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In The Case Of A Proposal To Repeal Parts Of The Law On Excise Duties

Original Language Title: ve věci návrhu na zrušení části zákona o spotřebních daních

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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.