U-I-348/96

Reference no.:
U-I-348/96
Objavljeno:
Official Gazette of RS, no. 17/97 and OdlUS VI, 25 | 27.02.1997
ECLI:
ECLI:SI:USRS:1997:U.I.348.96
Act:
Ordinance of Ljubljana Urban Municipality on regulating street traffic (Official Gazette of RS, No. 24/96), articles 1, 3, 6

Rules of Ljubljana Urban Municipality on fixing and removal of wheel locks (handcuffs) for vehicles (Official Gazette of RS, No. 24/96)
Operative provisions:
1. The following provisions of the Ordinance on amendments and supplements to the Ordinance of Ljubljana Urban Municipality on regulating street traffic shall be abrogated: - the section of article 1 reading: "or shall be locked by a special technical device: hereinafter: wheel locks. Also locked shall be a vehicle which has been parked on public parking areas where parking time is limited longer than the allowed time, as well as a vehicle parked on reserved parking areas.", - article 3, and - article 6. 2. Rules of Ljubljana Urban Municipality on fixing and removal of wheel locks (handcuffs) for vehicles shall be abrogated.
Abstract:
The constitutional requirement that municipal regulations must conform with statute (paragraph 3 of article 153) of the Constitution, indent 4 of paragraph 1 of article 160 of the Constitution, article 144 of the Constitution) should be understood as a milder form of the principle of legality: the Municipality may, within the limits of paragraph 1 of article 140 of the Constitution, regulate legal relations by norms without being expressly empowered to do so by statute; however, the provisions of its regulations shall not be in disagreement with statutes.

In regulating particular areas, the legislator may outline the original scope of activities of the Municipality, thus making concrete (filling) the indeterminate constitutional concept of "local affairs". In doing so, however, he may not act arbitrarily and may not interfere with the right of local government units to independently decide on local public matters.

In assessing the conformity with statute of municipal regulations it is necessary - on the basis of interpretation of the statute - to determine the extent to which the legislator intended to limit the area of discretionary (autonomous) decision-making. The legislator may expressly define the scope of normative powers in particular areas; and the provisions of municipal regulations may not exceed such empowerment.

If there is no such special empowerment by statute, this does not mean that the Municipality may not - within the limits of the Constitution - regulate legal relations in this area. On the basis of interpretation it should be determined whether the aim of the legislator was to regulate the matter in exclusive or exhaustive manner, thus excluding further development of normative regulation on the part of the Municipality. In this case, also, the legislator is restricted by paragraph 1 of article 140 of the Constitution.
Password:
Parking of motor vehicles, regulating of wrong parking, prohibition of parking, wheel locks (handcuffs).
Working area of self-governing local government bodies.
Supervision by state authorities.
Lack of harmony between legal acts.
Relationship between central government and local government powers.
Local public affairs.
Legally indeterminate concept.
Municipality, original powers.
Regulating of street traffic.
Statutory authorization regarding the regulating of matters at municipal level.
Authorization to supervise the enforcement of a law.
Municipality, determination of petty offenses in the context of violation of municipal regulations.
Interpretation of a law, teleological interpretation.
Exceeding of statutory authorization by a regulation.
Concurring opinion of a judge of the Constitutional Court.
Dissenting opinion of a judge of the Constitutional Court.
Legal basis:
Constitution, articles 140, 144, 153, 160.
Local Self-Government Act (ZLS(, article 21.
Road Traffic Safety Act (ZVCP-82), articles 8, 9, 163.
Roads Act (ZCes), articles 10, 12.
Petty Offenses Act (ZP), article 3.
Constitutional Court Act (ZUstS), paragraph 3 of article 45.
Note:
In stating the reasons for this Decision the Constitutional Court makes reference to its case U-I-98/95 of 11 July 1996.
Document in PDF:
The full text:
U-I-348/96
27.2.1997

D E C I S I O N

At the meeting of 27 February 1997 concerning the procedure for the evaluation of constitutionality commenced on the initiative of Nikola Popadić from Ljubljana, represented by Mateja Klarič from Brezovica, the Constitutional Court

made the following decision:

1. The following provisions of the Ordinance on amendments and supplements to the Ordinance of Ljubljana Urban Municipality on regulating street traffic (Official Gazette of RS, No. 24/96) shall be abrogated:

- the section of article 1 reading: "or shall be locked by a special technical device: hereinafter: wheel locks. Also locked shall be a vehicle which has been parked on public parking areas where parking time is limited longer than the allowed time, as well as a vehicle parked on reserved parking areas.", - article 3, and

- article 6.

2. Rules of Ljubljana Urban Municipality on fixing and removal of wheel locks (handcuffs) for vehicles (Official Gazette of RS, No. 24/96) shall be abrogated.

R e a s o n s:

A.

1. The initiator disputes the provisions of articles 1, 3 and 6 of the Ordinance on amendments and supplements to the Ordinance of Ljubljana Urban Municipality on regulating street traffic (hereinafter: the Ordinance) and the Rules of Ljubljana Urban Municipality on fixing and removal of wheel locks (handcuffs) for vehicles (hereinafter: "the Rules"). The disputed provisions regulate the locking of vehicles by wheel locks if the vehicle has been parked in violation of the Ordinance. The initiator considers that the measure concerned is not based on statute, which is why it is claimed to be in conflict with the principle of legality in the criminal law referred to in article 28 of the Constitution. According to Road Traffic Safety Act (Official Gazette of SRS, Nos. 5/82, 40/84, 29/86; Official Gazette of RS, No. 1/91 - hereinafter: "the ZVCP-82"), the Municipality is claimed only to have the right to the removal of wrongly parked vehicles, but not also to their detainment. The ZVCP-82 supposedly also does not envisage punishment by the disputed measure. Also, wheel locks supposedly fail to ensure undisturbed and safe traffic.

The Rules are claimed to be controversial also because the amount fixed as the cost of locking it too high. That the amount is too high is supposedly shown by the mere fact that the cost of the removal of the car by tow-away car is identical. As such it is claimed to represent another punitive measure - in addition to a fine - and is thus supposedly in conflict with article 31 of the Constitution. By imposing the payment of the costs without the possibility of prior appeal, Ljubljana Urban Municipality (LUM) exploited its monopolistic position - which is supposedly contrary to article 2 of the Constitution and the Act on Protection of Competition (Official Gazette of RS, No. 18/93 - hereinafter: "the ZVK") - and violated the constitutional right of appeal (article 25 of the Constitution). In his application, the initiator listed some other reproaches, but those are not directly connected with disputed provisions.

2. The initiator proposed the staying of the enforcement of the disputed provisions, claiming that in this way LUM had already acquired about SIT 28,000,000 and that the obligation to pay back the said amount could in the case of retrospective abrogation of the disputed provisions cause the same to suffer such consequences as would be difficult to repair.

3. LUM considers that the initiator's reproaches are unfounded.

It says that the disputed Ordinance was passed on the basis of articles 8, 9 and 163 of the ZVCP-82 and on the basis of articles 10 and 12 of Roads Act (Official Gazette of SRS, No. 2/88 - rectified text - hereinafter: "the ZCes"). The responsibility of the Municipality for ensuring undisturbed and safe traffic in built-up areas is supposedly also provided for in article 22 of Local Self-Government Act (Official Gazette of RS, Nos. 72/93, 6/94 - CC decisions, 45/94 - CC decisions, 57/94, 14/95, 20/95 - CC decisions, 63/95, 73/95 - CC decisions, 9/96 - CC decisions, and 39/96 - CC decisions - hereinafter: "the ZLS"). The basis for the measure concerned is claimed to be specified in paragraph 2 of article 8 and in paragraph 1 and clause 2 of paragraph 2 of article 9 of the ZVCP-82.

The reproach on the part of the initiator, that article 28 (principle of legality in criminal law) and article 31 of the Constitution (prohibition against double jeopardy) were infringed, is supposedly illogical and unfounded. The Municipality is supposedly not empowered to prescribe punishable acts. Locking is effected in the case of wrong parking. Such act is defined by the Ordinance as petty offence. The only punishment for prohibited action is fine, which the offender pays after his being guilty of committing the offence of which he is accused has been established before police magistrate. The amount to be paid by the driver of the locked vehicle is supposedly not a punishment but represents the costs supposedly created by the offender by his prohibited acting.

Also supposedly illogical is the initiator's invoking of the principle of law-governed state (article 2 of the Constitution) and the ZVK. LUM is empowered on the basis of statutes to pass such regulations as will ensure order in its territory. The order prescribed by publicly proclaimed regulations should be observed by those to whom the so defined norms are addressed.

Thus, offenders supposedly deliberately undertake the risk of bearing the consequences of their acts. LUM, in so far as public corporation, is claimed not to be in a monopolistic position but only to ensure and enforce the order in the field of regulation of town traffic. The controversial measure is supposedly recognized also elsewhere in the world as an efficient measure used in relieving those city centre areas which are not intended for the traffic of motor vehicles.

4. In the opinion of LUM, the proposal for staying the enforcement is also unfounded. For the purpose of the provisions of article 39 of Constitutional Court Act (Official Gazette of RS, No. 15/94 - hereinafter: "the ZUstS") is claimed to be the protection of interests of those to whom a regulation disputed before the Constitutional Court is addressed, rather than of the body by which the said regulation has been passed.

B.

5. The Constitutional Court accepted the initiative and, finding the conditions specified in paragraph 4 of article 26 of the ZUstS fulfilled, proceeded to decide on the merits of the case.

6. Paragraph 1 of article 140 of the Constitution provides that the range of duties and functions performed by a municipality shall include such local matters, affecting only the people of that municipality, as the municipality may independently handle. Article 144 of the Constitution provides that State authorities shall supervise the performance by local government bodies of their duties and functions. Paragraph 3 of article 153 of the Constitution provides that regulations and other legislative measures must conform with the Constitution and with statute.

And indent 4 of paragraph 1 of article 160 of the Constitution provides that the Constitutional Court shall be empowered to decide upon matters relating to the conformity of local government by-laws with the Constitution and with statute.

7. Within the framework of regulating local public matters (matters of local nature and relating primarily to members of the local community), the Municipality is empowered to pass normative regulations governing the legal relations (rights and obligations of legal entities). In doing so, however, it may not go beyond the constitutional framework, with its normative regulations interfering with powers of the central government.

The Municipality is directly empowered to regulate local matters, on the basis of the provisions of paragraph 1 of article 140 of the Constitution. And it does not need any special statutory authorization to be able to exercise the said power.

8. The concept of local public matter as included in the provision of paragraph 1 of article 140 of the Constitution is a legally indeterminate concept. Although being a constitutional concept, the legislator has the right to fill its content by laws. In doing so, the legislator has at his disposal a certain field of discretionary power concerning the defining and regulating of original powers of the Municipality; but he may not act to the prejudice of the system of local government - namely, the right of a local government unit to independently decide its matters. In delimiting the powers of the State and the Municipality, the legislator may not act in violation of the provision of paragraph 1 of article 140 of the Constitution, for in doing so he would interfere with local self-government in violation of the Constitution.

In determining the original powers of the Municipality, the legislator can use various normative techniques. The empowering of the Municipality to regulate normatively certain questions can be more general or more specific. This logically follows from the fact that some areas of public affairs are mainly suitable for regulation at local level, while in the case of others the share of decisions concerning local public matters is smaller. It is characteristic of the relationship between administrative and political process at central government and local government level that in the case of the latter decision- making is a combination of elements originally belonging to it and those vested in it. The legislator can also choose not to determine original powers of the Municipality at specified areas; however, this does not prevent the Municipality from normatively regulating the said area. For the Municipality is empowers to do so already by the Constitution itself.

9. Municipal regulations must conform with the Constitution and statute. The said conformity, however, does not mean that, for the Municipality to be able to normatively regulate particular areas of local public matters, it should be authorized accordingly in statute, or that the content and purpose of normative regulation should be clearly and distinctly defined by statute. The principle of legality of performance by local government bodies of their duties and functions does not have the same content as the principle of legality of performance by the executive branch of its duties and functions. This follows from the different roles played by these bodies in the system of government. In some areas, which are of local character to a lesser degree, the legislator can define the framework for the activities of municipal authorities in the same manner as he defines the framework for the activities of the executive branch; but there is not doubt that this does not apply to all of the areas.

The principle of legality of municipal activities in the field of normative work means that municipal regulations which regulate matters coming within original powers of the Municipality may not be in conflict with statutes. Thus, they may not regulate legal relations in violation of statutory provisions and, where the legislator has defined the framework of authorization for normative regulation, they may not go beyond such authorization. It is necessary, separately for each individual case, by interpretation of statute to determine the scope of the area left by the legislator to the Municipality for normative regulation. Where a statute expressly defines original powers of the Municipality or authorizations with respect to normative regulation within the framework of original powers at any particular field, it is necessary through interpretation to determine the scope of such authorization, which can be clear and determinate or defined just by general clauses or legally indeterminate concepts. When original powers of the Municipality with respect to a specific area are not defined by statute, on the other hand, it is necessary to establish whether the intention of the legislator was exclusively (exhaustively) to regulate the said area, or to allow the possibility for the Municipality to further (praeter legem) regulate this area.

10. In the case under consideration, in determining the compliance with statute the ZLS and the ZVCP-82 are of relevance. Indent 4 of paragraph 2 of article 21 of the ZLS provides that town traffic shall be regulated by Urban Municipality. By provisions of articles 8 and 9 of the ZVCP-82 (statute regulating a specific field), the legislator defined the powers of the Municipality in the field of traffic regulation. Irrespective of the fact that the law was passed during the time of the communal system, when municipality did not play the role of basic self-governing local community, the provisions of articles 8 and 9 continue to be in force (having regard to the Act on Taking Over of State Functions and the decision of the Constitutional Court in the case U-I-98/95) in so far as regulating the normative powers of the Municipality and in so far as regulating the administrative tasks connected with the implementation of municipal regulations. In assessing the legality of the disputed provisions of the Ordinance and the Rules, then, the interpretation of the provisions of this statute which regulate the powers of the Municipality is essential. This statute comprises an authorization concerning normative regulation at municipal level, which is why it is necessary to evaluate whether Ljubljana Urban Municipality exceeded the said authorization by introducing a new measure in the field of traffic.

It is true that the disputed Ordinance makes reference to articles 8, 9 and 163 of the ZVCP-82 and articles 10 and 12 of the ZCes as statutory basis, but there is not doubt that the provisions of articles 10 and 12 of the ZCes, and the provision of article 163 of the ZVCP-82 were not used as statutory basis when passing the disputed provisions of the Ordinance and the Rules. According to the claims by LUM, in passing the disputed provisions the provisions of paragraph 2 of article 8, paragraph 1 of article 9 and clause 2 of paragraph 2 of article 9 of the ZVCP-82 served as the basis.

11. According to the provision of article 1 of the Ordinance, parking is prohibited on side-walks and pedestrian walks, unless allowed by traffic sign, on cycle strips and tracks, and on public green areas. A vehicle parked in violation of the Ordinance shall be removed or locked by special technical device, called wheel locks. Also locked shall be a vehicle parked longer than allowed on public parking areas where parking time is limited, as well as a vehicle parked on reserved parking areas. The other two of the disputed articles of the Ordinance (articles 3 and 6) authorize traffic wardens to lock a wrongly parked vehicle by wheel locks. The Rules regulate the manner of mounting and removing the wheel locks from the vehicle and specify the costs of mounting and removing the same, and the costs of using the wheel locks in reference with a wrongly parked car (article 1). The essential content of the disputed provisions, then, lies in the introduction of a new repressive measure directed against drivers of vehicles parked in violation of law.

12. Article 9 of the ZVCP-82 in paragraph 1 assigns to the Municipality the responsibility for ensuring uninterrupted and safe traffic. In subsequent paragraphs the ZVCP-82 enumerates some powers of the representative and other bodies of the Municipality. The representative body and other bodies are restricted in their power of normative regulation by the defining of the framework for such regulation: " With a view to ensuring undisturbed and safe traffic in built-up areas, the Municipality may in particular ...". The text that follows enumerates by way of example some normative measures falling within the competence of the representative body:

- the prescribing of traffic regulation in built-up areas, and - the formulating of the procedure, conditions and manner of removing wrongly parked vehicles.

Some normative powers were assigned by law to the then executive councils of municipal assemblies. In accordance with the new system of municipal bodies, however, the said powers were assumed by Municipal Council. The following powers are involved: - the prescribing of conditions and measures to be taken into consideration in reference with roadwork in built-up area, - the determination of main and junction roads, one-way roads and driving speeds in built-up areas;

- the regulating of pedestrian traffic and traffic of bicycles, motor-assisted bicycles and horse-drawn carriages, - the regulating of the driving and leading by the rein of cattle, and

- acting in other matters connected with local traffic in built- up areas.

Normative measures in the statute are not listed exhaustively.

It was thus necessary to determine whether the prescribing of a special measure - the locking by a special technical device of vehicles parked in violation of law - falls within the framework of statutory powers, or whether it follows from the statute concerned that the legislator has excluded the regulating of this and similar measures.

Paragraph 2 of article 8 of the ZVCP-82, to which LUM also makes reference, empowers municipal traffic wardens to exercise control over parked vehicles and take such actions as are provided for by regulations. Thus, this provision does not contain any authorization with respect to normative regulation but just gives authorization for the control of implementation of the statute itself and of the regulations passed on the basis of other provisions of this statute.

13. The framework for normative regulation on the part of the Municipality in the field of road traffic is defined by the corresponding objective ("with a view to ensuring undisturbed and safe traffic"). Normative regulation pursuing the said objective was envisaged by the legislator in the field of regulation of traffic regime (traffic operation, that is, the controlling of traffic flows), which also comprises the defining of major and junction roads (crossroads traffic control), and of one-way roads, in the field of the driving of cattle, pedestrian traffic and cycle traffic, and regime relating to roadwork and stationary traffic (parking). With respect to the latter, the legislator has envisaged the removal of wrongly parked vehicles as a measure. The legislator has not envisaged any other repressive measures regarding the wrongly parked vehicles, but the Municipality is empowered, under article 3 of Petty Offenses Act (Official Gazette of SRS, Nos. 25/83, 42/85, 47/87 and 5/90), to prescribe the petty offenses violating its regulations (thus also regulations use by it for the purpose of regulating the parking).

Although the measures under ZVCP-82 are given by way of example and are not listed exhaustively, the enumeration on the part of the legislator explains his view as to which measures are appropriate to reach the said objective, thus making easier the teleological interpretation of authorization provisions. The only repressive measure envisaged in the field of stationary traffic is the towing away of wrongly parked vehicles. The wheel locking measure has completely different significance than the towing away, for it is not directed at eliminating the conditions resulting in this particular case from wrong parking. The measure has general and special preventive purpose, which was also pointed out on the occasion of the discussion at the time of passing the Ordinance and the Rules in the Town Council. To be able to reach the said aim, the Municipality can define the petty offenses violating its regulations by which it regulates the parking. On the basis of teleological interpretation of the statute (by taking into consideration the inseparability of the general provision and the measures listed by way of example, which explain the view of the legislator on the ways in which this objective can be realized), one comes to the conclusion that in the field of stationary traffic the legislator has envisaged as the only repressive measure (in addition to the sanctions relating to petty offence) the towing away of the wrongly parked vehicle. An additional argument in favour of this conclusion is also the fact that in the proposed text of the new Road Traffic Safety Act (Journal of the National Assembly of RS, No. 5/95) paragraph 1 of article 18 expressly envisages as a measure for the ensuring of undisturbed and safe traffic also locking by wheel locks, which "a contrario" means that the law in force does not include the said authorization.

Thus, the wheel-locking measure is contrary to statute, for it exceeds the authorization granted by statute.

14. As the Constitutional Court abrogated the disputed provisions of the Ordinance and the Rules, if nothing else because of their not being based on statute - which is why they are in disagreement with paragraph 3 of article 153 of the Constitution, it did not find it necessary to enter into the assessment of the justifiability of the rest of the reproaches on the part of the initiator.

C.

15. This Decision was made on the basis of paragraph 3 of article 45 of the ZUstS by the Constitutional Court in the following composition: Dr. Tone Jerovšek, President, and Dr. Peter Jambrek, Matevž Krivic, M.L., Janez Snoj, M.L., Dr. Janez Šinkovec, Dr. Lovro Šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič, the judges. The Decision was reached with seven votes in its favour and two against it. Votes against were cast by judges Jambrek and Šturm. Dissenting opinion was given by judge Šturm and concurring opinion by judge Ude.


P r e s i d e n t
Dr. Tone Jerovšek
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
municipal regulation
Applicant:
Nikola Popadić, Ljubljana
Date of application:
07.11.1996
Date of decision:
27.02.1997
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN01242