The Constitutional Court found No 568 / 2004 Coll.
The Constitutional Court's finding of 20 October 2004 on the application for annulment of Decree of the Ministry of Labour and Social Affairs No. 405 / 2003 Coll., repealing Decree No. 19 / 1991 Coll., on the employment and physical security of workers in mining for a long period of time unfit for work
Valid
The Constitutional Tribunal found
Text versions:
11.11.2004
568
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court ruled on 20 October 2004 in plenary composed of JUDr. Stanislav Balík, JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Ivan Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří Mucha, JUDr. Jan Musil, JUDr. Jiří Nykodím, JUDr. Pavel Rychetský, JUDr. Miloslav Excellent, JUDr. Eliška Wagner and JUDr. Michaela Židlická about the proposal of a group of Members of the Chamber of Deputies of the Parliament of the Czech Republic on the abolition of the Decree of Labour and Social Affairs No. 405 / 2003 Coll., which is repealed by Decree 19 / 1991 Coll., on the job and the substantive security of workers in mining.
as follows:
I. Proposal for the annulment of Decree of the Ministry of Labour and Social Affairs No. 405 / 2003 Coll., which repeals Decree No. 19 / 1991 Coll., on the labour application and physical security of workers in mining for the long term unfit for work is rejected.
II. The proposal to admit the association of mining workers, geology and oil industry as an intervener is rejected.
Reasons
By a proposal delivered to the Constitutional Court on 19 December 2003, a group of 40 Members of the Chamber of Deputies of the Parliament of the Czech Republic requested the annulment of the Decree of the Ministry of Labour and Social Affairs No. 405 / 2003 Coll., repealing Decree No. 19 / 1991 Coll., on the employment and physical security of workers in mining, no longer fit for work.
As the appellants pointed out, pursuant to § 1 (1) of the contested order, the Decree No. 19 / 1991 Coll., issued by the Federal Ministry of Labour and Social Affairs of the CSFR on the basis of the mandates contained in § 148a and § 275 (1) (b) of Act No. 65 / 1965 Coll., the Labour Code, as amended, as amended, and certain other laws.
Pursuant to Article I (95) of Law No 74 / 1994 Coll., Article 148a was repealed in the Labour Code and Article 148a was repealed in the Labour Code. Paragraph 146, too, amended the wording of Paragraph 275 (1) in that it does not contain any authorisation for substatutory legislation. According to the appellants, the legislature has thus indicated that the obligations can continue to be established, amended or repealed only by law. It is a constitutional order which is always respected by the Parliament of the Czech Republic and the intention of the legislator to maintain in future such relationships that are of a labour-law nature at a legal, not an underlaw level. Therefore, the appellants consider that, if the legislator has not repealed the decree in the derogatory provisions, it has demonstrated that it is in agreement with the legislation in question and considers it to be of substance. According to the appellants, the judicial system is also the same, as was confirmed, for example, by the judgment of the Supreme Court of 12.8.1998 sp. zn. 21 Cdo 1798 / 98.
The Minister of Labour and Social Affairs, according to the appellants, issued the contested decree pursuant to § 9 and § 24 of Act No. 2 / 1969 Coll., on the establishment of ministries and other central bodies of the state administration of the Czech Socialist Republic, as amended, (hereinafter referred to as the "competent law ') without being empowered to issue it by law. None of the above legal provisions can be regarded as authorising the issue of a statutory act.
The Constitution of the Czech Republic (hereinafter referred to as the Constitution) provides in Article 79 (3) that ministries and other administrative and territorial authorities may, on the basis and within the limits of the law, legislate if they are empowered by law to do so. According to the appellants, there is no law generally authorising ministries to issue generally binding legislation. Neither Section 9 nor Section 14 of the competent law contain such authorisation.
Thus, according to the appellants, the legal system does not contain any law which contains an authorisation to issue a decree, even if it is a decree containing only the repeal provision. If there were substantive grounds for the repeal of the Decree, this could only have happened by law.
The appellants have expressed their belief that the ministerial procedure is a gross violation of the constitutional order, since a valid implementing regulation issued on the basis of an existing authorisation cannot be repealed other than by law. They therefore suggested that the Constitutional Court should repeal the entire contested decree.
The procedure for the application was suspended by the order of the plenary of the Constitutional Court of 23 March 2004 because the Constitutional Court was insufficiently filled. On 16 June 2004, when the President of the Republic appointed the 12th Judge of the Constitutional Court, the impediment to hearing the application fell. After that date, the Constitutional Court therefore continued the proceedings and, pursuant to Article 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) requested the opinion of the Ministry of Labour and Social Affairs.
In its observations of 26 July 2004, the Ministry of Labour and Social Affairs ("MPSV ') summarised the reasons for the issue of the contested decree. According to MPSV, these were mainly constitutional grounds arising from Article 2 (4) of the Constitution and Article 2 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter). The Charter states that everyone can do what is not prohibited by law and no one must be forced to do what the law does not impose. Article 11 (4) The Charter is possible in the public interest only on the basis of the law and for compensation for the expropriation or forced restriction of ownership. Article 79 (3) The Constitution then provides that ministries, other administrative authorities and local authorities may legislate on the basis and within the limits of the law, provided that they are empowered by law to do so.
In this respect, MPSV also referred to the finding of the Constitutional Court sp. zn.
Decree No 19 / 1991 Coll., issued before the adoption of the Constitution and the Charter on the basis of the provisions already repealed by the Labour Code, did not comply with the constitutional standards or the quoted legal opinion of the Constitutional Court, since it imposed, outside the scope and limits of the statutory regulations on mining employers, the obligation to provide their employees with superstandard labour law rights from their resources and to fulfil the other obligations laid down in this Decree.
Decree No 19 / 1991 Coll. was thus contrary to the above-mentioned constitutional standards, which define constitutional limits for the possibility of a legal restriction of freedom and property law, and hence the constitutional order and laws of the Czech Republic. The principle of democratic rule of law contradicts that the regulation, which, in view of its nature and the seriousness of the effects on employers, should be regulated directly by law, should be applied on the basis of an implementing regulation which was issued at the time of the central management of state enterprises (that decree replaced, with effect from 1 February 1991, a decree of the Federal Ministry of Labour and Social Affairs No 102 / 1987 Coll., on the employment and physical security of miners permanently unfit for work).
In addition, MPSV stated that, according to the annulled decree, mining employers were obliged to provide a severance grant of between 1 and 14 times the average monthly earnings from their own resources, although the legal limits on the granting of severance payments were adjusted at the time of the existence of the Decree of § 60a of the Labour Code, so that employees only receive severance payments at the end of the contract, twice the average earnings. In a collective agreement or internal regulation, this severance payment may be increased by additional multiples of the average earnings.
In the context of the repeal of Decree No 19 / 1991 Coll. and in accordance with the amended Section 60a (2) of the Labour Code, the relevant amendments to the collective agreements were concluded in the individual mining companies, which provide for the grant of severance payments in cases of severance for health reasons.
According to the repealed decree, mining workers were obliged to provide wage compensation of their own resources to workers who were unfit for work at the time, equal to the difference between the average gross earnings before the transfer or distribution of employment and the gross earnings achieved at the new place of work. The legal limits for the provision of wage entitlements are defined by Act No. 1 / 1992 Coll., on wages, remuneration for on-call and on average earnings, as amended. As regards the limits on the application of the implementing regulation in these cases, Section 8 (3) of Act No. 1 / 1992 Coll., as amended, empowers the Government to lay down a regulation only under which conditions the competent authority of the State administration will pay the costs of any additional remuneration to the employer who provided it. The Act No. 1 / 1992 Coll. does not, however, make it possible to establish the employer's obligation to pay compensation (additional remuneration) in other cases, especially in cases provided for in Section 7 of Decree No. 19 / 1991 Coll.
Employers in mining were also obliged to perform, without any support in the law, certain specific obligations which are not imposed on them under Decree No 19 / 1991 Coll. Employers were therefore obliged to transfer those workers to other appropriate work, and they were also obliged to ensure that they could be retrained in accordance with specific rules, to discuss the possibilities of employment for other work after the end of the retraining.
In general, according to MPSV, it can therefore be concluded that the annulled Decree No 19 / 1991 Coll. in those cases replaced the legal regulation in an inadmissible manner and that the executive power, by issuing it and maintaining it in effect even after the adoption of the Constitution, was granted an authorisation which, pursuant to Article 2 (4) of the Constitution and Article 2 (3) of the Charter, is only for the legislator. Therefore, the MPSV acceded to the repeal of this decree.
Decree No 19 / 1991 Coll. was issued on the basis of the mandates contained until 31 May 1994 in § 148a and § 275 (1) (b) of the Labour Code. The two emoluments were repealed by Act No 74 / 1994 Coll. The legislator did so in view of the need to respect the constitutional principle already mentioned, that no one must be forced to do what the law does not impose, and by abolishing those powers, it ensured that executive powers were no longer authorised to impose the abovementioned obligations on employers in mining. However, the executive authority did not at the same time repeal Decree No 19 / 1991 Coll. although it was clearly contrary to Article 2 (4) of the Constitution, Article 2 (3) of the Charter and Article 79 (3) of the Constitution, probably because of the fear of unfavourable acceptance of such action by workers in mining. Therefore, the annulment of Decree No 19 / 1991 Coll. was only brought about by a proposal challenged by Decree No 405 / 2003 Coll.
The MPSV prepared the above-mentioned repeal decree in accordance with Article 10 (3) of the Legislative Rules of the Government of the Czech Republic, according to which "if a bill or part of it is proposed to be repealed in the draft law, for the implementation of which a law is issued, it shall be proposed to repeal it in the repeal provisions of the draft law. If, prior to the application of this procedure, there is an implementing provision in the legal order which has been issued on the basis of an already repealed empowerment provision, the following procedure shall apply: if the decree is issued, it shall be annulled by a decree in the introductory sentence of which the relevant section of the Act on the establishment of ministries and other central bodies of the State Administration shall be deleted. '; Decree No. 405 / 2003 Coll. therefore refers to Sections 9 and 24 of the competent law.
As regards the earlier decision of the Supreme Court concerning Decree No 19 / 1991 Coll., referred to by the appellants, that decision did not provide for that decision under the MPSV to be consistent with the constitutional order, but merely stated that the order was a valid part of the legal order, i.e. that it was issued in the prescribed manner and that it had to be followed until it had been repealed in accordance with the legal order. In no way was the Supreme Court and, in view of the principles of the rule of law, the right of the Ministry to abolish Decree No 19 / 1991 Coll.
Furthermore, pursuant to Article 69 (2) of the Law on the Constitutional Court, the Constitutional Court sent a proposal to the Ombudsman to inform within a legal period of time whether it was intervening. By letter dated 13.7.2004, the Ombudsman expressed his wish not to intervene in this procedure.
By letter dated 2 September 2004, the appellants informed the Constitutional Court that they insisted on oral proceedings before the Constitutional Court.
At the oral hearing held on 20 October 2004, the appellants extended the argument contained in the written application to object that by repealing the Decree the MPSV infringed the principle of protection of acquired rights. At the oral hearing, the representative of the MPSV stated that the reasons for the annulment of the Decree could be divided into two headings. One heading is the reasons for the constitutional law, which MPSV carried out in its comments on the written proposal, and the other is the fact that the Czech Republic has joined the European Union. According to the information available to MPSV, staying on this above-standard performance guaranteed by the Decree would significantly impede the competitiveness of the undertakings employing these employees under European conditions.
The Constitutional Court first noted that the application was submitted by an authorised body in accordance with § 64 (2) (b) of the Constitutional Court Act (in the present case, by a group of 40 Members, when the amendment to the proposal does not contain the signature of one of the nominated draftsmen JUDr. Zuzka Rujber, a Member of the Chamber of Deputies of the Parliament of the Czech Republic) and is admissible (§ 66 of the Law on the Constitutional Court and contrario).
However, the Constitutional Court notes that it did not comply with the proposal to add mining, geology and the oil industry to the proceedings as an intervener. According to Article 28 (1) of the Law on the Constitutional Court, the appellant and those on which the Law on the Constitutional Court so provides are parties to proceedings before the Constitutional Court. In accordance with Article 28 (2) of the Law on the Constitutional Court, the interveners are also only those to whom the Law on the Constitutional Court grants such status. In the case of proceedings for the annulment of laws and other laws (abstract control of standards), the party who has issued the contested legislation may be an intervener in the proceedings for the annulment of other laws, provided that the Ombudsman makes observations within that period.
The Law on the Constitutional Court is therefore based on the principle of legality in terms of the definition of the parties and the interveners, i.e., the competent bodies acquire such status directly from the law. The Constitutional Court was therefore unable to bring the relevant trade union - as the group of Members suggested - into this proceedings. Such a procedural position as a trade union as an interest association, in which the economic and social interests of a group of employees are institutionalised, is hampered by the very nature of the procedures for the abolition of laws and other legislation. It is clear that trade unions, as well as employers' organisations in specific sectors of the economy, have a non-negligible role in the modern state in terms of representation and aggregation of different interests and requirements that do not always find a platform in other institutions typical of parliamentary democracy. On the other hand, however, it must be respected that the group of entities which have the legal status of participants or interveners was elected by the legislator to some extent to reflect the principles on which the constitutional order of the Czech Republic is based (that is, above all, the principle of democratic legitimacy of the authorities of the state, the principle of division of power and protection of the minority), and to correspond to the very subject of the procedure (i.e. by assessing the compliance of legislation with the constitutional order of the Czech Republic). These principles are in line with the legal definition of the heading of participants and interveners in the proceedings for the annulment of laws and other laws (Section 64 of the Constitutional Court Act). The extension of the parties or the interveners to other parties - such as political parties, interest groups etc. - would be contrary to the principles on which state power and political system are built in the Czech Republic, and would be manifestations of principles typical of modelled different political systems (for example neocorporatism - to define the concept see for example Schubert, K.: Interessenvermittlung und staatliche Regulation. Opladen, Westdeutscher Verlag 1989 - or a consociative model of democracy - see for example Lijphart, A.: Consotional Democracy. World Politics, No. 2 / 1969, p. 207 - 225, in Czech Consortium Democracy. In Říchová, B. - Lisa, A. (red.): Antony of world political scientists. Praha, VŠ E 1995, str. 9 - 32).
The fact that a trade union or trade union does not have or cannot have the status of intervener in proceedings for the annulment of laws and other legislation does not prevent them from being asked for an opinion by the Constitutional Court in the course of carrying out the evidence. In the present case, however, the Constitutional Court considered this to be superfluous, since, as will be seen below, the question of the social and economic rights of a specific group of employees covered by the repealed decree was not, in particular, the question of the scope of powers and competences and the question of the relationship between legislative and executive powers in relation to the derived norm.
In view of these facts, the Constitutional Court rejected the appellants' proposal to admit the association of mining workers, geology and the oil industry as an intervener.
A.
Under Article 68 (2) of the Law on the Constitutional Court, it is the task of the Constitutional Court to examine whether the content of the contested regulation is in accordance with the constitutional order of the Czech Republic and to determine whether it has been issued within the limits of the Constitution laid down by competence and by the constitutional procedure.
By their proposal, the applicants contested Decree No. 405 / 2003 Coll., according to which the Federal Ministry of Labour and Social Affairs Decree No. 19 / 1991 Coll., was repealed with effect from 1 December 2003. Decree No. 19 / 1991 Coll. was issued on the basis of the legal mandates contained in Sections 148a and 275 (1) (b) of the Labour Code, as amended until the entry into force of Act No. 74 / 1994 Coll., which annulled the legal authorisation for the adoption of the Decree.
In the present case, the question of the content of the contested legislation, which only repealed Decree No 19 / 1991 Coll., is imputable to the assessment of whether the contested decree was issued within the limits of its competence and competence, or whether the constitutional conformity procedure of the Ministry is the constitutional conformity procedure when the contested decree was annulled by the previous decree in a situation where the authorizing legal provision on the basis of which the previous decree was issued was annulled by the legislator.
In their proposal, the appellants raised a more general question as to whether the ministries and other administrative bodies had a derived (secondary) normative power to abolish the previous substatutory legislation, in a situation where the power to adopt the original substatutory legislation is removed from the law. According to the appellants, there is currently no law in the legal order which contains a mandate to issue such a decree, even if it is a decree containing only the repeal clause. According to the appellants, the legislation in force, issued on the basis of no longer existing authorisation, cannot be repealed other than by law. In other words, the appellants submit to the Constitutional Court the view that it is constitutionally consistent only with the procedure whereby the legislator authorises the executive to expressly abolish secondary legislation or to abolish such regulation by means of law. Another procedure chosen in this case by MPSV is, according to the applicants, contrary to the constitutional order of the Czech Republic.
B.
State power in the Czech Republic is based on a specific model of division of power (Article 2 (1) of the Constitution). The relationship between the various powers is designed by the Constitution to create a comprehensive system of insurance and balancing. Such a system is implemented in practice through the various ways of legitimacy of the state authorities, the ways in which they are covered, the scope and content of the powers and competences by which the state authorities are awarded. Therefore, it is the system of insurance and balancing that must always be measured in assessing the scope and content of the powers of individual state bodies from a constitutional legal point of view, in a broader perspective, by the principle of division of power.
One of the key areas in which the principle of division of power is reflected is the sphere of division of legislative and executive powers. While legislative power is endowed with general powers to create legal standards, power is limited by the legislature only to the creation of derived, secondary legislation, if it is expressly empowered by law to do so, and it is the legislator that sets out the powers of the executive framework and the content limits of the legislature.
Article 79 (3) The Constitution may legislate on the basis and within the limits of the law by ministries, other administrative bodies and local authorities, provided that they are empowered by law to do so.
According to the Constitutional Court, it is necessary to insist on a distinction between competence and competence. The powers of a State authority must be understood as being the actual implementation of State power in the appropriate form (i.e. in the form of standard-making or individual-decision-making), whereas competences are already a very specific definition of the issues pursued in the exercise of powers process. At this point of view, Article 79 (3) of the Constitution should be interpreted as meaning that the powers of ministries and other administrative bodies, or local authorities, to issue derived secondary legislation are already established by Article 79 (3) of the Constitution. It is a legal standard which, on a general basis, establishes the powers of the executive bodies to establish secondary legal standards, provided that the exercise of that power is specified in the law in relation to a particular competence (a certain legally defined part of the exercise of State authority). In other words, the power of the executive to issue substatutory legal standards is based directly in the Constitution, not in the regulation of the law. A legal authorisation which complies with the requirements laid down in Article 79 (3) of the Constitution shall then be the fulfilment of that competence in terms of scope and content (competence).
The reason for establishing this power directly in the Constitution is that it is a key issue of sharing power between legislative and executive powers in the field of normative. Article 79 (3) Thus, on the one hand, the Constitution creates the power of the executive to derive standards and, in fact, sets its limits in relation to legislative power, on the other hand, it must be seen as also providing the protection of power to the legislature against unconstitutional intervention. As a result, if the legislature's normative powers were to be constituted only by law, it would be directly available to the legislator, thereby allowing the legislator to intervene in itself in the powers of the executive authorities, for example by fully removing such powers. However, the concept contained in the Constitution foresees that the legislator does not create this power in the form of ordinary laws, whereas the Constitution merely confers on it the possibility of empowering the executive in a particular case to implement it in the form of a specific competence. This competence (in the sense of the substantive definition of issues implemented in the exercise of powers process) is then required by a specific executive body to implement it on the basis and within the limits of the law which empowered it to establish a secondary legal standard.
In this respect, it can be recalled that the Constitutional Court has already stated in its earlier decisions (cf. sp. zn. Pl. ÚS 5 / 01, Journal of Decisions, Volume 24, Found No. 149; Declared under No. 410 / 2001 Coll., etc.) that the constitutional authority for the derived standard of execution is subject to the rules (therefore, the regulation must be issued by an authorised body, cannot interfere in matters reserved by the law, the legislature's will to regulate above the legal standard must be obvious (it must therefore be open to the sphere of the regulation).
It should be noted, however, that these requirements, in terms of the principle of division of power, act in an ambivalent way by setting clear limits on the executive in secondary standards, on the other hand, by establishing the limits for legislators in such a way that, if they create legislative powers in their jurisdiction, they cannot be affected arbitrarily.
This provision thus limits, on the one hand, the executive in relation to legislative power (in fact, the constitutional principle of the legitimate function of democracy - the people - and the principle of the division of power pursuant to Article 2 (1) of the Constitution), but, on the other hand, it also provides for the protection of the power exercised against the unconstitutional interference of the legislator. In other words, the legislator is also obliged to stick to constitutional limits in relation to the secondary standard of execution.
If the legislature, in a particular case, empowers an executive to implement the law, it is not acceptable from the point of view of division of power to amend such legislation itself, subject to the amendment or withdrawal of the competent order and the adoption of a new regulation in the form of primary standards. In other words, the legislator is entitled, as above, only to set executive limits for the implementation of secondary standards.
In fact, the principle of division of power is consistent with the fact that such an extension of power sets limits on both executive and legislative authorities. In addition, the Constitutional Court has in the past ruled that "Parliament of the Czech Republic, consisting of the Chamber of Deputies and the Senate, has only legislative power and lacks any executive or judicial authority. The only executive power of the Chamber of Deputies is the ability to disciplinary action against its members and to decide on their consent to criminal prosecution; further carry out illegal functions consisting of the possibility of setting up an investigation committee on matters of public interest and the possibility of interfering with the Government and its members. The Chamber of Deputies must therefore not intervene in any way in the power of executive and self-administration, except in the case of an initiative or recommendation, etc. '(cf. sp. zn. ÚS 1 / 2000, Reports of Decisions, Volume 18, Found No 51; published under No. 107 / 2000 Coll.).
The terminology of the derived legislation is merely a matter of formal nature, which does not have the capacity to speak about legislative powers and competences. The fact that the regulations issued by ministries and other administrative bodies pursuant to Article 79 (3) of the Constitution bear the designation "Order '(§ 1 (2) of Act No. 309 / 1999 Coll., on the Collection of Laws and on the Collection of International Contracts) is irrelevant in terms of the scope and content of the legislative powers and competences.
C.
The question of "normative life" of implementing legislation itself is not clearly seen in the theory or practice following the abolition of the empowerment provision in the relevant law. According to one approach, the derogation of the law is implicit in the abolition of all legislation issued on the basis of it and in order to implement it (cf. Knapp, V. - Grospich, J. - Shin, Z.: Constitutional foundations for law making. Prague 1990, p. 184). Another approach is based on the theory that the creator himself is obliged to repeal or amend the regulation in the event of a conflict with the newly issued regulation of higher legal force (see Hendrych, D.: Administrative law, general part. Prague 1994, p. 33). Finally, there is a view in the theory that, as a result of the abolition of the source of legal power of the Decree of ministries and other central bodies of state administration, i.e. empowering the Act, implementing regulations should also cease (Philip, J.: Constitutional Law of the Czech Republic 1. Basic concepts and institutes. Constitutional foundations of the Czech Republic. MU - Supplement, Brno 1999, p. 254.). On the other hand, it states in the theory that the simple abolition of legal authorisation does not end the legal life of the regulations issued under this authorisation (Koudelka, Z.: General binding regulations. MU Brno 1998, p. 83).
The practice of the legislator and the executive and, in particular, the case law of the courts does not give a clear answer to this question. In the past, the Constitutional Court itself has ruled on this issue that the "Relocation of the empowering legal provision cannot result in the automatic annulment of the decree issued on the basis of this authorisation, unless expressly stated in the law, so that the contested decree remains a valid part of the Czech legal order...." (sp. zn. Pl. ÚS 3 / 2000, ECR 18, p. 93; published under No 231 / 2000 Coll. as amended by the Constitutional Court Notice 130 / 2001 Coll.).
In this context, it can also be pointed out that the recent case law of the Supreme Administrative Court, which followed the opinion cited by the Constitutional Court, cannot be ascertained that it is not possible to arrive at a factually substantiated belief of the nullity of the regulation solely for reasons of legislative technical reasons, that is, because the original legal authorisation was derogated and "transferred 'to another law. Therefore, the basic material imperative must always be a very specific and clearly expressed expression of the legislator's will. The legal effects of the legislation are therefore decisive for its stated material relationship with the legislator's expressed will (cf. NSS sp. zn. 5 A 75 / 2002).
In this context, the question raised by the appellants is also considered in part of the theory and practice, in such a way that "if the implementing act has not been repealed by the new law, it continues to apply. Since, after the repeal of the Act, the authorisation to issue an implementing regulation ceases to exist, the possibility to repeal such a regulation also ceases to exist" (see Zářecký, P.: To the normative activities of ministries and other administrative offices. Administrative Law No 3 / 96, p. 140).
D.
It follows from the above that the question of the power of the MPSV to issue the contested decree must be followed, first and foremost, at the point of view of the constitutional principle of division of power. Moreover, this principle is, from a constitutional legal point of view, determining and primary in comparison with the structure and hierarchy of the rule of law, which is derived from the status and functions of individual powers and of national or regional authorities and from the powers conferred by the Constitution. The hierarchy of the rule of law and the legal force of individual legislation is merely a reflection of individual constitutional principles, such as the principle of democratic legitimacy of state power and the legitimacy of the people, the principle of division of power, etc.
The repeal of the relevant empowerment provisions contained in § 148a and § 275 (1) (b) of the Labour Code did not result in the automatic deregation of Decree No. 19 / 1991 Coll., which was therefore still valid after 31 May 1994, but on the other hand hardly without further applicable, i.e. effective, part of the legal order. However, it is clear that the legislature's will at the time expressed an effort to integrate the subject matter of the regulation into the text of the law in the future (cf. explanatory report on draft Act No. 74 / 1994 Coll., Press No. 548 / 93). In other words, from the point of view of the construction of the text of the law, which in the present case must also be interpreted by the legislator's will as shown in the explanatory memorandum, it was an implicit executive order that the legislation in question should be formally repealed.
If the legislature withdraws the relevant empowerment provisions of the law, it cannot be said that such deregulation also causes formal deregulation of implementing legislation without further delay, but in such a situation it is always necessary to examine the material assumptions of the existence and effect of such derived legislation. Such legislation - until it is formally repealed by another legislative act - remains the law in force, however, it must be taken into account when applying it that there is no material presumption of such a regulation, namely specific legal authorisation.
On the other hand, the Constitutional Court notes that if, in such a situation, the judicial authority is then confronted with the question of whether to apply the law in question, it is necessary to deal with precisely the absence of material assumptions as to the effect of such legislation, i.e. its effectiveness, and to deny the application (Article 95 (1) of the Constitution).
The Decree No 19 / 1991 Coll. was therefore, until the formal annulment of Decree No 405 / 2003 Coll. was a valid law, but a regulation which, in the absence of material conditions of further legislative action (absence of legal authorisation, material adjusted beyond the legal scope, etc.) was not an effective and applicable regulation, i.e. one which would be capable of producing legal effects in reality.
As regards the question of the power of the MPSV to abolish it, it is necessary to base itself on the facts raised above, in particular on the principle of power sharing. It follows from the above that the MPSV, which also falls within the competence of the regulation contained in the repealed Decree (§ 9 of the Law of competence), had the power to repeal the original Decree No 19 / 1991 Coll. without the need for express legal authorisation for such an act.
The power to legislate was not based on the repealed empowerment provision contained in the Labour Code, as the appellants thought, but already Article 79 (3) of the Constitution itself, which reflects the constitutional principle of division of power. In other words, throughout the period of the existence of the implementing legislation, the competent executive body shall have the powers to amend it - if the amendment respects the requirement contained in Article 79 (3) of the Constitution - and to repeal it. Also after the withdrawal of the legal authorisation for the issue of the implementing legislation, the competent executive body has a legislative power, but only the power to derogate from such a regulation, and since it was an abrogation act - i.e. an act without substance - it did not need a legal, competent definition which, as mentioned above, only the scope and content of such an act. In fact, the legislator cannot issue a mandate to abolish a substatutory provision because it is a self-governing power sphere of an executive that is not in such a case bound by the legislature, since, pursuant to Article 79 (3) of the Constitution, it issues an act without substance which could affect the legislator by simple law. On the contrary, it would be a violation of the principle of division of power if the legislature directly amended the relevant legislation contained in the implementing legislation.
In the present case, this conclusion is also supported by the fact that the legislature itself, in connection with the abolition of the legal powers contained in the Labour Code, declared that the regulation contained in the Decree was to be part of the law, not the statutory implementing legislation (see the explanatory memorandum to the draft Act No. 74 / 1994 Coll.), thereby giving the MPSV implicit instruction that the relevant decree should be annulled.
Therefore, the appellants' view that this is merely legislative power, which was entitled to repeal the original decree, cannot be accepted, possibly to empower it to abolish the executive. On the contrary, however, it should be maintained that if the legislature further considered appropriate and effective legislation contained in Decree No 19 / 1991 Coll. would now have to transpose it directly into the text of the law.
If, at the oral hearing, the appellants referred to the principle of the protection of acquired rights, then the Constitutional Court adds that the question of acquired rights to the claims in question may be addressed in individual disputes before general courts.
In the light of the foregoing, the Constitutional Court concludes that there are no grounds for the annulment of the contested law and therefore rejected the proposal under Paragraph 70 (2) of the Constitutional Court Act by a finding.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 568 / 2004 Coll., on the application for annulment of the Decree of the Ministry of Labour and Social Affairs No. 405 / 2003 Coll., repealing Decree No. 19 / 1991 Coll., on the employment and physical security of workers in mining for a long period of time unfit for work |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 11.11.2004 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Legal Areas:
Mining
Collective negotiations
Wages, salaries, wages, compensation
Labour relations
Employment. Service relationship
Labour law
Social security law
Judicial and Public Prosecutor's Office
Administrative law
Constitutional (state) law
Diseases, Sickness benefits
Special working conditions
The regulation text is for informational purposes only.
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