Zuzana Adameová
Public law agreements between
private subjects in the Czech
Republic and Slovakia
Studia Prawnoustrojowe nr 16, 7-152012
Zuzana Adameova
D ep artm en t of A dm inistrative Law Palacky U niversity in Olomouc
Public law agreements between private subjects
in the Czech Republic and Slovakia
In tr o d u c tio n
Public Law A greem ents are an u n u su a l and m odern form of activity in public adm inistratio n . They do not belong to recently introduced legal in stru m en ts n e ith e r in the Czech Republic nor Slovakia. Public law agre em ents, in w hich one or all p a rties are not vested w ith a public authority, rep re sen t a tool th a t involves en tities of ad m in istratio n in th e procedure of achieving its goals. F u rth erm o re, public law agreem ents are believed to increase efficiency and speed of ad m in istrativ e activities.
The aim of th is pap er is to draw a tte n tio n to one p a rtic u la r type of public law agreem ents, public law agreem ents betw een p rivate subjects and rela te d issu es1. D espite of th e ir long existence, the in te rp re ta tio n of the
relevan t legislation in th e Czech A dm inistrative Procedure Code2 and lack of practice of th is ad m in istrativ e tool in general does not leave ad m inistrative legal theory and practice quite w ithout question m arks. U nlike in the Czech Republic Slovakia does not have any general legislation on public law ag re em ents. Scarcity of special law s enabling public law contracts betw een p riv a te subjects does not provide m uch experience either.
Firstly, th e paper deals w ith th e definition of public law agreem ents betw een p rivate subjects in legal theory, th e ir position in classification of public law contracts. Before th e p ap er fu rth e r exam ines w h at th e subject of th e contract betw een private subjects governed by public law is, a tte n tio n is paid to b rief introduction of legislation in both countries. A lthough in both countries theory recognizes public law agreem ents betw een subjects as a m ean of tra n s fe r of in d iv id u al public rig h ts an d duties or ag reem en t of
1 T erm s “a d m in is tra tiv e a g re e m e n ts ”, o r “c o n tra c ts g o v ern ed b y th e p u b lic la w ” a re used . T h is lin g u istic iss u e is a d d re s s e d below.
8 Z u z a n a A d a m e o v a
th e p a rtie s on th e m an n e r of exercising th e ir rig h ts or d uties, th e comm on ly accepted gen eral idea of n o n -tra n sfe ra b ility of public rig h ts an d duties a p p ears to e sta b lish significant obstacles to th e ir p ractical use. F inally p a p e r addresses th e ongoing puzzled discussion on the role of Section 162 of th e Czech A dm inistrative Procedure Code. In other words the unansw ered question is w h eth er conclusion of th e public law agreem ent req u ires an explicit sta tu to ry auth o rizatio n in special laws.
According to legal theory a public law contract is a b ila te ra l or a m u ltila te ra l legal act th a t constitutes, modifies or an n u ls a legal relationship in the sphere of public law 3. In th e beginning it should be noted th a t opinions on th e nam e for th is adm in istrativ e tool are not unified. A lthough these agre em ents are referred to as public law agreem ents or contracts in th e Czech Republic, the attribute “public” is construed either sensu stricto, i.e. corresponds to the objective scope of the A dm inistrative Procedure Code, or sensu lata4. In Slovakia under the term public law contracts (agreements) literatu re inclu des agreem ents governed by the public law other th a n adm inistrative or beyond the adm inistrative law and reserves the term “adm inistrative agreem ents” for those th a t are governed by norm s of ad m in istrativ e law only5.
Legal theory and legislatu re are not unified on th e issue of using term s “contract” or “agreem en t” for th is adm in istrativ e tool. In th e Czech Republic leg islature decided for the term “contract”, and it also prevails in litera tu re . In Slovakia th ey are m ostly referred to as ad m in istrativ e agreements.
In the p ast, however, th e term “ad m in istrativ e ag reem ents” was prefer red over th e term contracts. The arg u m en t for th e term “agreem ents” is th a t p a rtie s ’ autonom y is particu larly w eakened here. P a rtie s of an a d m in istra ti ve agreem ent do not have th e sam e freedom and autonom y reg ardin g its contents as p a rties of th e private law contract. R equirem ent of legality th a t brings such lim its is one of th e key featu res of public law agreem ents.
A uthor decided to refer to th em as “public law ” since nowadays we are w itnessing th a t new legal fields are being sep arated from th e original b ra n ches of legal system , for instan ce environm ental law has been recognized as a se p ara te from th e corpus of ad m in istrativ e law, and th is p a rtic u la r legal a re a seem s to offer a lot of options for co n tra ctu a l approaches to public a d m in istra tio n . As fa r th e lin g u istic issue is concerned, a u th o r does not in sis t exclusively on e ith e r of them . A fter all, e ith e r we use “c o n tra ct” or “ag re e m e n t”, th e m a te ria l concept a n d legal construction should prevail
3 V. S lad ecek , O becne sp r a v n i p ra vo , 2009, p. 163. 4 J . V edral, S p r a v n i rad: ko m en ta r, 2006, p. 908.
5 M. V rabko, V erejnopravne d o h o d y - fo r m y ein n o s ti organov verejnej sp r a vy s p ra vo -
tv o r n y m i u c in k a m i, “P ra v n y obzor” 2001, no. 84, pp. 1 3 4 -1 4 3 . See also R. J a k a b , V erejnopravne z m lu v y , “J u s tic n a re v u e ” 2005, no. 57, pp. 1 3 6 8 -1 3 8 0 .
an d distin guish th em from o ther forms of ad m inistrativ e activities. W here article refers to a p a rtic u la r legal provision, an identical language will be used.
H istorical developm ent of public law agreem ents in th e Czech legal system h as roots in th e h istory of A ustria-H ungary. It took decades before public law agreem ents becam e supported by th e legal theory. One of the stron gest opponents was Otto M ayer and his m ain arg u m en t a g ain st public law agreem ents was th a t private and public legal in stitu te s should not be joined.
Hoetzel h as recognized public law agreem ents as one form of adm ini stra tiv e acts. He d istinguished public law agreem ents betw een th e s ta te and a citizen, agreem ents betw een public law subjects and public law agreem ents betw een p riv ate subjects6. S ta sa divides public law contracts into public law
contracts sensu stricto, i.e. contracts in w hich a t lea st one p a rty is a public au th o rity and sensu lata, i.e. contracts concluded by p a rties th a t n e ith e r is a public authority. Vedral em phasizes im portance of th e public law con tra c t’s content. It is th e decisive factor in th e process of d eterm ining a public or private n a tu re of th e agreem ent7. Polcak adds an oth er classification of
public law agreem ents according to th e ir n a tu re . He distinguishes norm ative and individual public law contracts8. Vrabko subm its a hybrid ch aracter of public law agreem ents, while they are regulated by norm s of ad m inistrative law, an d they constitute, am end or term in a te rig h ts or duties in th e public sphere, b u t th e ir very basis is contractu al and th u s of a p riv ate law n a tu re9. Public law agreem ent is deem ed an alte rn a tiv e to ad m in istrativ e acts issued by an ad m inistrative body, w hen it is required by law and such law does not stip u late otherw ise1 0.
Public law agreem ent betw een p a rties is an adm in istrativ e tool th a t enables p a rties th a t are not a public au th o rity b u t n a tu ra l or legal person of p rivate law to m ake an agreem ent on the tra n s fe r or m an n er of execution of th e ir rig h ts or duties unless th is is excluded by th e n a tu re of th e m an n e r or if a special law provides otherwise.
At th e beginning we shall discuss th e issue of public rig h ts and duties and idea of th e ir tra n sfe ra b ility while th e general idea is th a t public righ ts and duties are non-transferable. A lready H oetzel ad m itted th a t th e ir tra n s fer is possible if, a t least indirectly, law s stip u late so. The Czech A d m in istra tive Procedure Code allows tra n s fe r of rig h t and duties or any agreem ent on th e ir execution as long as such agreem ent does not contravene the law and public in terest.
7 J . V edral, op. cit., p. 909.
8 R. P olcak, N o r m a tiv ita verejn o p ra vn ich s m lu v , “V erejn a s p ra v a ” 2003, no. 14. 9 M. V rabko, op. cit., pp. 1 3 4 -1 4 3 .
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Public rig h t an d duties a d rem are generally tra n sfe rre d to g ether w ith th e tra n s fe r of th e object to which they relate. A greem ents on public rights an d duties related to a specific object w ith sim ultaneous tra n sfe r of the object alone, requ ire exam ination from case to case in order to evaluate w h eth er it would not contravene th e law or public in terests. T ransfers of public rig h ts and duties in personam on th e oth er h a n d m ay be well used in th e are a of lim ited n a tu ra l resources for instance. Public rig h t con stitu ted by a decision m ay not be fully exercised by its b e a re r th u s the person m ight be allowed to enable others use of it, as long as c riteria set by law are met.
A lthough public law agreem ents are not new in Czech legal order, it was only in 2006 w hen new A dm inistrative Procedure Code came into effect and brought th e general and complex regulation of public law contract. On the oth er hand, in Slovakia such regu latio n has not been passed yet. T h at is the m ain difference betw een th e two legislations. Before th e “new” A d m in istrati ve Procedure Code was passed, conclusion of a public law agreem ent req u ired th a t a special law stip u late d so a d hoc11. And furtherm ore, for such contracts th ere were no general provisions reg arding contract modification, avoidance or term in ation , review of legality etc.
Act no. 500/2004 Coll., th e A dm inistrative Procedure Code, as am ended, h as been th e first act to provide a coherent regu lation of public law contracts in th e Czech Republic. A lthough th e provisions on public law contracts are of su b stantive n a tu re , th e ir inclusion in A d m inistrative Procedure Code appe ars th e m ost appropriate. F irs t reason is th a t th e Czech ad m in istrativ e law h as no g eneral su b stan tiv e code or set of laws. Secondly, provisions gover ning public law contracts are closely connected w ith th e provisions governing ad m in istrativ e procedure12.
P a r t Five of the A dm inistrative Procedure Code, governing public law contracts, contains provisions on all types of contracts governed by public law. It classifies, however not expressly, public law contracts into co-ordinate an d subordinate contracts and so called public law contracts of th e th ird type, n am ed contracts betw een th e parties. A dm inistrative Procedure Act req u ires all given types of contracts to comply w ith legislation and public in terest. A coordinate contract is concluded betw een ad m in istrativ e bodies of equal or alm ost equal ran k , while a su b ordinate contract is m ade by p arties who sta n d in th e position of a su b ordinate an d a superior. It should also be noted th a t besides ch ap ter five, provisions of p a rt one and p a rt two apply subsidiarily to th e m atter, in p a rtic u la r those regarding basic principles of activities of ad m in istrativ e bodies13.
11 J . S ta s a [in:] D. H e n d ry c h e t al., S p r a v n i p ra v o , 2009, p. 159. 12 J . V edral, op. cit., p. 159.
In overall th e A dm inistrative Procedure Code is inspired an d based on th e G erm an A dm inistrative Procedure Act (Verwaltungsverfahrensgesetz). Public law contracts are governed by ss. 54-62 VwVfG. U nlike in th e Czech Republic, G erm an ad m in istrativ e law considers contracts of th e th ird type to be co-ordinate contracts, an d th u s recognizes only two types of contracts u n d er public law.
Section 162 of th e A dm inistrative Procedure Code sta te s th a t: “Those who would be p a rticip a n ts u n d e r s. 27(1) whose proceedings are in progress u n d er P a r t Two an d those who are p a rticip a n ts in such proceedings m ay e n te r into a public contract rela tin g to th e tra n sfe r or m an n e r of execution of th e ir rig h ts or duties unless th is is excluded by th e n a tu re of the m a tte r or if a special law provides otherw ise. E n te rin g into such contract shall be subjec ted to th e consent of th e adm in istrativ e body; th e body shall consider the public contract and its content in order to estab lish w h eth er or not it com plies w ith legislation and the public in te re st”.
Sections 163 et seq reg u late th e procedure of contract conclusion and form al requirem ents. A dm inistrative Procedure Code requires th a t public law contract is concluded in a w ritte n form. D espite constantly increasing influence of technology on various spheres of law, including public adm ini stratio n , it is questionable w h eth er p a rties can or cannot contract electroni cally. V edral14 and K olm an15 conclude th a t public law agreem ents curren tly
cannot be concluded via electronic m eans of com m unication. We should agree w ith such in te rp re ta tio n since Section 170 A dm inistrative Procedure Code excludes application of th e Civil Code provisions th a t recognize electronic docum ents as equal w ith signed docum ents on a pap er c a rrie r provided th a t th e ir content is recorded for th e fu tu re use and th e ir a u th o r could be id en ti fied w ith certainty, i.e. th a t, in order to be recognized as m ade in w ritte n form, signed w ith an electronic sig n a tu re16. P erhaps for th e purpose of p u
blic law agreem ents betw een p arties A dm inistrative Procedure Act could allow application of Civil Code provisions on validity of legal acts including the w ritte n form. Also it depends on th e development of electronic comm uni cation and th e use of electronic signature th a t is a t least a t the tim e being ra th e r complicated and costly th a n effective. On the other hand, in Slovakia, where such general legislation has not been passed and provisions of th e civil law apply subsidiarily, public law agreem ents m ay be concluded electronically.
A dm inistrative Procedure Code stip u lates th a t public law agreem ent shall be considered according to its content r a th e r th a n its nam e. If any p a rticu la r public law agreem ent evades law, like in th e situ atio n w hen such
14 J . V edral, op. cit., p. 930.
15 P. K olm an, Vybrane aspekty verejnopravnich sm lu v , “P ra v m rad ce” 2011, no. 19, pp. 21-26. 16 J . S v e stk a , J . Spacil, M. S k a ro v a , M. H u lm a k e t al., O b ea n sky za k o n ik . K om entar, 2009, p. 372.
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contract cannot be m ade, it shall be cancelled as concluded unlawfully. A significant feature of public law agreem ents is th e ir constitutive n atu re. According to Section 159 they con stitu te modify or term in a te rights and duties in the sphere of public law.
Public law contracts according to th e Czech A dm inistrative Procedure shall not be contrary to th e public interest. N eith er Czech nor Slovak law contains definition of a public in terest. L ast req u irem en t of th e Section 162 is th e condition th a t conclusion of th e contract shall not be excluded by any special law or by th e n a tu re of m atter.
In Slovakia, on th e other hand, in A d m inistrative Procedure Code th ere is lack of general regulation of all types of public law agreem ents and the situ a tio n is th e sam e as it h a d been in th e Czech Republic before 2006. Only law stip u lates w h eth er public law contract m ay be concluded. C ontract conc lusion, form al requirem ents, modifications, enforcem ent of obligations a ri sing out of contracts, etc., th a t are not reg ulated by p a rtic u la r public law acts need to be found elsew here. U nless th a t act stip u lates otherw ise, provi sions of civil law shall apply. Special law m ay of course expressly refer to civil code or other acts of civil law.
As h a d alread y been outlined in the introduction, th e role of th e Section 162 of Czech A dm inistrative Procedure Code in my opinion h as not been definitely resolved in th e legal theory yet. Two possible in te rp re ta tio n s exist so far. F irst, conclusion of a public law agreem ent betw een p rivate p a rties is conditioned by a special sta tu to ry au th o rization contained in a special law in addition to th e Section 162 of th e A d m inistrative Procedure Code. Secondly, th e Section 162 of Czech A dm inistrative Procedure Code alone contains ge n e ra l s ta tu to ry autho rization th a t requ ires only th e approval of the adm ini stra tiv e body and compliance w ith law while fu rth e r au tho rizatio n is not required.
A uthor subm its th ere is a p a rticu la r u n c e rtain ty about its in te rp re ta tio n even though prevailing nu m b er of ad m in istrativ e theo rists support th e first w ay of in terp retatio n .
E xp lanatory note to th e A dm inistrative Procedure Code does not contain a definite an sw er to th is issue. It expressly in sists on req u irem en t by a special law in th e case of su bordinate contracts b u t as far as th e contracts of th e th ird type are concerned it rep eats d raft provisions, i.e. exclusion by th e n a tu re of m a tte r or if special law provides otherw ise. Fore mostly, in b oth countries we lack valuable practical experience th a t we could support such in te rp re ta tio n with. Secondly, even com m entaries on A dm inistrative Procedure Code p rim arily focus on th e first two types (un der th e common Czech terminology) of public law agreem ents, so does th e literatu re.
Vedral subm its th a t even though Section 162 expressly does not condi tion contract conclusion by th e express sta tu to ry authorization, in fact this
condition m u st be m et, in p a rtic u la r w ith regard to rig h ts and duties arising out of ad m in istrativ e decision1 7. According to S ta sa the au tho rizatio n conta ined in Section 162 is probably general. F u rth e r he asks question w hether th is provision is a b rea k th ro u g h an d w h ether it establishes th e competence of th e ad m in istrativ e body to give consent w ith th e public law agreem ent and finally concludes, although not definitely, th a t a special law is required. Agum ents for both ways of in te rp re ta tio n are outlined below.
F irst, the w ording of Section 162 does not explicitly stip u late th a t special au th orizatio n is required. On th e oth er hand, public contracts whose subject- m a tte r is the execution of th e s ta te ad m in istratio n m ay be en tered into by subjects such as sta te , public corporations or other persons vested w ith powers in public ad m inistratio n , only if a special law provides so18. M ore
over, subordinate contracts betw een an adm in istrativ e body an d a person who would otherw ise be a p a rticip a n t in th e proceedings m ay only be e n te red into if a special law provides so as well1 9. Was it th e clear in ten tio n of
th e legislator to req u est a special s ta tu to ry au tho rizatio n for two types of the public law contracts an d none for th e last one in th e general regulation contained in th e A d m inistrative Procedure Code?
Vedral argues th a t especially w hen th e public rig h ts and duties resulting from ad m inistrative decisions are concerned, th e s ta tu to ry au th o rizatio n is required. M aterial legal effect of a decision disables disposal of righ ts and duties thereby estab lished2 0. If a s ta tu te is required to overcome th e legal effect of a decision, why could not it be th e general law rep resen ted by the Section 162 of the A dm inistrative Procedure Code?
As a sufficient m eans of control to un desired tra n sfe rs and agreem ents execution on public rig h ts and public duties the A dm inistrative Procedure Code req u ires consent of ad m in istrativ e body. Such au th o rity fu rth e r exam i nes w h eth er content of th e contract complies w ith legislation an d th e public in terest. The m ain arg u m en t of supporters of th e first in te rp re ta tio n is th a t even if a special law would not be necessary to allow tra n sfe r of th e public rig h ts and duties, Section 162 req uires consent of a n authority. W hile adm i n istrativ e bodies m ay only tak e a m easure or issue a decision, adm inistrative body would need a legal basis for consent issuance, i.e. a special law. The questions would th u s be w h e th e r we m ay consider Section 162 be a special au th o riza tio n for a d m in istra tiv e bodies to give consent w ith a contract. Some say th a t conclusion of th e ag reem en t is not excluded w ith out e x iste n ce of a special law, b u t lack of com petence w ould req u ire a special law anyway. On th e o th er h an d , opponents argue th a t th e com petence would be
17 J . V edral, op. cit., p. 924.
18 S ectio n 160 § 5 o f th e A d m in is tra tiv e P ro c e d u re Code. 19 S ectio n 161 § 1 o f th e A d m in is tra tiv e P ro c e d u re Code. 20 J . V edral, op. cit., p. 924.
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given to those au th o rities th a t are com petent to issue a decision to both subject to a contract if ad m in istrativ e proceeding was to be held or a u th o ri ties w ithin whose m ate ria l competence given contract falls. G eneral rules to te rrito ria l competence m ay apply to determ ine w hich body shall give or not to give th e consent. Technically speaking th e tra n sfe r of a public rig h t from one subject to an o th er provided th a t a consent is given is exactly th e sam e as cancellation of a rig h t by one decision and creation of th e rig h t for an o ther person.
In Slovakia w here general legislation does not exist and th u s discussion on existence of general sta tu to ry au th o rizatio n lacks any ground, legal th e ory explains th a t a law m u st explicitly stip u late w hen ad m in istrativ e ag re em ent can be concluded21 and su b sta n tia te it by Article 2 of th e Slovak
C onstitution2 2. In case w hen Slovak p arliam en t decides to pass a general
regu latio n on adm in istrativ e agreem ents, the Czech experience m ay serve as a good example.
Both countries are by th e n a tu re of th e ir legal system s very close to Germany. Even though th e G erm an A d m inistrative Procedure Code served as a model for th e Czech legislator, th e in sp iratio n has not been exam ined thoroughly. G erm an ad m in istrativ e th eo rists req uire a s ta tu to ry a u th o riza tion by special laws for public law contracts betw een private subjects. The Czech legislator decided to follow a slightly am ended p a th and introduced th e w ording of Section 162 w ithout proper explanation or reference to expe rience of o ther legal system s w ith sim ilar approach. As a resu lt th e Czech Republic lacks practice in th is a rea and th ere is no case-law. There are a few special law s th a t enable p a rties to conclude an agreem ent u n d er Section 162. U nfortunately, in general th e p oten tial of th is p a rtic u la r contractu al appro ach in public law sphere has been left unused.
S tr e s z c z e n ie
Umowy p u b lic zn o p ra w n e p o m ię d zy p ry w a tn y m i p o d m io ta m i w C zechach i n a S ło w a cji
Słow a kluczow e: p ra w o a d m in is tra c y jn e , umowy, p o d m io ty p ry w a tn e.
Celem tego a rty k u łu je s t zwrócenie uw agi n a jeden kon kretny rodzaj um ów praw a publicznego - umowy praw a publicznego m iędzy podm iotam i p ryw atnym i i zagadnienia pokrew ne. Pomimo ich długiego istnienia, w ykład
21 M. V rabko, op. cit., pp. 1 3 4 -1 4 3 .
22 A rticle 2 § 2 o f th e A ct no. 460/1992 Coll., C o n stitu tio n o f the S lo v a k R ep u b lic, as a m e n d ed , s tip u la te s t h a t s ta te b o d ies m a y a c t solely on th e b a s is o f th e C o n s titu tio n , w ith in its scope a n d t h e ir a c tio n s sh a ll be g o v ern ed b y p ro c ed u re s laid dow n b y a law.
nia odpowiednich przepisów w czeskim kodeksie postępow ania a d m in istra cyjnego rodzi wiele wątpliwości. Widoczny je s t też b ra k p rak ty k i w stosow a n iu tego narzędzia. Inaczej niż w Czechach n a Słowacji nie m a żadnych ogólnych przepisów dotyczących umów praw a publicznego. Nieliczne ustaw y szczególne um ożliwiające zaw ieranie umów publicznopraw nych przez pod m ioty pryw atne sk u tk u ją brakiem wystarczającego doświadczenia.
