2003/06/24 - Pl. ÚS 39/02: Waste Ordinance

24 June 2003

HEADNOTES
A petition to

annul the generally binding municipal ordinance issued within

independent jurisdiction was submitted by an authorized state

administration body – the head of the district office (§ 64 par. 3 of

Act no. 182/1993 Coll., on the Constitutional Court).

However,

the district offices, which were run by the heads, were terminated as

of 31 December 2002 as part of the reform of local and regional

administration (Act no. 320/2002 Coll., Amending and Repealing Certain

Acts in Connection with Terminating the Activity of District Offices).

As of 1 January 2003, the minister of the interior is authorized to

submit a comparable petition [§ 64 par. 2 let. g) of the Act on the

Constitutional Court], and does so at the instigation of the relevant

regional office authorized to supervise the exercise of municipal

self-government (§ 123 et seq. of the Act on Municipalities).

The kind of proceedings before the Constitutional Court remains the

same, there has merely been a change in the body competent to submit a

petition. However, there is no reason to consider this change to be a

change in the petitioner. Both the head of the district office and the

minister of the interior acted (acts) in the name of the state. The head

of the district office and the minister of the interior represented, or

represent, the same interest in the legality of the law of municipal

self-government. When district offices were terminated, regional offices

and the Ministry of the Interior took over this agenda, and thus they

are informed of on-going of the Constitutional Court proceedings on

petitions from chairmen of district offices to annul generally binding

municipal ordinances, so that they can change supervisory policy within

the bounds of the rules of procedure for proceedings before the

Constitutional Court without being called upon to do so. However, they

can not withdraw a petition (§ 77 of the Act on the Constitutional Court

a contrario).



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Plenum of the Constitutional Court, composed of JUDr. Vojtěch Cepl,

JUDr. František Duchoň, JUDr. Miloš Holeček, JUDr. Vladimír Jurka, JUDr.

Vladimír Klokočka, JUDr. Jiří Malenovský, JUDr. Jiří Mucha, JUDr.

Antonín Procházka, JUDr. Pavel Varvařovský, JUDr. Miloslav Výborný,

JUDr. Eliška Wagnerová, and JUDr. Eva Zarembová, ruled on a petition

from the head of the District Office in Nový Jičín to annul the

generally binding ordinance of the municipality of Vražné no. 02/2001 on

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

transport, sorting, use, and removal of communal waste of 12 December

2001, as follows:

The

part of article 6 par. 2 which reads “(can be replaced by a written

affidavit from the owner of the real estate where the exempt payer is

registered for permanent residence)” and the part of article 9 par. 2

which reads “or a person provided in article 3 of this ordinance” and

the entire article 7 par. 2 of the generally binding ordinance of the

municipality of Vražné no. 02/2001 on a local fee for operation of the

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

communal waste of 12 December 2001 is annulled as of the day this

judgment is promulgated in the Collection of Laws.

The petition to annul other provisions of this generally binding ordinance is denied.
 



REASONING

On

5 November 2002 the Constitutional Court received a petition from the

head of the District Office  in Nový Jičín to annul the generally

binding ordinance of the municipality of Vražné no. 02/2001 on a local

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

sorting, use, and removal of communal waste of 12 December 2001, which

reads as follows:

The representative body of the

municipality of Vražné issues on 12 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), § 35 and § 84 par. 2 let. i) of Act no.

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

generally binding ordinance on a local fee for operation of the system

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

communal waste (the “communal waste handling system”).

Part I Basic Provisions
Article 1
1.  

 The municipality of Vražné collects a local fee for operation of the

“communal waste handling system” (the “communal waste fee”).
2.  

 The local fee is administered by the District Office in Vražné the “fee

administrator”). Proceedings in matters concerning this local fee are

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

Fees, as amended by later regulations.
Part II The Fee for Communal Waste (the “Fee”)

Article 2 Subject of Fee
1.  

 The Fee is collected for operation of the “communal waste handling

system” in the municipality of Vražné, which is set in the generally

binding ordinance of the municipality of Vražné no. 01/2001, on a local

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

sorting, use, and removal of communal waste of 12 December 2001, which

enters into effect on 1 January 2002.

Article 3 The Fee Payer
2.  

 A Fee Payer is every natural person with permanent residence in the

municipality, as well as a natural person who owns a building designated

or serving for individual recreation located in the municipality of

Vražné, in which no person is registered for permanent residence.
3.  

 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

(together with handing in the completed “notice of joint representative”

on the form, a sample of which is attached in appendix no. 1 to this

generally binding ordinance.
4.    If a building designated or

serving for individual recreation, in which no person is registered for

permanent residence is owned by several people, they are required to pay

the fee jointly and severally, in an amount corresponding to the fee

for one natural person.

Article 4 Obligation to Notify
1.  

 If the fee obligation arises or changes in respect of a fee payer who

is a natural person who owns a building designated or serving for

individual recreation located in the municipality of Vražné, and in

which no natural person is registered for permanent residence, the fee

payer is required to notify the fee administrator of that fact within 15

days from the day the fee obligation arises or changes.

Article 5 Local Fee Rates
1.    The annual Communal Waste Fee is:
A)  

 for a natural person who has permanent residence in the municipality

of Vražné, CZK 150. The Fee consists of: a) a component set under § 10b

par.3 let. a) of Act no. 565/1990 Coll., on Local Fees, in the amount of

CZK 15, b) a component set under § 10b par. 3 let. b) of Act no.

565/1990 Coll., on Local Fees, in the amount of CZK 135.
B)    for a

natural person who owns a building designated or serving for individual

recreation, located in the municipality of Vražné, in which no natural

person is registered for permanent residence, CZK 150. The fee consists

of: a) a component set under § 10b par. 3 let. a) of Act no. 565/1990

Coll., on Local fees, in the amount of CZK 15, b) a component set under §

10b par. 3 let. b) of Act no. 565/1990 Coll., on Local Fees, in the

amount of CZK 135.
The allocation of expenses incurred by the

municipality of Vražné for the collection and conveying of unsorted

communal waste per 1 natural person per year is provided in appendix no.

2 to this ordinance.

Article 6 Exemption
1.  

 The following are exempt from the Fee: a) a natural person who is

registered for permanent residence in the municipality but is

demonstrably not abiding in the municipality (e.g. a long-term stay

abroad, basic military service, a stay in a place of study, a stay in a

rehabilitation or other treatment facility ).
2.    The fee payer

cited in article 3 is required to demonstrate to the fee administrator

by 31 January of each calendar year that the grounds for exemption

continue to exist (this can be replaced by a written affidavit from the

owner of real estate where the exempt fee payer is registered for

permanent residence).
3.    Exemption from the fee expires if the grounds for exemption expire.

Article 7 Creation and Termination of the Fee Obligation
1.  

 The fee is paid from the first day of the month following the day when

the fee obligation arose, for individual months until the end of the

calendar year, in the amount of 1/12 of the specified annual rate.
2.  

 If the fee obligation terminates, the obligation to pay the fee

terminates upon expiration of the month in which that circumstance arose

(see Obligation to Notify – article 4 par. 1) of this ordinance).

Article 8 Fee Due Dates
1.    The fee is due in semi-annual payments without assessment, by 31 March and 30 September of each calendar year.
2.    The fee can also be paid once for the entire year, by 31 March.
3.    If the fee obligation arises during the year, the fee is due within 30 days from the time the fee obligation arises.

Article 9 Transitional, Joint and Closing Provisions
1.  

 If the fee is not paid by the deadline set under article 8 of this

ordinance or in the correct amount, the fee administrator shall assess

the fee by payment assessment, and may increase fee by up to 50%.
2.  

 If the fee payer or a person cited in article 3 of this ordinance does

not meet a non-monetary obligation imposed by this ordinance, the fee

administrator can repeatedly impose a fine under § 37 a § 37a of Act no.

337/1992 Coll., on Administration of Taxes and Fees, as amended by

later regulations.

Article 10
1.  

 If a fee payer does not meet a fee obligation specified by this

generally binding ordinance, a fee can be assessed until three years

from the end of the calendar year in which the fee obligation arose.
2.  

 If an action aimed at assessing the fee or additionally setting it was

taken before the expiration of that deadline, the three-year period

begins to run again from the end of the year in which the fee payer was

informed of that action.

Article 11 Effect
This generally binding ordinance enters into effect on 1 January 2002.
Ludmila Šubová, Deputy Mayor of the municipality of Vražné
Ing. Vladimír Nippert, Mayor of the municipality of Vražné
Appendices:

no. 1 – Notice of a joint representative, no. 2 – Allocation of

expenses of the municipality of Vražné for collection and conveying of

unsorted communal waste
Appendix no. 1 – sample form (not reproduced)
Appendix no. 2 Allocation of expenses of the municipality of Vražné for the collection and conveying of unsorted communal waste
Initial data:
Population of municipality as of 30 November 2001 = 840
Number of buildings designated or serving for recreation = 20
Total expenses of the municipality of Vražné for waste management in 2000 = CZK 11,5928
Allocation of expenses per 1 natural person per year CZK 11,5928 /860 = CZK 135
Resulting fee amount (under §10 par. 3 let. b) of Act no. 565/1990 Coll., on Local Fees): CZK 135
Prepared by: Ing. Vladimír Nippert
In Vražné, 30 November 2001


The

petitioner submitted this petition as part of supervision of the

exercise of independent municipal jurisdiction, as he concluded that the

key provisions in the ordinance violate the law. He stated that the

self-governing unit exceeded its statutory authorization. The defects

are serious enough that it was necessary to suspend enforcement of the

ordinance, but the municipality did not remedy the situation within

three months.
 

The head of

the district office pointed to the unique nature of local fees, the

introduction and scope of which are decided, based on statutory

authorization and within its bounds, by a municipality itself, within

its independent jurisdiction [§ 1 and § 35 of Act no. 128/2000 Coll., on

Municipalities (Municipal Establishment) ]; however, this possibility

need not be made use of. A fee has the nature of a local tax; it is a

mandatory, non-targeted, non-equivalent and non-refundable payment,

which becomes the municipality’s revenue. Certain regulatory and

protective elements are also important. The head of the district office

emphasized the constitutional limits on taxation given by Art. 11 par. 5

of the Charter of Fundamental Rights and Freedoms and by Act no.

565/1990 Coll., on Local Fees, as amended by later regulations. Under

this Act, special regulations apply to proceedings, specifically Act no.

337/1992 Coll., on Administration of Taxes and Fees, as amended by

later regulations. The administration of local fees is authoritative in

nature, a municipality introduces it within its independent

jurisdiction, and the district office administers it within its

transferred jurisdiction. Administration can be divided into individual

proceedings, but it can not be divided between the municipality and its

office. A municipality is not authorized, in the exercise of

self-government, to overstep the bounds of the law, and the

administrator can not heal such transgression. The administration of

taxes is not a municipality’s subjective right, it is only a statutorily

determined jurisdiction. The municipal office must act as tax

administrator, it is not possible for it to fail to implement the public

power.      
 

Act

no.185/2001 Coll., on Waste, and Amending Certain Other Acts, considers

the municipality to be the originator of waste which has its origin in

the activities of natural persons not subject to special regulations,

once it is deposited in a place designated thereto. At the same time,

the municipality’s right, in its independent jurisdiction, to govern the

waste handling system by a generally binding decree is preserved.

Residents are required to place waste in designated places (§ 17 par. 2

and 4 of the Act on Waste).
 

The

related amendment to the Act on Local Fees does not interfere with the

concept of local fees. However, the municipality did not respect this

because, in conflict with the law, when issuing generally binding

ordinances, it used the content of one ordinance to bind another

ordinance (Art. 2 of the ordinance, which points to ordinance no.

01/2001) which falls under a different statutory regime. Only

statutorily set criteria can be followed when building a system of

communal waste handling. Setting rules for handling waste are an

instance of optional administration, and the same applies to setting a

local fee. The subject of a local fee is something which can be

objectively ascribed to fee payers; in the case of a waste fee it is

permanent residence or owning a building. Of course, fee payers can not

influence the operation of the communal waste handling system.
 

Under

the Act on Local Fees the obligated party is a person called the fee

payer, and proceedings are governed by that Act. The self-governing unit

must respect the terminology of the Act, and a legal regulation which

it creates may not give that terminology different meaning, e.g.

interchange “payer” and “fee payer.” Under the Act on Local Fees a joint

representative is not a fee payer or payer. This person may be

authorized by a fee payer to administer payment, but has no financial

obligation, and thus one can not be imposed on him under § 37 and § 37a

of the Act on Administration of Taxes and Fees.
 

Section

15 of the Act on Local Fees requires a municipality to announce the

obligation to notify together with a deadline for the fee payer. The

disputed ordinance does not comply with the Act and defies logic. The

obligation to notify is not imposed on a natural person with permanent

residence in the municipality. Moreover, it is not clear whether a

“change” in the obligation also includes its termination. Under Act no.

133/2000 Coll., on Record-Keeping of Residents and Personal

Identification Numbers and Amending Certain Acts (the Act on

Record-Keeping of Residents), district offices are users of data from

the information system on residents with permanent residence, but a

municipality can not drop the obligation to notify and make use of its

access to these data in order to create a register of fee payers.
 

The

rate of fees is composed of two parts, one of which may be zero. The

first, in a range of CZK 0-250, results from the political will of the

municipality, or its representative body [§ 10b par. 3 let. a) of the

Act on Local Fees]; the municipality can set the second, up to CZK 250,

based on its actual expenses for the collection and conveying of

unsorted communal waste in the previous year [let. b)]. The municipality

is to provide an accounting of expenses for the previous year and their

allocation per resident in an appendix to the ordinance. The ordinance

provision refers to the statutory formulation, but the appendix is

identified differently. The petitioner believes that the municipality

does not have available accounting documents for setting the second part

of the fee, set at CZK 135, as the first part is CZK 15. Of course,

nothing prevents setting only the first part of the fee.
 

An

affidavit from the owner of the real estate where a fee payer is

registered for permanent residence can not be used to exempt those in

defined categories of persons abiding outside the municipality on a

long-term basis. Under § 39 of the Administrative Procedure Code, this

is not used in tax proceedings.
 

The

petitioner believes that the contested ordinance’s provision on the

creation and termination of a fee payment obligation, insofar as it sets

an obligation to pay beginning with the month following after the day

the fee payment obligation arises, conflicts with the Act on Local Fees.

Under that Act, what is decisive is the situation at the end of the

month which is the first or last of the months for which a proportional

part of the fee is paid.
 

Likewise,

the provision on the payment being due within 30 days for persons for

whom the fee payment obligation arises during the year unjustifiably

establishes inequality with persons who have a permanent obligation, who

have the opportunity to make payments on 31 March and 30 September.
 

The

provision on a three-year period for collecting a due fee does not

correspond to § 12 of the Act on Local Fees, which mentions a due

amount. Statutory interpretation of the term used in the ordinance

provision can not be admitted, the possibility of assessing only due

fees does not make sense.
 

According

to the petitioner, by issuing the contested ordinance the municipality

claimed unlawful jurisdiction, as it imposes obligations beyond the

scope of the law and not based on it. The head of the district office

does not consider power thus applied to be a service to citizens.
 

In

his position statement, the mayor of the municipality of Vražné, in its

name, emphasized that the new legal framework addresses the problem of

liquidating communal waste fairly, better than in the past, when only

some households delivered waste for collection and paid for its

processing, and the rest got rid of it in ways detrimental to the

environment. The issuance of the ordinance was preceded by a number of

training seminars by the state administration, but there was not time to

make it more precise, as the regulation had to be available as of 1

January 2002. The district office in Nový Jičín was consulted about the

ordinance concept, and it only began to question its lawfulness

subsequently.
 

The Ministry

of the Interior – the civil administration department whose opinion the

Constitutional Court judge rapporteur requested, although it is not a

party to the proceedings – points out in its statement that the issue of

local fees is in the jurisdiction of the Ministry of Finance, and the

issue of waste falls under the Ministry of the Environment. Nonetheless,

it expresses an opinion on the petition. It points out that the

municipality chose to manage local waste through a local fee for

operation of the waste handling system. It considers the authorization

of the municipal office to administer the local fee to be an exercise of

independent municipal jurisdiction which is compatible with the Act on

Municipalities. The reference to another generally binding ordinance of

the same municipality does not appear to be unlawful. The definition of a

fee payer is in accordance with the Act on Local Fees. The possibility

of applying penalties against a joint representative does not appear to

be lawful; fee payer status is governed by a mandate agreement under the

Civil Code. Tax procedure law also forbids transferring a tax

obligation to another party. The Ministry considers it disputable

whether it is indispensable to use data from the record-keeping of

residents for this tax administration, where indispensability is a

prerequisite for such use to be legal. It is not clear from the appendix

to the ordinance what precisely is included in the expense item that is

decisive for calculating the fee. A municipality may, based on the Act

on Local Fees, provide exemptions from fee, but it is not clear to the

Ministry to what extent it can regulate the manner of proving the

grounds for such exemption. The creation and termination of a fee

payment obligation is consistent with the Act’s provisions. The due

dates for new fee payers are evidently discriminatory. Evidently the

municipality meant by the term “assessment of a fee” the statutory

concept “assessment of a due amount”; a strict interpretation would rule

out collecting a due amount exceeding the set fee.
 

The

petition to annul the generally binding municipal ordinance issued

within independent jurisdiction was submitted by an authorized state

administration body – the head of the district office (§ 64 par. 3 of

Act no. 182/1993 Coll., on the Constitutional Court).
However, the

district offices, which were run by the heads, were terminated as of 31

December 2002 as part of the reform of local and regional administration

(Act no. 320/2002 Coll., Amending and Repealing Certain Acts in

Connection with Terminating the Activity of District Offices). As of 1

January 2003, the minister of the interior is authorized to submit a

comparable petition [§ 64 par. 2 let. g) of the Act on the

Constitutional Court], and does so at the instigation of the relevant

regional office authorized to supervise the exercise of municipal

self-government (§ 123 et seq. of the Act on Municipalities).
 

The

kind of proceedings before the Constitutional Court remains the same,

there has merely been a change in the body competent to submit a

petition. However, there is no reason to consider this change to be a

change in the petitioner. Both the head of the district office and the

minister of the interior acted (acts) in the name of the state. The head

of the district office and the minister of the interior represented, or

represent, the same interest in the legality of the law of municipal

self-government. When district offices were terminated, regional offices

and the Ministry of the Interior took over this agenda, and thus they

are informed of on-going of the Constitutional Court proceedings on

petitions from chairmen of district offices to annul generally binding

municipal ordinances, so that they can change supervisory policy within

the bounds of the rules of procedure for proceedings before the

Constitutional Court without being called upon to do so. However, they

can not withdraw a petition (§ 77 of the Act on the Constitutional Court

a contrario).
 

The

petitioner’s thoughts on the subject of the disputed local fee, the

concept of local fees, and its connection to residents with permanent

residence, real estate, or communal waste itself are not decisive for

reviewing the contested municipal regulation, which basically does what

is expected by the new statutory framework on financing the collection

of communal waste, i.e. it makes more specific the relevant provisions

of the Act on Local Fees for the municipality’s particular situation

through its self-governing body. Section 14 of the Act on Local Fees

itself speaks of a fee for the operation of a local waste handling

system. The connection to a resident with permanent residence and other

owners is given on the basis that it is these persons who produce

communal waste, the collection of which is to be ensured by the

municipality out of the revenues from the cited fee.
 

Likewise,

it is not of fundamental importance whether the municipal ordinance

cites another ordinance which is closely related to the issue at hand,

even though it was passed on the basis of the Act on Waste. This

practice does not amount to binding one ordinance by another (though it

may be indirect amendment). Anyway, ordinances are passed by the same

body – the municipal representative body [§ 84 par. 2 let. j) of the Act

on Municipalities] – and the legislative procedure is the same (§ 87 of

the Act on Municipalities), so the problem with such community

legislative practice can be seen at most in the non-transferred or

insufficient reference to the authorizing statutes in the introduction

of the ordinances and in the unclear arrangement of community

regulations.
 

The ordinance

does not use the term “payer,” so the petitioner’s objections that it is

interchanged with the term “fee payer” are groundless. However, there

are grounds for the objection concerning distinguishing a joint

representative from a payer or fee payer. The Act on Local Fees is

unclear in defining the role of the joint representative. It is evident

that the joint representative acts on the basis of expressed or

unexpressed consensus with the other members of a household, or

analogously, an owner or administrator of an apartment building in

agreement with its residents. The statutorily imposed obligation to

provide information about the represented fee payers is a natural

prerequisite for this representation, but failure to perform it can

hardly be penalized otherwise than by not recognizing the actions of a

joint representative, owner or administrator. The obligation to

supervise their representative remains with the individual fee payers,

it is they who risk penalties for not fulfilling the notification and

payment obligation. Therefore, applying § 37 and § 37a of the Act on

Administration of Taxes and Fees, on fines for violating non-monetary

obligations, does not appear to be lawful. In evaluating its status one

can agree with the position statement from the Ministry of the Interior.


 

The limitation on imposing

the obligation to notify to an owner of real estate who is not

registered in the municipality for permanent residence (art. 4 of the

ordinance) deserves a more detailed review. Compared to other local

fees, paid by fee payers of whom the state administration does not keep a

list, it is organizationally possible with a fee for operating the

communal waste handling system to use the register kept of residents

with permanent residence in a municipality, because each of them is a

fee payer [§ 10b par. 1 let. a) of the Act on Local Fees]. However, it

is necessary to weigh whether it is legal to make use of the register.

Section 5 of Act no.133/2001 Coll., on the Record-Keeping of Residents

and Personal Identification Numbers, emphasizes the municipality’s

authorization to use the register for indispensable aims. This use need

not be indispensable to the collection of fees, in view of the

statutorily envisaged obligation to notify (§ 14 par.2 of the Act on

Local Fees). Of course, the result of the obligation to notify of

residents with permanent residence in the municipality will be that an

identical database will be created, and data from the register will be

used anyway to add the fee payers who have not met their obligation to

notify. Thus, the municipal office will create a second register of

residents for fee payment purposes, even though it already has it

available. The requirement of creating such a register appears hardly

compatible with the principle of economical municipal administration (§ 2

and 38 of the Act on Municipalities). It can hardly be seen as misuse

of access to the residents register. Yet, ensuring the collection and

liquidation of communal waste, and financing it, is a task entrusted to

municipalities as holders of public power. Nor is the problem in the

absence of a more precise definition of the manner in which this

register will be used to prescribe a fee for residents. The ordinance

does not expressly state that the municipality shall send (or in what

manner) residents and other notified fee payers a fee notice together

with a partly pre-completed payment cheque or (a) information on the

municipality’s bank account and the manner of identifying the paying fee

payer (the “variable” symbol, usually the personal identification

number). The wording of the provision on a fee being due without

assessment (art. 8 of the ordinance) indicates that the municipality

informs the residents about the manner of paying the fee only by

non-targeted announcements which are usual in the municipality (official

notice board, outdoor notices, flyers, a municipal magazine). For

comparison, state-wide Czech financial legislation also does not

specifically state the numbers of bank accounts for deposits; rather,

the individual financial administration bodies inform fee payers and

payers about them by suitable means. The same applies to other financial

transactions between residents and public bodies. This practice has not

been evaluated yet, let alone found to be an unconstitutional and

unlawful exercise of public power, and it would probably be exaggerated

to consider it so. Regardless of the specific practice in a

municipality, the situation can also be seen to be such that the

obligation to report (register) (the ordinance speaks of an “obligation

to notify,” but the petition does not criticize this terminological

difference) is also met by such form of meeting the fee payment

obligation (payment of the fee) which permits the municipality (the

municipal office), as fee administrator, to identify the fee payer. The

Act on Local Fees does not require a temporal or act-based distinction

between the obligation to report (register) and the payment obligation.
 

Of

course, the possibility of an affidavit from the owner of the real

estate in which such a fee payer is registered for permanent residence,

that the fee payer is demonstrably not abiding in the municipality, can

be considered problematic. Although the Act on Administration of Taxes

and Fees does not expressly rule out an affidavit, it should be done

personally by the person whose legal status it concerns, not by another

person. Somewhat paradoxically, under art. 6 par. 2 of the ordinance

this possibility is not given to the fee payer himself. In the

Constitutional Court’s opinion, this provision of the ordinance is

inconsistent with the Act.
 

The

Act on Local Fees speaks vaguely of exemption from fees, and only

emphasizes that it is possible to reduce or excuse them in individual

cases in order to avoid harshness (§ 16) and in a list of sample

requisites for an ordinance it speaks, with no further specification, of

possible exemption (§ 14). These exemptions may not be based on

constitutionally impermissible differentiation or discrimination (Art.

1, Art. 3 par.1 and Art. 4 par. 3 of the Charter of Fundamental Rights

and Freedoms). In view of their understandability and reasonableness,

the reviewed exemptions appear to be compatible with these

constitutional principles. The sample list includes persons who abide

long-term outside the municipality and do not burden it with the

creation of communal waste.
 

The

structure of setting fee amounts is such that the second part can be

set, up to CZK 250, only on the basis of the municipality’s actual per

capita expenses for the collection and conveying of unsorted communal

waste. The Constitutional Court can adequately evaluate the supported

reference to possible failure to observe these statutory limitations

only by examining the municipality’s accounting records. In a particular

case it is certainly possible that the “total municipal expenses for

waste management” are equal to the “expense for collection and conveying

of unsorted communal waste.” In view of the correct labeling of

appendix no. 2 with the heading “Allocation of the expenses of the

municipality of Vražné for the collection and conveying of unsorted

communal waste,” the different term can be considered a legislative

abbreviation.
 

However, it

does not appear necessary to clarify these facts, as the municipality

(the representative body) may, in its discretion, and without

documenting the expense for the previous year, set the first part of the

fee up to CZK 250 by an appropriate ordinance. The contested ordinance

sets the total fee at only CZK 150. Thus, the only part which can appear

problematic is the legislative provision emphasizing the use of both

possibilities for determining the fee amount. If the ordinance only set

the fee at CZK 150, then legally this would be a completely

unquestionable determination of the amount and the effect on the fee

payer would be the same, as there are no separate rules for payment of

the individual parts of the fee or exemption from them.
 

The

ordinance provision on the beginning of the fee payment obligation when

it arises during the course of the year really does not correspond to

the wording of § 10b par. 4 of the Act on Local Fees, because it removes

from a new fee payer the obligation to pay the appropriate part of the

fee for the month when he became a fee payer (art. 7 par. 1 of the

ordinance). However, this alleviation can be considered an acceptable

exemption, negligible in amount (CZK 12,50) under § 14 of the Act on

Local Fees for those who became new citizens of the municipality. In

contrast, under the ordinance the obligation to pay a proportional part

of the fee continues beyond the framework of the law for a fee payer for

whom the grounds for the payment obligation ended during the course of a

month (art. 7 par. 2).
 

Setting

the due dates of fee payments for those whose payment obligation arose

during the course of the year at 30 days after it arose can be

considered discriminator only with a literal interpretation of the cited

provision (art. 8 par. 3 of the ordinance). A non-disadvantaging

interpretation established on the connection of this provision to the

provision setting the payment due dates for continuing fee payers (art. 8

par. 1) leads to the conclusion that the deadline of 30 days applies

only if the general due date has passed (31 March and 30 September),

i.e. in the second and fourth quarters, whereas in the first and third

quarters the fee is due only on the stated days.
 

In

the case of applying a penalty in the form of increasing a fee the Act

on Local Fees still speaks of fees (§ 11 of the Act on Local Fees). The

so-called due amount (§ 12 of the Act on Local Fees) is thus nothing

more than the thus-increased fees. The penalty for failure to fulfill

the notification/registration obligation is regulated differently by a

provision of the Act on Administration of Taxes and Fees. The

terminological disunity appears to be more in the text of the statute,

but it is a disunity which can be overcome by methods of interpretation.

The Constitutional Court should surely not force municipalities to

repeat this terminological disunity in their ordinances.
 

The

Constitutional Court finds unlawful only the possibility of an

affidavit with effects for another, the penalization of the joint

representative for failure to met the non-monetary (i.e.

notification/registration ) obligation, and the fee applied beyond the

scope of the law vis-à-vis persons for whom the fee payment obligation

terminates. Therefore, it annuls the ordinance provisions which

establish these rules under § 70 par. 1 of the Act on the Constitutional

Court.
 

All other

provisions of the contested municipal ordinance were not found unlawful,

let alone unconstitutional, and therefore the Constitutional Court

denied the petition to annul them under § 70 par. 2 of the Act on the

Constitutional Court.

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

Brno, 24 June 2003