119/2011 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court ruled June 19. April 2011 in the plenary, consisting of the President of the
the Court and the judge-rapporteur Pavel Rychetský and judges Stanislav ass-bag,
František Duchoně, Vlasta Formánkové, Vojena Güttlera, Paul
Holländera, Ivana Janů, Vladimir Crust, Dagmar Lastovecké, Jana
Musil, Jiří Nykodýma, Miloslava Wagnerové and Excellent, Elizabeth
Michaela Židlické on the proposal for a group of members of the Chamber of Deputies
The Parliament of the Czech Republic, represented by Member of Mgr. Bohuslav
Sobotka, based in Prague 1, House 4, on the repeal of law No. 348/2010
Coll., amending Act No. 96/1993 Coll., on building savings and State
support of building savings and the addition of the Czech National Council Act No.
586/1992 Coll., on income taxes, as amended by the Act of the Czech National Council No.
35/1993 Coll., as amended, and Act No. 586/992 Coll.
income taxes, as amended by later regulations, respectively on the repeal of section
4 (4). 1 (a). with) in the words "with the exception of the contribution, which was
qualify in 2010 and which was remitted to the building savings bank after 31 December 2006.
December 2010.0 ' § 8 paragraph. 2 (a). (c)), section 8 (2). 3 and 4 in the words "and (c))"
and § 36 odst. 8 of the law of the Czech National Council No. 586/1992 Coll., on income tax from
income, as amended by Act No. 348/2010 Coll., and article. (II) Act No. 348/2010
Coll., amending Act No. 96/1993 Coll., on building savings and State
support of building savings and the addition of the Czech National Council Act No.
586/1992 Coll., on income taxes, as amended by the Act of the Czech National Council No.
35/1993 Coll. as amended by later regulations, and Act No. 586/1992 Coll., on the
income taxes, as amended, with the participation of the
the Chamber of deputies of the Parliament of the Czech Republic and Senate of the Parliament of the Czech Republic
as parties to the proceedings
as follows:
I. the provisions of article. In part III, item 1, which sets out the new wording §
4 (4). 1 (a). s) Act No. 586/1992 Coll., on income taxes, as amended by
amended, and article. (III) point 2, 3 and 4 of law No. 348/2010 Sb.
amending the law No 96/1993 Coll., on building savings and State
support of building savings and the addition of the Czech National Council Act No.
586/1992 Coll., on income taxes, as amended by the Act of the Czech National Council No.
35/1993 Coll. as amended by later regulations, and Act No. 586/1992 Coll., on the
income taxes, as amended by later regulations, is cancelled on the day of its publication in the
the finding in the journal of laws.
II. The provisions of article. Also, article. (II), article. (III) point 1 in part, repealing section
4 (4). 1 (a). s) Act No. 586/1992 Coll., on income taxes, as amended by
before the effect of Act No. 348/2010 Coll., and article. (IV) Act No. 348/2010 Sb.
amending the law No 96/1993 Coll., on building savings and State
support of building savings and the addition of the Czech National Council Act No.
586/1992 Coll., on income taxes, as amended by the Act of the Czech National Council No.
35/1993 Coll. as amended by later regulations, and Act No. 586/1992 Coll., on the
income taxes, as amended by later regulations, is cancelled the day
December 31, 2011.
Justification:
(I).
Recap of the proposal
1. On 9 December December 2010 was the Constitutional Court delivered a draft of the Group 45
members of the cancellation in the header of the Act (hereinafter "the contested
the law ") and in the provisions of article eventum. (II), as well as revised
the provisions of Act No. 586/1992 Coll., on income taxes, as amended by
amended. The contested Law was changed and additions
some of the laws so that the special tax rate has been set at EUR 50
% contribution to natural persons under the law governing the building
savings and construction savings State support (hereinafter referred to as "State
support "), which was entitled in the year 2010 and that was remitted to the
building savings bank after 31 December 2006. December 2010. At the same time was on the day of its
the effectiveness of the reduced amount of the advance in State aid from 15 to 10% from a year
the saved amounts not exceeding 20 000 Czk. The proposal meets the requirements
According to Act No. 182/1993 Coll., on the Constitutional Court, as amended
regulations.
2. The essence of the proposal was contrary to the contested Law objections to the constitutional
policy related to the way of its adoption, as well as to its content.
The appellants dispute the justification for a discussion of the draft law in the
summary proceedings in the State of legislative emergency, which should
violate some constitutional principles relating to
the parliamentary procedure, the adoption of laws. Their objections on lead
to ensure that the emergency session, which was shortened to the negotiations on the
the design of the contested act, was convened just 40 minutes before the
at the beginning, as well as to limit the rights of senators elected in elections in the
October 2010, since 12 June. the Senate debated the proposal for November 2010
the contested act in the composition corresponding to his 7. operational period
(2008-2010), and the newly elected senators, so they couldn't this discussion
to attend.
3. In relation to the content of the contested act, the appellants argue that
reduction in State aid for the year 2010 the retroactive tax special
the rate of income tax at the rate of 50%, as well as a reduction in advances for the Treaty on the
building savings closed until 31 December 2006. December, 2010, show signs of the right
contrary to the legitimate expectations-retroactivity and the participants of the construction
savings. This expectation is based on existing practice and the legislature, that
yet respected equity claims incurred on the provision of certain
property performance depending on the time of the conclusion of the contract
savings. The legislature has chosen a disproportionate means of enforcement
the public interest to reduce the State budget deficit, thus
disregarded the requirement of a fair balance between that interest and the
by limiting the fundamental rights of individuals.
I./a
The objection of abuse of the Institute of legislative emergency
4. According to the plaintiffs ' proposal was the contested act (along with three
other bills which are dealt with in a similar legislative procedure)
discussed in the summary proceedings in the State of legislative emergency, without having to
such a procedure was one of the reasons in accordance with § 99 paragraph. 1 of law No.
90/1995 Coll., on rules of procedure of the Chamber of Deputies, as amended
Regulations (hereinafter referred to as "the rules of procedure of the Chamber of Deputies", or "rules
order "). In its proposal, detailing the progress of the review of the legislative
procedures, and stressed that the discussion of the draft of the contested act
was preceded by a content identical to the Government Bill. This proposal
submitted to the Government on 4 July 2003. October 2010, with regard to the application of the opposition by the two
political groups opposed the proposal of the Government to consent to the Bill
expressed at first reading, and then the resulting proposal against the
the shortening of the time limits for the consideration of a Bill in Committee on 15 days it
However, the 26 March. October 2010 took back. On the same day decided to you
the submission together with the draft of the Declaration of a State of legislative emergency
because of the threat of significant economic damage and asked about his discussion
in the summary. In this mode, the proposal was discussed by the
the House in the second and third reading of the day 2. November 2010 at 8. the meeting of the
The Chamber of Deputies, which was convened upon the proposal of the Government group
members.
5. the Declaration of a State of legislative emergency and short hearing without
He was given one of the grounds laid down by law, is referred to in
the plaintiffs ' opinion, not only breaking the law, but because of the time "stretched" and
pronounced "emasculate" the constitutionally protected freedom of the parliamentary debate and
the rights of members to submit amendments and to properly carry out their elected
function. They point to the legal conclusions contained in the award of 7.
September 2010 SP. zn. PL. ÚS 12/10 (269/2010 Sb.), in particular its paragraphs 17 and
18 that interpret this in a way that the Constitutional Court understands
the decision on the legislative need to a large extent as the decision
the political, but also warns of its use as a tool to
reduction of the rights of the House minority. In the case of the contested Law, moreover,
emphasize the absence of consensus across the Chamber of Deputies about the legitimacy
State of legislative emergency.
6. With regard to that State of legislative emergency and summary discussions,
whose purpose is to prevent threats to the fundamental rights and freedoms of citizens,
threats to the security of the State or a substantial economic damage,
at the same time constitute intervention in the rights of minorities, the Assembly should be
the decision about its publication considered three-test
proportionality, i.e., in terms of appropriateness, necessity and proportionality
the intervention. In their opinion, while you can have serious doubts in
relation to the eligibility of this procedure to prevent substantial economic
damage to the State, since, unlike previous cases, the Government failed to
to persuade opposition deputies on the need to approve the submitted proposals
laws so that effect no later than 1. January 2011. The affected
the legislative procedure at the same time was not even needed. The Government could
the objective pursued to achieve the timely presentation of the draft law, which
not with regard to the reference to Government of most of the draft law are in
The Chamber of Deputies before the municipal elections, and senátními. After them it was
on the contrary, much more likely purpose of this procedure to prevent the participation of
the newly elected Senators on decision-making than preventing significant
economic damage.
7. you can also call into question the appropriateness of this procedure finally, which
the appellants demonstrate by pointing out the countervailability of the risk of significant
economic damage on the one hand, and on the contrary, the indisputable measure curtailing
the freedom and the rights of members of the parliamentary debate on the other side. If it can be
Indeed, in a State of legislative emergency, to approve the Bill in the Chamber of Deputies
the House during a single day, then even this proposal, MEPs cannot properly
review and comparison to express to him, or to convey the views of the
their voters, or legitimate interest groups that may be on the
the parliamentary ground heard only through them. The are
at the same time also reduced the rights of citizens to hear in an adequate spread
the arguments for and against, adopted the law, which affects their
of fundamental rights.
/B I.
Objection, unpredictable an emergency meeting of the House of
8. the complainants Further objection relates to the application of section 51, paragraph. 6 of the rules of
the order, which must be notified of the convening of a meeting of MEPs
The Chamber of Deputies, at least five days in advance. For approval to the contested
the Act had occurred July 2. November 2010 at the extraordinary meeting, taking
the interval between its convening and the beginning of this meeting was only 40 minutes and
to distribute the invitations by e-mail was just 7 minutes before it
at the beginning. At the same time rejected the proposal of the Chairman of the parliamentary Club of the CSSD
Bohuslav Sobotka to adjourn the hearing to another date, IE. up to 3.
November 2010 from 9:00 a.m., which was to allow all members
This meeting could properly prepare.
9. According to the plaintiffs, that provision is to be interpreted with
regard to the constitutional principles and values within the meaning of article. 22 of the Charter, in accordance with
the legal adjustment of all political rights and freedoms and its interpretation and
the application must allow and protect free competition of political forces
in a democratic society. The five-day period referred to in section 51, paragraph. 6
the rules of procedure is to ensure that the members could meet with
the proposed agendas and meetings and prepare for his points, as well as the
about the venue of the meeting. The appellants do not challenge the possibility of shortening
the five-day period, however, shall be considered as being arbitrary, if it is done without
putting the reason. The Chamber of Deputies during the negotiations in question was
no argument, or the reason why it was so quick convening of a meeting.
The shorter is the convening of meetings and the time between the beginning of the
more serious reasons must be for such truncation.
10. In this case, should be subjected to the test procedure
of proportionality. This is a conflict of rights or protected values, when
is interested in the accelerated consideration of the draft law, due to the significant deal
economic damage necessary measure to the previously mentioned freedom
the parliamentary debate, as well as the rights of the members and citizens to participate in the
management of public affairs. The plaintiffs, meanwhile, believe that this
How would challenge already in terms of the second step of the test, i.e., step
neediness. Even assuming that the adoption of the Act to the 1. January 2011 prevents
impending significant economic damage, the same goal can be
achieve its discussion in the following days, IE. 3., 4. or 5.
November 2010 without the need to convene an extraordinary meeting of 40
minutes.
11. This procedure shall be considered as the appellants for infringements of political rights
opposition members of Parliament in accordance with article. 21. 1 and 4 of the Charter of fundamental rights and
freedoms (the "Charter") and of the citizens according to the article. 21. 1 of the Charter. To
It noted that for him to be considered necessary only because
Another possible objective pursued, and it adopted the proposal to discuss
the Bill in the Senate to 13. November 2010 until the date of demise of the mandate
senators elected six years ago. But this objective cannot be considered
legitimate. In addition, there was a significant deterioration in the impact itself
Declaration of a State of legislative emergency, because in its wake have elapsed between
presentation of the draft law and its approval of just 4 days, of which two
the work, which at the start of the fourth day could not be foreseen.
I/c
Claim denied the right to vote the newly elected Senators
12. The essence of the last objections in relation to the method of consultation and the
the adoption of the contested act was inappropriate interference in the rights of Senators
elected in 2010 on the performance of their duties pursuant to article. 21. 4
Of the Charter. The mandate of these Senators arose under article. 21. 4 the instrument already
of their choosing. When assessing the exercise of their voting rights, however,
It was necessary to weigh in the conflict opposing the constitutional standing, i.e., values
as the ability of the Senate to comment on the draft law provided for in the Constitution
the 30-day time limit, so interest in the nezpochybnitelnosti of the Senate resolution
any decision of the Supreme Administrative Court, which would have been
invalidation of the elections made the Senator. While the appellants consider
a reasonable and balanced solution to this conflict is settled in a way that is in the
meantime, in the first meeting since the election of the Senate usually held just one of his
the meeting, at which the newly elected Senators still cannot vote and on which the
of the program are the only bills for which the 30-day period expires
even before the first meeting in the new term.
13. the procedure of the Government and the Government's majority in the Chamber of Deputies and the Senate
the plaintiffs called arbitrary. His goal was to prevent proper
consideration of the proposal at a meeting of the Senate, which would no longer be able to participate in the
the newly elected senators, and Government camp would have had a majority.
Discussion of the contested act to 25. a meeting of the Senate on 12 June 2006. November
2010 be construed as interference in the rights of Senators on an undisturbed performance of their
the mandate, without prima facie apparent reasonable grounds for such
the procedure. Yet again underline the necessity for the test of proportionality, for
the assessment of this intervention in the rights of the newly elected senators. (I)
When hearing the contested act, pursuant to section 118 of the Act No.
107/1999 Coll., on the Senate's rules of procedure, as amended,
(hereinafter referred to as the "rules of Senate") is 12. November 2010 was eligible
to speed up the legislative process, was not such a procedure from the point of view
the said the test needed. The 30-day time limit for the examination of the application
the contested act by the Senate had ended up 3. December 2010, so
the newly elected senators could attend the hearing and in the framework of the
debate with him could also make an informed comment. The refusal of a
the draft law or return it with amendments in the last day
time limits would impede his timely discussion. The Chamber of Deputies
about it in the sense of § 97 paragraph. 3 and 4 of the Act again
After ten days, already a week from 13. December 2010. With regard to the
the unlikely return of the draft law, President of the Republic would be nothing
It does not hinder the fact, that the publication of the law occurred before the end of the year, and
even if that discussion by the Senate and then by the
the House passed a few days later. By contrast, should be allowed to
Senate to meet its role and effectively exercise its rights of the opposition in the
the legislative process, including the right to submit amendments.
I/d
Summary of alleged breach of legislative procedures with constitutional order
14. With regard to the above objections, the complainants find it a contradiction
the legislative procedure with the article. 1 (1). 1 of the Constitution of the Czech Republic (hereinafter referred to as
"The Constitution"), specifically with respect to the rights of postulátem man and of the citizen, by
which must be a restriction of fundamental rights and freedoms as a result of sound
democratic discourse. Violation of this provision, see also
violation of the principle of legal certainty, as part of the rule of law
due to the truncation of the possibility to get acquainted with the new legislation and its
the reasons why.
15. In addition to these principles, however, the infringement concerns the Democratic
the principle of Government for the people and State power serving all citizens within the meaning of article.
2 (2). 3 of the Constitution and article. 2 (2). 1 of the Charter, because it was strongly remembrances
the right of citizens to become acquainted with the reasons of the political decisions, as well as the right to
This decision, speaking to their elected representatives.
The appellants argue whether or not the intervention into the free competition of political parties
According to the article. 5 of the Constitution and article. 22 of the Charter, to which integrally include the ability to proclaim
opinions and suggestions in order to apply the parliamentary discourse. The reason for this
infringement of the principle of the protection of minorities in accordance with article. 6 of the Constitution, both the Council and the
the Senate, as well as between citizens, the impossibility of a minority of members
properly implement its mandate, especially in a situation of an unpredictable
the convening of the meeting, and upření the rights to attend and vote some of the
Senators. For these reasons, could not be the voice of the citizens of the oponujících
the contested law the way of parliamentary discourse artikulován.
16. the legislative procedure at the same time the appellants alleging a contradiction with article. 26
Of the Constitution and article. 21. 4 of the Charter, because it was a result of effective performance
their mandate. To their right to unimpeded exercise of public functions
the Deputy was hit by organizing meetings and unpredictable, on which the
could not prepare. In the case of newly elected senators will back intervention
involved excessive speeding up the negotiations of the Senate, to which there was no
a legitimate reason and as a result it was Senators denied their right to
to participate in discussions and vote on the draft law. Restrictions related to the
the right of citizens to participate in the management of public affairs, because as a result of
lack of time, so they could not do in particular speaking to members or
effective use of petitions or Assembly, or the right to rights
the strike. Citizens elected to the Chamber of Deputies and the Senate were again limited
in this law, they could not effectively participate in the free
the parliamentary discussion, nor properly prepare and submit proposed amendments. From
for these reasons, was not in breach of article. 4 (4). 4 the instrument examined nor
the essence and the meaning of the statutory restrictions on the right of MPs and Senators according to the article.
21. 1 and 4, of the Charter.
I/e
Objection reverse the scope of taxation on savings contribution
17. Central to the plaintiffs ' claim in relation to the content of the contested act
relates to the unacceptable effects of right to retroactive contracts
building savings closed before 1. January 2011. As a result of the replenishment
the law on income tax and the transitional provisions of article. (II) the contested
the law was amended legal claims that have arisen on the basis of these contracts
and were enforceable before the effect of the contested act.
18. The provisions of section 11 (1). 1 of law No 96/1993 Coll., on building savings
and State support of building savings and the law of the Czech national
Council No. 586/1992 Coll., on income taxes, as amended by the Act of the Czech national
No 35/1993 Coll. (hereinafter referred to as the "law on building savings") based
entitlement to building savings participant to date when they meet
the conditions laid down by law, on his account, the corresponding amount is credited
the annual advances in State aid, or to his registered account
put the backup state aid until their payment within the meaning of section 12 of the
paragraph. 1 of this Act. The basic condition for forming the composition of an appropriate cash
the amounts on the account specified by the contract on building savings. Claim for itself
the payment of State aid, then the participant from the fulfilment of some of the
two alternative conditions set out in section 12, paragraph. 2 of the law on
building savings.
19. From the design of this law shows that already the contract of
building savings will create a building savings participant entitled to advance
provided for the full amount of State aid, which will be paid if
meet the conditions laid down by law. It can be inferred for example. from § 5 (3). 9
the law on building savings, from which it follows that at the time of the conclusion of the
the contract on building savings is determined the target amount, which
is the total amount of State aid. The whole law on building savings is
then built on the principle that State aid is gradually participant
attributed, respectively, granted in the form of annual advances (e.g., § 5, paragraph 9,
§ 10 (1). 1 to 3 of section 11 (1). 1 to 4, § 12, § 13 (3). 1 of the law on
building savings). There is therefore every year for a new determination of the amount of the
State aid under the current intention of the legislature. Construction savings is
Indeed, by its nature, based as a long-term legal relationship (see e.g..
the length of the so-called. binding time limits for the payment of advances, pursuant to section 12 of the State aid
paragraph. 2 or the length of the time limits provided for the obligation of building
savings under section 13 (3). 4 the law on building savings) and the participant
building savings at its conclusion must have the certainty that the conditions
for the duration of the building society, and more from the
the State will not be in a short time (let alone sudden) change.
20. By the contested act was to truncate the contribution as a tax on its
part of the reduction, which also applies to contracts concluded before 1.
January 2011, when the law took effect. In fact, it explicitly results already
the contested provisions of diction, which relate to "post ...
who qualify in 2010... ", or" contract for construction
savings, regardless of the date when the contract was concluded. " This adjustment
to reduce not only the amount of the advances attributed to state aid by 2010,
but with the reverse changed the terms and conditions and the total amount of the contribution, the
the amount of the payment in advance of the intended legal claim was when the
the conditions laid down by law at the time of conclusion of the contract, i.e.. in particular, in the
conserving a certain amount in a given year. The contested provisions
acts in the past.
21. In his further argument the appellants cite extensively the justification
the award of 4 April. February 1997, SP. zn. PL. TC 21/96 (N 13/7 SbNU 87;
63/1997 Coll.), which is in General dealt with issues of right and wrong
retroactive laws. They point out that in any way is a retroaktivita
fundamentally, she may become a constitutionally impermissible if the
the application of the new legislation on the old legal relations fundamentally
the legal situation touches subjects of rights and obligations. When assessing the
the constitutionality of the provisions of the acts should be retroactive effects of false
consider the intensity of public interest, with the degree of interference with the principles of equality
and the protection of the citizen's confidence in the law. In this context, notes and
the explanatory memorandum to the draft law, although this occurs when weighing
Another concluded that the change in the conditions of the building savings represents ".
wrong the retroactive effect, which is acceptable in a democratic State
the solution. Bill, however, is without prejudice to the constitutional principle of protection
legitimate expectations in the context of the existing legal relations, ...
The measure, however, on the other side of the tracks the legitimate interest of the State, on the
recovery of public finances for the benefit of the whole of society, IE. is
designed in the public interest. The fact that the proposed measure is
the collision referred to constitutional principles, in accordance with the constitutional order, is
measured in terms of proportionality in relation to both the constitutional
principles. ".
22. The appellants are of the opinion that the amendment of the Act on building savings,
which came into force on January 1. January a year and at the same time would
changed the amount of, or the conditions for the payment of the allowance for the previous
the calendar year would be clearly unconstitutional. Already within the
but the question was found to be in conflict with the Constitution and § 36 odst.
8 and certain other provisions of the law on income tax, in novelizovaném
the text of the. In this context, in particular extensively cite the comments of the representative
Minister for human rights, according to which cannot be on State aid, the
you qualify in the year 2010, to apply the rules in force in
2011, though it will be paid out (in the form of advance payments) until 2011. "Claim
on State aid arises under the law ... the end of the calendar
the year for which the aid is attributed ... ie. in this case, 31. 12.
2010. In terms of legal certainty, it is therefore necessary that the person that this
the claim was, she knew at the time of its creation, all the conditions for its emergence,
the rate of return, etc., as it is a property value that is her
granted and are therefore subject to the constitutionally guaranteed protection of property rights
(article 11 of the Charter of fundamental rights and freedoms). ... Therefore, if under
editing valid from 1. 1.2011 tax savings for State aid
the year 2010, which is the income for the taxable period of 2010, it will be the case,
When law reglementuje and the claims of the legal relationship in question before
the effect, therefore, a case of the right, which is retroactive
incompatible with the principle of legal certainty and democratic legal State
According to the article. 1 of the Constitution. ". According to the cited comments of the Government agent is
the result of the determination of the taxation obligation of tax in 2011
revenue for the past year, although at the time of its creation no tax
the obligation did not exist, and therefore the building savings participant could
legitimately rely on that State aid for the year 2010 will not be taxed
and will remain fully his constitutionally protected property. Objection inadmissible
retroactive provisions given by the plaintiffs was made in
their comments and the Czech Banking Association, the Association of Czech
building societies (hereinafter "the Association") and the Bohemian-Moravian Confederation
of trade unions. I rang out in the discussion of the draft law in the
The Chamber of Deputies and the Senate.
23. the Retroactive effects can be found in other facts.
At least until the adoption of the contested act was the Treaty establishing a
These claims concluded their participants in good faith based on the
authorized relying on the law. While he stated that for contracts
closed until 31 December 2006. December 2003 passed on to the participant an annual backup State
aid in the amount of up to 4500 Usd and for contracts concluded from 1. January 2004 to
December 31, 2010 up to 3000 Czk. The contested measures retroactive but
an disproporčnímu reduction in State aid to individual participants
building savings depending on the date of conclusion of the contract. While
the participants, who contracted to 31. December 2003 from 1.
January 2011 annual State aid reduced backup by up to 56% (a decrease of
4500 to 2000 Usd), for the participants, who have concluded after 31 December 2006. December
2003, will represent the extent of the reduction of this backup only 33% (a decrease of
3000 to 2000 Usd). Such a differentiation between the participants of the construction
the savings, however, there is no sane reason. When should this measure
gone as well could be frustrating on all contracts concluded by 31 December. December
2003, it would have to in comparison with treaties concluded after this date
fall not on the 2000 CZK, but 33% decline to $ 3000. This
disproportionate effect is even enhanced by the already mentioned retrospective
tax advances in State aid for the year 2010 a special tax rate of
50%, for the year 2010 will be the participants of the contract until 31 December 2006.
December 2003 on State aid has been reduced backup 2250 Czk, while the
the participants of the Treaty concluded after 31 December 2006. December 2003 only about 1500 Czk.
24. The contested Law further establishes inequality even within the Group
building savings, participants who contract on building savings
closed until 31 December 2006. in December 2003, and they are entitled to backup State
aid of up to 4500 $ per year. If such a participant submitted
the amount necessary for crediting the maximum amount of the advance of State aid (i.e. 18
USD) for example. already 30. April 2010, has fulfilled the mandatory period of construction
savings for advance payments of State aid pursuant to section 12 paragraph. 2 of the law on
building savings, and to this date the contract ended, they were still in
during the year 2010 be paid these advances in the amount of the originally set, IE.
for the year 2010 in the amount of $ 4500. Other such participants in the old contracts,
who later ended the contract or in the savings continue, but will
the advance of State aid for the year 2010 is credited in April 2011 in the reduced
the amount of. Arise from two groups of participants, when the same amount of their
deposits will be credited in the same period, or shall be paid different amounts
of State aid.
25. Following the Constitutional Court's legal conclusions contained in
the cited award SP. zn. PL. TC 21/96 the appellants argue that
the legislature could change the amount of State aid paid for the contract
at the time of zákonodárcova intervention only if "the importance of the
the legislative desire for public "above" interested individuals on the
the continued existence of the earlier rights ", or the confidence of individuals in the continuing
the existence of legal standards. In this connection, the appellants point out that the
According to the explanatory memorandum to the proposed adjustments "reduce the load
the State budget in connection with the payment of State aid, which fully
does not support funding the housing needs and resources all draw
taxpayer in favour of only part of the population, and that's the way
the reduction in the expenditure of the State budget on the one hand, and increasing the income of the
the other side "and" straighten up the conditions for the taxation of interest income from
construction savings deposits with terms for the taxation of similar type
revenue from other bank deposit products. " According to the explanatory memorandum
as a result of this law, the State budget is expected for the year 2012
the reduction in spending from planned approximately 11.4 billion. CZK 6.5 billion. CZK. On
This level would be spending in connection with the provision of State aid
stabilize for the next years. According to the order for reports
The Ministry of finance for the negotiations of the Government measures in the area of
building savings reduce the burden for the State budget 2011
in the amount of 6 billion. CZK for the State budget by 2012, then in the range 6.5 to
8.5 billion.
26. The appellants believe that the Government or parliamentary majority
When adopting the contested act did not take seriously into account the
the protection of fundamental rights and freedoms, and the international obligations of the State. Even in the
the case of non-acceptance of the contested act, the Government has not been reduced in real terms
How to use the other tools available to
"recovery" of the State budget. Once again, however, on the country's role and the necessary
sources of savings looking for first on the reduction of transfers provided by the
natural persons on the basis of their claims. The participants ' confidence contracts
building savings in the continuing existence of their rights is undoubtedly the
shaped by whether or not the previous legislative experience. This experience is indicative of
the fact that the legislature changes the law on building savings yet always
maintaining a dual mode, IE. different treatment for new and old contracts
(proaktivitu), which show how you can eg. on the article. (II) point 2 of Act No.
423/2003 Coll., which stated that "the legal relationships arising before the date of
the entry into force of this law and the rights and obligations resulting from them
shall be assessed in accordance with the existing legislation ". Even in the case
Therefore, the participants of the construction savings with regard to the previous
to rely on the legislative experience that the principled legislator
chooses and when any further amendment to the mode of proactivity. They can therefore
legitimately expect to maintain the amount of the contribution, which, depending on the
the time of conclusion of the contract, whether $ 4500 or 3000 Czk, at least after the
period of validity of the contract. Due to the negative development of the State budget
Therefore, could be to reduce just for the future of the Treaty.
27. At the same time, the Government and the Parliament did not take into account neither the real ability to
existing participants to withdraw without further sanctions at the time of the validity of the
the contested law to its efficiency from building savings, if it stops
for this to be useful after the change of legislation (e.g. as a result of
in particular, for contracts with a higher target amount will significantly extend the length
savings). On the payment of advances on State aid has only one
the participant, who has fulfilled one of the conditions referred to in section 12, paragraph. 2 of the law on
building savings, part of which is always the compliance with the so-called. binding time
length 6 years from the date of conclusion of the contract. Will be paid only if the
If a participant during this time, either with the uspořenou amount, or in this
the time of the contract of the building savings loan and used the uspořenou
the amount of this loan funds and the advance payment of State aid to
residential needs. In other cases, it does not have a participant on the payment of advances
State aid claim and building society is required to advance the State
support, registered on the account of a participant, go back to the Ministry of finance in the
meaning of section 12(2). 3 of the law on building savings.
28. Early termination of the contract on building savings but can be
the party who has suffered and still nenaspořil the agreed target
amount. The amount of the target amount agreed to in the Treaty is also above
the fee for its conclusion. This fee amounts to some contracts to
1.8% of the target amount. Dospoření to the amount of the agreed target amount is
the condition for obtaining the additional interest-rate advantages amounting to 1% of the
the target amount and the interest-rate advantages amounting to 100% of the credited interest.
The Government and Parliament of the nezvážily or the impact on those participants who, on the basis of
contracts concluded prior to the effect of the contested act draw a loan from
building savings. For them, as a result of the amendment retroactively abridged above
State aid are to extend the period of loan repayment, respectively.
to increase the amount owed. It was possible to consider more access
to the participants in the old contract, which would give them eg. After a law
reasonably limited transitional period was guaranteed the granting of advances
State aid in the original amount that if after a specified date
want in the savings continue, on the basis of false retroactive to the
change (reduction) of the total amount of State aid in accordance with the new
the maximum amount of its advances, according to the new legislation.
29. The legislature gave but participants available only a very short period of time,
to be able to respond to the State suddenly made changes in the system
building savings. This was highlighted and the intensity of intervention into their
rights, because the party would decide about its intentions
otherwise, if a law introducing substantial changes in the construction savings loan was
adopted at the beginning of the year, when still hasn't put its funds to
building savings, and otherwise might decide at the end of the year, thus
then, in the course of their funds into building
savings invested, and legitimately expected by law guaranteed
the yield.
30. Therefore, if the time between the publication of the Bill in the collection of laws and its
entry into force was less than a month, and it's a situation when he was
law submitted only 29. October 2010 and approval of an amount of
that procedure, this period cannot be considered reasonable for the possibility
adequate responses for the more than 4 million participants in building savings.
They were in the order of few weeks brought to literally "finished
the thing "that their property rights will be incurred by the State in the short
time shortened. Neither the participants, for which the contract lasts longer than 5, respectively.
6 years, due to the short legisvakanci could not terminate the contract, without
They retroactively reduce the contribution and without interest from him for the year 2010
are not subject to taxation in January 2011, for the period of notice for these contracts
It is usually three months. It is because of the amounts in the year 2010,
Since these already taxpayers could choose in a timely manner and, where appropriate, with them
do otherwise.
31. The complainants so that the contested act has retroactive effects,
which are comparable with the Constitutional Act No. 195/2009 Coll., on shortening
the fifth parliamentary term, the Chamber of Deputies, which was cancelled by discovery
of 10 June 1999. September 2009, SP. zn. PL. ÚS 27/09 (318/2009 Sb.). Were it
namely, by analogy with the retroactive application of the conditions
the basic law, which have changed the assumptions on the basis of knowledge
which individuals decide when concluding contracts on building
savings. The law is contrary to the prohibition of retroactive, resulting from
the principle of the rule of law in accordance with article. 1 (1). 1 of the Constitution, in conjunction with the principles of
of the protection of legitimate confidence of individuals in the law and the protection of title
rights, their property rights to knowledge-based
the conditions for their formation, including knowledge of their specific
the range, i.e., the period and the amount of the nárokovatelného implementation. This intervention was
in doing so, made in the intensity of the contact with the essential requirements
democratic rule of law within the meaning of article. 9 (2). 2 of the Constitution.
I/f
The argument retroaktivního to ownership rights (protection of legitimate
expectations)
32. The contested law is according to the plaintiffs in breach with article. 11 of the Charter and
article. 1 of the additional protocol to the Convention on the protection of human rights and
fundamental freedoms (hereinafter referred to as the "Additional Protocol"). The Constitutional Court has already in
the findings of 17 December. June 2004, SP. zn. I. ÚS 642/03 (N 79/33 SbNU 259)
and of 9 June. March 2004, SP. zn. PL. ÚS 2/02 (N 35/32 SbNU 331; 278/2004
SB.) provide protection of the legitimate expectations of satisfaction of the claim, as
the Basic Law constitutionally garantovanému, which acts in respect of
the complainant against the State power. In this context, he mentioned some
decision of the European Court of human rights (in addition to these appellants
decision point and to the judgement of the Court of 6 December. in October 2005,
complaint No. 1513/03-Draon against France), which was
granted the protection of legitimate expectations, and by which it is to be
to examine whether the intervention into the ownership of a legitimate aim, i.e., followed
whether it existed in the public interest, and that was in accordance with the principle of
adequacy.
33. In the opinion of the plaintiffs should the decision on the use of the tax
construction savings measures, aimed to save the resources of the State
in order to reduce its budget deficit, the three-step test to pass
proportionality, that is used by the Constitutional Court for judging collision constitutionally
protected values. In relation to the assessment of the need for component while
Once again point to the possibility of the adoption of the law with a greater time
in advance, not a defective legislative procedure. But if the character
the need was understood in the sense of the urgent necessity of savings on
the expenditure side of the State budget due to efforts to reduce its
the deficit can be questioned, in particular, the adequacy of such a step. While it is
namely, the degree of risk of significant economic damage rather questionable, the degree of
challenge of property rights of the participants concerned the building savings loan
is unquestioned. From the above follows, therefore, that the intervention of the State into the property
the claims of the participants of the building savings incurred by 31 December. December 2010
completely inappropriate in terms of the means used in the relationship between
restrictions of ownership rights and the objectives pursued.
I./g
The claim of arbitrariness of the legislature when saving taxes
34. The appellants have considered that the special tax rate of 50% was
fixed entirely arbitrarily, without Government or legislature closer
clarified why introduces just as high as the rate, which is incomparable with
any other tax rate. In this context, they point out, and share
the view of the Czech Association of building societies, with a reduction in State
aid in the amount of 50% is associated systemic risk the rapid and excessive
outflow of deposits. According to the plaintiffs ' claim is inappropriate, since the intervention of the State
cancellation of tax exemption for interest on deposits and advance payments of contribution occurs from
January 1, 2011 to taxation at the rate of the normal 15% income tax, while
advance contribution for the year 2010 is to be taxed at the rate of 50% of special. For
the participants of the construction savings contracts concluded by the end of the year 2010
In addition, the amount of the advance contribution for this year also disproportionally in the
as a result of the reduction in the contributions area retroaktivního for all contracts
from the 1. January 1, 2011, which further deepens the arbitrariness in determining the Special
the tax rate for advances on the posts for the year 2010. At the same time the appellants
again emphasize the aspect of time suddenly introduced taxation. In General
the plane of the cite on the legal conclusions contained in the ruling
Court of the Czech and Slovak Federative Republic of 8 September. October 1992 sp.
Zn. PL. ÚS 22/92 (collection of resolutions and of the findings of the Constitutional Court of the CSFR, vintage
1992, no. 11), pursuant to which the State may not proceed in the determination of taxes
arbitrarily.
I/h
Claim the protection of assets (investments), and the right to do business in relation
to the owners of the building societies
35. In conclusion, the argument the appellants claim that the contested act
not only the rights of the participants affected by building savings, but also the rights of
owners of the building societies. With these new legal entities
Edit very likely adversely reflected in the overall decline in
the volume of deposits from building savings, which can lead to destabilization of the
This business and to thwart investments construction
societies and in good faith in the relative stability of the legislation. By may
be in effect without prejudice to their right to do business according to the article. 26 paragraph. 1
Of the Charter. In this context refer in particular to the final report of the RIA
to the possible reaction of the shareholders building societies, as well as on the comments
The Ministry of industry and trade and the Czech National Bank within the framework
sent to the control.
36. The international treaty on the protection and promotion of investment, while standard
include a commitment to fair and equitable treatment of foreign
investments, which consists in a guarantee that legitimate expectations
foreign investors in the preservation of a stable business environment
not at all, on the commitment to provide full foreign investment
protection and security, which consists in the obligation of the State to treat
foreign investments with proper care, which includes a ban on any
arbitrary interference in foreign investment and a commitment to abstain from.
indirect (de facto) the expropriation of foreign investments, therefore any
effectively to withdraw the benefit of the investment. The fact that the contested adjustment
does not respect the obligations of international treaties on the protection of investment, at the same time
violates article. 1 (1). 2 of the Constitution, which commits to the Czech Republic to
compliance with obligations under international law.
II.
Representation of the parties and amici curiae
37. The Constitutional Court pursuant to § 42 paragraph. 4 and section 69 of the Act on the Constitutional Court
posted by the present proposal to repeal the contested provisions of the participants
proceedings, therefore, the Chamber of Deputies and the Senate. At the same time asked for comments
as a representative of the Ministry of the Treasury, which would have given the
its scope could indicate the relevant facts to the proposal, and the Association
Czech building societies, which brings together the individual building
savings bank operating in the Czech Republic.
II./a
Representation of the Chamber of Deputies and the Senate
38. The Chamber of Deputies, in its observations of 14 December. January 1, 2011,
signed by its President Miroslavou Lang, only briefly summarised the
the course of the legislative process.
39. in its comments of the Senate on the same day, signed by its Chairman
Milan Štěchem, summed up the course of the legislative process and the Senate
the debate, in which some senators highlighted the
the retroactive effect of the Bill. In addition to its statement of 22 September.
December 2010 in case conducted under the SP. zn. PL. ÚS 55/10, in which the
comment on the denial of the right to vote, especially newly elected senators. In
This expression has stated that the newly elected senators are unable to attend
Senate meeting held on 12 June 2006. November 2010 in the previous 7. functional
period, because at that time it was not confirmed that the mandate of the Senator
actually originated. The mandate of the Senator, while the second day of the first round occurs
the election, he was elected in the first round, or the second day of the second round
the election, he was elected in the second round of Senate elections, senators, however,
they cannot exercise their rights and obligations associated with the mandate, until the
clearly confirmed that their mandate was created. The decisive conclusion on
the validity of the elections, or elections of a candidate and thus the creation of his mandate
You cannot do on the day of their vote in the elections to the bike
The Senate, in particular with regard to the possibility of judicial review of the election and with the
the related time limits. The State Electoral Commission publishes the senators
the certificate of election, which demonstrate their elected senators, only in
If their constituency has not filed an election complaint
or may have been submitted, but the Supreme Administrative Court rejected her final.
40. the representatives of the two chambers in their observations expressed agreement with the
by refraining from the oral proceedings within the meaning of section, paragraph 44. 2 of the law on the constitutional
of the Court.
II./b
Comments the Minister of finance
41. The Minister of finance Miroslav Kalousek, in its representation of the provided information
related to the number of concluded contracts, the evolution of the number of participants and the amount of
provided by advances in State aid each year. At the same time
comment to each of the complainants ' objections.
42. The taxation of State aid for the year 2010 in its opinion does not constitute
or use the right retroactive, or it cannot be regarded as inadmissible
the use of the retroactive false. In General, there are two systems, such as the
determines the moment of creation of income. The first is based on the cashovém principle
According to which income arises at the time when the physical transfer of values,
in particular, the funds. Is typical for neúčtující persons, as
do not keep records of assets and liabilities to the extent that it was possible to
always specify the moment on which entitlement to the income. Another reason for its
the use of is its simplicity, especially in comparison with the second
under the current system. This is based on the gradual emergence of the
total revenue, which you can use to assign to different calculation
time period. This principle is typical for the accounting unit, as
accounting principle is generally based on the current.
43. for the income of natural persons, which is guided by the accounting,
the basic rule of taxation based on the cashového principle. On this
the principle is subject to taxation of the income from the beginning of the effectiveness
the Act on income taxes. Whereas, the State contribution is
income of a natural person for his adoption never does not charge, it is
the decisive moment for the taxation of the income of a physical moment of acceptance
of funds to the account of authorized individuals. Income, as
the fact relevant for income tax of physical persons (subject)
therefore arises when the adoption of this performance, therefore, in the present case until the
the year 2011.
44. The Minister of finance therefore does not hold the opinion that this is the right
the retroactive effect, as the amendment of the Act on income tax only applies, and
exclusively on income incurred (i.e. the natural person received) after the effectiveness of the
the contested Law, i.e.. After the 1. January 2011. The appellants in this
context, confuse the moment of entitlement to income (subject to conditions
for the crediting of the State contribution for the year 2010) and the instant emergence of income
(adoption of a natural person, the State contribution in 2011) for the purposes of the tax
from the revenue. For completeness, this adds that the interest for the year 2010 are
attributed to no later than the last day of the calendar year, i.e., to 31.
December 2010, and therefore taxation withholding taxes on income
rate of 15%, which will be effective from the 1. January 2011, will not be covered.
45. The contested adjustment characteristics only false-retroactivity,
as it does not interfere with legal claims incurred and adults on the basis of
the original legal standards. For claims for the effectiveness of the contested act applies
the amount of State aid according to the effective legislation until 31 December 2006. December 2010.
Reduced are only those claims which arise after the effectiveness of the
of the Act, i.e., from 1. January 2011. This means, therefore, that there is no change
the amount of State aid for the year 2010 on the basis of the law, effective in 2010.
This support is granted to the participants of the construction savings away in full,
only the State aid paid in 2011, income of the year
2011, the newly introduced tax on income, which corresponds to the constitutional
permission state save tax by law.
46. The partial reduction of the amount of State aid and to the creation of a legal
the obligation of payment of taxes occurs as a result of a legitimate reason to party
the State, which stems from an increase in the debt of public budgets. Not yet
talk about a major intervention, which would, in the case of a reverse
Remove State aid already provided. This is not, therefore, about the
inadmissible wrong retroactive effect.
47. in relation to the principle of protection of legitimate expectations, the Minister stated that this
the concept of the texts applicable legal standards do not know and its application is to
largely as a result of legal theory and judikatorní activities of the General
the courts and the Constitutional Court. This term itself understands as a commentary filled with
the right to a fair trial in the broader sense of the word and as a guarantee
legal certainty, which is derived from the existence of the rule of law. This is
Therefore, the law protected recognition of a farm to the applicant,
When on this farm is not a legal right, but, on the contrary, from the point of view of all
aspects can be fairly expected his return, for example, due to
the equality of all participants of the various proceedings before the law. The concept of
legitimate expectations should, moreover, be located primarily in
individual cases under the specific control. It is primarily
protection from State arbitrariness. On the contrary, in the case of amendments to the law, which
raises for all of the same consequences, is rather inappropriate.
48. Does not believe that would qualify for State aid was already at the time of
the conclusion of the contract on building savings, but only after the fulfilment of the statutory
terms and conditions. The amount of the advance in State aid, on which arises a participant
building savings claim, it is possible to determine when, on the basis of the embedded
resources in the relevant calendar year. Building savings participant
cannot therefore legitimately expect that the State aid granted in the
the amount will be paid indefinitely, especially if significantly worsen
the economic situation of the State or to deepen the public deficit
Finance. Such status requires a response then also on the expenditure side
the State budget, including the payment of State aid to the building savings loan. For
a supporting argument for this, that the signature of the contract is not exactly given above
State aid, and therefore not entitled to a specific amount, shall be deemed to
the Minister of finance that a participant can achieve savings on
saved resources while maintaining entitlement to state aid, before the
reaches the target amount, eg. the testimony of the Treaty. binding time or
the adoption of building savings loan. As well as it can in the course of the duration of the
contract lead to the correction of certain terms of the contract, for example. the amount of the
paid fees stavební spořitelna.
49. In its comments, the Minister noted the alleged link
plaintiffs on the discovery of 23 December 2003. April 2008, SP. zn. PL. ÚS 2/08 (N
73/49 SbNU 85, 166/2008 Sb.; link to this finding, in fact, in the
the proposal is not included), that entitlement to State support of building savings loan
cannot be considered as a social right, since the aid is not used to
the satisfaction of economic, social and cultural rights guaranteed
By the Charter. If it is not under that award on the place to argue
legitimate expectations in the case of the conditions and amount of the benefits of social
security, then, such arguments should not take the place of, nor in the case of
conditions and the amount of State aid for building savings loan.
50. it is also Expressed to the conditions of the Declaration of a State of legislative emergency.
In the absence of timely to change the law which have been
the starting point for building a low-budget, so they could be two
the situation. In the case of financial management should be governed by stopgap
the volume of revenue and expenditure of the budget approved for the year 2010, when he was
the deficit of the State budget deficit is higher than the approved law on
the State budget of the Czech Republic for the year 2011. In the second case would be
approved budget without the impact of laws approved in the State legislative
the emergency, which would mean substantially higher, the deficit of the State budget, and it
of approximately 45 billion. CZK. This would at the same time reduce the views of the Czech
of the Republic expressed the public budgets deficit share of GDP from 4.6%
at 5.5%, which is a higher proportion than was approved for the year 2010 (5.3%).
51. Both of these situations for the Czech Republic would have meant a considerable damage.
Taxpayers would be clearly interpreted as a sign of her
internal instability and signal that it is not able to enforce such
reforms, in order to keep the deficit in public finances viable.
The approval of the law on the State budget with a higher deficit would be Czech
on the contrary, the Republic has released the opposite way than the deficit reduction
public budgets and the implementation of reforms. It would certainly have changed
the position of the rating agencies and market participants in the evaluation of the credit
the risk of the Czech Republic on the domestic and foreign capital markets.
Although the Czech Republic is in a markedly different position than e.g..
Greece, the evaluation of the credit risk of credit rating agencies and rating
the debtor's trust market could change very rapidly to the
worse, if the Government ceased to behave predictably, transparently
and from the fiscal point of view. From the rating agencies, we could
at a minimum, expect a positive vision of the download, if not change the views of
the negative or lowering the rating of the Czech Republic. In this context, the
There would be a significant increase in the cost of servicing the public debt,
at the very least, as a result of a higher budget deficit, and hence higher
the Government's borrowing needs in 2011 and the higher the risk premium of the State
bonds.
52. For these reasons, the Minister of finance is satisfied that the Act
the existence of the threat of significant economic harm can be considered
zdůvodnitelnou. The reason why the Government has requested the publication of the State of
legislative emergency to subsequently after an unsuccessful try out legal
the amendments in the first reading, is the fact that, at a time when it was clear
the timely adoption of the law of Deputies is not possible, acquired
the threat of significant economic harm to the real form. It was therefore a
the fact a new, unknown and unpredictable originally, and was on her
must react accordingly, which the Government has made.
53. He Further objections in relation to the protection of assets (investments).
The constitutional order, in his opinion, give priority to protecting the assets of the existing and
above all property acquired by legitimate and indisputable manner.
The fact that a value has been paid in the past, however,
does not mean that the same expectations of its payouts in the future becomes
the property protected the constitutional order.
54. the proposed measures to reduce fiscal expenditure and support
fiscal revenue will be directly applied to the participants
building savings, while building societies they fall only
indirectly. Decision of the State about the duration and form of support for housing is here
the manifestation of its sovereignty and must be exercised in the context of the main
public interest, the need to reduce the State budget deficit, which is in the
currently considered a priority task with a societal impact.
The need for the adoption of such measures is advertised by the State
for several years. These measures will be effective in a uniform manner to all
These participants, and therefore cannot be considered even in a selective or
discriminatory. In a larger tax burden therefore does not see any violation of
protection of assets (investments), nor the right to do business. The acceptance of the conclusion that the
cancellation of certain tax advantages to the product the entrepreneur provides,
is a violation of the protection of investments and the rights of business would virtually mean
the need to resign from any tax increases or interference of tax
exceptions.
55. Despite the limitations of the State contribution, which subsidizes the system construction
saving as a whole, remains for the futuro maintained State aid. It is
on the contrary, the manifestation of the thoughtfulness of the legislature, which is preceded by the
the collapse of the building savings loan, which could have implications on how
for building societies, so also for depositors. The removal of benefits
building savings would likely lead to a decrease in the
interest on the deposits into the savings and loan, which could be fatal
the consequences for their cash flow. Building societies do business with the State
support, and, in the opinion of the Minister it is logical and correct, that the
the tools of State subsidy policy will not constitute an unlimited constitutional
policy of protected claim financial institutions benefit from these tools.
56. The Minister of finance considers the construction savings for financial policy
of its kind, which the State puts a strain on your budget in favor of physical
persons, because of their time there were substantive reasons to support a
the segment of the population and its savings business. Support definitely nesměřovala
to support the business or other activities, as well as not in itself
no indication of the element of long-term sustainability, notwithstanding the fact that the system
building savings inherently cannot be fixed and eternal. At the same time
This Institute represents a supporting tool of the State, which in the long term
supports the middle and higher income groups of the population. This in itself
denies possible intervention in social rights and vice versa shall be added reasonable
justification the purpose of the Act, whose matter-of-fact way according to his opinion, cannot
exceed the bounds of constitutionality, because the State is in the reduction of the aid, if
reduces support for the wealthier sections of the population (compared with poorer
layers, that's building-saving), proceed from the standpoint of the General
Justice adequately.
57. the objection of plaintiffs that participating in savings had a very
a short time limit to respond to the new conditions, States that this period
be calculated from the moment of the publication of the law in its effectiveness. Recalls
However, that discussed the legislative adjustment is based on the coalition agreement and
the programme Declaration of the Government, which were known to the public and
the regulator commented already in the summer of 2010. Therefore, do not agree with the
argument that it was a sudden and said for the first time in October 2010
the adjustment, which could be the participants of the construction savings system not
expected.
II./c
Expression of the Czech Association of building societies
58. The Association of Czech building societies in its opinion of
January 14, 2011 pointed out the basic characteristics of the system construction
savings. Construction savings is a relatively closed system
the participants, who works on the principle of solidarity. The greater part of the clients
savers to get out of their savings to other clients to borrow for housing.
Other participants who do not use the options of the loan (called a friendly
clients), are again motivated State support to savings. According to the
Statistics is currently the average deposit of approximately 85 000 CZK
the average loan exceeds 510 000 Czk. Czech building savings system so
He needs about five to friendly clients for it to be
the average loan granted one. Even clients who put their savings on a
time to postpone the building societies, are so desirable for the functioning of the
This system, as these money be made available to the participants who
want or need credit to finance their housing needs.
59. After the stage, when they were combined in the Czech building savings resources
(particularly in 2005) in order to create a large and stable
the client team, has strengthened in recent years, the importance of also phase
the credit. This development is based on the existence of demand for credit to
housing and plentiful sources of building societies (i.e., client
deposits) for the provision of loans. The current situation meets the two conditions, and
Therefore, the building society contributes significantly to the promotion of housing financing
in the Czech Republic, when a total of 997 400 is currently active
credit cases. Without the influx of resources will not be building
savings banks able to current levels (volume number) of loans in the future
to keep. If taken into account that, in the long term is the most common purpose of
loans financing the reconstruction and modernization of housing, the
building savings should limit the negative impact on advancing
revitalization of neglected the Housing Fund, because such loans
There is no comparable market alternative (mortgage loans are
conditional on the pledged real estate and consumer loans are offered
for at least double the interest rate).
60. At the level of each restriction causes the attractiveness of the product
through the reduction of State aid to tide the clients (savers) and without
they will not be able to meet the demand of clients who want to borrow.
While changing conditions is usually carried out unilaterally. Are modified
the terms of the appreciation of the deposits, but there is no change to the rights and
the conditions for the granting of credit from construction savings. Building
the savings banks to provide long-term loans of compulsory law, which also
It assumes that the legislator creates a stable framework product on time
in real terms, the corresponding long-term loans, i.e., 15 to 20 years. You can but
assume other impacts, which have more of a macroeconomic and
social character. The savings, which is used as a source for loans, are
through the savings invested in the real economy, where
not only generate taxes, but also directly support employment. This direct
the effect is between the State-supported spořícími products unique. No
another State-subsidized product, moreover, is not so tightly bound to the purpose of its
the establishment, as is the case with the building savings, since lending is
fully bound to residential purpose.
61. the expenditure of the State in support of building savings are
indisputable, but since 2005 has continued to fall, while the revenue
arising from the taxation of economic activities, with regard to the overall
high volumes of loans provided annually generates savings,
increased and currently have stagnated or fall very slightly.
The Association takes the basic context on the basis of pospaných system
building savings opinion that limiting expenditure on construction savings
will bring a major downside, of which most evident include reduction
tax revenue of the State, reduce the availability of low-cost housing loans,
the increase in unemployment as a result of lower volume of production and construction
limitations of the system, which now brings strong positives for the still falling
the expenditure of the State.
62. In relation to disputes concerning the legislative procedure of the Association
stated that already in its opinion in the context of the question
highlighting the negative impact of the use of section 10 of the Act on the construction
savings, in the wording of the contested Law, on all construction contracts
savings, regardless of the date of its conclusion. This is all about
impacts on the legitimate expectations of the participants, their savings
the contract concluded to date the beginning of the effectiveness of the amendment, in some
cases, however, it will be the right retroactive effects. Is
convinced that the maintenance of the existing construction savings scheme
a threat of significant economic damage for Heskou Republic,
that was the stated reason for the adoption of the amendment in the State
legislative emergency. In this context, refers to the Study of the effects of
building savings for the economy and society, prepared in August 2010
the company's Next Finance, s. r. o., under the guidance of Ing. V. P., Ph.d. From
This study shows that for the year 2009 was on State aid paid
a little over 13 billion. CZK, while the construction loans received
public budgets on taxes of more than 25 billion. And to the Housing Fund was
building savings through loans invested only about 65
billion Czk. The share of savings to finance housing construction while
the amount was between 40-60%. The study also shows that the expenditure of the State
the budget of EUR 1 billion. On State aid generates as a result of
multiplier effects in the context of building savings at least 251
new jobs in the construction industry (i.e. for 2009 at least 3329
new places). Data testifies to the conclusion that the construction savings is
significantly involved in the provision of housing to the needs of the population.
63. Referring to the report of the RIA to draft the contested Law Association Vice versa
points to its possible the consequence in the form of a threat to the liquidity of construction
the savings, which is perceived as a real threat of major economic damage,
that would have affected the participants of building savings and their
through the whole economy. This would for example. about the lack of
funds for the payment of the terminated contracts or inability to provide timely
proper building savings loans.
64. The one-time state aid taxation for the year 2010 special withholding
taxes in the amount of 50% of the Association shall be deemed unconstitutional, since the
the right has retroactive effects. As follows from § 36 odst. 8
the income tax Act, in the wording of the contested act, from section 4, paragraph 4. 3
the law on building savings, in the current version, the entitlement to the advance
State aid for the year 2010 already this year. Due to the conditions
laid down by the law on building savings (in particular § 4 and § 11 (1)),
that apply to a specific calendar year in which the participant
State aid is required no later than the end of this year built
for sure, whether to meet all circumstances conferring in this
in entitlement to state aid. The fact that the contested Law analyses in
2011 reverse income tax has already generated entitlement to State
the support extends to the legal consequences of past action, which according to the
the law on entitlement to building savings annual backup State
the aid and as the conditions of entitlement for the year 2010 is completely took place and were
completed in that year.
65. Moreover, the contested Law was published in the collection of laws up to 8. December
2010, which, in the opinion of the Association was to substantially prejudice
the legitimate expectations of the participants building savings. You perform the following
the entire year of 2010, the conditions for entitlement to an advance payment of State aid for this year
(in particular, carried out on the building savings accounts deposits within the meaning of section 11
paragraph. 1 of the law on building savings) in the faith against the then valid
legal status and experience of these deposits will receive an advance
State aid law and the amount of taxes deferred. It is usually
While the new tax obligations governing the law so that they are
known before the start of the respective reporting period in which they take
their taxed income, to the new legal situation, could the taxpayer
customize its behavior. Surprising is the fact that the legislature of the newly
considered as taxable income of the participant an advance on State aid. This is the
However, on the building savings account within the meaning of section 12, paragraph. 1 of the law on
building savings only registered and, therefore, at the time of remittance
does not represent the real disposable income of the participant. This tv is
happens to their entire savings, and it only provided the fulfilment of the
the conditions for the payment of the whole of State aid pursuant to section 12 paragraph. 2 of the law on
building savings. The contested act is so completely unexpectedly and in
conflict with the tax practices of future expectations (only taxed in addition
conditional) income.
66. The Association also notes that the originator of the contested act was
apparently aware of the threat of a potential violation of the prohibition of retroactive right,
as for the reduction of the amount of the advance in State aid for the year 2010 has chosen to
distinct method (a one-time special tax), than for the following years.
It is clear that the purpose of the reduction observed both ways above the State
aid enshrined in the amendment is the same, and that limit state aid
building savings in half for all existing and new
the treaties, as follows from the political declaration of the current Government coalition (see
page 5 the coalition agreement and the programme Declaration of the Government). Due to the
the fact that the introduction of this tax has the same economic effect on the participants,
as should be retroactive reduction of State aid, and for the year 2010
existing contracts, is the chosen method of unauthorized circumvention
the constitutional ban on retroactive legislation right, therefore should
be assessed as well as illegal the case right retroactive.
67. In accordance with the content of the proposal sees the Association and the adverse impact of the selected
the way legislation on each group of participants of the construction
savings in varying degrees, and without any legitimate reason. On
the one hand, there is a large group of participants, which will be the backup State
aid has been reduced, because their contracts will be remitted in the year
2011 (see § 36 paragraph 8 of the law on income tax, in the wording of the contested
of the Act). By contrast, there is a group of participants, whose contracts were
concluded by the end of 2003 and for which the Ministry of finance in practice
applies to section 11 (1). 3 of the law on building savings, as amended effective to
December 31, 2003. According to him, the contracts that were concluded in the first
half of the calendar year, asking for State aid this year to the
30. June. Participants in this group were already in State aid for the
2010 paid in full and the amount of untaxed, and it just on the basis of the
the accidental Act, that time savings with their contract for any reason
over the first half of 2010. While this fact is not of
the point of view of taxation at all substantial, since the nature of the income of the participants within the
the second group is the same as the nature of the income of the participants within the
the first group. Still it is an advance in State aid for the year 2010, with the
which should be treated identically to all its recipients. The participants in the
the first group are therefore at a disadvantage compared with those from the
the second group that did not complete in time the contract for the construction
savings. Since the adoption of the amendment to the end of the year 2010 didn't have these
handicap zhastníci nor a real opportunity to do so, and this will
as a result of extraordinary unfavourable in the form of taxes.
68. the efforts to draft the contested act the petitioner to circumvent the constitutional ban
right-retroactivity is abnormally high tax rate, which
substantially change the rate of appreciation of the participants ' savings savings on
2010 State aid. Yet here the participants rightly expect,
Since it relied on the legal status of an existing throughout the year 2010,
When on your accounts carry the deposits for the entitlement. In practice, the
then the result of it, that the participants with a maximum limit of State
aid in the amount of Czk 3000 per year (in particular the participants with contracts
closed from 1. January 2004 to the end of the year 2010) will be able to for the year 2010
receive State aid on the backup maximum 1500 CZK, which do not reach or
the maximum amount of the advance of State aid laid down in the next year (2000),
While those whose previous limit was in the amount of $ 4500 (that is, in principle,
participants of the treaties concluded by the end of 2003), for the year
2010 may receive an advance of up to EUR 2250 Kč. The submitter of the amendment while
has not been declared no legitimate reason for this different tax
treatment and reason in the opinion of such Association does not even exist. Therefore,
the Association considers these distorting effects for the amendment to the contrary
the constitutional prohibition on discrimination and the constitutional principle of protection of legitimate
the expectation of addressees of law.
69. In another part of the representation of the Association dealt with the consequences of article.
(II) the contested Law, which is to be used to section 10 of the Act on the construction
savings on all of the contract on building savings, regardless of when the
have been concluded. In his most serious problematic effect considered
the impact on the right to count the amount of uspořenou in the current calendar
the year and exceeding the maximum limit, from which you can claim in this year
State aid in the basis for the calculation of State aid in the following
the years. Building savings contract concluded until 31 December 2006. December 2003
in this issue until the end of 2010, apply effective legislation to
date of their conclusion, which allow unlimited transfer
excess of the amount saved for the current year to next years for the purposes of
claim State aid. To a later law No. 423/2003 Coll. by changing section
10, paragraph 1. 4 the law on building savings limit for this option contract
closed from 1. January 1, 2004, provided that these contracts were already from your
the beginning of the enclosed with the request for State aid, and this requirement was not
for the duration of the contract changed. Transitional provisions article. (II) the contested
the Act lays down the following conditions for all contracts, regardless of the date of the
their conclusion, in relation to the contracts concluded by the end of the year 2003
generates a fundamental change of approach on this issue. As a result of this
the fact the contracts, which have not been for a last time from
their conclusion by the end of 2010, the required state aid, will
a participant from the year 2011 withdrawn claim on counting money saved
amounts from previous years in the basis for the calculation of State aid (and thus the eo
ipso entitled to state aid, the total amount of deposits brought by the high
the end of the year 2010). The Association sees the right in that illegal retroactive
the operation of the contested act that the existence of the claim has already generated on the
the transfer of the saved amount in future years for purposes of claiming the State
support conditional on other facts. According to the expert estimation
Association with thousands of cases that arose primarily in the
context of a reduction in State aid law No. 423/2003 Coll., which
in response to its many participants concluded the transitional provisions of the Treaty
without a requirement to state that her request to the end of the year
2004.
70. The doubts expressed about the real meaning of the concept of also "demands on the State
support incurred before the date of entry into force of this Act ", which have
According to the article. (II) the contested act remain transitional provisions intact.
The law on building savings uses the concept of "claim" in the context of the
State aid at least in two different senses, and as entitled to
crediting advances in State aid for a particular calendar year, (ESP. § 4
paragraph. 3, § 10, section 11 and section 13 (3). 1) and as entitled to payment of any
State aid not yet recorded in the form of advances on account of a participant (ESP. §
12 and section 13). If the Ministry of finance came from the second interpretation,
It would mean the need to reduce the contract on building savings, for which
entitlement to the payment of State aid does not arise until the end of 2010, the amount of all
advances still credited for the entire duration of the contract (i.e., the maximum
CZK 2000 per year) and the resulting obligation of building societies
return the difference to the State. Such an interpretation would lead to interference has already incurred
claims on the advance of State aid for the past years, as were (so far with
the exception of advances for the year 2010), the Ministry of finance allocated to participants
and building societies are credited to their accounts in accordance with the conditions
laid down by the law on building savings, as effective in the year in
which shall be entitled to the deposit originated. This ambiguity is not in accordance with the
expectations of good legislation, in particular with the need for a clear enough
the content of the legal standards to its addressees as it could and to
her unexpected interpretation could not be disrupted by their authorized
expectations.
71. in addition to the two most important impacts of the article. (II) the contested
the law will undermine the application of the provisions on reduced state aid to the Treaty
concluded by the end of 2010, the legitimate expectations of the participants of these contracts
regarding the extent and the speed of the increase of their property in accordance with the legal
status existing at the time of the conclusion of such contracts. Above all, there is a
deterioration in the assessment of participants ' savings to the building savings, and it directly in the
as a result of a reduction in State aid, and indirectly by the participants will be
belong to the above with regard to the reduction of State aid and the resulting lower interest.
At the same time, but the delay and the entitlement of a participant to yield building
saving and proper credit from construction savings, because the condition of his
inception is a certain share of the balance of the account to the target amount and the
at the same time achieve a specified minimum savings of the participant's performance
above all, the share of interest to the target amount. The performance of the two criteria is lower
the intensity of the appreciation of the limited savings. Compared with the original assumption when
the conclusion of the contract on building savings is by contract with the average
the target amount, extend the time needed for providing proper credit on the
three months for the contract, which has been provided to the State by the year 2010
support to a maximum of $ 3000 per year, and for the contract, which was not yet
the maximum State aid in the amount of $ 4500 per year, even about 11 months.
The implications of this fact can be individual and different, depending on the
What purpose, and how urgently the resources of the building savings participant
needs. Listed will be for the participants, who took advantage of the bridging loan
(i.e. the loan provided by the also exclusively on residential needs defined
by law, but only on a provisional basis until the formation of the entitlement of a participant to the ordinary
building savings loan), mean higher interest expense on
bridging loan. At the same time by extending the duration of the loan,
that a lump sum paid back income savings and loan of
building savings at the date on which entitlement to proper credit, which is related to the
the obligation to pay interest on the entire amount of his neumořované after a longer period of time.
72. The above direct impacts on participants to vicariously touch i
building societies to the extent in which reduces the attractiveness of the product
building savings with new and existing contracts, and this will affect the future
the behavior of both new and existing participants in the building savings in a big way
scale. These impacts can be significant for the stability of the system
building savings, since the savings and loan products are set
with the assumption of a fixed client behavior in the future.
The consequence could be any lack of resources available to the
the provision of proper credits, to which building society
firmly committed to long-term contracts on building savings in the past.
Cannot be ruled out, nor the intervention into the private contractual relationship
between the building society and the participants. Even when granting State
the aid is not subject to a contractual obligation towards the building society
the party is on its treaty right is established, it takes part in the extent
and the speed of implementation of the reciprocal obligations of the participants and
building societies and through the above direct and
indirect impacts significantly affects peace and achieving speed
economic objectives, that when the contract was intended.
73. As a result of the contested act was affected by the legitimate expectations
the participants reach their objectives (i.e. the sources to the above target
the amount) in the originally planned time and cost and extent of the planned
evaluation of the savings that were based on the legal status of a valid
When concluding the contract on building savings, without having to be able to
to adequately respond. Where would the participant decided to terminate the contract
on building savings, concluded before the entry into force of the contested act,
so it does not meet the condition for entitlement to the payment of State
support, because the testimony would be loss of any existing State
support (see section 12 (3) of the Act on the building savings). In the case of contracts
with the bridging loan would be provided even without immediate
repayment of this loan was not possible. In the past, while
the legislature with regard to the consequences kept in relation to the treaties
closed prior to the entry into force of the amendment to the law, the existing regime
the granting of State aid. Moving away from this approach in the case of
the contested Law, which reduced public support for the existing
the contract is for the participants in terms of the intertemporality of surprising and
extends to their legitimate expectations regarding the future level of the State
the aid. The surprising impact in relation to the participants in this sense and
the introduction of the tax on interest income in the amount of 15%, occurs by clearing the
exemption of interest income from income taxes, which was provided for section 4
paragraph. 1 (a). with) Act on income tax, in the version prior to the effective
the contested act.
74. In conclusion, his representation of the Association, said that the building society fulfils
its purposes, as at least 65% of the deposits collected by the building
Thrift is used on special-purpose loans to financing housing needs
participants, and attendees who do not take credit, they often
apply to the housing needs of the balance of the building savings account (according to the
expert estimation of the Association in two thirds of cases). Additional credit
In addition, the expansion is constrained by the law itself on building savings, where are the
for the provision of bridging loans and credits provided by the legal
persons who set the limits, which have a wider provision of these
specific types of housing loans. Some building societies
already had its trade policy with regard to the development of the deposit and
adjust loan portfolio limits referred to in the Act, and the demand for
These loans different tools dampen. From the above follows, therefore, that the
the State, through the building savings loan fulfils its international obligations of
The International Covenant on economic, social and cultural rights and
article. 16 of the European Social Charter. Most of the money is invested in
Housing Fund provided by special purpose loans.
Restrictive intervention of the State into a functioning system of building savings loan
the contested law with the impacts described above would certainly not only
limit the extent to which the Czech Republic is fulfilling its international obligations to
securing the social rights of citizens, but also hit into the course of
private-law relationship with the participants of the construction savings, and thus to their
legitimate expectations regarding the evaluation of their savings and realization
housing needs.
75. To request the Constitutional Court provided by the Association of Czech building
the savings patterns of the contract on building savings, as well as the texts of the General
the terms of trade of all building societies operating in the Czech
Republic, including their texts for each of the previous years.
III.
A replica of the plaintiffs
76. Submission of 23 July. February 2011 replicated the appellants
through its representative on the sent comments, especially on the
representation of the Finance Minister and the Czech Association of building societies. In
his comments indicated that identify with the conclusions contained in the
representation of the Association and refer to them. With the argument of the Minister of finance
However, disagrees.
77. The opposition of the plaintiffs relates primarily to the conclusion that the right
retroaktivita contested the law against legal claims arising from the
excluded by pointing out the moment the formation of income as "the physical transfer
the values ", which occur after the effectiveness of the amendment" to the adoption of the national
the contribution of the natural person in 2011 ". The effect of the contested act is
Indeed, clearly such that the new tax is hitting the property resulting from the
already before its efficacy, and that the claim not later than 31 March an.
December 2010. It does not change the fact that this receivable
(claim) may be depending on the time of its creation met or
After the effectiveness of the Act, i.e.,. up to 1. January 2011.
78. The determination of the operative events for applying extraordinary taxation
State aid for the year 2010 using the diction that "post ...
remitted to the stavební spořitelna after 31 December 2006. December 2010 ", is referred to in
plaintiffs, the manifestation of the arbitrariness of the legislature. Building savings participant
above all, does not have the ability to control whether and when exactly they will be remitted
backup stavební spořitelna Ministry. In this context, the point
that the Finance Ministry is obliged to point out the stavební spořitelna
the amount of annual advances State aid within two months of receipt of the request.
In the case of an incomplete application, or the wrong data, however, the Ministry of
may require supplementation or correction requests, and after a period of time, than it is
the request supplemented or corrected, the time limit for remittance of the advances is not running (§ 11
paragraph. 4 and 5 of the law on building savings). Participant could theoretically
affect whether new or (still) not tax
the taxpayer only whereas, when in the course of 2010, their deposit
to fulfill the condition for crediting the account of the advance of State aid for the
year.
79. Artificial constructs that zdaňovaný thing (income) is produced to
After the effectiveness of the contested Law, has to help the State to
a large part of the building savings participant evaded its obligations, which would
otherwise, he had to meet, because to their satisfaction "entitlement in
2010 ". Indeed, barely could stand up the opinion that the amendment of the above tax rates
income or the introduction of specific rates of this tax from 1. January calendar
the year should have an impact on the revenue of the legally incurred until the end of the year
the previous, but paid after 31 December 2006. December of this year. Pay for the
the month of December should be taxed higher rate just because it is
paid in January, or an increase in the rate of value added tax, to which the
will, with effect from 1. in January, would have to apply to the taxable
the performance still made in December of the previous year only because
the invoice has been paid by the customer and the amount credited to the account of the supplier
until January. This design is trying to pretend that the claim, on the
the satisfaction of the entitlement (i.e., assets, or property value),
produces up to the moment when the financial amount corresponding to its
meet credited (and even in the matter of just registered, not
taken) for the account beneficiary.
80. The appellants do not agree either with the legal conclusion that, as a result of
the contested Bill reducing only the claims incurred
to its effectiveness. The Minister of finance in their view does not distinguish
between the importance of the legal concepts of "mandatory contribution" and "backup" post
(State aid). The fact that the contested act has decreased from 1. January 2011 backup
State aid for contracts concluded before its efficiency, reduce
backward and their total amount. Touched only claims arising
After his effectiveness. Even though in this case could only go on the wrong
the retroactive effect of the law, since by reducing backup contribution is without prejudice to
granted for the years to 2010, including the effects of the amendment are such that the
significantly undermine the existing contracts on the legitimate expectations of the participants
building savings, which should at least until the adoption of the contested
the law. As is stated in the comments of the Czech Association of building
savings banks, this can reduce the State aid in its consequences
even exhibit in xadě cases and right retroactive effects.
81. the obmyslnou and formalistickou indicate the part of the ministrovy
the argument, according to which the contested law to avoid a reduction in State
the aid for the year 2010. In his opinion, it will be granted in full, the
only on her as on the income year 2011 will apply the newly introduced
income tax. The appellants submit that the Minister is trying to only
justify why, in fact, abused tax Institute. The reason was
bypass methods of direct reduction in the amount of State aid from the time
the reasons have already been usable for claims arising in the year 2010.
Do not identify, or with his opinion about the use of the concept of nepřípadnosti
legitimate expectations in the event of a change of law, which raises for all
the same consequences. To the legitimate expectations of participants in legal relations
may be affected by way of adoption legislation, and in this
the direction of the reference to "rich" case law of the Constitutional Court and the European
Court of human rights, in part, already cited in the original is.
82. The plaintiffs accuse Secretary misinterpret the real
the content of their proposal. In his claim, that the entitlement to state aid
arises without any further at the time of conclusion of the contract on building savings,
or that already signing the contract is "exactly given the amount of State aid".
On the contrary, only to point out that, at the time of the conclusion of this Treaty
It is available the so-called. the target amount, by which the total amount of State aid
unfolds, while entitled to clear and then its payment
occurs when all other legal conditions which are
unknown to the participant at the conclusion of the contract and cannot be unilaterally
suddenly change.
83. The content of their proposal was not even claim that the party building
savings could "legitimately expect that the State aid granted in the
the amount will be paid indefinitely ... ". The appellants only
attention to the difference between the approach of the former legislature, that
respect the acquired rights of participants in the building savings loan (see article. (II) point 2
Act No. 423/2003 Coll.) and the current legislature, which in the contested
the Act does not make. The Government and Parliament nezvažovaly the intensity of intervention to
the legal status of the participants of the construction savings and construction savings
and have not chosen any of the friendly approaches to the participants of the contracts,
especially to those who had called. binding, and to those who
draw bridge loan or a loan from building savings. Group
Members therefore in the proposal expressed the view that the existing access
the legislature established the legitimate expectations of the participants, that the State may
the contribution of the cut, but only for a new contract, and that after the period of validity of
the Treaty will post on it originally provided in State-guaranteed
the amount of. The contested act occurred according to the plaintiffs, the intervention in the right to
protection of ownership according to the article. 11 of the Charter and article. 1 of the additional protocol.
At the same time, identify themselves with the argument contained in the representation of the Association
Czech building societies that support the building savings loan
the State contributed to the fulfilment of its obligations under the article. 11 International
Covenant on economic, social and cultural rights and article. 16
The European Social Charter (right to housing). The effects of the contested act
the extent of provision of these commitments by the State limit.
84. In relation to the Declaration of a State of legislative Emergency merits tests are applied
the plaintiffs add that it is highly likely that if Infected
the law entered into force on 1 January. January 2011 and measures contained
would have had to be postponed by a year, the State would not be encumbered in 2011
the provision of State aid or the extent to which it would provide
in the year 2010 (let alone in previous years), but on the contrary would have been even without
This law significantly less burdened. They point to the information contained
in response, Minister of finance, as well as the representation of the Association of Czech
building societies, according to which the total volume of State aid (and
the burden of the State budget) the declining trend from 2005 onwards,
While the bulk of the decline came in the last few years, i.e. between
years 2008 and 2009. The Minister of finance should also make available information
the current amount of advances paid State aid for the year 2010, as these
the figures are undoubtedly relevant to answering questions, whether
the adoption of the law actually threatened the State considerable economic damage.
85. To the Minister of finance that the Government has requested the publication of the State of
legislative emergency to subsequently after an unsuccessful try out legal
the amendments in the first reading, added that the Government had to be aware of the deadlines in the
under the legislative procedure, as well as the positions of the opposition, which finally in
their testimony before the Constitutional Court of 8 April. February 2011 in case sp.. PL.
TC 55/10 admitted and Prime Minister Petr Necas.
86. Agree or not with the fact that "the main public interest '' in the Czech
Republic "the need to reduce the deficit of the State budget". As follows
formulated in the public interest does not have a foothold in any constitutional or legal standard.
On the contrary, the appellants considered the main public interest in achieving the constitutionally
guaranteed fundamental rights and freedoms, since respect for them and their
protection is the purpose of the existence of a democratic State. Do not challenge yet
the need for sound public finances, specific measures for their
recovery, however, is always a political decision of the current majority (article.
6 of the Constitution), while the question of the preservation of fundamental rights in the political
decisions of the Government or the Parliament always ultra consider vires. In addition, if the Minister
the Treasury claims the existence of the following defined public interest, it should be
part of the explanatory memorandum to the proposal for the contested act test considering
advantages of the constitutionally protected basic rights or values in the case of their
the collision, according to the criteria defined constant case law of the constitutional
of the Court.
87. The austerity measures in the area of support for housing was not "on the part of the State
advertised for several years ", as evidenced by the fact that no State
authorities in their conceptual materials in support of the construction
such savings measures neohlašovaly. Done so or political
the parties in the framework of the election campaign and its programs. But, as delivered,
the very fact that this measure was included in the coalition agreement and the
the keynote Government has in relation to the addressees of the legal
Regulations no relevance until the binding is expressed in a formal
sources of law. The coalition agreement and the programme Declaration of the Government are
documents of a purely political nature and the addressees of the laws have undoubtedly
the obligation to read such documents or listen to the media appearances
politicians and "set up" by them before the law
declared in the collection of laws.
88. As regards the allegation that the building of the savings bank "doing business with the State
support "and that" the instruments of State subsidy policy does not establish a time-
an unlimited constitutional order protected the claim of financial institutions from the
These instruments benefit ", the appellants point out that State aid
do not belong to the building savings banks, but participants in the construction savings,
While entitlement to the payment of State aid to the party just in time
savings, i.e.. solely on the basis of their own deposits. In compliance with the
the conditions for the payment of State aid is the building society obliged to
pay her a participant, on the contrary, when failure to comply with the legal terms and conditions
the participant must building society, pursuant to section 12 of the Act on the construction
the savings back to the State. They point out that building societies are entitled
to such conduct of the authorities of the State, which is predictable,
the obvious features of arbitrariness and does not intervene into the business of law and to the
rights enshrined in international treaties on the promotion and protection of the
investments.
89. In conclusion, their replicas the plaintiffs respond to the comments of the Minister,
According to which the construction savings "has long supported a middle and higher
income groups of the population ", which" in itself denies possible intervention in the
social rights ... ". It is not known to them, they would state the particulars of
income structure the building savings participant, and do not identify with the
the Minister's understanding of social rights, according to which the rights probably
only revenue belongs to the weaker population groups. They point out that the
the essence of their design is not the alleged intervention in social rights, but
intervention in the rights of ownership in violation of the constitutional principles of the rule of
State.
90. The appellants their infrequent of 15 July. March 2011 expressed consent
with the abandonment of the oral proceedings.
IV.
Assessment of the competence and constitutional conformity of the legislative process
91. Pursuant to section 68, paragraph. 2 of the law on the Constitutional Court consists of assessment
the constitutionality of the law with the constitutional order, or other legal
Regulation and the laws of the three components. This is the question
questions as to whether a law or other legal regulation was adopted and published in the limits of the
The Constitution laid down the competence that was adopted by the constitutionally prescribed
in a way, and that its content is in accordance with constitutional law, and in the case of
other legislation and laws.
IV./a
Summary during the legislative process
92. From the observations of the parties, as well as from the těsnopiseckých messages
The Chamber of Deputies and the Senate, and other publicly available documents
relating to the legislative process of the Zstavní the Court found
the following fact.
93. On 4 July 2003. October 2010 the Government has submitted a proposal to the Chamber of Deputies
the law amending the law No 96/1993 Coll., on building savings and
State support of building savings and the law of the Czech national
Council No. 586/1992 Coll., on income taxes, as amended by the Act of the Czech national
No 35/1993 Coll. as amended by later regulations, and Act No. 586/1992
Coll., on income taxes, as amended by later regulations, the approved
resolution of the Government No. 669 dated December 22. September 2010. At the same time proposed
discussion of the law to the Chamber of Deputies with him could within the meaning of section
paragraph 90. 2 of the rules of consent already in its first reading. The proposal was
circulated to members as the house printing No 116/0. The Organising Committee of their
resolution No. 32 of 14 January. October 2010 recommended the consideration of the draft
the Act, determine bulletins and commanded the proposal for consideration to the budgetary
of the Committee. The first reading was started in 14:20 hours 26 March October 2010 on
7. the meeting, where the proposal was discussed in the general debate. Even before the
an indication of this proposal by the President of the Chamber of Deputies was
the Chamber of deputies served an objection against the SOCIAL DEMOCRATS parliamentary group discussion
the proposal, to be ratified with a Bill already in the first
read, therefore, this proposal became neprojednatelným. Subsequently, in the course of the
the general debate has suggested Finance Minister and MEP Miroslav Kalousek
under section 91, paragraph. 2 of shortening the discussion of the draft law
in the Committee on the 15 days. As a result of the application of the opposition political groups
The Social Democrats and COMMUNISTS, however, was not discussed this proposal. The Chamber of Deputies
then she ordered a draft law to discuss the Budget Committee
(resolution No. 102).
94. On the basis of its resolution No. 758 of 26 March. October 2010 (adopted by the
in the evening of this day) took the Government Bill (along with three other
Government bills) on 27. October 2010 back. 29 April. October 2010
the Government has submitted to the Chamber of Deputies a draft law completely identical
the content of the approved resolution No. 759 of 26 March. October 2010. At the same time
proposed by the President of the Chamber of Deputies, to the status of the
legislative emergency, for the period from 1. November to 5. November 2010 for
discussion of the same Government Bill (together with those three
the Bills) and decided that the Government bills will be
discussed in the summary of negotiations within the framework of the declared state of legislative
of an emergency. The same day the Bill was circulated to members as house print
No 157/0 (as well as the rest of the three aforementioned Government bills-
Council publications No. 155, 156 and 158).
95. The Chair of the Chamber of Deputies, on the basis of this proposal announced
by decision No. 7 of 29 June. October, 2010, for the State of legislative emergency
the said draft laws for the period from 1. November 2010 to 15. November
2010 (the Government proposed only to 5 November 2010) and decision No. 8 of the
the same day, decided that these proposals will be discussed in the summary
the proceedings. This decision also ordered the draft law to the budgetary
the Committee, which has set a deadline for the submission of bills
resolution of up to 2. November 2010 until 12:00 hours. 29 April. October 2010 was
Members circulated a draft Bill as the house printing 157.
96. The request of the Prime Minister on the Declaration of a State of legislative emergency, as well as
the relevant decision of the President of the Chamber of Deputies include only
short justification the threat of significant economic harm, without this
the threat has been further specified. More reasons for the publication of said
Prime Minister Petr Necas 27 June. October 2010 within the framework of the debate on the draft
the law on the State budget of 7. a meeting of the Chamber of Deputies, when in its
the performances informed members of that procedure. Specifically stated that
"neprojednání these laws means that efficiency would not 1.
January next year, which would make the budget of many of the file only
tens or hundreds of pages of printed numbers, however unfounded
real actual data on revenue and expenditure, or it would be
the budget totally hypothetical, unrealistic, and, therefore, the budget, which would
not be taken as a credible document. For this reason, would risk significant
the deterioration of the position of the Czech Republic on the financial markets. With this
nevěrohodným budget could be threatened by the rating of the Czech Republic,
There would be an increase in debt service payments, it means we pay
the interest for the national debt. A very significant risk would of course
become a significant deepening of the deficit in the public finances and would also
tax evasion. In these circumstances, the risk of these large economic
the damage, the Government was obliged to apply the provisions of the law on legislative
need to prevent these significant economic damage. " (těsnopisecká
report from the meeting of the Chamber of Deputies 27 June. October 2010, 7. the meeting,
www.psp.cz)
97. The day 2. November 2010 at 14:00 hours launched the Chair
The Chamber of Deputies on the fourth day of the aborted meeting 7. the meeting, in the
the introduction of informed members of its decisions. With regard to the
the obligation of the Chamber of deputies to assess the proposals before discussing laws,
whether it takes a State of legislative emergency, initiated the introduction of the rules of procedure of the day
the debate on this point. In the framework of the debate stepped member of Bohuslav
Sobotka, who has expressed reservations about its progress. He pointed out that the
consideration of the Bills to the current meeting of the
the Chamber of Deputies a proposal for the inclusion of these assumed points on her program.
Such a proposal but cannot be discussed, if against it raise an objection
at least two of the clubs or 20 members of Parliament, which has made on behalf of the
presented the Social Democrats and the COMMUNIST PARTY. After a brief debate, the Chair announced
The House of Commons at approximately 3:20 p.m. that interrupts the meeting 7.
the meetings of the Chamber of Deputies, and at the request of a group of coalition members of Parliament
from the place of holding the Presidency has convened an extraordinary 8. a meeting of the Chamber of Deputies
at 16:00 hours the same day. At this time, the meeting was also launched.
98. Introduction 8. meeting of the President of the Chamber of Deputies again
informed members about the Declaration of a State of legislative emergency and launched
the debate to its assessment. In the context of this discussion, the President stepped out
the Government of Petr Nečas, that the reasons for the publication of legislative emergency, stated,
that "if approved by the State budget to 1. January next year
will not be supported by effective legislation that will be in effect from 1.
January next year, it would be implausible document based only on
the sum of the numbers that do not correspond to the actual legislation effective from the 1.
January of next year. It's a very serious risk. Then you may experience and to
steps, such as the deterioration of the vision of the rating of the Czech Republic, there is a
overcharging of debt service. Here I would like to point out that fluctuations only in
a few percent is in terms of debt service payments to orders
billion in debt service, there is an increase in the deficit of the State budget and
the increase in the deficit in the public budget as a whole and there is also absolutely
a proven tax evasion. The overall summary of these economic damage is
rather, in the hundreds, in the issue of dvojciferném billion billion. Or they are
a very significant economic damage and totally legitimately and in accordance with the
by law, the Government had to respond to it and had to ask for a declaration of
the State of legislative emergency, precisely to these serious economic
There was no damage. " (těsnopisecká minutes of the meeting of the House of the day
November 2, 2010, 8. meetings, www.psp.cz)
99. in the context of the debate on speakers outside of other opposition members
Jerome Tejc, Lubomír Zaorálek, Vojtech Filip, and Bohuslav Sobotka, who
the objections formulated in relation to the Declaration of a State legislative merits tests are applied
of an emergency. The deputies Bohuslav Sobotka proposed an adjournment of the hearing on the second day,
Therefore, to 3. November until 9:00 pm. For proposal voted 74 of the 181
MPs, 103 against. To confirm the duration of the State of
legislative emergency to discuss relevant Council voted prints
105 of 151 members of Parliament present, against was 46 (resolution No. 111).
100. The same day i took the second and third reading of the draft. Even before the
the commencement of the second reading, the Commission noted that the Chamber of Deputies
the conditions exist for the discussion of the Government's draft law summary
negotiations (resolution No. 116). For the vote of the members present, 97, 146
against 43. The Budget Committee convened to the printing house,
and recommended that the Chamber of Deputies discussed the proposal in General
the debate, on all of its parts in the debate detailed and
discussed to Friday 5. November 2010 until 16:00 hours. A proposal from the
the Committee on Budgets was adopted, when it voted 130 of 146
present members, 3 were against. Then, what was the General and
the detailed debate, the Chamber of Deputies approved the Bill (resolution
No. 117). For the vote of 96 144 MPs, against 44.
101. The day 3. November 2010 was the Bill sent to the Senate, which it
at the request of the Government discussed in the summary. The Organizational Committee of the same
day established the guarantee Committee Committee on economy, agriculture and
transport. The Committee discussed the draft law on 11 July. November 2010 and
adopted resolution No. 385, which recommended him to approve. Senate to discuss and
approved a Bill (Senate printing no 365/0) on 12 June 2006. November 2010 on
its 25. the meeting when it voted 42 of 76 senators, against 31
Senators and 3 Senators vote abstentions (resolution No. 603).
102. the draft Act was 19 May. November 2010 received the President of the
Republic, which signed it June 26. November 2010. The approved law
He was then 3. December 2010 delivered to the signature of the Prime Minister. The law was
declared in the collection of laws under no. 348/2010 Sb. with effect from 1 January. January
2011.
IV./b
The constitutional conformity of legislative procedures-general background
103. The structure of the argument of plaintiffs has examined the Constitutional
the court first questions the competence and constitutional conformity of the legislative
process in relation to the Chamber of Deputies. Because of its competence
adopt the contested law within the meaning of article. 15 paragraph. 1 of the Constitution had
doubts, he focused on how the discussion and approval of the contested
the Act, in respect of which complainants were directed and applied. In
This way, considered it necessary to summarize the relevant constitutional
the basis on which he founded his own review of the procedures.
104. The Constitutional Court in its case-law has repeatedly stressed the
the need for compliance with procedural rules and respect for
democratic principles in the legislative process. In its decision of
15 July. February 2007, SP. zn. PL. ÚS 77/06 (N 30/44 SbNU 349; 37/2007)
He stated that "even the Parliament or its Chambers, they cannot do both
arbitrarily, but are bound by the law. In the exercise of legislative activity
they are so bound by the Constitution of the CZECH REPUBLIC in particular, and with it the conformally inlaid
rules of procedure and the established practice of the parliamentary Chamber and its
authorities, which can be due to long-term recurrence be considered unwritten
part of the legislative procedure, you can find it in compatible with higher
law-making, democratic values, political system, etc. " (point
38). This emphasis on the regularity of (collateral) during the legislative process
doing so is not just appealing in relation to the legislature, as the authority
the public authorities proceeded in its performance in accordance with the law, but it is
an expression of the fact that legislation of the legislative process has also
to guarantee its compliance with the constitutional order.
105. It is beyond any doubt that the legislative procedure is generally
defined already at the level of the constitutional order, and in particular as regards the
competence and participation of individual public authorities on its performance,
the determination of the majorities required for the adoption of the decision, as well as
the formal requirements of the law. Part of these requirements, however, are not
only a relatively specific procedural rules laid down by the Constitution, but also
some constitutional principles, to which the instantiation occurs at the level of
the law, therefore, necessitated both chambers. This is first and foremost about
the democratic principle flowing from article. 1 (1). 1 of the Constitution, representing
one of the essential requirements of the democratic rule of law. This
the principle while pumping out just the majority decision
democratically elected members of Parliament or senators, but the result of it
the requirements in relation to the way the (over) the hearing of the draft law. In
this direction can be constitutional relevance to admit also other principles,
above all, the prohibition of arbitrariness, the principle of the protection of minorities for adoption
the political decision, the requirement of democratic scrutiny, both by the
members of Parliament and senators, as well as from the public, and ultimately, not
However, in the last row, the principle of free competition of political forces (closer to the
These basic conclusions. find of the day 1. March 2011 SP. zn.
PL. ÚS 55/10, section V.A and B; 80/2011 Sb.).
106. Legislative procedure in both chambers of Parliament must above all
to allow interested persons on her "real assessment and consultation
the draft Parliament "(from on January 31, 2008, SP. zn. Pl. ÚS
24/07, part of the X/a; N 26/48 SbNU 303, 88/2008 Coll.). Individual members of the
or the Senators must have a real opportunity to get acquainted with the contents of
submitted by the draft law and to its opinion in the framework of its
discussions in the relevant Chamber of Parliament or in its institutions.
The ability to make public its opinion on the draft law on the parliamentary ground
Yet its significance goes beyond the subjective right of the Member. Allows you to
in relation to the other members, as well as the public confrontation
the reasons for the acceptance or rejection of the draft law. The elected representatives of the citizens of
must be in direct confrontation with the views of their opponents to publicly state the reasons and
defending the soundness of its proposals. To take the decision as to
after they have been formulated in this manner the reasons for and against the acceptance of the
the draft law. Deputies and senators, without prejudice to the
their opportunity to vote freely, according to the best of my knowledge and
conscience, so will decide with the knowledge of the arguments of both parties. This is the
at the same time allow the public to not only check their activities, therefore, have
the ability to know whether and on what grounds the proposal or
No, but in its essence and indirectly participate in the legislature
the process, for discussion within the general public, as well as from her
the resulting consent or criticism always affect and decision making
individual members of Parliament and senators.
107. Formulated the requirements of openness, public and control
the Constitutional Court considers that the legislative process for the immanent part of the
the democratic principle. The possibility of a confrontation of positions on the parliamentary
the soil is at the same time a guarantee of free competition of political forces, thus
one of the fundamental components of a democratic State, which is their
the explicit representation of the in the article. 5 of the Constitution and article. 22 of the Charter. These constitutional
the principles of protecting only the very possibility of parliamentary discussion, not
the ability to realistically affect the outcome of the final vote. The principle of the
the majority is not affected. On the contrary, it can be pointed out that
This leads to the real fulfillment of its inseparable component, which
It is the obligation to ensure the protection of minorities in most of the admission policy
decision (article 6 of the Constitution). In the case of the legislative procedure, this
the protection applies to the position of the parliamentary opposition (see find SP. zn.
PL. ÚS 55/10, paragraph 70). In this context, the Constitutional Court notes that "in the
Parliament also reflects the idea of pluralism, which is the Foundation and character
every free society. In a parliamentary debate, and naturally also in the
the work of the various committees of the Parliament gets to the word of the opposition, which
so at the same time carries out control, which can be understood as one of the
the basic characters of the rule of law. Often only in Parliament receive
the opportunity for expression of the so-called. the interests of the weak, that is. the interests of such
social groups, which do not have such a capacity to enforce
with just these features of parliamentary debates show on special
the role of Parliament and the integration of balancing interests. All of these
the principles should be taken into account when editing and executing procedures
relating to the proposals of the law "(PL. ÚS 77/06, paragraph 56; the importance of
the parliamentary opposition. also Pl. TC 24/07, part X, and Pl-55/10,
section 72 to 76).
108. Finally, the real possibility of fulfilling the functions of parliamentary procedure
the point of view of constitutional principles, assumes "creation of sufficient
time space to the parliamentary discussion of a legal masters "(PL. ÚS
24/07, part of the X/a). Referred to the time aspect of parliamentary procedure is
at the same time a prerequisite to parliamentary discussion generally could
meet their legitimizing function. It is therefore necessary to allow the
interested parties, in particular the representatives of the parliamentary opposition, sufficient
time space in the context of the discussion of the draft laws to them could
realistically meet, assess them and take them to make an informed opinion,
to be able to subsequently present in parliamentary debate or in the
the framework of committees or other bodies. As further emphasized
The Constitutional Court, in the established time and procedural framework
discuss the law "reflects the constitutional protection the guarantee of real
the functioning of the parliamentarism "(PL. ÚS 24/07, part of the X/a). (I) in relation to the
This requirement, while not forgetting the wider importance of parliamentary
discussion in relation to the possibility of the public to become familiar with the legislative
the draft and its reasons, to articulate their views and to her this
way affect the progress and decisions of each
the legislators. Limitations of the legislative process to only a few days would
This option effectively prevented.
109. the Guarantee referred to the principles at the level of a simple law is
one of the functions necessitated both chambers. You have to create a General
the rules for the hearing of legal templates, which may also contain
effective mechanisms, such as the may parliamentary majority on one side
prevent the adoption of a decision of a majority of the impossibility of for reasons of obstruction
the parliamentary opposition, but at the same time allow the parliamentary opposition
to protect their rights against major restrictions on the part of the majority (cf.. PL.
TC 55/10, paragraph 73). It is not a priori preclude the possibility that, in the
justified cases, for the discussion of the draft law allowed
the rules of procedure special procedure, which would significantly
touching the above constitutional principles. In this case, however, the purpose of the
such procedures must justify their restrictions.
IV./c
The constitutional criteria for the Declaration of a State of legislative emergency and consultation
the draft law in the shortened procedure under article 99 of the Rules Of
the Chamber of Deputies
110. The appellants find non-compliance how the adoption of the contested act
in fact, that his discussion of the summary in the State
legislative emergency, without legitimate reasons have been given for his
publication. Referred to the legal Institute allows, in exceptional circumstances
speed up the consideration of Government bills in the summary.
The purpose of the content or purpose of this Institute is to prevent
non-refundable or difficult to reparovatelných damage to fundamental interests
members of the society or the prevention of real, significant damage to property
(current or projected) State.
111. the rules of procedure of the Chamber of deputies in its § 99 paragraph. 1 enables "
in exceptional circumstances, when they are fundamentally compromised the fundamental
the rights and freedoms of citizens, or when State is threatening substantial economic damage "
to declare a State of legislative emergency. This status on the proposal of the Government Announces
in its decision the President of the Chamber of Deputies, which is (on the basis of
the request of the Government) is also entitled to decide that the Government proposal
the law will discuss in summary (section 99 (2) of the rules of procedure). In
this case, specifically, this proposal one of the committees and provides him
opposing a deadline for his decision. The Chamber of Deputies still
before discussing the agenda of the meeting will examine the resolution status
legislative emergency lasts. Before discussing the specific Government proposal
the Act is again required to assess whether the conditions for its consideration
in the summary. If it concludes that these conditions are given,
discuss the Bill directly in the second reading, and is entitled to
decide on the abandonment of the general debate, as well as the limitation of speaking time
for five minutes, and on the proposal of the Committee responsible of the restrictions detailed
the debate only on some parts of the law. Immediately it may
held the third reading of the Bill. The very procedure adoption of the proposal
the law in short negotiations in the framework of the declared state of legislative
an emergency is then modified in detail in § 99 paragraph. 3 to 9 of the rules of procedure.
112. From the above, it is clear that the discussion of the draft law summary
the negotiations are significantly different from the normal course of the legislative
the process, as usually it occurs already during several days for
a significant limitation of the rights of the individual participants of the legislative process.
These restrictions are significant and affect the above
the constitutional principles of the incident on the legislative process, including the rights
the parliamentary opposition, and a significant proportion of relativizují the basic functions
parliamentary debate (cf. find SP. zn. PL. ÚS 55/10, paragraphs 86 and 87). In
in this context, it should be recalled that the Constitutional Court in its
the findings, SP. zn. PL-12/10 and Pl-55/10 defined constitutional limits for the
consideration of the draft law in a State of legislative emergency. In the first of the
given the findings stated that "a decision on whether there is a risk
economic damage, is not deciding on the damage in the legal sense of the word,
but based on the considerations of broader political konsekvencích "(paragraph 17),
While he acknowledged the relevance of the fact that, for the confirmation of the status of the
legislative emergency in favour of a significant majority of members (paragraph 18). On
referred to the Constitutional Court's legal conclusion made even later said of the award,
in which he emphasized the Government's responsibility for the assessment of the threat of possible
serious consequences for the fundamental rights and freedoms, the security of the State or
property values. "[L] of to assume that the Government is just with regard to the
its scope and the range of competences is the most appropriate authority for it to
managed adequately and in a relatively short period to evaluate the
the severity of certain circumstances, and even in the event of a limited range of
information, and on that basis to assess the soundness of the accelerated examination
a draft law in a State of legislative emergency. " (find SP. zn. PL.
TC 55/10, paragraph 82) at the same time is the question of the duration of State legislative
emergency and discuss the Government's draft law, summary in full
the hands of the Chamber of Deputies, which may by vote of such a method
discussion of the draft to prevent (point 78 of the award).
113. The rate of the discretion of the Government and the Chamber of Deputies associated with specifying how
consideration of the draft law, however, is not boundless, but its limits
they result from the constitutional functions of the legislative procedures, including a requirement to
sufficient time and space xadného discussion of the draft law for the
While respecting the rights of the parliamentary opposition. The role of the rules of procedure
is to lay down the General rules in this respect, the legislative process, including
any exceptions, which may occur in a significant extent to the
the restriction of constitutional principles relating to the legislative process,
but for the existence of a legitimate and constitutionally aprobovatelného reason.
Such an exception is set directly on the constitutional level, even
all right, when the article. 8 the Constitutional Act No. 110/1998 Coll., on the safety of
The Czech Republic, provides for the possibility to discuss the Government Bill in
Summary of the negotiations, and that, at the time a State of emergency or war
State. With regard to the constitutional nature of the restrictions, as well as a sense of
constitutional rules summary hearing, which is to protect the
the rights and principles of controlling the legislative process in democratic
the legal State, can allow the definition of other cases summary
management at the level of the law (rules of procedure) provided a wide
the consensus in the Parliament or (and) it conforms to the type the severity of situations in
which is the shortening of the proceedings, the seriousness of the situation, which counts
the constitutional order for the abbreviated hearing bills (cf. find
SP. zn. PL. ÚS 55/10, paragraph 80).
114. Review of the draft law in summary in the State
legislative emergency represents a statutory exception to the proper
legislative procedure, whose justification is not based on consensus
among MEPs across the political spectrum, but the gravity of the situation,
that is, in the opinion of the Government must immediately respond by adopting
the law or its amendment. The provisions of § 99 paragraph. 1 rules of procedure
definition of the reasons for the Declaration of a State of legislative emergency, if
the application of this procedure to certain circumstances (entered as the
article. 8 of the law on the safety of the Czech Republic), but fixed the intensity
their severity. The abbreviated action is so conditioned by the existence of
exceptional circumstances and the intensity of possible negative consequence on the one
in General, the values from the specified protected the rights and freedoms of citizens-,
the security of the State or the protection of property.
115. For the extraordinary circumstance within the meaning of the above-mentioned provision is
may be just such a circumstance, which is obviously out of the ordinary
during the political process of internal and external, or may go on
circumstance, which constitute natural disasters (find SP. zn. Pl. ÚS
55/10, paragraph 84). The very justification for declaration of a State of legislative emergency
It is necessary to consider, having regard to the duration and scope of decision-making information
that were available at that time. It is also necessary to measure whether or not
the intensity of the reasons the State of legislative emergency in relation to the restriction concerned
the constitutional principles, as interest in the prevention or elimination of its
consequences should with regard to the values protected by § 99 paragraph. 1
the rules of procedure in the particular case, prevail over the interest of the proper
the course of the legislative procedure. Must be clear what specific
According to the Government for the consequences threaten the values defined in this provision,
Therefore, what justifies the conclusion about the threat of significant economic damage, or
the threat to fundamental rights and freedoms or security of the State. These reasons
in doing so, it must not be arbitrary and the specific Bill, which in
summary the Government proposes, must be able to prevent the occurrence or
the duration of the threat to the public interest (find SP. zn. Pl. ÚS
55/10, paragraph 85). In this context, the Constitutional Court emphasises that its
the role is to be the appeal instance in relation to merits tests are applied to the Institute
the announcement of legislative emergency, but the protection of the constitutional principles
relating to the legislative process before possible abuse
This Institute to circumvent the proper legislative procedures.
116. Referred to represents only the basic definition, which the Institute
legislative emergency in general terms translates into constitutional principles,
in this context, the Constitutional Court the full extent refers to the
legal conclusions contained in the finding SP. zn. PL. ÚS 55/10, part C).
IV./d
A review of the constitutionality of the contested act in consideration of the status of the legislative
emergency
117. The Constitutional Court came to assess the Declaration of a State merits tests are applied
legislative emergency, in which the Bill was discussed. As already
It was noted the decision of the President of the Chamber of Deputies No. 7 of
October 29, 2010, as well as the resolution of the Government No. 759 of 26 March. October 2010
justify the Declaration of a State of legislative emergency, briefly "threat of significant
economic damage ". More detailed justification for the Declaration of a State of legislative
emergency it is possible to infer from the representation of the Prime Minister Petr Nečas on 7.
a meeting of the Chamber of Deputies 27 June. October 2010 and its 8. meeting day
2. November 2010 (they are also closer to the detailed in rekapitulovaném
representation of the Prime Minister from 27 March. January 2011 in finding sp.. Pl. ÚS
55/10, paragraphs 43 and 44). From these observations, it appears that the reason
Declaration of a State of legislative emergency, was the need for the adoption of all
of the Bills by the end of the year, because the draft law
on the State budget for 2011 was based on the fact that these laws will take
effect on 1 May. January 2011. The threat of significant economic damage to the State
thus should consist in the fact that the State budget would be based on
non-existent legal status, with the result that there would be a deepening of the
the deficit in the public finances. This should also affect the
assessment of the Czech Republic on the financial markets, which would
resulted in a reduction in rating and enhancement of debt service. Extraordinary
the circumstance was seen with regard to the alleged "obstruction" from the
the parliamentary opposition, that in a situation where it was not possible to discuss
all the proposals of the Government Gazette of the normal procedure, so that the
effect not later than the end of the year, did not allow for the expedited
discussion in already a first reading (article 90, paragraph 2, of the rules of procedure) or
the shortening of the time limits for their discussion in the relevant committees to 15 days
(article 91, paragraph 2, of the rules of procedure). From his comments, it appears that in
the "obstruction" of the parliamentary opposition parties saw as Government
the core reason for which it had to accede to the withdrawal of the original
Bills and to the adoption of the resolution, which proposed their new
discussion on the State of legislative emergency in the summary.
118. The factual circumstances relating to the assessment of the merits tests are applied status
legislative emergency, under which the contested Law was discussed,
The Constitutional Court expressed in finding SP. zn. PL. ÚS 55/10 (part VI). In a given
things judged the constitutionality of the way of the adoption of Act No. 347/2010 Coll., which
changing some laws in the context of austerity in the
the scope of the Ministry of labour and Social Affairs, one of the four
the laws discussed in the summary in a State of legislative emergency
announced on the basis of the above, the decision of the President of the Chamber of Deputies
House No. 7 of 29 June. October 2010. Legal conclusions contained in this
findings in relation to the Declaration of a State of legislative assessment of the merits tests are applied
the emergency, as well as the subsequent ústavněprávním konsekvencím violation of § 99
paragraph. 1 of the rules of procedure shall apply in the case in its entirety,
Since it is the same State of legislative emergency. Nothing on it yet does not change
the fact that, unlike in the case of the hearing
the design of the contested act in abbreviated negotiations took place and the general debate,
as this does not change the essence of proper legislative restrictions
procedures. For these reasons, the Constitutional Court on the grounds in the full
the range of references and in this section is limited only to his summary, respectively.
with regard to supplement some of the specifics of the legislative process, which is
apply to the contested law.
119. The contested act was discussed in the Chamber of Deputies summary
negotiations in the State of legislative emergency, without such a procedure were
reasons provided for § 99 paragraph. 1 of the rules of procedure. To the adoption of the contested
This procedure act had occurred in response to the opposition, the opposition with
by accelerating the negotiation of bills, with the adoption of the
December 31, 2010 was counting on the Government's proposal of the State budget, and this
the situation, when having regard to the standard time of the legislative process (including the
the anticipated disapproval of the Bill in the Senate), it was possible
assume that its early adoption does not occur. The abbreviated hearing so
was justified by a completely standard political situation, when the opposition
used procedural means provided for rules of procedure for the enforcement of
his opinions against the Government's proposals of the mismatch of the Act, which
most of the Government to promote its political priorities.
120. The application of the objections under section 90 of the paragraph. 2 and section 91, paragraph. 2 of the rules of procedure
from the side of the opposition when discussing the draft of the contested Law, which
pointing only to comply with proper legislative procedures
consideration of the draft law, it cannot, in the opinion of the Constitutional Court
be considered as an exceptional circumstance within the meaning of § 99 paragraph. 1 of the rules of procedure.
Both of those provisions are the expression of the protection of the rights of the parliamentary opposition
(minority), in this case, the fundamental limitations of protection structures and
the duration of the legislative procedure, as the legislation such truncation
only allows for a significant majority of members consent beyond the three
a quarter of their total number. It was therefore right that
rules of procedure of the Chamber of Deputies confer on qualified minority members
to the protection of their rights (find SP. zn. PL. ÚS 55/10, paragraphs 91, 92 and 94).
121. This opposition cannot be regarded as an exceptional
even in the context of the fact that the draft law on the State budget for the year
2011, which the Government has submitted to the Chamber of deputies at the same time with the original
draft laws, assumed in terms of the structure of its revenue and expenditure
the adoption of all of the Bills by the end of the
the year 2010. The law on the State budget is undoubtedly a major political
importance, since the binding way sets out the particular structure of the expenditure
the State budget and allows through reallocation of income from
the State budget to pursue its political priorities of the Government (cf..
find of the day 12. February 2002, SP. zn. PL. TC 21/01, N 14/25 SbNU 97,
95/2002 Coll.). The enforcement of these priorities, however, cannot be made only on the
the level of the State budget, but it must be in terms of the legal
Edit setting his income and entitlements, i.e.
through changes in special laws allowing for the achievement of the
the required changes in income or expense on the State budget.
It is the responsibility of each Government, that in drawing up the draft law on
the State budget was based on the legislation in force, and in the case of
that it considers appropriate to achieve their changes in time to implement their
permission to submit the relevant Bill, which would
has reached the required changes. Though as a result of such a delay
There was a rejection of the law on the State budget prior to the first day of the
of the financial year, there would be, in itself, an exceptional circumstance,
because the consequences of this situation, the legislation foresees the budget
temporaries in the meaning of section 9 of Act No. 218/2000 Coll., on the budget
rules and the change of certain acts (related budget
the rules), as amended. It is therefore a regular
repeating the process for the adoption of the State budget and the standard way
enforcement of the budgetary policy of the Government through the relevant
legislative changes (find Pl. TC 55/10, paragraphs 92, 93 and 94).
122. the acceptance of the Declaration of a State of legislative Emergency merits tests are applied in the following
circumstances could have damaging consequences in the future, when it would be virtually
It can significantly reduce (or even eliminate)
the parliamentary discussion and negotiation of proposals to prevent such acts in the proper
the legislative procedure, and only by reference to that custom design
the law on the State budget for next year the adoption of these legal rules
anticipates and is bound by their existence. The revenue or expenditure of the State
the budget is reflected almost every bill, therefore such an
parliamentary procedure made it impossible for the opposition to comment on draft laws and
He made her completely dependent on the will of the parliamentary majority (find SP. zn.
PL. ÚS 55/10, paragraph 94). The Constitutional Court, while neither with
reason enough to limit constitutional principles relating to
the legislative process was possible without further considered (link
on the General and hypothetical) risk, unsubstantiated by any specific dates,
that would be the eventual rejection of the draft law could have a negative impact on the
evaluation of the Czech Republic by the credit rating agencies, respectively.
a negative reaction from the financial markets, though he himself does not dispute
the importance of those factors for the State of the public finances, as well as the possibility of
The Czech Republic advance its interests and the interests of its citizens (find sp.
Zn. PL. ÚS 55/10, paragraph 95).
123. the Declaration of a State of legislative emergency, and discussion of the draft law in the
apply fundamentally changes the structure of the legislative
process and reduces its essence on the assent or
opposition. This procedure can be accepted only as an exception to the rule, and
It provided serious reasons (see above), when interest in the
the immediate adoption of a law in the context of specific circumstances outweigh the
beyond the General requirements, in relation to the legislative process
they result from the constitutional order. As has already been pointed out, the authority
primarily competent to assess whether the situation is
the Government and the then House of Commons, not by the Constitutional Court. However, you cannot
accept the use of this extraordinary Institute as a normal tool
limitations of the legislative procedure, a parliamentary majority, the opposition at any time
by the dissenting position with the Bill and to prevent or delay
its adoption will use the rules of procedure set out the means.
124. If the legislative procedure to fulfil not only the function of the vote, but
also be a guarantee of free political competition, cannot be any requirement
her rationalization (in relation to the negative consequences of any obstruction
by the parliamentary minority to pursue the enforcement of a State)
the legislative mode of the Government and its parliamentary majority.
Přisvědčení their procedure in a situation where the Government has not been able to
articulate a different reason than his disapproval of the opposition with the Government proposals
laws, respectively. the necessity to adopt laws before the beginning of the financial
year, because one of them already based on the proposal of the State budget, would
actually meant to admit a proper legislative procedure, including its
the individual stages, the mere meaning of parliamentarism, which does not have the the facade
no sense and which may be restricted at any time when, with regard to its
the time aspect appears to be the current most of the excess. With such a concept
legislative procedure, as has already been mentioned above (section IV.), however,
The Constitutional Court fundamentally ... and a proper legislative procedure understands
just as the guarantee of a free political competition and also the rights of the
the political opposition.
125. The Constitutional Court, therefore, in this case concluded that
the event was not given a legitimate and constitutionally aprobovatelný reason to allow
Declaration of a State of legislative emergency pursuant to § 99 paragraph. 1 of the rules of procedure,
Therefore, all decisions of the authorities of the House taken in order to
the proposal of the Government, as well as the decision itself on the duration of the State of legislative emergency
and on the duration of the conditions for the examination of the contested act summary
the negotiations made in violation of the above explained aspects of the
that characterise constitutional democratic principle. The contested Law was
Therefore, the procedure that was adopted in breach of article. 1 (1). 1, article. 5 and article.
6 of the Constitution and article. 22 of the Charter.
126. Beyond referred to the Constitutional Court considers necessary to comment
and to the question of the convening of an extraordinary meeting to discuss the four bills,
including the contested act. This convocation took place in such a hurry,
that not only the opposition, but even Government MPs were not realistically able to
check if only the identity of the master with the previous draft of the Government's
the draft law, let alone to get acquainted with its contents in detail and assess
so its possible impacts (cf. find SP. zn. PL. ÚS 55/10, paragraph 99).
The Constitutional Court stresses, on the basis of the already mentioned constitutional
grounds that the time difference between the convening of the meeting and the holding of the parliamentary
the Chamber of Deputies has effectively allow attend this meeting and
to get acquainted with its contents and each of the points. The assessment of whether the
so in that case was, however, not only the question of some abstract
time, but also depends on the assessment of the circumstances under which it was
the meeting convened. In the present case was to convene extraordinary meetings in
during the other ordinary meeting, and to the points-bills, which were
MEPs familiar yet at the last meeting. It can be concluded that in the
If you cannot question the acceptability of an emergency meeting to
four draft laws considered in isolation from the famous merits tests are applied
State of legislative emergency. If it was reasonable, so it would be
the logical consequence of this procedure, the consultation will occur in 2. and
3. reading within a few days. In the present case, therefore, this procedure
fall of the above grounds of unconstitutionality examination of the contested
the law in the State of legislative emergency. The chairwoman of the Parliamentary procedure
the Chamber of Deputies, which convened the meeting in question in such a short time, without
the Constitutional Court reviewed on this site in General in terms of constitutionality,
but undoubtedly described as undesirable, to which the procedure should
occur only rarely and for serious reasons.
In the.
The postponement of the enforceability of
127. The Constitutional Court in its finding SP. zn. PL. ÚS 55/10 distinguish essential
defects in the legislative process, which as a result have not been met at all
the constitutional conditions for the adoption of a specific law (e.g. because of the absence of
the consent of one of the Chambers), and defects related only to the constitutional
order the guaranteed rights of the participants of the legislative
the process, which is fully in their disposal (section 103 Award).
In the second case it is necessary to consider also the time gap between the
the adoption of the law and submitting a proposal for its cancellation, which may lead to
complete violation of the constitutional order, or to institutional derogačního
reason (104 and 105 points Award).
128. Similarly, as in the case above, the award handed group
Members in this matter, a proposal for the annulment of the contested act immediately
After its publication in the collection of laws, while in its proposal has applied
relevant objections to the course of the legislative procedure. He was given a reason,
to the Constitutional Court came to its cancellation. The Constitutional Court, however, in the
things also came to the conclusion that the reason is given for the postponement of the
enforceability of the award in the negative consequences of cancellation
the law on the State budget. This reason yet understands in the context
all laws approved and discussed in the framework of the State
legislative emergency. If therefore in the matter given the identical derogating the reason
as was the case in the matter of SP. zn. PL. ÚS 55/10, the Constitutional Court had to with
regard to the applied material objections to considering whether it would leave the
the law in force until 31 December 2006. December 2011 at the same time did not lead to the exposure of the
potential addressees of the contested act (hardened) unconstitutional consequences
the contested act. As a result of the procedure of the Constitutional Court would in
this case should remain in force, even if only temporarily, the contested
provisions, without also to assess the objections relating to the
their content.
129. The Constitutional Court therefore was beyond the established
derogačního reason to assess the other objections to the complainants, which could
justify the cancellation of the law enforcement without delay. For this reason,
The Constitutional Court said in a review of the contested Law, and assess
as the remaining question of competence and constitutionality of legislative procedures in the
relation to the Senate, then the substantive objections of plaintiffs against
the contested law.
VI.
Assessment of the competence of the Senate with regard to the plea of denial of voting
the rights of Senators
130. Similarly, as in the case of the Chamber of Deputies is not even in relation to the
assessment of the competence of the Senate no doubt about his competence to adopt the contested
law within the meaning of article. 15 paragraph. 1 of the Constitution. With regard to the argument
the plaintiffs, however, the Constitutional Court had to deal with the objection about
the denial of the right to vote in the election of senators elected in October
2010. The response to this objection would mean that about Bill
The Decider in the incorrect composition of the Senate, which would result in the
the draft law was not on 12 June 2006. November 2010, discussed and approved by the
the competent authority.
131. In relation to the assessment of the question whether the Senate has discussed and approved the
the contested act in the correct composition, the Constitutional Court found that, in addition to
the senators, whose term is derived from the Senate elections
taking place in 2006 and 2008, he insisted on the date 12. November 2010
the mandate and the senators elected in the 2004 elections, whose second round
held on 12. and 13. November 2004. At the same time already but he insisted
the mandate and the Senators chosen in elections in October 2010.
132. With regard to that election, one third of the senators, according to the article. 17 paragraph. 1
The Constitution already may be held 30 days before the end of the parliamentary term,
occurs after the election, basically every time the situation, when after a period of time
at the same time insist mandates how the newly elected senators, and Senators
elected in the past proper elections, which still has not passed the six-year
the electoral period. The reason for this situation, when after a period of time not exceeding
thirty days can simultaneously take mandates up to 108 senators, is that
Although according to the article. 19 Constitution arises, the Constitution's mandate of a Senator by selecting with
This fact does not associate the demise of the mandate of the incumbent Senator, also
to a specific constituency. This status, however, does not mean that, even if only
temporarily, increased the number of members of the Senate or even after a
time, there were two Boards next to each other with the same legislative
competencies. It is necessary to distinguish between the number of senators, which in
It takes a certain period of their mandate and composition, in which the Senate in this
period of the session. This distinction, which shall apply in relation to the
The Chamber of Deputies, has crucial from the standpoint of applied objection
the importance of.
133. The Constitution provides for the election of legislators and the time period of the meeting
the competent Chamber in a different way. In the case of the Chamber of Deputies for the
the day of the election, which begins four-year term, considers the (second)
the day of the election. Seat all the members then lapses within the meaning of article. 25
(a). (b) the end of the electoral term) of the Constitution. However, by selecting the nepočíná
also, the duration of the meetings of the Chamber of Deputies, because this happens to
by decision of the President of the Republic for its convocation under article. paragraph 62. (b))
Of the Constitution. He is obliged to convene it no later than the 30th day after the date of
the elections, and if they do so, the Chamber of Deputies according to the article.
paragraph 34. 1 of the Constitution just this day. From this date, at the same time takes its
the meeting. The end of the session of the Chamber of Deputies then sets out the article. paragraph 34.
4 of the Constitution, so that it takes place on the expiry of her term of or
its dissolution.
134. Unlike in the case of members based on their election of Senators
the period since the elections the competent third of senators in the meaning of article. 16. 2
the second sentence of the Constitution. A meeting of the Senate is a permanent, from the date of its
be convened pursuant to article. paragraph 107. 2 of the Constitution. It can be concluded that, given the
Edit reasons mandate short duration the Constitution accepts as
dosluhujících mandates, and the newly elected members of Parliament or senators.
But this fact does not affect the fixed number of the members of the Chambers
Parliament in accordance with article. 16 of the Constitution. The Chamber of deputies or the Senate shall meet
This is always a fixed number, and only in a single composition
and just in this composition may exercise its competence. Therefore, if
ústavodárce does the end of the electoral term, and in the case of the
the Chamber of deputies or the end of the meeting, on the day of the elections,
did not even the possibility of the exercise of the competences of both chambers of Parliament in the
the current composition of the interference fit for the stage in this session to the new
the electoral period.
135. In the case of the Chamber of Deputies, this means, that whereas it
the meeting ends up the end of the electoral period, it is up to the
the end of the meeting shall be entitled to exercise its competence in its
the current composition. The possible holding of the elections to the Chamber of Deputies, and in the
as a result of the emergence of new mandates its members, does not in and of itself on this
the fact of the constitutional point of no effect. From the article. paragraph 34. 4 of the Constitution
In addition, a contrario, that the decision of the President of the Convocation not
the reason for the end of the current session of the House, and then the newly elected
The Chamber of Deputies may be convened for its meetings until after his
the end of the.
136. In a specific way, different solutions are applied in relation to the Senate,
because in his case there is a partial replacement of the composition in the course of its
a persistent session. The lack of an explicit constitutional modifications he makes up for in
If the Senate legislation contained in its rules of procedure,
time rozhraničení when the Senate in which the composition is based on the
the essence of the same background, as in the case of the
the Chamber of Deputies. The composition, in which the Senate sits, is, therefore, within the meaning of section 24 and section
26 paragraph. 1 of the rules of procedure of the Chamber defined the term.
137. The Senate shall meet in the composition of the obměněném from their first meeting (section 24 (2)
and section 26 of the rules of the Senate), which starts its work at the same time
period (cf. resolution from 1 March 2011, SP. zn. PL. TC 47/10). Up to
to this day takes his present term of Office, and then meet in their
the current composition, which does not affect the duration of the mandate of the dosluhujících
the senators. Those indeed, regardless of the date of the first meeting shall lapse
already the end of the mandate of their election period within the meaning of article. 25 (a). (b))
Of the Constitution.
138. The Constitutional Court found that the contested act was adopted on 12 December 2003.
on 25 November 2010. a meeting of the Senate in his 7. term, while
was discussed and approved by the required majority of votes (Senate print no.
365/1, resolution No. 603) zasedajícím in the composition of the Senate, whose third
the election was a mandate on the basis of one third of the senators in November 2004. All
Senators who participated in the vote on the draft law, insisted on 12 June 2006.
November 2010 the mandate of the Senator.
139. At the same time, it is clear from the above that, at the time of consideration of the draft
the law they were not elected in the election of senators in October 2010 included
the composition, in which the Senate within the meaning of article. 16. 2 and article. paragraph 34. 1 of the Constitution
in 1914. For this reason, also not even to deny their
of the voting rights. The Constitutional Court therefore did not find the lack of competence of the
the authority, which issued the contested Law, therefore proceeded to the assessment
the objections relating to the content of the contested act.
VII.
An assessment of the constitutional conformity of State aid and reduction of the amount of the contract
concluded before the entry into force of the contested act
140. With regard to the structure of the objections of plaintiffs and the content of the contested
of the Act, respectively. alternative petitem limited novelizujících
the provisions of the Constitutional Court divided the subject of my review on two main
part. In the first place the question of the constitutionality of the reduction of the amount the State
support for contracts concluded before the entry into force of the contested act
(article. (II) the contested act). The second part presents an assessment of the
the constitutionality of a one-off tax on State aid, which was entitled in the
2010 and which was remitted stavební spořitelna after 31 December 2006. December 2010
(Amendment of the Act on income tax article. (III) the contested act). The constitutional
the court first stepped up to the first assessment of these questions.
VII./a
The diction of the contested provisions of the article. (II) Act No. 348/2010 Sb.
141. The subject of the assessment of compliance with the constitutional order in this section is
transitional provisions article. (II) the contested act, which reads as follows:
"The provisions of section 10 of the Act No. 96/1993 Coll., as amended, effective from the date of acquisition
the effectiveness of this law, shall apply to the contract on building savings without
regardless of the date when the contract was concluded. This is without prejudice to the claims of
on State aid arising before the date of entry into force of this Act. ".
142. This text is necessary to add that section 10 of the law on building savings
It lays down the General conditions for entitlement to state aid, the way
its provision and its amount. The contested Law, this provision was
changed the way that the amount of the advance in State aid was reduced from 15%
on 10% of the amount saved in the calendar year, bounded to this
the purpose of the maximum amount of 20 000 Czk. This reduction shall according
of the transitional provision shall apply in relation to all contracts
building savings, regardless of the date of its conclusion.
143. In a similar range as a result of article. (II) the contested act applies
on all contracts and section 10, paragraph 1. 4 of the law on construction savings, as amended by
effective from 1. January 1, 2004. According to this provision, the amount of savings
more than 20 000 Czk in one year in terms of the assessment of claims
participant to state the following year transferred to the savings only
in the event that the contract will contain a statement that the
in the framework of this agreement calls for the granting of State aid, and this
the Declaration must not be a participant for the duration of the Treaty change. This condition
While not yet extend to contracts concluded until 31 December 2006. December 2003,
as in the meaning of the transitional provisions of article. (II) Act No. 423/2003 Coll.,
on these contracts not yet covered by the text of section 10 (1). 3 of the law on building
savings, in the original language (or identical wording of section 10, paragraph 4, of the
the Act, as amended by Act No. 83/1995 Coll.), which was not possible
the transfer of the amount exceeding the maximum amount of the basis for the calculation of the State
support (at that time 18 000 Czk).
VII.
In General, the constitutional ban on retroactive principles and legal certainty and
settlement of the conflict of the validity of the old and new legislation
144. the plaintiffs ' Central argument in relation to the contested provisions with
related to their non-compliant retroaktivních effects and the related
intervention in the legal security of participants of building savings. The Constitutional Court in the
his case repeatedly defined the contents of the concept of right and wrong
retroactive (retroactive) laws (cf. in particular find
SP. zn. PL. TC 21/96 on the detailed justification in this
the context reference and cite the part of the appellants, and extensively on
also find from day 12. March 2002, SP. zn. PL-33/01, N 28/25 SbNU
215, 145/2002 Coll.). On the right is the retroactive effect in the case that the
the legal standard acts the emergence of legal relations before its effect for
the conditions, which afterwards, or if there is a change
legal relations arising under the old legislation, even before the
effect of the New Testament (cf. Still, for a time the scope of the amendment
of the civil code. A lawyer, No 12, 1984, s. 1104, a walk, and.
The basics of the intertemporal law in relation to section 5 of the identity. Cust., Brno,
in 1928, with 70, Tilsch, e., civil law. The general part. Prague, 1925, s.
75). In the case of false, although a new law retroactive shall not constitute the legal
the consequences for the past, has in the past, however, legally
qualifies as a condition of future legal effect or for
the future of legal consequences based as it modifies the earlier
legislation (cf.. Walk, and. Retroaktivita laws. in the dictionary
public law. St III, Brno, 1934, p. 800, Tilsch, e., Civil
the right. The general part. Prague, 1925, p. 78).
145. The Constitution does not contain an explicit prohibition on retroactive laws
for all areas of the law, however, the principle of the rule of law
According to the article. 1 (1). 1 of the Constitution, whose characters include the principle of legal
the security and protection of the citizen's confidence in the law (cf. the award of 8 June
1995 SP. zn. IV.-215/94, N 30/3 SbNU 227, finding of the Constitutional Court
The Czech and Slovak Federative Republic of 10 June 1999. December 1992 sp.
Zn. PL. ÚS 79/92; SB. n. and the TC of the CSFR, 1992, no. 15). This prohibition shall
in principle, only applies to cases of right, not retroactive
retroactive false. Then that type of retroactive, however, is
generally admissible. The content of this ban as a constitutional principle, at the same time
There is no exclusion of any reverse action of legal standards, but only
such that at the same time represents the intervention into the principles of the protection of trust in
law, legal certainty, or acquired rights (cf. find SP. zn. Pl. ÚS
21/96; find of the day 13. March 2001, SP. zn. PL. ÚS 51/2000 N 42/21
SbNU 369, 128/2001 Coll.; find of the day 6. February 2007, SP. zn. Pl. ÚS
38/06, N 23/44 SbNU 279, 84/2007 Coll.). Only in this case is
the legal standard is inconsistent with the article. 1 (1). 1 of the Constitution. At the level of the constitutional
Okay, this can be a starting point at the show and on the text of the article. 40 paragraph. 6
The Charter, which the retroactive effect in favour of the right of an individual even
explicitly admits. According to this provision, provided
different adjustments at the time of committing a criminal offence and at the time of
deciding it assesses this act according to the law, which is for
the perpetrators of the more profitable.
146. These principles are also the criterion for any
admission exemptions from the prohibition right retroactive, some of which in
his case was adopted and the Constitutional Court. For example. in its
finding SP. zn. PL. TC 21/96 said that the legitimate confidence in law (in the
the stability of the legal system) cannot be considered in the case where a legal entity
must, or had to with retroactive regulations count. In such a situation
called the action of legal standards, standing in stark contrast with the essential,
generally recognised principles of humanity and morality. He left but also on the legal
the view that "retroactive law on civil conditions would be
possible to justify whether or not the public policy (ordre public), especially
If they were without prejudice to the mandatory rules that absolutely were released in
due to a certain limit values in society, the transition of the situation "(quiet, L.
cit. According to section 144, p. 1102). For another example, the admissibility of the right
retroactive marked the neaplikování legislation on the fact
that occurred at the time of its effectiveness if the Constitutional Court stated
lack of such legislation with the constitutional order and the application
This legal regulation in a vertical relationship, i.e., the legal
the relationship between the State and the individual. exceptionally in relations
horizontal, would lead to a violation of the basic rights of the individual (cf..
find of the day 18. December 2007 SP. zn. IV.-1777/07, N 228/47 SbNU
983, paragraph 19, the award of 8 June. July 2010 SP. zn. PL. ÚS 15/09,
244/2010 Coll., paragraphs 53 and 54).
147. While the right retroaktivita the legal standards is only permissible
exceptionally, in the case of retroactive false can be concluded its General
admissibility. In this case, admits legal theory, conversely, exceptions,
When a retroaktivita just with regard to the principle of the protection of trust in
the right is not permissible. Of such a situation, it is the case that "is
the hit to the confidence in the substance and significance of the legislative
the desire for the public does, or does not reach the interested individuals on the
the continued existence of the earlier rights "(Pieroth, b. Rückwirkung und
Übergangsrecht. Verfassungsrechtliche Maßstäbe für intertemporale
Gesetzgebung, Berlin, 1981, pp. 380-381. Furthermore, the decision of the
The Federal Constitutional Court of 19 December. December 1961 SP. zn. 2 BvR 1/60;
BVerfGE 13, 274, 278). This view is also reflected in the settled case-law
The Federal Constitutional Court, according to which it is a retroaktivita in the
accordance with the principle of the protection of trust in law, if it is appropriate and
necessary to achieve the objective pursued by the law and in the overall measurement
"disappointed" the confidence and the importance and urgency of the reasons for the legal changes will be
maintain the limits (cf. the decision of the Federal Constitutional
of the Court of 7 July. July 2010 SP. zn. 2 BvL 14/02, paragraph 58).
148. In connection with the question of the admissibility of retroactive is false
necessary to mention also the concept of the protection of legitimate expectations, the relevant
the essence of the property interest, which falls under the protection of the article. 11. 1
Of the Charter and article. 1 of the additional Protocol (cf. find SP. zn. PL. ÚS 2/02;
find of the day 1. July 2010 SP. zn. PL. ÚS 9/07, 242/2010 Coll., points
80 et seq.) This provision establishes the right of everyone to peacefully enjoy your
assets. According to settled case-law of the European Court of human rights is
While the concept of "property" contained in that provision must be interpreted as
It has autonomous scope, which is not limited to the ownership of tangible assets
and does not depend on formal qualifications in national law (judgment of
22 December. June 2004 in complaint No 31443/96-Broniowski against
Poland, paragraph 129). Can include both "an existing asset", so
assets, including receivables, on the basis of the complainant
may claim that at least has the "legitimate expectations" to achieve
a particular use of ownership rights. The Constitutional Court on this principle in
accordance with the case law of the European Court of human rights stated that "from it
clearly stands out as a concept of protection of legitimate expectations
property of the claim, which was already a individualizován Act, or
individualizovatelný is right on the basis of the legislation "(award of the day
March 8, 2006, SP. zn. PL. ÚS 50/04 (N 50/40 SbNU 443, 154/2006 Coll.
also find SP. zn. PL. ÚS 2/02). To the violation of article. 1 of the additional protocol
may also occur on the part of the legislature to change the law, if there is
to prevent the acquisition of the assets of certain entities spoke
legitimate expectation (see find SP. zn. PL. ÚS 2/02).
149. The Constitutional Court finally recalled its conclusions contained in the finding of sp.
Zn. PL. TC 21/96, under which is the abolition of the old and the adoption of new legal
modifications necessarily linked with the interference to the principles of equality and protection of trust
the citizen in the law, to which, however, occurs as a result of the protection other
the public interest or the fundamental right or freedom. The decision of the
the legislature about how to resolve time conflicts of old and new legislation
but not from the constitutional point of view things random or arbitrary things, but
things considering standing in the conflict of values. The conclusion about the kind
the legislative solution time conflict of laws should lead
the assessment of that conflict of values consideration of proportionality with
regard to the intertemporalitu. Proprocionalitu can be described as,
the higher the degree of intensity of public interest, or the protection of the fundamental
human rights and freedoms, warrants a greater degree of interference with the principles
equality and the protection of the citizen's confidence in the law of the new legal regulations. Restrictions
the basic law must be within the meaning of article. 4 (4). 4 of the Charter to save
its essence and meaning. When you assess how legislative solutions
referred to the time of collision, so their role plays not only a measure of the differences
the old and the new legislation, but also other facts, such as the social
the urgency of the introduction of the later referred to the legislation.
VII./c
Eligible for State aid under the effective legislation until 31 December 2006. December 2010
150. the right of the participant to the building savings, which is a natural person,
State aid is not the claim of its contractual relationship with the building
Savings Bank. Although this Treaty represents the condition of its creation, it is
the claim against the State, which is based directly on the basis of the law on
building savings. This law provides for the conditions for doing so, only the emergence of
of that claim, but also two related claims against participants
Building Savings Bank, which is under section 11 (2). 2
the law on building savings eligible participants to the State applied.
151. the State under section 10, paragraph 1. 1 of the law on construction savings provides
State aid in the form of annual advances, the amount of which is derived from the
the amounts actually saved in the relevant calendar year. The first of the
referred to relates to crediting participant claims annual advances in State aid
on his account. Building society submits a written request for
The Ministry of Finance shall be entitled to payment of this advance collectively for all the
participants always after the expiry of the calendar year. The exceptions are only
the participants on the basis of the contract on building savings concluded before the
effect of Act No. 423/2003 Coll., who completed the construction savings in
the first half of the calendar year, as in the case of calls for building
Savings Bank for the payment of State aid to the 30. June of the calendar year
(article. (II) point 2 of the Act No. 423/2003 Coll., in conjunction with § 11 (1). 3 the law on the
building savings, as amended by Act No. 83/1995 Coll.). Then, what was her
the State is obliged to support the individual made the advance of State aid
register on the accounts of the participants. The provisions of section 12(2). 2 of the law on
building savings then lays down next to stavební spořitelna
a related claim, and on the payment of advances on State aid. This claim is
subject to the condition that the tenderer for a period of 6 years from the date of conclusion of the contract
either uspořenou or amount in this period, the contract of
loan from building savings and uspořenou the amount of funds
This loan and advances on State aid apply to the residential needs (in this
the case is the possibility to ask for a loan usually tied to some
time in the general terms and conditions forming part of the Treaty of
building savings). The fulfilment of these conditions, checks the building
Savings Bank.
152. the definition of these two claims reflects the way the payment of State
the aid, however, does not change the fact that the claim of the participant on the State
support is directed only to the State. In this respect, the law lays down that the State
not as a whole provides support for the entire period of time savings, but
continuously in the form of annual advances, the amount of which is determined by the actual
the amount saved in the relevant calendar year. This fact encourages
the conclusion that the concept of entitlement to state aid, it is only the designation for a summary
separate claims on State support for each of the calendar years.
Even while the law uses the concept of entitlement to State support in some
its provisions (e.g., § 5, paragraph 11, section 10 (4)), its content on
no place closer does not define. Conversely, you can point out the terminology,
He uses the law on building savings on other places. For example.
the provisions of section 4, paragraph 4. 3 expressly lays down a condition for entitlement to
State support for the calendar year. The provisions of § 11 (1). 2
This law regulates the way even a claim of the participant on
advance payment of State aid on the expiry of the calendar year.
The latter claim cannot be confused with an entitlement to payment of the
State aid pursuant to section 12 paragraph. 2 of the law on construction savings,
who may apply for State aid as a whole, however, concerns the
the payment of the advances already made by the building society.
On the basis of the above provisions and the law on construction scheme of the
savings, so the Constitutional Court said the interpretation according to which it is to be
claims for State aid to be assessed separately in relation to a particular
to the calendar year. Such a claim is identical to that of the law
defined in section 11 (1). 2 as the claim of the participant on the advance payment of State
the aid.
153. the application referred to the right of the participant to the State of the parties
Stavební spořitelna occurs by filing the relevant application to the Ministry of
Finance. If this application is granted, the Ministry of advance
Stavební spořitelna, which is credited to the accounts of participants. Shall be entitled to
State aid is a claim against the State, but will meet their
the obligation already pointing out the relevant amounts stavební spořitelna. These
the amount will be recorded only on the account of the participant, without having to become
his own income. It had become to their payment, if
the conditions will be met for entitlement to the payment of State aid
under section 12, paragraph. 2 of the law on building savings.
154. According to the effective legislation until 31 December 2006. December 2010 participants
building savings, provided that they fulfil other statutory
conditions, be entitled to the annual State aid for your account
in the amount established by law at the time of the conclusion of the contract (cf..
transitional provisions article. (II) point 2 of the Act No. 423/2003 Coll.). According to the
the original wording of section 10, paragraph 1. 2 of the law on building savings amounted to
backup provided State aid to 25% of the amount saved per year
However, the maximum amount of 18 000 Czk. The amendment made by Act No.
423/2003 Coll., the amount of the advance in State aid was changed to 15% from a year
This time, however, the amount of money saved, up to a maximum of the amount increased to 20 000
CZK. However, this change is only to contracts concluded after 31 December 2006. December
2003, as those past the amount of annual State aid
maintained unchanged. The maximum amount of such annual backups so
amounted to Eur 4500 in contracts to 31. December 2003 and $ 3000 for
contracts entered into after that date.
VII./d
Its own review of the article. (II) the contested act in conjunction with section 10, paragraph 1. 2
the law on building savings
155. The provisions of article. (II) the contested act in conjunction with section 10, paragraph 1. 2
the law on building savings, in the wording of the contested act, operates the effects
false-retroactivity because it occurs in the future to change the content of the
the legal relationship between the participant and the State of the building savings loan.
156. This relationship arises the contract on building savings, if
a natural person who applies for the granting of State aid. His
the change is the determination of the amount, which should be in the
each year the duration of entitlement to building savings loan
participant to state aid, or to the annual State of the backup
the aid. As a result of that transitional provisions are in fact
reduction in the amount of annual State aid to which are entitled, after
31 December 2010, for all the contract on building savings, regardless of
on the date of its conclusion. However, this change will not affect claims on the State
support (or claims to payment of State aid) for the previous
calendar years since these claims were incurred by complying with the statutory
conditions at the latest on 31 December. December 2010 before the effectiveness of the contested
the law. In the same way, the change will be reflected also in the claim of the participant
against payment of the stavební spořitelna on State aid as a whole, since
This will consist of its annual advances in the amount of the remitted as provided for in
the existing legislation of the specified under the new legal
editing.
157. But if the Constitutional Court came to the conclusion about false retroaktivitě
the contested provisions, also had to deal with the question of its
admissibility. Although it is a fundamentally retroaktivita permitted
cannot be a priori excluded that with regard to the principle of legal certainty and
the protection of trust in the law outweighs the interest of individuals to further the duration of
existing laws over the legislature expressed public interest in
her change. The Constitutional Court therefore had to determine whether, on the side of the participants,
who have concluded the contract on building savings until 31 December 2006. December 2010, is not
given such a constitutionally relevant interest in maintaining the current law
set the amount of the State aid, which would be the measurement of
prevail over the public interest on its reduction. Such interest which
generally cover all building savings, but participants in the case
did not find.
158. The appellants formulated several reasons (possibly identify with
the reasons contained in the opinion of the Czech Association of building societies)
for the preservation of the existing legislation. In its proposal, underlined the
request its stability with regard to the long-term nature of building
savings, the experience of legislative solutions under article. (II) point 2 of the Act
No 423/2003 Coll., as well as the potential negative impacts on the individual
the position of the individual participants, in particular the deterioration of the building savings loan
evaluation of their savings, or extend the time savings in relation to the
attain the target amount (which is established interest subsidies) and time
the possible duration of the bridging loan and the obligation to pay interest from him.
After consideration of these reasons, the Constitutional Court could not, however, the argument
the plaintiffs ' přisvědčit.
159. In general, the Constitutional Court finds that the determination of the contribution of
the State budget for a specific purpose and for a specific group of individuals depends
always on, to what extent is on the part of the legislature found its
the effectiveness, or the public interest in its provision. This is particularly true in the
When it is a post whose provision is only
beneficiem on the part of the legislature, without at the same time with him has been associated
the fulfilment of a fundamental right or freedom. The concerned bodies
in doing so, they could not rely on that over time this amount of
will not reevaluate. Not forgetting the responsibility of the Government or related
and Parliament for the State of the public finances, which is related to permissions
customize the expenditure of the State budget, the legislature of its real possibilities
and the current needs in the form of amendments to the regulation of entitlement spending,
State aid.
160. From the definition of the target amount under section 5 (3). 9 of the law on construction
savings, for which purpose (even if with the option to change) occurs when
the conclusion of the contract for the entire period of its duration, it follows, that to her
the above reflects the estimated amount of the aid determined in accordance with the laws of the State
regulations effective at the time of conclusion of the contract. From the target amount is then
depends on the amount of the so-called. a bridging loan, which under section 5 (3). 5 of law
the participant can provide in building society, where this
still does not have the right to grant a loan from building savings. The constitutional
but the Court observes, moreover, that the listed amount of State aid without
next only to the structure of the target amount. Without
While any intention to relativize the plaintiffs ' objections, that this
the change may reflect the de facto borne by some of the participants of the construction
savings or building societies (e.g., to a lesser extent the financial
resources for the provision of the loan and the related extension of the waiting
time on its provision), the fact remains that by changing the amount of State
There is no support for changing the Treaty laid down the target amount, or the rights and
obligations of the parties to this agreement are bound to this amount. Change
in relation to the target amount translates into only that to her
the achievement, participants will have to set aside the amount of building savings loan
plus the reduced portion of State aid, that is, to a greater extent than with
regard to its current level of expected. This is a consequence of the de facto
but from the standpoint of the principle of legal certainty and the protection of trust in the right
necessary to build an equal footing with the situation just relying on it, that the State
support will not be changed in the future. Such trust but of the constitutional
the perspective of the protection of the grant.
161. Finally, the Constitutional Court did not consider it relevant or ústavněprávně
voucher for that, in the case of the amendment made by Act No. 423/2003 Coll.
the legislature chose a different way of solving the time of conflict of laws,
When in relation to old contracts left the amount of State aid
unchanged. Of course, the legislature could decide for other
the solution, if the solution is not in conflict with the constitutional order.
The contested provision thus does not constitute inadmissible wrong
the retroactive effect, therefore, the Constitutional Court did not find the reason for the finding of a violation of
the principle of legal certainty and the protection of trust in the law referred to in article. 1 (1). 1
Of the Constitution.
162. Recognizes the Constitutional Court did not consider the objection or unjustified
differentiation between the participants of the construction savings, which consisted in the fact that
in the case of contracts concluded by 31 December. in December 2003, a reduction in State
about 56% of the aid, i.e. from 4500 to 2000 Usd, while in the case of contracts
closed from 1. January 2004 to 31 December 2004. December 2010 only about 33% of the
3000 CZK to CZK 2000. A violation of the principle of equality, according to the Constitutional
the Court was only in case that the new determination of the amount of the annual advance
It was a manifestation of arbitrariness on the part of the legislature in the differentiation of the operators and
rights (cf. find dated 25 June 2002, SP. zn. PL. ÚS 36/01, N 80/26
SbNU 317, 403/2002 Coll.). However, if the legislature decided in the future
align the amount of State aid for all the participants of the construction savings,
cannot be any differentiation in nominal or percentage range
the reduction compared to the default amount considered as unfounded or without further for
arbitrary. This disparity is only a necessary consequence of this measure.
163. the last objection of plaintiffs in relation to the article. (II) the contested act
concerned violations of the rights of the owners of construction savings banks to business.
According to the article. 26 paragraph. 1 of the Charter is guaranteed the right to each business and
to engage in other economic activities, and this right can be
Sue only within the limits of the implementing laws (cf. e.g. find SP. zn.
PL. ÚS 45/2000 of 14 February 2000. February 2001, N 30/21 SbNU 261; 96/2001 Coll.).
According to the Constitutional Court, this provision shall not preclude the legislators take
such changes, which affect the existing conditions laid down by law
for the business in a certain area. The change under consideration in doing so does not constitute
intervention in the nature and the meaning of this law, and neither the appellants in this
the context did not declare any relevant arguments. Building societies
must reckon with the fact that the amount of State aid is not immutable and that in
the future will be to change, which is a must in this case
Customize. Due to the new addition, the amount of State aid, the Constitutional Court
He does not hold the view that, from the perspective of the right to entrepreneurship was a change of
major, or a change that would make it possible to attribute a strangling effects.
At the same time, he adds, that at this point it is not for him to evaluate the General
the risk of objection related arbitration of disputes of parties
the concerned foreign owners of building societies.
VII./e
Its own review of the article. (II) the contested act in conjunction with section 10, paragraph 1. 4
the law on building savings
164. The Constitutional Court, in the context of the review of the article. (II) the contested Law dealt with the
further arguing concerning its retroaktivních effects, in
conjunction with section 10, paragraph 1. 4 the law on building savings. For completeness it should be
noted that the appellants do not raise this objection in its original
the proposal, however, was included in the expression of the Czech Association of building
savings, proponents should identify themselves.
165. The law on building savings in its original form allowed
the amount exceeding the maximum amount of savings from which to calculate the amount of the
State aid (then 18 000 CZK), without limitations transferred to the following
of the year for the purpose of assessing the claims of the participant to state aid. From
the effectiveness of the amendment to the law on building savings no 423/2003 Coll. has been
the possibility of such a transfer conditional on the party building
asked about the savings the granting of State aid in the Treaty when it is
the conclusion and this statement has not been changed for the duration of the contract. This
the condition is, however, concerned only contracts concluded after 31 December 2006. December 2003. Up in the
as a result article. (II) the contested act occurred in the future to extend the
all of the contract on building savings, regardless of the date when the
closed.
166. In this case, the contested provision operates only with the effects of
false-retroactivity. In the case of participants who contracted to
December 31, 2010, is to change the legal relationship between them and the
State, this change will not affect entitlement to any State aid, the
the backup for the past years qualify just as a result of the transfer of
certain amounts in the following years, and cannot be applied even on
exceeding the amount for the period until 31 December 2006. December 2010 as against it,
still apply existing legislation, and, therefore, is transferred for the purpose of
assessment of the eligibility of the participant on the State support to the following year.
The change is so touches only the amounts of savings for the period prior to the
the effectiveness of the contested Law, which would be after the conversion to the current year
exceeded the maximum amount of savings, from which you can specify the amount of the annual
the advance of State aid. This amount will stay on as part of the savings
the building savings account at the Subscriber without the ability to convert. Even in the
this case, however, cannot be under the protection of the principle of trust in the right to qualify as a
any expectations of the participants, that this amount will be during the next
years of paid State aid of a certain amount. The Constitutional Court therefore in
This point did the conclusion of inadmissibility false retroactive.
VIII.
Assessment of the conformity of the law on constitutional changes to income taxes, which
provides for a special tax on State support of building savings for the year 2010
in the amount of 50% of the
167. The contested law to its article. (III) amends the law on taxes
revenue in a way that provides for a new one-off tax of State
the aid, which was entitled in the year 2010 and that has been
building savings bank after 31 December 2006. December 2010. Prior to the assessment of the opposition
the plaintiffs ' Constitutional Court considers it necessary to define the content of the
taxes, as well as some general criteria for the review of the constitutionality of taxes.
VIII./a
The diction of the contested provisions
168. The Constitutional Court went to the assessment of the plaintiffs ' objections to the content
the contested law with regard to the reasons for the postponement of the award,
amending this law repeals. For this reason, recalls that the subject of the
his assessment in this section is still this law, not individual
the amended provisions of the Act on income taxes, as defined in
any small print. For the purpose of clarity, the part of the
the contested Law, however, the Constitutional Court considers it appropriate to include the text
in the form of the amended provisions of the Act on income taxes. There, where the
the proposal applies only to the part of the provisions, it is additionally
listed. The provisions of the Act on income taxes, as amended by article novelizovaném.
(III) the contested act reads as follows:
"section 4
Exemption from taxes
(1) the exemption shall be
...
with the contribution of natural persons) provided under the law governing the
construction savings and construction savings State support ^ 4a), with the exception of
the contribution, which was entitled in the year 2010 and that was remitted to the
building savings bank after 31 December 2006. December 2010,
...
§ 8
Income from capital
(2) income from capital will further consider
...
(c) the contribution of the individuals provided) according to the law governing the
construction savings and construction savings State support ^ 4a)
qualify in 2010 and which was remitted to the building savings bank after
31 December 2010.
(3) the revenue referred to in paragraph 2 (a). and (c))) ... they are separate
the taxable amount for taxation of the special tax rate (section 36).
(4) Accrue if the revenue referred to in paragraph 2 (a). and (c))) ...
resources abroad are unimpaired by the expenditure of the taxable amount (partial
the basis of the tax). ...“
[In section 8, paragraph 3 and 4 of the law on income tax, is the subject of proceedings only
part defined by the words "and (c))"]
"§ 36
Special tax rate
(8) the contribution of natural persons under the law governing the building
savings and construction savings State support ^ 4a), on which the entitlement
in 2010, and that was remitted to the stavební spořitelna after 31 December 2006. December
2010, is subject to withholding tax under the special tax rate of
50%. ".
169. the text of the said Constitutional Court adds that article. (III) point 1 of the contested
the Act has provided just the new wording of section 4, paragraph 4. 1 (a). with tax) Act
income, but it occurred to the cancellation of the original version of this provision,
which were from the tax on the income of natural persons shall be exempt from the "interest
deposits of building savings loan, including interest from the State aid under
Special Act. ". These interests are so from 1. January 2011 taxed
as income from capital.
VIII./b
The basic starting points for the assessment of the constitutionality of the tax
170. The Constitutional Court in its case-law repeatedly expressed to
the criteria of the review of the constitutionality of taxes. The provisions of the article. 11. 5 Charter
contains constitutional empowerment of the Parliament to determine the taxes and charges,
at the same time, however, the constitutionally aprobuje restrictions of ownership rights, to which in
connection with their determination, assessment and selection occurs (cf..
find of the day 1. June 2005, SP. zn. IV. the TC 29/05, N 113/37 SbNU 463).
The tax is imposed in the public interest, which is to obtain income
the State budget for purposes connected with the fulfilment of the functions of the State (find
of 21 April 2004. April 2009, SP. zn. PL. ÚS 29/08, N 89/53 SbNU 125; 181/2009
Coll., paragraphs 40 and 41).
171. In the assessment of the restrictions of the basic law to possess the assets referred to in article.
11. 1 of the Charter for the purpose of determining the tax assessed by the Constitutional Court in the
first of all, whether this restriction occurs on the basis of the law and in its
the limits (cf. find of 11 October 1995 SP. zn. PL-3/95, N 59/4
SbNU 91, 265/1995 Sb.; find of the day 22. March 2005, SP. zn. Pl. ÚS
63/04, N 61/36 SbNU 663, 210/2005 Coll.). In addition, the tax obligation
compete in terms of the test, therefore, the exclusion of extreme disproporcionality
intervention in the title must not lead to such a fundamental change
assets of the entity that would "thwart the same
the nature of the assets ", IE. to the "destruction of property" of the taxpayer
(cf. find dated August 13, 2002, SP. zn. PL. ÚS 3/02, N 105/27 SbNU
177, 405/2002 Coll.), or that "the boundaries of public compulsory
financial individual to the State acquired restrictor (rdousícího)
the action "(from 18 August 2004, SP. zn. PL. ÚS 7/03, N 113/34
SbNU 165, 512/2003 Coll.). It also must not be in conflict with the constitutional
the principle of equality, and as neakcesorické, resulting from the requirement
the exclusion of arbitrariness in the distinction between operators and the rights referred to in article. 1 of the Charter,
and akcesorické in the range defined in the article. 3 (3). 1 of the Charter (cf..
the findings of the SP. zn. PL. ÚS 7/03 and SP. zn. PL. ÚS 29/08, point 43, find
The Constitutional Court of the Czech and Slovak Federative Republic SP. zn. Pl. ÚS
22/92).
172. For the determination of tax liability shall apply the requirements arising
the principle of the rule of law in accordance with article. 1 (1). 1 of the Constitution, which is generally
subject to the legislation. In particular, the requirement of
certainty, the principle of legal certainty and the prohibition on retroactive (for its contents
see section VII./b Award).
173. For the definition of the constitutional criteria for the determination of taxes, the constitutional
the Court refers to the above cited findings, in particular the findings of SP. zn. Pl. ÚS
7/03 and SP. zn. PL. ÚS 29/08, while the next will deal with only their own
a review of the contested tax obligations.
VIII./c
The construction of the contested tax
174. The provisions of section 8 (2). 2 (a). (c)) of the Act on income taxes, as amended by
the contested act, provides for a one-time tax natural
persons, which is the subject of State aid, which was entitled in the
the year 2010 and that was remitted stavební spořitelna after 31 December 2006. December
2010. In terms of defining the subject of the tax is to be noted that the concept of
"the contribution of the individuals ... that qualify in 2010"
indicates with regard to state aid for entitlement for that
the calendar year.
175. The tax obligation on this state aid applies only in
If its remittance stavební spořitelna occurred after 31 December 2006.
December 2010. This condition is important from this point of view, that in the case of
the participants, who contracted to 31. December 2003 and completed
building savings in the first half of calendar year 2010, the
making backups of State aid stavební spořitelna still in 2010
(cf. point 151). This fact follows not only from the relevant time-limits for
the application of the State aid and the granting of advances, but it corresponds,
as the Constitutional Court from publicly available basic indicators
the development of building savings for each of the quarters of the year 2010 (according to the
the website of the Ministry of finance, URwww.mfcr.cz), and the increase in real
the State aid paid between 3. and 4. quarter of 2010 of approximately
0.5 billion. CZK. State aid poukázaná stavební spořitelna in this
the period is not subject to tax.
176. The tax is levied by deduction in accordance with special rates at the rate of 50%, with the
the tax payer is the Ministry of finance as a provider of State aid.
The tax occurs simultaneously with the reference state aid for
the year 2010, as a result of which it no longer receives the building society of after
taxation. A special feature of this construction method of paying taxes is that the
the chamfer of the tax occurs, regardless of when and whether the poukázaná State
support actually becomes a participant's income. This occurs because
the payment of State aid (not crediting an account) from the
building societies. If you would, meanwhile, disappeared right participant
State aid registered on his account, building society
required to return this amount just equal to what it was from the
The Ministry of finance, the amount remitted after the chamfer of the tax.
177. Finally, the Constitutional Court notes that according to section 4, paragraph 4. 1 (a). t)
the law on income tax, in the version effective until 31 December 2006. December 2010 was
State aid as a contribution from the State budget under the Special
the law shall be exempt from tax. The contested Law, although no change
This provision, the new wording of section 4, paragraph 4. 1 (a). with tax) Act
revenue, however, was State aid exemption expressly provided that
but it does not apply to state aid, which was entitled in the year 2010
and that has been building savings bank after 31 December 2006. December 2010. Enumeration
income which are exempt from taxes, was modified with regard to the new
an exceptional tax.
VIII./d
Your own review of tax obligations
178. By the contested act does not directly to reduce the amount of the advances of the State
the aid for the year 2010, because it remains formally on preserved in
the same amount. If the legislator decided for her spot reduction
could do this either by changing the amount of State aid with determination
effectiveness for the year 2010, which would undoubtedly have been in breach of the prohibition
right retroactive, or proceed to additional change of content already
the resulting claim in the case of those savings, participants who
they are entitled to state aid for the year 2010, this however has not yet been
remitted. The legislature did not elect either one of the above options, direct
but a set of State aid for the year 2010 special withholding tax
for those parties which have not yet been remitted by the building
Savings Bank. It reached the same effect, which would lead to additional
reduction in the duration of claims on the question of State aid.
179. The Constitutional Court on this site in no way does that revenue
provided from the State budget or other public budgets can
be subject to tax liability. It eventually also the law on taxes
the income, which a number of such income shall be exempt from the tax [see e.g. § 4
paragraph. 1 (a). I) or t) of the Act, as amended]. The purpose of the
taxation, however, in this case differs from the taxation of the income, other
as it does not lead to the strengthening of revenue of the State budget. In its
Basically this is an indirect form of reducing its expenditure, respectively.
the above, as part of its expenses through the remains in the
the State budget or returns. Such a form has its
importance especially if it is linked to some other purpose (e.g..
expression of equality of status of the State and other entities in certain
legal relations). Its use would be expected in the context of
the overall definition of the specific implementation of the State budget, that its
the resulting amount reflected the purpose pursued by its provision. If it is indeed
the contribution from the national budget provided for a specific purpose, it should
be the amount of the tax from this post was established in the context of the determination of the
the amount of this contribution, because otherwise this post would not have to meet
the anticipated purpose.
180. Without in any way the Constitutional Court assessed the amount of State aid can be
assume that the legislature originally specified in the beliefs of its
fitness for the achievement of the purpose, and under current consideration
its load-bearing capacity in terms of the possibilities of the State budget. Part of the determination of the
This amount was also state aid exemption from income tax
natural persons. The Constitutional Court does not hold the view that the reduction of
State aid and its subsequent taxation can be generally considered as
identical measures, and is aware of the wide degree of discretion which
the legislature has in determining the tax obligations. In the considered
things but encountered the contested law to determine the lump sum withholding tax
a contribution from the State budget, on whose credit in specific
the amount of the entitlement, itself, however, still does not become tv
participant. This tax liability from an additional reduction of
entitlement to state aid, with effects in the future, therefore, the second of the above
mentioned alternatives differ only by their designation and represents
direct reduction of already generated entitlement to State support. Form of tax
withheld by the Ministry of finance directly at
making State aid without was built for sure, whether
the present income of a participant at all, this conclusion only
confirms. For the above reasons, therefore, the Constitutional Court has considered that the
determination of the tax liability has changed the legal relationship between the
State and a participant in the construction savings, part of which was entitled
participant on payment of State aid for the year 2010. This legal relationship
so cannot be regarded as independent and unrelated to any legal
relationship resulting from the obligation to pay the tax of State aid, but
on both, it is necessary to be regarded as a set of rights and obligations that make up the
one whole.
181. The legal conclusion that the tax in question is necessary in the context of the review
consider the constitutionality of a tax, but not for changing the legal claim, with
reflected in the constitutional criteria for its assessment. It is used to a certain
the constitutional principles and the basic law to protect individuals against interference from the
the party of public authority cannot measure this protection to be in one of two
comparable cases lower only because of this that the legislator used the
for the same control of different designation. In the present case cannot be content
tax obligations in relation to the future income of the objective
the State aid to be assessed through the prism of aprobovaného intervention in the
ownership rights. On the contrary, it is necessary to deal with the question of the changes already
resulting from the legal claim of the participants of the building savings at the State
support for the year 2010, and that from the standpoint of the principle of legal certainty.
182. The contested act became effective at the time when the participants concerned shall
building savings already had the legal right to an individualized State
support for the year 2010, because in the course of this year fulfilled all
the Act laid down the conditions for its emergence. It is not decisive that the
at this point, yet there was no reference to this amount from the State
or its payment by the building society. Then, what
the participant has met the conditions for entitlement to State support for the
calendar year, could legitimately expect that just by the State
There is no addition to their change, or to change the claim itself.
This is about expectations, which belongs to the protection both in terms of
the principle of legal certainty and the protection of trust in law, respectively.
the acquired rights referred to in article. 1 (1). 1 of the Constitution, with regard to the material
the nature of the claim referred to in article. 11. 1 of the Charter and article. 1 Additional
of the Protocol. This provision does not apply only to the already had acquired
(existing) assets, but also provides the protection of the legitimate expectations of
the acquisition of such assets (cf. findings SP. zn. PL. ÚS 2/02 and Pl-
9/07).
183. The Constitutional Court therefore had to assess whether further reductions in the
the amount of the entitlement to State support in a specified range in order to reduce
the expenditure of the State budget stands with regard to the legitimate expectations of the
building savings, participants who fulfil the conditions laid down by law,
for its formation. This stage trust in law or legitimate
expectations on the part of the participants while it considers equivalent to those
is determining for the assessment of the admissibility of the retroaktivních effects of the legal
standards. This means that admission to this trust can be accepted
only exceptionally, and for reasons that have been formulated as above
justifying a derogation from the principle of non-retroactivity of the right (item 146).
Because, however, the Constitutional Court in the case did not find no such case,
He came to the conclusion that the tax provided for in some of the provisions of the law on
income taxes, which was supplemented on the basis of article. (III) the contested
the law is in breach of article. 1 (1). 1 of the Constitution, article. 11. 1 of the Charter and
article. 1 of the additional protocol.
184. with respect to the above conclusion on the inadmissibility of an additional reduction of
entitlement to state aid, the Constitutional Court has already addressed the objection of arbitrariness
When determining the rate of tax, or inequality within the Group those participants
building savings, who contracted to 31. December 2003 (point 24
and 151).
IX.
Formulation of propositional and postponement of award
185. The Constitutional Court notes that the contested act was adopted in a manner
which is in conflict with article. 1 (1). 1, article. 5 and article. 6 of the Constitution and article. 22
Of the Charter, and is therefore the reason for its cancellation. At the same time but found
the existence of a reason for the postponement of award to 31.
December 2011. But such a delay would have led to the fact that the
the contested Law was on operational and at the same time the plaintiffs argued and
its content in accordance with the constitutional order, the Constitutional Court and to the
assessment of their substantive objections. In the context of this review, while
found beyond the said derogačního reason also lack essential
part of the article. (III) the contested act with the principle of legal certainty and of the protection of
confidence in the law referred to in article. 1 (1). 1 of the Constitution and at the same time the legitimate
the expectations of the participants of construction savings within the meaning of article. 11. 1
Of the Charter and article. 1 (1). 1 of the additional protocol. This fact with the
regard to the content of this provision, the contested Act excludes, in order to
in relation to the postponement applied. As to the question
collisions occur in this tax period, the Constitutional Court considered
the option to cancel in this part of the law has already been challenged its effectiveness. To
such a step but didn't take, because any publication of this
the finding in the journal of laws after the tax has been struck within the meaning of
the contested act, in the light of the legitimate expectations of the concerned
the participants of the building savings could have an impact on the possibility of the application of the
their entitlement to the payment of State aid for the year 2010 at its full.
Their claim was not affected by the contested act. The Constitutional Court therefore
He went up to the cancellation of this part of the contested act to the date of its
publication in the journal of laws.
186. Thus determined enforcement, but does not apply in relation to point 1
article. (III) to the extent that the contested act, which set aside the section 4, paragraph 4. 1
(a). with) Act on income tax, in the final. In accordance with this
the provisions of the exemption applied to the "interest on deposits of
building savings loan, including interest from the State aid under the specific
of the law. ". Whereas that derogation reasons in relation to the article. (III) the
concerned only his points, which complement the law on income tax on
the tax legislation of the State aid for the year 2010, and not
the abolition of the exemption of the unrelated interest from your income taxes
for natural persons, the Constitutional Court ruled that this provision in this
part set aside until 31 December 2005. December 2011, therefore, the same day as the other
the provisions of the contested Law, which was the reason for the derogation found
only in relation to the legislative procedure.
187. For all these reasons, therefore, the Constitutional Court decided under section 70, paragraph.
1 of the law on the Constitutional Court, as stated in the opinion of the award.
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, took the decision of the Assembly, the judges
Stanislav Balík, Ivana Janů, Vladimir Crust and Dagmar Lastovecká.
