2002/12/10 - Pl. ÚS 16/02: Local Fees

10 December 2002

HEADNOTES

A

municipality is authorized to establish, in a generally binding

ordinance issued on the basis of § 10b of Act no. 565/1990 Coll., on

Local Fees, exemption from or reduction in fees (§ 15 of the Act),

assuming that this does not lead to circumventing the law and

discrimination against fee payers. In evaluating this fact it is

necessary to review the meaning and purpose of a given exemption

(reduction).

If the relevant version of Act no. 185/2001 Coll. did not presume that

the municipality can collect payment on a contractual basis from natural

persons for the gathering, collection, transport, sorting, use and

removal of communal waste, a generally binding ordinance can not set

such “exemption” from the fee as subsequently permits the municipality

to introduce, for one category of fee payers, a contractual payment

which is basically at a lower level than the payment obligation.

A different procedure would be a violation of the abovementioned Act

and also circumvention of § 10b para. 3 of the Local Fees Act, as the

cited provision unambiguously defines how the municipality’s expenses

arising in connection with handling communal waste are to be distributed

between two categories of fee payers (with permanent residence in the

municipality or without it). The consequence of this is discrimination

against fee payers, where one group of fee payers is illegally (and

unjustifiably) given an advantage over the other.

 


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 Chairman of the District Office in Žďár nad Sázavou to annul a

generally binding ordinance of municipality V. of 6 December 2001 no.

04/2001 (note: the ordinance is incorrectly marked as no. 04/20001) on a

local fee for operation of the system of gathering, collection,

transport, sorting, use, and removal of communal waste, discussed

without an oral hearing, with the consent of the parties to the

proceedings, as follows:

I. Art. 4 of generally binding ordinance of municipality V. of 6

December 2001 no. 04/2001 on a local fee for operation of the system of

gathering, collection, transport, sorting, use and removal of communal

waste, is annulled as of the day this judgment is promulgated in the

Collection of Laws.
II. The remaining part of the petition is denied.

 


REASONING

I.
 

By

petition of 3 July 2002, filed in accordance with Act [sic] § 64 et

seq. of Act no. 182/1993 Coll., on the Constitutional Court, as amended

by later regulations; (the “Constitutional Court Act”), the Chairman of

the District Office in Žďár nad Sázavou proposed annulment of the

generally binding ordinance of municipality V. cited in the heading (the

“ordinance”), issued under the municipality’s independent jurisdiction,

which reads as follows:

“Generally binding ordinance of municipality V. no. 04/20001
on a local fee for operation of the system of gathering, collection, transport, sorting, use, and removal of communal waste.
 

The

municipal council of municipality V. issues, on 6 December 2001, under §

15 of Act no. 565/1990 Coll., on Local Fees as amended by later

regulations, and in accordance with § 10, let. a) and § 84, para. 2,

let. i) of Act no. 128/2000 Coll., on Municipalities (Municipal

Establishment), this generally binding ordinance.

Art. 1
The

fee shall be administered by the municipal office of V. (the “fee

administrator”) and proceedings concerning fees shall be handled under

Act no. 337/1992 Coll., on Administration of Taxes and Fees, as amended

by later regulations, unless Act no. 565/1990 Coll., on Local Fees, as

amended by later regulations, provides otherwise.

Art. 2
Fee payer
The

fee shall be paid by: a) a natural person who has permanent residence

in the municipality. The fee may be paid for a household by a joint

representative, and for a family house or apartment building by the

owner or administrator. These persons are required to inform the fee

administrator of the names and dates of birth of persons who are paying

the fee, b) a natural person who owns a building designated or serving

for individual recreation, in which no person is registered for

permanent residence. If several people have ownership rights to this

building, they are liable to pay the fee jointly and severally, in an

amount corresponding to the fee for one natural person.

Art. 3
Rate of fee

1. The rate of the fee for a fee payer under Art. 2, let. a) and b) of

this ordinance is CZK 467, and consists of: a) the amount of CZK 250 per

calendar year and b) the amount of CZK 217 per calendar year. This

amount is set according to the municipality’s actual expenses in the

previous year for the collection and conveying of unsorted communal

waste. The actual expenses were CZK 164,796, and were allocated as

follows:
CZK 164,716 ÷ 760 persons = CZK 217/person
2. In the

event of a change, during the course of the year, in the place of

permanent residence or a change in the ownership of a building which is

designated or serves for individual recreation, the fee shall be paid in

a proportional amount which corresponds to the number of calendar

months of residence or ownership of a building in the relevant calendar

year. If a change occurs during a calendar month, the situation at the

end of the month shall be used to determine the number of months.

Art. 4
Exemption

1. The following are exempt from the fee: - fee payers under Art. 2

para. a) of this ordinance who take the opportunity under Ordinance no.

03/2001 Art. 4, para. 9 on the System of Handling Waste in Municipality

V., 100 %, if the following conditions are met: - a contract is

concluded with municipality V. for the removal of an appropriate number

of waste containers (garbage cans); - they will thus liquidate an

appropriate amount of waste in a demonstrable manner; - they observe

other obligations arising from the decree on the waste handling system

in Vír.; - they conclude a contract, including payment by the end of

January; - if it is found that any of these conditions were not met, the

entitlement to exemption expires and the fee will be imposed

retroactively in full.
2. A fee payer is required to inform the fee

administrator in writing or orally that he has become entitled to

exemption from the fee within 15 days from the day when the facts arose

which establish entitlement to the exemption. The fee payer is required

to announce the termination of his entitlement to the exemption by the

same deadline.

Art. 5
Payment Due Dates
1. The fee for a

fee payer under Art. 2, let. a) of this ordinance is payable in one

payment, from 15 January to 31 January of the relevant year.
2. The

fee for a fee payer under Art. 2, let. b) of this ordinance is payable

in one payment, no later than 31 March of the relevant year.

Art. 6
Information Obligation
A

fee payer under Art. 2, let. a) of this ordinance is required to inform

the fee administrator of the termination of his payment obligation as a

result of a change in permanent residence in the municipality, no later

than 10 days from the day when the change occurred.
1. A fee payer

under Art. 2, let. b) of this ordinance is required to inform the fee

administrator of the termination of his payment obligation as a result

of a change in ownership of a building designated or serving for

individual recreation.

Art. 7
If a fee is not paid on time or

in the correct amount, the fee administrator shall set the fee by a

payment assessment and may raise an overdue fee by up to 50%. The

assessed fee is rounded up to whole crowns.

Art. 8
The fee

administrator may impose, on anyone who does not meet a non-financial

obligation by a deadline set by this ordinance or a decision, a fine

under §37, of Act no. 337/1992 Coll., on Administration of Taxes and

Fees, as amended by later regulations.

Art. 9
1. If a fee

payer does not meet the information (payment) obligation provided by

this generally binding ordinance, the fee due can be assessed within

three years from the end of the calendar year in which the information

(payment) obligation arose.
2. Periods of limitation are governed by

Act no. 337/1992 Coll., on Administration of Taxes and Fees, as amended

by later regulations.

Art. 10
The fee administrator may, on

the basis of an application from the fee payer, reduce or waive [the

fee] in individual cases, on the grounds of alleviating or removing

hardship.

Art. 11
This ordinance goes into effect on 1 January 2002.Deputy Mayor    Mayor of the Municipality

Posted on: 10 Dec. 2001

Taken down on:”

In

his petition, the Chairman of the District Office in Žďár nad Sázavou

states that on the basis of § 15 para. 1 let. h) of Act no. 147/2000

Coll., on District Offices, as amended by later regulations, he issued,

on 20 February 2002, a measure in which, under § 124 para. 1 of Act no.

128/2000 Coll., on Municipalities (Municipal Establishment), as amended

by later regulations, (the “Municipalities Act”) he suspended execution

of the ordinance on the grounds of illegality. At its meeting on 26

April 2002, the municipal council took cognizance of the suspension of

the ordinance. At its next meeting, held on 26 June 2002, no action was

taken in the matter of the ordinance. In view of these facts, he files a

petition to annul it under Art. 87 para. 1 let. b) of the Constitution

of the Czech Republic (the “Constitution”).
 

In

his petition, the petitioner begins with the premise that the cited

ordinance was issued in a legal manner under Art. 104 para. 3 of the

Constitution, and § 10 let. a), § 84 para. 2 let. i) and § 92 para. 3 of

the Municipalities Act. Thus, this legal regulation is valid, and went

into effect on 1 January 2002. The petition further states that the

ordinance implemented a fee for operation of the system of gathering,

collection, transport, sorting, use, and removal of communal waste,

which is regulated by § 1 let. h) and § 10b of Act no. 565/1990 Coll.,

on Local Fees, as amended by later regulations (the “Local Fees Act”).

Under § 10b para. 3 and § 15 of the Local Fees Act (note: in the wording

in effect until 31 December 2002), the ordinance specifies who is a fee

payer (Art. 2), what the rate of fees is (Art. 3), and who is exempt

from the fee (Art. 4); municipality V. previously, under § 17 para. 2 of

Act no. 185/2001 Coll., on Waste and Amending Certain Acts (the “Waste

Act”), introduced, with effect as of 1 January 2002, by generally

binding Ordinance no. 03/2001 (of 6 December 2001) a system of

gathering, collection, transport, sorting, use, and removal of communal

waste (the “communal waste handling system”).
 

According

to the petitioner it is apparent from these facts that municipality V.

is authorized to collect only a fee for operating the communal waste

handling system. The fee was implemented, but in Art. 4 of the ordinance

the municipality set for some fee payers a different manner of making

payments in the waste management sector, based not on an obligation to

pay a fee set by a legal regulation, i.e. by an ordinance issued as part

of the norm-creating activities of the municipality in the area of

public law, but on a contract concluded between the municipality and

some fee payers as a two-sided legal act under private law norms. The

ordinance is inconsistent with the Local Fees Act in that it implements

de facto two methods of imposing fees, one of which is governed by its

Art. 4 and is a new type of contractual arrangement on making payment

which has no support in the Local Fees Act. Thus, it is evident that

insofar as municipality V., by generally binding ordinance regulated the

communal waste handling system under the Waste Act and introduced a fee

under the Local Fees Act by generally binding ordinance, it is not

authorized to introduce a different form of payment other than the cited

fee. Thus, it is not authorized either to introduce a form of payment

on the basis of a contract concluded between the municipality and some

fee payers, or to exempt those fee payers in the municipality from the

binding ordinance. In addition, the legal framework for concluding

contracts is uncertain, and displays signs of circumventing the law, in

particular the Local Fees Act. In view of these facts, the Chairman of

the District Office in Žďár nad Sázavou proposes that the contested

ordinance be annulled.
 


II.
 

In

its response to the petition, signed by Mayor J. H., municipality V.

stated that the contested ordinance was approved on 6 December 2001,

posted on 10 December 2001, and taken down on 2 January 2002; citizens

were also informed of the ordinance by a flyer delivered to every

household in the municipality. At the request of the Constitutional

Court, the information provided was supplemented by a statement of 21

October 2002, which states that the municipal council has 15 members, 14

of whom took part in the relevant meeting, and all of those voted to

pass the ordinance. On the merits of the matter municipality V. stated

that the municipality has introduced waste sorting and weighing of

garbage cans, and that citizens residing permanently in the municipality

were permitted, under generally binding Ordinance no. 03/2001, to

continue in this system, and thus to continue in the system of paying

according to the actual weight of communal waste. The municipal council

of municipality V. – according to a decision taken at a public meeting

on  29 July 2002 – continues to maintain the validity of Ordinance no.

04/20001.
 


III.
 

For

purposes of evaluating the petition, the Constitutional Court requested

an expert position statement from the Ministry of Finance. In a letter

of 27 September 2002, file no. 263/93491/2002, the Ministry stated that

it can not agree with the exemption provided in Art. 4 of the contested

ordinance, because it creates inconsistency with the Waste Act and Act

no. 526/1990 Coll., on Prices, as amended by later regulations. The

Ministry’s reasons are that the Waste Act does not define communal waste

as the property of a natural person, by liquidating which the

municipality would be providing that person a service. On the contrary, §

4 of the Waste Act indicates that at the moment when a natural person

places communal waste in a place designated thereto, the municipality

becomes the originator and owner of that waste. The municipality has an

obligation, in terms of dealing with communal waste, provided by the

Waste Act (§ 17 para. 3 a 4), to determine a place for a natural person

to place communal waste and that person’s obligation to place the waste

in the determined spot. It is evident from this that the municipality

can not tie exemption from the fee for operating the communal waste

handling system to a contractual arrangement between the municipality

and a citizen, on the basis of which the municipality then performs a

service for a natural person by liquidating communal waste. Since the

Waste Act went into effect (i.e. 1 January 2002), a fee obligation can

be imposed on natural persons, in accordance with the Local Fees Act,

only by generally binding ordinance on local fees for operating the

communal waste handling system. Under Act no. 526/1990 Coll. prices are

negotiated between seller and buyer; in this case, however, this legal

act lacks a subject of performance on the part of the municipality, i.e.

a service provided to the citizen in connection with clearing away and

liquidating communal waste.
 


IV.
 

Under

Art. 87 para. 1 let. b) of the Constitution, the Constitutional Court

decides to annul other legal regulations, including generally binding

ordinances of municipalities issued under their independent

jurisdiction, if they are inconsistent with the constitutional order or a

statute. In view of  § 68 para. 2 of the Constitutional Court Act, the

Constitutional Court is also required to review in these proceedings

whether a contested legal regulation was issued in a constitutional

manner.
 

The generally

binding ordinance was passed on 6 December 2001 (promulgated on10

December 2001); its passage and publication were subject to the

Municipalities Act. Under § 35, § 84 para. 2 let. i) and § 10 let. a) of

the Municipalities Act, a municipal council may, as part of a

municipality’s independent jurisdiction, issue generally binding

ordinances and impose obligations in matters specified by a special

statute. Under § 1 and § 15 of the Local Fees Act (in the wording in

effect until 31 December 2002), municipalities may collect local fees

enumerated by the Act, the implementation of which, as well as other

requirements connected with that implementation, they shall set by

generally binding ordinance.
 

As

the Constitutional Court determined from the record of the public

meeting of the municipal council in Vír, held on 6 December 2001, and

from the list of those present, 14 out of a total of 15 members of the

council took part in discussion of the generally binding ordinance on

local fees and the ordinance was approved by all votes present. The

ordinance was, in accordance with § 12 para. 1 and 2 of the

Municipalities Act, posted on the official bulletin board from 10

December 2001 to 2 January 2002. Thus, the Constitutional Court believes

that the contested generally binding ordinance was issued within the

municipality’s independent jurisdiction in a constitutional manner, and

went into effect as is stated in it. By letter of 20 February 2002, the

Chairman of the District Office in Žďár nad Sázavou, Ing. K. P.,

suspended execution of the cited ordinance. The council representatives

of municipality V. learned of this decision at the meeting held on 26

April 2002. The municipal council did not arrange any correction, nor

did it do so at its next meeting, on 26 June 2002.
 

Constitutional

limits for issuing generally binding ordinances of municipalities in

their independent jurisdiction are specified in Art. 104 para. 3 of the

Constitution, under which municipal councils may, within the bounds of

their jurisdiction, issue generally binding ordinances. Municipal

jurisdiction in this regard arises from § 35 para. 3 let. a) of the

Municipalities Act, under which municipalities are governed only by

statutes when exercising their independent jurisdiction in issuing

generally binding ordinances. In its previous judgments the

Constitutional Court has ruled several times that Art. 4 para. 1, Art. 2

para. 3 of the Charter of Fundamental Rights and Freedoms and Art. 2

para. 4 of the Constitution indicate for the area of municipal

jurisdiction that in cases where a municipality acts as an entity which

imposes obligations on citizen through one-sided bans and orders, i.e.

if it issues generally binding ordinances which contain legal

obligations, it can do so only in cases of express statutory

authorization (judgment of 19 January 1994, file no. Pl. ÚS 5/93, and of

5 April 1994, file no. Pl. ÚS 26/93, published in: The Constitutional

Court of the Czech Republic, Collection of Decisions, vol. 1, no. 4 and

12). Although these judgments were made under the previous legal

framework [Czech National Council Act no. 367/1990 Coll., on

Municipalities (Municipal Establishment), annulled by Act no. 128/2000

Coll.], the conclusions expressed in them undoubtedly maintain their

validity in the present (see judgment of 20 November 2001, file no. Pl.

ÚS 20/01, no. 8/2002 Coll.).
 

After

reviewing the generally binding ordinance, the Constitutional Court

believes that the petition from the Chairman of the District Office in

Žďár nad Sázavou is partially justified, concerning Art. 4 of the

contested ordinance. In evaluating the petition, the Constitutional

Court began with the premise that the municipality must be considered,

under § 4 let. p) of the Waste Act, as the originator of communal waste,

as of the moment when a natural person deposits waste in the place

designated thereto (in that moment the municipality also becomes the

owner of the waste). In view of this, it bears – with some exceptions –

all the obligations of the originator of waste (§ 17 in connection with §

16 of the Waste Act). One of the municipality’s obligations, as the

originator of waste, is to designate places where natural persons can

place communal waste and secure places where natural persons can place

dangerous components of that waste. In view of certain specific features

of communal waste, on the basis of § 17 para. 2 of the Act on Waste a

municipality was permitted, in its independent jurisdiction, to set

forth the communal waste handling system by generally binding ordinance.

Natural persons are, under § 17 para. 4 of the Act on Waste, required

to place waste in designated places; if the municipality issues an

appropriate ordinance on the communal waste handling system, natural

persons are required to observe that system.
 

In

the event that a municipality makes use of the statutory authorization

in § 17 para. 2 of the Act on Waste and, by generally binding ordinance,

provides a communal waste handling system, it is, under § 1 let. h) and

§10b para. 1 of the Local Fees Act, also authorized to set a fee for

operation of that system by generally binding ordinance. Under § 15 of

the Local Fees Act (in the wording in effect until 31 December 2002),

the municipality shall regulate, in a generally binding ordinance, the

details of its collection, in particular it shall set a specific rate

for the fee, an information obligation concerning the creation of a

payment obligation, due dates, reductions and any exemption from fees;

in this regard the municipality is guided by the statutory legal

framework, in particular § 10b of the Local Fees Act, which determines

who is a fee payer or a recipient of a given fee, and in what manner the

amount of a fee is set.
 

The

essence of the petition to annul generally binding ordinance of

municipality V. no 04/2001 is disagreement with Art. 4, which

establishes exemption in full from the relevant fee. The cited provision

indicates that this exemption applies only to persons who have

permanent residence in the municipality, i.e. persons under § 10b para. 1

let. a) of the Local Fees Act, and is also conditioned on (among other

things) these persons concluding a payment contract with municipality V.

on the removal of an appropriate number of waste containers (garbage

cans) by the end of January 2002, that is, if these persons voluntary

join the “system of weighing garbage containers” (Art. 4 para. 9 of

generally binding ordinance of municipality V. no. 03/2001).
 

Under

§ 15 of the Local Fees Act, the municipality is also authorized to

specify exemption from the fee, but in this matter the question arises

whether Art. 4 of the generally binding ordinance really covers

exemption in the sense of the cited provision. As the Constitutional

Court determined from the information sheet of the municipality of Vír,

citizens with permanent residence in the municipality can basically

choose whether to pay the full fee, i.e. CZK 467, for each member of the

household, (garbage cans will be removed 39 times a year), or to join

the system of weighing waste and pay an advance for the deposit of 700

kg, or 1,000 kg of waste at the landfill for an amount of CZK 600, or

CZK 815 annually (garbage cans will be removed 26 times a year, or 39

times a year).
 

It is evident

from that, that apart from fees whose amount is set under § 10b para. 3

of the Local Fees Act, the contested generally binding ordinance gives a

certain group of persons, instead of paying the local fee, the

possibility of a kind of alternative “performance,” which, under certain

circumstances, will be advantageous for these persons – in terms of

financial expense – [see the information sheet and the “Agreement on

Calculating a Fee for Liquidation of Communal waste under Ordinance no.

04/2001,” under which “fee payers” declare whether they are “exercising

the claim to a discount under Ordinance no. 04/2001 Art. 4, para. 1 let.

a)”]. Thus, this is not stricto sensu exemption from the fee, i.e.

release from an obligation to provide monetary performance; however, it

could be a reduction under § 15 of the Local Fees Act (in the wording in

effect until 31 December 2002). In evaluating this question it is

necessary to take into account the true meaning and purpose of the legal

regulation. That is, as can be concluded from the foregoing, for one

thing, providing a “discount” to a certain category of fee payers, more

precisely, providing an opportunity for these fee payers to make use of a

certain advantage, and for another, creation of a parallel system for

covering the municipality’s expenses in handling communal waste, i.e.

payment on a contractual basis. Therefore it was necessary to review

whether the municipality is authorized to build such a system, outside

the contested ordinance, but by making use of the ordinance.
 

The

generally binding ordinance of municipality V. speaks of concluding a

contract between a natural person and the municipality. The Waste Act is

based on the principle that the municipality is the originator of

communal waste which must fulfill the obligations set by the cited Act.

Natural persons producing communal waste have only an obligation to

place the waste at a designated spot, or to be guided by a generally

binding ordinance on handling communal waste. For purposes of covering

expenses which the municipality incurs as a result of this activity, the

municipality is authorized to set a fee by generally binding ordinance.

In contrast, the possibility of concluding contracts with natural

persons was expressly permitted by the previous legal framework (Act no.

125/1997 Coll., on Waste, in the wording in effecting until 28 February

2000), which was based on the principle that natural persons pay the

municipality a price set under of Act no. 526/1990 Coll., as amended by

later regulations, for the conveying, sorting, and rendering harmless of

communal waste; likewise, in the future (with effect as of 1 January

2003), the municipality will have the right, under the Act on Waste, to

“collect payment for the gathering, collection, transport, sorting, use,

and removal of communal waste from natural persons on the basis of a

contract,” which must be in writing and contain the amount of the

payment (the Waste Act, as amended by Act no. 275/2002 Coll.). Thus, the

Waste Act at present does not presume, or at the time the contested

ordinance was passed did not presume the possibility of different

payment of the municipality’s expenses in handling communal waste other

than through a local fee, and therefore it did not even presume the

conclusion of appropriate contracts with natural persons (unlike legal

entities and natural persons authorized to conduct business, provided

these persons, as originators of waste, produce waste which is similar

to communal waste, which can, on the basis of a contract with the

municipality, make use of the communal waste handling system; § 17 para.

5 of the Act on Waste).
 

In

view of the mandatory and comprehensive regulation of this topic in the

Waste Act, one must begin with the principle that the municipality is

not authorized to proceed otherwise than by the procedure expressly

provided by statute. The foregoing rules clearly define the framework

within which the municipality must move when creating the communal waste

handling system and the related setting of fees for the operation of

that system. Therefore, the Constitutional Court can not but state that

the given procedure is contra legem, because a generally binding

ordinance introduces a system of removal of communal waste on the basis

of contractual arrangement and for payment, which is not permissible

under of the Act on Waste. Following on from this, we can agree with the

opinion of the Ministry of Finance that with these contracts there is

inconsistency with Act no. 526/1999 Coll., as amended by later

regulations, because the municipality does not provide any performance

to these natural persons under this Act.
 

If

the Constitutional Court considers this situation in terms of the Local

Fees Act, it must be noted that the contested ordinance introduces for a

certain group of citizens (fee payers) the opportunity to choose

between paying the “ordinary” fee under the Local Fees Act or paying the

“price of the service” – removal of waste under a contract. That price

is, of course, although this is not so directly on the basis of the

ordinance, one-sidedly set by the municipality, and the contractual

freedom of the parties is further limited by Art. 4 of the ordinance

(and from the viewpoint of the fee payers basically also by the economic

advantage of one or another manner of “payment”). Basically this is

setting a “quasi” fee for a certain group of fee payers, and the

calculation of its amount is quite inconsistent with the rules contained

in § 10b para. 3 of the Local Fees Act, which supports the conclusion

that Art. 4 of the contested ordinance leads to circumvention of that

provision of the Local Fees Act. It is necessary to realize that this

provision of the Local Fees Act attempts to create a system of paying

local fees which would (at least to a certain degree) fairly distribute

the expenses for operating the communal waste handling system which are

to be paid by a local fee, between two groups of fee payers, i.e. on one

hand, natural person with permanent residence in the municipality, who

pay the fee “per person,” and on the other hand, natural persons who are

owners of real estate designated for individual recreation, who pay the

fee “per real estate.”
 

This

is directly connected to the fact that the cited provision of the

ordinance violates the balance between the two categories of fee payers,

when it gives one of them an advantage over the other with the

“exemption,” in a situation where this procedure, with regard to the

relevant legal framework, can not be justified by substantive reasons

(and in any case no such reasons were cited by municipality V.). In the

Constitutional Court’s opinion, the municipality was authorized, under §

15 of the Local Fees Act, to set reductions and exemption from the fee,

but in view of the cited legal framework the first (and unavoidable)

criteria for allowing “exemption” from the fee could not be the

permanent residence of a natural person; thus, if the municipality

wanted to establish a possibility for reductions or exemption in the

ordinance, it would have to do so on an equal basis, i.e. for both

groups of fee payers (of course, on the assumption that the ordinance

was not illegal for other reasons). Therefore, the Constitutional Court

also considers the provision in question to be discriminatory and

inconsistent with Art. 1 of the Charter of Fundamental Rights and

Freedoms, as well as with § 10b of the Local Fees Act.
 

Although

the petition from the Chairman of the District Office in Žďár nad

Sázavou seeks annulment of the contested ordinance as a whole, the

Constitutional Court did not find that, except for Art. 4, inconsistency

with the law in other provisions, as even the objections raised in the

petition are not aimed against other provisions, nor did it find that

annulling Art. 4 would have an influence on other legal norms contained

in the ordinance. For these reasons the Constitutional Court only

partially granted the petition from the Chairman of the District Office

in Žďár nad Sázavou and annulled the contested generally binding

ordinance of municipality V. in the scope expressed in the verdict of

this judgment under § 70 para. 1 of the Constitutional Court Act,

whereas it denied the remainder of the petition.

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

Brno, 10 December 2002