2005/06/14 - Pl. ÚS 1/05: Generally Binding Ordinance - Local Fees

14 June 2005

HEADNOTE

The

specification of places used as public grounds (in the settled case law

of the Constitutional Court concerning the interpretation of § 14 par. 2

of Act no. 565/1990 Coll., on Local Fees) is necessary, in particular,

for the reason of legal certainty of the owners of land considered to be

public grounds, because, even though ownership of such land is

insignificant in terms of the statutory definition of public grounds

under § 34 of the Act on Municipalities, it is undisputed that precisely

the owners of such property have an opportunity to defend themselves

(through private law proceedings) against special use of their land.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court of the Czech Republic, composed of

justices Stanislav Balík, František Duchoň, Vojen Güttler, Pavel

Holländer, Ivana Janů, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří

Nykodým, Pavel Rychetský, Miloslav Výborný, Eliška Wagnerová (judge

rapporteur) a Michaela Židlická, decided on 14 June 2005 in the matter

of a petition from the Minister of the Interior, Mr. F. B., seeking the

annulment of Art. 1 par. 1 let. c) and Art. 16 to 22 (part IV.) of the

generally binding ordinance of the municipality of Svojšín of 30

December 2003, no. 5/2003, on Local Fees, as amended by generally

binding ordinance of the municipality of Svojšín of 24 May 2004, no.

1/2004, with the participation of the municipality of Svojšín, with its

registered office at Municipal Office of Svojšín, no. 135, post office

Stříbro, represented by K. P., the mayor of the municipality, as

follows:
 

I. Art. 17

of the generally binding ordinance of the municipality of Svojšín of 30

December 2003, no. 5/2003, on Local Fees, as amended by generally

binding ordinance of the municipality of Svojšín of 24 May 2004, no.

1/2004, is annulled.

II. The remainder of the petition from the Minister of the Interior is denied.

 


REASONING


I.
 

In

a petition sent on 13 January 2005, which meets the criteria of content

and form under Act no. 182/1993 Coll., on the Constitutional Court, as

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

the Minister of the Interior (the “petitioner”) seeks the annulment of

the cited provisions of the generally binding ordinance of the

municipality of Svojšín no. 5/2003, as amended by generally binding

ordinance no. 1/2004, due to their inconsistency with the law.
 

The

cited generally binding ordinance no. 5/2003 went into effect on 1

January 2004. On 18 March, 2004, in accordance with § 124 par. 1 of Act

no. 128/2000 Coll., on Municipalities (Municipal Establishment), as

amended by later regulations (the “Act on Municipalities”), the Regional

Office of the Pilsen Region sent the municipality of Svojšín a notice,

no. j. LPVV/690/04, to arrange a correction of the ordinance, as the

Regional Office found that Art. 17 and Art. 23 of the ordinance were

inconsistent with the law. Based on this notice, the municipality of

Svojšín, by generally binding ordinance of 24 May 2004, no. 1/2004,

amended the text of Art. 23. However, Art. 17 was not amended by the

statutory deadline, and therefore the Regional Office, in its filing of 1

September 2004, file no. Ř/218/04, proposed that the ministry of the

interior suspend the effect of generally binding ordinance of the

municipality of Svojšín no. 5/2003, as amended by generally binding

ordinance no. 1/2004 (the “ordinance”). On 12 November 2004 the ministry

opened administrative proceedings to suspend the effect of Art. 1 par. 1

let. c) and Art. 16 to 22 (part IV.) of the ordinance. Because the

municipality did not even then arrange a correction in the matter, the

ministry of the interior, by decision of 4 January 2005, file no. MS -

1965/1 - 2004, suspended the effect of the cited provisions of the

ordinance. This decision was delivered to the municipality of Svojšín on

6 January 2005.

The contested provisions of the ordinance read as follows:

Generally Binding Ordinance no. 5/2003 on Local Fees
The

representative body of the municipality of Svojšín, at its meeting on

30 December 2003, decided, on the basis of § 14 par. 2 of Act no.

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

accordance with § 10 let. d) and § 84 par. 2 let. i) of Act no. 128/2000

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

regulations, to issue this generally binding ordinance:

Part I. Basic Provisions
Article 1
1. The municipality of Svojšín introduces and collects these local fees:
a) a fee for dogs,
b) a fee for spa or recreational stays,
c) a fee for the use of public grounds,
d) a fee for accommodation capacity,
e) a fee for the operation of a gambling machine.
2.

Local fees shall be administered by the Municipal Office of (the “fee

administrator”). Administrative proceedings on fees are subject to Act

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

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

amended by later regulations, provides otherwise.

Part IV. Fee for Use of Public Grounds
Article 16
Subject of the Fee
The subject of the fee is the use of public grounds in a special manner, which means placing garbage dumps there.

Article 17
Public Grounds
Public

grounds means the village green, roads, local roadways, sidewalks,

public greenery, parks sporting areas, and other areas within the

municipality of Svojšín and the settlements of Holyně, Nynkov and Řebří,

accessible to everyone without restriction, i.e. available for general

use, regardless of ownership of the area.

Article 18
Fee Payer
1. A fee payer is a natural person or legal entity who uses public grounds in the manner provided in article 16.
2.

If the same part of public grounds is used by several fee payers, they

are jointly and severally liable for payment of the entire fee. The fee

administrator may require payment of the fee from any one of them.

Article 19
Obligation to Notify
1.

A fee payer is required to notify the fee administrator of use of

public grounds in writing or orally, by recording a protocol, no later

than the day after use begins. If that day falls on a Saturday, Sunday

or public holiday, the day when the fee payer is required to fulfill the

notification obligation is the next following business day.
2. In

fulfilling the notification obligation, the fee payer is required to

give the fee administrator the last name, name or company name of a

legal entity, residence or registered address, birth identification

number or company identification number. In the case of a natural person

or legal entity which is an entrepreneur, he shall also provide the

numbers of accounts at financial institutions where funds from the

entrepreneurial activity are kept, the area used in square meters, and

the expected length of time of use of the public grounds.
3. Upon

termination of use of public grounds the fee payer is required to notify

the fee administrator of this fact in the same manner and by the same

deadline as in par. 1.
4. Par. 1, 2 and 3 shall not apply if the use of public grounds lasted for a period of less than 24 hours.

Article 20
Fee Rates
1. The fee is CZK 10 per square meter, or part thereof, per day, or part thereof, of use of public grounds .
2. A day means one calendar day, regardless of which part or how great a part of the day the fee payer uses the public grounds.
3.

The fee is paid through the day when use of public grounds terminated

and the public grounds were returned to the original condition.

Article 21
When Fees Are Due
The fee is due:
a)

if public grounds are used for a period of up to 30 days, no later than

15 days from the day when use of the public grounds was terminated,
b) if public grounds are used for a period longer than 30 days, no later than the last day of each calendar month.

Article 22
Exemption
1. Use of public grounds is not subject to the fee:
a)

if it is used by an owner or co-owner of used real estate which is

considered public grounds, provided that his ownership share is at least

25%,
b) in the first 10 calendar days of use.
2. A fee payer is

required to notify the fee administrator of the creation of an

entitlement to exemption from the fee on the grounds provided in par. 1

let. a) in writing or orally, by recording a protocol, simultaneously

with fulfilling the notification obligation under Art. 19 par. 1.
3. A

fee payer is required to notify the fee administrator without delay of

the expiration of an entitlement to exemption due to the grounds

provided in par. 1 let. a) ceasing to exist.
 


II.
 

In

his filing, the petitioner claims that the definition of the term

“public grounds” in Art. 17 of the ordinance is inconsistent with the

constitutional order of the Czech Republic, specifically with Art. 2

par. 2, par. 4 of the Constitution of the CR and Art. 2 par. 2, par. 3

and Art. 4 par. 1 of the Charter of Fundamental Rights and Freedoms (the

“Charter”), and is also inconsistent with § 14 par. 2 of Act no.

565/1990 Coll., on Local Fees, as amended by later regulations (the “Act

on Local Fees”). According to the petitioner, the principle of a

law-based state provided by the constitutional order of the Czech

Republic quite unquestionably includes the principle of legal certainty,

which includes a requirement for specificity of obligations imposed by

generally binding legal regulations on individual subjects of law. In

the petitioner’s opinion, the wording of Art. 17 of the ordinance does

not meet this legal obligation, as the terms “public greenery” and

“other areas accessible to all without restriction” are not a precise

definition. He also argues that the Constitutional Court has also stated

the requirement for precise definition of places for which fees for use

of public grounds are collected in its case law, specifically in

decisions published under no. 80/1995 Coll., no. 280/1995 Coll., no.

8/2002 Coll. and no. 567/2004 Coll. In the conclusion of the filing, he

proposes that the Constitutional Court annul not only Art. 17 of the

ordinance, but also Art. 1 par. 1 let. c) and Art. 16 to Art. 22 of the

ordinance, because, in view of the unconstitutionality of Art. 17, these

other provisions of the ordinance are also inapplicable.
 

The

Municipality’s Mayor, Karel Petráň, responded to the petition in the

name of the municipality. In his response, he stated that the definition

of “public grounds” in the ordinance is based on the legal definition

provided in § 34 of the Act on Municipalities. According to him, the

contested ordinance provision in no way exceeds the legal framework for

definition of public grounds, and the municipality’s requirement

imposing a fee for use of public grounds, including in this special

manner, is entirely justified. He adds that if a municipality does not

intend to impose fees only for the use of certain selected areas, but

has decided to impose fees for the special use of all public grounds, it

would be superfluous to define the grounds individually.

Differentiating grounds in a manner which would not lead to uncertainty,

by eliminating the possibility of confusing them, would of course have

to be required if the collection of a local fee were to apply only in

connection with the use of selected places. However, the municipality of

Svojšín, within its jurisdiction, introduced a fee for the use of all

public grounds in its territory, and the subject of the fee is only the

placement of garbage dumps under further specified conditions, and other

special ways of using public grounds are not subject to a fee. As the

mayor of the municipality argues further, in view of the fact that

ownership is not definitive for classifying areas as public grounds

under a positive legal definition, for that reason too, in the situation

described above, it is completely impractical to identify the grounds

in an individual manner, e.g. by listing properties by lot numbers in

the real estate register, or a photograph of the real estate register

indicating the relevant lots as an appendix to the generally binding

ordinance of the municipality. In his opinion, it would be possible to

make such a definition at the time the local legal regulation is issued,

but it could not be valid long-term, in view of the practical changes

implemented independently of this regulation. In response to the

petition from the Minister of the Interior to also annul Art. 1 par. 1

let. c) and Art. 16 - Art. 22 of the ordinance, the municipality states

that even if the Constitutional Court found Art. 17 to be

unconstitutional, it should not accede to annulling other provisions of

the ordinance, as the remaining part of the text, after deleting the

defective part, would continue to be legally, logically and

linguistically a complete unit capable of independent legal life. The

municipality is of the opinion that the abovementioned decision by the

ministry of the interior to suspend the effectiveness of the ordinance

is inconsistent with Art. 8 and Art. 101 par. 4 of the Constitution of

the CR, and therefore proposes that the Constitutional Court deny the

petition from the Minister of the Interior.
 

In

response to an inquiry from the Constitutional Court, as to whether he

intended to join the proceedings as a secondary party (under § 69 par. 2

of the Act on the Constitutional Court), the Public Defendor of Rights

stated that he would not join the proceedings.
 


III.
 

After

finding that the filed petition was formally admissible, the

Constitutional Court proceeded according to the test applied in the

matter file no. Pl. ÚS 63/04 (published as no. 210/05 Coll.).
 

The

Constitutional Court first reviewed whether the contested ordinance was

issued within the powers of the municipality and passed in a statutory

manner.
 

Under Art. 104 par. 3

of the Constitution of the CR, municipalities, or their representative

bodies, are endowed with the power to issue generally binding ordinances

within the framework of their jurisdiction. This activity must be seen

as original norm creation.
 

The

cited ordinance was duly approved by resolution at the 7th meeting of

the representative body of the municipality of Svojšín, held on 30

December 2003. The minutes of the representative body’s meeting show

that seven of the nine members of the representative body were present

(cf. § 87 of the Act on Municipalities); five members voted to approve

the ordinance and two members abstained. The ordinance was thus passed

by a majority of all members of the representative body (§ 92 par. 3 of

the Act on Municipalities) and it was promulgated by being posted on the

official notice board of the Municipal Office of Svojšín on 30 December

2003; it was then taken down from the official notice board on 19

January 2004 (§ 12 par. 1 of the Act on Municipalities). Because of

pressing public interest, the ordinance went into effect on 1 January

2004 (§ 12 par. 2 of the Act on Municipalities).
 

Generally

binding ordinance of the municipality of Svojšín of 24 May 2004, no.

1/2004, which amended the abovementioned generally binding ordinance,

was approved by resolution of the municipal representative body on 24

May 2004. Out of seven members of the representative body present, 5

members voted to approve this generally binding ordinance. This

generally binding ordinance was promulgated by being posted on the

official notice board of the municipal office on 24 May 2004; it was

taken down from the official notice board on 18 June 2004. Because of

pressing public interest, it went into effect on the day of

promulgation, i.e. 24 May 2004.
 

Thus,

it is evident that the contested ordinance was issued in a legal manner

and within the framework of powers entrusted to the municipality by the

Constitution of the Czech Republic.
 


IV.
 

The

Constitutional Court then focused on reviewing whether the

municipality, in issuing the contested ordinance, acted ultra vires,

i.e. acted outside the substantive jurisdiction defined for it by law,

and also whether it misused the jurisdiction entrusted to it by law (cf.

the test from the abovementioned judgment in file no. Pl. ÚS 63/04,

published as no. 210/05 Coll.).
 

Under

§ 35 par. 3 let. a) of the Act on Municipalities, when exercising its

independent jurisdiction (generally defined by § 35 par. 1 of the Act on

Municipalities), a municipality is guided by statute when issuing

generally binding ordinances. The definition of areas in which a

municipality is authorized to create original law corresponds to this

statutory instruction. The Act on Municipalities (§ 10) provides in

which substantively defined area a municipality may impose obligations

through a generally binding ordinance issued within its independent

jurisdiction. This includes, among other things, the situation where a

municipality is authorized to do so by a special law [§ 10 let. d) of

the Act on Municipalities].
 

In

this case that special law is Act no. 565/1990 Coll., on Local Fees, as

amended by later regulations (the “Act on Local Fees”), under § 14 par.

2 of which a municipality shall introduce fees through a generally

binding ordinance, in which it shall set forth details on how they are

to be collected, and in particular shall set a specific rate for fees, a

notification obligation concerning the creation and extinction of the

obligation to pay the fee, payment deadlines, reductions and possible

exemption from fees. With a fee for the use of public grounds, it shall

define places in a municipality which are subject to a fee for use of

public grounds. The setting of fees by a generally binding ordinance

which a municipality introduced in its territory on the basis of statute

must be seen as original norm creation, because under § 14 par. 1 of

the Act on Local Fees this activity is part of the municipality’s

independent jurisdiction.
 

Thus,

insofar as the municipality issued an ordinance on local fees which

also regulates the imposition of a fee for use of public grounds, these

actions can not be considered to be ultra vires, because in this case

the municipality was authorized by statute to regulate the particular

substantive area by a generally binding ordinance issued within its

independent jurisdiction.
 

The

Constitutional Court then addressed the issue of whether the

municipality did not misuse its statutorily substantively defined

independent jurisdiction. As the Constitutional Court has already stated

(see the abovementioned judgment file no. Pl. ÚS 63/04, published as

no. 210/05 Coll.), “abuse of this jurisdiction means exercise of power

in the statutorily entrusted area 1.) by pursuing a goal which is not

approved by statute, 2.) by ignoring relevant considerations in making

the decision, or on the contrary, 3.) taking into account irrelevant

considerations.”

In this

case the petition from the Minister of the Interior is aimed against

part IV. of the ordinance, which governs the fee for use of public

grounds in a special manner, i.e. for placement of garbage dumps. Under §

1 let. c) of the Act on Local Fees, municipalities may collect local

fees fro the use of public grounds. This provision is further expanded

upon and specified in more detail in § 4 par. 1 of the Act on Local

Fees, under which a fee for use of public grounds is collected for

special use of public grounds, which includes the placement of garbage

dumps.
 

Insofar as the

contested ordinance provides in Art. 16 that a special manner of use

means the placement of garbage dumps, there can be no objection against

this provision, because the municipality defined the subject matter of

the fee quite consistently with the statutory text (see also the

abovementioned § 4 par. 1 of the Act on Local Fees).
 

Of

course, the petitioner’s main objection is aimed against Art. 17 of the

ordinance, which defines (for purposes of the ordinance) the term

“public grounds.” It states that “Public grounds means the village

green, roads, local roadways, sidewalks, public greenery, parks sporting

areas, and other areas within the municipality of Svojšín and the

settlements of Holyně, Nynkov and Řebří, accessible to everyone without

restriction, i.e. available for general use, regardless of ownership of

the area.” It is evident that in this case, the municipality applied to

its real estate registration area the legal definition of the term

“public grounds” which is established in § 34 of the Act on

Municipalities, under which public grounds are all town squares,

streets, marketplaces, sidewalks, public greenery, parks and other areas

accessible to everyone without restriction, that is, available for

general use, regardless of ownership of the area. This definition

generally defines what kind of areas can be considered public grounds.
 

Art.

11 par. 5 of the Charter directly indicates that taxes and fees can be

imposed only on the basis of statute, i.e. that municipalities can

introduce through generally binding ordinances only such local fees as

are exhaustively defined by the Act on Local Fees and only in the scope

made possible by that Act. Under § 14 par. 2 second sentence of the Act

on Local Fees, it is the obligation of the municipality to designate

places in the municipality which are subject to fees for use of public

grounds (under § 4 par. 1 of that Act, this means special,

statutorily-defined public grounds).
 

The

Constitutional Court has already addressed in its decisions the degree

of specificity in designating areas (public grounds); the Court

considers it necessary, from the point of view of protecting the legal

certainty of citizens, that the defined public grounds be specified as

precisely as possible in a generally binding ordinance (cf. e.g., the

judgment file no. Pl. ÚS 50/03, published as no. 567/2004 Coll.). As the

Constitutional Court stated, “the imposition of fees need not apply to

all public grounds, and therefore the public grounds precisely defined

for purposes of a fee for special use must rule out the possibility of

confusion. Therefore, it is necessary to specify public grounds for

special use by stating the name of the location (if it has one – a town

square, street, passageway, etc.) or to describe it by its location in

the municipality more precisely so as not to disrupt the legal certainty

of citizens” (judgment of the Constitutional Court in file no. Pl. ÚS

14/95, published as no. 280/1995 Coll.).
 

It

is evident from the foregoing that, in passing the generally binding

ordinance, the municipality neglected to respect the statutory

requirements concerning the precise definition of places used as public

grounds in the manner in which the Constitutional Court previously

interpreted it when interpreting § 14 par. 2 of the Act on Local Fees,

that is, so that the legal certainty of the municipality’s residence

would be protected. The specification of such places is necessary, in

particular, for the reason of legal certainty of the owners of land

considered to be public grounds, because, even though ownership of such

land is insignificant in terms of the statutory definition of public

grounds under § 34 of the Act on Municipalities, it is undisputed that

precisely the owners of such property have an opportunity to defend

themselves (through private law proceedings) against special use of

their land (cf. judgment of the Constitutional Court file no. Pl. ÚS

21/02, no. 211/05 Coll.).
 

Thus,

insofar as the municipality did not precisely specify in the ordinance

the places which it considers to be public grounds in connection with

imposing a fee for special use, it abused the independent jurisdiction

substantively defined for it, as a result of neglecting to respect the

constitutional principle of legal certainty arising from the principle

of a law-based state (Art. 1 of the Constitution of the CR), which is

reflecting in § 14 par. 2 of the Act on Local Fees, which must be

interpreted in a constitutional manner, as previously indicated by the

Constitutional Court.
 

As

regards the Minister’s petition concerning the annulment of Art. 1 par. 1

let. c) and the remainder of part IV. of the ordinance the

Constitutional Court adds that by annulment of Art. 17 of the ordinance

the remaining part IV. of the ordinance becomes de facto inapplicable;

its provisions, of course, were not found to be inconsistent with the

constitutional order. Therefore, to respect the principle of minimizing

its interference in the norm creation of municipalities, the

Constitutional Court denied this petition form the Minister of the

Interior to annul the cited provisions of the decree, because these

provisions will again become applicable (unchanged) after the

municipality amends the annulled Art. 17 of the ordinance to be

consistent with the constitutional order.
 

In

view of the foregoing, the Constitutional Court partially granted the

petition from the Minister of the Interior, and without ordering

hearings with the consent of the parties to the proceedings, annulled

Art. 17 of the contested generally binding ordinance of the municipality

of Svojšín no. 5/2003, on Local Fees, under § 70 par. 1 of Act no.

182/1993 Coll., on the Constitutional Court, as amended by later

regulations, as of the day this judgment is promulgated in the

Collection of Laws, and denied the remainder of the petition from the

Minister of the Interior.

Notice: Decisions of the Constitutional Court cannot be appealed.

Brno, 14 June 2005