In The Case Of A Proposal To Repeal Parts Of The Law No. 180/2005 Coll.

Original Language Title: ve věci návrhu na zrušení části zákona č. 180/2005 Sb.

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=77754&nr=220~2F2012~20Sb.&ft=txt

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.