On behalf of the Republic
Constitutional Court decided under ref. Nos. Pl. US 12/14 of 16 June 2015
plenary Court composed of the Chairman Pavel Rychetsky and judges
Louis David, John and Philip, Vlasta Formánková, Jaroslava FENYK, Vladimir
crust Thomas Lichovník, Jan Musil, Vladimir Sládečka, Radovan
Suchanek, Catherine Šimáčková (judge-rapporteur), Milady Tomková,
David Uhlir and Jiri Zemanek on the proposal of the Supreme administrative court to
Constitutional court in proceedings under Art. 95 para. 2 of the Constitution of the Czech Republic
for the participation of the Chamber of Deputies of the Czech Parliament and the Senate of the Parliament of the Czech Republic
as the parties stated that
to § 14e par. 4 Act no. 218/2000 Coll., on budgetary rules and amending
some related acts (budgetary rules
), as amended by Act no. 465/2011 Coll. (Ie. As in force until 19
2nd 2015), the words "and ruled out its judicial review" is
inconsistent with the constitutional order,
Provisions of § 14e par. 4 Act no. 218/2000 Coll., On budgetary
rules and amending certain related acts (budgetary rules
), as amended on 19. 2. 2015 in words " and is excluded
its judicial review "was contrary to Art. 1 paragraph. 1 of the Constitution of the CR and Art.
36 para. 2 of the Charter of fundamental rights and freedoms.
The original proposal
First Constitutional Court on 16. 6. 2014 received a petition from the Supreme Administrative Court
(the "Offeror") to annul § 14e paragraph
. 4 of Act no. 218/2000 Coll., On budgetary rules and amending
some related laws (budget rules), in the former
wording, the words "and ruled out its judicial review."
Second The petitioner - invoking Art. 95 para. 2 of the Constitution of the Czech Republic
(hereinafter "Constitution") and § 64 par. 3 of Act no. 182/1993 Coll.
of the Constitutional Court, as amended (hereinafter the "Act on the Constitutional Court
") - it has made in connection with its decision
activities concerning him under file. Ref. 2 As 12/2014, as
came to the conclusion that identified above provision is inconsistent with the constitutional order.
The proceedings before the administrative authorities and administrative courts
Third By an application filed with the Municipal Court in Prague, the applicant
College of Mining - Technical University of Ostrava annulment of the decision
provider subsidy of the Ministry of Education, Youth and Sports
30. 9. 2013, ref. No. 38871 Ministry of Education / 2013 dated 7. 11. 2013 ref. no.
MSMT-38871 / 2013-2, which it as a grant recipient
informed the suspension of payments on the project IT4Innovations Centre of excellence in the amount
23436947, 44 CZK, since in his opinion there
conduct described in the grounds of a breach of procurement
co-financed from the EU budget.
Fourth The Prague Municipal Court resolution of 2. 1. 2014 ref. No. 9
A 200 / 2013-42 dismissed the action. In its resolution, the municipal court referred to the §
14e par. 4 Act no. 218/2000 Coll., On budgetary rules and amending
some related laws (budget rules), as amended
amended (hereinafter "Act on budgetary rules")
containing explicit exclusion decision to suspend the grant of judicial review
. He also referred to the reason for exclusion from judicial review under § 68
point. e) of the Act no. 150/2002 Coll., the Administrative Procedure Code
under which the action is inadmissible also, if so provided by a special law, which explicitly enshrined
exclusion in § 14e par. 4 Act on || | budgetary rules matches. Additionally, this exclusion by the municipal court of
"justified a temporary and preliminary nature of the action."
Fifth Against this order, the applicant filed an appeal as complainant
complaint with the fact that even when formal impossibility of judicial review of measures
issued pursuant to § 14e paragraph. 1 of the law on budgetary rules is inevitable judicial review
open through constitutional interpretation | || provisions of § 14e par. 4 Act on budgetary rules, and that the action
assessment of the alleged breach of the fundamental principles governing the activities
administrations. The applicant referred to Art. 36 para. 2
Charter of Fundamental Rights and Freedoms (the "Charter"), under which
not be excluded from the court's jurisdiction to review decisions relating to
Fundamental rights and freedoms; the absence of procedural regulations Refusing subsidies
(resp. suspension of payments) in the amount in which they were granted, due
arbitrarily or on the basis of assumptions reinforces the importance of these principles.
The applicant complained of the infringement of their fundamental rights, the failure to dispose
subsidies granted amounting forced her to replace the missing funds from
own resources, the uncertainty about the further procedure can actually go
intervention final. Furthermore, interference with their rights in
sees that it is impossible in a regular procedure to prove that the implementation
project for which the grant was given, his duties actually
6th The Supreme Administrative Court proceedings on that appeal
took the view that § 14e par. 4 Act on budgetary rules in
parts, which stipulates that the judicial review are excluded by his actions
paragraphs 1-3, which is needed in the matter, is the
inconsistent with the Czech constitutional order, because it can not be interpreted without
fact that the complainant was shortened its right to judicial protection, which
for it follows from Art. 36 para. 2 of the Charter.
7th The Supreme Administrative Court in the introduction recalled that the Municipal Court took an act
which the petitioner sought review of such decisions;
nature of the contested act of the defendant, however, can not be ruled out that there may be a different
act having the character of intervention (cf..
resolution extended composition of the Supreme Administrative Court on 16. 11. 2010 ref. no. 7 3 Aps / 2008-98);
However lockout specified in § 14e par. 4 Act on budgetary rules
it turns out, regardless of how the administrative court
8th Amendment by Act no. 465/2011 Coll., Amending Act No.
. 218/2000 Coll., On budgetary rules and amending certain
related laws (budget rules), as amended
amended, and certain other Acts, with effect from 30. 12. 2011 into law on
budgetary rules incorporated the possibility that the provider
grants the recipient of the subsidy did not pay, if it considers that there has been a violation
financed from the budget of the European Union (§ 14e paragraph. 1 of the
budgetary rules), and the measure was expressly excluded from judicial review.
9th Breach of a statutory obligation,
decision or grant agreement, which are directly related to the purpose for which it was granted
subsidy, which occurred before accepting cash and
which upon their receipt to the payee takes
is qualified as a violation of budgetary discipline [§ 44 para. 1 point. j)
law on budgetary rules], and it is the responsibility of the person who budgetary discipline
violated done through the local tax authority
payment to the state budget [§ 44a paragraph. 3 point. a)
law on budgetary rules]; in the case of unauthorized use of funds
containing the subsidy funds from the European Union determines the amount of the levy financial
office [§ 44a paragraph. 4 point. b) the law on budgetary rules].
Legal arrangement thus provides for control of competence (among other organs) and
subsidy providers, but about the consequences of finding irregularities and
their qualifications in the form of the obligation to carry out drainage
for breach of budgetary discipline decided by the competent authority in financial management
according to the tax Code, and its decision is subject to review by the administrative courts.
10th Under these circumstances, the petitioner to § 14e situated
into law on budgetary rules unsystematically, as it allows
grant provider that before it can be objectively determined
breach of the rules laid down for the grant (or even without it )
payment stopped. The reasons for such a strong justification may seem
legitimate if its purpose timely prevent the misuse of public funds
because it is obvious that the mere finding of a violation of the rules
after these funds have been illegally taken and used would often do
could only have academic nature. Changing the law on budgetary rules
(Act no. 465/2011 Coll.), Moreover, was to remove the interpretation difficulties
practice to the question whether the grantor even if
mere suspicion of a breach of obligations of the beneficiary proceed with the payment
Grant funding or reimbursement stop; were selected while solutions
withhold resources that are appropriate to the level it would have been during the reporting
breach of the obligations imposed levy, which implies that the provider
subsidies can stop the payment completely.
11th Evaluation of the seriousness of the "suspect" is not limited to
grant provider and believe a breach of the rules does not necessarily prevent
control or other legally anticipated and regulated procedure.
Measures restraining outstanding resources that should be
measure only provisional and temporary, extra time
law does not restrict, but leaves the next assessment of the seriousness suspect
determine when such a step notify the recipient and the tax office or when
will continue the payment of the remaining part of the grant entirely on the will and discretion of the provider
respectively. its self-regulation. Grantor
therefore not bound by any deadline or procedural rules. In the absence of such a measure
review by the court due to lockouts are explicitly specified as
"opens the door for arbitrariness provider subsidies and steeply
risk of corruption."
12th According to the petitioner measures according to § 14e paragraph. 1 of the Act on budgetary rules
interferes with the rights of the beneficiary subsidy that violates the principle of legitimate expectations
. The recipient is reasonable to assume that he will be
within the meaning of the decision to grant the subsidy paid the full amount (
if it is proven that he violated his obligations as a result it would be appropriate decision
grant or withdraw part). This is so because
moment that a final decision on the allocation of grants on the recipient
entitled to its use in accordance with its intended purpose, and after
final grant decisions, it is necessary to take appropriate steps so that || | that these subsidies could be properly drawn and used (preparation of project documentation
, concluding agreements on implementation of the subject subsidies, etc.).
Stop payment of the subsidy is then in this situation, immediate intervention in property rights
beneficiary pursuant to Art. 11 of the Charter and may also cause
a violation of his right to engage in commercial and economic activity
pursuant to Art. 26 Charter. In this connection, the petitioner pointed out that
next imminent harm to recipients of grants for the drawdown
subsidies is also chaining additional interventions, for example.
Stop construction work, enshrining a building under construction, the threat of contractual penalties.
13th The petitioner also pointed out that the unconstitutionality of the contested provision
sees that the legislature allows the payment of subsidies suspend
but in the absence of criteria for this procedure, resulting in the possibility
arbitrariness on the part of providers and the lack of legal certainty for
recipient. There also opens parallel with the adjustment so.
Hedging institutes to which the Constitutional Court of eg. in its judgment. . I. ÚS
2485/13 of 2. 12. 2013 (N 206/71 SbNU 429), which defined
basic criteria for assessing the constitutionality
interference with property rights and the need for proportionality review applied
hedging instrument. It is obvious that the contested provision excluding
judicial review of such an assessment of proportionality or detect any arbitrariness
Observations of the parties
14th Chamber of Deputies of the Parliament of the Czech Republic (hereinafter
"Deputies") in response to the petition dated 31. 7. 2014
signed by the Chairman of the Chamber of Deputies Jan Hamáček, said that
government bill No. 465. / 2011 Sb., amending Act no. 218/2000
Coll., on budgetary rules and amending certain related laws
(budget rules), as amended, and certain other
laws discussed as Parliamentary print no. 287 (circulated to deputies on
21st 3rd 2011) at first reading on 27. 4. 2011 at the 16th meeting and told him
budget Committee and the Audit Committee that the bill
discussed on 27 5. 2011, respectively. On 8 6. 2011. The second reading passed
general and detailed debate on 20 9. 2011 at the 23rd meeting and filed
amendments were processed as Parliamentary print no. 287/3 and sent out on
21. 9. 2011. the third reading took place on 27. 9. 2011
the Chamber of Deputies approved the bill (at a ratio of 143 for and 4 against
). Czech Senate (the "Senate") proposal
Act under the number 218 printed discussed on 27 10th, 2011 at the 13th meeting and
it with amendments Resolution no. 400 returned
Chamber of Deputies. Senate resolution was delivered to the Chamber of Deputies and sent deputies on
1. 11. 2011 as Parliamentary print no. 287/5, a bill
returned by the Senate was a vote of 6 to 32. 12. 2011 meeting and || | Deputies adopted it in the version approved by the Senate
Chamber of Deputies publication no. 287/5. The president signed the Act of 19
12th 2011 on 30. 12. 2011 Act was promulgated in the Collection of Laws under no. 465/2011 Coll
. House Speaker concluded that the law was adopted
after regular legislative process with the conviction that § 14e paragraph
. 4 of the law on budgetary rules in "and ruled his
judicial review" is consistent with the Constitution and laws of the Czech Republic
15th The petition in the Senate filing of 30. 7. 2014, signed by President Milan
cities. Organizing committee appointed Senate Document no. 218
to the committee on National Economy, Agriculture and Transport, who
recommended the plenary to approve the bill in the version passed
Chamber of Deputies. Plenum discussed the bill at its 13th meeting on 27. 10.
2011 version passed in the Chamber of Deputies did not approve it;
in detailed debate it was proposed to add provisions concerning
But another part of the bill before changes in budget rules and were
presented several technical legislative amendments that
redress some of the shortcomings ceded printing. The bill was approved with amendments
returned to the Chamber of Deputies.
16th Government in response to the petition dated 28. 7. 2014 signed
chairman Bohuslav Sobotka told the Constitutional Court that his rights
intervene in the proceedings under § 69 par. 2 of the Constitutional Court exercised.
17th Similarly, also expressed Ombudsman Anna Šabatová
filing of 11. 7. 2014; although entered into management, he said that
with the proposal of the Supreme Administrative Court agrees.
Text of the contested provision
18th The provisions of § 14e law on budgetary rules (contested part
provisions highlighted) sounded at the time of submission of the Supreme Administrative Court
(1) The provider does not have to pay part of the grant, if it considers that there has been a violation
co-financed from the EU budget to the amount that is determined in the decision | || grant Award as the highest possible amount of the levy for breach
budgetary discipline. Bearing in mind the seriousness of the infringement and its impact on compliance
(2) In the event that the provider performs the reimbursement grants
measures referred to in paragraph 1, inform him in writing of the beneficiary and the relevant financial
Authority, including its scope and justification.
(3) executed by the provider of the measures referred to in paragraphs 1 and 2, may continue
payment of the remainder of the grant.
(4) The measures provided for in paragraphs 1-3 is not subject to general regulations on administrative proceedings
and avoiding its judicial review.
Assessment of the jurisdiction of the Constitutional Court for consideration of active standing of the petitioner
19th Firstly, the Constitutional Court's attention to the fulfillment of procedural requirements
substantive discussion of the petition, namely the
question of whether the Supreme Administrative Court to him locus standi.
20th Under Article. 95 para. 2 of the Constitution, the court will conclude that
statute which should be applied in resolving a matter is inconsistent with the constitutional order
submit the case to the Constitutional Court for consideration; in accordance with the then
set forth in § 64 par. 3 of the Constitutional Court, the proposal to repeal
law or its individual provisions is also authorized to submit
court in connection with its decision-making activities.
21st General court is thus given the opportunity to make a specific procedure did not apply
law or its individual provisions, which it considers
unconstitutional and that it impossible to achieve the contrary, conforming to the Constitution
result. At the time of submission of the proposal, this condition is satisfied. Just
annulment of the contested provisions might Supreme Administrative Court
open space for substantive discussion of the applicant's proposal, thereby eliminating
constitutional deficit, which is the current proceedings against a
Administrative decisions in his opinion, are affected. The petitioner therefore
standing to the petition possessed.
22nd On 5. 2. 2015 was published in the Collection of Laws Act no. 25/2015 Coll.
Amending Act no. 218/2000 Coll., On budgetary rules and changes
some related laws (budget rules) , as amended
. It came into force 15 days after its publication, namely 20
23rd The provisions of § 14e law on budgetary rules continue
reads as follows:
(1) The provider need not pay a grant or a part thereof, if it considers,
that its recipient in direct connection with the breach of its liabilities
law or failed to comply with the purpose of the grant or the conditions under which
subsidy was granted; if it is determined by lower contributions for violations
budgetary discipline according to § 14 para. 6 above undisbursed grants
must be determined within the amounts calculated in accordance with § 14 para. However, in the sixth
within the percentage range into account provider of the violation
and its impact on compliance purpose of the subsidy. Withhold grants or part
not in breach of the duty under § 14 par. 4 point. to).
(2) The provider of measures pursuant to paragraph 1 without undue delay
appropriate manner recipient. The beneficiary may, within 15 days from the date on which
obtained this information, providers bring against this measure
objections. The objections are decided by whoever heads the provider.
(3) The decision on objections to decide whether the measure
provider was fully justified, partially justified or whether
not justified. A decision on objections can not be appealed.
(4) If the measure provider in the decision on the opposition
considered as fully justified provider subsidy recipients or part
worthwhile. If it has been judged as partly justified provider
paid to the beneficiary of the grant, which he unlawfully failed to pay.
If it was assessed as unjustified provider to the recipient pays the unpaid
subsidy or a part thereof. Provider of subsidy paid to the beneficiary or its
part that he unlawfully failed to pay, within five working days of
the decision on the opposition.
(5) The provider informs the measures in paragraph 1 and the decision to
objections pursuant to paragraph 3 in an appropriate manner without undue delay
(6) executed by the provider of measures pursuant to paragraph 1 may continue
reimbursement in the remaining part of the grant.
24th The current wording of § 14e law on budgetary rules
was therefore replaced by a new wording for which it determines that the original proposal
contested part of the former paragraph 4 no longer contain.
25th The Constitutional Court in its decision-making practice, he repeatedly indicated that
such cases can no longer grant the application for annulment of a legal regulation or
its provisions, but that usually comes into consideration
decide whether the contested provision at the time its effectiveness was
inconsistent with the constitutional order or not.
26th Following the invitation of the Constitutional Court the petitioner filing dated
11th Third in 2015 changed the original proposal so that instead of a proposal to repeal the provision in question
(part) asks "the Constitutional Court said that
to § 14e par. 4 Act no. 218/2000 Coll.
budgetary rules and amending certain related acts (budgetary rules
), as amended by Act no. 465/2011 Coll., ie. as amended, effective from 30
12th 2011 to 19. 2. 2015 it is part of the sounding, and ruled his
judicial review 'in conflict with Art. 36 para. 2 of the Charter of fundamental rights and freedoms
27th Change petition, the petitioner argued that, in deciding
cassation complaint must apply the provisions of § 14e par. 4 Act on
budget rules in the original version, and therefore the review is
continue to determining whether the exclusion of judicial review of measures pursuant to paragraph 14e §
. 1 of the law on budgetary rules, to which he resorted
Magistrates court, it is constitutional or not.
28th Resolving issues already presented this to the Constitutional Court, the Supreme Administrative Court
is therefore in the case which brought about his proposal needed because it
must apply the provisions of § 14e par. 4 Act on budgetary rules in the original
amended (from 30. 12. 2011 to 19. 2. 2015) and his
decision on a cassation complaint against that decision city
Court from that assessment depends on the Constitutional Court immediately.
29th Conclusion on the fulfillment of the requirements for standing petitioner
inferred in paragraph 21 above, therefore apply in relation to the amended proposal.
30th In the spirit of previous case law of the Constitutional Court, for example, finds sp.
Brand. Pl. US 33/2000 of 10. 1. 2001 (N 5/21 SbNU 29; 78/2001 Coll.)
Sp. Nos. Pl. US. 38/06 of 6 2 2007 (N 23/44 SbNU 279; 84/2007 Coll.)
Sp. Nos. Pl. US 12/07 of 20. 5. 2008 (N 90/49 SbNU 247;
355/2008 Coll.), Sp. Nos. Pl. US 72/06 of 29. 1. 2008 (N 23/48 SbNU 263;
291/2008 Coll.), Sp. Nos. Pl. US 10/08 of 12. 5. 2009 (N 115/53 SbNU
427; 229/2009 Coll.), Possibly resolution file. Nos. Pl. US 8/14 of 3
third 2015 (available at http://nalus.usoud.cz), respectively. They expressed
preconceived views on the above (see paragraph 25) the circumstances due to which
opportunity to deviate from the consequences embodied in § 67 para. 1
Law on the Constitutional Court, then you can finally conclude that amended proposal is
projednatelný and represents fulfilled the condition
subsequent constitutional review.
31st The Constitutional Court expected a hearing to clarify the matter, which is why
drop it in accordance with § 44 of the first sentence of the Constitutional Court
Constitutionality of the legislative process
32nd The Constitutional Court, as required under § 68 par. 2 of Law no.
182/1993 Coll., On the Constitutional Court, as amended by Act no. 48/2002 Coll.
Further assessed whether the contested provision was adopted
within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner. Given
expression of both chambers of Parliament, available
describes the legislative procedure for adopting the relevant law with regard to the fact that
legislative procedure is not disputed by the applicant, can only
conclude that the condition of the constitutionality of the legislative process was
Principles of law
33rd The Constitutional Court in assessing the application for revocation, respectively.
judicial finding of unconstitutionality by the lockout to a measure suspending
subsidies can not overlook the full context of the rules governing the use of subsidy
suspension. The legislative text cited in paragraph 18 of the judgment
allow providers of subsidies that partly backfire if
theorized that a breach has occurred, while also scoping
suspension was left to his discretion.
Sole legal limit was then instructed that the provider has to take into account the seriousness
breach and its impact on compliance with the objectives of the grant. This procedure
provider was not according to the provisions nor controlled
general regulations on administrative proceedings or judicial review.
No uncontrolled and unlimited real reasoning provider sufficient to suspend
law on an unrestricted period of payment has been granted
subsidies, in a situation where only came to believe that there has been a violation
34th Suspend payment of the subsidy is yet a decision that profoundly affects
legal sphere of the recipient. Such a measure may have for him
serious impact, since it may result in the frustration of his entire
scheduled and subsidies supported the project; or even rise to his
responsibility for the inability to fulfill the commitment (typically pay the price
ordered things or services), which has vowed assuming that
funds for the payment of gains from subsidies, without which it is not
may not be available. This suspension comes then only when it was already
for a subsidy and its conditions decided by the state.
The recipient of this grant decisions and relied counted
that he will, if it complies with the conditions laid down, the subsidy paid.
Subsidies are often provided under conditions of co-recipient
redevelopment on subsidies can therefore not only frustrate the intention of the recipient but also
investment from its own funds. The Act did not even
no specific criteria for suspension of payment of subsidies or the closing date
must be decided on subsequent sanction or renewal of grants.
The petitioner points out in this connection that the exclusion of judicial review
impossible to protect the legitimate expectations of the recipient before
any arbitrary provider.
35th The Constitutional Court therefore approached first contested judicial evaluation
Exclusion from the perspective of protection against arbitrariness, from the viewpoint of maintaining the maxim
substantive law. Czech Republic is in fact in Art. 1, paragraph. 1
Constitution defined as a democratic constitutional state. The notion of the rule of law lays down the principle
bound by state law. The Constitutional Court then applied
rule of law as one of the important measures
constitutionality of laws.
36th In the case law of the Constitutional Court has repeatedly emphasized the importance
constitutional principle of the rule of law and respect for individual aspects of his
[see. eg. the judgment of 28. 6. 2005 file. Nos. Pl. US 24/04 (N 130/37
SbNU 641; 327/2005 Coll.)], The need for subordination of the interpretation and application of legal norms
their content in material sense [judgment of 21
12th 1993 sp. Nos. Pl. US 19/93 (N 1/1 SbNU 1; 14/1994 Coll.)] And the obligation
lawmakers to the legislative process and maintaining
aspects such as transparency or clarity [Judgment of 23. 5. 2000 sp. Nos. Pl.
US 24/99 (N 73/18 SbNU 135; 167/2000 Coll.)]. In a democratic legal
State must have the right to proper quality formal [see.
Constitutional Court file. Nos. Pl. US 77/06 of 15. 2. 2007 (N 30/44 SbNU 349;
37/2007 Coll.), Paragraph 45, or finding sp. Ref. II. US 3764/12 of 13. 5.
2014 (available on http://nalus.usoud.cz)]. The theory of law in this context
talking about the so-called. Formal values of law which, although not determine
contents of the legislation, however, have the right to ensure the very existence and further
acceptance and applicability: These values include the values of order,
predictability, freedom from arbitrary, legal equality and legal certainty
(Summers, RS Essays in legal Theory. Dordrecht - Boston -
London: Kluwer Publishing, 2000, p. 30). Any legislation must
expressing respect the general principles of law (principles) as
trust in the law, legal certainty and predictability of the legal acts
structured legal order of a democratic legal state, respectively.
are derivable from it.
37th For the democratic rule of law is characterized by the principle of legal certainty
, inter alia, the fact that legal rules be clear and precise
and will ensure that the legal relationships and their consequences remain
addressees predictable rules. Commitments and promises that at each
state takes against individuals, should be respected (
principle of legitimate expectation). The principle of legal certainty, it is necessary to connect
ban arbitrary to discretion of state authorities has been limited
procedures to prevent the abuse of that discretion, with the best prevention
and subsequent protection against arbitrary access
to justice, thus the court that discretion
subjected to judicial scrutiny (cf.. report by the European Commission for democracy through law
called. Venice Commission, about the rule of law, adopted at its 86th session in March
2011, no. 512/2009, available on www.venice.coe.int).
38th Even if the appellant submitted to the Constitutional Court for assessment only
exclusion from judicial review and could not do otherwise, because only this part
cited provisions of § 14e law on budgetary rules
prevent the ordinary courts to proceed to judicial review of administrative action | || contested suspension of the grant, the Constitutional court can not access
consider this proposal without taking into consideration all the legal context
adjustments. Provider legislation Czech and European (see paragraphs 58
et seq., Cp. Also the judgment of the Court of Justice of the European Union of 21. 9.
1989 in Case C-68/88 Commission of the European Communities v Hellenic || | republic, under which is a violation of the obligations deriving from European
law, if not initiated criminal or disciplinary proceedings against
persons who participated in the design and concealment of acts which enable
avoid paying agricultural duties under the law EEC )
imposes responsibility for the protection against the misuse of the grants, but without
the law or the court led to the balancing of the public interest
responsibility for protecting the rights of beneficiaries.
39th Conditions for drawing the allocated grants are determined either in
decision on the allocation of grants or contract for the provision of subsidies, specifically
documents to which these legal titles refer to a grant.
Regularly with a wide range of handbooks, conditions and methodologies that
must grant recipients during its drawing to follow, checking their compliance
are made pursuant to the Act no. 320/2001 Coll., On financial
Control in public administration and amending certain laws (Act on Financial
control), as amended (hereinafter the "Act on financial control
"). In § 13a of the Act on financial control are set
special procedural rules for audit performance by the
directly applicable regulations of the European Union. The report of the audit is to identify the shortcomings identified
. These shortcomings can be called character. Irregularity which
may have under EU law (Council Regulation no. 1083/2006 on
general provisions on the European Regional Development Fund,
European Social Fund and the Cohesion Fund) impact on the final volume
provided funds. If the grantor on the basis of the audit
Centre will see that there has been in the implementation of activities financed
appropriate subsidies for violation of the rules for awarding public contracts
may according to § 14e law on budgetary rules
suspend payment of subsidies (resp . does not have to pay part of the subsidy) and
response to inform the competent financial authority of its findings.
Revenue Authority in accordance with § 85 et seq. Act no. 280/2009 Coll.,
Tax Code, as amended, starts with a tax subsidy recipient
control, resulting in either konstatace
violation of budgetary rules and any subsequent assessment proceeding and the imposition of sanctions,
tax audit or financial authority defects and shortcomings in connection with
public contract extension breach of budgetary rules it finds, and then
tax office already makes the next steps. Tax Office can only result in
findings of the tax inspection to take punitive measures,
issue a payment order requiring grant recipients to carry out drainage
for breach of budgetary discipline, if it finds misconduct.
If misconduct is established, has the statutory authority to any further progress
So even does not make any decisions. Sub-constitutional law does not in any way
situation where financial authority concludes that a breach of budgetary discipline
not, and grantor this
disagree (criticism of legislation that does not provide sufficient procedural frameworks
the situation described above, for example. Article Moravec, O. Reduction
subsidies in the jurisprudence of the Supreme administrative court - sunny ?, available
under no. 95155 on www.epravo.cz).
40th Samo suspend subsidies where appropriate subsequently
tax office or even the actual provider conclude that
recipient did not violate any of its obligations, thus no longer has to become
subject to judicial review, which would be held lawlessness
suspending grants. Also, sub-constitutional legislation does not solve
situation where the tax office issued a demand for payment
requiring grant recipients to carry out removal for violation of budgetary discipline, and yet
grantor recipient seized funds
worthwhile. Moreover, neither explicitly set any deadlines by which
competent authorities have to decide. It is possible that it is normally
carried out so that both providers, governing body and for
competent financial authority be authoritative findings of an audit conducted in accordance
cited provisions of the Act on financial control, and therefore the assessment | || levy for breach of budgetary discipline taxing authority will occur. However, if this
decision on assessment levy for breach of budgetary discipline, which is certainly
judicially reviewable, the recipient will be attacked in court, the court of
no way to evaluate the reasonableness of suspending drawing
subsidies under the contested provisions of the budget rules, but
will only assess the legality of the contested payment.
Sub-constitutional law therefore does not open any option under which it could possibly
to plan subsequent judicial review stated that the suspension
drawing the grant was lawful manner and not arbitrary.
41st The exclusion of judicial review of the suspension of subsidies is in this context
sub-constitutional law leads to the fact that any arbitrary, arbitrary, or even vexatious
procedure grantor may not be relevant
named or sanctioned in any way, as this procedure is not as State | || subject to judicial review. This, however, in a democratic legal state
who has the obligation to protect the legitimate expectations of individuals, their
legal certainty and fundamental rights before the arbitrariness of the procedure of state
Bodies is not possible.
42nd The contested provision, which provides in the context described above
exclusion of judicial review, it is primarily inconsistent with Art. 1 paragraph.
1 of the Constitution, which guarantees the observance of the fundamental principles of substantive
rule of law, and protection legal certainty, non-arbitrary and
access to justice.
Right to review administrative decisions regarding
fundamental rights and freedoms
43rd Another key measure of assessment for the proposal Article.
36 para. 2 of the Charter, according to which, although it may be a judicial review of the decision of the Public Authority
excluded (Art. 36 para. 2 of the Charter, the first sentence in fine
) , from the jurisdiction of the court shall not be excluded
review of decisions affecting the fundamental rights and freedoms under the Charter (Art. 36
paragraph. 2 of the Charter, second sentence).
44th The Constitutional Court in its previous jurisprudence he repeatedly indicated that
if everyone under Art. 36 para. 1 of the Charter right to seek protection of their rights
before a court or other authority, the conditions and rules of implementation of this
rights stipulated by law, then such a law, issued on the basis
constitutional authority, not that right - these terms and conditions -
on the other hand denied. Cited Article. 36 para. 2 of the Charter is the logical consequence
; reflected the different relevance of fundamental rights and freedoms
accounting for their different nature logically
greater protection than rights-based law only [judgment file. Nos. Pl. US 12/07 of
20th 5. 2008 (N 90/49 SbNU 247; 355/2008 Coll.), Finding sp. Nos. Pl. US
72/06 of 29. 1. 2008 (N 23/48 SbNU 263; 291/2008 Coll.)].
45th The right to judicial review of the statutory exception pristine decision
public administration body is so public subjective right guaranteed
at the constitutional level. The Constitutional Court therefore further stepped to assess whether the procedure
grantor under § 14e paragraph. 1
law on budgetary rules affecting one of the fundamental rights and freedoms of its
46th As mentioned above, the procedure according to § 14e
law on budgetary rules may lead to interference in the legitimate expectation
grant recipient. If the recipient of the grant will comply with all conditions
to him in the decision to grant a subsidy legislation and any other
Norms for disbursement and use of subsidies
set, then it created a legitimate expectation that he would be a subsidy
granted. In the case that from the mere unsubstantiated assumptions of the
provider will suspend payment of subsidies, such a procedure
interference with the legitimate expectations of the recipient that he will be a
subsidies paid and will be able to use to set purpose.
Breach of legitimate expectations is not only the damage to its legal certainty
as described above, but also interference with his right to protection of property
how it is governed by Article. 11 of the Charter.
47th In the case law of the Constitutional Court because it protected the legitimate expectations
as one of the principles stemming from the principle of the rule of law (see above
in paragraphs 37 et seq.), The principle of certainty, predictability bezrozpornosti and
legislation [cf.. Finding sp. . I. ÚS 287/04 dated
22nd 11. 2004 (N 174/35 SbNU 331)] or the principles of good governance, but also
Constitutional Court in a number of its decisions finds
protection of legitimate expectations in relation to the protection of property rights, in the broader sense
property [cf. Finding sp. Nos. Pl. US 2/02 of 9. 3. 2004 (N 35/32
SbNU 331; 278/2004 Coll.), Or finding sp. Nos. Pl. US 9/07 of 1
7th, 2010 (N 132/58 SbNU 3; 242/2010 Coll.) And finding sp. Ref. IV. US 525/02 of
on 11. 11. 2003 (N 131/31 SbNU 173)].
48th Duplicitous importance of the protection of legitimate expectations
emphasized the Constitutional Court in its decision no. Nos. Pl. US 53/10 of 19. 4. 2011 (N 75/61
SbNU 137; 119/2011 Coll.), In which it concluded that the additional reduction
claim amounted to State aid within the specified range for
order to reduce state budget expenditures will not stand with regard to the legitimate expectations of the parties
savings. After the participant has met the conditions for
entitlement to state support for a given calendar year,
could legitimately expect from the state is not in addition to their amendment, respectively.
to change the claim itself. These are the expectations to which it belongs
protection both in terms of the principle of legal certainty and protection of confidence in
Right, respectively. protection of acquired rights under Article. 1. 1 of the Constitution and with respect to property
nature of the claim under Article. 11 paragraph. 1 of the Charter and Article.
1 of the Additional Protocol to the European Convention for the Protection of Human Rights and
fundamental freedoms ( "the Convention"). That provision
not only to the already acquired (existing) property, but also provides
protect the legitimate expectations of the acquisition of such assets.
49th Even by the European Court of Human Rights is an integral part
protection of property rights also protect legitimate expectations
therefore protection claim in which at least fulfill a legitimate
legitimate expectations (Esperance légitime / Legitimate Expectation).
Central rule in assessing the existence of such a legitimate expectation is
account the specific and individual circumstances of the case, which
a whole should rise to legitimate expectations as a property interest protected
Art. 1 of the Additional Protocol to the Convention (Case
Grand Chamber of the European court of human rights in Anheuser-Busch Inc. v Portugal
, 11. 1. 2007, no. 73049/01, para. 63-65, or the judgment
European court of human Glaser rights in the case against the Czech Republic
14th 2nd 2008, no. 55179/00, para. 50-52).
50th The petitioner pointed out the parallels possibly suspending drawing
subsidies with a similar provision for securing the funds within
criminal proceedings on the question: whom recently Constitutional Court has repeatedly ruled
. In these cases, it is also very strong public
interest in limiting property rights of persons suspected of crimes against property
activities whose funds are provided for the purpose of possible future
payment of their financial obligations to the state or damaged.
The Constitutional Court's jurisprudence on this finding Institute
emphasized the role of the courts as protectors of proportionality between the protection of the public interest
and protection of the rights of the persons concerned. The purpose of judicial review
seizure of funds in the account of the accused's
assess the adequacy of this measure in terms of the ratio between the severity of the examined
crime and the extent of protection in relation to the possibilities
person concerned as entrepreneurs continue to carry out activities that
this business is related to [judgment file. . I. ÚS 2485/13 of 2. 12. 2013 (N 206/71
SbNU 429)]. Public authority's decision on the request for restrictions
securing funds must be properly justified, with regard to the extent
ensuring specifics prosecuted a criminal case and the emergence of potential property damage
[sp findings. Ref. IV. US 3501/13 of 5. 8. 2014
sp. . I. ÚS 3502/13 dated 17. 4. 2014 (available at
http: //nalus.usoud.cz)]. The Constitutional Court also pointed to the temporal dimension
Institute of securing funds in the account - if the authorities involved in criminal proceedings
not take into account the length of the criminal proceedings and his prognosis
further development when deciding on the duration of the measures of the hedge
adequacy of view, violate the right to protection of property
rights under Article. 11 paragraph. 1 of the Charter in conjunction with Art. 4, paragraph. 1 and 4
Charter [judgment file. Ref. III. US 1396-1307 dated 19. 3. 2009 (N 62/52 SbNU
609)]. All these requirements are cited by the Constitutional Court decision
role of ordinary courts to balance
public interest and the rights of the persons concerned.
51st Provider's decision to suspend the use of subsidy is also
justified by the public interest in protection against the violation of legal obligations
beneficiaries, in particular before the breach of budgetary discipline or before
fraud, but the absence of judicial review in this case does not take into account a
protect the interest subsidy recipient and his legitimate expectation to draw
already been allocated subsidy. While it is obvious that this can not have expectation
recipients who violate the rules, lack of judicial
control does not allow even those who have not broken any rules to claim a
protection of its legitimate expectations to acquire property | || them was the decision of the competent state authority granted (§ 14 of the law on budgetary rules
). The decision to grant the subsidy had been
constituted the legitimate expectations of the recipient that he will
subsidies granted, and if they comply with all the rules, so he will be in
deadlines set under specified conditions granted
cash paid out. Changes nothing in the provisions of § 14 of the
Budgetary rules that the subsidy is no legal entitlement because
after the decision awarding the grants according to § 14 paragraph. 3
law on budgetary rules, it is part of the beneficiary of the || | enforceable claims. The decision to suspend the use of subsidy is then
intervention into the recipient's expectations that he would be part of that debt
52nd Even if the provider later concluded that there was no infringement
obligations of the beneficiary, and subsequently suspended funds paid
recipient, delay in disbursement of funds from a grant awarded
caused by the State can be a serious intrusion into property rights | || recipient, since it may cause additional financial costs, rising
or even frustrate the whole of the planned investment. Thus, as a result of the suspension of the use of subsidy
usually occurs intervention in the property by the recipient that he will
caused property damage. The absence of judicial review of the suspension
subsidies, the impossibility of a court decision that declared the illegality of the procedure
grantor, then, may also make it difficult or impossible
recipients recover the damage he
unjustified decision to suspend funding It was caused, thereby also
interference with his property rights.
53rd The Constitutional Court concludes that the suspension of payment of subsidy under §
14e law on budgetary rules is an infringement of the legitimate expectations of the beneficiary
on the acquisition of property, ie interference with the right to protection
property and property rights, enshrined in Art. 11 of the Charter and Art. 1
Protocol to the Convention. Therefore, this public authority intervention
as an infringement of the fundamental rights of the recipient must be in accordance with Art. 36 para. 2
second sentence of the Charter subject to judicial review.
Exclusion of judicial review laid down in the contested provisions is therefore unconstitutional.
54th The petitioner also expressed the view that apart from the immediate
interference in property rights grant recipient will be breached in many cases also
his right to engage in commercial and economic activity, protected by Article
. 26 of the Charter. The Constitutional Court finds with regard to its aforementioned
conclusions about the conflict under the provisions of Art. 1, paragraph. 1 of the Constitution and Art. 36
paragraph. 2 of the Charter in relation to Art. 11 of the Charter to be superfluous to deal
possibility of intervention, which may subsequently or in addition to damage to the legitimate expectations
to acquire the assets of suspension pumping subsidies cause
violation of the right to do business according to Art. 26 Charter.
55th That does not mean that the Constitutional Court was not aware that
business or other economic activity the grant recipient may be
pausing once granted subsidies impeded or restricted. And it is with regard to chaining
other interventions referred to by the petitioner
as the suspension of construction work, possibly their
conservation, which subsequently lead to their frustration and becoming more expensive.
However, for a finding of infringement of the right recipient to judicial protection under Article
. 36 para. 2 of the Charter is sufficient to conclude on the intervention caused the suspension
pumping subsidies into the ownership rights of the recipient.
Use of European Union law
56th When considering the issue of judicial review of the provision and payment
subsidies, often coming from the budget of the European Union can not disregard the
dimension of European Union law. Itself of subsidies
is governed by Council Regulation (EC) no. 1083/2006 of 11. 7. 2006
general provisions on the European Regional Development Fund,
European Social Fund and the Cohesion Fund,
Regulation of the European Parliament and Council Regulation (EC) no. 1080/2006 of 5. 7. 2006
European Fund for regional development, Commission Regulation (EC) no. 1828/2006 laying down
implementing rules to those Regulations. The Court of Justice of the European Union
already ruled that the abovementioned regulation no. 1083/2006, inlaid
in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, which
enshrines the right to an effective remedy before a court precludes that
decision rejecting a grant application has been excluded from the possibility
challenge it in a court of a Member State (case
European Union of 17. 9. 2014 in case C-562/12 against Liivimaa Lihaveis MTÜ
Eesti-Läti 2007-2013 programs Seirekomitee). According to the case law of the Court of Justice of the European Union
This means that Member States in applying the law
European Union's duty to ensure judicial review even acts of
A grant or a grant from the European Union budget.
The Court of Justice of the European Union, also in connection with that stresses that the requirement
judicial review of any decision by the national authority
regarded as a general principle of EU law.
57th The subject of regulation of European Union law and are protected against fraud and irregularities in the
grants from the European Union budget. According to Art. 325
paragraph. 1 of the Treaty on the Functioning of the European Union applies: "The Union and its Member States
fight against fraud and any other illegal activities affecting the financial interests of the Union
measures adopted pursuant to this Article
have a deterrent effect and provide the Member States and in bodies
offices and agencies of the Union effective protection. " Council Regulation no.
2988/1995 dated 18. 12. 1995 on the protection of the financial interests of the European Communities
down general rules relating to homogeneous checks and
administrative measures and penalties concerning irregularities - ie. Any
infringement of Community law, which has, or would
prejudicing the general budget of the European Communities or budgets managed by
- with regard to Community law, while
checks, administrative measures and penalties must be "effective, proportionate
and dissuasive "and" subject to Community law applicable procedures
checks, measures and penalties shall be governed by the law of the Member States
'58. Cited rules of European Union law with the ostensible aim of counter-defined
there irregularities in the utilization of EU funds
govern the institutional and procedural framework for achieving this in the form of checks
administrative measures and sanctions, both at the level of the Union, so
at the national level. The Provider (governing body) according to the above-mentioned rules
obliged dealing with subsidies
continually review and report any discrepancy through the European Office for the fight
Fraud Office (OLAF) of the European Commission.
Procedural regulation excluding judicial review impossible recipients to call to check against that
intervention, but it is also an obstacle to the unification process of the Member States
against irregularities in the spending of European subsidies. Within
judicial control would be for a preliminary ruling to the Court
European Union should take place to resolve the ambiguity, whether in individual cases
type or not it is an irregularity within the meaning of European
law, and so on integrating joint European action against
activities affecting the financial interests of the European Union.
59th The Constitutional Court has in its judgment in the case of the European Arrest Warrant
of 3. 5. 2006 sp. Nos. Pl. US 66/04 (N 93/41 SbNU 195;
434/2006 Coll .; paragraph 61) concluded that Article. 1. 2
Constitution in conjunction with the principle of cooperation laid down in Art. 10 of the Treaty
of the European communities (now the principle of sincere cooperation in Art. 4 of the Treaty on European Union
) follows a constitutional principle, which should be
domestic laws including the Constitution be interpreted in conformity with the principles
European integration and cooperation EU authorities and the authorities of the Member State
. So if there are several interpretations of the Constitution or the Charter
fundamental rights and freedoms, while only some of them lead to the attainment
obligation which the Czech Republic in connection with its membership
in the European Union, the interpretation must be selected
which supports the implementation of this commitment, and not an interpretation which precludes.
60th Constitutional Court to assess the content of European law but
already indicated recapitulation is evident that the introduction of judicial review
in the present case is not contrary to EU law, while just
his absence could be in conflict with
law of the Court or the European Union Charter of fundamental rights of the European Union.
Aforementioned conclusions of the Constitutional Court on the unconstitutionality of the judicial lockout suspending drawing
subsidies are therefore not in conflict with European Union law.
Contested legal arrangement could even be found to be problematic from the perspective of rights
European Union. However, the Constitutional Court is convinced that the petitioner
chose the correct procedure when first presented judged
issue to the Constitutional Court because it accedes general court to initiate proceedings leading to the removal
editing inconsistent with European Union law
instruments of constitutional review, there is no reason to not stop, respectively.
Forcing him before the proceedings before the Court of Justice of the European Union (cf..
Bobek, M. Birch, P. Komarek, J. national application of European Union
. Praha: CH Beck, 2011, p. 483 ). According to the Court of Justice of the European Union
(cf. Melki decisions and Abdel C-188/10 and C-189/10, ECR. ECR.
I-5667), the priority procedure to assess compliance with the constitutional order is not
contrary to EU law if not prevent the courts ever reach
Court for a preliminary ruling, to take the necessary precautions to protect
rights under EU law and inconsistent provisions
national rights may not be applied [see.
also the Constitutional Court file. Ref. II. US 1009-1008 of 8 1, 2009 (N 6/52 SbNU 57)].
61st Constitutional Court's decision on the unconstitutionality of the contested portion of § 14e
law on budgetary rules is therefore harmonic
with international commitments of the Czech Republic and the principle of sincere cooperation under
62nd The Constitutional Court found that under § 14e
law on budgetary rules as amended on 19. 2. 2015
uncontrolled and unlimited real reasoning provider sufficient to suspend the law on
not unlimited time payment of subsidies to which it was sufficient that only
came to believe that there has been a violation of her drawing.
Under such circumstances, the exclusion of judicial review impossible
protect the legitimate expectations of the beneficiary against possible arbitrariness provider.
Principle of legal certainty should be interpreted in conjunction with the prohibition of arbitrary
so discretion of state authorities has been limited
procedures to prevent the abuse of that discretion, with the best prevention
and subsequent protection against arbitrary in the process
public authorities access to the court that discretion
subjected to judicial review. With regard to the context of the entire statutory provision is
judicial review is the only protection against arbitrariness by the legislature allows
open range discretion of the provider.
Part of the contested provision, providing, in the context described above exclusion from
judicial review is therefore primarily in conflict with Art. 1. 1 of the Constitution, which guarantees
observance of the fundamental principles of substantive law,
namely the protection of legal certainty, the prohibition of arbitrary and access to court.
The suspension of payment of the grants according to § 14e law on budgetary rules
is an infringement of the legitimate expectations of the beneficiary to acquire
property, ie interference with the right to protection of property and property rights,
enshrined in Art. 11 of the Charter and Art. 1 of the Additional Protocol to the Convention, and therefore its
not judicial review under Art. 36 para. 2 of the Charter excluded.
63rd The Constitutional Court because of the above reasons, the petition, under Article
. 95 para. 2 of the Constitution granted the fact that with regard to Art. 89 para. 2 of the Constitution
public authorities are required to reflect the implications of the finding of unconstitutionality
in its decisions, thus solving specific
cases of § 14e par. 4 Act no. 218/2000 Coll., on budgetary
rules and amending certain related acts (budgetary rules
), as amended, effective to 19. 2. 2015, the words "and is excluded
its judicial review" to not apply.
Chairman of the Constitutional Court:
JUDr. Own hand
Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, took the decision of the plenum judges
Vladimir Kurka, Vladimir Sládeček and Radovan Suchanek.