The Constitutional Court found No 104 / 2025 Coll.
Findings of the Constitutional Court sp. zn.
Valid
104
FIND
The Constitutional Court
of 12 March 2025
sp. zn. Pl. ÚS 21 / 21 in the case of the application for annulment § 155 paragraphs 4 and 5 of Act No. 541 / 2020 Coll., on Waste
On behalf of the Republic
On 12 March 2025, the Constitutional Court decided under sp. z. z. pl. ÚS 21 / 21 in plenary composed of the President of the Court of Josef Baxy and judges and judges of Lucie Dolanská Bányai, Josef Fiala, Jaromír Jirsy, Milan Hulmák, Veronica Christian, Zdenka Kühn (Judge of the Rapporteur), Tomáš Langášek, Jiří Nábán, Kateřina Ronovská, Dity Řepková, Jan Světona, Pavel Šamal and Daniela Zeman, on the proposal of the 25 Senators of the Senate of the Czech Parliament, represented by JUDr. Peter Svobová, Ph.D., a lawyer, on behalf of the Parliament of the Parliament of the Chamber of the Republic, on behalf and the Government and as a party to the Court and to the Court of the Court of the Court of the Court of Justice,
as follows:
I. Paragraph 155 (4) of Act No. 541 / 2020 Coll., on waste, if it is the essential component of the waste storage charge pursuant to § 45 (1) of Act No. 185 / 2001 Coll., on waste and on the amendment of certain other laws, as effective before 1 January 2021, shall be deleted from the date of the declaration of findings in the Collection of Laws and International Treaties.
II. The remainder is rejected.
Reasons
Subject matter of the procedure and text of the legal provisions contested
1. In this finding, the Constitutional Court solves the constitutionality of the transitional provision of Act No. 541 / 2020 Coll., on waste, which retroactively withdrawn the right of beneficiaries (municipalities and the State Environmental Fund) to part of the fee paid by waste producers for the disposal of waste into landfills under earlier legislation effective before 1.1.2021 and which was paid to beneficiaries by the landfill operator. At the same time, the Constitutional Court addresses the retroactive abolition of the obligation of the landfill operator to create a financial reserve for part of the waste deposited under the legislation in force before 1 January 2021.
2. The contested provisions, including footnote, shall read as follows:
"(4) For waste destined for landfill use in the first phase of the landfill operation and for the production of products pursuant to Article 3 (6) of Act No. 185 / 2001 Coll., as effective before the date of the entry into force of this Act, intended for landfill use in the first phase of the landfill operation, which is treated in accordance with the conditions of the legislation25) on the basis of an integrated permit issued under Act No. 76 / 2002 Coll., on integrated prevention and on the modification of certain laws (Act on Integrated Prevention), as amended by Act No. 69 / 2013 Coll., and with which the landfill was treated after the entry into force of Act No. 229 / 2014 Coll.
(5) For the waste referred to in the previous paragraph, the landfill operator shall not create a financial reserve for the reclamation, maintenance of the landfill and rendering after the completion of its operation pursuant to Sections 49 (1) and 51 (4) of Act No. 185 / 2001 Coll., as effective before the date of entry into force of the Act.
25) Decree No. 294 / 2005 Coll., on the conditions for the disposal and use of waste on the terrain and amending Decree No. 383 / 2001 Coll., on the details of waste management. Decree No. 383 / 2001 Coll., on Details of Waste Management. '
Arguments of the appellant
3. The appellant, a group of 25 Senators, proposes that the Constitutional Court annul Article 155 (4) and (5) of Act No. 541 / 2020 Coll., on Waste, ("the Waste Act" or "the New Waste Act").
4. The appellant submits that, according to the contested Section 155 (4) of the Waste Act, waste producers do not pay for waste which, in short, has been used to secure the landfill itself in order to comply with the statutory parameters (usable waste or waste for technical security of the landfill), the storage charge provided for in Section 45 (1) of Act No. 185 / 2001 Coll., on waste and amending certain other laws, as amended by 31.12.2020 ("the Old Waste Act '). According to Section 155 (5) of the new Waste Act, the landfill operator does not create a financial reserve for its recovery after the closure of the waste landfill pursuant to Section 155 (4) of the same Act, which it was obliged to create under the old Waste Act.
5. The contested provisions were not part of the government proposal submitted to the Chamber of Deputies on 18 December 2019, which was subsequently discussed as House Press No. 676, but was inserted into it by Mr Antonín Stanek's amendment, No 4650, as part of House Press No. 676 / 9. This amendment was approved by the Chamber of Deputies at its third reading at its 58th meeting on 18 September 2020 by Resolution 1241.
6. According to Section 45 of the Old Waste Act, the producer of the waste, even if he was a landfill operator himself, had to pay a waste storage fee. The landfill operator had an obligation to collect a fee from the waste originators and to pay the fee levied by law to the recipient of the charge, i.e. the municipality in whose cadastral territory the landfill is located, or the State Environmental Fund (§ 46 (2) of the Old Waste Act). Paragraph 45 (3) of the Old Waste Act provides for an exemption from the obligation of the producer of waste to pay this fee for waste which is technologically securing the landfill. However, according to the same provision for this exemption, the restriction was that the material for the technological security of the landfill for which no charge was paid could amount to a maximum of 20% of the total weight of the waste deposited in the landfill during the calendar year in question.
7. According to the legislation contained in the old Waste Act, the fee obligation would also apply to the producer of waste that has not yet paid the fee or to the landfill operator that has not yet paid the fee. Similarly, if a landfill operator had placed some waste in a landfill as usable waste before 1 January 2021, but above the annual limit of 20%, but had not yet collected a fee from the waste producer or levied a fee on the waste producer, those obligations would have continued and the beneficiaries of the charges would have retained their claims.
8. The contested transitional provision of Section 155 (4) of the new Act on waste from the general intertemporal rule contained in Section 155 (3) of the same Act provided for an exemption for that category of recovered waste (i.e. irrespective of the annual limit of 20%) that the waste producer did not pay a storage fee for such waste. It is thus stated that the current fee obligation for the category of recovered waste exceeding the statutory annual limit is abolished directly from the total fee obligation and from the rights and obligations related thereto. Consequently, the beneficiaries of the levy by law will no longer have their right to payment or, where appropriate, the payment of the fees due.
9. This exemption is subject to an additional derogation under Section 155 (5) of the new Waste Act: for the category of recovered waste, the landfill operator does not need to create a financial reserve under Sections 49 (1) and 51 (4) of the old Waste Act. If the landfill operator did not establish a financial reserve for that category of waste before 1.1.2021 to the extent required, it may not have to complete it further from 1.1.2021. On the contrary, if the landfill operator had created that reserve before 1 January 2021 even for the category of recovered waste, it may not hold and dispose of the corresponding funds deposited in a bank account at any time from 1 January 2021.
10. The applicant contends that Article 155 (4) of the Waste Act contravenes the principle of legal certainty under Article 1 (1) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), the principle of equality in rights under the first sentence of Article 1 of the Charter of Fundamental Rights (hereinafter referred to as the Charter), in conjunction with the fundamental right to the protection of property and property under Article 11 (1) of the Charter and the right to conduct freely pursuant to Article 26 (1) of the Charter. The provision gives rise to genuine retroactivity because it changes the consequences of the legal relationship that occurred under the effectiveness of the old Waste Act, by abolishing, directly by law and without further delay, the legal obligations of waste producers and landfill operators arising and not yet fulfilled. The contested provision eliminates not only the obligations of waste producers and landfill operators, but also the rights and legal requirements of waste recipients, which is unconstitutional. The transitional provision also creates an inequality in rights between "fair 'waste agents and landfill operators who paid before 1 January 2021 and paid a fee for waste deposited as a material for technical security of the landfill, if it exceeded its 20% annual limit, on the one hand, and" unfair' waste producers and landfill operators who did not pay or pay the amount due for waste deposited as usable above that legal annual limit, on the other hand. The appellant finds this inequality contradictory to constitutional order. The essence of the contested provision is that it "allows unfair taxpayers to benefit from their infringement '.
11. The following Section 155 (5) of the Waste Act is contrary to the fundamental right to a favourable environment under Article 35 (1) and (3) of the Charter. By reversing the financial reserve for sanitation and the reclamation of landfills, the legal provision interferes without any reasonable reason and with the obvious characteristics of the arbitrary right to a favourable environment. In the amendment by Mr Antonín Staňek, there is no justification for the transitional provision of Section 155 (5) of the Waste Act (only paragraph 4 is justified), which underlines the legislator's apparent insecurity.
Proceedings
12. The Constitutional Court assessed the procedural assumptions of the proceedings and concluded that the application was submitted to that effect by an authorised appellant, a group of 25 Senators [§ 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court]. The Constitutional Court found no reason for the inadmissibility of the application pursuant to Article 66 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court ') and concludes that it is competent to consider an application which fulfils all the statutory requirements [pursuant to Article 87 (1) (a) of the Constitution].
Proceedings before the Constitutional Court
13. The Constitutional Court sent the proposal to the two chambers of Parliament, which are entitled to act on its behalf (Paragraph 69 (1) of the Constitutional Court Act). It also sent it to the Government and the Ombudsman, i.e. to the bodies entitled to intervene as interveners (§ 69 (2) and (3) of the same Law).
14. The observations of the party and the interveners were subsequently sent to the appellant by the Constitutional Court. The appellant did not respond to these observations.
15. The Constitutional Court did not expect further clarification of the case from the oral hearing and therefore abandoned it (Paragraph 44 of the First Law on the Constitutional Court).
Observation of Parliament's chambers
16. The Chamber of Deputies limited itself in its observations of 29 April 2021 to a description of the course of the legislative process. It concluded that the draft law was approved by a constitutional procedure, signed by the relevant constitutional authorities and duly declared. It is for the Constitutional Court to examine the constitutionality of the contested provisions and decide on the application for their annulment.
17. In its observations of 7 May 2021, the Senate stressed that the bill was returned to the Chamber of Deputies with amendments, including the proposal to delete the contested provisions. The amendment was tabled by Senator Ladislav Kos, who, when discussing the bill at the Senate meeting, stated that landfill operators had used the gap in the law and did not pay the fees as they should. It was that landfill operators did not pay waste storage charges even for up to 60% or 70% of the waste weight in the landfill.
Government observations
18. The Government, for which the authorised Minister of Justice and Vice-President of the Legislative Council of the Government of Marie Beneš spoke, in a statement of 12 May 2021, proposed that the Constitutional Court grant the application. It identified the appellant's argument and the final proposal. The appellant was only corrected by the fact that it was not an amendment by Mr Antonín Stanek, because it was not approved by the Economic Committee of the Chamber of Deputies. In fact, it was the content of the same proposal tabled by Mr Jan Zahradník, which was approved by the Committee on the Environment of the Chamber of Deputies.
19. Paragraph 155 (4) of the Waste Act, according to the Government, causes consequences not only to the environmental protection, but also to the beneficiaries of the levy, which could not have foreseen new legislation and its consequences. This is an unacceptable true retroactivity. The facts relevant for further legal evaluation are the moment of disposal of waste at the landfill (so-called waste which was considered by the landfill operator as waste for technical security). At this point, the operator should have collected the fee and removed it within the legal period. If this did not happen, there was a debt on the charge, which is the legal right of the municipality.
20. If the adoption of the contested legislation was justified, inter alia, by changing the calculation of the proportion of waste deposited in a landfill for a maximum of 25% of the volume of all waste deposited in a landfill for each calendar year to a maximum of 20% of the total weight of waste deposited in a landfill in a given calendar year, the solution used by the amendment is inadequate. This change of calculation was introduced by amendment No. 229 / 2014 Coll. effective from 1 January 2015 to § 45 (3) of the old Waste Act. It is disproportionate to rely on the ambiguity of the original legislation of 2015 in 2020. This does not change the fact that the original legislation was not immediately transferred to the implementing legislation in 2015. If there was any ambiguity in the interpretation of the old Waste Act, anyone (a landfill operator or producer of waste) could contact the administrative authorities.
21. The Government added some partial arguments to the proposal for Article 155 (5) of the Waste Act, such as the data from the letter of the Czech Environmental Inspection Office dated 26. 10. 2020 to draw attention to the list of proceedings against landfill operators for the payment of the missing financial reserve (e.g. in the case of a landfill in Čáslav it was more than CZK 68 million, at a landfill in Venice nad Jizera by more than CZK 39 million, etc.). The above provision of the law threatens the environment. It is not clear why the very important public interest in environmental protection had to give way to the economic interests of those who did not properly fulfil their legal obligations under the old Waste Act, from the justification of the amendment which introduced the contested provision. Paragraph 155 (5) does not in any way address the question of the financial reserves already paid by those who performed their duties properly and in a timely manner, nor does it address the issue of the management (final and unjust) in which those obligations were decided.
22. Finally, the Government stressed that the contested provisions had to be considered as unforeseeable. The adoption of the contested legislation was not preceded by public and professional discussion. As a result of the contested provisions, there is an inequality before the law, a "legalisation of the infringement of a group of entities' and, last but not least, financial damage on the part of the recipients of the charge.
The Ombudsman's observations
23. The Ombudsman stressed that the contested provisions entered into the law without appropriate expert discussion and threatened environmental protection. Everyone is to be responsible for their activities if they threaten or harm the environment. This is, inter alia, an expression of the polluter-pays principle which, however, distorts the contested regulation. The charges for landfill are the basic economic instrument affecting unwanted waste production. Similarly, the obligation to create a financial reserve for the reclamation and rendering of landfills is an essential tool to ensure the financing of the management of the landfill after its completion and closure.
24. The substance of the whole matter - and thus the contested legislation - can be summarised, according to the Ombudsman, by the fact that under the conditions of the Czech Republic, the waste deposited was quite massively reported as a technological material for securing the landfill, to the extent that it does not correspond to the reality of the need to secure a particular landfill. The amendment to the Old Waste Act No. 229 / 2014 Coll. effective from 1 January 2015 has at least limited the amount of waste so reported that the quantity of waste thus reported may not exceed 20% of the total weight of waste deposited in the landfill during the calendar year.
25. When excessive reporting of waste that could be used to secure the landfill came and the fees were measured, this created problematic financial requirements for operators operating in the waste economy. This is also the case with various efforts to avert this threat. The result was strong pressure on the legislative solution to this situation. However, the contested provisions unreasonably weaken the revenues of municipalities and the State Environmental Fund and, in the future, constitute a threat to the recovery and recovery of waste landfills. The Ombudsman therefore proposed that the Constitutional Court comply with the application.
Amendment of the Judge-Rapporteur
26. Since the original Judge-Rapporteur Josef Fiala did not receive the necessary majority of the votes at the sitting of the plenary on 10 December 2024, the President of the Constitutional Court appointed Judge Zdeněk Kühn as the new Judge-Rapporteur (§ 55 of the Law on the Constitutional Court) on the same day.
Progress of the legislative process and assessment of its constitutional conformity
27. According to Article 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the assessment of the constitutionality of the law with the constitutional order consists of answering three questions: whether the law was adopted and issued within the limits of the jurisdiction laid down by the Constitution, whether it was adopted in a constitutional manner and whether its content is in accordance with constitutional law.
28. From publicly available sources (cf. Prints of the Chamber of Deputies and the Senate available on their website), the Constitutional Court found that the government's proposal for a new Waste Act, which subsequently included the contested provisions, was distributed to Members as Press No. 676 / 0 on 18 December 2019. The first reading of the draft law started on 29 January 2020 and was completed on 31 January 2020. The bill has been ordered to discuss three committees: the Committee on the Environment as a committee on the Guarantee, Economic and Public Administration and Regional Development. The second reading of the draft law took place on 17 June 2020 and the amendments were processed as press No 676 / 9, which was delivered to Members on 19 June 2020. On 24 June 2020, the Environmental Guarantee Committee issued a resolution recommending a third-reading voting procedure on proposals submitted on the draft law and giving opinions on the individual proposals under Press 676 / 9; the order was delivered to Members on 30 June 2020 as Press No 676 / 10. The third reading of the draft law started on 8 July 2020. Following the interruption, the third reading of the draft law was completed on 18 September 2020, when the draft law was approved by the Chamber of Deputies in the wording of the amendments adopted, which also contained provisions now challenged by the appellant.
29. The Chamber of Deputies passed the Senate Bill on 15. 10. 2020. The Senate discussed the bill on 12 November 2020 as Senate Press No. 320. The provisions currently under consideration have been criticised by the Senators, for example, Senator Ladislav Kos has characterised Sections 155 (4) and (5) in such a way that they consist "more or less in being forgiven by landfill companies for not paying the landfill fee, because landfill companies have used or tried to use some kind of gap potential in the law and have not paid the fees as they should. This means that waste over 20% of the weight, where the fee may not apply, where the so-called construction elements of the landfill are, so they interpreted it as not paying the fees at 60 or 70% of the weight of the waste that came to the landfill. This amendment was supposed to heal these situations for the landfill companies. Simply put, he forgave them the fee. At the same time, there are several judicial disputes between the municipalities and landfill companies where the municipalities are suing for this non-payment of fees, so that the amendment that has fallen in the Chamber of Deputies also enters these proceedings." On the basis of these arguments, the Senate adopted Resolution 27 returning the bill to the Chamber of Deputies as amended. One of the amendments (paragraph 8) was also the deletion of Paragraph 155 (4) and (5).
30. The Senate resolution was delivered to Members as House Press No. 676 / 12 on 16 November 2020. The bill returned by the Senate was discussed by the Chamber of Deputies on 1 December 2020 as Press No. 676 / 11. During the negotiations, the contested provisions have been debated again, for example, Mrs Dana Balcarová criticised that the bill had "the possibility that landlanders could circumvent the obligation to pay the fee in this way, and even in retrospect since 2015, that is to say that a company that has already been fined will not have to pay it now - that seems to me to be really awful '; Mr Marek Excellent said that' we believe that this way cannot be affected by the legitimate and predictable revenues of municipalities and cities, as should the obligation to create a financial reserve and reclamation be abolished. And it's not just about reducing the income of municipalities and cities, but also about the State Environmental Fund. I think we need to look after the proper economy and the state's income here. It's been said by colleagues before me. I think that is one of the reasons why we should support the text forwarded to the Chamber of Deputies by the Senate '.
31. However, the Chamber of Deputies gave its assent to the draft law in the wording in which it was originally referred to the Senate. The bill was delivered to the President of the Republic on 4 December 2020, signed by the President on the same day. The Act was declared in the Collection of Laws on 23 December 2020 in the amount of 222 under No. 541 / 2020 Coll., effective on 1 January 2021.
32. The Constitutional Court states the following to challenge the process of adopting an amendment which introduced the contested transitional provisions in the draft law. The amendments tabled have been processed as Press 676 / 9 (see above). It also contains under item 15 the amendment tabled by Mr Jan Zahradník (in substance identical to the amendment by Mr Antonín Staňek) to the insertion of the contested provisions, contained in the resolution of the Environment Guarantee Committee No 119 (Press No 676 / 7). By submitting an amendment, the Member used his right enshrined in Article 63 of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended. The amendment had a close relationship not only to the purpose but also to the subject of the original draft law. It was actually an exception to the general intertemporal rule in § 155 (3). It is therefore not an unconstitutional affiliation within the meaning of the case law of the Constitutional Court [cf. the finding of 4.12.2024 sp. zn. The fact that the amendment is only briefly justified, not expressed by the government and not preceded by an expert debate, does not constitute the unconstitutional nature of the legislative process.
33. The contested legal provisions were therefore adopted in the Constitution, laid down by Parliament's competence (Article 15 (1) of the Constitution) and in a constitutional manner.
A substantive review of the constitutionality of the contested provisions
34. The Constitutional Court will first, on a general basis, develop constitutional requirements regarding prohibited retroactivity (parts VII. A. 1 and VII. A. 2 below). It will also comment on the constitutionality of so-called interpretative laws, a question which it has not discussed in its case-law (part VII. A. 3.). This general starting point applies to the contested provisions, in particular for Section 155 (4) of the Waste Act (Part VII B.1) and in particular for Section 155 (5) of the same Act (Part VII B.2).
Generally on the constitutional principle of the prohibition of retroactivity
Definition of true retroactivity and so-called false retroactivity
35. The question of retroactivity has been analysed by the Constitutional Court many times [last in the findings of 17.1.2024 sp. zn. Pl. ÚS 30 / 23 (36 / 2024 Coll.) - Reducing the extraordinary indexation of pensions, points 131 to 138 or 22.1.2025 sp. zn. Pl. ÚS 18 / 24 (45 / 2025 Coll.) - State contribution to the III Pension Pillar, paragraphs 60 to 62]. It is therefore based on its established case-law now.
36. As stated by the Constitutional Court in the judgment in Case 30 / 23 ÚS 30 / 23, a genuine retroactive effect occurs if the legislature is liable to impose a new rule on the person concerned, which began in the past and has already been "terminated" by combining with him other legal effects (consequences) than the old rule (Pl. ÚS 30 / 23, paragraph 136, including the citation of German caselaw). A similar approach to retroactivity has a very long tradition in the law in force in Czech territory (cf. Melzer, F. To intertemporal law in general. In: Melzer, F. - Tegl, P. Civil Code. Big comment. Volume III. Prague: Leges, 2014, p. 1101, with reference to the works of F. Zeiller from the early 19th century). The true retroactive effect thus means that "the rule does not apply in the past but in the past '(there, p. 1101, with reference to Wollf's work).
37. So the ban on real retroactivity has two faces. It does not only prohibit the application of a new law to existing facts for the period prior to the effective date of the new law, but also requires that an old law be applied to these facts under the effectiveness of the new law. The second face is much more important (thus Tilsch, E. Civil law of Austria. Part general. 2. supplemented edition, Prague, 1913, p. 62 to 63).
38. By contrast, so-called false retroactivity (retrospective) typically occurs in situations where the new law changes or cancels existing legal relations in the future. The legislator will intervene here in a factual state, which has started in the past, but which has not yet been "closed," i.e. the facts are still running. It is essentially not about the retroactive application of the law, but about the modification of lasting legal relations that have been created in the past with effects on the future. However, the rights already established under the old legislation do not fall within the scope of this intertemporal solution model, so these rights are subordinated to the old law. Thus, false retroactivity is not a retroactivity (retroactivity of the rule of law) in the narrowest sense of the word (cf.
39. The essence of genuine retroactivity is that, according to the new legal standard, the facts that occurred in their entirety before the new legal standard came into effect, or that the new legal standard will change the legal consequences that, under the old law, occurred on the basis of these facts before the date of application of the new legal standard. The essence of false retroactivity is that legal relations arising from the effectiveness of the old law (from which the existing law) are governed by the old law until the new law is effective, but then by this new law. However, the existence of legal relations existing before the entry into force of the new legislation and the legal claims arising from them until then is governed by the repealed legal standard [the findings of 12.3.2002 sp. zn. Pl. ÚS 33 / 01 (N 28 / 25 CollU 215; 145 / 2002 Coll.), Part IV; cf. the findings of 19.4.2011 sp. zn. Pl. ÚS 53 / 10 (N 75 / 61 SbNU 137; 119 / 2011 Coll.) - Construction savings - retroactive reductions and taxation of State aid, paragraph 145; of 18.5.2021 sp. sp. zn. ÚS 87 / 20 (N 97 / 106 SbNU 84; 232 / 2021 Coll.) - Tax package for 2020, paragraph 117]. For example, in tax law, it is only possible to talk about genuine retroactivity if the legislator subsequently changes the tax liability already incurred [BVerfGE 127, 1 (p. 18)].
40. In other words, the true and false retroactivity have in common that the legislation applies to facts that have happened in the past. Incorrect retroactivity is when the creation of a legal relationship is assessed according to the old legislation, but the content of the legal relationship (from which the new law and obligations are emerging) since the date of application of the law is new. On the other hand, in the case of genuine retroactivity, the legal consequences in the past of closed facts change retroactively.
Admittance to true retroactivity and so-called false retroactivity
41. For retroactivity, the principle of general inadmissibility applies, from which there are strictly limited exceptions to admissibility. On the contrary, for retroactivity, the principle of general admissibility applies, from which there are exceptions to its inadmissibility.
42. While the so-called false retroactivity is generally acceptable, and there is usually no constitutional problem when it is used, even this way of dealing with conflicts between the old and the new legislation may run into constitutional limits. In particular, confidence in the continued applicability of old law and the associated protection of acquired rights and trust in old law should be taken into account. The assessment of whether false retroactivity is exceptionally unacceptable lies in measuring the objective pursued by the legislator and the means it has chosen to achieve the objective, on the one hand, with the disappointed confidence of the beneficiaries of the "old 'right, on the other hand. The Constitutional Court examines the" endurance "of such disappointment, taking into account the intensity of public interest that the legislator has led to a change in legislation and the degree of disappointment in trust in law. It has meaning as to what right it is and how strong it creates expectations. The specific position here has legitimate expectations in the form of an asset claim (Pl. ÚS 30 / 23, paragraphs 134, 136 and 138). The earlier case-law pointed out that the degree of difference between the new and old legislation and the social urgency of introducing new legislation plays a major role in the assessment of the method of legislative solution of intertemporal nature [finding of 4.2. 1997 sp. zn.
43. Article 40 (6) of the Charter, which states that the offence is assessed and the sentence is imposed under a law effective at the time when the offence was committed (i.e. the prohibition of genuine retroactivity), but later the law applies if it is more favourable to the perpetrators (constitutional order of genuine retroactivity).
44. However, the prohibition of genuine retroactivity goes beyond the area of punishment. It also follows from the requirements of the rule of law (Article 1 (1) of the Constitution). The case-law refers to a "general prohibition of retroactivity against the detriment '[finding of 4.2. 2020 sp. zn. The limitation and termination of liability for the offence, paragraph 35, that is to say, a prohibition which is not an unexceptional rule, but rather a principle which allows for the narrowly defined exceptions. One such exception is retroactivity in favour of the taxpayer or other public service obligations. Moreover, the Constitutional Court has already explained in the past that the legislator cannot retroactively change the tax rules" to the tax payer' [the finding of 12.7.2011 sp. zn. ÚS 9 / 08 (N 127 / 62 SbNU 3; 236 / 2011 Coll.) - Retroactivity in the determination of tax liability, paragraph 16].
45. Therefore, a retroactive change to the benefit of the payer or the taxpayer of public payments is permissible. A similar perception, excluding genuine retroactivity on the part of the individual, is also typical of foreign case law, such as the constitutional judiciary of German [e.g. BVerfGE 24, 220 (p. 229)] or Austrian (e.g. VfSlg 19.637 / 2012, Part III).
46. The restrictive exceptions to the general prohibition of genuine retroactivity will be enforced in those vertical legal relations where the state and individual are opposed and where the new regulation improves the individual's status or gives him or her rights or cancels some of his or her responsibilities retroactively. An example is Act No. 46 / 2006 Coll., amending Act No. 193 / 1999 Coll., on citizenship of certain former Czechoslovak citizens, as amended by Act No. 320 / 2002 Coll. This Act inserted into Act No. 193 / 1999 Coll. a genuine retroactive rule according to which the declaration of some former citizens on citizenship, which was not made within the original period of the law, can be restated from 1.6.2005, i.e. eight months before the Act No. 46 / 2006 Coll., which occurred on 27.2.2006. Thus, this standard gave the conduct initially to the legally irrelevant, which was done between 1.6.2005 and 27.2.2006, the retroactive nature of the conduct which was recognised by law, with all the consequences thereof (including the obligation of the administrative authority to issue a certificate or a negative decision). The real retroactivity did not create any constitutional problems (cf. NSS judgment of 29.4.2009 No 1 As 26 / 2009-69, paragraph 13).
47. Similarly, it will not normally be constitutional in any way if the law retroactively reduces the tax or similar obligation on natural or legal persons or otherwise improves their position. However, the key is that retroactive treatment, even if it is beneficial to certain persons, should not be directly related to other persons. Another example, where genuine retroactivity does not raise constitutional doubts, will be a situation where objectively justifiable retroactive change of law does not cause any or only very minor harm to the addressees of the legal standard [the so-called reservation de minimis, cf. BVerfGE 30, 367 (p. 389); BVerfGE 72, 200 (p. 258)].
The constitutionality of so-called interpretative laws
48. Inadmissible genuine retroactivity is also a situation in which the legislator tries to regulate the legal facts that have completely occurred in the past with the justification that the old legislation was unclear (so-called interpretative legislation). The task of judicial power is to find the importance of a valid law with effects to the past, the task of legislative power is to create a new law with effects to the future. The courts interpret the laws on cases decided by them, of course within the constitutional limits of judicial law. If the judicial interpretation of the old law created by the historic legislator does not correspond to the political will of the existing legislator, the legislator may change the law, but with the effects of the future.
49. The Constitutional Court refers to the case-law of its German counterpart, who described similar interpretative laws as constitutionally unacceptable genuine retroactivity. The Federal Constitutional Court clearly rejected that the legislator would have the power of declaratory (interpretative) standards. The "power to clarify the law back 'would, in fact," give the legislators far-reaching access to legal situations that have already been closed over time, leave room for reflection on the political effectiveness that were not their own simple law at the time of its interpretation, which was later perceived by the legislator as requiring redress and would significantly undermine the confidence in the stability of the law' (decision of the First Chamber of the Federal Constitutional Court of 17 December 2013, sp. zn. 1 BvL 5 / 08, paragraph 53).
50. Nor does it change the fact that the legislator is trying to retroactively "clarify" the legislation, the interpretation of which has been questionable and has not yet been clarified by some of the highest courts. The "Interpretative 'standard is already retroactive only because it excludes other possible interpretations of the old law, which are ultimately the responsibility of clarifying the jurisdiction (Decision 1 BvL 5 / 08, paragraph 56). This does not mean, of course, that such interpretative laws will always be unconstitutional for their true retroactivity. Non-constitutional such an adjustment (except in the cases referred to in point 47 above) will not typically be in a situation where the old law could not provide its addressees with any legitimate expectations, for example because it was incomprehensible and confusing to a degree that questioned its very constitutionality.
Application of general considerations to the present case
51. First of all, the Constitutional Court cannot overlook that the intertemporal rule of Paragraph 155 (4) of the Waste Act (similar to paragraph 5 above) is worded in a dark and hazy manner. This can be seen all the more if the reader of the law compares this (to put it mildly) very non-standard rule with standard transitional provisions in the next paragraphs of § 155.
52. According to Section 155 (3) of the Waste Act, the fee obligations for the waste storage charge for landfills pursuant to § 45 to 48 of Act No. 185 / 2001 Coll., as effective before the date of entry into force of that Act, arising before the date of entry into force of that Act, as well as for the rights and obligations relating thereto, shall apply to Act No. 185 / 2001 Coll., as effective before the date of entry into force of that Act.
53. On the contrary, two other paragraphs are out of the question. The contested Section 155 (4) of the Waste Act, simplified, effectively abolishes the obligation to charge the waste producer to the obliged entities for part of the waste (so-called usable waste for technical security of the landfill), which was intended to be used in the landfill and which was disposed of in the landfill before 1.1.2021 (i.e. before the new Waste Act was effective) after the entry into force of Amendment 229 / 2014 Coll. The following Section 155 (5) of the same Act provides that for the same waste the landfill operator does not create the so-called financial reserve. Both provisions clearly aim only at situations before 1 January 2021, since from that date the new Waste Act has been fully regulated.
54. The Constitutional Court will also examine the constitutionality of the two contested provisions separately, first the constitutionality of Section 155 (4) (Part VII B.1), then the constitutionality of Section 155 (5) (Part VII B.2).
On the constitutionality of Section 155 (4) of the Waste Act
55. Before assessing the constitutionality of Section 155 (4) of the Waste Act itself, the Constitutional Court will first analyse the regulation of the waste storage charge in the landfill in accordance with the old Waste Act, including the creation of an obligation on the producer of waste and the landfill operator to pay the amounts corresponding to the fee [part (a)]. The legislature clearly followed the binding interpretation of the old law into the past by adopting the contested provision [part (b)], which the Constitutional Court takes into account in particular when considering the constitutionality of retroactivity in relation to municipalities as recipients of the fee. In relation to municipalities, the contested Section 155 (4) of the Waste Act is unconstitutional, regardless of whether the situation of the retroactivity is genuine or not [part (c)]. On the contrary, in relation to the State Environmental Fund as beneficiaries of the levy, the contested provision is not unconstitutional [part (d)].
(a) Regulation of waste storage charge in landfill according to the old Waste Act
56. The purpose of the waste storage fee in the landfill, whether according to the old or under the new Waste Act, is to encourage waste production to be reduced. This fee is a special-purpose and non-refundable cash levy, which gives rise to equivalent consideration in the form of the possibility of landfill of waste (NSS judgment of 19.3.2015 No 4 As 218 / 2014-58, Lovesice landfill, paragraphs 28 and 29).
57. The waste storage fee for landfills consisted of two components. The basic component of the fee was paid for the disposal of waste and the risk component was also paid for the disposal of hazardous waste (Section 46 (1) of the old Waste Act).
58. The beneficiaries were municipalities and the State Environmental Fund. The fee was the income of the municipality in whose cadastral territory the landfill was located and the fund which continued to treat it within the meaning of Act No. 388 / 1991 Coll., on the State Environmental Fund of the Czech Republic, as amended, (§ 46 (3) of the Old Waste Act).
59. The municipality's income was the basic component of the fee. On the contrary, the risk component of the fee was the income of the State Environmental Fund. The rate of the basic and risk component of the fee was set in Annex 6 to the old Waste Act (Section 48 of the same Act).
60. The fee was paid by the producer of waste (§ 45 (1) of the Old Waste Act). The producer of the waste was a legal person or a natural person authorised to do business in the course of which waste is generated, or a legal person or natural person authorised to do business, who is engaged in the treatment of waste or other activity resulting in a change in the nature or composition of the waste, and the municipality from the moment when the non-business natural person places the waste on the site for that purpose; The municipality also became owner of this waste [§ 4 (1) (x) of the old Waste Act].
61. Where the producer of the waste was a municipality and placed waste in a landfill situated in its cadastral territory, the basic component of the charge was not collected from that municipality (§ 46 (4) of the same Law).
62. The tax was also paid by the producer who was the operator of the landfill itself, if the landfill was on its own land (§ 45 (2) of the same law).
63. An important exception which is at stake in the present case was provided for in Paragraph 45 (3) of the Old Waste Act. According to him, the fees were not paid for the disposal of waste as technological material to provide the landfill for technical security of the landfill in accordance with the approved project and the operating rules of the landfill. The technological material was not waste which was stored beyond the project determining the necessary quantity. The Ministry of the Environment was required by implementing legislation to lay down requirements for the disposal of waste as technological material for the provision of landfill, including a percentage limit for the disposal of waste as technological material. With effect of Amendment No 229 / 2014 Coll. from 1 January 2015, the Act explicitly stated that the total amount of waste deposited in the landfill as a material for the technical security of the landfill for which a charge is not paid could amount to a maximum of 20% of the total weight of waste deposited in the landfill during the calendar year (Section 45 (3) of the Old Waste Act, the final version of which was effective from 1 October 2015 until 31 December 2020). The reason for the adoption of this amendment was a massive abuse of the previous text of the lockout pursuant to Paragraph 45 (3), where there was no similar percentage limit in the actual text of the law (cf.
64. The fee from the producer of the waste was collected by the landfill operator when the waste was placed in the landfill. The landfill operator has confirmed the charge collection. The landfill operator paid the fee to the recipient on the last day of the following calendar month and at the same time informed him of the fees due (§ 46 (2) of the old Waste Act). "In practice, however, the collection and collection of waste is carried out by the companies which include the cost of the charge in the pricing for their services - municipalities and entrepreneurs thus in fact pay the fee in a way through the cabal companies." [Statement on House Press 676 / 0, Government Bill on Waste, Parliament of the Czech Republic, Chamber of Deputies, Vll. Election 2012-2021, Annex: Final Report of the Impact Assessment of Regulation (RIA), p. 123].
65. The landfill operator in connection with the fee obligations had to collect the charges for the landfill and pay them to the recipient. In order to give beneficiaries an overview of whether the originators fulfil their fee obligations, the Act imposed an information obligation on the landfill operator, namely to inform the beneficiaries of the debtors [Paragraph 21 (1) (d) of the old Waste Act].
66. The payment obligation arose directly from the law to the producers of waste, already at the time of disposal of the waste. The exemption from this obligation also arose directly from the law (see Article 45 (3) of the same Law cited above). The landfill operator only collected these fees [Paragraph 21 (1) (d) of the same Act]. In other words, while the landfill operator chose which waste would be used for technical security of the landfill, the fact that the imposition of such waste did not entail a charge obligation was laid down by law and was not the operator's right to take an authoritative decision against individual waste producers. The operator was not in a position to collect fees (NSS judgment of 9.3.2023 No 1 As 11 / 2022-94, AVE CZ, paragraphs 29 and 30).
67. The Act penalised the breach of the obligation to pay the fee both to the waste producer and to the landfill operator. If the originator did not pay a fee of a fixed amount, he was obliged to pay the fee by the Regional Authority, which gave its consent to operate the landfill, by a decision on the basis of a proposal from the recipient of the charge (§ 46 (2) of the old Waste Act). The inspection of the payment of the fees with the operator of the landfill was carried out by the municipality and the county authority on whose cadastral territory the landfill was located (§ 46 (5) of the same Act).
68. If the operator of the landfill did not pay the levy to the municipality or the State Environmental Fund within the prescribed time limit, he was required to pay the charge by the Regional Authority which gave its consent to operate the landfill by a decision on the basis of a proposal from the recipient of the charge. Interest on late payments of 0,5 per cent of the amount withheld per day was paid for the unpaid fee. Interest on late payment was the income of the municipality. Fees and interest on late payments were levied by the competent tax administrator according to the cadastral territory where the landfill is located (§ 47 of the old Waste Act).
69. The landfill operator had a special position in the waste management charging system. Fees were collected for the benefit of their beneficiaries. The landfill operator was only an intermediate article which paid the selected fees to their recipient, i.e. the municipality or the State Environmental Fund. Even the fees collected later than when the waste was disposed of at the landfill site, the landfill operator was obliged to pay the tax to the recipient in accordance with § 46 (2) of the old Waste Act on the last day of the following calendar month after the tax was effectively collected (NSS judgment of 28.4.2016 No. 2 As 8 / 2016-32, Ecoservice Ralsko, or judgment of the Municipal Court of Prague of 21.11.2012 No 9 Ca 209 / 2009- 40, No 2807 / 2013 Coll. NSS).
70. If the producer of the waste did not pay the waste storage fee properly at the landfill, his payment obligation did not pass on to the landfill operator; However, he was obliged in that case to inform the recipient of the fee of the fees due. The operator was not obliged to pay a fee which was not paid by the originator. If the landfill operator has made it possible to deposit the waste in the landfill, but the waste producer has not paid the fee, the operator has committed an infringement. On the one hand, on the proposal of the recipient of the levy, the administrative authority was to charge the waste producer (Paragraph 46 (2) of the Old Waste Act) the fee payable and, on the other hand, to impose a penalty on the landfill operator because it did not collect the fee at the time of the deposit of the waste (judgment of the Municipal Court of Prague of 21.11.2012 No 9 Ca 209 / 2009-40, No 2807 / 2013 Coll. NSS).
71. The landfill operator replied in public (until 30 June 2017 it was an administrative offence of the operator, from 1 July 2017 it was an offence), not only if it had infringed the obligation to collect the charge when the waste was deposited in the landfill, but also if it had infringed the obligation to pay the levy to the beneficiary or to inform the beneficiary of the amounts due (§ 66 (5) of the old Waste Act).
(b) The intention of the historical legislator was to make a binding interpretation of the old Waste Act
72. Before the Constitutional Court assesses the constitutionality of Section 155 (4) of the Waste Act, it must take into account the result that the legislator's current (very unusual) regulation has actually taken into account.
73. The intention of the historical legislator can be taken mainly from the explanatory report, parliamentary debates and the historical context of the adoption of the law.
74. As the Constitutional Court has explained above, § 155 (4) (similar to § 155 (5)) entered the resulting form of the Waste Act on the basis of an amendment. The same amendments were tabled by two Members, first by Antonín Stanek, then by Jan Zahradec. While the first proposal failed in the Economic Committee of the Chamber of Deputies, the proposal of the second Member became the basis of the amendment contained in resolution 119 of the 26th meeting held on 29 April 2020 (under item 15) adopted by the Chamber of Deputies (despite the opposition of the Senate).
75. The Members and the Senators have made no distinction between the proposals of Members of the House of Deputies and the Garden, resulting from the negotiation of the bill in the Chamber of Deputies and the Senate. The amendment adopted later, although formally came from a proposal by a Member of the Garden, both Members and Senators also commonly called the proposal by Mr Staňek (thus Member František Elfmark during the second reading and Mrs Dana Balcarová, who criticised the same proposal during the discussion of the bill returned by the Senate as "the proposal by Mr Staňek ') as well as a Member of the House (thus, Mrs Jana Krutaková, who criticised the proposal by a Member of the Garden during the third reading).
76. Since the Members did not make any distinction between the two amendments, the Constitutional Court will take further account of the intention of both Members who have tabled completely identical amendments in substance. Consent with their argument can be seen from the fact that this proposal in the end gained the support of the majority of the Chamber of Deputies at the time.
77. The amendments made by both Members came from the fact that the current legal regulation of the waste storage charge was unclear and needs clarification. The amendment by Mr Staňek was justified, in a simple way, by "clarifying the extent of the fee obligation of the waste producer to the waste storage charge under the provisions of Paragraph 45 (1) of the" Old Waste Act, "as effective before the date of entry into force of the Government's draft Waste Act." It noted the difficulty of determining the exact extent of the fee obligation of the producer of waste after amendment No. 229 / 2014 Coll., effective from 1 January 2015, that this amendment was not adapted until 31 December 2016 to the implementing legislation and to the "legal uncertainty 'of both landfill operators and individual waste producers:" The proposed modification of the transitional provisions of the government draft Waste Act thus builds on the producer of waste and the operator of the landfill for a certain purpose for the landfill instead of other non-waste materials, where the landfill operator could not have used such activity as waste disposal. In such cases, it was not possible for the producers of waste to incur a charge on the waste storage charge under the Waste Act.'
78. As an interpreter or clarifying existing legislation, a Member of the Garden also understood his (identical text) proposal. According to him, the rule in § 155 (4) and (5) "relates to materials which have been properly stored in accordance with the integrated permit and the operating order of the landfill in the landfill and have been used as technical security for the landfill for the construction of castles, roads, tightened slopes and as such have not been charged in the past. The thing is that now, for example, the city of Čáslav wants to recover these alleged fees. But it wasn't waste, it was materials to protect the dump. That's the meritum of things. The Supreme Administrative Court has already rejected such efforts several times."
79. The purpose of the law was therefore clearly to provide a binding (authentic) interpretation of the old legislation before the new law was effective, in the form of an intertemporal standard contained in the new law. In fact, the Member of the Garden has directly marked the item on which he tried to achieve the newly formulated rule (the claims of the city of Čáslav in connection with the local landfill - see previous paragraph). However, as the Constitutional Court explained above, such "interpretative" laws are already retroactive from the nature of the case (paragraphs 48 et seq.) and therefore also fundamentally unconstitutional (cf. point 50 in fine from above). The Constitutional Court briefly emphasises that the attempt by the legislator to interpret the law into the past is fundamentally inadmissible in the rule of law. While legislative power creates legal standards with effects into the future, power finds the judicial importance of the applicable legal standards - inevitably with effects into the past.
80. The democratic rule of law gives the legislator legitimacy over time. Parliament's democratic responsibility relates to the present and future. The legislative decisions taken by Parliament in the past have their own democratic legitimacy. The historical context of legitimacy cannot simply be eliminated by the retroactive approach of the current legislator. The law derives its democratic legitimacy for the past solely from the context of the decision-making at the time, not from the context of the present. Even on the basis of the principle of democracy, the legislator's interference in the past must therefore remain an exception. This ban cannot be circumvented by "interpretative 'laws (similarly, in paragraph 49 of the abovementioned decision of the Federal Constitutional Court 1 BvL 5 / 08, paragraph 54).
(c) Paragraph 155 (4) of the Waste Act is unconstitutional in relation to municipalities as beneficiaries
81. The Constitutional Court is now moving to examine whether the model chosen by the legislator in Section 155 (4) of the Waste Act is unconstitutional.
82. The recipient's claim to pay the fee was based on a composite legal fact, which makes the application of the standard rules on genuine or false retroactivity to Section 155 (4) of the Waste Act somewhat more complicated.
83. The right to pay the fee was created by the recipient at the time of the landfill. At this point, the originators incurred a charge which they carried out against the landfill operator as a payment point. The Constitutional Court reiterates that the operator collected the fees in favour of the beneficiary and had an obligation to pay them to the beneficiary. The fee obligation was established directly under the law and therefore no decision was required. The recipient of the fee may have requested the imposition of an obligation to pay the fee both against the originator and against the operator (if the operator paid the fee and nevertheless the operator did not pay it to the beneficiary). The decision of the Regional Authority was purely declaratory.
84. However, the matter was further complicated by the fact that the charge exemption for waste placed in a landfill as a material for the technical security of the landfill (for which no fee was paid) could not be definitively established until the end of the calendar year, since the law limited this exclusion to a maximum of 20% of the total weight of waste deposited in the landfill during the calendar year (see paragraph 63 above). It was only at the end of each calendar year that the operator was able to know how much 20% of the total weight of waste for which no fee was paid.
85. For all waste deposited up to the end of 2020, the legal facts became complete at the time of the effectiveness of the old Waste Act (the disposal of waste at the landfill and at the same time the municipality's right to pay the fee was established; at the end of each calendar year a certain exemption for waste stored in the landfill as a material for the technical security of the landfill). In this way, legal effects were based again in accordance with the old Waste Act (the right of the recipient of the charge to pay it, which he could, as the case may be, seek either the originator or the landfill operator). The penalty for the breach of the obligation of the producer of waste or the operator of the landfill was also fixed at the time when the waste was deposited and the fee should have been collected at the same time.
86. The Constitutional Court therefore concludes that Article 155 (4) of the Waste Act effectively abolished the payment of part of the fee (... "the waste producer does not pay the waste storage fee pursuant to Article 45 (1) of Act No. 185 / 2001 Coll., as effective before the date of the entry into force of this Act.") against the producer who deposited the waste in the landfill for the validity of the old Waste Act, i.e. by the end of 2020 at the latest. The legislature abolished the fee obligations already incurred retroactively, i.e. the legal consequences based on the legal facts that occurred in full at the time of the effectiveness of the old law.
87. The new Act in Paragraph 155 (4) is clearly heading back into the past, as it says that the originator should not have paid the fee in accordance with the regulation before the new Act was effective. The contested provision could not be applied to any new facts arising from the effectiveness of the new law (which had already been applied to the new regulation of the charge obligation under the new law), only and only to the past. The legislator clearly sought to provide a binding interpretation of the old Waste Act into the past [see section (b) above]. While as of 31 December 2020, the recipient of the fee was entitled to pay the fee, the following day the new law told him that he had no such right and had never actually had one. It is even possible (this does not matter, however, for the creation of the recipient's right to pay the fee, since this right has already been created by the deposit of waste at the landfill) that the originator or operator was obliged to pay the fee before 2021 also by administrative decision. Therefore, if Article 155 (4) of the Waste Act says that part of the fee referred to there is not paid under the Old Act, it is clearly aimed at not being paid under the Old Act before 2021.
88. Although such an interpretation is in line with the text of the contested provision and with the intention of the historic legislator (see above-mentioned parliamentary debates), it is manifestly excessive, because essentially ex post in fact it says that the legal facts that took place before 2021 in accordance with the old law (e.g. payment and payment of fees, payment notices, etc.) were actually in violation of the law.
89. The standard now under review can therefore be interpreted differently (despite the will of the historical legislator), i.e. as a waiver of payment of the fee to those who did not pay the fee on the first day of the application of the new Waste Act. Such a remission would take place on the date of the effectiveness of the new Waste Act, i.e. on 1 January 2021. The assessment of the constitutionality of the Act thus interpreted will then vary logically depending on whether the fee has been forgiven in relation to the municipality or the State Environmental Fund.
90. The basic component of the waste storage charge was the income of the municipality in whose cadastral territory the landfill is located (Section 48 (1) of the Old Waste Act, points 58 and 59 above). The Constitutional Court states that it is aware that the relationship between the municipality as the recipient of the levy and the landfill operator or producer of waste is a public relations. However, this is not a relationship between the State or its authority and the taxpayer (as is the case with the levy on the State Environmental Fund).
91. The village is not and has never been a state or its institution. Local government is an indispensable component of the democratic rule of law. The guarantee of the right of local authorities to self-government is a key component of the vertical division of power and one of the essential elements of the democratic rule of law within the meaning of Article 9 (2) of the Constitution. The right to own property and to manage under its own budget is the very constitutional basis of the right to self-government. The State may intervene in the activities of the local authorities only if the protection of the law so requires and only in the manner laid down by the law (Article 101 (4) of the Constitution). It should be pointed out that legal interference with the right to self-government must - taking into account the constitutional basis of the right to self-government - be held in the proportionality test [the finding of 20 February 2018 sp. zl. ÚS 6 / 17 (N 26 / 88 SbNU 329; 99 / 2018 Sb.) - The debt brake of public budgets or the management of local government units, paragraphs 82 and 98].
92. The waiver of the fee from the effectiveness of the new law would be considered an incorrect retroactivity that is generally permissible. In the present case, however, it should be pointed out that the legislator's intervention aimed at the existing property rights of the municipalities, taking away part of their claims. Such an intervention is very intense and would therefore have to be justified by the very urgent public interest (cf. point 42 above). The second bowl of notional scales is not the competence of the State but the property rights of the municipalities. They are constitutionally protected, as the Constitutional Court has just explained.
93. According to the old legislation, the municipalities that received the levy were entitled to pay the fee before 2021. The above has a fundamental impact on the legitimate expectations of municipalities as beneficiaries of the levy and the protection of their trust in objective law. The waiver of part of the fees starting on 1 January 2021 is not due to any legitimate reasons that the Constitutional Court might consider. The objective pursued by the contested regulation of the legislature (to interpret old and repealed legislation with effects to the past, even here in order to influence specific running disputes) is in itself unconstitutional and, in this respect, unworthy of any protection in relation to an entity other than the State itself. The Constitutional Court therefore has nothing to measure here, since there was no legitimate interest in the adoption of the contested legislation.
94. In addition, before 2021, waste producers or landfill operators could not have created trust worthy of constitutional protection in the future adoption of the now contested Section 155 (4) of the Waste Act. This rule has been the focus of a sharp criticism of its unconstitutionality since the adoption in the Chamber of Deputies in September 2020 (but also before that, since summer 2020). The Senate returned the bill to the Chamber of Deputies precisely with the proposal to delete this provision for its unconstitutionality (and also the rules in Section 155 (5)). The uncertainty as to whether the draft Waste Act will pass in precisely this wording lasted until the beginning of December 2020 (more on top of that part of VI). It should be added that the appellant challenged the constitutionality of the new regulation as early as March 2021, further weakening the legitimate expectations of the beneficiaries of the new regulation.
95. On the other hand, worthy of constitutional protection is the disappointed trust of municipalities in the continuing enforceability of their existing rights. It should also be taken into account that this is now a legitimate expectation of an asset entitlement.
96. The legal expectation of a clear and specified asset entitlement is where there is a reasonable and legitimate expectation of acquisition. In order to be legitimate, it is necessary to establish a legal provision or act relating to the asset interest concerned. It is always necessary to assess whether the circumstances of the case as a whole entitle the complainant to a substantive interest protected by Article 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR judgments of 27.5.2010 Saghinadze and others against Georgia, No 18768 / 05, § 103; of 15.11.2016 Keriman Tekin and Others against Turkey, No 22035 / 10, § 41; of 7.9.2021 Sakskoburggotski and Chrobok against Bulgaria, No 38948 / 10 and 8954 / 17, § 177 and 178; of 18.11.2021 Ahmad against Azerbaijan, No 9437 / 12, § 28; or, if applicable, judgment of the Grand Chamber of the ESLP of 13.12.2016 Bénagy against Hungary, No 53080 / 13, § 79).
97. There is no doubt that the municipalities had legitimate expectations of such charges which were not paid to them only as a result of the infringement of the old Waste Act. It is not relevant that the calculation of the exact amount of the fee could have been questionable in view of the fact that municipalities did not have precise information on the extent of the waste deposited. In such a case, they were landfill operators who had violated their legal obligations and had not properly informed the municipalities.
98. The Law, which, from day to day, waived part of the fees incurred before 2021, therefore, without any legitimate reason, removed from the municipalities the existing right to pay part of the fee. The Constitutional Court reiterates that the municipalities had already been entitled to a charge at the time the waste was dumped at the landfill site, with the composite legal fact being completed at the end of each calendar year (at the latest on 31 December 2020), for the application of the 20% exemption by the waste landfill operator to the landfill as a material for the technical security of the landfill in that calendar year (Section 45 (3) of the old Waste Act).
99. Thus, even if the Constitutional Court interprets the contested Paragraph 155 (4) of the Waste Act "only 'as a waiver of outstanding fees, such legislation cannot in any event be passed. It is an unconstitutional false retroactivity (retrospective), when the law, without legitimate reason, with immediate effect and without any other conditions, took away their existing property rights.
(d) Paragraph 155 (4) of the Waste Act is not unconstitutional in respect of the withdrawal of the right to a fee created by the State Environmental Fund of the Czech Republic
100. The property rights of the municipalities to the basic component of the charge must be protected, in this respect, the contested measure is indeed impugned by the municipalities as entities different from the State or its authorities. Otherwise, the obligation to pay the risk component of the fee is the income of the State Environmental Fund of the Czech Republic.
101. The State Environmental Fund of the Czech Republic was established by the Act on the State Environmental Fund of the Czech Republic as another state organisation. The scope of the action shall be defined by the Fund's statute. The fund manager is the Ministry of the Environment (§ 1 of the same Act).
102. The Constitutional Court explained above Article 155 (4) of the Waste Act in a restrictive manner by waiving the payment of an unpaid fee by the Law (see paragraph 89 above). The question of whether the legislator will waive a charge which is the income of the State or its institutions is, of course, Parliament's political decision, on condition that this is done without violating constitutional rules (such a waiver, for example, must not be discriminatory, the legislator must not violate the rules of the legislative process protected by constitutional order, etc.). Otherwise, it is not for the Constitutional Court to assess the suitability of such a step by the legislator. This assessment "falls within the competence of the democratically elected legislator. If the Constitutional Court had acceded to it, it would have entered into the field of individual policies whose rationality cannot be well assessed from the point of view of constitutionality" [the finding of 18.5.2021 sp. zn.
103. The appellant criticises that the abolition of the fee obligation will jeopardise the constitutionally protected interests of the environment, as State resources in the waste sector are effectively emptied. However, the legislator has a very wide range of considerations as to how it will protect the environment. The same applies to setting up a tax or tax policy. The Constitutional Court has repeatedly emphasised that it cannot examine the consistency of tax policy with other state policies, as it would find itself "on thin ice" not always proven analysis. It is the legislator who has the power to assess the results of these analyses, to draw political conclusions from them, and to consider the appropriateness and necessity of the tax arrangements. It is the members of the legislature who are responsible for the possible failure of the chosen solution (again, the finding of the sp. zn.
104. Similarly, the European Court of Human Rights also stands up to the positive commitments of the Contracting States to protect the lives and health of waste management. It also grants the State a very wide discretion on how to protect fundamental rights. The Court of First Instance protecting fundamental rights should intervene only in the event of manifest excesses (cf., the obligations of the State in the waste sector, the judgment of the ECHR of 30 January 2025 Cannavacciuolo and Others against Italy, No 51567 / 14, § 381 and 396).
105. The appellant and the Government may be held to believe that the contested provisions actually "favour" those entities which have not paid a fee or created a financial reserve in the past for the relevant part of (technically usable) waste (the appellant refers in this connection to "legalisation of the procedure of dishonest entities"). But this alone does not make them contradictory with constitutional order. It is not a constitutionally inadmissible different treatment (Article 1 of the Charter) or an anti-constitutional discrimination or a distinction between entities on the basis of one of the prohibited criteria (Article 3 (1) of the Charter). The Constitutional Court recognises that transitional rules are extremely unfortunate in this respect, because they do favour "non-payers" in respect of persons who comply with legal obligations, but this is not in itself a reason to declare the unconstitutional nature of the contested regulation (in relation to the State).
On the constitutionality of Section 155 (5) of the Waste Act
106. According to Article 155 (5) of the Waste Act, the Constitutional Court also came out of the same logic as in the previous section, which does not require the creation of a financial reserve pursuant to § 49 (1) and § 51 (4) of the Old Waste Act in relation to the waste as defined in § 155 (4) of that Act. The Constitutional Court will first briefly explain the obligation to create a financial reserve under the Old Waste Act [part (a)] and then explain why the retroactive effects on these relations are not unconstitutional [part (b)].
(a) Obligation of the landfill operator to create a financial reserve
107. The Old Waste Act provided for the obligation of landfill operators to create a financial reserve for reclamation, care for landfill and rendering after its operation. The creation of a financial reserve is a mandatory reinsurance measure to prevent the disposal of a landfill due to the insolvency of its operator (Jančářová, I. Environmental law: a specific part. 1st edition of Brno: Masaryk University, Faculty of Law, 2015, p. 472). It is not excluded that the landfill operator will be in a bad economic situation which will make it impossible to properly shut down the landfill. The financial reserve shall aim to cover at least the costs associated with the end of the landfill. In other words, the legal obligation to create a financial reserve is to prevent situations where the financial costs associated with the closure of the landfill are borne in full by taxpayers or public budgets.
108. The hedge purpose of the financial reserve was confirmed by the case law of the administrative courts with reference to the explanatory memorandum to the old Waste Act. According to the Supreme Administrative Court, this reserve is designed "to raise and concentrate funds during the operation of the landfill to ensure its reclamation and rendering after the closure of the landfill. The process of reclamation and rendering includes the entire landfill body, i.e. waste stored as a technological material to secure the landfill. Where such waste material as part of a landfill is subject to the reclamation process, it is logical to include its quantity in the calculation of the financial reserve" (NSS judgment of 7.10.2020 No. 7 As 54 / 2019-88, No 4098 / 2021 Coll., NSS, AVE CZ, paragraph 31).
109. The funds of this reserve were deposited into a separate bank account. The funds of the financial reserve could not be the subject of a regulation and enforcement or included in the property of the landfill operator, landfill owner or their legal successors (§ 49 of the Old Waste Act). The funds generated by the financial reserves were transferred by the landfill operator to a special account bound on the last day of the following calendar month (Section 50 (3) of the Old Waste Act). The Act also laid down the conditions for drawing up the reserve and the amount of that reserve (Section 51).
110. The infringement of the obligation to create the financial reserve was also punishable as an administrative offence and as of 1 July 2017 as an offence.
(b) The retroactive abolition of the obligation of the landfill operator to create a financial reserve in relation to waste as defined in Section 155 (4) of the Waste Act (Section 155 (5)) is not an unconstitutional
111. The actual retroactivity of the rule contained in Section 155 (5) of the Waste Act is evident, since this rule could not be applied otherwise than retroactively, with effects before the new Act was effective (1.1.2021). If, with effect from 1 January 2021, the legislature has provided that waste under Section 155 (4) "the landfill operator does not create a financial reserve for the recovery, care of the landfill and rendering after the completion of its operation under Sections 49 (1) and 51 (4) of Act No. 185 / 2001 Coll., as effective before the date of entry into force of this Act," it is clear that this rule does not serve human behaviour in the future, but, on the contrary, it says what should have been right in the past. This is about the attempt by the legislator to determine the correct interpretation of old law, that is, the attempt to establish a binding (interpretative) rule in the new law for the past. This is not acceptable in view of the above-mentioned constitutionally, it is genuine retroactivity.
112. On the other hand, in closely defined cases, genuine retroactive legislation can be constitutional. As the Constitutional Court has already concluded above, where such legislation is for the benefit of certain persons and at the same time does not directly involve any individual or legal person, it is constitutional (paragraph 47 above). Paragraph 155 (5) of the Waste Act meets these conditions.
113. However, since, in the present case, the constitutionally protected values of environmental protection (Article 7 of the Constitution) and the right to a favourable environment (Article 35 (1) of the Charter) are at stake, the Constitutional Court considered whether a ban on genuine retroactivity with regard to other constitutionally protected values or rights could perhaps be imposed.
114. If the appellant argues that the polluter pays principle is not the principle of Czech constitutional law, which would in itself establish a reference criterion for the Constitutional Court to review the constitutionality of laws (although this principle can certainly be used in the interpretation of other constitutional principles, in the Czech constitutional order contained). It is up to the State to ensure that natural resources and the protection of natural resources are used in a fair manner (Article 7 of the Constitution) in order to ensure that they are not affected by the environmental right under Article 35 (1) of the Charter. Whether it uses economic instruments (including the application of the polluter pays principle) or other instruments (or their combination) is a matter of policy determined by Parliament and the Government. Here, the Constitutional Court must refrain from intervening in political considerations. In addition, reference can also be made to European Union law, which, while paying the polluter-pays principle, lists among the European Union's environmental policies (Article 191 (2), first subparagraph, of the Treaty on the Functioning of the European Union), but in practice leaves Member States a relatively wide discretion as to how to achieve the environmental protection and fulfilment of that principle (judgment of the SDEU of 25.2.2010, C-172 / 08, Pontina Ambiente, paragraphs 36 to 38).
115. The Constitutional Court has described as the core of the right to a favourable environment the "commitment of the State to protection against environmental interference, if the intervention is such as to make it impossible to realise the basic life needs of man '[the finding of 26.1.2021 sp. zn.
116. In the present case, it is a retroactive abolition of the obligation to create a reserve for part of the waste. However, only as a result of the contested provisions (affecting only a narrowly defined part of the waste at the landfill in the first stage of the operation of the landfill, which is dealt with by law on the basis of an integrated permit) and in the absence of other possibilities for the State, the protection of the environment could not have occurred as a result of retroactivity (the retroactive abolition of the obligation to shape the financial reserve) to intervene in the substance of the right to a favourable environment under Article 35 (1) of the Charter. It follows from the nature of the reserve that its potential (not) adequacy will be demonstrated only in the future - in the liquidation and remediation of the landfill. Only then can any negative impact of Section 155 (5) of the Waste Act also occur. The more time until then, the less this impact will become apparent, because the longer the reserves will be new under the legislation. It will then be up to the State, in fulfilling its constitutional obligation to ensure that natural resources are used in a fair manner and the protection of natural wealth, to use the tools and policies available to correct the effects of the contested provision in the future.
117. As an intervener, the Government contends that the contested legal provisions have not undergone a professional debate and are inappropriate. Although the surprise of changing transitional provisions during parliamentary discussions is evident from the above, this cannot in itself constitute an unconstitutionality. The Constitutional Court is not entitled to correct waste management policy only because it does not consider it to be the best possible, for example, the less it is entitled to "think" as the legislation should be optimally set [appropriately compared to the finding of 26.4.2022 sp. zn. ÚS 49 / 18 (N 51 / 111 SbNU 260; 171 / 2022 Coll.) - The constitutionality of the financing of health care provision, paragraphs 122 and 129].
118. The Government (cf. paragraph 21 above) can be attested to the fact that § 155 (5) of the Waste Act creates (like § 155 (4) of the same Act) a number of interpretatively complex questions and is generally formulated in a defective and strange manner. However, it is not the task of the Constitutional Court to remove from the rule of law any problem or defective legal provision. As the Constitutional Court pointed out in another context, its power is not to abolish legislation "which it finds imperfect, inadequate, inefficient or objectively defective '(Pl. ÚS 49 / 18, paragraph 129). This is also the case in the current proposal for the repeal of Section 155 (5) of the Waste Act. It will be the task of the authorities of executive and general courts to provide a constitutional and consistent interpretation of the undisturbed provisions of the Waste Act.
The temporal effects of the derogatory part of the finding
119. Furthermore, the Constitutional Court had to consider the temporal effects of the repeal of Section 155 (4) of the Waste Act. The Constitutional Court annulled the law to the extent that this retroactively deprived the municipalities of the right to pay the basic component of the fee paid by the originators for the disposal of waste at the landfill and paid to the municipalities by the landfill operator.
120. If the Constitutional Court decides to repeal the law or its individual provision pursuant to Article 87 (1) (a) of the Constitution, the law or the relevant provision shall cease to apply on the date of enforcement of the finding. This is either the date of the declaration of the finding in the Collection of Laws and International Treaties, or another date determined by the Constitutional Court in the finding (Article 89 (1) of the Constitution in conjunction with Sections 58 (1) and 70 (1) of the Constitutional Court Act).
121. The repeal of the law shall take effect from the date on which the finding became enforceable (ex nunc); is not a declaration of invalidity of the repealed law from the outset (ex tunc). As a general rule, the rights and obligations arising under the repealed Act remain unaffected (§ 71 (4) of the Constitutional Court Act) [more than a full opinion of 29.11.2022 sp. zn.
122. However, the reason for which the Constitutional Court found the law to be unconstitutional may, in some cases, impede its application also in relation to the facts which occurred at the time of its effectiveness (Opinion in Case 57 / 22 Pl. The temporal effects of the finding are derived from whether the anti-constitutional arrangements applied to "vertical legal relations, the parties to which the State is a public authority and individual, or [...] horizontal legal relations, the parties to which the individuals are one another '(paragraph 33). In the case of vertical relations," fundamentally (but not without exception)', it is true that the anti-constitutional arrangements do not apply even to circumstances occurring prior to its abolition; On the contrary, for horizontal relations, "in principle (although not without exception) ', the anti-constitutional arrangements apply in relation to the circumstances before its abolition, in order to protect the legal certainty of individuals (there, paragraph 33).
123. In the present case, it is clear that the effective removal of the anti-constitutional regime cannot happen otherwise than retroactively. If the Constitutional Court were to abolish a retroactive transitional provision with purely future effects, this finding would lack any reasonable meaning.
124. On the other hand, in the present case, it cannot be overlooked that the claims of the municipalities as recipients of the levy under Section 155 (4) of the Waste Act are public relations, i.e. within the meaning of the "vertical '. However, the Constitutional Court has already explained above that the rights of the municipalities cannot be qualified as State claims (the Constitutional Court therefore did not comply with the entire Article 155 (4) and complied only with the part which applies to the rights of the municipalities).
125. The Constitutional Court must therefore consider the legitimate expectations of waste producers and landfill operators in continued application of Section 155 (4) of the Waste Act, on the one hand, and, on the other hand, the constitutional interest in protecting municipalities against unconstitutionally withdrawn claims to pay the basic component of the waste storage charge. It should be taken into account that the prohibition of constitutionally inadmissible retroactivity constitutes part of the essential elements of the democratic rule of law in Czech law within the meaning of Article 9 (2) of the Constitution [the finding of 10.9.2009 sp. zn. ÚS 27 / 09 (N 199 / 54 SbNU 445; 318 / 2009 Sb.) - Melčák, part VI. / b].
126. Although the legal relationship between the municipality and the persons liable to pay the levy is of a vertical nature, it is a very specific legal relationship, inmeasurable between the interaction of the state represented by Parliament as the legislator and the addressees of the legal standards. In the present case, all actors, i.e. municipalities, waste producers and landfill operators, are to some extent equivalent to the addressees of the legal standards. In such a case, the protection of the municipality's trust in the constitutionally consistent resolution of the conflict of the old and new law outweighs the protection of legitimate expectations of the producer or landfill operator. The Constitutional Court reiterates that neither the originators nor the operators could have had strong legitimate expectations of the continued application of Article 155 (4) of the Waste Act, since this provision was finally adopted only at the beginning of December 2020, following major controversy concerning its constitutionality, and was already challenged in March 2021 by the present proposal.
127. The above, of course, does not change the fact that the rights of the municipality can only be exercised within the legal period prescribed by the general rules.
128. The Constitutional Court points out that, as a result of the partial deregulation, the possibility for administrative authorities to penalise any producer of waste or landfill operator is not renewed if the criminal offence of such conduct has expired on 1 January 2021 as a result of the legislation now repealed. The purpose of the present finding is to protect the property rights of municipalities, not (re) to activate the power to punish other persons for offences under the old Waste Act.
Conclusion
129. The Constitutional Court therefore only partially complied with the proposal. The contested Section 155 (4) of the Waste Act is unconstitutional, thus contradictory to the prohibition of retroactivity (Article 1 (1) of the Constitution), in conjunction with the basic right of the municipality to protect property and property (Article 11 (1) of the Charter), to the extent that the legislator has retroactively withdrawn the right of municipalities to the basic component of the charge paid by the originators to store waste in landfills and to the municipalities by the landfill operator (§ 45 to 48 of the Old Waste Act). The local government is a constitutionally protected value, municipalities as local authorities have the right to protection against arbitrary State interference in their ownership rights, including legitimate expectations of acquiring a certain property value. The Constitutional Court therefore annulled the contested provision to that extent (Paragraph 70 (1) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.). The cancellation will take place on the day of the declaration of the finding in the Collection of Laws and International Treaties.
130. The Constitutional Court ruled by the so-called "range statement 'and the contested provision only annulled if the basic component of the fee received under the Old Law on the waste of the municipality was compared to the so-called" range statement'. Therefore, a general transitional provision in Section 155 (3) of the Waste Act applies to such legal relations.
131. On the other hand, in the remainder of the application for annulment of Section 155 (4) of the Waste Act and in the application for annulment of Section 155 (5) of the same Act, the Constitutional Court rejected the proposal as it did not find those provisions contrary to the constitutional order (Section 70 (2) of the Constitutional Court Act).
President of the Constitutional Court:
JUDr.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by judges Josef Fiala, Tomáš Langášek and Jan Svatóň to decide.
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Regulation Information
| Citation | The Constitutional Court found No 104 / 2025 Coll., sp. zn. |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 15.04.2025 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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