In The Matter Of An Application For Annulment Of The Second Section Of The Law No 443/2006 Sb.

Original Language Title: ve věci návrhu na zrušení části druhé zákona č. 443/2006 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=64486&nr=37~2F2007~20Sb.&ft=txt

37/2007 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 15 December. February 2007 in plenary in the composition of František

Duchoň, Turgut Güttler, Pavel Holländer, Ivana Janů, Vladimir Crust,

Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel

Rychetský, Miloslav Výborný, Elisabeth Wagner (Judge-Rapporteur) and

Michael April on the proposal for a group of Senators of the Senate of the Czech

the Republic to repeal parts of the law No. 318/2001 Coll., which became

part of its transitional provisions, on the basis of law No 443/2006 Coll.

in part two of the eventum on repeal of the law No 443/2006 Coll., article. (II) and

article. (III),



as follows:



Part two, article. (II) and article. (III) Law No 443/2006 Coll., which

amended Act No. 320/2001 Coll., amending Act No. 21/1992 Coll., on the

banks, as amended, is repealed on the date of publication of this

the finding in the journal of laws.



Justification



(I).



I. draft Recap)



1. A group of 23 Senators Senate of the Parliament of the Czech Republic with the ordinary

the proposal [cf. Article 87, paragraph 1 (a)) of the Constitution of the Czech Republic (hereinafter also

"the Constitution") and § 64 para. 1 (b). b) Act No. 182/1993 Coll., on the

The Constitutional Court, as amended, (hereinafter referred to as "the law of

The Constitutional Court ")], delivered 12.10.2006, annulment of the part of the

the transitional provisions of the aforementioned Act No. 320/2001 Coll., which

became a part of Act No. 21/1992 Coll., on banks, on the basis of Act No.

443/2006 Sb.



2. Submission sent to the Constitutional Court the date of January 10th, 2007 the appellants

have clarified its proposal as follows: the petit, the appellants contend that the

The Constitutional Court conflict with the constitutional order of the Czech Republic to annul

the contested provisions cited in the article. And their submission, therefore, the part of the law No.

320/2001 Coll., which became part of the transitional provisions of the

pursuant to Act No. 443/2006 Coll., in the second part of the eventum propose to cancel

Law No 443/2006 Coll., article. (II) and article. III.



3. The nature of the objections, the appellants themselves have summarized so that crossing

the powers of the Parliament of the Czech Republic and mocked-up (albeit the plaintiff further

argues rather the retroactive effect of the contested provisions right) retroaktivitou

could be breached article. 1 (1). 1 and article. 2 (2). 1 and 3 of the Constitution. On can

as a result, violate both title and property rights and the right to

judicial protection, hence the article. 11 and article. 36 of the Charter of fundamental rights and freedoms

(hereinafter referred to as "the Charter"), as well as may lead to violation of the principle

the soundness and clarity of legislation forming the one of the principles of

material dovozené interpretation of the rule of law (article 1 and article 2 of the Constitution

and article. 1 and 4, of the Charter) and the prohibition of arbitrariness in the legislative procedure,

(dovozeného of the provisions of article 1 and article 2, paragraph 3, of the Constitution and article 2, paragraph 2,

Of the Charter and of the article. 37 para. 2, article. 41 and article. 44 of the Constitution). Last but not least

According to the plaintiffs, the contested provisions are contrary to the directive

The European Parliament and of the Council No. 94/19/EC on deposit guarantee schemes,

and in breach of article. 87 and article. 3 (2). 1 (b). g) of the Treaty establishing the

The European Community, thus violating the international commitments of the Czech

States resulting from EU membership, and thus also the article. 1 (1). 2 of the Constitution.



4. The contested provisions of the above Act, and the intention of the legislature are

According to the plaintiffs in breach of the principle of the separation of powers, thus conflicts with the

one of the basic rules of the democratic rule of law, which is

Czech Republic defined in art. 1 (1). 1, and in article. 2 (2). 1 of the Constitution,

where it is established that the people shall exercise all State power through the

authorities able to legislative, Executive and judicial. Parliament of the Czech Republic

According to the Constitution, legislative power belongs, and the law is a normative legal

the Act, which committed an unspecified range of subjects and situations

that will occur in the future. In the case of the contested provisions of

the situation that occurred in the past, and specifically known entities. Here

the plaintiffs pointed to the findings [SP. zn. PL. ÚS 24/04 or SP. zn. PL.

TC 55/2000 (Editor's Note: a collection of findings and resolutions of the Constitutional Court

Volume 37, no. 130, declared under no 327/2005 Coll.; the same collection,

Volume 22, no. 62, declared under no. 241/2001 Coll.)], in which the constitutional

the Court found that "the material to the fundamental principles of rule of law

belongs to the maximum universality of legal regulation (requirement of universality

of the Act). Universality of the content is an ideal, typical and substantial character

the law (and the law at all). ". In its decision, SP. zn.

PL. ÚS 12/02 (Editor's Note: a collection of findings and resolutions of the Constitutional Court

volume 29, no. 20, announced under no 83/2003 Coll.) The Constitutional Court.

He stated that the law, which regulates the unique case of "stray from one

of the fundamental character of the concept of law, material which is universality.

Recall that the requirement of the universality of the law is an important part of

the principle of the Dominion Act, and also the rule of law (...). Special

the argument against the laws relating to the unique cases, the principle of

the separation of powers, or the odčlenění legislative, Executive and judicial power in the

a democratic legal State. ". The Parliament of the Czech Republic in this

According to the appellants ' case has made an exception to the rules for a specific

cases of clients of the beneficiary banks, or for a particular entity

-Česká pojišťovna, a.s. (article. (III) point 4 of the contested act). And if they have already

This exception from the rules of the Parliament of the Czech Republic in the previous case,

It has made, has made it more cleanly without legislated advantage

an individual of a specific entity, without fulfilling other objectives

banned steps and at a time when this exception was socially and morally

justifiable (client protection of the Bank as a consumer at the time of use

the market environment).



5. the Parliament of the Czech Republic according to the plaintiffs, by adopting the contested

the provisions also violated article. 2 (2). 3 of the Constitution, as it asserts the power of

in a way which the law or the Constitution does not store nor does it; Parliament

The United States has acted beyond its powers set out in title

the second of the Constitution.



6. The contested provisions are unconstitutional, according to the plaintiffs ' right

effects and as such are contrary to the principles of the democratic rule

State, more specifically the principle of the protection of the citizen's confidence in the law and the

the principle of non-retroactivity, that is, with the right of the article. 1 of the Constitution, since the challenged

the provisions of the amended legal consequences under the law have occurred long before the

the effective date of the contested provisions. Even the legislature amends the

Transitional (intertemporální) the provisions to one of the preceding novel

Act No. 21/1992 Coll., on banks, (hereinafter ' the law on banks "), with

This amendment should be zkonzumována. If the legislator had in mind

solve the problem of transitional provisions to the Act No. 320/2001 Coll., had

so according to the plaintiffs, do when it is received. Since the adoption of this law

the legislature has made several other amendments to the Act on banks with

own transitional provisions and now extends backward to the

the transitional provisions on several novel back. Relations of the depositors of a credit

Plzeň, Plzeňská Bank Bank and Union Bank against these banks, respectively.

The deposit insurance fund (the "Fund"), under the law on

banks, as amended. Pursuant to section 41 d of the law on banks is entitled to

payment of the refund on the day when the Fund will receive written notification of the Czech national

Bank ("CNB") about the inability of banks to live up to commitments to

authorised persons, or by receiving a similar written notice

concerning branches of foreign banks. Notification must be sent in

the relatively short period of 21 days from a finding that the Bank is unable to meet

their commitments. Relations arising from deposit insurance to the three cited

the foreign banks, respectively, to the Fund, therefore, according to the appellants ' proven

arose in May 2003 at the latest (the bankruptcy of Union Bank to 29th May 2003,

the bankruptcy of the other two banks he was declared previously). The promoters will also

They pointed out the Supreme Court decision SP. zn. PL. ÚS 33/01 (note.

Red: a collection of findings and resolutions of the Constitutional Court, volume 25, finding no 28,

promulgated under no. 145/2002 Coll.), according to which "the right is not;

the rule of law instead of where the legislature had already previously could "get to the

the word ", however to do so.". The contested provisions according to the appellants '

extend the circle of beneficiaries, amended procedure and shall enter into an

one act that are included in the relationship. Prescription gives rise to the relationship of the newly

designated beneficiaries and the Fund on the same day, to which arose

similar relationships of authorized persons pursuant to a prior edit (that is, no later than

in May 2003). And it was particularly in the following aspects, according to the opinion of the

the appellants no longer clearly inadmissible is right the retroactive effect.



7. In the opinion of the appellants ' occurs when the contested provisions to

the State first sets out a general rule to

compensates clients of bankrupt banks that balances the protection of the

consumers of banking services and the responsibility of the citizen as an investor

its resources, that has the free will to choose profitable risky

investment or to give preference to the less lucrative securely store

of the funds. Then, however, at the expense of hedge fund,

side, with resources committed private bodies dealing with


the following means in violation of generally accepted rules as follows, and in the

as a result, a particular group or a particular body will over

to the other. In it fro proper functioning of material policy violations

the rule of law, guaranteed article. 1 of the Constitution, consisting in ensuring

the protection of legitimate confidence in the stability of the legal order.



8. The appellants also pointed out that the contested provisions lead to

that private funds paid by banks and selected from the clients of the banks that

they are intended to compensate clients of banks that contribute to the Fund,

will be provided beyond the rules that were in force at the time the Bank to

The Fund contributed to extend the protection of private property, and

legitimate expectations according to the article. 11 of the Charter, and may be in the broader

the meaning of the perceived as expropriation. If the ownership of the Fund as

such is not interpreted as the ownership of the bearer of the fundamental rights of the

and freedoms, vicariously experiencing the ownership restrictions and ownership

legitimate expectations of the commercial banks contributing to the Fund, as

due to the expected consequences of the challenged provisions can lead to

increase their outlet to the pool or to the damage to their clients.



9. the Fund is by the appellants as a lender limit and discriminated against on

their rights and the protection of assets, because due to the

by the time the Fund was in the case of additional payment according to the contested

provisions stripped of options with their claims of log on as

bankruptcy creditor in the insolvency of the banks concerned. As well, the appellants

said they are limited and his right to judicial protection consisting in the

the possibility of applying his claims arising from the payment of refunds,

the receiver. Pursuant to § 41 h of paragraph 1. 2 of the Act on banks, which

remains in force, the Fund on the date of the initiation of the payment of compensation

the beneficiaries becoming the lender of the Bank in the amount of the rights of the beneficiaries

Bank on the performance of the Fund. It follows his legal obligation to apply

their claims in bankruptcy proceedings that have already been (1998 and 2003)

started. The retroactive adjustment of the provisions, however, carried out by infected

the application of this law makes it impossible, as the imperative time limits for login

claims to the bankruptcy of the Bank in question led to the already completed. From

for this reason, therefore, occurs in the described situation, to a denial of Justice

-denegatio iustitiae, thereby infringed the rights of the Fund to the judicial

protection under article 5(2). 36 of the Charter.



10. As an additional argument, the appellants have argued that the contested provisions

are unconstitutional and its steep contradiction with EC law, which can be

held in two main levels. The contested provisions are, according

plaintiffs in breach of the directive of the European Parliament and of the Council No.

94/19/EC of 30.5.1994, on deposit guarantee schemes, the aim of

is to ensure a minimum harmonised level of protection of deposits for all

deposits in the community. Harmonised Czech deposit insurance adjustment

contained in the amendment to the Act on banks no 319/2001 Coll. counts with a maximum

the limit of compensation in the amount of EUR 25 000, which is about EUR 5 000 more than

the directive itself foresees as a minimum level of insurance for

all EU Member States, where it is usually the average amount of the deposit to the

the citizen is higher than in the Czech Republic. The maximum limit of compensation in the amount of up to 4

millions of Crowns, as it introduces the contested provisions, goes completely over

framework for the protection of small depositors and misses so the purpose of the directive.

The appellants further argued that the directive applies in accordance with article 3(1). 249

The Treaty establishing the European Community, that it is for each State,

which it is intended, will be binding as to the result, with the choice of form and

shall leave to the national authorities. The result of the concerned

the directive has to be the protection of small depositors of banks and to avoid payouts

anonymous deposits in connection with protection against money laundering.

The contested provisions amended already established harmonised legislation,

When the enlargement of the circle of beneficiaries as well as to the owner of the deposit sheets

bearer depository receipts and bearer and "guarantor

claims "and their successors, allow you to pay compensation even for the

anonymous deposits, which goes directly against the meaning of the directive, and is therefore in

direct conflict with EC law.



11. Conflict with Directive 94/19/EC is not according to the plaintiffs, the only plane,

in that the contested provisions infringe the EC law, and thus the commitments

arising from article. 1 (1). 2 of the Constitution. The contested provisions according to the appellants '

There is a principle that the addressees of the so far compensation from the Fund are only

damage to depositors. The proposal provides for compensation to the United insurance company

a.s., which in the past on a voluntary basis and in full compliance with its

business plan has paid compensation to depositors of the Bank Credit

Pilsen of 1.78 billion. CZK. This unprecedented advantage

business entity violates the principle of not providing the so-called. the illicit

public aid within the meaning of article 87(1). 87 para. 1 of the Treaty establishing the European

the community, which is the Czech Republic is bound. Public support is

defined as any form of support provided by the State or through

of State resources which distorts or threatens to distort

competition by favouring certain undertakings. Money stored

in the pool are not the means of the State budget, however, this is about the public

resources about the use of State decides. Replacement of 1.78 billion.

€, To be paid from the Fund of Česká pojišťovna, is illegal

public aid within the meaning of article 87(1). 87 para. 1 of the Treaty establishing the

The European Community, since it cannot be accommodated under the exceptions provided for in

paragraph 2 of the cited article.



12. following the above reasoning, the appellants have pointed out even

that same advantage of Česká pojišťovna, a.s., (arising from article. (III)

the contested provisions of point 4) is not in accordance with the general principle of

the equality of conditions of competition, as expressed in the article. 3 (2). 1 (b).

q) of the Treaty establishing the European Community. The contested provisions

unjustifiably significantly favoring private business entity-the Czech

the insurance company, Inc., and its private owners.



13. The appellants also submitted that the contested provisions often

don't make sense, from any interpretation or allow several

possible interpretations. A very crucial. the fact that the challenged

the provisions are vague on the question of time limits (it is not clear that

the period when begin and end) or that the contested provisions contain

legally non-existent concepts ("guarantor claims" there can be no guarantee,

It is possible only for the obligations). Very problematic from the point of view of clarity

text is according to the plaintiffs, and the fact that the contested provisions are

amendments to the transitional provisions of the law, which was adopted five

years ago, with these transitional provisions actually consumed with

the relevant amendments to the law on banks, and has been since

amended again several times, when individual amendments had their

own transitional provisions. Amendments to the transitional provisions of the

repeatedly to change the mode for banks that were already five years ago included

to certain exemptions from the law, and now they are included in the new exception

According to the contested provisions. In that the plaintiffs lack of character fro

the material law, explicitly not specified in the Constitution, however,

dovozeným interpretation of the article. 1 and 2 of the Constitution and article. 1 and 4, of the Charter, which is

the principle of legal certainty, when everyone can have confidence in the law and its

transparency and clarity, and thus the principle of legality and clarity

legislation.



14. The appellants also pointed to the fact that for the rule of law is also very

the substantive rule laid down both in the Constitution (article 2, paragraph 3), and in

The Charter (article 2 (2)), the State (public authority) is limited by the rules

that he set. Of this rule, then it follows that the legislature is

obliged to comply with when receiving certain legislative rules, laws and

referred to Supreme Court decision [SP. zn. PL. ÚS 23/04 (note.

Red: will be published in the collection of the findings and resolutions of the Constitutional Court

volume 38, no. 137; announced he was under no 331/2005 Coll.)], according to which the

"is the way to the adoption and promulgation of the law has occurred, subjected to cognition

The Constitutional Court only within a framework that sets out the constitutional order (in particular

article. 1, art. paragraph 39. 1 and 2, article. 41, art. 44 to 48, article. 50 to 52 of the Constitution).

The subject of the review activities of the Constitutional Court is, therefore, approved the text of the

the law, the minutes of the meeting "serves as the main means of proof

When one of the components of the evaluation tripartice evaluation of, i.e.. compliance with the constitutional

the prescribed method of adoption of the law. ". The legislature is therefore

the legislative procedure is bound by the Constitution and laws (e.g. rules of procedure

The Chamber of Deputies). If the legislature in violation of legislative

the rules of procedure, which shall lay down the law, it may, according to the appellants '

as a result, even be a violation of article 6(1). 2 (2). 3 of the Constitution and article. 2 (2). 2

Of the Charter. According to the law amendment is limited to discussion point

the meeting, with the amendment of the MEP Dr, on the basis of the

the contested provisions became part of the law on banks, have not been included in the


the meeting of the Chamber of Deputies, which was broken

the legislative procedure provided for in Act No. 90/1995 Coll., on rules

the order of the Chamber of Deputies. According to the plaintiffs, it is contrary to the prescribed

the procedure, i.e. the constitutional legislative rules that were votes

of the Act in the context of the meeting point of the Chamber of Deputies, which is dedicated to

another law and where it is not shown that the law should deal with.

Content and procedural errors by the legislature in the case of the contested

the provisions are in the opinion of the appellants are so numerous and severe that

together, in aggregate, can no longer lead to a finding of contravention

the constitutional order, and that the principle of legality and clarity of

regulations, forming one of the principles of the rule of law, and the material is

the prohibition of arbitrariness in the legislative procedure.



I. B) representation of the parties



15. The Constitutional Court pursuant to the provisions of § 42 para. 4 and section 69 of the Act on the constitutional

the Court sent the proposal to repeal the contested provisions

The Chamber of Deputies and the Senate of the Parliament of the Czech Republic.



16. The Chamber of deputies of the Parliament of the United Kingdom, represented by the President of the

Ing. Miloslav Ethiopian in its statement of 7 April. 11.2006 stated that

the said draft law No 443/2006 Coll., also amended Act No.

320/2001 Coll., was submitted by a group of members of Parliament. The Design Of The Chamber

the Chamber of Deputies discussed in 4. first term as house print

No. 965. After his disapproval in 3. reading on 21. December 2005 was

the Bill is designed to house the press No. 1222 of the plenary

The Chamber of Deputies on 19 December. April 2006 in 2. read. The Chamber of Deputies

voted on the Assembly print # 1222 as a whole in the 3. reading on 23.

in May 2006, and 156 votes for the proposal (of 176 present deputies)

the bill approved. On 21 February 2006. June 2006, expressed the will of the Senate proposal

the Act is not to bother. The President of the Chamber of deputies signed the Bill

on 21 February 2006. August 2006 and the President of the Republic had in vain to pass

a 15-day deadline, which the Constitution provides, without the law returned

The Chamber of deputies or signed it. On 8 June 1998. September 2006 the proposal was

the law, signed by the Prime Minister and duly promulgated in the collection of laws.



17. In the opinion of the supplier referred to in the explanatory memorandum provides

partial equality bill those clients of banks in bankruptcy,

they have been in the past, receivables from banks bailed out only at the level of

the law, while in other cases beyond this, and reducing

a fundamental inequality, which was created as a result of the non-systemic steps in

compensation compensation in the past. The requirement for equal treatment with clients

all banks in bankruptcy, as well as the requirement for equal

adequate compensation for such clients, is to be regarded as completely

legitimate. Act No. 320/2001 Coll. introduced a dual compensation system,

discriminating clients part of the banking sector. Such a condition is of

the perspective of legal certainty, predictability of law and democratic principles

equality of citizens of the United States completely undesirable. Understanding deposit protection

bank customers in the form of contributions of banking entities to Fund insurance

deposits from the supplier based on the joint liability of all

the bodies of the banking market. The petitioners therefore watched Bill

additional healing original hardness and malfunction of the system of compensation

carried out in relation to only some clients to banks located

now in bankruptcy, instead of in relation to all clients of the banks located

now in bankruptcy, as well as compensation bodies on

the solution then, instead of the Emergency Fund, are involved. According to the

the supplier is therefore necessary, in order to continue to be kept and maintained

the principle of joint liability of all the operators in the Czech banking market

Republic and related and logically consequential damages

participating non-banking entities, participating instead of the Fund to the

the solution of the whole situation. In conclusion, their representation of the Chamber of Deputies

stated that the legislature was for the consideration and approval of draft

the law in the belief that the adopted proposal is in line with the constitutional order

Of the Czech Republic. It is up to the Constitutional Court to examine the constitutionality of the proposal

the contested provisions and issued the appropriate decision.



18. The Senate of the Parliament of the United Kingdom, represented by its Chairman MUDr.

Přemysl Sobotka in the observations of 7.11.2006 first described

the assessment procedure of law No 443/2006 Coll., by the Senate. Law No 443/2006

Coll. of deputies of the Senate was referred to as the Bill of the day

May 25, 2006, and the Organizing Committee of the Senate as Senate document No # 362

(5th term) indicated to the Committee for Economic Affairs,

Agriculture and transport. This Committee at its meeting on 15 December. June 2006

Senate print no 362 discussed, but the Bill did not receive

the resolution. The plenary of the Senate discussed the Bill contained in the Senate

print no. 362 on its 12. meeting on 21 February 2006. June 2006. After the reporting

the report, in which it was made only to the record of the proceedings of the Committee for

economy, agriculture and transport, to the effect that the Committee formed

the majority opinion, it was proposed that the Senate has expressed the will to

draft law does not deal. Before the vote on this proposal she

President of the Club, open democracy, Senator S. J P,

the plenary called on the Senate to the Bill for the disapproving attitude of the Government

The Czech Republic, the Ministry of finance and the Czech National Bank to

It has been referred to the general debate. Next Vice-President

The Senate, Senator P. Pithart, who also asked for the referral of the draft

of the law to the general debate on the grounds that it is "a standard, in its own way

retroactive, unfair and znerovnoprávňující banks '.

However, when the vote on the motion for a resolution the Senate "Bill is

to dwell "was from the present 39 69 Senators Senators for, 18 against.



19. On the proposal of the Group of senators, the Senate further stated that it cannot be nepoukázat on the

the fact that petit referred to in the proposal for the abolition of the transitional provisions

It is to a certain extent inaccurate and incomplete. Act No. 320/2001 Coll., is not

the law "on banks", as stated in the proposal, but its name is:

"a law amending the Act No 21/1992 Coll., on banks, as amended by

amended "; nothing on this fact does not change nor a bad title

part of the second law No 443/2006 Coll. (formally speaking the law under the name of "No.

319/2001, on banks "does not exist), because of the introductory sentence to article. (II) Law No.

443/2006 Coll., there is no doubt what the law is amended. It is clear that

amending the provisions of article. (II) Law No 443/2006 SB. inkorporována

in the article. (II) Act No. 320/2001 Coll., but the following article. (III) remains

still only part of the law No 443/2006 Coll., and does not occur to him to

incorporation into another law; amendments to the law No. 319/2001 Sb.

limited only to the article. (II) Law No 443/2006 Sb. it must be pointed out that article.

(III) Act No. 320/2001 Coll. contains even after other series of amendments still

only the provisions on its effectiveness, in no case, however, the provisions of article.

(III) Law No 443/2006 Coll., as a separate provision of the latter

appointed by the law is not inkorporováno to Act No. 320/2001 Coll. On

This opinion of the Senate remained in its written observations dated

19.01.2007 administration of responding to 9-1, in which the appellants

serve petit to your design.



20. The Chamber also noted that it is possible to admit that the legislature

taken by the obligation to indemnify certain bank clients in the scope specified in the

part of the second law No 443/2006 Coll., to a certain extent interferes with the

private property, and breach of the legitimate expectations of the concerned

subjects (read banks, and the deposit insurance fund) on the basis of

These provisions will be private funds paid by banks and selected

from the clients of these banks paid beyond their earlier

obligations, the more so that in many cases will hit the already

or the ongoing court proceedings ended without a new fact

because of the time limits to be taken into account. A greater range of benefits from the Fund would

could likely mean in the case of the collapse of other banks

increased demands on other banks regarding the amount of the transactions in the Fund, however,

It cannot be ignored that the compensation above and beyond the General editing in the Act on

banks have occurred, although to a lesser extent (both in terms of subjects,

so the subject), on the basis of paragraph 5 of article. (II) Act No. 16/1998 Coll.

the case of refunds by far is not about saving a unique way of compensation over the

General framework legislation: e.g. in the field of insurance of deposits with

credit unions have been compared to the valid legal situation at the time of the collapse

credit unions increased compensation based on point 1 of the article. (II) of the Act

No. 212/2002 Coll. and the State issued to cover the needs of hedge

Fund credit unions on the basis of Act No. 218/2002 Coll., on

a bond program to obtain funds on the

supply of returnable financial assistance from the State budget to cover the

payment of compensation from the Hedge Fund credit unions, bonds,

Since there was not enough in the hedging reserve funds for payment of refunds

laid down by law.




21. Beyond the appellants ' argument that the contested provisions are suffering

serious legal defects, which could make it more difficult or even impossible "

any interpretation "or allow different interpretations, the Chamber stated that it is not

at all clear in what relation or proportion is the new adjustment referred to in article 14(2). (II)

Act No. 320/2001 Coll., as amended by point 1 and 2 of the article. (II) Law No 443/2006

Coll., and the adjustment referred to in article. (III) Law No 443/2006 Coll. came into being because

status, according to which there are two essentially independent

procedures relating to the clients of the same banks that are partly overlapping,

in both of these adjustments is provided that "the banks ' depositors nor

other persons in connection with the payment of additional compensation under this

the transitional provisions of the Act do not belong to other claims than those

under this transitional provision of law "; In addition, regarding the

clients Credit Bank Plzeň a.s., Plzeňská Banka, a.s., and Union Bank

a.s., (all in bankruptcy) as to how valid and effective from the same date,

i.e.. from 18. September 2006.



22. With regard to the appellants ' objections to the procedure, in particular to

violations of the prohibition of arbitrariness in the legislative procedure, the Senate found

the amendments submitted in the second reading (and approved in the third

read), which they have been incorporated into the present law completely

an unrelated amendment to the Act, in particular in the last parliamentary term

The Chamber of Deputies is completely normal. This is a phenomenon that does not contribute to

rationality, the rule of law and to legal certainty of the addressees of these changes,

However, in terms of the formal, it is obvious that, when administering the parliamentarian

amendments of the proposal within the meaning of the Constitution is not nothing.



23. The Chamber further stated that in the assessment of the proposal is to be taken into account

Another very serious aspects of nature in particular produce

the provisions, since no doubt not only on the basis of a new

legitimate expectation (to compensate clients of failed banks over other

beyond the General editing in the past have occurred), but in many cases

It was founded after the effectiveness of the law, even the new rights. It is up to the Constitutional Court,

to determine whether the appellants ' objection to the contested provisions are

so serious that it is in place to cancel these provisions and thus allow

the loss of already acquired rights, which seems to be significantly problematic especially in

small depositors of failed banks, who are not assigns.



I. observations of the amici curiae C)



24. The Constitutional Court requested the opinion of the day's 2.11.2006 the Czech national

the Bank and the Czech Banking Association on the question of economic

consequences of initiation of additional compensation for deposits of the deposit insurance fund

on the basis of the adopted amendments to the law on banks, both from the General

point of view and in terms of the impact on the ability to pay and the functioning of the

Fund, and further observations on the issue of compliance accepted modifications

additional refunds with EC law, where is the area of deposit insurance, modified

Directive of the European Parliament and of the Council No. 94/19/EC.



25. the Czech National Bank, represented by the Governor of Ing. Zdeněk Tůma, in

his opinion of the editor on the issue of economic consequences of

stated that the financial reserves of the deposit insurance fund to 30/9

represent approx. 6.3 billion. CZK. Additional compensation of deposits will be

featuring approx. 3.84 billion. $ (The amount will be specified to pass

supporting documents for the payment of compensation from all banks). The Reserve Fund reduces to

about 2.46 billion. CZK. Realization of the payment of additional compensation will not have

an immediate direct impact on bank contributions to the pool outlet, however, in

the case of new insured event could very realistically the situation may occur,

that the Fund had sufficient funds due now

the payment of additional compensation enacted or substantially enacted. The consequence of this would be

doubling the contribution rates of the bank according to the provisions of § 41k of the law on

banks. Payment of premium refunds, of course, significantly delaying the

the moment of filling the Pool to a level which enact the decline in contribution

rates, or. stop completely contribution. To do this, it should be mentioned

that the current contribution rate above represents for a great deal of domestic banks

a competitive disadvantage. Rate is relatively high in particular because of the

repeated amendments to the law on banks, the additional uzákoňujících

extra compensation.



26. the amendments to the law on banks, which lead to high

compensation, according to the opinion of the Czech National Bank significantly worsen

the position of the Fund as a potential borrower. The provision of section 41i of the law on

banks is enshrined: "in the event that the resources of the Fund

are not sufficient for the payment of statutory compensation, purchasing the Fund's

the necessary funds on the market. The Fund is required to ensure that

the conditions under which the funds are provided to the Fund,

What is the best. ". It is clear that potential lenders are not willing to

to borrow at low interest rates to the debtor, the future financial

the situation is unpredictable due to a real risk of political groups

activities leading to the duplication of the depletion of its resources. As

the potential borrower is thus becomes illegible for investors Fund, and

Therefore, the market may not be as accepted by the debtor. will be accepted

only in a position of risk of the debtor, that is, at interest rates significantly

higher than what could be achieved in the market under normal circumstances. In

in this context, it is worth mentioning that after the integration of supervision of the financial

market covered by credit insurance on deposits, embodied in the

the law on banks, and on the savings and credit cooperatives. It is therefore only

a matter of time in the House of Commons requirements for the sounds

čtyřmilionové compensation for members of the formerly bankrupt savings and

credit unions.



27. On the question of compliance with the additional adjustment of the refunds received EC law

(Directive No 94/19/EC), Czech National Bank, in its opinion,

that discrepancy sees especially in the following facts:



and the contradiction with article 11) of the abovementioned Directive, which States:



"Without prejudice to any other rights which they may have under national

law, systems of payment of insurance law

subrogation to the rights of depositors in liquidation proceedings up to the amount of their

payments. ". As a result of the action of the law will be retroaktivního in terms of

All deadlines for the preparation of the Fund the lodgement of claims in bankruptcy

control. This leads to the ultimate violation of article 11 with negative

implications for the management of the Fund.



(b) the contradiction with the spirit of the directive), as expressed in the preamble to the directive:



"... due to the fact that on the one hand a minimum level of insurance

prescribed by this directive should not leave without too much protection

part of the deposits in order to protect consumers and in the interest of the stability of the financial

systems; on the other hand would not be appropriate to establish in the community

such a level of protection that could, in certain cases, have

encouraging the unsound management of credit institutions; that seems to be

reasonable to set the harmonized minimum guarantee level of EUR 20

000 euros; that may need to be limited transitional measures

enable existing systems to adapt this amount. ". The contested

part of the law No 443/2006 Coll. of the CZECH NATIONAL BANK's opinion is contrary to the purpose of the

directive, since its stated objective is not only the protection of minor

depositors and strengthening the stability of the banking system, but also the fight against

the so-called. moral hazard and neobezřetnému behavior of banks.



(c) Conflict with article 9), which in paragraph 2. 1 provides:



"Member States shall ensure that credit institutions make available to actual and

intending depositors the information necessary for the identification of insurance

deposits, of which the institution and its branches are members within the community,

or any alternative arrangement provided for in article 4(1). 3 (2). 1 second

subparagraph or in article. 3 (2). 4. the Depositors shall be informed of the

the provisions of the deposit insurance scheme or any alternative

the arrangements, including the amount and scope of the cover offered by

deposit insurance. ". From that wording that all depositors

must receive the information before saving deposits in advance and must be completely

clearly, what are the conditions of insurance. As a result of a series of retroactive

amendments to the law on banks, depositors in the long term in the Czech Republic

do not get the true information about the functioning of the deposit guarantee system, and

their possible investment decisions may be the influence of the information

subsequently prove to be untrue, distorted.



d) beyond the scope of the query by the CNB on the possible contradiction pointed out the infected

provisions with the provisions of article 87 Treaty establishing the European

the community, which provides:



"The support provided in any form by the State or through State

resources which distorts or threatens to distort competition by

favouring certain undertakings or the production of certain are, if

affect trade between Member States, be incompatible with the common market,

unless otherwise provided in this Treaty. '. In the case of the contested provisions with regard

in the opinion of the CZECH NATIONAL BANK on the support provided by the United State, albeit from an insurance company

resources of the Fund. The compensation has to be paid as follows, in economic


point of view no justification, as previously provided by the performance of this

insurance to depositors in accordance with its former business

the intention of the (Elimination of reputačního risks), it was clear from her position in the

Financial Group and it was voluntary.



28. The opinion of the Czech Banking Association, the Constitutional Court received a delivery

16. In the Czech Banking Association, represented by the Executive Director

Ing. Peter Out stated that it supports the view of a group of Senators

formulated in their submission, as it consistently considers that provisions of

the contested act is in conflict with the constitutional order of the Czech Republic and

Furthermore, contrary to the rules on deposit guarantee schemes set up in the EC law.

At the same time, the law amounts to the establishment of illegal public aid

represents a serious infringement of the EC Treaty. Furthermore, in its

opinion in detail described the development of the insurance of receivables from deposits and

the above standard compensation from 1994 to the present. In its observations

It also drew attention to the relevant Community law and its contents.



29 July 2004, the Constitutional Court received unsolicited 12.2.2007 representation of civil

Association of Union Bank clients ("UB"). In this representation is

stated that in case of a repeal of the law No 443/2006 Sb. "to a completely

the unprecedented violation of basic constitutional rights of the members of the civil

Association clients, UB, who feel themselves to be directly concerned by the proposal. ".

Further observations of the emergence of private banks describes in the Czech Republic

the period of the creation of the private banking sector, i.e. the period

the transformation of the banking sector. States that virtually did not work quality

banking supervision and the absence of a quality guarantee to create and maintain

equal conditions of competition for the State-owned bank on the one hand,

and for the newly emerging private banks on the other. Already from this

the reason was the position of the private banks, as well as the orientation of the depositors on

market of banking services very difficult. This situation, along with repeated

crises in the economy led to the fact that private banks from falling into the

economic difficulties, as a result of which the number of depositors then

about their savings. It was a bad Bank and the monetary policy of the State, as well as

lack of consistent regulatory policy of the State in the banking sector and the apparently

for these reasons, it was decided to grant a refund

depositors for the devalued deposits from the State up to 4 miles. CZK

depositors. First, to provide compensation for the CZECH NATIONAL BANK and the Ministry of finance,

they were later provided refunds to clients of bankrupt banks on the basis of the

legal provisions. With regard to the listed can be considered reasonable and

expectations for depositors of the Bank, Credit Bank Plzeň, Plzeň and Union

the Bank that their deposits will be reimbursed under the same conditions and of the

the same amount as previously odškodněným to depositors. Therefore, the contested act

Removes the de facto discrimination of the depositors of a credit Bank Plzeň,

Pilsen's Bank and Union Bank compared to the depositor for example. Pragobanka,

Universal Bank, the Moravia Bank and others, and is therefore in accordance with the

the requirement for equality in rights, which stems from the Charter of fundamental rights and

freedoms. The civic association clients the UB on your observations absolutely refused to

the arguments of Senators requesting annulment of the contested act, which further

justify. In conclusion, the proposed that the draft of the Group of Senators rejected.



30 July 2004, the Constitutional Court was delivered 13.2.2007 Administration clients Union

Banka, a.s., called as part of the application for annulment of the law No.

320/2001 Coll., as amended by law No 443/2006 Coll. i. l. authorised to submit

expression of JUDr. P. D., LL. M., Ph.d., which was witnessed by

presentation of a power of attorney. According to settled case-law of the Constitutional Court (for example.

SP. zn. PL. ÚS 52/03, a collection of findings and resolutions of the Constitutional Court, the volume

35, finding no. 152, promulgated under no. 568/2004 Sb.) is the circle of

the revocation of laws and other legal provisions given by the law and their

the Constitutional Court's decision to extend an enumeration cannot be. The purpose of the procedure for

repeal of laws and other legal regulations is the protection of the constitutional order

contained principles and public goods, which implies that, in this

the Constitutional Court may accept the representation of the "friends of the Court", IE.

of such persons, which are not only their private interest, but are

no longer able to inherently take into account the public interest in the form of

the aforementioned principles and public goods. While in the case of the civil

Association clients UB as interest grouping can be indicated by the

the quality of the trace, the same cannot be said for a private person to feel

the design of direct concern to the senators, and in relation to the Constitutional Court

is in the position of persons claiming only their private interest. This

However, the purpose of the revocation of laws and other legislation does not serve,

and, therefore, the constitutional court filing, l. was unable to accept it as the expression of the so-called.

"friend of the Court".



I. D) evidence obtained by the Constitutional Court from public sources



31. the Constitutional Court as a basis for its decision to enlist also

photographs and a video of the proceedings of the Chamber of Deputies, the Senate, and their committees,

on their resolution and the parliamentary publications freely available in the digital

the library on the website of the Chamber of Deputies and the Senate of the

The United States on the www.psp.cz and URwww.senat.cz, and also the records of 11., 12.

and 13. the meeting of the Standing Committee of the Senate of the CZECH REPUBLIC and for the Constitution of parliamentary procedure

available at www.senat.cz.



I. E) oral proceedings before the Constitutional Court



32. In oral proceedings before the Constitutional Court, which was held on

15.2.2007, interested parties in its final observations, the only

summarize their views and reiterated that it was the contents of their written

Administration delivered to the Constitutional Court.



II.



A description of the legislative procedure, the adoption of the contested provisions of the Act



33. From the observations of both chambers of the Czech Parliament, connected

annexes and documents available electronically to the Constitutional Court

He found that the original Bill submitted to the Chamber of Deputies group

members of 21.12.2005 (print March no 1222/0-amendment of the

the cancellation of the national property Fund), and suggested discussing the draft

the law so that the House could agree with him already in the first

read. This Bill was submitted to the Government for its opinion

day 22.12.2005. Her opinion with comments on the draft were distributed to

members of the day as house print 20.1.2006 no 1222/1. The Organizing Committee

25.1.2006 discussion of the Bill has recommended determine bulletins and

proposed order to discuss the Budget Committee. 1. reading took place on

on March 16th 2006 at 54. the meeting, where the draft was discussed in the general debate.

The Chamber of Deputies did not accept the cases so that it could with Bill

agree already in its first reading, and ordered the Bill to

discussion of the Budget Committee (resolution No 2321). The Budget Committee shall

the Bill has been examined and the date of the resolution issued by the Inbox 10.4.2006

Members such as printing no 1222/2, in which it recommended that the proposal be approved. In the 2.

read the original draft of the law first passed the general debate of the day

19.4.2006 on 55. the meeting, and then a detailed debate in which it was filed and the

the contested amendment, who was content to print no 1222/3. This

the amendment was circulated to members of the day on April 21. 3. read

took place on 23.5.2006 on 56. the meeting, where it was voted on under serial

number 16 on the contested amendment. For him, voted in favor of 167

MPs and MPs 142, against 3. NATO has approved a proposal from the

the law (resolution No. 2470), after him in favour of the Chamber of Deputies

consent, when the present 172 members and MPs voted for the proposal

156, against 3.



34. The Chamber of Deputies has progressed on 25 April. 5. the 2006 Senate Bill

as printing no 362/0. The Organizing Committee has set the guarantee Committee Committee

for economy, agriculture and transport, which discussed the proposal of the day

15 and adopted the resolution No. 7, which was handed out as a print no.

362/1. Proposal was discussed the day 21.6.2006 on 12. a meeting of the Senate, where it was

the proposal does not deal with the resolution adopted (resolution No. 499),

present 63 senators and senátorek was 39 for, 18 against and 6 are

abstentions.



35. The law was delivered to the President of the Republic to sign the delivery 21.8.2006.

The President of the law within the legal deadline has not signed nor did not return back to the Chamber of Deputies

the Chamber of Deputies. The law was approved after the date of September 11, delivered to the signature

the Prime Minister. The law was promulgated in the collection of laws of the day 18.9.2006 in amount

144 under no 443/2006 Coll. and became effective on the date of publication.



III.



Terms of reference for the assessment of the proposal



III. The principle of the rule of law) and democratic legislative process



36. In decision SP. zn. PL. ÚS 21/01, the Constitutional Court stated that: "for the

adverse phenomenon, nekorespondující the sense and the principles of the legislative

process, it is necessary to indicate a situation where one act is amended

mutually unrelated laws content immediately, which occurs

for example. to speed up the legislative procedure, often in the form of

submitted the amendments. (As apparently most pronounced example

When the Chamber of Deputies is completely assigned and unduly made was

the adoption of law No. 170/2001 Coll., on the State bond program on


pay the obligations arising from the agreement between the Government of the Czech Republic,

the Government of the Slovak Republic and the Government of the Federal Republic of Germany

their mutual posting of trade in transferable rubles and

the settlement of mutual obligations and debts incurred by the like balance in

transferable rubles for the benefit of the Federal Republic of Germany, for the

Act No. 406/2000 Coll., on the State bond program for partial

damages to agricultural entities affected by the drought in 2000, and the

Amendment of the Act No. 424/1991 Coll. on Association in political parties and in

political movements, as amended, to which was

completely change the law included inorganically No. 424/1991 Coll.) Such

procedure does not conform to the basic principles of the rule of law,

include the principle of foreseeability of the law, its clarity and the principle of

its internal control. If one of the law (in the

in the formal sense) is interfered with in several laws being edited materie

in other and these laws are not substantively together and systematically linked,

arises often greatly confusing the legal status of that principle

predictability, clarity and internal control Act already

not respect. " (Collection of the findings and resolutions of the Constitutional Court, volume 25,

finding # 14, p. 97, promulgated under Act No. 95/2002 Coll.).



37. The normative principle of democratic rule of law is contained in the article. 1

paragraph. 1 of the Constitution, which the Czech Republic is expressly referred to as

the democratic rule of law based on respect for the rights and freedoms of man and the

citizen. Respect for the rights and freedoms of the individual is without doubt also right

one of the principles of the rule of law, as has in mind the preamble of the

The Constitution, or the purpose of the functioning of the State and State power. The same purpose is expressed

(I) article. 2 (2). 3 of the Constitution, according to which the State power can be exercised only in the

cases, within the limits and the methods which are determined by law.



38. It follows that the Parliament of the Czech Republic, or both

the Chamber cannot proceed arbitrarily, but are bound by the law. In the performance of

legislative activities are so bound by the Constitution, and in particular with her

conformally inlaid, established practice of the rules of procedure of the parliamentary

the Chamber and its institutions, which can be due to long-term recurrence

be considered as unwritten part of the legislative procedure, you can find it at

compatible with higher values of making law, democratic political

system, etc. Compliance with the procedural rules contained in the said

sources of law, it is necessary to request, therefore, that although the addressee of these standards

they are not private persons, non-compliance is ultimately may

significantly affect their fundamental rights. The addressees of law have

undoubtedly the right to legitimately expect that any restrictions on its

fundamental rights carried out by the law are the result of the discourse held

across the political spectrum, and this discourse in which all participants

they got the opportunity to get acquainted in detail with the present matter and

to make an informed comment on it. Due is so such a process that

It allows an open debate between the proponents of competing views, including

the views of the minority. Therefore, posing in the foreground of the procedure to ensure

both parties to the hearing and a formal quality of legislative work.

The legislative procedure is in this lens becomes a "real source

the legitimacy of the law ".



39. the requirement of foreseeability of the law as part of the principle of the rule of

the State shall cease to be implemented — the moment when the Act is

part of another act in a formal sense, content with the adopted

the law has nothing to do. The orientation of the addressee the legal standards in the legal order

without the use of instruments of information technology becomes completely impossible.

While section 13 of Act No. 309/1999 Coll., on the collection of laws and the collection of

international treaties foresees that territorial self-governing units have

the obligation to allow each inspection laws. On the obligation to

provide each access to information system containing complete

legislation texts in electronic form, the law is silent. In so doing,

Obviously, without the possibility of use of these systems is now in the legal

the order of the United States cannot understand, and so the application of the means

the General principles of law that ignorance of the law is no excuse. The right to

due to its addressees of the completely unpredictable. The said policy is

a necessary condition for the effectiveness of every system of law, cannot be

However, it may be interpreted only to the detriment of the addressees of law, but also as a commitment

the public can do right at all knowable, because only in such a law

they can be controlled. Related problem is also prospektivnost rights

as it is, I can only drive in the future.



40. In this context, it also has the meaning of talk-along the lines of the right to good

Administration-also the "right to good legislation" that legal science, and not only

United, connects with the principles of the democratic rule of law (Čebišová, T.:

The right to good laws (?), in: Sharp, l., Čermáková, j. (eds.): questions

making law in the Czech Republic, the Republic of Poland and the Slovak Republic.

Plzeň, Inc. 2005, p. 84 seq.).



41. According to l. Fuller are among the basic models of decision making in the

democracy, judicial process and the vote within the authorities

(Fuller, l.: the Morality of law, Prague 1998. from Kysela, j.:

The legislative process in the Czech Republic as a form of rational legal

discourse?, a lawyer No 6/2005). The parliamentary decision making concerns cases

the General; in his favour is the reservation Central decisions

adopted in parliamentary procedure that ensures consideration of

the subject, of which the decision is taken, with the participation of political parties, which

represent the interests of the public, organised civil. The law as a result of

Parliamentary deliberace is a compromise between the interests of the

He's designing a social consensus, which is to be considered as a criterion

acceptance of the law. Each of the institutions that make up or where a right is

defined formal characters, among others. procedures, which serve the fulfilment of the

the purpose of the institution. Procedure concern forms of Parliament,

as well as the Division of labour between its authorities, and to guarantee democracy,

the legitimization of authority, rationality, procedural law

Justice (hearing the parties debate), etc. (Kysela, J.: Legislative

process in the Czech Republic as a form of rational legal discourse?

Lawyer No. 6/2005). Parliamentary procedures are indeed a major

element of the completion of the form of the separation of powers and the conditions of political competition in

State (Kabele, j.: from capitalism to socialism and back. The theoretical

investigation of přerodů of Czechoslovakia and the Czech Republic. Prague, Karolinum

2005, p. 205).



42. The democratic legislation from a historical perspective can explain

as the delegation of thoughts of the judicial process on the political process in

the form of making laws. As is well known, the English Parliament had a historical

roots in the Curia Regis, IE. the authority, which had the function of judikatorní and

the function of the completion of the law. Its legislative function has always been understood as a

the completion of the rights in the broader context of the (Court of Parliament).

The legislature thus fulfils the role of the "Accelerator", "rectifiers" and

"nařizovatele" more creation rights. The common law as it existed

judge-made law before the law, and next to them. Political power was

forced to deal with power, differences of opinion and interest conflict in

the process-adapted discourse that it into a binding decision

(Kriele, m.: Das im Grundgesetz, the principle of demokratische VVDStRL 29, WdeG

Berlin 1971, pp. 50 et seq.).



43. Finally, for c. Schmitt is parliamentarism as the form of Government

an open discussion in which argumentative face differences and

opinions-political power is thus forced into the debate, which enables the public

control (Schmitt, c.: The Crisis of parliamentary Democracy, London

1994, cit. from Kysela, j.: the legislative process in the Czech Republic as

a form of rational legal discourse?, a lawyer No 6/2005).



44. Similarly, as in judicial decisions, and in the parliamentary decision-making

requires the idea of a "fair decision" that is immanent to the legal

State compliance with the principles of natural law to hear all sides. While

before the Court as to the parties to the dispute, it's about the opportunity to be heard in Parliament

representatives of all political parties participating in it. Transparent

hearing of the parties representing the public contributes to its identification with

a product of the decision-making process, in this case the law. It is also

the main reason for the preference of the parliamentary legislation prior to the adoption of

acts with the force of law within the Executive branch.



45. in addition to the material quality, however, is a component of the "right" or "good"

also the quality of formal rights. Goes here. formal values of the right,

that is, they do not determine the content of the legislation, however, they have the right to provide

the existence of, acceptance and applicability: the value of the order, predictability,

freedom from arbitrárnosti, legal equality and legal certainty (Summers,

R. s.: Essays in Legal Theory. Dordrecht-Boston-London: Kluwer

Publishing, 2000, p. 30). Similarly, talking about the ethics of n. MacCormick

legalismu, for which there are significant regularity, predictability,

security, persistence, and Unity (cit. by Přibáň, j.: Dissidents, rights


Prague 2001). The essence of these considerations is the realization that the condition of the effective

the action of the law is its creation of child specific principles, which

they have to resist, as well as the legislature, i.e. atakům. they have to oblige.

Czech jurisprudence in this respect underlines the requirement

control, IE. souladnosti and the unity of the legal system (Sheen, from:

The creation of the law and its rules. Olomouc 2000).



46. The importance of the respect for parliamentary procedures, moreover, points out

the Czech legal science, and all the more so that their major part has

the character of the legal provisions. The starting point is already in the thesis. Knapp:

"Unlawful manner and act or other legal regulation cannot arise"

one of the examples of lawlessness is a violation of mandatory provisions

about creating rights (Knapp, in: theory of law. Prague, c. h. Beck, 1995, s.

107). If the legislative process with a formal legal process accurately

set out the rules with which compliance is necessary having regard to

the consequences of a strictly take, "it is worrisome that the duration of the rules

parliamentary procedure is far less zažito than to respect for eg.

Court orders, although the outcome of the legislative process (law) has

celospolečensky far more severe impact than procedural breaches in

the release of the individual judgment. " (Filip, j.: the repeated vote of the House of

as the constitutional issue or the parliamentary majority can not everything it rules

the order does not prohibit explicitly, the magazine for legal science and practice No 4/2001.

343). Also, the Constitutional Court, in finding SP. zn. PL. ÚS 5/02 comment

the need for compliance with the procedural rules in order to achieve the proper

(constitutionally Conformal) decision, saying: "the Constitutional Court in its

the findings, involving control of decisions of public authorities,

repeatedly laid out the principles for which-among other things, from the points of view of characters

rule of law-is respect for procedural (procedural) rules

necessary; briefly noted: the settled practice of the constitutional

the Court inferred that only in the process-a healthy process (constitutionally souladném

proceedings) may be made to the legal and constitutional souladnému the result

(the decision), and therefore the process purity of the decision-making process (management)

It is necessary to pay close attention and to provide it with a strong

the protection. If referred to the principles relating to the constitutionality of the

proceedings before the public authorities and their decision issued in it

(on the set of the procedure within the meaning of article 36, paragraph 1, of the Charter of fundamental

rights and freedoms), not any rational reason from these principles

derogate in questions concerning the control of the legislative process and received

acts (laws), since, even if the decision-making process in the legislative

activities to a certain extent different from the decision-making process in proceedings before the

other public authorities-and in this sense it can be understood as

sui generis-decision-making process guiding principles for decision-making, in which the

it reaches to the end result in both cases are identical; In addition, the

You cannot lose sight of the consequences resulting from the legislative acts

for your overall social impact are certainly more significant than is the case in

cases of individual (bad) decisions of other public authorities.

He performs well in the legislative process-to the forefront of the request

constancy, conviction and necessity of legal acts on which the legal

State, and in correlation also lives in it lies; such acts and

also reaching the required authority legislatures, however, cannot rearm

otherwise than respect for the rules (principles of legislative activity) that

After the Chamber of Deputies as a major recipient of legislative power

for their activities by the law itself. " (A collection of awards and

the resolution of the Constitutional Court, Volume 28, no. 117, pp. 25, declared under

No 476/2002 Coll.).



47. The principle of material so perceived the rule of law, also request to

the Division of power, which has the nature of value. Separation of powers is also the

a structural element of the Constitution. The following characteristics of the separation of powers

the Constitutional Court has made in finding SP. zn. PL. ÚS 7/02, where he stated: "in this

the State is in the meaning of article 87(1). 2 (2). 1 of the Constitution, the source of all State power

people, executing it through institutions able to legislative, Executive and

the Court. From this initial finding, can be inferred that in the

the basis of our constitutional system enshrines the principle of the Division of State power,

principle, based on the idea that in the nature of man is enshrined

the tendency towards the concentration of power and its abuse, which has become a guarantee of

against the will of and abuse of State power, and basically i guarantee freedom and

the protection of individuals, the principle of which is the result of and reflection on the existing

historical, ideological and institutional developments, in which the.

in modern times such personalities were involved, what are John

Locke and Charles de Montesquieu, institutionally, then up to the present. British

Parliament and the British justice system. It is not the task of the Constitutional Court, in

a situation that can be considered as already given, developing closer

and causes for this principle. But nevertheless considers it necessary to only

In short, noted that in the foundations of the principle of

is contained in the empirical knowledge embodied the belief that human

thinking and social processes could not be attributed to just never

rational nature, since they contained and evident irrational elements, and

In addition, the rationality of thought, she never fully with rationality

the negotiations. As a representation of an existing condition, it is a "Government of all the"

a mere ideological formulas, often explaining away completely the opposite social

status. In a social situation characterized by internal and external

nedostatkovostí individuals and society may be basic

human needs met and maintained at least a direction to a destination,

what constitutes a democracy, only the way of balancing the conflicting

individual interests. " (Collection of the findings and resolutions of the Constitutional Court, the volume

26, finding no 78, p. 273, declared under no. 349/2002 Coll.). This aspect

view of the Division of power is also a reason for the constitutional definition of synergies

individual power, specifically in the case of the Executive and the legislature in

during the legislative process (article 41, paragraph 2, and in particular article 44 (1)

The Constitution, see below).



48. Very intensely is the lack of synergy between Government and the

Parliament during the legislative process have been felt in the case of

the adoption of laws that have impact on the national budget. Is

undoubtedly, the responsibilities of the Government ensure compliance with the State budget as

the key tools of governance, and to the Government of its obligations,

must have effective tools to prevent subverzivnímu behaviour

Parliament. This requirement is closely associated with the Division of power and with the proper

the performance of the functions of the constitutional authorities in its frame. Only on

the edge of the Constitutional Court, said that in other States is this specific

requirement is addressed by the constitutions or rules of procedure of its parliaments. As

for example, GERMANY and Spain, where on any draft law that

have impact on the national budget, the Government must give consent.



III. B) principle of constitutional interpretation of the sources of law conformable

governing the legislative process



49. for the solution of the case is crucial to distinguish the concept of "amendment

the draft "and the concept of the ' draft law '. While the Bill is modified in

different contexts by the Constitution (articles 41, 42, 44-48), amendment

only mentions law No. 90/1995 Coll., on rules of procedure of the

the Chamber of Deputies, as amended, (hereinafter referred to as "JŘPS"), if we look away

Since the Constitution modified relations between the two parliamentary chambers (about

"amendment" to the Constitution in this context mentions-see article. 46

paragraph. 2, article. paragraph 47. 2, 3 and 4, art. 50 para. 2. The introductory phrase of section) 63

paragraph. 1 JŘPS provides that a member may submit proposals in the debate "to

the present case. " These proposals should apply "to certain things

the present point. " The provisions of § 63 para. 1 point 5 JŘPS entitles the

Members to submit the proposed amendment, which emit, extend the

or changing some parts of the original proposal. The right to submit proposals

the laws during the parliamentary debate amendments derives from

the right of legislative initiative, however, is not identical with it, since it is

naturally limited sphere dedicated just the realization of the rights of the legislative

the initiative. Already from the need to distinguish the legislative initiative and

the proposed amendment, and it increased to comply with the constitutional claims to

appointed for the first time, can be inferred that the amendment should actually

only modify the proposed legislation therefore should not even

fundamentally altered or substantially expanded, and the less should move

outside the subject of legislative initiative, and the draft law (similar to the

Schorm, in: easy rider, administrative law No 2/2000, s. 65 and

seq.).



50. the Deflection of the limited space dedicated amendments may

take the nature of the design effort exceeded or the nature of the

extensive subject exceeded a defined Bill. The first

the case is u.s. doctrine known as ". legislative riders


("legislative riders"), the use of which is in the US often and excitedly

discussed, however, is regarded as undesirable, but constitutionally

Conformal form of amendments.



51. From this the first case it is necessary to distinguish the second case

called "wild riders" ("Wild Riders). In this case, the

the test criteria applied in the crossing. germaneness

the rule, i.e.. the rules of a close relationship. In other words, it is the testing questions

whether in a particular case, a proper amendment and proposal

for that date in the Czech environment called. "přílepek". In this

case, the technique of the amendment to the draft law, joins

Edit a completely different Bill with unrelated legislative master.

It is obvious that even the intensity of the changes contained in the přílepku could be alone

the problem in itself, if presented to the related Bill (in the

this case, however, this was not a classic přílepek, but rather about

amendment, the bulk of its intensity), which, however, in the process of

the adoption of the "přílepkového of the amendment" does not address, as in the third

reading process of adopting laws is not to debate this kind of space.

This will only multiply, and extends the dangers of using přílepkové techniques.



52. the close relationship between Rule (germaneness rule) in the US Congress

taken from the year 1789 and today is contained in the rules of procedure of the Congress and is

recognised as a fundamental rule of the legislative process (by analogy,

the classic Manual of Mason's Manual of Legislative Procedure, 1989, article.

402//Amendments Must Be Germane, p. 264-265). This rule expresses

the requirement that the amendment must relate to the same subject matter

the proposal, which is currently being discussed in the legislative process. Is based

on the idea that the House may at some time discuss only a single

factually the stage material. Its purpose is to secure a proper procedure, in

the meaning of a properly informed and prepared the debate in substance, and secure

flexibility and efficiency of the Chamber of Deputies. If the amendment is filed

the proposal, which coincides with this rule, this fact can be another Member of the

the Chamber of Deputies argue. On who argues, is also the burden of proof

demonstrate conflict of the amendment with the rule. After the objection

colliding with this rule, the President shall consider the nature and purpose of the first

the provisions of the present Bill, and then the relationship namítaného

the amendment to this clause. This rule implies that the

amendment must be closely related to the purpose of the specific provisions of the

of the present draft law or parts of it. Among the criteria

in particular, the following criteria, and the finding of a collision

amendment to the rule is only one of the non-fulfillment

them:



-amendment must refer to the subject of the proposal under consideration

the law,



-the fundamental purpose of the amendment must have a close relationship to the

the fundamental purpose of the present Bill,



-the adjustment of the specific subject-matter must not be amended the provisions of the General

the nature,



-a general subject specific design can be changed,



-Amendment containing a permanent change to the draft law, which

transitional change in the right predicts, cannot be regarded as having a narrow design

the relationship.



53. However, the US presidential system characterized by a high degree of

the autonomy of Congress separate from the Executive power. Therefore, it is more inspirational

examine the ratios of parliamentary or poloprezidentských modes. For example. very

feel fresh is the handling of amendments regulated in France,

a large part of the case-law of the Constitutional Council (Schorm, in: Legislative

process in France. Thesis defended at the Faculty of law in

Brno, 2000, p. 124 FF). This is based on the fact that amendment (Amendment

the proposal) must have a link to the text of the draft law discussed (incidental

relationship: the content of the amendment, clarification, linking with other related

the provisions of the legal system). In the case of non-compliance would have thought it was a

unacceptable ' legislative riders ", IE. Foreign provisions. The constitutional

the Council had already begun in the 1980 's. years of the last century alone to assess the

the relationship of legislative initiative and the right to submit amendments,

regardless of how the Chamber of Deputies, having examined the admissibility of the

the amendments. Motivated by the large increase in the number of was particularly

the amendments, which wanted the deputies and Senators to bypass conditions

the legislative process (speed up, escape the attention, etc.).



54. In New Zealand, are the conditions of admissibility of the amendment

clearly defined distinction being made, on the one hand from the proposal to reject the draft,

First, especially the criterion of relevance (relationship to things, which is to be amended-

a point is given by the inclusion in the agenda, speakers and limits

the petitioner) (McGee, d.: Parliamentary Practice in New Zealand.

Wellington, 3. vyd. 2005. with a 216-217). Similarly, it is in

the Australian Senate, where the amendment means the deletion of the words

replace a Word with another or complement a new Word, but while respecting the

the principle of respect of the amendment to the proposal měněnému (Evans, h. (ed.):

Odgers ' Australian Senate Practice. Canberra, 11. vyd. 2002, with.

184-185). Comparable attention to this problem and the German

the doctrine, including critics of the so-called. subject to the laws (Geheimgesetzgebung)

are the result of unrelated political amendments, which

will not result in the name of the law. Such a practice violates the principle of

transparency law-making as well as own-initiative rights and mate as members

as well as addressees of law (Klein, e.: Gesetzgebung ohne Parliament? Berlin,

De Gruyter Recht, 2004, pp. 16-17). The amendments are to be primarily

prepared by specialist committees, have submitted a template change,

or be in close connection with her, as "allowances" to

the law would circumvent the legislative initiative (Schneider, h.:

Gesetzgebung. Heidelberg: c. f. Müller, 2. 2002, p. 84).



55. As mentioned above, the Constitution of the United States to some extent

regulates the issue of Bill, the other in the head about

the legislation Act. It is therefore clear that the Institute the draft law should be

dominated by the principles that are applied for the performance of the Act.

These principles should be sought in connection with the functions of the authority, as

seen from the top. The defining characteristic of Parliament are free,

straight general election of its members, their single mandate, policy

the public fundamentally applied when discussing laws, as well as

the majority principle of decision making. The principle of the public is directed to the inside,

and outside the parliamentary Chamber. Working inside the used free

the formation of opinions of the members of the parliamentary chambers, working out is used to

information to the public. And any resolutions on the literature tends to be

infertility parliamentary debates, these debates should be to protect the already because

that is achieved through public awareness.



56. In Parliament, also reflects the idea of pluralism, which is the Foundation and

each character of a free society. In a parliamentary debate, and naturally

even in the work of the various committees of the Parliament is getting to the word of the opposition,

that also carries out the control, which can be thought of as one of the

the basic characters of the rule of law. Often only in Parliament receive

the opportunity for expression of the so-called. weak interests, i.e.. the interests of such

social groups that do not have such a capacity to enforce

These properties are just parliamentary debates show a special

Parliament's role in balancing and integration of interests. All of these

the principles should be taken into account when editing and executing procedures

relating to the draft law, a fortiori, to the interpretation of what

is to be considered as a Bill.



III. C) Fuses constitutionally consistent performance of the legislative process



57. In the first place is to be regarded as a guarantor of compliance with the rules

parliamentary procedure the President of the Chamber of Deputies, respectively.

the presiding. Such persons are for the consideration of bills in

the legislative phase delivered all the proposals, including proposals

marked as amendments. Undoubtedly it is the permissions of the ba

obligations (albeit nevykonávanou) of these people to assess whether the proposal is marked

as the amendment it is actually in the material sense, as

It has been explained above. To do this, undoubtedly, Chairman

justify a properly interpreted provisions of § 59 paragraph 1. 4 and § 63 para. 1

JŘPS. In the view of jurisprudence, "If the Parliament's amendment

a proposal that modifies the contents of or the outer form of the proposed law, he should not

President ever to admit voting on the venue of the unrelated, IE.

the only apparent amendment. Likewise, the Government should in the so-called.

comprehensive amendments to insist on their right to comment on the

the draft law according to art. 44 of the Constitution, because in fact it is the

covert a new legislative initiative. " (Kysela, j.: the creation of rights in

Czech Republic: truchlohra with a happy ending?, legal Newsletter No 7/2006).



58. the draft law in the second Chamber of the Parliament of the Czech Republic,


i.e.. in the Senate, is a safeguard, whose task is to, inter alia, to reveal

even errors in the legislative process, and adequately respond to them within the

the options that are made available to the Senate, even though it is obvious that, unfortunately, it's about options

limited.



59. Another fuse in the sense of the proper control of the legislative process

is the use of the right of the President to return, adopted by the law of the

the House, as the article predicts. 50 para. 1 of the Constitution. The function of the President under the

the legislative process is certainly not political functions as functions

President of the Republic does not lie in the creation of competitive policy in relation

to the Government. The President of the Republic is the Constitution outlined as mimostranický

constitutional authority. In terms of the concept of the Constitution, regardless of the reality, it is

by its nature destined to ensure compliance with constitutionality

the legislative process by means of which the Constitution confers on him, i.e..

the way of the application of the presidential veto.



60. If the previous Fail the above indicated fuses, can come to the word

The Constitutional Court, if it is approached in a proper proposal lodged in actively

legitimovaným by the applicant, because § 68 para. 2 of the Act on the Constitutional Court

The Constitutional Court, when deciding on the compliance of the law with the constitutional

policy, inter alia, whether the contested act was adopted and issued

constitutionally prescribed way. This provision imposes a Constitutional Court

to assess the constitutionality of the legislative procedure with proving derogačních

the findings, which in the past have used the Constitutional Court-see the find SP. zn. PL.

TC 5/02. In this finding of the Constitutional Court, inter alia, stated: "in the legislative

request into the foreground process constancy, conviction and

the necessity of the legal acts on which the rule of law, and also in correlation

the lives of citizens in it lies; such acts, and also reaching the required

the authority of the legislative bodies, however, cannot rearm other than respect for the

rules (principles of legislative activities) which, moreover, the Chamber's

the Chamber of Deputies as a major recipient of the legislative authority for this activity

the law itself. "



IV. Your own review



61. the Constitutional Court of first instance considers it necessary to set out in Mr.

the case method and the degree of constitutional review. The Constitutional Court in particular

notes that the plaintiffs have questioned not only the substantive nature of the

the contested provisions of the law, but also the way of their adoption. In the management

on the control of standards pursuant to art. 87 para. 1 (b). within the meaning of the Constitution)

the provisions of § 68 para. 2 of the Act on the Constitutional Court, the Constitutional Court

In addition to the assessment of the content of the laws imposed in terms of their compliance with the

constitutional law, to examine whether the law was adopted and issued within the limits of

The Constitution provided for the competence, and on that examined whether the Act was issued

constitutionally prescribed way. Since in the present case, within the

the tripartice (constitutional conformity of content competence and procedure)

disputed that constitutionally prescribed method of adoption

the contested provisions of law No 443/2006 Coll., Constitutional Court

dealing first with ústavností procedure the adoption of the law. For it is obvious

that from the wording of the provisions of § 68 para. 2 of the Act on the Constitutional Court cannot be

to infer the order listed here, since the aspects investigated would

a logical follow-up. Instead of grammatical interpretation, respectively.

the literal wording of this provision it is necessary to use its logical interpretation,

commanding first examine the competence, procedure, and finally

the content of the contested provisions.



62. the competence of the Parliament of the Czech Republic, the Constitutional Court had no doubt

and therefore it was possible to proceed to the review procedure, the adoption of the contested

provisions.



63. For a review of the constitutionally prescribed method of acceptance and release

the contested provisions of the law is necessary to deal with the course

the legislative process, that the adoption and release of the Act, which includes

the contested provisions are, was preceded by a. As described in more detail above,

(see section II.), was submitted to the Chamber of Deputies a proposal from 21.12.2005

members of the m. Hašek, m. Krause, and j. Dolejše on the issue of the law

amended Act No. 180/2005 Coll., on the abolition of the national property Fund of the Czech

Republic and about the competence of the Ministry of finance when the privatization of the assets

The United States (law on the abolition of the national property Fund), (House

print no. 1222/0). As is apparent from the stenografického registration 55. meeting

The Chamber of deputies of 19.4.2006, was cited when discussing the

the draft law in the 2. read the detailed debate was submitted to the Member of the M.

Dr. amendment, which contained the contested provisions. Indeed,

himself the originator of this amendment stated, which results from the

stenografického registration 55. meeting and of the annexes, which the appellants to

the proposal they put that proposal substantively identical to its amendment

It was already at least once presented to the Chamber of Deputies as a

a separate Bill and heard as house print # 965-

Amendment to the Act on banks. This proposal, however, after it

Government issued a dissenting opinion, 26.5.2005 June was on 51. a meeting of the

PS delivery 21.12.2005 at 3. read approved.



64. The amendment of the MEP m. Doctor was brought in 2.

read and inserted into the press no 1222/3. This amendment was

supplemented by the name of the original draft of the Act the words "... and law No. 318/2001

Coll., amending Act No. 21/1992 Coll., on banks, as amended by

amended ". Furthermore, it considered article. And the draft law was inserted a new

part two, which including the title was: "PART TWO-the change of law No.

320/2001 Coll., on banks, and which included the contested provisions, which

amended and supplemented the adjustment payment of additional compensation from the insurance fund

deposits. About this amendment then was at 3. reading on 23.5.2006

on 56. the meeting voted on under serial number 16 for his

the adoption of the present deputies voted in favor of the 167 and MPs, against 142 3.

NATO has been so modified the draft law approved by the Chamber of Deputies

(resolution No. 2470).



65. after the Chamber of Deputies referred the day Bill 25.5.2006

The Senate as printing no 362/0. The proposal was discussed by the Senate of the day on the 21.6.2006

12. the meeting adopted the draft resolution does not deal (resolution No.

499). As is clear from stenozáznamu from 12. meetings of the Senate, he delivered in

during the negotiations, the Vice-President of the Senate, Senator P. Pithart, a proposal on

referral of the present draft of the Act to the general debate, as it is

serious stuff. At the same time said, "that's what is affixed (the original proposal

of the Act), it is against good morals, not only against the rules of fair

Banking (...). Unfair is mainly the timing of this přílepku,

that resembles a blackmail. ". This representation of the Vice-President of the Chamber is

must be related to the fact that in the days of 2. and (3). June 2006

elections to the Chamber of Deputies, and it was clear that if the Senate

the entire Chamber of Deputies returned the Bill with amendments,

He would not have accepted the Bill, as the House of Commons in the main

the composition of the election no longer meet. Article. paragraph 47. the Constitution is the legal

Science (k. Klíma et al.: commentary on the Constitution and the Charter, London, 2005)

practice, interpreted as meaning that the hearing of the draft law is tied to the election

the period of the Chamber of Deputies, which is between the electoral

periods of active based on the principle of discontinuity, that what is not

doprojednáno, ends. If the Senate (and, by analogy, the President of the Republic)

the House of representatives back a Bill, has its resolution result of so-called.

a pocket veto, because the new Chamber of Deputies on the draft of the law cannot

vote. The same applies if the Bill was Senate rejected or returned

before the end of the electoral term, the Chamber of Deputies, but the

already in the election.



66. the Constitutional Court is in assessing the constitutionality of the legislative

the procedure of adoption of the contested provisions in the present case, the decisive

to assess the question of whether the present proposal parliamentarian m. Doctor designated as

amendment and processed to the printing house no 1222/3 by

Indeed, in material terms, as was explained above (paragraph

III. B). to assess whether the amendment in question in the present case

deviation from the limited space dedicated amendments, i.e.. whether

It was an inadmissible extension of the interpretation of what is the amendment.

In this interpretation, the Constitutional Court, for the reasons listed in part III.

This finding, i.e.,. due consideration of the here defined constitutional

the benchmarks, as well as consideration of the so-called. the close relationship between rules

(germaneness rule) (point III. (B)).



67. For this purpose, however, it was first necessary to assess the content and purpose of the

the original draft of the Act, and the content and purpose of the amendment under consideration

the proposal. The Constitutional Court found that the House of printing no 1222/0 and

the explanatory memorandum attached to this proposal shows that the content of this

the original proposal of the law on the adoption of the law amending the Act No.

178/2005 Coll., on the abolition of the national property Fund of the Czech Republic and the

the scope of the Ministry of finance during the privatisation of the assets of the United States

(law on the abolition of the national property Fund). His adoption of the appellants

watching efforts to raise funds in the amount of CZK 2 billion

the purpose of their transfer to the Ministry of labour and Social Affairs on


the construction of a home for the elderly. So at least in part the proposed modification should

to solve the shortage of places in these homes.



68. Furthermore, the Constitutional Court found that the contents of the house printing no 1222/3,

to which the text of the amendment under consideration has been processed, the

Amendment of the Act No. 320/2001 Coll., amending Act No. 21/1992 Coll., on the

banks, and which specifically amended and the following editing subjects

and the way the payment of additional compensation for deposits from the resources of the Fund

deposit insurance. Due to the fact that, in this case, the amendment

the proposal was not accompanied by the explanatory memorandum. However, as is apparent from the

above described the findings made by the Constitutional Court, this proposal was

substantively identical with a separate Bill under negotiation

The Chamber of Deputies as a print # 965, on which the explanatory memorandum

naturally attached. From its wording that the purpose of this amendment,

respectively. supplementation of the provisions of the Act was to ensure the

the empowerment of those bank customers located now in bankruptcy,

which in the past were receivables from banks are compensated to the extent of

laid down by law, while in the case of other bank payment took place

the claims of depositors and above this legal framework. Further, that the purpose of this

the amendment was to guarantee the Fund that a person, or. its legal

successor or assignees of receivables arising from the satisfaction of such

claims that instead of the Fund in some cases accounted for

payment of the claims of depositors of the banks will not raise other claims against him

than the entitled to recover funds that this person has used the

payment of additional compensation to depositors of the banks of up to $ 4 million.

Last but not least was the purpose of this amendment to the provision of a guarantee Fund that

satisfaction of the depositors of the banks referred to in transitional provision will be

their receivables from banks met in full and that these

depositors to the Fund will not make any other claims. The purpose of this

the amendment was also a guarantee Fund, the payment of additional compensation to depositors

the Bank applies only to cases in the past, when its purpose is

delete the above discussed inequalities between the depositor by each

in the case of the banks, while other banks will not be their depositors are entitled to

in the future, against payment of compensation in the amount of the Fund over the legal

framework.



69. following an assessment of the content and purpose of both the original draft of the Act, and

of the proposed amendment, the Constitutional Court came to the conclusion that

contents and purposes of both objects are fundamentally different. Already from this

Therefore it must be held that the deviation of the amendment

the limited space dedicated amendments. In other words, it is

It was just obvious. the amendment that it could be perhaps

only in the sense of formal, but not in the sense of the material.



70. The Constitutional Court is forced to conclude that the amendment under consideration

MEP m. Doctor were the subject of the original draft of the Act

(i.e., the transfer of funds to support the construction of the homes of pensioners)

as well as his fundamental purpose (i.e., ensure the empowerment of the

bank customers located now in bankruptcy, which in the past were

Receivables from banks are compensated to the extent provided by law, and

the Guarantee Fund deposit insurance against certain claims and

situations arising from the provision of additional compensation) had a close relationship to the

the fundamental purpose of the present draft law (that is, the effort to solve the

the lack of jobs in the home). Both proposals under consideration

the content at all unrelated, which resulted in, after the approval of the following

the amended draft law, that law has been issued (No 443/2006 Coll.), which

Furthermore, the laws are mutually unrelated content immediately

(Act No. 180/2005 Coll., on the abolition of the national property Fund, and Act No.

320/2001 Coll., amending Act No. 21/1992 Coll., on banks), which

represents the reasons referred to in part III. This finding violations of the

subprincipů arising from the principle of a democratic State (Division of

power, democratic legislative process, etc.). This situation, when

one law, the amended laws to each other content immediately

unrelated, often in the form of amendments submitted

It was, as above, Constitutional Court, SP. zn. PL. ÚS 21/01

identified as a phenomenon "side, with a sense of nekorespondující and principles

the legislative process (...). Such a procedure does not match the base

the principles of the rule of law, including the principle of predictability

the law, its clarity and its internal control policy.

If one of the law (in the formal sense) is interfered with the

Materie in other laws and modified several of these laws are not together

materially and systematically linked, there is often greatly confusing

legal status, that the principle of predictability, clarity and internal

control law already does not respect. " The Constitutional Court today

It adds that the law in the formal sense, not in the material law

understood as a mere carrier for all sorts of changes across the legal

of procedure. Material nazíraný in contrast, the law requires that the law was

both in terms of form and content in a predictable, consistent,

source of law. It cannot be allowed to fade sdělnost laws

as sources of law with all the negative consequences of the above. In

a similar spirit of sounds and the case-law of the European Court of human rights,

that puts the comparable requirements on the quality of the relevant law

(accessible, predictable, accurate), even if it referred to the Court held in

connection with cases of complaints on specific legal matters

(cf. for example. Berger, m.: jurisprudence of the European Court of human rights,

IFEC 2003, p. 455-6, paragraph 4: Kruslin c. France, Huvig c. France; with.

502-503, section 4, Autronic AG Switzerland c.).



71. If the Chamber of Deputies under the abovementioned circumstances, adopted

resolution (of 23.5.2006, no. 2470), which with the amended proposal of the

law agreed, i.e.. If the workload on the legislative process in

the scope of the so-called. the amendment defect that cannot be overlooked,

This fact is reflected in the assessment of the constitutionality of the entire legislative

procedure. It is a serious situation that is not excesem, but

the vicious practice, which are also members of the Parliament of the Czech Republic

aware of, as evidenced by e.g. a critical Senate resolution No. 303 of

25.1.2006, in which mj. States: "the continuing amendment conversant

amending laws and their implementation technique for connecting to

substantively unrelated bills make it harder to prevent the fixing of

Note about what as a right "applies. Literature for it highlights already

for years, both as to the violations of the law on the rules of procedure of the

the Chamber of Deputies, both as to circumvent the Government's rights to express themselves to each

the draft law according to art. 44 of the Constitution, which can be understood as the right of other

the participants of the legislative process to know the opinion of the Government (Hujer, m.: the Chamber of Deputies

amendments often content is unrelated to the employment

the law, the parliamentary Newsletter No. 8-9/2001, Kysela, j. in: Klíma, k. and

Comment: the Constitution and the Charter, London, 2005, pp. 236, Voříšek, V.:

The sins of the páterů Lawgiverů, Právní rozhledy No. 16/2006). To do this you need to

Add a voucher to the fact that the amendments of the explanatory memorandum is missing,

with the absence of reasons for the decision always indicates increased

the risk of arbitrariness. In the specific case under consideration, moreover, think about

will the fact that a separate Bill was first rejected,

that was just an electoral period adopted in the form of

an unrelated amendment.



72. The legislative process in the Czech Republic in General, but also suffer from other

defects, which the Constitutional Court could not deal with in this particular case

(e.g. in cases of weight gain with the effective date of the approval of laws laid down by the

before the date of adoption), however he could not disregard them as proof

in the making of laws, especially when it comes to only limited functionality

mechanisms of control of the legislative process. This will, of course,

increases pressure on the action of external control, represented in relation to the

the constitutionality of the Constitutional Court (see also Philip, j.: the legislative technique and

the case-law of the Constitutional Court, the magazine for legal science and practice, no 3/2005,

writing about "legislative neplechách or atrocities").



73. The Chamber of Deputies does not recognize that the present amendment

not in terms of material for such a treat. Constitutionally Conformal

the interpretation of the provisions governing the right to make amendments to the

the present draft of the Act, requires that the amendment actually

only the pozměňoval proposed legislation, IE. in accordance with the

the requirements of the so-called. the close relationship between rules, according to which amendments

the proposal must relate to the same subject matter, which is in the legislative

the process is currently being discussed, the amendment did not diverge from the

the limited space dedicated in the form of amendments


the subject of the present crossing of a broad Bill. This

corresponds to the opinion of the Constitutional Court constitutionally Conformal interpretation

introductory wording the provisions of § 63 para. 1 JŘPS. However, this requirement was not according to the

The Constitutional Court met in a given case. By mj. There has been a violation of the Division of

power, with implications for understanding the formation of souladného, a lucid and

a predictable law, which the Constitutional Court has previously teamed up with attributes

democratic rule of law, to circumvent the legislative Institute

the initiatives referred to in article. 41 of the Constitution, and violations of the rights of the Government to respond to the

the draft law according to art. 44 of the Constitution.



74. therefore, the Constitutional Court has held that the challenged

the provisions of law No 443/2006 Coll., amending Act No. 318/2001

Coll., amending Act No. 21/1992 Coll., on banks, as amended by

amended, has not been adopted by deputies of the constitutionally

in the prescribed manner. This is exacerbated by the absence of the signature of the President of the

Republic, which should be legally-exception override veto-

According to the article. 51 of the Constitution and according to the doctrines of the proper completion of the verification

the legislative process.



75. the derogation of the Statute approached the Constitutional Court

After that, what in my previous case-law (see, in particular, find SP. zn. Pl. ÚS

21/01) expressed his strong appeal to the Parliament of the Czech Republic within the meaning of

respect for the principles of clarity, transparency and clarity of the legal

the order, which is among the components of the rule of law and respect for

democratic principles in the legislative procedure (article 1 of the Constitution).

If approached in this respect to the cancellation of part of the second, and this article. (II) and article. (III)

Law No 443/2006 Coll., opened by especially for the futuro derogatory reason

According to the article. 1 (1). 1 of the Constitution. Any similar assessment policy violations

the legislative process in the past, the Constitutional Court joins with the test

of proportionality in relation to the principles of the protection of legitimate confidence of citizens in the

law, legal certainty and acquired rights, possibly in relation to the other

protected by the principles of the constitutional order, basic rights, freedoms and public

goods.



76. this conclusion is itself already makes it impossible to review the constitutionality of

the various provisions of the Act under consideration from the viewpoint of the opposing

content of unconstitutionality. Therefore, the finding of the Constitutional Court at the same time

does not prejudge the solution of the modified constitutionally Conformal rušenými

the provisions of the.



The President of the Constitutional Court:



JUDr. Rychetský in r.