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HEADNOTES
The
guarantee of territorial self-government in the Constitution is
laconic. Alongside the differentiation of the local and regional levels
of self-government (Art. 99) territorial self-government is conceived as
the right of a territorial association of citizens, arising from its
characteristics and abilities, as the Constitutional Court stated in its
finding of 19 November 1996, file no. Pl. ÚS 1/96 (Collection of
Decisions of the Constitutional Court, volume 6, p. 375).
“The
Constitutional Court considers local self-government to be an
irreplaceable component in the development of democracy. Local
self-government is an expression of the capability of local bodies,
within the bounds provided by law, to regulate and govern part of public
affairs on their own responsibility and in the interest of the local
population.”
The Constitution makes it possible to support this capability by, among
other things, establishing the legal subject status of territorial
self-governing units, and presumes that self-governing units have their
own property and manage themselves out of their own budget (Art. 101
para. 3). The democratic character of self-government is also confirmed
at the constitutional level in the guarantee of elected representative
bodies (Art. 101 para. 1 and 2 and Art. 102). Of course, the
Constitution also presumes uniform state regulation of self-government
in a statutory framework. The definition of that para.t of public
affairs which a local or regional association of citizens is capable of
managing is entrusted to the legislature, i.e. the state power (Art.
104), not to the constitutional framers, who would define matters of
local significance at the highest level. The constitutions of a number
of other European states also rely on the authorization of the
legislature to define matters of territorially limited importance which
are entrusted to territorial self-governing units.
The right to self-government generally expressed by the Constitution
certainly may not be depleted by the legislature, but it is certain that
the legislature has wide space to determine which affairs are best
managed at the local or regional level without greater interference by
the central state power. It is difficult to determine in advance,
non-politically, expressly from legal, economic, political and other
points of view, which matters have local or regional effect and
therefore deserve to be taken out of the purview of the central power.
Decision making about the jurisdiction of territorial self-government is
always political.. Even matters of clearly local or regional character
can acquire state-wide significance, for example, fundamental human
rights and freedoms may be affected or consequences can be carried
across the borders of the territorial self-governing association of
residents, which is increasingly frequent in an environment with a
highly mobile population.
It can not be overlooked that the Constitution expressly presumes (Art.
105) that territorial self-governing units will share in the exercise
of state power on the basis of statutory authorization. Such sharing of
the exercise of state power of course brings with it the subordination
of self-governing units to state inspection, the purpose of which is to
ensure quality exercise of state power. This subordination must also,
understandably, be based on statute. The constitutional does not say
unambiguously whether the exercise of state administration can be
imposed upon territorial self-governing units compulsorily, or whether
it is possible to execute such statutory transfer only on the basis of
an agreement between the state and the territorial self-governing unit.
In light of the emphasis on self-government, the requirement of a
consensus would certainly appear stronger. On the other hand, however,
it is evident that uniform exercise of state power under transferred
jurisdiction by municipalities, cities, and regions is generally
accepted in this country and has never been disputed as incompatible
with the right of territorial associations of citizens to
self-government. Even the group of senators does not dispute it, as
such, in its petition to annul some provisions of Act no. 320/2002 Coll.
The Czech constitutional standard of local self-government is
supplemented and enriched by a standard which arises from the
international obligations of the Czech Republic, namely from the Charter
of Local Self-Government, agreed on 15 October 1985, which entered into
force for the Czech Republic on 1 September 1999, published in the
Council of Europe under no. 122 ETS and in the Czech Republic under no.
181/1999 Coll. and no. 369/1999 Coll.
The Local Charter is not a classic agreement on human rights; it does
not concern individuals, but associations of citizens, and it
establishes collective rights. The idiosyncrasies of interpreting and
applying it follow from this. The rules it expresses, which create the
European standard of local self-government, can only with difficulty be
self-executing. The European standard of territorial self-government is
expressed by qualities which a party’s self-governments are to exhibit,
or rights which they are to enjoy. The parties have an obligation to
guarantee their territorial self-governments a certain number of such
rights determined by the Local Charter. Rights guaranteed by the Local
Charter to the territorial self-governments of the parties are a
framework. The Local Charter itself, in a number of provisions, presumes
detailed domestic law regulation which surely represents bounds within
which territorial self-government will apply. It definitely does not
guarantee the full freedom of territorial self-government. That is not
the European tradition. Statutes, or other regulations, depending on the
choice and tradition of the parties, may define in detail the range of
matters managed by territorial self-government, including those which a
self-governing unit has an obligation to pursue, its organization,
including the form and status of individual bodies, may determine the
framework for management, and may allocate property and financial
resources. The Local Charter certainly does not make territorial
self-governing units into sovereign bodies similar to states.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Plenum of the Constitutional Court decided 5 February 2003 on a petition from a group of Senators of the Parliament of the Czech Republic to annul points 2, 5, 6, 7, 8, 9 and 11 Art. CXVII of Act no. 320/2002 Coll., Amending and Repealing Certain Acts in Connection with Ending the Activities of District Offices, as follows:
The petition is denied.
REASONING
I.
The
group of senators filed with the Constitutional Court, under Art. 87
para. 1 let. a) of the Constitution of the Czech Republic (the
“Constitution”) and § 64 para. 1 let. b) of Act no. 182/1993 Coll., on
the Constitutional Court, a petition to annul some provisions of Act no.
320/2002 Coll., Amending and Repealing Certain Acts in Connection with
Ending the Activities of District Offices.
The
group of senators seeks annulment of the legal framework which provides
for transferring the employment relationships of employees, officials
of district offices, which are to be terminated as of 1 January 2003
under Art. CXVII of point 1 of Act no. 320/2002 Coll., the Act whose
selected provisions are proposed to be annulled, to territorial
self-governing units (municipalities and cities authorized to exercise
transferred jurisdiction and regions) without the affected employees’
own decision and likewise without the consent of the appropriate
self-governing units. The legal framework which orders this change is
contained in points 2, 5 and 8 Art. CXVII of Act no. 320/2002 Coll., in
this wording:
2. The rights
and obligations from employment relationships of employees of the Czech
Republic assigned to work in district offices (a “district office
employee”) are transferred from the Czech Republic to territorial
self-governing units in cases where the activities of a district office
employee provided by this Act or a special law are transferred to the
jurisdiction of territorial self-governing units.
5.
In the event that an agreement under point 3 is not reached by 1
September 2002, the Ministry of the Interior shall set the numbers and
rules for re-assignment of employees to the appropriate territorial
self-governing units or administrative offices at the proposal of the
chairman of the district office and with the recommendation of the
director of the regional office.
8.
The provisions of § 102 para. 2 let. j) of Act no. 128/2000 Coll., on
Districts (District Establishment), and § 59 para. 1 let. b) of Act no.
129/2000 Coll., on Regions (Regional Establishment), on Setting the
Numbers of Employees of Territorial Self-Governing Units shall not apply
to cases under point 2.
The
group of senators claims that with this framework the legislature
violated and limited the fundamental rights and principles of the
organization of state power enshrined in Art. 8, Art. 79 para. 3 and
Art. 100 para. 1 and Art. 101 para. 4 of the Constitution, Art. 2 para.
2, Art. 4 para. 1, 2 and 4 and Art. 9 of the Charter of Fundamental
Rights and Freedoms (the “Charter”), Art. 6 para. 1 of the Charter of
Local Self-Government (the “Local Charter”) a Art. 4 para. 2 the
Convention on Protection of Human Rights and Fundamental Freedoms (the
“Convention”).
The group of
senators points to Art. 8 and Art. 100 of the Constitution, which
declare self-governing units to be territorial associations of citizens
with the right to self-government in the form of sharing in the exercise
of state power through their representatives. It points to a
Constitutional Court decision (Pl. ÚS 1/96) and Art. 3 para. 1 of the
Local Charter, under which local self-government is an expression of the
capability of local bodies, within the bounds provided by law, to
regulate and govern part of public affairs on their own responsibility
and in the interest of the local population. This includes the ability
to set the numbers of self-government employees. State interference in
this autonomy degrades self-government into the form it took before
1989, the model of national committees controlled from above.
Territorial self-governing units are independent subjects which act in
their own name, which bear their own responsibility, including as
employers. Autonomous decision making on employees is set by § 102 of
Act no. 128/2000 Coll., on Districts (District Establishment), and § 59
of Act no. 129/2000 Coll., on Regions (Regional Establishment). Under
Art. 6 para. 1 of the Local Charter, it is local associations which set
their own internal structure according to their needs. Authoritative
re-assignment of employees interferes with self-governing units’
management of their own property, because it forces them to use para.t
of their assets to pay the employees. However, it does not take the
local financial situation into account.
The
group of senators recognizes that territorial self-government is not
unlimited; it may be interfered with to protect the law and in a manner
provided by law. The contested provisions of the Act, according to the
group of senators, are not capable of causing the transfer of employment
relationships under § 249 of the Labor Code. The contested point 2 is a
general declaration, and no succession can be implemented on the basis
of it, which, in any cases, also follows from the fact that it is not
effective until 1 January 2003. Therefore, transfer is only possible on
the basis of agreement (point 3) or re-assignment (point 5). There is no
objection to agreement. In contrast, authoritative re-assignment (point
5) is a violation of constitutional principles for legislative
regulation, as it is not the Act but the Ministry of the Interior that
decides on the re-assignment of employees to individual self-governing
units. Thus, this violates the legislature’s obligation under Art. 4
para. 1 of the Charter to impose obligations only on the basis of
statute and within its bounds. Nor does this meet the requirement in
Art. 79 para. 3 of the Constitution, under which administrative offices
may issue legal regulations only on the basis of a statue and within its
bounds, if they are authorized thereto by the statute. The legislature
did not set the bounds of this legislative activity by the Ministry of
the Interior. Point 5 governs “rules and numbers.” According to the
group of senators this means that the Ministry’s decision is of a
normative nature. The Constitutional Court has already repeatedly stated
that the legislature and the executive branch may not apply the forms
of law arbitrarily, but must be governed by the directive of the framers
of the constitution and the requirements of transparency, accessibility
and clarity (finding no. 167/2000 Coll.). This requirement has not been
met in this case, as it is not clear whether a decision is published
and to whom it is delivered. The Act does not indicate which territorial
self-governing unit employees are to be transferred to. In practice,
the decision is made by the chairman of the district office. Means of
redress against such decisions are lacking. Thus, state power is applied
inconsistently with Art. 2 para. 2 of the Charter, because statutory
limits for regulation are missing. This also violates Art. 101 of the
Constitution. Interference into the activities of territorial
self-governing units is supposed to be determined by statute, in order
to protect it. Termination of district offices is not a necessary reason
for employing former state employees.
The
group of senators also points to the need to evaluate the disputed
provisions of Act no. 320/2002 Coll. from the point of view of the
employees. Re-assignment binds the employees to another entity, probably
to work in another place, and maybe to perform work of a different
kind, without their will to do so. The conclusion that this labor is of a
forced nature is not changed by the possibility of giving notice,
because the employee will have to work during the notice period. In
addition, he would not be entitled to severance pay. Therefore, the
disputed regulation is inconsistent with Art. 4 para. 2 of the
Convention and Art. 9 para. 1 of the Charter, which prohibit forced
labor, and none of the exceptions have been met. Moreover, the forced
labor is not provided by statute but by a re-assignment decision.
Because
of their connection to the transfer of district office employees’
employment relationships to territorial self-governing units, the group
of senators also proposes annulling related provisions, points 6, 7, 9
and 11 Art. CXVII of Act no. 320/2002 Coll., which read as follows:
6.
In cases where a district office employee’s activities provided by this
Act are not transferred to territorial self-governing units under point
2, the exercise of rights and obligations from a district office
employee’s employment relationships is transferred from the district
office to the Office for State Representation in Property Matters,
unless a special regulation provides otherwise. These employees shall
secure the performance of tasks related to terminating the activities of
district offices after 1 January 2003.
7.
District office employees’ entitlements based on employment
relationships which were not transferred to the appropriate territorial
self-governing units under point 2, as well as entitlements of the Czech
Republic from employment relationships vis-à-vis district office
employees shall be satisfied and exercised in the name of the state by
the Ministry of Finance.
9. The provisions of § 251d of the Labor Code shall not apply to procedures under points 2 and 3.
11.
Personal property owned by the Czech Republic which district offices
had jurisdiction to manage and which is necessary for the performance of
activities transferring to the jurisdiction of territorial
self-governing units under this Act and which is used by district office
employees to whom point 2 applies shall be transferred, with the
exception of things specified in point 12, as of 1 January 2003 from the
Czech Republic to that territorial self-governing unit to which the
rights and obligations from employment relationships of the district
office employees are being transferred.
II.
The
Chamber of Deputies of the Parliament of the Czech Republic, in its
position statement, points to the background report to the draft Act,
which points out that the draft act also addresses the employment
relationships of district office employees. The aim of the re-assignment
provision is to ensure the proper performance of state administration
by the territorial self-governing units to which individual areas of
jurisdiction will be transferred by trained employees, those who are
already performing these activities. In cases where an employee does not
agree to be transferred to a territorial self-governing unit or to the
Ministry of the Interior, labor law procedures will be followed. The
petitioners’ opinion appears self-serving and one-sided, as it does not
observe the requirements for the exercise of state power, specifically
the need for a professional apparatus. Personnel provisions are
connected to the reform of public administration. In view of the fact
that a fundamental condition for re-assignment is agreement by the
parties, this does not, under any circumstances, create forced labor or
services. Granting the petition threatens to endanger the employment and
social certainties of district office employees who agreed with the
transfer of themselves and their functions to regional offices or
district offices of municipalities with expanded jurisdiction. According
to the statement, the Act was properly approved, signed by the
appropriate constitutional representatives, and promulgated. The Chamber
of Deputies is convinced that the Act is consistent with the
constitutional order and the legal order.
The
Senate of the Parliament of the Czech Republic, in its position
statement, points out the circumstances surrounding the passage of the
Act. An amending proposal was filed, pointing to the impermissibility of
authoritative re-assignment as non-permitted interference into the
self-government of municipalities and regions. However, the Senate did
not agree with this proposal. The Act was returned to the Chamber of
Deputies with those amending proposals which the Senate accepted.
Concerning the petition from the group of senators, the Senate points
out that under Art. 105 of the Constitution the exercise of state
administration can be entrusted to self-governing bodies only by
statute. That is what Act no. 320/2002 Coll. is. It transfers the
exercise of state administration to territorial self-governing units in
an unprecedented extent, and some activities are entrusted to the
independent jurisdiction of territorial self-governing units. It aims to
significantly strengthen the position of territorial self-governing
units, not to attempt to limit their constitutional right to
self-government. The contested provisions ensure the proper
implementation of the transfer of jurisdiction to municipalities and
regions. The exercise of state administration is decision making about
the rights and obligations of citizens and legal entities. Therefore, it
is in the general interest to have adequate personnel in the authorized
territorial self-governing units. The general framework of the
contested point 2 is made more specific by further provisions, which
give priority to the jurisdiction of territorial self-governing units in
setting the number of employees. Authoritative re-assignment is an
extreme possibility. In this context the provision on the non-necessity
of a decision by the council of the appropriate territorial
self-governing unit on the number of employees will also hold up.
Self-government of municipalities and regions is not an untouchable
value. Territorial self-governing units are public law corporations
whose priority when fulfilling their tasks is not the protection of
their own interests, but above all the obligation to care for the needs
of citizens and to protect the public interest. The quality of decision
making is certainly such a public interest. The Senate concluded that
providing personnel for the reform of the public administration through
the transfer of employees from terminated district offices to
municipalities and regions will most effectively ensure good quality
decision making practices. Therefore it agreed with the legal framework
at issue. The Minister of the Interior’s assurance that, as part of
organizational measures connected to the reform of the public
administration, corresponding wage funds would be transferred to
territorial self-governing units together with state employees also
contributed to this decision. The Senate further believes that the legal
framework creates an adequate statutory framework for implementing the
transfer of employees. In response to the alleged forced nature of labor
in the transfer on the basis of re-assignment, the Senate states that
the general framework for the transfer of rights and obligations
provided in a number of other statutes would then also have to be found
unconstitutional. The transfer of rights and obligations from employment
relationships means that there is a change of employer, where a new
employer enters into all the rights and obligations of the previous
employer. Nothing else in the employment relationship changes. The
succeeding employer is also bound by the kind of work agreed in the
employment agreement and by the place of performing the work. If an
employer could not allocate the agreed work, it is up to the employer to
negotiate a change. Only if an employee did not agree to the change
can, for example, dissolving the employment relationship be considered.
Until that time an obstacle to work on the part of the employer would
exist. The reason for dissolving the employment relationship is then
such that the employee would be entitled to severance pay.
The
group of senators, in response to the position statements of the
Chamber of Deputies and the Senate, emphasizes that the reform
introduced by the Act does not strengthen self-government, as it
concerns the transfer of functions under transferred jurisdiction. It
also rejects the Senate’s claim that agreement is always a condition for
re-assignment. It points out that the houses of Parliament have not
adequately addressed the question of a statutory basis for setting the
numbers and rules for re-assignment of employees to territorial
self-governing units or administrative offices, and it points out the
existing conflicts between municipalities and the terminated district
offices. The group of senators considers the parallel with labor law to
be inadequate in many respects. Concerning the Minister of the
Interior’s assurance that the transfer of employees to territorial
self-governing units will be financially secured, which contributed to
the Act being passed, the group of senators stresses that no such
entitlements arise from the Act, and that financing of this transfer is
governed only by a government resolution, and only for 2003.
III.
The
petition to annul individual provisions of the Act was filed by a group
of 20 senators, as an authorized petitioner. Because no reason to
reject the petition and no reason to stop the proceedings came to light
in the course of the proceedings, the Constitutional Court discussed the
petition and decided on it (§ 68 para. 1 of the Act on the
Constitutional Court).
IV.
The Constitutional Court then considered the matter under § 68 para. 2 of the Constitutional Court Act. The Constitutional Court verified that the Act whose provisions are proposed to be annulled was duly discussed and approved by both houses of Parliament, was signed by the appropriate constitutional representatives, and promulgated in the Collection of Laws, and it stated that the Act was passed and issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner.
The
Constitutional Court then evaluated the content of the contested
provisions of the Act in terms of their consistency with constitutional
laws and international agreements under Art. 10 of the Constitution.
The
objections of the group of senators against the authorization of the
Ministry of the Interior for authoritative re-assignment of employees
from terminated district offices to the offices or regions, cities and
municipalities, can be divided into three most fundamental and important
ones: 1. a reference to violation of the right to self-government, 2. a
reservation about the forced nature of the labor of a compulsorily
re-assigned employee and 3. notice of the unclear and legally
insufficiently supported manner of deciding on re-assignment.
V.
The
guarantee of territorial self-government in the Constitution is
laconic. Alongside the differentiation of the local and regional levels
of self-government (Art. 99) territorial self-government is conceived as
the right of a territorial association of citizens, arising from its
characteristics and abilities, as the Constitutional Court stated in its
finding of 19 November 1996, file no. Pl. ÚS 1/96 (Collection of
Decisions of the Constitutional Court, volume 6, p. 375).
“The
Constitutional Court considers local self-government to be an
irreplaceable component in the development of democracy. Local
self-government is an expression of the capability of local bodies,
within the bounds provided by law, to regulate and govern part of public
affairs on their own responsibility and in the interest of the local
population.”
The
Constitution makes it possible to support this capability by, among
other things, establishing the legal subject status of territorial
self-governing units, and presumes that self-governing units have their
own property and manage themselves out of their own budget (Art. 101
para. 3). The democratic character of self-government is also confirmed
at the constitutional level in the guarantee of elected representative
bodies (Art. 101 para. 1 and 2 and Art. 102). Of course, the
Constitution also presumes uniform state regulation of self-government
in a statutory framework. The definition of that part of public affairs
which a local or regional association of citizens is capable of managing
is entrusted to the legislature, i.e. the state power (Art. 104), not
to the constitutional framers, who would define matters of local
significance at the highest level. The constitutions of a number of
other European states also rely on the authorization of the legislature
to define matters of territorially limited importance which are
entrusted to territorial self-governing units.
The
right to self-government generally expressed by the Constitution
certainly may not be depleted by the legislature, but it is certain that
the legislature has wide space to determine which affairs are best
managed at the local or regional level without greater interference by
the central state power. It is difficult to determine in advance,
non-politically, expressly from legal, economic, political and other
points of view, which matters have local or regional effect and
therefore deserve to be taken out of the purview of the central power.
Decision making about the jurisdiction of territorial self-government is
always political.. Even matters of clearly local or regional character
can acquire state-wide significance, for example, fundamental human
rights and freedoms may be affected or consequences can be carried
across the borders of the territorial self-governing association of
residents, which is increasingly frequent in an environment with a
highly mobile population.
It
can not be overlooked that the Constitution expressly presumes (Art.
105) that territorial self-governing units will share in the exercise of
state power on the basis of statutory authorization. Such sharing of
the exercise of state power of course brings with it the subordination
of self-governing units to state inspection, the purpose of which is to
ensure quality exercise of state power. This subordination must also,
understandably, be based on statute. The constitutional does not say
unambiguously whether the exercise of state administration can be
imposed upon territorial self-governing units compulsorily, or whether
it is possible to execute such statutory transfer only on the basis of
an agreement between the state and the territorial self-governing unit.
In light of the emphasis on self-government, the requirement of a
consensus would certainly appear stronger. On the other hand, however,
it is evident that uniform exercise of state power under transferred
jurisdiction by municipalities, cities, and regions is generally
accepted in this country and has never been disputed as incompatible
with the right of territorial associations of citizens to
self-government. Even the group of senators does not dispute it, as
such, in its petition to annul some provisions of Act no. 320/2002 Coll.
The
Czech constitutional standard of local self-government is supplemented
and enriched by a standard which arises from the international
obligations of the Czech Republic, namely from the Charter of Local
Self-Government, agreed on 15 October 1985, which entered into force for
the Czech Republic on 1 September 1999, published in the Council of
Europe under no. 122 ETS and in the Czech Republic under no. 181/1999
Coll. and no. 369/1999 Coll.
The
Local Charter is not a classic agreement on human rights; it does not
concern individuals, but associations of citizens, and it establishes
collective rights. The idiosyncrasies of interpreting and applying it
follow from this. The rules it expresses, which create the European
standard of local self-government, can only with difficulty be
self-executing. The European standard of territorial self-government is
expressed by qualities which a party’s self-governments are to exhibit,
or rights which they are to enjoy. The parties have an obligation to
guarantee their territorial self-governments a certain number of such
rights determined by the Local Charter. Rights guaranteed by the Local
Charter to the territorial self-governments of the parties are a
framework. The Local Charter itself, in a number of provisions, presumes
detailed domestic law regulation which surely represents bounds within
which territorial self-government will apply. It definitely does not
guarantee the full freedom of territorial self-government. That is not
the European tradition. Statutes, or other regulations, depending on the
choice and tradition of the parties, may define in detail the range of
matters managed by territorial self-government, including those which a
self-governing unit has an obligation to pursue, its organization,
including the form and status of individual bodies, may determine the
framework for management, and may allocate property and financial
resources. The Local Charter certainly does not make territorial
self-governing units into sovereign bodies similar to states.
The
Local Charter is not equipped with strict instruments for implementing
itself; it lacks a mechanism for handling complaints on the part of
self-government concerning its violation on the part of states-parties,
let alone an effective targeted instrument for implement standards
against states which are really violating the Local Charter. Only
political instruments are available; the parties have an obligation to
inform the Council of Europe on changes in the legislative framework
(Art. 14), the Council of Europe prepares regular reports on the
condition of territorial self-government and bodies functioning within
in which represent territorial self-government and institutions
monitoring the condition and development of territorial self-government
in individual members states, first the Congress of Local and Regional
Authorities of Europe. Nonetheless, a uniform authoritative
interpretation of the provisions of the Local Charter which would
separate cases of permissible state regulation from incompatible
regulation, is lacking. The recommendations of the bodies and
institutions of the Council of Europe to states, vis-à-vis their
legislation and practice concerning territorial self-government have
only limited significance. Generally they do not rely on provisions of
the Local Charter.
Of
course, the weakness of instruments for implementing the Local Charter
changes nothing about its binding nature. The Local Charter is not a
mere declaration; it is a true international agreement, which binds the
parties to it. On the basis of a conception of the constitutional order
that is broad and responsive to international law (Art. 112 para. 1 in
connection with Art. 1 para. 2 of the Constitution, as amended), the
Constitutional Court is authorized to evaluate the consistency of the
Czech Act with international law [Art. 87 para. 1 let. a) of the
Constitution, as amended]. The framework nature of the Local Charter and
the specific nature of the collective rights it expresses do not
prevent it from being used as a measure for the abstract review of the
constitutionality of statutes. However, one can not forget its general
character, which opens a wide space for political deliberation of the
legislature of a state party when creating the relevant legislative
framework. The Constitutional Court is decidedly not called upon to
re-evaluate this political step; it merely verifies whether the bounds
created by the Local Charter were not exceeded.
One
can conclude from provisions of the Constitution and of the Local
Charter that statutory limitations and instructions for the application
of territorial self-government are permissible. In the aggregate, of
course, these rules can not remove territorial self-government
completely. However, an individual regulation can be relatively strict
and restrictive, if there are important, justifiable reasons for this.
The
Local Charter does not contain express provisions on transferring the
exercise of state power to territorial self-governing units. Certainly
for that reason international law does not prohibit the Czech Republic
from it, but excessive burdening of self-governing units with the
exercise of state administration may endanger their property and
financial independence. Moreover, the extensive exercise of transferred
jurisdiction by territorial self-government bodies can lead their
officials into a “schizophrenic” position, where they must
simultaneously take into account both the interests of the territorial
association of persons and the interests of the state. However, the
Local Charter can not be read to prohibit the forced exercise of state
administration by self-government. In connection with the Czech reform
of territorial administration, the Congress, in its recommendation for
the Czech Republic, no. 77 of 2000, supported strengthening independent
jurisdiction, among other things because this would reduce
self-governing units’ dependence on the state when exercising
transferred jurisdiction. Thus, the Council of Europe is aware of the
problems which the transfer of state power to self-governing units
causes for their functioning. However, this transfer was also one of the
main elements of decentralization in the Czech Republic implemented by
reform of public administration in 2000 (by Acts no. 128/2000 Coll., no.
129/2000 Coll. and no. 131/2000 Coll., on the Capital City of Prague,
and other legal regulations). Thus, only with difficulty can it be
considered incompatible with the Local Charter’s main direction.
The
transfer of officials from terminated district offices is related to
the transfer of the exercise of state power to regions and selected
cities and municipalities. Basically the entire agenda entrusted to them
is defined by Act no. 320/2002 Coll. as transferred jurisdiction. At
the present time, when the regional level of self-government is still
being created, one can justifiably have doubts about the ability of
regions to immediately ensure the exercise of state power with their own
forces. To a certain extent the same applies to newly authorized cities
and municipalities which, although they have existed for more than ten
years, will understandable never have as extensive and specialized an
expert apparatus as the regions. Therefore, authoritative re-assignment
can be understood as a transitional measure. A certain space is opened
to regions and authorized cities and municipalities for a gradual change
of personnel, according to their aims, through reorganization, applying
qualification requirements, and so on. This process will be subject to
only limited inspection by central state bodies, whose only purpose is
to prevent the regions, cities, or municipalities from endangering or
failing in the exercise of state administration in transferred
jurisdiction. Although permitting authoritative re-assignment by Act no.
320/2002 Coll. is a limitation on the autonomy of municipalities,
cities and regions to determine the numbers of employees of their
municipal, city or regional office [§ 102 para. 2 let. j) of the Act on
Districts or § 59 para. 1 let. b) of the Act on Regions], but it is a
lawful limitation. The provision on authoritative re-assignment under
Act no. 320/2002 Coll. functions in this regard as a lex specialis
vis-à-vis the cited provisions of statutes on territorial
self-government.
Authoritative
re-assignment is a turning away from the principle of the autonomy of
local associations (territorial self-governing units) to create their
own administrative structures (Art. 6 para. 1 of the Local Charter). In
view of the idiosyncrasies indicated, this can hardly be considered a
violation of the Local Charter. A new model of territorial
self-government connected with the broad exercise of uniform state
administration is still being created in the Czech Republic. The wording
of the Local Charter is reserved; this international agreement speaks
of autonomy defined by more general statutory bounds.
Authoritative
re-assignment of officials from terminated district offices to regions
and authorized cities and municipalities does represent a certain
interference with the property situation of the territorial
self-governing unit; municipalities, cities, and regions have legal
subject status separate from the state, are furnished with their own
property, and manage themselves under their own budget (Art. 101 para. 3
of the Constitution). However, detailed statutory regulation of the
management of territorial self-government is permissible;
self-government does not mean that local associations have sovereignty
(Art. 101 para. 4 of the Constitution).
Czech
territorial self-government is not fully independent in economic
management in other respects as well. Taxes are collected uniformly in
the territory of the entire state under state-wide legislation; only
with some taxes and fees does the state, by its legislation, permit the
municipalities, cities, and regions to range within certain bounds in
setting rates. The state also determines the manner of distributing tax
revenues, today with a high degree of redistribution [Act no. 243/2000
Coll., on the Budgetary Allocation of Revenues from Certain Taxes to
Territorial Self-governing Units and Certain State Funds (the Budgetary
Allocation of Taxes Act)]. Large differences in the property of regions,
municipalities, and cities also resulted from the transfer of para. of
state property (Act no. 172/1991 Coll., on the Transfer of Some Things
from the Czech Republic to Municipalities). The management of cities,
municipalities, and regions is markedly influenced by the subsidizing
activities of central state bodies. The effect of investments made in
municipalities directly by the state on local or regional situations is
not negligible. The compensation framework for office holders and
employees of territorial self-governing units is also state-wide. The
management of municipalities, cities, and regions is also markedly
influenced by the urgency and demands of needs which they satisfy within
their independent jurisdiction.
Territorial
self-government truly separate from the state in terms of property,
comparable perhaps with early self-government in the USA, does not exist
in the Czech Republic, and implementing it is unimaginable for many
reasons. Comparable statutory definitions and limitations of the
functioning and securing of territorial self-governing units exist in
all European states. The Local Charter respects this fact and only
provides principles for sources of territorial self-government; they are
supposed to correspond to the tasks of territorial self-government
(Art. 9 para. 2) and they are to be applied as loosely as possible where
true self-governing activity is concerned (Art. 9 para. 1). The Local
Charter does not mention the financing of the exercise of state
administration by territorial self-government.
The
framework for financing territorial self-governing units, just like the
definition of their tasks, undoubtedly may not be economical but lead
to their financial collapse (Art. 100 para. 1 and Art. 101 of the
Constitution, Art. 9 para. 4 and 7 of the Local Charter). Therefore, the
view of authoritative re-assignment and the functioning of re-assigned
employees of terminated district offices within regions, authorized
cities and municipalities, in light of the Local Charter and of the
Constitution must depend on the manner of state financing of the
exercise of transferred jurisdiction. The present legal framework is not
quite clear. Individual statutes on territorial self-government count
on contributions for the exercise of state administration under
transferred jurisdiction (§ 62 of the Act on Districts, § 29 para. 2 of
the Act on Regions, as amended by later regulations). This contribution
is decided by the state executive branch (the government of the Czech
Republic, the Ministry of the Interior, the Ministry of Finance). The
cited statutes do not formulate a more detailed directive for
determining the amount of the contribution, and there is also no outline
of the procedures for negotiating this amount or dispute resolution
mechanisms. However, the terse statutory provisions on contributions can
still be interpreted in a manner which is constitutional and conforms
to international law so that they represent a guarantee for economically
incurred expenditures in the exercise of state administration under
transferred jurisdiction.
Therefore,
the Constitutional Court intends to refrain from premature
interference. However, it would take action if it found that the amount
of a contribution or circumstances for providing it clearly did not
correspond to the tasks assigned to a territorial self-governing unit.
Insufficient financing of the exercise of state power in transferred
jurisdiction endangers the very existence of functional territorial
self-government. Principles expressed by the Constitution and by the
Local Charter would thus be violated. However, more detailed legislative
regulation of the financing of the exercise of state administration by
territorial self-governing units appears desirable.
VI.
Evaluating
authoritative re-assignment of district office employees to offices of
territorial self-governing units by decision of the Ministry of the
Interior at the proposal of the chairman of the district office, in
terms of the objection of impermissibility of forced labor, can not be
done without a reminder of other comparable cases which our law permits.
Automatic
succession to the place of an employer takes place, for example, upon
the death of the previous employer, a natural person, where the heirs
become the new employer (taking into account probate rules and the
interests of the employee as a creditor), upon the merger of legal
entities of the same or different types, upon the splitting of legal
entities, upon the sale of a business or in connection with the
bankruptcy of an employer. A change in the management or membership of
an employer which is a business company or other legal entity can often
be more significant than a formal change of employer.
Undoubtedly
the main reason for automatically preserving the employment
relationship in these cases is to protect the employee from the threat
of unemployment. Some changes occur unexpectedly and also immediately
(the death of an employer); others can be foreseen, but they take place
relatively quickly (the sale of a business that is in trouble).
Permitting the successor to the rights and obligations of the employer
to end the employment relationship would open room for abuse of this
opportunity; an employer could implement many measures only in order to
get rid of his employment law commitments.
Another
reason for automatic preservation of the employment relationship in
these cases is to protect the property interests of the new employer,
who is usually the general successor in the legal relationships of the
original employer. The immediate departure of employees, who need not
all agree to continue the employment relationship, could cause an
employer not insignificant economic damages and in many business and
institutions there would also be a danger of endangering the interests
of third parties – customers and purchasers of goods and services – and a
state of general emergency also can not be ruled out.
Understandably,
the continuity of an employment relationship with a new employer is
imaginable only if the other requisites of the employment relationship
remain unchanged and correspond to the same conditions. This means
primarily the kind of work, compensation for it, the place of
performance of work or time conditions (the duration of the employment
relationship, work hours and time of rest). Other working conditions are
provided compulsorily and remain unaffected by a change of employer;
for example, the rules for work safety.
In
the event of a foreseeable and prepared change on the part of the
employer, in certain outlined cases under the European standard, the law
newly introduces certain obligations of the current employer: to inform
employees or consult with trade unions. However, all this only confirms
that it is standard practice for an employee to be transferred to
another employer without his express consent, not only in the Czech
Republic, but also in West European states.
Transformation
of the private and public sector in the Czech Republic after 1990 was
accompanied countless times by a change in the legal form of the
employer. It is impossible not to refer to the extensive privatization
of the Czech economy. In these cases the continuity of an employment
relationship was never described as or understood to be the imposition
of forced labor. Authoritative re-assignment of state officials to
self-government units, i.e. only within the sector of the state power,
is, in this regard, a change which, in view of its effects on the
employee, is not among the most serious.
The
opportunity to refuse to work for a new employer is, with regard to the
employer’s justified interests, adequately ensured by the employee’s
ability to give notice without stating a reason, which is accompanied by
the obligation to work temporarily during a two month notice period.
This can be considered proportionate, in view of the usual possibilities
of an ordinary employer to find new employees.
The
employee’s obligation to work during the notice period represents a
certain “tax” on employees for the legislative stabilization of
employment relationships by a modern social state. Under these
conditions the employer also deserves a certain stabilization in the
area of employment relationships.
The
Constitutional Court has not yet expressed an opinion on these aspects
of the exercise of employment in terms of fundamental rights under Art. 9
of the Charter. The case law of the European Court for Human Rights
also does not support the position of the group of senators, in
reflecting Art. 4 of the Convention, which prohibits slavery or forced
labor. Also, no authoritative interpretation going against the model
foreseen by Act no. 320/2002 Coll. is presented in this regard in
relation to the right to earn one’s living in freely chosen employment
under Art. 1 para. 2 of the European Social Charter. The Convention on
Forced or Authoritative Labour (no. 29) of the International Labour
Organization (no. 506/1990 Coll.), which is aimed at slavery and feudal
practices and obligatory manorial labor can scarcely be seen as an
obstacle to this model. Nor does a cursory foreign comparison help. The
German Constitutional Court has not, in any case cited in the
specialized publications, spoken unfavorably on the comparable German
legal framework.
The
following facts can be stated concerning the authoritative re-assignment
of employees, officials of district offices, to municipal, city, and
regional offices, which is prescribed by Act no. 320/2002 Coll.
The
kind of work performed remains the same or comparable, the appropriate
territorial self-governing unit steps into the position of the state as
employer if the activity of the employee concerned is transferred to the
jurisdiction of the territorial self-governing unit. Each particular
case certainly depends on how the kind of work is defined in the
employment agreement. The need for a consensual change in the kind of
work is surely routine within the transfer of the exercise of state
administration.
Payment
conditions are preserved, and Act no. 143/1992 Coll., on Salaries and
Compensation for Work Readiness in Budgetary and Some Other
Organizations and Bodies, in the current version, will continue to
apply.
In view of the fact
that regional offices and city and municipal offices are usually located
in different municipalities and cities than the terminated district
offices, it will be common for bureaucrats to move. In all cases of
authoritative re-assignment to a workplace in a different municipality,
an agreement on a change in the place of performance of work after 1
January 2003 is necessary between the bureaucrat of the district office
assigned to handle employment law relationships and the relevant
employee.
A district office
employee who rejects his re-assignment to an authorized territorial
self-governing unit could have prevented it by giving timely notice of
termination of his employment relationship. The final schedule for
termination district offices has been known half a year in advance, and
the reform of the decentralized exercise of state administration has
been under preparation even longer. In view of the qualification of the
employees concerned, the bureaucrats of district offices, and in view of
the role of district offices in implementing the reform, one can not
agree that they have been insufficiently informed about changes which
will affect them personally.
The
authoritative re-assignment of district office employees in practice is
described by the Ministry of the Interior’s Method Instruction for the
Implementation of the Transfer of Employees of District Office to
Territorial Self-Governing Units of 9 July 2002, which expects that some
of the employees of terminated district offices will refuse to transfer
to a territorial self-governing unit in view of the change of
workplace, and concludes that in such cases it is possible for the
district office as employer to give termination notice on grounds of
redundancy caused by organization changes. This Instruction also takes
into account the need for a change in the kind of work performed, and
emphasizes the necessity of an agreement between the employee and
employer. In the absence of agreement there is here too the possibility
of termination notice given to an employee on grounds of redundancy. For
internal purposes the Ministry of the Interior selected an
interpretation of the relevant provisions of Act no. 320/2002 Coll. that
protects the position of the bureaucrats in terminated district offices
above the constitutional or international standard, which can only be
welcomed.
VII.
Objections
concerning the failure to observe legal form point out the brevity of
provisions of Act no. 320/2002 Coll., which do not expressly answer
every question. For example, it is not evident to what extent, if at
all, the Ministry of the Interior is bound by the proposal from the
chairman of a terminated district office and the recommendation of the
director of a regional office. An indication of how to resolve
disagreements between the chairman’s proposal and the director’s
recommendation is also lacking. The tasks of the regional office
director and the expectations to which he is subjected are not easy; the
director is supposed to simultaneously defend the interests of the
region and the interests of the state in the exercise of state power by
the region and in inspection of municipalities and cities in their
exercise of state power.
The
nature of individual decisions by the Ministry on the authoritative
re-assignment of employees from terminated district offices to regions,
cities and municipalities also appears to be disputed. The decisions –
whether taken collectively for entire districts or regions or separately
for individual departments and divisions and individual cities or
municipalities – can best be characterized as collected legal acts;
however, they are not normative acts, as they regulate the legal
relationships of precisely specified natural persons (the re-assigned
bureaucrats) and legal entities (the appropriate regions, authorized
cities and municipalities). The source of law remains solely provisions
of Act no. 320/2002 Coll.
Act
no. 320/2002 Coll. does not provide more precise rules for how to take
into account agreements under point 3 when preparing and issuing
decisions on authoritative re-assignment. It is evident that
authoritative re-assignment would occur anyway, in an extent which
corresponds to the number of functions transferred, without regard to
such consensus. Nevertheless, the legislature made possible agreements
between the employee, the state (represented by the district office) and
a territorial self-governing unit. It thereby opened room to apply the
solution which best suits the parties. In view of the previously evident
extent of the transfer of the exercise of state administration to
territorial self-governing units, there are no grounds for concern that a
territorial self-governing unit which was forthcoming in concluding
re-assignment agreements would remain disadvantaged.
There
is a danger of inequality perhaps in those cases of authoritative
re-assignment where functions are divided not according to the
population density of the administered territory, but according to the
idiosyncrasies of its territory, population, economy and cultural and
social situation. The projection of these facts need not always fully
correspond to social needs, and then there is a danger of inequality
arising between individual territorial self-governing units. However,
the interference requested of the Constitutional Court out of fear of
such cases appears premature and exaggerated.
A
decision on authoritative re-assignment is reviewable by a court. As a
decision by a body of state (public) administration, which decides on
the entitlements and obligations of subjects of law (the affected
bureaucrats, employees, and appropriate regions, cities and
municipalities), it is subject to judicial review under Art. 36 para. 2
of the Charter, as neither Act no. 320/2002 Coll. nor any other statute
expressly excludes a decision of the Ministry from judicial review. In
view of the probable effect on fundamental rights and freedoms and
fundamental principles of state organization, such exclusion would
evidently be inconsistent with the Charter and the Constitution.
VIII.
After
reviewing the case at issue and analyzing the matter in terms of the
conformity of provisions of Act no. 320/2002 Coll. with the
constitutional order, the Constitutional Court concluded that
authoritative assigning of the exercise of state power to territorial
self-governing units arising from the contested provisions, including
the re-assignment of employees is compatible with the Constitution. The
manner of financing the exercise of state power by territorial
self-governing units, assuming that the state contribution will be
sufficiently high for the performance of the assigned tasks, does not
represent a danger to the autonomy of territorial self-governing units
under the Constitution and the Charter of Local Self-Government. The
authoritative re-assignment of employees from terminated district
offices can not be seen as forced labor. The legal instruments
introduced into the law in connection with the termination of district
offices and the transfer of the exercise of state administration to
authorized bodies of territorial self-governing units are acceptable
from a constitutional viewpoint.
The
contested provisions of Act no. 320/2002 Coll. were not found
inconsistent with the constitutional order, as is required for making a
finding of derogation by Art. 87 para. 1 let. a) of the Constitution of
the Czech Republic no. 1/1993 Coll., as amended by constitutional Act
no. 395/2001 Coll., and therefore the Constitutional Court denied the
petition from the group of senators to annul points 2, 5, 6, 7, 8, 9 and
11 Art. CXVII of Act no. 320/2002 Coll., Amending and Repealing Certain
Acts in Connection with Ending the Activities of District Offices,
under § 70 para. 2 of the Act on the Constitutional Court.Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 5 February 2003