Pl US 16/02
                               
                               

A  municipality  is  authorized to establish,  in  a  generally
binding  ordinance issued on the basis of  §  10b  of  Act  no.
565/1990  Coll., on Local Fees, exemption from or reduction  in
fees  (§  15 of the Act), assuming that this does not  lead  to
circumventing the law and discrimination against fee payers. In
evaluating this fact it is necessary to review the meaning  and
purpose of a given exemption (reduction).
   If  the  relevant version of Act no. 185/2001 Coll. did  not
presume  that  the  municipality  can  collect  payment  on   a
contractual  basis  from  natural persons  for  the  gathering,
collection,  transport, sorting, use and  removal  of  communal
waste,   a  generally  binding  ordinance  can  not  set   such
"exemption"   from   the  fee  as  subsequently   permits   the
municipality  to introduce, for one category of fee  payers,  a
contractual  payment which is basically at a lower  level  than
the payment obligation.
    A   different  procedure  would  be  a  violation  of   the
abovementioned Act and also circumvention of § 10b para.  3  of
the  Local  Fees  Act,  as  the cited  provision  unambiguously
defines  how the municipality's expenses arising in  connection
with handling communal waste are to be distributed between  two
categories  of  fee  payers (with permanent  residence  in  the
municipality  or  without  it).  The  consequence  of  this  is
discrimination  against  fee payers, where  one  group  of  fee
payers is illegally (and unjustifiably) given an advantage over
the other.


The  Plenum of the Constitutional Court decided, in the  matter
of  a petition from the Chairman of the District Office in Zdar
nad   Sazavou  to  annul  a  generally  binding  ordinance   of
municipality  V.  of  6 December 2001 no.  04/2001  (note:  the
ordinance is incorrectly marked as no. 04/20001) on a local fee
for   operation   of  the  system  of  gathering,   collection,
transport,  sorting,  use,  and  removal  of  communal   waste,
discussed  without  an oral hearing, with the  consent  of  the
parties to the proceedings, as follows:
   I. Art. 4 of generally binding ordinance of municipality  V.
of  6 December 2001 no. 04/2001 on a local fee for operation of
the  system  of gathering, collection, transport, sorting,  use
and  removal of communal waste, is annulled as of the day  this
judgment is promulgated in the Collection of Laws.
  II. The remaining part of the petition is denied.


                           REASONING

I.
By  petition of 3 July 2002, filed in accordance with Act [sic]
§  64  et seq. of Act no. 182/1993 Coll., on the Constitutional
Court,  as  amended by later regulations; (the  "Constitutional
Court  Act"), the Chairman of the District Office in  Zdar  nad
Sazavou  proposed annulment of the generally binding  ordinance
of  municipality  V.  cited in the heading  (the  "ordinance"),
issued under the municipality's independent jurisdiction, which
reads as follows:

"Generally binding ordinance of municipality V. no. 04/20001
on  a  local  fee  for  operation of the system  of  gathering,
collection,  transport, sorting, use, and removal  of  communal
waste.
   The  municipal  council  of municipality  V.  issues,  on  6
December  2001, under § 15 of Act no. 565/1990 Coll., on  Local
Fees as amended by later regulations, and in accordance with  §
10,  let.  a)  and § 84, para. 2, let. i) of Act  no.  128/2000
Coll.,   on  Municipalities  (Municipal  Establishment),   this
generally binding ordinance.

Art. 1
The  fee  shall be administered by the municipal office  of  V.
(the "fee administrator") and proceedings concerning fees shall
be  handled under 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.

Art. 2
Fee payer
The fee shall be paid by: a) a natural person who has permanent
residence  in  the  municipality. The fee may  be  paid  for  a
household by a joint representative, and for a family house  or
apartment building by the owner or administrator. These persons
are  required to inform the fee administrator of the names  and
dates  of birth of persons who are paying the fee, b) a natural
person who owns a building designated or serving for individual
recreation,  in  which  no person is registered  for  permanent
residence.  If  several people have ownership  rights  to  this
building, they are liable to pay the fee jointly and severally,
in an amount corresponding to the fee for one natural person.

Art. 3
Rate of fee
   1. The rate of the fee for a fee payer under Art. 2, let. a)
and  b)  of this ordinance is CZK 467, and consists of: a)  the
amount  of CZK 250 per calendar year and b) the amount  of  CZK
217  per  calendar  year. This amount is set according  to  the
municipality's  actual expenses in the previous  year  for  the
collection and conveying of unsorted communal waste. The actual
expenses were CZK 164,796, and were allocated as follows:
  CZK 164,716 ÷ 760 persons = CZK 217/person
   2.  In the event of a change, during the course of the year,
in  the  place  of  permanent residence  or  a  change  in  the
ownership  of  a  building which is designated  or  serves  for
individual  recreation, the fee shall be paid in a proportional
amount  which corresponds to the number of calendar  months  of
residence  or ownership of a building in the relevant  calendar
year. If a change occurs during a calendar month, the situation
at  the  end of the month shall be used to determine the number
of months.

Art. 4
Exemption
   1. The following are exempt from the fee: - fee payers under
Art.  2  para.  a)  of this ordinance who take the  opportunity
under  Ordinance no. 03/2001 Art. 4, para. 9 on the  System  of
Handling  Waste  in Municipality V., 100 %,  if  the  following
conditions are met: - a contract is concluded with municipality
V. for the removal of an appropriate number of waste containers
(garbage  cans);  -  they  will thus liquidate  an  appropriate
amount of waste in a demonstrable manner; - they observe  other
obligations  arising  from the decree  on  the  waste  handling
system  in Vír.; - they conclude a contract, including  payment
by  the  end  of January; - if it is found that  any  of  these
conditions  were not met, the entitlement to exemption  expires
and the fee will be imposed retroactively in full.
  2. A fee payer is required to inform the fee administrator in
writing or orally that he has become entitled to exemption from
the  fee within 15 days from the day when the facts arose which
establish  entitlement  to  the exemption.  The  fee  payer  is
required to announce the termination of his entitlement to  the
exemption by the same deadline.

Art. 5
Payment Due Dates
   1.  The  fee for a fee payer under Art. 2, let. a)  of  this
ordinance  is  payable in one payment, from 15  January  to  31
January of the relevant year.
   2.  The  fee for a fee payer under Art. 2, let. b)  of  this
ordinance is payable in one payment, no later than 31 March  of
the relevant year.

Art. 6
Information Obligation
A fee payer under Art. 2, let. a) of this ordinance is required
to  inform  the  fee  administrator of the termination  of  his
payment  obligation  as  a  result of  a  change  in  permanent
residence in the municipality, no later than 10 days  from  the
day when the change occurred.
   1.  A  fee payer under Art. 2, let. b) of this ordinance  is
required to inform the fee administrator of the termination  of
his payment obligation as a result of a change in ownership  of
a building designated or serving for individual recreation.

Art. 7
If  a fee is not paid on time or in the correct amount, the fee
administrator shall set the fee by a payment assessment and may
raise  an overdue fee by up to 50%. The assessed fee is rounded
up to whole crowns.

Art. 8
The fee administrator may impose, on anyone who does not meet a
non-financial obligation by a deadline set by this ordinance or
a  decision,  a fine under §37, of Act no. 337/1992  Coll.,  on
Administration  of  Taxes  and  Fees,  as  amended   by   later
regulations.

Art. 9
   1.  If  a  fee payer does not meet the information (payment)
obligation  provided by this generally binding  ordinance,  the
fee  due can be assessed within three years from the end of the
calendar  year  in  which the information (payment)  obligation
arose.
   2.  Periods  of limitation are governed by Act no.  337/1992
Coll., on Administration of Taxes and Fees, as amended by later
regulations.

Art. 10
The  fee administrator may, on the basis of an application from
the  fee payer, reduce or waive [the fee] in individual  cases,
on the grounds of alleviating or removing hardship.

Art. 11
This  ordinance goes into effect on 1 January 2002.Deputy Mayor
Mayor of the Municipality

Posted on: 10 Dec. 2001

Taken down on:"

In  his  petition, the Chairman of the District Office in  Zdar
nad Sazavou states that on the basis of § 15 para. 1 let. h) of
Act  no.  147/2000 Coll., on District Offices,  as  amended  by
later regulations, he issued, on 20 February 2002, a measure in
which,  under  §  124  para. 1 of Act no.  128/2000  Coll.,  on
Municipalities (Municipal Establishment), as amended  by  later
regulations, (the "Municipalities Act") he suspended  execution
of  the  ordinance on the grounds of illegality. At its meeting
on  26 April 2002, the municipal council took cognizance of the
suspension  of the ordinance. At its next meeting, held  on  26
June  2002, no action was taken in the matter of the ordinance.
In  view of these facts, he files a petition to annul it  under
Art.  87  para.  1  let. b) of the Constitution  of  the  Czech
Republic (the "Constitution").
   In his petition, the petitioner begins with the premise that
the cited ordinance was issued in a legal manner under Art. 104
para.  3  of the Constitution, and § 10 let. a), § 84  para.  2
let.  i) and § 92 para. 3 of the Municipalities Act. Thus, this
legal  regulation is valid, and went into effect on  1  January
2002.   The   petition  further  states  that   the   ordinance
implemented  a  fee for operation of the system  of  gathering,
collection,  transport, sorting, use, and removal  of  communal
waste,  which is regulated by § 1 let. h) and § 10b of Act  no.
565/1990  Coll., on Local Fees, as amended by later regulations
(the  "Local Fees Act"). Under § 10b para. 3 and §  15  of  the
Local  Fees  Act  (note:  in the wording  in  effect  until  31
December  2002), the ordinance specifies who  is  a  fee  payer
(Art.  2), what the rate of fees is (Art. 3), and who is exempt
from  the fee (Art. 4); municipality V. previously, under §  17
para.  2  of  Act  no.  185/2001 Coll., on Waste  and  Amending
Certain Acts (the "Waste Act"), introduced, with effect as of 1
January 2002, by generally binding Ordinance no. 03/2001 (of  6
December  2001)  a system of gathering, collection,  transport,
sorting,  use,  and  removal of communal waste  (the  "communal
waste handling system").
   According to the petitioner it is apparent from these  facts
that  municipality V. is authorized to collect only a  fee  for
operating  the  communal waste handling  system.  The  fee  was
implemented,  but  in Art. 4 of the ordinance the  municipality
set  for  some fee payers a different manner of making payments
in  the waste management sector, based not on an obligation  to
pay  a  fee  set  by a legal regulation, i.e. by  an  ordinance
issued   as  part  of  the  norm-creating  activities  of   the
municipality  in  the area of public law,  but  on  a  contract
concluded between the municipality and some fee payers as a two-
sided  legal  act  under private law norms.  The  ordinance  is
inconsistent  with the Local Fees Act in that it implements  de
facto two methods of imposing fees, one of which is governed by
its  Art.  4  and  is a new type of contractual arrangement  on
making  payment  which has no support in the  Local  Fees  Act.
Thus,  it  is  evident  that insofar  as  municipality  V.,  by
generally  binding  ordinance  regulated  the  communal   waste
handling system under the Waste Act and introduced a fee  under
the  Local Fees Act by generally binding ordinance, it  is  not
authorized to introduce a different form of payment other  than
the cited fee. Thus, it is not authorized either to introduce a
form  of  payment on the basis of a contract concluded  between
the  municipality and some fee payers, or to exempt  those  fee
payers  in  the  municipality from the  binding  ordinance.  In
addition,  the  legal  framework for  concluding  contracts  is
uncertain,  and  displays signs of circumventing  the  law,  in
particular  the  Local Fees Act. In view of  these  facts,  the
Chairman  of  the District Office in Žďár nad Sázavou  proposes
that the contested ordinance be annulled.

II.
In  its  response  to  the petition, signed  by  Mayor  J.  H.,
municipality  V.  stated  that  the  contested  ordinance   was
approved  on 6 December 2001, posted on 10 December  2001,  and
taken  down  on 2 January 2002; citizens were also informed  of
the  ordinance by a flyer delivered to every household  in  the
municipality. At the request of the Constitutional  Court,  the
information  provided was supplemented by  a  statement  of  21
October  2002, which states that the municipal council  has  15
members, 14 of whom took part in the relevant meeting, and  all
of  those  voted to pass the ordinance. On the  merits  of  the
matter  municipality  V.  stated  that  the  municipality   has
introduced waste sorting and weighing of garbage cans, and that
citizens   residing   permanently  in  the  municipality   were
permitted,  under generally binding Ordinance no.  03/2001,  to
continue in this system, and thus to continue in the system  of
paying  according to the actual weight of communal  waste.  The
municipal council of municipality V. – according to a  decision
taken  at  a  public meeting on  29 July 2002  –  continues  to
maintain the validity of Ordinance no. 04/20001.

III.
For  purposes  of  evaluating the petition, the  Constitutional
Court  requested an expert position statement from the Ministry
of  Finance.  In  a  letter  of 27  September  2002,  file  no.
263/93491/2002, the Ministry stated that it can not agree  with
the  exemption  provided in Art. 4 of the contested  ordinance,
because it creates inconsistency with the Waste Act and Act no.
526/1990 Coll., on Prices, as amended by later regulations. The
Ministry's  reasons  are that the Waste  Act  does  not  define
communal  waste  as  the  property  of  a  natural  person,  by
liquidating  which  the municipality would  be  providing  that
person  a  service.  On the contrary, §  4  of  the  Waste  Act
indicates  that  at  the  moment when a natural  person  places
communal  waste in a place designated thereto, the municipality
becomes   the   originator  and  owner  of  that   waste.   The
municipality  has  an  obligation, in  terms  of  dealing  with
communal waste, provided by the Waste Act (§ 17 para. 3  a  4),
to  determine  a  place for a natural person to place  communal
waste  and that person's obligation to place the waste  in  the
determined  spot. It is evident from this that the municipality
can  not  tie exemption from the fee for operating the communal
waste handling system to a contractual arrangement between  the
municipality  and  a  citizen,  on  the  basis  of  which   the
municipality  then performs a service for a natural  person  by
liquidating  communal  waste. Since the  Waste  Act  went  into
effect  (i.e. 1 January 2002), a fee obligation can be  imposed
on natural persons, in accordance with the Local Fees Act, only
by  generally binding ordinance on local fees for operating the
communal  waste  handling system. Under Act no. 526/1990  Coll.
prices  are negotiated between seller and buyer; in this  case,
however, this legal act lacks a subject of performance  on  the
part  of  the  municipality, i.e. a  service  provided  to  the
citizen  in  connection  with  clearing  away  and  liquidating
communal waste.

IV.
Under  Art.  87  para.  1  let. b)  of  the  Constitution,  the
Constitutional Court decides to annul other legal  regulations,
including generally binding ordinances of municipalities issued
under  their independent jurisdiction, if they are inconsistent
with  the constitutional order or a statute. In view  of  §  68
para.  2  of  the  Constitutional Court Act, the Constitutional
Court is also required to review in these proceedings whether a
contested  legal  regulation  was issued  in  a  constitutional
manner.
  The generally binding ordinance was passed on 6 December 2001
(promulgated  on10 December 2001); its passage and  publication
were  subject to the Municipalities Act. Under § 35, § 84 para.
2  let.  i)  and  §  10  let. a) of the Municipalities  Act,  a
municipal  council may, as part of a municipality's independent
jurisdiction,  issue  generally binding ordinances  and  impose
obligations in matters specified by a special statute. Under  §
1  and  §  15 of the Local Fees Act (in the wording  in  effect
until 31 December 2002), municipalities may collect local  fees
enumerated by the Act, the implementation of which, as well  as
other  requirements  connected with that  implementation,  they
shall set by generally binding ordinance.
  As the Constitutional Court determined from the record of the
public  meeting  of the municipal council in  Vír,  held  on  6
December 2001, and from the list of those present, 14 out of  a
total  of 15 members of the council took part in discussion  of
the generally binding ordinance on local fees and the ordinance
was  approved  by  all  votes present. The  ordinance  was,  in
accordance  with § 12 para. 1 and 2 of the Municipalities  Act,
posted on the official bulletin board from 10 December 2001  to
2  January  2002. Thus, the Constitutional Court believes  that
the contested generally binding ordinance was issued within the
municipality's  independent jurisdiction  in  a  constitutional
manner,  and went into effect as is stated in it. By letter  of
20  February 2002, the Chairman of the District Office in  Zdar
nad  Sazavou,  Ing.  K. P., suspended execution  of  the  cited
ordinance.  The  council  representatives  of  municipality  V.
learned of this decision at the meeting held on 26 April  2002.
The  municipal council did not arrange any correction, nor  did
it do so at its next meeting, on 26 June 2002.
    Constitutional   limits  for  issuing   generally   binding
ordinances  of municipalities in their independent jurisdiction
are  specified  in Art. 104 para. 3 of the Constitution,  under
which  municipal  councils  may, within  the  bounds  of  their
jurisdiction,  issue  generally binding  ordinances.  Municipal
jurisdiction in this regard arises from § 35 para. 3 let. a) of
the Municipalities Act, under which municipalities are governed
only by statutes when exercising their independent jurisdiction
in  issuing  generally  binding  ordinances.  In  its  previous
judgments the Constitutional Court has ruled several times that
Art.  4  para. 1, Art. 2 para. 3 of the Charter of  Fundamental
Rights  and  Freedoms  and Art. 2 para. 4 of  the  Constitution
indicate  for the area of municipal jurisdiction that in  cases
where   a   municipality  acts  as  an  entity  which   imposes
obligations on citizen through one-sided bans and orders,  i.e.
if  it  issues generally binding ordinances which contain legal
obligations,  it  can do so only in cases of express  statutory
authorization  (judgment of 19 January 1994, file  no.  Pl.  US
5/93, and of 5 April 1994, file no. Pl. US 26/93, published in:
The  Constitutional Court of the Czech Republic, Collection  of
Decisions, vol. 1, no. 4 and 12). Although these judgments were
made under the previous legal framework [Czech National Council
Act   no.   367/1990   Coll.,   on  Municipalities   (Municipal
Establishment),  annulled  by  Act  no.  128/2000  Coll.],  the
conclusions  expressed  in  them  undoubtedly  maintain   their
validity in the present (see judgment of 20 November 2001, file
no. Pl. US 20/01, no. 8/2002 Coll.).
    After  reviewing  the  generally  binding  ordinance,   the
Constitutional  Court  believes  that  the  petition  from  the
Chairman  of  the  District  Office  in  Zdar  nad  Sazavou  is
partially   justified,  concerning  Art.  4  of  the  contested
ordinance. In evaluating the petition, the Constitutional Court
began   with  the  premise  that  the  municipality   must   be
considered,  under  §  4  let. p) of  the  Waste  Act,  as  the
originator of communal waste, as of the moment when  a  natural
person deposits waste in the place designated thereto (in  that
moment  the municipality also becomes the owner of the  waste).
In  view  of this, it bears – with some exceptions  –  all  the
obligations of the originator of waste (§ 17 in connection with
§  16 of the Waste Act). One of the municipality's obligations,
as  the  originator  of  waste, is to  designate  places  where
natural  persons  can place communal waste  and  secure  places
where  natural persons can place dangerous components  of  that
waste.  In view of certain specific features of communal waste,
on the basis of § 17 para. 2 of the Act on Waste a municipality
was  permitted, in its independent jurisdiction, to  set  forth
the   communal  waste  handling  system  by  generally  binding
ordinance. Natural persons are, under § 17 para. 4 of  the  Act
on  Waste, required to place waste in designated places; if the
municipality  issues an appropriate ordinance on  the  communal
waste  handling system, natural persons are required to observe
that system.
   In  the event that a municipality makes use of the statutory
authorization  in  § 17 para. 2 of the Act  on  Waste  and,  by
generally binding ordinance, provides a communal waste handling
system, it is, under § 1 let. h) and §10b para. 1 of the  Local
Fees  Act, also authorized to set a fee for operation  of  that
system by generally binding ordinance. Under § 15 of the  Local
Fees Act (in the wording in effect until 31 December 2002), the
municipality shall regulate, in a generally binding  ordinance,
the  details  of its collection, in particular it shall  set  a
specific rate for the fee, an information obligation concerning
the creation of a payment obligation, due dates, reductions and
any  exemption  from fees; in this regard the  municipality  is
guided by the statutory legal framework, in particular § 10b of
the  Local Fees Act, which determines who is a fee payer  or  a
recipient  of a given fee, and in what manner the amount  of  a
fee is set.
   The  essence  of  the  petition to annul  generally  binding
ordinance  of  municipality V. no 04/2001 is disagreement  with
Art.  4,  which establishes exemption in full from the relevant
fee.  The cited provision indicates that this exemption applies
only   to   persons  who  have  permanent  residence   in   the
municipality, i.e. persons under § 10b para. 1 let. a)  of  the
Local Fees Act, and is also conditioned on (among other things)
these  persons concluding a payment contract with  municipality
V.  on the removal of an appropriate number of waste containers
(garbage  cans) by the end of January 2002, that is,  if  these
persons   voluntary  join  the  "system  of  weighing   garbage
containers"  (Art. 4 para. 9 of generally binding ordinance  of
municipality V. no. 03/2001).
   Under  § 15 of the Local Fees Act, the municipality is  also
authorized  to  specify exemption from the  fee,  but  in  this
matter  the  question arises whether Art. 4  of  the  generally
binding ordinance really covers exemption in the sense  of  the
cited  provision. As the Constitutional Court  determined  from
the information sheet of the municipality of Vír, citizens with
permanent  residence in the municipality can  basically  choose
whether  to pay the full fee, i.e. CZK 467, for each member  of
the  household, (garbage cans will be removed 39 times a year),
or  to join the system of weighing waste and pay an advance for
the deposit of 700 kg, or 1,000 kg of waste at the landfill for
an amount of CZK 600, or CZK 815 annually (garbage cans will be
removed 26 times a year, or 39 times a year).
  It is evident from that, that apart from fees whose amount is
set  under  § 10b para. 3 of the Local Fees Act, the  contested
generally  binding ordinance gives a certain group of  persons,
instead  of paying the local fee, the possibility of a kind  of
alternative  "performance," which, under certain circumstances,
will  be advantageous for these persons – in terms of financial
expense  –  [see  the information sheet and the  "Agreement  on
Calculating  a  Fee  for Liquidation of  Communal  waste  under
Ordinance  no.  04/2001,"  under  which  "fee  payers"  declare
whether  they  are  "exercising the claim to a  discount  under
Ordinance no. 04/2001 Art. 4, para. 1 let. a)"]. Thus, this  is
not stricto sensu exemption from the fee, i.e. release from  an
obligation to provide monetary performance; however,  it  could
be a reduction under § 15 of the Local Fees Act (in the wording
in  effect until 31 December 2002). In evaluating this question
it  is  necessary  to take into account the  true  meaning  and
purpose  of the legal regulation. That is, as can be  concluded
from the foregoing, for one thing, providing a "discount" to  a
certain  category of fee payers, more precisely,  providing  an
opportunity  for  these fee payers to make  use  of  a  certain
advantage,  and for another, creation of a parallel system  for
covering  the  municipality's  expenses  in  handling  communal
waste,  i.e. payment on a contractual basis. Therefore  it  was
necessary  to review whether the municipality is authorized  to
build  such a system, outside the contested ordinance,  but  by
making use of the ordinance.
   The generally binding ordinance of municipality V. speaks of
concluding  a  contract  between  a  natural  person  and   the
municipality. The Waste Act is based on the principle that  the
municipality  is  the originator of communal waste  which  must
fulfill  the obligations set by the cited Act. Natural  persons
producing  communal waste have only an obligation to place  the
waste  at  a  designated spot, or to be guided by  a  generally
binding  ordinance on handling communal waste. For purposes  of
covering expenses which the municipality incurs as a result  of
this  activity, the municipality is authorized to set a fee  by
generally  binding ordinance. In contrast, the  possibility  of
concluding   contracts  with  natural  persons  was   expressly
permitted  by  the previous legal framework (Act  no.  125/1997
Coll.,  on Waste, in the wording in effecting until 28 February
2000),  which  was based on the principle that natural  persons
pay  the  municipality a price set under of  Act  no.  526/1990
Coll.,  as  amended  by later regulations, for  the  conveying,
sorting, and rendering harmless of communal waste; likewise, in
the future (with effect as of 1 January 2003), the municipality
will  have  the  right,  under the Act on  Waste,  to  "collect
payment for the gathering, collection, transport, sorting, use,
and removal of communal waste from natural persons on the basis
of a contract," which must be in writing and contain the amount
of  the  payment (the Waste Act, as amended by Act no. 275/2002
Coll.). Thus, the Waste Act at present does not presume, or  at
the time the contested ordinance was passed did not presume the
possibility of different payment of the municipality's expenses
in  handling communal waste other than through a local fee, and
therefore it did not even presume the conclusion of appropriate
contracts  with  natural  persons (unlike  legal  entities  and
natural persons authorized to conduct business, provided  these
persons,  as  originators  of waste,  produce  waste  which  is
similar  to  communal  waste, which can,  on  the  basis  of  a
contract with the municipality, make use of the communal  waste
handling system; § 17 para. 5 of the Act on Waste).
  In view of the mandatory and comprehensive regulation of this
topic in the Waste Act, one must begin with the principle  that
the municipality is not authorized to proceed otherwise than by
the  procedure  expressly provided by  statute.  The  foregoing
rules   clearly   define  the  framework   within   which   the
municipality  must  move  when  creating  the  communal   waste
handling  system  and  the  related setting  of  fees  for  the
operation  of that system. Therefore, the Constitutional  Court
can  not  but  state that the given procedure is contra  legem,
because  a  generally binding ordinance introduces a system  of
removal   of   communal  waste  on  the  basis  of  contractual
arrangement and for payment, which is not permissible under  of
the Act on Waste. Following on from this, we can agree with the
opinion  of  the Ministry of Finance that with these  contracts
there  is inconsistency with Act no. 526/1999 Coll., as amended
by later regulations, because the municipality does not provide
any performance to these natural persons under this Act.
  If the Constitutional Court considers this situation in terms
of  the  Local  Fees Act, it must be noted that  the  contested
ordinance  introduces  for a certain  group  of  citizens  (fee
payers) the opportunity to choose between paying the "ordinary"
fee  under  the  Local Fees Act or paying  the  "price  of  the
service" – removal of waste under a contract. That price is, of
course,  although this is not so directly on the basis  of  the
ordinance,  one-sidedly  set  by  the  municipality,  and   the
contractual freedom of the parties is further limited by Art. 4
of  the  ordinance (and from the viewpoint of  the  fee  payers
basically  also  by the economic advantage of  one  or  another
manner  of "payment"). Basically this is setting a "quasi"  fee
for  a certain group of fee payers, and the calculation of  its
amount is quite inconsistent with the rules contained in §  10b
para.  3  of  the Local Fees Act, which supports the conclusion
that  Art.  4 of the contested ordinance leads to circumvention
of  that  provision of the Local Fees Act. It is  necessary  to
realize  that this provision of the Local Fees Act attempts  to
create a system of paying local fees which would (at least to a
certain  degree) fairly distribute the expenses  for  operating
the  communal waste handling system which are to be paid  by  a
local  fee, between two groups of fee payers, i.e. on one hand,
natural  person  with permanent residence in the  municipality,
who  pay  the fee "per person," and on the other hand,  natural
persons who are owners of real estate designated for individual
recreation, who pay the fee "per real estate."
   This  is  directly  connected to the  fact  that  the  cited
provision of the ordinance violates the balance between the two
categories  of  fee  payers, when  it  gives  one  of  them  an
advantage  over the other with the "exemption," in a  situation
where  this  procedure,  with  regard  to  the  relevant  legal
framework, can not be justified by substantive reasons (and  in
any case no such reasons were cited by municipality V.). In the
Constitutional   Court's   opinion,   the   municipality    was
authorized, under § 15 of the Local Fees Act, to set reductions
and  exemption  from the fee, but in view of  the  cited  legal
framework  the  first (and unavoidable) criteria  for  allowing
"exemption"  from the fee could not be the permanent  residence
of  a  natural  person;  thus, if the  municipality  wanted  to
establish  a  possibility for reductions or  exemption  in  the
ordinance, it would have to do so on an equal basis,  i.e.  for
both  groups  of fee payers (of course, on the assumption  that
the  ordinance  was not illegal for other reasons).  Therefore,
the  Constitutional  Court  also  considers  the  provision  in
question to be discriminatory and inconsistent with Art.  1  of
the Charter of Fundamental Rights and Freedoms, as well as with
§ 10b of the Local Fees Act.
   Although  the  petition from the Chairman  of  the  District
Office  in  Zdar nad Sazavou seeks annulment of  the  contested
ordinance  as  a whole, the Constitutional Court did  not  find
that,  except for Art. 4, inconsistency with the law  in  other
provisions,  as even the objections raised in the petition  are
not  aimed  against  other provisions, nor  did  it  find  that
annulling  Art. 4 would have an influence on other legal  norms
contained   in   the   ordinance.   For   these   reasons   the
Constitutional Court only partially granted the  petition  from
the  Chairman  of the District Office in Zdar nad  Sazavou  and
annulled   the   contested  generally  binding   ordinance   of
municipality V. in the scope expressed in the verdict  of  this
judgment  under § 70 para. 1 of the Constitutional  Court  Act,
whereas it denied the remainder of the petition.

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

Brno, 10 December 2002