The Constitutional Court found no 123 / 2021 Coll.
The Constitutional Court found of 9 February 2021 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
10.03.2021
123
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on the Pol. No. 106 / 20 on 9 February 2021 in plenary composed of the President of the Court of Paul Rychetský and Judge Louis David, Jaroslav Fenyk, Josef Fiale, Jan Filip, Jaromír Jirsy, Tomáš Lichovník, Vladimir Sládeček, Pavel Šámal, Kateřina Šimáková, Vojtěho Šimíček (Judge of the Rapporteur), Milady Tomková, David Uhlíř and Jiří Zemánek, on the motion of the group of Senators, represented by Mgr. Eduard Belshál. 465 / 2020 Sb., point II of the Government Resolution of 20 November 2020, on the extension of the Government's Resolution of point I. / 1 of 16 November 2020, on the amendment of the resolution of the resolution of the resolution No. 21, on the resolution of the President of the resolution of the President of the Council of the Council of the Council of the Council of the European Parliament of the Council of 20 January 2015 on the Council of the European Parliament of the Council of the European Parliament of 20 January
as follows:
I. Procedure for the application for the repeal of point I. / 1 of the Government Resolution of 16 November 2020 No 1192, on the adoption of a crisis measure, published under No 465 / 2020 Coll., point II of the Government Resolution of 20 November 2020 No 1195, on the extension of an emergency situation in relation to the SARS CoV-2 epidemic, declared under No 471 / 2020 Coll., and point I. / 1 of the Government Resolution of 20 November 2020 No 1201, on the adoption of a crisis measure, published under No 477 / 2020 Coll., and point I. / 1 of the Government Resolution of 22 January 2021 No 57, on the adoption of a crisis measure, announced under No 23 / 2021 Coll., is hereby terminated.
II. Point I. / 1 of the Government Resolution of 28 January 2021 No 78 on the adoption of a crisis measure, published under No 31 / 2021 Coll., shall be deleted from the date of publication of this finding in the Collection of Laws.
Reasons
Subject matter
1. On 21 November 2020, the Constitutional Court received a proposal from a group of 63 Senators (hereinafter referred to as "the appellant ') to abolish paragraph I. / 1 of the Government Resolution of 16 November 2020 No 1192 on the adoption of a crisis measure, published under No 465 / 2020 Coll., hereinafter referred to as" Government Resolution No 1192', paragraph II of the Government Resolution of 20 November 2020 No 1195, on the extension of the emergency measure in relation to the outbreak of SARS CoV-2, published under No 471 / 2020 Coll., (hereinafter referred to as "Government Resolution No 1195 '), and paragraph I / 1 of the Government Resolution of 20 November 2020 No 1201 on the adoption of the emergency measure, on the amendment of the Crisis Action of 20 November 2020 No 477 / 2020 Coll.
Attacked acts and follow-up legislation
2. The Government Resolution of 30 September 2020 No 957, published under No. 391 / 2020 Coll., hereinafter referred to as "the Government Resolution No. 957", declared an emergency situation in the Czech Republic "for the period from 00: 00 on 5 October 2020 for a period of 30 days. By order of Government No 1195, the emergency situation was extended until 12 December 2020 and point II of the contested decision stated that" all measures taken because of the emergency situation in force on the date of adoption of that resolution remain in force to the extent that they were taken '. By order of Government No 1192, the Government, within the meaning of Sections 5 and 6 of Act No 240 / 2000 Coll., on crisis management and amending certain laws (Crisis Act), as amended, adopted a crisis measure "with effect from 18 November 2020 from 00: 00 until 20 November 2020 until 23: 59" which, in the contested part, prohibited the "retail sale and sale and provision of services at the premises', with the exception of the establishments referred to in points I / 1 (a) to (ae). By order of Government No 1196, the Government within the meaning of Sections 5 and 6 of the Crisis Act changed the period of effectiveness of Government Resolution No 1192 by" extending its effectiveness until 23: 59 a.m. until 22 November 2020. "
3. In addition, by order of Government No 1201, the Government, within the meaning of Sections 5 and 6 of the Crisis Act, adopted a crisis measure "with effect from 23 November 2020, from 00: 00 until 12 December 2020, until 23: 59," prohibiting the "retail sale and sale and provision of services at premises" in the contested part, with the exception of those referred to in points I / 1 (a) to (af).
4. By the Government Resolution of 30 November 2020 No 1262, published under No. 498 / 2020 Coll., "With effect from 3 December 2020, from 00: 00 a.m. until 12 December 2020 until 23.59 p.m.," a crisis measure adopted by which Government Resolution No. 1201 was repealed and, at the same time, in relation to the operation of retail and the provision of services, did not contain a prohibition similar to that laid down in Section I. / 1 of Government Resolution No. 1201.
5. The Government Resolution of 23 December 2020 No 1376, on the adoption of a crisis measure, published under No 596 / 2020 Coll., hereinafter referred to as "Government Resolution No 1376", "with effect from 27 December 2020, was" from 00: 00 to 10 January 2021 until 23: 59, "prohibited by the" retail sale and sale and provision of services at premises, "with the exception of the establishments referred to in points I / 1 (a) to (f). Paragraph I. / 1 of Government Resolution 1376 differs from the above wording of paragraph I. / 1 of Government Resolution 1201 only in the following:
The exemption provided for in point (b) is newly extended to "additional needs for the operation of motor vehicles'. The exemption provided for in point (ad) no longer contains establishments selling" Christmas trees, Christmas ornaments, mistletoe, hops and related products'.
In the final part - which follows the last exemption contained in point (af) - the text is amended as follows: "other goods and services are prohibited from selling or providing in such stores or establishments; [...] Furthermore, this prohibition shall not apply to establishments in which retail sale and sale and provision of services which are not prohibited does not constitute an exclusive activity in an establishment, but the part of the establishment in which retail sale and sale and provision of services which are not prohibited is separated from other parts of the establishment to which customers are not allowed access. '
6. The Government Resolution of 7 January 2021 No 12 amending the emergency measures published under No 9 / 2021 Coll., hereinafter referred to as "Government Resolution No. 12" in paragraph 2 amended "with effect from 11 January 2021 at 00: 00" the effectiveness of Government Resolution No. 1376 by extending its effectiveness until 22 January 2021 until 23.59.
7. The Government Resolution of 18 January 2021 No 53 on the adoption of a crisis measure, published under No 16 / 2021 Coll., hereinafter referred to as "Government Resolution No 53", "with effect from 19 January 2021 at 00: 00 until 22 January 2021 at 23: 59," prohibited the retail sale and sale and provision of services at premises, "with the exception of those referred to in points I / 1 (a) to (ai). Point I. / 1 of Government Resolution No 53 differs from point I. / 1 of Government Resolution No 1376 only in the fact that three new exemptions were provided for in the prohibition, which are the following:
Exemptions provided for in (ag): "stationery ';
Exemptions provided for in point (ah): "children's clothing and footwear stores';
Exemptions provided for in point (ai): "taxis or other individual carriage of passengers'.
8. Point III of Government Resolution 53 repealed Government Resolution 1376.
9. The Government Resolution of 22 January 2021 No 57 on the adoption of crisis measures, published under No 23 / 2021 Coll., hereinafter referred to as "Government Resolution No 57", "with effect from 23 January 2021 from 00: 00 until 14 February 2021 until 23: 59," prohibited the "retail sale and sale and provision of services at premises," with the exception of those referred to in points I. / 1 (a) to (j). Point I. / 1 of Government Resolution No 57 differs from point I. / 1 of Government Resolution No 53 only in that a new derogation has been made from the prohibition, which has the following wording:
Exemptions provided for in point (j): "childcare establishment under three years of age under daily regime '.
10. The Government Resolution of 28 January 2021 No 78 on the adoption of a crisis measure published under No 31 / 2021 Coll., hereinafter referred to as "Government Resolution No 78", "with effect from 30 January 2021 from 00: 00 until 14 February 2021 until 23: 59," prohibited the retail sale and sale and provision of services at premises, "with the exception of those referred to in points I. / 1 (a) to (j). Point I. / 1 of Government Resolution 78 is identical to point I. / 1 of Government Resolution 57. Point III of Government Resolution No 78 repealed Government Resolution No 57.
11. The full text of the now contested provision I / 1 of Government Resolution 78 is as follows: "Government with effect from 30 January 2021 from 00: 00 until 14 February 2021 until 23: 59.
I. prohibits
1. retail sale and sale and provision of services at premises, except for the following establishments:
(a) food stores;
(b) fuel outlets and other needs for the operation of motor vehicles;
(c) fuel outlets;
(d) stores of sanitary goods, cosmetics and other druggie goods,
(e) pharmacies, dispensers and medical devices outlets;
(f) sales of small domestic animals,
(g) sales of feed and other animal needs;
(h) sales of glasses, contact lenses and related goods;
(i) newspapers and magazines,
(j) tobacco stores;
(k) laundry and dry cleaners,
(l) road vehicle service and repair facilities;
(m) the premises of the towing providers and the removal of in-service vehicle defects on the road;
(n) sales of spare parts for means of transport and manufacturing,
(o) establishments permitting the collection of goods and consignments purchased in a distance manner;
(p) garden shops, including seed and seed;
(q) ticket ticket bill,
(r) florists;
(s) facilities for the negotiation and disposal of construction, project activity under construction, geological work, surveying, testing, measurement and analysis in construction,
(t) sales of textile material and textiles,
(u) computer and telecommunications services, audio and video receivers, consumer electronics, appliances and other household products,
(v) real estate brokerage establishments and the activities of accountants, accounting, tax records,
(w) locking and servicing of other household products,
(x) repair, maintenance and installation of household machinery and equipment,
(y) funeral services, embalming and preserving, cremation of human remains or human remains, including the storage of human remains in Urenas;
z) car washing machines,
(aa) domestic and hardware stores, where furniture, carpets and other floor coverings are not considered as household supplies;
(ab) establishments collecting and purchasing raw materials and composting plants;
ac) stone processing plants (e.g. the production of monuments, tombstones and their installation),
(ad) establishments (including mobile plants) with the sale of piety goods, such as wreaths, flower decorations for graves, piety candles, etc.; these establishments shall not be subject to the prohibition on sales at mobile premises referred to in point 1 / 7;
ae) establishments providing treatment and cutting services for dogs and cats,
(af) arms and ammunition sales,
(ag) paper-making;
ah) children's clothing and footwear stores,
(ai) taxis or other individual carriage of passengers;
(iii) a day-care establishment under three years of age,
where other goods and services are prohibited from being sold or supplied in such stores or establishments; This prohibition shall not apply to non-commercial activities under the Trade Code; Furthermore, this prohibition shall not apply to such establishments where retail sales and sales and the provision of services which are not prohibited do not constitute an exclusive activity in an establishment, but the part of the establishment in which retail sales and sales and the provision of services which are not prohibited are separated from other parts of the establishment to which customers are not allowed, '.
Arguments of the appellant
12. The appellant is convinced that the contested legislation on the restriction of retail trade and services (hereinafter referred to as "prohibition") is discriminatory, disproportionate and irrational and infringes the rights guaranteed in Articles 3, 4, 11 and 26 of the Charter of Fundamental Rights (hereinafter referred to as "Charter"), Article 14 of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"), Article 1 of the Additional Protocol to the Convention and Article 26 of the International Covenant on Civil and Political Rights.
13. Specifically, the appellant contests unequal access to entrepreneurs according to the criterion of the type of goods sold at the premises. According to the appellant, in the contested resolutions and in the context of their adoption, the Government did not explain why it had taken action to ban certain establishments and why other establishments had an exception to the prohibition. In so doing, the appellant considers it incomprehensible why, for example, hardware stores or florists have an exception to the prohibition, but other stores - such as shoe shops, winter clothes, washing machines, refrigerators or computers - do not. It is equally incomprehensible for the author to see what is more necessary to sell weapons and ammunition or cutting services to cats and dogs compared to other categories of goods and services. Thus, according to the appellant, the prohibition is without any objective evidence and rational reasons to restrict or prevent one person from doing business, while others are not prevented from doing so.
14. Similarly, the applicant finds it discriminatory to maintain the operation of workplaces different from retail and services when most cases of disease spread occur in workplaces or in households, not in retail and service establishments. According to the appellant, the Government did not explain in any way why, in light of this, it decided to close down retail and service establishments instead of at least partial closure of other types of workplaces. If the prohibition on the spread of the disease is the reason for it, the prohibition should only apply to the most risky areas of the business and, in particular, the closure of large workplaces and not to small business establishments.
15. Unequal access to entrepreneurs according to the different composition of the products sold is seen by the appellant in that the fundamental principle of the prohibition is that they aim at entrepreneurs and their establishments according to their predominant nature of the goods sold, regardless of which additional goods they sell. According to the appellant, smaller retailers with a narrower range of goods than large business chains are unduly and illegally discriminated against by the appellant, which also offer goods which are prohibited from selling to small retailers in an establishment subject to the prohibition. Even after the expiry of the ban, the market will be permanently distorted in such a way that privileged entrepreneurs with exceptions under the ban will take over customers who were not granted an exemption and who simply did not survive the ban due to their business situation.
16. According to the appellant, the legal conditions for issuing the contested orders or imposing the ban were not met at all, since it is not possible to limit the right to conduct business activities which do not threaten or interfere with the implementation of crisis measures under § 5 (e) of the Crisis Act. The appellant contends that even without the prohibition, there would be no threat to the implementation of crisis measures or to the disruption or impossibility of their implementation, and the Government does not even claim and does not demonstrate how the business activity affected by the ban is to threaten or distort some of the crisis measures taken.
17. Finally, the appellant also contests a breach of the principle of legality because of the uncertainty of the prohibition, where entrepreneurs are exposed to significant uncertainty as to whether or not they are subject to a ban. In addition, the appellant submits that the government has granted an exemption to domestic needs, but neither the Government's resolution nor other legislation defines what is meant by domestic needs. The prohibition cannot therefore be considered accurate and its application is not predictable, as required by the case law of the European Court of Human Rights. The appellant is of the opinion that the procedure whereby the contested government resolutions were not published before the hours before their effectiveness is in place is disproportionate and inadmissible even in view of the effects of the prohibition on its addressees who do not have an objective opportunity to familiarise themselves with their individual obligations and to respond to them within a reasonable period of time. In this context, the appellant also doubts whether, in the event of a prohibition, the condition of providing an appropriate means of legal protection against arbitrary interference by public authorities in property law is fulfilled.
18. In conclusion, the appellant submits that it insists that its proposal is negotiable also in the event of the expiry of the Government's contested orders. First, the appellant notes that, provided that the emergency situation and the validity of the crisis measure remain in place - as another law in its own territory, which contains at least partially identical material rules and gives rise to the same legal consequences - the proposal is in line with the decision-making practice of the Constitutional Court and constitutional order, and it is not possible to stop the procedure before the decision is given, at least in the part where similar legislation will be in force at the time of the decision-making. Furthermore, the appellant takes the view that the Constitutional Court is obliged to make a decision on the matter and proceedings not to stop even if the emergency situation and the crisis measures linked thereto are terminated, the annulment of which is proposed in the proceedings. Even in such a case, if the intervention is as intense as it is in the present case, the appellant considers that, despite the expiry of the contested orders by the Government of the Constitutional Court, it is necessary for the Constitutional Court to rule properly, since in another case there would be a denial of justice and no protection of constitutionality.
Proceedings before the Constitutional Court
19. The Constitutional Court sent the proposal under examination to the Government as a party to the proceedings and to the Ombudsman as an authority which is entitled to intervene.
20. The Ombudsman informed the Constitutional Court that he did not intervene.
21. In its observations of 22 December 2020, the Government proposed to suspend the procedure on the ground that the contested resolutions were no longer effective and were replaced by other measures. If, in its submissions, the appellant requests the Constitutional Court to take a decision on the contested resolutions in substance even after their expiry, the Government points out that the order of the Constitutional Court of 8.12.2020 sp. zn. Pl. ÚS 102 / 20 (the decision of the Constitutional Court is available at https: / / nalus.ujud.cz), in which the Constitutional Court finds that such a procedure would be contrary to the substance of abstract control of standards.
22. The Government has also put forward the reasons for which it finds the contested acts to be constitutionally consistent. In its observations, it states that it is aware that the crisis measures taken have significantly affected the fundamental rights and freedoms of individuals, but the government believes that the public interest in the protection of life and health in the present case has been outweighed, i.e. the measures taken have been proportionate to the objective, namely to avert possible large-scale health consequences for the population. The crisis measures relating to retail and services, issued by the government during the emergency period, are always limited to a narrowly defined period of time, it is not appropriate to assess the strict test of proportionality. As a rule, in the case of government crisis measures, it would never be possible to reach a clear conclusion in the assessment of the step in need, or at a high time interval, when the international professional community agrees on a universal solution that is necessary and appropriate. The government must have sufficient discretion over the time of emergency, both in relation to the choice of individual measures and their scope, so that it can react flexibly to the dynamic development of the spread of the virus, population behaviour, new knowledge of the virus and a whole range of other factors affecting the management of the pandemic. During crisis situations, it is not possible to wait for the moment when a full analysis of all possible actions is carried out and a precise and perfectly substantiated assessment of the effects of individual actions on the health and lives of persons, on freedom of movement, on economic impacts, etc., otherwise no crisis measures could be issued on time. In its submission, the appellant de facto asks the Constitutional Court to repeal the Government's decision on professional, strategic and security issues and to replace them with its consideration of the need for specific anti-epidemic measures.
23. The government's contested resolutions can therefore only be assessed by the optics of the rationality test, namely in its delineated form, aimed at determining whether the restriction of fundamental law has a legitimate objective and whether the device used can be regarded as reasonable, not necessarily the most appropriate or necessary, to achieve that objective. In this case, the legal objective is to prevent or at least mitigate the spread of highly contagious respiratory disease COVID-19, prevent the collapse of the health system and damage to the health of the population. The chosen means of achieving the objective is, in this case, a ban on retail trade and the provision and sale of services which are not assessed as strictly necessary for the daily life needs of emergency residents by consensus reached by the Government and its advisory bodies. To this end, the government adds that there is no single universal list, for example across Europe, defining what is the basic daily needs of the population and defining the trade and services that are necessary for everyday life during the pandemic, so it depends on the decision of political representation. Although the appellant contends that there is a minimal risk of infection in the retail and services environment, increased mobility of persons and visits to establishments where personal meetings take place are a significant factor in the spread of the disease. Similarly, the international comparison shows that, although the closure of retail and service operations is not the most effective solution, together with other restrictions on meeting and moving, it fits into the complex of measures to slow the spread of the epidemic. Moreover, the ban was limited by a relatively short period of time and, in order to mitigate the impact of this significant intervention on the right to do business, due to an extremely exceptional current situation, a number of support programmes have been adopted to provide at least the basic income of the businesses affected for the duration of the emergency and crisis measures, while further compensation is still in place. In addition, the Government submits that, during the period of application of the contested measures, the exemption from the ban on retail sales was in force, when the establishments allowing the pick-up of goods and consignments purchased by distance could continue to operate. Indeed, disabled entrepreneurs would face a significant income decline without explicit bans, as the pandemic has massively intervened in all business sectors, regardless of state intervention and affected the consumer behaviour of the population.
24. According to the Government, it can be concluded that the achievement of a defined legitimate objective, that is to say the public interest in protecting the health of the population, could reasonably be pursued by the restrictive measures - by the conclusion of retail trade and services. These specific restrictive measures played an irreplaceable role in the complex of all measures taken at a given time when the Czech Republic faced uncontrolled spread of COVID-19. Although the later evaluation may seem (as the appellant is trying to claim) as not necessarily the best, most appropriate and most needed, at the moment, the government believes it met the criteria of rationality and contributed to achieving the objective pursued, when the curve of the infected and hospitalised people (of course with time) began to decline.
25. On the objection of uncertainty of the prohibition, the Government states that the accuracy of the legislation may not be absolute. The provisions of the legislation may require interpretation, while private entities may also be required to seek legal advice on how to maintain them on the basis of these standards, which is all the more true for entrepreneurs (Lesser against Slovenia, No 36480 / 07, judgment of the Grand Chamber of the European Court of Human Rights of 11 December 2018, § 97). It is difficult to assess this aspect before it is shown what the decision-making practice is based on the provisions concerned. According to the Government, the principle of legality under Article 1 of the Additional Protocol to the Convention is not prejudiced if entrepreneurs understand the contested ban more widely. Similarly, the availability and predictability should be assessed in the light of the methods used to publish the contested rules and the ability of entrepreneurs to react to changes in the legislation (Spacek, s. r. o., against the Czech Republic, No 26449 / 95, judgment of the European Court of Human Rights of 9 November 1999, § 57-60).
26. In her reply of 11. 1. 2021, the appellant is largely developing its original argument. On the part of the government's statement, in which the government refers to emergency measures as an effective means of preventing diseases and thus protecting life and health, the appellant responds that the government does not consider at all that the real destruction of retail and service-providing establishments will result in a deterioration of the financial situation of a significant part of the Czech Republic's population and its public budgets, with an impact on health systems, which also has a negative impact on people's lives and health. Also in this context, the government does not take into account the threat of increased suicide rates, heart attacks, etc. On the other part of the Government's argument, the appellant contends that the ban is also aimed at shops that are served daily only by customer units and are not a threat to the collection of 10 or more persons. Moreover, according to the government table presented, it is clear that the closure of schools in this respect was much more effective than the closure of shops and establishments providing services, but schools were opened before retail and service establishments and, to that effect, the government's argument is also illogical. The appellant also disagrees with the Government's assertion that it is not possible to wait for relevant dates in the issuing of measures, as the appellant considers that this is a situation where citizens' rights are restricted without a standard legislative process and with extreme effects on society as a whole.
27. In addition to referring to similar regulation abroad, the appellant states in its reply that in countries where retail establishments and services have not been closed in a similar manner to the contested restrictions, the values of the infected population were lower than in the Czech Republic and therefore the restrictions in question cannot be considered necessary to prevent the spread of the epidemic. Finally, on the Government's assertion that the accuracy of the legislation may not be absolute, the appellant states that, in the present case, when Parliament is practically circumventing Parliament in view of the emergency situation and the manner in which the legislation in question is being adopted, rights and obligations must be laid down in a clear way excluding any libel. In this context, the appellant reiterates the extreme uncertainty in the interpretation of the concept of "domestic needs'.
28. The appellant also submits that the contested crisis measures also discriminate between consumers, where there are groups of persons who are unable to order goods in electronic shops and thus lose access to certain types of goods compared to other consumers. In conclusion, the appellant submits that, following the submission of its initial proposal, the situation has deteriorated since the sale of, for example, new-born clothes on any premises, regardless of the focus of the relevant trade, and this type of goods can therefore only be purchased in electronic commerce, which does not address the sudden need for such goods after the birth of the child.
29. In response to the fact that the Government's resolutions under appeal have ceased to be effective, the appellant has made a request to accept an amendment to the proposal, which also proposes the repeal of paragraph I. / 1 of Government Resolution 1376, since it provides for legislation which is materially similar to that already contested in the original proposal, and considers it to be contradictory to the constitutional order for the same reasons. At the same time, the appellant asks for the extension of its submission for the annulment of paragraph 2 with the introductory statement and the sentence of Government Resolution No 12, as the Government extended Government Resolution No 1376 until 22 January 2021. In this context, the appellant refers to the findings of the Constitutional Court of 20.11.2002 sp. zn. The appellant also notes that it is not true that all government resolutions initially contested would cease to be in force, as Government resolutions 1192, 1195 and 1196 have never been derogated and are still valid, albeit not effective.
30. In response to the appellant's reply and her request for amendment of the application, the Government made a further comment on 25 January 2021, in which it does not contradict the appellant's request to extend its proposal, but further notes that the contested Government Resolution 1376 has already been repealed and replaced by Government Resolution 53. The Government therefore proposes that the Constitutional Court stop the proceedings. In other parts of its statement, the government reiterates some of its previous arguments and further points out that recent scientific investigations confirm that reducing mobility and meeting people in establishments is essential to stop the expansion of the disease. In this context, the Government also stresses that the overall current situation certainly does not allow the contested measures to unleash dramatically, as requested by the appellant, as the burden on health care facilities is extremely high. On the objection to the uncertainty of the prohibition in relation to the concept of "domestic needs', the Government states that the situation is sufficiently addressed to the information provided to entrepreneurs by the Ministry of Industry and Trade by means of a published table on the Ministry's website, accompanied by an explanation of certain concepts, including the concept of" domestic needs'. The rest of its statement is devoted by the government to an overview of the ongoing compensation programmes, which it considers to represent a reduction in the burden of banning retail and business services, helping bridge the crisis period and avoiding the existence of business problems affected by government crisis measures and pandemic situations.
31. On 21 January 2021, 25. 1. 2021 and 4. 2. 2021, the appellant submitted to the Constitutional Court a new amendment to its proposal, on the one hand, a request for the amendment of its proposal, which is also proposed to be annulled by paragraph I. / 1 of the Government Resolution 53, paragraph I. / 1 of the Government Resolution 57 and, finally, by paragraph I. / 1 of the Government Resolution 78, since it is a regulation similar to that already contested by the proposal, the appellant considers it to be unconstitutional for the same reasons as it stated in its previous submissions. The appellant also develops its previous objections in these submissions about the senseless nature of the prohibition, which it considers not to be supported by objective necessity, but only by the unconceptual and random requirements of different persons. In addition, the appellant submits that it is not defensible that the exceptions also include hairdressing, masseuse and similar services, as well as pre-school childcare establishments older than 3 years of age. Similarly, it makes no sense that there should be only children's clothes and shoes between the exceptions and no longer adult clothes and shoes. The appellant criticises the mere concept of "children's clothing and children's footwear 'for its insecurity. In the remaining parts of these submissions, the appellant refers to an additional assortment (electro, books, sports needs), which it considers should be included in the exceptions to the prohibition.
Amendment of the Judge-Rapporteur
32. According to the work schedule, the proposal was assigned to Judge Jaroslav Fenyk as Judge to the rapporteur. However, his motion for a decision was not accepted by plenary in the hearing on 9 February 2021. Therefore, in accordance with the procedure laid down in § 55 of Act No. 182 / 1993 Coll., on the Constitutional Court, the new Judge-Rapporteur was appointed as Judge of Vojtěch Šimělek.
Proceedings before the Constitutional Court
33. The Constitutional Court has repeatedly addressed the question of whether the Government's resolution on the adoption of crisis measures constitutes an act capable of being the subject of an application for annulment of a law or other legislation pursuant to § 64 et seq., Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, ("the Law on the Constitutional Court '). In its resolution in sp. zn. In the light of the proceedings before the Constitutional Court, they may, depending on their content, be reviewed either as legislation or as a decision or other intervention by a public authority. The Constitutional Court must assess this nature of the crisis measure on a case-by-case basis according to its content.
34. The contested resolutions of Government No 1192 and No 1201 constitute in the contested parts general regulations governing their subject matter and bodies by definition and applicable throughout the Czech Republic and to an unlimited number of entities. This is therefore a law which can be challenged in the abstract standard control procedure.
35. A group of 63 senators made this proposal. In accordance with Article 64 (5) of the Law on the Constitutional Court, as amended by Act No. 320 / 2002 Coll., it also attached to it a signature document to which each senator individually confirmed that it was attached to the proposal. A group of senators therefore fulfils the condition of active legitimacy.
36. The Constitutional Court further had to address the fact that the contested orders 1192 and 1201 were no longer effective. According to Article 67 (1) of the Law on the Constitutional Court, the proceedings for the annulment of laws and other laws shall be terminated if the law, other legislation or individual provisions which are proposed to be repealed cease to apply before the end of the proceedings before the Constitutional Court. In the course of the proceedings, the appellant asked the Constitutional Court to accept the amendment of its proposal by gradually proposing the repeal of paragraph I. / 1 of the Government Resolution 1376, paragraph 2 of the Government Resolution 12, paragraph I. / 1 of the Government Resolution 53, paragraph I. / 1 of the Government Resolution 57 and, last, paragraph I. / 1 of the Government Resolution 78.
37. In the past, in cases where, in the course of the proceedings instead of the legislation no longer in force, an identical new legislation was issued, the Constitutional Court accepted the amendment of the proposal and in accordance with it continued the procedure in respect of that new legislation (the finding of 20.11.2002 sp. zl. ÚS 8 / 02). The Constitutional Court also concluded on such a procedure directly in relation to the current crisis measures, for which relatively short "service life 'is characterised. V Resolution of 8.12.2020 sp. zn. Pl. ÚS 102 / 20 The Constitutional Court found that, in the course of the proceedings before the Constitutional Court, the procedure of the Constitutional Court also depends on the activity of the appellant in that, in principle, if the content of the same or similar standard is incorporated into a new crisis measure, there is nothing to prevent the appellant from supplementing his application accordingly.
38. In the present case, point I. / 1 of Decree-Law No 57 adopted new legislation which, except for some exceptions, is similar to the previous one. However, as a result of the short "service life 'of the crisis measures, Government Resolution 57, which has been replaced by Government Resolution 78, is no longer effective to date, but the two resolutions are identical in paragraph I. / 1.
39. In the light of that Constitutional Court, the Government did not, on its own, invite the Government to comment on this last amendment to the application. If he had done so, there would have been an absurd situation where it could not have been decided on the matter because of the re-creation of the author's space and, where appropriate, the government's response to regular intervals of short time, changing the form of crisis measures. The Constitutional Court therefore accepted and examined the contested part of the application against Government Resolution 78.
40. In relation to the contested parts of the Government's resolutions 1192 and 1201, the examination of the proposal precludes that those resolutions have already expired within the meaning of Paragraph 67 (1) of the Constitutional Court Act and the procedure has therefore been terminated in that part. The same conclusion must also be reached on the termination of the procedure in relation to the part of the proposal directed against paragraph II of Government Resolution 1195 and paragraph 2 of Government Resolution 1196, against which the appellant applies an argument which, in substance, is directed only against the contested parts of Government resolutions 1192 and 1201 which are no longer in force, prohibiting the retail sale and provision of services at the premises. In particular, the repeal of paragraph 2 of Government Resolution 1196 is requested by the appellant on the ground that it has been extended to the effect of Government Resolution 1192 or the latter was amended in this respect by Government Resolution 1196. Even in view of the fact that the amendment to the legislation does not have a separate regulatory existence, it becomes part of the amended standard [cf. The finding of sp. zn. Pl. ÚS 5 / 96 (N 98 / 6 Coll. 203; 286 / 1996 Coll.), the resolution of sp. zn. Pl. ÚS 25 / 2000 (U 27 / 19 SbNU 271), the findings of sp. zl. ÚS 21 / 01 (N 14 / 25 SbNU 97; 95 / 2002 Sb.), sp. Pl. ÚS 33 / 01 (N 28 / 25 SbNU 215; 145 / 2002 Sb.)], it is necessary for the amendment resolution of Government No 1196 to conclude of the procedure which had already been brought in relation to the amended Government resolution No 1192. Finally, in relation to paragraph II of Government Resolution 1195, the procedure must be terminated on the ground that it is a rule concerning the extension of the emergency situation - declared by Government Resolution 957, which was thus extended until 12 December 2020 - and is therefore a timed legal standard for which the impediment to the hearing within the meaning of Paragraph 67 (1) of the Constitutional Court Act also applies, as is the case for the resolutions of the Government which expired due to their annulment by the Government. Although the emergency situation declared by Government Resolution No 957 has continued to be extended, the last time the Government Resolution of 22 January 2021 No 55, published under No 21 / 2021 Coll., until 14 February 2021, the extension of the proposal to repeal also later effective extension of the emergency situation is not considered, given the above-mentioned nature of the objections raised by the appellant against the extension of the emergency situation. After all, the appellant itself did not even turn to the Constitutional Court with such a request.
41. The Constitutional Court did not expect further clarification of the case from the oral hearing, therefore it waived the first sentence of Paragraph 44 of the Law on the Constitutional Court.
Assessment of constitutional conformity of adoption and issue of crisis resolutions
42. In the procedure for the control of the standards, the Constitutional Court pursuant to the provisions of § 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., first assesses whether the contested legislation has been adopted and issued within the limits of the prescribed competence and in the prescribed manner.
43. The appellant contends that the condition under Article 5 (e) of the Crisis Act under which the right to conduct business activities may be restricted was not met at all for the adoption of Government Resolution 78 or for the imposition of the prohibition contained therein, in so far as it threatens the crisis measures implemented or distorts or prevents the implementation of crisis measures. Under Section 6 (1) (b) of the Crisis Act, the Government is entitled, inter alia, to prohibit entry to designated posts by the Crisis Regulation. Under that authorisation, the prohibition on the entry into retail establishments and the provision of services may also be subordinated. Such a ban at the same time undoubtedly means, or requires, a restriction on the right to conduct business. In other words, without such a restriction on the right to conduct business activities, the prohibition in question - embodied in crisis measures - would be impossible. This meets the condition for limiting the right to conduct business activities contained in Section 5 (e) of the Crisis Act. In this conclusion, nothing can alter the way in which the prohibition in question is formulated in the present case in the crisis measure, namely that entry into the premises is excluded not by its direct prohibition but by the prohibition on the operation of the relevant business. The Constitutional Court therefore concludes, on this objection by the appellant, that the prohibition contained in paragraph I. / 1 of Government Resolution 78 falls within the competence of the Government to issue crisis measures.
44. The appellant's objection, according to which it is inadmissible for a crisis resolution to be published, in the light of the effects of the prohibition contained therein, only a few hours before it is effective, thereby depriving its addressees of the possibility of preparing and responding to it.
45. The decision on a crisis measure under Paragraph 6 (1) of the Crisis Act is published in the mass information means under Section 8 of the same Act and is declared as the law, i.e. by the Declaration in the Collection of Laws. The crisis measure therefore takes effect on the day of its publication in the Collection of Laws, the date of the publication being the date of the distribution of the relevant amount of the Collection of Laws referred to in its header [Sections 1 and 3 of Act No. 309 / 1999 Coll., on the Collection of Laws and on the Collection of International Contracts, as amended, ("the Law on the Collection of Laws')]. According to Section 8 of the Crisis Act, the crisis measures take effect at the moment set out in the Decision.
46. As regards the issue of the procedure and the moment of the declaration of the crisis measure, the Crisis Act refers to the legislation for the publication of the laws contained in the Law on the Collection of Laws. On the contrary, with regard to the issue of the entry into force of a crisis measure, the crisis law contains its own legislation, according to which decisions on emergency measures take effect at the moment specified therein. Compared to the legislation on the entry into force of the laws, the Crisis Act does not regulate the conditions under which the crisis measure may become effective as from the day following the date of its publication or even the moment of publication. Thus, the Crisis Act does not explicitly restrict the cases in which a crisis measure can take effect without delay. However, given that the government is entitled to issue emergency measures during the duration of the emergency situation, in response to the emergency situation that triggered the emergency situation, the circumstances on the basis of which, in the case of the laws, the requirement for immediate entry into force is already fulfilled at the moment of the publication - i.e. when the law is issued in relation to the declared emergency situation (Section 3 (4) of the Law on the Collection of Laws and on the Collection of International Contracts, as amended by Act No 277 / 2019 Coll.).
47. In the present case, Government Resolution No 78 was published on 28.1.2021 and became effective on the second day following the date of its publication, i.e. 30.1.2021. However, it should be stressed that the effectiveness of Government Resolution 78 was linked to the effectiveness of Government Resolution 57, which contains identical regulation. Thus, in the case of Government Resolution No 78, it is not possible to talk about the impossibility of its addressees to prepare for the regulation contained therein in the sense in which the appellant raises that objection (originally the appellant opposed Government Resolution No 1201). Therefore, the legislative action in question cannot be considered unconstitutional in terms of duration.
Substantial assessment of the proposal
48. The Constitutional Court addressed the appellant's objections that point I. / 1 of Government Resolution No 78 was unduly and irrationally impacted on the right of business under Article 26 of the Charter, since the regulation in question is neither effective nor necessary and outweighs its negative effects on the positive, and the situation can be addressed by minor intervention or restrictions in another area. Infringement of this fundamental right is in the context of infringement of the right to equal treatment (prohibition of discrimination); Therefore, it is not only the nature and intensity of the intervention that the infringement of the right to business, but also the fact that the rights of the various groups of entrepreneurs are affected to different degrees, without there being a rational and reasonable reason for such differentiation.
49. The Constitutional Court had first of all to assess whether the government could have intervened in the right of business by the contested measure. In addition, the Constitutional Court states that, pursuant to Article 6 of Constitutional Act No. 110 / 1998 Coll., on the Security of the Czech Republic (hereinafter referred to as the Constitutional Act on Security), the Government must, at the same time as declaring an emergency state, define which rights set out in a special law and to what extent are restricted in accordance with the Charter of Fundamental Rights and Freedoms and which obligations and to what extent are imposed. Moreover, Section 5 of the Crisis Act allows the government to limit the right to conduct business only "to the extent necessary."
50. in resolution sp. zn. The Constitutional Court stated (paragraph 26) that "a declaration of emergency by the Government is [...] primarily an act of application of constitutional law; The Court of Justice of the European Union (" the Court of Justice ') sets out, in principle, that the act of government', which has a legislative impact, is not subject to the control of the Constitutional Court and is, as a matter of principle, reachable 'primarily democratically elected political ("non-judicial') body of the Chamber of Deputies. Unless the legislature has established an appropriate standard of judicial review in the form of special procedural rules, a traditional constitutional review of proportionality cannot be applied to the political emergency decision. The Government has political responsibility for declaring a state of emergency as it is responsible to the Chamber of Deputies (Article 68 (1) of the Constitution), which can then fulfil a supervisory function within the meaning of Article 5 (4) of the Constitutional Law on the Security of the Republic '. In the same resolution, the Constitutional Court stated (paragraphs 29 and 30) that" the Government's practice, which first issued a separate decision to declare an emergency situation and subsequently laid down specific crisis measures which implicitly limited fundamental rights (and their scope) and in which obligations (and their scope) were imposed is not unconstitutional. [...] It can therefore be concluded that, if the decision on the emergency situation itself does not contain directly specific crisis measures within the meaning of Article 6 (1) of the Constitutional Law on the security of the Republic, its direct and, isolated' review by the Constitutional Court is in principle excluded, since in this case it is primarily an act of political governance. On the contrary, if specific emergency measures were laid down directly in the emergency decision, the review of the Constitutional Court could not be absolutely excluded from the part of the decision which would include specific emergency measures containing generally binding regulatory rules of conduct, but this is not the case in the present case '.
51. Also in the present case, the Government Resolution of 30 September 2020 No 957 (No 391 / 2020 Coll.) states that the Government first issued a separate decision to declare a state of emergency and only then laid down specific crisis measures limiting fundamental rights. However, the Constitutional Court persists in the above-mentioned legal opinion that such a procedure is not unconstitutional.
52. The next step in the substantive review of the contested legislation is to assess whether the intervention in the contested fundamental rights is factually consistent with their constitutional guarantees. In its previous case-law, the Constitutional Court stressed that the right to do business is included in the title of the Fourth Charter among the so-called economic, social and cultural rights, while at the same time being the economic, social and cultural right listed in Article 41 (1) of the Charter. It is therefore not directly applicable to the same extent as fundamental human rights or political rights. The regulation of these rights is primarily in the hands of the legislator, and only secondary, and to a limited extent, the constitutional guarantees of economic, social and cultural rights can be regarded as a question of Judicial. Even in the case of fundamental rights referred to in Article 26 (1) However, the Charter shall apply the requirement of Article 4 (4) of the Charter to investigate their substance and meaning when determining the limits of those rights [the findings of 12 December 2017 sp. zn. sp. zn.
53. In the just cited finding sp. zn. Pl. ÚS 26 / 16 The Constitutional Court, following the earlier case law, has defined that the meaning and substance of the right to engage in business are, on the one hand, purely individual (the possibility of individual self-evaluation) and, on the other, material law, since such individual freedom is also an essential element of the democratic rule of law, and, on the other hand, economic (it is simply a profit that is partly taxed so that the State obtains the resources for its functions). In other words, in the case of the right to do business and to pursue other economic activities, the restriction on the substance and the meaning would be if, as a result of that activity, it would no longer be able to provide resources for those who carry out it [the findings of 8.12.2015 sp. zn. Pl. ÚS 5 / 15 (N 204 / 79 SbNU 313; 15 / 2016 Coll.), paragraph 48, or of 23.5.2017 sp. zn. Pl. ÚS 10 / 12 (N 82 / 85 SbNU 393, 207 / 2017 Coll.), paragraph 66].
54. In addition, the Constitutional Court notes that the prohibition in question contained in point I. / 1 of Decree No 78, on the basis of which a given type of business cannot be carried out in an establishment, in a number of cases implies a de facto prohibition on the operation of the activity in question as such, or at least a very significant reduction in the possibility of securing resources for the needs of these retail operators and service providers: for example, a range of products cannot be sold by remote means, or only with significant difficulty, and also applies (as the appellant pointed out in the reply of 11 January 2021), that there are also people who cannot electronically order the goods needed and are therefore significantly disadvantaged compared to other consumers. There is therefore no doubt - and neither is the government denying this - that the contested provision interferes with the right to do business. In addition, it can be concluded that the relevant part of the retail operators and service providers, after the establishment of the prohibition currently under consideration, were not able to provide their livelihood by their business activities [cf. found on 8.8.2017 sp. zn. ÚS 9 / 15 (N 138 / 86 SbNU 333, 338 / 2017 Sb.)]. The contested ban therefore affects the very nature and meaning of the right to do business.
55. At the same time, however, it should be added that no fundamental right exists alone and therefore the Constitutional Court carries out the balancing of individuals in the conflict of standing fundamental rights. In the present case, the Government argues that health protection (Article 31 of the Charter) and even the right to life (Article 6 (1) of the Charter) are primarily in conflict. Therefore, the Constitutional Court had to deal with this assessment of the conflict of fundamental rights.
56. However, as the Constitutional Court has already indicated above, the conclusion on the constitutionality of the contested legislation cannot only be made on the basis of an assessment of the justification and intensity of the intervention in the rights of individual groups of entrepreneurs as such. In fact, the second substantive point of the whole case is whether there was a constitutional conformal distinction between groups of entrepreneurs (i.e. the prohibition of discrimination).
57. In addition, the Constitutional Court recalls that, in the decision sp. zn. It stated that the constitutional right to equal treatment was guaranteed, on the one hand, in Article 1 of the Charter as a separate fundamental right, which can be claimed directly and without further action (non-accesorial equality) and, on the other hand, as a conditional fundamental right, which can be sought pursuant to Article 3 (1) of the Charter only in conjunction with the alleged interference with another fundamental right or freedom protected by the Charter (equalitative). Having regard to the fact that the Constitutional Court, in its caselaw, has allowed, in addition to the constitutional protection of equality in fundamental rights, in accordance with Article 3 (1), The Charter also provides for the constitutional protection of equality in all rights, or the general prohibition of arbitrariness in accordance with Article 1 of the Charter, as the distinction between accessorial or non-accesorial equality in legal proceedings before the Constitutional Court does not have decisive significance, since all possible objections relied on by Article 3 (1) The Charter is always normative, covered by Article 1 of the Charter, whose scope is wider by nature. Therefore, the intensity of the constitutional review is not primarily dependent on the fact that unequal treatment takes place in relation to another constitutionally guaranteed law (accesoratively) or not (non-accesoratively). In particular, the reason for the different treatment, that is to say the distinctive character established, and at the same time the specific right or the good in respect of which it is treated differently is crucial. This must be in accordance with the requirements laid down by the Constitutional Court to justify the legitimacy (justification) of the different treatment (finding sp. zn.
58. In examining whether there has been a breach of the right to equal treatment because of the distinguishing criteria applied in the legislation, it is necessary to assess whether the first is comparable individuals or groups; 2. they are treated differently and for what reason; 3. Different treatment for individuals or groups is to be imposed on them (by imposing a burden or by denying good); 4. This difference in treatment is justified, i.e. (a) pursues a legitimate objective and (b) is proportionate [cf. Similarly to the finding of sp. zn. The intensification of the review of the adequacy of the different treatment [step 4b)] will depend mainly on the reason for the different treatment applied and on the specific right or the good concerned by the different treatment. The lower intensity will constitute a requirement for a rational legal relationship to the objective pursued, i.e. whether it can in any way contribute to the achievement of that objective [cf. Cf. Cf. The higher intensity will then express the proportionality requirement in relation to the objective pursued.
59. In the present case, the nature of the crisis measure (or its contested part) lies in the total prohibition on retail sales and sales and the provision of services at premises, with 36 exceptions to the prohibition.
60. In view of the above-mentioned test of discrimination, the Constitutional Court considers that the contested regulation affects comparable individuals and groups, i.e. the service provider. The second step is also implemented, i.e. they are treated differently, precisely in the way that some of them are prohibited and are otherwise allowed to do so. On the question of the different treatment of the parties concerned, the Constitutional Court has already expressed itself from above (paragraph 54), in the way that the contested ban affects the very nature and meaning of the right to do business.
61. The Constitutional Court therefore dealt with a further assessment of the justification of the different treatment, i.e. whether it pursues a legitimate objective and is proportionate, namely whether it is a solution which can actually contribute to that objective in the sense set out above.
62. First of all, the Constitutional Court points out that it does not call into question the existence of a legitimate (i.e. constitutionally challenged) objective which is generally pursued by the contested measure. This objective (in this respect, for the sake of clarity, may be referred to both Government's highly reproduced observations) is to prevent or at least mitigate the spread of highly contagious respiratory disease COVID-19, to prevent the health system from collapsing and to harm the health and life of the population. In addition, the Government stated that increased mobility and visits to establishments where personal encounters are taking place are a significant factor in the spread of the disease, with the closure of retail and services operations having an irreplaceable role in the complex of all crisis measures taken to slow the spread of the epidemic. The contested provision of paragraph I. / 1 of Government Resolution 78 has been followed by health protection (guaranteed by the State of Article 31 of the Charter), hence life (Article 6 (1) of the Charter). These objectives were defined by the Government in its statement of 22 December 2020 by minimising the negative effects of the risks associated with the occurrence of coronavirus, the main objective being to prevent overcapacity of hospitals, the second to prevent the explosion spread of COVID 19 and the third to reduce mortality and the frequency of severe infections. These objectives are considered legitimate by the Constitutional Court, including in view of their constitutional guarantee in the Charter.
63. However, the other question is whether the treatment of the various groups of entrepreneurs in the contested measure is sufficiently justified and proportionate. In particular, the question remains whether there are strong enough reasons for this different treatment, including in relation to whether the objective pursued could not be achieved using less invasive means affecting the fundamental rights of the operators concerned.
64. In addition, it is submitted from the Government's statement of 25 January 2021 that "the Government does not, in its previous observations, claim that the closure of retail trade and services is a measure in itself leading to a slowdown in the spread of the disease but is inseparably linked to other restrictive measures. All crisis measures in their complex aim to interrupt the spread of the disease between individuals and the entire population, as stated by the Government in its statement of 22 December 2020 (reducing the cluster, reducing the number of meetings, reducing the movement of persons, reducing the provision of selected services, using protective and disinfectant devices). Recent scientific investigations confirm that reducing mobility and meeting people at the premises is essential to stop the expansion of the disease. Moreover, open trade and services increase not only the mobility of people, but also the burden of public transport. The risk of prolonged public transport trips is documented."
65. Therefore, on this fundamental issue of measuring the introduced full ban on retail sales and the provision of services, while providing for exceptions to this ban, the government is not in any way expressing itself, nor is it clear whether the use of less invasive restrictive means was even considered. This consideration cannot be made in the opinion of the Government of 22 December 2020, where it is only stated on a flat-rate basis that "in the event of a serious infection which is transmitted through contaminated droplets and aerosols, the concentration of people, in particular in a enclosed area, should be prevented, where appropriate, by laying down further conditions for their staying in such a place. It is therefore necessary to use tools to regulate traffic in such locations'. This strong statement clearly cannot be obtained by persuasion or by reference to the presentation of Prof. R. Chlibka from the press conference of the Ministry of Health of 17 September 2020, to which the Government referred in the footnote.
66. The Constitutional Court states that the cited Article 6 of the Constitutional Law on Security constitutes an authorisation for the Government to define rights which are restricted. The law that follows this constitutional law is a crisis law which, in the provisions of Sections 5 and 6, determines which rights may be restricted to the necessary period and to the extent necessary. The government's contested resolution in this regard refers to paragraphs 5 (a) to (e) and 6 of the Crisis Act, which, however, practically means that the government - at least in a proclamation - has made use of all the possibilities allowed by the Act [with the sole exception: the right to strike under Section 5 (f) of the Crisis Act]. However, from the point of view of deciding on the present case, it is essential that Sections 5 (b) and 5 (e) of the Act cited explicitly allow the possibility of restricting the right of ownership and exploitation and the right to conduct business activities.
67. At the same time, however, it is necessary to respect the coutlers of the Charter, even in such an emergency situation as the emergency situation is declared. Article 2 (3) The Charter is true that everyone can do what is not forbidden by law and no one must be forced to do what the law does not impose. This paragraph - together with paragraph 2 ("State power may be applied only in cases and within the limits laid down by law, in the manner laid down by law. ') - lays down one of the key principles of the rule of law: whereas the exercise of state power is bound by law, i.e. the State must not do anything that the law does not allow it to do, it is in the case of an individual on the contrary - it can do everything that is not prohibited by law and it must not be forced to do what the law does not. The ideal starting point of the quoted rule is the primacy of the individual before the state. In contrast to the exercise of state power, the individual has a much wider scope for his activities and the state can limit him only by law, not by choice, but only in some cases. In other words, the quoted article in the Charter implies a ban on libel. The prohibition of libel also results from the principle of material rule of law, guaranteed by Article 1 (1) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution). Similarly, pursuant to Article 4 (4) of the Charter," the application of the provisions on the limits of fundamental rights and freedoms must be examined in their substance and meaning. Such restrictions shall not be misused for purposes other than those for which they have been established.'
68. The Constitutional Court states that it fully recognises that the government has been faced with problems in the context of the pandemic crisis, the resolution of which through legal regulation is extremely difficult for many reasons. The public authorities - which is far from being true only about the Czech Republic - are primarily lacking experience in dealing with a crisis of similar magnitude, and, moreover, the epidemiological situation is very dynamic, and there is no complete agreement between experts on how to evaluate it and, consequently, regulate it as effectively as possible. At the same time, however, it must be stressed that regulation of the rights and obligations of individuals, namely decision-making on which group of citizens will retain rights and which, on the contrary, will bear the burden of limiting them, must not be merely a sign of political will in a modern constitutional state. The fact that a public authority has the power to regulate and, at the same time, to find the necessary majority to exercise that power is not in itself sufficient for the issue of a constitutionally consistent legal act. Such legal regulation - which is particularly true when it comes to limiting fundamental rights - must also reflect the need for rationality, i.e. it must be based on reasonable, generally acceptable reasons and these must also be available on the outside. This requirement is, moreover, one of the fundamental building blocks of the rule of law, as the Constitutional Court has formulated in its previous case-law, in relation to the above mentioned prohibition of libel.
69. In accordance with Article 6 (1) of the Constitutional Law on Security, the emergency measures of a government issued in an emergency state must, moreover, provide for a clear definition of the limited fundamental rights, the scope of those restrictions and the obligation imposed and those measures must be consistent with the Charter and also with the Crisis Act.
70. There are several key points of reference for the present case. First of all, the government has chosen a solution consisting of a flat-rate ban on all retail sales and the provision of services at premises, while at the same time setting a large number of exceptions resembling a "telephone list '(36 in total). However, the underlying deficit of this is the fact that there is no relevant source of evidence on the basis of which the government reached this very solution. In this respect, the Government did not even use the possibility of mentioning these resources at least in its observations on the proposal now under consideration, although the Constitutional Court has repeatedly called for it to be heard.
71. In fact, the Constitutional Court cannot regard as such specific resources the government's claim (referring to foreign sources) that reducing mobility and meeting people at the premises is essential to stop the expansion of the disease. As much as the Constitutional Court does not intend to dispute this claim, it is not clear from it whether the measure currently adopted is really necessary in the situation and whether a comparable objective could not be achieved by applying less restrictive measures. It is already clear from the nature of the case, for example, that the essence of retail sales is precisely that people use shops close to their place of residence (or employment) and therefore do not have to travel far and use public means of transport. Similarly, the government's references to the research results taken from the US (Opinion of 22 December 2020, p. 7-8) merely illustrate the most risky locations for the transfer of restaurants, fitness centres and cafés, which is clearly missing from the nature of the crisis measures now under consideration. The reference made here to the importance of limiting pooling and gathering is also logical, but once again, there is no explanation as to why the government has taken this form of ban on sales and provision of services.
72. In fact, the essential dimension of the present case - which is, however, closely linked to the grounds mentioned above - is also the way in which the government prohibited, or prohibited and authorised, the sale of products and the provision of services in the contested measure. Although, as the Constitutional Court has already explained above, the Government is entitled, in accordance with Article 6 of the Constitutional Security Act, to restrict certain fundamental rights, the cited Article 2 (3) of the Charter "does not only" reserve the law and is not merely legislative technical provisions, but reflects the fundamental and inexcusable value basis of the material rule of law based on respect for fundamental rights and freedoms. While public power can only be exercised in cases foreseen by law, the basic state of the individual is the state of freedom. While the state (public) is also constitutionally empowered to intervene in this basic situation, that is to say, to regulate the rights and obligations of individuals, the nature of such intervention must, however, respect the text and the meaning of the provisions of Article 2 (3) of the Charter. The State can therefore address a specific order or ban to an individual in a constitutionally foreseeable manner, but must not reverse the fundamental logic of the relationship between the public and the individual. Therefore, it is not possible, in general and completely unjustifiably, to prohibit "all" by law and, in the form of exceptions, to permit certain areas affected by the prohibition "retroactively" (again without any justification). On the contrary, regulation of the rights and obligations of persons, in particular those restricting fundamental rights and freedoms, must be carried out in the form of relatively certain orders or prohibitions, which will be adequately justified, including in an emergency situation.
73. The requirement of a rational and externally identifiable justification for a measure affecting fundamental rights, in a way that causes different effects between comparable entities, is an improper part of the discrimination test, i.e. an assessment of whether different treatment is sufficiently justified and proportionate. Only in this case can this different treatment be considered justified. In the rule of law, it is inconceivable that any act of a public authority which interferes with fundamental rights should not be justified in a rational and convincing manner, or at least that justification should not be disclosed in the context of subsequent judicial review.
74. All the more so, it requires justification for regulation which leads to unequal interference in the right to business within different types of retail and service business. If the arbitral and unjustified decision is then reached on which types of retail and services will be permitted and which are prohibited without, in any case, being able to establish valid arguments for their necessity or, on the contrary, necessity and epidemiological danger or acceptability, this also affects the right of equal access to the right of business guaranteed in conjunction with Article 26 (1) of the Charter, guaranteeing the equality of people in their rights.
75. However, specific demands on the rationality of the solution or requirements on the completeness and reliability of the documents justifying the adoption of certain legal regulations can - indeed they must - depend on a specific factual situation to reflect reality. The Constitutional Court must therefore also reflect, when reviewing legislation regulating the rights and obligations of persons, what information could and should have been available to the public authority concerned and in what factual situation it was in in formulating the specific measure under appeal. It is thus clear that other (higher) claims may be imposed by the Constitutional Court on the rationality and rigour of the law adopted in "quiet times" after extensive parliamentary debates, accompanied by a explanatory report, and when it was adopted, the legislator was not in a time constrained by external objective circumstances. On the contrary, in a review of a law that would have to be adopted for objective reasons, so to speak, "day-to-day ', which responds to a complicated factual situation which is difficult to predict, there is a certain degree of restraint in terms of its subsequent judicial review. As stated by the Constitutional Court of the Republic of Austria in Decision No 436 / 2020 of 10 December 2020, the process of issuing regulations must" document the information base of the regulation and the consideration of the interests involved. Of course, the demands for this must not be excessive'.
76. On the one hand, it is therefore not for the Constitutional Court to require the Government, in the framework of a constitutional legal review, to find and perfectly justify (rather hypothetical) the "optimal solution 'and the optimum distribution of burdens linked to the limitation of the fundamental rights of certain population groups, where there is no practical agreement between experts to assess the current situation and the forecasts of its possible development (the requirement for justification must not be" excessive'). From a constitutional point of view, however, it is not possible to accept the second extreme. Laconically speaking, even practical uncertainty and lack of perfect information do not mean that the government can do "anything" while relying solely on instinct or political compromise. The government's decision must be based on professional recommendations based on the maximum available knowledge of the disease and its spread.
77. In doing so, it is fully in the hands of the governments from which sources and how this information will be drawn, and in this respect the Constitutional Court must be very restrained. However, in view of his duty to protect fundamental rights, he must insist that these reasons, which demonstrate the need (precisely this intense) for interference in fundamental rights by means of government decisions (crisis measures), are identifiable, which means that they should be made publicly available. It must be borne in mind that any crisis measure is a political decision, which must, of course, be based on technical evidence, but which is the responsibility of the government, not its experts. At the same time, the government must consider not only the specific expertise it has but also take into account the overall context and impact of its actions in other areas of social life, both in the short and long term. This is precisely why it is essential that it is able to justify any such decision in a rational manner and that the reasons for these measures are available on the outside. Otherwise, they lack adequate legitimacy.
78. In this context, the Constitutional Court rejects any objection that it cannot be strictly required that any legislation be justified, since, for example, in practice, the justification for the amendment of the law adopted on the basis of an unjustified amendment by a Member in the second reading cannot be required. In the present case, it is a government crisis measure, a collective body that can be expected and also required to be based on sufficient expertise and is reasonably justified.
79. In addition, when assessing the intensity of the intervention in the fundamental right, it is necessary to freely take action and to base the contested crisis measure with a different treatment between the different bodies on the fact that at present the government had sufficient time to consider and justify the measures taken much better than at the time of the establishment of the restrictive measures in March 2020. Even in this area of public power, in view of the passage of time, it is necessary to impose higher demands on the justification of interference in fundamental rights than on the immediate reaction at the beginning of the pandemic, and with a certain degree of exaggeration, it is even possible to talk about a certain relationship between the intensity and justification of prohibitions and over time. The reason for this tightening request is, therefore, both the fact that the government had much more information, practical experience and also the time of the contested regulation to consider and systematically justify, but also the fact that long-term and repeated interference with fundamental law (in this case in the right to business) is much more invasive and "painful" than the short-term and temporary restriction.
80. The Court of Justice, which has a constitutional obligation to protect fundamental rights (Article 4 of the Constitution) and is therefore obliged to examine from that point of view the legal acts of the public authority, cannot do so effectively in a situation where it is not identifiable from them itself or from the available documents, why and to what extent they were issued.
81. As mentioned above, the Constitutional Court is well aware of the fact that, at the time of the declared emergency, it is not possible to insist consistently on all formal attributes of normalisation, as is the case in standard conditions. At the same time, however, it should be seen that the crisis measures in question, issued by the government (i.e. the executive body), are indeed very robust interventions in the fundamental rights of a large number of individuals and legal persons, and therefore must be reviewed not only in terms of procedural but also material. It is therefore not possible for an effective review by the Constitutional Court without the Government to properly explain the need for the contested measure (including evidence of the documents on which it was based) and to justify the necessary extent of the limitation of fundamental rights and the definition of the obligations imposed. Moreover, as already mentioned above, the contested measure was issued after several months of experience with the development of the pandemic in the Czech Republic and elsewhere in the world, so that the level of practical uncertainty was no longer as high as in the first months of its operation, and it can therefore be expected that the government could and should have had a number of relevant grounds for rational and justified decision making.
82. However, for the decision of the Constitutional Court in the present case, it is not only the existence of a constitutional obligation on the part of the Government to rely on the legislative solution chosen for rational and identifiable reasons, but also to answer the question in what form, when and to whom these reasons and supporting documents must be available so that the crisis measure is not found to be unjustifiable for the different treatment of the business operators concerned.
83. The Constitutional Court takes the view that it is not necessary for the reasons of the legislator, which may subsequently be relevant for the review of the constitutionality of the regulation, to be implicitly already recorded in a formal document which would constitute a justification (explanatory report) of the law. Although, in the case of legislation, there is an obligation under the legislative rules of the Government to submit a reasoned report with their proposals, it is not an obligation arising directly from constitutional order. On the other hand, however, any public authority which regulates the law on the rights and obligations of persons must have the relevant reasons and documents at its disposal and, at least in the event of a review of the constitutionality of such legislation, be prepared to submit them to the Constitutional Court. However, if they do not do so, it can only be concluded that the legislation under assessment is an expression of pleasure. Simply put: if the Constitutional Court continues to base itself on the theory of a rational legislator (or more generally: legislators), it also assumes, as a matter of course, that any decision by a public authority that interferes with fundamental rights is based on sufficient evidence, and that contradictory arguments are very carefully considered when approving it and that it is possible to examine it precisely by means of the fact that such evidence will at least subsequently be available. Otherwise, it is not a rational decision, but a completely random one.
84. The German constitutional doctrine and also the case-law are based on similar grounds. Whereas the obligation of a legal or sublegal legislator to capture the reasons for the legislation in advance and in formalised form may be considered not to be entirely unambiguous (however part of the doctrine of the Basic Act imports it, cf. Sannwald, in: Schmidt-Bleibtreu / Hofmann / Henneke, GG, 14. Aufl. 2018, Art. 76 (22), or Mann, in: Sachs, GG, 8. Aufl. 2018, Art. 80 (31)), the obligation to have such reasons available and, in the case of constitutional review, is prepared to submit them generally recognised. Thus, for example, the German Federal Constitutional Court has in the past imposed an obligation on the legislator (but it is already possible to apply to other legislators) to "clearly justify" [nachvollziehbar zu begründen; BVerfGE 125, 175 (238)].
85. The Constitutional Court may refer (except for the decision of the same court cited above), or to the decision of the Constitutional Court of the Republic of Austria, sp. zn. The legislator is obliged to document the procedure for adopting regulations, even in times of crisis. "
86. In the present case, it was therefore up to the Government itself to present sufficient and rational reasons for which it adopted the contested measure in the form it adopted. It is only on their basis that the Constitutional Court can perform its duties properly and examine the compliance of the contested legislation with the law or constitutional order. In the present case, the appellant points out the absence of justification both in relation to the prohibition itself and to the exemptions provided for in it when it identifies certain specific examples which it considers illogical. The Constitutional Court also finds that objection to be justified. In this situation, the absence of any justification cannot even be measured in the conflict of standing fundamental rights (right of free enterprise and right of ownership against the right to health or the right to life).
87. The Constitutional Court does not dispute that the very purpose for which exemptions from the prohibition are provided, in order to sell the necessary goods and to provide the necessary services (goods and services of essential daily needs - in foreign adjustments to essential goods and services), can be considered rational because it is, or should be, a range whose unavailability at the premises would be extremely problematic for the company and its functioning. Moreover, other countries that have taken up similar measures do so, as the Government has demonstrated in its observations. However, the Constitutional Court is obliged to assess whether the classification of goods - to which the appellant points out in the context of its objections - is rational in these exceptions for that purpose. The Constitutional Court has repeatedly stated that it cannot enter the field of political decision-making by requiring the optimal, most appropriate or best solution, which, moreover, cannot always be precisely specified in constitutional terms, is sufficient if a solution is reasonable in relation to the purpose to be achieved. It is necessary to accept a wide degree of discretion by the Government, since the requirement that goods and services are "necessary 'would be impossible [cf. the finding of 28 June 2016 sp. zn. Indeed, foreign legislation also shows that the access of states to what is among the essential goods and services to which exemptions from the prohibition apply is not the same.
88. However, it is essential that the government be able to properly and convincingly justify the need for 1. For what reasons it was necessary to proceed to a total ban on retail sales and the sale and provision of services at the premises (i.e. in particular why it was not possible to achieve a comparable result by less invasive means, e.g. by reducing the number of customers present and other measures) and 2.
89. In its observations of 22 December 2020, the Government itself admits that the definition of "non-essential shops and services" differs from the State during the pandemic when it states that "there is no single universal list which, for example, across Europe, defines what is the basic daily needs of the population. Thus, the definition of business and services that are necessary for everyday life during a pandemic depends on the decision of political representation." This fact is fully respected by the Constitutional Court, but it is precisely for this reason that the government (as a political representative) should properly explain the exceptions. It is true that the two possible methods chosen, i.e. a general prohibition on sales with the exceptions set out, or, on the contrary, a taxa determination of the prohibited sales segment, lead to the same objective: from a number of business entities, the government decides who can continue to perform their activities properly and who can not.
90. The Constitutional Court does not call into question the right of the Government to make this political decision, which must be the result of careful consideration of various aspects (health, social, economic, etc.) and for which it is also fully responsible, but nevertheless, for the protection of the fundamental rights of the parties concerned, it must insist that the Government should explain them properly and specifically, as this will only ensure that this decision is not entirely arbitrary. Moreover, in particular the operators of sales and services concerned have the right to know the reasons for their different treatment.
91. The Constitutional Court therefore concludes that, in a situation where the Government makes use of the possibility of limiting fundamental rights or freedoms by crisis measures and imposing obligations on its addressees, it must also be able to properly justify its action in order to make it clear that its decision was not arbitrary or arbitrary. In particular, this means that (at least) the information on the basis of which the Government decides in such cases should be available and that information must subsequently be reconsidered in proceedings before the Constitutional Court. The reference to the negative development of the epidemiological situation on which the Government's observations on the appellant's proposal are based is "only 'the specification of the legitimate objective pursued by the contested scheme, but there is no longer any indication of a rational relationship between that objective and the measure chosen or even the necessity of such a measure. Although the Constitutional Court is prepared to provide the Government with considerable scope to formulate legislation when assessing the appropriateness and necessity of the measure under consideration (precisely in view of a difficult, dynamic and de facto opaque situation), even this abstentive approach cannot justify a government procedure which has not been able to support its measure with rational arguments.
92. If, finally, the Government argues in both cited statements that foreign legislation, which is often also a ban on sales with the exceptions laid down, states that, in a number of countries (Austria, Poland, Bavaria), crisis measures by the Government and the ministries are justified (see, for example, the text of J. Winter Unjustified crisis measures by the Government contravene the principles of the democratic rule of law, in Law and crisis, 30.1.2021, https: / / rightacrise.net / non-discretionary-crities- caution-oplation- oplation- democratic-right-state /). The government's comparative argument is therefore "two-edged ': it can be inferred not only from a similar procedure by the executive authorities of other European countries at the time of the pandemic in terms of establishing prohibitions and exemptions from them, but also from the requirement of adequate justification for these measures. In a snappy manner, it is clear from these examples that even in such a hectic and tense situation it is not possible to resign on reasonable grounds of restrictive measures.
93. It can thus be summarised that the Constitutional Court is well aware that legislation issued at the time of the declared emergency cannot be imposed on the same requirements as "calm weather ', i.e. it is not always necessary to insist on formalised form of the explanatory memorandum. At the same time, however, the opposite extreme cannot be accepted: a situation where the government, even in proceedings for abstract control of the standards before the Constitutional Court, when a specific crisis measure is being reviewed, is unable or willing to state any relevant and specific reasons why the prohibition is necessary, why it cannot be complied with with with less robust interference in fundamental rights and what makes the exceptions more rational. In fact, although it is clear from the nature of the matter that some of these exceptions are indeed necessary (e.g. the sale of food, medicines or fuel), a number of other exceptions require a convincing explanation from which it would only be apparent from the Government that this is not an inadmissible choice (e.g. the appellant mentioned in the Florist or the arms and ammunition store).
94. This reasoning is not only a necessary basis for the review carried out by the Constitutional Court, but also for the social acceptance and thus the legitimacy of crisis measures. As mentioned above, the constitutional system of the Czech Republic is based on the primate of the individual before the state and thus follows consistent learning about the social contract. However, this concept is an intrinsically foreign procedure whereby the executive body issues measures that are very fundamentally affecting the fundamental rights of these individuals without duly and rationally justifying such measures. In such a case, their legitimacy is, of course, declining and their willingness to accept citizens consistently.
95. Therefore, the Constitutional Court contested paragraph I. / 1 of Decree No 31 / 2021 Coll. on grounds of infringement of Article 1 (1) of the Constitution and Article 2 (3), Article 4 (4) in conjunction with Article 26 (1) of the Charter.
Conclusion
96. In conclusion, the Constitutional Court summarises that, in the course of the procedure on the submitted proposal, point I. / 1 of the Government Resolution of 16 November 2020 No. 1192, on the adoption of a crisis measure of 20 November 2020 Coll., point I. / 1 of the Government Resolution of 20 November 2020 No. 1201, on the adoption of a crisis measure of 477 / 2020 Coll., point II of the Government Resolution of 20 November 2020 No. 1195, on the extension of an emergency state of SARS CoV-2, on the adoption of a crisis measure of 20 November 2020 No. 472 / 2020 Coll. The Constitutional Court therefore closed the procedure for the part of the application against those provisions under Paragraph 67 (1) of the Constitutional Court Act (operative part I).
97. The Constitutional Court annulled the contested paragraph I. / 1 of Decree No 31 / 2021 Coll. on the grounds of infringement of Article 1 (1) of the Constitution and Article 2 (3), Article 4 (4) in conjunction with Article 26 (1) of the Charter and the violation of Article 26 (1) in conjunction with Article 1 of the Charter on the date of the publication of a finding in the Collection of Laws pursuant to Article 70 (1) of the Law on the Constitutional Court, as amended by Law No 48 / 2002 Coll., (operative part II).
98. The Constitutional Court is aware of the fact that the publication of this finding and, therefore, the enforceability of this finding will not take place until after the expiry of the contested crisis measure (14 February 2021). As a result of this finding, however, it is clear that "retail sales will not be opened immediately ', but the Constitutional Court considers the conclusions contained in the reasoning for this finding to be very fundamental, as they constitute a kind of" memento' for possible further restrictive measures by the Government.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the judges Jaroslav Fenyk, Josef Fiala and Vladimir Sládeček to decide.
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Regulation Information
| Citation | The Constitutional Court found No 123 / 2021 Coll., on the application for annulment of point I. / 1 of the Government Resolution No. 1192, on the adoption of a crisis measure, published under No 465 / 2020 Coll., point II of the Government Resolution No. 1195, on the extension of an emergency situation in connection with the outbreak of SARS CoV-2, declared under No 471 / 2020 Coll., part 2 of the Government Resolution No. 1196, on the amendment of a crisis measure, declared under No 472 / 2020 Coll., point I. / 1 of the Government Resolution No. 1201, on the adoption of a crisis measure, declared under No 477 / 2020 Coll., paragraph I. / 1 of the Government Resolution No. 57, on the adoption of a crisis measure, declared under No 23 / 2021 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 10.03.2021 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
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