The Constitutional Court found No 130 / 2014 Coll.

I. Part of the provision of Article 6i (1) of Act No. 311 / 2006 Coll., on fuel and petrol stations and on the amendment of certain related laws (Fuel Act), as amended by Act No. 234 / 2013 Coll., amending Act No. 311 / 2006 Coll., on fuel and petrol stations and on the amendment of certain related laws (Fuel Act), as amended by the Customs Administration Act No. 455 / 1991 Coll., on the business of the company (Trade Act), as amended by the Office, to ensure the non-payment of an amount of CZK 20,000 000 in the form of a special account of the Customs Office with that amount to be in the account for the entire period of registration of the fuel distributor, or (b) of the bank guarantee which the office has been accepted by the Office, to ensure that account in that amount.

II. The remainder is rejected.

1. The Constitutional Court received on 20 September 2013 a proposal from a group of 18 senators of the Senate of the Parliament of the Czech Republic (hereinafter referred to as the "appellant ') to repeal part of the provisions of Section 6i (1) of Act No. 234 / 2013 Coll., amending Act No. 311 / 2006 Coll., on Fuel and Fuel Service Stations and amending certain related laws (the Fuel Act), as amended, and Act No. 455 / 1991 Coll., on Business Business (Trade Act), as amended. According to this proposal, the appellant sought a finding stating the following:" In § 6i (1) (a) and § 6i (1) (b) of Act No. 234 / 2013 Coll., the figure 20 000 000 is deleted. "

2. By filing dated 2 January 2013, but received by the Constitutional Court on 6 January 2014, the appellant changed the petit by continuing to seek the publication of a finding with the following wording: "The part of the provision of Paragraph 6i (1) of Act No. 311 / 2006 Coll., on fuel and petrol stations of fuel and on the amendment of certain related laws (Fuel Act), as amended by Act No. 234 / 2013 Coll., amending Act No. 311 / 2006 Coll., on the Commercial Enterprise Act (Trade Act), as amended,...

3. The appellant, in a comprehensive submission, cited above, from the explanatory note to Act No 234 / 2013 Coll., from the address of Mr Michal Babák when discussing the draft law in the Chamber of Deputies of the Parliament of the Czech Republic on 7 May 2013 and from the Minister of Finance of Miroslav Kalousek on 15 May 2013, from the letter of the Vice-President of the Office for the Protection of Competition of 19 December 2012 No. ÚOHS-586 / 2012 / KD-23987 / 2012 / 850 / MBU, from correspondence between the Chairman of the Economic Committee and the Agricultural Committee of the Parliament of the Czech Republic, the President of the Parliamentary Parties, the first Deputy Minister of Finance and the Deputy Minister of Industry and Trade, from which he indicated that "commendable attempt to minimise the amendment to minimise the concrete verifiable," Furthermore, the appellant pointed out, in particular, to the contradiction of the contested legislation with Article 26 (1) and (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the "Charter '), that" the full use of a deposit of CZK 20 million for fuel distributors, even after the Chamber of Deputies approved the text of the draft amendment, was not and could not be seen as a clear positive intervention in the business of fuel distributors'. Finally, the appellant claimed that the contested legislation would not stand in the proportionality test and that the determination of a uniform amount of bail of CZK 20 000 000 was a sign of libation, which may have a liquidation effect for some of the fuel and gas station entrepreneurs (so-called choking effect).

4. In accordance with Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, ("the Law on the Constitutional Court '), the Constitutional Court invited the parties to the proceedings - the Chamber of Deputies of the Parliament of the Czech Republic (" the Chamber of Deputies') and the Senate of the Parliament of the Czech Republic ("the Senate '), as well as the interveners - the Government and the Ombudsman to comment on the proposal.

5. The Chamber of Deputies, through its President Jan Hamáček, described the course of the legislative process which resulted in the adoption of Act No. 234 / 2013 Coll., "the provision in question was adopted after a properly implemented legislative process and the legislature acted in the belief that this provision was in line with the Constitution and our legal order '. In conclusion, it was up to the Constitutional Court to assess the constitutionality of the provision in question and to give a decision.

6. The Senate, through its President, Milan Štách, described the course of the Senate bill and stated that, in the course of the debate, the circumstances in favour of approving the bill were discussed, but also the views discussed in the amendment to the law were criticised. According to the stenographer, he then quoted in his statement the exact individual debating senators. The Senate concluded that "it is entirely up to the Constitutional Court to assess and definitively decide whether the proposal to abolish part of the provision in question will stand in the context of the constitutional order of the Czech Republic '.

7. The Government, through its President George Rusnok, has indicated that it has decided to intervene. In her comments, she stated that the bail institute was one of the measures through which the amendment to the Fuel Act should lead to a restriction of the black fuel market in the Czech Republic. The reason for the introduction of the bail was to ensure that the customs office and other tax authorities could, through the bail, pay any arrears on penalties and other cash transactions related to the fuel distributor's activities. The effect of the amendment was to significantly reduce tax evasion in the market segment. The Government further described the "large criminal attacks' to which the fuel market had been exposed since the 1990s, as well as the" non-standard events on the fuel market ', which were to take place between the validity and the effectiveness of the amendment, i.e. from 2 August 2013 to 30 September 2013. The Government responded to the appellant's claim about the vagueness of the data provided by the Ministry of Finance and the Ministry of Industry and Trade, claiming that it is in these ministries that these data are only available, and at the same time criticising the appellant that the proposal does not contain any data that would show a sizzling effect. The government pointed to the inclarity of the petition before it was changed. It stated that "the application of the institute of suffocating effect within the meaning of the present case-law of the Constitutional Court is conceptually excluded'. The Government has submitted its opinion on the individual steps of the proportionality test. According to the Government, these are legitimate and necessary objectives in a free democratic society. The amount of the deposit is also chosen in view of the risk of the fuel business sector, and it is not possible to talk about the discriminatory nature of the bond because the so-called small distributors are unable to pay the amount of the deposit. This is a measure which is provided for all potential operators without distinction. With regard to alternative means of achieving the objective, the Government disputed with the appellant the possibility of introducing a reverse charge scheme. In particular, it referred to the negative opinion of the European Commission, which did not comply with the Ministry of Finance's request in 2010 to grant an individual exception to the possibility of applying the reverse charge. According to the Government, the European Commission stated that" a bail institution may be established if it is not discriminatory and aims to properly collect taxes and combat tax fraud as an urgent public interest which justifies restrictions on the free movement of goods and services'. The Government stated that, in the course of the legislative process, the possibility of individual bail-making was also discussed by the decision of the customs office, but the legislator decided to set the bail-making rate equal to all, which "seems to be the only possible solution... without a claim on the discriminatory nature of the measure '. The Government did not agree with the appellant's claim that" the amount of the bail was set speculatively and inappropriately in relation to the reality of the fuel market', since the data provided by the Directorate-General for Finance took account of the average amount of tax evasion made in determining the amount of the bail. In the view of the Government, the provisions governing bail, including its amount, will thus stand up to the application of the proportionality test. The Government further stated that it cannot be concluded from the available data that the introduction of bail would result in the liquidation of SMEs. It is thus clear that it is not true that for small and small distributors the introduction of bail and priori was liquidation. In conclusion, the Government reiterated that "the current legal regulation, including bail, does not distort the fuel market but, on the contrary, correct it by excluding, in particular, those distributors who have committed tax fraud from the market." With regard to that Government, it proposed that the proposal be rejected, possibly rejected.

8. The Ombudsman, Pavel Varvařovský, stated that he was entering the proceedings and stated in his observations that the case-law of the Constitutional Court had set out in particular that the contested legislation could not stand the third step of the proportionality test. It pointed out that the approach chosen by the State did not comply with the requirement to be able to intervene in fundamental rights. The Ombudsman also considered the bail provided to be contradictory to Article 11 of the Charter. In his view, "in the present case, it is not possible to give priority to the State's interest in the elimination of undesirable (and illegally functioning) entities through bail-out with the potential to act on certain entities in a significant way and disproportionately over the protection of their fundamental rights, referred to in particular in Articles 11 and 26 of the Charter '. In conclusion, he proposed that the Constitutional Court should decide by deleting the figure" 20 000 000' in § 6i (1) (a) and (b) of Law No 234 / 2013 Coll..

9. The Constitutional Court received for it, without request, an irrelevant submission by PENTACO, spol. s r. o., LA - TRANSGAS LNÁŘE, s. r. o., and ARTWELD, s. r. o., seeking the status of intervener for reasons of legal interest in the outcome of the proceedings.

10. The contested provisions shall read as follows:

(1) The fuel distributor is obliged to provide bail, namely:

(a) by the deposit of an amount of CZK 20 000 000 in a special account of the customs office, with the deposit of that amount being in that account throughout the period of registration of the fuel distributor; or

b) a bank guarantee accepted by the customs office to ensure arrears of up to CZK 20 000 000 which are registered with the authorities of the Customs Administration of the Czech Republic or with other tax authorities on the 90th day from the date of cancellation or termination of registration of the fuel distributor.

(2) A bank guarantee must be granted for a fixed period which must not be less than 2 years.

(1) If the final cancellation or termination of the registration of a fuel distributor is made, the compound amount becomes an excess of the fuel distributor. If the excess is refundable, the customs office shall return it to the fuel distributor within 90 days of the date of final cancellation or termination of the registration of the fuel distributor.

(2) The period referred to in paragraph 1 shall not run as long as the customs administration of the Czech Republic or another tax administrator is in charge of proceedings,

(a) the result of which may be a decision establishing a tax, fee or other similar cash performance; and

(b) which has been initiated within 90 days of the final revocation or termination of the registration of the fuel distributor.

(3) Where the registration of a fuel distributor is cancelled or terminated, the customs office shall invite the exhibitors of a bank guarantee to pay the arrears registered on the 90th day following the date of the revocation or termination of the registration;

(a) the customs office;

(b) another tax administrator who has requested payment from the customs office.

(4) The customs office shall invite the exhibition of a bank guarantee not earlier than 90 days but no later than 5 months after the date of cancellation or termination of the registration of the fuel distributor.

(5) The exhibition of the bank guarantee shall pay the amount within 15 days of the date of receipt of the call. '

11. The Constitutional Court, as required by the provisions of § 68 paragraph 2 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., subsequently examined whether the contested provisions were adopted within the limits of the Constitution of the Czech Republic laid down by the jurisdiction and by the constitutional procedure; it came out of the stenograms and the statements made by the two chambers of Parliament of the Czech Republic.

12. The draft Act No. 234 / 2013 Coll., amending Act No. 311 / 2006 Coll., on Fuel and Fuel Pump Stations and on the Amendment of Certain Related Laws (Fuel Act), as amended, and Act No. 455 / 1991 Coll., on Business Business (Trade Code), as amended, was submitted to the Chamber of Deputies on 19 December 2012. The proposal was circulated to Members as Press 883 / 0. The proposal was sent to the Government to express its position on 17 January 2013. The Government's opinion was circulated to Members on 18 January 2013 as Press 883 / 1. The first reading took place on 8 February 2013. The proposal was ordered by the Economic Committee, which adopted amendments to the draft law, which also concerned the contested provisions. In a detailed debate in the second reading, they tabled amendments concerning, inter alia, the contested provisions, Mr David Kadner, Mr Josef Nekl and Mr Michal Babák. There were 126 Members in favour of the proposal and 3 Members opposed it.

13. The Senate was passed on on 7 June 2013. The Senate Organizing Committee, as Senate Press No. 120, ordered it to discuss the Committee on Economy, Agriculture and Transport. This committee discussed the draft law on 25 June 2013 and in the adopted resolution No 117 recommended the Senate plenary to approve the draft law (Senate Document No 120 / 1). At its meeting held on 26 June 2013 after the debate, the Senate approved the bill when, in vote 61 of the 60 senators present at May 31, 44 senators were in favour of the motion and 1 senator was against it.

14. The President of the Republic signed the Act on 18 July 2013. On 2 August 2013 the Act was published in the Collection of Laws under No. 234 / 2013 Coll.

15. The Constitutional Court notes that Act No. 234 / 2013 Coll., which amended Act No. 311 / 2006 Coll., on Fuel and Fuel Pump Stations and on the amendment of certain related laws (Fuel Act), as amended, which are now part of the contested provisions, was adopted and issued within the limits of the constitutionally defined competence and in a constitutionally prescribed manner.

16. The Constitutional Court considered the appellant's argument and concluded that the application was partly justified.

17. The proposal does not oppose the cancellation of the bail institution, but is opposed to the uniform amount of bail for all fuel distributors, for a contradiction with the provisions of Article 26 of the Charter, and also to the regulation of the use of the bail in the event of the final cancellation or termination of registration of the fuel distributor.

18. The Constitutional Court, in its decision of 12 March 2008, sp. zn. Although restrictions on fundamental rights or freedoms may exceptionally also occur in the event of a collision with one of the public goods (public interest); However, in this context, the maximum is that fundamental right or freedom can be limited only in the event of an extremely strong and duly justified public interest, in a careful examination of the substance and meaning of the restricted fundamental right. '

19. The Constitutional Court, in this case too, has taken the proportionality test when assessing the constitutional conformity of the contested provisions. It has repeatedly defined in its case-law as a test of three steps to assess the legitimacy and necessity of the objective pursued in a democratic society, to assess the rationality of the link between the objective and the means chosen to enforce it and, finally, to assess whether there are no alternative ways of achieving the objective, the use of which would make interference with the fundamental law less intense, or to exclude it entirely.

20. The Constitutional Court has first concluded that the contested legislation will stand in the first step of the proportionality test. The contested provisions are based on a legitimate attempt by the legislator to "reduce the creation and abuse of designated companies, which play an essential role in all the well-known delicacies in the fuel market" (see the explanatory memorandum to House Press No 883 / 0). Nor does the appellant itself contest the very institution of bail, which, according to the Constitutional Court, is a rational means of enforcing this objective.

21. As far as the rationality of the contested legislation is concerned, it would certainly not be fair to say that it would be directed towards the stated objective in relation to the tax malversants themselves. On the other hand, however, it must be borne in mind, first of all, the fact that, at the same time and above all, honest fuel distributors, whose rights the contested legislation could have been insensitively affected. In other words of the Czech saying, it could happen that "with dirty water, even a child would be poured out of the tub."

22. In the present case, the result of the third step of the rationality test, i.e. precisely whether there are no alternative ways of achieving the objective, the use of which would make the application of the basic law less intense, and would exclude it, is a prima facie key issue. The Constitutional Court concluded that the contested part of § 6i (1) and § 6i (2) of Act No 311 / 2006 Coll., on fuel and petrol stations and on the amendment of certain related laws (Fuel Act), as amended by Act No 234 / 2013 Coll., (hereinafter referred to as "part of the provision of § 6i of the Act ') would not stand in this step of the proportionality test.

23. The Constitutional Court already stated, in its finding of 13 August 2002 sp. zn. In other words, fines of a liquidation nature are inadmissible. It should be noted that the fine in liquidation amount is, in principle, the hardest case of interference in property regimes, which, moreover, may also lead to infringement of Article 26 (1) of the Charter; In so doing, it is not impossible to draw a conclusion on the significant intensity of interference in property law, as well as on cases in which the fine exceeds the possible proceeds so far that the business activity becomes essentially pointless' (i.e. only intended to pay the fine imposed for a significant period of time). 'In the present case, the Constitutional Court concluded that, as in the case where the legislator has unconstitutionally established a minimum fine limit, it is possible to draw the conclusions reached in the case where the amount of the bail for fuel distributors is not differentiated.

24. The Constitutional Court did not, at the time of its decision-making, find the method of establishing a single bail-out for the only possible, and above all, in relation to all fuel distributors the most gentle. In addition to this method, in particular, a variant of the legal regulation of the conditions for establishing the amount of the deposit would be taken into account, which would be reasonably graduated by the legislator. Nor is it excluded that the deposit would be established only for those distributors entering the fuel market for a limited period of time. Even because the contested legislation may have a so-called choking effect on smaller fuel distributors, consisting, for example, of the very difficulty of obtaining the required amount of bail, the Constitutional Court found it, in addition to those alternatives, to be the least prudent in relation to the law guaranteed by Article 26 of the Charter.

25. The Constitutional Court observes that the fact that the contested part of the provision of Paragraph 6i of the Act has no longer stood in the third step of the proportionality test already constitutes its unconstitutionality. The Constitutional Court therefore decided pursuant to Article 70 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., so that this part of the provision of § 6i (1) of Act No. 311 / 2006 Coll., on Fuel and Fuel Pump Stations, which are not a member of the Czech Republic, or on the amendment of certain related laws (Fuel Act), as amended by Act No. 234 / 2013 Coll., amending the Act No. 311 / 2006 Coll., as amended by the Law No. 455 / 1991 Coll., on the Commercial Act (Trade Code), which reads "..., a) and a composition of the Act of the Act on Fuel Pump.

26. On the contrary, the Constitutional Court did not find the unconstitutional provisions of § 6j of Act No. 311 / 2006 Coll., on fuel and fuel service stations and amending certain related laws (Fuel Act), as amended by Act No. 234 / 2013 Coll. of 26 June 2013. Nor did the appellant bring any relevant constitutional arguments in relation to the contested provision. In this part, the Constitutional Court rejected the application for analogous application of the provisions of § 43 (2) (a) and (b) of the Constitutional Court Act as manifestly unfounded.