The Constitutional Court found No. 83 / 2003 Coll.
The Constitutional Court's finding of 19 February 2003 on the application for annulment of certain provisions of Act No. 77 / 2002 Coll., on the ČD Joint Stock Company, the State Organisation of the Railway Infrastructure Administration and amending Act No. 266 / 1994 Coll., on Railways, as amended, and Act No. 77 / 1997 Coll., on the State Company, as amended
Valid
83
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 19 February 2003 in plenary on the proposal of a group of Members of the Chamber of Deputies of the Parliament of the Czech Republic and of a group of senators of the Senate of the Parliament of the Czech Republic to repeal the following provisions of Act No. 77 / 2002 Coll., of the Czech Railways Joint Undertaking, of the State Organisation of the Railway Infrastructure Administration and of the amendment of Act No. 266 / 1994 Coll., on Railways, as amended, and Act No. 77 / 1997 Coll., on State Enterprise, as amended:
the part of the sentence behind the semicolon in § 4 (1), as amended by: "the government shall determine, when giving its consent, the date on which the book value of the non-cash contribution to the ČD joint-stock company is determined (hereinafter referred to as the" fixed date ')',
Article 4 (4), second sentence,
the part of the sentence after the semicolon in § 5 (2), as amended by: "the valuation of the non-cash contribution by the expert is not required ',
Article 6 (1) and (2), including footnote 7),
Article 7 (1) and (2),
Article 8 (4),
Paragraph 38 (3),
part of the sentence in § 42 (1), as amended by: "with the exception of Title II and Title III and Part Three, which take effect on the date of the establishment of ČD,"
Article 42 (2),
Annex No 1 (marked "Property constituting the railway transport route '),
as follows:
1. The provisions of the part of the sentence after the semicolon in § 4 (1), as amended by: "When giving consent, the government shall determine the date on which the book value of the non-monetary contribution to the public limited liability company České dráhy," (hereinafter referred to as the "fixed date"), "§ 4 (4), (4), (4), (2), (2), (5), (2), (2), (2), (3), (3), (3), and Annex 1 to Act No 77 / 2002 Coll., on the public limited liability company České dráhy, the state organisation of the Railway Administration and amendment of Act No. 266 / 1994 Coll., as amended on 31 October 2003, shall be deleted.
2. The remainder is rejected.
Reasons
On 22 April 2002, the Constitutional Court received a proposal from a group of 42 Members of the Chamber of Deputies of the Parliament of the Czech Republic and a group of 21 Senators of the Senate of the Parliament of the Czech Republic to abolish the precisely marked provisions of Act No. 77 / 2002 Coll., on the Czech Railways Stock Company, the State Organisation of the Railway Infrastructure Administration and on the amendment of Act No. 266 / 1994 Coll., on Railways, as amended, and Act No. 77 / 1997 Coll., on the State Company, as amended.
The designers initially recap the objective and purpose of Act No. 77 / 2002 Coll., which is to transform the state organization of ČD into a public limited company operating separately on the transport market of the Czech Republic and Europe. The mission of this company is to fulfil the role of the national rail carrier, which ensures the functioning of the rail system throughout the territory of the State, while at the same time it is envisaged to apply other railway carriers, according to a reasoned report to the law in question, in "appropriate factual and territorial segments of the market '. In order to achieve this objective, the Act also establishes a state-owned organisation of the Railway Infrastructure Administration, which is intended to manage in particular the property of the State, with which the ČD public organisation operated at the date of the creation of the ČD public limited company and which forms the railway transport service and is set out in Annex 1 to the Act, but the buildings of railway stations, the land in their perimeter and the information system are legally incorporated into the capital of the ČD public limited company. The operation of this railway infrastructure and the maintenance of its operation is to be provided by the Railway Infrastructure Administration through ČD, a. s. At the same time, the newly established state organization is to save the commitments of the state organization ČD.
It is based on the alleged specificity of the position of the newly established public limited liability company České dráhy as well as on the extent of the assets of the state with which the state organisation České dráhy has been operated and which is to be incorporated into the public limited liability company, in particular in the provisions of § 4 to 7, the Act lays down different conditions for the establishment and establishment of the company compared to the general legislation contained in the Commercial Code. In parallel, it creates a special regulation of the effects of the creation of rights in kind, in particular property rights to be transferred to a newly established commercial company as well as to a state organisation of the Railway Infrastructure Administration, quite different from the general legislation contained in Act No. 265 / 1992 Coll., on the registration of property rights and other property rights, as amended. Finally, in this recap of the basic objectives and purposes of the law, the appellants point to the intention expressed in the explanatory report submitted by the appellant of the law, according to which it is the task of the State to create a "harmonised market environment in which carriers of different types of transport are applied on the basis of equal initial conditions of competition '.
In the content analysis of Act No. 77 / 2002 Coll., the appellants criticise some of its components. In particular, they state that the law creates a completely disproportionate model in which the state organisation manages the transport route, but the costs of ensuring its operation are borne by the commercial companies which use it for their own business. The method of establishing the ČD public limited company and the method of valuation of the embedded property, enshrined in Act No. 77 / 2002 Coll., which establishes a construction different from the general construction contained in the Commercial Code, then according to the designers means its indirect amendment. Furthermore, they regard as unprecedented the derogatory provision of § 42 (2) of the Act in question, according to which Act No. 9 / 1993 Coll., on the Czech Railways, as well as its amendment No. 212 / 1993 Coll., is repealed by the date of the creation of the ČD public limited company, thereby rendering the legislator's repeal dependent on the communication published in the Collection of Laws. The division of the assets of the Czech Railways state organization into both successor organisations according to the promoters is based on indeterminate criteria in terms of their substantive and purposeful definition. In this context, they argue that only the argument and contrario can be deduced from Annex 1 to Act No 77 / 2002 Coll. that the railway buildings and land and access routes will also be transferred to them. In addition, according to Annex 1 to the Act in question, land situated in the railway station and rail yard districts, in contrast to passages, platforms, shelters, ramps, reinforced areas, fences and railings, as well as railway crossings and crossings or land in the railway circuit, are to be transferred to the Railway Infrastructure Administration, as they are listed in Annex 1 between the calculation of the goods which constitute the railway transport.
According to the provisions of § 19 (1) of the Act No. 77 / 2002 Coll. on the date of the creation of the ČD public limited company, a state organization of the Railway Infrastructure Administration is established as a separate legal entity, the establishment of which is registered in the Commercial Register, but this registration is declaratory (§ 19 (3) of the Act). The Railway Infrastructure Administration's state organization operates under the provisions of § 20 (1) of Act No. 77 / 2002 Coll. with State property. In this context, the appellants point out that the Act does not contain any provisions governing the management of the property of the State that passes over it pursuant to § 20 (1) and § 38 (2) of Law No 77 / 2002 Coll.. In their view, according to Article 54 (1) of Act No. 219 / 2000 Coll., on the property of the Czech Republic and its presentation in legal relations, as amended by Act No. 501 / 2001 Coll., state organisations established by special legislation which are entrepreneurs under the provisions of § 2 of the Commercial Code are excluded from the scope of Act No. 219 / 2000 Coll., when the management of state organisations that are entrepreneurs is to be governed by special legislation. In the absence of special legislation, the Railway Infrastructure Administration, according to the appellants of the state organisation's management, is thus in total legal vacuum.
The appellants of the part of the sentence after the semicolon in § 4 (1), as amended by: "When giving their consent, the government shall determine the accounting value of the non-monetary contribution to the public limited liability company České dráhy (hereinafter referred to as" the fixed date '), "the part of the sentence after the semicolon in § 5 (2), as amended by:" The valuation of the non-monetary contribution by the expert is not required', § 6 (1) and (2), including footnote 7), § 7 (1) and § 8 (4) of the Act No 77 / 2002 Coll. They shall object their contradiction with the principle of equality under Article 1 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to them by the unfounded and unfounded benefit of the Czech company. This inequality is based on different rules and conditions for their establishment, which, in the appellants' view, are incompatible with the principle of the protection of third-party rights. This circumstance is seen in that, without a public offer of shares, the approval of a charter for which the form of notarial registration is not required (§ 4 (4)), where the charter includes the determination of a non-monetary deposit, the valuation of which by the expert is not required (§ 5 (2)), which was not the subject of an administrative check on the basis of its principal value, and only the accounting value of the non-monetary deposit (§ 4 (1)), when the company's assets are considered to be redeemed to be redeemed to have been redeemed to be redeemed to have been redeemed to have been redeemed to have been transferred by the company on 1 January of the calendar year following the date of establishment, in which the transfer of ownership of the property.
The purpose of the Commercial Code established by the formal and procedural conditions for the formation of companies is seen by the appellants in the examination of the procedure and the company's creation, as well as the real value of the company's capital, which, in their view, has a very significant economic impact both on the market position of the incorporated company and on other entities entering into legal relations with that company. In this context, the importance of independent valuation of the non-monetary deposit is particularly accentuated, including in view of European standards.
The inequality of the regulation contained in Section 8 (4) of Act No. 77 / 2002 Coll. is referred to in the light of the obligation of carriers other than ČD public limited liability companies to apply for a licence to operate railway transport by the Railway Administration (§ 24 of Act No. 266 / 1994 Coll., on Railways, as amended), as well as other obligations of the applicant (§ 11, 12 and 14a of the Railway Act). This inequality, according to the applicants, would be acceptable in a situation where ČD was established by a special law as a public body. They draw attention to the fact that according to the previous regulation, ČD had to apply for a licence to operate on regional routes, as well as an official permit for operating regional routes, which is no longer valid under the current regulation, when it is a private body. Discrimination of other regional rail transport operators is then seen by the applicants in the exemption of the Czech Railways, a. s. from the notification requirement of free road capacity pursuant to § 23 (1) of the Railway Act, as a result of which the public limited liability company ČD can preferably fill the free road capacity on its own and since the licensing under § 25 (d) of the Railway Act is subject to the condition that for the required railway transport there is free road capacity, it may prevent other carriers from granting the licence by the railway administration. In this context, the appellants question the real possibility of the Inter-Administrative Office to decide any dispute as it would have to rely on the information provided by ČD in the assessment of the case.
The applicants in favour of the alleged inequality also argue the opinion of the Directorate-General for Energy and Transport of the European Commission of 17 May 2001, according to which, given that the necessary capacity of the railway market is determined by the Czech Railways under Law No 77 / 2002 Coll. and new entrants can only apply for the remaining spare capacity, the result is a situation where capacity is not allocated in a non-discriminatory manner and the application of the prerogatives takes place. For these reasons it was recommended in the opinion that ČD also had to apply for a licence.
Even in the light of the previous case-law of the Constitutional Court on the interpretation of the constitutional principle of equality, the appellants consider that the apparent unjustifiability of the privileged conditions of the establishment and creation of a public limited liability company of the Czech Railways, as opposed to the general rules of law, as well as the exclusion of this private legal entity from the Railway Act as regards the granting of official authorisations for the operation of national and regional railways and licences for the operation of railway services, constitute an expression of the legislature which infringes the principle of equality laid down in Article 1 of the Charter, as well as the right to conduct pursuant to Article 26 of the Charter for those carriers who decide to operate railway services after the creation of a public limited company of the Czech Railways.
For the provisions of Section 8 (4) and Annex 1 to Act No 77 / 2002 Coll., the appellants object to their contradiction with Articles 3 (1) and 4 (3) of the Charter and Article 26 of the International Covenant on Civil and Political Rights ("the Covenant ') and Article 14 of the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention').
With reference to the provisions of § 20 (1) (a) and § 4 (2) of Act No 77 / 2002 Coll., according to which the State organisation of the Railway Infrastructure Administration manages the property of the State which, at the date of the creation of the ČD public limited company, was managed by the ČD, in particular the property which forms the railway transport route and which is set out in Annex 1 to that Act, which does not apply to the establishment of the ČD public limited company, the appellants object to the difference in those provisions contained in the definition of the concept of the concept of "road and goods' and the definition of the buildings used by the infrastructure, including the part of the equipment intended for the carriage," which is to be included in the railway transport routes'. On the fringe of this contradiction, the appellants state that according to the practice of the Czech Railways state organisation and its internal decisions, these items have been considered as part of the railway infrastructure.
That distinction, namely the exclusion of railway infrastructure components such as, in particular, railway buildings with land and access routes, as well as land located in the district of railway stations and rail vehicles, from State ownership or from the ownership of an infrastructure manager (Railway Infrastructure Administration), is, in the view of the appellants, not only contrary to EU law but also contrary to the fundamental rights and freedoms referred to above. The property thus defined becomes the property of the ČD public limited company, because according to their belief there is discrimination against other carriers who become dependent on ČD. In this context, it is also argued that the transfer of this property into the hands of a private legal entity without any available restrictions may result in the transfer of the assets in question to non-railway entities and thus in the limitation of the operation of rail transport in the Czech Republic. In this context, it is also pointed out that the Railways Act does not impose an obligation on the railway operator to allow carriers to use buildings in its possession and, by analogy, Act No 77 / 2002 Coll. does not regulate the relations between ČD public limited liability company and other carriers. A possible solution to that problem, which, according to the applicants, could be considered non-discriminatory and consistent with the constitutional order, would be to maintain the state ownership of the assets in question, to which the management of the Railway Infrastructure Administration would be bound.
From the point of view of the legal regulations so outlined, the appellants see an infringement of the constitutional principle of equality in the absence of a reasonable and objective criterion for granting an exemption from the Railway Act for the public limited company České dráhy, as well as for exempting itself from the nature of the matter arising from the elements of the railway infrastructure and, finally, the transfer of these items to the ownership of only one carrier.
For the provisions of Articles 6 (1) and (2), 7 (1) and (2), 38 (3), 42 (1) and (2) and Annex 1 to Law No 77 / 2002 Coll. the appellants also object to their contradiction with Article 1 of the Constitution.
This contradiction is seen in the failure to respect the bond associated with a derivative of the concept of the rule of law, with the principle of legal certainty, which also lays down certain requirements for legislation. The appellants include the inadmissibility of indirect amendments to the laws, in particular in the case of code law. The contested legal provisions, in particular Section 6 of Act No. 77 / 2002 Coll., which enshrined the special mechanism of the creation of ČD public limited company, deny, according to their belief, the principle of material and formal publicity of the commercial register as public documents. They also consider the announcement of the date of creation of the company in the Collection of Laws to be a similar exception by the Ministerial Notice and the arrangements for the transfer of the State's assets to the two successor companies, in particular in the light of the uncertainty of the definition of the assets in question. Infringements of the principle of legal certainty are further seen by the appellants in the designation of certain objects in Annex 1 to Act No 77 / 2002 Coll. in the sense of the components of the property forming the railway transport route, but which are not a matter within the meaning of § 118 (1) of the Civil Code and therefore cannot be the subject of legal relations (e.g. land "in the vicinity of the railway" which will not be separated on the date of the transfer of the property of the State to the ownership of ČD public limited company, as well as passages, platforms, shelters, shelters and shelters which are part of other buildings). Finally, they regard as a breach of legal certainty the almost identical definition of the subject matter of the business of the two successor organisations (§ 38 (1) of Act No 77 / 2002 Coll.), the special arrangements for conferring jurisdiction on the central authority of the state to settle disputes concerning the transfer of rights and obligations between the successor entities, in which they also see the withdrawal of legal protection for a person governed by private law, and, finally, the arrangements for the entry into force of the law, or the derogation in § 42 of Law No 77 / 2002 Coll.
Pursuant to Articles 42 (3) and 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court sent the proposal in question to the Chamber of Deputies of the Parliament of the Czech Republic. In its statement of 30 August 2002, the President of the Chamber of Deputies of the Parliament of the Czech Republic, PhDr. Lubomír Zaorálek, first of all, states that the approval of Act No. 77 / 2002 Coll. was based on the earlier concept of adjusting the status of the national rail carrier by a special law (see Act No. 68 / 1989 Coll., on the State Organisation of the Czechoslovak State Railways, and Act No. 9 / 1993 Coll., on the Czech Railways, as amended by Act No. 213 / 1993 Coll.). The reason for this approach is seen in the merits of the special arrangements, particularly in relation to the Commercial Code.
In relation to the contested infringement, § 4 (1) and (4), § 5 (2), § 6 (1) and § 7 (1) and (2) of Law No 77 / 2002 Coll. with Article 1 The Charter states that the purpose of that constitutional provision is to protect the natural and inalienable rights of man, or of human beings, and is therefore only applicable to natural persons and not to legal persons. All the marked provisions of Act No. 77 / 2002 Coll. relate only to the creation and creation of the future company ČD and to the rights of individual people as protected by Article 1 of the Charter, according to the party to the proceedings they are therefore not related.
If § 8 (4) of Act No 77 / 2002 Coll. for a transitional period favours the ČD public limited liability company over other railway and railway undertakings, it cannot, however, be considered, in the view of the President of the Chamber of Deputies, as opposed to Article 1 of the Charter, by reference to Article 26 (2) of the Charter, that the Act may lay down the conditions for the pursuit of business and other economic activities. In addition, the legal provision in question is considered to be the granting of a limited period of legal licence or legal authorisation for the type of business in question to a legal person, which, by its nature, is essentially private, but which, on a national scale, performs tasks in the public interest, for example in the field of the transport service of passenger transport or the defence of the State, which the participant considers to be a matter falling within the competence of the legislator.
The same argument is made in the observations and in the appellants' objection to the infringement of Article 8 (4) and Annex 1 to Law No 77 / 2002 Coll. with Articles 3 (1) and 4 (3) of the Charter and Article 26 of the Pact. Both of these contested parts of Act No. 77 / 2002 Coll. is considered by the party to the proceedings to be part of the legal regime governing the transformation of new legal entities - the Czech Railways public limited company and the Railway Infrastructure Administration state organisation, and in his view Annex No. 1 is an essential part of the law in this respect, as it contains the key to dividing the current assets of the state with which the Czech Railways state organisation operates among the two emerging legal entities. In view of the nature of the legal provisions in question, as well as the continuation of those provisions of the Charter and of the Pact to Article 1 of the Charter, or the continuation of the constitutional protection of the principle of equality, the President of the Chamber of Deputies believes that these provisions of the Charter and the Pact only affect the maximum equality of all people and the prohibition of discrimination, or the advantage of certain groups of people in terms of gender, race, skin colour, language and so on, and cannot therefore be applied to legislation relating only to the conditions of establishment, organisation and business activities of two legal persons.
The contested infringement of Articles 6 (1) and (2) and 7 (1) and (2) of Law No 77 / 2002 Coll. with Article 1 The Constitution states that, although this is not a normal adjustment, it is an adjustment given by a law which is not retroactive, the said contradiction is not present in the present case. The abandonment, according to the subscriber, of the implicit principle in the change of ownership of real estate is not contrary to § 133 of the Civil Code, since in this case the transfer of real estate is not a matter of contract but of law and moreover the above-mentioned § 133 of the Civil Code allows that, even in cases where the immovable property is transferred under contract, a separate law may provide for the acquisition of property.
In the context of the call for the unconstitutional entry into force of Act No. 77 / 2002 Coll., the decisive parts of which become effective on the date of the creation of ČD public limited company, the remaining date of the publication of the Act in the Collection of Laws, it is then noted that determining the entry into force of the Act on a date which provides for another fact and thus not the law itself, is now a relatively common practice of Czech normomaking, which has not yet been questioned, most often being used in the case of laws to take effect on the date of entry into force of the Treaty on the accession of the Czech Republic to the European Union. Therefore, the party to proceedings in that regard does not find a contradiction with the constitutional order of the Czech Republic.
On procedural questions, it is then stated in the statement that Law No 77 / 2002 Coll. was adopted in a constitutionally prescribed manner, according to § 97 (3) of Act No 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, when 104 Members voted in favour of its adoption in case 101 and 71 voted against it.
On the basis of all the above, the President of the Chamber of Deputies believes that Law No 77 / 2002 Coll. was constitutional, accepted and declared, became a valid part of Czech law and is not contrary to the Constitution and the Charter.
Pursuant to § 42 (3) and § 69 (1) of Act No. 182 / 1993 Coll., as amended, the Constitutional Court sent the proposal to the Senate of the Parliament of the Czech Republic. In its observations of 3 September 2002, its President JUDr. Petr Pithart notes, first of all, that the Senate, when discussing the draft law on the transformation of Czech Railways, approved by the Chamber of Deputies, did not identify itself with the proposed substantive solution to the transformation without further examining the constitutional side of the legal draft. In particular, the Senate objected to the asymmetry of the chosen business model of ČD public limited company in relation to the subject matter of the activities of the Railway Infrastructure Administration, which is that, on the one hand, today's railways remain unchanged and, on the other hand, there is an organisation that manages the road, but the costs associated with ensuring its operation are borne by those who use it for their own business. Doubts have also been raised about the feasibility of the law in practice in relation to the concern that the law will mean uncertainty about ownership and treatment of state property, not only in the context of relations between the legal successors of the Czech Railways, but also in relation to the entities concerned, which will be a whole range, which will bring about a number of application problems.
As regards the substance of the proposal, it is noted that it is possible to share in particular the provisions of § 5 (2) and § 8 (4) of Act No. 77 / 2002 Coll., when the unilateral advantage of the ČD company compared to other carriers in that ČD does not have to legally apply for a licence and official authorisation under the Railway Act, creates a manifest inequality and thus constitutes an infringement of Article 1 of the Charter. The assessment of the constitutional objections put forward, in particular whether the degree of uncertainty that the law brings into ownership relations goes beyond the degree of constitutional consistency, is left to the Constitutional Court in its observations.
As regards the admissibility of the special legislation in relation to the general legal regime of legal persons, the party notes that the Civil Code recognises the existence of specific rules, the case at hand being the case of the legal regulation of a sector which has historically always had special legislation, which results not only from the importance of the railway for the economy of the State but also from the extent of the assets with which the entity providing this type of transport has been provided.
The President of the Senate, with the conclusion of its observations on the substantive issues of the constitutionality of the law in question, agrees with the objection concerning the method of determining the effectiveness of part of Law No 77 / 2002 Coll. and the effectiveness of the derogatory provision, which are linked to an unspecified date, when in his view this solution cannot be considered to be conformal with Article 1 of the Constitution, since the principle of legal certainty is one of the fundamental attributes of a democratic state.
From the point of view of the procedural party in the proceedings, he stated that the Senate accepted the recommendation of both of its committees to which the proposal was ordered, and at its 13th meeting in the third term of office, held on 16 January 2002, the government bill on the transformation of the Czech Railways in the form approved by the Chamber of Deputies, in a vote which, out of the 70 Senators and Senators present, voted 44 in favour and 15 opposed.
The Constitutional Court first examined, as required by Article 68 (2) of Act No. 182 / 1993 Coll., if Act No. 77 / 2002 Coll., on the public limited company České dráhy, the state organization of the Railway Infrastructure Administration and amending Act No. 266 / 1994 Coll., on Railways, as amended, and Act No. 77 / 1997 Coll., on the State Company, as amended, was adopted and issued within the limits of the Constitution established competence and constitutional requirements.
It was found from the House's press and shorthand reports submitted, as well as from the observations of the party, that the Chamber of Deputies approved the draft law in question at its third reading at its 43rd session of 11 December 2001 by Resolution 1930, when 183 Members present voted in favour and 3 against. At its 13th meeting, held on 16 January 2002, the Senate rejected the government bill on the transformation of the Czech Railways in the form approved by the Chamber of Deputies, in a vote in which out of 70 senators and senators present voted 44 in favour and 15 opposed.
According to § 48 (1) of Act No. 182 / 1993 Coll. The Constitutional Court shall carry out the evidence necessary to establish the facts and decide which of the evidence proposed must be carried out and may carry out evidence other than that proposed.
That legal provision must be interpreted from the point of view of Article 83 of the Constitution, according to which the Constitutional Court is a judicial authority for the protection of constitutionality, as well as from the point of view of the existing caselaw, in which the different functions of the Constitutional Court are highlighted in relation to the ordinary courts. The Constitutional Court therefore considers the contested decisions of the General Courts only by having regard to constitutional laws and international treaties pursuant to Article 10 of the Constitution for Guaranteed Fundamental Rights and Freedoms and not by examining the matter with the very view of simple law. In the field of proof, this leads to a maximum of evidence leading to facts verifying the complainant's assertion that it is a matter of fundamental rights and freedoms, but not proof of the substance of the case, i.e. evidence at the level of simple law leading to a decision in substance itself. That differentiation is one of the components of the constitutional judiciary and the common justice.
From the point of view of the bail-in, in order to clarify the facts of the adoption of the law in question, the Constitutional Court carried out evidence in this case by a shorthand report from the Chamber of Deputies on 5 February 2002 (46th meeting).
On 5 February 2002, the Chamber of Deputies voted on the Senate's motion for a refunded Act at 14.41 p.m. at its 46th meeting under item 52nd of the agenda, in vote No. 113, in which 176 Members 97 voted in favour and 69 against, on the basis of which the President of the meeting, President of the Chamber of Deputies of the Parliament of the Czech Republic, Václav Klaus, stated: "The proposal was not adopted. I know this is a relatively close vote. I ask everyone to check whether they have voted in accordance with their conscience or with their partisan order. I understand that no one has any objections. I am ending the discussion of paragraph 52. The law was not adopted." (Tysnopisek report from the 46th meeting of the Chamber of Deputies of the Parliament of the Czech Republic on 5 February 2002).
At 14.50 p.m. on the same day at the hearing of paragraph 53rd of the programme of the 46th Chamber meeting (draft law amending Act No. 200 / 1990 Coll., on infringements, as amended, Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended), Mrs Květoslava Čeliová entered the debate: "Mr President, fellow Members, I am terribly sorry to have entered into this item of the sitting, but I would like to call into question vote No. 113, where on the census - record from the technical voting system), that I voted against, but I voted in favour." (see the report).
The negotiations of the Chamber of Deputies on this proposal then took place as follows, according to the shorthand report:
President of the Chamber of Deputies Václav Klaus: "Madam Member, I do not know what to do now. We finished the point, closed it, no one objected, everyone looked at it long enough. We have another item to settle. I don't know what to do with it.
Member I mean, he always knows what to do, but I don't know.
I will put to the vote who is in favour of Mrs Čeliová's questioning proposal on voting 113.
I started voting serial number 114. Anyone in favour of this proposal, press the button and raise your hand. Who is against this proposal?
In the vote, order number 114 of the 179 Members present for 108, against 31.
Then I'll put it to a vote again. Please return Quorum 101 again.
I'll put the bill to the vote again.
Anyone in favour of this proposal, press the button and raise your hand. Who is against this proposal?
In the vote, order number 115 of the 179 Members present for 104, against 66.
I think it's absurd, and I'm begging everyone to check their drugs. I feel that such additional consideration should not be given to these requirements, or at least the original quorum voting that no one else should vote should be maintained. That seems very fair to me.
This is the German MP.
Mr Kořistka. "
Mr Zdeněk Kořistka: 'Dear colleagues, dear colleagues, Mr President, I would like to question the previous vote. I voted "no" and there was a "yes" on the crack.
President of the Chamber of Deputies Václav Klaus: "I have started the vote. Whoever is in favour of this objection must press the button and raise his hand. Who is against this objection?
In the vote order number 116 out of 179 for 127, against 14. The motion was accepted.
I'll put the vote again. May I have your 101?
I started the vote. Anyone in favour of this proposal, press the button and raise your hand. Who is against this proposal?
In the vote, order number 117 of the 179 for 104 present, against 71.
So I guess someone else has already made a mistake but Mr Kořistka. It's the only way. I consider the change in the number of votes in these steps illogical and against the meaning of the vote. Then we could always wait for the full House to meet 100%, and only vote in that case, or when everyone runs, or I don't know how to do it. "
In accordance with this procedure, the House insisted on the original draft law, by adopting Resolution No 2017, for which the order number 117 of the 179 were voting in favour of 104, against 71 Members.
The law in question was signed by the relevant constitutional authorities and was duly declared under No 77 / 2002 Coll. in an amount of 34 Collection of Laws, which was circulated on 1 March 2002, and pursuant to § 42 (1) took effect on the date of its publication, i.e. on 1 March 2002, with the exception of Title II and Title III and Part Three, which take effect on the date of the creation of ČD.
On the question of the constitutionality of the legislative procedure with regard to the repetition of the vote in Parliament's Chamber of Deputies, the Constitutional Court expressed its views on 22 October 2002 in the decision sp. zn. In doing so, he expressed an opinion, on the one hand, on the acceptability of the reasons and the way in which the vote was repeated, and on the other, on the other, on the constitutional purpose of protecting democratically shaped sectors:
"The legislator's intentions, if not expressed in an appropriate form and scope in the legal standard itself (the law), such as the motives of the legislator's conduct, have no influence on its content and validity (efficiency) and cannot be assessed in the context of them, more precisely, nor can they give rise to exculpatory reasons for the breach of the procedural rules (principles) if they have occurred during the legislative process, regardless of whether the defects of the law established ex post have caused the legislator's inattention in the vote or its lack of knowledge of the material associated with the examination of the draft law. The repeated vote, indifferent to whether the amendment or the resolution giving its assent to the draft law as a whole, is thus limited by two conditions, namely the direct objection of the Member and the positive decision of the Chamber of Deputies on it, and can only be extended to defects (errors) in its own voting act, i.e. essentially to the voting technique or to the determination of its outcome, but not to the substance of the proposal under discussion (material errors).... political decisions in parliamentary democracy are based on the will of the majority expressed by free voting; However, the terms and conditions, which are expressly expressed by the Constitution, ensure the constitutional legitimacy and legality of the decision taken, and which create the relevant majority in the course of the legislative process, are different and almost always clinging not only to the material which is the subject of the negotiations and the subsequent decision, but are themselves affected, in particular, by the formation of the majority of ad hoc decisions, also by the time and circumstances that arise therefrom. However, the majority thus established for the adoption of a decision (the approval of a draft law) are (may be) relevant, and this is often so that, over time, they may lose their numerical relevance and become a minority which would, however, be exposed to the risk of reversing the decision previously adopted. Therefore, the protection of the factors that have arisen, more precisely their decisions, is necessary not only in terms of the stability of legal acts, but, as a result of the consensus reached at a given time (compromise political will), it also constitutes one of the guarantees of constitutionality which excludes insolence from decision-making."
The legal possibility of repeating the vote in Parliament's Chamber of Deputies is laid down in Sections 74 (3) and 76 (5) and (6) of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies. The vote must be repeated according to the legal regulation if the voting device fails, and if it cannot be removed immediately, the Chamber of Deputies decides on another way to vote. In accordance with the procedural adjustment, which also opens up the admissibility of other reasons for repeating the vote, any Member may object to or immediately after the vote, the House of Deputies deciding on such an objection without debate; If the objection is accepted, the vote shall be repeated.
The legal arrangement, in addition to the failure of the voting device, therefore does not specify other aspects of the fitness of the voting process or result, only provides for the condition of objecting to or immediately after the vote. Its interpretation with regard to the case-law of the constitutionality of Law No 77 / 2002 Coll. requires an answer to the question if the determination of the aspects in question is exclusively a matter of procedure, i.e. a vote on compliance, or implicit in the constitutional court contains legislative procedures inferred to purposes, and further requires clarification of the content of the concept of application of the objection immediately after the vote, and finally requires an assessment of the admissibility of a change in the number of persons present or, where appropriate, a change in their vote when the vote is repeated.
From the point of view of the comparative legislation governing the vote of the Federal Assembly of Germany, there are two cases of repeated voting. The first is in accordance with Section 20 (5) of the Federal Assembly Rules of Procedure, where the Federal Assembly is unable to take a decision, therefore negotiations with the same programme may be convened again and the vote may be repeated. The second case is, in accordance with Section 51 of the Federal Assembly Rules of Procedure, a situation in which the result of the vote cannot be determined by rising or raising hands; the repetition of the vote shall then be carried out by the so-called 'ram jump' procedure, which shall consist of Members leaving the Chamber and entering through repeatedly different doors, with a change of quorum being permitted.
It is based on the principle of "unshakefulness of the parliamentary resolution," the German doctrine, "the question under which, except in the case of failure to vote, a vote can be repeated, is one of the most difficult problems of the vote '(N. Achterberg, Paramentsrecht. Tübingen 1984, p. 647). In the position of only theoretical consideration, the admissibility of the repetition of the vote is analysed as a result of the error given by the assent to the adoption of two contradictory proposals or for the breach of constitutional procedural bail-outs - e.g. quorum (there, p. 650).
In Austria, except in the conceivable case of a repetition of the vote, where the prescribed quorum has not been reached, in which the "true 'repetition is not the case, since such a vote is" absolutely invalid', the National Council's Rules of Procedure law also provides for two options to repeat the vote. According to the first (Paragraph 66 (3)), if the result of a vote (other than by name) is contested by the President of the National Council, the President of the National Council may order a vote by name. In this case, the identity of the number of persons present at the vote shall not be maintained. The second option under Rule 66 (7) of the Rules of Procedure is the case of a vote by name or by secret ballot in which the number of votes cast does not match the number of votes cast with the number of votes cast by Members and this difference may affect the creation of a majority. Since, pursuant to Paragraph 66 (5), in the case of roll-call voting, the ballot cannot be submitted by the person who was not present at the time of the roll-call of his name, the conclusion on the inadmissibility of the change in the roll-call vote is drawn.
Pursuant to Rule 189 of the Rules of Procedure of the Sejm of the Republic of Poland of 30 July 1992, as amended, a repetition of the vote may be made if the outcome of the vote raises reasonable doubts; The Council may do so only at the same meeting at which the vote took place, without the possibility of repeating the vote by name. The Council shall decide on a repetition of the vote on a written proposal of at least 30 Members.
The reason for the repetition of Vote 113 was the discrepancy between Mrs Čeliová's alleged vote in favour of the proposal and the result of the vote by the voting electronic device under which she voted against the proposal. The same reason for the repetition of vote 115 was stated by Mr Kořistka (with the same difference that he claimed he voted against the proposal, but the result was the other way around).
The allegation of an error of voting equipment can undoubtedly be considered as a reason for repeating the vote under Section 74 (3) of the Rules of Procedure of the Chamber of Deputies, which was implemented in accordance with the procedure laid down in Section 76 (5) of that Act. In such a case, a technical fault would make it impossible for the legislature to know the real will of the legislature, and accepting such a result of the vote would be more a matter of chance, given the irregularity of the operation of the technical equipment than the result of a democratic procedure. The link between the two provisions is given by the relationship of speciality and generality, when the repetition of the vote for the failure of the voting equipment is tied only to the case of public voting.
However, by evaluating the voting process in the Chamber of Deputies, it is possible to conclude, on the one hand, that the technical voting equipment is seriously malfunctioning and, on the other hand, that the acceptance and reasons for the repetition of the vote, other than the technical failure, are accepted.
That statement was relied on by the Constitutional Court on the findings made in the taking of evidence, according to which, for example, during the 8th session of the Chamber of Deputies on 26 and 27 November and on 4, 10 and 17 December 2002, 7 cases of repeated voting took place. The reason for the four repetitions was that the Member expressed the difference in the content of the vote and the result on the technical equipment, the other two were the error of the Member and, in one case, the reason is missing. In all cases, the House has agreed to repeat the vote.
From a comparative point of view, there is a difference in approaches to the regulation of the repetition of votes in the legislature. However, it can be said that although the aspects of the admissibility of the repetition of votes in the comparative adjustments appear to be both procedural and materially more demanding than in Act 90 / 1995 Coll., as amended, it is possible to construct a meaningful purpose in this regulation.
Deciding on the veracity of the repetition of the vote is given by a democratic procedure, and achieving the purpose of the repetition is given by the possibility of calling into question the re-vote. Compared, for example, to the Austrian legislation, the purpose, i.e. to remove the reason for the repetition of the vote, is achieved by repeating the vote by voting by name. On the basis of the principle of "unshakefulness' of Parliament's resolution, which is linked to the principle of the rule of law, whose derivative is also the principle of binding state law, that is to say, the binding of public authorities by legal acts, unless their amendment is achieved through a legally foreseen procedure, the requirement to object to or immediately after the vote is made.
The concept of "immediate 'must be interpreted in a restrictive manner, both in terms of substance (i.e. direct because of the time of recognition of the reason for the repetition of votes) and in terms of time in terms of voting time.
From the point of view of the so far indicated circle of bail-in, the constitutionally conformal interpretation of paragraphs 76 (5) and (6) of the Rules of Procedure of the Chamber of Deputies can be concluded that Law No 77 / 2002 Coll. was adopted in a constitutionally prescribed manner.
However, the question of the admissibility of the change in the number of Members present in the vote and the change in the vote of those Members who did not object to the reason for the repetition remained unanswered. The answer depends on the fact that the re-vote is a new vote without any correlation with the vote which is repeated and which results in an absolutely invalid resolution of the Chamber of Deputies, or the purpose of the re-vote is only to remove the reason for the repetition in relation to the Member who challenged the course or outcome of the vote.
In this case, 176 Members voted in vote 113, 97 in favour of the proposal, 179 in vote 117, 104 in favour of the proposal. Thus, by repeating the vote, there was a change in the result of the vote from the vote, according to which the motion was not adopted, to the vote according to which the vote was adopted. As is apparent from the record of votes 113 and 117 at the 46th meeting of the Chamber of Deputies on 5 February 2002 by four other Members present and voting, Miroslav Beneš and Zdeňka Horníková (both ODS), who did not support the proposal, and Libor Ambrozek (KDU- ČSL) and Rudolf Tomel (ČSSD), who voted in favour of the proposal, and also Mr Jaroslav KSČM, who did not participate in vote 113, did not participate in vote 117. Of the Members already voting in vote 113 in vote 117, they changed their vote in favour of the proposal by Ludmila Müller (KDU- ČSL), Květoslav Čeliová, Václav Frank, Josef Houzák and Zuzka Rujbrova (all KSČM).
For example, Austrian legislation is based on a solution to the question of the admissibility of a change in the number of persons present since the purpose of repeating the vote. If the result of a vote (other than by name) is contested, a vote may be ordered by name, not requiring the identity of the persons present at the re-vote: if the vote is repeated by name, the person who was not present at the time of the call of his name is not able to submit the vote, the conclusion on the inadmissibility of the change of the voting circle at the re-vote shall be drawn.
A repeated vote, according to the Constitutional Court's conviction, must be interpreted in principle in the sense of a new vote where the change of the heading of persons present is not relevant for the assessment of its validity, as the previous vote is absolutely invalid. This is not true, however, if, despite compliance with the procedure laid down in Sections 76 (5) and (6) of Law No 90 / 1995 Coll. in the procedure on the control of standards within the meaning of Section 68 (2) of Law No 182 / 1993 Coll. it has been shown that the repetition of the vote did not follow the achievement of the stated purpose (e.g. the reflection of the failure of the voting equipment), but the abuse of the right and the change in the outcome of the vote.
Since, despite the indications, this fact has not been demonstrated with sufficient certainty in the present case, the full court of the Constitutional Court can only accept the conclusion that Law No 77 / 2002 Coll. was adopted in a constitutional manner.
From a general point of view, the Constitutional Court considers it necessary to assess the purpose of the objections raised, while not every such purpose can be regarded as constitutionally conformal (e.g. a vote error would have to be regarded as such). In this context, the Constitutional Court sees the justification for a more detailed revision of the terms of the revote in the Rules of Procedure of the Chamber of Deputies.
In the opening of the substantive assessment of the constitutionality of the contested provisions of Act No 77 / 2002 Coll. it is not for the Constitutional Court to assess the effectiveness of the transformation of the state organisation České dráhy, which is linked to its privatisation, in the standard control procedure. In that procedure, it is required to limit itself only to examining the conformity of the contested legal provisions with the constitutional order [Article 87 (1) (a) of the Constitution].
The appellants' fundamental argument in relation to all the annulment of the proposed legal provisions is that they oppose the principle of equality under Articles 1, 3 (1) and 4 (3) of the Charter, Article 26 of the Pact and Article 14 of the Convention. This inequality is seen in the unfounded and unjustified advantage of ČD public limited company over all other private law entities which are entrepreneurs and are established under the Commercial Code in the legal form of a commercial company, subject to different rules and conditions of its establishment and different licensing procedures. The special objection is then applied to the constitutionality of the derogatory provision of the law.
On the other hand, the party to the proceedings, the Chamber of Deputies of the Czech Parliament, argues, in particular, that there are no fundamental rights arising from Article 1 of the Charter for Legal Persons, as well as the specificity of the special regulation of the matter, as well as the legislative practice which regularly makes the entry into force of the derogatory provisions of future legal facts subject to the application.
The Constitutional Court already spoke at the beginning of its work on the status of legal persons as bodies of fundamental rights and freedoms. In this context, the findings of the Pl. ÚS 15 / 93 of 19 January 1994 (the finding was published under No 34 / 1994 Coll. and was also published in Volume 1 of the Reports of the Constitutional Court's Decisions on page 23 et seq.), which stated the following: "It should be considered whether the relevant provisions on fundamental rights and freedoms concern legal persons at all. The Charter does not express itself explicitly in this regard. However, a declaration by the former Czech and Slovak Federal Republic in the ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms, which recognises the power of the European Commission for Human Rights to receive complaints from persons, NGOs or groups of persons deemed to be damaged as a result of violations of rights conferred by the Convention (cf. Communication from the Federal Ministry of Foreign Affairs, published under No 209 / 1992 Coll.), may be reached. From this, the willingness of the State to provide protection for legal persons with regard to fundamental rights and freedoms can be inferred. Moreover, in this regard, the provisions of Paragraph 72 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, which states that a constitutional complaint is entitled to be lodged by a natural or legal person, if it claims that the intervention of a public authority infringes its fundamental right or freedom guaranteed by a constitutional law or an international treaty under Article 10 of the Constitution. 'That finding was followed by the Constitutional Court in its case-law at a constant date [see, for example, Case 192 / 95 ÚS of 1 November 1995 (Volume 4 of the Reports of the Constitutional Court's Decisions, p. 197 et seq.), in which, in relation to the first sentence of Article 1 and Article 3 (1) of the Charter, it stated that the principle of equality in the rights of both individuals and legal persons was" regulated'].
The Constitutional Court also expressed its views on the special rights arising from the constitutional limits of equality, such as the interpretation of Article 37 (3) of the Charter. In the judgment in paragraph IV of the judgment of 3 September 1998 (Volume 12 of the Reports of the Constitutional Court, p. 45 et seq.), he stated in this connection: "Legal persons... have the capacity to be a party to the proceedings and the court must therefore treat them in the same way as a party who is a natural person. '
The conclusion, not the content of this interpretation of the Charter, did not even meet with the critical reflection of the doctrine (see e.g. J. Filip, Selected chapters to study constitutional law. Brno 2001, p. 65 et seq.).
According to constant case law The Constitutional Court is bound by a petition only, but not by the reasoning of the proposal (see the finding of 24 May 1994 sp. zn.
When understanding the constitutional principle of equality, the Constitutional Court identified, in particular, [namely in the findings in the cases referred to in sp. zn. Pl. ÚS 16 / 93, Pl. ÚS 36 / 93 (the finding of 17 May 1994 No 132 / 1994 Coll., Volume 1 of the Constitutional Court's Decisions, p. 175 et seq.), Pl. ÚS 5 / 95 (the finding of 8 February 1995 No. 6 / 1996 Coll., Volume 4 of the Constitutional Court's Decisions, p. 205 et seq.), Pl. ÚS 9 / 95 (the finding of 28 February 1995 No. 107 / 1996 Coll., p. 5 of the Rules of the Constitutional Court, p. 107 et seq.], with a view of the constitutional principle of equality. However, it must not proceed freely here either.... If the law determines the benefit of one group and thereby imposes disproportionate obligations on another, it may do so only by referring to public values. 'The Constitutional Court thus rejected the absolute understanding of the principle of equality, stating that "equality of citizens cannot be understood as an abstract category, but as a relative equality, as all modern institutions mean it' (Pl. ÚS 36 / 93). The content of the principle of equality has thus shifted into the area of constitutional acceptance of the aspects of the distinction between entities and law. Thus, the first aspect sees the exclusion of libel. The second is based on the legal opinion expressed in the judgment in the case under point Pl. ÚS 4 / 95 (the finding of 7 June 1995 No 168 / 1995 Coll., Volume 3 of the Reports of the Constitutional Court's Judgments, p. 209 et seq.):" inequality in social relations, if it is to affect fundamental human rights, must achieve an intensity, doubting, at least in a certain way, the very essence of equality. This is usually the case when the infringement of another fundamental right, such as the right to own property pursuant to Article 11 of the Charter, one of the political rights referred to in Article 17 et seq. of the Charter, etc. '(Pl. ÚS 5 / 95) is also linked to the violation of equality. The second point of view in assessing the unconstitutionality of a law establishing inequality is therefore the fundamental concern of one of the fundamental rights and freedoms. In other words, in its case-law, the Constitutional Court interprets the constitutional principle of equality in terms of both accessorial and non-accessorial equality.
In the present case, however, these aspects must be taken into account in the assessment of the law, which regulates a unique case, which therefore also deviates from one of the fundamental material characteristics of the concept of the law, which is universality. Let us remember that the requirement of the universality of the law is an important part of the principle of the rule of law and thus also of the rule of law. As one of the most important theorists of the 20th century's rule of law, F. A. Hayek states: "If we assume that if all the state's actions are properly approved by the legislator, the estate of the law is preserved," then "this is a complete misunderstanding of the importance of the rule of law... The House of Law thus imposes limits on the scope of legislation: it limits them to the kind of general rules known as formal law, and excludes legislation... directly aimed at certain people... No one will prove that, in a famous case under Henry VIII's rule, when Parliament decided the bishop of Rochester that, said Richard Rose would be cooked to death without the benefits of his membership of the clergy ', this decision was made within the domain of the law." (F. A. Hayek, Journey to slavery, Prague 1990, p. 73 - 75)
The arguments in favour of the universality of the law are as follows: the division of power, equality and the right to an independent judge. What assumptions can, however, be formulated for exceptions, under which assumptions it would be possible to consider the constitutionality or the unconstitutional nature of a law governing a unique (i.e. a specific) case? Under what conditions can it be concluded that the law on a unique case constitutes a breach of the principle of equality?
The first point of view to be tested is the criterion of assessing the constitutionality of a state based on non-accesoric inequality: "The principle of equality does not, however, offer any real limitation of the laws relating to a unique case, because it is now allowing something unique and exceptional to be treated in accordance with its specificity. The question, however, is whether there really is such a special nature in this case that the general arrangements seem arbitrary and the regulation is proportionate for a unique case. To the extent that the law on a unique case is the expression of ratia - not just voluntas - it is integrated into the organised structure of the rule of law." (H. Schneider, Gesetzgebung, 2. Auflage, Heidelberg 1991, p. 31) If the adoption of a law on a unique case is not an expression of voluntas, there must therefore be rational arguments for it. It is not part of the power of the Constitutional Court to assess the degree of this rationality.
The second aspect is the criterion for assessing the constitutionality of the status based on the Accesoric inequality; that is the inadmissibility of the inequality resulting in fundamental constitutional rights and freedoms.
A particular argument against the laws on unique cases is the principle of division of power, i.e. the separation of legislative, executive and judicial powers in a democratic rule of law: "The adoption of laws on unique cases is the most hindered by the area of application of law. The right to a legal judge and the independence of legal protection are also excluded by the legislature in areas which are not protected by the principle of" nulla poena sine, "where the lex can only be a general and written legal sentence in a meaningful way." (Ibid., p. 32) Article I, Section 9 of the US Constitution in this context stated: "There must be no law which contains a judgment."
From the point of view of the indicated constitutional bail-out, the proposal to abolish part of the provisions of § 4 (1), § 4 (4), second sentence, part of the provision of § 5 (2), § 8 (4), § 38 (3) and Annex 1 to Law No 77 / 2002 Coll. is justified.
If it is possible to take note of the general arguments in favour of the special legal regulation of the transformation of the state organisation of the Czech Railways, as contained in the explanatory report on the draft law and in the observations of the party to the Chamber of Deputies of Parliament, thus excluding the legislature's arbitrary procedure and not testing the contested legal provisions of the aspect of the constitutionality of non-accesoric inequality, then the aspects of the assessment of the constitutionality of the acesoric inequality must be reflected in the impact of those legal provisions on values protected by constitutional order.
Derogation reasons affecting part of the provisions of § 4 (1), § 4 (4), second sentence, part of the provision of § 5 (2) and Annex 1 to Act No. 77 / 2002 Coll., in addition to the inequality in relation to the general legislation contained in the Commercial Code and in Act No. 265 / 1992 Coll., on the registration of property ownership and other property rights, as amended, relate to the indeterminity of the division of assets of the Czech Railway State Organisation to both successor organisations. If, for example, the legislature followed the method of adopting a law governing a unique case in church restitutions (Act No. 298 / 1990 Coll., on the modification of certain property relations of the Greek Regulations and the congregations and archbishop of Olomouc), he defined the properties in question in a manner that was certainly consistent with the general rules (Annexes 1 and 2 to that Act). Similarly, in a way that is certainly consistent with the general rules, the legislator finally followed the procedure of Annex 2 to Act No 77 / 2002 Coll.
The purpose and purpose of the certainty and formality of the formalities for determining the non-monetary contribution to a public limited company and its valuation are not only to protect legitimate trust in law and legal certainty, as they result from the concept of the rule of law (Article 1 of the Constitution), but also to protect the right of ownership of third parties (Article 11 of the Charter, Article 1 of the Additional Protocol to the Convention). On the grounds of infringement of the rights under Articles 3 (1), 11 of the Charter, Article 1 of the Constitution, Article 26 of the Pact and Article 14 of the Convention, in conjunction with Article 1 of the Additional Protocol to the Convention, the Constitutional Court annulled part of the provisions of Sections 4 (1), 4 (4), second sentence, part of the provision of Section 5 (2) and Annex 1 to Law No 77 / 2002 Coll.
Paragraph 8 (4) of the Act No. 77 / 2002 Coll., which relieves ČD of the obligation to apply for a licence and the corresponding official authorisation until the date of entry into force of the Treaty of Accession of the Czech Republic to the European Union, given the purpose of the Act, expressed in the explanatory report submitted by the appellant of the Act, according to which it is the task of the State to create a "harmonised market environment in which carriers of different types of transport apply on the basis of equal initial conditions of competition ', cannot be regarded as contradictory from the point of view of non-action equality (Article 1, Article 3 (1) of the Charter). It sets up an unjustified inequality, which is lacking by the legislator explicitly expressed and, where appropriate, implicit in the regulatory regulation of the purpose. On the contrary, this adjustment is also found to be contrary to the purposes declared by the appellant and expressed in the explanatory memorandum.
In this context, it cannot be mentioned that a somewhat contradictory approach to transforming European Union law, when, in the case of establishing food product quotas, or in a segment which is linked to the restriction of a free market, the transformation of European Union law (note bene in a more intensive form) was carried out in a significant period before accession to the European Union, in a segment in which European Union law envisages the introduction of conditions of a competitive environment, the legislator is waiting for a transformation to the moment of entry.
The possible dispute over the rights and obligations of the successor entities after the Czech Railways State Organisation is by its nature a private law dispute and not a public law dispute, i.e. according to the general regulation of § 7 (1) of the Civil Code falls within the jurisdiction of the courts. Although there is an acceptable structure in the legislation, according to which certain generally defined groups of civil matters are not decided by the courts, but by the administrative authorities, but by the provisions of Section 38 (3) of Act No. 77 / 2002 Coll., which mislead the power of the Ministry of Transport and Communications to decide on private law disputes of two specifically designated entities, the constitutional requirements of the regulation of a unique case do not satisfy. In relation to the judicial decision-making of civil disputes, the Ministry does not meet the courts of independence, it establishes a decision-making mechanism not general to a group of cases, but unique only to two specific legal entities. Therefore, the provisions of Paragraph 38 (3) of Act No 77 / 2002 Coll. cannot be regarded as contradictory to Articles 1 and 3 (1) of the Charter and Article 80 of the Constitution. The above-mentioned conclusions of the Constitutional Court do not alter the possibility of judicial review of the decision of the Ministry under § 38 (3) of Act No. 77 / 2002 Coll. (§ 7 (2) and § 244 to § 250l of the Civil Code).
The application of the proposed bail-out to assess the constitutionality of the legal regulation of a unique case in relation to the provisions of Sections 6 (1) and 6 (2), 7 (1) and (2) and part of the provisions of Sections 42 (1) and 42 (2) of Law No 77 / 2002 Coll. then led the Constitutional Court to reject the proposal to repeal those legal provisions. In this context, it can be accepted that there is a justification for the special arrangement of the creation of the ČD public limited company, as expressed in the explanatory report on the draft law, as well as in the observations of the party to the Chamber of Deputies of Parliament, as well as for its view that "the abandonment of the entrustment principle in the event of a change of ownership of real estate is not contrary to § 133 of the Civil Code, since in this case the transfer of real estate is not based on a contract, but on the law and, moreover, in cases where the real estate is transferred by contract, it may provide for a special law '.
In relation to the alleged unconstitutional nature of the derogatory provisions, it would be possible to see the justification for their annulment for a contradiction with Article 1 Only when the future legal fact with which legal deregulation is linked would be defined indefinitely and unequivocally, would it not be possible to determine with certainty the moment of the expiry of the deregulated legislation, or would be retroactively established. None of these two cases, however, are applicable to the provisions of § 42 of Law No 77 / 2002 Coll.. the future legal fact to which the law refers is clearly and clearly defined, and its determination does not raise any reasonable doubts.
Knowing that the abolition of those legal provisions without adequate legiskance would result in the non-applicability of the law in question, as well as the fact that the Government of the Czech Republic, by order of 10 July 2002 No 733, approved the founding act of the Czech Railways public limited liability company and its statutes, in conjunction with § 42 (1) of Law No 77 / 2002 Coll. on 1 January 2003, the law in question became effective in all its provisions, by delaying the effectiveness of the decision on 31 October 2003, the Constitutional Court created a time limit for the democratic legislator for the constitutional implementation of Law No 77 / 2002 Coll. The Constitutional Court considers that the protection of rights acquired in the meantime by third parties in good faith is a necessary part of it, in the intertemporal provisions of the law.
Vice-President of the Constitutional Court:
JUDr. Holecek v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 83 / 2003 Coll., on the application for annulment of certain provisions of Act No. 77 / 2002 Coll., on the public limited company ČD, the State Organisation of the Railway Infrastructure Administration and amending Act No. 266 / 1994 Coll., on Railways, as amended, and Act No. 77 / 1997 Coll., on the State Company, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 25.03.2003 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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