2002/02/12 - Pl. ÚS 21/01: Budget Case

12 February 2002

HEADNOTES

The

Constitutional Court refers to the legal proposition it has already

declared, to the effect that the provisions of a statute which amend

some other statutes become a part of the amended statutes (ruling of 15

August 2000, file no. Pl. US 25/2000, The Collection of Judgments and

Rulings of the Constitutional Court, Vol. 19, p. 271 and following;

similarly, see judgment of 13 March 2001, file no. Pl. US 51/2000, id.,

Vol. 21, p. 369, promulgated under No. 128/2001 Coll.) and no longer

constitute an separate part of the Czech Republic legal order.

It is the Constitutional Court’s task in the given case to adjudge the

issue whether the Senate was, or was not, empowered to hold debate upon

and approve also the amendments to acts other than an act on the State

budget, although accomplished by a single vote.  A positive response

must be given to the question as framed in this manner; in the opposite

case, it could after all result in the situation that by attaching the

amendment to an act on the State budget to an amendment (or even the

adoption of) further acts, the Senate would be excluded from the

legislative process with respect to these further acts.  Such an

interpretation clearly would not be in keeping with the sense either of

Art. 42 para. 2 of the Constitution or of the essence of bicameralism,

as enshrined in the Czech Republic’s constitutional order, and therefore

it is necessary to consider it as an interpretation in conflict with

the constitution.

In the given case, however, what occurred is

that several statutes were simultaneously amended by a single statute,

and among these amended statutes was an Act on the State Budget.  It

should be added that the practice by which several diverse statutes are

simultaneously amended by the adoption of a single act is a relatively

common one in legislative practice.  The Constitutional Court states in

relation thereto that, on a general level, this practice is in principle

constitutionally conforming, but only in the case that the amended

statutes bear mutual substantive connection to each other.  On the other

hand, the situation where several statutes bearing no direct

substantive connection to each other are amended by a single act, must

be designated as an undesirable phenomena, and one not corresponding to

the purpose and principles of the legislative process.  Such a situation

comes about, for example, due to the speeding up of the legislative

process, in part in the form of submitted proposed amendments.  

Such a manner of proceeding, thus, does not correspond to the basic

principles of a law-based State, among which belong the principle that

laws should be foreseeable and comprehensible, and the principle that it

should be internally consistent.  If then the substantive content

regulated in several statutes is affected by a single statute (in the

formal sense), and these affected statutes do not, either by content or

systemic considerations, have any connection with each other, then a

quite murky legal situation immediately emerges which does not respect

the principles of foreseeability, comprehensibility or internal

consistency.

Since the Constitution in relation to an Act on the

State Budget does not enable the Senate to intervene into the

legislative process and this act, on the proposal of the government, can

be debated and adopted only by the Chamber of Deputies, it is evident

that the sole possible constitutionally conforming means of proceeding

is that in which such an act is debated and adopted entirely

separately.  For this reason also § 101 para. 3 of the Standing Orders

of the Chamber of Deputies (Act No. 90/1995 Coll., on the Standing

Orders of the Chamber of Deputies) explicitly provides that “Provisions

amending, supplementing, or repealing provisions of other acts may not

form a part of an Act on the State Budget.”  (Note bene:   Of course,

Act No. 10/1993 Coll. was adopted before the cited act, No. 90/1995

Coll. came into effect).  In the Constitutional Court’s view, it can be

deduced from the wording of this statute that neither can provisions

amending, supplementing, or repealing provisions of an Act on the State

Budget form a part of an “ordinary” statute.  The situation where,

together with an Act on the State Budget, other acts are also proposed,

or when an Act on the State Budget as well as further acts are amended

by means of a single act, is thus a situation which, as was already

stated, is not in conformity either with the Constitution or with the

law (see cited Act No. 90/1995 Coll.).

Thus, the Constitutional

Court acts, in norm control proceedings, in its capacity as a “negative

legislature”, authorized in the case that it grants the petition solely

to derogate the contested legal enactment.  For this reason, the

annulment of a contested enactment can also result exclusively in its

"exclusion" from the Czech Republic's legal order, but never in the

actual creation of new regulation in the form of the "revival" of an

already repealed enactment.  It is the Constitutional Court’s conviction

that the opposite view could give rise to a significant degree of legal

uncertainty and to the Constitutional Court exceeding the bounds of its

defined competencies.  It can therefore be concluded that the “revival”

of an earlier repealed or amended legal enactment in consequence of a

Constitutional Court judgment in the considered sense, could come about

only in the case that constitutional provisions were directly to make it

possible (see, for example, Art. 40 para. 6 of the Austrian

Constitution).

Since it is exclusively the Chamber of Deputies

which can hold debate upon and approve an Act on the State Budget, such

an act is adopted as soon as it is approved by the Chamber of Deputies,

that is, entirely independent of any possible further debate and

approval in the Senate.  If together with an Act on the State Budget (or

the amendment thereof) another ("ordinary") statute (statutes), or the

amendments thereto, be debated and approved - which would, however, be

in conflict with the Act on the Standing Orders of the Chamber of

Deputies - such a situation must be interpreted such that the Senate may

hold debate upon and approve solely "ordinary" statutes and amendments

thereto, and its decision has therefore legal significance only in the

case of those statutes, not however in the case of acts on the state

budget.

If then Art. 42 para. 2 of the Constitution speaks of

“an act on the State budget”, this term must be conceived not in a

formal, rather in a substantive, sense.  In other words, not every

statute designated as a budgetary act (or not every part thereof) need

directly concern the issue of the State budget, and conversely it is

possible to imagine the situation where the content of an act on the

State budget will be regulated by a statute which is not designated as

such.

In summary it can be said that when judging whether, in a

specific case, a bill can be considered an “act on the State budget”

under Art. 42 para. 2 of the Constitution, it does not suffice to limit

oneself to consideration of the formal designation of such a bill

(statute).  Such an approach would, in consequence, lead to the

situation where the Senate could, in the case of certain important

statutes, be excluded from the legislative process simply by designating

that bill an “act on the State budget”, even if in fact that statute

were to regulate substance having no direct connection with the State

budget.  On the other hand, the Constitutional Court considers it

necessary to emphasize that the substantive conception of the term, “act

on State budget”, should not in practice lead to too broad an

interpretation, since it is evident that practically every bill is

related, either directly or indirectly, to the State budget, alone due

to the fact that the carrying out of that bill generally has impact on

the State budget (either in terms of revenues or expenditures).  The

term, “act on the State budget”, must be interpreted in conformity with

the normative regulation of the State’s budget rules contained in Czech

National Council Act No. 576/1990 Coll., on the Rules for Managing

Budgetary Funds of the Czech Republic and Municipalities in the Czech

Republic (the Republic’s Budgetary Rules), which were in force at the

time when the cited Act No. 10/1993 Coll. and Act No. 217/2000 Coll.

were issued.  Pursuant to § 3 of Act No. 576/1990 Coll. („The Content of

the Republic’s State Budget“) „The Republic’s State budget stall

include expected revenues, as well as expenditures in ensuring the tasks

and covering the needs of the Czech Republic in the given budgetary

year.  It shall also contain financial relations to the budgets of

municipalities, of district offices and to the budgets of the Republic’s

State funds.“  In other words, the term, „act on State budget“, in its

substantive sense, must be interpreted in such a manner that it concerns

such a statute as directly regulates planned revenues and expenditures,

the budget items of the public sector of the Czech Republic connected

with carrying out State functions always for the following time period

(that is, the budgetary year).  It is only a statute conceived in this

way that must be classified under Art. 42 para. 2 of the Constitution,

therefore it is only such a bill which the Senate is not empowered to

debate or adopt.

The Constitutional Court considers it desirable

– beyond the confines of the case under consideration – to emphasize

that the substantive conception of the term, act on the State budget, in

Art. 42 of the Constitution has further dimensions.  By creating a

special constitutional category of acts on the State budget, the

Constituent Chamber emphasized the special place and significance these

statutes have for the Czech legal order, similarly as it did in the case

of the electoral act or the “relations” act under Art. 40 of the

Constitution.  By removing bills on the State budget from the regime for

the adoption of “ordinary” bills, it expressed its intention that the

legislature considered the substance of the State budget comprehensively

and separate from matters which are not directly connected with the

State budget.  In other words, the subject to be regulated contained in

bills on the State budget can be exclusively rules substantively related

to problems of the State budget, not to other rules.  From the

perspective of the Constitution, it is impermissible to tack on to a

bill on the State budget a provisions which in substance bears no direct

connection to the substance of the State budget.  



 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Plenum of the Constitutional Court decided in the matter of the

petition of a group of 24 Senators proposing the annulment of "Act No.

217/2000 Coll., a part thereof, or the amendments to acts No. 1/1992

Coll. and No. 143/1992 Coll. effected by it", as follows:

The petition is rejected on the merits.

 


REASONING

I.
 

A. 

The submitted petition contests, in the first place, Act No. 217/2000

Coll., which amends Act No. 1/1992 Coll., on Wages, Compensation for

Work Standby and on the Average Earnings, as amended by subsequent

enactments, Act. No. 143/1992 Coll., on Pay and Compensation for Work

Standby in Budgetary and certain additional Organizations and Organs, as

amended by subsequent enactments, Act No. 10/1993 Coll., on the State

Budget of the Czech Republic for the Year 1993, on the Amendment and

Supplement of certain acts of the Czech National Council and certain

further enactments, as amended by subsequent enactments, and Act No.

132/2000 Coll., on the Amendment to and Repeal of certain Acts related

to the Act on Regions, Act on Municipalities, the Act on District

Offices, and the Act on the Capitol City of Prague.  The petition was

submitted on the grounds that this Act (or at least a part thereof) was

allegedly not adopted by the formally correct process prescribed by the

Constitution of the Czech Republic (hereinafter "Constitution").

The petitioners referred, first of all, to § 68 of Act No. 182/1993

Coll., on the Constitutional Court, according to which the

constitutional review of a contested statute can be separated into the

scrutiny (I.) of its substantive conformity with constitutional acts and

international treaties under Art. 10 of the Constitution and (II.) the

constitutionality of its adoption as a statute.  The petitioners

emphasize that they does not wish to call into doubt the substantive

conformity of the contested act with super-statutory enactments, rather

they merely consider the manner in which it was approved to be

unconstitutional.

The petitioners find the adoption of the act

under consideration to have been unconstitutional in the sense that the

Senate was deprived of the possibility, duly and in conformity with the

Constitution, to hold debate upon and adopt resolutions concerning the

bill.  According to Art. 42 para. 2 of the Constitution, only the

Chamber of Deputies may hold debate upon and adopt resolutions

concerning bills on the State budget.  In such cases, therefore, the

Senate may not take part in the legislative process.  The same rule

allegedly applies as well to amendments to acts on the State budget

(argument a maiori ad minus).

In the given case, the Senate

received, as a part of the contested act, a bill to amend a part of an

act on the State budget.  In such a situation, it had in principle three

options as to how it could proceed:

-  Not to deal with the bill

at all within the period of 30 days.  While this clearly would have

represented the least controversial means of proceeding (and for that

reason, the Senate elected this option in the case of Act No. 362/1999

Coll., on the State Bond Program for the Defrayment of the Deficit in

the State Budget for the Year 1998 and on an Amendment to Act No.

530/1990 Coll., on Bonds, as subsequently amended, and on Act No.

22/1999 Coll., on the State Budget of the Czech Republic for the Year

1999), nonetheless allegedly it could lead to the formation of some sort

of future constitutional custom (precedent) where the sponsor of a

bill, or the Chamber of Deputies itself, out of fear that a certain bill

would supposedly not be approved in the Senate, would attach to this

bill a bill amending the formal and an inessential part of an act on the

State budget, and by this means, the Senate would be "excluded from the

game" in the context of the legislative process.

-  Adopt a

resolution to the effect that the Senate will not deal with the bill

under consideration.  It must be said in that regard that, according to §

102 para. 1 of Act No. 107/1999 Coll., on the Standing Orders of the

Senate, the Senate is to proceed to a vote on this issue only "following

the conclusion of detailed debate" in the competent committee.  The

concept, "detailed debate in committee" could be considered as "holding

debate upon" under Art. 42 para. 2 of the Constitution which, in the

case of acts on the State budget, accords this right solely to the

Chamber of Deputies.  The petitioners thus believe that, even if the

Senate were to adopt a resolution to the effect that it would not deal

with the submitted bill at all, it would still have - in relation to an

amendment to an act on the State budget - committed unconstitutional

error, as it would have adopted a resolution on such an act, or even

have held debate upon it, even though Art. 42 para. 2 of the

Constitution provides that solely the Chamber of Deputies shall adopt

resolutions and hold debate upon bills on the State budget.  In this

case, there would also be a genuine threat of "excluding the Senate from

the game" in the context of the legislative process, as was stated in

the preceding point.

-  Adopt the position on the matter to the

effect that, this was a single statute solely in the formal, but not in

the actual, sense so that debate on particular parts of the submitted

act can be separated in the sense that the Senate would hold debate on

the entire bill with the exception of those parts concerning the act on

the State budget.  In the petitioners' view, this option is merely a

theoretical one since, in the case when several acts are amended

simultaneously by a single statute, it is stricto sensu a single statute

and neither the Constitution nor the Standing Orders of the Senate

(compare § 98 and following) provide for the possibility of the

suggested "separation" of a submitted bill.

Considering its need

to give its views, in particular, on the Act on Wages, in the end the

Senate held debate on the Act and returned it to the Chamber of Deputies

with adopted proposed amendments.

The petitioners consider that

the situation which arose when the contested act was debated is not

isolated and see in this very fact the seriousness and genuine

constitutional law intensity of the situation.  After all, the Chamber

of Deputies has already once, in the case of Act No. 362/1999 Coll., on

the State Bond Program for the Defrayment of the Deficit in the State

Budget for the Year 1998 and on an Amendment to Act No. 530/1990 Coll.,

on Bonds, as subsequently amended, and on Act No. 22/1999 Coll., on the

State Budget of the Czech Republic for the Year 1999, given its assent

to an act which, apart from the act on the State bond program and an

amendment to the act on bonds, also consisted of an amendment to an act

on the State budget.  In the case of the Act on the State Bond Program

for the Defrayment of the Deficit in the State Budget for the Year 1998,

the Senate gave preference to the solution of not dealing with the bill

at all, although it was evident from the debate that the Senators

feared they were consciously violating the Constitution and also did not

wish to give grounds for contesting the act - with whose content almost

everybody was in agreement - before the Constitutional Court.  In view

of the situation that had arisen, the Senate therefore adopted a "mere"

resolution (No. 217 of the 12th meeting on 8 December 1999), in which it

declared that it had been "disabled from debating the bill", and

protested against the Chamber's manner of proceeding.  The evident

purpose of this resolution was to forestall any recurrence of a similar

situation.

The petitioners consider that the legislative

procedure, whereby an act on the State budget also contains the

amendment of further acts (or the amendment to some other act also

contains an amendment to an act on the State budget), could be

designated as constitutionally conforming only in the case that the

term, "statute", were conceived in the formal sense as a legal enactment

debated and promulgated together with a common text and under a single

number in the Collection of Laws, rather than in a purely material

sense, as a legal norm regulating a certain field of legal problems with

the proviso that several statutes, each individually regulating certain

substantive issues, can be debated together and designated as a single

statute under a single number in the Collection of Laws.  In such a

case, it would be possible to come to the conclusion that, in fact, the

Senate in some manner held debate upon and adopted resolutions

concerning several parts of the contested act, but not concerning the

amendment to the act on the State budget.  The term, "statute", under

Arts. 41 to 48 of the Constitution should not represent a single act

published under a single number in the Collection of Laws and debated

together, rather a statute in the sense of a legal norm regulating a

certain field of relations such that several statutes can be published

under a single number.  The petitioners nonetheless consider this manner

of interpretation as merely theoretical and one evidently not

corresponding to the existing constitutional and statutory rules for the

legislative process, in the context of which it is entirely commonplace

that several statutes are amended by a single legislative act,

nonetheless from the formal perspective - thus, from the standpoint of

the legislative process as well - it is a single act, where there is not

a separate vote on individual amendments to separate acts, rather only

on the act in its entirety.

The petitioners therefore assert

that, in the formal sense, the contested act is one statute as a whole,

even if it effected the simultaneous amendment of several statutes, and

since one part thereof was an amendment to an act on the State budget,

upon which the Senate is not at all competent to decide, as a whole this

act was adopted in an unconstitutional manner, which thus constitutes

grounds for its annulment (even without any substantive review of the

act).

Nonetheless, the petitioners do not exclude such an

interpretation as would proceed from the view that it was only the act

on the State budget, and not the other acts (or the partial amendment

thereto), which was amended in an unconstitutional manner, so that there

would be grounds for annulment only in the case of the amendment to the

act on the State budget, and not in the case of the amendments to other

acts.

The petitioners assert that bills have repeatedly been

submitted which, in a single text, amend an act which is subject to

consideration in the Senate and an act on the State budget, which can be

debated exclusively by the Chamber of Deputies. The present practice

was viewed by the Senate as inappropriate, however, the Chamber of

Deputies has continued to hold debate upon acts (proposed by the

government) in the above-described manner.  In such a situation it is

therefore necessary to make an authoritative judgment - from the

perspective of the constitutionality of the legislative process, as to

whether the described practice of adopting acts is correct, and further

to declare the constitutionally approved manner by which the Senate

should proceed in the above-described type of case.

Since the

petitioners are aware of the fact that the Constitutional Court is not

endowed with jurisdiction to give an authoritative interpretation of the

Constitution, they consider it necessary for the Court to give its

views on this issue in the context of an abstract norm control

proceeding, over which it has jurisdiction pursuant to Art. 87 para. 1,

let. a) and b) of the Constitution.


B)  The petitioners consider the adoption of the contested act to have been unconstitutional in the following respects:

   

*  Its conflict with Art. 42 para. 2 of the Constitution.  Only the

Chamber of Deputies is authorized to debate upon and approve Bills on

the State budget, however in the case of the contested Act, it was

debated and approved by the Senate as well, which the Constitution does

not permit.

    *  Its conflict with Art. 33 para. 2 of the

Constitution.  According to this provision, the Senate is not authorized

to adopt legislative measures concerning the State budget.  The

petitioners deduce from the example of this article that, if the

Constituent Chamber did not enable it to adopt legislative measures even

in the case the Chamber of Deputies has been dissolved, all the less

can it be considered that Senate can approve such bills in the case that

the Chamber of Deputies is operating normally.

    *  Its

conflict with Art. 1 and with Art. 15 para. 2 of the Constitution. 

According to Art. 1, the Czech Republic is a democratic State governed

by the rule of law.  Art. 15 para. 2 of the Constitution guarantees

bicameralism.  In a State governed by the rule of law, the principles of

bicameralism correspond first and foremost to a clear distribution of

the competencies between the two chambers of Parliament.  The state of

affairs where the upper chamber is not permitted by the express terms of

the Constitution to take action or adopt resolutions concerning certain

bills, is in evident conflict with the situation which occurred in

connection with the debate on the contested Act, when the Senate was

placed into the above-described position, either ignore the bill as a

whole and, as a result, consciously give up its right to take part in

the legislative process when approving "ordinary" statutes, or to take

action on it and vote, thus risking that the act be adopted in an

unconstitutional manner.

In consideration of these arguments, the

group of Senators proposes that, in its judgment, the Constitutional

Court annul as unconstitutional:

1)  In its entirety Act No.

217/2000 Coll., which amends Act No. 1/1992 Coll., on Wages,

Compensation for Work Standby and on the Average Earnings, as amended by

subsequent enactments, Act. No. 143/1992 Coll., on Pay and Compensation

for Work Standby in Budgetary and certain additional Organizations and

Organs, as amended by subsequent enactments, Act No. 10/1993 Coll., on

the State Budget of the Czech Republic for the Year 1993, on the

Amendment and Supplement of certain acts of the Czech National Council

and certain further enactments, as amended by subsequent enactments, and

Act No. 132/2000 Coll., on the Amendment to and Repeal of certain Acts

related to the Act on Regions, Act on Municipalities, the Act on

District Offices, and the Act on the Capitol City of Prague.

Since, however, the petitioners are aware of the fact that, at the

moment it enters into effect, each amendment to a statute becomes a part

of the amended statute and, thus, ceases to exist legally, and since

the Constitutional Court practice is rather divided on this issue (for

example, resolution Pl. US 10/94, Collection of Judgments and Rulings of

the Constitutional Court, vol. 3, p. 234, and judgment Pl. US 33/97,

Collection of Judgments and Rulings of the Constitutional Court, vol. 9,

p. 399 and following, No. 30/1998 Coll.), then in consideration of

procedural certainty (in order to avert a decision under § 67 para. 2 of

the Act on the Constitutional Court, that is, termination of the

proceeding), they also proposed an "alternative petit", namely the

annulment of the following provisions:

2) Provision of § 2, § 4

para. 4, § 4 para. 5, the part of § 4 para. 6 reading „or the Labor

Code“, § 4a, § 5, § 6 para. 1 and para. 2, § 7, § 8 para. 1, § 8 para.

4, § 10, § 11 para. 1, § 11 para. 2, § 11 para. 3, the part of § 11

para. 6 reading „at his own expense and risk on one account of the

employee at a bank, a branch of a foreign bank or at a savings bank or

credit union, at the latest by the regular date for the payment of

wages, unless some other date is agreed in writing with the employee“, §

11 para. 7, § 12, § 13 para. 3, the final sentence of § 14 para. 1, §

14 para. 2, the part of § 15 reading „20 % of the average hourly wage

rate for standby at the workplace or 10 % of the average hourly wage

rate for standby away from the workplace“, § 16, § 17 para. 7, § 17

para. 9, the first sentence of § 18 para. 1, § 18 para. 2, § 19, and §

22 of Act No. 1/1992 Coll., concerning wages, remuneration for standby

and concerning the average earnings.  Provision of § 1, the part of § 2

reading „employee“, § 3 para. 3 and 4, § 3 para. 5, § 3 para. 6, § 4,

the part of § 5 para. 1 reading „in the organizational unit of the state

which is an administrative office“, the part of § 5 para. 1 reading

„the Office of the Public Protector of Rights, the Office for the

Protection of Personal Data“, § 9, in the part of  § 10 para. 2 „in the

amount of 150 hours in a calendar year“, § 11 para. 3, § 14, § 15 para. 1

let. b), § 16, in the part of  § 17 para. 5 „at his own expense and

risk on one account of the employee at a bank, a branch of a foreign

bank or at a savings bank or credit union, at the latest by the regular

date for the payment of wages, unless some other date is agreed in

writing with the employee“, § 17 para. 6 and 7, § 18, § 19 para. 1 and

2, the first sentence of § 20, § 20a, § 21, the second sentence of §

21a, § 22, § 22a, § 23 let. i), § 23 para. 2, § 25 and the Annex to Act

No. 143/1992 Coll., on Pay and Compensation for Work Standby in

Budgetary and certain additional Organizations and Organs, as amended by

subsequent enactments.

3)  Part III of Act No. 217/2000 Coll.,

which amends Act No. 10/1993 Coll., on the State Budget of the Czech

Republic for the Year 1993, on amendments and supplements of certain

Acts of the Czech National Council and certain other provisions, as

amended.
 


II.
 

The

parties to the proceeding have informed the Constitutional Court in

writing that they assent to dispensing with an oral hearing.  The

Constitutional Court decided that no further clarification of the matter

cannot be expected from such a hearing and therefore dispensed with it

(§ 44 para. 2 of Act No. 182/1993 Coll., on the Constitutional Court).
 


III.
 

In

the sense of 68 para. 2 of Act No. 182/1993 Coll., the Constitutional

Court concerned itself, first of all, with the manner in which the

contested Act, No. 217/2000 Coll., was adopted and issued. . . .
 


IV.
 

The

Constitutional Court has found that the submitted petition meets all

statutory procedural requirements and prerequisites and that there is,

therefore, no impediment to its consideration and decision on the

merits.  Therefore, the Constitutional Court requested, in the sense of §

69 of the Act on the Constitutional Court, that the parties to the

proceeding - the Chamber of Deputies and the Senate of the Parliament of

the Czech Republic - give their views on the petition.
. . . .
 


V.
 

First

of all, the Constitutional Court considers it necessary in the matter

at issue to define the manner and extent of constitutional law review. 

In that it proceeds from the following considerations:

1.  First

and foremost, the Constitutional Court declares that the petitioners

did not explicitly call into doubt the substantive merits of the

contested act, rather only the manner of its adoption, and since the

Constitutional Court is reputedly not empowered to give authoritative

interpretations of the Constitution, the question at issue must at least

be submitted in the context of a norm control proceeding.  In these

circumstances, therefore, in this concrete and quite specific case the

Constitutional Court did not find any reason to deal with the

substantive essence of the cited act and turned its attention

exclusively to the constitutionality of its adoption, albeit it applies

on a general level that the Court is bound solely by the “petit” of a

norm control petition, and not its reasoning.  After all, in a norm

control proceeding pursuant to Art. 87 para. 1 let. a) of the

Constitution, the consideration of the constitutionality of a contested

legal enactment pursuant to § 68 para. 2 of the Act on the

Constitutional Court is divided into the adjudication of an statute’s

substantive conformity with constitutional acts and international

treaties under Art. 10 of the Constitution and the ascertainment of

whether the contested statute was adopted and issued within the confines

of the constitutionally designated competencies and in the

constitutionally prescribed manner.

2.  The submitted petition

(“petit”) is formulated by means of alternatives, where – for reasons of

procedural certainty – in the first alternative, the petitioners

contested Act No. 217/2000 Coll. in its entirety, and also individual

parts of the above-cited acts, amended by Act No. 217/2000 Coll.  On

this issue, the Constitutional Court refers to the legal proposition it

has already declared, to the effect that the provisions of a statute

which amend some other statutes become a part of the amended statutes

(ruling of 15 August 2000, file no. Pl. US 25/2000, The Collection of

Judgments and Rulings of the Constitutional Court, Vol. 19, p. 271 and

following; similarly, see judgment of 13 March 2001, file no. Pl. US

51/2000, id., Vol. 21, p. 369, promulgated under No. 128/2001 Coll.) and

no longer constitute an separate part of the Czech Republic legal

order.  The Constitutional Court was therefore obliged to reject on the

merits as not well-founded that part of the petit in which the

petitioners contested the amending Act No. 217/2000 Coll. in its

entirety, since the provisions of this statute which amend other

statutes have already ceased to be a part of Act No. 217/2000 Coll.; it

is only the provisions of Art. V (empowering the Prime Minister to

proclaim the full and current wording Act No. 1/1992 Coll. and Act No.

143/1992 Coll.) and Art. VI (governing the Act’s entry into effect),

which, as the content of the petition makes clear, are not proposed for

annulment and which, in view of their nature, could not be annulled in

any case.

Thus, the Constitutional Court further concerned

itself exclusively with that part of the petition which is directed

against the individual provisions which amend the above-cited statutes.

3. In view of the submitted petition, the Constitutional Court was

obliged to adjudicate a further issue:  whether it is justified to

concern itself with all the amended provisions of Act No. 1/1992 Coll.,

Act. No. 143/1992 Coll., Act No. 10/1993 Coll. (Note bene: although Act

No. 217/2000 Coll. also amended Act No. 132/2000 Coll., on the Amendment

to and Repeal of certain Acts related to the Act on Regions, Act on

Municipalities, the Act on District Offices, and the Act on the Capitol

City of Prague, nonetheless, in this case, the amendment consisted

merely in a derogation of Art. II, Part Two, so that the petitioners did

not even explicitly propose the annulment of a certain part of that

Act), or whether it would be appropriate to devote attention solely to

the amendment to Act No. 10/1993 Coll.  In this connection, we must take

as our point of departure Art. 42 para. 2 of the Constitution,

according to which it is solely the Chamber of Deputies which shall, at a

public meeting,  hold debate upon and adopt resolutions concerning

bills on the State budget and the final State accounting.  In the

present matter that means above all that, if the Senate held debate upon

and approved the bill for Act No. 217/2000 Coll., and if a part thereof

was the amendment to four statutes, of which three (Act No. 1/1992

Coll., Act. No. 143/1992 Coll., Act No.  132/2000 Coll.) cannot be

considered as acts which in the formal, or at least in the substantive,

sense directly concern an act on the State budget, then with respect to

these three amendments to the cited acts it cannot justifiably be

asserted that the Senate was not authorized to share in deciding on

them. After all, such a position would be in clear conflict with the

wording of Art. 42 para. 2 of the Constitution. The Constitutional Court

thus reached the conclusion that, in the matter under consideration, it

is justified to limit the scope of its enquiry to the proposal to annul

the amended part of Act. No. 10/1993 Coll., and not the proposal to

annul the amended provisions of Acts No. 1/1992 Coll. and No. 143/1992

Coll. While the petitioners were undoubtedly correct in their view that,

from a formal perspective, Act No. 217/2000 Coll. represents a single

statute (albeit one amending several other statutes) and which was

decided upon by the Senate by a single vote, nonetheless, it is the

Constitutional Court’s task in the given case to adjudge the issue

whether the Senate was, or was not, empowered to hold debate upon and

approve also the amendments to acts other than an act on the State

budget, although accomplished by a single vote.  A positive response

must be given to the question as framed in this manner; after all, in

the opposite case, the situation could come about, which the petitioners

fear as well, where by attaching the amendment to an act on the State

budget to an amendment to (or even the adoption of) further acts, the

Senate would be excluded from the legislative process with respect to

these further acts.  Such an interpretation clearly would not be in

keeping with the sense either of Art. 42 para. 2 of the Constitution or

of the essence of bicameralism, as enshrined in the Czech Republic’s

constitutional order, and therefore it is necessary to consider it as an

interpretation in conflict with the Constitution.

The

Constitutional Court was also obliged to reject on the merits as

unfounded the second part of the alternative petit, as the Senate was

empowered to hold debate upon and approve the amendments to acts

contained therein.

The Constitutional Court therefore further

concerned itself solely with that part of the petition directed against

the amendment to Act No. 10/1993 Coll. which was effected by Act No.

217/2000 Coll.
 


VI.
 

The

Constitutional Court found that, in deciding this matter, it must,

first and foremost, concern itself with the interpretation of Article 42

para. 2 of the Constitution in relation to the case at hand.  At the

same time, it is evident that any meaningful interpretation of the given

article would be possible only in the context of the overall

constitutional framework of the legislative process as respects the

competence of the Senate of the Czech Parliament.

1.  According

to the Constitution, statutes can – from the given perspective under

review – be categorized into particular types:  1) those to which both

the Chamber of Deputies and the Senate must give their assent, whether

by a qualified or by a simple majority vote.  Constitutional acts fall

into this category, as do the statutes enumerated in Article 40 of the

Constitution, electoral acts, acts concerning the principles of dealings

and relations of both chambers, both between themselves and externally,

or acts enacting the standing orders for the Senate.  (2.) The second

category of statutes is made up of the “ordinary statutes”, that is,

statutes for which the Senate’s refusal to assent is “bridged”

(overridden) by a further vote by the Chamber of Deputies.  A simple

majority of Deputies is sufficient to adopt a bill as modified by the

proposed amendment approved by the Senate; an absolute majority of all

Deputies is needed in order to adopt the original version of the bill

(i.e., the version of the bill which was submitted to the Senate) (Art.

47 of the Constitution).  In this case, then, the Senate possesses in

relation to the Chamber of Deputies the right of suspensive veto.  (3.)

The third case is that of bills on the State budget (note bene: the same

applies for a proposed final State accounting, which does not, however,

take the form of a statute) on which only the Chamber of Deputies may

hold debate and adopt resolutions (Art. 42 para. 2 of the Constitution).

2.  The Constitutional Court is not competent to judge whether this

constitutional arrangement is sound.  According to Art. 88 para. 2 of

the Constitution, the Constitutional Court Justices are bound by

constitutional acts, so that the Constitutional Court is not authorized

to scrutinize (much less annul) provisions contained in constitutional

acts; its task is solely to interpret them in specified cases.  Even

though the Constitutional Court is, in the given case, compelled to

assert that the conception by which the Senate is not authorized to

share in the decision on State budget bills is quite uncommon when

viewed in comparison to other democratic European states with a

bicameral system, the Court has no option but to respect this

arrangement and, in conformity with it, also to assess the existing

practice.  (From the comparative perspective, if the constitutions of

all European Union states are compared, then the upper chamber of

parliament is excluded from co-decision on State budget bills only in

the case of Belgium and Austria, whereas in France, Ireland, Italy, the

Federal Republic of Germany, the Netherlands, and Spain, the upper

chamber shares in the adoption of acts of this type.)

3.  As the

State budget is the most important instrument of State policy and also a

reflection of the responsibility the government bears for State

administration, the existing constitutional arrangement in the Czech

Republic for the adoption of acts on the State budget proceeds on the

basis that it is exclusively the government which may submit bills

therefor. Since the Czech Republic’s constitutional system is founded on

the conception, among others, that supervision of the government is

solely within the domain of the Chamber of Deputies, and not the Senate,

the Constituent Chamber selected a solution by which the Chamber of

Deputies possesses exclusive authority to approve an act on the State

budget (see also above).  Thus, according to the existing constitutional

arrangement, an act on the State budget is adopted the moment it is

approved by the Chamber of Deputies, and the Senate is not competent to

intervene into the matter in any manner whatsoever.

4.  In the

given case, however, what occurred is that several statutes were

simultaneously amended by a single statute, and among these amended

statutes was an act on the State budget.  It should be added that the

practice by which several diverse statutes are simultaneously amended by

the adoption of a single statute is a relatively common one in

legislative practice.  The Constitutional Court states in relation

thereto that, on a general level, this practice is in principle

constitutionally conforming, but only in the case that the amended

statutes bear mutual substantive connection to each other.  On the other

hand, the situation where several statutes bearing no direct

substantive connection to each other are amended by a single act, must

be designated as an undesirable phenomena, and one not corresponding to

the purpose and principles of the legislative process.  Such a situation

comes about, for example, due to the speeding up of the legislative

process, in part by means of submitted proposed amendments.  (As the

most blatant such example can clearly be given the adoption of Act No.

170/2001 Coll., on the State Bond Program for the Settlement of

Obligations arising from Treaties among the Governments the Czech

Republic, Slovak Republic, and the Federal Republic of Germany, on

amendments to Act No. 407/2000 Coll., on the State Bond Program for the

Partial Defrayment of the Damage suffered by Agricultural Subjects in

the Drought of 2000, and on amendments to Act No. 424/1991 Coll., on

Association in Political Parties and Political Movements, as amended,

into which the amendments to Act No. 424/1991 Coll. were quite

unsystematically included.)  Such a manner of proceeding, thus, does not

correspond to the basic principles of a law-based State, among which

belong the principle that laws should be foreseeable and comprehensible,

and the principle that they should be internally consistent.  If then

the substantive content regulated in several statutes is affected by a

single statute (in the formal sense), and these affected statutes do

not, either by content or systemic considerations, have any connection

with each other, then a quite murky legal situation immediately emerges

which does not respect the principles of foreseeability,

comprehensibility or internal consistency.

5.  Since in relation

to acts on the State budget, the Constitution does not empower the

Senate to intervene into the legislative process and such an act, on the

proposal of the government, can be debated and adopted only by the

Chamber of Deputies, it is evident that the sole possible

constitutionally conforming means of proceeding is that in which such an

act is debated and adopted entirely separately.  For this reason also §

101 para. 3 of the Standing Orders of the Chamber of Deputies (Act No.

90/1995 Coll., on the Standing Orders of the Chamber of Deputies)

explicitly provides that “Provisions amending, supplementing, or

repealing provisions of other acts may not form a part of an act on the

State budget.”  (Note bene: Of course, Act No. 10/1993 Coll. was adopted

before the cited act, No. 90/1995 Coll. came into effect).  In the

Constitutional Court’s view, it can be deduced from the wording of this

statute that neither can provisions amending, supplementing, or

repealing provisions of an act on the State budget form a part of an

“ordinary” statute.  The situation where, together with an act on the

State budget, other acts are also proposed, or when an act on the State

budget as well as further acts are amended by means of a single act, is

thus a situation which, as was already stated, is not in conformity

either with the Constitution or with the law (see cited Act No. 90/1995

Coll.).

6.  For the sake of thoroughness, the Constitutional

Court states that an act, as called for in Art. 40 of the Constitution,

concerning the principles of dealings and relations of both chambers,

both between themselves and externally, make provision for the necessity

of independently debating and deciding upon acts, for which the

Constitution lays down a separate legislative procedure (including

constitutional acts, see point V.1).
 


VII.
 

1. 

In the case under review, the Constitutional Court declares first and

foremost that, although Act No. 10/1993 Coll. was amended by Act No.

217/2000 Coll., nonetheless these amendments consisted exclusively in

the derogation of § 6 of Art. V para. 1, 3 and 4 of this Act and in the

repeal of the designation of paragraph 2 and paragraph 1.  In addition,

Act No. 10/1993 Coll., is divided into two relatively separate parts,

the first of which contains the heading (and in substance also

regulates) “The State Budget of the Czech Republic for the Year 1993”,

whereas the second part, in which the § 6 under consideration is found,

begins with the heading “The Regulation of Pay and other Perquisites of

Constitutional Officials and other Employees of Central Bodies of State

Administration and other Bodies”.  Further parts of Act No. 10/1993

Coll. concern other separate statutes which it amends.

2.  In the

first place, the Constitutional Court found that not even the

petitioners themselves indicated any provisions in Act No. 10/1993 Coll.

which they would wish annulled due to the unconstitutional procedure

used to adopt them or on substantive grounds, even if - as follows from

what was stated above - they resist the amendments introduced into this

act.  In fact, as a “technical matter” it would not even be possible in

this specific case to annul certain parts of Act No. 10/1993 Coll.,

amended by Act No. 217/2000 Coll., since no provisions of this act were

either supplemented or modified by Act No. 217/2000 Coll., rather they

were merely repealed.  Since, however, the Constitutional Court

evaluates each petition in view of its content and not merely its form,

it was obliged in this specific case to resolve the issue of what would

be the consequences of granting the petition to annul Act No. 217/2000

Coll., to the extent it amended Act No. 10/1993 Coll.  The

Constitutional Court takes the legal view that by annulling a statutory

provision contested as unconstitutional, the previous provision, which

was either repealed or modified by the unconstitutional provisions, is

not revived.  Thus, the Constitutional Court acts, in norm control

proceedings, in its capacity as a “negative legislature”, authorized in

the case that it grants the petition solely to derogate the contested

legal enactment.  For this reason, the annulment of a contested

enactment can also result exclusively in its "exclusion" from the Czech

Republic's legal order, but never in the actual creation of new

regulation in the form of the "revival" of an already repealed

enactment.  It is the Constitutional Court’s conviction that the

opposite view could give rise to a significant degree of legal

uncertainty and to the Constitutional Court exceeding the bounds of its

defined competencies.  It can therefore be concluded that the “revival”

of an earlier repealed or amended legal enactment in consequence of a

Constitutional Court judgment in the considered sense, could come about

only in the case that constitutional provisions were directly to make it

possible (see, for example, Art. 40 para. 6 of the Austrian

Constitution).

3.  The Constitutional Court therefore declares

that, should (in the given situation) certain provisions of Act No.

10/1993 Coll. were approved by the Senate in a situation when the Senate

was not authorized to debate and decide upon the bill - logically it

(the Constitutional Court) should decide upon the proposition of law

that this amendment is not capable of resulting in any legal

consequences.  In other words, since pursuant to Art. 42 para. 2 of the

Constitution, the Senate is not authorized to debate and approve acts on

the State budget (argument a maiori ad minus nor to its amendment), any

sort of dealing with the act must be understood as the intervention of a

subject which is not authorized to do so at all.  Since it is

exclusively the Chamber of Deputies which can hold debate upon and

approve an act on the State budget, such an act is adopted as soon as it

is approved by the Chamber of Deputies, that is, entirely independent

of any possible further debate and approval in the Senate.  If together

with an act on the State budget (or the amendment thereof) another

("ordinary") statute (statutes), or the amendments thereto, be debated

and approved - which would, however, be in conflict with the Act on the

Standing Orders of the Chamber of Deputies - such a situation must be

interpreted such that the Senate may hold debate upon and approve solely

"ordinary" statutes and amendments thereto, and its decision has

therefore legal significance only in the case of those statutes, not

however in the case of acts on the State budget.

4. 

Nonetheless, in the matter under consideration, it is a relevant fact

that the amendments to Act No. 10/1993 Coll., concern only those parts

which, by substance and systematic arrangement, bear no direct relation

to the issue of the State budget. If then Art. 42 para. 2 of the

Constitution speaks of “an act on the State budget”, this term must be

conceived not in a formal, rather in a substantive, sense.  In other

words, not every statute designated as a budgetary act (or not every

part thereof) need directly concern the issue of the State budget, and

conversely it is possible to imagine the situation where the substance

of an act on the State budget would be regulated by a statute which is

not designated as such.  In support of this view, a comparison can be

made with the constitutions of certain other countries where the term,

“act on State budget”, is also conceived in the substantive sense, as

they clearly define what must be found in such an act.  Art. 51 para. 3

of the Austrian Constitution can serve as an example, as it provides

that “A Federal financial act must contain proposed revenues and

expenditures of the Federation (federal budget), allocated items for the

coming budget year, as well as other essential requirements for the

State budget in the relevant budget year.”  At the same time, Art. 134

para. 2 of the Spanish Constitution should be referred to, as it

provides that “the General Budgets of the State shall be of an annual

character and shall include the totality of expenditures and revenues of

the public sector of the State, containing the amount of the fiscal

benefits with affect the taxes of the State.”

5.  In summary it

can be said that when judging whether, in a specific case, a bill can be

considered an “act on the State budget” under Art. 42 para. 2 of the

Constitution, it does not suffice to limit oneself to consideration of

the formal designation of such a bill (statute).  Such an approach

would, in consequence, lead to the situation where the Senate could, in

the case of certain important statutes, be excluded from the legislative

process simply by designating that bill an “act on the State budget”,

even if in fact that statute were to regulate substance having no direct

connection with the State budget.  On the other hand, the

Constitutional Court considers it necessary to emphasize that the

substantive conception of the term, “act on State budget”, should not in

practice lead to too broad an interpretation, since it is evident that

practically every bill is related, either directly or indirectly, to the

State budget, alone due to the fact that the carrying out of that bill

generally has impact on the State budget (either in terms of revenues or

expenditures).  The term, “act on the State budget”, must be

interpreted in conformity with the normative regulation of the State’s

budget rules contained in Czech National Council Act No. 576/1990 Coll.,

on the Rules for Managing Budgetary Funds of the Czech Republic and

Municipalities in the Czech Republic (the Republic’s Budgetary Rules),

which were in force at the time when the cited Act No. 10/1993 Coll. and

Act No. 217/2000 were issued.  Pursuant to § 3 of Act No. 576/1990

Coll. („The Content of the Republic’s State Budget“) „The Republic’s

State budget stall include expected revenues, as well as expenditures in

ensuring the tasks and covering the needs of the Czech Republic in the

given budgetary year.  It shall also contain financial relations to the

budgets of municipalities, of district offices and to the budgets of the

Republic’s State funds.“  In other words, the term, „act on State

budget“, in its substantive sense, must be interpreted in such a manner

that it concerns such a statute as directly regulates planned revenues

and expenditures, the budget items of the public sector of the Czech

Republic connected with carrying out State functions always for the

following time period (that is, the budgetary year).  It is only a

statute conceived in this way that must be classified under Art. 42

para. 2 of the Constitution, therefore it is only such a bill which the

Senate is not empowered to debate or adopt.

6.  The

Constitutional Court considers it desirable – beyond the confines of the

case under consideration – to emphasize that the substantive conception

of the term, act on the State budget, in Art. 42 of the Constitution

has further dimensions.  By creating a special constitutional category

of acts on the State budget, the Constituent Chamber emphasized the

special place and significance these statutes have for the Czech legal

order, similarly as it did in the case of the electoral act or the

“relations” act under Art. 40 of the Constitution.  By removing bills on

the State budget from the regime for the adoption of “ordinary” bills,

it expressed its intention that the legislature consider the substance

of the State budget comprehensively and separately from matters which

are not directly connected with the State budget.  In other words, the

subject to be regulated contained in bills on the State budget can be

exclusively rules substantively related to problems of the State budget,

not to other rules.  From the perspective of the Constitution, it is

impermissible to tack on to a bill on the State budget a provisions

which in substance bears no direct connection to the substance of the

State budget.  It is possible to document such an approach to the

substantive conception of an act on the State budget by reference, for

example, to Art. 22 para. 1 the Constitution of the Irish Republic

provides:  “A Money Bill means a Bill which contains only provisions

dealing with all or any of the following matters, namely, the

imposition, repeal, emission, alteration or regulation of taxation; the

imposition for the payment of debt or other financial purposes of

charges on public moneys or the variation or repeal of any such charges;

supply; the appropriation, receipt, custody, issue or audit of accounts

of public money; the raising or guarantee of any loan or the repayment

thereof; matters subordinate and incidental to these matters or any of

them.”

At this juncture, it is necessary to declare that the

fundamental conclusion reached by the Constitutional Court cannot be

applied to the case under consideration, as the procedure used in

adopting Act No. 10/1993 Coll. was concluded before this Constitution

became valid, so that it was conducted according to the then valid

Czechoslovak legal rules.

7.  The Constitutional Court has

therefore reached the conclusion that the contested intervention into

the Act on the State Budget No. 10/1993 Coll. (formally designated in

that way), carried out by the amending Act No. 217/2000 Coll., clearly

cannot be considered as an intervention into an act on the State budget

in the substantive sense.  As results from the text referred to above -

and as the parties to the proceeding correctly stated in their pleadings

on the petition - the substance of the special act, No. 10/1993 Coll.,

is divided into two relatively separate parts, and the issue of the

Czech Republic State budget for 1993 is directly regulated only in the

first part; part two (§ 6 Art. V), which was derogated in part by the

contested Act No. 217/2000 Coll., concerns a differing issue (rules on

the pay and perquisites of certain leading employees and other civil

servants).  Thus, the Senate did not err in this case by debating in its

entirety the bill for Act No. 217/2000 Coll. and by approving it - in a

version including proposed amendments. The contested act amended acts

No. 1/1992 Coll., No. 143/1992 Coll., and No. 132/2000 Coll., which

cannot be considered as acts on the State budget, neither formally nor

in substance, and the amendments to Act No. 10/1993 Coll. concerned only

that separate part not governing the substance of the State budget.
 

For

all of the given reasons, the Constitutional Court rejected on the

merits and in it entirety, the group of Senators petition as unfounded.

Notice:  A decision of the Constitutional Court may not be appealed.

Brno, 12 February 2002