Municipalities may encounter a problem in the autumn that the law did not foresee

The new wording of the Constitution was supposed to bring greater predictability to the timing of municipal and regional elections. However, in combination with the four-year electoral term of councils, it created a problem which the legislator did not resolve. According to this interpretation, the mandates of the current municipal councillors will end after four years on 24 September, while people will elect new councillors only in October. The municipalities will thus be left without councils for more than two weeks – with possible consequences for their decision-making, councillor remuneration, and even for weddings and registered partnerships.

A fixed election date appears reasonable at first sight. This was the idea behind the amendment to the Constitution, which set out that elections to municipal and regional councils are to be held in the first full week of October of the year in which the electoral term expires. The aim was, among other things, to prevent the gradual shifting of the election date towards the summer months.

The problem is not in this idea, but in its legal implementation. The Constitution still says that the elewctoral term of councils is four years. Combining both rules leads to the surprising result that the term of office of the current municipal councils ends before the new councillors acquire their mandate.

And it is not just an academic debate about the calculation of time, as this situation has very concrete consequences for the functioning of thousands of Czech municipalities.

Four years means four years

The mandates of councillors elected in the 2022 municipal elections began at the closing of the polls on 24 September 2022. If the Constitution stipulates a four-year electoral term, standard time calculation means it ends on 24 September 2026. But, due to the fixed date, the new elections will only take place on 9 and 10 October.

One possible answer to this problem is to interpret the term “four-year electoral term” more loosely and to allow councils to remain in office until the next election. This would be convenient in practice. Legally, however, it is problematic.

The text of the Constitution, according to which the electoral term is four years, was in fact unchanged by the amendment. Nor does the explanatory report suggest that the aim was to make the previously clearly defined four years a flexible period that could be longer depending on the timing of the next election.

Moreover, the principle of “government for a time” is essential. Democratically elected bodies exercise their power for a predetermined period, and the voter should know how long they are assigning the mandate for. The Charter of Fundamental Rights and Freedoms also stipulates that elections must be held at intervals not exceeding the regular electoral terms. If we were now simply to say that four years can mean four years and several weeks, we would retroactively alter the length of the mandate voters assigned councillors in 2022.

Municipality without a council?

The consequence of this interpretation is a state that can be described as magistratus vacans – a period in which the term of office of the existing council has ended but a new one has not yet been elected.

In the case of municipal councils, in 2026 this means the period from 25 September to the close of voting at 2 p.m. on 10 October. A similar problem will subsequently arise for regions: according to the same interpretation, the term of office of the current regional councils will end on 21 September 2028, while new councils will only be elected on 7 October 2028.

This does not, of course, mean that the running of municipalities stops for several weeks. The executive bodies have mechanisms that allow for regular administration even during the transitional period. However, the Constitution explicitly states that a municipality is administered independently by a council. And the problem becomes very concrete when someone, during this period, is to exercise an authority directly associated with the existence of the council or the mandate of its member.

A council that no longer has a mandate to make decisions

The first practical question is: may the previous council meet after the end of the four-year term and continue to adopt resolutions?

In our opinion, no. If the term of office of the council has ended, there is no longer a collective body that can act validly. Any resolutions adopted in this interim period would therefore be null and void, treated as if they had never existed. The same applies to decisions of committees whose existence is derived from the council itself.

Who is entitled to receive remuneration?

The question of remuneration is even more tangible. If the mandate of an ordinary member of the council ends with the council's term of office, there is no legal ground for the municipality to continue to pay them remuneration for the performance of their function.

If this were to occur, the municipality could then have to address the return of unjust enrichment, including related tax and levy complications. In the case of released councillors, the amounts may not be negligible.

It is, of course, different for mayors, deputy mayors, and members of the board. The Act on Municipalities explicitly provides for the continuation of their functions until new bodies are elected. This distinction clearly shows why this is not just legal hair-splitting. For some functions, the law addresses the transition between two councils, for others it does not.

Beware also of weddings and registered partnerships

Perhaps the most surprising practical consequence concerns wedding ceremonies and ceremonies for entering into a registered partnership. The law enables the declaration to be received, among others, by the mayor, deputy mayor, or an authorised member of the council. The mayor and deputy mayor may perform their functions even during the transitional period. For an ordinary councillor authorised to officiate, however, the situation is different.

If their mandate as councillor has ended, their authority to act in this role at a marriage ceremony also ends. If the ceremony were nonetheless conducted solely by a former authorised councillor, this is not just a minor administrative oversight: in such a case, the marriage or partnership cannot legally come into being at all.

This is perhaps the most compelling example of why a seemingly theoretical problem should not be underestimated. Municipalities should therefore be clear about the organisation of ceremonies before the autumn elections and, during the problematic period, entrust them to mayors and deputy mayors, whose continuity of office is ensured by law.

The introduction of a predictable election date has its logic, but a good idea also needs good implementation. When changing one cog in the constitutional mechanism, it is therefore necessary to check whether all the others still fit together. In our opinion, this did not happen.

Today, a fixed election date, a four-year term of councils and laws that were not adequately prepared for the period between these two points coexist. The result is legal uncertainty with very practical consequences.

In the short term, therefore, municipalities should prepare for this year's transitional period and adapt their planning of councils, remuneration, and the exercise of other authorities accordingly. In the long term, the legislator should refine the legislation so that the fixed election date can be retained but, at the same time, there is no period without the existence of councils.

The rule of law does not rely only on elections being held regularly. It is equally important that it is always clear when the mandate of elected bodies begins – and when it ends.

The article was published on the portal České justice.

The authors of the text are Roman Kyral and Jaroslav Verner.