In The Matter Of The Application For Revocation Of Section 6 (1). 2 (A). And The Trade Of).

Original Language Title: ve věci návrhu na zrušení § 6 odst. 2 písm. a) živnostenského z.

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=68707&nr=151~2F2009~20Sb.&ft=txt

151/2009 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided on 7 December. April 2009 in plenary in the composition of Stanislav

Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel

Holländer, Ivana Janů, Vladimir Crust, Jiří Mucha, Jan Musil, Jiří

Nykodým, Pavel Rychetský, Elisabeth Wagner and Michael April outside

the oral proceedings and the presence of participants on 7 December. April 2009 in case

the design of regional court in Pilsen, Czech Republic for annulment of the provision of section 6 (1). 2 (a).

a) of Act No. 455/1991 Coll., on trades (trade licensing

Act), as subsequently amended,



as follows:



The provisions of § 6 (1). 2 (a). a) of Act No. 455/1991 Coll., on trades

business (Trade Act), as amended by Act No. 167/2004 Coll., has been in the

contrary to the article. 26 paragraph 2. 1, 2 and 4(1). 4 (4). 4 of the Charter of fundamental rights and

freedoms.



Justification



(I).



The definition of things and a recap of the proposal



The Constitutional Court was on 21. November 2008, served by the regional

Court in Plzeň on the abolition of the provision of section 6 (1). 2 (a). a) of law No.

455/1991 Coll., on trades (Trade Act), as amended by

amended.



The appellant did so according to § 64 para. 3 of Act No. 182/1993 Coll., on

as amended, and then, what in the context of its

the decision-making activities in accordance with art. 95 para. 2 of the Constitution of the Czech Republic

(hereinafter referred to as "the Constitution") and § 109 paragraph. 1 (b). (c)) of the round concluded,

the provisions of § 6 (1). 2 (a). a) of Act No. 455/1991 Coll., on the

trades (Trade Act), as amended

regulations to be in solving things SP. zn. 30 Ca 98/2008 used,

It is in breach of article. 26 paragraph 2. 1 in conjunction with article. 4 (4). 4 of the Charter of

fundamental rights and freedoms ("the Charter").



In that case, SP. zn. 30 Ca 98/2008 is the regional court in Pilsen, Czech Republic

decided on an action against a decision of an administrative authority on the abolition of

trade licence pursuant to § 58 para. 1 (b). and) in conjunction with § 6

paragraph. 1 (b). (c)) and paragraph 2. 2 (a). and) of the Trade Act. According to the findings of the

administrative authority was the plaintiff in proceedings before the regional court judgment

The regional court in Stuttgart, Federal Republic of Germany, of 22 December 2004.

October 1998, SP. zn. 4 KLs 230 Js 8137/98 sentenced for criminal offences

the illicit importation of drugs in small quantities and not

illicit trafficking in drugs in small amounts not

According to § 1 (1). 1, § 3 para. 1 No. 1, § 29 para. 1 No. 2, § 30 paragraph 2. 1

# 4 of the law on drugs, § 25 para. 2, § 53 of the Criminal Code of the Federal

Republic of Germany to the úhrnnému imprisonment in duration of seven years,

or was convicted of an act that had the offence and

under the law of the United States, and that the offence of illicit

the production and possession of narcotic drugs and psychotropic substances and poisons under section 187

of the criminal code. In the proceedings before the Court the defendant administrative authority pointed out

on the inadmissibility of an administrative account in the application of the provisions of section 6 (1). 1

(a). (c)) and paragraph 2. 2 (a). and the Trades Licensing Act), which, in the cases

sentence of imprisonment of at least one

year for the intentional act does not allow. By contrast, the plaintiff argued

the violation of the article. 3 in conjunction with article. 26 paragraph 2. 1 of the Charter, and questioned the

the acceptability conditions of integrity for the performance of all trades when it

The Constitutional Court declared the disproportionate for business in agriculture [find

SP. zn. PL. ÚS 38/04 of 20.6.2006 (N 125/41 SbNU 551; 409/2006

SB.) ^*].



Identifies the content of the constitutional arguments of the plaintiff, the Court

cut off in the case of proceedings and submitted to the Constitutional Court to

cancellation of legal provisions. The reason for this proposal is

the alleged contradiction between the legal definition of good repute in accordance with § 6 para. 2

(a). and) of the Trade Act and article. 4 (4). 4 in conjunction with article. 26

paragraph. 1 of the Charter.



In support of its motion the Court points to the original wording of section 6 (1). 2

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

According to which "for integrity, for the purposes of this Act, does not consider the

Anyone who has been convicted: a) of an offence, the factual

the essence of the subject is related to business, b) for an offence

committed intentionally, if due to the nature of the business and the person

the entrepreneur is a concern that is committed by the same or similar acts in

trade. " According to his beliefs, this legal diction was in

accordance with the Charter, since the "save their essence and sense" (article 4 of the

paragraph. 4 in conjunction with article. 26 paragraph 2. 1 of the Charter)-restrictions on the right to take

has been consistently linked to activities that were linked to criminal activity,

and it's based on justifiable interests of society on how to at least

After a period of time was the sentenced person deprived of the ability to perform the activity

in the field, in which infringed the interests protected criminal law. In spite of the

referred to the finding of the court draws attention to the possible contradiction options

the administrative organ decide to revoke a trade licence in

a situation where the General Court on the guilt and punishment for an act

could not save the penalty of disqualification (and with reference to the possible contradiction with article.

40 para. 1 of the Charter).



The applicant further points out the fundamental change of the Trade Act,

carried out by Act No. 359/1999 Coll., effective on January 1. in March 2000, which

the new wording contained § 6 para. 2 (a). and, according to which a) integrity

is not the one who was convicted for intentionally committed

offence to imprisonment in duration at least

After one year, with a content page is the same as this edit

by modifying the current, as subsequent amendments there was a purely formal

formulation changes (Act No. 167/2004 Coll., Act No. 130/2008 Coll.). To

purposes of this major change to the regional court refers to the explanatory memorandum to the

the Bill, finally adopted under Act No. 359/1999 Coll., according to which this

the purpose is to "clarify the existing inadequate and ambiguous criteria,

that the assessment of the integrity bind closely to the link between the findings of

the essence of the offence and the object of the company or of the existence of concerns

from a repetition of the crime in the trade ", and according to which the

This followed "with regard to the current usual editing

integrity in the Czech legal order ", while" the current legal

Edit with integrity assessed by the context of the facts

of the offence and the particular business, possibly by concerns

from re-offending when operating business, which does not allow

to restrict the business of those persons that engage in criminal activities in General

business related ". In the explanatory memorandum was finally accused

a previous edit that "allow the administrative considerations the Office too

subjective assessment ".



A regional court to the grounds of the contested legal provisions, zformulovaným

argues that the previous legislation did not in any way inadequate or

ambiguous, and also points to the fact that similar

It contains for example. the criminal code when saving the penalty of disqualification, if

as to the relationship of the crime with specific activities. Refuses to

the arguments put forward in the explanatory memorandum to the proposal, the existing wording of the contested

legal provisions and claim that it was just the opposite, namely that

previous edit allow to respect the specificities of the

a specific and unique case. At the same time draws attention to the possibilities of

the methodological management of the departments in the application of section 6 of the trade

the law. Selected legislative remedy, therefore, your rapporteur considers it

disproportionate in relation to the purpose intended. Stresses that the

the contested legislation specific to the person convicted shall be disregarded,

type of business activity, the purpose of punishment, the convicted person after

his release from prison, to the need for its incorporation into the normal

civilian life. Moreover, highlights the possible contradiction of the

the legal provisions with article. 40 of the Charter.



Of all the reasons proposed thus landed the regional court in Pilsen

the provisions of § 6 (1). 2 (a). a) of Act No. 455/1991 Coll., on trades

business (Trade Act), as amended, for

conflict with the article. 4 (4). 4 and article. 26 paragraph 2. 1 of the Charter and on the date of

publication of the finding of the Constitutional Court in the statute book.



II.



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



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

as amended, posted by the Constitutional Court of the present proposal

The Chamber of Deputies. In its statement, delivered to the Constitutional Court of the day

January 5, 2009, the President of the Chamber of deputies of the Czech Parliament

Republic Ing. Miloslav Vlček limits only on a retrospective data and

procedural phases of the adoption of Act No. 455/1991 Coll. and Act No.

356/1999 Coll. However, you can certainly welcome the generally laconic way

the expression, in the absence of any mention of the intentions of the legislature

resulting from the adoption of the Act of accompanying documents for one question

the meaning and purpose of the observations of the interested party to the subject of the proposal.



According to § 42 para. 4 and section 69 of Act No. 182/1993 Coll., as amended


the rules, posted by the Constitutional Court of the present proposal and the Senate of the Czech

of the Republic. At the outset of his observations, delivered by the Constitutional Court on 29.

December 2008, its President MUDr. Mr přemysl Sobotka

legislative developments the provisions of § 6 (1). 2 (a). and)

the Trade Act, IE. starting with the adoption of Act No. 455/1991 Coll.,

Despite the adoption of law No. 356/1999 SB., no. 167/2004 Coll., only after the adoption of the

Act No. 130/2008 Coll., and pronounced doubt if it can be of

the proposed remedies clearly inferred what the wording of the trade

It is proposed to repeal the Act, since the cancellation of the proposed wording of paragraph 6 of the

paragraph. 2 (a). and) of the Trade Act is marked "as amended

regulations ".



Next, in the observations that the stenozáznamu of hearing

Senate print no. 356/1999 of the draft law amending the Act No.

455/1991 Coll., on trades (Trade Act), it follows,

that the full Senate was mentioned in the message integrity of the Minister of industry

and trade as promoters of this draft law, which stated that the

This is "a tightening of the general terms of trade,

restrictive business people sentenced for serious crimes, or

having a tax arrears ". Further in the joint intelligence report,

which was submitted by the Rapporteur of the Committee on economy, agriculture and

transport, this among other things stated that "the goal of which was to redefine the

the conditions for entry into the business for natural and legal persons, and

extend yet laid down a condition of impunity on the neodsouzení for the

an intentional criminal offence for which an unconditional prison sentence was saved

the freedom of longer than one year, or a criminal offence, the factual

the essence of business-related ". In this context, the President of the Senate

recalls that when discussing the draft law in the various committees

even on the full Senate nezazněly doubts as to the conformity of the General adjustment

the conditions of operation of the trade, with the relevant provisions of the Charter, and

notes that, in accordance with the resolutions of the committees and the plenary of the Senate on 9 April.

December 1999 on its 12. the meeting adopted a resolution (No. 232) whereby a proposal

the Act, as amended by the Chamber of Deputies approved a transferred.



Another Bill, which would change the law No. 455/1991 Coll., the Senate

heard as Senate document No No 2004/292 at the party

from past debates in the various committees and to the plenary of the Senate

It does not appear that any of the senators considered the modifications proposed

relating to good repute as contrary to the Charter (the plenary Chamber then on

its 14. meeting on 25 April. March 2004, by resolution No. 364 the Bill in

the Chamber of Deputies approved the text of a transferred). The same finding,

apply according to both him and discussing the latest draft of the Act, which

changed Act No 455/1991 Coll. (no 211/2008), the proposal was

a Chamber of the Senate on its 12. meeting on 20 April. March 2008 resolution No. 333

in the Chamber of Deputies approved the text of a transferred.



III.



The abandonment of an oral hearing



According to the provisions of § 44 para. 2 Act No. 182/1993 Coll., as amended

legislation, the Constitutional Court may, with the consent of the participants from the oral proceedings

refrain, if you cannot expect him to further clarification of the matter. Due to the

both the applicant in its proposal of 18 May. November 2008,

and the parties in the note of the President of the Chamber of deputies of the Parliament

Czech Republic from 1 January 2002. April 2009 and President of the Senate of the Czech

Republic of 31 December. March 2009, have expressed their consent with the abandonment of

the oral proceedings and also due to the fact that the Constitutional Court has considered that, from the

negotiations cannot be expected to further clarification of the matter, it was from the oral proceedings in the

the case dropped.



IV.



The conditions of the locus standi of the applicant



Application for annulment of the provision of section 6 (1). 2 (a). and) the Trade Licensing Act

was submitted to the regional court in Pilsen pursuant to the provisions of § 64 para. 3 of Act No.

182/1993 Coll., as amended.



As was already mentioned in naraci, in the matter by the regional court in Pilsen, Czech Republic

under SP. zn. 30 Ca 98/2008, the applicant seeks the annulment of the decisions against which an action

the defendant's administrative authority, following the regional authority of the Pilsen region,

the regional Trade Office of 26 April 2004. June 2008 no j.

VVŽÚ/5727/08, which was his appeal against the decision of the municipal

Office in Domažlice of 17 May. April 2008 # (j).

-HAVE 6414/2007-11356/2008/See, for revocation of a trade licence under section

58 para. 1 (b). a) with regard to § 6 paragraph 1. 1 (b). (c)) and paragraph 2. 2

(a). a) of law No. 455/1991 Coll., on trades

(Trade Act), rejected and the first instance administrative decision

confirmed.



The regional court in Pilsen, after in the context of its decision-making

activities in accordance with art. 95 para. 2 of the Constitution, came to the conclusion that the

the provisions of § 6 (1). 2 (a). and the Trades Licensing Act), to be in

the solution things SP. zn. 30 Ca 98/2008 used, is in breach of article. 4 (4). 4

and article. 26 paragraph 2. 1 of the Charter, the tribal proceedings according to § 48 para. 1 (b). and).

r. s. resolution of 18 February 2003. November 2008 No. 30/2008 Ca 98-19

interrupted and the Constitutional Court submitted the present proposal on control standards.



The purpose of the specific control standards pursuant to art. 95 para. 2 of the Constitution, the Court of

review of the constitutionality of the law, or its individual provisions, which

to be used during the court hearing and the decision of certain

specific things. It is also delimited by the space of the General Court of the procedure

According to the article. 95 para. 2 of the Constitution, which is limited only and exclusively in the in the

things relevant substantive and procedural law. A procedural condition for the active

evidence of the General Court according to § 64 para. 3 of Act No. 182/1993 Coll., on the

The Constitutional Court, as amended, is therefore such positions

the law, if necessary. its individual provisions, whose cancellation is

proposed, to the subject of tribal control, which establishes for the adjudication of the matter

by the General Court of the reasons for the decision.



As is apparent from the description of the proceedings before the General Court, can be on the side of the

the claimant stated fulfillment of its locus standi for

proceedings for review of the standards.



In the.



Petit design, diction of the contested legislation and the assessment of the merits test

rejection of offer according to section 66 paragraph 1. 1 Act No. 182/1993 Coll.



According to the remedies of the proposal by a regional court in Pilsen, claims that the Constitutional Court

finding "the provisions of § 6 (1). 2 (a). a) of Act No. 455/1991 Coll., on the

trades (Trade Act) ", set aside.



The language of § 6 (1). 2 (a). and) the Trade Licensing Act, force and effect to the

June 30, 2008, or the entry into force of Act No. 130/2008 Coll., i.e..

Act No. 455/1991 Coll., as amended by Act No. 167/2004 Coll., has been

the following: "For integrity, for the purposes of this Act, does not consider the

who was convicted to imprisonment for

offence committed intentionally, whether separately or concurrently with other

offences, and was saved by imprisonment in

duration of at least one year. ". Article. (I) section 16 of Act No. 167/2004 Sb.

in fact provided: "in § 6 (1). 2 letter a):, and) jail

imprisonment for a crime committed intentionally, whether

alone or in parallel with other crimes, and was saved

imprisonment of a duration of at least one year, '. "



Diction of the statutory provisions in the text of the amendments made by the

Act No. 130/2008 Coll. (article. I, point 9) is then the following: "

integrity, for the purposes of this Act, does not consider the one who was

convicted for a crime committed intentionally, whether separately

or overlapping with other crimes, and was saved by an unconditional

imprisonment for at least one year's duration, or ".



According to the provisions of section 75 para. 1 of the judicial code of the administrative review

the decision is based on the Court of the factual and legal status that was here in

the time of the decision of the administrative authority. It follows that, in the General

the present case decided by the Court and the relevant provisions of the law

§ 6 para. 1 (b). and the Trades Licensing Act), as amended, and the effective

30. June 2008.



In the meantime it was therefore relevant legal provisions amended or repealed.

In summary, the impact of such a situation for the management of specific control

the standards expressed in the Constitutional Court finding SP. zn. PL. ÚS 38/06 dated

6.2.2007 (N 23/44 SbNU 279; 84/2007 Coll.). He left in it in the first place on the

findings SP. zn. PL. ÚS 33/2000 of 10.1.2001 (N 5/21 SbNU 29; 78/2001

SB.) and SP. zn. PL. ÚS 42/03 dated 28.3.2005 (N 72/40 SbNU 703;

280/2006 Coll.), according to which "If the judge of the General Court to the conclusion that

the law, which is to be used in solving the things (that is, not only in the

time valid, but also at that time, no longer valid, but still applicable

the law), is in conflict with the constitutional law, is obliged to submit the matter to

The Constitutional Court (article 95, paragraph 2, of the Constitution). The refusal to provide the General

the Court, in its decision on the constitutionality or unconstitutionality of the applicable

Assistance Act, the Constitutional Court considered the reason for the creation of unsolvable situation

the artificial legal vacuum, the decision of the General Court itself on the

unconstitutionality applied the provisions of then characterised as the procedure in the


contrary to the Constitution, contrary to the principle of the constitutional

the judiciary (article 83 and article 95 (1) and (2) of the Constitution). " As referred to

the procedure opens up the space for the examination of the previous meeting

(or legal events) from the later, but already constitutionally conformal,

legislation and has therefore the right characters-retroactivity, Constitutional Court

It essentially limited itself to recognizing the right regulatory situation

retroaktivitou [see also find SP. zn. PL. ÚS 21/96 (1) (N 4.2.1997

SbNU 87 13/7; 63/1997 Coll.)] and noted that the principle of the protection of trust

citizens in law it follows that the principle of non-retroactivity cannot be

extended to the reverse effect of legal norms, which do not constitute intervention in the

legal certainty and acquired rights, and referred to the proposition from the perspective of

the breakdown of fundamental rights and freedoms with a view to their possible addressees

turns out the cases in which the addressee of public power. Right

According to the Constitutional Court; in the case of a vote of unconstitutionality

former law and an assessment of the previous facts constitutionally

Conformal legislation with ex tunc effects on the part of the public authorities therefore

will not constitute a violation of the principle of the protection of citizens ' confidence in the law. the intervention of the

to the legal certainty and acquired rights. The Constitutional Court in finding SP. zn.

PL. ÚS 38/06 also drew attention to the fact that different situation occurs

in the cases of the horizontal effect of fundamental rights and freedoms, which in

relation to third parties, related principles of the protection of the citizens ' confidence in the

law, legal certainty and acquired rights-unlimited application procedure

based interpretations of the article. 95 para. 2 of the Constitution, contained in the sp award.

Zn. PL. ÚS 33/2000, confirmed finding SP. zn. PL. ÚS 42/03 (all

see above), would thus established the right the retroactive effect, and, therefore, a contradiction

with the principle of the rule of law (article 1, paragraph 1, of the Constitution). For the only possible

a breakthrough non-retroactivity case law in proceedings for review of

standards for the horizontal effect of fundamental rights and freedoms by the Constitutional Court

accepted the protection of the values that fall within the framework of the material core

The Constitution, in its article. 9. 2, the values, the protection of which, and the conditions that

even at the cost of breaking the ban on right-retroactivity, contains the famous

"Radbruchova formula."



For those unable to interpret than the petit meaning "design

the cancellation of "provision of section 6 (1). 2 (a). and the Trades Licensing Act),

a valid and effective until 30 June. June 2008. The statutory provisions in question

governs the legal relationship in which the addressee tempered reason

unconstitutionality (article 4, paragraph 4, and article 26, paragraph 1, of the Charter) is a public power

rather than a body of private law. Therefore, in the case decided by the

the conditions for the management of specific control standards pursuant to art. 95 para.

2 of the Constitution within the meaning of the legal opinion of the Constitutional Court expressed in

the findings, SP. zn. PL. ÚS 33/2000, SP. zn. PL. ÚS 42/03 and SP. zn. Pl. ÚS

38/06 (all of the above) and is therefore not given a reason for the rejection of the proposal according to §

66 para. 1 Act No. 182/1993 Coll.



Finally, on this point, i question the relevance of offers for legislative change

for proceedings for review of the standards. In finding SP. zn. PL. ÚS 15/01 dated

31.10.2001 (N 164/24 SbNU 2001; 424/2001 Coll.) The Constitutional Court on this

the question, i.e.,. the impact of the changes to the statutory provisions in proceedings for review of

standards for the procedure according to section 66 paragraph 1. 1 and section 67 para. 1 Act No. 182/1993

Coll., noted that the change to the cancellation of the proposed legal provisions

the reason for the refusal is based, or stop the proceedings for review of the standards

only if the assessment of the constitutionality of this provision

resolute. The said legal opinion was subsequently confirmed by a number of other

the findings of the Constitutional Court [SP. zn. PL. ÚS 38/04 (see above), finding SP. zn.

PL. ÚS 43/04 of 14.7.2005 (N 144/38 SbNU 59; 354/2005 Coll.), find

SP. zn. Pl. TC 5/05 of June 4 (N 77/41 SbNU 11; 303/2006 Coll.)

SP. zn. Pl. ÚS 38/06 (see above)]. But it is different from the situation in

where there is no change, but to the annulment of the contested provisions and its

the replacement of the provisions (or legislation) new, even in the case of

their identical wording. Since the normative the existence of legal

Regulation (force) is being shaped by a unity of will and its normotvůrcovy

speech (publications), the content is not identical for the two at a time

successive legislation has also their identity

normative (identity). On the basis of this legal opinion,

The Constitutional Court of the provision of section 67 para. 1 (or section 66 paragraph 1) of law No.

182/1993 Coll. and applied in similar cases [see e.g. resolution sp.

Zn. PL. TC 39/04 (published in SbNU, available at

http://nalus.usoud.cz)].



In this case also it is a different case. The amendment

Code carried out by Act No. 130/2008 Coll., it

changed only a part of the provisions of § 6 (1). 2 (a). and the trades)

the order, but his entire previous diction diction, repealed and replaced by a new

(However, even diction, a new assessment of the constitutionality in terms of reasons

the entire provision relevant change). It follows

the conclusion, according to which, despite the content of identity, in the absence of

the unity of the normotvůrcovy of the will and its expression, are decided by the things

the conditions for the management of specific control standards pursuant to art. 95 para.

2 of the Constitution within the meaning of the legal opinion of the Constitutional Court expressed in

the findings, SP. zn. PL. ÚS 33/2000, SP. zn. PL. ÚS 42/03 and SP. zn. Pl. ÚS

38/06 (all above), IE. the review of the constitutionality of the provisions of section 6 (1).

2 (a). and the Trades Licensing Act), a valid and effective until 30 June. June

2008.



Vi.



Constitutional competence and conformity of the legislative process



The Constitutional Court in accordance with the provisions of § 68 para. 2 Act No. 182/1993

Coll., as amended, is in proceedings for review of the standards required to

assess whether the contested act, its individual provisions. another

law or its individual provisions, was accepted and published in

the limits of the Constitution laid down the competence and constitutionally prescribed way.



Of Council publications and těsnopiseckých reports, as well as the observations of the participant

proceedings, it was found that the Chamber of Deputies approved the proposal

of the Act, i.e. Act No. 167/2004 Coll., amending Act No.

455/1991 Coll., on trades (Trade Act), as amended by

amended, and certain related acts, in the 3. read on your

27. a meeting on 24. February 2004 resolution No. 921, when from the present 186

MPs and MEPs for his acceptance of the 130 MPs voted in favor and

members and 2 were against.



On 25 April. in March 2004, a draft law discussed at its 14. meeting of the fourth

the term of the plenary Chamber and resolution No. 367 approved the proposal

the Act, as amended by the Chamber of Deputies transferred. In voting no 39

40 of the 62 senators present for the draft, 22 abstentions.



The law was signed by the respective constitutional officials, and was under the

No. 167/2004 Coll. properly declared in the amount of 57 of the laws that has been

circulated on 16. in April 2004, and according to the article. X becomes effective on the date of

the Treaty of accession of the Czech Republic to the European Union in force, IE.

on 1 January 2004. May 2004.



VII.



The content of the contested legal provisions compliance with the constitutional order



Amendment definition of integrity by committing willful

the offence, against which appellant objects to this proposal, has brought new

the language of the provisions of § 6 (1). 2 (a). and the Trades Licensing Act), as amended by

Act No. 359/1999 Coll. in the explanatory memorandum to the Government's proposal to amend the

the Trade Act (263, 1999, (III) the parliamentary term), adopted by the

The Parliament of the United Kingdom and published under no. 356/1999 Coll. on

the edge of the new wording of the provisions of § 6 (1). 2 (a). and), which in comparison with the

by modifying the contained in Act No 455/1991 Coll. did not confine the concept of integrity

the Association committed a crime with the business,

the Commission noted the following: "newly defines integrity, taking into account

on her usual presentation in the Czech legal order in relation to the

final conviction for an offense committed deliberately, taking in the

the proposal for differentiated result of final conviction offence under the

its severity. Final conviction for an intentional criminal act, if

it saved the imprisonment of at least one

year, causes the loss of integrity always. The same effect will be

final conviction for the offence, which is related to the merits of the

business or business, while the draft closer distinguishes

the criminal acts committed intentionally and negligently. According to the existing legal

Edit with integrity assessed by the context of the facts

of the offence and the particular business. According to the concerns of the

repetition of the crime in the trade, which does not allow

to restrict the business of those persons that engage in criminal activities in General

business related. Still will not, when assessing the good repute

to determine whether given the fear of repetition of the crime in the

trade, since this legislation is allowed within the

administrative considerations the Office too subjective reviews. "




17. a meeting of the Chamber of deputies of the Parliament of the Czech Republic in the second

reading held on 13. October 1999 to justify the new wording of section 6 (1). 2

the Trade Act, the Minister of industry and trade Miroslav Gregr said:

"Tightening and specify the requirements for the integrity entrepreneurs, in order to

effectively prevent access to business persons convicted for serious

criminal offences. On the failure of integrity should in future be not only criminal

performance, the merits of which is related to the subject of business, but each

an intentional criminal act, for which an unconditional prison sentence was saved

freedom of a duration of more than one year. ".



Proposal for a regional court in Pilsen, challenged the impugned statutory wording

provisions, adopted by Act No. 167/2004 Coll., then was based on intentions,

that is because the alleged unconstitutionality shall not affect. In the explanatory memorandum to the

amend the draft amendment to the Trade Licensing Act (print 200, 2003, IV.

the election period), adopted by the Parliament of the Czech Republic and published

under Act No. 167/2004 Coll., in that context, States: "in § 6 (1). 2

letter a) refines the existing legislation on integrity assessment

for cases where a natural person has been lawfully convicted for an intentional

an offense committed in overlapping with other offences. "



If there was a reason for the contested legal provisions to restrict the business of the people,

that engage in criminal activities in general business related,

as well as tighten up requirements on the integrity, the applicant is such

Edit ocitající is considered in violation of the fundamental right to

business according to article. 26 paragraph 2. 1 in conjunction with article. 4 (4). 4 of the Charter.



The issue of integrity in relation to the provisions of article. 26 of the Charter

The Constitutional Court dealt with in finding SP. zn. PL. ÚS 38/04 (see above).

It said that, while article. 26 paragraph 2. 2 of the Charter assumes

the possibility of limiting the exercise of certain professions or activities by law, without

should specify the purpose of the limitation, the legal standards, however, issued on the basis

must be able to withstand the test of proportionality. It follows that, first, the

need to assess the nature of the objectives pursued, and further restrictions

necessary to examine the need for the selected resource from the perspective of its thrift

in relation to the Basic Law-IE. for a free business. When

the assessment of the constitutionality of § 2 e of paragraph 1. 1 (b). (c)) and paragraph 2. 5 of law No.

252/1997 Coll., on agriculture, as amended, then came to the

the conclusion, according to which the very condition of integrity of failed!

the perspective of the need for a selected resource, as it is inconsiderate to the base

the freedom to do business and the desired state (the objective pursued) can be achieved

otherwise. For these reasons, the Constitutional Court decided to cancel the provisions of § 2e

paragraph. 1 (b). (c)) of the law on agriculture, defining the condition

integrity, and as the related provisions of the section has been repealed paragraph 2e. 5

the law on agriculture, which defines the concept of integrity for the purposes

the law on agriculture.



Where pursuant to article 4(2). 26 paragraph 2. 2 of the Charter of the Act lay down the conditions and limitations

for the exercise of certain professions or activities in that context and constraints

the fundamental right of a business pursuant to art. 26 paragraph 2. 1 in conjunction with article. paragraph 41.

1 of the Charter, must within the meaning of article 3(1). 4 (4). 4 of the Charter to save the essence of

and the meaning of the basic law. The Constitutional Court has already expressed to the proposition in

finding SP. zn. PL. ÚS 24/99, in which it said: "However, the basic

the rights contained in article 81(1). 26 paragraph 2. 1 of the Charter can be within the meaning of article 3(1). paragraph 41. 1

Of the Charter to claim only within the limits of the implementing law for the legislature,

and the legislature is also valid for this case the boundaries laid down by article 1(2). 4

paragraph. 4 of the Charter, according to which when using the provisions on the limits of the basic

rights and freedoms must be preserved, the nature and meaning of. "



Sense and the purpose of the conditions of integrity, limiting the fundamental right to

business, the protection of fundamental rights and freedoms of third parties, which would

business could be operating in conflict with the law and good manners

without prejudice to the. This condition must comply with the aspects which arise from

the principle of proportionality for the assessment of regulatory resource

providing single and restricting other fundamental right or freedom.



How to constantly judikuje the Constitutional Court [see find SP. zn. PL. ÚS 4/94 of

day 12.10.1994 (N 46/2 57 SbNU; 214/1994 Coll.), finding SP. zn.Pl. TC

15/96 of 9.10.1966 (N 99/6 SbNU 213; 280/1966 Coll.), finding SP. zn.

PL. ÚS 16/98 dated 17.2.1999 (N 25/13 SbNU 177; 68/1999 Coll.), find

SP. zn. PL. ÚS 41/02 dated 28.1.2004 (N 10/32 SbNU 61; 98/2004 Sb.)

For more], the principle of proportionality is based on three methodological approaches

steps: the first is the evaluation of a simple law aspect of suitability,

whose content is the assessment of the selected resource from the perspective of a normative

the possible fulfillment of the reference purpose. If it is not the operative resource

eligible purpose achieved, as monitored by the legislature of

speech of arbitrariness, which is considered to be contradictory to the principle of the rule of

State. The second step is to assess the application of the principle of proportionality

a simple rights aspect of Neediness, pursues the analysis of pluralism

possible normative resources in relation to their intended purpose and their

subsidiarity in terms of limitation of the Constitution protected the values-base

rights or public good. If the legislature pursued purpose

achieve alternative normative means, is constitutionally

conformist, the constitutionally protected value restricts the extent

the smallest. Pursues a simple right to be assessed on the one hand,

the protection of certain constitutionally protected values, on the other hand, however, a different

limits, the third aspect of the principle of proportionality, which is the measurement,

represents a methodology consideration of these conflicts-standing constitutional

values.



If it is the first aspect of the principle of proportionality, the examination of the rational

ties between the legislature and the selected reference to the normative

the means for as a matter of necessity to justify the thesis passes him,

According to the committing any wilful criminal offence, for which he was

saved by imprisonment of at least one year,

It is in fact calls into question the credibility of the tradesman in the performance of the business

(for example, a criminal offence in the performance of the craft trades fights

podkovářství, butcher's shop, carpentry, bakery, etc.).



In the legal order of the Czech Republic, the concept of integrity with regard to the

committing an intentional criminal offence defined relative to regularly

the subject of aprobované activity. This fact can be demonstrated by a number of

legal provisions:



-under section 4A(1). 1 (b). and) Act No. 553/1991 Coll. on the municipal police

as amended: "the integral for the purposes of this Act, is not

the person who has been convicted for an intentional criminal offence, or has been in the

the last 5 years been convicted of an offence committed by the

negligence, if his conduct is an offence in the

contrary to the Mission of the officer under this Act ",



-According to § 3 (2). 3 of Act No. 95/2004 Coll., on conditions for the acquisition and

recognition of professional competence and specialized competence to perform

the medical professions of doctor, dentist and pharmacist "

integrity, for the purposes of this Act, shall be considered one who is not

been sentenced to imprisonment for an intentional

an offense committed in connection with the provision of health care, or

the one which is considered as having been sentenced ",



-According to section 7 (b). a) Law No 312/2006 Coll., on insolvency administrators,

as amended by law No. 41/2009, Coll.: "the condition of integrity under section 6 (1).

1 (b). (d)) does not meet any natural person who has been lawfully convicted for

an intentional criminal act committed in connection with the performance of the function

of the insolvency administrator, or any other intentional crime against binding

the rules of the market economy ",



-According to section 6 para. 4 (b). and law No. 245)/2006 Coll., on public

nonprofit constitutional establishments and amending certain

laws: "for integrity, for the purposes of this Act, does not consider the one who

has been convicted of an offence for which the merits of the

related to the provision of medical care ",



-According to § 8 para. 3 (b). (b)) Law No 417/2004 Coll., on patent

representatives and amending the law on measures for the protection of industrial

ownership: "for integrity, for the purposes of this Act, does not consider the

Anyone who has been convicted for an offense committed by negligence in the

connection with the provision of services of a patent agent ",



-section 6 (1). 2 (a). (b)) Law No 162/2003 Coll., on conditions for the operation of

zoos and on amendments to certain laws (law on Zoological

the gardens): "the condition of integrity does not meet one who was at the time 3 years

before the application has been finally convicted of a criminal offence, the factual

the essence of the activity performed is associated with in a Zoo, if

It does not look as if he was not convicted, or the one who was in that

the time of recognized guilty of an offence or other administrative offense under the laws

regulations on the protection of nature and the environment, veterinary

legislation or regulations for the protection of animals against cruelty. "



When applied in the context of appropriate Constitutional proportionality test

on the one hand, the court assesses the presence of a rational relationship between the purpose and


a normative instrument, or its degree of anticipated.

actual fulfilment, and the intensity and extent of the limitation of in a collision with

ocitajícího the fundamental right or freedom, or the public good.



The comparison of the two in the legal order of used normative resources

the definition of integrity by committing an intentional crime shall be deemed to

The Constitutional Court of a contested proposal to modify both its consequences

the bulk of the limits of the reference to purpose (i.e. covering also the cases

which rational purpose and normative binding of the resource absentuje), and

both its intensity and scope of restrictive in the collision standing base

the right to an extent determined by and prejudice in third aspect of the test

proportionality, in the aspect of the measurement. In this context, does not hold water

or any claim of uncertainty and confusion, the definition of

integrity by committing an intentional criminal offence related to the

subject to aprobované activity. The decision to cancel the trades

the permissions of an administrative authority is reviewable by a court, and the Court is thus

the courts and the administrative interpretation of the concept of integrity

committing an intentional crime, related with the subject

aprobované activities. Furthermore, the existing case law of courts in no way

not an indication of the fact that the ordinary courts were not such

interpretation, resting on the rational argument, has to offer. Illustrations

This conclusion, let the decision of the regional court in Ostrava, SP. zn. 22

CA 137/2004, according to which "the offence leading to the loss of good repute

within the meaning of § 6 (1). 2 (a). (b)) Act No 455/1991 Coll., the trade

the law, they are not only those offences whose character of the facts

is business (economic offences): for the application of the cited

the provision is essential, whether the offence is related to the

business activities of a specific person. For integrity, you cannot

consider the entrepreneur who acts for which he was convicted in

criminal proceedings, shall recover their claims. "



For the Constitutional Court came to the conclusion, according to which the provisions of paragraph 6 of the

paragraph. 2 (a). a) of Act No. 455/1991 Coll., on trades

(the Trades Licensing Act), as amended by Act No. 167/2004 Coll., has been in breach of

with the article. 26 paragraph 2. 1, 2 in conjunction with article. 4 (4). 1 of the Charter.



IX.



The wording of the operative part of the "derogačního" of the award and its legal consequences



If the Constitutional Court ruled in proceedings relating to the specific control standards pursuant to art.

95 para. 2 of the Constitution within the meaning of the legal opinion expressed in the findings, sp.

Zn. PL. ÚS 33/2000, pl. ÚS 42/03 and PL. ÚS 38/06 (all above), after

the adoption of the conclusion on the constitutional conformity a proposal "to abolish the" legal

the provisions of the rejected. In the case of the conclusion of the contested legal

provisions with the constitutional order gave its academic opinion:



-In finding SP. zn. PL. ÚS 48/06 of 9.12.2008 (54/2009 Sb.)

made by: "the provisions of § 105 para. 1 third sentence of Act No. 235/2004

Coll., on value added tax, in the version prior to the amendments made by

Law No. 296/2007 Coll., and the text of the "Declaration of bankruptcy, with the tax

management does not cut, and after the Declaration of bankruptcy are refunded, calculated

excessive deduction, if does not have tax arrears incurred prior to the Declaration

even after the Declaration of bankruptcy "was in breach of article. 11 (1) 1 of the Charter

fundamental rights and freedoms. "



-In finding SP. zn. PL. ÚS 73/06 dated 29/1 (291/2008 Coll.)

the statement: "the Constitutional Court came to the conclusion, according to which the provisions of § 57

paragraph. 5 the third sentence Act No. 337/1992 Coll., on administration of taxes and fees, in the

the text of the amendments made to the law before no 230/2006 Coll., has been in the

contrary to the article. 1, art. 11 (1) 1, art. paragraph 36. 1 and 2, article. 37 para. 3

Of the Charter, article. 6 (1). 1 and article. 13 of the Convention, the proposal of the Supreme

Administrative Court pursuant to art. 95 para. 2 this section of the Constitution. With

regard to the article. 89 para. 2 of the Constitution, are the consequences of unconstitutionality identified

public authorities are obliged to incorporate into their practice, thus

in solving concrete cases cited provisions do not apply. "



-In finding SP. zn. PL. ÚS 12/06 dated 2/7 (342/2008 Coll.) this

academic statement: "a motion of unconstitutionality of the provisions of §

37A paragraph 1. 1 the first sentence of the Act No. 588/1992 Coll., on income tax of the value added

values, as amended, the text: "If there is in

as a result of the assessment of overpayment, the excess vratitelný returns

the payer without the request within 30 days of assessment of excess, even in

the case of the Declaration of bankruptcy. In this case, the procedure referred to in

the specific rules ", is rejected. From the article. 11 of the Charter, no

interpretation of the protection of the rights of the State increased the inferred as the owner (in

tax matters represented by the tax authorities), which should in particular

the present case, i.e.. in the cases announced auditions, led to his

advantage and gave him a de facto privileged position in relation to

other creditors. "



The Constitutional Court notes that referred to the detailed procedure for the specific control

the standards in section 70 of Act No. 182/1993 Coll. contained the types of statements

do not correspond. The Constitutional Court in its findings received extensions

typology of statements according to section 70 of Act No. 182/1993 Coll. did so for example. in

the findings, SP. zn. PL. ÚS 41/02 dated 28.1.2004 (N 10/32 SbNU 61;

98/2004 Coll.), SP. zn. PL. ÚS 34/04 of 14.7.2005 (N 138/38 SbNU 31;

355/2005 Coll.) and SP. zn. PL. ÚS 43/04 (see above), and your progress

explained.



The mouth of the proceedings to a conclusion about constitutional conformity of the

statutory provisions, then the rejection of the proposal on its abolition should be

interpret in the sense of rejection on his neaplikovatelnost (§

70 paragraph 1. 2 Act No. 182/1993 Coll.), by analogy-if it was in terms of

the applicable time of relevant law by the legislature no longer in force, it cannot be

then cancel and the Constitutional Court. In the case of the conclusion on the violation of the

the legal provisions with the constitutional order (when the technique of

findings SP. zn. PL. ÚS 33/2000, SP. zn. PL. ÚS 42/03 and SP. zn. Pl. ÚS

38/06 the horizontal effect of fundamental rights and freedoms, or

for the protection of the fundamental rights of third parties) is the necessary consequence of the

academic opinion on his conflict with the constitutional order. The effect of this

the operative part of the Statute is neaplikovatelnost (if it is in

contrary to the constitutional order, not only to the statutory provisions, i.e.. Legislative

the resource, but also its purpose), or the definition of the conditions under which

meet the intended purpose can be achieved by the legislature constitutionally Conformal

the procedure, i.e.. the direct application of the constitutional order (section 70 (1) of law No.

182/1993 Coll., by analogy).



The purpose of the proceedings for the specific control standards in the cases in which, in terms of

the relevant statutory provisions of the law the moment it was already by the legislature

canceled, can therefore reach a verdict about his conflict with the constitutional

policy, in the grounds of the award then the definition framework (conditions) for the direct

the application of the constitutional order (article 70, paragraph 1, of Act No. 182/1993 Coll., per

is the case). In the case in question with regard to the article. 26 paragraph 2. 1, 2 in conjunction

with the article. 4 (4). 1 of the Charter can be used by the legislature in the provisions of § 6 (1). 2 (a).

a) of Act No. 455/1991 Coll., as amended by Act No. 167/2004 Coll., the reference

the intention in the proceedings before the General Court, from which the management of specific control

standards, achieve by limiting the conditions of integrity, for the purposes

the Trade Act to those criminal acts committed intentionally, whether

alone or in parallel with other criminal offences, for which it was stored

imprisonment of a duration of at least one year, which

the merits of the subject is related to the business of business, respectively.

in General.



The President of the Constitutional Court:



JUDr. Rychetský in r.



* Note. Red: a collection of findings and resolutions of the Constitutional Court, Volume 41,

find no 125, p. 551, promulgated under no 409/2006 Sb.