220/2012 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court decided under the SP. zn. PL. ÚS 17/11 day 15. may 2012 in
the plenary consisting of the President of the Court, Pavel Rychetský and Stanislav
Ass-Bag, Of Franz Duchoně, Vlasta Formánkové, Vojena Güttlera, Paul
Holländera, Ivana Janů (Judge-Rapporteur), Vladimir Crust, Dagmar
Lastovecké, Jiří Mucha, Jan Musil, Jiří Nykodýma and Miloslav
Excellent proposal for a group of Senators of the Senate of the Czech Republic
on the repeal of Section 7a to 7i, § 8 in the section "except control and its
the Administration "of the law No. 180/2005 Coll., on the promotion of electricity from
renewable sources of energy and on amendment to certain laws (the law on the
promote the use of renewable energy sources), as amended,
Article II, section 2, of the transitional provisions of the law No. 402/2010 Coll., which
the amended Act No. 180/2005 Coll., on the promotion of electricity from
renewable sources of energy and on amendment to certain laws (the law on the
promote the use of renewable energy sources), as amended,
and some other laws, section 6 (1). 8, § 7a, section 14(a), section 20 (2). 1 (a). and)
in the section "with the exception of charge acquired allowances", section 20 (2). 15, § 21
paragraph. 9 of Act No. 357/1992 Coll., on inheritance tax and gift tax
the transfer of real property, as amended, and article II, section 2
Law No. 346/2010 Coll., amending Act No. 586/1992 Coll., on income tax
income, in wording of later regulations, and other related laws, for
the participation of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic as
the parties to proceedings and the municipal court in Prague as in intervention
management,
as follows:
The proposal is rejected.
Justification
(I).
Recap of the proposal
1. The Constitutional Court was on 11 July. 3.2011 delivered the proposal of the Group of Senators
The Parliament of the Czech Republic to repeal the provisions of Section 7a to 7i, § 8
"with the exception of control and management" of the law No. 180/2005
Coll., on the promotion of electricity from renewable energy sources and the
amendments to certain acts (the Act on the promotion of the use of renewable
sources), as amended by later regulations, the provisions of the article. (II) point 2
the transitional provisions of the law No. 402/2010 Coll., amending Act No.
180/2005 Coll., on the promotion of electricity from renewable energy sources
and on amendments to certain acts (the Act on the promotion of the use of renewable
sources), as amended, and some other laws,
the provisions of section 6 (1). 8, § 7a, section 14(a), section 20 (2). 1 (a). and in the section ")
the exception of acquired free of charge ", section 20 (2). 15, § 21. 9
Act No. 357/1992 Coll., on inheritance tax, gift tax, and transfer tax
real estate, as amended, and article II, section 2 of Act No.
346/2010 Coll., amending Act No. 586/1992 Coll., on income taxes,
in the wording of later regulations, and other related laws.
2. The appellants argue that the top marked with statutory provisions are in
inconsistent with the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") guaranteed by the law of the
owning the assets according to the article. 11 of the Charter of fundamental rights and freedoms (hereinafter also
"the Charter"), with the article. 17 paragraph. 1 of the Charter of fundamental rights of the European Union,
or the right to protection against interference with the peaceful use of property from
article. 1 of the additional protocol to the Convention on the protection of human rights and
fundamental freedoms (hereinafter as the "Additional Protocol"), to the freedom of
business according to article. 26 of the Charter of fundamental rights and freedoms and article. 16, Instrument
fundamental rights of the European Union; basic necessities
democracy and the rule of law according to the article. 9 (2). 1 of the Constitution, for all
the impugned provisions of the Act suffers from a retroactive effect; and with the constitutional principle of
equality before the law under article. 1 and 3, of the Charter of fundamental rights and freedoms.
3. The plaintiffs in paragraphs 13-21 of design summarizes the factual claims
relating to the legal conditions relating to the use of aid
renewable energy sources.
4. In paragraphs 22-37 design proponents focus on amendments to the law
No 180/2005 Coll., on the promotion of electricity from renewable energy sources
of energy and on amendment to certain laws (law on the promotion of the use of
renewable sources), as amended, (hereinafter as
"the law No. 180/2005 Coll.) and Act No. 586/1992 Coll., on income taxes,
as amended, (hereinafter referred to as "Act No. 586/1992 Coll.), which
in their opinion, are against the intention of the European Union and the Czech
the legislator, since the limit and eventually eliminate aid to producers of energy
from renewable energy sources.
5. In the fifth section (paragraphs 38-53) marked "the reasons for the proposal"
the promoters will define the Czech State as a democratic and legal State and
citing the findings of the Constitutional Court relating to this issue.
6. in chapter VI, the appellants expressed specifically to novelizovanému
Act No. 180/2005 Coll. and state that this law is made
Amendment contrary to the principle of equality according to the article. 1 and 3, of the Charter, with the
the right to own property and to enjoy it in peace, with freedom of business from
article. 26 of the Charter, as well as contrary to the essential aspects of the Democratic
and the rule of law according to the article. 9 of the Constitution. Inequality before the law within the meaning of article.
1 and 26 of the Charter is seen in particular in the fact that law No. 402/2010 Sb.
amending Act No. 180/2005 Coll., on the promotion of electricity from
renewable sources of energy and on amendment to certain laws (the law on the
promote the use of renewable energy sources), as amended,
and some other laws (hereinafter "law no 402/2010 Sb.") on
the obligation to pay a levy for electricity produced from solar radiation in the
period from 1. 1. until 31 December 2011. 12.2013 those manufacturers of solar energy,
the production plants were put into operation from the 1. 1. by 31 December 2009. 12.2010.
Those already mentioned plant into service from the effective date of Act No.
180/2005 Coll. or previously, from 2005 to 31 December 2005. 12.2008, however, the dispersal of
loads are not. Inequality lies in the fact that the contribution burden are
subject to only some, arbitrarily chosen, producers of solar energy,
but rather than producers of energy from other renewable sources; those taxpayers
levy is not. The selection of the load when the taxpayer is unfounded, exhaust
arbitrary and unfounded public interest. The entire industrial sector in the field of
the production of energy from renewable sources, standing on the same starting line
[see find SP. zn. PL. ÚS 2/02 of 9 June. 3.2004 (N 35/32 SbNU 331;
278/2004 Sb.)], is without any relation to the public interest (which is not
just interested in fiscal) arbitrarily split into groups of entrepreneurs, which is
legal aid is granted, and the group which is denied. Referred to
exposed unequal access to law and the legislature to do business within the meaning of article.
26 of the Charter. Arbitrary load certain groups should therefore be vented
understood as unfair intervention of the legislator to the freedoms concerned in
the meaning of the article. 26 of the Charter. As regards the right to the peaceful use of property,
, the subject of constitutional protection within the meaning of article. 1 Additional
Protocol to the Convention on the protection of human rights and fundamental freedoms is
Firstly, the existing assets, and the legitimate expectations of its acquisition.
The addressees of the Act No. 180/2005 Coll. was given by the State to be able to
most of the important reassurance that they can expect the acquisition of assets in the form of
the proceeds from the production of energy in terms of the scheme of the Act, who did not know
load vented some of them within the meaning of the contested amendment. This
the anticipation was a legitimate expectation.
7. Chapter VII of the proposal challenges the form of Act No. 357/1992 Coll., on tax
inheritance, gift and real estate transfer tax, as amended by
amended (referred to hereinafter as "the Act No. 357/1992 Sb.")
the amendment made to article III of the law No. 402/2010 Coll., which
establishes the taxation charge acquired permits. Such taxation of emission
of allowances according to plaintiffs in breach of Community law,
trading with greenhouse gases regulates the in
European Parliament and Council Directive 2003/87/EC of 13 June 2002. October 2003
on the establishment of a system for trading emissions of greenhouse
gases in the community and amending Council Directive 96/61/EC (hereinafter referred to as
"the Directive 2003/87/EC"). Of article 10 of this directive implies for Member
States to ensure that, for the period beginning 1 January 2005. 1.2008 allocation
at least 90% of the total quantity of emission allowances free of charge, and in
accordance with the approved national allocation plan. National allocation plan
for the Czech Republic was approved by the European Commission decision of
26.3. 2007 and was subsequently adopted in the form of a regulation of the Government No. 80/2008
Coll. on the national allocation plan for the trading period 2008-2012.
National allocation plan cannot be without the prior consent of the European Commission
change, you can't reduce the free allocation of allowances
greenhouse gases below 90% of the total amount of emission
the allowances. The operators of the equipment included in the trading system
greenhouse gas emission allowance trading therefore legitimately expect
protection of their property rights, which will be consistent with the adopted
the national allocation plan for the period 2008-2012, and in particular with the
taking into account the planned long-term investments in greening their
operated by the device. Any undue and irrationally short
time applied a significant intervention in the conditions on the basis of these
operators make investment decisions, therefore a strangling
the effect that the Constitutional Court pointed out in the last practice.
Due to the introduction of taxation of allowances for greenhouse gas emissions
made in breach of the legitimate expectations of the operators of the equipment
included in the system of trading emissions of greenhouse
the gas is therefore unconstitutionally interferes with the protected rights of the owning
assets. From the public's perspective, the challenged legislation in violation of the
Act No. 526/1990 Coll., on prices, as amended, and
Act No. 265/1991 Coll., on the scope of the authorities of the Czech Republic in
pricing, as amended, which establishes the scope of the
administrative offices in the areas of prices, respectively, law No. 151/1997 Coll., on
the valuation of the assets and on the amendment of certain laws (law on valuation
assets), in the wording of later regulations. It is not clear what
represents the scope of the new Department of "publish" the market value of
allowances. Allowances are not extrakomerciálním good, because they are
the subject of trade, in this case, the price regulation is always
intervention in the title, and therefore can only regulate the prices on
the basis of the law. The scope of the Ministry of the environment in the price
the area, however, does not give nor Act No. 526/1990 Coll., on prices, as amended by
amended, or Act No 265/1991 Coll., on the scope of the authorities
The Czech Republic in the area of prices, as amended, and
due to the fact that the Ministry, irrespective of the
the lack of competence in the areas of prices, not market price of allowances set
decision, but only publish. The appellants also point out that
the legal nature of allowances is solely governed by public law; Since it is a
authoritative permission in a given year to emit a certain amount of
greenhouse gases. The contested provisions are, however, based on the principle of
in the public sphere completely excluded; and it's on private
conduct of persons in private law, because the gift is subject to the contract of donation.
The assumption that the State, in the exercise of State power, i.e. when the authoritative
deciding on the rights and obligations of third parties, it is privately
and converts the property free of charge State (which the allowances are not), conflicts
even with the Act No. 219/2000 Coll., on the Czech Republic and its
in legal relations, as amended, and
lacks even the elementary logic of the constitutional ground. Besides the above,
the contested provisions of the amendment to Act No. 357/1992 Coll. are case
right, because the new standard retroactive taxes already issued by emission
allowances, while for the years 2011 and 2012, but for the production of electricity in
the device, which produced 1. 1.2005 or later.
8. In Chapter VIII, the appellants argue that the exemption from income tax
According to the section 4, paragraph 4. 1 (a). (e)) or § 19 paragraph. 1 (a). (d)) of law No.
586/1992 Coll. repealed by article II, section 2 of the Act No. 346/2010 Sb.
but with the decision of the legislature to support the energy sector based on
renewable sources in 2005, but was provided to taxpayers from
tax reform in 1992 and apparently watched the public interest expressed in
Article 7 of the Constitution, and that the interest of the State to the responsible use of natural resources
and the protection of natural resources. Tax exemption in this direction, therefore,
represents stable congressmen against the Constitution, which implies
that goes even for the stable part of the legal consciousness of the addressees of this legal
mode. Such legislation was therefore part of the legitimate expectation
the addressees of the Act, who founded her business in the business plans
energy from renewable sources. As a result of the contested amendment and how
its legislative implementation is, therefore, the intervention of the legitimate expectation
taxpayers, as well as the Foundation of the inequality among its addressees;
the criterion here is once again the time of placing of the device into operation.
All the addressees of the business on the same premise and the effectiveness of
the present edit; Some have taken advantage of the exemption, others fully, in part, to the other
is denied. Again, on the discretionary power of the legislature, which could vote
legisvakanci to taxpayers, founding a business at any time for
the effectiveness of the previous edits, can straight and after the same time enjoy
the tax exemption.
9. In conclusion, the appellants that the contested provisions in the context of the
other related amendments have uniquely prohibitive, and
discriminatory, although the Czech Republic has not yet fulfilled its
commitment to achieve the share of energy from renewable sources for the year 2020 in
of 13%; to the year 2010, then 8% share, indicatively and according to reports
The Energy Regulatory Office (section 7 of Act No. 180/2005 Coll.)
the indicative targets have not been met. The appellants consider, that from the
the essence of the plan passes the legislature of that carried out by infected
novels. This is not a clearly formulated in the public interest, but on the
monitoring of a purely fiscal and prohibitive intent in relation to the otherwise
formally supported the scope, which is carried out by the wayward
legislative intervention of the legislature. They also extends to the
international commitments from the accession to the European Union agreements, which is
Czech Republic is bound. The way in which the provisions of the law are infected
interferes with the rights already acquired legal mailing support that formally
but at the same time it preserves the straightforwardly eliminates (levy, it analyses the
taxation and withdraws the exemption from income tax), it is constitutionally unacceptable,
and not only for interventions in the principle of equality and the acquired property rights,
or legitimate expectation, retroactively effective amendments, but also for the
their internal incongruity. In the case of the new taxation tax allowances
In addition, the gift is a blip is that of constitutional rules, that taxes can be
save only by law, and to the determination of the tax base to be able to
the Executive, without at the same time lays down the criteria for them. It is clear that
the legislature meet short-term practical objectives (fiscal) Executive
odůvodňovaným the public interest at the expense of higher values, which are
the inviolability of fundamental individual rights and confidence in the acts of power
State. The promoters are convinced that no economic, respectively.
the fiscal target, such intervention in terms of democratic and legal
State neopodstatňuje. With regard to all the above legal and
economic arguments have the appellants considered that the fallen part of the Act
No 402/2010 Coll. and Act No. 346/2010 Coll., shall be eligible to induce
serious consequences for the Czech Republic, and in particular in the form of a decline in
assessment of its General Trust (rating), the degree of
the riskiness of the business and of the quantification of the likelihood that the country will honor
their commitments. The plaintiffs are also convinced of the reality of the threat
international arbitration bodies, which will be without prejudice to the laws of napadanými,
While the consequences of such arbitration may hit the economy deeply
Of the Czech Republic. The appellants believe that besides the assessment of constitutional
conformity of the contested provisions, as proposed above, it must be
investigating their context with the original aid scheme of energy from
renewable energy sources, with other nenapadenými amendments, the administrative
the practice of the Czech Republic and with the international commitments of the Czech context
of the Republic.
II.
10. On 30. 9.2011 was the Constitutional Court delivered a draft municipal court
Prague to repeal the provisions of Section 7a to title III of law no 7i. 180/2005 Coll.
and the article. (II) point 2 of the Act No. 402/2010 Sb. Due to the fact that the
The Constitutional Court in the present case, it is now a design identical with
proposal of the municipal court in Prague, was later brought on the proposal to repeal
given the statutory provisions for the obstacle to the lis pendens on 15. 11.
2011 as inadmissible (article 35, paragraph 2, of Act No. 182/1993 Coll., on the constitutional
Court) rejected the Constitutional Court under section 43, paragraph. 2 (a). (b)) Law No.
182/1993 Coll., on the Constitutional Court, as amended, by reason of the
referred to in section 43, paragraph. 1 (a). e) Act No. 182/1993 Coll., on the constitutional
the Court, in the wording of Act No. 77/1998 Coll. at the Municipal Court in
Prague granted the right to participate in the hearing of the case now as
intervener (article 35, paragraph 2, the sentence for a semicolon to the law on the constitutional
the Court).
11. The Constitutional Court was also delivered 28 June. 7.2011 filing amicus
curiae brief consultants Platform for RENEWABLE ENERGY, which brings together the Czech and
foreign entrepreneurs and investors in the field of renewable energy sources
("RES"). Due to the fact that the platform for the RES is
the initiative, without legal personality, this submission submitted its
consultants. Another amicus curiae brief to the Constitutional Court was delivered to date
23.11. 2011, Association for the protection of small and medium-sized manufacturers
electricity from renewable sources. Appointed by the Association also sent
The Constitutional Court its observations to the (Constitutional Court of his nezaslanému)
representation of the Prime Minister and the Ministry of finance to draft and asked,
to make this their opinion on the part of the file.
12. The Constitutional Court also turned the day 5. 8.2011 RNDr. J. S., CSc.,
DSC., who said that, at the same time with constitutional complaints have been filed in the case
repeal of Act No. 180/2005 Coll., suggests that he was granted the position of
a secondary party to the proceedings in the present case now. The Constitutional Court gave the
J. s. Note that is on the assessment IV. Chamber of the Constitutional Court, whether
chooses how to break things conducted under SP. zn. IV. TC 2316/11 and
the submission of this matter to the plenum of the Constitutional Court, which for an obstacle
lis pendens can design the petitioner on the repeal of the statutory provisions
refuse and give him the position of the secondary participant in proceedings conducted by the
under SP. zn. PL. ÚS 17/11. Submission of 28 December. 8.2011 J. S. The constitutional
the Court said that in his case are not reflections of the litispendenci
justified, since the cancellation of the proposed provisions of completely
other than the appellants. To illustrate the diversity of opinion on the
balancing the public interest in State aid for investment in the sector
The Constitutional Court on this point, shall submit the opinion of J. S., that the difference
by contrast, the plaintiffs considered a period of return on investment of less than
for fifteen years, contrary to the meaning of the law and to protect the resigning
the company, which must build and operate photovoltaic
power plants (hereinafter as the "PV") pay enormously.
13.25 July. 1.2012 was the Constitutional Court received the submission of the company
Black Bush 1 & Project, s. r. o., which acts as the plaintiff in
proceedings brought before the regional court in České Budějovice, SP. zn.
l0 Af 69/2011, SP. zn. 10 Af 112/2011 and SP. zn. l0 Af 137/2011, in
which seeks the annulment of the decision of the General Directorate in the Czech
Budějovice no j. 2956/11-1200 of 30 June. June 2011, and its proposal for a
based on a contradiction to the provisions of § 7a 7i Act No. 180/2005 Coll. with the constitutional
policy of the Czech Republic. Referred to the management of the regional court in České
Budějovice discontinued under section 48, paragraph. 1 (a). and Act No. 150)/2002
Coll., the administrative court procedure code, in its up-to-date version, due to the presentation of the case
The Constitutional Court.
III.
The progress of the proceedings and a recap of the representation of the parties to the proceedings and addressed
the organs of State administration
14. in accordance with section 69 of Act No. 182/1993 Coll., on the Constitutional Court, as amended by
Act No. 18/2000 Coll., has called on the Constitutional Court of the Chamber of Deputies
The Parliament of the Czech Republic (hereinafter as "Chamber of Deputies") and the Senate
The Parliament of the Czech Republic (hereinafter "the Board") to the proposal for a
comment on this.
15. The Chamber of Deputies via the President of the Chamber of Deputies
By Miroslava Němcová drew attention to the vague formulation of the small print design, respectively.
some of the contested parts of the law in the proposal of the Group of senators, and even after the
made by adjusting the small print of the day 3. 6.2011. President Of The Chamber Of Deputies
the Chamber further notes that the claimant challenged the provisions was in
The Chamber of Deputies discussed within the framework of the Assembly's print no. 145.
The content of this press include the contested provisions relating to
Act No. 180/2005 Coll. and related to the Act No. 357/1992 Coll.
The provisions relating to Act No. 586/1992 Coll., has been discussed in the
the printing house No. 158. When it comes to house print no. 145, the Government
the Chamber of deputies presented a draft of the law on 14 June 2004. 10.
2010. The original Government proposal did not contain the contested provisions,
become a part of the comprehensive amendment
input from the meeting of the designated Committee. First reading of the Bill took place
29 April. 10.2010 to 7. a meeting of the Chamber of Deputies. The Bill was
commanded by the Economic Committee to discuss, in the context of this
consultation adopted the above-mentioned comprehensive amendment contained in
the resolutions of this Committee No 34 of 2 June 2003. 11.2010 (print no 145/1). The second
reading of the Bill took place on 3. 11.2010. In a detailed discussion were
submitted amendments processed later in the summary
amendments and other proposals (print no 145/2). The third reading took place on
9.11. 2010. A draft Bill has been approved in the texts of the adopted comprehensive
Amendment of the Economic Committee, in a vote no. 140, it was for the
the Bill of the 159 members of 123 and 12 against. A proposal from the
the Bill was referred to the Senate, which had discussed the day 8. 12.2010. The Senate
This draft law has not adopted any resolution. The law was then
signed by the competent constitutional officials, and declared in the collection of laws in
amount 144 under the number 402/2010 Sb. The contested provisions contained
the above mentioned Council print no. 158-a Government proposal for a law amending the
Act No. 586/1992 Coll., this print Government has submitted 29 June. 10.2010. On
the Government has announced a proposal to the Chair of the House of representatives state of legislative emergency
under section 99 of Act No. 90/1995 Coll., on rules of procedure of the Chamber of Deputies,
in the wording of Act No 359/2004 Coll., and ordered the Bill to
discussion of the Budget Committee. He issued a day 2. 11.2010 resolution No.
65 (print no 158/1). Second reading of the Bill was held on 2. 11.2010
8. a meeting of the Chamber of Deputies. The third reading of the Bill took place
immediately after the second reading. In its framework was first approved
the Budget Committee resolution No. 65, then took a vote on the proposal
the Bill, which the House of Commons in favour of the proposal of the law
consent in vote no. 30 was for a bill of 145
103 members and 40 against. The Bill was the day 3. 11.2010
referred to the Senate, which he discussed on 12 June 2006. 11.2010. this proposal to the Senate
approved as amended by the Chamber of Deputies transferred. The law was then
signed by the competent constitutional actors and was declared in the collection of laws
in the amount of 127 under number 346/2010 Sb. For this state of things is to
The Constitutional Court, in the context of the examination of the proposal to assess the constitutionality of
the relevant provisions and the relevant decisions issued. The Chair of the
The Chamber of deputies at the same time that agrees in this respect with the
abandonment of the oral proceedings before the Constitutional Court.
16. The Senate through its President Milan Štěcha said
the provisions of Act No. 180/2005 Coll. and Act No. 357/1992 Coll., which are
designed to repeal, was part of the Bill, which was referred to the
the Senate on 11 July. 11.2010. The Organizational Committee of the Senate of this proposal as a print
No. 379 (in 8. term) ordered to the Committee for
economy, agriculture and transport, such as the Committee of guarantee, and the Committee
for territorial development, public administration and the environment. The Committee for the
economy, agriculture and transport discussed a draft bill on your
meeting held on 7 December 2004. December 2010 and did not adopt any resolution. The Committee for the
territorial development, public administration and the environment Bill
discuss on its 2. meeting held on 7 December 2004. December 2010 and
didn't reach consensus on any resolution. Senate to discuss Bill on its 2.
meeting held December 8. December 2010. A quorum was not, however,
no resolution. In the presence of 66 Senators for a Bill as amended by the
the Chamber of Deputies voted transferred 21 senators against it was 16;
Similarly not accepted nor any of the amendments submitted in the
detailed debate. The Bill was in the meaning of article. paragraph 46. 3 of the Constitution
adopted and published in the collection of laws under no. 402/2010 Coll., to cancel the
the proposed provisions of Act No. 357/1992 Coll. was part of the draft law,
which was referred to the Senate the day 3. November 2010. Organizational Committee
The Senate this Bill as print no 366 (7. term)
He ordered for consideration of the Committee on economy, agriculture and transport.
Committee on economy, agriculture and transport to discuss the draft law on the
its 34. meeting held on 11 July. November 2010 and adopted resolution No. 384,
which recommended the Senate to approve the Bill as amended by the transferred
The Chamber of Deputies. Senate Bill discussed on their 25. the meeting of the
held on 12 June 2006. November 2010 and resolution No. 604 approved the draft law,
in the text of a transferred the Chamber of deputies in a vote no. 7 of 77
Senators present voted for the approval of 43 senators, against the
29 Senators and 5 Senators abstained. In the collection of laws
This law was subsequently published under no. 346/2010 Coll., the fact that
The Senate did not accept the draft law contained in the press no no 379
the resolution reflects the overall atmosphere of the discussion of this proposal in
the bodies of the Chamber, as the proposal from the committees that discuss, in the classroom
towards a clear recommendation to the plenary. The progress of the discussions and, in particular,
the fact that the Senate did not adopt any resolutions of Materia, attests to the
the fact that the majority opinion in the Senate always on the present
the master. Even when the reservations and doubts of a legal nature was not
However, filed a proposal to reject the draft law. In conclusion, it is considered
even after the change in the small print of the day 3. 6.2011 proposals not quite clearly
formulated. On the edge can be noted with regard to the order of
the fourth draft (repeal of article II, section 2 of the Act No. 346/2010 Sb.),
the transitional provisions, which consumed should ensure that
exemption from income tax could be applied in the tax return for the
31 March 2011, as appropriate, to 30. June 2011 for efficiency
Law No. 346/2010 Coll., without the taxpayer had to rely on for
the tax period of 2010 the constitutional principle of protection of legitimate expectations and
predictability of the law. Users of the Act therefore stipulated that for sure
for the year 2010 is possible, exemption from income taxes still apply.
The President of the Senate at the same time that agrees in this respect with the abandonment of
the oral proceedings before the Constitutional Court.
17. The Constitutional Court has turned with a call for comments on a proposal within the meaning of
the provisions of section 48, paragraph. 2 of the law on the Constitutional Court the Government of the Czech
of the Republic. The Government of the Czech Republic to the mouth of its President to the draft
expressed in the sense that the rapid development of energy production from RES caused
the growth of the amount of the costs to its financing and the resulting negative
socio-economic impacts. You began to fully manifest at the end
the year 2008 in connection with the initial stages of the global economic crisis,
during the year 2009 was in the area of electricity production from
renewable resources to such a change in the facts that it was
necessary in the public interest to rethink the present attitude of the State to the public
aid for the production of energy from RES. This was in particular the much cheaper
the technology of photovoltaic panels in the years 2008 and 2009, which in
connection with a favourable exchange rate of the Czech Crown and the favourable business
the environment has led to the so-called. a solar boom. With regard to the above,
as well as the fact that the legislation of public support for energy production
from RES is set up in the Czech Republic on the principle of delegating a large part of
the financing of the aid for the end customer and the State budget,
There was a real threat, that the cost of financing this aid in the
the current rate would have been in relation to Act No. 180/2005 Coll. declared
the objectives of such disproportionate, that it was necessary to present public policy
aid rethink as to the anticipated negative impacts have occurred, and
to support system reflected the fact that, as a result of the decline in
inbound investment costs, there has been a fundamental change in the conditions of
the business. Therefore, it was necessary in the public interest to take advantage of all the legitimate
resources to review the present extent of the financial support of the production of
electricity from RENEWABLE ENERGY (and especially from sunlight) while
keeping all the above listed fundamental rights and guarantees arising
investors in the equipment for the production of energy from RES on the basis of Act No.
180/2005 Coll., one of the steps to reduce the extent of public support for producers
electricity from RES was the use of rights to impose taxes, fees and other
a similar performance. This right was used to accept the legislature
the claimant contested parts of the law No. 346/2010 Coll., and Act No.
402/2010 Coll., the claimant challenged the measures of a fiscal nature while led
only an effective temporary reduction in public aid (its financial
folder), which is fully in the intentions of the directive of the European Parliament and of the Council
2001/77/EC of 27 June 2002. September 2001 on the promotion of electricity produced from
renewable energy sources in the internal electricity market (hereinafter referred to as
"the Directive 2001/77/EC") as well as the European Commission document 2008/C82/01
"Community guidelines on State aid for environmental protection".
Regarding the applicant contested the provisions contained in law No.
402/2010 Coll., the Prime Minister is convinced that the arguments set out in the
the attached submissions of the Ministry of industry and trade and the Ministry of
finances are sufficient for a finding that the claimant
the contested regulations were adopted in the public interest, are not the result of
irrational behavior of the legislature, random changes (mistakes) in the course of the
the legislative process and that they are in a rational relationship to the purpose of their
amending acts chosen to achieve these objectives. Therefore, you can
to state that the claimant contested parts of the law No. 402/2010 Sb.
interfere with the amount specified by law enshrined fundamental rights
producers of electricity from RES (investors) or to the principles of the production aid
electricity from RES embodied in Directive 2001/77 of the EC, of the information
The European Commission 2008/C82/01 "Community guidelines on State aid for
protection of the environment ", and law No. 180/2005 Coll., or their
constitutionally guaranteed rights. Legitimate expectations in connection with the
the protection of their property-that is, legitimate expectations arising out of the
guarantees the long-term return on investments was not the claimant
the challenged parts of the law No. 402/2010 Sb. prejudice, or to
alleged violation of article 1 of the additional protocol to the Convention on the protection of
human rights and freedoms. The claimant contested parts of the law No.
402/2010 Sb. not affect nor any legitimate expectations regarding
the level of income, since the yield is the accounting category, which is to be always
assessed individually within the meaning of the Decree No. 500/2002 Coll., which
implementing some provisions of Act No. 563/1991 Coll., on accounting, in the
as amended, for the accounting units that are entrepreneurs
relation in the system of double-entry accounting, as amended,
regulations. At the same time it must be stressed that any investors ' expectations
related to profit by Act No. 180/2005 Coll. never guaranteed
and it does not support. The fact that the petitioner challenged parts of the
Law No. 402/2010 Coll. will wield influence the rate of profit
investors (that will be affected by the cost side, which will be increased by the newly
established the obligation of the tax levy), not in terms of the assessment of
the constitutional conformity relevant. The assumption that every investor in the production
energy from RES should and could count (legitimately expect) with a possible lowering of the
the amount of public aid is already from the very wording of the preamble to the
Directive 2001/77/EC (paragraph 16), which States: "after a sufficient transitional
the period is, however, necessary to adapt programs to aid to the developing
internal electricity market. ... This framework should allow
electricity from renewable energy sources to compete with electricity
produced from non-renewable sources of energy and reduce costs for
the consumer and at the same time in the medium term to reduce the need for public aid. ".
The result of the adoption of the claimant contested parts of the law No. 402/2010 Sb.
(from the perspective of the so-called new investors – therefore those, who said the device
in the period from 1. 1. by 31 December 2009. 12.2010) only temporary
the effect on the profit rates (the cost increase for the newly established the obligation to
the tax levy) and the consequent extension of the period of the return on their
the investment. Support system and principles of setting regulated prices,
modified by law No. 180/2005 Coll., but investors continue to ensure
such conditions, in order to achieve a simple return on investment period of 15 years.
The claimant contested parts of the law No. 402/2010 Sb. without prejudice to the
or the right to own assets in accordance with article 11 (2). 4 of the Charter of fundamental
rights and freedoms, as provided for in article protects the rights in rem, which
does not include income from gainful activity [see e.g. findings SP. zn. PL.
TC 12/94 of 12 April. 4. the 1995 (N 20/3 SbNU 123; 92/1995 Coll.), SP. zn. PL.
TC 7/03 of 18 June. 8.2004 (N 113/34 165 SbNU; 512/2004 Sb.)].
The claimant contested parts of the law No. 402/2010 Coll., there
breach of the principle of equality. In this context, the Prime Minister points out
the case law of the Constitutional Court on this matter [e.g., constitutional
Court of the Czech and Slovak Federative Republic SP. zn. PL. ÚS 22/92 of
Day 8. 10.1992 (finding no. 11 Collections and findings of the resolution of the Constitutional Court
Czechoslovakia, Prague: Prague, Linde., 2011, p. 49) and the findings of the SP. zn. Pl. ÚS
33/96 of 4 June. 6.1997 (N 67/8 SbNU 163; 185/1997 Coll.), SP. zn. Pl. ÚS
16/93 of 24 June 1993. 5. the 1994 (N 25/1 SbNU 189; 131/1994 Coll.), SP. zn. PL.
TC 36/93 of 17 December. 5. the 1994 (N 24/1 SbNU 175; 132/1994 Coll.), SP. zn.
PL. ÚS 7/03 (see above) and others] and in the context of the then only the amount of
many times dovozovaný the public interest in the adoption of the claimant contested
parts of the law. In the context of the above, and the attached evidence
the material can then be summarized that the impacts of all the claimant contested
measures cannot act on manufacturer of electric power from RENEWABLE ENERGY called.
"rdousícím effect". It's not about the interventions that would have led to such a
fundamental change in the financial circumstances of the parties concerned, that would
the destruction of the same nature of the assets of the parties concerned, or it is not about intervention,
that would lead to preventing the achievement of guaranteed benefits, which
certain operators spoke to a legitimate expectation. Petitioner challenged
legal measures are undoubtedly the result of the political
the decision, which, however, is constitutionally a conformist, was adopted in accordance with the
economic principles and took into account the default status of legislation
to support the production of electricity from RES. Finally, the then President of the Government
draws attention to the necessary coherence issues public support for production
energy from RES with the law of the European Union, which was also to be taken into account in the
the context of the "solar boom", or in the context of the emergence of
step in the initial investment cost of the difference between the "old" and
the "new" investors in solar power plants. The Government (or legislature)
had to in connection with the above facts into account
to document the European Commission 2008/C82/01 "Community guidelines on State
support for the protection of the environment ". It follows from that document,
that operating aid for the production of energy from RES (purchase price, green
bonuses) may be considered compatible with the common market only in
the case that covers the difference between the cost of energy production from RES and the market
the price of that kind of energy, its amount is limited to a minimum and is
non-discriminatory and proportionate. The absence of any response by the Government
(the legislature) on the "solar boom"-thus maintaining the amount of public aid
for all the recipient producing electricity from sunlight on the
the same level-however, with a high probability meant that
The European Commission says such public support in relation to the "new"
investors to be incompatible with the common market under article 87(3)(c). paragraph 87. 3
(a). (c)) of the Treaty establishing the European Community. Referred to by then for the
překompenzované "new investors" meant an obligation to retroactively go back
provided public support and a subsequent negative consequences on their
equity ratios.
18. the complainants contested the provisions contained in law No.
346/2010 Coll., i.e.. the proposal to abolish the "tax holidays", the Government stated,
that Bill was in question as part of the "reform package"
discussed in the regime of legislative emergency. Of stenozáznamu from the first day of the
25. the meetings of the Senate held on 12 June 2006. November 2010 is that
the discussion took place about the adequacy of the expansive and regularity of the use of the Institute
legislative emergency (or procedure under section 118 of the Act No. 107/1999 Coll., on the
the Senate's rules of procedure, as amended by law no 172/2004 Sb.) When discussing the
submitted bills that resulted in democratically adopted by
the Senate's decision on the acceptance of the request of the Prime Minister, to discuss the
the submitted draft laws (including the question of the draft law) in
Summary of the negotiations. The draft Act amending Act No.
586/1992 Coll. (the Senate printing 366) was justified by the Minister of finance,
subjected to substantive discussion (plenary in the guarantee Committee) and subsequently
approved. The facts are contained in the stenozáznamu of hearing
the first day 25. meetings of the Senate. Even in this case, therefore, it can be concluded,
that procedural rules, as well as the democratic principles of decision making
have been complied with. It can also be noted that there has been no abuse of procedure
pursuant to section 118 of the Act No. 107/1999 Coll., on rules of procedure, as amended by the Senate
Act No. 172/2004 Coll., to circumvent the proper legislative procedures, and that the
the Senate's opposition was not on their rights in any way curtailed.
19. the Ministry of trade and industry in its comments to the draft stated,
that the appellants did not provide evidence of the alleged "arbitrage or extrémnosti
the lawmaker "or have not been supported by evidence of" inconsistent with the principle of
equality ". The Ministry of industry and trade has on the contrary considered that were
always sensitive weighted tool, which is necessary for the protection of the economy and the
the citizens of the country of use, and that in carrying out the principles of rationality, proportionality and
always on the basis of the public interest. The aforementioned payment of electricity
produced from solar radiation in the period from 1. January 2011 until 31 December 2006. December
2013 in the establishment referred to the operation for the period from 1. January 2009 until 31 December 2006.
December 2010, IE. in a period when there was a significant decline in the cost of
the acquisition of solar collectors, and to greater advantage from the
by the State against the entrepreneurs investing in this period, compared to
entrepreneurs who have invested in the previous period. The current levy of
electricity from sunlight (26% for aid in the form of purchase prices) was
While calculated to continue to guarantee the 15-year payback
investments, which is guaranteed by law. It is therefore not elected
randomly and certainly is not extreme. The influence of the facts described above
and the sharp reduction of investment costs for the construction of solar
power gradually to shortening the period of return, which
did not match the original intent of the legislature. The return on investment of
the original 15 years down to 8-9 years. From the above it is clear that
the legislative changes were and had to be situational, justified, and
not a manifestation of arbitrariness. The addressees of the Act No. 180/2005 Coll. may therefore
continue to expect the acquisition revenue from energy production in the Sun
power plants, thanks to subsidies from the State, along the lines of the scheme
of this Act and in accordance with the basic principle of return on invested
investment in 15 years. If the appellants in point 10 of the report that the challenged
statutory provisions are in contradiction with the "freedom of business" (article 26 of the
Of the Charter, article. 16 of the Charter of fundamental rights of the European Union), is to be
point out the fact that the freedom of business, and thus the ability to invest
in the sector continues to be guaranteed and is not limited to, just a question
advantages to invest in this sector varies, which is common in other
areas of the business. The measures taken do not interfere with or in any way
the constitutional principle of equality before the law, on the contrary, emphasise this equality in
that it is the sector from the State budget and subsidized prices
Energy supported more than other sectors of our economy, and for the
greater emphasis on the interests of the electricity production from solar power plants. In conclusion, the
The Ministry of industry and trade points out that the appellants did not
demonstrate significant economic consequences of the alleged incident on
assets mailing infected parts of the laws of the realm, as well as establishing an
material responsibility of the Czech Republic. Whether or not the allegation of drop
considered a general trust (called a rating) of the Czech Republic in
the context of the measures taken appear as speculative.
The Ministry of trade and industry believes that if the "rating" of the Czech
the Republic fell, it would do so in the case of non-acceptance of any
measures, because the negative impact such as. with the additional costs on
Electricity Board would hit all customers of electricity-
including the biggest customers, who are the backbone of the Czech industry.
20. in its comments, the Ministry of Finance reported that the legislative
the adjustment in the area of renewable energy sources was presented with the order to stop
inexpedient to support the production costs of electricity from renewable
resources, in particular because of the high support photovoltaic power plants, and
limit the impacts arising from this aid to the Czech industry, economy and
the household. If the plaintiffs, it was that the application of the standard, which
reduce the rate of redistribution in the sector for the addressees, who started
develop activities in the field prior to the date of entry into force of the Act, is in the
contrary to their legitimate expectations, and because of that, in the course of
their business is changing the legal status, not their conclusion
agree. The law is constantly changing, and from the perspective of its application
in any case, it is not possible to apply the old law until
the addressee of the standards in the field goes out of business or disposes of a particular real
tangible fixed assets, on which the business was based. The Ministry of finance
stresses that, for the determination of feed-in tariffs and green bonuses was and still
It is on the basis of the provisions of section 6 (1). 1 of the law on the promotion of the use of
renewable energy sources, in the version effective until 31 December 2006. December, 2010, final
The Energy Regulatory Office ("ERUS"). That is when
pricing is limited by the condition referred to in section 6 (1). 4 of law No.
180/2005 Coll. as amended by Act No 137/2010 Coll., namely, that the purchase
the price shall not be lower than 5% of the value of the feed-in tariffs in force in the year in
which of the new determination. The importance of this condition is, however,
the limitations of executive power, in this case represented by the ERU, pointing to
the ERU is not entitled to reduce the purchase price every year by more than 5%,
any way here is not limited to the legislative power, which can
the purchase price by reducing or even obligate ERUS to the options
higher feed-in tariffs reductions. Therefore, if the legislature can, and in the
the time of the adoption of the contested legislation could reduce in terms of their
the powers of the redemption price, then surely he could implement the Act to
the same economic consequences as the reduction of feed-in tariffs (i.e., could
adopt the legal adjustment of the levy shall, together with the law on the payment of subsidies
the extra costs). The legislature is not in intervention in the regulation prevented any
the provisions of the Act. The Ministry of finance notes that extrémnost
the decline in investment costs caused by regulatory means, that
He told the legislature of ERUs, were not sufficient to ensure that an outdated regulation
replaced by regulations, which would correspond to the new objective facts.
Therefore he had to regulate access in this sector alone of the legislature. From
of the above, it is clear that legislative changes were and had to be for
their addressees of situational, justified and not a manifestation of the arbitrary,
as with the change of objective facts, which are
the original regulation became clearly incorrect. This concept of legitimate
expectations corresponds with the concept, which holds steady, the European
the case-law, according to which "if prudent and circumspect economic operator
It is to anticipate the adoption of Community measures which may
adversely affect his interests, he cannot plead the principle of protection of legitimate
expectations, if the measure is adopted. This is true especially in such
the area, as is the area of common market organisations, whose subject
includes a permanent adaptation, depending on changes in the economic
the situation "(m. j. judgments of the Court of Justice of the European Union C-104/97 P
C-265/85, C-22/94, C-104/97, C-37/02 and C-38/02, C-17/03 and C-63/93).
The legitimacy of the expectations of the operators was not infringed, on the contrary, if the
the State has not implemented the appropriate intervention, it would have been a clear manner without prejudice to the
the rights and legitimate expectations of other entities. Contradiction with the law business
It was the promoters from the imposition of extreme load on the taxpayer, and in
the rate of 26% and 28%. It was that this measure is called. "a strangling
the effect of "and that more business in this area is no longer possible. The edit
However, according to the Finance Ministry "do not destroy" property base
the taxpayer [see find SP. zn. PL. ÚS 29/08 dated May 21. 4.2009 (N 89/53
SbNU 125; 181/2009 Sb.)], since the operator is only ukrácena original
the aid, which is set so that the return on investment was closer to 15
the flights, which is the limit that is contained in the current legislation and was
also included in the legislation of the past. Cannot speak nor "arbitrary
determine the producers of solar power to energy producers, other
renewable resources "(you are not taxpayers levy), because of the
limitations of overpaying solar power plants by distributors
(final consumers), and so it was removed discrimination
other renewable sources. The selection of taxpayers do not exhaust
unreasonable and arbitrary, and the public interest, which is monitored by law
(protection of the national economy and minimizing the negative social
the impact), it is clearly evident. For the above reasons, it is necessary to make the
the conclusion that the scheme is not arbitrary nor discriminatory, as reported
the appellants. It is also in accordance with the principle of equality, since this
the principle of equality does not imply a requirement of each, no doubt, but
the only requirement to the right one from the others, no reason. In
the present case is this distinguished criterion clearly declared and
justifiable. The proposal to repeal the taxation charge of the acquired
allowances Ministry of finance notes that Government Regulation No. 80/2008
Coll. on the national allocation plan for the trading period 2008-2012,
It is a mere promise of acquisition of allowances to the operator of equipment
discharging greenhouse gases, and it provided the fulfilment of the law
conditions laid down. The acquisition of emission allowances to the asset
the operators each year from the moment of crediting occurs a specific number of
allowances on accounts of the operators. The above means that the effectiveness of the
the amendment made by Act No. 402/2010 Coll., i.e.. from the 1. January 1, 2011, will be
taxed only in the future, the acquired emission allowances. On the basis of these
knowledge, it should be noted that the adjustment cannot be right or
nepravě retroactive, because it focuses only on the fact that
occurred after the 1. January 2011. The Ministry of finance does not agree nor
the objection of plaintiffs, who States that the adjustment is in breach of article. 11
paragraph. 5 of the Charter because not only taxes, but also the conditions on which it is
seznatelná the amount of the tax shall be determined by law. The Ministry of finance
Noting that the law on inheritance tax, gift tax, and transfer tax
real estate provides only that the average market value of allowances
publish the Ministry of the environment, but not that
The Ministry of the environment specifies (provides) a market value
allowances for tax purposes. This is because the Ministry of
the environment only publish the market itself has already created
the average market value of the allowances. The tax base determined in this
If only the law, the plaintiffs ' claim is not therefore in this direction
relevant. Tax allowances acquired free of charge, there is no violation of the
bezúplatnosti their acquisition of guaranteed jurisdiction and does not even
to infringements of the provisions of directives of the European Union. Also not to
reduction or other change in the allocation of allowances approved by the national
allocation plan. Between States, which also acquired the allowances free of charge
taxed, include the United Kingdom, Greece and Spain. Tax free
the allowance is not acquired in breach of European Union law.
21. The Constitutional Court also turned to the Energy Regulatory Office with
request information regarding the development time of return
of the investment, the amount of income and the amount of feed-in tariffs (section 6 (1) of law No.
180/2005 Coll.) for each of the years in the past, from the effective date of the law
No 180/2005 Coll., concerning factors that may affect the fulfilment of guarantees
According to section 6 (1). 1 law No. 180/2005 Coll., on the conservation of the above revenue
per unit of electricity from renewable sources after the introduction of the exhaust in the
support farm prices over a period of 15 years from the year of putting the device into the
the operation in the future, concerning the regulation of feed-in tariffs under section 6 (1). 4
Act No. 180/2005 Coll. as amended by Act No 137/2010 Coll., and regarding the
during the decline of the inputs (in particular the price of photovoltaic panels) from
the effectiveness of Act No. 180/2005 Coll.
22. The Energy Regulatory Office has sent to the Constitutional Court representation, including
the accompanying charts and tables, from which deduced that even after the impact of
levy on the return on investment are achieved IRR (internal rate of
the percentage of) above the WACC (weighted average cost of capital) and the
return below the specified limits for 15 years, and regardless of the
the method of financing for individual projects. As far as the development of feed-in
prices for all the famous category FVE in the years 2006-2012, the
shows a rising trend of curves corresponding to the provisions of section 6 (1). 1
(a). (b) of section 2 of the Act) no 180/2005 Coll., i.e.. taking into account the price index
industrial producers. Development of measurement of the investment costs within the meaning of
Annex No. 3 to Decree No. 475/2005 Coll., which implements certain
the provisions of the law on the promotion of the use of renewable energy sources in the text of the
amended, on the contrary, shows a downward trend. The purchase price
It is then, according to the Energy Regulatory Office is calculated so that the
guarantees the non-negative net present value (NPV > 0) and the IRR
(Internal Rate of Return-the internal rate) equal to or higher than
WACC (Weighted model expected Average Costs of Capital-weighted
the average cost of capital), to 15 years ' time
return has been observed. For completeness, the Energy Regulatory Office
notes that most of the projects in the field of RENEWABLE ENERGY (including PVE) is significantly
the shorter the time of return, only small water power plant closing
the border for 15 years. The energy regulatory authority in this connection
stresses that the imposition of the withholding tax does not affect the provisions of section 6 of the
paragraph. 1 law No. 180/2005 Coll., which regulates the principles that need to be
followed when determining the amount of feed-in tariffs. Purchase prices for 2009
and 2010, according to the principles laid down at the time of the introduction of
levy was not even considered-then in the fall of 2008 and 2009.
The decision to impose the levy was taken up in the fall of 2010 and covers
FVE only referred to the operation for the period 1. 1 January 2009 to 31. December
2010. The determination of feed-in tariffs for the years 2011 and following this dispersal
also was not affected. At the same time, the energy regulatory
the Office does not have the legal space measures of a fiscal nature to take into account the
feed-in tariffs, and Moreover, there was no legal possibility to
the purchase price of the Edit again at a time when the effectiveness of the provisions on the ends
levy for electricity from solar radiation (and even if it were possible, then
adjustment of feed-in tariffs against fiscal measures would then be completely eliminated
These measures). Energy Regulatory Office stated that proceeds as such
been the introduction of the levy for electricity from sunlight,
because the beneficiaries still gain the same gross income, on which
they are entitled in accordance with the respective provisions of the law No. 180/2005 Coll.
(fiscal measures from the logic of things interfere with the disposition of this gross
yield). Of the above aspects of the Energy Regulatory Office was not
not forced to adopt specific measures as a result of the effectiveness of the
the provisions on the introduction of a levy for electricity from sunlight.
The energy regulatory authority concludes, on the basis of the above legal
Edit was unable to respond to the situation, when there was a significant year
the decline in unit investment costs for the establishment of these resources in the
as a result of the reduction in the price of photovoltaic panels by more than 40% in 2009
corresponding reductions in purchase prices of electricity from these sources, as
pursuant to Act No. 180/2005 Coll. was entitled to reduce the purchase year
the cost of electricity for new sources only about 5%. Thanks to this, there has been a very
a significant advantage compared to the newly built photovoltaic power plants
other types of renewable energy sources, for which the aid has been fixed
optimally.
23. The Constitutional Court has sent the observations of the participants and of the authorities of the respondent State
the management of the appellants and the next participant and to allow them to access
Express.
24. in the reply, the plaintiffs claimed that if a sudden legislative
changes from the end of the year 2010 the constitutionally guaranteed rights of investors
the photovoltaic power plants the State justifies the public interest, is
evident, that for a long time the protection of the alleged public interest
neglected and to edit the "outdated legislation" he hadn't done in a time when
It was not yet necessary to interfere with the rights of owners of already zprovozněných PV.
The promoters are convinced that there is status cannot be attributed to
borne by the operators of PHOTOVOLTAIC POWER PLANTS, since it is solely the result of the holding,
or omission of the State. The appellants do not challenge the State permission to do
measures to protect the public interest; such measures must, however, be
adequate and must not drift from the constitutional limits. As a result of the introduction of
levy, however, according to the plaintiffs, the costs shall be borne by the taxpayers of your
State energy policy (or Government measures against the growth of prices
electricity to final consumers). The Constitutional Court has repeatedly
He stated that it is not acceptable that certain selectively provided for
a group of private bodies bore the effects of the implementation of the State of the selected
social policy. The appellants agrees with the statement of the Prime Minister,
in its comments that stated that investors in RENEWABLE ENERGY has never been
guaranteed level of profit. Investors, however, was expressly guaranteed by the above
support per unit of electricity produced, with the guarantee and
investors ' expectations have been the introduction of the levy violated. These guarantees, which
State to undertake, through the constitutional principle of investor protection
legitimate expectations, since 2005, are still contained in the Act.
In such a situation cannot be investors ' expectations that the State will be listed
the guarantee of respect, described as unreasonable or illegitimate. If
The Ministry of finance and the President of the Government of the legitimate expectations of the investors in
PV in maintaining the aid dispute demonstrate that any evidence
even the Ministry of finance argumentation about the predictability of the amendments to the conditions
for existing installation and a wide awareness of their necessity does not
convincingly. In the reply, the plaintiffs also point to the fact that, even
in the past there was a systematic increase in the price of electricity, without
It sparked any reaction by the State. It is so obvious that, if the State in
the past did not press the public interest and a significant increase in the price
electric power has not prevented, not the threat of an increase in these prices or
the real reason for the introduction of the levy and subsidies at the end of 2010. (I)
If there was a legitimate public interest of the State to limit the growth of prices
electric power, a major disparity between the relatively slight consequence
This measures (reduction of electricity prices by about 5%) of the total
the cost of electricity over a major intervention in the property rights of the investors
(payment in the amount of 26-28%) in the PV shows that the public interest in this
If the intensity of the legitimate expectations of the investors shall not exceed,
the more that annual price increases exceeding 10% are not
exceptional even for other energy commodities is crucial to the financial
the influence on their customers. In this connection, the appellants
They point out that aid paid to producers of electricity from RENEWABLE ENERGY may not be
in direct relation to the price of electricity for final consumers, as
in the observations of the Prime Minister and the two ministries in more places
repeated. It was the decision of the legislature, that the burden of funding support
the development of RENEWABLE ENERGY has on the final consumers of electricity only when doing so
He was not limited to RENEWABLE ENERGY finance from other sources.
The plaintiffs, in their reply, the applicants dispute the statistics that is supported
the conclusion of the Ministry of Finance (e.g. point 299) on the radical shortening
the return on investment for 8-9 years. In the model the situation of PV installed
power 1 MW and investment costs and other economic
the parameters determined pursuant to decrees of ERUS return on investment to the PV or
before the introduction of the levy did not fall under the age of 13. It was only about 2 years
less than the return on the guaranteed. This corresponds to the usual
maturity of the Bank loans taken out on the construction of PHOTOVOLTAIC POWER PLANTS, which
ranged between 13-15 years. The two-year derogation from the law tracked
the maximum 15-year return period and in any case cannot
to justify the additional burden of payment for PV investors
represents. Unlike the Ministry of finance are also appellants
convinced that the introduction of the levy is to measure at least nepravě
retroactive. This is wrong in its retroactive effect shall be inadmissible
the form, i.e., in breach of article. 1 and 9 of the Constitution. The plaintiffs add that
a retroaktivita is, according to the cited award in case sp.. Pl. ÚS
53/10 of 19 April. 4.2011 (119/2011 Coll.) in accordance with the principle of the protection of
confidence in the law, if it is appropriate and necessary to the achievement of the law
the objective pursued and in the overall measurement "disappointed" the trust and importance
and the urgency of the changes is maintained for reasons of legal limits. How
described above, the following requirements are fulfilled in the case of the introduction of the levy
were not. The use of retroaktivního measures, in particular in relation to the
the aim pursued by the State required, respectively to populate the reference
the objectives could be used for other measures, in accordance with article 6(1). 4
paragraph. 4 of the Charter of fundamental rights and freedoms more investigated the nature and meaning
affected by fundamental rights. The appellants point out that of the material
the perspective of the drainage has also certain characters retroactive right. The introduction of the
levy was breached the guarantee of a minimum amount of aid for PHOTOVOLTAIC POWER PLANTS.
The content of this guarantee was a stable amount of aid for a period of 15 years from the
putting the device into operation. If part of this guaranteed
the period has to change the amount of aid depending on the date of entry of the PVPP
in the operation, as to change the reality in the past already has, and thus
the retroactive effect of the law right, because economically it is a situation
equivalent to the shortening of the guarantee. According to the plaintiffs cannot be on the removal of the
the point of view of the constitutional law viewed as a tax measure within the meaning of article.
11. 5 the Charter of fundamental rights and freedoms, but as a reduction
set the amount of the aid. With regard to the above, therefore, cannot be in
the review of the constitutionality of the removal to apply conclusions and case-law of the constitutional
Court concerning the limited review of tax measures and highlighting,
that the legislator has wide scope in the area of taxes for their own account. It is not
must not apply less strict proportionality test used the constitutional
the Court in the area of taxes, or other mandatory payments to the State.
The constitutional konformitu levy is necessary to measure the General step
the test of proportionality, which the Constitutional Court, for example, has defined in its
the award of 13 April. 8. in case the sp.. PL. ÚS 3/02 (N 105/27 SbNU
177; 405/2002 Coll.). The plaintiffs add that with regard to the nature of the
the values involved, which include the removal of the right of ownership and basic
particulars of a democratic State, it is not appropriate to apply the
the case under consideration or less rigorous "test of reasonableness" used the constitutional
the Court in the context of the review of the violations of economic and social rights. If
The Ministry of industry and trade on the sides of the 8 and 9 of its expression
stating that there was no violation of the principle of equality between
operators of PV, as a rational basis for the distinction are reduced
the investment cost of PV in 2009 and 2010, according to the plaintiffs, sidesteps
the fact that among the specific projects of individual operators of PHOTOVOLTAIC POWER PLANTS
There are fundamental differences, in particular in the investment costs,
individual terms and conditions, the method of financing, the chosen
technologies, etc., however the selected group of these investors
the introduction of the levy now discriminated against. The criterion of time
PVPP into service as the reason of the discriminatory approach of the legislature
does not hold water. This also applies for the benefit of electricity producers from other species
RES, which is paid to all aid under the law. The amount has not been
No, and yet it kept under review, and this support will significantly
reflected in the final electricity prices. In the opinion of the
The Energy Regulatory Office, in particular, the appellants argue that
Although the energy regulatory office mentions on how to calculate
discounted payback, return on investment calculations to PV in
his representation completely assigned only for return, which
It is significantly shorter than logically payback period discounted, moreover, is
in the table on page 4 of the expression incorrectly calculated with already broken
a five-year exemption from income tax, which also shortens the length of the
the calculated time of return. The appellants therefore stress that the criterion
maintaining the 15-year guarantee of return on investment is necessary to
clearly assessed using the discounted payoff, and calculation
presented by the energy regulatory office so devoid of relevance.
The plaintiffs in this context refer to the annex No. 4 of your
observations of 12 May. 12.2011, which contains the sample calculation
the discounted period of return on investment in PV, and completely in accordance with the
the above methodology, the Energy Regulatory Office. From this
the calculation it is obvious that, even if the introduction of a levy not to
the ultimate violation of its 15-year guarantee of return on investment was
This time as a result of the introduction of the levy extended to the very limit
the law guaranteed. In this case, it cannot be excluded that, in a number
investors was the introduction of the levy and the 15-year guarantee of return
investments violated, since, for the same project may be payback time
investments vary. Submission of 14 June. 5. a representative of the plaintiffs, 2012
that does not take the oral proceedings in the case.
25. The municipal court in Prague as a secondary party to the proceedings that to
the proposal of the Group of Senators has nothing to add, since it does not find it for the economical and
effective repeat already in it applied the reasoning. The city court in
Prague at the same time that agrees in this respect with the abandonment of the oral
proceedings before the Constitutional Court.
IV.
The diction of the contested provisions
26. The contested provisions of Act No. 180/2005 Coll.:
"TITLE III
PAYMENT OF ELECTRICITY FROM SUNLIGHT
Section 7a
The subject of the removal of electricity from sunlight
Subject to the levy for electricity from solar radiation (hereinafter, ')
is electricity produced from solar radiation in the period from 1. January 1, 2011 to
31 December 2013 in the establishment referred to the operation for the period from 1. January
2009 to 31. December 2010.
section 7b
Levy bodies
(1) a taxpayer exhaust the manufacturer if produces electricity from the Sun
radiation.
(2) the levy Payer is the transmission system operator or the operator
regional distribution system.
§ 7 c
The basis of levy
The basis for removal is the amount of value added tax to be paid by the payer
levy in the form of tariffs or the green bonus levy for administrations
electricity from solar radiation produced in the period--diversion.
§ 7 d
Exemption from levy
Exempt from the levy is electricity produced from solar radiation in the
production of electricity with an installed power plant producing up to 30 kW, which is
located on the roof construction of the perimeter wall of a building or the United
countries fixed basis registered in the cadastre of the nemo-vitostí.
section 7e
The rate of the levy
The rate of levy from the base of the levy in the case of payment in the form of
and 26% of the purchase price),
(b)) the green bonus 28%.
section 7f
Contribution period
Odvodovým period is the calendar month.
§ 7 g
How to select levy
(1) the levy Payer is required to knock down or select payment of base
levy.
(2) the levy Payer is liable to payment of the levy base 25 days
After the end of the odvodového period; at the same time, it is obliged to submit a
Bill levy.
§ 7 h
The administration of the levy
(1) the administration of the levy shall be exercised by the territorial financial authorities.
(2) in the Administration levy is in accordance with the tax code.
§ 7i
The budget destination of the levy
Drainage is the income of the State budget. "
The provisions of section 8-the words "with the exception of checks and its administration".
27. The contested provisions of the law No. 402/2010 Sb.
The provisions of article II, section 2:
"2. For the period odvodová months of January and February 2011 levy payer
liable and submit a statement of levy under section 7 g of the law No.
180/2005 Coll., as amended, effective from the date of entry into force of this Act,
the time limit for payment and submission of the accounts for the period of contribution
March 2011. "
28. The contested provisions of Act No. 357/1992 Coll.
The provisions of section 6 (1). 8:
"(8) the subject of the gift is tax free acquisition of allowances
greenhouse gas emissions in the years 2011 and 2012, for the production of electricity in
the device, which at 1. January 2005 or later produced electricity at the
sales to third parties and in which the proceeds from the activities to which the
by trading emissions of greenhouse gases, only
fuel combustion (hereinafter referred to as acquired free of charge, an allowance ') by the manufacturer
electricity. "
"§ 7a
The tax base allowances for acquired free of charge
(1) the taxable gift with free of charge acquired allowances is the average
the market value of the allowances to emissions of greenhouse gases to 28. February
the calendar year multiplied by the number of acquired free of charge
allowances for electricity production for the calendar year.
(2) the average market value of the allowances to emissions of greenhouse gases to 28.
February, the calendar year shall be published by the Ministry of
environment in a way that allows remote access. "
"§ 14a
The rate of tax allowances for the acquired donation free of charge
The tax rate for acquired free of charge gift allowances shall be 32%. "
The provisions of section 20 (2). 1 (a). and):
The words "with the exception of the acquired permits free of charge".
The provisions of section 20 (2). 15:
"(15) gift tax relief is the acquisition of a number of free of charge
acquired permits, which corresponds to the ratio of the average quantities produced
electricity from cogeneration of electricity and heat to the total quantity of
the electricity produced in the years 2005 and 2006. "
The provisions of § 21. 9:
"(9) in the case of allowances free of charge to the taxpayer acquired it is obliged to submit a
the locally competent tax administrators tax returns to tax donation to 31.
March of the calendar year. Part of this tax return
is the information the taxpayer on the share of electricity production and the share of production of heat
on total greenhouse gas emissions for the calendar year 2005 and
in the following years. "
29. The contested provisions of the law No. 346/2010 Sb.
The provisions of article II, section 2:
"2. The exemption referred to in section 4, paragraph 4. 1 (a). (e)) or § 19 paragraph. 1 (a). (d))
Act No. 586/1992 Coll., as amended, effective the day of the entry into force of this
the law, last used for the tax period, which began in
2010. "
In the.
Active plaintiffs ' evidence
30. The proposal to repeal the provisions of Section 7a to 7i, § 8 in the section "with the exception of
control and management "of the law No. 180/2005 Coll., the provisions of the article.
(II) point 2 of the transitional provisions of the law No. 402/2010 Coll., section 6
paragraph. 8, § 7a, section 14(a), section 20 (2). 1 (a). and in the section ") with the exception of the
free of charge acquired allowances ", section 20 (2). 15, § 21. 9 of Act No.
357/1992 Coll. and article II, section 2 of the Act No. 346/2010 Sb. was filed
a group of 20 Senators of the Senate of the Czech Republic, the
accordance with the conditions contained in the provisions of § 64 paragraph. 2 (a). (b))
the law on the Constitutional Court. In the case in question can therefore conclude
the fulfillment of the conditions of the locus standi on the side of the plaintiffs.
VI.
The constitutional conformity of the legislative process
31. The Constitutional Court is in accordance with the provisions of section 68, paragraph. 2 of law No.
182/1993 Coll., on the Constitutional Court, as amended by Act No. 48/2002 Coll.,
the procedure for checking the laws or other legislation obliged to
assess whether the legislation was adopted and issued a constitutionally
in the prescribed manner.
32. From the respective websites of the Chamber of deputies of the Parliament
The Czech Republic, it was found that the draft Act No. 180/2005 Coll. the Government
submitted to the Chamber of Deputies the day 13. 11.2003. The Bill was
approved on 23 June. 2.2005, in voting no 513 was for Bill of
103 and 166 deputies present, 44 were against. The Bill was referred to the
The Senate, which he discussed on 31 December 2004. 3.2005 and resolution No. 98 design
approved as amended by the Chamber of Deputies transferred. The law was not
the President of the Republic signed the statutory time limit. The law was approved
delivered to the signature to the President of the Government of the day 2. 5.2005. The law was promulgated by the
on 5 July 2004. 5.2005 in the collection of laws under no. 66 in 180/2005 Coll.
33. the draft law No. 402/2010 Coll., which were amended, inter alia,
Law No. 180/2005 Coll. and Act No. 357/1992 Coll., the Government presented a
The Chamber of Deputies on 14 July. 10.2010. The Bill was approved on 9 December
11.2010, vote no. 140, it was for the Bill from the present 159
members of 123 and 12 against. The Bill was referred to the Senate, which
It discussed the day 8. 12.2010. The Senate did not adopt this draft law
no resolution. The law was signed by President of the Republic on 15. 12.
2010 and announced 28 June. 12.2010 in the collection of laws on the amount of 144 under the
the number 402/2010 Sb.
34. Act No. 346/2010 Coll., which amended Act No. 586/1992
Coll., the Government submitted to the Chamber of Deputies the day 29. 10.2010, the President of the
the Chamber of Deputies declared on the proposal of the Government of the State of legislative emergency. The draft law
was discussed in the abbreviated hearing and was approved by 2 July. 11.2010
resolution No. 119. The Bill was referred to the day 3. 11.2010 Senate
that day 12. 11.2010 discussed and approved as a transferred
The Chamber of Deputies. The law was signed by President of the Republic on 23 December 2005.
11.2010 and announced June 8. 12.2010. in the collection of laws under 127 in the amount
number 346/2010 Sb.
35. The appellants argue that the law No. 346/2010 Coll., has been discussed in the
legislative emergency mode, which disqualifies the legislative process.
The Council majority, citing conforms State of legislative emergency
referring to section 99 of Act No. 90/1995 Coll., on rules of procedure of the
the Chamber of Deputies, in the wording of Act No 359/2004 Coll., that "the State is threatened with a significant
economic damage ". The assumption that the existence of applicable law could
cause immediate widespread damage, according to the plaintiffs, however, clearly
conceptually stray from legislative emergency mode, for which the publication
the conditions have not been made. Proponents also point to the extreme shortening
the statutory time limits for consultation between the readings in the House of Commons,
Therefore, the legislative process has provided members of the conditions on the same border
options for the master to discuss the substantive. As well, although it's certainly about
Government initiative, was ignored the rules of government legislation and case
was submitted to the Legislative Council, without consulting the Government.
36. In relation to the opposition of unconstitutional defects on the legislative process
the soil of the House it is necessary to point out the conclusions of the findings of the SP. zn. PL.
TC 55/10 of 1 March. 3.2011 (80/2011 Coll.) and the SP. zn. PL. ÚS 53/10 (see
above), which nekonstruují the approval procedure in the legislative scheme
emergency as per the procedure unconstitutional, but to underline the overall context
debating the contested draft. Derogation power of the Constitutional Court
nenastupuje automatically (objectively) when any doubts about
merits tests are applied state of legislative emergency, but only in situations where it is
materially affect the core of the democratic parliamentary debate, which can be
considered only in relation to the positions of the actors themselves of parliamentary
(House) debate. While the draft sp.. PL. ÚS 55/10 and SP. zn.
PL. ÚS 53/10 minority members (political opposition) claimed the absence of
There is sufficient space for the legal and political debate, therefore, the impossibility of
affect the most likely decision convincing minority
the arguments in relation to the draft later designated as law No.
346/2010 Sb. the political opposition (Group members), this claim
raised and the proposal for the Constitutional Court did not, as in relation to other
the law has done so. This can be done in only a conclusion, and that, in
the case of the fabric of the present in the press shall not be based
the parliamentary debate in legislative emergency mode in effect for
deficit by pointing to any undue restrictions on the parliamentary
the rights of political minorities. The purpose of the constitutional functions of the parliamentary opposition
is not always and in all circumstances play a position different from the
most of the Government, and even from her cannot require that your opinion on
present material in the course of time, in the face of reality.
The task of the Constitutional Court, then, is not-on the basis of the initiative of the members of the other
the parliamentary Chamber to provide protection of rights-parliamentary minorities,
that itself-in relation to specific Materia-the result
the hearing referred to the master on the soil for the Chamber of Deputies
unconstitutional.
37. From the stenozáznamu from the first day 25. meetings of the Senate on 12 June 2006. November
2010 implies that the Prime Minister by letter of 27 March 2003. asked October 2010
on behalf of the Government, the Senate, to discuss the draft Bill from the Senate Press No.
366 (a draft law amending the Act No. 586/1992 Coll.).
summary proceedings, pursuant to section 118 of the Act No. 107/1999 Coll., on rules
the order of the Senate, as amended by law no 172/2004 Coll. pursuant to this provision in the
the shortened hearing may the Senate discussed the Bill forwarded
The Chamber of Deputies, where this proposal has been discussed in the Chamber of Deputies
House in abbreviated proceedings under Act No. 90/1995 Coll., on rules
the order of the Chamber of Deputies, in the wording of later regulations, and if the
the Government asked for it. The proposal according to § 118 paragraph. 1 of the rules of the Senate
approved: registered 78, quorum, 40, for 43, against 34. The amount of the
judgment SP. zn. PL. ÚS 55/10 of 1 March. 3.2011 (80/2011 Sb.)
section 104 reasons stressed that the Constitutional Court in the case sp..
PL. ÚS 55/10 on the proposal, which is a group of opposition members of Parliament
sought annulment of the contested act, immediately after the adoption of the
the reason that was truncated on its constitutionally guaranteed rights in the framework of the
the legislative process. "A different situation, however, would occur, if the Group
MPs filed a similar proposal with a longer time lag, i.e.. After
a few months or even years after the adoption of the law. Such
the time gap could be considered as a (additional, implied the)
the agreement of the members concerned with the procedure of parliamentary majority. At the same time would
such a procedure would not permit fair protection of already broken rights concerned
Members, as Parliament would decide on the Bill for the changed
circumstances, or in a different proportion of the forces within his Chambers. " Find SP. zn.
PL. ÚS 53/10, then on to the question of doubt about the composition of the Senate at the time between the
the election and the first meetings of the Senate clearly stated that the Senate shall meet in
obměněném composition of its first meeting (section 24, paragraph 2, and article 26 of the rules of
the order of the Senate), which at the beginning of his term of Office [cf..
resolution of 1 June 2006. March 2011 SP. zn. PL. TC 47/10 (available on the
http://nalus.usoud.cz)]. To this day his existing functional
period, and therefore meets in its current composition, which does not affect the
the duration of the mandate of the dosluhujících senators. Those indeed, regardless of the date of the
following the first meeting shall lapse on the expiry of their electoral mandate already
the period within the meaning of article. 25 (a). (b)) of the Constitution (see paragraph 138 cited
the award). In this respect, the Constitutional Court has considered the obvious, that the proposal in the now
the present case cannot succeed in the part in which disputes
the legislative procedure in relation to senátnímu print no. 366. For approval
master the Senate according to the findings of the Constitutional Court on 12. 11.2010,
to the publication of law No. 346/2010 Sb. 8 July 2005. 12.2010. To submit a proposal for the sp.
Zn. PL. ÚS 17/11 occurred on 11 July. 3. in 2011, when the proposal was delivered to the
The Constitutional Court. The Constitutional Court assessed the situation as "distance
a few months "in the sense of finding SP. zn. PL. ÚS 53/10 (see above), when
You can no longer provide the protection of the rights of the minority legislators (senators)
through the abrogation of the law. In the matter of an objective was not detected
barrier on the side of the claimant that he would have made it impossible to submit a proposal
without undue delay after the examination and publication of the contested act
Similarly, as did a group of members of Parliament in matters of SP. zn. PL. ÚS 53/10 and
SP. zn. PL. ÚS 55/10 (see above). In these proposals have been submitted with the
the line of argument relating to misuse of the Institute of legislative emergency, already
9.12. 2010, although the contested laws have been promulgated in the collection of laws
until 8 June. 12.2010. On the same date was announced in the amount of 127
Collection of laws and the law No. 346/2010 Sb.
38. Beyond the abovementioned, it is clear that it is significantly affect the other limit
laid down in the award SP. zn. PL. ÚS 55/10, and that the question of the political relationship
forces in the Chambers of the Parliament and its change. If the Constitutional Court did not
even in the past, the question of the unconstitutionality of the composition of the Senate, in the meantime, after
elections and the first meetings of the Senate (see find SP. zn. PL. ÚS 53/10),
should be noted that in its other considerations had to the constitutional
the court eventually include even just a different composition (including political
the ratio of forces) of the Senate at the time of submission of the proposal. Finally, he had to weigh and
the different role of the Senate (and abridged) in the legislative
process in relation to the Chamber of Deputies (the legislative and the Institute
emergency), in which takes place the basic political clash between the Government's majority
and the opposition and that is de constitutione lata in the legislative process
the last word (article 47 also the Constitution, article 50, paragraph 2, of the Constitution). The difference
now follows the facts and from the fact that the plaintiffs in the cases
SP. zn. PL. ÚS 53/10 and SP. zn. PL. ÚS 55/10 Institute
legislative emergency, primarily concerned the Group of opposition members of Parliament, yourself
on the basis of its constitutionally-political considerations, a proposal for the repeal of law No.
346/2010 Coll., though they have not had the opportunity to do that in similar
cases (cited above). If the legislative procedure in the
both chambers of Parliament has above all to allow persons interested in it
"the fair assessment and discussion of the draft Parliament" [discovery of 31 May.
January 2008, SP. zn. PL. ÚS 24/07, part of the X/a (N 26/48 SbNU 303; 88/2008
SB.), find SP. zn. PL. ÚS 53/10 of 19 April. 4.2011, paragraph 106], not in the
the proceedings found that the application of § 118 paragraph. 1 of the rules of the Senate
the fulfillment of this request excluded.
39. The Constitutional Court finds that the adoption and publication of legislation,
which are subject to review, within the limits of the Constitution laid down
competence and constitutionally prescribed way.
VII.
The legal evaluation of the Constitutional Court
40. the proposal is not, as regards the alleged unconstitutionality of the content of the contested
provisions, reasonable.
41. With regard to the structure of the objections of plaintiffs and the content of the contested
the statutory provisions, the Constitutional Court divided the course of its examination of the
the three parts. In the first place the question of the constitutionality of the introduction of the levy from
electricity from sunlight (Act No. 180/2005 Coll.
Law No. 402/2010 Coll. and the transitional provisions of the law No. 402/2010 Sb.)
in the second row is a review of the constitutionality of the imposition of tax on the donation
free acquisition of allowances (Act No. 357/1992 Sb.)
Finally, article II, section 2-transitional provisions of Act No. 346/2010 Sb.
in the future, abolishing the income tax exemption under section 4 (4).
1 (a). (e)) or § 19 paragraph. 1 (a). d) of Act No. 586/1992 Coll. (the revenue from
the operation of the solar system).
VIII.
A review of the contested provisions of Act No. 180/2005 Coll. and Act No.
402/2010 Sb.
(payment for electricity from sunlight)
42. Subject to the levy for electricity from solar radiation is within the meaning of section
7A of Act No. 180/2005 Coll., on the promotion of electricity from renewable
sources of energy and on amendment to certain laws (law on the promotion of the use of
renewable sources), as amended by law No. 402/2010 Coll., electricity
produced from solar radiation in the period from 1. January 2011 until 31 December 2006. December
2013 in the establishment referred to the operation for the period from 1. January 2009 until 31 December 2006.
December 2010.
43. The Constitutional Court had proven how the applicant and the authorities of the
the State administration of nerozporovaná the basis of the situation that led to the
the amendment to Act No. 180/2005 Coll., Act No. 357/1992 Coll. and Act No.
586/1992 Coll., this was the State of, when the rapid development of power generation from RENEWABLE ENERGY
caused growth above the cost of its financing, which led to the
Revisiting the earlier position of the State, to public support for energy production
from RES. According to the opinion of the Government action was entirely legitimate and made
in the public interest due to avert the socio-economic impacts in the
maintaining all the rights and guarantees arising for investors to
equipment for the production of energy from RES on the basis of Act No. 180/2005 Coll.
The appellants argue that the adopted legislation is in breach of
the Constitution guaranteed the right to own property, guaranteed by article 11 of the
The Charter of fundamental rights and freedoms, contrary to the freedom of business from
article. 26 of the Charter of fundamental rights and freedoms and article. 16 the Charter of fundamental
rights of the European Union, with the basic necessities of a democratic and
the rule of law according to the article. 9 (2). 1 of the Constitution, because all of the contested
the provisions of the law suffers from a retroactive effect; and with the constitutional principle of equality
before the law under article. 1 and 3, of the Charter of fundamental rights and freedoms.
44. The above prices for electricity from renewable energy sources and green bonuses is
set out in section 6 of Act No. 180/2005 Coll., on the promotion of electricity from
renewable sources of energy and on amendment to certain laws (the law on the
promote the use of renewable energy sources), as amended by Act No 137/2010
Coll., according to which the ERO determines the calendar year advance purchase
prices for electricity from renewable energy sources (hereinafter referred to as the "purchase price")
separately for different types of renewable energy sources and green bonuses
so, for the equipment referred to in the service after the date of entry into force of this
the Act was in supporting farm prices reached 15-year period
return on investment in terms of compliance with the technical and economic
parameters, which are, in particular, the cost of an installed unit
performance, efficiency of primary energy content in either recoverable
resources and time use of the equipment and which are laid down in the implementing
the law, and at the same time maintain the amount of revenue per unit
electricity from renewable energy sources in support of farm prices for
15 years since commissioning as a minimum, the
taking into account the industrial producer price index. For devices referred to in
before the date of entry into force of this Act is to be for 15 years
minimum amount of feed-in tariffs established for the year 2005 in accordance with
the existing legislation taking into account the industrial price index
producers. In the determination of feed-in tariffs and green bonuses ERO is based on the
different acquisition costs, connection and operation of each of the species
equipment, including their time of development. The purchase price set by the ERO for the
the following calendar year must be less than 95% of the value
feed-in tariffs in force in the year in which the new determination shall be decided,
It does not apply to the determination of feed-in tariffs for the following calendar year
for those types of renewable resources, which is in the year in which
the new determination of feed-in tariffs, achieved return on investment
less than 11 years; ERO in the determination of feed-in tariffs in accordance with
paragraphs 1 to 3.
45. The Constitutional Court notes that however was not the provisions of § 6 of the law No.
180/2005 Coll., on the promotion of electricity from renewable energy sources
and on amendments to certain acts (the Act on the promotion of the use of renewable
sources), as amended by Act No 137/2010 Coll., laying down the level of prices for
electricity from renewable energy sources and green bonuses Amendment Act No.
402/2010 Sb. prejudice, there is no doubt that, as a result of the introduction of new
the provisions of § 7a and the following, which establishes a payment for electricity
from the solar radiation, in essence, to change the amount of the aid,
that is provided by the operators of PHOTOVOLTAIC POWER PLANTS.
VIII./a
Objections to retroactive
46. the contested provisions retroactive objection must be stated
the following. Law No. 402/2010 Coll. took effect on 1 May 2004. January 2011.
The revised provisions of Section 7a of the paragraph. 1 law No. 180/2005 Coll. explicitly
sets the subject of the levy, which is "electricity produced from solar
radiation in the period from 1. January 2011 until 31 December 2006. December 2013. " In terms of the
the existing constitutional limits tax legislation landed the Constitutional Court
is strictly speaking not a retroactive effect in any sense of the word. For example. in
finding SP. zn. PL. ÚS 9/08 of 12 June. 7.2011 (236/2011 Sb.)-item 15-
landed the binding efficiency of legal regulation of the taxation period. About
the retroactive effect, and that the retroactive effect was in the wrong things SP. zn. Pl. ÚS
9/08 with regard to the fact that the law took effect in the course of the
the tax period to which the tax liability was grounded. In
now the facts is, however, clear that the tax period or periods,
where is the electricity subject to levy, with the effect of the legal
prescription only begins, therefore, that the subject of the levy is not electricity
produced before the effect of the law.
47. The Constitutional Court, however, also had to take into account the specific
the issue of the regulated market for electricity from renewable energy sources, and
in particular, guarantees, which contains section 6 (1). 1 law No. 180/2005 Coll.
Because it is obvious the special binding levy according to § 7a and subs. Act No.
180/2005 Coll. on the total system to support the production of electricity from renewable
energy resources, it was necessary to consider the question of eventual retroactive
legislation in terms of the 15-year duration of the guarantee within the meaning of § 6
paragraph. 1 (a). (b) point 1 of the law) no 180/2005 Coll.
48. In this respect, the Constitutional Court States that the provisions of Section 7a to 7i
the contested law operates in principle, because the retroactive effects of the false in
as a result the future occurs just about the amount represented by the amount of the
levy to reduce support to producers, which guarantees a 15-year period from
section 6 (1). 1 law No. 180/2005 Coll. began to accrue before the effect of the law
No 402/2010 Sb.
49. Under these specific conditions, the Constitutional Court has addressed objections
the plaintiffs in the light of its legal conclusions on issues of false
retroactive, and it is with regard to the insertion of the period according to § 7a in the
the period of § 6 (1). 1 (a). (b) point 1 of the law) no 180/2005 Coll.
50. The Constitutional Court in its case-law has repeatedly defined the contents of
the concepts of true and false-retroactivity (retroactive) law
[cf. in particular find SP. zn. PL. TC 21/96 of 4 June. 2.1997 (N 13/7
SbNU 87; 63/1997 Coll.), in which a 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. ÚS 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).
51. As already stated, the Constitutional Court in its finding SP. zn. PL. ÚS 53/10 from the
19 July. 4.2011 (119/2011 Sb.-disentující Package, Judge J, Crust and
The Constitution does not contain a Lastovecká), an explicit prohibition on retroactive laws
standards for all areas of the law, however, the principle of the rule of
State pursuant to 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. award of 8 June
1995 SP. zn. IV.-215/94 (N 30/3 SbNU 227), the finding of the Constitutional Court
The Czech and Slovak Federative Republic of 10 June 1999. December 1992 sp.
Zn. PL. ÚS 79/92 (award No. 15 of Collections and findings of the resolution of the Constitutional Court
Czechoslovakia, Prague: Prague, Linde., 2011, p. 92)]. 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 (see above), the award of 13 April. March 2001, SP. zn. PL. ÚS 51/2000
(N 42/21, 128 SbNU 369/2001 Coll.), from 6 December. February 2007, SP. zn.
PL. ÚS 38/06 (N 23/44 SbNU 279, 84/2007 Coll.)]. Only in this case
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.
52. These principles are also the criterion for admission
exemptions from the prohibition of retroactive right, some of which, in its present
the case law was adopted and the Constitutional Court. For example. in its finding, the sp..
PL. TC 21/96 (see above) stated 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 (L.,
op. cit., p. 1102) ". For another example, the admissibility of retroactive right
called the neaplikování law on the facts which occurred in
the time of its effectiveness if the Constitutional Court noted the contradiction of such
legislation with the constitutional order and the application of this rule
Regulation in a vertical relationship, i.e., the legal relationship between the State
and an individual. exceptionally, in horizontal relations, would lead to
violations of the basic rights of the individual [cf. award of 18 December
2007 SP. zn. IV.-1777/07 (N 228/47 SbNU 983, paragraph 19), find SP. zn.
PL. ÚS 15/09 of 8 May. 7.2010 (139/141 58 SbNU; 244/2010 Coll., points
53 and 54)].
53. 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).
54. In connection with the question of the admissibility of the false-retroactivity is
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
(see above), from 1 September 2003. July 2010 SP. zn. PL. ÚS 9/07 (N 132/58
SbNU 3; 242/2010 Coll., paragraphs 80 et seq.)]. This provision establishes the right of
each use of their property in peace. According to settled case-law,
The European Court of human rights is the notion of "property" contained in the
This provision should be interpreted so that it has autonomous scope, which is not
limited to the ownership of tangible assets and does not depend on formal qualifications
national law (judgment of 22 June 2004 in case of complaint
No 31443/96-Broniowski against Poland, paragraph 129). Can include both
"the existing assets, assets, including receivables, on the
the basis of the complainant may claim that at least has "legitimate
"expectations reach a certain use of ownership rights. The Constitutional Court
This principle, in accordance with the case law of the European Court of human
the law stated that "it clearly stands out the concept of the protection of legitimate
expectations as a property right that has already been individualizován
Act, or the individualizovatelný directly on the basis of legal
Edit "[find dated 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
The additional protocol may also occur on the part of the legislature, if the
would change the law to prevent the acquisition of an asset, to which certain
operators spoke to a legitimate expectation (see find SP. zn. Pl. ÚS
2/02).
55. The Constitutional Court finally recalled its conclusions contained in the finding SP. zn.
PL. TC 21/96 (see above), which is the abolition of the old and the new
the legislation is not necessarily linked to the principles of equality and protection
citizen confidence 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.
56. Due to the fact that, in principle, the Constitutional Court came to the conclusion about the
false retroaktivitě the provisions of Section 7a to 7i, § 8 in the section "with the exception of
control and management "of the law No. 180/2005 Coll., on the promotion of
electricity from renewable sources of energy and on amendment to certain laws
(Act on the promotion of the use of renewable energy sources), as amended by Act No.
402/2010 Coll., and the provisions of the article. (II) point 2 of the transitional provisions of the Act
402/2010 Coll., also had to deal with the question of its admissibility.
Although it is a fundamentally retroaktivita permissible, cannot be
a priori excluded that with regard to the principle of legal certainty and of the protection of
confidence in the law outweighs the interest of individuals to further the duration of an existing
above the law by the legislator expressed public interest in its
change. The Constitutional Court therefore had to determine whether, on the side of the affected
operators of PV is not given such a constitutionally relevant interest in maintaining
the former statutory price for electricity from renewable energy sources and
Green bonuses without its further reduction of dispersal, which would
mutual measurement outweighed the public interest in its reduction.
Such interest to operators of PV in the matter of the Constitutional Court from below
the reasons given did not.
VIII./b
International comparison of judikatorních conclusions
57. The Constitutional Court předesílá that for the overall understanding of the issues
the use of energy from photovoltaic facilities in other countries
The European Union, the UNITED STATES and China met with Renewables Global Status report
Report (GSC), issued at the request of the UNITED NATIONS organizations REN21 (Renewable Energy
Policy Network for the 21st century, URwww.ren21.net). This organization publishes
Since 2005, the evaluation reports as a result of efforts to comprehensively capture the
the overall world situation regarding renewable energy.
The latest report is from the year 2011 and was published in August 2011 (see
http://www.ren21.net/REN21Activities/Publications/GlobalStatusReport/ta
bid/5434//URDefault.aspx). This is the most comprehensive worldwide report
that summarizes the results of the available statistical data, reports and
professional communication from the Government, non-governmental and international institutions and the
industrial associations. According to the last annual report have experienced
the photovoltaic industry is an extraordinary year, when global production and markets
more than doubled compared to the year 2010. It is estimated that overall,
globally, it was the increase in performance of the 17 GW (compared with less than
7.3 GW in 2009), bringing the total amount reached about 40 GW, which is
seven times more compared to the performance of five years. The report also draws attention to the
some of the existing preferential tariff (FIT,
feed-in-tariffs) in the world are currently subject to re-evaluation.
In particular, many countries recasts solar photovoltaic tariff policy,
to alleviate the rapid growth in the number of facilities, which in many cases far
exceeded expectations as a result of the unprecedented price reductions in solar
Photo (the price of panels) in the years 2009-2010. As the Constitutional Court
found from the monitored groups of countries (Slovakia, Federal Republic of
Germany, Italy, Austria, Poland, Bulgaria and Spain) no
accept reverse to change the conditions to support the production of electricity from
renewable sources of energy, however, the case law of the constitutional and Supreme
the courts of the above mentioned States, as will be further discussed, is already expressed to
conditions under which you cannot insist on the requirement of the immutability of the law
on the legal relations already lasting.
58. For example, the Federal Constitutional Court in the matter of the constitutionality of the law on
renewable energy sources in the resolution of the SP. zn. 1 BvQ 28/10 dated
23.9. 2010 stated that a retroaktivita means that
the legal reality, the emergence of legal relations and their legal consequences
which occurred before the effect of the new law, shall be assessed according to the law
earlier. However, if it takes before the resulting legal relationship continues,
assess the effectiveness of the new law, from the date referred to in the New Testament i
the legal consequences of the legal relationship arising after the effectiveness of the new
the law. Constitutional limits the admissibility of retroactive are false
exceeded only by the legislature would be selected if a
retroaktivita was inappropriate or unnecessary to achieve the purpose of the law
or if the permanent interests of the persons concerned outweigh the zákonodárcovými
the reasons for legislative changes. General expectations that a valid
the law remains unchanged, namely, the ústavněprávně is not protected. In the resolution of
SP. zn. 1 BvR 3076/08 of 18 June. 2.2008 (BVerfGE 122, 374 ff)
The Federal Constitutional Court stated that the provisions of section 19 of the EEG 2009 has
retroactive effects, because it also applies to bioenergy equipment
put into operation before the entry into force of the Act (i.e. before 1. 1.2009)
However, the plaintiff could not trust a permanent unchanging existence of § 3
paragraph. 2 EEG 2004. Indeed, section 19, paragraph. 1 EEG 2009 pursues the legitimate objective in
avoid unnecessarily high financial burdens for operators
distribution networks, and ultimately also of customers (IE.
electricity customers), who, as a result of the countervailing
a mechanism in the Act-EEG 2009 must pay a so-called.
differential costs, thanks to the distribution of one or more
big bioenergy facilities on several small devices.
59. From the constant case law of the Italian Constitutional Court, which is not
energy, shows the area of the fabric of the restrictions for public expenditure
the obligation to respect the legal framework arising from the rights of the European Union,
While national legislators are allowed to intervene through
the reduction in the expenditure measures, if required by the economic situation
(the national account deficit) with the only restriction, which is unique
arbitrariness and evident neracionálnost changes (ex plurimus find
No 120/2008 of 14 July. 4.2008). As regards the exemptions and benefits in
the area of tax law, is completely left this edit on legislators and
its free field of activity in the field of tax legislation, and
constitutional law review focuses on the apparent arbitrariness (arbitrage), and
irrational (ex plurimus find no 431/1997 of 16 September. 12.1997).
60. The Austrian Constitutional Court (Verfassungsgerichtshof-VfGH) in its
decision SP. zn. G 6/11-6 of 16. 6.2011 VfGH rejected the proposal on the
voicing the unconstitutionality of legislation that lowered the age
limit for entitlement to family allowances from 26 years to 24 years for the
dependent children (with some tax implications). VfGH came to the
the conclusion that in this direction is given to lawmakers a wide field of reflection and in the
following up on its earlier case-law stated that a simple trust in that
the current legal status of the nedozná changes, does not enjoy constitutional protection.
As is clear from the explanatory memorandum, the contested legislation was adopted
just for budgetary reasons.
61. The Polish Constitutional Court in judgment SP. zn. P 24/05 of 25. 7.2006
which review the provisions of section 9 (2). 3 the Energy Act, which
authorizes the Minister to issue the regulation imposing an obligation of economy
electricity undertakings to purchase electricity and heat from unconventional and
renewable energy, said: "the energy industry is subject to the laws of the
of the regulated market. Access to sources of energy is essential for
the existence of the society and individuals, as well as for the sovereignty and
the independence of the State, i.e. to ensure the freedoms and rights of persons and citizens.
Ownership of the energy sources creates a presumption of the fulfillment of the General
the benefit of the Republic of Poland, which is expressed in the article. 1 of the Constitution. The area of the
energy management combines different constitutional values and principles
which include: the freedom of economic activity (article 22 of the Constitution), security
citizens and the principle of sustainable development of the State (article 5 of the Constitution) and the protection of
environment (article 74, paragraph 1 and 2 of the Constitution). The contested legal provisions is
one of the elements, which the public authorities exercised influence on the energy
industry for the purpose of the requirement of economic efficiency, which must be
listed in accordance with the constitutionally expressed needs relating to
achievement of the general benefit. How the specific nature of the energy market
as a regulated market, as the above constitutionally expressed needs
justify restrictions on the freedom of economic activity in this sector
economy. ".
62. The question of retroactive deal with even the Supreme Court of Spain, and
in connection with the law of electrical energy from renewable
resources, specifically, with Government Regulation No. 661/2007, the decider in the
a few cases (147/2007-Eolic Cat Eolica Associacio de
Catalunya; 149/2007-Nueva Generadora del Sur; 151/2007-Consultora
de Financiación y Asociados y Alferglass Integral and 152/2007-
Tarragona Power), proclaimed on 9 December identically December 2009. In General, the
The Supreme Court of Spain in accordance with the case law of the Constitutional Court notes
that the principle of legal certainty cannot be equated with an absolute neměnností
legal editing. (I) as regards the application of the changes in the implementation of energy
policy, is the legislature (as well as e.g. in the case of tax
gifted with a certain degree of legislation) discretion. In the above mentioned
the decisions of the Supreme Court with reference to the law No 54/1997,
electricity, (del Sector Eléctrico) noted that this entitles
Government to introduce the methods of calculation and update of compensation for renewable
energy, and on the basis of objective, transparent and
non-discriminatory criteria. The legislation, while according to the
The Supreme Court commits the Government to ensure a reasonable profit after
the lifetime of the installation, while the law a reasonable profit
("reasonable profit") is defined as the return on investment with regard to
the value of money on the capital market. In other words, the Government can in this
the area should be amended legislation as it deems appropriate, subject to the conditions that the
the installation will not be subject to a special scheme in relation to the return
materially affected their investment (in the present case was the time
life established for 25 years and a reasonable profit on the basis of the
the expert report on the 7% after deduction of taxes). The Supreme Court of
accepts the argument of public economic interest. In the context of
with the consequences of retroactive legislation, then the Supreme Court of judikuje,
retroaktivita as such, under no circumstances does not lead to the invalidity of the
the new legislation. However, if for example. devices subject to the amended
legislation as a result of these measures sustains a loss, this may be based
the liability of the State for the damage.
63. The Croatian Constitutional Court decision SP. zn. U-I-3610/2010 dated
15.12. 2010, in which he has dealt with a flat-rate reduction of all pensions of
10% of the amounts previously paid, said that lawmakers is entrusted to the
the legislative power of the legislative change the adjustment of the pension insurance scheme for
order to adapt it to the changed economic and social conditions
the country or for the purpose of stabilizing it, i.e.. create the conditions for the
sustainable pension system, including the adoption of measures
aimed at achieving savings of public finances and the stabilisation of expenditure
the State budget. The right to a pension does not mean the right to a certain amount of
retired. Maybe the loss of certain parts of (percent) of the pension or other
pension benefits received by that time, which may be the result of
new legislative measures that determine the pension rights of former
insurance, also does not, a priori, the interruption of the essence of the right to a pension
After the amount of time that is perhaps the loss of a certain part of the earlier pension
the result of the general benefits of the new definition and is proportional in terms of
their effects.
64. Of the relevant case law of the Supreme Court of the UNITED STATES to the
the issue can draw attention to the most important decision for which are
considered to be things the United States v. Darusmont, and United States v. Carlton.
In the decision of the United States in 449 Darusmont U.S. 292 (1981), when
review the changes to the income tax Act, adopted in October 1976, which
apply to transactions made after 1. January 1976, the u.s. Supreme Court
He formulated the basic principle of allowing retroactive effect: "Taxation is not even
penalty or liability of the taxpayer, which accepts the
contractual basis. It is the only way of dividing the costs the Government between those
who are to some extent are entitled to enjoy the benefits, and those who must carry the
burden. Because no citizen is exempt from this obligation, his back
the imposition of the strict rule does not violate the due process of law, and to attack
the current tax is not sufficient to note that the event subject to
Dani, IE. achieve intake, preceded the law. ". In the area of retroactive
the application of the tax legislation of the USA is the most referred to the judgment of the
United States v. Carlton, 1994, 512 U.S. 26 (1994). The majority
the opinion of lay down a standard that has to be in these cases
used by: the requirement of due legal process applicable to tax
laws with retroactive effect is therefore the same as that which is
apply for retroactive economic legislation: "provided that it is
retroactive application of the law supported a legitimate legal purpose
pursued by rational means, a decision on the reasonableness of such
the legislation remains in the exclusive competence of the legislative and executive power
-“.
VIII./c
Successive conclusions of law
65. The Constitutional Court, in particular předesílá that the legal issues
cannot be seen without taking into account the specific economic situation of the State,
for which the legislature approached the applicant contested a restrictive
measures. These economic reasons are found extensively in
representation of the Government and relevant ministries, which were
the plaintiffs introduced, the Constitutional Court therefore considered necessary and
It is necessary at this point again beyond referred to in the description of proposal
divorce.
66. The Constitutional Court stresses in this context that the economic situation
State reasons, respectively, which undeniably are in an effort to
State to avert the adverse economic consequences of the decision, that
the legislature has made, provided, that no longer corresponds to the economic
the reality, they cannot by themselves from the constitutional point of view to defend the adoption of such
the legislation, which would have caused interference in the law retroactively to own
the assets of a particular group of subjects. For the accession of the other below
However, such a procedure defined conditions for the legislature constitutionally
souladný can be considered.
67. On the issue of reducing State aid and the protection of legitimate expectations
the Constitutional Court expressed in paragraph 159 above, the cited award SP. zn. PL.
TC 53/10 of 19 April. 4.2011 so that "the determination of the contribution from the State
the budget for a specific purpose and for a specific group of people always depends on the
about the extent to which the legislature found its effectiveness,
or the public interest in its provision. This is particularly true in the case of
When it is a post whose provision is the only beneficiem of the
the parties of the legislature, without at the same time it was associated the fulfilment
a fundamental right or freedom. While operators concerned could not
relying on that, over time, this amount will not reevaluate the legislature.
Not omit or related responsibility of the Government and Parliament
for the State of the public finances, which is related to the privilege of the legislature
customize the State budget expenditure of its real possibilities and current
needs in the form of amendments to the regulation of entitlement spending.
68. The Constitutional Court in the present case, now considered a priority
the fact that, according to the Energy Regulatory Office and the
The Ministry of industry and trade, even after the adoption of the claimant contested
provisions shall continue promoting the use of renewable energy sources
energy, and it shall ensure, to the extent that producers of electricity from RENEWABLE ENERGY law
enshrined the guarantee amount of revenue per unit of electricity in support
farm prices for 15 years, and at the same time is guaranteed to be free from
the return on investment of 15 years from putting the device into operation. The constitutional
the Court together with the observations of the Government were submitted to the annex, which
It follows that these statutory guarantee producers of electricity from RENEWABLE ENERGY
will be retained. From this point of view is not a relevant argument
the plaintiffs, which disputes the claim of the Government regarding the return
investment in the time before the introduction of the exhaust in the length of 8-9 years. Indeed, even from
the observations submitted by the plaintiffs and their calculation of the corresponding
decrees of the Energy Regulatory Office, shows that for the typical
Project 1-MW PV was the return to the level of 13 years and
the introduction of the levy, approached the border for 15 years. This fact, according
the plaintiffs also corresponds to the usual maturity bank loans
drawn to the construction of PHOTOVOLTAIC POWER PLANTS, which ranged between 13-15 years. Is
clearly, therefore, that the Constitutional Court monitored the legal 15-year guarantee
the period of return on investment, whether simple or (in model example
the present applicant) real, has been observed. If the plaintiffs
talks about significantly negative economic impact of the contested measures,
It is possible to conclude that this is not their claims on their part
důkazně supported by enough.
69. the appellants, however, categorically reject What is the claim of the Government of
maintaining the amount of revenue per unit of electricity. Condition maintenance of the above
revenue per unit of electricity from renewable resources in support of
farm prices for a period of 15 years from the year of commissioning
as a minimum, taking into account the industrial producer price index is
set out in section 6 of Act No. 180/2005 Coll., on the promotion of electricity from
renewable sources of energy and on amendment to certain laws (the law on the
promote the use of renewable energy sources), as amended by Act No 137/2010
SB. The appellants submit that this guarantee in terms of PV
cannot be seen as a guarantee of revenue within the meaning of the accounting items as reported in
its representation of the Prime Minister, but as a guarantee for the amount of the income.
70. The Energy Regulatory Office has submitted to the Constitutional Court a table
showing the income (in the form of the internal rate of return IRR percentage) and
a simple payback period for new sources of PV. From the presented table
The energy regulatory authority deduced that even after the impact of removal on
the return on investment are achieved IRR (internal rate of return) over the
levels of WACC (weighted average cost of capital) and the return on
do not fall below the level specified limits of 15 years, and regardless of the
the method of financing for individual projects. Rate valid
for the years 2009 and 2010 after levy varies depending on the
installed PV power between 6.94% to 10.22%, the simple payback period
then between 10-12 years. The Energy Regulatory Office shall, at the same time notes that the
the fact that the investment made is not able to produce sufficient
cash flow in some of the years of its existence, to cover interest payments and
the principal of the loan, which is provided for a shorter period than the period
the expected return, does not mean that such investment
the estimated rate of return does not-this is only a problem with cash flow,
that is invoked by the various requirements on its flow over the life of the
investment, not the return on investment as a whole.
71. The Constitutional Court thus concluded that the result of said receipt
the claimant contested parts of the law No. 402/2010 Coll., is from the perspective of
investors, who put the device into operation for the period from 1. January 2009
until 31 December 2006. December, 2010, only a temporary effect on profitability caused by the
the increase in the cost of the newly established liability and the resulting
extension of the period of return on their investment. Support system and
principles of setting regulated prices, modified by law No. 180/2005
Coll., but investors continue to guarantee such conditions to reach
simple return on investment period of 15 years. The change is so in relation to time
return translates only into it that its achievement will be carried out in
the longer (but retained by law) term than producers
electricity from RES. This is a consequence of the de facto but in terms of
the principle of legal certainty and of the protection of the right to build the necessary confidence in the
the situation with the mere reliance on State aid, that the use of
renewable energy sources will not be changed in the future. Such
trust but constitutionally unable to admit to the protection (see find
The Constitutional Court, SP. zn. PL. ÚS 53/10, paragraph 160). With regard to the same
the calculations presented by the Energy Regulatory Office, it is clear that the question
not only the simple return on investment (within the meaning of the legal guarantee), but also
Another question of the reasonable profit from the business of the regulated market shall be
apply to the total projected 20-year life of the period
photovoltaic panels. In this CF. the aforementioned conclusions of the Supreme
the Court of Spain, that the assessment was based on the projected
lifetime of the panels in 25 years.
72. In the light of the above, the Constitutional Court could not přisvědčit the opposition
the plaintiffs in the case of the introduction of the levy were not fulfilled the conditions for the
application of false-retroactivity. The Constitutional Court has in fact now
the present case, it considers that the choice of legal measures aimed at
limitation of State aid based on substantiated reasons, which have been
the one hand, the rapid development of energy production from RES active growth of the amount of the costs to the
its financing and the cost of photovoltaic installations. How
in its comments to the proposal, the Government, due to the fact that the
legal regulation of public support for the production of energy from RES is in the Czech Republic
set on the principle of delegating a large part of the financing of the aid for
the end customer and the State budget, there was a real threat, that
the cost of financing this aid in the current rate would have been in a relationship
to the law No. 180/2005 Coll. the declared objectives of the clearly disproportionate.
The challenged provisions of the objectives pursued, namely heading off
the negative socio-economic impacts, consisting mainly in
significant increase of electricity prices for end consumers and
Firstly, the regulation of State aid in response to the decline in extrémnost
the investment cost, considers the Constitutional Court from the perspective of a completely
legitimate. The resources that have been selected to achieve this objective,
seems like a sensible and reasonable because, as a result of the submitted
documents, payment of electricity from solar radiation has been established so as to
continue to be guaranteed a return on investments to 15, which
is guaranteed by law. It is not therefore a measure extreme and continue to
is the production of energy from RES significantly subsidized from the State budget and
supported farm prices.
73. The Constitutional Court also dealt with the caveat that the introduction of the levy
discriminated against manufacturers of solar energy, whose production plants have been put into
Open from 1. 1. by 31 December 2009. 12.2010, compared to the producers, who said
the plant into service, as from the date of the effectiveness of Act No. 180/2005 Coll., or earlier,
Therefore, from 2005 to 31 December 2005. 12.2008. According to the plaintiffs, it is by law the
heading payers levy as follows determined arbitrarily and without reason, it is not
based on the public interest.
74. The Constitutional Court in a number of its decision [e.g. findings on matters
conducted under the SP. zn. PL. ÚS 16/93 (see above), SP. zn. PL. ÚS 36/93 (see
above), SP. zn. PL. ÚS 5/95 of 8 June. 11.1995 (N 74/4 SbNU 205; 6/1996
SB.), SP. zn. PL. ÚS 33/96 (see above), SP. zn. PL. ÚS 15/02 dated June 21.
1.2003 (N 11/29 SbNU 79; 40/2003 Coll.)] He explained the content of the constitutional
the principle of equality. Aligned with the understanding of equality, as it
expressed by the Constitutional Court of the Czech and Slovak Federative Republic, in its
the award of 8. 10.1992, SP. zn. PL. ÚS 22/92 (see above). The Constitutional Court
The Czech and Slovak Federal Republic in it conceived the equality as
the relative category, which requires the removal of unjustified differences.
The principle of equality in the rights should therefore be understood that the legal
the distinction in the approach to certain rights may not be the result of arbitrary power,
However, it does not imply the conclusion that each had to be granted to any
the right. This conclusion follows also from editing articles 1 through 4 listed below
the General provisions of the Charter. The provisions of article 1 of the Charter, the violation of
It is explicitly argued, cannot be interpreted in isolation from the other General
articles 2 to 4 of the Charter, but on the contrary, it is necessary to hold them as a single
whole. From these general provisions, it is clear that the basic
protected values listed in article 3 of the Charter did not conceive them
ústavodárce as an absolute. The same thing also reflected the provisions of article 4 of the Charter,
who directly assumes the existence of statutory obligations and
the restrictions, but also of article 2 (2). 3 of the Charter, in which he anticipates option
save certain obligations or limitations. Also, the international instruments on
human rights and many of the decisions of the international control organs
based on the fact that not all unequal treatment of different entities can be
to qualify as a violation of the principle of equality, such as unlawful
discrimination of some subjects in comparison to the other bodies. In order to
violation has occurred, several conditions must be met: with different actors,
that are in the same or a comparable situation, shall be treated
differently, without objective and reasonable grounds existed for the
taken a different approach. The Constitutional Court rejected this absolute understanding
the principle of equality, and noted: "equality of citizens cannot be
understood as an abstract category, but as a relative equality, as it
having in mind all the modern Constitution "[SP. zn. PL. ÚS 36/93 (see
above)]. The content of the principle of equality in the area of constitutional law that shifted the
acceptability of the aspects differentiating the bodies and rights. The first aspect
sees in the exclusion of arbitrariness. The second aspect is clear from
the legal opinion expressed in the award in the case conducted under the SP. zn. Pl. ÚS
4/95 of 7 July. 6.1995 (N 29/3 SbNU 209; 168/1995 Sb.): "inequality in
social relations, has a touch of fundamental human rights, must
to reach the intensity of the call, at least in a certain direction, already very
the essence of equality. So is usually done when there is a violation of the
equality and violation of other fundamental rights, for example. the rights of the
owning the assets referred to in article. 11 of the Charter of fundamental rights and freedoms,
one of the political rights pursuant to article. 17 et seq.. Charter-"[identically
find SP. zn. PL. ÚS 5/95 (see above)]. The second consideration when assessing
the unconstitutionality of the legislation establishing this inequality is therefore
based prejudice one of the fundamental rights and freedoms.
75. Some legislation that favours one group or category
compared with other persons, cannot therefore be itself without further marked
breach of the principle of equality. The legislature has to consider whether the
such preferential treatment will be. Must ensure that the
favouring the approach was based on objective and reasonable grounds for
(the legitimate objective of the legislature) and that between this objective and the means to
the achievement of (the legal benefits) existed the relationship of proportionality (see, for example.
the judgments of the European Court of human rights in matters of Abdulaziz, Cabales
and Balkandali of 1985, section 72; Lithgow of 1986, section 177 and Inze from r.
1987, § 41). In the area of civil and political rights and freedoms already
have an immanently characterizes the obligation of the State to refrain from intervention in them,
exists for the preferential (i.e., inherently active) treatment with
some bodies generally only minimum space. By contrast, in the area of
rights, economic, social, cultural and minority, in which is
the State often obligated to active intervention to remove loud
aspects of inequality between different groups of complex social, cultural,
professionally or otherwise stratified society, the legislature
logically, much more space to the application of his ideas about acceptable
the limits of the de facto inequalities within it. Elected because the preferential treatment
much more often.
76. In this context, refers to the Constitutional Court on the expression of Energy
regulatory authority, which said that on the basis of the applicable time
valid legislation could not respond to the situation, when there was a significant
declined the measurement of investment costs for the establishment of these
resources as a result of the reduction of the price of photovoltaic panels by more than 40% in
2009 corresponding reductions in purchase prices of electricity from these
sources on the basis of Act No. 180/2005 Coll. was entitled to the year
reduce the purchase price of electricity for new sources only about 5%. Thanks to this
There has been a very significant advantage for newly built photovoltaic
power over other types of renewable energy, which was
support set optimally. The Constitutional Court in the light of the above,
came to the conclusion that if the legislator on the basis of calculations, from which
result of reduced investment cost of PV in 2009 and 2010,
He went to the introduction of a new legal Institute-levy-only in
relation to the circle of producers of solar power, and only those whose
the production plants were put into operation from the 1. 1. by 31 December 2009. 12.2010, cannot be
than to have such a criterion for rational and constitutional way prescience did. The Constitutional Court
nepřisvědčil the complainant nor that such intervention is interference
unreasonable (poměřováno percentage difference between the savings rates
the electrical energy for the end customer, and the amount of the levy). As follows
the claimant submitted to the mathematical concept of the relation of proportionality between
hardened by their property rights and the legislature adopted
measures for their distorted simplification cannot be accepted. The constitutional
the Court, in terms of the amount of the levy, the fixing of borders respectively, above
You should already have been draining constitutionally, it must again be noted a conformist,
It is to be in similar fiscal matters respecting the will of the
the legislature elected him to the adoption of the measures must be to insist on
the requirement of a legitimate legal purpose bike
rational resources and the current exclusion of obvious wickedness. To
the legitimacy of the challenged provisions of the objective pursued and the rationality
selected resources are expressed by the Constitutional Court already above in recital 72. If
as the exclusion of arbitrariness, the Constitutional Court shall examine the degree of financial
loading from the side of the bodies concerned, respectively as to the assessment of whether the
This is not about rights, which would exceed the threshold above which it would no longer
the subjection of the operators and the additional levy FVE other financial
Tools moved from the limits of constitutionality. The Constitutional Court after it took in the
account of the fact that even after the introduction of the levy remains the operators of PHOTOVOLTAIC POWER PLANTS
maintain the 15-year period of return on investment, to the conclusion of the
svévolnosti the additional burden on operators of PV electricity outlet
of course, the solar radiation.
77. The Constitutional Court is convinced that the reasons set out above it is not appropriate
measure the legislation the claimant referred to three
the test of proportionality, which the Constitutional Court, for example, has defined in its
finding SP. zn. PL. ÚS 3/02 of 13 June. 8.2002 (N 105/27 SbNU 177;
405/2002 Coll.). This is because the policy is based on the premise that the intervention in the
fundamental rights or freedoms, even if their constitutional modification
not foreseen may occur in the event of a collision or in their mutual
the case of a collision with other constitutionally protected value, which does not have the nature
the basic rights and freedoms-public good-[cf. Constitutional
of the Court of 9 June. 10.1996 SP. zn. PL. ÚS 15/96 (N 99/6 SbNU 213;
280/1996 Coll.)]. In the present case, now sees the Constitutional Court as a
the dominant problem of collision of two or more fundamental rights and constitutionally
protected values, challenging the constitutionality of the law, but that is not
the intervention of the constitutionally guaranteed rights and freedoms, but in its wake are active
the reduction of State aid foreseen by law earlier. Not yet
přisvědčit promoters, would set the amount of aid to the law
the future exclude any new statutory tax burden
(the regulation). Such a requirement on the stability of legislation does not have a foothold in the
legislation, and as stated above, the Constitutional Court, it is
in the context of the specific conditions of the present case, the measures now with
effects only false-retroactivity.
IX.
A review of the contested provisions of Act No. 357/1992 Coll.
(a tax deed from the acquired permits free of charge)
78. The subject of the tax deed is in the meaning of § 6 (1). 8 of Act No. 357/1992
Coll., on inheritance tax, gift tax and real estate transfer tax, in
the text of the law no 402/2010 Coll., acquisition of the free allowances to emissions
greenhouse gas emissions in the years 2011 and 2012, for the production of electricity in
the device, which at 1. January 2005 or later produced electricity at the
sales to third parties and in which the proceeds from the activities to which the
by trading emissions of greenhouse gases, only
fuel combustion (hereinafter referred to as "free of charge acquired permit") by the manufacturer
electricity.
79. The taxation of emission allowances is according to the plaintiffs in breach of
Community law, that the emissions allowance trading
greenhouse gases regulates the in Directive 2003/87/EC. Of article 10 of this
the directive requires Member States to ensure that for the period
beginning 1 January 2005. 1.2008 allocation of at least 90% of the total amount
emission allowances free of charge, in accordance with the approved national
allocation plan. Due to the introduction of tax allowances
greenhouse gas emissions made in breach of the legitimate expectations of the
operators of the equipment included in the emission trading system
on greenhouse gas emissions is therefore unconstitutionally interferes with the
protected rights to property.
80. the national allocation plan for the Czech Republic was approved by the European
Commission decision of 26 March 2004. 3. in 2007, and was subsequently adopted in the form of
Government Regulation No. 80/2008 Coll., concerning the national allocation plan for the
trading period 2008-2012.
Government Regulation No. 80/2008 Coll., concerning the national allocation plan for the
trading period 2008-2012:
Government orders under section 8 (2). 5 of Act No. 695/2004 Coll., on conditions for
trading in greenhouse gas emissions and amending
some of the laws:
§ 1
(1) the national allocation plan, setting out the total amount of
allowances will be issued in each calendar year of trading
period calendar years 2008-2012 (hereinafter referred to as "trading period"), and
the quantity of allowances that will be to the individual operators of installations
allocated in each calendar year trading period.
(2) Annex 1 to this regulation provides for the total quantity of allowances,
which will be issued in each calendar year trading period.
Annex 2 to this regulation, determine the quantity of allowances that will be
each of the operators of the equipment allocated in each calendar year
trading period.
§ 2
(1) this Regulation shall take effect on the date of its publication.
(2) this Regulation shall expire on 1 July. January 2013.
The President of the Government:
Ing. Topolanek in r.
Deputy Prime Minister and Minister of the environment:
RNDr. "in r.
Annex 1: the total quantity of allowances will be issued in each
calendar year trading period
Annex 2: the quantity of allowances that will be individual operators
the equipment allocated in each calendar year trading period
81. the plaintiffs ' objections to the absence of a good indication the competence
The Ministry of environment in the price field and related
the public nature of allowances, which is in violation of the private
the nature of the provisions (tax deed), refers to the constitutional
Court a detailed statement of the Ministry of finance,
the jabbers. Pursuant to Section 7a of the paragraph. 2 Act No. 357/1992 Coll., on inheritance tax,
gift and real estate transfer tax, amended by law No. 402/2010
Coll., the average market value of the allowances to 28. February of the relevant
calendar year shall be published by the Ministry of the environment in a manner
enabling remote access. Under section 16(1). 1 (a). (j)) of law No.
695/2004 Coll., on conditions for emission allowance trading
greenhouse gas emissions and amending certain laws, as amended by Act No.
164/2010 Coll., the Ministry of environment publishes
the estimated market value of the allowances. Act No. 357/1992 Sb.
only provides that the average market value of the allowances to be published
The Ministry of the environment, not, however, that the Ministry of
the environment determines the market value of the allowances for tax purposes.
If the appellants argue that the new taxes already issued by emission standard
allowances, also here, the Constitutional Court said the conclusion presented
The Ministry of finance, Government Regulation No. 80/2008 Coll. on the national
allocation plan for the trading period 2008-2012, is just
the promise of the acquisition of allowances to the operator of discharging device
greenhouse gases, and it provided the fulfilment of the statutory
terms and conditions. The acquisition of emission allowances to operators
occurs each year from the moment of crediting a specific number of allowances on the
accounts of the operators. The above means that the effectiveness of the Amendment No.
402/2010 Coll., i.e.. from the 1. January 2011, will be taxed only in the future
the acquired permits, it is not about law or nepravě
retroactive. To the question of the legitimate expectations of the parties concerned, then
not than to refer to the conclusions that the Constitutional Court has pronounced on the issue
levy for electricity from sunlight.
X.
A review of the contested provisions of the law No. 346/2010 Sb.
(repeal of the exemption from income tax)
82. The appellants argue that the legislation in force since
2002 is an expression of interest of the State to the responsible use of natural resources and
the protection of natural resources (article 7 of the Constitution) and is as such part of
legitimate expectations of the addressees of the Act, who also founded on it its
business plans in the field of energy from renewable sources.
As a result of the contested amendment and how its legislative implementation is
Thus the intervention into the legitimate expectations of the taxpayer, as well as the establishment of
inequalities between its addressees; the criterion here is again the time
of the device into operation.
83. According to the explanatory memorandum to the law No. 346/2010 Sb. the contested provisions
respond to the need to eliminate all legal remedies in the present
already an unjustified indirect support of electricity production from environmental
resources, particularly from solar equipment, and therefore strengthening the tax regime for
environmental resources and facilities so that their exemption
revenue from the operation of environmental equipment. The edit at the same time
points to the fulfillment of an important public interest (maintenance of price stability
energy, not public debt, etc.), which would be possible in the
the spirit of the case-law of the Constitutional Court to give reasons for potential intervention in
the legitimate expectations of taxpayers.
84. It is thus clear that the reasons for and objectives of the contested legislation, which
It was accessed to the abolition of the exemption from the tax on the income from the operation of
Solar System-section 4, paragraph 4. 1 (a). (e)) and § 19 paragraph. 1 (a). (d))
Act No. 586/1992 Coll.-are identical with the reasons for and objectives of the adoption of the legal
dealing with payment adjustments for electricity from sunlight, therefore,
The Constitutional Court referred to in this part on points 65-77 of this
the award, which fall on the issue fully. For completeness in this
the context of the Constitutional Court adds that it was accessed to the cancellation
exemption from income tax and other environmental equipment. This
taxpayers could take advantage of the exemption for the last tax period, which
began in the year 2010, which means that the change also applies to the
taxpayers who reported environmental resources and equipment into operation before
entry into force of this amendment.
XI.
The conclusion of the
85. The Constitutional Court has in the present case, for now, that the choice of legal
measures to reduce state aid to the production of energy from
sunlight is guaranteed under the conditions of maintaining in the hands of the legislature.
The principle of legal certainty cannot be identified with the requirement for an absolute
stability of legislation, it is subject to, inter alia, socio-economic
change and the demands imposed on the stability of the State budget.
86. In this connection, the Constitutional Court of the neodhlíží from the fact that it was
State law guarantee the guarantee period of the 15-year payback
investment and the amount of revenue per unit of electricity from renewable energy sources, and
This motivated the stakeholders to the business activities in the area
the production of energy from renewable sources. However, as indicated above, the
at the same time, the Constitutional Court shall be considered as a legitimate, if the legislature
proceeds, after objectively observed change of conditions on the side of the investment in PV
to regulate the production of energy from RES support so as to preserve
the balance between inputs and yields set the original wording of Act No.
180/2005 Coll., which was expressed by the 15-year return on investment
and the amount of the income. The Constitutional Court yet, it has taken a number of
documents and technical data relating to the issue, however, is not
and may not be able to in the abstract of the review clearly come to
conclusion that, in each individual case are following the introduction of conscription and
the other claimant of the contested measures, the following statutory guarantees.
87. In the plane of the abstract review of the standards is clearly, therefore, that the legislator
the adoption of the contested provisions applied rational basis
differentiation of producers to which the contested edit turns out, and on which
not. Are objectively ascertainable significantly reduced investment
costs of PV in 2009 and 2010. In this plane are not
applicable for more business and economic parameters of individual PV
involving the individual terms and conditions, the method of funding or option
technology. The production of electrical energy from sunlight
remains continue to be subsidized from public funds more than other sectors.
You can only recall that the grant of State aid policy in the area of PHOTOVOLTAIC POWER PLANTS
was (and is) in an attempt to compensate for the high cost of just
the acquisition of appropriate technologies with a view to their gradual technological
the development. In this respect, the regulation of the market in the form of a levy as it stands,
based on the specific change in market conditions, both in relation to the
the long-term return on investments, which is a question that cannot be
in advance of the close, so in relation to the long-term conservation of the proceeds. From
proceedings before the Constitutional Court came the findings that the income within the meaning of § 6
paragraph. 1 law No. 180/2005 Coll. is a specific amount of "pure"
profit. Indeed, this question is a question of the interpretation of a simple law, respectively.
from the point of view of the protection of ownership itself does not reach the constitutional
intensity.
88. The Constitutional Court on this point stresses that in the abstract of the review
the constitutionality of not being able to objectively prove or hypothetically
tweak all conceivable situations, which challenged provisions in
individual case may cause. The subject of the assessment now
they cannot even be specific cases of individual producers with
taking account of the specific circumstances, taking into account the extent
business and economic risks may the Constitutional Court its assessment
advanced in the future [cf. e.g. find SP. zn. PL. ÚS 9/07, point 54 (see
above)]. The Constitutional Court considered the obvious and decisive in finding
law, that it is always necessary to be based on the individual dimensions of each
of the individual case, which are based on the established facts
the circumstances. Many of the cases and their specific circumstances may be
highly complicated and unusual; However, the general courts of nevyvazuje
the obligation to do everything for a fair solution, even though it may seem
complex. Obviously it cannot be excluded that in individual cases rises
some of the contested provisions on the producer as the winding-up ("a strangling
the effect of ") or hitting the very essence of the manufacturer of the material in conflict with
article. 11 of the Charter-therefore unconstitutionally. Here it will be necessary to assess how the
compliance with the guarantees in the sense of § 6 (1). 1 law No. 180/2005 Coll. in their
long term (fifteen-year) in duration, so the immediate effects of the (continuous)
the contested provisions, that was in this exceptional case, the resulting
entitled safe.
89. In this respect, the Constitutional Court emphasises that due to factual
the effects of that on a regulated market for solar electricity payment under section
7A et seq.. Act No. 180/2005 Coll. raises, in particular with regard to the
gusty nature, which theoretically can exhaust (without it in this
the procedure was the subject of evidence) to have a winding-up the effects manifesting
the inability of producers to meet its ongoing commitments (otherwise with the above
formulated as an insufficient cash flow), which have been set
even before the effect of the Act, can also require legislators
providing a mechanism that will allow the individual access to the producers,
who, even if taking into account the business risk predicted adoption
certain restrictions in the future, they could not have foreseen their specific
form and immediate effects. If the law No. 180/2005 Coll. himself such
a special mechanism, the Constitutional Court considers necessary to
interpreted the law in such a way that possible winding-up
the effects of the levy under section 7a and subs. Act No. 180/2005 Coll. could prevent.
For example, the possibility of such interpretation offers the Institute posečkání according to §
156 et seq.. Act No. 280/2009 Coll., tax regulations, as amended
the rules, which would be considered in the interpretation of the Constitutional Court allowed the
in exceptional and justified cases, at the request of the tax body
enable the posečkání payment levy payer, where appropriate, the layout of its
payment on installments. The opinion of the Ministry of Finance on-demand
The Constitutional Court to the current interpretation and application of section 156 and 157 of the tax
the order of payment under section 7a and subs. Act No. 180/2005 Coll., shows that the
the Institute may also levy payers of electricity from sunlight.
In this opinion of the Ministry of Finance shall, inter alia,
the following: "tax regulations [-] tax (Levy) allows you to take advantage of the
Institute of posečkání and ex officio, i.e.. without a prior request. Tax
the body, however, with regard to the option of bringing your own activity
(the application), the tax administrator will be the fulfillment of conditions
posečkání the deal, as well as with regard to the principle of vigilantibus is
scripta sunt, did not rely on such boundless, that tax will be held
ex officio. [-] In the case of the removal of electricity from solar radiation is
only the Bill-levy, which has an obligation to take a short outlet.
In addition, it also has the obligation to bring the dissipation or select. [-] The chamfer
levy Institute of posečkání the nature of things cannot be applied. [-] For something different
occurs in the case when the payer levy instead of precipitation apply
possibility of payment by the taxpayer to choose. The method you select is from a collision
Thus, to select occurs independently of the payment of the purchase price
or the green bonus (i.e. ex post). This design allows you to
levy payers to the revenue payer has paid the purchase price or the green bonus
without him, knocked the levy. [-] If the payer levy left the
posečkání remuneration, could ' bring ' with a selection of levy from the taxpayer.
[-] From the above it follows that in the case when the payer chooses to exhaust
the method of selection of levy (this is not in any way restricted by law), in
the case of posečkání occur to take into account the grounds referred to in section 156, paragraph. 1
(a). and) and c) of the tax code on the side of the taxpayer. Levy payer could
in the request, argue that posečkání levy asks for the purpose of
that could delay the time that will realize the selection of levy from
the taxpayer, which otherwise would have occurred, serious injury, or the demise of the business.
A prerequisite for this, however, will be the synergy of the taxpayer itself, for which the
will then examine the objective fulfillment of these conditions. " It is not
excluded or the possibility of the Bill give Manager levy initiative to
dropped from the prescription of interest from posečkání in accordance with § 157 paragraph. 7
the tax code. As another example of the current impacts of mitigation potential
levy is in the opinion of the Ministry of finance mentioned ' application
Institute of extension (section 36 of the tax code), where it is discretionary
the power to tax (Levy) escaped the general criterion of the fulfillment
' serious reasons '. Levy payer thanks to this Institute may request
extension of the deadline for the submission of the Bill, on which the time limit is established
maturity of the levy. Arguing can similarly for posečkání by
deferment of payment of levy will be able to delay the moment when being a selection
the exhaust from the taxpayer that would otherwise get into a difficult situation. " With
regard to the opinion of the Ministry of finance, therefore, the Constitutional Court has come to the
such an interpretation of the above-cited provisions of the tax code, according to which
It is the responsibility of the tax administrator create coordinated practical procedures
pointing in justified cases, to the selection of levy, not
the crash, on the part of the Bill-levy, and to enable the tax
the revenue payer access to parks posečkání, the layout of the payment of taxes on
payments or extend the time. In a particular plane has the objective of this procedure
to allow the operators of PV to bridge the period when due
the lack of available funds (cash flow) due to payment of the levy
has not been able to maintain in the business environment, and he was forced to his
the business end.
90. The Constitutional Court concluded that the adoption of the contested, however there
provisions to reduce the support provided by the operators of PV, there
from the above reasons, the intervention, which would in effect
It meant violating the constitutionally guaranteed rights of the parties concerned, whether
It is a right of ownership or the freedom of business, or the failure to
the basic elements of a democratic and legal State, as
believe the promoters. With regard to the indicative calculations presented in the
proceedings before the Constitutional Court in particular can be concluded that the estimated
15-year period of return on investment was the adoption of the contested
the provisions of the fundamentally challenged, which is the default, the opinion of the
the Government, which has not been challenged by the plaintiffs, convincingly.
91. Because all of the participants, as well as a secondary party to the proceedings,
agreed with the abandonment of the oral proceedings before the Constitutional Court, and
because according to the beliefs of the Constitutional Court cannot be since oral proceedings
expect further clarification of the matter, it was abandoned by him (article 44 (2)
the law on the Constitutional Court).
92. The Constitutional Court on the basis of the above found that the challenged
the provisions are not in conflict with the constitutional order of the Czech Republic, and
the proposal, therefore, under the provisions of section 70 paragraph. 2 of the law on the Constitutional Court
rejected.
The President of the Constitutional Court:
JUDr. Rychetský in r.