On behalf of the Czech Republic
The Constitutional Court ruled on 8 March 2006 Plenary composed
Stanislav Balik, Frantisek Duchon, Vlasta Formánková, Vojen Güttler, Pavel Holländer
, Ivana Janu, Vladimir Kurka, Dagmar Lastovecká, Jiri Mucha, || | Jan Musil, Jiri Nykodým, Pavel Rychetsky, Miloslav Vyborny, Elizabeth
Wagner (rapporteur) on the proposal of deputies of
deputies of the Czech Parliament to repeal § 3 and 16 of Regulation
Government no. 364 / 2004 Coll., on determining certain conditions, implementing measures
common organization of the market in sugar, and the design of the same
petitioner to annul § 3 of Government Regulation no. 548/2005 Coll., on determining certain conditions
implementing measures CMO in
I. Proceedings on the petition to annul § 3 and 16 of Government Regulation No. 364/2004.
Coll., Laying down certain conditions for the implementation of measures
common organization of the market in sugar, are terminated.
II. § 3 of Government Regulation no. 548/2005 Coll., On determining
certain conditions, implementing measures CMO
in the sugar sector, repealing the day this judgment in the Official Gazette.
A) The initial proposal, which the Constitutional Court received on 18. 10.
2004, a group of 35 deputies of the Parliament of the Czech Republic
sought the annulment of § 3 and 16 of Government Decree no. 364/2004 Coll . on
setting certain conditions for the implementation of measures
common organization of the markets in the sugar sector.
As the petitioners stated, the sugar market in the Czech Republic is regulated
several years. The government has attempted to regulate the production of sugar by Regulation No.
51/2000 Coll., Laying down measures and the State
the creation of conditions to ensure and maintain production of sugar beet and sugar and stabilization
sugar market, which applied in the period from 14. 3. 2000 to 12. 3. 2001
Constitutional court judgment published as no. 96/2001 Coll. canceled.
After the repeal of this regulation, the government issued Regulation no. 114/2001 Coll., Whose
§ 4 para. 3, § 5 para. 3, § 7 and § 13 of the Constitutional Court annulled
judgment no. 499 / 2002 Sb., the main reason for canceling found in
inequality between producers and thus on products dependent growers.
Constitutional Court by the petitioners stated that the inequality "raises already
fact that under the measures (Government Regulation no. 51/2000 Coll.)
Already formally unconstitutional and substantively discriminatory to some || | manufacturers to increase production because they were protected from competitors who
production quota and could not do so without the burden punitive levy
produce. the government today formally proper future
retains undesirable condition which caused his early to formally and
substantively unconstitutional. "
The petitioners also referred to the former conclusion of the Constitutional Court, according to which when selected
key to the allocation of individual production quotas
finds himself in conflict with the statutory requirement of objective method of calculation
and in particular the constitutional requirement of equality under Art. 1
Charter of fundamental rights and freedoms (the "Charter"), which simultaneously constitutes inadmissible
unequal legal content ownership between individual enterprises, which
enjoying the same freedom to do business in accordance with Art. 26 of the Charter. This conclusion
According to petitioners, the Constitutional Court reached on the basis that
position of individual sugar refineries was influenced by the unconstitutional legislation
pursuant to Government Decree no. 51/2000 Coll. before its abolition.
On 5. 11. 2003 the petitioners filed for annulment of Government
No. 114/2001 Coll., On setting production quotas for sugar quota
years 2001/2002 to 2004/2005, as amended Government Regulation no. 296/2002 Coll., Finding
Constitutional Court no. 499/2002 Coll. , Government Decree no. 15/2003 Coll.
Government Regulation no. 97/2003 Coll. and Government Regulation no. 319/2003 Coll. In
eventum the petitioners seeking annulment of certain provisions of this
The Constitutional Court in its resolution sp. Nos. Pl. US 48/03 of 23. 3. 2004
suspended the proceedings for insufficient number of judges and 22 6. 2004
decided to continue the proceedings, if the reason for discontinuation fell.
Contested regulation, however, with effect from 1 7. 2004 repealed by Government Regulation No. 364/2004.
Coll., And on 31 7. 2004 petitioners requested a postponement with
Hearing the matter so that it can be altered from its original proposal. The petitioners
because they were convinced that the newly adopted Regulation no. 364/2004 Coll.
Content builds on previously contested government decree no. 114/2001 Coll., And
therefore intended to submit a proposal to amend the original proposal.
Yet they proceeded from a similar procedure, which occurred in the matter issued by the Constitutional Court
under no. 528/2002 Coll. (Formal abolition of the content and identity
contested regulation during the proceedings before the Constitutional Court).
The Constitutional Court, however, according to the petitioners, just prior to the amendments to the draft according to § 69 paragraph
. 1 of Act no. 182/1993 Coll., On the Constitutional Court, as amended
amended (hereinafter "the Constitutional Court Act"), by order of 14. 9. 2004
stopped the proceedings.
Petitioners thus expressed belief that the newly-adopted
No. 364/2004 Coll., Specifically the provisions of § 3 and 16, is in conflict with the constitutional order of the Czech Republic
. According to the petitioners, both provisions addressing the issue
allocation of quotas, while the mere text of both contested provisions
clear that based on previous legislation (Government Decree no. 114/2001
Coll., As amended, which already it was contested in the proceeding
Constitutional court). Since the petitioners arguments are directed
already formally invalid regulation, on which the contested provisions of the new regulation refer
The fundamental argument of the petitioners' concerns inequality between producers
thus dependent on the products growers. The method of calculating quotas
individual producers were affected unconstitutional rules in force before
finding of the Constitutional Court. Nos. Pl. US 39/01, published under no.
499/2002 Coll., As a decisive period for the quota system was taken
period when the arrangements had unconstitutional. Producers who did not respect this
unconstitutional treatment repealed by this judgment and were
inherently favored. This led to the same situation as there was
before the adoption of this finding, although even before that was the decisive period
taken a time when paid in the form of unconstitutional treatment of Regulation no. 51/2000 Coll
Legislator despite the above-mentioned Constitutional Court publ. No. below.
499/2002 Coll. not remedied, and this unconstitutional state
referring to the quotas determined under the existing legislation kept in the newly
Government Regulation no. 97/2003 Coll., Which amended Regulation no.
114/2001 Coll., Was established in § 7 para. 2 and 3, the key to fixing the quota
individual applicants, so that State agricultural intervention Fund (
"Fund") calculates the coefficient for establishing individual quotas
applicants as a proportion of sugar production capacity of the applicant and a summary of sugar production capacities
applicants, the Fund quota will be determined as the product
coefficient and the amount of 415 thousand tons of sugar. For that provision is
According to the petitioners evident that the decisive criterion for determining
quota, the term sugar production capacity of the applicant. According to § 2. j)
inserted into Regulation no. 114/2001 Coll. Regulation no. 97/2003 Coll.
has a production capacity of sugar, the highest average amount of sugar produced
sugar producer within 24 hours in a sugar factory, which produced sugar in
November 2001 and October 2002, when this refinery produced sugar quota year
2002/2003, however, the maximum amount of provable
corresponding to the maximum daily performance of machinery and technological equipment
refinery (the maximum daily output), or an applicant for a new
quota from the reserve (maximum daily performance certified appraisal) || | (ed., ed .: sic - correct: or an applicant for a new quota from the reserve
maximum daily performance, certified appraisal).
The government thus took a decisive period for determining the apportionment
quotas for individual applicants just the period in which it was in force
unconstitutional amendment of Regulation no. 114/2001 Coll. from the effects of judgment no.
499/2002 Coll., ie in the period from 30. 3. 2001 to 29. 11. 2002. The government therefore
According to the petitioners, instead of a decisive period for the key
the allocation of individual production quotas took such a period
which have not been adjusted regulation of the sugar market, which distorts market
, arbitrarily and in contradiction with the opinions of the Constitutional court
set as the decisive period just that, when applied
The petitioners also expressed confidence that the chosen criterion production
In two selected months during the two years it is purely arbitrary
certainly not well thought out and leaves natural reasons to explain
varying production volumes. Definitions of capacity, as it is assumed § 2
point. j) Regulation no. 114/2001 Coll., ie according to the volume of sugar production
per day in two (randomly) selected months, is to determine the actual capacity of the refinery
decisive because (1.) ignores various
technological processes used in various sugar mills in the production of sugar and
(second) data critical to the determination of capacity in the period, when
sugar market was regulated and unconstitutional manner
production was subject to this regulation.
Not every sugar factory manufactures according to the petitioners, the processing directly
diabetes sugar, sugar refineries use different production technology
sugar, while some of the technology lie in the fact that during the campaign the only
extracted from sugar beet thick juice that it is then stored.
The actual production of sugar from the juice then occur throughout
year. Furthermore, the petitioners believe that had to be maintained
principle of equal treatment of all applicants and the principle
objective method of calculation, on the contrary, should be in determining the capacity
into account also the length of the sugar beet processing campaign, because in practice || | each sugar factory treats diabetes delivered after a variable period, and
also had a more or less time. The difference in the length of the campaign in case
individual sugar refineries may order around 40 days,
own sugar production (different technologies) can then take place throughout
year, and is therefore completely biased determine the capacity refinery at || | based on the amount of sugar produced in the course of one day.
Criteria to determine the quotas according to the petitioners
lacked any objective viewpoint and appears as an expression of utter arbitrariness
. For these reasons, the petitioners are convinced that §
2 point. j) and § 7 of the Government Decree no. 114/2001 Coll. were in conflict with
principle of equal treatment of all applicants for a quota principle
objective method of calculation as defined in § 11d paragraph. 10
point. b) Act no. 256/2000 Coll. (Formerly § 12 para. 6
cited Act). At the same time, those provisions were in conflict with the constitutional requirement of equality
according to Art. 1 and Art. 3 of the Charter, which also established the constitutional
inadmissible unequal legal content owned production facilities according to Article
. 11 paragraph. 1 of the Charter and unjustifiable distinction between
individual enterprises, which enjoy the same freedom to do business in accordance with Art. 26
Charter. According to the petitioners, there was also a violation of Art. 14 of the European
European Convention on Human Rights in conjunction with Art. 1
Protocol to the Convention.
Takeover quota system designed according to the rules contained in Government Regulation No.
. 114/2001 Coll., By the petitioner under § 3
Government Regulation no. 364/2004 Coll. There was, therefore, to establish the unconstitutionality of the new arrangements and
They question if the petitioners constitutionality and legality
identify individual production quotas, it is that according to them challenged and reserve to which
referred to in § 16 of Government Regulation no. 364/2004 Coll. The current annual quota is
is made up of the sum of individual quotas and reserves (§ 3 of
Government no. 114/2001 Coll.). Allocation of quotas from the reserve under § 4 para. 2 and
§ 12 of the Regulation no. 114/2001 Coll. According to the petitioners it is also
contrary to the principle of equality and objective method of calculation, as these
provisions contains no reviewable criteria on which
Fund had a quota allocation from the reserve to decide.
In other words, the contested provisions of § 3 and 16 of Regulation no. 364/2004 Coll.
Maintain continuity with the previous one, according to the petitioners unconstitutional and illegal
, regulation contained in the previous regulation no. 114/2001 Coll.
Which were also complainants in the earlier proceedings before the Constitutional Court
attacked. This procedure, however, the Constitutional Court dismissed considering that
contested adjustment was during the proceedings being derogated by Regulation no. 364/2004 Coll
The petitioners, however, they are of the opinion that the unconstitutionality of the contested legal regulation
not exclusively based on the unconstitutionality of the previous legislation because
government by the petitioners and strays from its competency framework, thus
violated Art. 78 of the Constitution of the Czech Republic (hereinafter "the Constitution"). The government had
According to the petitioners maintaining the current distribution of quotas in the new legislation modifying
interferes with the competences of the authority having jurisdiction to decide the
quotas (State Agricultural Intervention Fund) is determined by the laws
superior legislation (Act no. 256/2000 Coll., and Council Regulation EC no. 1260/2001
). Given that the new legislation abolished
legal grounds on which it relied in the meantime issued an administrative decision on
allocation of quotas, however this decision kept valid and effective,
was this new act in addition to hit
verdict of the administrative decisions, respectively. have changed the operative part
administrative decisions - see the phrase § 3 para. 1 of Regulation no. 364/2004 Coll .: "...
... is considered as the sum of quotas A and B quotas under European law | || community. " (Ed., Ed .: sic - correct: according to the regulations of the European Communities
The petitioners therefore proposed that the Constitutional Court two contested provisions
Government Regulation no. 364/2004 Coll. canceled the day of its publication in the Collection of Laws
Memorandum dated 18. 10. 2005 the applicants supplemented the original proposal. In this supplement
divorced his original arguments of the parties relationship between
contested provisions of Regulation no. 364/2004 Coll. and previous legal
finish setting key for the allocation of the quota set out in the Regulation.
114/2001 Coll., as amended by Regulation no. 97/2003 Coll.
As the petitioners reiterated deemed unconstitutional and previous legislation;
Proceedings but it has been stopped before the Constitutional Court with regard to the adoption of a new
now contested legislation. The petitioners are of the opinion
that, having regard to the fact that the contested provisions refer to the original
legislation, in fact, remains the unconstitutionality of the original government
regulation. The petitioners believe that it is a much broader general
whether in terms of constitutional order acceptable that certain
legislation that is unconstitutional, could create legal effects even after
its formal abolition, and it through provisions that her
will refer. Although the regulatory practice shows that such a procedure
regulating legal relations by new legislation, which requires the use
previous legislation has been formally repealed, for which only refers
is fairly common and a number of reasons (eg.
meet the requirement to maintain the principle of legal certainty) the legitimate, different situation arises
according to the petitioners, where the existing legal framework to be used
due to the "cross-referencing provisions" included in the new legal
regulation is unconstitutional. The petitioners are therefore convinced that
Constitutional Court shall have jurisdiction to review the existing provisions of the regulations
if it would mean to judge the constitutionality of laws
been formally canceled. Authority of the Constitutional Court
would otherwise be substantially narrowed, respectively. it could be circumvented so that
legislator has adopted new legislation ever after would
previous regulation challenged before the Constitutional Court. In terms of purely formal
would have prevented the Constitutional Court a petition to annul the original legal provision
decide. If the original regulation and new regulation
entirely clear link, as is the case according to the petitioners in this case
must be given the opportunity to assess through the provision
new legislation and current legislation.
Petitioners at the end of completion of the proposal stressed that the Constitutional Court in its previous jurisprudence
expressed clearly enough when placed limits
subordinate legislation to regulate the sugar market.
The petitioners believe that the contested legislation does not respect these boundaries, and
therefore appropriate that the Constitutional Court remained on their existing legal
opinions, because, according to the petitioners occurred a fact that
justify a revision of the Constitutional court opinions in these matters
B) On 3 1, 2006, the Constitutional Court received a submission, which responded to the petitioners
approach of the Czech government, which on 21. 12. 2005
adopted Regulation no. 548/2005 Coll., On the
certain conditions, implementing measures of the common organization of the markets in the sugar sector.
This regulation with effect from 31. 12. 2005 annulled Decree No 364/2004.
Coll., The provisions of § 3 and 16 of the original proposal proposers
Attacked. By that petitioners expanded the original proposal and explicitly
proposed annulment of § 3 of the new Regulation no. 548/2005 Coll.
Yet to justify this proposal stated that the practice of a government deemed earmarked and already
repeated attempts to avoid the case before the Constitutional Court.
According to the petitioners, yet current legislation did not require any change.
Argument that the new regulation was designed so as to allow CR conditions in
implement all necessary measures dosluhujícího system
market organization, which will 1. 7. 2006
replaced by a reformed market organizations (as according to the petitioners follows from the explanatory report to
regulation) is not justified. The petitioner himself is by petitioners
admits that the new legislation will force 1. 7. 2006
fundamental changes in the system of production quotas, pricing policy and other instruments
market organizations, and therefore the amendment now adopted regulation . Additionally, the entire
concrete shape of reform is still not completely known. The mere fact that
Commission Regulation (EC) no. 1609/2005 there was a reduction in the production quotas
has no bearing on the present case. Conversely, despite this reduction is
According to the petitioners maintained contrary to the Czech Constitution and the Charter
fundamental rights and freedoms set of producers on production quotas.
The original system for calculating quotas therefore be retained in a new legal
The petitioners believe that the termination of the proceedings and therefore de facto approval
Government procedure would be a purely formalistic approach the Constitutional Court
at general courts always criticized. Therefore served amendment to the original proposal
according to § 63 of the Constitutional Court Act in connection with § 95 of the CPC.
And proposes that the Constitutional annulled § 3 of the Regulation no. 548/2005 Coll., On the date
judgment is promulgated in the Official Gazette.
Recap essential part of the participants, secondary
parties and other evidence
A) The Government of the Czech Republic in its statement dated 24. 11. 2004
initial proposal to repeal § 3 and 16 of Regulation no. 364/2004 Coll.
Submitted to the Constitutional Court the following reasoning.
Sugar industry in the Czech Republic and sector growers of sugar beet
according to the government after the accession of the Czech Republic to the EU manages
full extent of the rules of the common organization of the market in sugar, which are part
EU Common Agricultural Policy . Rules and mechanisms
common market organization for sugar were determined by a number of regulations issued by the Council or the Commission
EC. Regulation of the Council or the Commission under Article have.
249 of the EC Treaty by direct binding in its entirety and directly applicable
in each EU Member State. In preparation
Czech Republic for participation in the Common Agricultural Policy of the EU
common organization of the market in sugar, according to government
necessary to proceed with the adoption of legal instruments, which enabled at the time of accession
Czech Republic to the EU to ensure the administration
measures in the common organization of the market in sugar, which
performed by the State agricultural intervention Fund on the basis of Law no.
256/2000 Coll., on the State agricultural intervention Fund and
amendment to some other laws, as amended.
The legal framework for the implementation of measures within the Common Agricultural Policy is therefore
after the Czech Republic's accession to the EU set out in Act no. 256/2000 Coll., Act No.
. 258/1997 Coll., On agriculture, as amended,
relevant regulations and decisions of the EC and the Government Regulation No. 364/2004.
Coll., Laying down certain conditions for the implementation of measures
common organization of the market in sugar.
Basic legal instrument in determining
valid system of production quotas in the legal order of the Czech Republic thus became Act No.
256/2000 Coll., Which empowered the government to establish its Regulation
production quotas and conditions production quota system, and their
determination complied with the scope and deadlines arising from
time schedule set out in the negotiations on the accession of the Czech Republic to the EU.
The government therefore processing based regulation as a valid constitutional principle
(Art. 78 of the Constitution), which entitles the company to implement the law and its limits
issue appropriate regulations as well as specific statutory authorization
, and acted within the bounds of the law.
The specific complaints, the petitioners said the government follows.
The objections relating to infringement of Article. 11 of the Charter, which protects ownership, the government
referred to the Constitutional Court dated 16. 10. 2001, published under No.
. 410/2001 Coll., Under which the quota system is a form of control
use of property for which it is necessary to carefully consider both the existence
public interest entitling to exercise regulative (control)
measures and detailed rules for selection (fair)
balance between the general interest of society and the protection of fundamental rights of the individual.
Government, commented that among such measures include measures
organization of the market in certain commodities, such as setting minimum or maximum prices
, various production quotas, import or export
like. In the case the contested regulation in the public interest that
legitimizes the state to establish a system of production quotas for sugar,
stabilizing the sugar market and to ensure and maintain production of sugar beet, it
means creating conditions to ensure that each producer had secured || | sales and to obtain the corresponding minimum price. In the view of the government
are means used to achieve this goal and contained in Regulation
reasonable. Determination of conditions in the contested regulation, which must
applicant and the applicant a quota for the reserve meet, is based on the statutory
authorization contained in § 12 para. 3, respectively. in § 11d paragraph. 10 of Law no. 256/2000
. These conditions while impacting equally to all applicants.
If the applicant by the government is establishing a quota because it failed to meet the conditions specified
, in any case does not change the content
ownership rights of the applicant to his property - a sugar refinery, its
ownership rights still has the same content a property right
other applicants. It is merely that it is loaded with sugar produced vented
according to § 13 par. 7 of Law no. 256/2000 Coll., Which was not in any way affect
property rights to the sugar factory and a fortiori to expropriation, | || assumes that forced limitation of property rights. In this context
repeatedly pointed out by the Constitutional Court judgment published as no.
410/2001 Coll., In which the Constitutional Court ruled that restrictions on production
product may constitute restrictions on the right to use this product, but || | constitute expropriation, since the owner can with this product and continue to be treated
. No assignment or transfer ownership to another person
, the product only becomes difficult to control
marketable or unmarketable. Entitlement to achieve a certain price in the market is not included
protected property rights. In this respect, therefore, the government
believe that a violation of Art. 11 of the Charter did not.
Government in this regard highlighted some additional findings and resolutions
Constitutional Court, which dealt with a wider perspective
constitutional protection provided by Article. 26 paragraph. 1 of the Charter. According to the Government's example.
A resolution of the Constitutional Court. Ref. III. US 363/96 [Collection of
resolution of the Constitutional Court (hereinafter "Collection"), Volume 7, USN.
No. 7] that the right business is to be understood only as the right to choose whether
an activity will be carried out as self-employment, or as a dependent
paid employment. Right to decide freely
however does not mean that action is not restricted entity,
contrary, its decision can be implemented only within the limits of the law
order. The rights and freedoms contained in chapter four of the Charter as
"Economic, social and cultural rights" require for their realization
interaction of other factors; does not act immediately as fundamental rights
mentioned in Chapter Two of the Charter. It is quite evident by governments
Article. 26 paragraph. 2 of the Charter, where the extent of the right to freedom
business is dealt with by reference to the statutory conditions and restrictions.
Normative content of Art. 26 paragraph. 1 of the Charter is then limited by Article. 41 paragraph. 1
Charter, which means that this provision may be invoked as a right
only in the confines of the laws implementing these provisions (
Constitutional court file. Nos. Pl. US 35/95, Collection of decisions, volume 5, judgment no. 64;
promulgated as no. 206/1996 Coll.). The statutory definition of these rights is
done precisely the law under which it is issued
contested regulation. Therefore, the Government as a result of the aforementioned sees in the contested regulation
not conflict with Art. 26 paragraph. 1 of the Charter.
The government also rejected the complainant's claim that producers without a quota
market access more difficult, or even completely closed. According to the Government each
business entity having an interest in sugar production has the opportunity to enter the market
, either through the application of quota allocation from the reserve
acquisition or quotas from another producer, who will be interested in producing
end. As follows from the judgment of the Constitutional Court. Nos. Pl. US 39/01,
published under no. 499/2002 Coll., Nor the constitutional order, nor
international treaties on human rights and fundamental freedoms forbid
lawmakers limit the amount of production, distribution or consumption of goods.
Therefore, the legislature may in its discretion to introduce price or quantitative regulation
production in certain sectors of the economy, define or influence
type, number of players in it, or restrict contractual freedom when production
application on the market or in purchase of raw materials and production equipment
. The government pointed out that the claims made by MPs that
restrictions may be only qualifying, described in this judgment the Constitutional Court
for an unreasonably narrow interpretation.
The Government further stated that the contested regulation maintains the continuity with
relevant EC regulations and the law. This method takes into account the continuity
setting production quotas made before accession to the EU
in accordance with the obligations of their determination, Member States arising from
relevant EC legislation, so that from the beginning of the marketing year 2004
/ 2005 (ie. from 1 7th 2004) which can be applied all the mechanisms
common market organization for sugar and the Czech Republic. The arguments
petitioners regarding the keys to the allocation of individual production quotas
individual applicants, the government stated that in the period November 2001
or paid in October 2002, while editing allocation of production quotas
made under the previous Government Regulation no. 114/2001 Coll., however
production quotas set when the individual sugar producers
had no major impact on the production volume of sugar producers in their
sugar mills in those months.
Criterion for the allocation of individual production quotas to the applicants on the basis of Government Regulation No.
. 97/2003 Coll., Which took effect on 9. 4. 2003 became
sugar production capacity of each applicant. Initial framework this happened
period of one month, either in November 2001 or October 2002
because in the months of October and November of each year occurs in all sugar factories
substantial portion of production campaign, while the volume of production in these two months is not
conditional total planned production resulting from the allocated production quotas
, but the requirement for maximum performance machinery and technological equipment
each sugar so that sugar producers could realize
campaign in the shortest period and thereby minimize their economic
These two-month period was further divided to two months in two different calendar years
both with regard to the fact that some
producer of sugar has not been damaged by a possible lockout or interruption of production
in one of two alternatively selected months . The basis for determining
capacity of sugar production will then become average quantities produced by the applicant
for 24 hours, it operates in a sugar refinery or sugar mills so that
production in the selected month, divided by an appropriate number of days. This
specifications on the average daily production volumes to be avoided
cases, if one of the producers in the reference month cut in production
some days, which would have a negative impact on the indicator
production for the reference month. Described procedure is then arrive at a determination
sugar production capacity of the applicant so that a gradual manner
determine the maximum power production facilities of individual applicants
quota. The total length of the campaign in that year became
with respect to the above completely groundless.
The production of sugar from thick juice, which also takes place several months after the end
campaign, the government stated that the production of thick juice is by editing
contained in Council Regulation (EC) no. 1260/2001 of 19. 6. 2001
CMO in the sugar sector, as amended,
regarded as sugar production, so in such cases it is already possible to show
sugar production, although it was made during the campaign only
The Government further stated that the establishment of criteria for determining quotas is obvious
Trying to determine objective criteria that would fit
requirements of the law and at the same time reflect the real economic and technological
framework for their determination. The fact that regulatory requirements are met
to the initial allocation of individual production quotas is very difficult to prove
according to the government, paradoxically, the petitioners themselves, as if
decisive period for determining the apportionment of quotas proposed by the period in which
not yet regulated sugar market regulation. Applications
this proposal would not be possible to allocate quotas to those applicants who at the time did not produce sugar
. The same is true of the sugar industry, which these new sugar producers
re-launched, although before that it was owned by another company.
This statement by the government was also confirmed by the Constitutional Court, which, for example.
In the case of milk quotas in the judgment published as no. 410/2001 Coll.
He ruled that "... certain disadvantages of potential future producers
is natural and indelible characteristics of any restrictions on the amount of
production and can it be regarded as a violation of the constitutionally guaranteed principle of equality
because - as has already been speaking -
equality in modern constitutional systems can not be understood as a category of absolute but relative
Government at the end of his statement, therefore, noted that the draft
found unjustified, and with regard to the Czech Republic's commitment to the EU to build
in the Czech Republic, in keeping with the rules of the Common Agricultural Policy
functioning and efficient system production quotas. As the Government stated in
case of annulment of the relevant provisions of the contested regulation would
Czech Republic has become a country which, in the context of the market organization should
sugar production quotas to individual companies, which would be within the EU || | quite unusual, and this would bring the Czech government
incalculable and unpredictable consequences with implications for all
growers of sugar beet and sugar producers. The Government has therefore proposed to the Constitutional Court, as such
B) The Constitutional Court under § 69 par. 2 of the Constitutional Court sent the proposal
Ombudsman with the statutory deadline whether he
enters intervene. The Ombudsman
memorandum dated 23. 11. 2004 showed willingness to intervene in the proceedings and
while the Constitutional Court gave the proposal its observations. In it he said,
Ombudsman came in 2002 in the proceedings on the application for
repeal of Act no. 256/2000 Coll. and the annulment of Government Regulation No.
. 114/2001 Coll. under file. Nos. Pl. US 39/01. It did so primarily
considering that it had approached private individuals, asking them
support their efforts to repeal these laws.
Public Defender thus also stepped up proceedings on a petition to repeal
Government Regulation no. 114/2001 as amended, maintained by the Constitutional Court as file
. Nos. Pl. US 48/03, which the Constitutional Court after falling due
stopped. In both cases, the Ombudsman referred to the fact that
applications where existing legislation, violations of the principle of equal access
requirement and objective method of calculation
sugar quotas. There was so simply put, to create inequality between
sugar producers themselves. To see the petition Ombudsman
stated that both contested provisions are based on Government Regulation no.
114/2001 Coll., Which was twice attacked proposals to abolish
at the Constitutional Court. Therefore, the Ombudsman concurred with the view
petitioners that provides equal access and objective method of calculation
not given, since the new regulation no. 364/2004 Coll.
already refers to the invalid regulation no. 114/2001 Coll., that equality and objectivity
not guarantee. According to the Ombudsman's government issuing a new regulation
again exceeded the limits fixed by the Art. 78 of the Constitution.
C) The Constitutional Court then on 31. 3. 2005 requested to take evidence from
State Agricultural Intervention Fund, comparative information about what
key to the allocation of individual production quotas for sugar and enjoyed taking other
EU Member States. State Agricultural Intervention Fund
informed the Constitutional Court that the production quotas were first introduced and
distributed among enterprises in member states of the then EEC on the basis
EEC Regulation no. 1009/1967 on the common organization of the sugar market. According to
Art. 23 Regulation by the Member countries the basic quota of the undertaking, so that
found the share of the undertaking concerned at the overall average annual production of sugar
this country for the marketing years 1961/1962 to 1965/1966, ie
during a period of 5 years. The same procedure was carried out in the case
acceding States in the 70s, in the case of Denmark, Ireland and
United Kingdom of Great Britain and Northern Ireland, which were
decisive period of the years 1965/1966 to 1969 / 1970's.
Council Regulation (EC) no. 1785/1981 on the common organization of the market in sugar was introduced
breakdown of the quota of each undertaking in quota A and quota B,
the decisive period was the production in the marketing years
1975/1976 to 1979/1980.
On the basis of the Treaty of Accession of Spain and Portugal to the EC from 1985
assigned quotas A and B also enterprises on their territory, and
according to the amount of production during 1985;
precise criteria according to information of the State Agricultural Intervention Fund but not
determined. On the basis of the Treaty of Accession of Sweden, Finland and Austria to the EC
assigned quotas in these countries, according
production in 1994. Specific criteria were left to the countries concerned.
Regarding countries from the last wave of accession to the Slovak Republic and the
Poland and Hungary, according to unverified information, which
State Agricultural Intervention Fund has chosen as the decisive period of economic
1994 / 95 to 1998/99, that is always a period of 5 consecutive
successive marketing years.
D) The Constitutional Court further on 2 1, 2006, requested information
State Agricultural Intervention Fund on whether it was in the Czech Republic
applied to Commission Regulation (EC) no. 1609/2005.
From the Communication Fund showed that the Fund fulfilled their obligations under Article. 1, paragraph. 3
regulation and before 1. 11. 2005 provided for each of the producers holding quota
A and B quota reductions.
E) On 4 1, 2006, the Constitutional Court received the Government's response to the submission, which suggested
petitioners permission to amend its initial proposal to proposal to repeal
§ 3 of Regulation no. 548/2005 Coll. In its observations, the Government stated that
results of previous proceedings can not be the basis for management of the amended
proposal because the two regulations differ (§ 3 of Regulation no. 548/2005 Coll.
Has different wording and purpose than original § 3 of the Regulation no. 364/2004 Coll.).
Claim that the government has repeatedly avoids hearing and verdict of the Constitutional Court
is not true, as the legislative process is conducted independently
proceedings before the Constitutional Court; request to discuss the draft regulation in
shortened legislative process has already been sent 1. 11. 2005,
before the government was asked whether he agrees to waive oral hearing
. The reason for the adoption of the new regulation was the need to adapt national treatment
Commission Regulation (EC) no. 1609/2005, while
national arrangements to prepare for the new sugar regime, which will
adopted at Community level. Given the scope of these changes was then chosen path
issue a new rule instead of the current amendment.
The Government has therefore proposed that the Constitutional Court did not accept the proposal and change management
F) On 12. 1. 2006 the Constitutional Court delivered the government documents related to the adoption process
Regulation no. 548/2005 Coll. Thus, the draft regulation and its preamble
, handling comments relevant comments of the
(Ministry of Finance, Ministry of Foreign Affairs, Ministry of Industry and Trade
Cabinet Office, the General Customs Directorate)
request of the Minister of Agriculture to discuss application in an abbreviated commentary
management of 1. 11. 2005 permits the Minister and Chairman of the legislative Council of the Government
discuss the proposal in summary proceedings of 3. 11. 2005
opinion of the Chairman of the Government legislative Council on the draft regulation
dated 16th 12. 2005 and the statement of the Department of Government Office Compatibility
to the draft regulation.
The government also informed the Constitutional Court that opposition to waive a hearing
realized their right, because management
attach paramount importance. At that time, although already underway legislative process
was not clear, however, whether this regulation is adopted and when it becomes effective.
This is why the Government did not disclose the fact to the Constitutional Court and did so until
when the Regulation was published in the Official Gazette.
G) On 19. 1. 2006 the Constitutional Court received additions to comment on the draft
government permission to amend the draft of 3 1, 2006, in which the government proposed
event that would change draft admitted that
Constitutional court for the annulment of § 3 of Regulation no. 548/2005 Coll. dismissed. In this submission
Government to report in terms of the very essence of determination
key to calculating production quotas, the arguments set out in the original
comments on the original proposal.
H) On 20. 1. 2006 the Constitutional Court delivered its opinion on the proposal to admit
design changes and cancellations § 3 of Regulation no. 548/2005 Coll. Also
intervener Ombudsman. He said that it is necessary
first examine whether the results of previous management used to control
on the amended proposal. Both regulations according to him, are not substantively
completely identical, but it must be acknowledged that the question of the allocation of individual production quotas
§ 3 takes essentially the quotas set
previous regulation, only decreases while maintaining mutual relationship.
For the actual merits of the then Ombudsman noted that the Constitutional Court
its previous finding sp. Nos. Pl. US 39/01
put the government in a difficult situation. The interval from the moment he began to be sugar market
regulated, has been so great that the government might very difficult to use as the default value
production volume of individual producers from the beginning
regulation. Nevertheless, the Ombudsman believes that the government should and could
make efforts to find a mechanism that would pre-existing inequality
either completely removed or at least eased. However, the government has not provided any listing
models a solution that perhaps
considered and rejected for various reasons.
The Ombudsman therefore alternatively proposed that either the Constitutional Court
stopped the proceedings and explained the reasons for doing so, or if
admits the design change and the amended proposal meets the same effective date moved
finding a period of 6 months after its publication.
I) Finally, on 8. 2. 2006 the Constitutional Court received a letter
State Agricultural Intervention Fund, in which the Constitutional Court met with his
position on the draft. Any radical intervention of the Constitutional Court in the system of production quotas for sugar
would fund a step towards such a concept
domestically guaranteed fundamental rights which would not stand up
from the perspective of EC law. Furthermore, the State Agricultural Intervention Fund suggested
possible scenarios that would arise following the quashing judgment of the Constitutional Court
(produced sugar could not be regarded as a sugar category A and B would
C sugar producers would have to export outside the EU
there would be a collapse of the market, this would question the selection process
financial benefits from the production of a and B sugar from sugar producers in the Czech Republic
discharged into the EU budget, the loss of quota would mean the loss of markets, etc. .).
During the hearing
At the hearing on 8 3. 2006 legal representative referred to the petitioners
contents of all proposals and summarized the major arguments. Proposers
not about to repeal the regulation as such, but only in order to change the way
regulation. It is essential while choosing the applicable period
for establishing individual quotas which, in all earlier regulations were
period which the Constitutional Court in its previous judgments
described as unconstitutional. Selecting the vesting period key was arbitrary, as well as
comparative survey shows that you can choose a longer period.
Legal representative of the petitioners, although he admitted that it is impossible to achieve absolute equality
between producers, but in the effort to approach the maximum
equal status between producers would be possible to choose another
One of the petitioners, deputy Miloslav Kucera, then added that
there are two types of regulation of the sugar market: the state can either restrict
beet producers directly or, as the government has, sugar producers.
According to him, the system of regulating the amount of cultivated sugar beet growers
directly at fairer than the established system.
System of quotas in the Czech Republic, then according to him, can not be compared with those in other
EU member states where sugar refineries directly owned by growers.
The government representative also referred to the government's brief in which the Government has set clear
why it considers the chosen way to be fair. methods of calculation
Individual quotas had been previously chosen differently, but always
been challenged and it is expected that even if the Government would in the future
select another key, again, he too was attacked. According to a representative
government can not be found absolutely fair method of calculation, any disadvantage
single producer can not be considered as an unequal position
all producers. That is why the Government insists that the petition is unfounded
The Ombudsman noted that, as an intervener may hold
more general attitudes. Therefore, while referring to its earlier
expression, but that in the meantime his attitude somewhat qualified the
. He said that posed the question to whom this process
benefits. Ultimately it is not about quotas set
individual producers, but about how much they will receive compensation for not making
produce sugar. The impact of legislation is not only sugar producer, but also
growers. Therefore it insists that the Constitutional Court if the legislation
revoke, suspend operation of the judgment.
To query Judge Rapporteur both parties finally claimed that
is already known and the national quota for the 2006/2007 marketing year.
Locus standi of the appellant, the admissibility of
Constitutional Court first examined whether the condition is active
standing of the petition, if the petition is admissible and whether there are grounds
stop the proceedings. He declared that the petition was filed by an authorized
entity in accordance with § 64 para. 2 point. b) the Constitutional Court Act,
namely a group of 35 deputies of the Parliament of the Czech Republic
In connection with the assessment of the admissibility of and conditions for the cessation
control the Constitutional Court was confronted with a situation where the government during
proceedings on the original proposal and just before the oral proceedings contested
legislation repealed and adopted new legislation, on which
petitioners responded by requesting permission to amend the original proposal.
Constitutional Court because after he met with the arguments of the parties and the intervener
parties permission to amend the draft, decided
Resolution of 14. 2. 2006 to a design change admitted.
The Constitutional Court has already in the past, a similar situation built
management sp. Nos. Pl. US 8/02 (Collection of Decisions, volume 28, judgment no. 142;
promulgated as no. 528/2002 Coll.), The Finance Ministry during
management repealed the contested adjustment of rent control and adopted a
the new regulation, the same content, or in the control file. Nos. Pl. US 49/03 (finding
was promulgated under no. 227/2005 Coll., And will be published in volume 37 Collections
decision) when the municipal council Jindřichovice pod Smrkem also
during the proceedings before the Constitutional Court annulled the contested
generally binding ordinance and adopted a decree identical content. The Constitutional Court in both these cases
design change admitted.
Now in the present case, the Constitutional Court found that the reasons for the same
progress since the Government during the proceedings concerning the original petition challenged legal
editing formally repealed and adopted a new legislation materially
previous similar arrangements. In addition, the government did so after
did not agree to waive a hearing, and just before the deadline mandated
hearing. Government does at a time when the draft regulation prepared
about it apprise the Constitutional Court, even though it must be
aware that the adoption of the regulation will have considerable impact
proceedings before the Constitutional Court. A few days before the hearing, then a government representative
only the Constitutional Court about the acceptance of new legislation that will
not intend to attend the hearing because the expected termination of the proceedings.
Should the Constitutional Court accept the government and stopped the proceedings
as the government predicted it would mean for the situation
denying the purpose and meaning of abstract norm control. That procedure, which the government has chosen
could be the Constitutional Court at any time in the future the same way
excluded from any possibility of reviewing contested legal enactments. In other words,
stop the proceedings would entail an intolerable precedent for action by state authorities
in the future. This would directly thwarted by the Constituent Assembly intended function
specialized and concentrated system of abstract norm control.
Such an approach would have the effect of weakening the overall protection of constitutionality in the Czech Republic and
and the principle of substantive law.
Content identity § 3 of Regulation no. 364/2004 Coll. and § 3
Regulation no. 548/2004 Coll. is, according to the Constitutional Court issue on the merits
own constitutional review, namely the question of the constitutionality
prescribed manner for calculation of individual production quotas. Although
can therefore agree with the Government that the wording of the two provisions is different,
in terms of both provisions implicitly retained the original key
calculation of individual production quotas, which was the main subject of constitutional
review both in the original and the amended proposal.
The results of the current proceedings related to the review of § 3 and § 16 of Regulation No.
. 364/2004 Coll., Can therefore be used in this way for proceedings on the amended
petition to annul § 3 of Regulation no. 548/2005 Coll.
In view of these facts, the Constitutional Court, under § 63 of the Act no.
182/1993 Coll., On the Constitutional Court in connection with § 95 para. 1 of the Civil Procedure Code draft
permission to amend the proposal complied with.
In relation to the petition to annul § 3 and 16 of Regulation no. 364/2004 Coll.
Constitutional Court proceeding pursuant to § 67 par. 1 of the Constitutional Court
and continued the proceedings on the petition to annul § 3 of Regulation No.
. 548/2005 Coll.
Annulment § 3 of Regulation no. 548/2005 Coll.
proposal is then permissible, because the Constitutional Court received after the Regulation no. 548/2005 Coll
. published in the Collection of Laws (§ 66 of the Constitutional Court
Wording of the contested provisions
The initial proposal from the contested provisions of Government Regulation no. 364/2004 Coll., On determining certain conditions
common organization of the markets in the sugar sector, was:
Quota (1) production quota for sugar ^ 3) provided by the sugar manufacturers (hereinafter" the holder
quotas "), State Agricultural Intervention Fund (hereinafter" Fund ") from 1 September 2003
broken down into sugar refineries operated by the holder of quotas or production quota for sugar
^ 3) reduced the quota holders of the Fund, in accordance with existing law
^ 4) is considered as the sum of quota a ^ 5)
quotas B-5) in accordance with regulations of the European Community ^ 1).
(2) quota a-5) quota holder amounts to 97% of the quota assigned by the Fund quota holders
prior legal regulation 4). quota B-5)
quota holder amounts to 3% of the quota assigned by the Fund holding a quota in accordance with existing law
(3) The Fund within 30 days date of entry into force of this Regulation shall notify the holder
quotas under paragraphs 1 and 2 of the quota a-5) and the amount of quota B-5)
for the period laid down in European Community ^ 6), broken down by individual sugar mills
quota holder. "
1) of Council Regulation (EC) no. 1260/2001 of 19 June 2001 on the common organization of the markets
in the sugar sector, as amended by Commission Regulation (EC) no. 680/2002 dated
19 . April 2002 Commission Regulation (EC) no. 2196/2003
16 December 2003, the Commission Regulation (EC) no. 39/2004 of 9 January 2004
accession of the Czech Republic Estonia
Republic of Cyprus, Latvia, Lithuania,
Hungary, Malta, Poland, the Republic
Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded
Commission Regulation (EC) no. 1043/1967 of 22 December 1967 on
detailed rules for fixing quotas in the sugar sector, as amended
Commission Regulation (EC) no. 1431/1968.
Commission Regulation (EC) no. 1265/1969 of 1 July 1969
methods for determining the quality of sugar bought in by intervention agencies.
Commission Regulation (EC) no. 100/1972 of 14 January 1972 laying
down detailed rules for the denaturing of sugar for feeding
animals, as amended by Commission Regulation (EC) no. 2351 / 1972
Commission Regulation (EC) no. 2847/1972 and Commission Regulation (EC) no. 3475/1980,
Commission Regulation (EC) no. 3819/1985 and Commission Regulation (EC) no. 260 / 1996th
Council Decision (EC) no. 583/1974 of 20 November 1974 on the monitoring of sugar movements
Commission Regulation (EC) no. 1516/1974 of 18 June 1974 on the supervision
Member States of contracts concluded between sugar manufacturers and beet producers
Commission Regulation (EC) no. 825/1975 of 25 March 1975 laying
down detailed rules for the export levies on sugar
, as amended by Commission Regulation (EEC) No. 1714 / 1988
Commission Regulation (EC) no. 1148/1998.
Commission Regulation (EC) no. 797/1980 of 31 March 1980 adjusting
export levies and refunds fixed in advance in the sugar sector, as amended
Commission Regulation (EC) no. 1698/1980.
Commission Regulation (EC) no. 2670/1981 of 14 September 1981
down detailed rules for the production of quota sugar, as amended
Commission Regulation (EC) no. 1760/1984 Commission Regulation (EC) no. 2561/1985,
Commission Regulation (EC) no. 1714/1988 and Commission Regulation (EC) no. 3892/1988,
Commission Regulation (EC) no. 56/1991 Commission Regulation (EC) no. 3559/1991,
Commission Regulation (EC) no. 2177/1992, Commission Regulation (EC) no. 158/1996,
Commission Regulation (EC) no. 1148/1998 and Commission Regulation (EC) no. 95/2002.
Commission Regulation (EC) no. 65/1982 of 13 January 1982 laying down detailed rules
to convert sugar to the following
marketing year, as amended by Commission Regulation (EEC) No. 948 / 1982
Commission Regulation (EC) no. 1708/1984, Commission Regulation (EC) no. 260/1996 and
Commission Regulation (EC) no. 2223/2000.
Commission Regulation (EC) no. 1713/1993 of 30 June 1993 laying
down detailed rules for applying the agricultural
conversion rate in the sugar sector, as amended by Commission Regulation
(EEC ) no. 2627/1993, Commission Regulation (EC) no. 2926/1994,
Commission Regulation (EC) no. 59/1997 and Commission Regulation (EC) no. 624/1999.
Commission Regulation (EC) no. 1464/1995 of 27 June 1995 laying down detailed rules for the application
system of import and export licenses in the
sugar, as amended by Commission Regulation (EC) no. 2136 / 1995 Commission Regulation (EC) No.
. 1507/1996 Commission Regulation (EC) no. 1141/1998, Commission Regulation (EC) No.
. 1148/1998 Commission Regulation (EC) no. 2513/2001, Commission Regulation (EC) No.
. 995/2002 and Commission Regulation (EC) no. 1159/2003.
Commission Regulation (EC) no. 2135/1995 of 7 September 1995
down detailed rules for granting export refunds in the
sugar, as amended by Commission Regulation (EC) no. 1729 / 1997 Commission Regulation (EC) No.
. 1574/1998 Commission Regulation (EC) no. 1489/1999 and Commission Regulation (EC) No.
Commission Regulation (EC) no. 2315/1995 of 29 September 1995
down detailed rules for export refunds for certain sugars
covered by the common market organization for sugar used
in certain products processed from fruit and vegetables.
Commission Regulation (EC) no. 779/1996 of 29 April 1996 instituting
detailed rules for the application of Commission Regulation (EC) no. 1785/1981
in connection with the transfer of information in the sugar sector, in
amended by Regulation (EC) no. 995/2002, Commission Regulation (EC) no. 1140/2003 and Regulation
Commission (EC) no. 1159/2003.
Commission Regulation (EC) no. 800/1999 of 15 April 1999 laying down
common detailed rules for the application of the system of export
refunds for agricultural products, as amended by Commission Regulation (EC) No.
1557/2000, Commission Regulation (EC) no. 90/2001, the Commission Regulation (EC) no. 2299/2001
Commission Regulation (EC) no. 1253/2002, Commission Regulation (EC) No.
444/2003 and Commission Regulation (EC) no. 2010/2003.
Commission Regulation (EC) no. 1291/2000 of 9 June 2000 laying
down common rules for import and export licenses and certificates
advance fixing for agricultural products || | amended by Commission Regulation (EC) no. 2299/2001 and Commission Regulation (EC) no. 325/2003
Commission Regulation (EC) no. 1520/2000 of 13 July 2000 laying down detailed rules
system of granting export refunds and
criteria for determining the amount of refunds for certain agricultural products exported
in the form of goods not listed in Annex. I to the Treaty, in
amended by Commission Regulation (EC) no. 2390/2000, Commission Regulation (EC) no. 1563/2001
Commission Regulation (EC) no. 595 / 2002 Commission Regulation (EC) No.
1052/2002 and Commission Regulation (EC) no. 740/2003.
Commission Regulation (EC) no. 1261/2001 of 27 June 2001 laying down detailed rules
Council Regulation (EC) no. 1260/2001 as regards
contracts for the supply of sugar beet and the price increases and reductions applicable
Commission Regulation (EC) no. 1262/2001 of 27 June 2001 laying down detailed rules
Council Regulation (EC) no. 1260/2001 as regards
buying and selling sugar intervention agencies.
Commission Regulation (EC) no. 1265/2001 of 27 June 2001 laying
Rules under Council Regulation (EC) no. 1260/2001 regarding the provision
production refund on certain sugar products used in the chemical industry
Commission Regulation (EC) no. 1646/2001 of 13 August 2001
down detailed rules for granting subsidies
adaptation for the industry refining preferential raw sugar
and adapting the adjustment aid and additional basic
support for the refinery, as amended by Commission Regulation (EC) no. 1164/2002.
Commission Regulation (EC) no. 314/2002 of 20 February 2002 laying
down detailed rules for the quota system in the sugar sector, as amended
Commission Regulation (EC) no. 1140/2003 and Commission Regulation (EC) no. 38/2004.
Commission Regulation (EC) no. 192/2002 of 31 January 2002 laying
down detailed rules for issuing import licenses for sugar and
mixtures of sugar and cocoa qualifying as ACP / OCT and EC / OCT.
Commission Regulation (EC) no. 1159/2003 of 30 June 2003 laying down detailed rules
applied for the marketing years 2003/2004, 2004/2005 and 2005/2006
on imports of cane sugar within
quotas and preferential agreements and amending Regulation (EC) no. 1464/1995 and
Commission Regulation (EC) no. 779/1996.
3) § 2. d) of the Act no. 256/2000 Coll. On the State Agricultural Intervention Fund
and amending some laws (Act on the State Agricultural Intervention Fund
), as amended by Act no. 128/2003 Coll.
4) § 5 et seq. Government Regulation no. 114/2001 Coll., on setting production quotas
sugar quota for the years 2001/2002 to 2004/2005, as amended
Government no. 296/2002 Coll., Government Regulation no. 15 / 2003 Sb., Government Regulation no.
97/2003 Coll., and Government Regulation no. 319/2003 Coll., Government Decree no. 160/2004 Coll
. and the judgment of the Constitutional Court promulgated under no. 499/2002 Coll.
5) Art. 11 of Council Regulation (EC) no. 1260/2001.
6) Article. 10 paragraph. 1 Council Regulation (EC) no. 1260/2001. "
Government recently adopted a petitioner contested provisions of Regulation No.
548/2005 Coll., On determining certain conditions, implementing measures
CMO in sugar, added:
Sugar producer who holds an individual production quota of sugar A
(hereinafter "Quota A") and individual production quota of Sugar B (hereinafter
"quota B") in accordance with existing law; 4) ( hereinafter referred to as "the holder
quotas"), for the marketing year 2005/2006 a holder of quota a and B quotas
reduced by the European Communities ^ 5) the quantity of sugar
which represents the proportion of the total quota holder
reduction in the guaranteed quantity under quotas a and B allotted to the Czech Republic
4) § 3 of Regulation no. 364/2004 Coll., Laying down certain conditions
implementing measures of the common organization of the markets in the sugar sector.
5) Art. 1 Commission Regulation (EC) no. 1609/2005. "
From the wording of the contested provision, it is clear that both provisions contained in Section.
§ 3 of the Regulation no. 364/2004 Coll., As those contained in ust. § 3
Regulation no. 548/2005 Coll., maintains in previous legislation, respectively.
keys based on allocation of individual production quotas, which was adapted
previous regulation no. 114/2001 Coll., and so in appropriate proceedings
individual applicants applied. it is therefore evident that regardless
it, in what form the legislation in question occurs, may be a possible reason
infirmity springs from the previous one, as indeed in its
draft petitioners asserted themselves (see below). Therefore, the Constitutional court first
focused on assessing whether the key laid down
Government for the allocation of individual production quotas in line with the constitutional order of the Czech Republic
. | ||
the review) from the wording of the contested provision that only the fact that
sugar production quota, set individual producers decision
Fund under Regulation . 114/2001 Coll., is considered well preserved
continue, ie. after the accession of the Czech Republic to the EC, and is considered
sum of quota a and B quotas under EC Regulation no. 1260/2001 (§ 3
Regulation no. 364/2004 Coll.), Respectively. that the production quota subdivided into Quota A and B quota
as a result of reducing national quota under Commission Regulation (EC) no. 1609/2005
individual producers pro rata (§ 3 of Regulation no. 548/2005
In this context, the Constitutional Court considers it essential that
Government has already Regulation no. 364/2004 Coll. its previous regulation, which
determine the original key for the allocation of individual production quotas.
Although it is the government contested provision expressly provides that
decisions adopted under the previous legislation remain
maintained, while the normative basis for this decision canceled.
Government repeatedly (in adopting Regulation no. 364/2004 Coll., And Regulation no.
548/2005 Coll.) Elected such an approach, even while knowing that the key to
allocation of individual production quotas is assessed in
proceedings before the Constitutional court. The repeal of Regulation no. 114/2001 Coll. and it was once in the past
Constitutional Court denied the constitutional review
key for the original allocation of individual production quotas. In other words, although
government decree no. 364/2004 Coll.
previous rule for the allocation of individual production quotas formally repealed, via § 3
Regulation no. 364/2004 Coll. and after its repeal, § 3
Regulation no. 548/2005 Coll. its consequences remain unchanged.
For this reason, the Constitutional Court focused on a review of the key
which the government has set for the allocation of quotas already in Regulation no. 97/2003 Coll.
Which amended Regulation no. 114/2001 Coll. because this key has
directly tied to both § 3 of Regulation no. 364/2004 Coll., as
§ 3 of the Regulation no. 548/2005 Coll., albeit the very provision defining the key
calculation the quota was formally the Government has in the past
Legislation governing the allocation of production quotas for sugar is a sphere
which continues to control domestic regulation contained in the acquis communautaire
. In other words, while the aims and purposes of this regulation, which is part of a broader
common organization of the market in agricultural
commodities, that is part of the instruments of the Common Agricultural Policy (Common Agricultural Policy
) are contained in the standards of European law,
definition and selection of the corresponding means by which these objectives are achieved
, maintain norms of European law on Member States.
Contested legislation concerning the fixing of the quota allocation is
So on the one hand the domain of national law, on the other hand
directly tied to the norms of European law. The Constitutional Court was initially
therefore faced with the question, to what extent is not entitled
assess the constitutionality of such legal norms that follow
The Constitutional Court is not competent to assess the validity
Community law norms. Such questions fall within the exclusive competence of the European Court of Justice
. From the perspective of Community law, as it was in the past
interpreted by the European Court of Justice ( "ECJ"), enjoy
norms of Community law primacy over the legal order
EC Member States. According to the ECJ, where a matter of exclusive
regulation of community law, this right has priority and can not be refuted by reference
criteria laid down by national law, including
criteria on the constitutional level.
Without the Constitutional Court being obliged to this ECJ doctrine,
can not overlook the following circumstances. Indeed, there are additional circumstances and
reasons to consider when considering assessing this issue.
Especially not overlook that many of the highest judicial instance of the original
EC Member States, including the founding members, such as Italy (cf.
Decision dated 27. 12. 1973 no. 183/73 Frontini v. Ministero delle
Finanz Constitutional Court, decision of 21. 4. 1989 no. 232/1989
Fragd v. Amministrazione delle Finanze dello Stato,
Constitutional Court) and Germany (decision dated 22. 10. 1986 no. 2 BvR 197/83
Wuensche Handelsgesellschaft, Solange II .; decision of 12
10th 1993 no. 2 BvR 2134 and 2159/92 zum Vertrag über die Europäische Union
), and later acceded members such as Ireland (
decision of the Supreme court dated 19. 12. 1989 Society for the Protection of Unborn Children
(Ireland) Ltd. v. Grogan and dated 5. 3. 1992 Attorney General in
. X) and Denmark (the Supreme court decision of 6. 4. 1998
no. I-361/1997 Carlsen and Others v. Rasmussen), never quite
disobey the doctrine of absolute supremacy over
all constitutional law, especially when leaving leeway
Interpretation of principles such as the principle of democratic rule of law and
area of fundamental rights and freedoms.
The Constitutional Court is aware that these issues rests the foundation
constitutional exegesis for the entire Community, and that these issues have certain implications
not only legal, but also political.
These questions may have serious implications for the further development of judicial practice within the Community
even on the evolution of the Community, respectively. Union as such, and should therefore be
duty of the Constitutional Court as a judicial body for protection
constitutionality of one of the newly acceded members try to
these issues in its case relevantly comment. Particularly significant is
the issue whether Czech constitutional law and above all the essential
requirements of a democratic rule of law within the meaning of Art. 9, paragraph. 2
Constitution allow international organizations to which the Czech Republic
transferred part its sovereignty, possessed even in areas where the
this transfer took place, the possibility of forming a right
preferably applicable to the whole Czech constitutional order [refer to the section below VIB)
As stated above, where it is subject to Community law
common market organization, in this case the market for agricultural commodities
enjoyed full competence of the Community. This does not mean absolute
Community duty to regulate every issue related to the
areas of regulation. On the contrary, the Community is obliged, as a result
application of the principle of subsidiarity, a certain restraint and leave a certain part
competence in the hands of Member States, or after
Community assumes full competence over a certain field, to delegate | || back, especially for the purpose of meeting the specific aims of general
"policy-making" or for the purpose of administering
general rules of Community law. Therefore, in general, that, where Community
legislation has left certain matters in the hands of Member States (ie.
Where there is no explicit Community law rules), or these things back
explicitly delegated to Member States is
for the Member States to adopt and apply their own legislation.
Still can not say that in these areas, Community law does not in any way.
Conversely, even in those cases where Member States have their own legal instruments
implement part of Community policy, it is discretion on the part of Member States
limited by the overarching general principles of Community law
into which ranks the protection of fundamental rights [
see case C-260/89 Elliniki Radiophonia Tiléorassi AE and Panellinia
Omospondia Syllogon Prossopikou in. Dimotiki Etairia Pliroforissis and
Sotirios Kouvelas and Nicolaos Avdellas and others (1991) ECR I-2925].
In other words, in certain cases the Community delegates powers back
Member States in order to perform a certain act of Community law
or leaves certain issues unregulated
allows Member States to adopt specific rules for the implementation of European law. Even in such cases, however
Czech Republic bound by the principles of European law.
At the same time, however, because it is the national legislation must be
such legislation conformity with the Czech constitutional order.
The Constitutional Court is therefore convinced that, although the applicable legislation is
rules of national law, which is necessary to apply the criteria
arising from the constitutional order of the Czech Republic, at the same time without more
ignore the fact that the it is a problem whose origins stem from
Community law system produced by an international organization to which the Czech Republic
its accession transferred under Art. 10a of the Constitution, some parts
state sovereignty. Consequently, this system has the following
parts of the Czech Republic directly binding
also within the legal order of the Czech Republic.
Although the reference framework review by the Constitutional Court remain even after 1
fifth 2004 norms of the constitutional order of the Czech Republic, the Constitutional Court can not entirely overlook the impact
Community law on the formation, application and
interpretation of national law, in the area of law where the
creation, operation and purpose is directly linked to community law.
In other words, the Constitutional Court in this field interprets constitutional law
into account the principles arising from Community law.
A-1) Assessment of the contested legislation with regard to the criteria
resulting from the ECJ jurisprudence
Before the Constitutional Court turned to evaluating the contested legal
adjustments in terms of the standards achieved in Community law, examined whether the conformity
key chosen for the allocation of individual production quotas
is an issue which should constitutional court to submit
direct assessment of the ECJ under Art. 234 of the EC Treaty. There is, however
related to another question, namely whether the Constitutional Court can be considered a judicial authority, which is
according to Art. 234 of the EC Treaty, called upon to submit questions.
It is necessary to inquire whether, if a court which has narrowed the angle of view when assessing
things, such as the Constitutional Court, it is appropriate to refer matters
ESD. This question appears to be legitimate, at least in proceedings
abstract norm control, which is also proceeding in the matter. For example
Italian Constitutional Court in its 1995 decision stated that the
feel to be a court under Art. 234 of the EC Treaty (see the judgment of 29. 12. 1995
no. 536/95, Messaggero Servizi Sr . v. Office of the Registrar of
Padua). He gave two reasons. The Constitutional Court is not a court, on which
covered by Art. 234 of the EC Treaty and Art. 234 can not be used in certain types
proceedings which the Constitutional Court hears (management abstract norm control).
On the other hand, can not overlook the opposing practice of other constitutional courts
member states, which in turn deemed Court pursuant to Art. 234
EC Treaty and in many cases the question to the ECJ (Austrian Constitutional
court or the Belgian court of arbitration) (cf.. Bobek, M. - Komarek,
J. - Passer, JM - Gillis, M .: the question in community law.
Linde, Prague 2005, p.72 - 73 ).
The Constitutional Court is aware of the delicacy of the question whether
Constitutional Court can be considered a court under Art. 234 of the EC Treaty, or
in what types of management, and itself in the future opportunity to comment || | unequivocal answer, ie. present in various types
management matter to the ECJ.
The Constitutional Court, however, is now of the opinion that in this case it would be possible
applied to the present case one of the exceptions formulated in ECJ case
[see case 283/81, Srl CILFIT and Lanificio di Gavardo || | SpA v. Ministry of Health, (1982) ECR 3415, recently reaffirmed in
decision of 15. 9. 2005, C-495/03 Intermodal Transports BV v Staatssecretaris van Financiën
]. In these decisions, the ECJ stated that
raising questions is not necessary if the question
"engaged in an established ECJ case law, regardless of the nature
proceedings that led to these decisions, and even then,
whenever a question was identical. " In other words, it is a situation where
previous decisions of the ECJ has dealt with the legal issue being resolved in this case
(CILFIT par. 14). In the case of Intermodal Transports
ECJ stated that the solution adopted in the decisions Cilfit and others transferred to national courts
sole responsibility for assessing whether
proper application of Community law is so obvious that it leaves no room for
reasonable doubt and for deciding that it is not necessary to have against ESD
question concerning the interpretation of Community law, which in this case arose
(refer to and Bobek, M. - Komarek, J. -
Passer, JM - Gillis, M .: the question in community law.
Linde, Prague 2005, p.227 - 231).
The Common Agricultural Policy, especially as regards the setting of production quotas
There are so extensive, consistent and long-term
established case law of the ECJ, which undoubtedly allows the Constitutional Court to
legislation keys to the allocation of production quotas examined
terms of domestic constitutional law interpreted in the light of Community law
respectively. in light of its compliance with the general principles of Community law
himself. While the general principles of Community law expressed in
previous ECJ case law, the Constitutional Court leaves prozařovat
to the interpretation of constitutional law.
Principle of free discretion of the state and its limits
Practically since its inception ECJ emphasized that the legislation
areas regulated by Community law must be accompanied by adequate domestic regulation
Member States (see related cases
205 to 215/82 - Deutsche Milchkontor GmbH and others the Federal Republic of Germany
, ECR 2633, para. 17: "According to the general principles on which it is
Institutional system of the Community and governing relations
between the Community and the Member States, according to Art. 5 (now Art. 10)
Treaty on Member States to ensure that Community regulations which specifically
concerning the Common agricultural policy within their territory
implemented. Because Community law, including its general
principles, does not include common rules, this would ensure
is up to national authorities to the implementation of Community law
act in accordance with their national substantive and procedural rules
". Such a conclusion, however, on the one hand
corresponds with the needs of the developing legal system, on the other hand, comports well
idea of leaving certain matters to national or local conditions.
As in the case Milchkontor also stressed this conclusion follows from the principle
cooperation under Art. 10 EC Treaty and applies especially in the area of agriculture
. In such cases where national legislation
connected to Community rules as the Constitutional Court already emphasized above, the
Member State remains bound by the general principles of Community law, in particular the postulate
protection of fundamental rights [Case 5/88 -
Hubert Wachauf the Bundesamt für Ernährung und Forstwirtschaft. (1989) ECR 2609;
Case C-459/02, Willy Gerekens and Association agricole pour la promotion de la
commercialization laitičre Procola the État du grand-Spirit
de Luxembourg, para. 21].
Doing in agriculture laid out in the past ESD community
legislation very loosely to allow Member States to implement appropriate tools
a high degree of discretion "in matters concerning the common agricultural policy
community legislature has a discretionary power which corresponds to the political
liability under Art. 40 and 43 (now Art. 34 and 37)
EC Treaty [case C-331/88 - the Queen of Minister of Agriculture, || | Fisheries and Food and the Secretary of State for Health, ex parte: Fedesa and others
. (1990) ECR I-4023, para. 14; or see para. 13 to 16 associated
things 196/88, 197 / 88 and 198/88 - Daniel Cornée and others in Coopérative agricole
laitičre de Loudéac (Copall) (1989) ECR 2309].
in one of the cases concerning the setting of quantitative quotas Member States || | ECJ interpreted the provisions of Community law, according to which "Member State
must take into account the production plan and the planned development of production" so that
is a matter of discretion of Member States, whether producers who implement the plan
increase production , grant additional quota.
Even in cases where a Member State to grant such an additional quantitative quota
required ESD only that the amount "bear a relation to the production
" not to be in a "relationship of strict proportionality" ( "in
the relation of strict Proportionality "). Conversely, in relation to the overall
planned production Member States may take into account other
criteria, such as social objectives, for example.
Favoring smaller producers [see Case C-16/89 - G. Spronk the Minister
van Landbouw en Visserij (1990) ECR I-3185, para. 14-16). Loose discretion States
According to the ECJ restricted three basic criteria:
measures adopted must be consistent with the objectives of the CAP must be
based on objective criteria and in accordance with the general principles of Community law
(see case C - 13/99, Gerard Mulligan and others
v. Minister for Agriculture and Food, Ireland, para. 33-35; see also
case C-16/89 - G. Spronk the Minister van Landbouw en Visserij (1990)
ECR I-3185, para. 13, concerning Member State discretion in determining the amount
specific quantitative quotas to individual producers].
discretion of Member States is restricted only
objectives of the common agricultural policy and the general principles of community law.
for example, in the case where the linguistic interpretation of community legislation led to the violation of fundamental rights
particular producers, the ECJ ruled that "
community legislation applicable to the
case leaves the competent national authorities a sufficient margin of appreciation (
sufficiently wide margin of appreciation), so that Member States can apply legislation
manner consistent with the requirement of protection of fundamental rights "
[case 5/88 - Hubert Wachauf the Bundesamt für Ernährung und Forstwirtschaft
. (1989) ECR 2609, para. 22].
The high degree of discretion of Member States when implementing
Community legislation in the field of agriculture can also be illustrated by
case involving milk quotas. Community legislation in general
plane provided that in case of transfer of land, allotted quota quantity
remain bound to the land. Ireland in its domestic legislation, this norm
implemented in a way that established the case of such transfer
land that 20% of the allocated quota shall be returned to the national reserve.
ECJ in its decision confirmed that such a measure is considered
still within the discretion of the Member State (within the member state discreation)
(see Case C-313/99, Gerard Mulligan and others v. Minister for
Agriculture and Food, Ireland, para. 33-35).
In light of these principles, the Constitutional Court examined the alleged breach
constitutionally protected equal access to asylum quotas and
came to the conclusion that the approach of the Government in fixing the apportionment of quotas
Principle of Proportionality
The principle of proportionality constitutes law of the ECJ
integral part of the general principles of Community law. The ECJ in its decisions
traktoval many times that this principle requires that "
Community legislation was appropriate and necessary for meeting the objectives legitimately pursued
relevant regulation [...] and that, where there is more | || alternative measures have been used most considerate of them, which is not
to the aims pursued a disproportionate "[eg. case 265/87,
Hermann Schräder HS Kraftfutter GmbH & Co. KG v Hauptzollamt Gronau,
(1989) ECR 2237, para. 21].
It is settled case law of the ECJ that the criterion of proportionality ESD
does not apply to all cases equally strict.
Particularly in the area of economic policy, it is clear that the ECJ has opted rather
route of judicial restraint and has left the competent legislative body
main responsibility for determining whether the measure meets the applicable standards
: "Where assessing complex economic situation, as
this case, it should be borne in mind, as the ECJ had previously said
it is the Commission that it enjoys discretionary and community
judiciary when considering the use of lawlessness such discretionary, not substitute
account belonging to the competent authority, but on the contrary
itself must be limited to examining whether such discretion
competent authority is not an obvious mistake or whether no abuse
competence ... "[case C-99/99 Italian Republic in
Commission of the European Communities (2000) ECR I-11535, para. 26].
Such self-restraint typically used by the ECJ in the area of agricultural policy:
"The formalities relating to the common agricultural policy enjoys
Community legislation discretion which corresponds to his
political liability under Art. 40 and 43 (now Art. 34 and 37) of the EC
. " [Case C-331/88 - The Queen of Minister of Agriculture, Fisheries and Food and
Secretary of State for Health, ex parte: Fedesa and others
. (1990) ECR I-4023, para. 14]. In other words, the ECJ in
Common Agricultural Policy has made it clear where the limits of judicial review
As a result of this highly reticent ECJ leaves
when assessing the necessity and appropriateness of the measures in the legislation
very wide limits of discretion (wide margin of appreciation): "Where
need to evaluate a complex economic situation,
institutions enjoy a wide measure of discretion. in assessing the legality of using such
discretion ECJ can not replace what the content of the decision to
competent authority but must confine itself to examining whether it
assessment that of the competent authority is not affected quite obvious
error or constitutes misuse of power or whether the institution
clearly exceeded the bounds of discretion. " (Case C-87/00 - Roberto Nicoli
in Eridania SpA., Para. 37). In practice, therefore ECJ has seldom
concludes that the relevant measures in the area of economic policy
violated the principle of proportionality. If you have not already done in the past,
it was not due to disagreement as to the reasonableness
given measure, thus with its own content, but due
excessive impingement on individual rights and their
extreme violations [see case 114/76 Bela-Mühle Josef Bergmann KG in
Grows-Farm GmbH & CO. KG (1977) ECR 1211, para. 7].
The ECJ has in the past also spoke directly to the issue of whether a measure
seeks to restrict the production of certain agricultural commodity represents
violation of the principle of proportionality [see Case 138/79 SA Roquette Frères v Council
of the European Communities, (1980) ECR 3333].
This particular case was instigated situation where the ECJ had previously declared
specific regulation invalid, while in consequence, the petitioner
contested regulation subsequently adopted, and because of that the relevant producers were
left in doubt as to what the legislation will
, which resulted in their limited production. The ECJ in this case
stated that it is necessary to consider the legitimacy of the goal that
appropriate measures. It is the stabilization of the relevant market
by limiting overproduction. In other words, if it pursues a measure
this goal, the quota system, which is the means of achieving it, in itself
does not breach the principle of proportionality.
In relation to claimants' specific arguments that uncertainty about the content of the legislation
rules lead to the worsening of the market situation, the ECJ stated that "the Council
not require that in adopting specific measures aimed at the general
interest watched the motives, business opportunities and internal
strategy of each individual enterprise. " (Roquette Frères, para. 30).
Further, the ECJ in this case, adding that such an argument could be
relevant only if that individual producers with a
demonstrate that due to the unclear legal situation really changed the conditions of their business
As in this case the Constitutional Court fall within the framework
proceeding on abstract norm control, can hardly examine how the contested legislation
impact, if any, into the sphere of fundamental rights
specific individual producers. In this type of proceeding, the Constitutional Court could
contested legal rule solely from the perspective
principles which can be of various fundamental rights inferred, ie.
Did not and could not have reviewed any possible actual intrusion into fundamental rights
Principle of protection of fundamental rights
As already mentioned above, the ECJ held that Member States are
the implementation of Community law are bound to respect the fundamental rights
[eg. Cases 5/88 - Hubert Wachauf the Bundesamt für Ernährung und Forstwirtschaft
(1989) ECR 2609; C-459/02, Willy Gerekens
and Association pour la promotion agricole de la commercialization
laitičre Procola the État du Grand-Duché de Luxembourg, para. 21].
ECJ has many times adjudicated upon restrictions of fundamental rights
measures in the area of economic policy and has repeatedly declared that fundamental rights can be
in the implementation of Community policies and subject to substantial restrictions
: "The fundamental rights recognized by the Court are not absolute,
but must be assessed in terms of their social function. Consequently, the
accept restrictions on the exercise of these rights, especially in the context of
common organization of the market, provided that those restrictions correspond with
purpose, which is a general interest pursued by the Community and do not constitute
with regard to this purpose, a disproportionate and unacceptable interference
violating the very essence of these rights. " [e.g. 5/88 case -
Hubert Wachauf the Bundesamt für Ernährung und Forstwirtschaft (1989)
ECR 2609, para. 18].
In assessing the admissibility of restrictions on fundamental rights in the field of agricultural policy
considered in the past as key ESD
weigh and take account of the specific nature of the common market organization and the quota system
under the Common Agricultural Policy, "The basic characteristics of the organization | || market that it is variable depending on the economic factors that influence the development
market, and in terms of the general direction
Common agricultural policy. " [Case 230/78 - Eridania SpA
-Zuccherifici nazionali the Minister of Agriculture and Forestry,
(1979) ECR 2749, para. 21].
Constitutional Court with regard to the above-mentioned hereafter proceeded to
assessment of whether the contested rules, to be considered compliant with partial
basic principles and fundamental rights flowing from
Community law, which could be challenged legal issue.
It is the principle of legitimate expectations, the principle of legal certainty and non-retroactivity
, non-discrimination, protection of the right to undisturbed
Economic activity in the form of business or employment and protection
A) the principle of legitimate expectations
Principle of legitimate expectation was in ECJ case
formulated as a general principle of Community law. However, in the realization
agricultural policy, the ECJ held that the principle of legitimate expectations can not be
construed so as to guarantee a producer access
a level of production quotas had expected or what might claim in terms
its expected production in a particular year [see case 230/78
- Eridania SpA-Zuccherifici Nazionale
Minister of Agriculture and Forestry, (1979) ECR 2749, para. 22]. In this case, the ECJ
traktoval that "individual producer can not rely on its
vested right to maintain the benefits gained
establishment of the common market organization". On the contrary, the ECJ clearly stated that the producers' expectations
may be frustrated by the necessity of amendments to the relevant rules
which requires implementation of the Common Agricultural Policy, and that
individual producers can be restricted by measures resulting from standards
Community law which has been adopted even after he was approved
production plan, particularly in relation to market requirements and
structural policies. "[see the decision in Joined cases 196-198 / 88
- Daniel Cornée and others in the Coopérative agricole de Loudéac laitičre
(Copall), para. 26].
As the ECJ stated in another case: "According to settled case-law in the field
CMO which must constantly adapt to changes in economic conditions
, not individual economic actors
legitimately expect that they will not be subject to restrictions arising from
future rules of market and structural policies. "[
case C-63/93 - Fintan Duff et al in the Minister for Agriculture and Food and Attorney General
(1996) ECR I-569, para. 20]. In this case
cited the ECJ ruled that the discretion given to the Member States of the European
Regulation to grant individual producers who
submit a production plan development, special production quota
still does not constitute a legitimate expectation that the individual producer receives a quota
[see also case C-177/90 - Ralf- Herbert Kühn in
Landwirtschaftskammer Weser-Ems (1992) ECR i-0035, para. 13].
From the same reason, according to the ECJ against the principle of legitimate expectations
if the reduction of allocated quota by 4.5%, which is initially introduced as a temporary
, will eventually be made permanent [C-22/94 -
the Irish Farmers Association and others the Minister for Agriculture, Food and Forestry
, Ireland and the Attorney General. (1997) ECR I-1809, para.
17-25]. In other words, in a situation where the European institutions or the Member States
are forced to adapt its agricultural policy
changes in economic conditions or even must reform agriculture
whole, individual producers must expect such changes and have no legitimate
expectation in terms of their position
maintained the status quo (see the Irish Farmers Association and others in
Minister for Agriculture, Food and Forestry, Ireland and the Attorney General, para. 25:
"if reasonable and discriminating trader could have foreseen the adoption
Community measure likely to affect his interests, he can not be
legitimate expectation if the measure is adopted ";
see also case C - 09/02, Willy Gerekens and Association agricole
pour la promotion de la commercialization laitičre Procola the État du grand-Spirit
de Luxembourg, para. 29).
On the other hand, the principle of legitimate expectations may be affected
Community rules only if the Community itself has previously
created a situation which could give rise to a legitimate expectation [
case C-63/93 - Fintan Duff et al in the Minister for Agriculture and Food and Attorney General
(1996) ECR I-569, para. 20; Case C-177/90 -
Ralf-Herbert Kühn the Landwirtschaftskammer Weser-Ems  ECR I-0035, para
. 14; Case C-459/02, Willy Gerekens and Association agricole pour
la promotion de la commercialization laitičre Procola the État du grand-Spirit
de Luxembourg, para. 29]. Such a situation occurred
For example, when the EC induced producers to suspend production
specific compensation payment and then introduced a system of quotas tied to the amount
production in the year in which the producers had temporarily suspended production, which
led to the consequence that those who took the opportunity to suspend production lost
entitlement to any quota.
The ECJ found that, due to the fact that the Community authorities themselves
motivate producers to suspend production only for a certain period of time, these
producers had a legitimate expectation that when that period expires
will be able to continue in production [case 120/86, J. Mulder
Minister van Landbouw en Visserij, (1988) ECR 2321]. On the other hand, where
producer limits or entirely suspends activities due to its
free decision, therefore, without being encouraged to do so by Community
measures in the period, which is then considered a reference,
does not constitute a breach of legitimate expectation [case C-177/90 -
Ralf-Herbert Kühn the Landwirtschaftskammer Weser-Ems (1992) ECR I-0035, paragraph
. 15]. In this case, the production was limited due to the transfer
farm from a lessee back to the owner, the ECJ concluded that
fact that the producer operating the holding
during the reference period laid down by the Member State changed, as a result of
which reduce production, does not constitute a breach of legitimate expectations.
The Constitutional Court has not yet ruled on the principle of legitimate expectations
in accordance with the case law of the European Court of Human Rights, from which emerges clearly
concept of protection of legitimate expectations as a property claim,
which has already been individualized by an individual legal act, or is
individualizable directly under the law (cf..
judgment in the case file. Nos. Pl. ÚS 2/02, Collection of decisions, volume 32, judgment no. 35;
promulgated under no. 278/2004 Coll.). Based on these principles, the Constitutional Court
states that the principle of legitimate expectations
contested regulation was violated when the judgment in file. Nos. Pl. US 39/01 (Collection
decision, volume 28, judgment no. 135, promulgated under no. 499/2002 Coll.)
Certainly can not be inferred individualizable claim. This finding is contrary
left open the possibility for the executive to the new regulation
allocation of production quotas. It can not therefore claim that the contested legislation violated the principle of legitimate expectations
which could have given rise
based on a previous ruling of the Constitutional Court.
B) The principle of legal certainty and non-retroactivity
The ECJ case law, the principle of legal certainty and non-retroactivity
interpreted to generally preclude retroactive legislation
accepted by both the EC and Member States unless this legislation
adopted in exceptional circumstances "when it takes a purpose, which is to be
this measure reached and if the same are duly respected
legitimate expectations of the legal norms "(C-459/02, Willy Gerekens
and Association pour la promotion agricole de la commercialization | || laitičre Procola the État du grand-Duché de Luxembourg, para. 23- 24).
One of these exceptions is the situation where a Member State has implemented
Community legislation that is limited in time and that
legislation was found to be in breach of Community law, while
Member State was obliged to adopt legislation covering i already
previous period. If such legislation could not be applied retroactively
"would not achieve the objective pursued and would jeopardize the effectiveness of such measures
" for agricultural quotas
(C-459/02, para. 25-26) .
This principle contested legislation has not been violated because, although
due to the Constitutional Court jurisprudence finish
allotment of production quotas were, it was always about acting treatment prospectively, not retrospectively
, and always has been the modification duly published in the Collection of laws
C) The principle of non-discrimination, respectively. discrimination
In agriculture, the principle of equal treatment is required not only
general principles of Community law, but also directly Article. 34 paragraph. 2
(formerly Art. 40 par. 3) of the EC Treaty, which constitutes a "specific || | manifestation of the general principle of equality "[see the judgment in Joined cases 201 and 202/85
, Marthe Klensch and others in the Secrétaire d'Etat à l'Agriculture et
á la Viticulture (1986) ECR 3477, para. 9]. Creating
CMO in connection with the implementation
Common Agricultural Policy requires "exclude any discrimination
between producers or consumers within the Community".
This provision covers all measures relating to the common organization of agricultural markets
irrespective of the body, which is determined. In other words, according to the ECJ
also obliges Member States in situations where implementing the common
CMO [Joined Cases 201 and 202/85, Marthe Klensch and others in
Secrétaire d'Etat à l'Agriculture et à la Viticulture (1986) ECR 3477, paragraph
In assessing compliance with the principle of equality ECJ considers two aspects -
comparability (comparability) and objective justifiability
(the objective justification). If it is a criterion of comparability, the ECJ has in the past
ruled that "not in the sense of Art. 40 of the Treaty be considered
discrimination occur if inequality in the treatment of undertakings corresponds to an inequality
position in the factual and factual
situation of such enterprises. " [Case 230/78 - Eridania SpA-Zuccherifici Nazionale
Minister of Agriculture and Forestry, (1979) ECR 2749, para. 18].
In this case, the ECJ held that the principle of equality was not violated
measures laid down by Community law, according to which the entire
Community should reduce sugar quota by 5%, excluding Italy, in which case Community
legislation allowed a much stronger reduction.
According argument ESD due to the fact that "it is generally known that the situation
in the sugar beet and sugar production in Italy
significantly different from the conditions in other countries, [...], are such as in treatment [...]
based on objective differences arising from the initial
economic situation. "(case 230/78, para. 18-19).
In certain situations, it may be discriminatory and differential treatment
between individual producers to justify, especially if directed to
achieving the objectives of the Common Agricultural Policy. ECJ has
found various forms of differential treatment justified if
facilitated sound and effective implementation of the CAP.
For example, the distribution of quotas Member State may favor certain forms
producer associations than those whose organization or structure would allow easier
violation of Community law [see Case C-15/95 -
EARL de Kerlast in Union régionale de coopératives agricoles (Unicopa)
and Coopérative du Trieux. (1997) ECR I-1961, para. 39: "
Member State must be allowed to exclude certain forms of company which facilitate
activity which is not in conformity with Community law."].
ECJ has also held that although the reference year chosen by the Member State
may not be ideal for some producers, the resulting
difference in treatment may be justified in the interest of sound administration and
appropriately limiting the length of the reference period respectively.
specified number of years as a reference. In reaction to a particular
producer that was in relation to other producers discriminated against because of
year chosen as the reference period did not develop production in quantity
representative of his capacity, the ECJ concluded that "such an effect is | || justified by the need to minimize situations where the reference period
shifting from one year to the next years "[case C-177/90 -
Ralf-Herbert Kühn the Landwirtschaftskammer Weser-Ems (1992) ECR I- 0035, paragraph
. 18]. A similar problem arose in the case of producers who
implemented a development plan (and expanded their capacity), but they did not comply with the quota allocated
increased production due to the fact that the reference
year came prior to the time of completion of the development plan.
The ECJ stated that it did not consider the situation of these producers
objectively different from producers who have not implemented a development plan because "it
is the reference year which is decisive for comparing the situation
two categories of producers" [case C-63/93 - Fintan Duff et al
the Minister for Agriculture and Food and Attorney General (1996)
ECR I-569, para. 26]. In other words, the actual selection of the reference period
not capable of establishing a breach of the principle of equality between producers.
On the other hand, ECJ case law does not allow Member States to complete
discretion in selecting the reference period. The ECJ stated that a
selection may result in a breach of the principle of equality.
Example ECJ ruled that the choice of reference period may result in discrimination prohibited
principle of equality, "if, due to specific conditions on
domestic market, leads the implementation of such a choice on the territory of the
discrimination between producers inside Community-wide "[
joined cases 201 and 202/85, Marthe Klensch and others in the Secrétaire d'Etat à l'Agriculture et
á la Viticulture (1986) ECR 3477, para. 12]. In this
Case, the ECJ concluded that the specific choice of the reference period
favored big producers to the detriment of smaller ones.
Issue of equality ECJ also dealt with in connection with the transfer
quota allocations from one producer to another. For example, the ECJ concluded that
Community law can not be interpreted in a manner that would allow the transfer
quotas to producers who cease production entities which in the past
purchasers of their production, since such a transfer would lead
inequality in favor of those persons to the detriment of other shoppers
production in the area of production. Quotas should, therefore, according to the ECJ
should rather be returned to the national reserve and then reallocated in a fairer manner
[Joined Cases 196/88, 197/88 and 198/88, Daniel
Cornée and others in Coopérative agricole laitičre de Loudéac
(Copall) and Laiterie coopérative du Trieux, (1989) ECR-2309, para.
Lastly, you can also point to the opinion of the ECJ, which can not be judged by
merely hypothetical assertion that national measures
discriminate against certain producers, if not presented concrete evidence
that any of these producers which should be a measure allegedly affected
was actually exposed to the negative impact of such measures
[joined cases 196/88, 197/88 and 198/88, Daniel Cornée and others in
Coopérative agricole de Loudéac laitičre ( Copall) and
Laiterie coopérative du Trieux, (1989) ECR-2309].
Constitutional Court found no infringement of the principle of non-discrimination
interpreted in the light of the ECJ. As will be explained, the Constitutional Court
corrects the current interpretation of the principle of equality arising from Article
. 1 of the Charter of Fundamental Rights and Freedoms made in its judgment. Nos. Pl.
US 39/01, in the area of law which is related to Community law (see below
D) The principle of protection of the right to do business and engage in other economic activities
ESD in the past in its decision that the right to engage in economic activity can not be
in relation to the quota system to be interpreted as
would guarantee the right to receive a specific amount of quota.
According to the ECJ, quotas "do not restrict the economic activity of entrepreneurs, but in the context of
building CMO fix the amount of production that can be applied
market ...". [Case 230/78 - Eridania SpA-Zuccherifici
nazionali the Minister of Agriculture and Forestry, (1979) ECR 2749, paragraph
. 20-21]. Moreover, given the variability of the common organization of the market
quotas are subject to change (cf. The discussion above concerning the protection of legitimate expectations
Such restrictions on the right to do business and engage in other economic activities
even meet the general standard limitation of fundamental rights, therefore such limitations
correspond to the objective pursued, which is the general Community interest and do not constitute
with regard to the aim pursued a disproportionate
or unacceptable interference incompatible with the essence of fundamental rights [case
5/88 - Hubert Wachauf the Bundesamt für Ernährung und Forstwirtschaft.
(1989) ECR 2609, para. 18]. The first criteria (conformity with the objective pursued
) is observed, if the restriction is part of a legislative tracking
remedy surpluses in agricultural commodity markets, not just
by limiting excess. The second criterion (proportionality)
is met if not undermined the very essence of the right
business and engage in other economic activities. In other words, the system of quotas
restricts the right to use the land in question for other purposes or right
business in other areas of the economy or to trade with other
agricultural products is compatible with the protection of the right to do business and engage in other economic
activity [C-177/90 - Ralf-Herbert Kühn in
Landwirtschaftskammer Weser-Ems (1992) ECR I-0035, para. 17; or
C-63/93 - Fintan Duff et al in the Minister for Agriculture and Food and Attorney General
(1996) ECR I-569, para. 30, where the ECJ held that it is not a violation
this right if the producer receives a quota regardless
achieved development plan, a quota which is not objectively
level of production which the producer is able, after executing the plan.
Lower quotas limit the right to do business, but only restricts the ability to place
production on the market, and she does not enjoy the protection of fundamental rights through].
In other words, according to ECJ case law, the allocation of a specific quota
not in itself considered a violation of fundamental rights
business and engage in other economic activities.
Principle of protection of the right to take the constitutional order of the Czech Republic
trained as economic law, which is applicable only within the law
(Art. 41 of the Charter of Fundamental Rights and Freedoms) and the existing jurisprudence of the Constitutional Court
based on the principle of "self-restraint"
fully corresponds with the approach of the ECJ. Therefore, the Constitutional Court nedovodil violation of this principle.
A-2) Assessment of the contested legislation from the standpoint of the criteria resulting
of the constitutional order of the Czech Republic in the light of existing case law of the Constitutional Court
As stated above, determination of the key for the calculation of individual production quotas represents
national implementation of the objectives of the Common Agricultural Policy
arising from the norms of Community law, an area in which
Community law has left Member States discretion,
what specific instruments to achieve the objective (limit production of sugar).
Although the setting of the key for a production quota
is a matter of national law, can not ignore the fact that
pursues an objective resulting from Community law.
As also noted above, the Constitutional Court is convinced that after
Czech Republic became a full member of the EC, respectively. The EU can not
constitutional review issues relating to this area be completely
isolation, regardless of the criteria and limits laid down by regulation
Community law and in the past the completion of the ECJ case law.
Otherwise stated, when assessing compliance with the chosen key constitutional
Czech Republic can not be entirely disregarded how to
issues of production quotas and the method for their allocation in which European
law and the ECJ. In doing so, unlike previous decisions of the Constitutional Court
to Community law can not be addressed only as a subject
comparison from which would follow indirect arguments in relation to domestic
treatment, but the community right now radiates into the constitutional || | order of the Czech Republic, when used in the field of legal regulation
associated with community law.
On the other hand, it is currently not ignore
previous case law of the Constitutional Court, because of the principle of legal continuity
own case (see below).
In its judgment. Nos. Pl. US 45/2000 (Collection of Decisions, volume 21, judgment no.
30; promulgated under no. 96/2001 Coll.), The Constitutional Court annulled Government Regulation no.
51/2000 Coll., Establishing measures and the state's share in the creation
conditions to ensure and maintain production of sugar beet and sugar and stabilization
sugar market. It was a piece of legislation that in the Czech Republic
first introduced the regulation of the sugar market, for the period from 1 8th 2000
30th 9th 2001. The Constitutional Court in that judgment concluded that the government
this regulation did not respect the constitutional limits prescribed by Article. 78 of the Constitution.
Constitutional Court In that judgment did not deal with the actual content
legal regulation and its compatibility with the constitutional order. While the amount
quotas under Regulation has been determined that the reference period was
stipulated period of five preceding years, ie the period 1995 - 1999.
In its judgment. Nos. Pl. US 5/01 (Collection of Decisions, volume 24, judgment no.
149, promulgated under no. 410/2001 Coll.), The Constitutional Court dealt
constitutional conformity of Regulation no. 445/2000 Coll., On Setting Production
milk quotas for the years 2001 to 2005. the Constitutional court granted
partially annulling § 4 para. 2 and § 14 para. 2 of, again due to lack of
statutory authority to restrict distribution
production quotas from the reserve to farmers farming system
organic breeding and unconstitutionality and illegality delegation
deciding the amount of reserves to the Ministry of agriculture. In this judgment,
however, the Constitutional Court also commented on the contents production line
milk quotas as a method of regulation of national economic policy with
constitutional order, the system itself unconstitutional
not found. Yet he formulated the basic constitutional limits both
placing restrictions upon agricultural by introducing production quotas
, the system of allocation of individual production quotas to individual producers
. The Constitutional Court primarily concluded that the legislature may
(within the bounds of constitutionally guaranteed basic principles,
human rights and freedoms) in its discretion, introduce price or quantitative regulation
production in certain sectors of the economy, define
Or influence the type and number of entities in it, or restrict
contractual freedom when production on the market or in the purchase of raw materials and production equipment
. The Constitutional Court also denied that every restriction of freedom
business was necessarily be made by law. On the contrary, he said that the implementation of the Law
Constitution allows for practical reasons
adoption decrees, move if they laid down rules within
laws. The Constitutional Court also denied that limit production
constitutes expropriation that is not justified by the public interest and
without compensation. Ownership of the production over the production quota is not revoked
only made more difficult market.
Production quota system is a form of control the use of property which pursues the public interest
of stabilizing commodity markets. The tools used, therefore the system
allocation of individual production quotas, then found reasonable.
Case of allocation of individual production quotas, the Constitutional Court rejected
that would represent unconstitutional discrimination
differing legal status of those producers who receive a quota, and those who do not ask for it
. It also did not consider unconstitutional the natural differentiation between
existing and new producers, he said that
handicap for new entrepreneurs (who receive quotas solely through the transfer of quotas from current producers
that has been allocated quotas) is an integral || | component of any limitation on production. However, it may
discrimination between producers who request for a quota and get it in full
amount and producers who are denied or granted only in part. Therefore
already § 12 par. 6 of the Act no. 256/2000 Coll., On the State Agricultural Intervention Fund
requires that the method of initial
allocation of production quotas among applicants be governed by the principle of equality and
objective method of calculation. The Constitutional Court noted that this
general instruction, which is but a derivation of the principle of equality under Art. 1
Charter and Art. 1 of the Constitution, it must be borne in mind in determining government
allocation of quotas within individual systems of production quotas
with respect to the characteristics and peculiarities of the production of commodities whose production is subject to restrictions
. The Constitutional Court can assess the key
used in the original allocation of quotas, while one-year reference period
allocate production quotas for milk recognized as reasonable.
At the same time, however, the Constitutional Court acknowledged that neither elaborated in detail
key that regular causes of fluctuation in production volume can not
take account of all the circumstances. In particular cases this may
result in injustices which, however, does not meet the constitutional seriousness.
Finally in its judgment. Nos. Pl. US 39/01 (published as no. 499/2002 Coll
.), The Constitutional Court again dealt with the rules of production quotas
sugar, adopted in the form of Regulation no. 114/2001 Coll., On the production
sugar quotas for the quota year 2001/2002 to 2004/2005.
This judgment the Constitutional Court annulled § 4 para. 3, § 5 para. 3, § 7 and § 13
regulation and dismissed the petition to annul § 13 of Act no. 256/2000 Coll., On State
agricultural intervention Fund. The Constitutional Court assessed if elected
key to the allocation of individual production quotas (based on the volume of production
three most successful in terms of quantity production years of the last five
) as against the statutory requirement
objective method of calculation and the requirement of equality . This assessment was
consideration that the position of individual operators of sugar refineries
influenced legislation in accordance with Regulation no. 51/2000 Coll., Which was
applied before its annulment by the Constitutional Court, the period from 30.
3rd 2001 to 29. 11. 2002. Although this regulation was annulled on formal
reasons, therefore, for lack of basis in law, the Constitutional court additionally
stated that the former distinction between sugar refineries as strategic and nonstrategic
It may reasonably be considered suspicious qualification (suspect
qualification), which represents an arbitrary, scarcely justifiable
distinction between individual producers. The Constitutional Court further observed that
key chosen in Government Decree no. 114/2001 Coll. itself unconstitutional
not, however, the adverse effects of the previous method of calculation, which was
both formally defective and substantively discriminatory, does not remove, but only
Mitigates the fact that the decisive average annual quota volume
production from all five seasons, but counted the fact that some
sugar refineries were not in operation all season and takes into account three seasons
when it produced the most, or those seasons when they produced when
produced for three years or less. Failure to cure the inequality
Constitutional Court saw that on the basis of measures already formal reasons
unconstitutional and substantively discriminatory, certain producers might have to increase production
because they were protected from competitors who did not have a production quota
, and, thus, could not load a punitive levy.
The Constitutional Court then concluded that the government has formally proper future
retains undesirable condition which caused his early, both formally and substantively unconstitutional
Order of 22. 6. 2004, sp. Nos. Pl. US 48/03 (unpublished)
Constitutional Court halted proceedings on the petition of a group of deputies to annul
relevant parts of the Regulation no. 114/2001 Coll. as amended by Regulation no. 97/2003
Coll., which the government in response to the preceding Constitutional Court
newly regulate the allocation of individual production quotas. The Constitutional Court
proceeding pursuant to § 67 of the Constitutional Court, because in the course of the proceedings
contested regulation was repealed and replaced by Regulation No 364/2004.
Coll., The provisions of § 3 and 16 are now challenged
discussed the proposal. In doing so, the rules contained in Regulation no. 114/2001 Coll., As amended
Regulation no. 97/2003 Coll., Set a new key to leading the division
quotas so that the distribution was based on the capacity of sugar production | || determined as the highest average amount of sugar produced per producer
24 hours in a sugar factory, which produced sugar in November 2001 and in October 2002
if this refinery produced sugar in the quota year 2002/2003,
however, the maximum provable amount corresponding to the maximum
daily performance of process equipment for the sugar refinery.
The Constitutional Court therefore constitutional conformity of the key calculation
individual production quotas in a situation where the law has
set certain limits as to the admissibility of the legislation itself
production quotas as such, and for the allocation of individual
production quotas to individual producers.
Assessing the current legal regulation is therefore required, inter alia, from the perspective of existing
jurisprudence of the Constitutional Court, which is bound by the Constitutional Court, unless
conditions were fulfilled for her to overcome.
As regards the system of quotas as such, the Constitutional Court states that
this finding builds on existing case law in the area of quotas. Another is
however, to adjudge the actual allocation of quotas in terms
constitutional principles, such as they were formulated in the previous judgment no. Nos. Pl. US
In its judgment. Nos. Pl. US 11/02 (Collection of Decisions, Volume 30,
judgment no. 87; promulgated as no. 198/2003 Coll.), The Constitutional Court formulated the doctrine of continuity
its own case, which it deduced from the attributes of a democratic legal
State, in other words, it concluded
the Constitutional court is bound by its own decisions, which may
its case law only under certain conditions.
The first circumstance in which the Constitutional Court can overcome its own jurisprudence, the change
social and economic situation in the country, or a change in their structure or change
cultural conceptions of society. Another possibility is a change or shift
legal environment formed by sub-constitutional legal norms that
in their entirety influence the examination of constitutional principles and without
of them, however, deviating, and especially restricting the principle of democratic legal statehood
( Art. 1, paragraph. 1 of the Constitution). Another option for changing
Constitutional Court jurisprudence is changing, respectively. completion of legal norms
and principles that form the binding terms of reference for the Constitutional Court, ie
. those that are contained in zstavním order of the Czech Republic,
unless of course the changes conflict with the limits laid down by Art. 9 paragraph.
2 of the Constitution, ie. unless the changes in the essential requirements of a democratic
The Constitutional Court therefore, in this case, after the constant jurisprudence of the ECJ and
existing case law of the Constitutional Court weighed whether
there are facts which would justify reconsideration of existing conclusions
Constitutional Court. As already mentioned above, there is no doubt that the accession
Czech Republic to the EC, respectively. EU, a fundamental change occurred within
Czech legal order, since that moment the Czech Republic took
into their national law the entire mass of European law. Without doubt, there has been a shift to the other side
legal environment formed by sub-constitutional legal norms
, which necessarily must influence the examination of the entire existing
rule of law, constitutional principles and the principles behind it all, however
assumption that factors that affect national legal environment
are not in themselves contrary to the democratic legal statehood, respectively.
Interpretation of these factors may not lead to a threat to the democratic legal
statehood. Such a move would be in conflict with Art. 9 paragraph. 2, respectively. Art. 9
paragraph. 3 of the Constitution.
There is no doubt that the standard of protection of fundamental rights and freedoms
through compliance with the principles arising therefrom within
Community undergone dynamic development since early reluctance
provide protection by means of Community law manifested also in the jurisprudence
ESD [among other decision no. 1/58, Stork v. High Authority of the ECSC
(1959)], through the implementation of the protection of these principles in
ECJ case to the efforts to create a binding catalog of fundamental rights
which would form part of primary law. Likewise
undergone dynamic development and reflection on this problem in the jurisprudence of the constitutional
courts of each Member State, of which the most representative
examples are changes in attitudes Federal Constitutional Court of Germany (cf..
Decision of 29. 5. 1974 no. 2 BvL 52/71, Solange I., and
decision dated 22. 10. 1986 no. 2 BvR 197/83, Solange II., and the decision of
12th 10th 1993 No. . 2 BvR 2134 and 2159/92 zum Vertrag über die Europäische Union
Current standard of protection of fundamental rights within the Community does not give
by the Constitutional Court found no cause to believe that this standard
protection of fundamental rights through the application of the principles arising therefrom,
as otherwise follows from the above-cited case law of the ECJ has
lower quality than the protection accorded in the Czech Republic, respectively. the standard of protection
differ significantly from the protection previously provided by the national environment
Constitutional Court. This is clear from the above confrontation
ECJ rulings concerning the permissibility of quantitative restrictions upon production by means
setting production quotas and the conclusions on the same issue in the past
Constitutional Court has made. The exception is the Constitutional Court only
conclusion resulting from judgment. Nos. Pl. US 39/01, in which the Constitutional Court
the key laid down by the Government for the allocation of production as
violate the principle of equality.
If this conclusion is compared with the above-cited case law of the ECJ
can be regarded as excessive in the sense that the Constitutional Court ventured
relatively "thin ice" of assessing economic quantities, which ultimately reflected
the evaluation zstavněprávního. As follows from the cited
ECJ case law, the court in respect of measures that are part
Common Agricultural Policy does not consider itself authorized to assess measures
substantive considerations. If, for example.
ECJ assessed the reference criteria with respect to the asserted inequality among producers, referred to
that this inequality can not be hypothetical, but must be supported
specifically what was in relation to specific producers | || founded. Conclusion arising from judgment. Nos. Pl. US 39/01
can indeed be regarded as somewhat excessive in relation to the case itself
Constitutional Court, which in its previous judgments in which the judge
milk quota system clearly stated that "neither elaborated in detail
key that regular causes of fluctuation in production volume can not
take account of all the circumstances. In particular cases this may
result in injustices which, however, does not meet the constitutional importance. "
In the case currently before the Constitutional Court does not therefore feel called to
make your own key for the allocation of quotas examine in the abstract
plane within the constitutional review.
In other words, the Constitutional Court in the present case now
can not disregard the conclusions from which it derives directly from the case law of the ECJ and which can be inferred
certain constitutional principle of self-restraint when it comes to measures of economic nature
pursuing objectives directly community policies arising from the EC. that
Was also aware of the Constitutional Court when it adopted judgment
sp. Nos. Pl. US 39/01, in its reasoning when he said that we can not accept such
conclusions regarding the scope of review activity, which would be an obstacle
eventually membership in the European Union, though this self-restraint
its conclusion to a certain extent.
The Constitutional Court therefore concludes that there are grounds for
departing from its judgment in the case file. Nos. Pl. US 39/01. However, this change does not affect
substantive assessment itself of the key selected by the government, but the fact that
Constitutional Court has already feels to be called such a key way to make a finding
sp. Nos. Pl. US 39/01, undergo constitutional review
abstract level. This does not preclude the fairness of this key
ordinary courts address the individual and specific cases
individual producers if it is established, in which concrete facts
inequality is based.
Contrary, inspired by the ECJ, which after 1 5th, 2004 in the area under consideration
taken into account in the range above delineated its conclusions arrived at by
before finding sp. Nos. Pl. US 39/01, the Constitutional Court did not assess whether the key
elected Government Regulation no. 97/2003 Coll., The consequences of which were reflected in
originally contested provision, § 3 of Regulation No 364/2004.
Coll. and after its cancellation by the government § 3 of Regulation no. 548/2005 Coll.
Is in its content capable of establishing in the abstract
inequality between producers. So will assess whether the government chosen criterion
is eligible to reflect fluctuations in the production of an individual producer,
because such a question, the Constitutional Court so economically
professional, to whose answer he does not feel even called.
The Constitutional Court further - Merely as obiter dictum, that
outside the actual confines of constitutional review - indicates that from judgment. Nos. Pl.
US 39/01 directly gave no indication how they tried to submit to the Constitutional Court
petitioners that the government was obliged to choose the reference period
period before the time when she began to regulate the production of sugar by means
production quotas, a period before 2000
For comparative survey which the Constitutional Court for the purposes of this
management requested, although it follows that most of the countries of Central and Eastern Europe
, which in 2004 joined the EC in practice selected reference
the period between the years 1994 - 1999, the situation in the Czech Republic
quite unusual that the key to the allocation of quotas was repeatedly interrupted
Constitutional court (the first formal grounds, again for reasons
content). Although the Constitutional Court does not consider itself to such questions
called, nonetheless, it appears that the establishment of a reference period in
2004 before 2000 would be technically impossible, perhaps even unreasonable, and
constituting further grounds for claims that even such a reference period is
capable of establishing inequality between producers. Of selected key now
contested the petitioner, the Constitutional Court can be inferred conversely efforts
government choose such a period, which would be like the reference period
still not viable in 2004, and on the other hand, was able to || | eliminate market distortions, arising from the previous regulation as
them in its judgment. Nos. Pl. US 39/01, the Constitutional Court pointed.
Constitutional Court also considers it necessary to emphasize that now adopted
conclusion in any way mean that the Constitutional Court resigned
constitutional review of national laws, which are
complementary to Community law, as that in the past amounted
some national courts EC [cf.. decision of the Irish Supreme Court in the case
Lawror v. Minister for Agriculture 1 (1990) IR 356 cited.
According Kühn, Z .: Expansion of the European Union and the constitutional relationship of twenty-six
systems. Lawyer 8/2004, p. 765]. Shift in its conclusions derives from
shift in the entire national legal order, which occurred after 1 5th 2004
and relates solely to the issue of the limits of constitutional review in this particular case
It can be concluded that the key to the allocation of individual production quotas
was found to be conforming to the Constitution, implying that the original proposal
petitioners would have had to be rejected.
B) The Constitutional Court could not, however, overlook and accept the fact that
government adoption of the contested provision, § 3 of Regulation no. 548/2005 Coll.
Which merely paraphrases Art. 1, paragraph. 3 of Commission Regulation
(EC) no. 1609/2005, disregarding the fact that the accession of the Czech Republic to the EU
was based on Art. 10a of the Constitution to transfer powers
national authorities to supranational bodies.
Provisions of Art. 10a, which was inserted into the Constitution by the Constitutional Act no. 395/2001 Coll
. (Ie. Amendment of the Constitution), constitutes
provision allowing the transfer of certain powers of Czech authorities to
international organization or institution, mainly the EC and its institutions.
Moment when it became the EC Treaty as amended by all revisions and
amended accession treaty binding for the Czech Republic, there has been a transfer
those powers of national authorities, which, according to EC primary law by the authorities
EC to these bodies.
In other words, at the moment of accession of the Czech Republic to the EC was implemented
transfer of these powers, so that the Czech Republic conferred these powers
EC authorities. The extent of the powers that implement
EC authorities, will then limit the powers of the national competent authorities
regardless of whether it is a normative powers or
individual decision making.
This conferral of powers, however, the Constitutional Court
conditional conferral, as the original bearer of sovereignty and the ensuing
powers remained the Czech Republic, whose sovereignty is still
Art. 1, paragraph. 1 of the Constitution. According to him, the Czech Republic
sovereign, unitary and democratic state of law based on
respect for the rights and freedoms of man and citizen. She conditionality
delegation of these powers to the Constitutional Court manifested on two planes: the plane
formal and substantive plane. The first of these planes concerns
the power attributes of state sovereignty, the second plane
concerns the substantive component of the exercise of state power. In other words,
delegation of powers of national authorities may take so long as these
powers are exercised in a manner consistent with the preservation
foundations of state sovereignty Czech Republic and which do not jeopardize
very essence of substantive law . If one of these conditions
implementation of the transfer of powers has not been fulfilled, ie. If
development in the EC, respectively. EU threatened the very essence of national sovereignty
Czech Republic or the essential requirements of a democratic legal state
, it would be necessary to insist that these powers again
undertaken by national authorities of the Czech Republic, while true that the protection | || constitutionality is called the Constitutional court (Art. 83 of the Constitution). Said
true in the formal dimension within the current constitutional rules. Regarding
essential requirements of a democratic rule of law, according to Art. 9, paragraph. 2
Constitution is even outside the Constituent Assembly itself.
The Constitutional Court has already, in its first judgment file. Nos. Pl. US 19/93 (Collection of Decisions
volume 1, judgment no. 1; promulgated under no. 14/1994 Coll.)
On the Law of the Communist regime and resistance against it stated that the constitutive
principles of a democratic society in the framework of the constitution are
built over legislative power and therefore ultra vires Parliament. In
further judgment. Nos. Pl. US 36/01 (Collection of Decisions, Volume 26, Judgment
no. 870, promulgated under no. 403/2002 Coll.), The Constitutional Court stated that no
amendment to the Constitution can not be interpreted in the sense that it would result
limiting an already achieved procedural level of protection of fundamental rights and freedoms
Therefore, if the power has been delegated powers EC authorities realized
regressive manner over the prior conception of the essential attributes
democratic rule of law, it would be the realization
inconsistent with the Czech constitutional order, which would require
re-assumption of these responsibilities by the national authorities of the Czech Republic.
Such a situation, however, generally or in this particular case
occurred in the Constitutional Court there was no reason for the government to exercise its regulatory power
way that reflected the adoption of the contested
§ 3 of Regulation no. 548 / 2005 Sb.
Constitutional Court, after assessing the content of the contested provision, § 3 of Regulation No.
548/2005 Coll. therefore he concluded that the adoption of the Government exceeded its authority
respectively. exercised its regulatory power in the area,
which was based on Art. 10a of the Constitution transferred to EC organs, namely Art.
37 paragraph. 2 and 3 of the EC Treaty and Art. 1, paragraph. 3 of the Treaty of Accession of the Czech
Republic to the EU. If ust. § 3 of the Regulation no. 548/2005 Coll. be
implementation of Commission Regulation (EC) no. 1609/2005, by acting ultra vires
in relation to Art. 78 of the Constitution, as the government for the adoption of such legislation
was not entitled.
Commission Regulation (EC) no. 1609/2005 is the Community law,
which the Commission pursuant to Article. 10 paragraph. 3 and 4 of Council Regulation (EC) no. 1260/2001
fell for the marketing year 2005/2006 sugar production quotas
pertaining to individual Member States. This regulation takes precedence over national
legal (statutory) rules and is directly
applicable in national legal systems.
Direct applicability in national law a priority application
regulation follows from Community law doctrine itself, as it was in the past
filed in ECJ case law [cf. eg.
decision 26/62 NV Algemene Transport- en Expeditie Orderneming Van Gend en Loos v.
Nederlandse Administratie der Belastingen (1963) ECR 1; 6/64 Costa v. ENEL
(1964) ECR 585]. Community law is itself determines and specifies
, unlike international law, what are the national
effect in the Member States.
If membership in the EC entails certain limitations on the powers
national authorities in favor of Community institutions must necessarily
one of the manifestations of such limitations and restrictions on the freedom of Member States to determine the national
effect of Community law (cf.. Král, R .:
again to anchor the national effects of Community law in the Constitution of the Czech Republic.
Legal Perspectives, vol. 2004, no. 3, p. 111). In other words, with
transferring certain powers to the EC is linked to the disappearance of freedom Czech Republic national
determine the effect of Community law which are derived in
areas in which this transfer occurred directly from Community law.
Provisions of Art. 10a of the Constitution and operates in both directions:
thus forms the normative basis for the transfer of powers and, simultaneously, the provision
Constitution which opens up the national legal order for the action
Community law, including rules on its
effects within the legal order of the Czech Republic (cf.. Kühn, Z. - Kysela, J .: on the basis
will community law in the Czech legal order?
Legal Perspectives, vol. 2004, p. 1 , pp. 23-27; or Kühn, Z .: once the
constitutional basis for Community law in the Czech legal order.
Legal Perspectives, vol. 2004, no. 10, pp. 395-397).
The Constitutional Court is of the opinion that - in terms of the operation of Community
rights in national law - it is necessary to adopt an approach that would fix doctrine
effects of Community law in the national legal order
. Such an approach would not answer that very doctrine
effects that Community acts call forth in national law, passed
and undergoing a dynamic development. This conception also best ensures
what has been stated above, that conditionality of the transfer of powers
Under the provisions of Art. 1, paragraph. 3 of the Regulation, Member States were obliged by 1
11. 2005 fix each production undertaking which
production quota, the amount by which that quota was reduced. How
asking the Constitutional Court to the State Agricultural Intervention Fund
discovered, it was to reduce the quota to all holders of individual quotas announced
act on the basis of direct application of the provisions of Commission Regulation (EC) No.
In other words, at a time when the Government adopted § 3 of Regulation no.
548/2005 Coll., The individual production quotas to individual producers
long ago reduced, based on the direct application of Community law to || | the competent authority, the State agricultural intervention Fund.
Such a provision on the one hand can not be invoked in practice
no legal consequences, on the other hand, his acceptance of the Government was not entitled
because it is an area where permission has been transferred to the authorities
Community, which is in this case realized by adopting
Regulation no. 1609/2005, which is - as stated above -
directly applicable in Member States' laws and does not envisage further
implementation in national law.
In addition, the case law of the ECJ that the rule whereby Member States may not, by
national legislation reproduce provisions
Directly applicable Community law, respectively.
any national measure implementing the regulation is inconsistent with immediate applicability of the regulation
[see. Cases 93/71, Orsolina Leonesio v. Ministero dell'agricoltura
e Oreste (1972) ECR 287;
39/72 Commission of the European Communities v. Italian Republic (1973) ECR 101;
34/73 Fratelli Variola SpA v. Amministrazione Italiana delle Finance
(1973) ECR 981].
As the Constitutional Court further found examples of other Member States (Germany and
Slovakia) demonstrate that these states applied the Commission Regulation (EC)
directly, without resorting to the normative transformation of this regulation into some
form of national law.
Adopting the contested provisions, therefore, the government acted ultra vires and
violated Art. 78 in conjunction with Art. 10a and Art. 1, paragraph. 2 of the Constitution, because so
realized permissions that were transferred to the Community institutions and | || which is the government did not have.
Annulment of the contested provision as unconstitutional by the Constitutional Court
no way affects their own system of regulation of the sugar market nor
chosen key for the allocation of individual production quotas.
Itself above the current quota for the 2005/2006 marketing year was reduced on the basis
directly applicable Commission Regulation (EC) no. 1609/2005
in the form of individual acts whose effects remain unchanged and the national sugar
quota for the next marketing year 2006 - 2007, as consistently confirmed
parties have been set up.
The Constitutional Court therefore only with respect to these reasons decided according to § 70 paragraph
. 1 of the Constitutional Court to annul § 3 of the Government Regulation no.
548/2005 Coll., On determining certain conditions, implementing measures
common organization of the market in sugar, to conflict with Art. 1. 2 || | Article. 10a and Art. 78 of the Constitution, as of the date of publication of the judgment in the Collection of Laws
Chairman of the Constitutional Court:
JUDr. own hand