The Regulation of Funerary and Cemetery Services

 

Upon the request of the National Council, in case No. U-I-223/16 (Decision dated 23 April 2020, Official Gazette RS, No. 65/20), the Constitutional Court reviewed the constitutionality of the nineteenth indent of the second paragraph of Article 4 of the Funerary and Cemetery Services Act, which enabled municipalities to impose a new local public charge, i.e. a funeral fee intended to raise funds for the management of cemeteries. It also reviewed the second paragraph of Article 5 of the Funerary and Cemetery Services Act, which determined that the majority of previously mandatory local commercial public services related to the death of an individual and the holding of a funeral service would be liberalised. The mentioned law enabled funerary services, i.e. the transport of the body of the deceased (except for 24/7 emergency service), the preparation of the body of the deceased, the cremation of the body of the deceased, and the preparation and performance of the funeral service, to be performed for profit. The applicant defended the standpoint that the organisation of funerary services is at the constitutionally protected functional core of local self-government. By having deprived municipalities of the mentioned power, the legislature allegedly interfered with the functional autonomy of municipalities. It allegedly caused significant financial damage to municipalities by depriving them of their own source of funding without providing an alternative one.

The Constitutional Court reviewed the statutory provision on the liberalisation of funerary services from the point of view of the functional autonomy of local self-government, which is guaranteed by the first paragraph of Article 140 of the Constitution. It explained that the mentioned constitutional provision protects the functional core of local self-government and the original powers of municipalities necessary for the exercise of their constitutional function, i.e. meeting public needs and serving the residents’ interests at the local community level. These are the powers that enable residents to autonomously organise and manage their common life on the territory of a municipality. They range from the regulation of general conditions for the common life and work of the people, to possibilities for exploiting the natural and other features of a municipality in order to achieve the economic, social, cultural, and other development of the local community. There must exist a direct territorial, functional, and interest link between such powers and municipalities. They primarily encompass the following: the management of municipal assets, the spatial management of the municipal territory, the construction and maintenance of local infrastructure, the provision of communal services to residents and the economy, the provision of primary level medical care, the provision of day care and primary education for children, the provision of non-profit housing, care for the socially deprived, the regulation of local traffic, ensuring possibilities for the enhancement of economic, social, cultural, and other development, ensuring order and peace, and ensuring environmental protection. Such powers are fundamental for the existence of local self-government as otherwise municipalities would not be able to exercise local self-government, which is guaranteed by the Constitution.

The Constitutional Court decided that funerary services do not fall within the scope of these powers as they are not services that ensure general conditions for the common life of the residents on a certain territory. It explained that a local community must regulate common life and the rules for such regarding activities that by the nature of the matter require collective organisation and management due to their communal legal nature or the necessary limitation of goods. Funerary services do not have such characteristics as they are intended to satisfy the individual needs of the individual residents of a municipality and do not require the collective reconciliation of interests. They enable residents to have a funeral ceremony to commemorate their late relative in accordance with their personal wishes. The local community as a whole, however, has a common interest in ensuring that funerary services be performed on its territory in accordance with the right of deceased persons to respect, which is guaranteed by Article 35 of the Constitution, and must therefore have the right to organise and perform supervision over how such activity is performed. The legislature took this into consideration when reserving the power to supervise the performance of funerary services on the territory of a municipality for the municipal inspectorate. The Constitutional Court therefore assessed that the performance of funerary services is not directly connected to municipalities in terms of territory, function, or interests and that these powers are not imminently necessary for municipalities to exercise local self-government, while by adopting the second paragraph of Article 5 of the Funerary and Cemetery Services Act, the legislature did not interfere with the constitutionally guaranteed functional core of local self-government.

The Constitutional Court also reviewed the same provision from the point of view of the financial autonomy of local self-government. The Constitutional Court has already emphasised several times that the financial autonomy of local self-government is a prerequisite for its existence. It is guaranteed by Article 142 of the Constitution, which determines that municipalities shall finance themselves from their own sources, while only municipalities that are unable to fully provide for the performance of their duties due to their insufficient economic development are ensured additional funding by the state in accordance with the law. The Constitutional Court has already adopted the position that an unconstitutional interference with the financial autonomy of municipalities can be established only in cases in which an imbalance between the revenues and the expenditures of a municipality for the exercise of the duties stemming from its original powers is demonstrated. It also adopted the position that depriving a municipality of its own revenue without providing an alternative financing source of its own is inconsistent with Article 142 of the Constitution. However, in the case at issue, the Constitutional Court assessed that by its general allegations regarding significant financial damage or the hypothetical need for the provision of additional funds from the budget, the applicant failed to demonstrate that revenues and expenditures for the exercise of duties stemming from original powers are imbalanced. The legislature envisaged a number of financial sources for the performance of cemetery services, thereby enabling municipalities to ensure sufficient funds for the performance of cemetery services if managed appropriately. The applicant also could not demonstrate an interference with financial autonomy by alleging in a general manner that municipalities were deprived of a financial source of their own.

The Constitutional Court did not establish the inconsistency of the challenged provision with Article 35 of the Constitution, as it assessed that the applicant’s general allegations – regarding disrespect for the right of deceased persons to respect, disrespect for the public interest, as well as regarding the fact that liberalisation had reduced the possibility of supervising services since following the adoption of the Funerary and Cemetery Services Act such supervision will be performed solely by state inspectorates – are unfounded.

With regard to the statutory regulation of the funeral fee, the Constitutional Court established that it gives municipalities the authorisation to introduce such, prescribes the manner of its introduction, determines the object that the fee applies to and the person liable for the payment of such, and is therefore not inconsistent with Article 147 of the Constitution. It also dismissed the applicant’s allegation that the challenged statutory provision is inconsistent with the principle of equality determined by the second paragraph of Article 14 of the Constitution. With regard to the statutory regulation of local taxes, the Constitutional Court has adopted the position that different legal positions of taxable persons (with regard to the amount of their tax liabilities) do not entail an interference with the principle of equality before the law if constitutional standards of statutory precision in prescribing taxes are observed and if the application of law is not arbitrary. In accordance with the argument a maiori ad minus, the same position applies to other local public duties. As long as the statutory regulation of a local public duty is consistent with the requirements determined by Article 147 of the Constitution, it cannot be inconsistent with the second paragraph of Article 14 of the Constitution.

The Constitutional Court pointed out to municipalities that they are not completely free as regards prescribing the amount of the funeral fee. If they introduce a funeral fee, they must determine its amount in a reasonable proportion with respect to the total costs of cemetery management, taking into account other financial sources intended for cemetery management.