Sb 375/2013.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court decided under the SP. zn. PL. ÚS 3/13 of 15 April. October 2013 in plenary
consisting of the President of the Court, Pavel Rychetský and judges Stanislav ass-bag,
Louis David, Jan Filip, Jaroslav Fenyka, Ivana Janů, Vladimir
The Crust, Jan Jiří Musil, Nykodýma, Vladimir Sládečka, Catherine
Šimáčkové, Milady Tomková, and Michaela Židlické on the proposal for a regional court
in Ostrava on abolition of the provisions of section 43 of the Act No. 353/2003 SB., about
excise tax, as amended, with the participation of the
the Chamber of deputies of the Parliament of the Czech Republic and Senate of the Parliament of the Czech Republic
as parties to the proceedings
as follows:
The proposal is rejected.
Justification
(I).
Recap of the proposal
1. The Constitutional Court was 10 February. 1.2013 served regional court
Ostrava on the cancellation provisions of section 43 of the Act No. 353/2003 SB., about
excise tax, as amended, (hereinafter referred to as "the law of
excise tax ").
2. the applicant in the constitutional complaint States that his claim was submitted to the
the company AB style, s. r. o., against the decision of the customs directorates
Ostrava from 24 October. 10.2011 no 6248 switch-2/2011-140100-21, which was
rejected the appeal of this company and confirmed the decision of the customs
frydek-mistek Office of 19 July. 8.2011 SP. zn. 8938/2011, which was AB
style, s. r. o., fined according to section 43 of the Act on excise tax in
the amount of Czk 2 925 139, representing 10% of the amount of the amount of taxes assurance
used for the payment of arrears on the excise duty on ethyl alcohol and wine.
The applicant agrees with the constitutional argument, which is
the essence of the action, therefore, within the meaning of § 64 paragraph. 3 of Act No.
182/1993 Coll., on the Constitutional Court, as amended, (hereinafter also
"the law on the Constitutional Court") went to the submission of the application for revocation in
section 43 of the Act applied to the matter of excise duties.
3. the applicant considers that the fine imposed is by its very nature of penalties for
administrative or tax offence, in terms of legal theory is, however, necessary
a prerequisite for the imposition of sanctions, some illegal, or tort
the negotiations. If the law on excise duties on the one hand, counting
ensuring tax obligation of the tax warehouse operator saves tax
(cf. the provisions of § 20 paragraph 9 of the law on excise duty) and
It also regulates the procedure of realization of ensuring tax if the tax
the debtor does not pay the tax or accessories, on the other hand, cannot be
deemed tax payment guarantor for the acts of unlawful or harmful.
The same conduct, respectively. the procedure, cannot be had at the same time in accordance with the
the law and at the same time meet the characters of the administrative (tax) tort.
The provisions of § 43 of the law on excise duties with regard to the above
shows a conflict with constitutionally protected rights and with the principles of the rule of law,
the Czech Republic reported, because the basic characteristics of the legal
the State also include the requirement that the State, through its institutions,
No nepostihoval for the negotiations, which is not illegal nor harmful, and
that is, moreover, explicitly permitted by law.
4. the applicant further points out that, according to the amount of the fine
the cited provisions of the stores only in some cases, the implementation of the
ensure the taxes without this resolution should any rational
basis. The provisions of § 43 of the law on excise duties is, therefore, in the opinion
the petitioner's discriminatory, as determined by the unjustified differences between the
individual entities depending on the means of ensuring the tax.
This provision is so inconsistent with the article. 1 of the Charter of fundamental rights and
freedoms. The appellant sees discrimination also in the fact that similar
provisions does not contain any other tax jurisdiction. Does not exist yet
a sensible reason why a sanction of this nature should be made just
for excise duties, and other taxes does not.
5. the applicant further points out that the provisions in question sets
a fixed penalty, which also specifies the minimum amount of the fine, which
does not in any way take account of personal circumstances and delinquent or
any other relevant circumstances. Therefore, the fine can be completely
unreasonable circumstances of the case and the circumstances of the person to whom the property was
stored, and in some cases may even have a winding-up character.
However, in a legal State sanctions must not be formulated, as already
the Constitutional Court decided in its award of 13 April. 8.2002, SP. zn. Pl. ÚS
3/02 (N 105/27 SbNU 177; 405/2002 Coll.), or in the award of 25 June.
10.2011 SP. zn. PL. ÚS 14/09 (N 183/63 SbNU 117; 22/2012 Sb.). In the now
the present case the Customs Office put AB style, s. r. o., a fine in the amount of
2 925 139 Czk, which in itself represents a significantly noticeable hit to
of its financial circumstances. The Customs office or the Directorate-General of customs duties
the ratios of AB style, s. r. o., nehodnotily or not adequacy
the amount of penalties, because the provisions of section 43 of the Act on excise tax on them in the
contrary to the above described requirements of the Constitutional Court does not provide
administrative discretion nor the moderation of the fine. On this fact
Indeed, the Customs authorities pointed out in the contested decision.
The effects of the winding-up of a fine is to be found also in the fact that under section 9 (2). 1
(a). (b)) Law No 676/2004 Coll., on the compulsory labelling of alcohol and amending
Act No. 586/1992 Coll., on income taxes, as amended
the rules as amended laws, may be the result of repeated
or serious breach of tax or customs legislation, the decision
the Customs authorities of the withdrawal of registration, without which AB style, s. r. o., cannot
Mark alcohol, or to carry out its business activities. The provisions of the
section 43 of the Act on excise tax is so contrary to the constitutional order
The Czech Republic and impermissibly interferes with the rights of AB style, s. r. o.,
owning the assets guaranteed provision of article. 11 of the Charter of fundamental
rights and freedoms.
II.
The progress of the proceedings and a recap of the representation of the parties
15. in accordance with § 69 paragraph. 1 of the law on the Constitutional Court called on the Constitutional
Court of the Chamber of deputies of the Parliament of the Czech Republic (hereinafter referred to as
"Chamber of Deputies") and the Senate of the Parliament of the Czech Republic (hereinafter referred to as
"The Chamber"), that the draft comment.
16. The Chamber of Deputies via the President of the Chamber of Deputies
By Miroslava Nemcova said that the law on excise duties was as
the Government Bill discussed in the Chamber of Deputies as a print no. 317
in the first reading on 20. in May 2003, and commanded to discuss budget
the Committee, a draft law discussed and issued a resolution containing
Amendment (No. 317/1). Second reading of the Bill took place 22.
July 2003, filed amendments in second reading have been
processed as print no 317/2. The Bill was approved in the third
reading on 24. July 2003. In the third reading vote of 198
members of Parliament for the proposal of 100 and 97 against, one abstention.
The provisions of § 43, underwent in the Chamber of Deputies when discussing the changes and
It was adopted in the form proposed by the Government. The Senate Bill was delivered
day 13. August 2003. On 11 July. September 2003 the proposal was discussed and subsequently
returned to the Chamber of Deputies with amendments. The Chamber of Deputies
your vote of 26 May. September 2003, remained on the original proposal.
The President of the Republic signed the Act 13. October 2003. The law was approved
delivered to the signature of the Prime Minister 17. October 2003. The law was published in the collection
the amount of 118 laws under number 353/2003 SB., the contested provision was to
the date of his application, amended a total of four times, and that amendments to the law
No 353/2003 SB. (print no. 317, IV. term)
published in the collection of laws under numbers 217/2005 Coll. (print no 801, IV.
the election period), 575/2006 Coll. (No. 41, in the parliamentary term), 281/2009
SB (print no. 686, in the parliamentary term), 59/2010 Coll. (print no 888, in.
the electoral period). The complainant contested the substance of the provisions of section 43 was
included in the Act No. 353/2003 SB., the following amendment should not
a more pronounced effect on the sense of the contested provisions. In all cases, the
It was the Government's proposal. From the above, that the Bill was
discussed and approved constitutionally prescribed way and according to the standard
the rules of the legislative process.
17. The Senate through its President Milan Štěcha said that the proposal
the Senate Bill was delivered 13 October. in August 2003, 4. term and
as the Senate printing No. 156 it Organizational Committee ordered the Committee to
economy, agriculture and transport (as the guarantee Committee) and the Committee of the
for European integration. Committee on economy, agriculture and transport
on its 20. Meeting 4. term, held on 4 July 2003. September 2003,
discussed and adopted resolution No. 128, which recommended the Senate
the present draft law rejected (156/1). The Committee for the European
to discuss the draft law on the integration of its 21. Meeting 4. functional
the period, held 3 June. September 2003, and resolution No. 97 recommended draft
return to the Chamber of Deputies Act with amendments (156/2). Of the day
September 11, 2003, the Senate adopted on its 10. Meeting 4. term
the resolution, which returned a bill the House of representatives, as amended by
adopted the amendments referred to in the annex to this resolution;
the annex contained the changes centered in 19 points, neither of which
nerevidoval part of the draft law relating to the provisions of § 43 fallen
(Senate resolution No. 205 dated September 11, 2003). For the return of the proposal
the law in a vote no. 50 of the 71 Senators cited for
the proposal for 42 senators, 2 votes against. In the comments is in further detail
described the legislative process the adoption of various amendments of the contested
the provisions that the Senate acted within the limits of the Constitution of the Czech Republic
established competence and constitutionally prescribed way.
18. The Constitutional Court within the meaning of section 48, paragraph. 2 Act No. 182/1993 Coll., on the
The Constitutional Court, asked for the representation of the Ministry of finance and the General
the Directorate of customs. The Ministry of finance in its representation of the first General
right on the issue of administrative punishment, and then to provide the tax
as a specific instrument of the law on excise duties. The Ministry of
Finance stated that ensuring the tax, which is in the law of
excise duties are regulated in § 21 et seq. of Council directive
2008/118/EC on general arrangements for excise duty and repealing Directive
92/12/EEC. The Finance Ministry stressed that the primary function of
ensure the tax under section 21 and subs. the law on excise duties is the protection
the risks associated with the production, processing and holding of products subject to
excise duty. Only secondary features ensure the tax under section 21 and
subs. the law on excise duties is the function uhrazovací. The specific
ensure the tax under section 21 and subs. the law on excise duties is given by
the type of commodities that are burdened with high excise taxes, and the existence of
the regime of conditional exemption from excise duty. Due to the relatively
the long period of maturity, which is longer than the time limit for the submission of tax
the award is a real danger that, in the case when the excise tax is not
the proper and timely paid, not already selected products of the payer
excise duty in their possession. In such cases, ensure at least tax
partially eliminates the threat of misuse of these products or scams with them and
the risks that arise in the present case for the State. Already from the very
the text of section 43 of the Act on excise tax (and possibly other provisions,
that it is necessary to interpret in the context of this provision),
that fine is imposed for the use of collateral for the payment of taxes
excise duty (a procedure in accordance with the law), but for the
that the excise tax has not been paid properly and on time, and at the same time there was a
the reduction of risks. It is therefore evident that the element of illegality here
lies in the fact that the tax entity duly did not pay excise duty in
accordance with the (tax) legislation and the tax administrator was forced to
implement security. Harm occurs, when the breach of the
legal obligations leads to the risk of a particular public interest. In a given
the case is primarily about the public interest in the proper determination and selection
the tax, which follows from § 1 (1). 2 Act No 280/2009 Coll., tax regulations,
where is defined in the basic objective of the tax administration. The public interest can be found
also in the need to cover the risks associated with the production, processing and holding
products subject to excise duty. With regard to the above, it is
should be noted that in the proposal, the District Court referred to the argument concerning the
the impossibility of illegality and harmfulness evaluation discussions leading to
imposition of a fine pursuant to section 43 of the Act on excise tax are not
relevant. Saving this fine so could be a violation of
any character of the rule of law, which it is claimed. The provisions of § 43
the law on excise tax contains a reference to the three exceptions from the obligation to
impose a fine in cases where the collateral is used to cover the tax
excise duty. These are the provisions of § 23 paragraph. 4 (in the Act on
excise tax is from 1. January 2013 given the wrong link, which would
should be directed to the paragraph 3), § 29. 2 and § 33 paragraph. 7 of the law on
excise tax. In all of the above situations is known in advance
the amount of the excise duty, ensuring tax provides a composition or transfer
funds on a deposit account, the tax administrator and is allowed to
take advantage of ensuring the payment of excise tax, with the approval of a body,
who has provided to ensure the tax. For all the above situation also
, has not given consent to the use of tax reimbursement to ensure its
and the excise duty has not been paid properly and on time, the tax will be
proceed in accordance with the provisions of § 23 paragraph. 5 (from 1 January 2013
This is a paragraph 4) or section 29. 5 and § 33 paragraph. 8 of the law on
excise tax, then the tax shall be used to ensure the payment of excise duty on
the tax. It would therefore be illogical to defend the law, let alone penalize
the situation, when the tax agreement will ensure the tax body used
on the payment of taxes. The reason why no other tax provision does not contain
provisions similar to section 43 of the Act on excise tax, is the fact that
only in excise duties to ensure taxes primarily fulfils an entirely different
function than the General Institute ensure tax. The Ministry of Finance on
the claimant does not agree with the conclusion that the lack of discretion in determining
the amount of the penalty, that is for the so-called. typical (e.g. payment delinquencies. the interest of the
delay, penalty), would automatically mean winding-up characteristics of the
the penalties. The reasons why the legislature selected a variant of the sanctions
emerging ex lege in advance the amount derived from a specific percentage
base or bounded by a fixed minimum or maximum threshold,
are predictability and related legal certainty, to avoid
arbitrariness on the part of the public authority, reducing the risk of corruption,
administrative zvladatelnost and speed control. As regards the amount of the
the actual percentage as a parameter, in the assessment of the proportionality of penalties
under section 43 of the Act on excise tax account shall be taken, in particular, to the
the special nature of the business associated with the selected products
excise taxes are charged. Entrepreneurs, who in this area
entering, you are aware of the fact in advance, that this is a highly
the regulated sector, this regulation does not follow only the fiscal target,
but also other objectives (e.g. the protection of the population against the harmful health
products). Regard to the individual circumstances can affect the impact of the sanctions on the
the tax entity, for example. Institute of layouts using posečkání or
payment of the instalment (§ 156 et seq. of the tax code). Finally, The Ministry Of
the Treasury points out the existing bezrozpornost this provision and its
the general acceptance of the tax bodies.
19. The Directorate-General of customs duties in their observations indicated that ensure
tax under section 21 of the law on excise duties is the Institute that
represents a specific guarantee in particular for allowing use of the benefits of the scheme
conditional exemption from taxes, which means a postponement of the obligation to admit
and pay the tax. Ensure the taxes, if the authorisation pursuant to act
on the excise tax, which cannot be without providing collateral of tax at all
issue, must be maintained throughout the period of existence of the authorization in the
the statutory amount. The provision therefore does not relieve the tax tax assurance
obligations of the tax body within a specified period to admit and pay. Fine in the
the amount of 10% of the amount of collateral used for the payment of tax, the tax is sanctioning
instrument of a similar nature as the fine for late tax claim
under section 250 of the tax code or interest in accordance with section 252 et seq..
the tax code. "Illegal" behaviour that precedes its imposition,
is the same as in the case of the obligation to pay interest on arrears, and it
non-payment of the tax due within the period of its maturity. It is therefore a
the negotiations, which is not socially dangerous, but threatens the fiscal
the interests of the State. At this point it should also be pointed out that the tax
does not qualify for the full amount of the estimated tax liability, but only
Pro rata (§ 21.7 of the law on excise duties). General
Directorate of customs duties does not agree with the opinion of the regional court in Ostrava,
the law on excise duties would even make the tax entity for negotiations,
that is not illegal and is expressly allowed by law. That,
the law on excise tax provides that the tax administrator uses to ensure
the tax on the payment of taxes, if it is not paid within the statutory period of its
maturity, and at the same time regulates the procedure of tax against the guarantor,
does not relieve the tax entity despite the tax obligation provided collateral
tax due date to pay. To query the Court, what consequences would
the repeal of section 43 of the Act on excise tax, General
Directorate of customs duties States that its abolition could for certain tax
operators lead to loss of motivation to pay tax due, within its
When they are given to ensure tax. Automatic uhrazování payable
taxes from the provided collateral without the threat of sanctions for operators
tax warehouses and the repeated legitimate recipients (i.e. holders of
the permit, which is "not" one-time power) led to a reduction in
or the exhaustion of the provided collateral, which would mean a tax increase
in cases where the tax entity had to be called to the tax administrator
Supplement to ensure tax, if the time limit laid down in § 21. 10
the law on excise duties did not do himself. Ensure the taxes would
virtually lost its function guarantees in relation to business activities
consisting of the production and management of selected products, and would
facto advance on tax.
20. The Constitutional Court posted the above representation of the applicant and allowed
his comment, the appellant, however, this possibility.
21. in accordance with § 69 paragraph. 2 of the law on the Constitutional Court sent the constitutional
the Court proposal to the Prime Minister of the Czech Republic, which, by letter of 4 February 2002. 3.
2013 said that their right to enter into the control.
22. Also, the Ombudsman, which was sent to the proposal in accordance with section
paragraph 69. 3 the law on the Constitutional Court, said that his right to enter the
management does not use.
III.
The diction of the contested provisions
23. The contested provisions of section 43 of the Act on excise tax:
The fine
The tax administrator shall apply to ensure the tax to pay the tax, save
the operator of a tax warehouse, authorized recipient under section 22,
the authorized consignor pursuant to section 3 (b). to tax representatives)
the sending of the selected products under section 33, or a fine of 10 users
% of the amount of collateral used for the payment of tax, the tax. If the tax administrator
apply for reimbursement of taxes to ensure tax according to § 23 paragraph. 4, § 29. 2
and § 33 paragraph. 7, the penalty is not saved.
IV.
Locus standi of the petitioner
24. According to the article. paragraph 95. 2 of the Constitution of the Czech Republic, if the Court is to
the conclusion that the law, which is to be used in solving the case, is in contradiction with the
constitutional order, refer the matter to the Constitutional Court. This permission is also
instantiated in § 64 paragraph. 3 the law on the Constitutional Court, according to which the
the Court in the Constitutional Court, to submit a proposal for the repeal of the law or its
individual provisions. The condition of such litigation consulting
the proposal is the fulfillment of the article. paragraph 95. 2 of the Constitution of the Czech Republic in the
that must be about the law, which has to be in the solution of the matter
used, IE. Act or its provisions, which, it is proposed to abolish,
the applicant should be directly applied in resolving a particular dispute.
The Constitutional Court found this condition the filled, as the applicant-
The regional court in Ostrava-decides on an action against a decision of the customs
Headquarters Ostrava from 24 October. 10.2011 no 6248 switch-2/2011-140100-21,
which have been applied, the contested provisions of the law on excise duties.
In the.
The constitutional conformity of the legislative process
25. In the context of proceedings for annulment of the Act or part of the constitutional
the Court examines whether the contested regulation was adopted and published within the limits of the Constitution
The Czech Republic provided for competencies and the constitutionally prescribed manner (section
paragraph 68. 2 of the law on the Constitutional Court).
26. the draft of the law on excise duties was circulated to members as a print
317/0 day 2. 5.2003. Resolution No. 636 of 24 October. 7. the 2003 lower House
the proposal was approved by the majority of the 100 members of the 198 present, against the proposal
voted 97 members. Day 13. 8. the 2003 Senate forwarded the proposal (print
156/0) discuss and handed it back to the Chamber of Deputies with the EP amendments,
proposals (resolution No. 205). Chamber of deputies of the Senate proposal is returned
Bill discusses the 26 March. 9.2003 (resolution No. 653) and Bill
approved by a majority of 101 deputies of the 199. Against voted 96
members. President of the Republic, the law was delivered on 30. 9.2003 and the date of
13.10. 2003 President of the Republic signed it. The law was declared the day
24.10. 2003 in the collection of laws under no. 118 in 353/2003 Coll.
27. The Constitutional Court finds that the adoption and publication of legislation,
whose provision is subject to review, in the prescribed manner.
Due to the fact that the appellant did not defect of the legislative process
Neither the Constitution of the Czech Republic exceeded the prescribed competence
the legislature, the Constitutional Court regarding the
-Act No. 217/2005 Coll., amending Act No. 353/2003 SB., about
excise tax, as amended, law No. 265/1991
Coll. on the competence of the authorities of the Czech Republic in the area of prices, in the text of the
amended, and some other laws,
-law no 575/2006 Coll., amending Act No. 353/2003 SB., about
excise duties, in wording of later regulations, and other related
the laws,
-Act No 281/2009 Coll., amending certain laws in connection with the
the adoption of the tax code,
-Act No. 59/2010 Coll., amending Act No. 353/2003 SB., about
excise duties, in wording of later regulations, and Act No. 676/2004
Coll. on the compulsory labelling of alcohol and on the amendment of Act No. 586/1992 Coll., on income tax
income, in wording of later regulations, as amended,
-Act No 407/2012 Coll., amending Act No. 353/2003 SB., about
excise duties, in wording of later regulations, and other related
the laws,
In addition to taking into account the observations of the Chamber of Deputies and submitted
The Senate formally verified the progress of legislative process of publicly
the available information resources on http://www.psp.cz.
VI.
The abandonment of an oral hearing
28. In accordance with the provisions of section 44 of the Act on the Constitutional Court, if the proposal was outside the
the oral proceedings without the presence of the participants in the resolution of the rejected orders
The Constitutional Court of the oral proceedings, if it can be expected from this meeting more
clarification of the matter. For the fulfilment of the conditions of this provision
the Constitutional Court ruled on the matter with the abandonment of the oral proceedings.
VII.
The legal evaluation of the Constitutional Court
29. the proposal is not, as regards the alleged unconstitutionality of the content of the contested
provisions, reasonable.
30. In the explanatory memorandum to the law on excise duties was to diction
the contested provisions stated that sanctions for violations of tax discipline
they are generally listed in Act No. 337/1992 Coll., on administration of taxes and fees
in the wording of later regulations. It is not, however, set out the penalties for
the offense, when due to the failure to admit and pay the tax
the administrator must obtain a tax payment of its collateral.
31. Thus, it follows from the explanatory memorandum that the functions in question fine, as it
provides section 43 of the Act on excise tax, is the imposition of sanctions in case
When the excise duty has not been paid properly and on time, therefore, had to be
used to ensure the payment of excise tax, thus reducing the
risk coverage. How is the representation of the Ministry of finance, is in
such a situation compromised the public interest especially on the correct determination and
tax collection, which follows from § 1 (1). 2 Act No 280/2009 Coll., tax
regulations, and also the public interest in the need to cover the risks associated with the production,
processing and holding of products subject to excise duty. The constitutional
the Court, which has no objection to the conclusions arising from the explanatory memorandum and
representation of the Ministry of finance, not přisvědčit the claimant in
that would be the tax entity in this case now fined for
payment of tax by law as expected-in the form of realization of
ensure the taxes. As follows from § 21. 3 and 4 of the law on excise duties
taxes, ensuring the tax applies, the Customs Office to pay the tax, if not
tax paid within the legal time limit of its due date, it is the tax administrator
obliged to call upon the debtor for payment of the tax. At the time of payment of the tax
the tax administrator and thus reducing the amount of taxes assurance, which is
laid down in § 21. 7 this act as a pro rata amount of the
the estimated tax liability. Ensure the tax, if it is a
authorisation in accordance with the Act on excise tax, which cannot be without providing
ensure the tax at issue, must be maintained at all times
the existence of the authorization in the statutory amount. The fine is so
at the same time financial penalties for the loss of the volume of financial resources that
He was the holder of the authorization must provide before the release of this permit.
The payment of the Tax Office of the tax is not yet law
the present way of paying taxes, but the way the replacement,
implemented in the event that the tax entity pay tax properly and in time.
Such a way is, however, associated with the imposition of a fine in the amount of 10% of the amount
ensure the taxes used to pay taxes, which should be for the tax
body, inter alia, reason to tax paid properly and on time, and the law
laid down ensure the intact. The Constitutional Court therefore cannot
přisvědčit the appellant's objection that, in the present case was now
penalty tax entity for acts for which you cannot find
elements of illegality or harmfulness, and which is on the contrary in the Act
expressly permitted.
32. the applicant further submits that the contested provision has a discriminatory
the character, since without proper reason, contains a reference to the three exceptions to the
the obligation to impose a fine in cases where the tax is applied to ensure
the payment of excise duty.
33. In the first case, it is the authorization for recurring adoption
the selected products in the conditional exemption scheme or to
authorization for one-time adoption of the selected products in the conditional mode
exemption from taxes. Pursuant to section 22 paragraph 1(b). 9 of the law on excise duties then
, the tax administrator shall determine the amount of taxes assurance and shall issue the authorisation
repeatedly receive the selected products in the regime of conditional exemption from
the tax, if the applicant shall ensure that tax in the amount corresponding to the amount of tax which
the recipient is entitled to a lump sum after receiving the selected products
entry into free tax circulation required to admit and pay. With
the consent of the petitioner, the administrator can provision provided tax tax
to pay the tax. If you fail to do so, the tax administrator shall decide on the release of
ensure the taxes within 5 working days from the date on which the amount of the tax was
credited to the account specified by the tax authorities, in whose territorial scope has
the legitimate recipient of the registered office or place of residence.
34. The provisions of section 29. 1 and 2 of the law on excise duty establishes
the obligation of legal or natural persons for selected products from the
another Member State for the purposes of the business register before
by removing these selected products put into free tax circulation
in another Member State as a tax payer and notify the administrators of the tax amount
the selected products and provide collateral in the amount of tax which would have been
obliged to admit and pay, if the selected products have been listed in the
free tax circulation to the tax territory of the Czech Republic. Also in this
the case may, with the consent of the person who has provided to ensure the tax administrator
the tax provided by ensuring tax to pay the tax.
35. The last group refers to the sending of the selected products that have been
put into free tax circulation in another Member State to a natural or
a legal person or on his behalf, and this person has in this
another Member State of the place of residence or registered office, legal or natural
a person established or resident in the territory of the Czech Republic, the tax
that business or another individual does not exercise an economic activity.
A tax representative for the sending of the selected products is obliged before each
by sending selected products from another Member State to provide the
ensure the tax that corresponds to the amount of tax for the amount sent
the selected products, where these products have been listed in the selected
free tax circulation to the tax territory of the Czech Republic. With the consent of
a tax representative for the sending of the selected products can the tax administrator
the locally competent tax representatives for the sending of the selected products
provided by ensuring the tax to pay the tax.
36. The Constitutional Court summarizes, that these are the cases where the Customs Office of
pay tax provided by providing tax, with the approval of the authorised
recipient for one-time adoption of selected products (section 23 (3) of the Act
on excise duties) or pay the tax provision provided tax
the consent of the legal or natural person purchasing selected products from
another Member State for the purposes of the business (art. 29 (1) and (2) of the law on
excise tax) and, finally, if the tax paid provided
by providing tax, with the approval of a tax representative for the sending of the selected
products [§ 3 (b). t), § 33 paragraph. 7 of the law on excise tax].
37. The Constitutional Court with the question of equality in the rights dealt with already in the series its
decision. Expressed mainly in the sense that the constitutional principle of
equality expressed in the article. 1 of the Charter of fundamental rights and freedoms does not
absolute equality. In finding SP. zn. PL. ÚS 6/96 of 5 July. 11.1996 (N
113/6 SbNU 313; 295/1996), which established case-law on the other, it
specifically, expressed as follows: "the constitutional principle of equality in the rights enshrined
in the article. l of the Charter cannot be interpreted absolutely and equality as a category
the abstract. The Constitutional Court of CZECHOSLOVAKIA has already expressed its understanding of equality, in
that article anchored, as relative equality, as they have on
the mind of all the democratic Constitution, requiring only the removal of
unjustified differences (finding of the Constitutional Court of the CSFR, published under no. 11
The collection of resolutions and findings-CSFR). The principle of equality in the rights is therefore
need to understand the legal distinction in the approach to certain
rights between legal entities may not be the result of arbitrary power, it does not imply
However, they would each have to be granted any right ".
38. in General, the Constitutional Court interprets the principle of the equality of the dual perspective
[see, e.g. findings SP. zn. PL. ÚS 16/93 of 24 June 1993. 5. the 1994 (N 25/1 SbNU
189; 131/1994 Coll.), SP. zn. PL. ÚS 36/93 of 17 December. 5. the 1994 (N 24/1
SbNU 175; 132/1994 Coll.), SP. zn. PL. ÚS 5/95 of 8 June. 11.1995 (N 74/4
SbNU 205; 6/1996 Coll.), SP. zn. PL. ÚS 9/95 of 28 June 1995. 2. the 1996 (N 16/5
SbNU 107; 107/1996 Coll.), SP. zn. PL. ÚS 33/96 of 4 June. 6.1997 (N 67/8
SbNU 163; 185/1997 Coll.), SP. zn. PL. ÚS 9/99 of 6 September. 10.1999 (N
135/16 SbNU 9; 289/1999 Coll.) etc.]. The first is given by the requirement of the exclusion
the arbitrariness in the procedure of the legislature in differentiating groups of operators and their
rights, the second requirement of acceptability of the constitutional aspects of the
differentiation, i.e.. non-prejudice of one of the fundamental rights and
the freedoms and rights of the odlišováním bodies of the party of the legislature. From postulátu
Although the equality does not imply the requirement of general equality of each with each,
However, it follows from the requirement that the law does not specifically favour or for no reason
neznevýhodňovalo some before others. The constitutional order thus admits
law-based inequality, if it's constitutionally acceptable
the reasons why.
39. As is the case now in the present case. From the above, it is clear
that in the above-mentioned cases, exemptions from the obligation to impose a fine,
It is always about the situation, when it is known in advance the amount of the excise duty,
ensure the tax in the amount corresponding to the amount of tax which is a tax body
obliged to admit and pay, provides lodging or transfer
funds on a deposit account, the tax administrator and is expressly
to use the law to ensure the payment of excise tax,
the consent of the body which has provided to ensure the tax. You can thus agree with
the argument of the Ministry of finance, that is not grounds for sanction by law
predicted and authorized the negotiations, which is to ensure that tax, which in
these cases primarily feature uhrazovací (unlike the cases
not covered by the exception, where first the locking function),
approval of the tax entity used for the payment of taxes. On the other hand, in the
other cases of selected products, which is located in the mode
a conditional exemption, it is necessary to ensure the taxes to perceive, so that
to use for the payment of the excise duty due has to occur only
exceptionally, in order to avoid to reduce the volume of
resources. In these cases, it is also unlike the above described three
specific situations, given the possibility of ensuring tax is also a bank guarantee,
If its adoption decides the tax administrator, or by a guarantor, if the person
the guarantor shall authorize the tax administrator.
40. The Constitutional Court therefore considers that the applicant could not be přisvědčit that the
the contested provisions of the differences between tax-based operators in the
Depending on the selected way of ensuring taxes are unjustified. In
appointed by the cases because the tax entity shall notify the tax administration of the exact
the quantity, or even removed, with the name of the Customs Office is
authorised within the meaning of § 26 paragraph. 7 of the law on excise duties required
before the start of the transport of selected products in the conditional mode
tax exemption or tax exempt designation of these products.
The tax can be paid with the consent of the person concerned from the provided collateral
taxes (which must be made up in the amount of tax that you would have the person
admit and pay) if the tax is paid, the Customs Office released
ensure the taxes within five working days from the date of crediting of the tax on specified
an account of the Customs Office. The legal conditions laid down for the following constitutional
the absence of court fines to pay the taxes from the provided collateral, as is
conceived in the contested provisions of § 43 of the law on excise duties,
supported by a rational and constitutionally acceptable reasons
will not constitute an inadmissible discrimination tax entities.
41. Finally, the applicant argued that the fine is not enshrined in the
no other tax legislation and her character is winding-up, which is
due to, inter alia, its fixed rate, which makes it impossible to take into account equity
and the personal circumstances of the tax body, where appropriate, and other relevant circumstances.
42. As regards the fact that the equivalent of the fine pursuant to section 43 of the Act on
excise tax does not occur in another tax code here
points out, the Constitutional Court on a specific group of products subject to
excise duties, which are mineral oils, alcohol, beer, wine, and
intermediate products and tobacco products, and on the fact that business with
the type of products (in particular as regards tax warehouse operator
or recipient, or sender) is subject to the
the authorization for the operation of such activities. According to § 19 paragraph. 1 of the law on
excise duties, the selected product is in the conditional mode
in the case of tax exemption, it is placed in a tax warehouse or is
shipped in a conditional exemption scheme. For each tax
the warehouse must ensure a match tax if the law on excise duties
otherwise, the amount provided for in § 21. 7 of this Act. Also
products can be selected in the mode of a conditional exemption from the tax haul
only if the operator sending tax warehouse or
the authorized consignor shall provide to ensure the tax in the amount of tax that would be
He was obliged to admit and pay when placing transported selected
products into free tax circulation, if the law on excise duties
provides otherwise.
43. The Constitutional Court is to issue fines and their possible winding-up
the impact on individuals more than once, for example, dealt with by the applicant
cited the findings of 13 June. 8.2002, SP. zn. PL. ÚS 3/02 (see above),
of 10 June 1999. 3.2004, SP. zn. PL. ÚS 12/03 (N 37/32 SbNU 367; 300/2004
SB.) and of 25 October 2000. 10.2011 SP. zn. PL. ÚS 14/09 (see above). In the first
two of the findings of the Constitutional Court expressed the unconstitutionality of the statutory
the rate of fine (monetary punishment) because of that fine, if saved
in the minimum permissible area, extends into the financial circumstances of the individual,
considerable intensity and has a winding-up character. The Constitutional Court expressly
He stated that "the fine can be considered as interference with constitutional dimensions, and it
in the event, it will interfere with an individual's assets with considerable
intensity. Therefore, the Constitutional Court assessed the purpose of intervention in relation to the
the resources used, with a yardstick for the assessment was the principle
proportionality. " In the last-cited finding SP. zn. PL. ÚS 14/09
the Constitutional Court has come to the conclusion that "constitutional provisions do not require the
the legislature in the statutory determination of the penalty rates always refrained from
the lower border of the acreage of the sanctions. Type the severity of (harmful)
the negotiations of the kind of tort may be so high that the
does not allow nor in the individual case, provide for zero ' value
the acreage of the sanctions. Assessment of the lower limit of the penalty rate is fundamentally things
the legislature. Constitutional provisions do not contain regarding the lower boundary
penalty rates of any directive but must be adhered to-command
proportionality between the type and the amount of the severity of the tort conduct
penalty rates. " Different views on which the appellant points out, the
referred to the principle of proportionality (in the intervention in the title)
and the requirement of individualization (proportionality).
44. The Ministry of finance in a constitutional complaint States that in
the case of penalties (payment offences), which routinely tax provisions
provides for a fixed penalty is not in the right sense of the word, but it is a
the penalties provided for a certain percentage of the amount of the fine, the performance of which the
violation of the tax obligation applies in a particular case. Therefore, in the
individual cases will be the amount of the fine, and that to a large extent in
Depending on the intensity of violations of the tax obligation, for which the range is
financial, whose violation concerned the key. This scope also to
largely reflects the individual economic circumstances penalised
the body, which are for a range of financial. Although
Thus, the penalties for administrative offences in the administration of taxes are not normally
set to to the individual review of the circumstances
penalised in each individual case, has already
by itself the overall system setting their construction built in.
"automoderační" mechanism, which is the amount of the penalties (i.e. in this case
the percentage value) is determined by the legislature in the law itself and alone
It takes into account the severity of the violations of the tax obligations and to a large extent
individual economic circumstances penalised body.
45. The conclusions of the Ministry of finance can accept as long as that analogy as
other penalties for violations of the tax discipline, as they are designed in
tax regulations, also the fine is fixed percentage
rate. This is about 10% of the amount of the tax, which was to ensure the
the payment of the tax applied, not from the whole ensure the taxes.
46. As is clear from the above cited findings of the Constitutional Court, the decisive
consideration for the assessment of the purpose of intervention in relation to resources used
is the principle of proportionality. The Constitutional Court on this point again
points to the fact that, in the case of excise taxes not
"regular" tax, but the tax relating to the specific product group,
taking business with them shall be subject to a special regime, which is concerned
tax entities known in advance. Similarly, how did the Constitutional Court in its
the award of 25 June. 10.2011 SP. zn. PL. ÚS 14/09, and in the present now
things, the Constitutional Court dealt with the question of whether the fixing of a fixed percentage
the rates of fines is not affected by the principle of administrative discretion if decisive
in the specific case of authority cannot sufficiently take account of the social and
the whole of the circumstances of the tax body and properly differentiate assessment
sanctions or from its storage completely.
47. The Constitutional Court with the question of the constitutionality of penalties (article 135d of law No.
353/2003 SB., on the excise tax, as amended by Act No. 217/2005 Coll.) from
because of an alleged breach of the principle of differentiation and proportionality of penalties
in its recent award of 30 November. 7.2013 SP. zn. PL. ÚS 38/11
(republished under no 299/2013 Sb.; available as others quoted above
the findings of the Constitutional Court also on http://nalus.usoud.cz), in which the
He stated that answering questions the need for sanctions as such (in the
the meaning of nature of this sanction), or the related issues of the intensity
the protected public interest, judicial interpretation could not be performed. The constitutional
the Court stated that it is a question of a political nature whose solution
It is in the exclusive competence of the legislature, which ultimately belongs to
legislative issues, whether a certain conduct is to be criminal or
Instead, define the factual matters offences (crimes,
offences, other administrative offences) and the determination of the type and level of sanctions. In
the award cited the Constitutional Court also pointed to persistent
fragmentation and conception in the legal regulation of administrative punishment and
deduced that the absence of the possibility of the administrative discretion in the law cannot be
interpreted as meaning that the legislature had intended to exclude the obligation of the administrative
authorities ensure by way of the administrative discretion of the constitutionally guaranteed fundamental rights
citizens; such an interpretation would not be considered constitutionally Conformal.
The absence of explicit editing such options in the Act therefore did not find itself
the reason for the intervention of the Constitutional Court or to the Constitutional Court
said the unconstitutionality of this gap in the law.
48. The Constitutional Court cannot put aside from the fact that the contested legal
the standard requirement for differentiation of sanctions no longer respects the fact that the stored
the fine is dependent on the amount of arrears of excise duty. From this
You can view on the above subject to the penalties stated in its
as a result reflects the volume of funds moving in trade with
mineral oil, alcohol, beer, wine and intermediate products, and tobacco
products, which corresponds to the amount of the tax, the tax body shall
admit and pay, and then even the amount of the tax, from which it is
the fine is deducted within the meaning of section 43 of the Act on excise tax. For this
the situation and taking into account the above cited conclusions as they result from the
finding SP. zn. PL. ÚS 38/11, the Constitutional Court could not come to a General
the conclusion that the contested provisions would set penalties for tax
the bodies moving in the area of business with strictly regulated
commodities liquidation.
VIII.
The conclusion of the
49. The Constitutional Court therefore concludes that the did not find reasons to say
the unconstitutionality of section 43 of the Act on excise tax, and therefore the proposal without
the implementation of an oral hearing pursuant to 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.