The Constitutional Court found No 7 / 2021 Coll.
The Constitutional Court found on 24 November 2020 sp. zn.
Valid
7
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 24 / 19 on 24 November 2020 in plenary composed of the President of the Court of Pavel Rychetský and judges and judges Louis David, Jaroslav Fenyk, Josef Fialy, Jan Filip, Jaromír Jirsa, Tomáš Licenčník, Vladimir Sládeček, Radovan Suchanek, Pavel Šámal, Catherine Šimáková (Judge of the Rapporteur), Vojtěch Šimíček, Milír Tomková, David Uhlír and Jiří Zemánek, on the draft group of senators, for which is represented by Mgr.
as follows:
Motion denied.
Reasons
1. A group of 30 Senators (hereinafter referred to as "the applicant") with a proposal under 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, registered on 29 November 2019, seeks the annulment of the above-specified legal provisions. According to the contested provisions of the Municipality, Region and City of Prague, the vacant members of their councils, who also serve as a Member, a Senator or a Member of the Government, receive a remuneration of 0.4 times the amount of remuneration which would otherwise be due to them as vacant members of the Council.
Arguments of the appellant
2. The appellant contends that the contested provisions are contrary to the principles of legal certainty and the protection of legitimate expectations as those of a democratic rule of law under Article 1 (1) of the Constitution, the right of citizens to have access to elected and other public functions on equal terms under Article 21 (4) of the Charter of Fundamental Rights and Freedoms ("the Charter ') and the right to a fair remuneration for work under Article 28 of the Charter, both individually and in conjunction with the prohibition of discrimination under Article 3 of the Charter. It further contends that the contested provisions, in their consequences, unduly interfere with the law of the local authorities in breach of Articles 8 and 101 (4) of the Constitution and are manifestly unreasonable.
3. The appellant points out that the contested provisions were inserted into the relevant laws by Act No. 263 / 2019 Coll., amending Act No. 128 / 2000 Coll., on Municipality (Municipal Establishment), as amended, Act No. 129 / 2000 Coll., on Regions (Regional Establishment), as amended, and Act No. 131 / 2000 Coll., on the Capital of Prague, as amended, and describes the legislative process of its adoption.
4. According to the appellant, if there is a breach of legal certainty and the protection of legitimate expectations, these principles are also linked to the stability of the regulatory environment. The appellant refers to the finding of sp. zn. Pl. ÚS 27 / 09 of 10.9.2009 (N 199 / 54 SbNU 445; 318 / 2009 Coll.) and recalls the case law of the Constitutional Court concerning the incorrect retroactivity of legal standards, namely the finding of sp. zn. Pl. ÚS 18 / 14 of 15.9.2015 (N 165 / 78 SbNU 469; 299 / 2015 Coll.). According to the appellant, it is not possible to fundamentally amend the "rules of play '(terms of office) in the middle of the current parliamentary term. The basic parameters of the performance of the function must be respected for the duration of the mandate of a member of the local authorities. The candidate's decision to apply for this public office was born on specific terms. In doing so, the candidates could, on the one hand, invest personal funds in an election campaign" with some degree of probability of subsequent longer-term financial saturation, but they also evaluated under what compensation conditions they would be willing to spend their time working in the council. "The new comprehensive legislation on the remuneration of representatives was introduced by Act No. 99 / 2017 Coll., amending Act No. 128 / 2000 Coll., on Municipality (municipal establishment), as amended, Act No. 129 / 2000 Coll., on Counties (regional establishment), as amended, Act No. 131 / 2000 Coll., on the City of Prague, as amended, and other related laws. The applicants for municipal elections in 2018, or new members of the town councils and the capital city of Prague, had a legitimate reason to believe that this legislation would remain stable for the duration of their mandate. The reduction in the remuneration of some representatives by 60% as a result of the contested provisions calls the appellant a radical change and a significant breach of legal certainty which does not meet the criteria of loading capacity. Even taking into account the stated purpose of saving public funds, this change will not stand.
5. The right to equal access to elected and other public functions, which the appellant further invokes, according to the above mentioned finding sp. zn. Pl. ÚS 27 / 09 or to the sp. zn. Pl. ÚS 73 / 04 of 26.1.2005 (N 17 / 36 SbNU 185; 140 / 2005 Coll.) also includes "the right to defend and execute these functions unhindered by the predetermined rules." The appellant points out that the members of the local authorities may, together with the performance of this function, engage or be employed and therefore cannot be prevented from performing any other public function. The contested regulation accuses the appellant that it does not concern a number of other possible contexts of functions, contrary to the regulation in Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of the State Government and of certain state bodies and judges and Members of the European Parliament, as amended. As an example, the appellant refers to the co-operation of the function of the representative of the local authority on the one hand and the role of a Member of the European Parliament, a member of the Broadcasting Council or a member of the Council of the Institute for the Study of Totalitarian Systems on the other. The different treatment of a group of representatives thus based on the conditions under which they are to exercise their mandate, compared with that of representatives not covered by the contested legislation, is not supported by any reasonable arguments. Even if the contested provisions were capable of saving funds, due to the disadvantage of the group of representatives concerned, they would not have been able to survive since the funds chosen were not adequate to achieve this objective, as required by, for example, the find of the sp. zn. In view of the alleged infringement of the right of equal access to elected and other public functions, the contested provisions should be subject to a proportionality test.
6. The right to a fair remuneration for work is, according to the appellant, applicable in the public sphere, including the remuneration of members of the council. According to the appellant, the sudden reduction in remuneration by 60% is completely outside the scope of fairness. The combination of functions may not entail a reduction in the quality of work. In addition, members of the representatives of the local authorities shall be liable for their activities, as well as for public and private liability, unlike Members and Senators, while the exercise of the agenda linked to the performance of the vacated member of the council generally increases the level of risk. The remuneration for the performance of such a function thus includes an element of compensation in relation to those risks, while the reduction in remuneration was not linked to a reduction in liability. While interventions in the right to fair pay for work are subject to a review of the rationality test, in view of the interference in the right to equal access to elected and other functions, a proportionality test should be used in this case. Furthermore, the appellant refers to its argument concerning the infringement of the right of equal access to elected and other functions and states that the different treatment of a group of released representatives also constitutes an infringement of the right to fair remuneration for work in conjunction with the prohibition of discrimination under Article 3 of the Charter. Different treatment according to it has no legitimate and reasonable reason and is being used by disproportionate means.
7. If there is interference with the right to self-administration, the legislature, according to the appellant, has omitted that it is the local authorities themselves or their representatives who decide to define the vacancies and who they will be advocating. The composition of the council itself is then decided by the citizens in the elections. They are generally very well informed of the fact that one of the candidates is also a Member, a Senator or a Member of the Government, and can make their own judgement on the appropriateness of such cumulation of functions. Members of councils who do not come into contact with the post of Member, Senator or Government member until later are also able to assess whether the accumulation of functions will bring them favor of voters in the next election or not. According to the appellant, the legislature is in complete disproportionately interfering with the sphere of discretion of the local authorities, or their bodies and citizens, which create the territorial community, thereby violating the constitutional right to self-government.
8. Finally, according to the appellant, the contested scheme would not fulfil a less stringent criterion of rationality and is manifestly unreasonable. The appellant refers to the explanatory memorandum to Act No. 263 / 2019 Coll., according to which "the transfer of experience from the communal or regional sphere to the activities of legislative bodies or governments (or vice versa) through persons active in both spheres may be beneficial and therefore there is no reason to prevent it" (Chamber of Deputies, 8th Election, since 2017, House Press 273 / 0). If the transfer of experience is perceived to be positive, it should be supported, according to the appellant, by maintaining the level of remuneration in cases of co-operation. Moreover, the reduction to 0.4 times the normal remuneration is not supported by any rational calculation or justification and shows the characteristics of randomness. According to the current legislation, a remuneration of up to 0.6 times the amount of the remuneration of the elected member of the council (cf. § 72 paragraphs 2 to 4 of Act No. 128 / 2000 Coll., on municipalities (municipal establishment), as amended, (hereinafter referred to as "the Act on Municipality '), § 47 paragraphs 2 to 4 of the Act No. 129 / 2000 Coll., on counties (hereinafter referred to as" the Act on Counties'), and Article 53 paragraphs 2 to 4 of Act No. 131 / 2000 Coll. As a result of the contested provisions, according to the appellant, the change of the vacant functions to non-released functions with a higher remuneration than in the case of the released functions in the run-up. At the same time, the possibility of remuneration for the performance of the duties of a member of the managing, supervisory or supervisory body of an undertaking in which the local authority has a share, when the released representatives do not receive such remuneration (cf. § 5 (2) of Act No. 159 / 2006 Coll., on conflicts of interest, as amended) is open. Such consequences show signs of absurdity and confirm the lack of reflection of the contested provisions of the laws in question.
Observations of the parties
9. In accordance with Article 69 (1) of the Law on the Constitutional Court, as amended by Act No. 18 / 2000 Coll., the Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic have spoken.
10. The Government and the Ombudsman have informed the Constitutional Court that they have decided not to use their powers under § 69 (2) and (3) of the Constitutional Court Act, as amended, and will not enter the proceedings as interveners.
11. The Chamber of Deputies refers in its observations to the description of the legislative process of the adoption of Act No. 263 / 2019 Coll., namely the amendment which the contested provisions were inserted into the relevant laws. This bill was submitted to the Chamber of Deputies by a group of Members on 12 September 2018 (Chamber of Deputies, 8th Election, since 2017, House Press 273 / 0). The Chamber of Deputies discussed the bill at first reading on 2 November 2018 and ordered it to be discussed by the Committee on Public Administration and Regional Development as a committee which issued a resolution published as House Press 273 / 2. The Chamber of Deputies then discussed the bill at second reading on 30 January 2019. The proposed amendments to the draft law were drafted and published as House Press 273 / 3. The Chamber of Deputies approved the bill at the third reading on 13 March 2019 at its 27th session in vote 263, in which of the 166 Members present, 93 voted in favour of the proposal and 40 opposed.
12. Following the rejection of the bill by the Senate (see the following paragraph), the Chamber of Deputies re-discussed it and re-voted on it on 24 September 2019 at its 34th session in vote 184, in which of the 175 Members present voted 118 for the proposal and 32 opposed. The draft law was therefore adopted. It was delivered to the President of the Republic for signature on 2 October 2019 and signed on 8 October 2019. The Act was published in the Collection of Laws on 18 October 2019 in the amount of 115 under No. 263 / 2019 Coll.
13. In its observations, the Senate recitates the appellant's argument and further addresses the description of the legislative process associated with Act No. 263 / 2019 Coll. after the referral of the bill to the Chamber of Deputies (Senate, 20th term of office, 2018- 2020, Senate Press No. 72). The Committee on Territorial Development, Public Administration and the Environment as a guarantee committee and the Committee on Economy, Agriculture and Transport recommended that the Senate reject the draft law and the Constitutional Legal Committee did not adopt a resolution on the draft law. The Senate dealt with the bill on 3 May 2019 at the 8th meeting. According to the Senate's comments in the debate on the proposal, criticisms were largely heard. The Senate then rejected the bill in vote 59, in which of the 48 senators present was 35 to reject the bill, four and nine abstained. According to the Senate, it is entirely up to the Constitutional Court to examine the application for annulment of the contested provisions and to rule on the case.
14. Since the observations of the two chambers of Parliament relate exclusively to the procedure for adopting the contested provisions against which the appellant raised no objection, the Constitutional Court did not consider it necessary to send those observations to the appellant for a reply.
Abandonment of oral proceedings
15. The Constitutional Court found no grounds for ordering oral proceedings as it could not be expected to further clarify the case (Section 44 of the Constitutional Court Act, as amended).
Text of the contested provisions
16. Paragraph 72 (1) of Act No. 128 / 2000 Coll., on municipalities (municipal establishment), as amended by Act No. 263 / 2019 Coll., reads:
"A vacated member of the council of a municipality who is a Member, a Senator or a Member of the Government shall be remunerated by the municipality at a rate of 0.4 times the amount of remuneration which would otherwise be due to the vacated member of the council of a municipality. '
17. Paragraph 47 (1) of Act No. 129 / 2000 Coll., on Counties (Regional Establishment), as amended by Act No. 263 / 2019 Coll., reads:
"A vacated member of the council who is a Member, a Senator or a Member of the Government shall be remunerated by the county at a rate of 0.4 times the amount of the remuneration which would otherwise be due to the vacated member of the council. ';
18. Paragraph 53 (1) of Act No. 131 / 2000 Coll., on the City of Prague, as amended by Act No. 263 / 2019 Coll., reads:
"To a relaxed member of the City Council of Prague, who is a Member, Senator or Government, the City of Prague provides a reward of 0.4 times the amount of the remuneration that would otherwise be due to a relaxed member of the City Council of Prague."
Proceedings
19. The Constitutional Court notes that it is competent to consider an application for annulment of the contested legal provisions, the application fulfils all the formal requirements laid down by law and the appellant was entitled [Paragraph 64 (1) (b) of the Law on the Constitutional Court]. It also finds none of the grounds for inadmissibility of the application or for the termination of the procedure. Therefore, the procedural assumptions of the proceeding are fulfilled.
Review of the procedure for the adoption of the contested provisions
20. In the procedure for the control of standards, the Constitutional Court, in accordance with Article 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., first examined whether Act No. 263 / 2019 Coll., by which the contested provisions were incorporated into the relevant laws, was adopted and issued within the limits of the Constitution established competence and in a constitutionally prescribed manner. In the case at issue, the Constitutional Court found, from the observations of the parties to the proceedings and from the parliamentary and Senate publications publicly available (at https: / / www.psp.cz and https: / / www.senat.cz), that this law was adopted within the limits of the Constitution established competence and in a constitutional manner. Moreover, no objections were raised by the appellant or any other party in this respect.
Meritative assessment of the contested provisions
21. The contested provisions reduced the remuneration to 40% of the remuneration that would otherwise be entitled to as representatives of the representative, senator or member of the government, to the elected representatives of the municipalities, regions and capital of Prague (Article 99 of the Constitution). Since the only difference between the provisions under appeal is the one which is concerned by the local authority and otherwise the provisions contained therein are identical, those provisions will be reviewed jointly.
Right of access to elected and other public functions on equal terms
22. According to the appellant, the contested provisions infringe the right of access to elected and other public functions on equal terms in accordance with Article 21 (4) of the Charter, which, according to the appellant, is also protected by the right to "unimpeded and enforced under predetermined rules'. In particular, the appellant contends that the legislator, without reasonable justification, has limited the level of remuneration of the elected members of the councils only in certain cases of co-operation.
23. Pursuant to Article 21 (4) of the Charter, citizens "have access to elected and other public functions on equal terms'. This provision does not guarantee individual citizens the right to perform a particular function but only the possibility to apply for it on equal terms [finding sp. zn.
24. The Constitutional Court also concluded in its caselaw that Article 21 (4) The Charter shall also include the right of elected and other public functions to be performed without interruption, including the right to protection against unlawful deprivation of such functions. The right to the uninterrupted performance of a post referred to by the appellant must be understood as meaning the right to retain the post for a specified period, unless conditions for termination of the performance of that function occur [see page II of the ÚS 53 / 06 of 12.9.2006 (N 159 / 42 of the SbNU 305); Similarly, the finding of sp. zn. III ÚS 1076 / 07 of 21.1.2008 (N 14 / 48 SbNU 145), paragraph 23; the finding of sp. zn. I. ÚS 2420 / 11 of 16.11.2011 (N 197 / 63 SbNU 291), paragraph 16.
25. However, the conditions for access to a public office - that is, the conditions under which a particular office can be applied and maintained if it succeeds - must be distinguished from the conditions under which the relevant public office is to be performed. They are no longer the subject of Article 21 (4) of the Charter, in particular points 94 and 110; in particular points (d) and (e) of Article 38 / 17 (149 / 2020 Coll.). These conclusions do not contradict the finding of sp. zn. The finding of sp. zn. The contested legislation does not lay down conditions for the exercise of public functions which, in their legal or factual consequences, would make it impossible to perform it fully (and which would consequently have to be regarded as conditions for access to the function or conditions for staying in it).
26. The contested provisions do not restrict the possibility of applying for office within the territorial authorities or the function of a Member, Senator or Government. Nor do they restrict the conditions for staying in these functions. They relate only to the amount of remuneration of the elected members of the council. The contested provisions therefore do not regulate access to public office within the meaning of Article 21 (4) of the Charter, but only the conditions for the exercise of public office (amount of remuneration), which are not covered by the provision in question.
27. The Constitutional Court is aware that the remuneration for public functions may also serve to ensure equal access to these public functions for all citizens, regardless of their property. However, the contested provisions clearly cannot or indirectly restrict individuals' access to public functions according to property, as they do not limit the remuneration of a Member, Senator or Government member. Nor does the appellant argue that the contested provisions would lead to indirect discrimination on grounds of property. This does not require further consideration.
28. Consequently, the right of access to elected and other public functions on equal terms was not affected by the contested provisions.
29. The remuneration of the elected members of the representatives should instead be reviewed in the light of the right to a fair remuneration for the work provided for in Article 28 of the Charter [cf. mutatis mutandis, the finding of the SPR 17 / 10 of 28 June 2011 (N 123 / 61 of the SbNU 767; 232 / 2011 Coll.), paragraph 51 concerning the reduction of the civil servants' salary] and to consider separately whether the contested provisions are discriminatory, as the appellant contended, or contradictory to the right to equal treatment.
Right to fair pay for work
30. According to Article 28 of the Charter, "[from] and the municipalities have the right to a fair remuneration for work '. Although this provision refers to employees, its scope is not limited to employees within the meaning of sub-constitutional law and needs to be interpreted more widely in accordance with the settled case law of the Constitutional Court.
31. Already in the decision sp. zn. I. ÚS 89 / 94 of 29.11.1994 (N 58 / 2 SbNU 151), this provision was applied to the remuneration of an attorney as an ex offo lawyer, although the lawyer in this relationship is not an employee from the point of view of subconstitutional law, and the broad interpretation of that provision is still in the Senate case-law of the Constitutional Court [see, for example, the finding of sp. zn. I. ÚS 190 / 15 of 13.9.2016 (N 171 / 82 SbNU 657), paragraph 57; the finding of sp. II ÚS 2873 / 11 of 29.3.2012 (N 67 / 64 SbNU 759); Findings sp. zn. II. ÚS 2388 / 10 of 21.4.2011 (N 80 / 61 SbNU 261) and finds sp. zn. II. ÚS 398 / 03 of 13.12.2007 (N 220 / 47 SbNU 903)]. The Constitutional Court's Board then concluded from Article 28 of the Charter that "everyone has the right to a fair remuneration for the work he has done 'and applied this provision in relation to the remuneration of the lawyer appointed as guardian [finding sp. zn.
32. In the present case, the Constitutional Court has testified to the appellant's argument that the remuneration of the vacant members of the representatives of the local authorities falls within the scope of the right to a fair remuneration for the work provided for in Article 28 of the Charter. The representatives of the local authorities do not exercise this public office in an employment relationship, even if they are released for the performance of their duties (cf. Section 79 of the Act on Municipality, Section 54 of the Regional Act and Section 58b of the Law on the City of Prague, according to which the Labour Code on the relationship between the employee and the local authorities applies in total only in cases defined there, and representatives are "considered as employees' for these purposes. However, by releasing a public office representative [§ 71 (1) (a) of the Municipality Act, § 46 (1) (a) of the Region Act, § 52 (3) (a) of the City of Prague Act], it is understood that it is released from a possible employment relationship which it would otherwise exercise or be able to exercise. Thus, instead of the remuneration (salary, salary) which would be due to him in such a employment relationship as an employee, the remuneration for the public office for which the representative has been made redundant shall take place. Since the application of Article 28 The instruments must be interpreted widely, including the remuneration of the members of the representatives of the local authorities, who perform the functions described above similar to the remuneration (salary, salary) of the employees. The Constitutional Court does not therefore comment on the question whether Article 28 of the Charter requires that members of the Councils generally receive remuneration for the performance of their duties or that the Institute of Released Members of the Councils is part of the legal order.
33. In this context, the Constitutional Court notes that the Czech Republic, when ratifying the European Charter of Local Government (Communication of the Ministry of Foreign Affairs No. 181 / 1999 Coll., as amended by the Communication of the Ministry of Foreign Affairs No. 369 / 1999 Coll.), has made a notification, in accordance with Article 12 thereof, that it does not feel bound by Article 7 (2) of this International Treaty, according to which the conditions under which local elected representatives are working "must allow adequate financial compensation for the expenses incurred in the performance of the relevant function, compensation of income lost or remuneration for the work performed and corresponding social security '. It is therefore clear that, even in the level of its international obligations, the Czech Republic sought to maintain discretion in this area. [For the status of the European Charter of Local Government from the point of view of constitutional order, see for example the find sp. zn. the finding sp. zn.
34. The right to a fair remuneration for work is systematically among the economic, social and cultural rights and Article 28 of the Charter in which it is guaranteed is one of those provisions which, pursuant to Article 41 (1) of the Charter, can be claimed "only within the limits of the laws implementing those provisions." The Constitutional Order thus provides the legislature with wide discretion as to how this right will be implemented at the legal level [finding sp. zn. According to the settled case law of the Constitutional Court, the law in the case of rights subject to Article 41 (1) of the Charter must prevail in the so-called rationality test.
35. The rationality test consists of four steps. The first is the definition of the meaning and substance of economic or social law, namely its essential content. The second is whether the law does not affect the very existence of economic or social law or the actual realisation of its essential content. The third step is to assess whether the legal regulation pursues a legitimate objective, namely whether it is an arbitrary fundamental reduction in the overall standard of fundamental rights. The final fourth step is to consider whether the legal means used to achieve it is rational, although not necessarily the best, most appropriate, most effective or wisest [see sp. zn. Pl. ÚS 1 / 08 of 20.5.2008 (N 91 / 49 of SbNU 273; 251 / 2008 Coll.); For example, the finding of sp. zn.
36. However, it is not always necessary to perform a full rationality test. If it is obvious that the contested regulation does not affect the essential content of the law subject to Article 41 (1) of the Charter, there is no need to give more detail to the positive definition of that essential content and the issue of intervention, namely the first and second steps of the rationality test. In such a situation, the Constitutional Court is confined to examining whether the contested regulation pursues a legitimate objective and is rational in achieving it, namely the third and fourth step of the rationality test [see sp. zn.
37. The contested provisions clearly do not affect the essential content of the right to fair pay for work. Although they limit the remuneration of individuals as vacant representatives to 40% of the amount they would otherwise be entitled to, they do not reduce their remuneration resulting from the parallel function of a Member, a Senator or a member of the Government. The Constitutional Court therefore considers that there is no need to carry out the first two steps of the rationality test. Indeed, the appellant does not claim that there would be any interference with the essential core of this fundamental law and, in the Czech legal order, it is possible to find a stricter regulation chosen by the legislator in the event of a confluence between the following functions: the member, the Vice-President and the President of the Broadcasting Council, the Vice-President and the President of the Office for the Protection of Personal Data, the member, the Vice-President and the President of the Institute for the Study of Totalitarian Systems, the member of the National Budget Council of the Czech Telecommunications Office and the President of the National Sports Agency. In this case, only one of the two salaries belongs to that representative (cf. § 34 (2) of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of the State and of certain state bodies and judges and Members of the European Parliament, as amended).
38. The review of the right to fair pay for work will thus be limited to assessing whether the contested provisions pursue a legitimate objective and whether they are rational, i.e. the third and fourth steps of the rationality test to achieve it.
39. The legislative intention of accepting the contested regulation is based on the explanatory memorandum to the amendment made by Act No 263 / 2019 Coll. (House Press 273 / 0), which introduced the contested provisions into the relevant laws. According to the explanatory memorandum, the aim of the amendment was "to save funds in the budgets of the local authorities (intended for the remuneration of the elected members of the councils) and to avoid excessive accumulation of functions and rewards, primarily in order to increase the remuneration received '. According to the explanatory memorandum, the incompatibility (incompatibility) of functions has not been established because" the transfer of experience from the communal or regional sphere into the activities of the legislature or government (or vice versa) through persons active in both spheres may be beneficial and therefore there is no reason to prevent it from doing so'. These parts of the explanatory memorandum are also highlighted by the appellant, which, however, makes them the sole objective of saving funds in the budgets of the local authorities. The Constitutional Court does not agree with this because, moreover, the explanatory memorandum refers to preventing the accumulation of functions, so that the legislator's intention was to limit the number of cases where the public functions concerned are simultaneously performed by reducing remuneration.
40. It should also be pointed out from an objective point of view that, in addition to the reduction in the funds which the local authorities incur on the remuneration of the members of the representatives released, the contested provisions are, by reducing the financial advantage of the simultaneous holding of relevant public functions, eligible to discourage the simultaneous exercise of those functions and to reduce the number of cases where the cumulation of functions takes place.
41. The objective of saving public finances has already been assessed in the past by the Constitutional Court as a legitimate objective for limiting the right to fair pay for work under Article 28 of the Charter, and there is no reason for the Constitutional Court to derogate from that assessment in the case under consideration (see the finding already cited in the sp. zn.
42. However, the objective of limiting cases where the vacancy of a local authority representative takes place, and Members, Senators or Members of the Government, the primary objective pursued by the contested provisions, is legitimate, for the following reasons.
43. One of the principles on which the constitutional order of the Czech Republic is built is the division of power. This concept intersects with the whole system of constitutional order. In addition to the horizontal division (state) of the power to legislature, executive and judicial power, which has a textual support in Article 2 (1) of the Constitution and manifests itself with the braking and counterbalance system [see for example the finding of sp. zn. Pl. ÚS 77 / 06 of 15.2.2007 (N 30 / 44 of SbNU 349; 37 / 2007 Sb.), point 47; the finding of sp. zn. Pl. ÚS 18 / 06 of 11.7.2006 (N 130 / 42 of SbNU 13; 397 / 2006 Coll.);
44. The principle of division of power is also part of the staffing aspect, namely the question of the extent to which they are to be separated or, on the contrary, the individual components of power may be linked from the point of view of the persons performing the relevant part of the public power.
45. The constitutional order in the area of vertical division of power explicitly provides for the incompatibility of the function of judge "with any function in the public administration" (Article 82 (3) of the Constitution), which includes the territorial administration, and therefore membership of the local authorities is excluded. However, the incompatibility or any other restriction on the simultaneous exercise of legislative (Member or Senator) or executive (Government Member) functions, on the one hand, and the function of a member of the local authorities' representative, on the other hand, is not enshrined in constitutional order. This means that this issue is in the hands of the legislator. It is at his discretion, while respecting constitutional limits, to define, by means of legislation, whether and to what extent the simultaneous exercise of functions in the power of legislative or executive and in the representatives of local authorities will be restricted. However, in view of the fact that the vertical division of power is one of the principles of constitutional order, the regulation supporting the vertical division will be able to pursue a legitimate objective through its greater staffing separation.
46. In other words, the constitutional order introduces a vertical division of power (the separation of government and government pursuant to Articles 8 and 100 (1) of the Constitution) and requires the existence of territorial autonomous units with a legal scope (Article 104 (1) of the Constitution). However, it leaves the issue of the personnel aspects of the vertical division of power open, with the exception of the explicit incompatibility of the function of judge with those of the local authorities (Article 82 (3) of the Constitution). It is not for the Constitutional Court to comment on whether it is more appropriate or wiser not to restrict in any way the cases where these powers are linked, or, on the contrary, to promote their staffing separation, or to what extent they are to become. The question of whether and, where appropriate, to what extent the staffing department of state power - legislative, executive - and local authorities - is to be provided is for the legislator to resolve. It is his task to assess whether and with what intensity he considers appropriate to promote the staffing separation of these powers. It is only the task of the Constitutional Court to assess whether the legislator's choice of solution has not been in conflict with constitutional order.
47. The Constitutional Court therefore summarises that the structural principles of constitutional order also include the division of power among the powers of the legislative, executive and judicial powers (Article 2 (1) of the Constitution) and the territorial authority (Article 8 and Article 100 (1) of the Constitution). Since the constitutional order is not regulated by the staffing department of these powers in the event of a merger of membership of the local authorities and the performance of the duties of a Member, senator or member of the government, it is up to the legislator whether and to what extent, while respecting constitutional order, it will promote the staffing separation of those powers. This is a legitimate objective which the legislator can pursue through legal regulation and which it can use other means than to establish the incompatibility of functions.
48. The contested provisions reduce the incentive to act simultaneously as a Member, a Senator or a Member of the Government and a vacated member of the local and regional authorities, thus reducing the number of cases where such functions are cumulated. They therefore support a greater degree of separation between the state power exercised by Parliament and the government and the local authorities and therefore pursue a legitimate objective.
49. Finally, the contested scheme is rationally linked to both objectives. If the co-operation of the functions is not removed, the contested provisions shall at least result in savings of the funds of the local authorities. The appellant's objection that, in some cases, the territorial body may decide that the relevant function will be newly vacant and in such a case the remuneration of up to 0.6 times (paragraph 8 above) may be combined with it does not change that. Firstly, this would be the result of a decision by the Authority to which it is entitled, while the contested provisions do not aim to regulate the remuneration of the unreleased members of the councils. Secondly, even a remuneration of 0.6 times is clearly lower than the full remuneration, and even in this case, the objective of saving funds would be achieved, albeit to a lesser extent. Even taking into account this possible impact of the contested provisions, it would therefore be possible to establish a rational link between the objective pursued and the means used. The appellant further points out that, when changing functions to non-released persons, additional remuneration may be granted to members of the councils for the performance of the duties of a member of the management, supervisory or supervisory body of the undertaking of the legal person in which the territorial body has a stake (point 8 above), but such remuneration is not subject to regulation by the contested provisions. the objection does not alter the conclusion that the contested provisions are rationally linked to the objective of saving the funds of the local authorities on the remuneration of the members of the representatives who have coined the functions.
50. Furthermore, the contested provisions are eligible, as they disadvantage the simultaneous exercise of functions in self-government and power by legislative or executive reduction of the remuneration of the elected representative, to limit the number of cases where such functions coincide. They are therefore rationally linked to the aim of strengthening the personnel aspect of the vertical division of power.
51. It is up to the legislator to decide to use this very device and, for example, not to adopt a broader scope, in general, on the remuneration of the representatives of the local authorities, or to choose the way in which incompatibility of functions is anchored. In any event, the irrationality of the legislation cannot be seen as such.
52. Thus, the contested provisions have passed the rationality test and do not infringe the right to a fair remuneration for the work guaranteed by Article 28 of the Charter.
Equality and non-discrimination
53. The appellant also contends that the right to equal treatment (non-discrimination) is infringed. The Constitutional Court has, in its decision sp. zn.
54. As is apparent from the cited finding of sp. zn. In view of the fact that the Constitutional Court, in its case-law, has, in addition to the constitutional protection of equality in fundamental rights under Article 3 (1) of the Charter, also recognised the constitutional protection of equality in all rights, or the general prohibition of libel in accordance with Article 1 of the Charter, the distinction itself between accessorial or non-accessorial equality in legal proceedings before the Constitutional Court is not of fundamental importance as all possible objections relied on by Article 3 (1) The documents shall always be "covered" by the provisions of Article 1 of the Charter, the scope of which is wider by nature. The intensity of the constitutional review is not primarily dependent on whether the unequal treatment takes place in relation to another constitutionally guaranteed law (accesoristically) or not (non-accesorically). In particular, the reason for the different treatment, that is to say the distinctive character established, and at the same time the specific right or the good in respect of which it is treated differently is crucial. This must be in accordance with the requirements laid down by the Constitutional Court to justify the legitimacy (justification) of the different treatment (finding sp. zn.
55. In distinguishing on the grounds of so-called suspects, namely those relating to the personal characteristics of an individual having a close relationship with the protection of human dignity, there must be very strict claims to justify the different treatment, even if the different treatment does not concern another fundamental right. On the contrary, if different treatment (distinguishing character) is a criterion commonly and strictly applied in a particular area of legal regulation (e.g. income level in tax legislation), even if different treatment would affect another fundamental right (property protection), the intensity of the constitutional review will be low (point 102 of the Opinion of the Court of First Instance of 18 / 15.
56. The Constitutional Court also identified these grounds in the already cited finding of sp. zn.
57. The grounds for distinction shall be considered to be, first and foremost, those specified in Article 3 (1) of the Charter (sex, race, colour of the skin, language, faith and religion, political or other sentiments, national or social origin, membership of a national or ethnic minority, property, genus), and those which correspond to those categories in a type and thus fulfil the characteristics of a different position within the meaning of the provision referred to. The question as to whether the intensity of the review varies between the various suspected reasons does not need to be addressed in the present case.
58. In examining whether there has been a breach of the right to equal treatment because of the distinguishing criteria applied in the legislation, it is necessary to assess whether the first is comparable individuals or groups; 2. they are treated differently and for what reason; 3. Different treatment for individuals or groups is to be imposed on them (by imposing a burden or by denying good); 4. This difference in treatment is justified, i.e. (a) pursues a legitimate objective and (b) is proportionate [cf. Similarly to the finding of sp. zn.
59. The intensive review of the proportionality of the different treatment [step 4b)] will depend mainly on the reason for the different treatment applied and on the specific right or good involved in the different treatment (see paragraphs 46-49 above; cf. Similarly, the finding of the sp. zn. The lower intensity will constitute a requirement for a rational legal relationship to the objective pursued, i.e. whether it can in any way contribute to the achievement of that objective [cf. Cf. Cf. The higher intensity will then express the proportionality requirement in relation to the objective pursued. (However, this does not mean that the intensity of the review cannot be further differentiated)
60. In the present case, the Constitutional Court assesses as comparable the dismissed members of the representative, acting simultaneously as a Member, a Senator or a Member of the Government, and the vacant members of the representative who simultaneously perform different public functions, are employees or are otherwise engaged in private activities, on the other hand. The first group of persons is treated differently as a result of the provisions under review, since they are remunerated only 0.4 times the remuneration they would otherwise have received. However, this different treatment is not based on any of the so-called suspicious grounds within the meaning of Article 3 (1) of the Charter, but only on the simultaneous holding of another public office. Furthermore, there is no doubt that the treatment which this group of representatives is subject to is due to a reduction in their remuneration.
61. The distinction between loose members of the municipal councils, depending on whether they act as a Member, a Senator or a Member of the Government, or other public office or are engaged in private activities, nevertheless follows a legitimate objective, as it promotes a vertical division of power (between the state power exercised by Parliament and the Government, on the one hand, and the Authority, on the other hand), which was found to be a legitimate objective above.
62. In the light of the intensity required in the review of the proportionality of the different treatment, it is relevant that the contested scheme is not based on a suspicious criterion and that it only interferes with the right to a fair remuneration for the performance of work which can only be claimed within the limits of the implementing acts provided for in Article 41 (1) of the Charter and thus the legislator has wide discretion in adopting this legislation. For these reasons, the right of equal treatment review must also have a lower intensity in this step and, therefore, it is sufficient for the legislation to achieve a defined objective in a rational relationship. Thus, the Constitutional Court does not agree with the appellant's view that the legislation should have been subject to a proportionality review.
63. The Constitutional Court has already concluded that the contested regulation is rationally linked to the achievement of the objective of a greater staff department of the local authorities and the authorities of the State (Parliament and the Government) as one of the aspects of the vertical division of power, and in this regard it is sufficient to refer to the considerations set out above. It can also be reasonably justified that the legislator has not similarly reduced remuneration in the event of the parallel exercise of other public functions or activities in the private sphere. For other public functions, the interest in supporting the division of power is not as intense as it is with the members of Parliament as a legislative or government body as the supreme executive body. If there is a conflict with private activities, they are no longer, by their nature, linked to the exercise of public authority and could not, therefore, be pursued by the legislature by the aim of strengthening the division of power. Therefore, the appellant's objections that the contested scheme is irrational for these reasons are not justified. Thus, the contested adjustment will stand in terms of the right to equal treatment.
64. In conclusion, the Constitutional Court reiterates that the appellant does not object to the fact that the contested provisions would prevent individuals from having access to public functions in relation to their assets as a suspected cause, namely that they would lead to indirect discrimination on grounds of property. The Constitutional Court notes that it did not find any reason to examine this issue in more detail, since the contested provisions clearly do not have this effect - even in the event of a reduction in the remuneration of a member of the representative, the remuneration associated with the performance of the duties of a Member, a Senator or a Member of the Government will not be limited.
Legal certainty and principle of prohibition of retroactive legal standards
65. According to the appellant, the contested provisions were affected by legal certainty and the legitimate expectations of the elected members of the representatives acting at the same time as Members, Senators or Members of the Government. Indeed, the legislation on their remuneration has fundamentally changed during their parliamentary term, which the appellant attaches to changing the rules during the game.
66. In its caselaw, the Constitutional Court stated that part of the rule of law under Article 1 (1) The Constitution is also the protection of legal certainty and the resulting principle of protecting citizens' trust in the law and the prohibition of retroactivity. In doing so, the Constitutional Court distinguishes between the true retroactivity which is fundamentally inadmissible and the false retroactivity which is fundamentally permissible. The essence of genuine retroactivity is that the rule of law causes legal relations to arise before its effect under conditions which have only been set subsequently, or on the basis of which legal relations arising under the old legislation are changed, with effects up to the period before the new law is effective. In the case of false retroactivity, although the new law does not create legal consequences for the past, it legally qualifies as a condition for future legal consequences or modifies for the future legal consequences based on earlier rules [the finding of sp. zn.
67. The generally permissible false retroactivity may be found inadmissible if the legislation "affects trust in the substance of the facts and the importance of the legislative wishes to the public does not exceed, or does not exceed, the individual's interest in the continued existence of the existing law '[see sp. zn.
68. The issue of the admissibility of false retroactivity must be distinguished from the issue of legitimate expectations as part of the right to the protection of property pursuant to Article 11 (1) of the Charter and Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms [see the find sp. zn. This institute does not protect the inconsistency of the remuneration in the future, even if the amount of the remuneration depends on the legal regulation [see the similarly cited finding, p. Pl. ÚS 17 / 10, paragraph 52, rejecting the concept of legitimate expectations as "inviolability (non-aggravating) of civil servants' pay ratios']. Furthermore, only the question of retroactivity of the contested provisions must be addressed.
69. The contested provisions became effective on 1 January 2020 (on the first day of the third calendar month following the publication of Act No. 263 / 2019 Coll., namely the amendment to which the contested provisions were incorporated into the relevant laws, in accordance with Article IV thereof). In the absence of transitional provisions, these amendments changed from the effective date of the remuneration of the elected members of the representatives who also hold the position of a Member or Senator (or a member of the government) during the parliamentary term of the respective councils - regular elections to the representatives of the municipalities, the representatives of the capital city of Prague and the representatives of its urban areas took place on 5 and 6 October 2018; elections for regional councils on 7th and 8th October 2016. Thus, this change in remuneration rules has the character of false retroactivity in relation to those councils. On 2 and 3 October 2020, elections were held to regional councils and, in relation to newly elected regional representatives, the retroactivity of the contested regulation could no longer be discussed.
70. Incorrect retroactivity is generally acceptable and exceptional circumstances, why this should not be the case in the present case, the Constitutional Court did not find that. As the Constitutional Court stated in the already cited finding sp. zn. Furthermore, it should be stressed that the contested provisions reduce the remuneration only to the members of the councils. The question of which positions will be released by the representatives and which representatives will be, depends on the decision of the relevant representative, which may vary during the parliamentary term. Thus, the expectation that they will continue to be released for the performance of their duties is always limited to the probability that the political decision of the council will not be changed. If it is permissible that, as a result of the decision of the council, the remuneration under consideration is completely withdrawn, it is more likely to be reduced by law. Therefore, there was no breach of legal certainty and of the underlying principles of protection of the trust of the persons concerned in law and the prohibition of retroactive legislation.
Right to self-administration
71. According to the appellant, the contested provisions infringe the right to self-administration under Articles 8 and 100 (1) of the Constitution. The appellant points out that the council decides what functions are associated with the vacancy for the performance of its duties, as well as who will hold it, and is subject to political control by the elections. The assessment of the suitability of the accumulation of functions should therefore be left to the Authority. The appellant considers that the intervention in remuneration is wholly disproportionate and therefore inadmissible.
72. However, the Constitutional Court notes that the contested provisions do not interfere in any way with the right to self-administration. Their abolition would not result in the territorial authorities themselves being able to assess the level of remuneration of the vacant members of their councils, where the functions had been cumulated in question, but would have had to provide them with a full remuneration, as is the result of the statutory regulation and the Decree of the Government for its implementation (see Section 73 of the Municipality Act, Section 48 of the County Act, and Section 54 of the City of Prague in conjunction with Decree No. 318 / 2017 Coll., on the remuneration of the representatives of the local authorities, as amended). In so doing, the appellant does not contest the rules governing the remuneration of the elected members of the representatives as a whole and does not contest that, in view of the right to self-administration, this area should be wholly or to a wider extent entrusted to the territorial authorities. Thus, this issue does not need to be addressed in more detail in the case under consideration.
Conclusion
73. As the Constitutional Court did not find the contested provisions to be contrary to the constitutional order, it rejected the application for annulment pursuant to Paragraph 70 (2) of the Constitutional Court Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Radovan Suchanek took a different position on the decision of the full court.
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Regulation Information
| Citation | The Constitutional Court found no. 7 / 2021 Coll., on the rejection of the application for annulment of § 72 paragraph 1 sentence of the third Act No. 128 / 2000 Coll., on municipalities, § 47 paragraph 1 sentence of the third Act No. 129 / 2000 Coll., on regions, and § 53 paragraph 1 sentence of the third Act No. 131 / 2000 Coll., on the capital city of Prague |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 12.01.2021 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
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