An Unconstitutionality § 57 Para. 2 Of The Act. About Managing Taxes

Original Language Title: o vyslovení protiústavnosti § 57 odst. 2 zák. o správě daní

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=67301&nr=291~2F2008~20Sb.&ft=txt

291/2008 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided on 29. January 2008 in the composition of Stanislav package

Vlasta Formankova, Turgut Güttler, Pavel Holländer, Ivana Janů, Vladimir

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

Rychetský, Miloslav Výborný, Elisabeth Wagner and Michael on April

the design of the Supreme Administrative Court according to the article. 95 para. 2 of the Constitution of the United

States to declare the unconstitutionality of the provisions of § 57 para. 5 of law

No. 337/1992 Coll., on administration of taxes and fees, in the version prior to the amendments to the

made by law no 230/2006 Coll.



as follows:



I. the provisions of § 57 para. 5 the third sentence Act No. 337/1992 Coll., on administration of

taxes and fees, in the version prior to the amendments made by law No.

230/2006 Coll., was in breach of article. 1, art. 11 (1) 1, art. paragraph 36. 1 and

paragraph. 2, article. 37 para. 3 of the Charter of fundamental rights and freedoms and article. 6 (1).

1 and article. 13 to the Convention for the protection of human rights and fundamental freedoms.



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



Justification



(I).



The definition of things and a recap of the proposal



1. The Constitutional Court was dated 5th October 2006 served the Supreme Administrative

the Court to declare the unconstitutionality of ust. § 57 para. 5 of Act No. 337/1992

Coll., on administration of taxes and fees, in the version prior to the amendments made by

by law no 230/2006 Coll. (hereinafter referred to as ' the contested provisions ').



2. the applicant did so after in the context of its decision-making

activities in accordance with art. 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution") and § 48 para. 1 (b). and) Act No. 150/2002 Coll., the civil procedure

the Board, as amended by later regulations (hereinafter referred to as "the rules of court

the administrative "), came to the conclusion that the provisions of § 57 para. 5 of law No.

337/1992 Coll., on administration of taxes and fees, in the version prior to the amendments to the

made by law no 230/2006 Coll., to be in solving things sp.

Zn. 2 Afs 108/2005 used is in breach of article. 1, art. 36 and article. 37 para.

3 of the Charter of fundamental rights and freedoms ("the Charter").



3. In that case, SP. zn. 2 Afs 108/2005 is the highest administrative court

of the complainant's complaint of Cassation decided Ing. J. n. against the judgment

The regional court in Hradec Králové of 20.1.2005, SP. zn. 31 Ca

115/2004. That judgment was dismissed by his action against a decision

Tax Directorate in Hradec Králové 9.3.2004 no j.

6828/150/2003-AC, which was dismissed by proof that the appeal against the

the decision of the tax office in Pardubice of 20.8.2003, j.

149179/03/248940/2632. This decision was prompted to pay

tax liability than a guarantor pursuant to the provisions of § 57 para. 5 of law No.

337/1992 Coll., on administration of taxes and fees in the amount of $274 084.



4. The Supreme Administrative Court interrupted the proceedings in the case and submitted

The Constitutional Court to declare the unconstitutionality of the contested

provisions. At the outset of its proposal points out that the proposal to repeal

the provisions of § 57 para. 5 of Act No. 337/1992 Coll., on administration of taxes and

fees, as amended by the amendments made to the law before no 230/2006 Coll.

already been submitted to the Constitutional Court in the case conducted under the SP. zn. 7 Afs

116/2004. The procedure for this proposal, however, the resolution of the plenum of the Constitutional Court

the date of 11.7.2006 SP. zn. PL. ÚS 30/05 (not published) stopped with the link

the provisions of section 67 para. 1 Act No. 182/1993 Coll., as "Constitutional Court

in the assessment of the proposal found that the Parliament of the Czech Republic

adopted on 25 April. April 2006 law no 230/2006 Coll., amending Act

No. 89/1995 Coll., on State statistical service, as amended

regulations, and other related laws (hereinafter "law no 230/2006

SB. "). This Act has also been a change of Act No. 337/1992 Coll., on the

the administration of taxes and fees, in the wording of later regulations. The Act

set aside and the contested design provisions of § 57 para. 5 this Act (cf..

part five, article. V, paragraph 10, of law no 230/2006 Sb.) and edited by institution

liability in the provisions of § 57a in a significantly different manner from the contested-and

cancelled-the provisions of § 57 para. 5 of Act No. 337/1992 Coll. "the highest

the Administrative Court then points out that this decision of the constitutional

avoid the emergence of barriers to the court case decided, as this would

only in the case of a decision given in the form of the award. Further notes

the arguments put forward in support of its conclusion that the Constitutional Court was in

the former proposal and whether or not it is in the current draft entitled to assess the

the constitutionality of the contested provision, on the basis of direct application article. 95

paragraph. 2 of the Constitution.



5. Furthermore, the Supreme Administrative Court in the draft lists-with reference to the argument of

already used in the draft with the Constitutional Court under the SP. zn. Pl. ÚS

30/05-the merits, IE. the parties to the alleged unconstitutionality, the

the following.



6. the obligation of the guarantor to pay the tax arrears for the tax debtor,

represents a serious interference with his subjective rights. The question of the protection of

These rights, the Constitutional Court has already dealt with many times in its decisions and

According to its constant case-law must be prompted by a quoted

provisions subject to review by the competent ordinary court always in the mode of

administrative justice, since the refusal of judicial review should the participant

the administrative procedure without judicial protection, thereby violating the

his constitutionally guaranteed fundamental right pursuant to article 4(1). paragraph 36. 1 (a). 2

Of the Charter. Within the meaning of the opinions voiced by the Constitutional Court is mainly from

constitutionally the legal aspects and requirements associated with the protection of constitutionality

need to scale and the way the judicial control of administrative acts of coercion (note.

Red: sic) pay enough and significant attention, as well as

necessary to reject their judicial review to a sufficient degree

in a convincing way.



7. the law on the administration of taxes and fees in comparison with the circle of § 14

Act No. 71/1967 Coll., on administrative proceedings (administrative code), as amended by

later rules, limits, so that not all persons affected by the

on their rights and obligations are imposed or whose rights

in the proceedings, or whose rights may be an administrative decision

affect, are parties to the proceedings, and it can effectively defend their rights.

The law on the administration of taxes and fees it lists in section 7 of the persons involved in the

the proceedings, which are tax professionals, tax bodies and the third

of the person. While the rights and obligations of the tax authorities and tax entities can be

Besides the law, procedural status, and the rights of third parties in the procedure, the

which they enter mainly ex officio, often in the final stage of the proceedings, as

in the case of legal guarantor, are closer to the regulated. Some

a third person may be directly affected by e.g. in its ownership,

other coming direct interference with their rights only in the plane of the theories and

considerations (expert, witness, etc.), as they are not burdened by tax liability,

but they have exclusively the obligations of non-pecuniary nature.



8. the guarantor has within the meaning of § 57 para. 1 of the law on administration of taxes and fees in

Basically, the position of the tax debtor and prosecutes it tax liability under the

own material injury, while no other party such

the position of the law does not recognise. The only permission that is, however, under paragraph 1(a).

5 cited provisions of the guarantor's right to submit, within a limited

the scope of the appeal against the call for the payment of tax arrears in

stage, when it is no longer about the tax obligations of a final decision. Administrator

This is a tax guarantor as a ' person concerned in the management ", IE. that

It imposes obligations and confers very limited rights (the right to

notice of appeal stating the reasons exhaustively provided for) in the management of that with him

has commenced, in which he did not admit to any procedural status, in which it

has not acted, and whom to tax proceedings ex officio gained weight at the moment

failure to comply with tax obligations tax subject.



9. the guarantor does not participate in the assessment procedure, and only if the taxpayer

his tax obligation, the obligation to pay tax him

outstanding balance, while it cannot be excluded that there may be cases where the tax

the obligation of the taxpayer was established in violation of the law. Option

the guarantor's objection against this decision apply in administrative proceedings

and, by extension, in a review before the Court is, however, limited by the reasons

exhaustively laid down in the provisions of § 57 para. 5 the third sentence of the law on

the administration of taxes and fees, although this decision for him is based

the obligation to perform instead of the taxpayer.



10. Even if the guarantor has essentially the same duty as a taxpayer

pay the tax assessed the conditions for application of the law has an incomparably

more limited. The law, being made a substantive reasons, admits

differences in the rights of the taxpayer and the guarantor, and the fact that he has become

the guarantor, could not in any way affect, because the law so provides. Valid

legislation in relation to the guarantor completely leaves out the procedural arrangements for its

the position of the control in the assessment, as it does not allow participation in this

the proceedings, which begin to him is not known, and the first time it imposes obligations with

the minimum guarantee of the rights in the management of recovery.



11. Beyond the scope of the Supreme Administrative Court States that the new legislation

made by law no 230/2006 Coll., in essential ways, is not constitutionally


legally and in support of such a conclusion (arg arguments.

comparison with the contested provision).



II.



Recap the essential parts of the representation of a party to the proceedings



12. According to § 42 para. 4 and section 69 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended by later regulations (hereinafter referred to as the "law on the Constitutional Court

"), the Constitutional Court of the proposal from the Chamber of Deputies. On your

observations from day 4. 1. the President of the Chamber of deputies of the Parliament 2008

The Czech Republic-Ing. M. v. recounted the process of accepting of the Act No.

337/1992 Coll., pointed out on his amendment to law no 230/2006 Sb.

(which also summed up the adoption process), and expressed the opinion that the

the legislature has acted in both cases when discussing referred to

laws in conformity with the legal procedure and in the belief that adopted laws

are in accordance with the constitutional order and laws of the United States.

The President of the Chamber of Deputies agreed with the abandonment of the oral

the negotiations.



13. Pursuant to § 42 para. 4 and section 69 of the Act on the Constitutional Court sent the constitutional

the Court and the Czech Senate. In its observations of 3 November.

1.2008 the Chairman MUDr. Premysl Sobotka said the opinion

a decision to the applicant, that even the new legislation, which has been incorporated into the

the law on the administration of taxes and fees on the basis of law no 230/2006 Coll.,

not with the above problem sufficiently, in particular with regard to the

the position of the guarantor. a third person, and probably will be in the

the future of bringing similar problems as the previous adjustment. In theory,

the concept of control of constitutionality consists of logical unit, as it could not be otherwise,

than insist that the Constitutional Court, with regard to the abolition of the legal

legislation may be formally gifted with powers only legally cancel or modify

provision or regulation in his "last", it is understood as approved by

the text of the. In practice, however, can be inferred that the application of the provisions of § 66 and 67

the law on the Constitutional Court in connection with the interruption of the proceedings in the

meaning of article 87(1). 95 para. 2 of the Constitution, respectively. According to § 109 paragraph. 1 (b). (c))

Code of civil procedure, Act from time to time in its fulfilment of the

difficulties, but this is possible in many cases rather attributed to the rapidly

accepted changes to the rule of law. However, these circumstances, which cannot

the persons concerned more or less influence, would not come at their expense.



III.



The diction of the contested legislation



14. The provisions of § 57 para. 5 of Act No. 337/1992 Coll., on administration of taxes and

fees, as amended by the amendments made to the law before no 230/2006 Coll.

added: "the tax arrears are required to pay also the guarantors if they

the law imposes the obligation to guarantee and if they are to carry out the payment

obligations of the tax administrator. Against this challenge may be the guarantor

appeal. In the appeal, the guarantor can reply only to the fact that it is not

the guarantor or that liability has been applied in more than the law

specified range or that has already been paid. "



IV.



Assessment of the competence of the Constitutional Court to hear the application and

the conditions of the locus standi of the applicant



15. The Constitutional Court had to first answer the question of whether he is entitled

discuss the merits brought by the proposal, as the rapporteur nedomáhal

annulment of the contested provisions, but only finding its

unconstitutionality. Such a petit was a logical application implications

the fact that the Parliament of the Czech Republic adopted on 25 April. April 2006

law no 230/2006 Coll., amending Act No. 89/1995 Coll., on State

the statistics service, in wording of later regulations, and other related

laws (hereinafter "law no 230/2006 Coll.), which also has to change

Act No. 337/1992 Coll., on administration of taxes and fees, as amended

regulations. The Act set aside and the contested design provisions of § 57 para.

5 this Act (cf. part five, article. V, paragraph 10, of law no 230/2006

SB.) and edited by the institution of the liability in the provisions of § 57a) from parts of different

way from the contested-and cancelled-the provisions of § 57 para. 5 of law

No. 337/1992 Coll., as amended by the contested provision prior to the amendments made by

by law no 230/2006 Coll., however, was applied in a particular case, even

the procedure for cassation complaints will have to be the application of this provision

reviewed, and therefore the Supreme Administrative Court pursuant to art. 95 para.

2 of the Constitution to the Constitutional Court.



16. In this context, the Constitutional Court refers to the find SP. zn. Pl. ÚS

38/06 (find SP. zn. PL. ÚS 33/2000), where the issue raised

the question has been ratified by the legal opinion of the Constitutional Court is pursuant to art. 95 para. 2

The Constitution, the constitutionality of the contested provisions merits review,

even though it was already cancelled (changed), and under the condition that the addressee of the

the alleged reason of unconstitutionality is the public power and not the body

private law. Whereas, in the case in question is the addressee of the

tempered because of the unconstitutionality of the public authorities, in the context of

the legal opinion expressed in the cited case SP. zn. PL. ÚS 38/06

the conditions for the substance of the projednatelnost application. If

This is the earlier resolutions of the Constitutional Court, SP. zn. PL. ÚS 30/05,

The Constitutional Court ruled consensually with the Supreme Administrative Court concluded that with

regard to the ust. § 35 para. 1 of the law on the Constitutional Court does not constitute an obstacle to the

REI iudicatae.



17. proposal of the Supreme Administrative Court, as already mentioned above,

is related to its decision-making activities, and, therefore, is this Court authorized

by the applicant pursuant to article. 95 para. 2 of the Constitution; they are also filled with

the terms of the claimant's evidence for active control of inspection standards.



In the.



Content compliance of the contested statutory provisions with the constitutional order



18. the Supreme Administrative Court submitted the proposal attacked-from the perspective of the alleged

unconstitutionality-ust. § 57 para. 5 of Act No. 337/1992 Coll., on administration of

taxes and fees, in the version prior to the amendments made by law No.

230/2006 Coll., as a whole. The contested provision is structured into three

sentences containing three different legal standards, and their constitutionality is therefore

to be judged because of their content separately.



IN THE.)



19. The first sentence of the contested provisions lay down that "Tax arrears

are required to pay also the guarantors if they act liability

stores and if they are to fulfil such payment obligation by the tax

be asked. "



20. Of the Supreme Administrative Court's reasoning cannot be reliably inferred

What is the unconstitutionality of this part of the contested provisions seen.

In a sense, one can even question whether it is even in the design somehow

argued the unconstitutionality of the sentence the first aspect (as well as the second sentence)

the contested provisions and whether it is seen as only the unconstitutionality of the sentence

third, the contested provision (this follows from the content e.g., point VI. proposal).

In the proposal, however, is specifically the remedies challenged this provision as a whole,

While the Constitutional Court in its decision is bound by the Petite design

not his reasoning.



21 the Constitutional Court notes that legal standard laid down in the first sentence

the contested provision itself provides only that the tax arrears

are required to pay also the guarantors if they act liability

stores and if they are to fulfil such payment obligation by the tax

be asked, therefore, expresses the very essence of the Institute. Therefore, ust.

§ 57 para. 5 the first sentence of Act No. 337/1992 Coll., on administration of taxes and

fees, as amended by the amendments made to the law before no 230/2006 Coll.

unconstitutional is not. The result of the whole is merely a legal concept (which is

composed of a number of legal provisions), according to which a tax guarantor is not from

the beginning of the tax to the tax body management participant in proceedings

the same rights and possibilities of the procedural defense, as has the right tax

entity. Referred to the legal concept before the Constitutional Court by the applicant

challenged, and therefore, its protiústavností, the Constitutional Court could not

to deal with.



22. The same conclusion can be made in relation to the alleged unconstitutionality of the sentence

Second, the contested provisions "against this challenge may be the guarantor

appeal. ", as it is a legal standard dealing with the protection of the rights of

a tax guarantor in proceedings before administrative bodies, which is also a prerequisite for

for the event. protection before the administrative courts.



In B) 1)



23. In relation to the sentence of a third of the contested provision, according to which "in the appeal

the guarantor can reply only that the guarantor or surety is not that

It was claimed in more than the statutory range, or that have already

have been paid for ", this is in essence a different case. The Constitutional Court

(which is not bound when making its decision on the grounds of the proposal, which is due to take on

the importance given to the content of the preamble to the draft currently in the matter)

judged, above all the question of whether the standard dealing with the restrictive scope of the

the fact that the guarantor in the appeal may argue, is inconsistent with the

the constitutional order, namely with article. paragraph 36. 1 of the Charter, according to which

"everyone can claim a set procedure, their rights in the

an independent and impartial court and in the cases provided for in other

authority. "



24. Article 36 para. 1 of the Charter enshrines the right of everyone to seek

protection of his rights in the Court or other authority. Meaning and purpose of this

the provisions is determining the obligations of the State to provide protection of rights


each, as in the rule of law there can be situations in which the

the rightholder could not obtain his protection (to the Court or other authority).

It is generally from the fact that the State is there to their citizens,

But even visitors on its territory, to protect, to provide

guarantees that their rights will be protected.



25. paragraph 4 of the article. 36 of the Charter (which basically refers to (1) of article 4(1).

36 of the Charter of textací "in") refers to the law that

modifies the "conditions and details" in relationship to all the previous

paragraphs in the article. 36 of the Charter, however, such a law, issued on the basis of the

the constitutional mandate is the provision of article. 36 of the Charter, bound, since its content

they cannot therefore derogate (is so irrelevant argumentation, that the key

consideration for the constitutional conformity of such law is on the rise. the rate of refusal of

These constitutional rights by the legislature, etc., as argued for example.

The Supreme Administrative Court in a judgment SP. zn. 2 Afs 51/2004: "... the constitutional

kautely resulting from the article. paragraph 36. 1 of the Charter of fundamental rights and freedoms and

from the article. 1 (1). the Constitution, however, does not allow them to tax the guarantor was

in so extensive ... denied the right to an effective defence of its

subjective public rights... "). The sense and purpose of the "ordinary"

law pursuant to art. paragraph 36. 4 of the Charter is merely lay down the conditions and

the details of implementation to their content (already) in the ústavodárcem article. 36

Of the Charter enshrined rights, therefore, the conditions and details of the purely procedural

nature (not "materiálněprávní").



26. If any pursuant to art. paragraph 36. 1 of the Charter, the right to seek the protection of the

their rights in court or other authority, with the conditions and rules

the realization of this right are determined by law, then such law, issued on

the basis of the constitutional mandate, cannot claim any claim of protection

their rights in court or other authority in a situation completely negate, and

Thus, constitutionally guaranteed fundamental right, even if only in certain

cases, deny it. Article 36 para. 1 of the Charter, each constitutionally

guaranteed option to seek protection of their rights in court or other

authority in all situations the violation (there is no constitutional

restrictions). In other words, no person by law cannot be completely

excluded from the protection of their right to claim, albeit only in the

a particular case because its right pursuant to art. paragraph 36. 1 of the Charter, it would be

voided. The opposite interpretation would also be represented, that the entrenchment of the rights of each

recourse to judicial and other authorities for protection of their rights

ústavodárcem, that is, with the highest legal force, would essentially lose

sense, as it might be for the situation of violation of rights

regarded as the will of the "ordinary", a child of the legislature.



27. as regards the case under consideration, in the first place it is to be noted that

the law on the administration of taxes and fees in the text (i.e., as amended by the

amendments made by law no 230/2006 Sb.) provides primary

the obligation to pay the tax to the tax body, which is also being delivered in

the payment Bill, and subsequently lays down the obligation to reimburse

the guarantor. Tax arrears are so liable to pay, in addition to themselves

the taxpayer-debtors-as well as guarantors, if they act liability

stores, where they are to perform the payment obligations by the tax

asked. It is a special legal liability edited Institute

public method of regulation, to whose implementation is provided that

specific person evidenced by legal guarantor needed only

challenges from the side of tax authorities in relation to a person who is the legal

the guarantor. A tax guarantor, however, is not a participant in the tax proceedings from

the beginning, with the same rights and possibilities of the procedural defense, what has

the tax entity (the provisions of article 7, paragraph 2, of the law on administration of taxes and fees

It is even included among the "third person" in the same position as on the rise.

a witness, expert, etc.). The guarantor is not delivered the bill payment or other

the decision, which was the tax prescribed for direct payment.

Only delivery of "surety challenges" from the contested provisions begins

for a tax guarantor of fiscal control, while at the same time, however, its

delivery reaching into the status of the entity, which is stored

payment obligation. "Suretyship challenge" is, therefore, a decision which is

transferred the obligation to pay the tax arrears of the guarantor is

a decision which has substantive implications, since it no longer specifies, for sure

that it has satisfied all the legal prerequisites for the right person

the guarantor on the place of the original debtor and bear witness to her position

the taxpayer with all the consequences, which means that it can be debt and

to enforce. On the actual content referred to challenge (the decision in the material

the meaning of) does not change anything nor its legislature inaccurately chosen the designation,

i.e.. "the challenge" (and not, e.g.,. "the decision").



28. In a similar manner, indeed, argues the Constitutional Court in its

the case-law of the nature of the Customs ručitelství, which is applicable to

the position of the guarantor in tax proceedings. For example, the Constitutional Court. the sp in the award.

Zn. II. CS 445/2000 (a collection of decisions, volume 23, finding no 136)

the Court held that "the challenge made by the customs authority within the meaning of the provisions of § 73

paragraph. 1 of Act No. 337/1992 Coll., specified to the debtor failed to pay

the tariff payable in arrears by the statutory deadline and this calls for

payment of the arrears within a substitution, the first procedural step

the authority carrying out the recovery of the outstanding balance, and therefore has the procedural

nature. So far, the findings of the Tribunal can be completely agree. The Administrative Court then

from the same purpose for which it is facing the challenge of the guarantor, and infers the same

procedural in nature and this prompts the designated guarantor. That conclusion, however, the Court

sidesteps mandatory provisions of § 32 para. 1 of Act No. 337/1992 Coll. As

This can be in the tax provisions and having regard to the provisions of § 320 of the customs

law and customs impose obligations or confer rights only

by decision. Unlike the debtor, which previously was the decision

the customs authority the obligation to pay the debt of established, however, in relation to the

guarantor such an obligation by the decision of the customs authority prior to the

the challenges have not been established. The Declaration of the guarantor in the guarantee instrument,

Although its adoption was confirmed in the form of the decision of the customs authority,

the nature of the decision, which imposes an obligation within the meaning of the provisions of § 32

from the top of the Act, cannot have, since the obligation to comply with ručitelova

the debt of the debtor — evidenced by the very nature of the liability of the Institute,

updates only when the debtor himself your debt on time and properly

fails to meet, but to challenge the specified in the second subparagraph, this finally understands that

the debtor, for the fulfillment of the obligations of the duty to pay a guarantee, your assumed the

a specific amount of debt has not fulfilled. Yet the challenge is so designated

guarantor-indeed, it suggests the content of the call-

the obligation to pay the outstanding balance is stored within the specified period, in

a specific amount per debtor who himself has not paid within a specified period.

Before this challenge, despite its designation, can be considered as

the decision, issued within the meaning of the provisions of § 32 para. 1 of Act No. 337/1992

Coll., which thus becomes, in proportion to the guarantor for the recovery of arrears

enforcement, and for that reason it should be considered as

the material nature of the decision. "



29. only delivery of "surety challenges" setting out to reimburse

Therefore, the tax obligation to the guarantor the guarantor for tax begins to tax

the proceedings and until this time, the guarantor shall effectively exercise their procedural

rights, and to protect their real rights.



30. However, as regards the own contents of these rights, the key is that

the contested provisions in a sentence the third limits the scope of the facts,

the guarantor can reply in appeal, and that their exhaustive;

the guarantor may appeal against the "escrow challenge" reply only

"the fact that it is not the guarantor or that liability has been applied in a larger

than the statutory range, or that have already been paid. "



31. Such restrictions on does not change nor in administrative and judicial practice often

applied a broad interpretation of these facts, which allows them

include some of the circumstances from the literal wording of the nedovoditelné; even when the

applicability of the expansion interpretation of fact, still remains a limitation in

appeal applicable opposition. The opposite interpretation would not be accepted or

the application of constitutional rules of conforming interpretation (in the case that would be

that derive the unconstitutionality of the cited restrictions on the boards of the opposition), for

as is apparent from the case-law of the Constitutional Court (as well as technical teachings)

-This rule is applicable to the situation of double (or vícerého)

a possible interpretation of the law (otherwise there would be logically there was no

the interpretation of the law, but about the creation of the law and jurisdiction of the Constitutional Court the derogatory

in General, would have been redundant if every law it was possible to "unload"

constitutionally conformally). In the case under consideration, naturally, cannot be inferred from the

the fact that the legislature has restricted the range of applicable substantive objections

the three expressly referred to, the conclusion, i.e. in kontrapozici. that, in the

really no limit to the possible transfer. Then they would use a positive

the enumeration by the legislator to lose any reasonable sense. On the opinion of the


limited material scope of the facts in the appeal may be the guarantor

reply, after all, is the consistent practice of the administrative authorities, administrative courts

(see also the observations of the Supreme Administrative Court in the submitted design)

as well as the Constitutional Court.



32. A necessary logical implications is also identical restrictions

scope applicable to objections in the proceedings before the administrative court.

The administrative court could not be the decision of the administrative authority in the

refusal to deal with the substantive objections under the cited nepodřaditelnými

statutory provisions challenged, as would the reverse procedure of the administrative authority

contrary to the legal imperative, and, moreover, to be replaced by material

review these objections by the administrative court. Indeed, testifies about it

and the practice of the administrative courts (including the Supreme Administrative Court) and even in the

the design of the case is the highest administrative Court argued as follows

("The guarantor against this decision within

administrative proceedings and, by extension, in a review before the Court is, however,

limited to the reasons exhaustively laid down in the provisions of § 57 para. 5

the last sentence of the law on the administration of taxes and fees... ").



33. Not so than inferred that the legislature in the contested provisions of the sentence

the third annul the right of a guarantor to seek protection of his rights in court or

another authority in all cases with the exception of the three explicitly referred to, and

Thus, constitutionally guaranteed fundamental right in these cases, denied. In

the case of tax guarantors who would like to seek protection of their

the law, arguing that it violated other than that would have been imposed

the obligation to pay the tax arrears, although not the guarantor, surety

It was claimed in more than the statutory range, or has already been

paid, so there is the procedure of the legislature to eliminate this category

subjects of the right to seek protection of their rights in court or other

authority. The guarantor cannot according to the provisions. § 57 para. 5 the third sentence of the law on

the administration of taxes and fees in the text of the reply, for example, the fact

affecting the nature and amount of its tax liability and hence cannot

oppose-as rightly suggests the Supreme Administrative Court in this proposal

-that tax should not be established (the tax debtor) at all, should be

fixed another person, was established in the wrong amount, etc. The intention of

(unconstitutional) the legislature had obviously been such limitations of the boards of

oppose "an escrow challenge" to exclude the ruling on appeal

pursuant to § 57 para. 5 the third sentence of the law on administration of taxes and fees in

the former wording was in relation to a tax guarantor directly supplied following "tax

the investigative phase of the proceedings ", which had already taken place, and to do so in essence

informally took place twice.



34. The Constitutional Court remains, therefore, than to state that such a procedure

the legislature is nesouladný with the constitutional order. The provisions of § 57 para. 5

the third sentence of the law on administration of taxes and fees in the former text is in

contrary to the article. paragraph 36. 1 of the Charter.



35. that finding is especially true in situations where the

the guarantor is seeking an appeal against the "escrow challenge" not just protection

"ordinary" law, but the basic law, the right to the peaceful enjoyment

assets (which is subsumovatelné under article 11, paragraph 1, of the Charter-to

CF.. up to the present. find SP. zn. III. TC 120/96, ECR, volume 6,

finding no. 92). The obligation to pay tax arrears constitutes

the realm of property guarantor, as it depletes the amount of its assets, IE.

the amount you will be required to pay. Tax liability (or the

tax collection) is considered to be interference with the right to the peaceful enjoyment

assets (cf. Article 1, paragraph 1, first sentence of Protocol No 1 to the Convention:

"Any natural or legal person is entitled to the peaceful enjoyment of their

asset. ") and in case law European Court of human rights (cf..

up to the present. judgment of 9.11.1999 Starling in the matter against the Czech Republic) and

means as well as infringement of the fundamental rights of the guarantor peacefully enjoy property

According to the article. 11 (1) 1 of the Charter.



In B) 2)



36. The provisions of § 57 para. 5 the third sentence of the law on administration of taxes and fees

in the text of the Constitutional Court considers unconstitutional even in the context of

Article 13 of the Convention for the protection of human rights and fundamental freedoms (hereinafter referred to as

as "the Convention"), according to which "everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

National Authority, even if the infringement committed by persons in the performance of

official duties. "



37. the obligation to pay the tax (tax arrears) is qualified in the

a case of conflict with the article. 1 of Protocol No. 1 to the Convention, and

Therefore, in accordance with article 7(2). 13 of the Convention shall have the right to be

violated, thus a tax guarantor, an effective remedy before the

the national authority.



38. The rule of law, however, with regard to the contested provision of the third sentence

does not have an effective remedy in relation to the infringement of the right

the tax of the guarantor on the peaceful use of property, as through

the appeal against the "escrow call" can be factually assess only the contents of the

the allegation of violations of the rights of the guarantor that he was obliged to

to pay the tax arrears, although it is not the guarantor, surety was

applied on a larger scale than the statutory or has already been

paid, and so can be adequately remedied only such infringement

a tax guarantor pursuant to art. 1 of Protocol No. 1 to the Convention. In other words,

through the Institute's appeal under the ust. § 57 para. 5 the third sentence

the law on the administration of taxes and fees in the former wording cannot be achieved

effective redress violations of the rights of all situations of the guarantor on the peaceful use of

property, and therefore, such an instrument cannot be considered "effective" in the

meaning of article 87(1). 13 of the Convention, be held that the contested

the provisions of the third sentence is also in conflict with the cited article of the Convention.



In B) 3)



39. the Constitutional Court also considered that the contested provision of the third sentence is in

contrary to the article. paragraph 36. 2 of the Charter, according to which "who claimed he was on

their rights is truncated by a decision of a public authority, you may

apply to the Court to review the legality of such a decision,

unless the law provides otherwise. From the jurisdiction of the Court, however, may not be excluded

review of decisions concerning fundamental rights and freedoms referred to in

Of the Charter. "



40. The provisions of article. paragraph 36. 2 of the Charter adopted by the General Court principle

possibility to review administrative decisions, which means that a judicial

subject to all of the administrative decision, if the law is of such

does not exclude the possibility; the aim is to guarantee more effectively the legality

the activities of the public administration (than on the basis of the principle of nominal, and

Thus a narrow judicial review). Ústavodárce here reflect

the necessity for the Executive-control rules for that, even if it

authoritatively to intervene in the legal realm of the natural and legal persons,

lose the elements of independence, etc. -an independent judicial power. This is

Therefore, the basically subjective public rights protection of each

(provided by the independent judicial power), i.e., protection against

(illegal) by the intervention of the public administration, which is also different from the previous

the general paragraph of the article. 36 of the Charter, which guarantees to everyone the right to seek

the protection of other rights than public subjective rights, and it is not

so it only by the intervention of a public authority, but also

natural or legal persons.



41. Although ústavodárce second in the sentence of the cited provision delegates to the

the legislature admit of exceptions to the possibility to review administrative decisions

by the Court, such a constitutional mandate is limited in the fact that from the review

jurisdiction of the Court should not be excluded decisions relating to fundamental

the rights and freedoms guaranteed by the Charter. Ústavodárce when it

reflect the different relevance of fundamental rights and freedoms and the "ordinary"

rights and freedoms; those important rights of their different

the nature of the logically higher protection.



42. In the present case, as has been argued above, the decision of the

the obligation to pay tax arrears (i.e. in the case of an escrow

challenges "and the decision on the appeal against it) refers to the fundamental rights of the guarantor

(the right to the peaceful enjoyment estate); referred to a legal exception to the rule here

Therefore, ústavodárcem is not allowed.



43. The conclusions of the article. paragraph 36. 1 (a). 4 of the Charter apply in relation to the

article. paragraph 36. 2 of the Charter, i.e. identically. the law establishing the "conditions and

the rules "pursuant to art. paragraph 36. 4 of the Charter cannot be from the content of the article. paragraph 36. 2

Of the Charter, may derogate. Therefore each pursuant to art. paragraph 36. 2 of the Charter right to

judicial review of decisions of public authorities relating to the

fundamental rights and freedoms, and the terms and conditions of implementation of this

the rights provided by law, then such law, issued on the basis of the constitutional

mandate, cannot claim any listed, even if i only in certain

cases, completely negate and thus constitutionally guaranteed fundamental right in

These situations deny. Article 36 para. 2 of the Charter is not a law

no content restrictions allowed the right to judicial review of the

decisions concerning fundamental rights and freedoms.



44. The logical consequence-as has been argued above-also the limited


the substantive scope of the fact that the guarantor can reply in the administrative

the procedure under the contested provisions of the third sentence, the same restrictions

applicable of the opposition before the administrative court.



45. it cannot be so than conclude that the contested provision, connotative and

limit scope of objections before the Administrative Court, consistently speaking

-also in breach of article 36 para. 2 of the Charter. The legislature in ust. § 57 para.

5 the third sentence of the law on administration of taxes and fees in the former text of the overturned

the right of a guarantor to a judicial decision relating to its přezkoumatelnost

fundamental rights in all situations, with the exception of three express

and thus constitutionally guaranteed fundamental right in these cases, denied. U

tax guarantors who would be seeking legal redress in the event that

their fundamental right has been violated differently than they would have been saved

the obligation to pay the tax arrears, although not the guarantor, surety

It was claimed in more than the statutory range, or has already been

paid, so there is the procedure of the legislature to eliminate this category

the subjects of the rights pursuant to art. paragraph 36. 2 of the Charter.



46. In a similar direction is also ust. § 57 para. 5 the third sentence of the law on

the administration of taxes and fees in the text of article 46(2). 6 (1). 1

Of the Convention, since there is no requirement that anyone whose civil rights

or obligations, must be guaranteed the right to access to court.



In B) 4)



47. the Constitutional Court also judged that the contested provision is not in the

contrary to the constitutional principle of equality.



The constitutional principle of equality embodied in the article. 1 of the Charter, according to which people are

free and equal in dignity and rights, and finance in a complementary expressed

Article 3 of the Charter, as the principle of non-discrimination in the allocated

fundamental rights, interprets the Constitutional Court in its case law of

dual-perspective [e.g. findings SP. zn. PL. ÚS 16/93 (collection of decisions,

Volume 1, finding no 25, declared under no. 131/1994 Coll.), SP. zn. Pl. ÚS

36/93 (collection, volume 1, decision finding no 24, promulgated under no.

132/1994 Coll.), SP. zn. PL. ÚS 5/95 (ECR, volume 4, find

# 74, under no 6/1996 Coll.), SP. zn. PL. ÚS 9/95 (collection

the decision, volume 5, finding no 16, declared under # 107/1996 Coll.) , sp.

Zn. PL. ÚS 33/96 (collection, volume 8, decision finding no 67, announced

under Act No. 185/1997 Coll.), pl. 9/99 and others (a collection of decisions, volume 16,

find no 135, promulgated under Act No. 292/1999 Coll.)]. The first is given by the requirement

the exclusion of arbitrariness in the procedure of the legislature when the distinction between groups of subjects

and their rights, the second requirement of constitutional eligibility

aspects of the differentiation, i.e.. the inadmissibility of prejudice to one of the fundamental

rights and freedoms and the rights bodies odlišováním by the legislature.



48. Delivery calls for the payment of tax arrears of guarantor

the guarantor getting into the same position as a tax debtor, for whose

tax arrears shall be liable. His outstanding tax obligation arises

underpayment of the tax debtor to the extent of its liability to pay, i.e.

identical obligation as a tax debtor, even with the possibility of disability

its property tax foreclosures. You can claim, as reported by the highest

Administrative Court submitted that the guarantor has a design within the meaning of the provisions. § 57 para.

1 of the law on administration of taxes and fees, in essence, the position of the tax

of the debtor. On the other hand-as opposed to the tax debtor who was

up to the present. already a participant in the assessment procedure in which could fully protect

their rights, assert any objections-the contested provision allows

the guarantor's rights protection only in a very limited material scope

by establishing a positive enumeration in the appeal against the "escrow challenge"

applicable opposition.



49. The principle of equality, however, given that if the guarantor should have

the same duty as the debtor-IE. the obligation to pay tax

arrears, thus it reduces the property sphere as well as for the borrower

payment of taxes-you cannot find any reason that would be eligible

justify inequality in access to the tax debtor and the guarantor, as

is described from the top (have vastly different quality

resources to defend the same obligations-scope of the applicable

-opposition tax guarantor against the decision on tax obligations in the session

to his person is factually quite limited). The Constitutional Court therefore concluded

the contested provision, in effect, raises an unjustified

the inequality between the entities, which is imposed tax. From

Although it does not postulátu the equality requirement, the general equality of each with

each, however, it follows from the requirement that the law does not specifically favour for no reason

nor neznevýhodňovalo one before others. In the present case it is common ground

that the requirement to provide the same rights under the same conditions without

unjustified differences in the contested provisions are not respected, as

the legislature without acceptable reasons in constitutional plane significantly

put the bodies in the capacity of a tax guarantor.



50. While the Institute does not Guarantee that existed only in

tax proceedings, but is on the contrary to the General Institute of the entire legal order,

which is detailed elaborated mainly theory and the case-law of the private

law, whose roots go back deep into the past years and are

steeped in tradition, římskoprávní uchopenou and the different directions

and schools during the reception of Roman law. The guarantee does not have origin in the

financial law and not at all in Czech tax regulations (cf. for example.

the judgment of the Supreme Administrative Court, SP. zn. 1 Afs 86/2004). One of the

the basic principles of the private Institute of the guarantee is that the guarantor may oppose

creditor all of the objections against the debtor to the creditor should

(section 548, paragraph 2, of Act No. 40/1964 Coll., civil code). In this sense,

the Constitutional Court also argued in its top-cited finding SP. zn. II.

CS 445/2000 (see above), when he talked about the "nature of the Institute's liability" (in the

public liability), as well as in finding SP. zn. I. ÚS 429/2001

(A collection of decisions, volume 34, finding no 134): "Public mode

commitments in respect of liability for duty cannot completely eliminate the General principles

obligačněprávních relationships ... After all, it is to be noted that in the

the modern legal concept is no longer the boundaries between the public and the law

private understood as sharp as in the past, so private

elements can be often be traced even in a legal relationship, in principle, public

and vice versa. "The Constitutional Court Further stated in the award SP. zn. I. ÚS 643/06

(not yet published in the ECR, nepublikován in electronic form see

http://nalus.usoud.cz): "from an internal souladnosti and nerozpornosti

the rule of law implies a requirement that the same legal Institute (liability)

It meant the same thing, no matter in what area of law is

applied. " Similar principles of Hirschfeld's Supreme Administrative Court. in

judgment SP. zn. 2 Afs 81/2004, in which he stated that "the rule of law, based

on the principles of unity of rationality and internal content control, with

inevitably the same imperative on a comparable legal preview

institutes, although modified in different laws or even

sectors. " In the judgment in SP. zn. 5 Afs 138/2004 Supreme Administrative Court

the Court held that "cannot accept the interpretation according to which between public

and the private limited liability company there is a substantial difference; Moreover, it is apparent

decision of the enlarged Board of the Supreme Administrative Court (1 Afs

86/2004, purr. www. nssoud. CZ). "If in civil law, where

applies the liability of contracting, there is no restriction applicable

objections can be inferred by a guarantor, the logical argument and maiori ad minus

all the more so pronounced that the restrictions applicable to the opposition does not have the

place in relation to legal liability.



51. the Constitutional Court notes that, if the contested provisions of the sentence

the third bases unconstitutional inequality, is also in breach of article. 1 and article.

37 para. 3 of the Charter.



Vi.



52. The Constitutional Court of the above reasons, the Court concluded, according to which the

the provisions of § 57 para. 5 the third sentence Act No. 337/1992 Coll., on administration of

taxes and fees, in the version prior to the amendments made by law No.

230/2006 Coll. was in breach of article. 1, art. 11 (1) 1, art. paragraph 36. 1 and

paragraph. 2, article. 37 para. 3 of the Charter, article. 6 (1). 1 and article. 13 of the Convention,

the design of the Supreme Administrative Court pursuant to art. 95 para. 2 of the Constitution, in this

part of the grant. With regard to the article. 89 para. 2 of the Constitution, are the consequences of

identified the constitutional public authorities are obliged to incorporate into their

decision-making practice, i.e. in solving concrete cases cited

the provisions do not apply.



The provisions of § 57 para. 5 the first sentence and the second Act No. 337/1992 Coll., on the

the administration of taxes and fees, in the version prior to the amendments made by law No.

230/2006 Coll., non-compliance with the constitutional order, the Constitutional Court did not find, and in

to this extent, therefore, rejected the proposal.



The President of the Constitutional Court:



JUDr. Rychetský in r.