritarian delimitation. It is clear that authoritarian delimitation would, anyway, take place to an extent consistent with the amount of the agenda transferred, regardless of such consensus. Nevertheless, the legislator of the agreement between the employee, the State (represented by the district office) and the local authorities made it possible in total. In doing so, it opened the scope for a solution that suits the parties most. In view of the pre-evident scope of the transfer of state administration to local authorities, there is no reason to fear that the local authority, which was in a favourable position to conclude de-limitation agreements, would remain at a disadvantage.
There is a risk of inequality in those cases of authoritarian delimitation, where the agenda is divided not by the humanity of the managed territory, but by the specificities of its territory, population, economy, and cultural and social background. The projection of these facts may not always fully meet the social needs, and then there is a risk of inequality between individual territorial authorities. However, the requested intervention by the Constitutional Court in fear of such cases appears premature and excessive.
The decision on authoritarian delimitation shall be reviewed in court. As a decision by a public authority deciding on the rights and obligations of legal entities (the civil servants concerned, as well as the respective counties, towns and municipalities), it is subject to judicial control under Article 36 (2) of the Charter, as Act No. 320 / 2002 Coll. Nor does any other law explicitly exclude a decision of the Ministry from judicial review. Given the likely concern of fundamental rights and freedoms and the fundamental principles of state organisation, such exclusion would appear to contradict the Charter and the Constitution.
After examining the present case and analysing the case in view of the compliance of the provisions of Act No. 320 / 2002 Coll. with the constitutional order, the Constitutional Court concluded that the authoritative imposition of the exercise of public authority to the local authorities resulting from the contested provisions of the Act, including the delimitation of workers, was compatible with the Constitution. The method of financing the exercise of State authority by local authorities, provided that the State contribution is high enough to fulfil the tasks imposed, does not constitute a threat to the autonomy of local authorities under the Constitution and the Charter of Local Government. The authoritative delimitation of the workers of the abolished county authorities cannot be seen as forced labour. The legal instruments enacted in connection with the abolition of the county authorities and the transfer of state administration to the authorities of the entrusted local authorities are constitutional.
The contested provisions of Act No. 320 / 2002 Coll. were not found to be contrary to the constitutional order as required by Article 87 (1) (a) of the Constitution of the Czech Republic No 1 / 1993 Coll., as amended by the Constitutional Act No. 395 / 2001 Coll., and therefore the Constitutional Court rejected the proposal of a group of senators to abolish points 2, 5, 6, 7, 8, 9 and 11 of Article CXVII of Act No. 320 / 2002 Coll., on the amendment and repeal of certain laws in connection with the termination of the activities of the District Offices, pursuant to Article 70 (2) of the Law on the Constitutional Court.
President of the Constitutional Court:
v. JUDr. Holecek v. r.
Vice-President
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Regulation Information
| Citation | The Constitutional Court found No. 53 / 2003 Coll., on the application for annulment of points 2, 5, 6, 7, 8, 9 and 11 of Article CXVII of Act No. 320 / 2002 Coll., on the amendment and repeal of certain laws in connection with the termination of the activities of district offices |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 28.02.2003 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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