In The Case Of A Proposal To Repeal Parts Of The Law On Excise Duties

Original Language Title: ve věci návrhu na zrušení části zákona o spotřebních daních

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=43301&nr=265~2F1995~20Sb.&ft=txt

265/1995 Sb.



FIND



The Constitutional Court of the Czech Republic



On behalf of the Czech Republic



The Constitutional Court of the Czech Republic decided on 11 July. October 1995 in the plenary on the

the proposal of the President of the Republic to repeal:



1. section 2 (a). I), part of the section 33 relating to small, independent breweries

pursuant to section 2 (a). I) and § 33a of the Czech National Council Act No. 587/1992 Coll., on the

excise tax, as amended by laws No. 199/1993, no. 325/1993 Coll.

No 136/1994 Coll. No. 260/1994 Coll.



2. article. (II) sections 2, 3, 4, 5 and 6 of Act No. 260/1994 Coll., amending and

following the law of the Czech National Council No. 587//1992 Coll., on consumer

taxes, in wording of later regulations,



as follows:



1. On 1 January 2005. January 1996 shall be deleted in article II, section 5 of Act No. 260/1994

Coll., amending and supplementing Act of the Czech National Council No. 586/1992

Coll. on the excise tax, as amended.



2. Advocates that the Decree of the Ministry of agriculture no. 111/1995 Coll.,

laying down the legal and economic conditions for the independence of the small

independent breweries, shall expire at the same time.



3. In the remaining part of the proposal is rejected.



Justification



(I).



The President of the Republic, taking advantage of their right, granted to him by the provisions of § 64

paragraph. 1 (a). and Act No 182)//1993 Coll., on the Constitutional Court, on

January 20, 1995, according to the article. paragraph 87. 1 (a). and the Constitution of the Czech Republic)

(hereinafter referred to as "the Constitution") proposal to repeal



1. section 2 (a). I), part of the section 33 relating to small, independent breweries

pursuant to section 2 (a). I) and § 33a of the Czech National Council Act No. 587/1992 Coll., on the

excise tax, as amended by laws No. 199/1993, no. 325/1993 Coll.

No 136/1994 Coll. No. 260/1994 Coll.



2. article. (II) sections 2, 3, 4, 5 and 6 of Act No. 260/1994 Coll., amending and

following the law of the Czech National Council No. 587//1992 Coll., on consumer

taxes, in wording of later regulations,



for the discrepancy with the article. 1 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter"), article. paragraph 79. 3 of the Constitution, and, as is apparent from the text of the proposal, also with

article. 11. 5 of the Charter.



Application for annulment of the provisions of the law for conflict with the constitutional

the law can be divided into two headings:



and the law on excise duty) in the text of the contested amendment introduces the

differentiated lower tax for small independent breweries whose annual

exhibitions (production) of beer is not greater than 200 000 hl, which is referred to in

the appellant in breach of the principle of equality in the rights referred to in article. 1

Of the Charter. The appellant argued that, while under the previous legislation

excise taxes on all the selected products, including beer, were the tax rates

and her graduation dependent solely on the characteristics of those products,

new legislation introduced with a beer, and just for him, another aspect of the tax

differentiation, the range of annual production. He stated that the principle of equality in the

rights, which belong to the basic principles of modern democratic

the legal system, the concept so that it is about the equality bodies of the relative,

which is understood in relation to a legal standard, which requires that the

the same right has been exercised under the same factual circumstances, and in this

context pointed to the Constitutional Court of the Czech and Slovak

Federative Republic, published under no. 11/1992 collection of resolutions and

the findings, according to which, in principle, cannot be ruled out that the legislature

has established a differentiated taxes according to the principle that the more powerful entity will

pay higher taxes, but that the legislative authority to substantiate the

the decision by objective and rational criteria, which in the opinion of

the petitioner in the case happened, since the legislature unjustifiably

only one group favored by one of the producers of products subject to

excise tax, namely beer, though similar economic resolution would be

You can introduce the other products subject to excise duty.



(b) the amendment in article Cited). (II) point 5 of the Ministry of agriculture to stores

in agreement with the Ministry of finance published by legal regulation, which lays down the

the legal and economic conditions for the independence of small breweries. It is referred to in

the appellant in breach of article. 11. 5 of the Charter, under which the tax and

charges may be imposed only on the basis of the law, and with the article. 78 and article. paragraph 79. 3

The Constitution, which provides that the implementing regulation may be issued only to the

implementation of the law and its limits. These conditions are in accordance with

the petitioner complied with, since the law has not defined the limits of the law

lower legal force. The enabling provisions of the Act, that in the contested

the provisions of the "independence" of small brewers does not specify or

No delegates legislative power to the Executive authority-

the Ministry of the extent of the constitutional order of the Czech Republic already

does not allow.



First, the judge-rapporteur, fulfilled all the law

the conditions for the control and design of all the formal and substantive

Essentials. Nothing could justify refusal of proposal

According to section 43, paragraph. 1 of law No. 182/1993 Coll. as well so did not

the existence of the circumstances on the basis of which it would recommend to the plenary the issue

resolution on the termination of the proceeding.



The proposal was sent to the Chamber of deputies of the Parliament of the Czech Republic, which

the law, whose partial cancellation is proposed, with a challenge to the

expression (section 69 of the Act No. 182/1993 Coll.). The President of the Chamber of Deputies

PhDr. Milan Uhde in its opinion of 22. February 1995, also with reference to the

judgment of the Constitutional Court of the Czech and Slovak Federal Republic,

expressed the opinion that the imposition of tax differentiation is justified

objective and rational criteria. To the second part of the proposal relating to the

enabling standards, expressed the view that the Parliament article. 78 and article. paragraph 79. 3

The Constitution did not fail, and neither violate the could not, for him, because

undertake to the authorities of the Executive power to issue implementing regulations. Has delivered a

the opinion that the legislature acted in the belief that the adopted law

It is in accordance with the Constitution and our legal system, and said it is on the

The Constitutional Court that the President of the Republic, after consulting proposal assessed

the constitutionality of the contested provisions of the law on excise duties and released

the relevant decision.



From the representation of the Chamber of deputies of the Parliament of the Czech Republic, of the Government

the draft law, amending and supplementing Act of the Czech National Council No.

587/1992 Coll., on the excise tax, as amended (the print

1173), joint report of the committees of the Chamber of deputies of the Parliament of the Czech

Republic to this Bill (1336), together with the těsnopiseckým

record of discussion of the above law and the amount of 77/1994 Sb.

found that the draft amendment to the law on excise duties are to submit

Parliament by the Government. The provisions on the tax benefit small, independent

breweries, that the Government's proposal did not include in the draft law

incorporated to on the basis of parliamentary amendment. The law, including the

the contested provision was adopted on 7 December 2004. 12.1994 on 25. the meeting of the

Parliament, which has 163 members are present. For the adoption of the law

voted 133 members, 7 members voted against, 11 members of the

abstentions and 12 members of Parliament vote. The law was signed by all

respective constitutional actors and was announced in the amount of 77 Collections

laws, sent out by 30. 12.1994, when effective. Effective became 1.

1. in 1995, with the exception of just tax rates for small independent breweries, which

effect 1. 7.1995.



The law was then adopted and published within the limits of the Constitution laid down the competence and

constitutionally prescribed way.



II.



The Constitutional Court dealt with the alleged protiústavností of the contested provisions

the law.



Act No. 260/1994 Coll., section 2 (b). I) is characterised by small independent

the brewery as such legal person or physical person whose annual

exhibitions of beer is not greater than 200 000 hl, and who satisfies the conditions referred to in

the special regulation. For such a law in the brewery then section 33 provides for the

special tax rate, which is lower than the tax rate for other

breweries.



It is therefore necessary to consider whether the legal by fixing a lower rate

the tax for a particular group of breweries, whose essential character is determined in

the cited Act, have been violated the constitutional principle of equality. To the question of

equality in the tax area, as both participants have noted correctly,

intrigued by the legal opinion of the Constitutional Court already rejected by the plenary of Czech and Slovak

The Federal Republic in its award of 8. 10.1992, SP. zn. PL. ÚS 22/92

published under no. 11 year 1992 collection of resolutions and findings. According to the

This finding of relative equality, how to understand the modern Constitution, requires

only the Elimination of unjustified differences. Special standards for

certain fields to lay down specific criteria equality, which the General

the principle of do not, because the applications are not established the principle of equality

so the precise limits to the discretion of those precluded any who

apply. In the area of tax it is necessary to require that the legislature

to substantiate their decisions on objective and reasonable criteria. In

that finding also States that if the law specifies the benefit

one group and at the same time lays down the obligations of the other, may be disproportionate to

so only with reference to the public values. From similar considerations based

I find the Constitutional Court of the Czech Republic of 7. 6. the 1995 SP. zn. Pl. ÚS

4/95 in the matter of the proposal of President of the Republic to repeal section 34 of the Act of the Czech
the National Council no 360/1992 Coll., on the exercise of the profession of Chartered

architects and engineers involved in the construction, as amended

regulations.



The impugned statutory provisions constitute a tax advantage for a particular

a group of entities, which in our tax system is not at all unusual, as

stems from the tax legislation, which lays down the various exemptions

(e.g., section 4 and 9 of the Act of the Czech National Council No. 338/1992 Coll., on the taxation of

real estate, in the wording of later regulations, section 4 of the Act of the Czech national

Council No. 586/1992 Coll., on income taxes, as amended,

section 8 of the Act of the Czech National Council No. 586/1992 Coll., as amended

the provisions of section 25 of the Act of the Czech National Council No. 588/1992 Coll., on the taxation of

value added tax, as amended, section 3 of the Act of the Czech national

Council No. 16/1993 Coll. on road tax, as amended),

discount on taxable (eg. section 35 of the Act on income taxes, section 12 of the Act on the

road tax), the tax rate (e.g., section 36 of the law on taxes

nontaxable income) and differentiated part of the tax base (e.g., section 15

paragraph. 2 of the Act on income tax).



The reasons for the special editing tax rates for small independent breweries

resulting from the trend of compatibility with EC law. Article. 90 the European

Agreement establishing an association between the Czech Republic on the one hand, and

The European communities and their Member States, of the other part

(communication from the Ministry of Foreign Affairs No. 7/1995 Coll.), which after

assent by Parliament and ratification by the President of the Republic of

entered into force on 1 January. 2.1995, inter alia, States that parties will

to promote the exchange of information and know-how in the areas of, inter alia, the introduction of

legal, administrative, technical, tax and financial

the conditions necessary for the establishment and expansion of small and medium-sized

enterprises and cross-border cooperation.



From the report of 14 July 2004. 3.1995 No. 117/1995-222, presented by the Constitutional

the Court of the Ministry of agriculture, it was found that the implementing Decree

is based on Directive 92/84 of the EEC Council from 19. 10.1992 and the practice of the EC. In

section I article. 4 of the directive states that Member States may use

the beer brewed in small, independent breweries reduced tax rates,

that can be tiered according to the annual production of the brewery

(directive also States, who can be considered as independent small brewery).



At the same time, the Ministry of agriculture to its representation provided for

the information yield of Federal Ministry of Finance Chief Financial

administrations from 28. 7.1993, indicating some elements of legal demonstratively

and the economic dependency of the brewery that independence should always be in the

individual cases had to be reviewed.



The first part of the proposal can be summarised on the basis of the above, that the law

set the differential tax rates on beer are a legitimate expression of the will

the legislature, which reflects public interest in support of small

independent brewers and is directed to the compatibility with the laws

States of the European Union.



After this part of the assessment of the proposal, the Constitutional Court concluded that the contested

the provisions of the law on excise duties do not conflict with article. 1 and article.

11. 5 of the Charter, and therefore the proposal of the President of the Republic to repeal section 2 of the

(a). I), part of the section 33 relating to small, independent breweries in accordance with § 2

(a). I) and § 33a of the Czech National Council Act No. 587/1992 Coll., on the

excise tax, as amended by laws No. 199/1993, no. 325/1993 Coll.

No 136/1994 Coll. No. 260/1994 Coll., and article II, sections 2, 3, 4 and 6 of the Act

No 260/1994 Coll., amending and supplementing Act of the Czech National Council No.

587//1992 Coll., on the excise tax, as amended, under the

point 3 of the statement of award under section 70, paragraph rejected. 2 of law No.

182/1993 Coll., on the Constitutional Court.



III.



In the second part of the proposal is applied, the argument that Parliament, when adopting

the law passed in accordance with the article. paragraph 79. 3 of the Constitution, because the

determined in the empowering provisions of the Act limits the law

lower legal force. Specifically, it is about the article. (II) point 5 of Act No. 260/1994 Coll.

According to which the Ministry of agriculture, in agreement with the Ministry of finance

published by legal regulation, which sets out the legal and economic conditions

the independence of the small, independent breweries under section 2 (b). I) Act

(Decree of the Ministry of agriculture no. 111/1995 Sb.).



In this disputed point was based on the Constitutional Court from the definition of the object of protection in the

Act No. 260/1994 Coll.



The object of protection in the contested act is "a small independent brewery". For

the purpose of the law is in section 2 under the letter i) defined a small independent brewery

as such, a legal person or natural person, whose annual production of beer

not more than 200 000 hl, and who satisfies the conditions referred to in the Special

the prescription. From this definition entails two indicating elements, two

constitutive characteristics of that concept:



and, with a small brewery) this conceptual character is defined in production

200 000 hl of beer per year,



(b)) independent brewery, taking this conceptual character is not specified, or is

"designated" in section 2 (a). I) the words "satisfies the conditions referred to in the Special

prescription ".



Implementing regulation is article. paragraph 79. 3 of the Constitution bound only to such

for a more detailed treatment, which moves "on the basis of and within the limits of the law".



The first conceptual relevance (production to 200 000 hl) is a law of General

clearly defined and on this basis can a Ministry decree

specify the details.



As regards the second conceptual character of the protected subject matter, namely the

"independence", the legislature gave his definition of the implementation

Regulation, i.e.. a lower legal standard. Of the Act shows that the protected

breweries must, in addition to its production to meet the definition of some other

the conditions, however, this "something else" leaves with the Decree, and

gets the definition of the basic conceptual elements, which has for the definition of

protected by the constitutive importance outside of the Brewers influence the legislature.



Compliance with the conditions of the special regulation closer to the unmarked, which then

"ex post" become constitutive law of protected subject matter, characters

gives the impression that it would be possible as vaguely articulate

zákonodárcovo authority of executive power in other areas of life

the company.



The relevant decree on the basis of Act No. 260/1994 Coll. was released under no.

111/1995 Coll., the Ministry of agriculture and defined in section 1 of the below letters)

to d) aspects, as is the need to assess the independence of the Brewers.

The Constitutional Court to annul this Decree, also has not made it, however, because the

the Ordinance defined substantively independent breweries in a way, as it has done,

but because this basic conceptual relevance identified the place

the legislature. In this respect, therefore, the Constitutional Court in favour of the opinion

did as he was President of the Republic in the proposal.



As regards point 1 of the award, the Constitutional Court decided to cancel the article. (II) point 5

Act No. 260/1994 Coll., on the basis of which the Ministry of agriculture in

the agreement with the Ministry of finance published the Decree, at a later

date, and to 1. January 1996, so that the Parliament was given time to

such an adjustment, which would allow him to his ideas about the constitutive

terms of the concept of an independent brewery in the amendment to the Act.



The Constitutional Court is based on that of the award shows appreciation

the principle of the constitutionality of tax breaks for small breweries, and assumes that the

until the Parliament and the new decree, financial affairs

the authorities of the situation based on the knowledge that the final tax

the settlement at the end of 1996, will conclude the matter in a way that will correspond to the

new edit.



The Constitutional Court annulled article. (II) point 5 of Act No. 260/1994 Coll., amending

and supplementing Act of the Czech National Council No. 586/1992 Coll., on consumer

taxes, in wording of later regulations, for its conflict with article. paragraph 79. 3

The Constitution under section 70, paragraph. 1 of law No. 182/1993 Coll., on the Constitutional Court, and

at the same time, in accordance with the provisions of section 70 paragraph. 3 of Act No. 182/1993 Coll.,

the Constitutional Court said that the implementing regulation, the Decree of the Ministry of

Agriculture No 111/1995 Coll., laying down the legal and economic

the conditions for the independence of the small, independent breweries, ceases to be valid

also on 1 July. January 1, 1996.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.



The rights to bring their different opinions on points 1 and 2 of the award in

Protocol on the acts and on its connection to the decision, stating its

the names referred to in section 14 of Act No. 182/1993 Coll., on the Constitutional Court, have taken advantage of

the judges of the Constitutional Court of the Czech Republic. Vladimír Čermák and JUDr.

Miloš Holecek.