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.
