77/2016 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled under SP. zn. PL. ÚS 17/15, 9 October. February 2016 in plenary

consisting of Chairman Paul Rychetského and judges Louis David,

Jaroslav Fenyka, Josef Fiala, Jan Filip, Jaromir Jirsy, Tomas

Too, Jan Musil, Radovan Suchánka, Vladimir Sládečka,

Catherine Šimáčkové, Vojtěch Šimíčka, Milady Tomková, Uhlir and David

Jiří Zemánek on the proposal of the Group of 21 senators, whose name is

Senator Petr Bratský, represented by Prof. JUDr. Aleš Gerlochem, CSc.,

lawyer based Botičská 4, 128 00 Prague 2, on abolition of the provisions of §

3 (2). 2 and section 4, paragraph 4. 2 the Ministry of Justice Decree No. 355/2013

Coll. on the official working hours of the establishment, the labelling and the establishment of the registered office and

on the activities that the insolvency practitioner shall provide in

the establishment, as amended by Decree of the Ministry of justice no. 101/2015

Coll., with the participation of the Ministry of Justice as a party to the proceedings,



as follows:



I. the provisions of § 3 para. 2 the second sentence the words "and its 24/7

physical presence "in the provisions of § 4 para. 2 of the Decree of the Ministry of

Justice No. 355/2013 Coll. on the official working hours of the establishment, the

labelling and the establishment of the registered office and on the activities which the insolvency

the administrator shall provide in the establishment, as amended by Decree of the Ministry of

Justice No. 101/2015 Coll. is lifted.



II. In the rest of the application is rejected.



Justification



(I).



Recap of the proposal and the arguments of the appellants



1. The Constitutional Court was on 24. July 2015 served 21 group

the senators ("plaintiffs") for annulment of the provisions of § 3 para. 2 and

section 4, paragraph 4. 2 the Ministry of Justice Decree No. 355/2013 Coll.

October 30, 2013, the Office hours of the establishment, the labelling of the head office

the establishment and activities of which the insolvency practitioner is obliged to

provide in the establishment, as amended (hereinafter the "Decree").

The contested provisions regulate questions connected with the official time of establishments

insolvency practitioners and their presence in these premises.



2. The appellants submit that the contested Decree puts the fulfillment of the objectives of the

revision of the amendment of the Insolvency Act serious obstacles. Provides that the

the insolvency practitioner must be always present in the establishment, and, therefore,

at that time, cannot engage in any activity, for example. be present on the

hearings. Creator of the decrees considered by the plaintiffs deliberately

puts on the insolvency practitioner such obligations, which it knows in advance

There is no insolvency administrator will not be able to meet. Core filling

every insolvency practitioner according to them is not and has never been inactive

to rely on the premises, but participation in hearings, or

contact with the borrowers when the inventories of property, its liquidation. However,

not on the premises, but where the debtor or his property is located.

The performance of the obligations of the presence in the establishment would in fact coincided with

the fulfilment of a number of other duties which the law of insolvency practitioner

stores. Another limit that the legislator has not defined and which in turn introduces

the Decree, according to the plaintiffs, the prohibition of overlapping official hours in

the premises and the offices, which means that the insolvency practitioner cannot have

overlapping office hours for multiple establishments at the same time. The appellants

they believe that the creator of the Decree so just a sophisticated way

tracks the opposite intention than legislatively expressed the legislature.

The Ministry of Justice will allow this legislature free

the establishment of the establishments of the insolvency administrator, according to their opinion, replaced the

own specific clearance, i.e. to prevent the insolvency administrators

the establishment of the establishments. In this connection, the appellants noted that

Although the Minister of Justice declared that this Decree is fighting

the fictional establishments, however, is no mere adjustment of the Decree counteracting

fictional establishments not engaged, but deals only with establishments such as

such, therefore, with negative impacts on not a fictional establishment.



3. The appellants specifically state that the contested Decree stray from

technique established by article. paragraph 79. 3 of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution"), when the regulatory competence of the Ministry of Justice in

relation to the establishment of insolvency administrators under section 5a paragraph 2. 8

Act No. 312/2006 Coll. on the insolvency administrators, as amended

the changes includes only and only determinations details of office hours

the establishment, the labelling and the establishment of the registered office and on the activities that is

the insolvency practitioner shall provide on the premises. The Ministry of

Justice, however, limits to this legal authorization from the appellants '

significantly, when the text of the provision as § 4 paragraph 2. 2

Indeed, the contested decree established the obligation to act beyond the physical

the presence of insolvency practitioners in the establishment throughout the period of the official

hours. The Ministry of Justice, therefore, in violation of the law lays down the

his decree the obligation of insolvency practitioners to remain continuously

at the time of office hours in the establishment. The appellants argued that this

the obligation of the law on insolvency administrators, which according to them is not apparent

clearly, inferred by the case law of general courts, and it is a conclusion with which he

clearly identifies the Ministry of Justice itself, as

the administrative authority of the supervisory and sanctioning powers gifted yet not considered

violations of the law on insolvency administrators, the fact is located in

the premises of a person different from the insolvency administrator, if it was authorized to

the activities entrusted to and properly empowered. The Ministry of

Justice, therefore, deliberately introducing a decree to a whole new level

legal obligation, which knows it has no support in the law.



4. The appellants also argue that the issue of the decrees of the Executive, is excesem

and not only in relation to the Act, but also the power of the Court. Decree

is in conflict with what it should podzákonná Executive normotvorba

to serve. Its role is not and cannot be the interpretation of the law (in the given

the case law on insolvency administrators). This occurs because

undue interference in judicial interpretation of the law, which has already

filed. According to the Decree of the appellants does not respect the interpretation of the law on

insolvency administrators biased Civil and commercial college

The Supreme Court, the High Court's decision through publication in the

Olomouc, Czech Republic of 27 April. 6.2014, no. 2 VSOL 358/2014-B-17 (posted

as R 91/2014) that's the relevant provisions of the law on

insolvency administrators so that the actual exercise of the activity of the insolvency

Administrator in his mansion and premises (premises) is not subject to

the effective presence of the insolvency administrator. In the opinion of the Supreme

the Court, therefore, of the law on insolvency personal managers

the presence of an insolvency administrator on the premises is not apparent. While in the

the concept of a modern liberal democracy is the judicial power is protected from interference

Executive power, inter alia, that the judge is bound by the law, not only

regulations and decrees that takes executive power. The appellants

conclude that therefore, if an independent Court came to the conclusion that the performance

the activities of the insolvency administrator in his mansion and premises (premises)

is not subject to the effective presence of the insolvency administrator, is the anchoring

the obligations of the personal presence of a Manager attempting to denial of the Democratic

the principle, of the protection of the judiciary from interference by the Executive

the organs of State power. To do this, the appellants add that, even if it can be

the enabling provisions of section 5a paragraph 2. 8 of the law on insolvency administrators

to interpret in a way that confers on the Ministry of justice the competence of save

insolvency Trustees personal presence in the establishment

This would be an unconstitutional procedure for delegating to the Executive Legislative

the power. Only the Parliament is called upon to change the law, and

in a democratic legal State, it is inconceivable that the law was being changed

the authorities of the Executive.



5. The appellants are of the opinion that the Decree violates and the article. 4 (4). 1

The Charter of fundamental rights and freedoms ("the Charter"), by which the

obligations may be imposed only on the basis of the law and within the limits

and just when the preservation of fundamental rights and freedoms. Not only that, in the case of

in their opinion the formal condition is met in the form of legal

mandate, but it is doubtful and, if satisfied the material condition

záležející in the preservation of fundamental rights and freedoms. Compulsory personal

the presence of insolvency practitioners in the premises represents an excessive

interference with their personal freedom and the freedom of movement and residence pursuant to art. 8 and

article. 14 of the Charter. Monitors cited the amendment to improve and ensure the

the necessary expertise in the performance of all the activities of the insolvency administrator in the

during the whole of the insolvency proceedings, then you can have according to the plaintiffs in

that the resources referred to in the Decree (receive documents,

gather documents for insolvency proceedings to allow participants

insolvency proceedings access to the list of registered claims and to

documents, based on which has been drawn up, etc.) will not be pursued by the

the purpose was achieved. The following tasks will be performed at the expense of undoubtedly important


and for the fulfilment of the proper purpose of insolvency proceedings more meaningful

activities consisting in the survey on the situation on the ground and the assets of the debtor

developing the necessary efforts to preserve the operation of the borrower's race, personal

participation in judicial deliberations (which will be able to replace it

Paradoxically, participate in any natural person enjoys the regardless of the

formal education and qualifications) and personal involvement in dealing with

creditor institutions, public authorities and the whole range of what to

its very nature, more sophisticated operations. The appellants conclude that

the task is to perform the duties of the insolvency administrator with professional care and in

the common interest of the creditors (section 36 (1) of the Insolvency Act) so that

There was an as soon as possible and as the highest satisfaction of the creditors

applying the receivables from the insolvency debtor (section 5 of the

prescription). According to their beliefs in conflict with the notion of the Ministry of

Justice is not the task of the insolvency administrator to cater to the auxiliary

administrative work listed in paragraph 4 of Decree. Load

the insolvency practitioner excessive administration is in fact

counterproductive and fulfilling the objectives of insolvency proceedings has made.



6. In conclusion, the Group of 21 senators proposed to the Constitutional Court its findings

the provisions of § 3 para. 2 and the provisions of § 4 para. 2 the contested Decree

set aside.



II.



The observations of the interested party



7. Pursuant to § 69 para. 1 of the law on the Constitutional Court was a copy of the proposal

sent to the Ministry of Justice as a party (as well as

"The Ministry"). In its statement it expressed its opposition to the proposal on the

annulment of the contested provisions of the Ordinance.



8. first, the Ministry stressed that the need to adopt a decree that

should specify the legal obligations regarding the closer the activities that is

the insolvency practitioner in specified office hours in your establishment

shall perform, the details of the opening hours of the establishments and

rules for their labelling, has arisen in connection with the adoption of the

revision of the amendment of the Insolvency Act, which took effect 1. January

2014. In the explanatory memorandum to the amendment, according to the Ministry of audit reports that

with a change in the principle of the determination of insolvency administrators and their list

is related to the change of the new definition of the establishment of the insolvency administrator, which

is essentially a zrovnoprávněna with headquarters. The reaction to the release of now

the contested decree by the insolvency administrators said was from their

the perspective of the pragmatic-increasing the number of establishments in order to increase

the volume of the idea as unjustified. This fact from the Ministry but marked their

larger load in time, the impossibility of personal performance activities of insolvency

Administrator against debtors, and the increase in costs on both sides. From

the case then clearly shows that the insolvency practitioners with a high

number of establishments were not objectively able to all activities

According to the law must competently perform in large quantities

registered establishments to ensure, with the result that there was subsequently

also to the negative interference with the quality of the course of the insolvency proceedings, and

the violations to the law on the insolvency administrators as well as

the Insolvency Act.



9. the Ministry of stated that for the evaluation of the fulfilment of the constitutional requirements

It is significant that the insolvency law and the law on the insolvency administrators

generally contain obligations, from which stems the obligation to personal performance

the function of the insolvency administrator, and, where possible, to

insolvency administrator acted other person expressly provided for

by law. It is not therefore a deviation from the principles of the article. 2 (2). 3 (a). 4

Of the Constitution and article. 2 (2). 2 and 3 or article. 4 of the Charter. From the statutory meaning of

and purpose of the Act and its interpretation in the opinion of the Ministry clearly

It follows that unless stated explicitly otherwise, exists within the

insolvency proceedings the obligation to personal performance activities of insolvency

administrator. Only in the case of explicit adjustments it is possible to consider as the insolvency

Administrator of the Act by another person. The decree after the amendment itself did not

does not provide for other or new responsibilities, which would already have been fixed

by law. The law on the insolvency administrators under section 5a paragraph 2. 4 clearly

provides that the establishment of the insolvency administrator is the place in which the

designated days and hours the insolvency practitioner actually exercises

activity. In the context of § 36 of the Insolvency Act and insolvency

in General, the Act clearly suggests, regardless of the podzákonný text

the Ordinance, personal presence of the insolvency administrator in the

establishment. The actual performance of the activities in the establishment as

Department of means that would be on his premises had insolvency

the administrator (except for the cases envisaged by law, certain of which are

for example. participation in the nařízeném Court, participation in the review of the negotiations and

a meeting of creditors, etc., when it is clear that it will not be in the seat or in the official

hours in the establishment of the present) regularly physically

keep due to the establishment of a disproportionate number of establishments

prevent violations of common interest of the creditors on proper (and in

relation to establishments which meant whether or not personal) performance of his functions. Finally,

This requirement is to be primarily ensured contact insolvency

an administrator with the debtor, in which management was appointed, and conscientious performance

functions with professional care, therefore, in accordance with the law.



10. Namítaný the lack of legal authorization within the meaning of article 87(1). paragraph 79. 3

The Constitution due to the requirement of physical presence of the insolvency administrator in the

establishment for the Office hours is considered by the Ministry for

unfounded. The Decree, as amended by amendment as it only describes the form,

the method of carrying out the duties respectively, does not mandate the new responsibilities over the

the legal framework, which requires a Constitutional Court (find SP. zn. PL.

TC 36/11 of 20 October. 6.2013, paragraph 49), though for certain core test

the enabling provisions can be considered a positive answer to the question whether the

the legal adjustment was applied separately without the implementation decrees.

Given the above, it is possible, according to the Ministry of this question

answered in the affirmative, since, in this case the adjusted revised Materia

Decree no doubt represents one of interpretative variations of itself

the law. The Decree, as amended by amendment specifies the activities and the way in

their performance. Similarly, the finding of the Constitutional Court of 16 December. 12.2008, sp.

Zn. PL. ÚS 28/06, in which it considered the Decree also passed the test

the enabling provisions and under which a prerequisite for assessing whether

podzákonný legislation was issued within the limits of the law, is that of

legal authorization follows the will of the legislature to modify the above legal

standard. Adjustment of the legal standard is according to Ministry in the

the case of just specifying the duties. For completeness it is necessary to

recall that the podzákonná normotvorba has inherently the nature

the completion of the legal rules, which according to the opinion of the Ministry confirmed

The Constitutional Court, for example. in finding SP. zn. PL. ÚS 5/01 of 16 May. 10.2001.

Challenged the Ordinance as amended after the amendment was issued by the Ministry of

Justice, which authority authorised in the provisions of § 5 para. 8 of the law on

insolvency administrators, the only way to conduct business

primarily provided for in laws (the number of hours of presence in the establishment

as a necessary condition for the performance of legal obligations, which must be

carry out personally), and last but not least is the question of the mandate

obvious that this is a sphere in which the legislature gave room for adjustment

in the form of a decree.



11. The Ministry does not agree with the appellants ' outlets on disruption

the principle of separation of powers, since the decree in question does not go beyond the statutory

obligations, the rules specified in it are based on the spirit and purpose of the Act and the

They range in its limits. Due to the fact that the Ordinance and its amendment

It was released under the authority of the law on insolvency administrators,

went through the legislative process in accordance with legislative rules of the Government

and was published in the statute book and elaborates on the obligations laid down

by law, you cannot talk about the disruption of the separation of powers. The Ministry admits

the High Court in Olomouc in case SP. zn. 2 VSOL 358/2014

agreed with the conclusion that the Court of first instance, the actual performance of the activities of the

an administrator at the premises is strictly conditional on its de facto presence in

Office hours. The Ministry, however, believes that when the then

the absence of standardisation only subordinate under consideration has delivered one of the

possible interpretations of the provisions of section 5a paragraph 2. 4 of the law on insolvency

managers. At the same time, however, found as a possible interpretation of the

the Court, albeit on the basis of a simple literal interpretation. The Ministry has for the

the challenge to this interpretation of the purpose and meaning of

the standards, however, have not been given compelling reasons. The interpretation of the Court

the first degree was considered stricto sensu for the contradictory is

by law, the utmost in less suitable in terms of selected practical

aspects (simpler implementation of selected duties of the insolvency administrator).

In other words, even in the case when the case law of the courts

settles on a particular interpretation of the law, cannot be ruled out (within the limits of the law and to


its implementation) followed by podzákonnou by instantiating the standards

through the Ordinance. The opposite approach would, in fact, according to the Ministry, and

priori exclude the possibility of adopting subordinate edit in a different time

the moment than in the immediate parallel with efficiency Act. Later they would

Indeed, any interpretation of the currently applied for the adoption of implementing

the regulation no longer represented a substantive obstacle, which is, however, the reasoning

going completely against the meaning of (detailed) standardisation. To be at the same time

recall that in this case there is no prejudice to the prohibition of retroactive

the legislation, as the Decree, as amended by amendment in no way modify the

(does not specify) scope of the rights and duties of liquidators for the period

prior to its effect.



12. On the question of the alleged interference with the subjective rights

The Ministry said that the right to entrepreneurship is carried out within the limits of

laws (article 26, paragraph 2, of the Charter, including the case-law of the Constitutional Court on it

a follow-up, for example. find SP. zn. PL. ÚS 45/2000 of 14 June. 2.2001),

If some limits, determined by the law itself, it cannot be regarded as intervention

to the contrary, that the rights for his legitimate regulation. It is necessary to

pointed out that the need to be physically present on the premises for a period of

the Office hours of the insolvency administrator in the range of 6 hours per week

in one establishment, therefore, you cannot talk about unacceptable interference with the

fundamental rights or restrictions that should be "strangling" the impact to his

life or profession (it would have to be prescribed a stay of the employee

in the range of 40 hours a week at the workplace as well). In the design of the alleged comparison

with the penalty, according to the Ministry of domestic prison does not have a rational basis.

There is also said to be the truth, that would have been an insolvency practitioner at all times

forced on the premises for its office hours remain. If you have a

to do this, and what the reason is, of course, will

transitional period, physically on the premises (for her official hours)

do not stand. To do this, the Ministry added that under current laws and

editing is not possible, to the insolvency practitioner "chose", which

the activity will perform in person (in the sense of my physical presence),

and which are not. However, if it considers that it is appropriate to some activity that is of

currently obliged to act and which do not have to personally, or vice versa,

It is of course possible upon prior notification, proper justification and

indicate this on the Bulletin Board.



13. In conclusion, the Ministry has proposed that the Constitutional Court the application for annulment

the contested provisions of the Decree as a nedůvodný.



III.



A replica of the appellants



14. the statement of a party, the Constitutional Court sent

the appellants to any replica. Those in his comprehensive response remained

in its application for annulment of the contested Decree and on the arguments in it

contained in it in detail and rebut the arguments of the Ministry.



15. The plaintiffs are still convinced that the Ministry when you release

the amendment Ordinance has exceeded its statutory mandate as expressed in the provisions of § 5a

paragraph. 8 of the law on insolvency administrators, with the representation of the

This conclusion is in no way invalidate the Ministry, on the contrary, it can be said that the

The Ministry itself shows the deviation from the constraints set by the said

legal provisions for the derived normotvorbu. The plaintiffs argue

the Ministry did not mention in the first place, from where it draws its belief that it

the law empowers the Save to insolvency Trustees the obligation of continuous

personal presence on the premises. Statutory mandate aimed at

more detailed editing activity, the insolvency practitioner shall

provide in the establishment, by the appellants does not include the determination of the

the particular way the insolvency practitioner the following obligations

provide. After the negative experience with the "zmocňovacími laws" is in the

the conditions of a modern democratic State is inadmissible

a broad interpretation of the provisions of zmocňovacích. If the law Ministry

Justice to the determination of the radius of the activities to be

secured in the establishment, cannot, in their opinion this mandate

extensively interpreted so that it is given the mandate to establish the

the particular way the activity is to be ensured.

By rendering the continuous physical presence in the establishment after

all the time the official hours are not merely concretized the activities

the insolvency administrator or the modalities of their performance, as they claim

By the Ministry. In this connection, the appellants pointed out that from the perspective of

the legislature is a significant result to be achieved, namely to

fixed circuit activities was on the premises secured, but not this,

how the insolvency practitioner reaches this result. Indeed, activities that

According to the Decree on the establishment of an insolvency practitioner to ensure they are

Indeed, the appellants ' opinion activities of an administrative nature and

determination of the responsibilities of personal performance of these activities the insolvency

an administrator would be from the perspective of the declared objectives of the Insolvency Act,

the law on the insolvency administrators and the implementing regulations

counterproductive.



16. The appellants also questioned the reference to the Ministry according to their

opinion, excessive and in other judicial regions of many

case law of the regional court in Ostrava, which cannot pass in appeal

and such extraordinary appeal review. If should therefore be taken into account in this matter

the relevant case-law of the courts, then it is clear that the contested Decree

does not respect the interpretation of the law on insolvency administrators in that form, in the

which interpreted by the High Court in Olomouc, in the Supreme Court. According to the

This interpretation is not the actual exercise of the activity of the insolvency

Administrator in his mansion and premises (premises) to be subject to a de facto

the presence of the insolvency administrator. Personal presence

the insolvency practitioner in the establishment of the law it does not. According to the

opinion of the appellants cannot therefore be found in the Ministry of Justice

legislation to support for the podzákonnou legislation, if in the Act

support for such an interpretation of the relevant case-law does not find it, or top

of the courts. Reference to the Court of first instance regional decision-making practice in the

this context, lacks persuasiveness, as it turns out to be

Neither the formal nor of material reasons the correctness of such an interpretation

the law. Therefore the prevailing interpretation such that for any law

personal presence of the insolvency administrator in the establishment

does not follow, then implementing legislation by both the appellants '

legal empowerment, on the one hand stray from the limits of the law, thus finds itself

is unacceptably praeter legem in contrary to the diction article 2 (2). 3 and article. 79

paragraph. 3 of the Constitution and article. 2 (2). 2 of the Charter.



17. The appellants believe that the amended Ordinance not only

does not meet the formal condition that was released on the basis and within the limits of

law, but also material support for the requirement that the obligations imposed

just when the preservation of fundamental rights and freedoms (article 4, paragraph 1, of the Charter), to

the limits of fundamental rights and freedoms have been under conditions laid down by the Charter of

modified only by law (article 4, paragraph 2, of the Charter) and that restrictions of fundamental

rights are not being exploited for purposes other than for which it was established

(article. 4 (4). 4 of the Charter). Determination of required personal presence

insolvency administrator on the premises throughout opening hours (IE.

continuously for at least 6 hours a day) is according to them restricted the right to freedom

movement and residence (article 14 of the Charter), which may only be restricted by law, if

It is inevitable for State security, maintaining public order,

health or the protection of the rights and freedoms of others and in defined

areas also for the protection of nature (article 14, paragraph 3, of the Charter). Mandatory

the personal presence of the administrator in the establishment also interferes with the rights of

to do business and engage in other economic activities (article 26, paragraph 1,

The Charter) when the pursuit of the activity of the insolvency administrator from the appellants '

meets all the characteristics of a legal definition of entrepreneurship, which suggests i

the case-law of the Constitutional Court in relation to the court bailiffs, and

conditions and limitations for the exercise of certain professions or activities while

only the law may lay down (article 26, paragraph 2, of the Charter). In both cases, the

Therefore, those rights can be limited according to the Charter, become so however

can only by law. This is certainly not out of the question, according to the appellants, in order to

pseudo-legislation conditions and limits of realization of the constitutional rights of the adjusted

in more detail, but always must happen secundum et intra legem, IE.

the basis for the restriction of constitutional law must always stem from the law, which in

the present case is not met. The plaintiffs concluded that the Ministry of

Justice, therefore, the duty of his Decree entirely newly constructed

and without legal support.



18. In this context, the appellants again underline that the

insolvency law nor the law on the insolvency administrators does not contain

a general obligation on the personal (physical) performance of the duties of the insolvency

the administrator, as he seeks to Ministry of Justice Constitutional Court

private-. It should be noted that the legislator provides that

the insolvency practitioner activities on the premises only. From

This can be inferred, in their opinion, it is only at the discretion of


of the insolvency administrator, whether the activity in question shall ensure that its own activities

or is entrusted to its employees. to other people. This concept

then also correspond to the provisions of § 23, § 37 para. 2 and § 40 paragraph 2. 3

Insolvency Act, which explicitly provide for the use of employees

insolvency practitioner, as appropriate, of other persons in securing its

activities and tasks. This is according to the plaintiffs, indeed, at any

business activities (section 430 of the Civil Code), respectively.

legal persons (§ 166 and 167 of the Civil Code). Another thing is

that, of course, the insolvency practitioner shall be responsible for the proper selection of your

Associates, a proper definition of their scope, as well as for the proper

control of their activities, so that it was filled with the postulate of professional care.

Outwardly personally always corresponds to the insolvency practitioner himself, whether in terms of

liability (§ 37 insolvency law) or responsibility

public law (section 36b 36 c and section of the law on insolvency administrators).



19. the personal performance of the insolvency administrator from the appellants '

does not mean that all work is carried out directly by the insolvency practitioner himself.

In the context of the agenda of the insolvency administrator, you must perform a number of activities

of an administrative nature, which commonly hold employees

the insolvency administrator. The insolvency practitioner. review

claims and opinion to them, specific creation

the list of registered claims, however, is no longer a clerical matter

pověřován is an office worker. In this respect, it is not according to the

the plaintiffs ' internal division of work in the Office of the insolvency administrator

Unlike the internal division of labor in each Department of insolvency

of the courts. The plaintiffs argue the provisions of section 11 (b). m) of the

senior judicial officials, according to which the higher court official in

insolvency proceedings shall be entitled to carry out all the activities and acts of principle

the Court, subject to the exceptions expressly mentioned. Similarly, this also applies

for the assistants of judges (section 13 of the Bankruptcy Act). As well as the

the insolvency administrator or judge of the Court does not carry out all the

the activities of the Court itself, since it would not be physically possible and

due to the results of his expertise or economics. If the judge

the insolvency court able to supervise all of the judicial apparatus in

hundreds to thousands of insolvency proceedings, which has allocated, there is no

Why should the same thing not to handle the insolvency practitioner or his

reported by the companion.



20. in surprising, lame and hard to an affordable then

the plaintiffs consider the final part of the representation of the Ministry, according to the

which is also not true that would be an insolvency practitioner at all

circumstances forced on the premises for its office hours remain.

The appellants point out that obligation personally in the establishment

throughout the opening hours for the insolvency practitioner (announced

Companion) by decree established as bezvýjimečná. Her text with any

"serious and omluvitelným reason", for which insolvency could

Manager in ensuring the operations of the premises be represented,

does not count. If the infringement of the personal presence of bases

(or if you meet other conditions can create) committing an administrative

According to the plaintiffs ' tort claim, you cannot admit a degree of uncertainty and

vagueness of the legislation, which does not allow an insolvency practitioner to ex ante

to distinguish whether it is acting in accordance with the law or illegally (violation of

the principle of nullum crimen sine lege certa).



21. The appellants further in its reply also extensively engaged in issues of

the test of proportionality in relation to the contested provisions of the Ordinance,

question the Ministry declared the purpose of the decree and its consequences.

In conclusion, the Group stated that they remain on your proposal.



IV.



The Ombudsman's observations



22. at the invitation of the Constitutional Court pursuant to § 69 para. 3 of the law on the Constitutional Court

He informed the Ombudsman that, in proceedings for annulment of the contested

the provisions of the Decree does not enter.



In the.



The abandonment of an oral hearing



23. The Constitutional Court, in accordance with the provisions of section 44 of the Act on the Constitutional Court

consider that in the case an oral hearing need not be held, since it would not in any way

could have contributed to the further clarification or deeper things than how it

He met from the written acts of the parties to the proceedings. Nenařízení oral proceedings

justified by the fact that the Constitutional Court or not considered necessary

perform any evidence. The participants in the proceedings of an oral

Neither did not request.



Vi.



An assessment of the conditions of the proposal



24. notes that the Constitutional Court is competent to judge the proposal on

annulment of the contested parts of the decree and that the proposal of the Group of 21 senators

It meets all the formal requirements laid down by law and was submitted to

persons authorised to do so [§ 64 para. 2 (b)) of the law on the constitutional

the Court]. At the same time none of the grounds of inadmissibility does not see any proposal or

to stop the proceedings. Are therefore met the conditions for its substantive

assessment.



VII.



The constitutional conformity itself releases the contested legislation



25. The Constitutional Court pursuant to § 68 para. 2 of the Act on the Constitutional Court first

examined whether the contested Decree was adopted and issued a constitutionally

in the prescribed manner and within the limits of the Constitution laid down the competence.



the provisions of article 26. paragraph 79. 3 of the Constitution confers on the Government departments and other

the administrative authorities of the power to issue secondary legislation to

However, the implementation of which may occur only on the basis and within the limits of the law,

If they are empowered by law to do so. That provision must be interpreted

strictly in the sense that such a mandate must be specific,

unambiguous and clear [cf. findings dated June 21, 2000, SP. zn. Pl. ÚS

3/2000 (N 93/18 SbNU 287; 231/2000)]. If this is the case, the constitutional

the Court examines whether the podzákonný legislation issued by a national authority to

by and within the limits of its competence, namely whether in the exercise of this

powers moved within the limits and on the basis of the law, and not outside the law.

Of the enabling provisions must be evident at the will of the legislator to

modify the above the legal standard. Even in this case, the podzákonný

the legislation must not interfere in the affairs which the regulation can occur

only Act (i.e., for which applies the so-called reservation) [cf. for example.

Award of 18 December 2003. August 2004, SP. zn. PL. ÚS 7/03 (N 113/34 SbNU 165;

512/2004 Sb.) or the discovery of 25 June. March 2014, SP. zn. PL. ÚS 43/13 (N

39/72 SbNU 439; 77/2014 Sb.)].



27. The mandate of the Ministry of Justice to issue a decree

provides details of the opening hours of the establishment, the labelling of registered office

and establishment and on the activities which the insolvency practitioner is obliged to

provide in the establishment is apparent from the provisions of section 5a paragraph 2. 8 of the law on

insolvency administrators. In view of the mandate contained in this

the statutory provisions in the case at issue the decree is clear that was

issued by a public authority so authorised. Another, however, appears to be in

as regards the assessment of whether the decree in the contested provisions of § 3 para.

2 and section 4, paragraph 4. 2 has exceeded its statutory mandate under section 5a paragraph 2. 8 of the law on

insolvency administrators, and she found herself so its regulation of outside the law

in fact, it doplňujíc or vykládajíc, and whether your editing had not infringed the

the constitutional principle of reservation of law.



28. The enabling provisions of section 5a paragraph 2. 8 of the law on insolvency administrators

added:



"The Ministry shall issue a decree for details about opening hours

the establishment, the labelling and the establishment of the registered office and on the activities that is

the insolvency practitioner shall provide on the premises. "



29. the provisions of section 3 (2). 2 concerned the Decree, as amended by Decree No.

101/2015 Coll.:



"The business hours of each facility must be set so that the insolvency

administrators in each establishment ensures the activity referred to in section 4. Office hours

at the same time, no establishment shall not be determined on a working day, when

the insolvency practitioner or the advertised companion, if insolvency

an administrator of a public company, regularly provides activities in

the headquarters of the insolvency administrator. "



30. the provisions of section 4, paragraph 4. 2 concerned the Decree, as amended by Decree No.

101/2015 Coll.:



"If the insolvency practitioner determined in insolvency proceedings according to §

25 insolvency law, the insolvency practitioner or the reported

companion to the insolvency administrator is a public company,

obliged to their continuous physical presence in the establishment at all

for Office hours to provide at least an establishment located in the circuit

applicable to the determination of the Court, and if he is not such a place of business, at the nearest

the establishment of the activity directly related to that insolvency

management, and in particular



and) evidence insolvency proceedings



(b)) to allow participants to look into the list of the insolvency proceedings

registered claims and documents, on the basis of which has been drawn up,



(c)) dealing with the debtor. "



31. From the literal wording of the enabling provisions of section 5a paragraph 2. 8 of the law on

insolvency administrators, it is clear that the legislator has called the Ministry of


Justice merely to modify details of office hours

the establishment, designation and establishment and activities

the insolvency practitioner shall provide on the premises. The key to the

an assessment of the constitutional conformity to the above provisions of the decree appears to be

interpretation of the term "details" contained in the empowering provisions in

meaning and purpose of the entire context of the enabling provisions and the

statutory adjustments. While the appellants are of the opinion that this concept

the Ministry does not allow provision regulating the specific method

the performance of activities by the insolvency administrator, which must be in the

operationally secured, and with reference to the unacceptability of the broad interpretation

zmocňovacích provisions and lack of sense and the purpose of the Act,

The Ministry believes that the provisions of section 36 and in General from around the

Insolvency Act clearly without further obligation personal

the presence of the insolvency administrator in the establishment, and also because it is not a

the imposition of the obligations above and beyond the law.



32. The Constitutional Court shall no longer have the demands on the powers of execution

laws and their character in the past, namely, that "[p] n

respect for the separation of powers (the restrictive interpretation of legal authorization) and the

the principle of legal certainty, it is (and should be) the mandate for the edition of the legal

prescription so accurate and specific, as to their scope, content and

the purpose of the Ministry or other administrative authority does not have the option of

legal limits to depart, and to apply. their own legal

(political) will stand for Parliament. Such a statutory requirement

a mandate that management has defined as precisely as possible the content, purpose and extent of the modifications,

can be inferred from the principle of the predictability of law based on the article. 1 (1).

1 of the Constitution [cf. e.g. award of 12 March 2008, SP. zn. Pl. ÚS

83/06, published under no. 116/2008 Coll.]. Non-observance of any of the

the three elements of the enabling standards leads to the conclusion about the lack of legal

authorisation to issue an implementing regulation "(paragraph 60 (a), (b)/cit.

the plenary of the award).



33. The expression "details" in this regard, by itself, does not belong to

the closest, and there's a not insignificant difference between its

use in the acts of the constitutional order (see e.g. Article 25, paragraph 1, article.

32 para. 6 of the Charter, etc.) and in zmocňovacích the provisions of ordinary

laws for the purpose of the derived právotvorby. In the former case is not

the legislature, inter alia, limited by the exhaustive closer

specified elements forming the subject of the legal provisions. Even in the second

the case does not mean its use in zmocňovacích provisions of

addressed to the authorities of the Executive without further inaccuracy,

was done on purpose, and ultimately the lack of legal authorization as

like that. However, it should always be interpreted in close relation to specific,

legislature intended and foreseeable course secondary regulations, whether

It's been designed into the text itself enabling standards or results from

the legal adjustment to the mandate. While such a link between

specific statutory authorization and by modifying the nature of things always exist

such authorisation must, in order to meet the requirements outlined above.



34. From the text of the enabling provisions of section 5a paragraph 2. 8 of the Act

about insolvency administrators, it is evident that the Ministry of Justice may only be

in the context of the edit just the details having the immediate relationship to the

issues of the official hours of the establishment, the labelling and the establishment of the registered office

the insolvency practitioner and the activities that an insolvency practitioner is obliged to

provide in the establishment. On the basis of the wording of the enabling only the standards

It would be possible to conclude that the manner in which they are to be

the activities provided, not just the specifications of these activities in the

the premises is a matter for the Ministry of Justice. However, you cannot go out

in isolation only from the text of legal authorization. You must also take into account the sense

and the purpose of the statutory scheme, which is linked to the mandate. For the evaluation,

whether the determination of the continuous physical presence of the insolvency administrator after

all the time the official hours of the establishment (no) vybočilo from the legal

the mandate, there is a need to take account also of the meaning and purpose of the premises as

It is the legislature, as well as the nature of the activities carried out by

the insolvency administrator.



35. The Ministry is primarily that of the provisions of § 36

((1)), as well as the Insolvency Act of this law as a whole

no doubt the personal obligation of the presence of the insolvency administrator in the

establishment. The Constitutional Court cannot regard this conclusion. The provisions of §

paragraph 36. 1 the Insolvency Act only stipulates that the insolvency administrator is

shall in the exercise of the functions do conscientiously and with professional care and

make every effort that you can reasonably demand that

creditors were satisfied as far as possible. The common interest of the creditors

is obliged to put in the performance of functions take precedence over the interests of their own, even before

the interests of other people. About personal performance of the duties in terms of the implementation of the

all operations exclusively himself the Insolvency Act in that

provisions, but not elsewhere, and it would be somewhat contrary to the

meaning and purpose of insolvency proceedings, the insolvency administrator and the mission

If it even was. On the contrary, as the appellants argue, the law expressly

counts of the work of employees in the insolvency practitioner (cf. section 23,

§ 37 para. 2 and § 40 paragraph 2. 3 insolvency law). In particular, referred to

the provisions of § 37 para. 2 and § 40 paragraph 2. 3 of this Code clearly

emphasise the fact that the insolvency practitioner may take other people to

carrying out their tasks (e.g., representation in judicial proceedings by administrator

, etc.), unless required by law, that in certain cases, carried out the given action

personally.



36. neither of the law on insolvency administrators as there is no requirement

the personal performance of the duties of the insolvency administrator. If then the legislature

in this Act of speech ' actually carries on business "(Section 5a (1) and

4), it is not possible to interpret them in a way that means personal activities

by the administrator, but it is at its head office or the premises effectively

active, even if they are specific activities performed by its employees or

other responsible for authorised persons. Indeed, the legal

mandate under section 5a paragraph 2. 8 of the law on insolvency administrators clearly

He speaks only of the obligation "to ensure the" implementation of activities in the

the premises, and not on the obligation to exercise them personally. Already here is the

clear that the establishment of the compulsory presence of the administrators themselves in

the premises of the decree in the rozporovaných provisions finds himself in space

outside the law (praeter legem), or lack the obvious will of the legislator to

modify the above the legal standard.



37. If the Constitutional Court found unconstitutional the determination of obligations

"continuous physical presence" throughout the Office hours, lost its

the sense and the provisions of § 3 para. 2 the second sentence of the contested Decree. This

provisions in connection with the obligation to ensure that physical presence,

to the insolvency practitioner may have the most one seat and four

of the establishment. However, such a restriction is in violation of the law on insolvency

managers. This Act in section 5a paragraph 2. 5 lays down that its activities may

the insolvency practitioner to perform even in multiple locations, if any

the insolvency administrator has the ownership or the right of use. In the circuit one

the District Court may have only one place of business insolvency practitioner,

While in the circuit one of the regional court may have multiple establishments;

This number is not limited by law. The only limitation is the

the number of district courts, established within the jurisdiction of the regional court. And it is this

the legislature set limit referred to the provisions of the Ordinance.

The provisions of § 3 para. 1 the contested Decree provides that the establishment must

be open to the public "at least six hours a day, and it regularly

at least one day of the week ". Due to the fact that the need to be physically

present in the establishment for the Office hours of the insolvency

Administrator in the range of 6 hours per week in one establishment, and always in the range of

from 7:00 to 18:00 hours without the possibility of overlap with the period when the

the insolvency practitioner linger at its headquarters, it is quite clear that no

the insolvency practitioner cannot realistically set up more than four

establishment, if it is to comply with the terms set by Decree. This number of

is considerably lower than the number of district courts in the Czech Republic. The constitutional

the Court therefore could not arrive at any other conclusion than that the Decree fixing

the obligation of continuous physical presence of the insolvency administrator in the

establishment of the vybočila of the limits of the legal authorization of section 5a paragraph 2. 8 of the law on

insolvency administrators, entered the area regulated by law, and

in the legislature, which will reflect the appropriate legislation

setting up establishments insolvency administrator. Such a procedure is therefore

incompatible with article. paragraph 79. 3 of the Constitution.



38. However, the Constitutional Court did not intend to dispute the claim of the Ministry of

Justice that from some insolvency practitioners

leading to the establishment of fictional establishments, not to be overlooked, that the

the adoption of measures in the form of the contested provisions of the Decree affects without


any resolution all the insolvency practitioner, who have set up a larger

the number of establishments. Even those whose establishment is in fact existed and

actually worked. However you can hardly imagine

the insolvency practitioner could effectively set up an establishment in the circuit

each of the District Court in the Czech Republic, this does not mean that it can be used without

further constraints set by the legislator to modify, even as follows

indirectly. On the contrary, the Constitutional Court agrees with the opinion of the appellants, who

pointed out that the adoption of Decree No. 101/2015 Coll. has also to

interference with the right to entrepreneurship within the meaning of article 87(1). 26 paragraph 2. 1 of the Charter, as in

the intentions of the law on insolvency administrators and related regulations

only the insolvency administrators to have exercised their skills and

skills and evaluate their economic options. It is these their

the options are actually the primary and, say, natural

(neumělým) the limiting factor for the establishment of an overload of the

establishments. The fact that in some cases can go on the establishment

fictional, but it is a completely different matter and recourse to such

insolvency administrators in the event of such a finding will be undoubtedly

no need to answer. Here is the reservation of the Act, because the conditions and restrictions

for the performance of the activities of the insolvency administrator may specify the law (article.

26 paragraph 2. 2 of the Charter). The legislature these conditions in the insolvency law and

the law on the insolvency administrators to question the establishment

establishments set up, however, as the Ministry of Justice of the

that apparent without further reshaping.



39. The contested Decree expressly imposes an obligation to insolvency Trustees

continuous physical presence in a particular place-in the establishment. Such

obligation could, however, be imposed only on the basis of the law and in its

the limits (article 4, paragraph 1, of the Charter). The Ministry of Justice not only

lays down the conditions and limitations of the business, but without legal authorization stores

insolvency administrators and obligation.



40. Thus, Decree, under the contested provisions moves out

the boundaries of the law, and this in itself is sufficient reason for their

the derogation. In the circumstances, therefore, the Constitutional Court has already did

other arguments that the parties in their pleadings.

Due to the fact that some of the contested provisions of the decree are in

contrary to the article. paragraph 79. 3 of the Constitution, article. 4 (4). 1 and article. 26 paragraph 2. 1

Of the Charter, the Constitutional Court in accordance with § 70 para. 1 of the law on the constitutional

the Court of jurisdiction to the proposal and set aside. In the rest of

the proposal as rejected nedůvodný (section 70, paragraph 2, of the law on the Constitutional Court).



The President of the Constitutional Court



JUDr. Rychetský in r.