2002/03/06 - Pl. ÚS 11/01: Railways Act  (283 KB, PDF)

The regulation under Act No. 13/1997 Coll., on Surface Thoroughfares, as amended by Act No. 102/2000 Coll., is thematically closest to the Railways Act. The amended text of this Act differentiates liability for endangering road transport and limits the removal of sources of danger at the expense of the owner or operator to cases where this danger arises from the actions of the owners of land neighboring on the thoroughfare themselves.

Likewise Act No. 50/1976 Coll., on Zoning and the Building Code (the Building Code), as amended by later regulations, entrusts to the building office the right to order, in the public interest, the owner of a construction to perform necessary adaptations, and similarly the owner of a land parcel. The owner is required to perform the ordered adaptations at his own expense (§ 84 para. 1, similarly § 84 para. 4). Under § 94 the building office shall, in the public interest, under the conditions of para. 1 order the owner of a building to perform urgent works to secure it, or under para. 2 shall ensure that they are immediately performed at the owner’s expense.

Other laws, such as the Forests Act, Energy Act, Mining Act, Water Act, Environment Act and Fire Protection Act also contain certain limitations on the exercise of property rights. It is natural that a democratic state in the post-communist phase of its development takes increased care of the protection of freedom of property, which the old regime suppressed or substantially curtailed. However, this does not mean that any limitation whatsoever on the exercise of property is the product or relic of the communist regime. The Czechoslovak Railways Act, i.e. the Act on Railways no. 86/1937 Coll. of Laws and Orders, whose text is reminiscent of Austrian and German legislation on these issues, in § 102 and 103 regulates the forbidden zone and fire zone and provides a number of limitations on the exercise of property rights in that area in § 102 para. 1, 2 and 3, as well as in § 104 para. 1, 2 and 3, and in § 105 on the use of land parcels in the area of the railway. Under § 105 para. 1 “Land parcels in the area of the railway may not be used in a manner that would result in land sliding, rocks falling, objects falling on the tracks, flooding of the tracks or any other endangering of the railway and its operation. The railways administration office may expressly identify land parcels to which this applies”. Under paragraph 2 of the same section. “If land parcels in the area of the railway are used in a manner which is forbidden in para. 1, the railways administration office is authorized to order necessary measures so that the track is not endangered;… The railways company may also be required to take such measures on the account of the user of the land parcels”.

The regulations in the current Czech Republic Railways Act are, however, to a certain extent, comparable with the regulations in other European states. Both the legislature, in the background report to the act, and the ministry, in its statements, point to the Council directives on the development of Community railways of 29 July 1991, as amended by directives of the European Parliament and the Council no. 2001/12/ES, which also concern the principles of ensuring safe operation of the railways and railway transportation. In Germany, for example, under § 23 para. 3 and 4 of the federal Railways Act of 27 December 1993, as amended by regulations in effect, a railway operator and transporter is authorized, within the railway protected zone, to enter another’s land, including for purposes of removing sources of danger to public transportation. The railways act of Baden-Würtemberg of 8. June 1995 provides, in § 5 on protective measures, that the owners and holders of land parcels neighboring the railway must tolerate measures necessary to protect the railway from the effects of nature, such as snowdrifts, falling rocks, caving in and floods. The person in question is authorized to take the necessary measures himself, in agreement with the appropriate office. Under para. 2 vegetation and fences, as well as stacks, piles and other facilities which are not firmly joined to the land, may not endanger the safety and smoothness of rail transportation. Upon a written request from the appropriate office, they must be removed at the expense of the person concerned. The Swiss railways act of 20 December 1957, in§ 21 para. 1, also permits the railway company itself, in urgent cases, to take measures on the lands of third parties to avert danger. Under paragraph 2 the expenses for removing the source of danger are borne by the owner or operator of the land, without being entitled to a claim for compensation. However, an exception to this principle exists: if the sources of danger are trees, the railway company bears the expense of removing the danger, unless it proves the fault of another person. Slovak regulation of these issues is virtually identical with the Czech regulation.

The current text of § 10 of the Railways Act affects in a comparable way precisely those cases in which railway operation was endangered through the action or failure to act of an owner or operator of the source danger and thereby violation of an owner’s obligations under § 127 or § 415 – 420a of the Civil Code and § 4a, as well as § 8 – 10 of the Railways Act. If an owner of real estate adjacent to the railway failed to meet this obligation, under § 10 of the Railways Act it is up to the railways administrative office to order the owner or operator to remove the source of danger, and – if he does not do so – decide to remove the source of danger at his expense. The law can not define all individual steps, acts, manners of behavior and conduct of the owners of adjacent real estate which it considers necessary, in view of the variety of particular situations; however, it assumes that the real estate owner himself – aware of his obligation – keeps track on his land of objects and events which could endanger the operation of the railway and takes care to remove them. Failure to fulfill this obligation need not be only action (e.g. planting a tree in an unsuitable place), but also failure to act (e.g. leaving a tree which grew in an unsuitable place by itself without causation by the owner). The railways administrative office’s right to order the owner to take necessary measures, or a decision to remove a source of danger at his expense, is merely a necessary operating guarantee of priority protection for the safe operation of the railway and thus of an eminent public interest.

In such cases, the provision on removing a source of danger at the expense of a land owner or operator who did not comply with an order to remove it is appropriate. This “advantageous treatment” of the public interest is also, in the interest of protecting property rights, compensated by certain rights of owners, which protect them from arbitrariness by administrative bodies, as the compensation of expenses and damage arising from measures necessary to remove the source of danger to the railway is handled in accordance with the principle of reasonableness. Of fundamental importance in this regard is § 419 of the Civil Code (which is expressly referred to by § 9 para. 2 of the Railways Act), under which “Anyone who averted imminent damage has a right to compensation of expenses incurred for that purpose and to compensation of damages which he incurred thereby, including against the person in whose interest he acted, to a maximum extent corresponding to the damage which was averted.” The commentary to the Civil Code emphasizes that the right to compensation of damages and expenses incurred is also directed against the party in whose interest this party acted. (Jehlička, Švestka and collective of authors, Civil Code, Commentary, 3rd Edition 1996, C.H.Beck).

On the other hand, one can also imagine a number of different situations. Situations, in which the particular obligation of prevention imposed on the owner of real estate in the area of the railway protected zone (operator or owner of the source of danger) would be beyond his realistic possibilities, and his subsequent liability for the source of danger would be in conflict with the principle of reasonableness. This is not merely a situation of "vis major" (a situation caused by events on which the owner could have no influence). It is always necessary to carefully evaluate each case, taking into account all its circumstances. The Railways Act, in the incriminated provision, rules out such an approach, as it sweepingly requires the administrative office to issue a decision on the removal of the source of danger at the owner’s or operator’s expense.

The Constitutional Court notes that, for example, the cited Railways Act of Baden-Würtemberg, although on the one hand it permits the railways office to decide on the removal of vegetation, fences, piles, stacks and other objects which are not firmly joined with the land at the owner’s expense, on the other hand provides a right for commensurate compensation to those owners or users on whom limitations are imposed, which are a disproportionate burden, inequitable and unacceptable vis a vis others (§ 4 para. 4 of the Act). Provision of §  5 of the Act imposes an obligation to tolerate measures take to protect the railways from effects of nature such as snowdrifts, falling rocks, caving in, etc., and in these cases the affected land owner is entitled to commensurate monetary compensation for damage incurred. The land owner can also absolve himself of liability for the source of danger if the particular regime in the railway protected zone made in impossible for him to take due care of his property.

It is evident from the foregoing that the provisions of of the Czech Railways Act are too strict, unequivocal and undifferentiated, so that the sweeping provision of § 10 on removal of a source of danger to the railway at the expense of the owner of that source does not commensurately apply to those cases where payment of the expenses can not fairly be required of the land owner.

In conclusion, on can say that the Constitutional Court respects the specification of the socially binding nature of property under Art. 11 para. 3 of the Charter and Art. 1 para. 2 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, under which the right to protection of property does not interfere with the right of states to pass laws which they consider necessary to regulate the use of property in accordance with the public interest. Such legal regulations are also valid in the Czech Republic, although restrictions on use of property in accordance with the public interest in the Civil Code and other statues do not have – nor, in view of the variety of circumstances, can they have – the character of an inventory of individually specified obligations, but of obligations which are formulated generally, but interpreted commensurately.  

At the same time, however, as far as the sweeping nature of the provision on removal of the source of danger at the expense of its owner or operator goes, the Constitutional Court has no alternative but to agree with the petitioner’s opinion. On this issue, the Czech Railways Act does not yet permit regulation which would be commensurate with the variety of circumstances related to expenses for removing sources of danger for the railway. Because other provisions of the second, third and fourth sentences in § 10 of the Act on Railways would, after annulment of the words “at his expense” in the third sentence, lose the necessary clarity and consistency, the Constitutional Court annulled the contested sentences in full, and thus made possible a fully balanced new regulation.
 
For all the cited reasons, the Constitutional Court decided as is stated in the verdict. Making the judgment go into effect as of 31 December 2002 is intended to make possible a new legislative regulation which would, in particular, also commensurately differentiate the obligations for compensation of expenses related to removing a source of danger to the railways.  

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

Brno, 6 March 2002