2004/10/20 - Pl. ÚS 52/03: Labor Law Degree

20 October 2004

HEADNOTES

In

terms of defining parties and secondary parties to proceedings, the Act

on the Constitutional Court is based on the principle of legality, i.e.

the entities in question receive their status directly from the Act.

Therefore, the Constitutional Court could not add the union to the

proceedings as a secondary party. This procedural position for a trade

union as an association of interests in which the economic and social

interests of a certain group of employees are institutionalized, is

barred by the very substance of proceedings on annulment of statutes and

other legal regulations. Undoubtedly, trade unions, just like

associations of employers in particular sectors of the economy, have an

important role in a modern state in terms of the representation and

aggregation of various interest and demands, which do not always find a

platform in other institutions typical of parliamentary democracy. On

the other hand, it must be respected that the circle of persons who by

law have the status of parties or secondary parties to proceedings was

chosen by the legislature so that it would, to a certain extent, reflect

the principles on which the constitutional order of the CR is

constructed (that is, above all the principle of democratic legitimacy

of state bodies, the principle of separation of powers and protection of

minorities), and so as to correspond to the subject matter of

proceedings (i.e., evaluation of the consistency of legal regulations

with the constitutional order of the CR). These principles are matched

by the statutory definition of the circle of parties and secondary

parties to proceedings on annulment of statutes and other legal

regulations. Expanding parties or secondary parties by other entities –

e.g., political parties, interest groups, etc. – would be inconsistent

with the abovementioned principles, on which the state authority and

political system in the CR are constructed, and they would be

expressions of principles which are typical of political systems on

different models (e.g. neo-corporativism or a consotional model of

democracy.

State authority in the CR is based on a certain concrete model of the

separation of powers. One of the key areas in which the principle of

separation of powers is reflected is the sphere of dividing

norm-creating authority between the legislative and executive branches.

In the Constitutional Court’s opinion, authority and jurisdiction must

be distinguished. The authority of a state body must be understood as

the exercise of state authority in an appropriate form (i.e., in the

form of norm creation or individual decision making), while jurisdiction

is the quite specific substantive definition of issues regulated in the

process of exercising authority. Art. 79 par. 3 of the Constitution of

the CR must be interpreted from this point of view, to the effect that

the authority of ministries and other administrative bodies, or local

government bodies, to issue derived secondary legal regulations is based

on Art. 79 par. 3 of the Constitution of the CR. This is a legal norm

which, on a general level, establishes the authority of executive branch

bodies to create secondary legal norms on the condition that the

exercise of that authority is specified more closely in a statute in

relation to a particular jurisdiction (a certain statutorily defined

component of the exercise of state authority). The authority of the

executive to issue sub-statutory legal norms is established directly in

the Constitution of the CR, not in a statutory framework. The statutory

authorization which corresponds to the requirements in Art. 79 par. 3 of

the Constitution of the CR, is then fulfillment of that authority in

terms of scope and content (jurisdiction).

The reason for establishing this authority directly in the Constitution

of the CR is the fact that this concerns the crucial question of

separation of powers between the legislative and executive branches in

norm creation. The ultimate consequence of this would be that if the

norm creation authority of the executive branch were constituted only by

statute, it would be at the disposal of the legislature, whereby the

legislative branch could, by itself, interfere in the authority of the

executive branch, for example, by taking such authority completely away

from the executive branch. However, the concept contained in the

Constitution of the CR assumes that the legislature does not create this

authority through ordinary statutes; on the contrary, the Constitution

of the CR only gives the legislature the ability to authorize the

executive branch, in a specific case, to exercise the authority in the

form of specific jurisdiction. A particular executive body is then

required to exercise this jurisdiction (in the sense of substantive

definition of issues regulated in the process of exercise of authority)

on the basis of and within the bounds of the statute which authorized it

to create a secondary legal norm. The fact that such delineation of

powers sets limits for bodies of both the executive branch and the

legislative branch corresponds to the principle of separation of powers.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court, composed of justices ve složení

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 a petition from a group of deputies of the Chamber

of Deputies of the Parliament of the CR seeking the annulment of

Ministry of Labor and Social Affairs decree no. 405/2003 Coll., which

annuls decree no. 19/1991 Coll., on work placement and material security

for mining workers with long-term incapacity for their previous work,

with the participation of the Ministry of Labor and Social Affairs as a

party to the proceedings :

I.

The petition to annul Ministry of Labor and Social Affairs Decree no.

405/2003 Coll., which annuls Decree no. 19/1991 Coll., on Work Placement

and Material Security for Mining Workers with Long-term Incapacity for

their Previous Work, is denied.
II. The petition to permit the

participation of the Union of Mining, Geology and Petroleum Industry

Workers as a secondary party is denied.

 


REASONING
 

In

the petition, which was delivered to the Constitutional Court on 19

December 2003, a group of 40 deputies of the Chamber of Deputies of the

Parliament of the CR sought the annulment of Ministry of Labor and

Social Affairs Decree no. 405/2003 Coll., which annuls Decree no.

19/1991 Coll., on Work Placement and Material Security for Mining

Workers with Long-term Incapacity for their Previous Work.
 

As

the petitioners stated, § 1 par. 1 of the contested decree annulled

decree no. 19/1991 Coll., which was issued by the Federal Ministry of

Labor and Social Affairs of the CSFR on the basis of authorization in §

148a and § 275 par. 1 let. b) of Act no. 65/1965 Coll., the Labor Code,

in the version in effect until Act no. 74/1994 Coll. entered into

effect.
 

Under Art. I point

95 of Act no. 74/1994 Coll., which amends the Labor Code and certain

other Acts, § 148a of the Labor Code was annulled, and under Art. I

point 146 the wording of § 275 par. 1 was amended so that it does not

contain authorization for sub-statutory legal regulation. According to

the petitioners, the legislature thus made it clear that in future

obligations could be established, amended, or annulled only by statute.

This is a constitutional directive, which continues to be observed by

the Parliament of the CR, and it is the intention of the legislature in

future to keep relationships of a labor law nature on a statutory, not

sub-statutory, level. Therefore, the petitioners believe, that as the

legislature did not annul the decree in derogative provisions, it

demonstrated thereby that it agrees with the legal framework contained

therein and considers it still materially justified. According to the

petitioners, the court system has decided the same way, as confirmed by,

for example, the decision of the Supreme Court of the CR of 12 August

1998, file no. 21 Cdo 1798/98.
 

According

to the petitioners, the Minister of Labor and Social Affairs

nevertheless issued the contested decree under § 9 and § 24 of Act no.

2/1969 Coll., on the Establishment of Ministries and Other Central

Bodies of State Administration of the CR, as amended by later

regulations (the “Establishment Act”), without being authorized to do so

by statute. None of the abovementioned statutory provisions can be

considered to authorize the issuance of a sub-statutory legal

regulation.
 

The Constitution

of the CR provides in Art. 79 par. 3 that ministries and other

administrative bodies and local government bodies can issue legal

regulations on the basis of and within the bounds of a statute, if they

are authorized to do so by statute. According to the petitioners, the

legal order does not include any statute which would generally authorize

ministries to issued generally binding legal regulations. No such

authorization is contained in either § 9 or § 14 of the Establishment

Act.
 

Thus, according to the

petitioners, the legal order does not contain any statute which would

contain an authorization to issue the decree, even if it were a decree

which contained only annulment provisions. If there were material

reasons for annulling a decree, that could be done only by statute.
 

The

petitioners expressed a belief that the ministry’s actions are grossly

inconsistent with the legal order, because a valid implementing

regulation issued on the basis of a no longer existing authorization can

not be annulled in any other way than by statute. Therefore, they

proposed that the Constitutional Court annul the entire contested

decree.
 

Proceedings on the

petition were suspended by decision of the Plenum of the Constitutional

Court of 23 March 2004 due to the Constitutional Court not having enough

members. The obstacle to reviewing the petition was removed on 16 June

2004, when the president named a twelfth judge to the Constitutional

Court. Therefore, after that date the Constitutional Court continued the

proceedings and, under § 69 par. 1 of Act no. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations (the “Act on the

Constitutional Court”), requested a statement from the Ministry of Labor

and Social Affairs of the CR.
 

In

its statement of 26 July 2004 the Ministry of Labor and Social Affairs

(the “MLSA”) summarized the reasons which led to issuing the contested

decree. According to the MLSA they were primarily constitutional law

reasons arising from Art. 2 par. 4 of the Constitution of the CR and

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

“the Charter”). The Charter provides that everyone may do that which is

not prohibited by law; and nobody may be compelled to do that which is

not imposed upon him by law. Under Art. 11 par. 4 of the Charter

expropriation or some other mandatory limitation upon property rights is

permitted in the public interest, on the basis of law, and for

compensation. Art. 79 par. 3 of the Constitution of the CR provides that

if they are so empowered by statute, the ministries, other

administrative offices, and bodies of territorial self-governing units

may issue regulations on the basis of and within the bounds of that

statute.
 

In this regard the

MLSA also pointed to Constitutional Court judgment file no. Pl. ÚS

45/2000, under which the constitutional definition of the derived

norm-creation by the executive rests on the following principles:

another legal regulation must be issued by an authorized body, it may

not interfere in matters reserved to statute (thus, it can not set forth

primary rights and obligations), and it must indicate the clear intent

of the legislature for regulation to exist above the statutory standard

(space must be open for the sphere of another legal regulation).
 

Decree

no. 19/1991 Coll., issued before the passage of the Constitution of the

CR and the Charter, on the basis of now annulled authorization

provisions contained in the Labor Code, did not meet the cited

constitutional norms or the cited legal opinion of the Constitutional

Court, because it imposed on mining employers, beyond the framework and

the bounds of the statutory framework, an obligation to provide their

employees above-standard labor law entitlements out of their own funds

and to fulfill other obligations set forth by the decree.
 

Thus,

decree no. 19/1991 Coll. was inconsistent with the abovementioned

constitutional norms, which define the constitutional boundaries for the

possibility of lawful imprisonment and ownership rights, and thus with

the constitutional order and the laws of the CR. It is contrary to the

principles of a democratic, law-based state for a framework which, in

view of its substance and gravity of impact on employers, should be

regulated directly by statute, to be applied on the basis of

implementing regulation which was issued during the period of central

management of state companies (the decree replaced with effect as of 1

February 1991 a similar Federal Ministry of Labor and Social Affairs

decree, no. 102/1987 Coll.).
 

The

MLSA also stated that under the annulled decree employers in the mining

industry were required to provide severance pay in the amount of 1 to

14 times average monthly earnings out of their own funds to certain

specified employees, although at the time the statutory bounds of

providing severance pay were governed at the time of the decree by § 60a

of the Labor Code so that employees were entitled to severance pay only

upon termination of employment, in an amount of twice the average

earnings. This severance pay could by increased by additional multiples

of average earnings by a collective bargaining agreement or internal

regulation.
 

In connection

with annulment of decree no. 19/1991 Coll., and in accordance with the

amended § 60a par. 2 of the Labor Code, appropriate amendments to

collective bargaining agreements were concluded in individual mining

companies, which governed the provision of severance pay in cases of

termination of employment on health grounds.
 

Under

the annulled decree, employers in the mining industry were required to

provide to employees with incapacity for their previous work wage

equalization out of their own funds, in the amount of the difference

between their average gross earnings before transfer or severance of

employment and the gross earnings received at their new place of

employment. The statutory bounds of providing wage entitlements are

defined by Act no. 1/1992 Coll., on Wages, Compensation for Work Standby

and Average Earnings, as amended by later regulations. As regards the

bounds of applying an implementing regulation in these cases, § 8 par. 3

of Act no. 1/1992 Coll. authorizes the government to set by directive

only under what conditions the appropriate state administration body

will pay expenses for any wage supplementation to the employer that

provided it. However, neither Act no. 1/1992 Coll. nor any other act

permits an implementing regulation to establish an employers’ obligation

to provide wage equalization (a wage supplement) in other cases, in

particular in cases which were set forth by § 7 of decree no. 19/1991

Coll.
 

Employers in the

mining industry were also required, without any basis in law, certain

special obligations, which no statute imposed on them, vis-à-vis a

circle of employees under decree no. 19/1991 Coll. They were thus

required to transfer those employees to other suitable work, and were

required to ensure that they be given an opportunity to re-qualify under

special regulations, and to discuss the possibility of employment in

different work after re-qualification.
 

Thus,

one can generally say, according to the MLSA, that in these cases the

annulled decree no. 19/1991 Coll. replaced a statutory framework in an

impermissible way, and that by issuing it and leaving it in effect even

after passage of the Constitution of the CR the executive branch

appropriated an authorization which, under Art. 2 par. 4 of the

Constitution of the CR and Art. 2 par. 3 of the Charter, belongs

exclusively to the legislature. Therefore, the MLSA took the step of

annulling the decree.
 

Decree

no. 19/1991 Coll. was issued on the basis of authorization contained

until 31 May 1994 in § 148a and § 275 par. 1 let. b) of the Labor Code.

After passage of the Constitution of the CR and of the Charter, both

these authorizations were annulled by Act no. 74/1994 Coll. The

legislature did this in view of the need to observe the constitutional

principle that nobody may be compelled to do that which is not imposed

upon him by law, and by annulling these authorizations it ensured that

the executive branch no longer had the authority to impose the

abovementioned obligations on employers in the mining industry. However,

the executive branch did not annul decree no. 19/1991 Coll., even

though it was clearly inconsistent with Art. 2 par. 4 of the

Constitution of the CR, Art. 2 par. 3 of the Charter and Art. 79 par. 3

of the Constitution of the CR, apparently because of fears that such a

step would be poorly received by mining industry employees. Therefore,

decree no. 19/1991 Coll. was not annulled until the contested decree no.

405/2003 Coll.
 

The MLSA

prepared the annulling decree in accordance with Art. 10 par. 3 of the

Legislative Rules of the Government of the CR, under which “If a draft

act proposes repealing an act, or part of it, to which an implementing

regulation has been issued, the annulling provisions of the draft act

shall also propose annulling that legal regulation. If, before this

procedure is applied, the legal order contains an implementing

regulation that was issued on the basis of the already annulled

authorization provision, the following procedure is followed: if the

issued regulation is a decree, it shall be annulled by a decree, the

introductory sentence of which shall set forth the relevant section of

the Act on Establishment of Ministries and Other Central State

Administration Bodies.” Therefore, decree no. 405/2003 Coll. cites § 9

and § 24 of the Establishment Act.
 

As

regards the earlier decision by the Supreme Court of the CR concerning

decree no. 19/1991 Coll., to which the petitioners refer, it did not,

according to the MLSA, say that the decree is consistent with the

constitutional order, but merely said that the decree is a valid

component of the legal order, i.e., that it was issued in the prescribed

manner, and that it must be followed until such time as it is annulled

in the prescribed manner in accordance with the legal order. In no event

did the Supreme Court of the CR cast doubt on the right of the ministry

to annul decree no. 19/1991 Coll., nor, in view of the principles for

the functioning of a law based state, could it have done so.
 

The

Constitutional Court, under § 69 par. 2 of the Act on the

Constitutional Court, sent the petition to the ombudsman, asking him to

state by the statutory deadline whether he was entering the proceedings

as a secondary party. By official letter of 13 July 2004 the ombudsman

expressed his intent not to enter the proceedings.
 

By

a filing of 2 September 2004 the petitioners informed the

Constitutional Court that they wished to have a hearing before the

Plenum of the Constitutional Court.
 

In

a hearing held on 20 October 2004, the petitioners expanded the

arguments contained in the written petition, adding that by annulling

the decree the MLSA violated the principle of protection of acquired

rights. At the hearing, the MLSA representative said that the grounds

for annulling the decree can be divided into two spheres. One sphere is

constitutional law grounds, which the MLSA discussed in its statement on

the written petition; the second sphere is the fact that the Czech

Republic has joined the European Union. According to information

available to the MLSA, maintaining this above-standard performance

guaranteed by the decree would considerably burden the competitiveness

of companies that hire these employees, in the European context.
 


II.
 

The

Constitutional Court first stated that the petition was filed by an

authorized entity in accordance with § 64 par. 2 let. b) of the Act on

the Constitutional Court (in this case by a group of 40 deputies, as the

signature of one the named petitioners is missing at the end, that of

JUDr. Z. R., a deputy of the Chamber of Deputies) and it is a

permissible petition (§ 66 of the Act on the Constitutional Court a

contrario).
 

However, the

Constitutional Court points out that it did not grant the petition for

the Union of Mining, Geology and Petroleum Industry Workers to be added

to the proceedings as a secondary party. Under § 28 par. 1 of the Act on

the Constitutional Court, parties to proceedings before the

Constitutional Court are the petitioner and those specified by the Act

on the Constitutional Court. Also, secondary parties to proceedings are,

under § 28 par. 2 of the Act on the Constitutional Court, only those to

whom the Act on the Constitutional Court grants such standing. In

proceedings to annul statutes and other legal regulations (abstract

review of norms), a party to the proceedings is the entity that issued

the contested legal regulation, and the ombudsman may be a secondary

party in proceedings to annul other legal regulations, if he so chooses

by the statutory deadline.
 

Therefore,

in terms of defining parties and secondary parties to proceedings, the

Act on the Constitutional Court is based on the principle of legality,

i.e. the entities in question receive their status directly from the

Act. Therefore, the Constitutional Court could not add the union to the

proceedings as the group of deputies proposed. This procedural position

for a trade union as an association of interests in which the economic

and social interests of a certain group of employees are

institutionalized, is barred by the very substance of proceedings on

annulment of statutes and other legal regulations. Undoubtedly, trade

unions, just like associations of employers in particular sectors of the

economy, have an important role in a modern state in terms of the

representation and aggregation of various interest and demands, which do

not always find a platform in other institutions typical of

parliamentary democracy. On the other hand, it must be respected that

the circle of persons who by law have the status of parties or secondary

parties to proceedings was chosen by the legislature so that it would,

to a certain extent, reflect the principles on which the constitutional

order of the CR is constructed (that is, above all the principle of

democratic legitimacy of state bodies, the principle of separation of

powers and protection of minorities), and so as to correspond to the

subject matter of proceedings (i.e., evaluation of the consistency of

legal regulations with the constitutional order of the CR). These

principles are matched by the statutory definition of the circle of

parties and secondary parties to proceedings on annulment of statutes

and other legal regulations (§ 64 of the Act on the Constitutional

Court). Expanding parties or secondary parties by other entities – e.g.,

political parties, interest groups, etc. – would be inconsistent with

the abovementioned principles, on which the state authority and

political system in the CR are constructed, and they would be

expressions of principles which are typical of political systems on

different models (e.g. neo-corporativism – for definition of the term

see, e.g., Schubert, K.: Interessenvermittlung und staatliche

Regulation. Opladen, Westdeutscher Verlag 1989 – or a consotional model

of democracy – see, e.g. Lijphart, A.: Consotional Democracy. World

Politics, No. 2/1969, p. 207 - 225, in Říchová, B. Lisa, A. (ed.):

Antologie světových politologů [Anthology of World Politologists].

Prague, VŠE 1995, p 9-32.).
 

The

fact that a trade organization or union does not have and can not have

the status of a secondary party in proceedings on annulment of statutes

and other legal regulations does not prevent the Constitutional Court

for asking it for a statement as part of presentation of evidence.

However, in this case the Constitutional Court considered it superfluous

because – as will be come evident – the subject matter for review by

the Constitutional Court was not the issue of social and economic rights

of a certain circle of employees, to which the jurisdiction of the

annulled decree applied, but primarily the issue of the scope of

authority and jurisdiction and the issue of the relationship between the

legislative and executive branch in connection with derived norm

creation.
 

In view of these

facts, the Constitutional Court denied the petition to permit the

participation of the Union of Mining, Geology and Petroleum Industry

Workers as a party to the proceedings.
 


III.
 

A)

Under § 68 par. 2 of the Act on the Constitutional Court, it is the

task of the Constitutional Court in proceedings on the constitutionality

of statutes and other legal regulations to evaluate whether the content

of a contested regulation is consistent with the constitutional order

of the CR, and to determine whether it was issued within the bounds of

constitutionally provided jurisdiction and in a constitutionally

prescribed manner.
 

The

petitioner’s petition contests Ministry of Labor and Social Affairs

decree no. 405/2003 Coll., under which, with effect as of 1 December

2003, Federal Ministry of Labor and Social Affairs decree no. 19/1991

Coll. was annulled. Decree no. 19/1991 Coll. was issued on the basis of

statutory authorizations contained in § 148a and § 275 par. 1 let. b) of

the Labor Code, in the wording in effect until the coming into effect

of Act no. 74/1994 Coll., which annulled the statutory authorization to

issue the decree.
 

In this

case the issue of the content of the contested legal regulation, which

only led to annulment of decree no. 19/1991 Coll., coincides with

evaluation of whether the MLSA issued the contested decree within the

bounds of its authority and jurisdiction, that is, whether the

ministry’s actions are constitutional, when by the contested decree it

annulled the previous decree in a situation where the authorizing

statutory provision, on the basis of which the previous decree had been

issued, was annulled by the legislature.
 

In

their petition, the petitioners raised a more general issue, whether

the ministries and other administrative offices have derived (secondary)

norm creating authority to annul a previous sub-statutory legal

regulation in a situation where the authorization to enact the original

sub-statutory legal framework has been deleted from the statute.

According to the petitioners, there is at present no statute in the

legal order which would contain authorization to issue such a decree,

even if it were a decree which contained only annulling provisions.

According to the petitioners, a valid legal regulation issued on the

basis of a no longer existing authorization can not be annulled

otherwise than by statute. The petitioners thus in other words present

to the Constitutional Court the opinion that the only constitutional

procedure is for the legislature to authorize the executive to expressly

annul secondary legal regulations or annuls such a framework itself, by

statute. According to the petitioners, a different course of action,

that chosen in this case by the MLSA, is inconsistent with the

constitutional order of the CR.

B) State authority in the CR is

based on a certain concrete model of the separation of powers (Art. 2

par. 1 of the Constitution of the CR). The Constitution of the CR

constructs the relationships between the powers so that they form a

complex system of checks and balances. That system is implemented in

practice through various methods of legitimizing state bodies, the ways

they are created, and the scope and content of the rights and

jurisdictions with which state bodies are endowed. Therefore, when

evaluating the scope and content of the powers of individual state

bodies from constitutional law viewpoints, it is always necessary to

measure them using the system of checks and balances, that is, in the

wider perspective, by the principle of separation of powers.
 

One

of the key areas in which the principle of separation of powers is

reflected is the sphere of dividing norm-creating authority between the

legislative and executive branches. While the legislative branch is

endowed with general authority to create legal norms, in the area of

norm creation the executive branch is limited by the Constitution of the

CR only to the creation of derived, secondary legal regulations, if it

is expressly authorized thereto by the legislative branch, and it is the

legislature which sets forth the frame and content boundaries of norm

creation for the executive branch.
 

Under

Art. 79 par. 3 of the Constitution of the CR the ministries, other

administrative bodies, and local government bodies may issue legal

regulations on the basis and within the bounds of a statute, if they are

authorized to do so by the statute.
 

In

the Constitutional Court’s opinion, authority and jurisdiction must be

distinguished. The authority of a state body must be understood as the

exercise of state authority in an appropriate form (i.e., in the form of

norm creation or individual decision making), while jurisdiction is the

quite specific substantive definition of issues regulated in the

process of exercising authority. Art. 79 par. 3 of the Constitution of

the CR must be interpreted from this point of view, to the effect that

the authority of ministries and other administrative bodies, or local

government bodies, to issue derived secondary legal regulations is based

on Art. 79 par. 3 of the Constitution of the CR. This is a legal norm

which, on a general level, establishes the authority of executive branch

bodies to create secondary legal norms on the condition that the

exercise of that authority is specified more closely in a statute in

relation to a particular jurisdiction (a certain statutorily defined

component of the exercise of state authority). In other words, the

authority of the executive to issue sub-statutory legal norms is

established directly in the Constitution of the CR, not in a statutory

framework. The statutory authorization which corresponds to the

requirements in Art. 79 par. 3 of the Constitution of the CR, is then

fulfillment of that authority in terms of scope and content

(jurisdiction).
 

The reason

for establishing this authority directly in the Constitution of the CR

is the fact that this concerns the crucial question of separation of

powers between the legislative and executive branches in norm creation.

Thus, on the one hand Art. 79 par. 3 of the Constitution of the CR

creates the authority of the executive branch for derived norm creation,

and thus actually sets its limits in relation to the legislative

branch, and on the other hand this provision must be understood to

simultaneously provide protection for the executive branch from

unconstitutional interference by the legislative branch. The ultimate

consequence of this would be that if the norm creation authority of the

executive branch were constituted only by statute, it would be at the

disposal of the legislature, whereby the legislative branch could, by

itself, interfere in the authority of the executive branch, for example,

by taking such authority completely away from the executive branch.

However, the concept contained in the Constitution of the CR assumes

that the legislature does not create this authority through ordinary

statutes; on the contrary, the Constitution of the CR only gives the

legislature the ability to authorize the executive branch, in a specific

case, to exercise the authority in the form of specific jurisdiction. A

particular executive body is then required to exercise this

jurisdiction (in the sense of substantive definition of issues regulated

in the process of exercise of authority) on the basis of and within the

bounds of the statute which authorized it to create a secondary legal

norm.
 

In this regard we can

point out that the Constitutional Court has already stated in its

earlier decisions (cf. judgment Pl. ÚS 5/01, published as no. 410/2001

Coll. and others) what rules constitutional authorization for derived

norm creation by the executive branch is subject to: a directive must be

issued by an authorized entity, may not interfere in matters reserved

to statute, and the will of the legislature for regulation beyond the

statutory framework must be evident (thus, space must open for the

sphere of the directive).
 

However,

we must state that these requirements in terms of the principle of

separation of powers function ambivalently so that on the one hand they

set clear limits for the executive branch in secondary norm creation,

and on the other hand they also determine limits for the legislature so

that they create an area which – if the legislative branch creates it in

terms of jurisdiction – can not be interfered with at will.
 

Thus,

on one hand this provision limits the executive branch in relation to

the legislative branch (it is actually an expression of the

constitutional principle of the legitimizing function of democracy – the

people – and the principle of separation of powers under Art. 2 par. 1

of the Constitution of the CR)’; on the other hand, of course, it also

provides protection to the executive branch from unconstitutional

interference by the legislature. In other words, the legislature is also

required to observe constitutional limits in relation to secondary norm

creation by the executive branch.
 

If

in a particular case the legislature authorizes the executive branch to

implement a statute, it is impermissible, in terms of separation of

powers, for the legislature then to change that legal framework itself

by reserving to itself the right to make changes or by taking away the

jurisdictional order and passing a new framework through primary norm

creation. Otherwise, as stated above, the legislature is only authorized

to set limits for the executive branch for exercise of secondary norm

creation.
 

The fact that such

delineation of powers sets limits for bodies of both the executive

branch and the legislative branch corresponds to the principle of

separation of powers. The Constitutional Court has stated in the past

regarding this that “The Parliament of the Czech Republic, consisting of

the Chamber of Deputies and the Senate, has only legislative power, and

lacks executive or judicial power. The only executive power of the

Chamber of Deputies lies in its ability to discipline its members or

agree to their criminal prosecution; it also performs non-legislative

functions consisting of the ability to establish an investigative

commission for investigating matters of public interest and the ability

to interview the government and its members. Thus, the Chamber of

Deputies may not interfere in any way in the executive branch or in

local government, with the exception of a motion for action or

recommendation, etc.” (cf. file no. Pl. ÚS 1/2000, published as no.

107/2000 Coll.).
 

The

terminological identification of derived legal regulation is only a

formal matter which is not determinative of legislative authority or

jurisdiction. The fact that regulations issued by ministries and other

administrative offices under Art. 79 par. 3 of the Constitution of the

CR are not marked “decree” (§ 1 par. 2 of Act no. 309/1999 Coll., on the

Collection of Laws and the Collection of International Treaties, as

amended by later regulations) is irrelevant in terms of the scope and

content of norm creating powers and jurisdiction.

C) The question

of the “normative life” of an implementing legal regulation after the

annulment of the authorizing provision in the relevant statute is not

regarded uniformly in theory or practice. In one approach, the

derogation of a statute implicitly annuls all legal regulations issued

on its basis and for its implementation (cf. Knapp, V., Grospič, J.,

Šín, Z.: Ústavní základy tvorby práva [The Constitutional Bases of the

Creation of Law]. Prague 1990, p. 184). Another approach comes from the

thesis that the creator of a directive itself is always required to

annul or amend it if it becomes inconsistent with a newly issued

regulation of higher legal force (see Hendrych, D.: Správní právo,

obecná část [Administrative Law, General Part]. Prague 1994, p. 33). And

finally, there is the theoretical view that implementing regulations

should cease to be in effect as a consequence of the annulment of the

source of legal force of decrees of ministries and other central state

administration bodies, i.e., the authorizing statute (Filip, J.: Ústavní

právo 1. základní pojmy a instituty. Ústavní základy ČR.

[Constitutional Law 1. Basic Cocnepts and Institutions. Constitutional

Foundations of the CR.] MU – Supplement, Brno 1999, p. 254.). On the

other hand, the theoretical view exists that mere annulment of a

statutory authorization does not end the legal life of regulations

issued on the basis of that authorization (Koudelka, Z.: Obecně závazné

vyhlášky. [Generally Binding Regulations] MU Brno 1998, p. 83).
 

The

practice of the legislature and the executive branch, and especially

the case law of the courts, also do not give a completely unambiguous

answer to this question. The Constitutional Court itself has ruled on

this issue in the past that “deleting the authorizing statutory

provision can not automatically annul a decree issued on the basis of

that authorization, unless that is expressly stated in the statute, so

the contested decree remains a valid component of the Czech legal order”

(Pl. ÚS 3/2000, published as no. 231/2000 Coll. as amended by

announcement of the Constitutional Court no. 130/2001).
 

In

this regard we can also point to the newer case law of the Supreme

Administrative Court, which took the cited Constitutional Court judgment

as a starting point, and stated that it is not  possible to reach a

substantively supported conclusion that a regulation is invalid only on

technical legislative grounds, that is, only because the original

statutory authorization was derogated and “shifted” to a different

statute. Therefore, the fundamental substantive imperative must always

be the specific and clearly expressed will of the legislature. The

decisive factor for the legal effects of a regulation is its substantive

relationship to the expressed will of the legislature (cf. judgment of

the Supreme Administrative Court file no. 5 A 75/2002).
 

The

issue presented by the petitioners is also evaluated in this context in

the theoretical and practical fields, to the effect that “if an

implementing regulation was not annulled by a new statute, it continues

in effect. Because the authorization to issue an implementing regulation

ceases to exist after the statute is annulled, the ability to annul

that regulation also ceases to exist.” (see Zářecký, P.: K normotvorné

činnosti ministerstev a jiných správních úřadů. [On the Norm Creating

Activities of Ministries and Other Administrative Offices] Správní právo

[Administrative Law] no. 3/96, p. 140).

D) The foregoing

indicates that the question of the MLSA’s authority to issue the

contested decree must be viewed in terms of the constitutional principle

of separation of powers. In any case, from constitutional law

viewpoints, this principle is determinative and primary in comparison

with the structure and hierarchy of the legal order, which is derived

from the position and functions of individual branches and state bodies

or local government bodies and from the powers with which the individual

branches are endowed by the Constitution of the CR. The hierarchy of

the legal order and the legal force of individual legal regulations is

only a reflection of individual constitutional principles, such as the

principle of democratic legitimacy of the state authority and the

legitimizing function of the people, the principle of separation of

powers, etc.
 

The annulment

of the relevant authorizing provisions in § 148a and § 275 par. 1 let.

b) of the Labor Code did not result in automatic derogation of decree

no. 19/1991 Coll., which was thus, even after 31 May 1994, a valid

component of the legal order, although hardly applicable without

anything further, i.e. effective, component of the legal order. However,

it is undisputed that the will of the legislature at the time expressed

the desire for the subject matter regulated by the decree to be

integrated in the text of the statute in future (cf. the background

report to the draft of Act no. 74/1994, publication no. 548/93). In

other words, in terms of the construction of the text of the statute,

which in this case must also be interpreted by the intent of the

legislature expressed in the background report, this case concerned an

implicit order to the executive branch for the relevant sub-statutory

implementing legal framework to be formally legally annulled.
 

If

the legislature annuls the relevant authorizing provision of a statute,

one can not say that this derogation, without anything further, evokes

the formal derogation of implementing legal regulations, but it is

necessary in that situation to always review the material prerequisites

for the existence and functioning (effectiveness) of that derived legal

regulation. That legal regulation – until it is formally annulled by

another normative legal act – remains a valid legal regulation, but in

applying it one must take into account the fact that the substantive

prerequisite for the functioning of that regulation, that is, a specific

statutory authorization, is lacking.
 

Peripherally,

the Constitutional Court points out that if the judicial branch is in

that situation faced with the question of whether to apply the relevant

legal regulation, it must necessarily deal with the absence of

substantive prerequisites for the functioning of that legal regulation,

i.e., its effectiveness, and deny application to that regulation (Art.

95 par. 1 of the Constitution of the CR).
 

Therefore,

decree no. 19/1991 Coll. was a valid legal regulation until it was

formally annulled by decree no. 405/2003 Coll., but, of course, a

regulation which, in view of the lack of material conditions for its

further normative functioning (the absence of statutory authorization,

subject matter regulated beyond the statutory scope, etc.) was not an

effective and applicable regulation, i.e., one which was really capable

of having legal effects.
 

As

regards the question of the MLSA’s authority to annul the decree, one

must begin with the facts stated above, in particular with the

functioning of the principle of separation of powers. These facts

indicate that the MLSA, whose jurisdiction also includes the legal

framework contained in the annulled decree (§ 9 of the Establishment

Act), had the authority to annul the original decree no. 19/1991 Coll.,

without express statutory authorization being necessary.
 

The

authority to issue legal regulations was not established by the

annulled authorizing provision contained in the Labor Code, as the

petitioners believed, but by Art. 79 par. 3 of the Constitution of the

CR, which reflects the constitutional principle of separation of powers.

In other words, during the entire period of existence of the

implementing legal regulation, the relevant executive body has the

authority to amend it – if that amendment observes the requirement

contained in Art. 79 par. 3 of the Constitution of the CR – or even to

annul it. Even after statutory authorization to issue an implementing

legal regulation is annulled, the executive body has norm creating

authority, but only authority to derogate from that legal regulation,

and because this situation concerned an act of annulment – i.e., an act

without substantive content – it did not need statutory – i.e., 

jurisdictional – definition, which applies, as stated above, only to the

scope and content of such an act. In fact the legislature can not issue

authorization to annul a sub-statutory regulation, because this is an

independent sphere of authority of the executive branch, which is not,

in such a case, tied to the legislature, because the executive branch is

issuing, on the basis Art. 79 par. 3 of the Constitution of the CR, an

act without substantive content, which the legislature could influence

by a simple statute. And on the contrary, it would be a violation of the

principle of separation of powers if the relevant legal framework

contained in an implementing legal regulation were amended directly by

the legislature.
 

In the

adjudicated case this conclusion is also supported by the fact that the

legislature itself, in connection with annulling statutory

authorizations contained in the Labor Code, declared that the regulation

contained in the decree should be part of a statute, not a

sub-statutory implementing regulation (see the background report to the

draft of Act no. 74/1994 Coll.), whereby the MLSA gave an implicit

instruction for the relevant decree to be annulled.
 

Therefore,

one can not accept the opinion of the petitioners that it is only the

legislative branch which was authorized to annul the original decree, or

to empower the executive branch to annul it. On the contrary, one must

insist that if the legislature continued to consider it suitable and

useful to extend the legal framework contained in decree no. 19/1991

Coll., it would now have to include it directly in the text of the

statute.
 

Insofar as the

petitioner, in the hearing, pointed to the principle of protection of

acquired rights, the Constitutional Court adds that the issue of

acquired rights to the instant claims will be addressed in individual

disputes before the general courts, if it arises.
 

In

view of the foregoing facts, the Constitutional Court concluded that

there are no grounds here to annul the contested legal provision, and

therefore it denied the petition under § 70 par. 2 of Act no. 182/1993

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

Notice: Decisions of the Constitutional Court cannot be appealed.

Brno, 20 October 2004