Decided 24 June 2003 – Pl US 39/02
                               
                       “Waste Ordinance”
                               
HEADNOTES
A  petition to annul the generally binding municipal  ordinance
issued  within  independent jurisdiction was  submitted  by  an
authorized state administration body – the head of the district
office  (§  64  par.  3  of  Act no.  182/1993  Coll.,  on  the
Constitutional Court).
      However,  the  district offices, which were  run  by  the
heads,  were terminated as of 31 December 2002 as part  of  the
reform  of local and regional administration (Act no.  320/2002
Coll.,  Amending and Repealing Certain Acts in Connection  with
Terminating the Activity of District Offices). As of 1  January
2003,  the minister of the interior is authorized to  submit  a
comparable  petition [§ 64 par. 2 let. g) of  the  Act  on  the
Constitutional  Court], and does so at the instigation  of  the
relevant  regional office authorized to supervise the  exercise
of  municipal  self-government (§ 123 et seq.  of  the  Act  on
Municipalities).
      The  kind of proceedings before the Constitutional  Court
remains  the same, there has merely been a change in  the  body
competent to submit a petition. However, there is no reason  to
consider this change to be a change in the petitioner. Both the
head  of  the district office and the minister of the  interior
acted (acts) in the name of the state. The head of the district
office  and  the  minister  of  the  interior  represented,  or
represent,  the same interest in the legality  of  the  law  of
municipal   self-government.   When   district   offices   were
terminated,  regional offices and the Ministry of the  Interior
took  over this agenda, and thus they are informed of  on-going
of  the  Constitutional  Court proceedings  on  petitions  from
chairmen  of  district  offices  to  annul  generally   binding
municipal  ordinances,  so  that they  can  change  supervisory
policy  within  the  bounds  of  the  rules  of  procedure  for
proceedings  before  the  Constitutional  Court  without  being
called upon to do so. However, they can not withdraw a petition
(§ 77 of the Act on the Constitutional Court a contrario).
     
JUDGMENT
The  Plenum  of  the  Constitutional Court, composed  of  JUDr.
Vojtech  Cepl,  JUDr.  Frantisek Duchon, JUDr.  Milos  Holecek,
JUDr.  Vladimir  Jurka,  JUDr. Vladimir  Klokocka,  JUDr.  Jiri
Malenovsky,  JUDr. Jiri Mucha, JUDr. Antonin  Prochazka,  JUDr.
Pavel   Varvarovsky,  JUDr.  Miloslav  Vyborny,  JUDr.   Eliska
Wagnerova,  and JUDr. Eva Zarembova, ruled on a  petition  from
the  head  of  the District Office in Novy Jicin to  annul  the
generally  binding ordinance of the municipality of Vrazne  no.
02/2001  on  a  local  fee  for  operation  of  the  system  of
gathering, collection, transport, sorting, use, and removal  of
communal waste of 12 December 2001, as follows:
     The part of article 6 par. 2 which reads “(can be replaced
by  a written affidavit from the owner of the real estate where
the  exempt  payer is registered for permanent residence)”  and
the  part of article 9 par. 2 which reads “or a person provided
in article 3 of this ordinance” and the entire article 7 par. 2
of  the  generally  binding ordinance of  the  municipality  of
Vrazne  no. 02/2001 on a local fee for operation of the  system
of  gathering, collection, transport, sorting, use, and removal
of communal waste of 12 December 2001 is annulled as of the day
this judgment is promulgated in the Collection of Laws.
      The  petition to annul other provisions of this generally
binding ordinance is denied.

REASONING:
On 5 November 2002 the Constitutional Court received a petition
from  the  head of the District Office  in Novy Jicin to  annul
the  generally binding ordinance of the municipality of  Vrazne
no.  02/2001  on  a local fee for operation of  the  system  of
gathering, collection, transport, sorting, use, and removal  of
communal waste of 12 December 2001, which reads as follows:

The representative body of the municipality of Vrazne issues on
12  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), § 35 and § 84 par. 2 let. i) of  Act  no.
128/2000  Coll.,  on Municipalities (Municipal  Establishment),
this  generally binding ordinance on a local fee for  operation
of  the  system  of gathering, collection, transport,  sorting,
use,  and  removal  of  communal  waste  (the  “communal  waste
handling system”).
Part I Basic Provisions
Article 1
  1.   The  municipality of Vrazne collects  a  local  fee  for
    operation  of  the  “communal waste handling  system”  (the
    “communal waste fee”).
  2.   The local fee is administered by the District Office  in
    Vrazne  the  “fee administrator”). Proceedings  in  matters
    concerning this local fee are conducted under Act no. 337/1992
    Coll., on Administration of Taxes and Fees, as amended by later
    regulations.
Part II The Fee for Communal Waste (the “Fee”)
Article 2 Subject of Fee
  1.  The Fee is collected for operation of the “communal waste
    handling system” in the municipality of Vrazne, which is set in
    the generally binding ordinance of the municipality of Vrazne
    no. 01/2001, on a local fee for operation of the system  of
    gathering, collection, transport, sorting, use, and removal of
    communal waste of 12 December 2001, which enters into effect on
    1 January 2002.
Article 3 The Fee Payer
  2.   A  Fee  Payer  is  every natural person  with  permanent
    residence in the municipality, as well as a natural person who
    owns a building designated or serving for individual recreation
    located in the municipality of Vrazne, in which no person is
    registered for permanent residence.
3.  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 (together with handing in the
completed “notice of joint representative” on the form, a
sample of which is attached in appendix no. 1 to this generally
binding ordinance.
4.  If a building designated or serving for individual
recreation, in which no person is registered for permanent
residence is owned by several people, they are required to pay
the fee jointly and severally, in an amount corresponding to
the fee for one natural person.
Article 4 Obligation to Notify
  1.   If the fee obligation arises or changes in respect of  a
    fee  payer  who  is a natural person who  owns  a  building
    designated or serving for individual recreation located in the
    municipality of Vrazne, and in which no natural  person  is
    registered for permanent residence, the fee payer is required
    to notify the fee administrator of that fact within 15 days
    from the day the fee obligation arises or changes.
Article 5 Local Fee Rates
  1.  The annual Communal Waste Fee is:
  A)   for a natural person who has permanent residence in  the
    municipality of Vrazne, CZK 150. The Fee consists of: a)  a
    component set under § 10b par.3 let. a) of Act no. 565/1990
    Coll., on Local Fees, in the amount of CZK 15, b) a component
    set under § 10b par. 3 let. b) of Act no. 565/1990 Coll., on
    Local Fees, in the amount of CZK 135.
  B)   for  a natural person who owns a building designated  or
    serving for individual recreation, located in the municipality
    of  Vrazne,  in  which no natural person is registered  for
    permanent  residence, CZK 150. The fee consists  of:  a)  a
    component set under § 10b par. 3 let. a) of Act no. 565/1990
    Coll., on Local fees, in the amount of CZK 15, b) a component
    set under § 10b par. 3 let. b) of Act no. 565/1990 Coll., on
    Local Fees, in the amount of CZK 135.
The  allocation  of  expenses incurred by the  municipality  of
Vrazne  for  the collection and conveying of unsorted  communal
waste per 1 natural person per year is provided in appendix no.
2 to this ordinance.
Article 6 Exemption
  1.  The following are exempt from the Fee: a) a natural person
    who is registered for permanent residence in the municipality
    but is demonstrably not abiding in the municipality (e.g. a
    long-term stay abroad, basic military service, a stay in  a
    place of study, a stay in a rehabilitation or other treatment
    facility ).
2.  The fee payer cited in article 3 is required to
demonstrate to the fee administrator by 31 January of each
calendar year that the grounds for exemption continue to exist
(this can be replaced by a written affidavit from the owner of
real estate where the exempt fee payer is registered for
permanent residence).
  3.   Exemption  from  the  fee expires  if  the  grounds  for
    exemption expire.
Article 7 Creation and Termination of the Fee Obligation
  1.  The fee is paid from the first day of the month following
    the day when the fee obligation arose, for individual months
    until the end of the calendar year, in the amount of 1/12 of
    the specified annual rate.
  2.   If  the fee obligation terminates, the obligation to pay
    the fee terminates upon expiration of the month in which that
    circumstance arose (see Obligation to Notify – article 4 par.
    1) of this ordinance).
Article 8 Fee Due Dates
  1.  The fee is due in semi-annual payments without assessment,
    by 31 March and 30 September of each calendar year.
  2.   The fee can also be paid once for the entire year, by 31
    March.
3.  If the fee obligation arises during the year, the fee is
due within 30 days from the time the fee obligation arises.
Article 9 Transitional, Joint and Closing Provisions
  1.  If the fee is not paid by the deadline set under article 8
    of  this  ordinance  or  in  the correct  amount,  the  fee
    administrator shall assess the fee by payment assessment, and
    may increase fee by up to 50%.
  2.   If  the fee payer or a person cited in article 3 of this
    ordinance does not meet a non-monetary obligation imposed by
    this ordinance, the fee administrator can repeatedly impose a
    fine  under  §  37  a § 37a of Act no. 337/1992  Coll.,  on
    Administration  of  Taxes and Fees,  as  amended  by  later
    regulations.
Article 10
  1.  If a fee payer does not meet a fee obligation specified by
    this generally binding ordinance, a fee can be assessed until
    three years from the end of the calendar year in which the fee
    obligation arose.
  2.   If  an action aimed at assessing the fee or additionally
    setting it was taken before the expiration of that deadline,
    the three-year period begins to run again from the end of the
    year in which the fee payer was informed of that action.
Article 11 Effect
This  generally  binding  ordinance enters  into  effect  on  1
January 2002.
Ludmila Subova, Deputy Mayor of the municipality of Vrazne
Ing. Vladimir Nippert, Mayor of the municipality of Vrazne
Appendices: no. 1 – Notice of a joint representative, no.  2  –
Allocation  of  expenses  of  the municipality  of  Vrazne  for
collection and conveying of unsorted communal waste
Appendix no. 1 – sample form (not reproduced)
Appendix  no.  2 Allocation of expenses of the municipality  of
Vrazne  for  the collection and conveying of unsorted  communal
waste
Initial data:
Population of municipality as of 30 November 2001 = 840
Number of buildings designated or serving for recreation = 20
Total   expenses  of  the  municipality  of  Vrazne  for  waste
management in 2000 = CZK 11,5928
Allocation  of  expenses  per 1 natural  person  per  year  CZK
11,5928 /860 = CZK 135
Resulting  fee  amount (under §10 par. 3 let.  b)  of  Act  no.
565/1990 Coll., on Local Fees): CZK 135
Prepared by: Ing. Vladimir Nippert
In Vrazne, 30 November 2001

The  petitioner submitted this petition as part of  supervision
of  the exercise of independent municipal jurisdiction,  as  he
concluded that the key provisions in the ordinance violate  the
law.  He  stated  that  the self-governing  unit  exceeded  its
statutory authorization. The defects are serious enough that it
was  necessary to suspend enforcement of the ordinance, but the
municipality did not remedy the situation within three months.
      The  head  of the district office pointed to  the  unique
nature  of local fees, the introduction and scope of which  are
decided,  based  on  statutory  authorization  and  within  its
bounds,  by  a  municipality  itself,  within  its  independent
jurisdiction  [§  1  and  § 35 of Act no.  128/2000  Coll.,  on
Municipalities  (Municipal  Establishment)  ];  however,   this
possibility need not be made use of. A fee has the nature of  a
local tax; it is a mandatory, non-targeted, non-equivalent  and
non-refundable   payment,  which  becomes  the   municipality’s
revenue.  Certain regulatory and protective elements  are  also
important.  The  head  of the district  office  emphasized  the
constitutional limits on taxation given by Art. 11  par.  5  of
the  Charter of Fundamental Rights and Freedoms and by Act  no.
565/1990 Coll., on Local Fees, as amended by later regulations.
Under  this  Act,  special regulations  apply  to  proceedings,
specifically Act no. 337/1992 Coll., on Administration of Taxes
and  Fees,  as amended by later regulations. The administration
of  local  fees  is  authoritative in  nature,  a  municipality
introduces  it  within  its independent jurisdiction,  and  the
district   office   administers  it  within   its   transferred
jurisdiction.  Administration can be  divided  into  individual
proceedings, but it can not be divided between the municipality
and  its  office.  A  municipality is not  authorized,  in  the
exercise of self-government, to overstep the bounds of the law,
and  the  administrator  can not heal such  transgression.  The
administration  of  taxes  is not a  municipality’s  subjective
right,  it  is only a statutorily determined jurisdiction.  The
municipal  office  must  act as tax administrator,  it  is  not
possible for it to fail to implement the public power.
      Act  no.185/2001  Coll., on Waste, and  Amending  Certain
Other Acts, considers the municipality to be the originator  of
waste which has its origin in the activities of natural persons
not  subject to special regulations, once it is deposited in  a
place  designated thereto. At the same time, the municipality’s
right,  in  its independent jurisdiction, to govern  the  waste
handling  system  by a generally binding decree  is  preserved.
Residents  are required to place waste in designated places  (§
17 par. 2 and 4 of the Act on Waste).
      The  related amendment to the Act on Local Fees does  not
interfere  with  the  concept  of  local  fees.  However,   the
municipality did not respect this because, in conflict with the
law,  when  issuing generally binding ordinances, it  used  the
content of one ordinance to bind another ordinance (Art.  2  of
the  ordinance,  which points to ordinance no.  01/2001)  which
falls under a different statutory regime. Only statutorily  set
criteria  can  be followed when building a system  of  communal
waste  handling.  Setting  rules  for  handling  waste  are  an
instance  of optional administration, and the same  applies  to
setting  a  local fee. The subject of a local fee is  something
which can be objectively ascribed to fee payers; in the case of
a  waste fee it is permanent residence or owning a building. Of
course,  fee  payers  can not influence the  operation  of  the
communal waste handling system.
      Under  the  Act on Local Fees the obligated  party  is  a
person  called the fee payer, and proceedings are  governed  by
that  Act. The self-governing unit must respect the terminology
of  the  Act, and a legal regulation which it creates  may  not
give  that  terminology  different  meaning,  e.g.  interchange
Spayer”  and “fee payer.” Under the Act on Local Fees  a  joint
representative is not a fee payer or payer. This person may  be
authorized  by a fee payer to administer payment,  but  has  no
financial  obligation, and thus one can not be imposed  on  him
under § 37 and § 37a of the Act on Administration of Taxes  and
Fees.
        Section  15  of  the  Act  on  Local  Fees  requires  a
municipality to announce the obligation to notify together with
a  deadline for the fee payer. The disputed ordinance does  not
comply  with the Act and defies logic. The obligation to notify
is  not imposed on a natural person with permanent residence in
the  municipality. Moreover, it is not clear whether a “change”
in  the obligation also includes its termination. Under Act no.
133/2000  Coll.,  on Record-Keeping of Residents  and  Personal
Identification Numbers and Amending Certain Acts  (the  Act  on
Record-Keeping  of Residents), district offices  are  users  of
data  from  the information system on residents with  permanent
residence,  but a municipality can not drop the  obligation  to
notify  and  make use of its access to these data in  order  to
create a register of fee payers.
      The  rate of fees is composed of two parts, one of  which
may  be zero. The first, in a range of CZK 0-250, results  from
the  political  will of the municipality, or its representative
body  [§  10b  par.  3 let. a) of the Act on Local  Fees];  the
municipality  can set the second, up to CZK 250, based  on  its
actual  expenses for the collection and conveying  of  unsorted
communal waste in the previous year [let. b)]. The municipality
is  to provide an accounting of expenses for the previous  year
and  their  allocation  per resident  in  an  appendix  to  the
ordinance.  The  ordinance provision refers  to  the  statutory
formulation,  but  the appendix is identified differently.  The
petitioner  believes  that  the  municipality  does  not   have
available accounting documents for setting the second  part  of
the  fee,  set  at CZK 135, as the first part  is  CZK  15.  Of
course,  nothing prevents setting only the first  part  of  the
fee.
     An affidavit from the owner of the real estate where a fee
payer is registered for permanent residence can not be used  to
exempt  those in defined categories of persons abiding  outside
the  municipality  on a long-term basis.  Under  §  39  of  the
Administrative  Procedure  Code,  this  is  not  used  in   tax
proceedings.
       The  petitioner believes that the contested  ordinance’s
provision  on  the creation and termination of  a  fee  payment
obligation,  insofar as it sets an obligation to pay  beginning
with  the  month  following  after  the  day  the  fee  payment
obligation arises, conflicts with the Act on Local Fees.  Under
that  Act, what is decisive is the situation at the end of  the
month  which  is the first or last of the months  for  which  a
proportional part of the fee is paid.
     Likewise, the provision on the payment being due within 30
days  for  persons  for whom the fee payment obligation  arises
during  the  year  unjustifiably  establishes  inequality  with
persons   who  have  a  permanent  obligation,  who  have   the
opportunity to make payments on 31 March and 30 September.
      The provision on a three-year period for collecting a due
fee does not correspond to § 12 of the Act on Local Fees, which
mentions  a  due amount. Statutory interpretation of  the  term
used  in  the  ordinance provision can  not  be  admitted,  the
possibility of assessing only due fees does not make sense.
      According  to  the petitioner, by issuing  the  contested
ordinance the municipality claimed unlawful jurisdiction, as it
imposes  obligations beyond the scope of the law and not  based
on  it. The head of the district office does not consider power
thus applied to be a service to citizens.
      In  his position statement, the mayor of the municipality
of Vrazne, in its name, emphasized that the new legal framework
addresses  the  problem of liquidating communal  waste  fairly,
better  than  in the past, when only some households  delivered
waste for collection and paid for its processing, and the  rest
got  rid  of  it  in  ways detrimental to the environment.  The
issuance  of the ordinance was preceded by a number of training
seminars by the state administration, but there was not time to
make it more precise, as the regulation had to be available  as
of  1  January  2002. The district office  in  Novy  Jicin  was
consulted  about the ordinance concept, and it  only  began  to
question its lawfulness subsequently.
      The  Ministry  of the Interior – the civil administration
department   whose  opinion  the  Constitutional  Court   judge
rapporteur  requested,  although it  is  not  a  party  to  the
proceedings  – points out in its statement that  the  issue  of
local  fees is in the jurisdiction of the Ministry of  Finance,
and  the  issue  of  waste  falls under  the  Ministry  of  the
Environment.  Nonetheless,  it  expresses  an  opinion  on  the
petition.  It points out that the municipality chose to  manage
local  waste  through a local fee for operation  of  the  waste
handling  system.  It  considers  the  authorization   of   the
municipal office to administer the local fee to be an  exercise
of  independent municipal jurisdiction which is compatible with
the  Act  on Municipalities. The reference to another generally
binding  ordinance of the same municipality does not appear  to
be  unlawful.  The definition of a fee payer is  in  accordance
with  the  Act  on  Local  Fees. The  possibility  of  applying
penalties against a joint representative does not appear to  be
lawful;  fee  payer  status is governed by a mandate  agreement
under   the   Civil  Code.  Tax  procedure  law  also   forbids
transferring  a tax obligation to another party.  The  Ministry
considers it disputable whether it is indispensable to use data
from   the   record-keeping   of   residents   for   this   tax
administration,  where indispensability is a  prerequisite  for
such use to be legal. It is not clear from the appendix to  the
ordinance  what precisely is included in the expense item  that
is  decisive for calculating the fee. A municipality may, based
on  the Act on Local Fees, provide exemptions from fee, but  it
is not clear to the Ministry to what extent it can regulate the
manner  of proving the grounds for such exemption. The creation
and  termination of a fee payment obligation is consistent with
the  Act’s  provisions. The due dates for new  fee  payers  are
evidently discriminatory. Evidently the municipality  meant  by
the   term   “assessment  of  a  fee”  the  statutory   concept
“assessment  of  a  due amount”; a strict interpretation  would
rule out collecting a due amount exceeding the set fee.
      The  petition  to  annul the generally binding  municipal
ordinance  issued within independent jurisdiction was submitted
by  an  authorized state administration body – the head of  the
district office (§ 64 par. 3 of Act no. 182/1993 Coll., on  the
Constitutional Court).
     However,  the  district offices, which  were  run  by  the
heads,  were terminated as of 31 December 2002 as part  of  the
reform  of local and regional administration (Act no.  320/2002
Coll.,  Amending and Repealing Certain Acts in Connection  with
Terminating the Activity of District Offices). As of 1  January
2003,  the minister of the interior is authorized to  submit  a
comparable  petition [§ 64 par. 2 let. g) of  the  Act  on  the
Constitutional  Court], and does so at the instigation  of  the
relevant  regional office authorized to supervise the  exercise
of  municipal  self-government (§ 123 et seq.  of  the  Act  on
Municipalities).
      The  kind of proceedings before the Constitutional  Court
remains  the same, there has merely been a change in  the  body
competent to submit a petition. However, there is no reason  to
consider this change to be a change in the petitioner. Both the
head  of  the district office and the minister of the  interior
acted (acts) in the name of the state. The head of the district
office  and  the  minister  of  the  interior  represented,  or
represent,  the same interest in the legality  of  the  law  of
municipal   self-government.   When   district   offices   were
terminated,  regional offices and the Ministry of the  Interior
took  over this agenda, and thus they are informed of  on-going
of  the  Constitutional  Court proceedings  on  petitions  from
chairmen  of  district  offices  to  annul  generally   binding
municipal  ordinances,  so  that they  can  change  supervisory
policy  within  the  bounds  of  the  rules  of  procedure  for
proceedings  before  the  Constitutional  Court  without  being
called upon to do so. However, they can not withdraw a petition
(§ 77 of the Act on the Constitutional Court a contrario).
      The  petitioner’s thoughts on the subject of the disputed
local  fee,  the concept of local fees, and its  connection  to
residents  with permanent residence, real estate,  or  communal
waste  itself  are  not  decisive for reviewing  the  contested
municipal regulation, which basically does what is expected  by
the  new  statutory  framework on financing the  collection  of
communal  waste,  i.e.  it  makes more  specific  the  relevant
provisions  of  the  Act on Local Fees for  the  municipality’s
particular  situation through its self-governing body.  Section
14  of  the  Act on Local Fees itself speaks of a fee  for  the
operation of a local waste handling system. The connection to a
resident with permanent residence and other owners is given  on
the  basis that it is these persons who produce communal waste,
the  collection  of which is to be ensured by the  municipality
out of the revenues from the cited fee.
      Likewise, it is not of fundamental importance whether the
municipal  ordinance cites another ordinance which  is  closely
related to the issue at hand, even though it was passed on  the
basis  of  the Act on Waste. This practice does not  amount  to
binding  one  ordinance by another (though it may  be  indirect
amendment).  Anyway, ordinances are passed by the same  body  –
the  municipal representative body [§ 84 par. 2 let. j) of  the
Act  on Municipalities] – and the legislative procedure is  the
same  (§ 87 of the Act on Municipalities), so the problem  with
such community legislative practice can be seen at most in  the
non-transferred  or insufficient reference to  the  authorizing
statutes  in  the  introduction of the ordinances  and  in  the
unclear arrangement of community regulations.
      The  ordinance  does  not use the term  “payer,”  so  the
petitioner’s objections that it is interchanged with  the  term
“fee payer” are groundless. However, there are grounds for  the
objection concerning distinguishing a joint representative from
a  payer  or  fee payer. The Act on Local Fees  is  unclear  in
defining  the role of the joint representative. It  is  evident
that the joint representative acts on the basis of expressed or
unexpressed consensus with the other members of a household, or
analogously, an owner or administrator of an apartment building
in  agreement  with  its  residents.  The  statutorily  imposed
obligation  to  provide information about the  represented  fee
payers  is a natural prerequisite for this representation,  but
failure to perform it can hardly be penalized otherwise than by
not recognizing the actions of a joint representative, owner or
administrator. The obligation to supervise their representative
remains  with  the individual fee payers, it is they  who  risk
penalties  for  not  fulfilling the  notification  and  payment
obligation. Therefore, applying § 37 and § 37a of  the  Act  on
Administration  of Taxes and Fees, on fines for violating  non-
monetary  obligations,  does  not  appear  to  be  lawful.   In
evaluating its status one can agree with the position statement
from the Ministry of the Interior.
      The limitation on imposing the obligation to notify to an
owner  of real estate who is not registered in the municipality
for  permanent residence (art. 4 of the ordinance)  deserves  a
more detailed review. Compared to other local fees, paid by fee
payers  of whom the state administration does not keep a  list,
it  is  organizationally possible with a fee for operating  the
communal  waste  handling system to use the  register  kept  of
residents  with permanent residence in a municipality,  because
each of them is a fee payer [§ 10b par. 1 let. a) of the Act on
Local  Fees]. However, it is necessary to weigh whether  it  is
legal to make use of the register. Section 5 of Act no.133/2001
Coll.,   on  the  Record-Keeping  of  Residents  and   Personal
Identification    Numbers,   emphasizes   the    municipality’s
authorization to use the register for indispensable aims.  This
use  need  not be indispensable to the collection of  fees,  in
view  of the statutorily envisaged obligation to notify  (§  14
par.2  of the Act on Local Fees). Of course, the result of  the
obligation  to notify of residents with permanent residence  in
the  municipality  will be that an identical database  will  be
created, and data from the register will be used anyway to  add
the  fee  payers who have not met their obligation  to  notify.
Thus,  the  municipal office will create a second  register  of
residents for fee payment purposes, even though it already  has
it  available.  The  requirement of creating  such  a  register
appears  hardly  compatible with the  principle  of  economical
municipal   administration  (§  2  and  38  of   the   Act   on
Municipalities). It can hardly be seen as misuse of  access  to
the  residents  register.  Yet,  ensuring  the  collection  and
liquidation  of communal waste, and financing  it,  is  a  task
entrusted to municipalities as holders of public power. Nor  is
the  problem in the absence of a more precise definition of the
manner in which this register will be used to prescribe  a  fee
for  residents. The ordinance does not expressly state that the
municipality shall send (or in what manner) residents and other
notified  fee payers a fee notice together with a  partly  pre-
completed   payment   cheque  or   (a)   information   on   the
municipality’s  bank account and the manner of identifying  the
paying  fee payer (the “variable” symbol, usually the  personal
identification number). The wording of the provision on  a  fee
being   due  without  assessment  (art.  8  of  the  ordinance)
indicates that the municipality informs the residents about the
manner  of  paying  the fee only by non-targeted  announcements
which  are  usual in the municipality (official  notice  board,
outdoor notices, flyers, a municipal magazine). For comparison,
state-wide   Czech   financial  legislation   also   does   not
specifically  state the numbers of bank accounts for  deposits;
rather,  the individual financial administration bodies  inform
fee  payers and payers about them by suitable means.  The  same
applies  to other financial transactions between residents  and
public  bodies. This practice has not been evaluated  yet,  let
alone found to be an unconstitutional and unlawful exercise  of
public  power, and it would probably be exaggerated to consider
it  so.  Regardless of the specific practice in a municipality,
the  situation can also be seen to be such that the  obligation
to report (register) (the ordinance speaks of an “obligation to
notify,”   but   the   petition   does   not   criticize   this
terminological difference) is also met by such form of  meeting
the  fee  payment obligation (payment of the fee) which permits
the  municipality (the municipal office), as fee administrator,
to  identify  the  fee payer. The Act on Local  Fees  does  not
require  a  temporal  or  act-based  distinction  between   the
obligation to report (register) and the payment obligation.
      Of course, the possibility of an affidavit from the owner
of  the real estate in which such a fee payer is registered for
permanent  residence, that the fee payer  is  demonstrably  not
abiding  in  the  municipality, can be considered  problematic.
Although  the Act on Administration of Taxes and Fees does  not
expressly  rule out an affidavit, it should be done  personally
by  the  person whose legal status it concerns, not by  another
person.  Somewhat paradoxically, under art. 6  par.  2  of  the
ordinance  this  possibility is not  given  to  the  fee  payer
himself.  In the Constitutional Court’s opinion, this provision
of the ordinance is inconsistent with the Act.
      The  Act  on Local Fees speaks vaguely of exemption  from
fees,  and  only emphasizes that it is possible  to  reduce  or
excuse them in individual cases in order to avoid harshness  (§
16)  and  in  a  list of sample requisites for an ordinance  it
speaks, with no further specification, of possible exemption (§
14).  These  exemptions  may not be based  on  constitutionally
impermissible differentiation or discrimination (Art. 1, Art. 3
par.1  and  Art. 4 par. 3 of the Charter of Fundamental  Rights
and   Freedoms).   In  view  of  their  understandability   and
reasonableness, the reviewed exemptions appear to be compatible
with  these constitutional principles. The sample list includes
persons who abide long-term outside the municipality and do not
burden it with the creation of communal waste.
      The  structure of setting fee amounts is  such  that  the
second part can be set, up to CZK 250, only on the basis of the
municipality’s  actual per capita expenses for  the  collection
and  conveying  of unsorted communal waste. The  Constitutional
Court  can  adequately  evaluate  the  supported  reference  to
possible failure to observe these statutory limitations only by
examining   the   municipality’s  accounting  records.   In   a
particular  case  it  is  certainly possible  that  the  “total
municipal  expenses  for waste management”  are  equal  to  the
“expense  for  collection and conveying  of  unsorted  communal
waste.” In view of the correct labeling of appendix no. 2  with
the heading “Allocation of the expenses of the municipality  of
Vrazne  for  the collection and conveying of unsorted  communal
waste,”  the  different  term can be considered  a  legislative
abbreviation.
      However,  it  does not appear necessary to clarify  these
facts,  as the municipality (the representative body)  may,  in
its  discretion,  and without documenting the expense  for  the
previous year, set the first part of the fee up to CZK  250  by
an  appropriate  ordinance. The contested  ordinance  sets  the
total fee at only CZK 150. Thus, the only part which can appear
problematic is the legislative provision emphasizing the use of
both  possibilities  for determining the  fee  amount.  If  the
ordinance only set the fee at CZK 150, then legally this  would
be  a completely unquestionable determination of the amount and
the effect on the fee payer would be the same, as there are  no
separate rules for payment of the individual parts of  the  fee
or exemption from them.
      The  ordinance  provision on the  beginning  of  the  fee
payment obligation when it arises during the course of the year
really  does not correspond to the wording of § 10b par.  4  of
the  Act on Local Fees, because it removes from a new fee payer
the  obligation to pay the appropriate part of the fee for  the
month  when  he  became  a fee payer (art.  7  par.  1  of  the
ordinance).  However,  this alleviation can  be  considered  an
acceptable exemption, negligible in amount (CZK 12,50) under  §
14  of  the Act on Local Fees for those who became new citizens
of  the  municipality.  In contrast, under  the  ordinance  the
obligation  to  pay  a proportional part of the  fee  continues
beyond  the framework of the law for a fee payer for  whom  the
grounds for the payment obligation ended during the course of a
month (art. 7 par. 2).
      Setting  the  due dates of fee payments for  those  whose
payment  obligation arose during the course of the year  at  30
days after it arose can be considered discriminator only with a
literal interpretation of the cited provision (art. 8 par. 3 of
the ordinance). A non-disadvantaging interpretation established
on  the  connection of this provision to the provision  setting
the payment due dates for continuing fee payers (art. 8 par. 1)
leads  to  the conclusion that the deadline of 30 days  applies
only  if  the  general due date has passed  (31  March  and  30
September), i.e. in the second and fourth quarters, whereas  in
the  first and third quarters the fee is due only on the stated
days.
      In  the  case  of  applying a  penalty  in  the  form  of
increasing a fee the Act on Local Fees still speaks of fees  (§
11 of the Act on Local Fees). The so-called due amount (§ 12 of
the  Act  on  Local Fees) is thus nothing more than  the  thus-
increased  fees.  The  penalty  for  failure  to  fulfill   the
notification/registration obligation is  regulated  differently
by  a provision of the Act on Administration of Taxes and Fees.
The  terminological disunity appears to be more in the text  of
the  statute,  but it is a disunity which can  be  overcome  by
methods  of  interpretation.  The Constitutional  Court  should
surely  not  force municipalities to repeat this terminological
disunity in their ordinances.
       The   Constitutional  Court  finds  unlawful  only   the
possibility  of  an  affidavit with effects  for  another,  the
penalization of the joint representative for failure to met the
non-monetary (i.e. notification/registration ) obligation,  and
the  fee  applied beyond the scope of the law vis-r-vis persons
for  whom the fee payment obligation terminates. Therefore,  it
annuls  the  ordinance provisions which establish  these  rules
under § 70 par. 1 of the Act on the Constitutional Court.
      All other provisions of the contested municipal ordinance
were  not  found  unlawful,  let  alone  unconstitutional,  and
therefore the Constitutional Court denied the petition to annul
them under § 70 par. 2 of the Act on the Constitutional Court.

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

Brno, 24 June 2003