Proposal for annulment of decree on Technical Conditions of Fire Protection of Buildings

The Decree generally stipulates the technical conditions of fire protection for the design, implementation and use of a building, stipulates the numbers of portable extinguishers, the obligation of the owners of selected buildings to furnish the building with the equipment for autonomous detection and signalling, with details contained in the annexes to the Decree. However, the overwhelming majority of the annexes refer to Czech technical standards that are not commonly available to the public, and more importantly, are not available free of charge.

The Defender stated in this respect that the Decree on Technical Conditions of Fire Protection of Buildings is at variance both with Arts. 1 and 2 of the Constitution, Arts. 1, 2 and 4 of the Charter of Fundamental Rights and Basic Freedoms and the Act on the Collection of Laws, stipulating the publishing of legal regulations. Any provision of a legal regulation, which is of an enacting nature, must be available publicly and free of charge. If the state refers to a technical standard in a legal regulation, it has the obligation to ensure the public and free availability of the standard. Otherwise the legal obligation concerned is not stipulated in a manner conforming to the Constitution. Given that the contested decree refers to Czech technical standards in an overwhelming majority of its provisions and it can be said that without them its separate existence is meaningless, the Defender submitted a proposal to the Constitutional Court for its complete annulment.

The Constitutional Court dismissed the Defender’s proposal. The Constitutional Court deduced the following on the issue of using references to Czech technical standards:

“The existence of technical standards and reference to them in legal regulations are essential for ensuring that the legal regulations of the Czech Republic are not ineffectively burdened with a quantity of detailed legal requirements. A legal regulation cannot enter into the details (the manners of calculating various values, etc.) specified in many pages in the standards. A legal regulation stipulates only the basic conditions and refers to the relevant Czech technical standards, whereby it informs the persons competent to design buildings and deal with the technical conditions of fire protection of buildings (authorised engineer and authorised technician) where they can find a detailed stipulation of the given subject.

The following can be stated on the objections of the proponent regarding the absence of public and free access to Czech technical standards: Technical standards may be perused on business days at fire rescue services of regions (regional directorates, regional departments) or for a fee in technical libraries of regional cities.

Czech technical standards can also be purchased at the Czech Office for Standards, Metrology and Testing, which can also be addressed by citizens with a request for the provision of basic information. Czech technical standards can also be purchased at the contact points of Chambers of Commerce throughout the Czech Republic. The price of the printed form of technical standards was reduced to one half in 2009. The average price of Czech technical standards is (and was also before the reduction in the price) lower than the EU average.

There is also access to all the applicable technical standards in electronic form via the Internet where these standards can be downloaded for a fee (the service costs CZK 1,000 for 12 months for one user, with the possibility of a printed copy for an extra fee).

It should also be noted that technical standards are not primarily intended for the ordinary consumer, although protection of the latter is one of the tasks of technical standards, but rather for experts. Primarily authorized technicians and engineers assessing the technical conditions of fire protection (who use them in their work) are equipped with technical standards in the area of fire safety, which represents an additional possibility of access and perusing the standards. The subject of designing buildings may be dealt with only by persons competent to do so as follows from Section 158 of Act No. 183/2006 Coll. on Zoning Proceedings and the Building Code (the Building Act), as amended. These persons must obtain authorization for their work pursuant to Act No. 360/1992 Coll. on Performance of Occupation by Authorized Architects and on Performance of Occupation by Authorized Engineers and Technicians Active in Construction, as amended. They may carry out the designing of buildings as entrepreneurial entities; accordingly, they must expend certain costs associated with these activities for carrying them out. The acquisition of technical standards may be included in the aforementioned costs.

It can therefore be stated that access to the Czech technical standards set forth in Annex No. 1 to Decree No. 23/2008 Coll. is public and free of charge. The principle of public and free accessibility of the Czech technical standards set forth in Decree No. 23/2008 Coll. is not breached as the condition of public and free accessibility of technical standards for the citizen is provided for at state institutions, i.e. the fire rescue services of regions. Thus, a fundamental principle of the democratic state, i.e. equality before the law (Art. 1 of the Constitution, Art. 1 of the Charter), is not violated as a result of the existence of references to technical standards contained in the relevant Decree.”

 

Proposal of the Public Defender of Rights for annulment of decree on Technical Conditions of Fire Protection of Buildings

Proceedings before the Constitutional Court

The Decree generally stipulates the technical conditions of fire protection for the design, implementation and use of a building, stipulates the numbers of portable extinguishers, the obligation of the owners of selected buildings to furnish the building with the equipment for autonomous detection and signalling, with details contained in the annexes to the Decree. However, the overwhelming majority of the annexes refer to Czech technical standards that are not commonly available to the public, and more importantly, are not available free of charge.

The Defender stated in this respect that the Decree on Technical Conditions of Fire Protection of Buildings is at variance both with Arts. 1 and 2 of the Constitution, Arts. 1, 2 and 4 of the Charter of Fundamental Rights and Basic Freedoms and the Act on the Collection of Laws, stipulating the publishing of legal regulations. Any provision of a legal regulation, which is of an enacting nature, must be available publicly and free of charge. If the state refers to a technical standard in a legal regulation, it has the obligation to ensure the public and free availability of the standard. Otherwise the legal obligation concerned is not stipulated in a manner conforming to the Constitution. Given that the contested decree refers to Czech technical standards in an overwhelming majority of its provisions and it can be said that without them its separate existence is meaningless, the Defender submitted a proposal to the Constitutional Court for its complete annulment.

The Constitutional Court dismissed the Defender’s proposal. The Constitutional Court deduced the following on the issue of using references to Czech technical standards:

“The existence of technical standards and reference to them in legal regulations are essential for ensuring that the legal regulations of the Czech Republic are not ineffectively burdened with a quantity of detailed legal requirements. A legal regulation cannot enter into the details (the manners of calculating various values, etc.) specified in many pages in the standards. A legal regulation stipulates only the basic conditions and refers to the relevant Czech technical standards, whereby it informs the persons competent to design buildings and deal with the technical conditions of fire protection of buildings (authorised engineer and authorised technician) where they can find a detailed stipulation of the given subject.

The following can be stated on the objections of the proponent regarding the absence of public and free access to Czech technical standards: Technical standards may be perused on business days at fire rescue services of regions (regional directorates, regional departments) or for a fee in technical libraries of regional cities.

Czech technical standards can also be purchased at the Czech Office for Standards, Metrology and Testing, which can also be addressed by citizens with a request for the provision of basic information. Czech technical standards can also be purchased at the contact points of Chambers of Commerce throughout the Czech Republic. The price of the printed form of technical standards was reduced to one half in 2009. The average price of Czech technical standards is (and was also before the reduction in the price) lower than the EU average.

There is also access to all the applicable technical standards in electronic form via the Internet where these standards can be downloaded for a fee (the service costs CZK 1,000 for 12 months for one user, with the possibility of a printed copy for an extra fee).

It should also be noted that technical standards are not primarily intended for the ordinary consumer, although protection of the latter is one of the tasks of technical standards, but rather for experts. Primarily authorized technicians and engineers assessing the technical conditions of fire protection (who use them in their work) are equipped with technical standards in the area of fire safety, which represents an additional possibility of access and perusing the standards. The subject of designing buildings may be dealt with only by persons competent to do so as follows from Section 158 of Act No. 183/2006 Coll. on Zoning Proceedings and the Building Code (the Building Act), as amended. These persons must obtain authorization for their work pursuant to Act No. 360/1992 Coll. on Performance of Occupation by Authorized Architects and on Performance of Occupation by Authorized Engineers and Technicians Active in Construction, as amended. They may carry out the designing of buildings as entrepreneurial entities; accordingly, they must expend certain costs associated with these activities for carrying them out. The acquisition of technical standards may be included in the aforementioned costs.

It can therefore be stated that access to the Czech technical standards set forth in Annex No. 1 to Decree No. 23/2008 Coll. is public and free of charge. The principle of public and free accessibility of the Czech technical standards set forth in Decree No. 23/2008 Coll. is not breached as the condition of public and free accessibility of technical standards for the citizen is provided for at state institutions, i.e. the fire rescue services of regions. Thus, a fundamental principle of the democratic state, i.e. equality before the law (Art. 1 of the Constitution, Art. 1 of the Charter), is not violated as a result of the existence of references to technical standards contained in the relevant Decree.”