In The Matter Of The Application For Revocation Of Options. The Provisions Of Act No. 309/2006 Coll.

Original Language Title: ve věci návrhu na zrušení někt. ustanovení zákona č. 311/2006 Sb.

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=82327&nr=130~2F2014~20Sb.&ft=txt

130/2014 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled under SP. zn. PL. ÚS 44/13 of 13 October. may 2014 in

the plenary consisting of the President of the Court, Pavel Rychetského and Stanislav

Bumpkin (reporter judge), Louis David, Jan Filip, Vlasta

Formánkové, Ivana Janů, Vladimir Crust, Jan Musil, Vladimir

Sládečka, Radovan Suchánka, Catherine Šimáčkové, Milady Tomková, George

Zemánek, and Michaela Židlické on the proposal for a group of 18 Senators Senate

Parliament of the Czech Republic for annulment of part of the provisions of § 6i para. 1 and

the provisions of § 6i para. 2 and section 6j of the Act No. 311/2006 Coll., on fuel

masses and gas stations of fuel and amending certain

related laws (law on motor fuel), as amended by Act No.

234/2013 Coll., with the participation of the Chamber of deputies of the Parliament of the Czech Republic

and Senate of the Parliament of the Czech Republic as the parties and Governments and

Ombudsman as interveners, as follows:



Part I paragraph 6i para. 1 of law No 311/2006 Coll., on fuel

masses and gas stations of fuel and amending certain

related laws (law on motor fuel), as amended by Act No.

234/2013 Coll., amending Act No. 311/2006 Coll., on motor fuel

and gas stations of fuel and amending certain related

laws (law on motor fuel), as amended, and

Act No. 455/1991 Coll., on trades (Trade Act),

as amended, which sounds "-, and the composition of the amount)

the amount of 20 000 000 Czk to the special account of the Customs Office, with the deposit in

This amount must be on this account at all times the Distributor's registration

fuel, or (b)) a bank guarantee, which was adopted by the Office to

ensure the arrears totalling to € 20 000 000, which are

registered with the authorities of the customs administration of the Czech Republic or other administrators

taxes to the eighty-fourth day from the date of cancellation or termination of registration

fuel distributor ", and the provisions of § 6i para. 2 of this Act,

repeals the expiration of 30 June. from 1 June 2015.



II. In the rest of the proposal.



Justification



(I).



Recap of the proposal



1. The Constitutional Court was on 20. September 2013 served 18 group

Senators Senate of the Parliament of the Czech Republic (hereinafter referred to as "the applicant"), on

cancellation of part of the provisions of § 6i para. 1 of law No 234/2013 Coll., which

amended Act No. 311/2006 Coll., on motor fuel and petrol stations

fuel and amending some related laws (Act on

motor fuel), as amended, and Act No 455/1991

Coll., on trades (Trade Act), as amended by

amended. Under the proposal, the applicant sought the award

with the statement reads as follows: "in paragraph 6i para. 1 (b). and (b).) b) of law No.

234/2013 Coll. deleted the numeral "20 000 000.



2. by submitting dated 2 July 2002. January 1, 2013, but delivered to the Constitutional Court

January 6. 1 January 2014, the appellant changed the petit so that it no longer sought the

concludes with the statement reads as follows: "part is hereby repealed the provisions of § 6i

paragraph. 1 of law No 311/2006 Coll., on motor fuel and petrol

fuel stations and amending certain related laws

(law on motor fuel), as amended by Act No. 234/2013 Coll., which

amended Act No. 311/2006 Coll., on motor fuel and petrol stations

fuel and amending some related laws (Act on

motor fuel), as amended, and Act No 455/1991

Coll., on trades (Trade Act), as amended by

amended to read as follows,-a), and the provision of a sum equal to 20

000 000 Czk to the special account of the Customs Office, with the bail in this amount

must be on this account at all times the fuel distributor registration

or (b)) a bank guarantee, which was adopted by the Office to ensure

arrears in total amount of Czk 20 000 000 to that are recorded in the

authorities of the customs administration of the Czech Republic or other tax administrators to

Eighty-fourth day from the date of cancellation or termination of the Distributor's registration

fuel ' and the provisions of § 6 (1). 2 (right: 6i. § (2)) and

the provision of section 6j of this law. "



3. the appellant in the extensive administration above all quoted from the explanatory memorandum to the

Act No. 234/2013 Coll., from the speeches of Deputy Michael Babak when

discussion of the Bill in the Chamber of deputies of the Czech Parliament

Republic on 7 December. may 2013 and Finance Minister Miroslav Kalousek day

May 15, 2013, from a letter to Vice-President of the Office for the protection of

competition from 19 June. December 2012 no j.

CZECH OPC-586/2012/KD-23987/2012/850/MBu, from the correspondence between the President of the

the Economic Committee and the agricultural Committee of the Chamber of Deputies

Parliament of the Czech Republic, the Presidents of political groups of the parliamentary

party, first Deputy Minister of finance and Deputy Minister of industry

and trade, of which dovozoval that "a commendable effort to minimize

tax evasion in the field of the application of value added tax no longer suffers from the fact that

petitioners, and then all the legislative process with discussion and

approval of the draft amendment to the law is not supported by the specific

verifikovatelnými empirical data-". The appellant pointed out further

mainly on the contradiction of the contested legislation, with art. 26 paragraph 2. 1 and 2 of the Charter of

fundamental rights and freedoms ("the Charter"), uváděje, inter alia, that the

"the nationwide use of the bonding facility of EUR 20 million. CZK for the distributors of fuel

materials even after the Chamber of Deputies approved the proposal to amend the text,

It was not, and could not be seen as a uniquely favorable action on the

business distributors of fuel ". The appellant finally dovozoval,

that the challenged legislation does not stand up to the test of proportionality and

the determination of the amount of Eur 20 000 000 single deposit is a manifestation of arbitrariness, which

may have for part of the entrepreneurs in the field of fuel and petrol

the effect of the winding-up of the stations (called a strangling effect).



II.



The progress of the proceedings and the expression of the parties ' recap



4. in accordance with section 69 of Act No. 182/1993 Coll., on the Constitutional Court, as amended by

amended, (hereinafter referred to as the "law on the Constitutional Court") called on the Constitutional

the court proceedings-Chamber of deputies of the Parliament of the United Kingdom

(hereinafter referred to as "Chamber of Deputies") and the Senate of the Parliament of the Czech Republic

(hereinafter referred to as the "Senate"), as well as the minor parties-the Government and the

the Ombudsman to comment on the proposal.



5. The Chamber of deputies by its President Jan Hamáček

She described the course of the legislative process, which resulted in the adoption of the law

No 234/2013 Coll., that "the provision was adopted after duly

completion of the legislative process, and that the legislature has acted in

the belief that this provision is in accordance with the Constitution and our legal

regulations '. In conclusion, stated that it is up to the Constitutional Court to examine the constitutionality of the

of the provision and the relevant decision issued.



6. The Senate through its President Milan Štěcha described the progress of the

discussion of the Bill in the Senate and said that, in the context of the discussions were

comprehensively discussed circumstances in favor of approval of the proposal

law, but echoed the views of the present amendments to the law criticize.

According to stenozáznamu then in the comments quoted from the exposition of the individual

chatters. The Senate concluded that "is fully on the Constitutional Court,

to assess and definitively decided whether the proposal to repeal section

the impugned provisions of the Act in the context of the constitutional order of the Czech

the Republic will stand ".



7. the Government, through its President George Rusnoka said,

decided to join the proceedings as an intervener. In its observations

then stated that the Institute of deposit is one of the measures, through

which amendment to the Act on motor fuel lead to restrictions

black market fuel in the Czech Republic. The reason for the introduction of

bail was to ensure Customs Office and other administrators the option to tax

use the security deposit to pay any arrears on sanctions and other

cash transactions related to the activities of the fuel distributor

on a weight basis. The effect of the amendment should be a significant reduction of tax evasion in the given

segment of the market. The Government also described the "big criminal attack", which was

exposed to fuel market since the 1990s. years 20. century, as well as

"non-standard event on the fuel market", which were

take place in the period between the validity and effect of the amendment, that is, from 2. August

by 30 June 2013. September 2013. The Government has responded to the allegation of the plaintiff on the

vagueness data referred to the Ministry of finance and Ministry of industry

and trade, on the grounds that it is in these ministries are these data

only available at the same time, and they objected to the applicant, that the proposal does not contain

No information that would substantiate a strangling effect. The Government pointed to the

the remedies in the form of obscure nature before you change it. It stated that "the application

Institute of rdousícího effect in the meaning of existing case-law of the constitutional

the Court is conceptually excluded ". The Government has presented its opinion on the

the individual steps of the test of proportionality. According to the Government, this is the objective

legitimate and necessary in a free democratic society. The amount of the security deposit

is selected with regard to the scope of business in the field of risk


fuel, moreover, it is not possible to talk about the discriminatory nature of the deposit

because the so-called. small distributors are not able to bail in the specified amount

pay. This is a measure that is defined for all

potential operators without distinction. When it comes to alternative ways of

reach the goal, the Government of the applicant regarding the disputed options

the introduction of the transferred tax mode. reverse-charge.

Pointed in particular to the negative opinion of the European Commission, which

in 2010, the application did not comply with the Ministry of finance to grant

individual exceptions to the possibility of the application of the reverse charge. According to the Government

the European Commission expressed that "the Institute of bail may be introduced

If it is not discriminatory and aims to the proper tax collection and the fight

against tax fraud as an urgent public interest which justifies the

restrictions on the free movement of goods and services ". The Government said that in the course of

the legislative process were also discussed possibilities of individual

the setting of bail by a decision of the Customs Office, the legislature, however,

decided to establish a security deposit in the same amount for all, which "appears to be

as the only possible solution-and it is not necessary the allegation of discriminatory

the nature of this measure ". The Government did not agree with the statement of the claimant, that the

"the amount of the security deposit was laid down speculatively and disproportionate in relation to the

the reality of the functioning of the fuel market ", because of the information provided by the

General financial Directorate was the amount of the security deposit

take into account the average amount of the realized tax evasion. In the opinion of

Government provisions governing bail, including the above, will stand in

application of the test of proportionality. The Government further indicated that from the available data

Unable to conclude that the imposition of deposit caused the liquidation of small and

medium-sized business owners. It is so obvious that it is not true that the

for small and small distributors was the introduction of the deposit, a priori, the winding-up.

In conclusion, the Government reiterated that "the current legislation, including the deposit,

nepokřivuje fuel market, but on the contrary, it corrects, as

excluded from the market, in particular those distributors who commit their tax

scams ". In view of that, the Government has proposed that the proposal has been rejected,

eventually rejected.



8. The Ombudsman Pavel param V said that enters the

management, and in its statement with a reminder of the case law of the Constitutional Court

It stated in particular that the contested legislation cannot be upheld under the third

step of the proportionality test. He stressed that the approach of the State

the request does not match the criteria, the interference with the fundamental rights. Fixed

the Ombudsman considered the bail also rozpornou with the article. 11

Of the Charter. In his opinion, "in the present case it is not possible to prioritize

the interest of the State to eliminate unwanted (and illegally operating)

entities through the deposit, with the potency to act on some of the bodies

noticeably and considerably disproportionately over protection of their fundamental rights,

referred to in particular in article. 11 and 26 of the Charter ". In conclusion, he suggested that the constitutional

the Court ruled that in § 6i para. 1 (b). a) and b) of Act No. 234/2013

SB. deleted the numeral "20 000 000 '.



9. Without request, the Constitutional Court received him irrelevant submissions

by PENTACO, spol. s r. o., LA-TRANSGAS LNÁŘE, s. r. o.,

ARTWELD, s. r. o., domáhajících will return the position of the next

a participant in the proceedings because of a legal interest in the outcome of the proceedings.



III.



The diction of the contested statutory provisions



10. The contested provisions read as follows:



"§ 6i



Security deposit



(1) a Distributor of fuel is required to provide a security deposit,



and the composition of the amount) 20 000 000 Czk to the special account of the Customs Office

with the fact that the bail in this amount must be on this account all the time

fuel distributor registration, or



(b)) a bank guarantee, which was adopted by the Office to ensure that arrears in

the total amount of up to 20 000 000 Czk that are recorded by the Customs authorities

administration of the United States or for other tax administrators to the eighty-fourth day

from the date of cancellation or termination of the Distributor's registration of fuel.



(2) a bank guarantee must be granted for a specified period, which shall not

be shorter than 2 years.



section 6j



The use of bail



(1) if the cancellation or termination of the final registration

fuel distributor, becomes a compound the amount of overpayment

distributor of fuel. If the resulting overpayment, vratitelným

overpayment, return it to the Office of the distributor of fuel within 90

days from the date of a final cancellation or termination of the Distributor's registration

of fuel.



(2) the time limit referred to in paragraph 1 is not running while the authority of the Customs Administration

The United States or in any other proceedings, tax administrator



and the result can be) its decisions on the determination of tax, fee, or

other similar financial and



(b)) which was launched within 90 days from the date of final withdrawal or

the demise of the fuel distributor registration.



(3) if there is a cancellation or termination of the fuel distributor registration

materials, the Office will invite the issuer bank guarantee for the payment of arrears

registered to the eighty-fourth day from the date of cancellation or termination of registration with the



a) of the Customs Office



(b)) other tax authorities that its payment of the Customs Office.



(4) the Office shall invite the issuer bank guarantee soon after 90 days,

not later than 5 months after the date of cancellation or termination of registration

distributor of fuel.



(5) the issuer of a bank guarantee is required to pay the amount within 15 days of

date of receipt of the request. "



IV.



Review of the procedure of adoption of the contested statutory provisions



11. The Constitutional Court, how he stores provisions of § 68 para. 2 of law No.

182/1993 Coll., on the Constitutional Court, as amended by Act No. 48/2002 Coll.

Subsequently, it was examined whether the contested provisions adopted within the limits of the Constitution

The United States provided for competencies and constitutionally prescribed manner;

came out of stenozáznamů, as well as of the observations of both Chambers

Parliament of the Czech Republic.



12. the draft Act No. 234/2013 Coll., amending Act No. 311/2006 Coll.

about motor fuel and gas stations of fuel and amending

some related laws (Act on motor fuel), as amended by

amended, and Act No. 455/1991 Coll., on trades

(Trade Act), as subsequently amended,

The Chamber of Deputies on 19. December 2012, the group members. The proposal was

circulated to members as printing 883/0. The proposal was sent to express

the opinion of the Government that this opinion has sent 17. January 1, 2013.

The opinion of the Government were sent out to members 18. January 2013 as printing

883/1. First reading took place 8. February 2013. The proposal was commanded by

the Economic Committee that a draft law adopted amendments,

that included the contested provisions. In a detailed debate in the context of the

the second reading amendments submitted, relating, inter alia,

even members of the contested provisions, David Kádner, Josef and Michal Nekl

Babak. For the design of present 159 deputies spoke 126

Members, 3 members were against.



13. The Senate Bill was referred to the 7. June 2013. The Organizing Committee

The Senate as Senate document No No 120 ordered to hear the Committee for

economy, agriculture and transport. The Committee discussed the draft Bill

June 25, 2013 and, in adopting resolution No. 117 has recommended full Senate

the Bill to approve the (Senate document No No 120/1). At its meeting held on 26.

June 2013, after the past debate, the Senate approved the Bill, when in

vote no. 61 of the 60 senators present when quorum for proposal 31 44

Senators and 1 Senator was opposed.



14. the President of the Republic signed the Act on 18 July 2005. July 2013. On 2 February 2005.

August 2013 was promulgated in the collection of laws under no. 234/Sb.



15. The Constitutional Court notes that Act No. 234/2013 Coll., which

updated the law of no 311/2006 Coll., on motor fuel and petrol

fuel stations and amending certain related laws

(law on motor fuel), as amended, which are

now the contested provisions included, was accepted and published in the limits of a constitutionally

set out competences and constitutionally prescribed way.



In the.



The substance of the design review



16. The Constitutional Court considered the argument of the applicant and concluded that the

the proposal is partly justified.



17. the proposal is not directed against the security deposit, cancellation of the Institute but rail against

single deposit for all distributors of fuel, for

conflict with the provisions of article 8(1). 26 of the Charter, and also against the law to use

security deposit in case of cancellation or to the final extinction of the

fuel distributor registration.



18. The Constitutional Court in the award of 12 March. in March 2008, SP. zn. PL. ÚS 83/06

(N 55/48 SbNU 629; 116/2008 Coll.) the Court held that "one of the essential

characters of the democratic rule of law is the principle of proportionality, which

in particular, it assumes that the measures restricting fundamental rights or freedoms

its negative consequences may not exceed the pros, which represents

public interest in such measures. To restrict fundamental rights or freedoms

can exceptionally occur even in the event of a collision with any of the

public goods (public interest); However, it is essential in this context


Maxima, according to which fundamental right or freedom can be restricted only in the

the case of exceptionally strong and properly reasoned in the public interest, when the

a careful investigation of the essence and the meaning of omezovaného of the basic law. "



19. The Constitutional Court then and in this case he went on in the assessment

the constitutional conformity test of proportionality, the contested provisions to. The

repeatedly has defined in its case law as a test consisting of three steps

in the assessment of the legitimacy and necessity of the objective pursued in the Democratic

the company, in assessing the rationality of the connection between the objective and the means

selected for its enforcement and finally, in assessing whether there are

alternative ways to achieve the objective, the use of which would make intervention in

the fundamental right of less intense. to eliminate it entirely.



20. first of all, the Constitutional Court concluded that the challenged legislation

will stand in the first step of the proportionality test. The contested provisions

based on the legitimate efforts of the legislature to "limit the creation and abuse of

purpose-based companies, which play an essential role in all

the known offences in the market of fuels "(see the explanatory memorandum to the

House print No 883/0). Or the applicant himself think of the

Institute of bail, which is also in accordance with the Constitutional Court, the rational

a means to promote this goal.



21. as to the rationality of the contested legislation, this would certainly

deny that while meeting objectives in relation to the tax malversantům would

points. On the other hand it is necessary to take into account in particular

the fact that the fuel in the market at the same time, and especially moving and

honest fuel distributors, to whose rights could be challenged

the legal regulation of numbingly hit. Otherwise, the words of the Czech sayings

speaking, this could lead to the fact that "the dirty water would be from the tray

poured out and the baby ".



22. in the present case now is then, as of the submission of the applicant, and

observations of the parties and interveners, prima vista key

the question of the outcome of the third step of the test of rationality, that is,. just that

There are alternative ways to achieve the objective, the use of which would

has made interference with the fundamental rights less intense. it completely

avoid. The Constitutional Court concluded that the contested part of the provisions of section

6i para. 1 and article 6i para. 2 Act No. 311/2006 Coll., on

motor fuel and gas stations of fuel and amending

some related laws (Act on motor fuel), as amended by

Act No. 234/2013 Coll. (hereinafter referred to as "part of the provisions of § 6i law") in

This step of the proportionality test.



23. the Constitutional Court has already, in its award of 13 April. August 2002, SP. zn. PL.

TC 3/02 (N 105/27 SbNU 177; 405/2002 Coll.) has stated that "in the case of fines

provided for legal and natural persons operating under special

legislation is to be presumed that such an intervention is excluded to the

assets, as a result of which would be destroyed ' proprietary base for

For more business. In other words, are not permitted

such a fine, to winding-up character. It should be noted that the

fine in the winding-up of essentially constitutes the hardest, ' the case of

the matrimonial property regime, which, moreover, can lead to a violation of article 6(1).

26 paragraph 2. 1 of the Charter; While it is not impossible to relate the conclusion on significant

the intensity of the interference with the right of ownership on such cases in which the

fine enough to exceed possible revenue, that business activity in the

Basically, aimless ' (i.e., pointing only to cover the stored

the fine after a significant period of time). " The Constitutional Court in the present case now

He came to the conclusion that similarly as in the case when the legislature

unconstitutionally established minimum limit to the fine, it is possible to express

the findings relate to the case where the amount of the security deposit for fuel distributors

materials not provided for differentiated.



24. The Constitutional Court did not then or at the time of his making a decision contested

method of determining the uniform legislation of the deposit for the only possible, ba

especially in relation to all fuel distributors the most.

In addition to this the way would otherwise came into account, in particular, Variant

statutory conditions determine the amount of the security deposit, which would have been

the legislature reasonably graded. It is not excluded either option,

that bail was set for only those distributors who market

fuel entering, and that the limited period of time. And, therefore, that

the impugned legislation can be called. strangling effect on smaller

distributors of fuel, for example, already in itself, consisting of

the difficulty to obtain the desired amount of the deposit, found it in the Constitutional Court

In addition to the listed alternatives clearly at least in relation to the law of the gentle

guaranteed article. 26 of the Charter.



25. The Constitutional Court notes that the mere fact that the already challenged part of the

the provisions of § 6i law pass muster in the third step of the proportionality test,

determined by its unconstitutionality. The Constitutional Court therefore decided according to § 70 para.

1 Act No. 182/1993 Coll., on the Constitutional Court, as amended by Act No. 48/2002

Coll., so that this part of the provisions of § 6i para. 1 of law No 311/2006

Coll., on motor fuel and gas stations of fuel and amending

some related laws (Act on motor fuel), as amended by

Act No. 234/2013 Coll., amending Act No. 311/2006 Coll., on

motor fuel and gas stations of fuel and amending

some related laws (Act on motor fuel), as amended by

amended, and Act No. 455/1991 Coll., on trades

(Trade Act), as amended, which reads "-and it

and the composition of the amount) 20 000 000 Czk to the special account of the Customs Office

with the fact that the bail in this amount must be on this account all the time

fuel distributor registration, or (b)) a bank guarantee,

adopted by the Office to ensure the underpayments totalling up to 20

000 000 Czk that are registered with the authorities of the customs administration of the Czech Republic

or for other tax administrators to the eighty-fourth day from the date of revocation or

the demise of the fuel distributor registration ", and the provisions of § 6i para.

2 of this Act, which are in breach of article. 26 of the Charter, the expiry of the

on 30 November. from 1 June 2015, which gave lawmakers sufficient time,

to constitutionally Conformal way differentiated edited by deposit or

the conditions for its establishment.



26. the Constitutional Court, in contrast, did not find the unconstitutionality of the provisions of section 6j of the law

No 311/2006 Coll., on motor fuel and fuel service stations

materials and amending some related laws (Act on fuel

masses), as amended by Act No. 234/2013 Coll. of 26 March. June 2013. Neither

the appellant did not bring in relation to the contested provisions of any

relevant constitutional argument. The Constitutional Court then in this part of the

design for analogous application the provisions of § 43 para. 2 (a). a) and b)

the law on the Constitutional Court as manifestly unfounded.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the decision of the judges of the plenum have been Ivana

Smith, Lippincott and Radovan Suchánek.