2002/03/06 - Pl. ÚS 11/01: Railways Act

06 March 2002

HEADNOTES

The

Constitutional Court respects the specification of the socially binding

nature of property under Art. 11 para. 3 of the Charter and Art. 1

para. 2 of the Protocol to the Convention for the Protection of Human

Rights and Fundamental Freedoms, under which the right to protection of

property does not interfere with the right of states to pass laws which

they consider necessary to regulate the use of property in accordance

with the public interest. Such legal regulations are also valid in the

Czech Republic, although restrictions on use of property in accordance

with the public interest in the Civil Code and other statues do not have

– nor, in view of the variety of circumstances, can they have – the

character of an inventory of individually specified obligations, but of

obligations which are formulated generally, but interpreted

commensurately.

In view of the sweeping nature of the provisions

on removing a source of danger at the expense of its owner or operator,

the Czech Railways Act does not yet allow regulation which would be

commensurate with the variety of circumstances related to expenses of

removing a source of danger to railways. As a result of this, the

Constitutional Court found this provision to be in conflict with Art. 1,

Art. 4 para. 1 a para. 4 of the Charter of Fundamental Rights and

Freedoms. Because other provisions of the second, third and fourth

sentences in § 10 of the Act on Railways would, after annulment of the

words “at his expense” in the third sentence, lose the necessary clarity

and consistency, the Constitutional Court annulled the contested

sentences in full, and thus made possible a fully balanced new

regulation.
 
Making the judgment go into effect as of 31 December

2002 is intended to make possible a new legislative regulation which

would, in particular, also commensurately differentiate the obligations

for compensation of expenses related to removing a source of danger to

the railways.




CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court decided in the matter of a petition

from the Prague High Court to annul the second, third and fourth

sentences of § 10 of Act No. 266/1994 Coll., on Railways, as follows:
 

The

petition is granted, and the second, third and fourth sentences of § 10

of Act No. 266/1994 Coll., on Railways, are annulled as of 31 December

2002.

 


REASONING


I.
 

On

2 April 2001 a petition from a Panel of the Prague High Court (Panel 6

A) of 28 March 2001 to annul the second, third and fourth sentences of §

10 of Act No. 266/1994 Coll., on Railways, (the “Railways Act”) was

submitted to the Constitutional Court. Under Art. 95 para. 2 of the

Constitution of the Czech Republic (the “Constitution”) a general court

shall do so, if it concludes that a statute which is to be used in

adjudicating a matter is in conflict with a constitutional act. The

petition, signed by the panel chairman, JUDr. B. H., states that the

High Court is conducting proceedings under file no. 6 A 44/98 on an

administrative complaint by the plaintiff, JUDr. V. S., against the

defendant, the Ministry of Transport and Communication of the CR, in

which the plaintiff seeks annulment of specified decisions by the

defendant and the Prague Railways Office as the administrative body of

the first level. The subject of the proceedings before the Prague High

Court was the fact that the Prague Railways Office ordered the plaintiff

to remove a source of danger to the railways from his forest property

by cutting down four trees. It did so after a passenger train collided

with one of the trees which had fallen from the plaintiff’s property

onto the tracks. The Railways Office stated that there is a danger of

the accident recurring, which was confirmed by local investigation and

an expert evaluation, which determined that the tree fell under normal

weather conditions. The owner of the land filed objections against this

decision, on which the first-level administrative body ruled on 4

November 1997. By decision of 4 November 1997, file no. 1112-97-DÚ/S/Su,

the Railways Office ordered the Czech Railways to remove the source of

danger to the railways at the expense of the plaintiff, who did not

comply with its previous call to cut down 4 trees on his property. On 12

January 1998, the Ministry of Transport and Communication, under file

no. 16 178/98-0210 denied the plaintiff’s appeal against this decision,

and confirmed the contested decision. In handling the administrative

complaint in the matter, the Prague High Court concluded that § 10 of

the Railways Act, under which the administrative bodies proceeded, is in

conflict with the constitutional order of the Czech Republic, insofar

as it authorizes the administrative railways office to order the owner

or operator of a source of danger to the railways to remove it, or

authorizes it to decide on such removal at the expense of the owner or

operator. Therefore, in accordance with § 109 para. 1 let. c) of the

Civil Procedure Code (the “CPC”), it submitted the matter to the

Constitutional Court with a petition to annul the second, third and

fourth sentences of the provision in question.

In its petition,

the Prague High Court makes the following arguments: If the owner or

operator of a source of danger to the railways has an obligation to

remove the source of danger when called upon by the railways office, the

law must also impose on him a corresponding obligation to care for his

property, i.e. land or a building, so that the risk of a source of

danger arising will be as low as possible, which the Railways Act does

not do. The petitioner finds in this fact conflict with Art. 2 para. 3 a

Art. 4 para. 1 of the Charter of Fundamental Rights and Freedoms (the

“Charter”). Neither the Railways Act nor any other act governing the

obligations of owners of real property states that the owner of real

property is required to take measures on his real estate serving to

protect the land, building or facilities of another, or to tolerate such

measures and bear their expense. This is what the railways office

imposes on the owner when it calls upon him to fulfill this non-existent

obligation, and, if the call is not met, decides to take measures at

the owner’s expense. However, § 10 of the Railways Act does not give the

administrative body room for discretion: the words “shall order” and

“shall decide” indicate the office’s obligation, upon finding a source

of danger to the railways, to proceed only in the abovementioned manner.

This leads to a restriction of the property rights of the owner of the

“source of danger” which has no statutory basis and which is not carried

out for compensation, if the owner himself bears the expenses.

The

obligation imposed under the contested provision is imposed in the

public interest and does not serve to protect private rights. Therefore,

removal of a source of danger to the railways should not be done at the

expense of the owner of the source of danger. The Civil Code regulates

the rights and obligations of owners of neighboring real estate in §

127. However, this obligation is of a private law nature, and does not

establish the authority of an administrative office to handle a

situation by issuing an administrative ruling imposing obligations on a

real estate owner.
 


II.
 

In

accordance with § 42 para. 3, 4 and § 69 of Act No. 182/1993 Coll., on

the Constitutional Court, as amended by later regulations (the

“Constitutional Court Act”) the Constitutional Court sent the petition

in question to the Chamber of Deputies and the Senate of the Parliament

of the Czech Republic for their comments and requested a written

position statement from the Ministry of Transport and Communication of

the CR.
 


III.


The

Constitutional Court first, in accordance with § 68 para. 2 of the

Constitutional Court Act, reviewed whether the act whose provisions the

petitioner claims to be unconstitutional was passed and issued within

the bounds of constitutionally determined jurisdiction and in a

constitutionally prescribed manner. It is evident from the statement by

the Chamber of Deputies of the Parliament of the Czech Republic as well

as from the received parliamentary documents and data about voting that

the Railways Act was passed and issued in a constitutionally prescribed

manner and within the bounds of constitutionally prescribed

jurisdiction, and that quotas provided in Art. 39 para. 1 and 2 of the

Constitution were observed.

After reviewing the substance of the

petition and considering all circumstances, the Constitutional Court

decided to annul the contested provisions, although for reasons not

completely identical with the petitioner’s opinion.

The provision

of § 10 of the Railways Act, whose second, third and fourth sentence

the Prague High Court proposes to be annulled, governs a “source of

danger to the railways” which it defines as a source of endangering,

damaging or interfering with the operation of railways, railway

transportation, railway telecommunication facilities and lines, which is

determined by the railways administrative office (first sentence). The

contested provisions (second, third and fourth sentences) read as

follows:

“Upon finding a source of danger, it shall order it to

be removed by the operator or owner of the source of danger. If the

operator or owner of the source of danger does not comply, the railways

administrative office will decide on the removal of the source of danger

at his expense. An appeal against this decision does not have

suspensory effect”.

The content of these provisions is thus the

right and obligation of the railways administrative office to find and

order the removal of a source of danger, and in the event of

non-compliance to decide on its removal at the expense of the operator

or owner. The fourth sentence only removes suspensory effect from this

decision. The petitioner’s constitutional law arguments are based

primarily on the opinion that neither the Railways Act nor any other act

governing the obligations of real estate owners imposes on a real

estate owner an obligation to take preventive measures preventing the

creation of possible danger to another’s land, building or facilities,

or an obligation to tolerate measures for their protection and bear the

expenses of their removal.

One can not agree with the

petitioner’s opinion that neither the Railways Act nor any other act

imposes on a real estate owner an obligation to remove a source of

danger to the railways. The railway protected zone (60, in some cases

100 meters from the axis of the outside rail in both directions) is

subject to a quite specific public law regime, in which the rights of

owners of adjacent real estate are, in the public interest, incomparably

more restricted than with the Forests Act (§ 9 of the Railways Act –

comparable, for example, to § 23 para. 3 and 4 of the German Railways

Act of 27 December 1993, as amended by later regulations). Under § 9

para. 1 of the Railways Act, buildings can be established and operated

in the railway protected zone, and other enumerated activities

conducted, only with the consent of the railways administrative office

and under conditions set by it; para. 2 of this provision permits a

railway operator and transporter to enter the land of another for

purposes of removing other obstacles restricting the operation of

railway transportation. The provision of § 10 of the Railways Act then

provides the obligation of an operator or owner of a source of danger to

remove that source of danger.

Likewise, the petitioner’s

opinion that other legal regulations do not establish corresponding

obligations and restrictions on owners can not be agreed with. In view

of the variety of possible dangers to the operation of the railway, the

general provisions of the Civil Code are fundamentally significant.

Therefore, the Constitutional Court points to these legal regulations:

a)  

 Civil Code § 127, under which the owner of a thing must refrain from

anything whereby he would seriously endager the exercise of the rights

of another, for example, adaptations to land, vegetation on land, but

also, for example, light (which, in the given case, could substantially

lower the visibility of railway signaling equipment).

b)    Civil

Code § 415, which requires everyone to conduct himself so that damage

will not occur; the Civil Code commentary (Jehlička, Švestka and

collective of authors, Civil Code, Commentary, 3rd Edition 1996,

C.H.Beck) states on pp. 251-252 that “everyone is required to conduct

himself so that damage does not occur”, and therefore also “not

conducting one’s self this way is failure to fulfill one’s legal

obligations and is illegal conduct. Thus, everyone is liable for the

damage which arises as a result.” This concept corresponds to European

law. In German law, for example, persons may violate their obligations

both by acting and by neglecting to act – for example, by not

maintaining their property in proper condition. The owner of land can

not rid himself of liability for, for example, trees on his land, by

claiming that he did not plant them and that they grew by themselves.

c)  

 Civil Code § 417 directly provides the obligation of everyone who is

in danger of damage “to intervene in a manner commensurate with the

circumstances of the danger” so that the damage will be averted, with

awareness of the fact that the existence of a source of danger does not

arise only upon an order to remove it. The order merely finds that a

source of danger already exists and that it has not yet been removed. A

complete list of sources of danger a priori is not possible; therefore

it is up to the railways administrative body, which has the necessary

expertise at its disposal,  to point out an obligation of which the

owner himself is unaware. Under § 419 of the Civil Code, the one who

averted the impending damage has a right to compensation for expenses

incurred for that purpose.

The approach of the Railways Act to

the protection of the public interest in safe transportation is not an

isolated case in our legal order.
 

The

regulation under Act No. 13/1997 Coll., on Surface Thoroughfares, as

amended by Act No. 102/2000 Coll., is thematically closest to the

Railways Act. The amended text of this Act differentiates liability for

endangering road transport and limits the removal of sources of danger

at the expense of the owner or operator to cases where this danger

arises from the actions of the owners of land neighboring on the

thoroughfare themselves.

Likewise Act No. 50/1976 Coll., on

Zoning and the Building Code (the Building Code), as amended by later

regulations, entrusts to the building office the right to order, in the

public interest, the owner of a construction to perform necessary

adaptations, and similarly the owner of a land parcel. The owner is

required to perform the ordered adaptations at his own expense (§ 84

para. 1, similarly § 84 para. 4). Under § 94 the building office shall,

in the public interest, under the conditions of para. 1 order the owner

of a building to perform urgent works to secure it, or under para. 2

shall ensure that they are immediately performed at the owner’s expense.



Other laws, such as the Forests Act, Energy Act, Mining Act,

Water Act, Environment Act and Fire Protection Act also contain certain

limitations on the exercise of property rights. It is natural that a

democratic state in the post-communist phase of its development takes

increased care of the protection of freedom of property, which the old

regime suppressed or substantially curtailed. However, this does not

mean that any limitation whatsoever on the exercise of property is the

product or relic of the communist regime. The Czechoslovak Railways Act,

i.e. the Act on Railways no. 86/1937 Coll. of Laws and Orders, whose

text is reminiscent of Austrian and German legislation on these issues,

in § 102 and 103 regulates the forbidden zone and fire zone and provides

a number of limitations on the exercise of property rights in that area

in § 102 para. 1, 2 and 3, as well as in § 104 para. 1, 2 and 3, and in

§ 105 on the use of land parcels in the area of the railway. Under §

105 para. 1 “Land parcels in the area of the railway may not be used in a

manner that would result in land sliding, rocks falling, objects

falling on the tracks, flooding of the tracks or any other endangering

of the railway and its operation. The railways administration office may

expressly identify land parcels to which this applies”. Under paragraph

2 of the same section. “If land parcels in the area of the railway are

used in a manner which is forbidden in para. 1, the railways

administration office is authorized to order necessary measures so that

the track is not endangered;… The railways company may also be required

to take such measures on the account of the user of the land parcels”.

The

regulations in the current Czech Republic Railways Act are, however, to

a certain extent, comparable with the regulations in other European

states. Both the legislature, in the background report to the act, and

the ministry, in its statements, point to the Council directives on the

development of Community railways of 29 July 1991, as amended by

directives of the European Parliament and the Council no. 2001/12/ES,

which also concern the principles of ensuring safe operation of the

railways and railway transportation. In Germany, for example, under § 23

para. 3 and 4 of the federal Railways Act of 27 December 1993, as

amended by regulations in effect, a railway operator and transporter is

authorized, within the railway protected zone, to enter another’s land,

including for purposes of removing sources of danger to public

transportation. The railways act of Baden-Würtemberg of 8. June 1995

provides, in § 5 on protective measures, that the owners and holders of

land parcels neighboring the railway must tolerate measures necessary to

protect the railway from the effects of nature, such as snowdrifts,

falling rocks, caving in and floods. The person in question is

authorized to take the necessary measures himself, in agreement with the

appropriate office. Under para. 2 vegetation and fences, as well as

stacks, piles and other facilities which are not firmly joined to the

land, may not endanger the safety and smoothness of rail transportation.

Upon a written request from the appropriate office, they must be

removed at the expense of the person concerned. The Swiss railways act

of 20 December 1957, in§ 21 para. 1, also permits the railway company

itself, in urgent cases, to take measures on the lands of third parties

to avert danger. Under paragraph 2 the expenses for removing the source

of danger are borne by the owner or operator of the land, without being

entitled to a claim for compensation. However, an exception to this

principle exists: if the sources of danger are trees, the railway

company bears the expense of removing the danger, unless it proves the

fault of another person. Slovak regulation of these issues is virtually

identical with the Czech regulation.

The current text of § 10 of

the Railways Act affects in a comparable way precisely those cases in

which railway operation was endangered through the action or failure to

act of an owner or operator of the source danger and thereby violation

of an owner’s obligations under § 127 or § 415 – 420a of the Civil Code

and § 4a, as well as § 8 – 10 of the Railways Act. If an owner of real

estate adjacent to the railway failed to meet this obligation, under §

10 of the Railways Act it is up to the railways administrative office to

order the owner or operator to remove the source of danger, and – if he

does not do so – decide to remove the source of danger at his expense.

The law can not define all individual steps, acts, manners of behavior

and conduct of the owners of adjacent real estate which it considers

necessary, in view of the variety of particular situations; however, it

assumes that the real estate owner himself – aware of his obligation –

keeps track on his land of objects and events which could endanger the

operation of the railway and takes care to remove them. Failure to

fulfill this obligation need not be only action (e.g. planting a tree in

an unsuitable place), but also failure to act (e.g. leaving a tree

which grew in an unsuitable place by itself without causation by the

owner). The railways administrative office’s right to order the owner to

take necessary measures, or a decision to remove a source of danger at

his expense, is merely a necessary operating guarantee of priority

protection for the safe operation of the railway and thus of an eminent

public interest.

In such cases, the provision on removing a

source of danger at the expense of a land owner or operator who did not

comply with an order to remove it is appropriate. This “advantageous

treatment” of the public interest is also, in the interest of protecting

property rights, compensated by certain rights of owners, which protect

them from arbitrariness by administrative bodies, as the compensation

of expenses and damage arising from measures necessary to remove the

source of danger to the railway is handled in accordance with the

principle of reasonableness. Of fundamental importance in this regard is

§ 419 of the Civil Code (which is expressly referred to by § 9 para. 2

of the Railways Act), under which “Anyone who averted imminent damage

has a right to compensation of expenses incurred for that purpose and to

compensation of damages which he incurred thereby, including against

the person in whose interest he acted, to a maximum extent corresponding

to the damage which was averted.” The commentary to the Civil Code

emphasizes that the right to compensation of damages and expenses

incurred is also directed against the party in whose interest this party

acted. (Jehlička, Švestka and collective of authors, Civil Code,

Commentary, 3rd Edition 1996, C.H.Beck).

On the other hand, one

can also imagine a number of different situations. Situations, in which

the particular obligation of prevention imposed on the owner of real

estate in the area of the railway protected zone (operator or owner of

the source of danger) would be beyond his realistic possibilities, and

his subsequent liability for the source of danger would be in conflict

with the principle of reasonableness. This is not merely a situation of

"vis major" (a situation caused by events on which the owner could have

no influence). It is always necessary to carefully evaluate each case,

taking into account all its circumstances. The Railways Act, in the

incriminated provision, rules out such an approach, as it sweepingly

requires the administrative office to issue a decision on the removal of

the source of danger at the owner’s or operator’s expense.

The

Constitutional Court notes that, for example, the cited Railways Act of

Baden-Würtemberg, although on the one hand it permits the railways

office to decide on the removal of vegetation, fences, piles, stacks and

other objects which are not firmly joined with the land at the owner’s

expense, on the other hand provides a right for commensurate

compensation to those owners or users on whom limitations are imposed,

which are a disproportionate burden, inequitable and unacceptable vis a

vis others (§ 4 para. 4 of the Act). Provision of §  5 of the Act

imposes an obligation to tolerate measures take to protect the railways

from effects of nature such as snowdrifts, falling rocks, caving in,

etc., and in these cases the affected land owner is entitled to

commensurate monetary compensation for damage incurred. The land owner

can also absolve himself of liability for the source of danger if the

particular regime in the railway protected zone made in impossible for

him to take due care of his property.

It is evident from the

foregoing that the provisions of of the Czech Railways Act are too

strict, unequivocal and undifferentiated, so that the sweeping provision

of § 10 on removal of a source of danger to the railway at the expense

of the owner of that source does not commensurately apply to those cases

where payment of the expenses can not fairly be required of the land

owner.

In conclusion, on can say that the Constitutional Court

respects the specification of the socially binding nature of property

under Art. 11 para. 3 of the Charter and Art. 1 para. 2 of the Protocol

to the Convention for the Protection of Human Rights and Fundamental

Freedoms, under which the right to protection of property does not

interfere with the right of states to pass laws which they consider

necessary to regulate the use of property in accordance with the public

interest. Such legal regulations are also valid in the Czech Republic,

although restrictions on use of property in accordance with the public

interest in the Civil Code and other statues do not have – nor, in view

of the variety of circumstances, can they have – the character of an

inventory of individually specified obligations, but of obligations

which are formulated generally, but interpreted commensurately.  

At

the same time, however, as far as the sweeping nature of the provision

on removal of the source of danger at the expense of its owner or

operator goes, the Constitutional Court has no alternative but to agree

with the petitioner’s opinion. On this issue, the Czech Railways Act

does not yet permit regulation which would be commensurate with the

variety of circumstances related to expenses for removing sources of

danger for the railway. Because other provisions of the second, third

and fourth sentences in § 10 of the Act on Railways would, after

annulment of the words “at his expense” in the third sentence, lose the

necessary clarity and consistency, the Constitutional Court annulled the

contested sentences in full, and thus made possible a fully balanced

new regulation.
 
For all the cited reasons, the Constitutional

Court decided as is stated in the verdict. Making the judgment go into

effect as of 31 December 2002 is intended to make possible a new

legislative regulation which would, in particular, also commensurately

differentiate the obligations for compensation of expenses related to

removing a source of danger to the railways.  

Instruction: Decisions of the Constitutional Court can not be appealed.


Brno, 6 March 2002