2004/10/20 - Pl. ÚS 17/02: Municipal Ordinance - Animals

20 October 2004

HEADNOTE

The

actions of a municipality, as a public law corporation, in the case of

unilateral setting of orders and bans within its independent

jurisdiction, can not be subject to Art. 2 par. 3 of the Constitution of

the Czech Republic and Art. 2 par. 2 of the Charter. The purpose of

these constitutional provisions is to guarantee freedom of conduct of

persons subject to private law and the expression of their autonomous

will. In contrast, a municipality’s conduct as a public law corporation,

in the case of unilateral setting of orders and prohibitions is subject

to Art. 2 par. 3 of the Constitution of the Czech Republic and Art. 2

par. 2 of the Charter of Fundamental Rights and Freedoms, under which

state authority may be asserted only in cases and within the bounds

provided for by law and only in the manner prescribed by law. This rule

must also be extended to the authoritative determination of individuals’

relationships in a municipality through generally binding ordinances. A

municipality needs statutory authorization to issue generally binding

ordinances under its independent jurisdiction, it must observe the

limits of its jurisdiction defined by statute, may not regulate issues

which are reserved to statutory regulation, and may not regulate matters

which are already regulated by legal regulations or public or private

law.

 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Plenum of the Constitutional Court, composed of justices JUDr.

Stanislav Balík, JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr.

Pavel  Holländer, JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří

Mucha, JUDr. Jan Musil, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr.

Miloslav Výborný, JUDr. Eliška Wagnerová a JUDr. Michaela Židlická,

decided on 20 October 2004 in the matter of a petition from the Chairman

of the Municipal Office Pilsen-South seeking the annulment of generally

binding ordinance of the Municipality of Nezvěstice no. 1/2001 of 12

March 2001, on the Breeding and Keeping of Animals in the Municipality,

with the participation of the Minister of the Interior of the Czech

Republic and the Municipality of Nezvěstice, represented by J. H., mayor

of the municipality, legally represented by JUDr. J. R., attorney, as

follows:


Generally

binding ordinance of the Municipality of Nezvěstice no. 1/2001 of 12

March 2001, on the Breeding and Keeping of Animals in the Municipality,

is annulled as of the day this judgment is promulgated in the Collection

of Laws.


REASONING

I.

In

the petition, which meets the formal requirements of Act no. 182/1993

Coll., on the Constitutional Court, as amended by later regulations (the

“Act on the Constitutional Court”), the Chairman of the District Office

Pilsen-South sought the annulment of generally binding ordinance of the

Municipality of Nezvěstice no. 1/2001 of 12 March 2001, on the Breeding

and Keeping of Animals in the Municipality. The District Office

suspended execution of the ordinance by its decision of 26 April 2001

(624/2001/KP). Because the party to the proceedings did not correct the

situation, the petitioner filed a petition with the Constitutional Court

to annul the ordinance under Art. 87 par. 1 let. b) of the Constitution

of the Czech Republic and § 64 par. 3 of the Act on the Constitutional

Court. The text (without corrections of mistakes and typographical

errors) of this generally binding ordinance (the “ordinance”) is the

following:

“Generally Binding Ordinance
of the Municipality of Nezvěstice
no. 1/2001
of 12 March 2001
on the Breeding and Keeping of Animals in the Municipality

The

representative body of the Municipality of Nezvěstice, at its session

held on 12 March 2001, approved, as resolution no. 3., in accordance

with § 84 let. i of Act no. 128/2000 Coll., on Municipalities, as

amended by later regulations, this generally binding ordinance on the

breeding and keeping of animals in the municipality.

Art. 1
Introductory Provisions
Animals

may be bred in the Municipality of Nezvěstice and its parts provided

that health and veterinary regulations, relating to the breeding of

animals, housing and caring for them, and regulations on the protection

of nature and statutes for the protection of all components of the

environment are observed.

Art. 2
Basic Concepts
1) The ordinance is binding on the breeders and keepers of these kinds of animals.
a) large and medium-sized agricultural animals – cattle, horses, cows, sheep, goats, sows, hogs, ostriches, etc.
b)

small and miniature agricultural animals – scratching and water poultry

(hens, turkeys, ducks, geese, etc.) including pigeons and rabbits.
c) fur animals – mink, foxes, silverfoxes, nutria, etc.
d)

other animals and birds – dogs, cats, song and miniature birds,

aquarium fish, miniature laboratory animals (guinea pigs, hamsters, mice

and rats), turtles, snakes and other animal species from subtropical

zones .
e) bees
2) A breeder or keeper of animals is someone who, even temporarily, raises animals or cares for them (a “breeder”).

Art. 3
Conditions for Breeding Animals
1)

Breeding any above-mentioned animal is permitted (with the exception

provided in other articles of this ordinance) provided it does not cause

hygiene or health problems, does not endanger cleanliness and safety in

buildings or public areas, and is not a nuisance to the residence of

neighboring apartments or houses, and does not exceed environmental

standards, and provided it is not inconsistent with Act no. 114/1992

Coll., on Protection of Nature and the Landscape, as amended by later

regulations.
2) It is forbidden to carry, drive or lead animals to

children’s playgrounds, sandboxes, swimming pool compounds, cemeteries,

and other places with a notice “No animals permitted.” This ban does not

apply to working dogs and blind people’s seeing-eye dogs.
3) In

areas of family housing breeding animals is permitted on the condition

that it does not lead to deterioration of the environment or the

appearance of the surroundings, and that there is no violation of the

rules of civic cohabitation or endangerment of the quality and amount of

subterranean and surface waters. The areas for animals are generally

enclosed spaces, e.g. with a barrier.

Art. 4
Obligations of Breeders
1)

Animal breeders are required to thoroughly observe hygiene regulations,

the cleanliness of the municipality, protection of animals, and the

safety of their fellow citizens. Animals must be cared for so that they

do not negatively affect the environment or civic cohabitation, and do

not contaminate subterranean and surface waters.
2) A breeder is

required to observe generally binding legal regulations concerning

protection of animals against abuse and the Act on Veterinary Care.

Art. 5
Breeding Large and Medium-Sized Agricultural Animals
1)

Breeding large and medium-sized agricultural animals, see Art. 2 par.

“a,” is permitted in localities defined in the municipal zoning plans as

family and residential houses, and in cottage localities where family

houses are also located, only with the consent of the Representative

Body of the municipality of Nezvěstice.
2) Outside the locales

specified in par. 1, breeding large and medium-sized animals is

permitted under the conditions specified in Art. 3 of this ordinance.
3)

The above-mentioned localities are delineated in the municipal zoning

plan, the current version of which is available for inspection at the

Municipal Office.

Art. 6
Breeding small and miniature agricultural animals
1)

Breeding small and miniature agricultural animals is permitted at

family houses and houses with gardens only under conditions specified in

Art. 3 of this ordinance.
2) Areas for breeding animals (including

runs) must be secured against leaks and situated so that there is no

danger to the quality of subterranean waters (a distance of at least 10

meters from wells).

Art. 7
Breeding Pigeons
1. Pigeons (carrier, ornamental, non-ornamental) may not be raised in residential buildings and on apartment balconies.
2.

In family houses (including row houses, the breeding of pigeons is

permitted only under the conditions provided in Art. 3 of this

ordinance, and always with the consent of the District Office of the

municipality of Nezvěstice.

Art. 8
Breeding Animals for Fur
1)

Breeding animals for fur is permitted only under the conditions

provided in Art. 3 of this ordinance only where there are suitable

conditions for such breeding, i.e. the facilities for it must be in

fenced-in areas at least 100 meters from residential buildings and

recreation facilities.
2) Breeding animals for fur is permitted only

in the peripheral parts of the municipality with the consent of the

Municipal Office of the municipality of Nezvěstice.

Art. 9
Breeding Other Animals
1)

Breeding other animals in apartments or rental houses maybe done only

under the conditions provided in Art. 3 of this ordinance.
2) Animals roaming about the municipality may be caught – and handed over to employees of the appropriate organizations.

Art. 10
Breeding Dogs and Cats
1) A dog owner is required to register the dog at the Municipal Office and pay a local fee.
2) A dog owner is required to observe hygiene, veterinary and other generally binding regulations for dog ownership,
3)

The owner is also required to keep the dog on a leash in common and

public areas of buildings and public areas, including sidewalks and

local roadways.
4) The owner must see to it that the dog does not

soil the common areas of buildings, sidewalks, sandboxes and public

areas with its feces.
5) The owner is required to immediately remove

any soiling caused by the dog, at his own expense and on his own

responsibility. If he does not do so, he will be brought before the

misdemeanor commission.
6) Dogs must be secured so they do not escape. Dogs may not run free in public areas.

Art. 11
Breeding Song and Ornamental Birds
Song

and decorate birds can be bred as a hobby provided that veterinary and

health regulations are met. Business breeders may conduct the breeding

business on the basis of a trade license, provided that they observe

Art. 3 of this ordinance and observe valid veterinary regulations.

Art. 12
Breeding Animals in the ČSCH and ČSZ Settlements
1)

Breeding animals in the ČSCH settlements is not forbidden. The breeding

may not cause deterioration of the environment (Art. 3 of this

ordinance).
2) Breeding of animals in gardening settlements is forbidden by regulations on protection of nature and the landscape.

Art. 13
Execution of Decision
1)

The representative body of the municipality of Nezvěstice may, in cases

where animals are bred in conflict with this generally binding

ordinance and general regulations, file an application to stop or remove

the breeding or keeping of animals.
2) Par. 1 does not apply to the

breeding of individual animals of specially protected species under Act

no. 114/1992 Coll. and international CITES treaties.

Art. 14
Penalties
Violation

of this ordinance shall be judged in accordance with Act no. 200/1990

Coll., on Misdemeanors, as amended by later regulations, Act no. 50/1976

Coll., the Building Code, as amended by later regulations, provided

they do not involve a crime.

Art. 15
Closing Provisions
Generally binding legal regulations apply to matters not specified in this generally binding ordinance.

Art. 16
Effectiveness
1)

This generally binding ordinance goes into effect on the date it is

promulgated, i.e. 13 March 2001 for reasons of expediting administrative

proceedings conducted in a matter of non-permitted buildings. This

provision is in accordance with Act 128/2000 Coll. on Municipalities §

12 par. 2.
2) Date of promulgation on official notice board: 13 March 2001.

Mayor of the Municipality

Deputy Mayor

Posted: 13 March 2001
Removed: 30 March 2001”


II.
 

The

petitioner claims that this ordinance is inconsistent with Art. 104

par. 3 of the Constitution of the Czech Republic, because it interferes

in private law relationships governed by the Civil Code (Art. 3 par. 1

and 3, Art. 4 par. 1 and Art. 10 par. 3, 5 and 6 first sentence of the

ordinance are regulated by §3, §127 and §415 of the Civil Code) and also

violates Art. 2 par. 3 a 4 of the Constitution of the Czech Republic

and Art. 2 par. 2 and 3 of the Charter of Fundamental Rights and

Freedoms.
 

The orders and

bans in Art. 1, Art. 3, Art. 5 par. 1, Art. 6 par. 1, Art. 7, Art. 8,

Art. 9 par. 1, Art. 11, Art. 12 conflict with Art. 4 par. 1 and 2, Art.

11 par. 1, par. 3 and Art. 26 par. 1 and par. 3 of the Charter of

Fundamental Rights and Freedoms.
 

The

petitioner also charges that through the ordinance the municipality is

also interpreting the content of statutes concerning the exercise of

state administration, and even creating norms in the area of state

administration. Therefore, it goes outside the area entrusted to

independent jurisdiction. In this regard, the petitioner points in

detail to the following:

-    Art. 3 par. 1 and 3, Art. 4 par. 1,

Art. 10 par. 4 and 5 of the ordinance regulation relationships which

are governed by § 47 par. 1 let. d), or § 49 par. 1 let. b) and c) of

Act no. 200/1990 Coll., on Misdemeanors, as amended by later regulations

(the “Act on Misdemeanors”),
-    Art. 2 of the ordinance provides

definitions inconsistent with § 3 par. 1 let. a) and d) of Act no.

166/1999 Coll., on Veterinary Care and Amending Related acts (the

Veterinary Act), as amended by later regulations (the “Veterinary Act”),
-  

 Art. 11 of the ordinance is also inconsistent with Act no. 455/1991

Coll., on Trade Licenses (the Trade License Act), as amended by later

regulations (the “Trade License Act”),
-    Art. 1, Art. 3, Art. 4,

Art. 6 par. 2, Art. 10 par. 2, Art. 11 of the ordinance interfere in

relationships governed by Act no. 246/1992 Coll., on Protection of

Animals against Abuse, as amended by later regulations (the “Animal

Protection Act”), specifically §4 let. c), k) and m), §9 and §13,
-  

 Art. 3 par. 1 and 3, Art. 4 par. 1, Art. 5, Art. 6, Art. 7, Art. 8,

Art. 9 par. 1 of the ordinance interfere in relationships also regulated

by §81, §82, §85, §138a par. 1 and 2 and § 143 par. 1 let. k) of Act

no. 50/1976 Coll., on Zoning and the Building Code (the Building Code),

as amended by later regulations (the “Building Code” ). As of 1 June

2002 the ordinance articles specified in this point are also

inconsistent with § 143 par. 4 let. c) of the Building Code, on the

basis of which Decree of the Ministry of Agriculture of the Czech

Republic no. 191/2002 Coll., on Technical Requirements for Agricultural

Buildings was issued,
-    Art. 3 par. 3 and Art. 4 par. 1 of the

ordinance regulate a relationship established in §25 par. 1, or §17 par.

1 of Act no. 138/1973 Coll., on Waters, as amended by later

regulations, effective as of the day the ordinance is issued, or as of 1

January 2002 v §27 of Act no. 254/2001 Coll., on Waters and Amending

Certain Acts (the “Water Act”).

 Therefore, the petitioner proposes that the Constitutional Court issue a judgment annulling the abovementioned ordinance.
 


III.

 

The

Constitutional Court concluded that the petition formally meets the

requirements of the Act on the Constitutional Court. In this regard it

states that it has already dealt with the situation where, during the

time of proceedings on the legality of a generally binding municipal

ordinance the petitioner’s office ceased to exist, in judgment file no.

Pl. ÚS 39/02 (no. 205/2003 Coll., Collection of Decisions of the

Constitutional Court of the Czech Republic, vol. 30, no. 97). There it

concluded that the proceedings in progress are not affected by the fact

that district offices, which the chairmen headed, were, as part of the

reform of territorial administration, annulled as of 31 December 2002 by

Act no. 320/2002 Coll., on Amendment and Annulment of Certain Acts in

Connection with the Termination of Activity of District offices.

However, as of 1 January 2003 the minister of the interior is entitled

to file such a petition [§ 64 par. 2 let. g) of the Act on the

Constitutional Court]. The kind and subject matter of proceedings before

the Constitutional Court remain the same; there is only a change of the

body which will henceforth take part in the proceedings instead of the

previous petitioner, in accordance with the change of that situation in

Act no. 320/2002 Coll. Finally, the obligation to address such a

petition also arises under §68 par. 1 of the Act on the Constitutional

Court. Therefore, on that basis, the Constitutional Court continued the

proceedings with the participation of the minister of the interior, who

also consented to waive oral proceedings.
 

In

proceedings to annul a legal regulation it is the Constitutional

Court’s obligation to first review whether the regulation in question

was issued in a constitutionally prescribed manner (§68 par. 2 of the

Act on the Constitutional Court). The contested generally binding

ordinance was duly passed at the 16th public session of the

Representative Body of the municipality of Nezvěstice held on 12 March

2001 by twelve votes, out of thirteen members present (one member

abstained from voting) from the representative body, which has a total

of 15 members. It was posted on 13 March 2001 on the official notice

board, from which it was removed on 30 March 2001. Therefore, we can

only state that the ordinance was passed by a body authorized to do so,

and in a prescribed manner. The validity and effectiveness of the

ordinance of 12 March 2001 could not be affected by the failure to meet

obligations to the appropriate district office under § 12 par. 3 of the

Act on Municipalities, in the version in effect at the time it was

passed. Based on an application, the content of the ordinance was

reviewed by the District Office Pilsen-South, and the effectiveness of

the ordinance was suspended with effect as of 18 May 2001. The deadline

to correct the situation passed in vain. Because the party to the

proceedings did not correct the situation, and insisted on keeping the

full ordinance in the original version, the Chairman of the District

Office, under the then-valid wording of § 124 par. 1 of Act no. 128/2000

Coll., on Municipalities (Municipal Establishment), as amended by later

regulations (the “Act on Municipalities”), filed a petition with the

Constitutional Court to annul the ordinance [Art. 87 par. 1 let. b) of

the Constitution of the Czech Republic, §64 par. 3 of the Act on the

Constitutional Court].
 

The

conditions for the permissibility of proceedings on the legality of

legal regulations include the requirement that legal regulations,

according to which the legality of the regulation contested by the

petition is being judged, not cease to be valid during the proceedings.

In this cases, there was a change in § 10 let. a) and let. d) of the Act

on Municipalities. However, these changes are basically legislatively

technical changes, where, although Act no. 313/2002 Coll. annulled §10

let. a), which permitted municipalities to impose obligations “in

matters specified by a special act,” it replaced it with §10 let. d),

under which a municipality may do so by ordinance, “if a special act so

provides.” Further, in §10 let. a), in connection with the new wording

of §34 of the act on Municipalities, the words “publicly accessible

places” were replaced by the words “public areas.” The substance of the

authorization of municipalities to impose obligations in this way

remained otherwise unaffected. The same is true of individual statues

which the petitioner claims in the petition to have been violated. Thus,

§3 par. 1 let. a) and d) of the Veterinary Act were amended without

this having an effect on the alleged inconsistency with the ordinance.

Likewise, paragraph 4 was added to §82 of the Building Code. The only

change occurred through the annulment of Act no. 138/1973 Coll., on

waters, which was replaced by Act no. 254/2001 Coll. However, the

petition takes this new regulation into account, and claims

inconsistency with §27 thereof.
 

The

municipality of Nezvěstice, as a party to the proceedings, responded to

the petition by rejecting the petitioner’s conclusion, stating that the

ordinance is consistent with the constitutional order and the laws of

the Czech Republic, and that it falls under municipal jurisdiction under

§10 of the Act on Municipalities. It also stated that the ordinance was

not passed arbitrarily, but as a response to a socially undesirable

situation, specifically certain administrative proceedings on the

removal of buildings used without a final building permit for the

breeding of agricultural animals (pigs, cattle, etc.), which cause

interference with health and property, the environment, and conduct

which is inconsistent with good morals and interferes with the justified

interests of others (§ 3 par. 1 of the Civil Code). The municipality

believes that Art. 2 of the Constitution of the Czech Republic and Art. 2

par. 3 of the Charter of Fundamental Rights and Freedoms apply to

municipal jurisdiction, and a municipality is therefore authorized to

issue generally binding ordinances which contain obligations, on the

basis of statutory authorization in §10 let. a) to d) of the Act on

Municipalities. The municipality also finds support for imposing

obligations on breeders in, among other things, the Building Code, the

Water Act, the Veterinary Act, and so on. The provisions of this

ordinance can be interpreted in a manner compatible with the

constitution. Its purpose is not to discriminate against some citizens

or to set disadvantageous conditions for them, but to protect the rights

and legally protected interests of the majority of citizens. This

involves a struggle with problems caused by completely unregulated

breeding and keeping of agricultural animals in buildings constructed in

violation of building permits or without them, which endangers the

environment. The municipality also pointed to the fact that the

petitioner “did not meet the conditions for proceedings under §74 of the

Act,” and proposed that the Constitutional Court deny the petition. The

municipality agreed to waive oral proceedings.
 

In

response to a request from the Constitutional Court, the ombudsman

stated that he will not participate in these proceedings as a secondary

party (§69 par. 2 of the Act on the Constitutional Court).
 


IV.
 

On

that basis, after reviewing the individual provisions of the ordinance

and evaluating them as a whole, the Constitutional Court, in agreement

with the petitioner, concluded that the majority of provisions of the

reviewed ordinance do not meet the constitutional and statutory

requirements for issuing generally binding municipal ordinances under

independent jurisdiction. Here the Constitutional Court considers it

necessary to emphasize that under the constitutional order and the Act

on Municipalities a municipality needs statutory authorization to issue

generally binding ordinances, it must observe the limits of its

jurisdiction defined by statute, may not regulate issues which are

reserved to statute, and may not regulate matters which are already

regulated by legal regulations of public or private law. In this regard

the Constitutional Court refers to its case law on these issues [cf., in

particular for the area of breeding and keeping animals in a

municipality, the plenary judgment of the Constitutional Court in the

matter Pl. ÚS 4/98 (in Constitutional Court of the Czech Republic:

Collection of Decisions – volume 14, 1st edition, no. 78, Prague 2000;

and in the Collection of Laws as no. 126/1999 Coll.), also, e.g. Pl. ÚS

42/97 (in The Constitutional Court of the Czech Republic: Collection of

Decisions – volume 14, 1st edition, no. 85, Prague 2000 and in the

Collection of Laws as no. 162/1999 Coll.), Pl. ÚS 5/99 (in

Constitutional Court of the Czech Republic: Collection of Decisions –

volume 15, 1st edition, no. 112, Prague 2000 and in the Collection of

Laws as no. 216/1999 Coll.)]. Therefore, it was necessary to annul the

ordinance as a whole, as the Constitutional Court found no reason to

diverge from its case law (Art. 89 par. 2 of the Constitution of the

Czech Republic).
 

Because the

Constitutional Court agrees with the petitioner’s abovementioned

arguments (under I.) in relation to violation or interference in an area

governed by the Civil Code, the Building Code, the Act on Misdemeanors,

the Act on Veterinary Care, the Act on Trade Licenses, the Act on

Waters, and the Act on Animal Protection, it does not consider it

necessary to repeat all these arguments in relation to the violation of

constitutional and statutory rules for issuing generally binding

ordinances under independent jurisdiction, as that is based on the

Constitutional Court’s existing case law. As stated above, the amendment

of certain provisions of statutes with which this ordinance is said to

be inconsistent, changes nothing about these arguments, because the

legal regulation in question is still valid. In this regard, one could

also point to conflict with implementing regulations which were issued

for these statutes. In particular, we must mention decree of the

Ministry of Agriculture and Nutrition no. 286/1999 Coll., which

implemented provisions of Act no. 166/1999 Coll., on Veterinary Care and

Amending Certain Related Acts (the Veterinary Act), on the Health of

Animals and Its Protection, on Veterinary Conditions for the Import,

Export and Transit of Veterinary Goods, on Veterinary Culling and on

Attestation Studies, replaced by the now-valid decree no. 296/2003

Coll., on the Health of Animals and Its Protection, on the Relocation

and Transportation of Animals and Expert Qualification for the Exercise

of Certain Expert Veterinary Activities.
 

Beyond

the petitioner’s arguments we only add that legal relationships which

the ordinance as a whole aims to regulate fall into the area now

regulated in particular in Act no. 258/2000 Coll., on Protection of

Public Health, as amended by later regulations. Of course, its amending

provision (§96) only permits municipalities to use generally binding

ordinances to order special protective insect or rat removal for their

territories or part thereof, in order to protect health from the

inception and spreading of infectious diseases. However, in the area of

public health protection, it does not permit them to issue ordinances

with the content that the reviewed ordinance has. The tasks which this

ordinance is to achieve, according to the response to the petition by

the party to the proceedings, are entrusted by that Act to other state

administration bodies.
 

Further,

Art. 3 par. 2 of the ordinance regulates matters the regulation of

which is entrusted to municipalities, but through a public code for a

public cemetery (§19 of Act no. 256/2001 Coll., on Funeral Services and

Amending Certain Acts). However, the prior consent of the appropriate

state administration body is required in order to issue it, whether by a

council or representative body which reserves such issuance to itself

(§ 102 par. 3 of the act on Municipalities). At present that is the

regional office; at the time the ordinance was issued, it was the

appropriate health inspection service body (§19 par. 3 of Ministry of

Health of the Czech Socialist Republic decree no. 19/1988 Coll., on

Procedures upon Death and Funeral Services).
 

As

regards the criticism that the ordinance interferes in matters

regulated by the Civil Code, the Constitutional Court adds that under

its case law (judgment no. 126/1999 Coll., The Constitutional Court of

the Czech Republic: Collection of Decisions – volume 14, judgment no.

78) Art. 3 and Art. 9 par. 1 of the ordinance also interfere in the

subject matter of § 663n. of the Civil Code.
 

In

other provisions (in particular Art. 1, Art. 3 par. 1, Art. 4, Art. 11,

Art. 12 par. 2, Art. 13 par. 2, Art. 14), the ordinance inexactly

refers to the general legal regulation of breeding animals and related

issues in the appropriate statutes. We must emphasize that these

statutes concerning the statewide exercise of state administration in

this area. Therefore, there is no reason for an ordinance to adopt them

in this unsuitable manner for the territory of one municipality. We find

equally unclear and incomprehensible, and thus inconsistent with the

principles of a law-based state, Art. 13 par. 1 of the ordinance,

entitled “enforcement of decisions,” under which, in the event of

breeding of animals inconsistent with the ordinance, the representative

body of the Municipality of Nezvěstice may file an application to stop

or remove the breeding or keeping of animals.
 

Art.

14 of the ordinance states that violation of the ordinance will be

judged in accordance with the Act on Misdemeanors and the Building Code,

provided that it does not involve a crime. This provision is also

ambiguous and unclear. It is not possible to formulate anew or in more

detail the definitions of misdemeanors or other offenses defined in a

statute (cf., e.g., Pl. ÚS 47/93, in The Constitutional Court of the

Czech Republic: Collection of Decisions – volume 2, 1st edition, no. 39,

Prague, and in the Collection of Laws as no. 179/1994), as could be

concluded from grammatical analysis of this article.
 

As

a whole, the reviewed ordinance is cast in doubt by Art. 15, which

provides only supporting validity of the above-mentioned statewide legal

regulations. According to the ordinance, these statutes can be applied

only in the event that the ordinance does not provide otherwise. A

provision formulated in this manner can not stand in a law-based state.
 

The

Constitutional Court also could not, under its case law, agree with the

arguments of the party to the proceedings, according to which Art. 2 of

the Constitution of the Czech Republic and Art. 2 par. 3 of the Charter

apply to municipal procedures in issuing generally binding ordinances

under independent jurisdiction. The purpose of these constitutional

provisions is to guarantee the freedom of persons to act under private

law and to express the autonomy of their will. In contrast, the actions

of a municipality, as a public law corporation, in the case of

unilateral setting of orders and bans, are subject to Art. 2 par. 3 of

the Constitution of the Czech Republic and Art. 2 par. 2 of the Charter,

under which state authority may be asserted only in cases and within

the bounds provided for by law and only in the manner prescribed by law.

The purpose of these constitutional provisions is to guarantee freedom

of conduct of persons subject to private law and the expression of their

autonomous will. This rule must also be extended to the authoritative

determination of individuals’ relationships in a municipality through

generally binding ordinances. Anything else would mean violation of the

principle of a law-based state under which the public power is bound by

laws in its actions, while the individual, as a subject of private law,

is permitted to do everything which the law does not forbid, and is

required to do only what the law requires/imposes. In this case,

however, the municipality exceeded these constitutional rules by its

ordinance, and used its norm-creation to regulate issues which the laws

do not entrust to it, or did so in a manner inconsistent with the laws.

As regards the reference to the need for constitutionally consistent

interpretation of the ordinance, we must note that this manner of

interpretation is one of the guarantees of constitutionality, and

therefore can not be used for a completely contrary purpose.
 

In

view of the foregoing, therefore, we must state that a municipality

needs statutory authorization to issue generally binding ordinances

under independent jurisdiction, it must observe the limits of its

jurisdiction defined by statute, may not regulate issues which are

reserved to statutory regulation, and may not regulate matters which are

already regulated by legal regulations or public or private law. The

reviewed ordinance violates these rules in all these points. In the

course of reviewing the petition, three years from the issuance of the

ordinance there was only one substantial change in the legal status quo,

regulation of the unrestrained movement, when Act no. 77/2004 Coll.

amended §24 of Act no. 246/1992 Coll., on the Protection of Animals from

Abuse. At present, under paragraph 2 of that provision, a municipality

may, by generally binding ordinance, set rules for the movement of dogs

in public areas and define spaces where they may be unrestrained. In

view of the fact that leaving some parts of Art. 10 in the contested

generally binding decree would lose meaning and lead to it being unclear

(not to mention the confusing heading of that provision), the generally

binding ordinance was annulled in its entirety, with the provision that

the municipality may, in its discretion, make use of the new

opportunity to set rules for the movement of dogs within the bounds of

§24 par. 2 of Act no. 246/1992 Coll. However, the amendment of the Act

on Protection of Animals against Abuse had no effect on the main aim of

the ordinance, which, according to the party to the proceedings, is

addressing the issue of removing buildings used without buildings

permits for the breeding of agricultural animals (pigs, cattle, etc.),

which results in interference with health and property, the environment,

and in actions which are inconsistent with good morals and interfere

with the justified interests of others.
 

Thus,

we can only close by saying that a municipality may use generally

binding ordinance to regulate only those of its matters which have been

entrusted to its independent jurisdiction, and these ordinances must be

consistent with the laws (Art. 104 par. 3 of the Constitution of the

Czech Republic, § 35 of the Act on Municipalities). However, they can

not be used to regulate matters which fall into an area reserved to

state administration, or to the area of private law relationships. This

is not changed at all by the fact that the exercise of state

administration may also be transferred to municipalities. If the

municipalities wish to use an ordinance to regulate detrimental elements

in building proceedings, which is how it explained the passage of the

ordinance in its statement, this is an impermissible manner of

regulation, as the building office is a body of state administration,

not a body of local administration.
 

Finally,

we could not agree with the claim of the party to the proceedings that

the petitioner did not meet the conditions for proceedings under §74 of

the Act on the Constitutional Court. Application of this provision only

comes into consideration in proceedings on a constitutional complaint.

For that reason it can not be applied in proceedings on a petition to

annul a generally binding municipal ordinance. Therefore, the

Constitutional Court did not find that formal grounds existed due to

which the matter could not be addressed substantively.
 

For

the reasons thus explained, it was decided that the generally binding

ordinance of the Municipality of Nezvěstice no. 1/2001, of 12 March

2001, on the Breeding and Keeping of Animals in the Municipality, will

be annulled in its entirety, due to inconsistency with Art. 1, Art. 2

par. 3 and Art. 104 par. 3 of the Constitution of the Czech Republic,

with Art. 2 par. 2, Art. 4 par. 1 of the Charter, as well as with §10

and §35 of the Act on Municipalities, as of the day this judgment is

published in the Collection of Laws(§70 par. 1 of the Act on the

Constitutional Court).

Notice: Decisions of the Constitutional Court cannot be appealed.

Brno, 20 October 2004