261/2006 Sb.
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court ruled on 14 July. March 2006 in plenary in the composition of Stanislav
Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel
Holländer, Vladimír Jiří Nykodým, Crust, Pavel Rychetský, Eliška
Wagner and Michael Židlická on the proposal of the District Court in Cheb on
repeal the provisions of § 697 of Act No. 40/1964 Coll., the civil code, in the
as amended,
as follows:
The proposal is rejected.
Justification
(I).
The appellant, in accordance with article. paragraph 95. 2 of the Constitution of the Czech Republic (hereinafter the
"the Constitution") demanded that the Constitutional Court has issued a finding, which cancels the
the provisions of § 697 of Act No. 40/1964 Coll., the civil code, as amended by
amended, (hereinafter also "identity. the code "). He stated that under the SP. zn.
15 C 127/2004 is in front of him as the General Court proceedings, which
the subject of the claim is the landlord of the city and against the nájemkyni j. from.
payment of rent of the apartment and be entitled to payment of a fee of
the delay; as for the payment of an amount of CZK 6 315 with a charge on arrears 2.5
per mille of the day, but at least CZK 25 for each month of the amounts of 6
315 Kč from 16.12.2003 in payment. The applicant in the framework of the preparation of negotiations,
He concluded that the claim of the plaintiff for the payment of the rent will be appropriate
assess according to § paragraph 696. 1 identity. code and the right to payment of a fee of
delay then under section 697 of his/her identity. code. At the same time, however, deduced that
the provisions of § 697 of his/her identity. the code, which has to be deciding this case
used, is contrary to the Charter of fundamental rights and freedoms (hereinafter referred to as
"The Charter"), and with the General legal principle of equality in the rights to
the law position of the parties to the contract-based relationship.
According to the provisions of § 697 of the civil code does not pay rent to the tenant
or remuneration for the implementation provided with the use of the flat within five days after its
maturity, is obliged to pay the lessor the late fee.
The applicant submits that the contested provisions judged compliance with the Charter
in the light of the decision of the plenum of the Constitutional Court SP. zn. PL. ÚS 15/02,
It was published in the collection of laws under no. 40/2003. In it, the Constitutional Court
He stated that the legal distinction in the approach to certain rights not
be the result of arbitrariness, violation of the principle of equality of access to
rights occurs if different bodies, which are
in the same or comparable situations are treated differently without
objective and reasonable grounds existed for the followed a different approach.
The contested provisions of section 697 of identity. in the opinion of the code infringes the
the principle of equality of the participants of the petitioner's situation in
access to their rights, in that case the delay of each of the
participants shall lay down any other sanction that is essentially equal and
contradicts the article. 1 of the Charter. The position of landlord and tenant in arrears
with financial remuneration is comparable, because both of them are participants
situation, which is fundamentally different from other
contractual relations. If the tenant is in arrears with payment of the apartment
rent or remuneration for the performance of associated with the use of the apartment, is
the lessor shall be entitled to require from him according to the provisions of § 697 of identity.
the code of the late fee, while if the landlord is in default with
by returning the overpayment on rentals. the excess on the transactions associated with the
the use of the apartment, the tenant is entitled to require from him according to the provisions of section
517 paragraph. 2 of the civil code, only interest. Not yet
look through the fact that the amount of interest on late payment and late fee is
highly divergent. While according to the Government Regulation No 142/1994 Coll., which
the amount of interest on late payments, and a fee for late payment under the civil
the code is currently interest determined on the
double the discount rate of the Czech National Bank, 2% a year (and at the time of
its peak in the period amounted to 27.5.1997 13.8.1998 apparently 26%
a year), is the amount of the fee for late payment set out in the same law on 2.5
per mille of the due amount a day, IE. more than 91% per year.
The claimant further stated that, if perhaps it was an effort of the legislature
cover the non-payment of rent and performance of connected with the use of the apartment
sanctions with more impact than the interest for late payment, has not been to the Dane
the rational reason for non-payment of rent is adequately sanctioned
výpovědním the reason the rental contract according to section 711, paragraph. 1 (a). (d))
of the civil code. The result of this unequal status is said to be compared
This unjustifiable financial burden leaseholders who are (often from
objective reasons) were in financial distress, and as a result, even in the
late payment of rent, which their social status only
makes it more difficult.
According to the appellant's opinion, while not sufficient merely not cited
Regulation of the Government No. 142/1994 Coll. when deciding the General Court under article.
paragraph 95. 1 of the Constitution, as it was said in this case it was not possible to admit
the lessor or the right of the late charge (read: at all),
Since its amount has not been determined, nor the right to interest on late payment,
because of the delay of the tenant to pay the rent and performance associated with the
the use of the apartment by special statutory provisions section just 697
of the civil code, which has precedence over the general application
law § 517 paragraph. 2 of the civil code.
II.
The Constitutional Court has sent a proposal to initiate proceedings in accordance with the provisions of section
69 of Act No. 182/1993 Coll., on the Constitutional Court, as amended
regulations, the parties to the proceedings-the Chamber of Deputies and the Senate of the Parliament of
The Czech Republic-and also the opinion of the Ministry of Justice.
In the Chamber of deputies of the Parliament of the Czech Republic, in particular,
says that equal status, inter alia, means that these bodies
of their rights and obligations to agree, however, if these
obligations do not arise on the basis of the anticipated legal facts directly from
the law. About the express provisions of the civil code is based and the application of the
the penalty provision which lays down the law in specific cases
the lender may require the borrower a fee for late payment under section 697
of the civil code, if the tenant has not paid rent or reimbursement for
the implementation provided with the use of the flat within five days after her due date.
Therefore, in the opinion of the Chamber of deputies cannot identify with the sentiment
the petitioner, that in the present case is unjust and unacceptable
disadvantage tenants or contradiction with article. 1 of the Charter.
The Senate of the Parliament of the Czech Republic in its extensive representation in particular
He stated that the term "late charge" in the civil code was-and
cum grano salis in civil law as such ever-introduced to the 1.
April 1964, in connection with the adoption of Act No. 40/1964 Coll.,
the civil code. This legal Institute was, together with the more general interest of the
the delay is perceived as the paušalizovaná damages, applied in
as a result of the debtor's delay in complying with the debt, but only in civil
the code explicitly defined matters. Late charge came in
account for payment for the use of the apartment or for services associated with the use of the apartment,
In addition to the obligation to return borrowed things and, finally, in the context of the
payment of the invoiced price for the service to which the obligation applied.
In addition to the latter, which was the case with the transition to a market
the economy dropped, the two remaining types, in the opinion of the Senate retained a
in a transformed form of its excellence in the framework of the civil code to the
today's time. The obligation to pay the late fee so ex lege prosecutes-
"in addition to the proposal of the non-payment of rent or payment of the contested for the implementation
provided with the use of the flat within five days after its due date (section 102) "-
no longer just a tenant who is in arrears with the returning things when
business lease of movable assets (Section 723 (1)). Although he was
the nature of social relations in 1964, from the present state
inherently different, can be in the anchoring of the fee for late payment search
above all, the efforts of the then legislature found legally easy
instrument allowing the affect the selected relationships special penalties for
delay, IE. differently from the "interest". Specialty is outwardly
showed above all in the amount of the penalty, that having regard to the importance of
protected rights should be compulsory with increased urgency, discouraged from
the offending behaviour (increased threat of sanctions), it makes us more
intervene in the sphere of property in case of violation of obligations (increased
recourse). It was therefore a legal exception, mj. even in the case of late
the remuneration for the use of the apartment (rent) and its associated services. Neither
the post-Communist regime of the legislature in 1991, no doubt about it, that just
breach of the obligation to pay the rent and the implementation provided with the use of the apartment
(rent in largo sensu) should affect differently-directed-from
the other financial debts. Therefore took advantage of already established, constant
perceived legal instrument-the fee for late payment, modified in
the spirit of the new socio-economic conditions.
The Senate added that constitutionally protected rights from the perspective of the relationship is the lessor
(the owner) apartment-tenant ratio internally collision. This fact is
caused by the collision of the public interest in the protection of the right to housing is a concern
on the protection of the rights of ownership (pronajímatelského). At the same time as to the ratio of the
the asymmetric, in which he was the tenant in the interest of functionality, or the life of the
rental proportion to the apartment from traditional means, such as.
the possibility of the testimony only from exhaustively laid down by the notice of reasons.
In the opinion of the Senate, be aware that such above-standard
preference is given to the lessee only for the price rather than the current restrictions of the rights of
property (pronajímatelských). If from these considerations, it is therefore
the existence of differential access to the bodies of the rental relationship
by setting different legal means-dorovnávajících forces on both
sides and thereby stabilizing the relationship as such-perhaps or even
desirable. The late fee can be in the category of "Executive"
stabilizers. While its primary obligation, the lessor
(abandonment of the flat to use), the tenant of the apartment for his use (
rent). The late fee as a penalty for late payment
the rent is therefore not in accordance with defined criteria to be compared with the
penalties associated with repayment of overpayment, i.e.. with interest. A financial
the debt of the lessor arising from leaks, the excess must be
considered debt from "ordinary" unjust detention (leak)
the money, which is within the rental relationship is compared to the amount of the
referred to the primary duty of the tenant-"on the level".
The Senate finally said that in comparable circumstances (debt to rent
in largo sensu, or "overpaid" on rent) turns out in that
higher financial penalty realistically model to the lessee; Therefore, it can be concluded,
that the relevant regulations of the Government reflects the statutory principle
hardened recourse to this body, on which you can legally require
increased responsibility for their behavior, the way municipal bye-plane
Conformal. In the next, IE. the amount of the fee for late payment issues or methods
his calculation and other economic aspects of the whole issue, is not
They said the Senate may competently express themselves, without unduly
ingeroval to the principle of the separation of powers. It follows from this that the problem
the assessment of the constitutionality of moves in the claim things plane underpinned.
The Senate also recalled that the provisions of section 697 of the Civil Code lays down the
not only the obligation to pay the fee, but also the prolonguje maturity
rentals and reimbursements for the implementation provided with the use of the apartment for five days.
Deletion of this provision would be counter-productive, so there was a
the dismantling of an age-old principle and virtually and to a deterioration in the position of the tenant.
The anchoring of different institutes in case of delay in the monetary debt,
i.e.. in one case, the charge of the delay, in the second case, the interest of the
the delay, the Senate shall be considered as objectively determined, acceptable,
proportional, rationally justify and therefore not constitutionally unfair.
Therefore, this difference does not constitute unconstitutional the relevant moment, for which
should be section 697 of the Civil Code repealed. The Senate still added that
"general courts in relation to the proposals to repeal laws or
individual provisions should hold the legal arguments, which should
be the most convincing, especially when the lower court challenges
long term used and higher (the highest), the courts of the frekventovaně
applied provisions without any doubts about its constitutionality. "
The Ministry of Justice with its comments, signed by the Deputy
the Minister of Justice is, in principle, identified with the opinion of the appellant. In
the provisions of § 697 of the civil code is said to have anchored the apparent inequality
between the rights of the lessee and the lessor, as regards the legal effects of the delay,
in view of the significant difference between the amount of the fees for late payment (duty
the tenant) and interest on arrears (obligation of the landlord). This inequality-
affecting the lessee-to protect cannot be said to defend the lessor
against tax evaders, since this protection is possible other legal
resources (e.g., options to terminate the lease, argues
projector-District Court in Cheb). In the opinion of the Ministry of
Justice is also defensible view that protection in the rental
relationship needs especially the landlord at the expense of the rights of the tenant.
The Constitutional Court, with the consent of all parties to the proceedings-he dropped from the oral
the negotiations, because he decided that from this meeting could not be expect more
clarification of the matter.
III.
The Constitutional Court shall-in accordance with section 68, paragraph. 2 Act No. 182/1993
Coll., on the Constitutional Court, as amended-to deal with
First, the question of whether the unconstitutionality of the provisions of the Act, which is
namítána, was accepted and published in the limits of the Constitution laid down the competence and
constitutionally prescribed way. The contested provisions of the civil code
However, it was accepted and published in the period of validity of the previous constitutional modifications
the legislative process and Division of legislative competence between the then
the Czechoslovak Federation and Republic (Act No. 509/1991 Coll.
5.11.1991, which amends, supplements and adjusts the civil code, with
effect from 1.1.1992), so the Constitutional Court of the fulfilment of the above
the requirements of product reviews. In the case of legislation published before the acquisition
the effectiveness of the Constitution, the Constitutional Court reviewed-settled
case law-only their content consistency with the existing constitutional
policy, and not the constitutionality of the procedure of their creation and compliance
regulatory competence (cf. e.g. find SP. zn. PL. ÚS 10/99,
the findings and resolutions of the Constitutional Court, volume 16, finding no. 150, p. 119;
promulgated under no. 292/1999 Coll.).
IV.
The Constitutional Court thus proceeded to assess the content of the contested provisions
the law in terms of its compliance with the constitutional order of the Czech Republic [article.
paragraph 87. 1 (a). and the provisions of section) of the Constitution, paragraph 68. 2 of the law on the constitutional
the Court].
The provisions of § 697 of the civil code, that the appellant is challenging and
proposes, added: "If the tenant fails to pay rent or reimbursement for
the implementation provided with the use of the flat within five days after its due date, the
obliged to pay the lessor the late fee. ".
In the solution of the examined case cannot be overlooked in the first place, that the
the statutory provisions are closely related with the provision of section 517 paragraph. 2
Civil Code-as one of the General provisions of the contract
rights (part of the eighth identity code)-which enshrines the entitlement of the creditor
(the tenant against landlord) on interest on late payment in the event of delay
the borrower with the implementation of a monetary debt, on the one hand-and in particular-with
the competent implementing regulation to § 517 paragraph. 2 of his/her identity. the code, which is
Regulation of the Government No. 142/1994 Coll., laying down the amount of interest on late payments
and the fee for late payment under the civil code. The Government in it to
the implementation of § 517 paragraph. 2 of the civil code, in particular section 1 mandating,
that "the amount of interest on arrears shall be annually double the discount rate,
set by the Czech National Bank and applicable to the first day of the delay with the
implementation of a monetary debt. "in section 2, that" the amount of the fee for late payment shall be
for each day of delay 2.5 per mille of the owed amount, but not less than $ 25 per
every even month delay. " At this point, however, is to be
noted that in the meantime has to issue a Government Decree No. 163/2005 Sb.
of 23.3.2005, amending Government Decree No. 142/1994 Coll., which
the amount of interest on late payments, and a fee for late payment under the civil
code. The cited section 1 was amended in the following manner: "the amount of interest from the
delay corresponds to a year of repo rate set by the Czech national
the Bank, increased by seven percentage points. In each calendar half-year,
in which the debtor is late takes the amount of interest from the delay depends on the amount of
the repo rate set by the Czech National Bank and valid for the first day
of the calendar half-year. ".
Itself of the provisions of § 517 paragraph. 2 of the civil code reads as follows:
"If the delay in complying with financial debt, the creditor has the right to
request from the borrower in addition to the implementation of the default interest, if not by
This law shall be obliged to pay the late fee; the amount of interest on late payments
and the fee for late payment shall determine the implementing regulation. ". Of the earlier text,
or from the navrhovatelovy constitutional argument, it is clear that the
the proposal essentially challenges the legal situation, which was the result of legal
the adjustments laid down (at the time of submission of the proposal) of the podzákonným regulation, issued by the
on the basis of the mandate contained in section 517 paragraph. 2 of the civil code (...
the amount of interest on late payments and charge on arrears laid down detailed prescription).
There can only be noted that the Government is under the article. 78 of the Constitution shall be entitled to
to issue regulations for the implementation of the law and its limits. Explicit authorization
to issue a regulation is therefore not for the regulatory competence of the Government-on the difference
from the law of ministries, other administrative authorities and institutions
territorial self-government pursuant to article. paragraph 79. 3 of the Constitution-required. However, nothing
does not change the fact that the Constitutional Court, being bound by the petitem design, the
the contested provisions of the Civil Code section 697 judged only in terms of
compliance or non-compliance with the constitutional order of the Czech Republic of the
the provisions of the code itself, and not the implementation. (Note: For
completeness can be delivered-as above-that the cited Government Regulation
No 142/1994 Coll., has been issued for the implementation of § 517 paragraph. 2 of his/her identity. code,
not specifically for the implementation of the contested section 697 of his/her identity. code, even if
It performs consistently taken.) The possible unconstitutionality of the implementing
podzákonného law-and even if it was authoritatively
However, certainly cannot be detected-in itself serve as a reason to
the cancellation of a specific legal provision (in addition, aside from the
the situation that occurred in the intervening period the above change of
podzákonného of the code). The Constitutional Court may under section 70, paragraph. 3
the law on the Constitutional Court-even without the design-speak, that detailed
the provisions in question shall cease at the same time, the law is lifted, validity, not
However, essentially the reverse procedure with possible unconstitutionality-inferred
the contested legal provisions from the alleged inequality (based in the
If a different amount of interest on late payments and late fee)
It is anchored to in the code implementing (in the cited Government Regulation), and
on the basis of the contested legal prescription to cancel.
The Constitutional Court thus-from the perspective of the contested legal provisions and the
taking into account the objections of the petitioner-assess, whether it is in terms of
the complainant claimed the constitutional principle of the equality of a constitutionally
acceptable, that was established to a certain extent a different legal regime for
in case of delay of the tenant to pay the rent or the remuneration for the performance of
provision with the use of the flat on one side and in case of delay
landlord in complying with financial debt on the other. The contents of the
referred to the constitutional principle of the Constitutional Court interpreted in a number of its findings.
Aligned with the understanding of the constitutional principle of equality, as it was
expressed by the Constitutional Court of CZECHOSLOVAKIA (SP. zn. PL. ÚS 22/92, a collection of
the resolution and the findings of the Constitutional Court of the CSFR, 1992, finding no. 11),
He said that "it is for the State, in the interest of the security of its functions
decided that a certain group will provide fewer benefits than others. Even here, however,
shall not proceed completely arbitrarily. If the law specifies the benefit of one
the Group and at the same time lays down the obligations of the other, may be disproportionate, so
the State only with reference to public value. ". The Constitutional Court rejected this
the absolute understanding of the principle of equality; also noted that the equality
citizens cannot be understood as an abstract category, but as the equality
the relative, as they have in mind all the modern Constitution. The content of the principle of
equality in the area of constitutional law that shifted the acceptability of
aspects of the differentiation of the bodies and rights. The first aspect while sees in
the exclusion of arbitrary power; the second aspect is clear from a legal opinion
expressed in terms of the award in the case conducted under the SP. zn. PL. ÚS 4/95 (collection
the findings and resolutions of the Constitutional Court, volume 3, finding no 29, p. 209;
promulgated under no. 169/1995 Coll.), which States: "inequality in social
relations, if a touch of fundamental human rights, must reach the
the effort, casts, at least in a certain direction, already the very essence of
equality. This usually happens when there is a violation of the equality
linked to violations of other fundamental rights, for example. the right to own
the assets referred to in article. 11 of the Charter, one of political rights in accordance with article. 17
and subs. Of the Charter, etc. ". The second consideration when assessing the unconstitutionality
the law, allegedly a founding inequality, is this
-based prejudice any other fundamental right or freedom (Note:
Summary of the conclusions made by the Constitutional Court, with reference to their
specific findings, for example. in the matter of SP. zn. PL. ÚS 33/96, collection of findings and
the resolution of the Constitutional Court, volume 8, finding no 67, pp. 170-171; announced
under no 185/1997 Coll.).
On the basis of that general definition of requirements, asked on the constitutionally
Conformal to the position operators access the legislature investigation
situation, the Constitutional Court concluded that the contested
the provisions of § 697 of the civil code can hardly be considered as a
unconstitutional. The difference in sanctions affecting the party rental ratio-
that basically is the landlord's obligation to pay for the interest of the
the delay and for the tenant in the obligation to pay the late fee, respectively.
subsequent option to lay down the implementing provision at different levels of interest
delay and late charge-the unconstitutionality shall not constitute. The interest of the
the delay and the late fee, the accessories of the claim,
generally used in particular as an instrument to increase legal certainty for creditors.
If a borrower is in default, changing the contents of the bonds and the borrower is obliged to
In addition, pay interest on arrears, respectively. the late fee, if so
the law provides (§ 517, paragraph 2, of the Civil Code). The difference in the
the amount of these penalties or a different method of their calculation is in
the investigated things rationally, not only in terms of the principle of zdůvodnitelný
equality, but also in terms of the principle of proportionality. The legal adjustment
relationship of landlord and tenant of the apartment at all is currently
skewed in favour of the tenant (Institute of the protected tenancy, factual
rent controls, etc.). To a certain extent, therefore, can be identified with the
argument specified in the expression of the Senate of the Parliament of the Czech Republic; in
the relationship of landlord and tenant legal ratio of a specific nature
in a way, the asymmetric, which was and is in the interest of the lessee
the functionality of the rented apartment ratio from traditional means,
as for example. the possibility of the testimony only from exhaustively laid down by the notice
reasons. In a way, the existence of differential access to the bodies
tenancy relationship by establishing different legal resources
stabilizing the legal relationship as such is therefore possible. While
its primary obligation, the lessor (abandonment of the flat to use),
the tenant his duty (the use of the apartment for rent) instead; the fee of
delay as a penalty for delay in the payment of the lease therefore cannot be without
to further compare with sanctions against the lessor associated e.g.. with
by returning the overcharged rents, interest from the delay, since this
the landlord's obligation has the nature of a side and is not an essential element of
tenancy relationship. The Constitutional Court is therefore convinced that, by
the contested special provisions of the Civil Code section 697 to avoid
to any procedure of the legislature and that the legislation, which
potentially allows the law to favor the then podzákonným one
the category of participants the legal relationship as opposed to the second category, does not even
to the violation of the constitutional principle of equality or the violation of the principles of
proportionality (Note: Although the appellant neither explicitly).
The legislature must have space to consider whether such
the preferential treatment. The Constitutional Court therefore does not appear that the
This approach, in this case, allowing a way to favour the
the landlord, not on reasonable and objective grounds.
If this is establishing the specific disproporcionality. inequality,
-having regard to the specific position of the landlord and tenant-about
disproporcionalitu, respectively. the inequality of the constitutionally acceptable and legal
a State that does not have a discriminatory nature.
Those conclusions are therefore not inconsistent with the finding of the SP. zn. PL. ÚS 15/02
(Collection of the findings and resolutions of the Constitutional Court, volume 29, finding no. 11;
declared under the No 40/2003 Coll.), on which the applicant also refers.
The Constitutional Court here, among other things, that certain legislation, which
favours one group or category of persons from other, cannot be
itself without further identified as violating the principle of equality.
The legislature has some room to consider whether such preferential treatment
anchors. Must ensure, to favouring access was based on the
objective and reasonable grounds (the legitimate objective of the legislature), and to
between this objective and the means to achieve it (the legal benefits) existed
the relationship of proportionality. Hardly can then be inferred that the contested legal
the provisions of this policy is violated. It is from the previous argument, this
finding a sufficiently clear.
In General, it can be added that possible asymmetry, having its origin in the period
the totalitarian regime, and the residues of this period, continuing to
Currently, they do not-in principle-in a democratic legal state instead.
It would, however, require all legislation to assess comprehensively the status
landlord and tenant; However, the Constitutional Court with regard to the content of the
and the scope of the proposal-is not authorized in this proceeding. The primary responsibility in
this direction lies in particular in the area of legislation.
Of all of the above reasons, the Constitutional Court came to the conclusion that the provisions of section
697 of the civil code is not in contradiction with the principle of equality or by
article. 1 of the Charter, which the appellant alleges, nor with other principles,
which of the constitutional order of the Czech Republic.
Therefore, the Constitutional Court, in accordance with the provisions of section 70 paragraph. 2 of the law on
The Constitutional Court has rejected.
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, adopted a decision to the plenary
judge Stanislav Package, Vlasta Formankova, Jiří Nykodým and Eliška
Wagner.
