Editorial staff table of contents JOURNAL ON LEGAL AND ECONOMIC ISSUES Zdeněk Koudelka: Judicial control of the acts of the President in the Czech Republic . 2. OF CENTRAL EUROPE: Jan Hejda: Private law reformation in the Czech Republic . 12. JUDr. PhDr. Stanislav Balík (Constitutional Court of the Czech Republic) Radka MacGregor Pelikánová: Intellectual property rights and their enforcement Prof. Dr. Mezey Barna in the Czech Republic . 15. (Eötvös-Loránd-University Budapest, Hungary) Ivona Ondelj: Croatian Context of the Right of Establishment . 19. Doc. JUDr. PhDr. Jiří Bílý, CSc. Milan Jančo: On the Long Road towards a European Civil Code . 25. (Metropolite – University Prague, Czech Republic) Petr Kolman: Rules of Administrative Procedure – the question Prof. JUDr. Ignác Antonín Hrdina, DrSc. of procedure language in the Czech Republic . 38. (Faculty of Law, Westbohemia University, Plzeň, Czech Republic) Nina Bachroňová: Ombudsman and Principles of Good Administration – JUDr. Vilém Knoll, Ph.D. (Faculty of Law, Westbohemia University, Czech and European Perspective . 41. Plzeň, Czech Republic) Olga Sapoznikov: A Treatise on the Extent of the Legal Concept of an Animal . 46. ao. Univ. Prof. Dr. jur. Christian Neschwara (Faculty of Law, University of Vienna, Karel Schelle: Tradition of the Czech Constitutional System . 49. Austria) Jaromír Tauchen: Local Referendum in the Czech Republic – History Doc. JUDr. Karel Schelle, CSc. (Faculty of Law, Masaryk University, Brno, and Present Days . 52. Czech Republic) Jiří Myšík: Production & Operations Management Strategy of the company . 55. JUDr. Bc. Jaromír Tauchen, Ph.D., LL.M. Eur.Integration (Dresden) Andrea Schelleová: Overview of the Office for the Protection of the Competition (Faculty of Law, Masaryk University, Brno, Czech Republic) concerning public procurement and rewarding procedures . 67. JOURNAL ON LEGAL AND ECONOMIC ISSUES OF CENTRAL EUROPE © 2010 STS Science Centre Ltd . All rights reserved . Neither this publication nor any part of it may be reproduced, stored in a retreival system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of STS Science Centre Ltd . Published semiannually by STS Science Centre Ltd . „Journal on European History of Law“ is a registered trademark of STS Science Centre Ltd . Printed in the EU . ISSN 2043-085X 2 Journal on Legal and Economic Issues of Central Europe Judicial control of the acts of the President in the Czech Republic Zdeněk Koudelka 1 In the system of law, the President, or the Head of State an administrative body is therefore determined by two aspects: in general, is traditionally perceived as an institute of Consti- first, it is primarily an Executive body (organizational point of tutional Law . However, everything is subject to changes and view) and secondly, it has to be concerned with a review of ac- therefore the President became a subject of the Administrative tions in the public administration field, as the sole condition of Law as well . Most recent case related to this issue is a dispute being an Executive authority is not sufficient . on not-appointing the judicial candidates to the function of judges . The President refused to appoint the candidates mark- 1 The President and the Executive power edly younger than 30 years of age, which is a statutory condi- There are other theoretical concepts of classifying the posi- tion, while he did not use the statutory exception for the group tion of the President in parliamentary democracy than those of nominees from the ranks of judicial candidates, which was which classify the President as a part of the Executive power . Pe- a possibility but not necessity for the group of candidates from ter Kresák exempts the Head of State from its traditional rank- the ranks of judicial candidates . Other categories of lawyers ing as the Executive power and specifies it – under the influence were not granted a statutory exemption 2 . The question is: Is of Bagehot and Redslobe – as a neutral power, which is not the President an administrative body and are Presidential supposed to be regarded as a part of the Executive power, but as acts subject to a judicial review in the administrative judi- a specific unit of power which settles possible disputes between ciary proceedings? The Supreme Administrative Court 3 pro- the Executive power (the Government) and the Legislative vided a positive response to this question, though its decision is power (the Parliament) . This concept invokes the neutral posi- not widely respected . tion of the Head of State also in the political sphere .5 However, To establish the jurisdiction of the administrative judiciary, this is virtually incompatible with the nature of presidentship . the Supreme Administrative Court had to subsume the Presi- Being simply a non-party individual does not imply that the dent under the concept of an administrative body, because the person on the Presidential post is politically neutral . Political Court is primarily determined to review the administrative bod- neutrality is affordable for a monarch who is delegated to his/ ies’ individual legal acts . The Codes of Administrative Judicial her office by mechanisms which are not associated with direct Procedure provide that courts of administrative justice decide on com- or indirect support of political parties . Also Václav Pavlíček ar- plaints against decisions made in the sphere of public administration by gues that arguments classifying the President of the Republic as an executive authority, the autonomous unit of a local administrative a part of the Executive power in order to consider his/her acts authority, as well as by a natural person or legal entity or another to be the acts of the Executive power lack legal ground . The lack authority if entrusted with decision-making about the rights and obliga- of legal ground is concluded from a comparison of the Constitu- tions of natural persons and legal entities in the sphere of public admin- tional Charter of 1920, where the President is ranked as a part istration (hereinafter “administrative authority”) 4 . For the purposes of the Executive power, with the Constitution of 9th May 1948, of jurisdiction of the administrative judiciary, the definition of where the position of the President was regulated in a separate 1 Doc . JUDr . Zdeněk Kouselka, Ph .D ., Supreme Public Prosecutor’s office of the Czech Republic . 2 Article 60, Section 1 of Act No 6/2002 Coll . on Courts of Justice and Judges, as altered by Act No .192/2003 Coll . and by Art .X of this Act . 3 The Supreme Administrative Court Decision N .605/2006 in the Collection of The Supreme Administrative Court Decisions (4Aps 3/2005) and Deci- sion of 21 .5 .2008, 4Ans 9/2007-197 . 4 Section 4 para . 1 let . a) of the Codes of Administrative Judicial Procedure N . 150/2002 Coll . 5 Peter Kresák: Forma vlády v SR (The form of Government in the Slovak Republic), in collective volume Aktuální problémy parlamentarismu (Current Problems of Parliamentarism), Masaryk university Brno 1996 . Accordingly Karel Klíma and coll .: Komentář k Ústavě a Listině (A Commentary on the Constitution and the Charter on Rights and Freedoms), Plzeň 2005 or Lubor Cibulka: Ústavné základy vzťahov prezidenta SR a vlády SR (Constitutional Basis of Relations between the President and the Government in the Slovak Republic), in collective volume Postavení prezidenta v ústavním systému ČR (Position of the President in the Constitutional Order of the Czech Republic), Masaryk University, International Institute of Political Science Brno 2008, p . 180 . 1/2010 3 head . The position of the President is virtually the same under proceedings) . However, such a hierarchic relationship does not both documents .6 Nevertheless, the systematic placing of the exist between the Supreme Court and the Supreme Administra- President in both the Constitution of Bohemia, Moravia and tive Court; they are both supreme Judicial power bodies . Silesia and the Constitution of Slovak Republic in the head The question is whether, with the concept of the Executive called “The Executive power” is evident . However, the notion power in a narrow and a larger sense, the Executive power in the of Executive power is not always the same . Codes of Administrative Judicial Procedure is to be perceived Systematically, the position of the President is accommo- in a narrow or a larger sense as classified by the Constitution . dated in one Chapter of the Constitution together with the Unfortunately, the Supreme Administrative Court judgment Government – the Chapter called “The Executive power” . The does not deal with this issue . Considering that it reviewed an fact that the Head of State is a part of a branch of power, while Act of the President, it may be implied that, while the Court the supreme body of this power is an organ different from the did not provide arguments about theoretical concepts concern- President (the Government), gives rise to a certain contradic- ing the position of the President in parliamentary democracy tion .7 Vladimír Zoubek deals with this contradiction by argu- (which would be suitable for a judgement reviewing an act of ing that, in a narrow sense, the Executive power – the supreme the President), it perceives the Executive power in the Codes of body of which is the Government – consists of the Government, Administrative Judicial Procedure pursuant to the concept of Ministries and other administrative bodies . The concept