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.
