The Constitutional Court found No 78 / 2001 Coll.

Motion denied.

On 29 June 2000, the Constitutional Court received a proposal from the Karviné District Court for the annulment of certain provisions of Act No. 111 / 1994 Coll., on Road Transport, as amended by Act No. 304 / 1997 Coll., hereinafter referred to as the "Road Transport Act '. In particular, Article 18a (1) (c), as amended by:" order a passenger who has not proved to be a valid travel document, pay a premium or require the passenger to have the personal data needed to recover the premium', Paragraph 18a (2) (b) of the sentence after the semicolon, as amended by: "If he does not prove to be a valid travel document, pay the premium or prove himself to be the personal data needed to recover the premium 'and Section 18a (3) of the Act as amended:" The amount of the premium shall be determined by the carrier in transport conditions. The amount of the premium may not exceed CZK 1000. "The President of Chamber 27 C, acting on behalf of the District Court in Karviné Mgr. Milan Pelikan, stated in the application that the applicant sought a decision by which the defendant's court would have undertaken to pay the claimant an amount of CZK 408 with accessories. It was argued in the application that the defendant was unable to prove to the traffic controller a valid ticket in Prague on 26 June 1998 on line 113 of public transport operated by the applicant and thus fulfilled the conditions for the applicant to claim payment of CZK 408. For the evidence, the applicant submitted a document marked" Report on the identification of the passenger and the offence against the MRS' No 2100500, from which it was found that the defendant on line 113 at 13.50 hours at the time of the inspection at the station from Zálesí to Kacherov did not prove any travel document. The Charter also contains an indication of the type of offence referred to as "A ', the defendant's personal data, an indication of the penalty in the amount of CZK 400, an indication of the fare in the amount of CZK 8 and the details of the controller and his signature. The report was processed on 28.6.1998.

In the legal assessment of the facts described The Karviné County Court was based in particular on Article 1 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), Sections 1 (2), 2, 3, 488, 760 and 772 of the Civil Code, Sections 1, 2 (2), 18a (1) (c), 2 (b) and 3 of the Road Transport Act, effective from 1.4.1998.

In its application, the Court stated that, pursuant to Article 1: The Charter is free and equal in dignity and in law. This equality in rights is a fundamental right which is inalienable, inalienable, unbiased and unbreakable. While the Charter does not expressly provide that it also applies to legal persons, the court considers that, where a legal person acts in civil relations, Article 1 of the Charter also applies to a relationship between that person and a natural person. Article 1 In the view of the Court, the Charter is also transferred to a lower legal force, namely Article 2 (2) of the Civil Code, according to which participants have an equal status in civil relations.

The contract for the carriage of persons is subject to the legal regime of the Civil Code. According to Section 760 of the Agreement on the carriage of passengers, a passenger who uses the means of transport for a specified fare is entitled to transport it to his destination in due time. The passenger enters into the means of transport shall conclude a transport contract with the carrier on a consistent basis. The standard put forward for annulment, the provision of which the court would have to apply in this case, is, in the view of the Karviné District Court, in its nature, a standard of public law, an inadmissible advantage to the claimant in relation to private law and is therefore contrary to Article 1 of the Charter (and Article 2 (2) of the Civil Code). The unilateral advantage on the part of the carrier consists in the possibility of imposing a penalty and determining its amount in the form of a so-called premium if the passenger does not prove to be a valid ticket. The imposition of a penalty and, therefore, the infringement shall be decided by the delegate of the other Contracting Party, who should be in the same position as the defendant in the context of the relationship. In the view of the Court, neither the reference to specific legislation (Section 772 of the Civil Code) changes that. The Court of First Instance considers that, in private relations, participants are entitled to negotiate a penalty for any breach of the contractual obligation between themselves, unlike public relations, where sanctions are designed to protect the public interest. Such protection in that case is not, in the view of the Court, justified and, in other cases, not granted to commercial legal persons in the form of a legal standard so designed.

The rule of law, which the court has proposed to abolish, is, in its view, clearly a public norm. There is no doubt that the State may empower a person of a non-state character (private law body) to exercise public authority under the "remaining public authority 'to manage public affairs, if there are grounds for doing so. In the present case, the Court of First Instance concluded that this is a civil relationship which is subject to the institutions of the Civil Code and one or the other party is entitled to claim its rights (damages, the issue of unjustified enrichment, etc.). In the view of the Court, the possibility of imposing a mark-up under the above-mentioned provisions of the law is not a standard of private law.

As is further stated in the proposal by the district court, it based its reasoning on the division of legal relations into private and public relations. Public interest is a prerequisite for issuing a standard interfering with the private law ratio. Where applicable, penalties shall be imposed by the delegates under the procedural arrangements laid down for the relevant part of public liability in order to respect the proper protection of the rights of the body of unequal status. According to the Court, it is necessary to consider the extent to which this is of public interest, in particular in a situation where the carrier is able, in the current state of the art, to ensure the transport of persons in such a way as to exclude persons without a valid ticket in advance.

As the Court states in the application, by order of 24.11.1999 sp. zn. 27 C 186 / 99, in conjunction with the order of the Regional Court in Ostrava of 31.3.2000 sp. zn. 13 Co. 297 / 2000, the Court of First Instance has suspended the procedure provided for in § 109 (1) (b) of the Civil Code and, in accordance with § 64 (4) of Act No 182 / 1993 Coll., on the Constitutional Court, submits to the Constitutional Court an application for the annulment of the various provisions of the Law, since it is convinced that they are contrary to Article 1 of the Charter.

After reviewing the formal terms of the proposal, the proposal was sent to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic with a call for written observations in accordance with § 69 (1) of Act No. 182 / 1993 Coll., as amended.

In its observations, the Chamber of Deputies stated that the obligations which the Road Transport Act grants in Paragraph 18a to one of the parties to the contract on the carriage of persons are supported by Article 4 (1) of the Charter, which provides that obligations may be imposed only on the basis of and within the limits of the law and only with respect to fundamental human rights and freedoms. Neither the Charter nor the Constitution of the Czech Republic (hereinafter referred to as the Constitution) provides that obligations imposed after the fulfilment of those conditions may apply in the field of acts of a nature of private law or vice versa that the obligations laid down by the law may be applied only in relations of purely public law. Legal relations arising in different modes of transport have traditionally been governed by laws and by statutory law both in the field of private and public law, and this is also reflected in contractual relations on the transport of persons, animals or goods. It follows from the nature of the transport, that one of the Contracting Parties, which is the carrier, is each time equipped with more authorisation than the other. This is the result of the need to ensure, in particular, the safety of traffic and hence transport, as well as the need to protect other public interests relating to transport and transport.

In addition, the fact that the transport services are provided by individual carriers under the public service obligations to ensure basic transport services (§ 19, 19a, 19b of the Road Transport Act) or other transport services (§ 19c of the Road Transport Act), which takes place on the basis of an order and a subsidy from the State or a local authority, is opposed to the adoption of contracts concluded in public bus services by persons as purely private relations. The contractual transport relationship is therefore taking place with the participation of a public budget, thereby bringing into it a significant and very clear public law element, and it is therefore understandable that in this situation the legal system contains legal institutes which can protect the management of carriers from a very common phenomenon such as the non-payment of passengers. The entire model of the public service obligations is, in the opinion of the Chamber of Deputies, compatible with Community law, namely Council Regulation No 1191 / 69 EEC on the actions of the Member States relating to the obligations arising from the concept of public service in rail, road and inland waterway transport, as amended by Council Regulation No 1893 / 91 EEC. In its observations, the President of the Chamber of Deputies further points out that Section 18a of the Road Transport Act, which is the proposal of the Karviné District Court, was already subject to further amendment, by Act No. 150 / 2000 Coll., which took effect on 1 July 2000. Act No. 111 / 1994 Coll., on Road Transport, and its amendment by Act No. 38 / 1995 Coll., No. 304 / 1997 Coll. and No. 150 / 2000 Coll. were approved by the necessary majority of Members of the Chamber of Deputies, signed by the relevant constitutional authorities and duly declared in the Collection of Laws.

In its comments on the proposal, the Senate stated that the draft law amending and supplementing Act No. 111 / 1994 Coll., on Road Transport, as amended by Act No. 38 / 1995 Coll., was submitted for consideration by the Parliament of the Czech Republic and was referred to the Senate after its approval by the Chamber of Deputies. One of the main reasons for submitting this bill was, according to the petitioner, the intention to further regulate the relations between the passenger and the carrier in public scheduled transport. In particular, the Act has newly enacted the authority of the carrier's authorised personnel against passengers, including the right to exclude the passenger from the transport in specified cases, to impose on him the payment of the increased tariff or to require him the personal data necessary to recover the increased tariff. The Senate discussed the bill at its 9th meeting on 13 November 1997 and approved it as referred to by the Chamber of Deputies. Of the 65 senators and senators present, 64 were in favour, no one was against it.

As regards the appellants' objections concerning the contested provisions of the Law, the Senate stated that the transport of citizens by public transport means can be characterised as a service in which, on the part of the transport undertaking, the provision of transport on a given route is offered and, on the other hand, that offer is accepted by the citizen in the form of a consistent negotiation involving the boarding of the means of transport concerned. By embarking on the means of public transport, passengers are consistently acceding to the entire scope of the service provided, including the cost of transport. However, it also accedes to a secondary arrangement of this Treaty, namely the obligation to have a valid ticket with it and to submit it to the authorised person of the carrier for inspection. All these details of the contract must be included in the transport conditions of the carrier which are issued on the basis and in accordance with the Road Transport Act or its implementing rules, as appropriate. The possibility of introducing a specific tariff premium in the event of non-payment of the fare and its specification in terms of transport conditions may be considered as a type of contractual fine. There is an undeniably public interest in the operation of public transport, which is justified by the specific regulation of relations between the carrier and the passenger.

The Constitutional Court also referred to the Ministry of Transport and Communications with a request for an opinion, which falls within the scope of the road transport legislation.

In its observations, the Ministry stated, inter alia, that, in general, the legal relationships arising from the carriage of persons between the parties to the transport relationship, i.e. between the passenger and the carrier, are governed by the Civil Code, which contains only basic provisions which in general affect all modes of transport. However, given the specificities of the different modes of transport, other legislation, such as the law, in the present case the Road Transport Act, is also essential to the regulation of transport rights. From the point of view of the participants in transport relations, transport schedules are also essential, which complement as implementing regulations the general regulation of the Civil Code and the laws on the various modes of transport by defining in more detail the relations of the participants in transport contracts. Therefore, within the limits of the legal authorisation, the transport rules govern the basic transport conditions for each mode of transport. In order to impose a penalty for the non-payment of the fare, i.e. the payment of the fare premium, an authorised carrier is entitled under the Road Transport Act. In the Ministry's view, however, this is not an intervention in the equality of participants in a private relationship, but the State merely regulates some of the obligations of one of the parties here, in a coherent manner, without affecting whether the other party will accept the terms of the contract so formulated. The Ministry contends that the appellant does not specifically state why the legislation thus envisaged interferes with the rights protected by the Charter and, on the contrary, clearly ignores the fact that the legislation adopted protects the passenger. In fact, if the principle of equality of relations and the unlimited right of disposal were to be consistently applied, the carrier would be able to decide under which conditions the passenger would be transported and the conditions of carriage would always have to be covered by a specific transport contract. By declaring its contractual terms and conditions by publishing their full text at the places of contact with passengers and then publishing a substantial part of them in the timetable and in the vehicle, the passenger is allowed to familiarise himself with the amount of the premium.

As the Ministry also points out in its opinion on the proposal, the fact that the transport services are provided by individual carriers under the public service obligation to provide essential transport services or other transport services is opposed to the adoption of transport contracts concluded in public regular services as purely private relations. The contractual transport relationship takes place with the participation of a public budget, thereby bringing into it a significant and very clear public law element, and it is therefore understandable that in this situation the legal order contains institutes which can protect the management of carriers from a very common phenomenon such as non-payment of fare passengers. The Ministry therefore takes the view that the public interest, which the Karviné District Court calls into question, is given to a sufficient degree.

In particular, the Constitutional Court had to deal with the question of whether the application lodged by the Karviné District Court was admissible in the light of § 66 of Act No. 182 / 1993 Coll., or whether there were grounds for terminating the procedure under § 67 of Law No. 182 / 1993 Coll. Act No. 111 / 1994 Coll., on Road Transport, as amended by Act No. 38 / 1995 Coll. and Act No. 304 / 1997 Coll., was later amended by Act No. 150 / 2000 Coll. of 16.5.2000, which took effect on 1.7.2000. The Constitutional Court has found that the provisions of the law contested by the proposal have been amended, even if only partially, in certain words, namely Article 18a (1), the word "or 'is replaced by the word" a', in § 18a (1) (c), the words "personal data needed for the recovery of the premium 'are replaced by the words" proof of identity', in Article 18a (2), the words "proof of identity 'and the words" payment' are inserted after the word "payment '. It should be noted that the amendments in question did not in fact alter the content or the meaning of the contested provisions.

Although the Karviné District Court has proposed the abolition of those provisions of the law which were later slightly amended by amendment, it has, from the overall context and reference to Article 95 (2), The Constitution clearly states that it asks for a decision on the constitutionality of those parts of the original law to be actually used in the case under trial. In view of the unusual nature of the situation, the Court initially opted for a wording which is not entirely adequate to the intended purpose of the investigation, since it relied on the provisions of Section 1 of Title 2 of Act No 182 / 1993 Coll. on the "Procedure for the repeal of laws and other legislation ', which are only applicable to the application for annulment of the provisions of the law in force.

Later, the Karviné District Court specified the proposal by asking the Constitutional Court, on the basis of Article 95 (2) of the Constitution, to assess in its decision whether the contested provisions of the Road Transport Act are applicable from the point of view of constitutionality, in case of inadmissibility of the annulment of the contested provisions. It also points out that the general courts will decide for a further few years on the basis of the legal situation that was effective at the commitment date, thus based on the situation before the amendment of the law. It follows that the liabilities incurred then by the general courts will be assessed according to the legislation at the time effective, i.e. pursuant to Act No. 111 / 1994 Coll., as amended by Act No. 304 / 1997 Coll. In view of this, the Karviné District Court considers it necessary to refer to the Constitutional Court for a proposal to assess the constitutionality of the applied law.

The application in question is not linked to a constitutional complaint, but is a direct initiative by the General Court under Article 95 (2) of the Constitution. In this case neither Section 66 (1) nor Section 67 (1) of Act No 182 / 1993 Coll. is applicable as it is not a procedure for the annulment of laws, but a direct application of Article 95 (2) of the Constitution. And the limine needs to come out of that:

(a) the Constitution is directly applicable, unless otherwise specified;

(b) furthermore, that under Article 83: The Constitution is a judicial authority for the protection of constitutionality of the Constitutional Court and no other judicial authority, i.e. neither the Supreme Court (Article 92 of the Constitution) nor the lower general courts,

c) Finally, from the fact that the Constitutional Court falls within the competence of the Constitution, whatever the Constitution confers on it at any point in its text, i.e. not only powers under the Constitution No 87, but also under Article 95 (2).

It is clear from the Constitution itself that a general court, including the Supreme Court, must not rule on the unconstitutional nature of the law. Article 95 (1) The Constitution provides that a judge of the General Court is bound by law when deciding and that he is assessing the compliance of another law with the law. However, if it is concluded that the law to be applied in the resolution of the case (i.e. not only at that time valid but also at that time no longer valid but still applicable law) is contrary to constitutional law, it is obliged to bring the case before the Constitutional Court (Article 95 (2) of the Constitution). From that provision, the Constitutional Court then assumed its obligation to decide on the application.

If the Constitutional Court, too, refused to provide assistance to the General Court by its decision on the constitutionality or the unconstitutionality of the applicable law, there would be an insoluble situation of an artificial legal vacuum, because, in the very case of the District Court, it cannot be required by that court to comply with the requirement of an action for payment of an amount intended as a penalty for a black ride, if the court is convinced that such a penalty is based on an unconstitutional provision of the law. However, if the General Court itself had decided on the basis of its belief that the provisions applied were unconstitutional, it would have acted in conflict with the Constitution. The Constitution is based on Articles 83 and 95 (1) and (2), which express the importance of such a concept of constitutional control, which is concentrated in a single institution, namely the Constitutional Court.

Therefore, the Karviné District Court had no choice but to abide by its constitutional obligation (Article 95 (2) of the Constitution) and put the question of the constitutionality of the applicable provisions of the Law to the Constitutional Court.

Should the Constitutional Court refuse to assess the constitutionality of the contested provision, it would, paradoxically, block the decision-making activities of the courts directly and precisely by omitting the Constitutional Court to fulfil its fundamental obligation under Article 95 (2) of the Constitution. In the present case, even a party to the previous proceedings could not successfully lodge a constitutional complaint if it objected to the unconstitutional nature of the applied law, since only a proposal to repeal the law in force could be linked to the constitutional complaint.

The Constitutional Court concluded that even the interpretation of Law No 182 / 1993 Coll. cannot be denied by the Constitution imposed by the obligation of general courts to refer to the Constitutional Court if they are to apply a law which they consider to be unconstitutional. If, as a rule of the highest legal force in Article 95 (2), the Constitution imposes an obligation on the court to submit to the Constitutional Court any case in which it "concludes that the law to be applied in the resolution of the case is contrary to the constitutional law ', the nature of that provision also implies the reason for submitting such a proposal to the Constitutional Court and hence the purpose of the task to be dealt with by the Constitutional Court. Article 95 (2) The Constitution implicitly imposes an obligation on the Constitutional Court to provide assistance to the General Court by its decision on the constitutionality or the unconstitutional nature of the law to be applied, regardless of whether the law was subsequently amended.

The argument that the Constitution does not know the right of the Constitutional Court to give a binding interpretation of the Constitution is misguided. Although the Constitutional Court is not entitled to provide a binding interpretation of the Constitution in general, at any time, and to anyone, where it acts on the basis of its competence, its activity is, after all, nothing but a binding interpretation of the Constitution. Therefore, when dealing with the constitutionality of the law at the initiative of the General Court, it also deals with the interpretation of the Constitution.

Since the amendment to the Act does not differ in substance and materially in the slightly amended wording of the contested provisions from the former, the Constitutional Court found that the decision was found on the spot and in view of the fact that similar problems with the payment of the fare premium occurred in other places and at a later date.

After examining the proposal, the Constitutional Court concluded that the application for annulment of § 18a (1) (c), § 18a (2) (b) of the sentence behind the semicolon and § 18a (3) of the Road Transport Act cannot be complied with, as required in the petition by the Karviné District Court if these provisions have been amended by a new law. The Constitutional Court has therefore merely considered whether or not the provisions of the Law in force at the time to be applied by the Karviné District Court to deal with a particular case are contrary to the Constitutional Law (Article 95 (2) of the Constitution) and concluded that it is a legal regulation which is not contrary to the Constitution.

First of all, the appellant's argument to abolish the contested provisions of the Road Transport Act is based only on Article 1 (1) of the Charter, according to which people are free and equal in dignity and rights. The appellant concludes in its reasoning that the legal interference of the State in relations between carriers and passengers gives rise to an unacceptable advantage to one contractual partner, in the case in point, the carrier. In the justification of the proposal, the appellant takes the view that the distinction between the relationship between private and public law and the analysis of these terms is a relationship between the carrier and the passenger which the State can only intervene in the case of a public interest, which the appellant doubts in this case.

The contract for the carriage of passengers is provided for in Section 760 et seq. of the Civil Code. This is a general arrangement covering all modes of transport. The common provisions on transport contracts set out in Section 772 of the Civil Code allow for more detailed arrangements for passenger and freight transport to be laid down by specific provisions, in particular the timetables and tariffs. The carriage of passengers is provided by the carrier under a transport contract, which is usually concluded in a consistent manner for bulk vehicles. Since the State also has an understandable and relevant interest in public transport, it regulates certain issues of passenger transport by law. That method of regulation allows the State of Article 4 (1) of the Charter, under which obligations may be imposed only on the basis of the law and within its limits and only with respect to fundamental rights and freedoms. This constitutional regulation imposing obligations is ignored by the appellant in his reasoning on the unconstitutionality of the contested provisions of the Road Transport Act. This regulation is general and applies to the obligations of both legal and physical persons, both in relations between private and public law. Although the law of the Czech Republic is based on the dualism of public and private law, this distinction between the right to two large areas based on classical Roman law cannot be taken dogmatically, but taking into account modern trends in law and also the influence of European Community law. Currently, private and public law is not separated by a "Chinese wall." More frequent and narrower blending occurs, a combination and an intensive interaction between elements of private and public law. The fundamental feature of private law is equality of subjects, which corresponds to the principle of contractual freedom with preference for disposition. Participants in civil relations are natural persons as well as legal persons or states. The equality of their position means above all that there is no relationship between subordination and authority, and that none of the parties to that relationship can in principle impose a unilateral act on another. However, the equality of the status of participants in private relations cannot in itself exclude the State from the possibility (or even obligation) of law to intervene in a private relationship. Constitutional regulation does not rule out such intervention by the State in principle, provided, of course, that it is an intervention justified by the public interest and that it is an appropriate intervention. In the case of the Road Transport Act, individual provisions cannot be removed from the context, since the law as a whole does not only determine the obligations of the passenger and the authority of the carrier, but the whole is designed to maintain the rights and obligations of both parties to the contract relationship in a certain balance (see, for example, Section 18 of the Act).

The public transport contract shall be concluded by a consistent meeting on the part of the passenger when boarding the appropriate means of transport. The special nature of this contract consists in the payment of the transport price, which may be a flat-rate advance (network tickets) or direct (payment to the driver or a specified way of invalidating the advance ticket purchased on entry into the vehicle). By embarking on a means of transport, the passenger accedes consistently to the full scope of the service provided. The silence also accedes to another, generally well-known side agreement of the contract, namely to have a valid ticket and to submit it for inspection at the request. However, if the passenger does not pay the fare properly and on time, which is the price of the services provided, he also agrees to be subject to a contractual fine provided for and enforced by an authorised carrier worker. Thus, the use of the public transport vehicle remains fully available to the citizen as a passenger and it is up to him to consider whether, under the conditions laid down in this Directive, he will enter into the means of transport and conclude the transport contract.

The penalty imposed by the authorising officer of the carrier under the Road Transport Act on a passenger who is not shown by a valid ticket is his nature of the contractual penalty for failure to pay the fare for the services provided. It is not appropriate to take into account that, in the present case, the State has not only imposed an obligation on a passenger by law, but, on the other hand, by setting the upper limit of this contractual fine, it protects it from arbitrary carriers. The amount of the fare premium under Section 18a (3) of the Road Transport Act must not exceed CZK 1 000. The Act also requires carriers to determine the amount of the premium in their transport conditions, which the carrier is obliged to publish at places intended to have contact with passengers and a substantial part thereof also in each vehicle. This ensures that a passenger who decides to travel by public transport and thus conclude a transport contract with the carrier is familiar with its conditions. The contract is concluded with the passenger accepting the conditions of the carrier, including the amount and the way in which the premium is imposed.

On the basis of the considerations of the appellant that, in the present state of the art, the carrier is able to arrange transport in such a way that it is excluded from the carriage of a person without a valid ticket in advance, the Constitutional Court, having regard to the opinion of the Ministry of Transport and Communications, states that the system by which passengers are allowed to enter the means of transport through all doors, provided that they have a valid ticket, is well-established in the world and particularly in large cities. Likewise, sanctions are common abroad if passengers do not have a valid ticket, whether they are called a fine, a premium or an increased fare. Nowadays, with a large number of passengers transported, it is no longer entirely unthinkable to return to the time of passenger boarding only by one door or for the sale of tickets in the vehicle by the conductor. Under the current transport capacity of public transport, the introduction of such a system would entail an extension of travel times, a delay of passengers at stops and, in consequence, the collapse of the entire urban public transport in large cities.

In the present state of the case, the Constitutional Court concluded that the appellant had not put forward arguments that would justify the conclusion that § 18a (1) (c), § 18a (2) (b) of the sentence behind the semicolon and § 18a (3) of the Road Transport Act was unconstitutional and therefore rejected the proposal.

Different positions under Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, were taken by the judges JUDr. Vladimir Čermak, JUDr. Miloš Holecek, JUDr. Vladimir Jurka, JUDr. Vlastimil Ševčík, JUDr. Pavel Varvařovský and JUDr. Eva Zarembová.