The Constitutional Court found No. 128 / 2025 Coll.
Findings of the Constitutional Court sp. zn. Pl. ÚS 13 / 24 concerning the application for annulment of § 10 (5), second sentence, of Act No. 594 / 2004 Coll., implementing the European Communities regime for the control of exports, transport, brokering and transit of dual-use items
Valid
128
FIND
The Constitutional Court
of 26 March 2025
sp. zn. Pl. ÚS 13 / 24 concerning the application for annulment of § 10 (5), second sentence, of Act No. 594 / 2004 Coll., implementing the European Communities regime for the control of exports, transport, brokering and transit of dual-use items
On behalf of the Republic
On 26 March 2025, the Constitutional Court decided, under sp. zn. Pl. ÚS 13 / 24, in plenary composed of the President of the Court of Josef Boxy and the judges and judges of Lucie Dolanská Bányai, Josef Fiala (Judge Rapporteur), Milan Hulmák, Jaromír Jirsa, Veronica Christian, Zdeněk Kühn, Tomáš Langášek, Jiří Píbáně, Katřina Ronovský, Dita Řepková, Jan Světona, Pavel Šámal, Jan Winter and Daniela Zeman, on behalf of the Parliament of the Czech Republic, on the application of the Municipal Court in Prague to abolish the Second Act No. 594 / 2004 Coll., implementing the European Communities' s regime for the control of exports, carriage and transit of dual-use,
as follows:
Paragraph 10 (5), second sentence, of Act No 594 / 2004 Coll., implementing the European Communities' regime for the control of exports, transport, brokering and transit of dual-use items shall be deleted from the date of the publication of this finding in the Collection of Laws and International Treaties.
Reasons
Definition of the case
1. The Municipal Court in Prague (hereinafter referred to as the "appellant"), pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court"), proposed the annulment of Article 10 (5), second sentence, of Act No. 594 / 2004 Coll., implementing the European Communities' regime for the control of exports, transport, brokering and transit of dual-use goods. The contested provision excludes judicial review of the administrative decision of the Ministry of Industry and Trade ("the Ministry ') to grant, refuse, revoke, suspend, modify or revoke individual export authorisations or to grant collective export authorisations for dual-use items or for the provision of brokering services.
2. The file submitted by the municipal court under sp. paragraph 10 A 91 / 2023 shows that the appellant is bringing proceedings for administrative action against the company Bioveta, a. s., hereinafter referred to as "the applicant," seeking the annulment of the decision of the Ministry of 13.4.2023 No. MPO 15923 / 2023. By this decision, the Ministry, pursuant to Article 9 (2) (d) of Law No 594 / 2004 Coll. did not grant the applicant authorisation for the export of the classical swine fever virus (Swine pest virus C) to the lyophilisation medium ("the goods') to the Russian Federation. According to the brief justification of the administrative decision, which only includes one side of the text, the Ministry requested an opinion (cf. - see paragraph 36 below) on the basis of Article 20 (1) of Act No 594 / 2004 Coll. of the Ministry of Foreign Affairs, which did not recommend the granting of an authorisation that would not correspond to the foreign policy interests of the Czech Republic. The Office for Foreign Relations and Information (hereinafter referred to as" the SAA ') also expressed a negative "position' on the applicant's request. The content of the opinions is not detailed in the administrative decision. The two opinions were sent by the Ministry to the applicant for information on their content by means of remote access and informed her of the possibility to consult the rest of the administrative file and of the opportunity to comment on the grounds of the decision, which the applicant did not use. The Ministry then decided not to grant permission to export goods because the authorisation would be contrary to the (more precise) foreign policy interest of the Czech Republic.
3. The applicant stated that the administrative action pursuant to § 65 et seq. of Act No. 150 / 2002 Coll., the Administrative Rules, as amended, (hereinafter referred to as "p. Ís. s. ') is brought by the administrative action under Article 65 et seq. of Act No. 150 / 2002 Coll., as it considers that the exclusion is unconstitutional. It emphasised that the goods were intended for pharmaceutical use and could not be used as a biological weapon, since the classical swine fever virus used for the production of vaccines is weakened and unable to cause disease. The Ministry's decision is contrary to Regulation (EU) 2021 / 821 of the European Parliament and of the Council of 20.5.2021 establishing a Union regime for the control of exports, brokering, technical assistance, transit and transport of dual-use items (" Regulation (EU) No 2021 / 821 of Parliament and of the Council') and Council Regulation (EU) No 833 / 2014 of 31 July 2014 concerning restrictive measures in view of Russia's activities destabilising the situation in Ukraine. The applicant interprets this Union regulation in such a way that exports of dual-use items for pharmaceutical purposes to the Russian Federation are not prohibited. According to the applicant, the decision not to grant authorisation to export goods is an arbitrary exercise of public authority, which must be subject to judicial review in the rule of law. In its observations on the application, the Ministry questioned the applicant's argument that the exclusion from judicial review contained in the contested provision is constitutionally compatible, since the administrative decision does not affect any of its constitutionally guaranteed fundamental rights. The applicant shall continue to be the owner of the goods and in no way infringes its right to own the property pursuant to Article 11 (1) of the Charter of Fundamental Rights and Freedoms ("the Charter ').
4. When considering an administrative action, the municipal court concluded that Article 10 (5), second sentence of Law No 594 / 2004 Coll. is contrary to the constitutional order, namely the right to judicial review of decisions of a public authority under Article 36 (2) of the Charter and the principle of democratic rule of law under Articles 1 (1) and 2 (1) of the Constitution. Therefore, by order of 22.4.2024 No 10 A 91 / 2023-38, he suspended the administrative action and brought an application to the Constitutional Court for annulment of that provision.
Arguments of the appellant
5. The appellant summarises the conduct of the administrative action proceedings and points out that the previous administrative proceedings were brought by Act No 594 / 2004 Coll., since the case concerned (not) the authorisation to export dual-use items. The Ministry did not in any way assess compliance with the terms of the Union regulations and did not grant permission only with reference to the foreign policy interests of the Czech Republic. Neither the administrative decision nor the opinions of the Ministry of Foreign Affairs and the Ministry of Foreign Affairs, according to the Municipal Court, showed clearly what was specifically the contradiction of possible exports with the foreign policy interests of the State. In that context, it points out that Law No 594 / 2004 Coll. also provides for a list of state authorities from which the Ministry is entitled to request comments on individual exports of dual-use items. In the present case, it may be inferred indirectly that the negative opinion on the export of goods may depend on the current adverse relationship between the Czech Republic and the Russian Federation. However, exports of dual-use items pursuant to Regulation No 2021 / 821 of Parliament and of the Council are also subject to regulation in other countries with which at first sight negative relations may not be linked by the Czech Republic. The contested provision of Act No 594 / 2004 Coll. does not distinguish between why the authorisation was not granted and generally excludes all decisions of the Ministry on the export authorisation of dual-use items from the judicial review. According to the appellant, it is appropriate that the authorisation to export goods, including for reasons of foreign policy or security, should be justified in a specific and comprehensible manner, should be clearly based on the documents of the administrative decision and, above all, be reconsidered.
6. According to the appellant, the exclusion from judicial review contained in the contested provision is contrary to the right to review a decision of a public authority under Article 36 (2) of the Charter. While the Charter allows a judicial review of a decision of a public authority to be ruled out, a review of decisions relating to fundamental rights and freedoms under the Charter must not be excluded from the jurisdiction of the courts. In so doing, the applicant was shortened by the Ministry's administrative decision on its right to own property pursuant to Article 11 (1) of the Charter, namely in its component ius, because it cannot export the goods to the Russian Federation. If the goods are not deposited with the end-user (see paragraph 2 above), the applicant will not subsequently be able to export its vaccine to and trade with the Russian Federation. Since the activity in question constitutes the object of the applicant's business, this also affects its constitutionally guaranteed right of business under Article 26 (1) of the Charter.
7. In the appellant's view, even Article 1 of Constitutional Act No. 110 / 1998 Coll., on the security of the Czech Republic, which merely generally declares the principles of sovereignty and territorial integrity of the state and cannot justify the exclusion of the judicial review by public authorities. Although the foreign policy interest of the State expressed in § 9 (2) (d) of Law No 594 / 2004 Coll. is legitimate and may even outweigh the interests of the applicant, the appellant points out that it is in the legal proceedings that a review of the assessment of these interests is to be made, or to verify whether, in a case-by-case, the State's interest has indeed prevailed over the granting of the authorisation. Paragraph 10 (5) of Law No 594 / 2004 Coll. excludes examination of the grounds for not granting authorisation at both administrative and judicial level. The automatic exclusion of a review outside the sphere of the influence of the judiciary, with the legislator entrusting the decision on authorisation solely to the executive authorities, distorts, according to the appellant, the division of power and therefore the principle of democratic rule of law. According to the appellant, the opposition to judicial exclusion cannot be found in the above-mentioned Union regulations.
8. Following the opinion of the Ministry on the administrative action, the appellant stresses that the contested provision is not comparable to the exclusion from judicial review contained in Section 26 of Act No. 186 / 2013 Coll., on citizenship of the Czech Republic and on the amendment of certain laws (Act on citizenship of the Czech Republic), which the Constitutional Court considered in the decision of 2.7.2019 sp. zn. Pl. ÚS 39 / 17 (N 124 / 95 CollU 8; 212 / 2019 Coll.), in which it did not find any constitutional-guaranteed law affecting the non-grant of citizenship. It further points out that even in the control of trade in products whose possession is restricted by special legislation in the Czech Republic for security reasons, it is possible that the Ministry may not grant authorisation if foreign policy or security interests [§ 7 paragraph 1 (b) of Act No. 228 / 2005 Coll., on the control of trade in products whose possession is restricted for security reasons in the Czech Republic and on the amendment of certain laws, as amended, (hereinafter referred to as "the Act on the Control of Trade in Products'). However, this legislation does not contain any legal exclusions, as was also confirmed by the judgment of the Municipal Court of 12.4.2023 No 11 A 95 / 2022-44 and the subsequent judgment of the Supreme Administrative Court of 18.1.2024 No 1 As 61 / 2023-34. In the present case, it was specifically a transport of 760 pieces of Russian producer Kalashnikov Group rifle, the Ministry of Transport did not grant a permit for the protection of the foreign policy interests of the Czech Republic. The appellant, in the very nature of dual-use items compared to the transport of weapons primarily used for military use, does not see any fundamental circumstance which could justify the exclusion from judicial review.
Proceedings before the Constitutional Court
9. If the Court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court (Article 95 (2) of the Constitution). The Court of First Instance is actively legitimised to make a proposal when proposing the repeal of the law or its individual provision, the application of which is to be immediate or necessary, is not sufficient only for hypothetical use or other broader context [Order of 23.10.2000 sp. zn. ÚS 39 / 2000 (U 39 / 20 SbNU 353)]. It follows from the purpose and purpose of the specific control of the constitutionality of the law that the law (or its provision) to be used in the resolution of the case is only one which obstructs the achievement of a desirable, i.e. a constitutional, consensus result; If not removed, the outcome of the present proceedings would be different [finding of 6.3.2007 sp. zn.
10. The City Court bears witness to the active procedural legitimacy of the application for annulment of the contested provision as it is to be used in the administrative action before it. It would be used in the proceedings as a consequence which the appellant finds to be unconstitutional, with inconstitutionality being seen primarily in violation of Article 36 (2) of the Charter. From the attached court file, the Constitutional Court verified that the Ministry had decided on the applicant's application under Act No. 594 / 2004 Coll., therefore the case under examination is affected by the exclusion from judicial review contained in § 10 (5) sentence of the second law (i.e. the contested provision).
11. At the same time, the Constitutional Court found no reason for inadmissibility of the application under Article 66 of the Law on the Constitutional Court, nor any reason for termination of proceedings under Article 67 of the same law. The Constitutional Court notes that, pursuant to Article 87 (1) (a) of the Constitution, it is competent to consider an application which fulfils all the formal requirements laid down by law and has therefore taken up its substantive assessment.
Proceedings before the Constitutional Court
12. The Judge-Rapporteur, pursuant to Article 69 (1) of the Law on the Constitutional Court, sent a motion to the chambers of Parliament, which are entitled to act on his behalf (Article 9 of Act No 300 / 2017 Coll., on the principles of conduct and contact between the Chamber of Deputies and the Senate, and on the amendment of Act No 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended). At the same time, pursuant to Article 69 (2) and (3) of the Law on the Constitutional Court, it was also sent to the Government and the Ombudsman, namely to the bodies entitled to intervene as interveners.
13. In view of the statement of the findings and the content of the observations of Parliament's chambers, which are limited to the course of the legislative process, as well as the observations of the Government (Ministry), which is already known to the appellant at the essential points of the administrative action, the Constitutional Court did not send these observations on a possible reply. The Ombudsman did not inform the Constitutional Court within the statutory deadline that he was entering the proceedings.
Observation of Parliament's chambers
14. It is stated from a brief statement by the House that the government bill, which included also the contested provision, was circulated, as the House Press No. 750, to Members on 29 July 2004 in the fourth parliamentary term, while at the same time, pursuant to Paragraph 90 (2) of the Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, in the then effective text (hereinafter referred to as "the Law on the Rules of Procedure of the Chamber of Deputies'), it was proposed that the House should give its consent at first reading. The House discussed the draft law at first reading at the 35th meeting held on 23 September 2004 and agreed, after a general debate, to discuss the draft law so that it could be adopted at first reading. Following a detailed debate, the draft law was adopted (vote 73, resolution 1264). Of the 171 Members present, 98 voted in favour of the bill and 37 voted against the bill.
15. In his observations, the Senate recited the content of the proposal and stated that, when discussing the draft law, it acted within the limits of the Constitution established competence and in a constitutionally prescribed manner. The bill was passed on to the Senate on 7 October 2004 and was discussed in the 4th term as Press No. 416. It was discussed by the Committee on Economic, Agriculture and Transport as a committee guaranteeing 20 October 2004 and by the Committee on European Union Affairs on 3 November 2004. At the 18th meeting, the Senate adopted Resolution 522 approving the bill referred to by the Chamber of Deputies, as 46 of the 52 senators were in favour of the motion and no one opposed it. There were no doubts as to its compatibility with constitutional order during the Senate bill.
Government observations
16. By order of 12 June 2024 No 378, the Government approved the entry into the proceedings and proposed that the Constitutional Court reject the application. At the same time, it authorised the Minister of Industry and Trade to prepare and send comments on the proposal.
17. On 25. 6. 2024 the Constitutional Court received a statement from the Ministry. This statement, which is similar in substance to that of an administrative action, states that, according to the Government, the conditions for excluding an administrative decision from judicial review are fulfilled. The Government considers that the contested administrative decision, which, in accordance with Regulation No 2021 / 821 of Parliament and of the Council in the context of the fulfilment of the international obligations of the Czech Republic, prevents the undesirable export of sensitive dual-use items, does not interfere with fundamental rights and freedoms under the Charter. Decisions under Act No. 594 / 2004 Coll. are issued by the Ministry "on the basis of opinions of designated state authorities, including intelligence services, which are generally classified information in terms of their content 'under Act No. 412 / 2005 Coll., on the Protection of classified information and on security competence, as amended. In addition, the Government referred to the finding of the sp. zn. The fact that the law on the control of trade in products, which was established at another time, did not have the intention of making use of the constitutional possibility of excluding judicial review, cannot be an argument in the assessment of constitutionality or a supportive argument to establish a breach of constitutional order. The Government is aware that the contested provision, in conjunction with the exclusion of an appeal in administrative proceedings, may in some cases cause" excessive hardness'. Therefore, it submitted a government bill allowing for decomposition against the Ministry's decision, while maintaining the exclusion from judicial review against decisions to refuse to export sensitive dual-use items to a third country for the protection of foreign policy or security interests.
Oral proceedings
18. As the Constitutional Court did not expect further clarification of the case from the oral hearing, it waived it under Paragraph 44 of the First Law on the Constitutional Court.
Constitutional conformity of the legislative process
19. In proceedings for the annulment of laws or their individual provisions, the Constitutional Court, pursuant to Article 68 (2) of the Law on the Constitutional Court, first examined the constitutionality of the legislative process. In the present case, it was based on the observations of the parties and on publicly available parliamentary and Senate information (https: / / www.psp.cz and https: / / www.senat.cz) and found that the data provided in the statements of the House and Senate were accurate. In the Collection of Laws, the Act was published on 3 December 2004 and became effective on the same day.
20. Since the draft law was accompanied by a proposal that the House should give its consent at first reading, the Constitutional Court for the Exclusion of Doubts has also verified that the condition under Paragraph 90 (2) of the Rules of Procedure of the Chamber of Deputies has been met, according to which this proposal must be justified in a reasoned report on the draft law. The justification of the proposal is set out in paragraphs 19 and 20 of the explanatory memorandum, with the purpose of the proposal being "to ensure that the formal requirements for the legislation of the Member States of the European Union are met rapidly when applying Council Regulation (EC) No 1334 / 2000 of 22 June 2000 establishing a Community regime for the control of exports of dual-use goods and technology," as amended. In accordance with the same provision of the Law on the Rules of Procedure of the Chamber of Deputies, the draft law was also accompanied by a translation of the relevant provisions of the legal acts of the Union (formerly Community) law to be transposed in the form of a correlation table.
21. It is sufficient to conclude that the law, which also includes the contested provision, was adopted in a constitutional manner within the limits of the Constitution laid down by Parliament's competence (Article 15 (1) of the Constitution). Moreover, this conclusion is not disputed by the appellant and does not raise any objections to the process of adopting a law, including the contested provision.
Text of the contested provision
22. The contested provision of Law No 594 / 2004 Coll. and its context, including footnote 24, is as follows (the contested part is marked in bold):
(...)
(5) The decision of the Ministry to grant, refuse, revoke, suspend, amend or revoke an individual export permit or a comprehensive export permit or an authorisation to provide brokering services shall not be subject to decomposition. The decision shall be excluded from the decision of the court. 24)
24) Act No. 150 / 2002 Coll., Administrative Rules, as amended by Act No. 192 / 2003 Coll. Act No. 99 / 1963 Coll., Civil Code, as amended. Article 9 (2) of Council Regulation (EC) No 1334 / 2000, as amended.
A substantive review of the constitutionality of the contested provision
General considerations
23. The judicial control of acts of public authorities is the most important component of the external control of public administration. At the constitutional level, Article 36 (2) of the First Charter provides for the so-called General Clauses for the Judicial Review of their Decision. According to that provision of the Charter, "those who claim to have been shortened on their rights by a decision of a public authority may appeal to the court to examine the legality of such a decision, unless otherwise provided for by the law '. The Charter allows the legislature to establish an exclusion from judicial review, but (in addition to the limitation implicitly resulting from Article 1 (1) of the Constitution - see paragraph 26 below)" the review of decisions relating to fundamental rights and freedoms under the Charter shall not be excluded'. Thus, the legislator in Article 36 (2) The Charter reflected the necessity of the rule of judicial control of administrative bodies, which, although authoritatively deciding on the rights and obligations of persons, are not independent, in contrast to the courts (cf. Article 81 of the Constitution). However, whether an administrative act will be reviewed by the courts in the administrative justice system or by the courts in civil proceedings is, from a constitutional legal point of view, no longer decisive, since the possible "public-private legal boundaries' are a matter of simple and not fundamental human rights and freedoms' (the finding of 28.5.2007 sp. zn. IV ÚS 120 / 06 (N 90 / 45 SbNU 317).
24. Constitutional Court of 16. 12. 2014 sp. zn. The Charter annulled the legal provision excluding from judicial review the decision on the payment of the sick leave after the end of the period of support, stressing that, when the law provides for an exclusion from judicial review of an administrative decision concerning "fundamental rights and freedoms' under the Charter ', it is an exclusion contrary to constitutional order. Such exclusion would, in addition to contrary to Article 36 (2), The Charter was constitutionally incompatible, inter alia, subject to jurisdiction in the field of fundamental rights and freedoms under Article 4 of the Constitution (recital 37). However, the condition is that a specific fundamental right or freedom must be identified [e.g. the finding of 27.7.2021 sp. zn. Pl. ÚS 112 / 20 (N 133 / 107 SbNU 94; 305 / 2021 Coll.), paragraphs 35 et seq.], which will actually be concerned by the decision of the public authority in the administrative procedure. However, according to the case law of the Constitutional Court, it is sufficient that the decision of a public authority" concerns the fundamental right (e.g. the establishment of details, obligations in the maintenance of fundamental rights and freedoms); the intervention or even breach is not a condition because it is not a constitutional complaint' [finding sp. zn. Where the administrative decision of one of the fundamental rights and freedoms is concerned, the impossibility of applying a procedural guarantee in the form of judicial review is without further unconstitutional (cf. KMEC, J. In: KÜHN, Z., KRATOCHVÍL, J., KMEC, J., COSAR, D. et al., Charter of Fundamental Rights and Freedoms. Big comment. Praha: Leges, 2022, p. 1425).
25. Article 36 (2) of the Charter does not specify which specific rights or freedoms under the Charter must be affected by a decision of a public authority. However, that provision must be interpreted in favour of (constitutional guarantee) judicial review, already in the light of the constitutional bail-out provided for in Article 4 (4) of the First Charter, according to which "their substance and meaning must be investigated when applying the provisions on the limits of fundamental rights and freedoms'. From Article 4 (4) Moreover, the Charter can be derived from the requirement to minimise interference with fundamental law and freedom and the principle of maintaining the maximum of any constitutional guaranteed right (e.g. HEJČ, D. In: HUSSEINI, F., BARTON, M. et al., Charter of Fundamental Rights and Freedoms. Comment. Praha: C. H. Beck, 2021, p. 195). Although the decision-making practice of the Constitutional Court in the past revealed a resolution that excluded the direct application of Article 36 (2) of the Charter in relation to the rights enshrined in the title of the Fourth Charter (economic, social and cultural rights) in respect of Article 41 (1) of the Charter [see, for example, the Resolution of 10.7.2001 sp. zn. III. ÚS 233 / 01 (U 25 / 23 SbNU 335) or of Article 29.11.2006 sp. sp. zn. II. ÚS 524 / 06], the later judgment of the Constitutional Court of First Instance pointed out that" it is not decisive to what fundamental law the administrative decision is applicable... because nothing such as sedes materiae was laid down in Article 36 (2). A similar conclusion was reached by the Constitutional Court at the finding of 19.11.2009 sp. zn. Pl. ÚS 10 / 07 (N 239 / 55 SbNU 311; 5 / 2010 Coll.), in which it found a contradiction in the exclusion from judicial review contained in Act No. 154 / 1994 Coll., on the Security Information Service (BIS Act), as amended before the amendment made by Act No. 362 / 2003 Coll., inter alia, for a conflict with Article 36 (2) of the Charter and Article 6 (1) of the Convention on Human Rights and Fundamental Freedoms (Convention).
26. However, Article 36 (2), second sentence, of the Charter does not constitute a single "limit" for establishing an exclusion from judicial review against decisions of public authorities. In the absence of an administrative decision on fundamental rights and freedoms, the legislator has a certain degree of discretion over which decisions of the public authority and to what specific extent it will proceed to limit judicial review, but it cannot be absolute. The legislator is always bound by Article 1 (1) of the Constitution, which guarantees the maintenance of the fundamental principles of the democratic rule of law [the findings of 16.6.2015 sp. zn. ÚS 12 / 14 (N 109 / 77 CollNU 577; 177 / 2015 Coll.) or sp. zn. ÚS 39 / 17, recital 38]. The legislature adopted a limitation of the right to judicial review of a decision of a public authority must, in such a case, pursue a legitimate objective and be proportionate (see, for example, the finding of sp. zn.
27. The right to judicial protection granted by the "independent and impartial" court may also be derived from Article 6 (1) of the Convention as part of a wider right to a fair trial, provided that the proceedings in a particular case fall within its competence. The Convention guarantees the right to a fair trial not only against proceedings on criminal charges, but also in civil rights and obligations proceedings. These procedures include various procedures which affect predominantly property rights which have their basis in national law; However, it does not matter according to which regulation the case is to be decided (it may also be an administrative regulation), nor which authority is primarily responsible for the decision (cf., for example, the judgment of the European Court of Human Rights (ECHR) of 16.7.1971 in the Ringeisen case against Austria, No 2614 / 65, § 94; _ Praha: Leges, 2022, p. 64-65; CMEC, J. In: European Convention on Human Rights. Comment. Praha: C. H. Beck, 2012, p. 591). Typically, it can also be a variety of administrative permits (see the ECLP judgment of 27 October 1987 in Pudas v Sweden No 10426 / 83, § 37, and of 25 October 1989 in Allan Jacobsson v Sweden No 10842 / 84, § 66 et seq.), it is essential that the outcome of the procedure be decisive for the private rights and obligations of the addressee of such an act. The fact that civil law or commitment is decided by the administrative authorities in a procedure which does not meet the requirements of Article 6 (1) of the Convention (in particular when it comes to their independence and to the public conduct) is not an infringement of the Convention, in which case "sufficient judicial review '(Sufficient review) must be ensured, which will meet these requirements [from the teaching see e.g. HARRIS, D., O'BOEYLE, M., BATES, E., BUCKLEY, C. The Application of Art.6 (1) in the context of administrative decisions. In: HARRIS, D. et al. Law of the European Convention on Human Rights. 5th edition. Oxford: Oxford University Press, 2023, pp. 397 and 398).
Application of general considerations to the case under examination
28. Paragraph 10 (5) of the Second Law No 594 / 2004 Coll., which provides for an exclusion from judicial review, in the light of its substantive scope, applies to all administrative decisions of the Ministry concerning the grant, non-award, revocation, suspension, modification or withdrawal of individual export permit or comprehensive export permit or authorisation for the provision of brokering services issued under this Act. It follows the first sentence of the same paragraph, which, for all the above decisions, excludes the submission of decomposition as a proper remedy against the decision of the Ministry in administrative proceedings (Section 152 of Act No. 500 / 2004 Coll., the Administrative Code, as amended). The appellant can therefore be held that the contested provision (relating to a case before a municipal court) does not distinguish between the reasons for which the export authorisation of dual-use items was not granted. The same applies to the rest of the above administrative decisions. In other words, according to the current legislation, it is not decisive whether the issue of a deterioration administrative decision (all of which are from the above list, except for the authorisation decision) occurred, for example, for failure to comply with the conditions resulting from the relevant provisions of the Union regulation or, for example, because "this is justified by the foreign policy or security interests of the Czech Republic '[§ 9 (2) (d) of Act No 594 / 2004 Coll.], although the conditions of the Union Regulations are fulfilled. All legal grounds for not granting a permit (§ 9 (2) and (3) of the same law), its revocation, amendment or appeal (§ 10 (1) and (3)) are thus equal for the purposes of the exclusion from judicial review and the judicial review is excluded en bloc.
29. The contested provision, or the whole legislation contained in Act No. 594 / 2004 Coll., also does not distinguish between the target country of export - it is essential that it is any third country. In addition to the appellant's argument, the Constitutional Court points out that the authorisation scheme is also subject to the transport of certain dual-use items between Member States of the European Union. The Act No 594 / 2004 Coll. provides for the authorisation to transport dual-use items within the European Union provided for in Paragraph 13, paragraph 2 of which states that Section 10 of the same Act "mutatis mutandis" applies to the application and procedure of the Ministry, i.e. to defined legal relations - between which no judicial review is explicitly mentioned - to the full (see Article 41 of the Legislative Rules of the Government).
30. In view of the starting points set out in point 24 above, it is essential that the administrative decision to grant, refuse, revoke, suspend, modify or revoke an individual export permit or a comprehensive export permit or authorisation to provide brokering services under Act No. 594 / 2004 Coll. 'concern "fundamental rights and freedoms. The Constitutional Court answered this question positively. The above-mentioned decisions (although each of them in a different intensity) undoubtedly" relate' to the right of free enterprise under Article 26 (1) of the Charter, since these decisions are in principle "individualised 'of the legal limits in which that right can be exercised (cf. Article 41 (1) of the Charter). Although the granting of authorisation, revocation, suspension, amendment or revocation does not constitute, in itself and without further ado, unconstitutional interference in the freedom to conduct business under Article 26 (1) of the Charter [which is nevertheless not a condition for the application of Article 36 (2) of the Second Charter (see paragraph 24 in fine), it is sufficient that the decision of that law is" without a doubt'. In the absence of an export permit obtained by the entrepreneur concerned, for which public subjective law exists in the event of compliance with the legal conditions, this results in (typically) the impossibility of carrying out a business involving dual-use goods on the territory of third States. The fact that the right to engage in other economic activities (Article 26 (1) of the Charter) is systematically categorised as economic, social and cultural rights and that it can only be invoked within the limits of the laws implementing it (Article 41 (1) of the Charter) is irrelevant to the establishment of the scope of Article 36 (2) of the Second Charter (prohibition of exclusion from judicial review) in view of the above-mentioned bases (point 25).
31. For this reason, the Constitutional Court does not support the argument of the Government (Ministry) that the administrative decisions excluded under the second sentence of Paragraph 10 (5) of Act No 594 / 2004 Coll. from judicial review do not affect the rights and freedoms under the Charter. Moreover, the decision not to grant an export authorisation also concerns (albeit in conjunction with the right to engage in other economic activities under Article 26 (1) of the Charter) the property rights guaranteed by Article 11 (1) of the Charter. It is not relevant, however, that the decisions calculated in Article 10 (5) of Law No 594 / 2004 Coll. do not deprive the property of dual-use items (in which case it would be expropriation within the meaning of Article 11 (4) of the Charter). As the appellant rightly pointed out, the component of ownership is not only the right to hold the case (ius possiddi), to use it and possibly to use it (ius utendi et fruendi), but also the right to dispose of the case (ius disposenti). If the request for export of goods to a third country is not granted, the decision "concerns' the right to own the property, as the consequence of which no authorisation has been granted (if all the legal conditions for the issue of the authorisation have been fulfilled), or its revocation, suspension or withdrawal, is the narrowing of one of the components of the ownership right ex act. The avoidance of export or transport of goods may not yet be contradictory in itself to Article 11 (1) of the Charter, as it is not an unlimited right (the owner, moreover, has the right to dispose of the matter within the limits of the rule of law; cf. Article 11 (3) of the Charter according to which ownership is committed). For the assessment of consistency of the exclusion from judicial review with Article 36 (2) However, it is essential (and sufficient) that the decision" concerns' fundamental rights and freedoms may not be infringed (see paragraph 24 above).
32. In particular, a decision to revoke, suspend, amend or revoke an export authorisation already granted (and final), which, under the contested provision, is also excluded from judicial review (see paragraph 28 above), may also result in a conflict of law with the protection of good faith and legitimate expectations. As already pointed out by the Constitutional Court in its judgment of 9 October 2003 in sp. zn. IV. ÚS 150 / 01 (N 117 / 31 SbNU 57) "the essence of the exercise of public power in a democratic rule of law (Article 1 (1) of the Constitution) is, inter alia, the principle of the good faith of an individual in the correctness of acts of public authority and the protection of good faith in acquired rights constituted by acts of public authority, whether in individual cases they derive directly from a legislative act or from an act of application of law '. The Constitutional Court's caselaw also protects legitimate expectations, not only as one of the principles arising from the rule of law [see, for example, the finding of 22.11.2004 sp. zn. I. ÚS 287 / 04 (N 174 / 35 SbNU 331)], but also as regards the protection of property rights [See, for example, the finding of 22.11.2004 sp. zn. With reference to possible interference with legitimate expectations, the Constitutional Court noted the unconstitutionality of the judicial review lockout, for example, in relation to decisions to suspend the payment of part of the subsidy (finding sp. zn. In this finding, the Constitutional Court pointed out that" even if the provider were to conclude that there had been no breach of the beneficiary's obligations and subsequently paid the beneficiary the suspended funds, the delay in the use of the funds granted by the State could be a serious interference with the beneficiary's property rights, as it could result in the total planned investment being undermined. Thus, even as a result of the suspension of the drawing-up of the subsidy, the beneficiary will normally be affected by the damage caused to it "(recital 52). In particular, in relation to the decision to revoke or suspend an already granted and final authorisation for the export of dual-use items, the conclusions of the parties to the possible destruction of the investment and the occurrence of damage resulting from the finding of the sp. zn. In particular, in such a situation, the argument of the Government (Ministry) that decisions excluded from judicial review do not affect rights and freedoms under the Charter seems unsustainable.
33. In the case under examination, the Government's reference to the finding of the sp. zn. The Constitutional Court concluded in the present case that there is no constitutional guarantee of the right of foreigners to grant citizenship (and that there is no right under the Act on Citizenship, see below) and that the decision not to grant citizenship does not affect fundamental rights and freedoms under the Charter. In the present case, the Constitutional Court concluded, on the other hand, that the decision excluded from judicial review under the contested provision "concerns" fundamental rights and freedoms under the Charter (see paragraphs 30 to 32 above). In so far as the decisions of the public administration of fundamental rights and freedoms under the Charter are concerned, a constitutional exclusion from judicial review is not permitted under Article 36 (2) of the Charter, even for the existence of competing "goods'. In the present case, if all the conditions under the relevant Union regulations are fulfilled and Law No 594 / 2004 Coll. there is a public subjective right to grant authorisation to export dual-use items. The legislation contained in Act No. 594 / 2004 Coll., as well as the relevant acts of Union law, cannot in any way be inferred that the authorisation to export dual-use items would be a" non-profit-free 'concession. When issuing the decision not to grant an export authorisation on the grounds of Article 9 (2) (d) of Act No 594 / 2004 Coll. (as was the case in the case pending by the Municipal Court - see paragraph 2 above), the main question is the interpretation of the indefinite legal terms "foreign policy' and" security 'interest [for example, the finding of 29.5.1997 sp. zn. III. ÚS 31 / 97 (N 66 / 8 SbNU 149); from teaching, for example OPALKA, V., STASHA, J. In: HENDRYCH, D. et al. Administrative Law. General section. 9. Praha: C. H. Beck, 2016, p. 54 et seq., SLÁDEČEK, V. General Administrative Law. 4. Praha: Wolters Kluwer, 2019, p. 151 et seq.; to "security" as an uncertain legal concept such as RAMEŠ, K. Legal regulation of cyber security and its limits. Praha: C. H. Beck, 2023, p. 77). If any other conditions and conditions arising from the law and the Union regulations are not found to conflict with these terms and conditions, it is the duty of the administrative authority to comply with the request for export (note similar reasons may also apply to other decisions concerning individual export authorisation or comprehensive export authorisation or authorisation to provide brokering services under Act No. 594 / 2004 Coll.). On the other hand, there was no public subjective law (even under sub-constitutional law) in the case sp. zn.
34. Since the Constitutional Court found the exclusion from judicial review contained in the second sentence of Paragraph 10 (5) of Law No 594 / 2004 Coll. to be inconsistent with Article 36 (2) of the Charter, which in itself is sufficient to derogate from that provision, it is no longer necessary to assess the legislation from the aspects mentioned in paragraphs 26 and 27 above. The Constitutional Court will therefore only briefly deal with the further argument of the Government (Ministry) on the proposal.
35. The Government further argues in its observations that the exclusion from judicial review is justified by the requirement to protect classified information. In this context, however, the Constitutional Court considers it necessary to point out that the possible existence of classified information which will be supported by a decision of the Ministry cannot, in the light of Article 36 (2) of the Charter (which is not invoked by the Government in the case of page 5 of the ÚS 39 / 17), lead to the exclusion of judicial review (see paragraph 24 in fine, paragraph 33 above). In general, it can be noted that the interest in judicial review of classified information-based administrative decisions may be even higher than in decisions given in proceedings where the administrative authority does not rely on classified information. The parties cannot, in fact, be aware of the documents of the decisions containing classified information, since they are excluded from the inspection of the file (albeit with the exception contained in Section 38 (6) of the Administrative Rules), the (binding) opinions or observations of the authorities concerned are not independently reviewed, as they are not an administrative decision [cf. The above, of course, does not mean that in the subsequent administrative proceedings it would be possible to resign to protect classified information, for which part of the file is, among other things, excluded from consultation (§ 45 (3) of the EC Treaty) or from public procurement (§ 49 (2) of the EC Treaty). In this context, reference can be made, mutatis mutandis, to the finding of the Pol. In this finding, he stated that "he is aware of the specific features of decision-making on service matters relating to intelligence officers. The information made available during such decisions affects the security risks and interests of the state, which may be reflected in the restriction of the guarantees of some ordinary procedural guarantees... such as public conduct. The same situation was assessed... in the judgment of 6 September 2007 in sp. zn. II. ÚS 377 / 04 (N 136 / 46 SbNU 283) in the context of the hearing of a constitutional complaint challenging decisions on classified matters, and here it pointed out that, even in such a procedure, the legislator's task is to allow the lawful implementation of adequate safeguards for the protection of the court, albeit according to the nature of the matter... to protect the special and differentiated '. From the point of view of the protection of fundamental rights and freedoms, the public interest in the non-disclosure of these specific circumstances cannot constitute a complete resignation for the protection of fundamental human rights and freedoms, in particular the judicial review of administrative decisions' (recital 46).
36. In view of the above, it is no longer relevant from the constitutional point of view whether or not the opinions (observations) of the Ministry of Foreign Affairs and the SAA contained classified information in the case examined by the Municipal Court. In addition, the Constitutional Court merely states that it cannot be attributed to the Government, even in that a decision excluded under the contested judicial review decision is (must) always issued on the basis of a legal requirement "on the basis of opinions of designated authorities, including intelligence services, which are normally classified information in view of their content '. As the appellant rightly pointed out, Act No 594 / 2004 Coll. only lays down, in general terms, the authority (not the obligation) of the Ministry" to request comments from the State authorities on individual cases of exports' (Paragraph 20 (1)), the list of these authorities is not regulated by the law. These observations (by the Ministry referred to as "opinions') do not constitute binding opinions as binding and binding grounds for decisions on the substance of the case. In other provisions, the Act only provides for the provision of information between the Ministry, on the one hand, and the Directorate-General for Customs (§ 20 (2), the State Office for Nuclear Security (§ 20 (3)) and the Ministry of Interior and the Ministry of Foreign Affairs (§ 20 (4), according to which the information is provided only" to the extent provided for by the mutual agreement '), on the other hand.
37. Nor can a government bill amending certain tax-management laws (House Press No. 784) change the matter. The draft law (part sixty-ninth of Article LXXVII (24)) actually provides for the amendment of Section 10 (5) of Act No. 594 / 2004 Coll., which would result in a breakdown against the decision of the Ministry; At the same time, it is also envisaged to reduce the exclusion from judicial review (even this exclusion is designed considerably more widely than the Government's statement - see paragraph 17 above). However, the object of the annulment procedure (its individual provision) is only the current and effective regulation of § 10 (5) sentence of the second Act No. 594 / 2004 Coll., where the Constitutional Court is not entitled to evaluate the contested legislation in the light of its possible amendment.
38. It can be agreed with the intervener that the Act on the Control of Trade in Products, affecting, inter alia, the trafficking of arms and not containing an exclusion from judicial review (see paragraph 8 above) is not a reference criterion when reviewing the constitutionality of § 10 paragraph 5 sentence of the second Act No 594 / 2004 Coll. However, the appellant rightly pointed out a certain "disproportionate 'regulation regulating the export of dual-use items by parties to an exclusion from the judicial review, compared to the rules governing the export or transfer of arms authorisation procedure. Although the earlier sentence does not justify the annulment of the contested provision (that is to say, a contradiction with Article 36 (2) of the Charter), in the past, the Constitutional Court has accepted a similar argument in, for example, the finding in the sp. zn. In it, he stated that" accepts the appellant's argument, which pointed to a comparison with the judicial review of the fines imposed by the administrative authorities for offences which the administrative courts fully enjoy. Therefore, in view of the symmetry of possible sanctions and the above-mentioned accent on the difference in the damage felt between a person on the free side and a person whose freedom is limited, it is not possible, in the light of the consequences of a much stricter penalty, to use the possibility of judicial review in the right to own the property of the convicted person, as is the case in the case of an offence. "
39. In addition to the above, it cannot be excluded that at least some of the procedures which result in the adoption of administrative decisions excluded from judicial review will fall within the scope of Article 6 (1) of the Convention (civil rights proceedings or obligations - see paragraph 27 above). In view of Articles 1 (2) and 10 In doing so, it is essential that the rules governing access to an "independent and impartial court 'comply with the requirements of the relevant international treaties. However, since the Constitutional Court found the contested legal provision to be contradictory to Article 36 (2) of the Charter, which alone is sufficient to abolish it, it no longer addressed, in the light of the grounds set out in paragraph 27 above, the procedures in question from the point of view of the Convention.
Conclusion
40. The Constitutional Court finds that the contested provision, which provides for the exclusion of administrative decisions from judicial review, is so clear that it cannot be interpreted in a constitutional manner; It is therefore necessary, in the light of the above, to derogate from the law on judicial protection in relation to decisions of public authorities (Article 36 (2) of the Charter).
41. For the reasons set out above, the Constitutional Court concluded that the application for annulment of Paragraph 10 (5) of the Second Law No 594 / 2004 Coll. was justified and therefore complied with the contested provision under Paragraph 70 (1) of the Law on the Constitutional Court, which was annulled by the date of the declaration of findings in the Collection of Laws and International Treaties.
President of the Constitutional Court:
JUDr.
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Regulation Information
| Citation | Findings of the Constitutional Court No. 128 / 2025 Coll., sp. zn. Pl. ÚS 13 / 24 concerning the application for annulment of § 10 (5), second sentence of Act No. 594 / 2004 Coll., implementing the European Community regime for the control of exports, transport, brokering and transit of dual-use items |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 06.05.2025 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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