2003/02/05 - Pl. ÚS 34/02: Territorial Self-Government

05 February 2003

HEADNOTES

The

guarantee of territorial self-government in the Constitution is

laconic. Alongside the differentiation of the local and regional levels

of self-government (Art. 99) territorial self-government is conceived as

the right of a territorial association of citizens, arising from its

characteristics and abilities, as the Constitutional Court stated in its

finding of 19 November 1996, file no. Pl. ÚS 1/96 (Collection of

Decisions of the Constitutional Court, volume 6, p. 375).

“The

Constitutional Court considers local self-government to be an

irreplaceable component in the development of democracy. Local

self-government is an expression of the capability of local bodies,

within the bounds provided by law, to regulate and govern part of public

affairs on their own responsibility and in the interest of the local

population.”

The Constitution makes it possible to support this capability by, among

other things, establishing the legal subject status of territorial

self-governing units, and presumes that self-governing units have their

own property and manage themselves out of their own budget (Art. 101

para. 3). The democratic character of self-government is also confirmed

at the constitutional level in the guarantee of elected representative

bodies (Art. 101 para. 1 and 2 and Art. 102). Of course, the

Constitution also presumes uniform state regulation of self-government

in a statutory framework. The definition of that para.t of public

affairs which a local or regional association of citizens is capable of

managing is entrusted to the legislature, i.e. the state power (Art.

104), not to the constitutional framers, who would define matters of

local significance at the highest level. The constitutions of a number

of other European states also rely on the authorization of the

legislature to define matters of territorially limited importance which

are entrusted to territorial self-governing units.

The right to self-government generally expressed by the Constitution

certainly may not be depleted by the legislature, but it is certain that

the legislature has wide space to determine which affairs are best

managed at the local or regional level without greater interference by

the central state power. It is difficult to determine in advance,

non-politically, expressly from legal, economic, political and other

points of view, which matters have local or regional effect and

therefore deserve to be taken out of the purview of the central power.

Decision making about the jurisdiction of territorial self-government is

always political.. Even matters of clearly local or regional character

can acquire state-wide significance, for example, fundamental human

rights and freedoms may be affected or consequences can be carried

across the borders of the territorial self-governing association of

residents, which is increasingly frequent in an environment with a

highly mobile population.

It can not be overlooked that the Constitution expressly presumes (Art.

105) that territorial self-governing units will share in the exercise

of state power on the basis of statutory authorization. Such sharing of

the exercise of state power of course brings with it the subordination

of self-governing units to state inspection, the purpose of which is to

ensure quality exercise of state power. This subordination must also,

understandably, be based on statute. The constitutional does not say

unambiguously whether the exercise of state administration can be

imposed upon territorial self-governing units compulsorily, or whether

it is possible to execute such statutory transfer only on the basis of

an agreement between the state and the territorial self-governing unit.

In light of the emphasis on self-government, the requirement of a

consensus would certainly appear stronger. On the other hand, however,

it is evident that uniform exercise of state power under transferred

jurisdiction by municipalities, cities, and regions is generally

accepted in this country and has never been disputed as incompatible

with the right of territorial associations of citizens to

self-government. Even the group of senators does not dispute it, as

such, in its petition to annul some provisions of Act no. 320/2002 Coll.

The Czech constitutional standard of local self-government is

supplemented and enriched by a standard which arises from the

international obligations of the Czech Republic, namely from the Charter

of Local Self-Government, agreed on 15 October 1985, which entered into

force for the Czech Republic on 1 September 1999, published in the

Council of Europe under no. 122 ETS and in the Czech Republic under no.

181/1999 Coll. and no. 369/1999 Coll.

The Local Charter is not a classic agreement on human rights; it does

not concern individuals, but associations of citizens, and it

establishes collective rights. The idiosyncrasies of interpreting and

applying it follow from this. The rules it expresses, which create the

European standard of local self-government, can only with difficulty be

self-executing. The European standard of territorial self-government is

expressed by qualities which a party’s self-governments are to exhibit,

or rights which they are to enjoy. The parties have an obligation to

guarantee their territorial self-governments a certain number of such

rights determined by the Local Charter. Rights guaranteed by the Local

Charter to the territorial self-governments of the parties are a

framework. The Local Charter itself, in a number of provisions, presumes

detailed domestic law regulation which surely represents bounds within

which territorial self-government will apply. It definitely does not

guarantee the full freedom of territorial self-government. That is not

the European tradition. Statutes, or other regulations, depending on the

choice and tradition of the parties, may define in detail the range of

matters managed by territorial self-government, including those which a

self-governing unit has an obligation to pursue, its organization,

including the form and status of individual bodies, may determine the

framework for management, and may allocate property and financial

resources. The Local Charter certainly does not make territorial

self-governing units into sovereign bodies similar to states.

 
 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court decided 5 February 2003 on a

petition from a group of Senators of the Parliament of the Czech

Republic to annul points 2, 5, 6, 7, 8, 9 and 11 Art. CXVII of Act no.

320/2002 Coll., Amending and Repealing Certain Acts in Connection with

Ending the Activities of District Offices, as follows:
 

The petition is denied.

 


REASONING


I.
 

The

group of senators filed with the Constitutional Court, under Art. 87

para. 1 let. a) of the Constitution of the Czech Republic (the

“Constitution”) and § 64 para. 1 let. b) of Act no. 182/1993 Coll., on

the Constitutional Court, a petition to annul some provisions of Act no.

320/2002 Coll., Amending and Repealing Certain Acts in Connection with

Ending the Activities of District Offices.

The

group of senators seeks annulment of the legal framework which provides

for transferring the employment relationships of employees, officials

of district offices, which are to be terminated as of 1 January 2003

under Art. CXVII of point 1 of Act no. 320/2002 Coll., the Act whose

selected provisions are proposed to be annulled, to territorial

self-governing units (municipalities and cities authorized to exercise

transferred jurisdiction and regions) without the affected employees’

own decision and likewise without the consent of the appropriate

self-governing units. The legal framework which orders this change is

contained in points 2, 5 and 8 Art. CXVII of Act no. 320/2002 Coll., in

this wording:
 

2. The rights

and obligations from employment relationships of employees of the Czech

Republic assigned to work in district offices (a “district office

employee”) are transferred from the Czech Republic to territorial

self-governing units in cases where the activities of a district office

employee provided by this Act or a special law are transferred to the

jurisdiction of territorial self-governing units.
 

5.

In the event that an agreement under point 3 is not reached by 1

September 2002, the Ministry of the Interior shall set the numbers and

rules for re-assignment of employees to the appropriate territorial

self-governing units or administrative offices at the proposal of the

chairman of the district office and with the recommendation of the

director of the regional office.
 

8.

The provisions of § 102 para. 2 let. j) of Act no. 128/2000 Coll., on

Districts (District Establishment), and § 59 para. 1 let. b) of Act no.

129/2000 Coll., on Regions (Regional Establishment), on Setting the

Numbers of Employees of Territorial Self-Governing Units shall not apply

to cases under point 2.
 

The

group of senators claims that with this framework the legislature

violated and limited the fundamental rights and principles of the

organization of state power enshrined in Art. 8, Art. 79 para. 3 and

Art. 100 para. 1 and Art. 101 para. 4 of the Constitution, Art. 2 para.

2, Art. 4 para. 1, 2 and 4 and Art. 9 of the Charter of Fundamental

Rights and Freedoms (the “Charter”), Art. 6 para. 1 of the Charter of

Local Self-Government (the “Local Charter”) a Art. 4 para. 2 the

Convention on Protection of Human Rights and Fundamental Freedoms (the

“Convention”).
 

The group of

senators points to Art. 8 and Art. 100 of the Constitution, which

declare self-governing units to be territorial associations of citizens

with the right to self-government in the form of sharing in the exercise

of state power through their representatives. It points to a

Constitutional Court decision (Pl. ÚS 1/96) and Art. 3 para. 1 of the

Local Charter, under which local self-government is an expression of the

capability of local bodies, within the bounds provided by law, to

regulate and govern part of public affairs on their own responsibility

and in the interest of the local population. This includes the ability

to set the numbers of self-government employees. State interference in

this autonomy degrades self-government into the form it took before

1989, the model of national committees controlled from above.

Territorial self-governing units are independent subjects which act in

their own name, which bear their own responsibility, including as

employers. Autonomous decision making on employees is set by § 102 of

Act no. 128/2000 Coll., on Districts (District Establishment), and § 59

of Act no. 129/2000 Coll., on Regions (Regional Establishment). Under

Art. 6 para. 1 of the Local Charter, it is local associations which set

their own internal structure according to their needs. Authoritative

re-assignment of employees interferes with self-governing units’

management of their own property, because it forces them to use para.t

of their assets to pay the employees. However, it does not take the

local financial situation into account.
 

The

group of senators recognizes that territorial self-government is not

unlimited; it may be interfered with to protect the law and in a manner

provided by law. The contested provisions of the Act, according to the

group of senators, are not capable of causing the transfer of employment

relationships under § 249 of the Labor Code. The contested point 2 is a

general declaration, and no succession can be implemented on the basis

of it, which, in any cases, also follows from the fact that it is not

effective until 1 January 2003. Therefore, transfer is only possible on

the basis of agreement (point 3) or re-assignment (point 5). There is no

objection to agreement. In contrast, authoritative re-assignment (point

5) is a violation of constitutional principles for legislative

regulation, as it is not the Act but the Ministry of the Interior that

decides on the re-assignment of employees to individual self-governing

units. Thus, this violates the legislature’s obligation under Art. 4

para. 1 of the Charter to impose obligations only on the basis of

statute and within its bounds. Nor does this meet the requirement in

Art. 79 para. 3 of the Constitution, under which administrative offices

may issue legal regulations only on the basis of a statue and within its

bounds, if they are authorized thereto by the statute. The legislature

did not set the bounds of this legislative activity by the Ministry of

the Interior. Point 5 governs “rules and numbers.” According to the

group of senators this means that the Ministry’s decision is of a

normative nature. The Constitutional Court has already repeatedly stated

that the legislature and the executive branch may not apply the forms

of law arbitrarily, but must be governed by the directive of the framers

of the constitution and the requirements of transparency, accessibility

and clarity (finding no. 167/2000 Coll.). This requirement has not been

met in this case, as it is not clear whether a decision is published

and to whom it is delivered. The Act does not indicate which territorial

self-governing unit employees are to be transferred to. In practice,

the decision is made by the chairman of the district office. Means of

redress against such decisions are lacking. Thus, state power is applied

inconsistently with Art. 2 para. 2 of the Charter, because statutory

limits for regulation are missing. This also violates Art. 101 of the

Constitution. Interference into the activities of territorial

self-governing units is supposed to be determined by statute, in order

to protect it. Termination of district offices is not a necessary reason

for employing former state employees.
 

The

group of senators also points to the need to evaluate the disputed

provisions of Act no. 320/2002 Coll. from the point of view of the

employees. Re-assignment binds the employees to another entity, probably

to work in another place, and maybe to perform work of a different

kind, without their will to do so. The conclusion that this labor is of a

forced nature is not changed by the possibility of giving notice,

because the employee will have to work during the notice period. In

addition, he would not be entitled to severance pay. Therefore, the

disputed regulation is inconsistent with Art. 4 para. 2 of the

Convention and Art. 9 para. 1 of the Charter, which prohibit forced

labor, and none of the exceptions have been met. Moreover, the forced

labor is not provided by statute but by a re-assignment decision.
 

Because

of their connection to the transfer of district office employees’

employment relationships to territorial self-governing units, the group

of senators also proposes annulling related provisions, points 6, 7, 9

and 11 Art. CXVII of Act no. 320/2002 Coll., which read as follows:
 

6.

In cases where a district office employee’s activities provided by this

Act are not transferred to territorial self-governing units under point

2, the exercise of rights and obligations from a district office

employee’s employment relationships is transferred from the district

office to the Office for State Representation in Property Matters,

unless a special regulation provides otherwise. These employees shall

secure the performance of tasks related to terminating the activities of

district offices after 1 January 2003.
 

7.

District office employees’ entitlements based on employment

relationships which were not transferred to the appropriate territorial

self-governing units under point 2, as well as entitlements of the Czech

Republic from employment relationships vis-à-vis district office

employees shall be satisfied and exercised in the name of the state by

the Ministry of Finance.
 

9. The provisions of § 251d of the Labor Code shall not apply to procedures under points 2 and 3.
 

11.

Personal property owned by the Czech Republic which district offices

had jurisdiction to manage and which is necessary for the performance of

activities transferring to the jurisdiction of territorial

self-governing units under this Act and which is used by district office

employees to whom point 2 applies shall be transferred, with the

exception of things specified in point 12, as of 1 January 2003 from the

Czech Republic to that territorial self-governing unit to which the

rights and obligations from employment relationships of the district

office employees are being transferred.
 


II.
 

The

Chamber of Deputies of the Parliament of the Czech Republic, in its

position statement, points to the background report to the draft Act,

which points out that the draft act also addresses the employment

relationships of district office employees. The aim of the re-assignment

provision is to ensure the proper performance of state administration

by the territorial self-governing units to which individual areas of

jurisdiction will be transferred by trained employees, those who are

already performing these activities. In cases where an employee does not

agree to be transferred to a territorial self-governing unit or to the

Ministry of the Interior, labor law procedures will be followed. The

petitioners’ opinion appears self-serving and one-sided, as it does not

observe the requirements for the exercise of state power, specifically

the need for a professional apparatus. Personnel provisions are

connected to the reform of public administration. In view of the fact

that a fundamental condition for re-assignment is agreement by the

parties, this does not, under any circumstances, create forced labor or

services. Granting the petition threatens to endanger the employment and

social certainties of district office employees who agreed with the

transfer of themselves and their functions to regional offices or

district offices of municipalities with expanded jurisdiction. According

to the statement, the Act was properly approved, signed by the

appropriate constitutional representatives, and promulgated. The Chamber

of Deputies is convinced that the Act is consistent with the

constitutional order and the legal order.
 

The

Senate of the Parliament of the Czech Republic, in its position

statement, points out the circumstances surrounding the passage of the

Act. An amending proposal was filed, pointing to the impermissibility of

authoritative re-assignment as non-permitted interference into the

self-government of municipalities and regions. However, the Senate did

not agree with this proposal. The Act was returned to the Chamber of

Deputies with those amending proposals which the Senate accepted.

Concerning the petition from the group of senators, the Senate points

out that under Art. 105 of the Constitution the exercise of state

administration can be entrusted to self-governing bodies only by

statute. That is what Act no. 320/2002 Coll. is. It transfers the

exercise of state administration to territorial self-governing units in

an unprecedented extent, and some activities are entrusted to the

independent jurisdiction of territorial self-governing units. It aims to

significantly strengthen the position of territorial self-governing

units, not to attempt to limit their constitutional right to

self-government. The contested provisions ensure the proper

implementation of the transfer of jurisdiction to municipalities and

regions. The exercise of state administration is decision making about

the rights and obligations of citizens and legal entities. Therefore, it

is in the general interest to have adequate personnel in the authorized

territorial self-governing units. The general framework of the

contested point 2 is made more specific by further provisions, which

give priority to the jurisdiction of territorial self-governing units in

setting the number of employees. Authoritative re-assignment is an

extreme possibility. In this context the provision on the non-necessity

of a decision by the council of the appropriate territorial

self-governing unit on the number of employees will also hold up.

Self-government of municipalities and regions is not an untouchable

value. Territorial self-governing units are public law corporations

whose priority when fulfilling their tasks is not the protection of

their own interests, but above all the obligation to care for the needs

of citizens and to protect the public interest. The quality of decision

making is certainly such a public interest. The Senate concluded that

providing personnel for the reform of the public administration through

the transfer of employees from terminated district offices to

municipalities and regions will most effectively ensure good quality

decision making practices. Therefore it agreed with the legal framework

at issue. The Minister of the Interior’s assurance that, as part of

organizational measures connected to the reform of the public

administration, corresponding wage funds would be transferred to

territorial self-governing units together with state employees also

contributed to this decision. The Senate further believes that the legal

framework creates an adequate statutory framework for implementing the

transfer of employees. In response to the alleged forced nature of labor

in the transfer on the basis of re-assignment, the Senate states that

the general framework for the transfer of rights and obligations

provided in a number of other statutes would then also have to be found

unconstitutional. The transfer of rights and obligations from employment

relationships means that there is a change of employer, where a new

employer enters into all the rights and obligations of the previous

employer. Nothing else in the employment relationship changes. The

succeeding employer is also bound by the kind of work agreed in the

employment agreement and by the place of performing the work. If an

employer could not allocate the agreed work, it is up to the employer to

negotiate a change. Only if an employee did not agree to the change

can, for example, dissolving the employment relationship be considered.

Until that time an obstacle to work on the part of the employer would

exist. The reason for dissolving the employment relationship is then

such that the employee would be entitled to severance pay.
 

The

group of senators, in response to the position statements of the

Chamber of Deputies and the Senate, emphasizes that the reform

introduced by the Act does not strengthen self-government, as it

concerns the transfer of functions under transferred jurisdiction. It

also rejects the Senate’s claim that agreement is always a condition for

re-assignment. It points out that the houses of Parliament have not

adequately addressed the question of a statutory basis for setting the

numbers and rules for re-assignment of employees to territorial

self-governing units or administrative offices, and it points out the

existing conflicts between municipalities and the terminated district

offices. The group of senators considers the parallel with labor law to

be inadequate in many respects. Concerning the Minister of the

Interior’s assurance that the transfer of employees to territorial

self-governing units will be financially secured, which contributed to

the Act being passed, the group of senators stresses that no such

entitlements arise from the Act, and that financing of this transfer is

governed only by a government resolution, and only for 2003.
 


III.
 

The

petition to annul individual provisions of the Act was filed by a group

of 20 senators, as an authorized petitioner. Because no reason to

reject the petition and no reason to stop the proceedings came to light

in the course of the proceedings, the Constitutional Court discussed the

petition and decided on it (§ 68 para. 1 of the Act on the

Constitutional Court).
 


IV.
 


The

Constitutional Court then considered the matter under § 68 para. 2 of

the Constitutional Court Act. The Constitutional Court verified that the

Act whose provisions are proposed to be annulled was duly discussed and

approved by both houses of Parliament, was signed by the appropriate

constitutional representatives, and promulgated in the Collection of

Laws, and it stated that the Act was passed and issued within the bounds

of constitutionally provided jurisdiction and in a constitutionally

prescribed manner.
 

The

Constitutional Court then evaluated the content of the contested

provisions of the Act in terms of their consistency with constitutional

laws and international agreements under Art. 10 of the Constitution.
 

The

objections of the group of senators against the authorization of the

Ministry of the Interior for authoritative re-assignment of employees

from terminated district offices to the offices or regions, cities and

municipalities, can be divided into three most fundamental and important

ones: 1. a reference to violation of the right to self-government, 2. a

reservation about the forced nature of the labor of a compulsorily

re-assigned employee and 3. notice of the unclear and legally

insufficiently supported manner of deciding on re-assignment.
 


V.
 

The

guarantee of territorial self-government in the Constitution is

laconic. Alongside the differentiation of the local and regional levels

of self-government (Art. 99) territorial self-government is conceived as

the right of a territorial association of citizens, arising from its

characteristics and abilities, as the Constitutional Court stated in its

finding of 19 November 1996, file no. Pl. ÚS 1/96 (Collection of

Decisions of the Constitutional Court, volume 6, p. 375).

“The

Constitutional Court considers local self-government to be an

irreplaceable component in the development of democracy. Local

self-government is an expression of the capability of local bodies,

within the bounds provided by law, to regulate and govern part of public

affairs on their own responsibility and in the interest of the local

population.”
 

The

Constitution makes it possible to support this capability by, among

other things, establishing the legal subject status of territorial

self-governing units, and presumes that self-governing units have their

own property and manage themselves out of their own budget (Art. 101

para. 3). The democratic character of self-government is also confirmed

at the constitutional level in the guarantee of elected representative

bodies (Art. 101 para. 1 and 2 and Art. 102). Of course, the

Constitution also presumes uniform state regulation of self-government

in a statutory framework. The definition of that part of public affairs

which a local or regional association of citizens is capable of managing

is entrusted to the legislature, i.e. the state power (Art. 104), not

to the constitutional framers, who would define matters of local

significance at the highest level. The constitutions of a number of

other European states also rely on the authorization of the legislature

to define matters of territorially limited importance which are

entrusted to territorial self-governing units.
 

The

right to self-government generally expressed by the Constitution

certainly may not be depleted by the legislature, but it is certain that

the legislature has wide space to determine which affairs are best

managed at the local or regional level without greater interference by

the central state power. It is difficult to determine in advance,

non-politically, expressly from legal, economic, political and other

points of view, which matters have local or regional effect and

therefore deserve to be taken out of the purview of the central power.

Decision making about the jurisdiction of territorial self-government is

always political.. Even matters of clearly local or regional character

can acquire state-wide significance, for example, fundamental human

rights and freedoms may be affected or consequences can be carried

across the borders of the territorial self-governing association of

residents, which is increasingly frequent in an environment with a

highly mobile population.
 

It

can not be overlooked that the Constitution expressly presumes (Art.

105) that territorial self-governing units will share in the exercise of

state power on the basis of statutory authorization. Such sharing of

the exercise of state power of course brings with it the subordination

of self-governing units to state inspection, the purpose of which is to

ensure quality exercise of state power. This subordination must also,

understandably, be based on statute. The constitutional does not say

unambiguously whether the exercise of state administration can be

imposed upon territorial self-governing units compulsorily, or whether

it is possible to execute such statutory transfer only on the basis of

an agreement between the state and the territorial self-governing unit.

In light of the emphasis on self-government, the requirement of a

consensus would certainly appear stronger. On the other hand, however,

it is evident that uniform exercise of state power under transferred

jurisdiction by municipalities, cities, and regions is generally

accepted in this country and has never been disputed as incompatible

with the right of territorial associations of citizens to

self-government. Even the group of senators does not dispute it, as

such, in its petition to annul some provisions of Act no. 320/2002 Coll.
 

The

Czech constitutional standard of local self-government is supplemented

and enriched by a standard which arises from the international

obligations of the Czech Republic, namely from the Charter of Local

Self-Government, agreed on 15 October 1985, which entered into force for

the Czech Republic on 1 September 1999, published in the Council of

Europe under no. 122 ETS and in the Czech Republic under no. 181/1999

Coll. and no. 369/1999 Coll.
 

The

Local Charter is not a classic agreement on human rights; it does not

concern individuals, but associations of citizens, and it establishes

collective rights. The idiosyncrasies of interpreting and applying it

follow from this. The rules it expresses, which create the European

standard of local self-government, can only with difficulty be

self-executing. The European standard of territorial self-government is

expressed by qualities which a party’s self-governments are to exhibit,

or rights which they are to enjoy. The parties have an obligation to

guarantee their territorial self-governments a certain number of such

rights determined by the Local Charter. Rights guaranteed by the Local

Charter to the territorial self-governments of the parties are a

framework. The Local Charter itself, in a number of provisions, presumes

detailed domestic law regulation which surely represents bounds within

which territorial self-government will apply. It definitely does not

guarantee the full freedom of territorial self-government. That is not

the European tradition. Statutes, or other regulations, depending on the

choice and tradition of the parties, may define in detail the range of

matters managed by territorial self-government, including those which a

self-governing unit has an obligation to pursue, its organization,

including the form and status of individual bodies, may determine the

framework for management, and may allocate property and financial

resources. The Local Charter certainly does not make territorial

self-governing units into sovereign bodies similar to states.
 

The

Local Charter is not equipped with strict instruments for implementing

itself; it lacks a mechanism for handling complaints on the part of

self-government concerning its violation on the part of states-parties,

let alone an effective targeted instrument for implement standards

against states which are really violating the Local Charter. Only

political instruments are available; the parties have an obligation to

inform the Council of Europe on changes in the legislative framework

(Art. 14), the Council of Europe prepares regular reports on the

condition of territorial self-government and bodies functioning within

in which represent territorial self-government and institutions

monitoring the condition and development of territorial self-government

in individual members states, first the Congress of Local and Regional

Authorities of Europe. Nonetheless, a uniform authoritative

interpretation of the provisions of the Local Charter which would

separate cases of permissible state regulation from incompatible

regulation, is lacking. The recommendations of the bodies and

institutions of the Council of Europe to states, vis-à-vis their

legislation and practice concerning territorial self-government have

only limited significance. Generally they do not rely on provisions of

the Local Charter.
 

Of

course, the weakness of instruments for implementing the Local Charter

changes nothing about its binding nature. The Local Charter is not a

mere declaration; it is a true international agreement, which binds the

parties to it. On the basis of a conception of the constitutional order

that is broad and responsive to international law (Art. 112 para. 1 in

connection with Art. 1 para. 2 of the Constitution, as amended), the

Constitutional Court is authorized to evaluate the consistency of the

Czech Act with international law [Art. 87 para. 1 let. a) of the

Constitution, as amended]. The framework nature of the Local Charter and

the specific nature of the collective rights it expresses do not

prevent it from being used as a measure for the abstract review of the

constitutionality of statutes. However, one can not forget its general

character, which opens a wide space for political deliberation of the

legislature of a state party when creating the relevant legislative

framework. The Constitutional Court is decidedly not called upon to

re-evaluate this political step; it merely verifies whether the bounds

created by the Local Charter were not exceeded.
 

One

can conclude from provisions of the Constitution and of the Local

Charter that statutory limitations and instructions for the application

of territorial self-government are permissible. In the aggregate, of

course, these rules can not remove territorial self-government

completely. However, an individual regulation can be relatively strict

and restrictive, if there are important, justifiable reasons for this.
 

The

Local Charter does not contain express provisions on transferring the

exercise of state power to territorial self-governing units. Certainly

for that reason international law does not prohibit the Czech Republic

from it, but excessive burdening of self-governing units with the

exercise of state administration may endanger their property and

financial independence. Moreover, the extensive exercise of transferred

jurisdiction by territorial self-government bodies can lead their

officials into a “schizophrenic” position, where they must

simultaneously take into account both the interests of the territorial

association of persons and the interests of the state. However, the

Local Charter can not be read to prohibit the forced exercise of state

administration by self-government. In connection with the Czech reform

of territorial administration, the Congress, in its recommendation for

the Czech Republic, no. 77 of 2000, supported strengthening independent

jurisdiction, among other things because this would reduce

self-governing units’ dependence on the state when exercising

transferred jurisdiction. Thus, the Council of Europe is aware of the

problems which the transfer of state power to self-governing units

causes for their functioning. However, this transfer was also one of the

main elements of decentralization in the Czech Republic implemented by

reform of public administration in 2000 (by Acts no. 128/2000 Coll., no.

129/2000 Coll. and no. 131/2000 Coll., on the Capital City of Prague,

and other legal regulations). Thus, only with difficulty can it be

considered incompatible with the Local Charter’s main direction.
 

The

transfer of officials from terminated district offices is related to

the transfer of the exercise of state power to regions and selected

cities and municipalities. Basically the entire agenda entrusted to them

is defined by Act no. 320/2002 Coll. as transferred jurisdiction. At

the present time, when the regional level of self-government is still

being created, one can justifiably have doubts about the ability of

regions to immediately ensure the exercise of state power with their own

forces. To a certain extent the same applies to newly authorized cities

and municipalities which, although they have existed for more than ten

years, will understandable never have as extensive and specialized an

expert apparatus as the regions. Therefore, authoritative re-assignment

can be understood as a transitional measure. A certain space is opened

to regions and authorized cities and municipalities for a gradual change

of personnel, according to their aims, through reorganization, applying

qualification requirements, and so on. This process will be subject to

only limited inspection by central state bodies, whose only purpose is

to prevent the regions, cities, or municipalities from endangering or

failing in the exercise of state administration in transferred

jurisdiction. Although permitting authoritative re-assignment by Act no.

320/2002 Coll. is a limitation on the autonomy of municipalities,

cities and regions to determine the numbers of employees of their

municipal, city or regional office [§ 102 para. 2 let. j) of the Act on

Districts or § 59 para. 1 let. b) of the Act on Regions], but it is a

lawful limitation. The provision on authoritative re-assignment under

Act no. 320/2002 Coll. functions in this regard as a lex specialis

vis-à-vis the cited provisions of statutes on territorial

self-government.
 

Authoritative

re-assignment is a turning away from the principle of the autonomy of

local associations (territorial self-governing units) to create their

own administrative structures (Art. 6 para. 1 of the Local Charter). In

view of the idiosyncrasies indicated, this can hardly be considered a

violation of the Local Charter. A new model of territorial

self-government connected with the broad exercise of uniform state

administration is still being created in the Czech Republic. The wording

of the Local Charter is reserved; this international agreement speaks

of autonomy defined by more general statutory bounds.
 

Authoritative

re-assignment of officials from terminated district offices to regions

and authorized cities and municipalities does represent a certain

interference with the property situation of the territorial

self-governing unit; municipalities, cities, and regions have legal

subject status separate from the state, are furnished with their own

property, and manage themselves under their own budget (Art. 101 para. 3

of the Constitution). However, detailed statutory regulation of the

management of territorial self-government is permissible;

self-government does not mean that local associations have sovereignty

(Art. 101 para. 4 of the Constitution).
 

Czech

territorial self-government is not fully independent in economic

management in other respects as well. Taxes are collected uniformly in

the territory of the entire state under state-wide legislation; only

with some taxes and fees does the state, by its legislation, permit the

municipalities, cities, and regions to range within certain bounds in

setting rates. The state also determines the manner of distributing tax

revenues, today with a high degree of redistribution [Act no. 243/2000

Coll., on the Budgetary Allocation of Revenues from Certain Taxes to

Territorial Self-governing Units and Certain State Funds (the Budgetary

Allocation of Taxes Act)]. Large differences in the property of regions,

municipalities, and cities also resulted from the transfer of para. of

state property (Act no. 172/1991 Coll., on the Transfer of Some Things

from the Czech Republic to Municipalities). The management of cities,

municipalities, and regions is markedly influenced by the subsidizing

activities of central state bodies. The effect of investments made in

municipalities directly by the state on local or regional situations is

not negligible. The compensation framework for office holders and

employees of territorial self-governing units is also state-wide. The

management of municipalities, cities, and regions is also markedly

influenced by the urgency and demands of needs which they satisfy within

their independent jurisdiction.
 

Territorial

self-government truly separate from the state in terms of property,

comparable perhaps with early self-government in the USA, does not exist

in the Czech Republic, and implementing it is unimaginable for many

reasons. Comparable statutory definitions and limitations of the

functioning and securing of territorial self-governing units exist in

all European states. The Local Charter respects this fact and only

provides principles for sources of territorial self-government; they are

supposed to correspond to the tasks of territorial self-government

(Art. 9 para. 2) and they are to be applied as loosely as possible where

true self-governing activity is concerned (Art. 9 para. 1). The Local

Charter does not mention the financing of the exercise of state

administration by territorial self-government.
 

The

framework for financing territorial self-governing units, just like the

definition of their tasks, undoubtedly may not be economical but lead

to their financial collapse (Art. 100 para. 1 and Art. 101 of the

Constitution, Art. 9 para. 4 and 7 of the Local Charter). Therefore, the

view of authoritative re-assignment and the functioning of re-assigned

employees of terminated district offices within regions, authorized

cities and municipalities, in light of the Local Charter and of the

Constitution must depend on the manner of state financing of the

exercise of transferred jurisdiction. The present legal framework is not

quite clear. Individual statutes on territorial self-government count

on contributions for the exercise of state administration under

transferred jurisdiction (§ 62 of the Act on Districts, § 29 para. 2 of

the Act on Regions, as amended by later regulations). This contribution

is decided by the state executive branch (the government of the Czech

Republic, the Ministry of the Interior, the Ministry of Finance). The

cited statutes do not formulate a more detailed directive for

determining the amount of the contribution, and there is also no outline

of the procedures for negotiating this amount or dispute resolution

mechanisms. However, the terse statutory provisions on contributions can

still be interpreted in a manner which is constitutional and conforms

to international law so that they represent a guarantee for economically

incurred expenditures in the exercise of state administration under

transferred jurisdiction.
 

Therefore,

the Constitutional Court intends to refrain from premature

interference. However, it would take action if it found that the amount

of a contribution or circumstances for providing it clearly did not

correspond to the tasks assigned to a territorial self-governing unit.

Insufficient financing of the exercise of state power in transferred

jurisdiction endangers the very existence of functional territorial

self-government. Principles expressed by the Constitution and by the

Local Charter would thus be violated. However, more detailed legislative

regulation of the financing of the exercise of state administration by

territorial self-governing units appears desirable.
 


VI.
 

Evaluating

authoritative re-assignment of district office employees to offices of

territorial self-governing units by decision of the Ministry of the

Interior at the proposal of the chairman of the district office, in

terms of the objection of impermissibility of forced labor, can not be

done without a reminder of other comparable cases which our law permits.
 

Automatic

succession to the place of an employer takes place, for example, upon

the death of the previous employer, a natural person, where the heirs

become the new employer (taking into account probate rules and the

interests of the employee as a creditor), upon the merger of legal

entities of the same or different types, upon the splitting of legal

entities, upon the sale of a business or in connection with the

bankruptcy of an employer. A change in the management or membership of

an employer which is a business company or other legal entity can often

be more significant than a formal change of employer.
 

Undoubtedly

the main reason for automatically preserving the employment

relationship in these cases is to protect the employee from the threat

of unemployment. Some changes occur unexpectedly and also immediately

(the death of an employer); others can be foreseen, but they take place

relatively quickly (the sale of a business that is in trouble).

Permitting the successor to the rights and obligations of the employer

to end the employment relationship would open room for abuse of this

opportunity; an employer could implement many measures only in order to

get rid of his employment law commitments.
 

Another

reason for automatic preservation of the employment relationship in

these cases is to protect the property interests of the new employer,

who is usually the general successor in the legal relationships of the

original employer. The immediate departure of employees, who need not

all agree to continue the employment relationship, could cause an

employer not insignificant economic damages and in many business and

institutions there would also be a danger of endangering the interests

of third parties – customers and purchasers of goods and services – and a

state of general emergency also can not be ruled out.
 

Understandably,

the continuity of an employment relationship with a new employer is

imaginable only if the other requisites of the employment relationship

remain unchanged and correspond to the same conditions. This means

primarily the kind of work, compensation for it, the place of

performance of work or time conditions (the duration of the employment

relationship, work hours and time of rest). Other working conditions are

provided compulsorily and remain unaffected by a change of employer;

for example, the rules for work safety.
 

In

the event of a foreseeable and prepared change on the part of the

employer, in certain outlined cases under the European standard, the law

newly introduces certain obligations of the current employer: to inform

employees or consult with trade unions. However, all this only confirms

that it is standard practice for an employee to be transferred to

another employer without his express consent, not only in the Czech

Republic, but also in West European states.
 

Transformation

of the private and public sector in the Czech Republic after 1990 was

accompanied countless times by a change in the legal form of the

employer. It is impossible not to refer to the extensive privatization

of the Czech economy. In these cases the continuity of an employment

relationship was never described as or understood to be the imposition

of forced labor. Authoritative re-assignment of state officials to

self-government units, i.e. only within the sector of the state power,

is, in this regard, a change which, in view of its effects on the

employee, is not among the most serious.
 

The

opportunity to refuse to work for a new employer is, with regard to the

employer’s justified interests, adequately ensured by the employee’s

ability to give notice without stating a reason, which is accompanied by

the obligation to work temporarily during a two month notice period.

This can be considered proportionate, in view of the usual possibilities

of an ordinary employer to find new employees.
 

The

employee’s obligation to work during the notice period represents a

certain “tax” on employees for the legislative stabilization of

employment relationships by a modern social state. Under these

conditions the employer also deserves a certain stabilization in the

area of employment relationships.
 

The

Constitutional Court has not yet expressed an opinion on these aspects

of the exercise of employment in terms of fundamental rights under Art. 9

of the Charter. The case law of the European Court for Human Rights

also does not support the position of the group of senators, in

reflecting Art. 4 of the Convention, which prohibits slavery or forced

labor. Also, no authoritative interpretation going against the model

foreseen by Act no. 320/2002 Coll. is presented in this regard in

relation to the right to earn one’s living in freely chosen employment

under Art. 1 para. 2 of the European Social Charter. The Convention on

Forced or Authoritative Labour (no. 29) of the International Labour

Organization (no. 506/1990 Coll.), which is aimed at slavery and feudal

practices and obligatory manorial labor can scarcely be seen as an

obstacle to this model. Nor does a cursory foreign comparison help. The

German Constitutional Court has not, in any case cited in the

specialized publications, spoken unfavorably on the comparable German

legal framework.
 

The

following facts can be stated concerning the authoritative re-assignment

of employees, officials of district offices, to municipal, city, and

regional offices, which is prescribed by Act no. 320/2002 Coll.
 

The

kind of work performed remains the same or comparable, the appropriate

territorial self-governing unit steps into the position of the state as

employer if the activity of the employee concerned is transferred to the

jurisdiction of the territorial self-governing unit. Each particular

case certainly depends on how the kind of work is defined in the

employment agreement. The need for a consensual change in the kind of

work is surely routine within the transfer of the exercise of state

administration.
 

Payment

conditions are preserved, and Act no. 143/1992 Coll., on Salaries and

Compensation for Work Readiness in Budgetary and Some Other

Organizations and Bodies, in the current version, will continue to

apply.
 

In view of the fact

that regional offices and city and municipal offices are usually located

in different municipalities and cities than the terminated district

offices, it will be common for bureaucrats to move. In all cases of

authoritative re-assignment to a workplace in a different municipality,

an agreement on a change in the place of performance of work after 1

January 2003 is necessary between the bureaucrat of the district office

assigned to handle employment law relationships and the relevant

employee.
 

A district office

employee who rejects his re-assignment to an authorized territorial

self-governing unit could have prevented it by giving timely notice of

termination of his employment relationship. The final schedule for

termination district offices has been known half a year in advance, and

the reform of the decentralized exercise of state administration has

been under preparation even longer. In view of the qualification of the

employees concerned, the bureaucrats of district offices, and in view of

the role of district offices in implementing the reform, one can not

agree that they have been insufficiently informed about changes which

will affect them personally.
 

The

authoritative re-assignment of district office employees in practice is

described by the Ministry of the Interior’s Method Instruction for the

Implementation of the Transfer of Employees of District Office to

Territorial Self-Governing Units of 9 July 2002, which expects that some

of the employees of terminated district offices will refuse to transfer

to a territorial self-governing unit in view of the change of

workplace, and concludes that in such cases it is possible for the

district office as employer to give termination notice on grounds of

redundancy caused by organization changes. This Instruction also takes

into account the need for a change in the kind of work performed, and

emphasizes the necessity of an agreement between the employee and

employer. In the absence of agreement there is here too the possibility

of termination notice given to an employee on grounds of redundancy. For

internal purposes the Ministry of the Interior selected an

interpretation of the relevant provisions of Act no. 320/2002 Coll. that

protects the position of the bureaucrats in terminated district offices

above the constitutional or international standard, which can only be

welcomed.
 


VII.
 

Objections

concerning the failure to observe legal form point out the brevity of

provisions of Act no. 320/2002 Coll., which do not expressly answer

every question. For example, it is not evident to what extent, if at

all, the Ministry of the Interior is bound by the proposal from the

chairman of a terminated district office and the recommendation of the

director of a regional office. An indication of how to resolve

disagreements between the chairman’s proposal and the director’s

recommendation is also lacking. The tasks of the regional office

director and the expectations to which he is subjected are not easy; the

director is supposed to simultaneously defend the interests of the

region and the interests of the state in the exercise of state power by

the region and in inspection of municipalities and cities in their

exercise of state power.
 

The

nature of individual decisions by the Ministry on the authoritative

re-assignment of employees from terminated district offices to regions,

cities and municipalities also appears to be disputed. The decisions –

whether taken collectively for entire districts or regions or separately

for individual departments and divisions and individual cities or

municipalities – can best be characterized as collected legal acts;

however, they are not normative acts, as they regulate the legal

relationships of precisely specified natural persons (the re-assigned

bureaucrats) and legal entities (the appropriate regions, authorized

cities and municipalities). The source of law remains solely provisions

of Act no. 320/2002 Coll.
 

Act

no. 320/2002 Coll. does not provide more precise rules for how to take

into account agreements under point 3 when preparing and issuing

decisions on authoritative re-assignment. It is evident that

authoritative re-assignment would occur anyway, in an extent which

corresponds to the number of functions transferred, without regard to

such consensus. Nevertheless, the legislature made possible agreements

between the employee, the state (represented by the district office) and

a territorial self-governing unit. It thereby opened room to apply the

solution which best suits the parties. In view of the previously evident

extent of the transfer of the exercise of state administration to

territorial self-governing units, there are no grounds for concern that a

territorial self-governing unit which was forthcoming in concluding

re-assignment agreements would remain disadvantaged.
 

There

is a danger of inequality perhaps in those cases of authoritative

re-assignment where functions are divided not according to the

population density of the administered territory, but according to the

idiosyncrasies of its territory, population, economy and cultural and

social situation. The projection of these facts need not always fully

correspond to social needs, and then there is a danger of inequality

arising between individual territorial self-governing units. However,

the interference requested of the Constitutional Court out of fear of

such cases appears premature and exaggerated.
 

A

decision on authoritative re-assignment is reviewable by a court. As a

decision by a body of state (public) administration, which decides on

the entitlements and obligations of subjects of law (the affected

bureaucrats, employees, and appropriate regions, cities and

municipalities), it is subject to judicial review under Art. 36 para. 2

of the Charter, as neither Act no. 320/2002 Coll. nor any other statute

expressly excludes a decision of the Ministry from judicial review. In

view of the probable effect on fundamental rights and freedoms and

fundamental principles of state organization, such exclusion would

evidently be inconsistent with the Charter and the Constitution.
 


VIII.
 

After

reviewing the case at issue and analyzing the matter in terms of the

conformity of provisions of Act no. 320/2002 Coll. with the

constitutional order, the Constitutional Court concluded that

authoritative assigning of the exercise of state power to territorial

self-governing units arising from the contested provisions, including

the re-assignment of employees is compatible with the Constitution. The

manner of financing the exercise of state power by territorial

self-governing units, assuming that the state contribution will be

sufficiently high for the performance of the assigned tasks, does not

represent a danger to the autonomy of territorial self-governing units

under the Constitution and the Charter of Local Self-Government. The

authoritative re-assignment of employees from terminated district

offices can not be seen as forced labor. The legal instruments

introduced into the law in connection with the termination of district

offices and the transfer of the exercise of state administration to

authorized bodies of territorial self-governing units are acceptable

from a constitutional viewpoint.
 

The

contested provisions of Act no. 320/2002 Coll. were not found

inconsistent with the constitutional order, as is required for making a

finding of derogation by Art. 87 para. 1 let. a) of the Constitution of

the Czech Republic no. 1/1993 Coll., as amended by constitutional Act

no. 395/2001 Coll., and therefore the Constitutional Court denied the

petition from the group of senators to annul points 2, 5, 6, 7, 8, 9 and

11 Art. CXVII of Act no. 320/2002 Coll., Amending and Repealing Certain

Acts in Connection with Ending the Activities of District Offices,

under § 70 para. 2 of the Act on the Constitutional Court.

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

Brno, 5 February 2003