The Constitutional Court found no 147 / 2012 Coll.

Paragraph 237 (1) (c) of Act No. 99 / 1963 Coll., Civil Code, as amended, is hereby repealed with effect from 31 December 2012.

1. The Constitutional Complaints, which were brought under point II.ÚS 2371 / 11, requested, inter alia, the annulment of the Supreme Court judgment of 22.12.2009, sp. zn. 29 Cdo. 101 / 2007, since, as a result of this decision, the General Courts infringed the fundamental right guaranteed by Article 36 (1) of the Charter of Fundamental Rights and Freedoms ("the Charter") and the right to act in accordance with the principle of contractual freedom under Article 2 (4) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and Article 2 (3) of the Charter.

2. By order of 13.9.2011, sp. zn. II. ÚS 2371 / 11, the second Chamber suspended the proceedings concerning the said constitutional complaint and proposed to the Plenary pursuant to § 64 (1) (c) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court") to repeal § 237 (1) (c) of Act No. 99 / 1963 Coll., the Civil Code, as amended, for its contradiction with the constitutional order.

3. The contested procedure led to the finding by the Second Chamber of the Constitutional Court that, in the contested decision of the Supreme Court, the reasoning for the admissibility of an appeal in the sense of the interpretation of the considerations which led the Supreme Court to conclude on the fundamental importance of the questions raised by it, in a situation where it was clear that the interpretation of the contested provision of "conditions', which had been made by the General Courts, was a matter of no prima facie nature, nor of any scope which could, in particular, affect subsequent caselaw in the sense of its unification. In other words, it was not apparent from the decision of the Supreme Court in question which of the alternatives referred to in Paragraph 237 (3) of the EC Treaty justified the judgment in the case at hand that the judgment under appeal was of legal importance.

4. II. The Chamber of the Constitutional Court did not consider it constitutionally conformal, leaving the contested provision o. s. s. Demonstration of the characteristics of the decisions of the Court of Appeal (§ 237 (3)), which make them decisions which are of fundamental legal importance, is unexpectedly extended here, and elsewhere unexpectedly narrowed.

5. In the opinion of the Second Chamber of the Constitutional Court, the gravity of the contested provision, which allows the Supreme Court to make an unforeseeable decision on the admissibility of an appeal, contradicts the requirements laid down in the law of the rule of law (Article 1 of the Constitution) and does not meet the requirements for the quality of the law restricting fundamental rights (Article 4 (2) of the Charter), as the contested provision must be regarded as a formal law which limits the fundamental right of access to the court (Article 36 (1) of the Charter). However, if it is to be an ordinary law in the material sense, it must be known to the party (after consulting a lawyer who is present in the proceedings) that the legal rule also affects his case. On the contrary, it cannot be regarded as a material law that, because of its vagueness and insecurity, does not allow the party concerned to adapt its behaviour (to decide on the filing or not to lodge the notice) to the law, since its content is not identifiable.

6. The Constitutional Court pursuant to Articles 42 (4) and 69 of the Law on the Constitutional Court has sent the application in question for the annulment of the contested provisions to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic.

7. The Chamber of Deputies of the Parliament of the Czech Republic, by the mouth of its President Miroslava Nemcová, recalled in its statement the process in which draft Act No. 30 / 2000 Coll., amending Act No. 99 / 1963 Coll., the Civil Code, as amended, and some other laws, which included the contested provision. It pointed out that the explanatory memorandum explicitly stated that the draft law was in line with the constitutional order of the Czech Republic. It stressed that the Chamber of Deputies had acted in the belief that the contested provision was in accordance with the constitutional order and left its assessment to the Constitutional Court's decision. At the same time, the President of the Chamber of Deputies stated that, pursuant to Paragraph 44 (2) of the Constitutional Court Act, he agrees to abandon oral proceedings.

8. The Senate of the Parliament of the Czech Republic, by the mouth of its President Milan Štách, stated in his observations that the contested provision had been included in its so-called great amendment, which contained paragraph 315 of Act No. 30 / 2000 Coll. With effect from 1 January 2001, it has been operating in the legal order unchanged to this day. He also summarised the process of adopting the bill in the Senate and concluded that the Senate "followed within the limits of the Constitution established competence and the constitutional procedure." Having found the words of the former President of the Constitutional and Legal Committee of the Senate, J. Vaudeville, who referred to the so-called "great amendment of the o. s. s. ', and the words of the then Minister of Justice, O. Motěl, who referred to the" systemic change of the civil process', or the first legislative step towards the judicial reform project, as well as the expression of Senator Z. Klausner, according to which "the amendment was very carefully prepared, 10 years discussed ', the Senate concluded that, in the case of material which constitutes a revision of the civil process, it does not consider it into all details, but focuses its attention only on questions of conceptual / systems, or problematic or controversial. In the plenary debate, there was no significant opposition to the content of the draft law under consideration. In relation to the Court of Appeal, as stated, in a debate from the mouth of the then Vice-President of the Senate, J. Musial, it was said:" In this context, I must applaud the introduction of the Court of Appeal, which is a major asset of the amendment and is, in my opinion, treated at a level. "Furthermore, the President of the Senate's observations draw attention to the link between the contested provision and § 237 (3) and § 239 (1) and, indirectly, also to § 238a (2) and § 239 (3), last sentence of the Senate, in conclusion, the President of the Senate stated:" I am sending this statement in the knowledge that it is entirely up to the Constitutional Court to examine the constitutionality of § 237 (1) (c) (c).'

9. On 14. 11. 2011, the unsolicited statement of the Supreme Court, acting by Dr. Zdeněk Krčmář, was delivered to the Constitutional Court by the President of Senate 29 Cdo, who requested its connection to the file of the sp. zn. In this statement, the Supreme Court makes a comprehensive argument about the constitutional complaint lodged under Section II of the ÚS 2371 / 11 and its inadmissibility, expressing its reservations about the procedural procedure of the Second Chamber of the Constitutional Court and its composition. Since the Supreme Court, or its Chamber 29 Cdo, is not a party to the proceedings pursuant to Article 87 (1) (a) of the Constitution in conjunction with Article 64 (1) (c) of the Constitutional Court Act, and since the President of Chamber 29 Cdo has not made a relevant argument in relation to the proceedings of the sp. zn. Pl. ÚS 29 / 11, which is the Supreme Court, in the view of the Constitutional Court, it is not necessary to recap its submission in the context of the preamble of this decision and to deal with that argument in the proceedings of sp. (see paragraph 2). This submission was made available to the judges of the Constitutional Court in an electronic version and is part of the file.

10. The Constitutional Court called on the Office of the Government Agent for the Representation of the Czech Republic to the European Court of Human Rights (hereinafter referred to as the "ECHR") to indicate the ESLP's decisions, in which a positive assessment or at least the construction of an appeal is permitted in the system of general courts and certiorari. The Office of the Government Agent, following an analysis of several decisions of the ECHR concerning the appeal pursuant to § 237 (1) (c) o. s.) (e.g. Šroub v České republika of 10.5.2005, complaint No 5424 / 03, Holub v Česká republika of 14.12.2010, complaint No 24880 / 05, and Others), stated that, in general, if the State decides to allow the parties to apply to the highest judicial instance, it enjoys, in determining the conditions for the admissibility of such an appeal and the procedure for its own discretion. In the spirit of this principle, the ECHR consistently judges that, if national law allows it to refuse an appeal on the ground that it does not raise any significant legal question and that it does not have sufficient chance of success, it may be sufficient for the court concerned to limit itself to a reference to the provision of a law which allows it to do so without giving more detailed arguments. The ECHR therefore rejected as a manifestly unfounded objection to the infringement of the right to a fair trial, which was due to occur by the Czech Supreme Court rejecting the complainant's appeal without justification, as allowed at the time by § 243c (2) o.s., which in the meantime was annulled by the Constitutional Court as an unconstitutional one. The ECHR, of course, did not dispute the Constitutional Court's legal opinion, knowing that, within the meaning of Article 53 of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention '), national authorities could provide a higher standard of protection than that provided by the Convention (Vokoun versus the Czech Republic, partial decision of 20.3.2007, complaint No 20728 / 05, Simon against Germany, partial decision of 6.7.1999, complaint No 33681 / 96, Nersesyan against Armenia of 19.1.2010, complaint No 15371 / 07). According to the Office of the Government Agent, it is clear from the above overview of the ECHR case-law that the construction of an appeal to the highest judicial instance of the type and certiorari is in principle not contrary to Article 6 (1) of the Convention. However, such a conclusion was made by the ECHR both in relation to Article 237 (1) (c) (b) and in relation to the previous Article 239 (2) (c) (c) (c) (c) (c) (c) (i) (i) (i) (i) (ii) (i) (ii) (ii) (ii) (iii) (iii) (iii) (iv) (i) (iii) (iv) (iii) (iv) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v) (v). However, the ESLP itself would not seem to derive this insolence from the mere absence of a more detailed justification (cf. Finally, as is apparent from Article 53 thereof, the Convention does not prevent national authorities from guaranteeing a higher standard of protection, whether through domestic law or access to other international conventions.

11. The Constitutional Court, by letter dated 1 December 2011, asked the Ministry of Justice to communicate whether it had statistical data or analysis of the effectiveness of the pleadings provided for in § 237 (1) (c) o.s. of the Constitutional Court's reply of 12 December 2011 to the Ministry of Justice that it did not have the data at its disposal, but sent a "brief legal analysis" to the Institute of the fundamental legal importance of the leave, "which concludes that" since the national legal documents of the Constitutional Service do not establish the principle of instance in subjective terms, the restriction of access to the Court of the third instance in the appeal proceedings cannot be regarded as contradictory to the constitutional order of the Czech Republic and the fundamental right of access to the court is not thereby limited. The principle of instant treatment is not founded on the system of the Convention for the Protection of Human Rights and Fundamental Freedoms. It follows from the Council of Europe's documents that, on the contrary, it is desirable to introduce mechanisms which restrict access to the Supreme Court in such a way that they can only deal with more important matters. The current wording of § 237 (1) (c) o. s. undoubtedly contributes to this and can be considered as a very common institute in the procedural arrangements of democratic legal states (not only) of the Central European legal area. '

12. On 28. 11. 2011, the Constitutional Court obtained a "Cdo and Odo flow analysis" by the Supreme Court - a change in the conditions of admissibility of the admission by Jan Petrov in 2010 for the Ministry of Justice, which works with a randomly selected sample of 200 permits. On 30 November 2011, the Constitutional Court asked the President of the Supreme Court whether the analysis in question had been prepared by the Supreme Court. In its reply of 6 December 2011, the President of the Supreme Court stated that the analysis in question was not an official document drawn up by the Supreme Court. For this reason, the analysis department of the Constitutional Court prepared its own analysis based on 500 decisions of the Supreme Court issued between 1 September 2009 and 31 August 2010 and selected according to a predetermined algorithm. Out of the 500 decisions under examination, 278 were, in the 54 cases (19,42% of the non-annual leave decision, 10,8% of all decisions under examination), and 44,8% of all decisions under examination were found admissible (32 compliant and 22 negative decisions) and 224% of the non-annual leave decision.

13. On 10 January 2012, the Constitutional Court asked the President of the Supreme Court and the President of the Czech Bar Chamber to provide comments on the question of the predictability of the legislation contained in § 237 (1) (c) o. s. s.

14. On 25 January 2012, the Constitutional Court received a brief statement from the Czech Bar Association, which states that it considers Paragraph 237 (1) (c), in conjunction with § 237 (3) (a), as "sufficient guarantee for the predictability of whether the application will be considered admissible on the ground that the contested decision is of fundamental importance in the matter." Furthermore, the President of the Czech Bar Association stated that the design of the admissibility of the appeal could not be seen as an area of free legal discretion of the Supreme Court, and even if a certain degree of unpredictability "of the Supreme Court's decision could be allowed, this would be balanced by the advantage of the Supreme Court's ability to respond more quickly to the development of the company and to establish appropriate caselaw."

15. On 30 January 2012, the Constitutional Court received a comprehensive statement from the President of the Supreme Court, Dr. Ivy Broží, with the Constitutional Court taking further account only of the answers to which the Supreme Court, as an amici curiae, was asked, when the Supreme Court also expressed its views on other issues, including the procedural procedure of the Second Chamber of the Constitutional Court and the conditions of the proceedings, even though it was not a party to the proceedings. The Supreme Court stated at the outset that, according to its belief, the regulation of the admissibility of an appeal contained in § 237 (1) o. s.) is foreseeable (the Supreme Court is not aware of any relevant argument in the case-law of the General Court and the Constitutional Court to call that conclusion into question "since (a) it clearly distinguishes the admissibility of an appeal under that provision from the admissibility of an appeal based on the difference (inadmissibility) of the judgment of the Court of First Instance, but makes it conditional on the decision of the Court of First Instance," which was confirmed by the judgment of the Court of First Instance, "without having been admissible under § 237 (b). (c) it makes the admission of an appeal subject to a transparent condition that the contested decision (the Court of Appeal) is of fundamental legal importance" in the substance of the case. "Therefore, the predictability of the admissibility of an appeal provided for in Paragraph 237 (1) (c) of the EC Treaty is manifested by the fact that, in order to establish the admissibility of an appeal by" concluding an appeal court ', it requires that it be (a) a confirmatory decision; (b) the decision on the substance of the case; (c) decisions of fundamental legal importance. It is not known to the Supreme Court that this interpretation of the decision, which is "of fundamental importance to the law," would oppose the constitutional order of the Czech Republic, and it certainly denied that its decision-making practice in interpreting the provision under examination, even on the outside, seemed unpredictable.

16. According to the Supreme Court, the present case-law of the Constitutional Court itself shows that, even at the constitutional level, the review of the Supreme Court ruling based on the admissibility of the appeal in § 237 (1) (c) o. s. did not give rise to any difficulty. In the past, the Constitutional Court has repeatedly held that, in a situation where a provision of legislation allows for various interpretations, one of which is in accordance with the constitutional laws of the Czech Republic, while others are in conflict with them, it is the task of the State authority to interpret the provision in a constitutional manner. The Supreme Court's citation of the Constitutional Court's decision shows that, where the Constitutional Court has, on the contrary, expressed doubts as to the inadmissibility of the admissibility of an appeal under Paragraph 237 (1) (c) (b) (i) (ii) (ii) (ii) (N 210 / 51 SbNU 627), of 10.5.2005 (IV) (N 100 / 37 SbNU 355), of 20.9.2006 (OJ L 202 / 06), of 15.3.2010 (N 100 / 37 SbNU 355). In this context, the Supreme Court referred to the Resolution of the Supreme Court of 30 November 2011, sp. zn. 29 of the NCČR 66 / 2011, which is proposed for publication in the Collection of Judgments and Opinions (and for this purpose to be discussed in the Civil and Commercial College of the Supreme Court on 8 February 2012) with the legal sentence in the following wording: "If the legal question addressed in the decision of the Court of Appeal is relevant for the decision of a particular case (in particular case), the admissibility of pleadings under § 237 (1) (c) (c) (c) (d) (i) (i) (i) (i) (ii) (ii) cannot be rejected only on the argument that it is of a fundamental and unmistakable facts. Although the decision on an appeal is a legal instrument ensuring the uniformity of the decision-making of the courts, it fulfils this purpose by means of decision-making in specific cases (in individual cases), without being in any way relevant to such a particular case-law '.

17. In addition, the Supreme Court submitted detailed claim statistics (cf. paragraph 12), which shows that 72,5% of decisions falling under the admissibility of an appeal pursuant to § 237 (1) (c) o. s., is refusals, 7,5% refusals and 20% appeals. The reason for the refusal of an appeal pursuant to § 237 (1) (c) o. s. s.) is in 20,9% the impossibility of imposing a question of fundamental legal importance, 36,7% the compliance of the contested decision with the case-law, 25,9% the solution of only factual questions, 11,5% the objection only of non-fundamental legal relevance, 1,4% the absence of a case-law overlap and 3,6% another reason. In the context of these figures, it is not possible, according to the Supreme Court, to discuss the unpredictability of the decisions of the Supreme Court on the admissibility of a claim in the application of § 237 (1) (c) o. s. s. s.), since the case-law on the admissibility of an appeal is in principle removed by the fact that the contested decision must have a so-called case-law excess. The Supreme Court concluded that, pursuant to § 14 (1) (a) of Act No. 6 / 2002 Coll., on Judgments, Judgments, Addresses and Government Administration of the Courts and on the amendment of certain other laws (the Law on Courts and Judgments), as amended, the Supreme Court, as a supreme judicial authority in matters falling within the jurisdiction of the courts in civil proceedings and in criminal proceedings, ensures the unity and lawfulness of decisions by deciding on extraordinary remedies in cases provided for by the law on proceedings before the courts. Clause 237 (1) (c) o. s. CS has an irreplaceable function in fulfilling this role.

18. In addition to what was mentioned above, the Supreme Court stated that the Second Chamber of the Constitutional Court found, in its order to suspend proceedings, the unconstitutional regulation contained in § 237 (1) (c) o. s. s., that it did not consider it to be constitutionally conformal, "if it is left entirely to the unforeseeable reasoning of the Supreme Court, whether the question which was previously considered by the appellant in its submission would be a matter of fundamental legal importance." However, the reservation thus formulated does not, in fact, relate to the provision of Paragraph 237 (1) (c) (c) (d) (2) (2) (2) (2) (3) (3) (3) (2) (a) (3) (3) (3) (3) (3) (3) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) Therefore, on the basis of the arguments contained in the order of the Senate of the Constitutional Court, it would be possible (if at all) to measure only the constitutionality of the regulation contained in Section 237 (3) EC. It is clear that the declared intention of the three-member Chamber of the Constitutional Court would fully comply with the deletion of the word "in particular 'from Section 237 (3) CS. Furthermore, the Supreme Court argued that a constitutional complaint in a case brought before the Constitutional Court under sp. zn. II. The ÚS 2371 / 11 opposed, on the one hand, the order of 31 May 2011, No 29 Cdo 1113 / 2011-279, by which the Supreme Court rejected the complainant's admissible appeal for manifest unfounded reasons and, on the other, the annulled judgment of the Supreme Court of 22 December 2009. To this extent, however, the constitutional complaint is clearly inadmissible, as it does not go against the final decision of the General Court, and thus does not fulfil the requirement set out in Article 75 (1) of the Constitutional Court Act.

19. Under Article 44 (2) of the Law on the Constitutional Court, the Constitutional Court may, with the consent of the parties, refrain from oral proceedings unless it is possible to expect further clarification of the case. The Constitutional Court therefore requested, in accordance with that provision, from the parties to the proceedings whether they agreed to waive the oral procedure. The parties gave their consent and therefore the oral hearing could be abandoned in the present case.

20. The Constitutional Court must first examine whether the Law in question has been adopted and issued in a constitutionally prescribed manner [see paragraph 61 of the Constitutional Court's finding of the Constitutional Court of 15 February 2007 (N 30 / 44 of SbNU 349; 37 / 2007 Coll.)].

21. The contested provision was inserted by its amendment by Act No. 30 / 2000 Coll. The bill was submitted to the Chamber of Deputies by the Government on 16 June 1999 and was provided with the number of House Press 257. The first reading took place at the 15th meeting of 30 June 1999. The press was discussed in the constitutional legal committee of the Chamber of Deputies, which adopted Resolution 70. The second reading took place at the 19th meeting of the Chamber of Deputies on 3 December 1999. Amendments have become press content 257 / 3. At the same meeting on 9 December 1999, the bill was passed when of the 187 Members present, 164 Members voted in favour and one vote against it.

22. The bill was delivered to the Senate on 16 December 1999 and was registered in the second term as print number 146. Having been discussed in the Constitutional Legal Committee of the Senate, which was also a committee of guarantee (Resolution No 131 of 5.1.2000), in the Committee on Foreign Affairs, Defence and Security (Resolution No 105 of 5.1.2000) and in the Committee on European Integration (Resolution No 117 of 5.1.2000) and was recommended for approval by all the committees, the draft law was approved on 12.1.2000, at the 15th meeting of the second term of office, as referred to by the Chamber of Deputies. Of the 72 senators present, 68 senators voted in favour and none voted against the proposal.

23. The President of the Republic signed the Act on 8 February 2000 and then it was declared in the Collection of Laws on 23 February 2000 as Act No. 30 / 2000 Coll.

24. In the circumstances described above, it can be concluded that the law, which also contained the contested provision, was adopted in the constitutional legislative process.

25. Paragraph 237 (1) (c) of the EC Treaty reads as follows:

"The appeal shall be admissible against the judgment of the Court of Appeal and against the order of the Court of Appeal confirming the judgment of the Court of First Instance if the appeal is not admissible under point (b) and the court of appeal concludes that the contested decision is of fundamental legal importance in the matter itself. '

26. Before the Constitutional Court makes a substantive assessment of the motion of the Second Chamber of the Constitutional Court to annul § 237 (1) (c) o. s. s., it is obliged to examine whether the conditions for its consideration laid down by the Law on the Constitutional Court are at all given. As the Constitutional Court stated in its finding sp. zn. In the course of the proceedings, the question arose, not only in the context of the objections of the Supreme Court (paragraph 18), whether the complainant's constitutional complaint was admissible within the scope of the contested Supreme Court judgment of 22 December 2009, sp. zn. 29 Cdo 101 / 2007, and therefore whether, according to the above, the active legitimacy of the Second Chamber of the Constitutional Court for the suspension of proceedings and the application for annulment of Paragraph 237 (1) (c) CS, which was applied precisely in the Supreme Court's decision.

27. The Constitutional Court is pursuant to Rule 83 The Constitution of the Constitutional Tribunal shall exercise that power, inter alia, by deciding, within the meaning of Article 87 (1) (d) of the Constitution, on a constitutional complaint against a final decision and other intervention by public authorities in the constitutionally guaranteed fundamental rights and freedoms [cf. also Article 72 (1) (a) of the Law on the Constitutional Court]. It is not part of a system of general courts and is not called upon to review their decisions immediately; a constitutional complaint against the decisions of the General Courts is therefore not relevant in itself if its substantive imperfections are contested. The power of the Constitutional Court is solely based on a review of the decision in the light of compliance with constitutional principles, i.e. whether the procedure (and subsequently the decision) was not affected by the constitutionally guaranteed rights of the parties, whether the procedure was conducted in accordance with those principles and whether the procedure as a whole could be considered to be fair (see, for example, the sp. zn.

28. The constitutional complaint, pursuant to Article 87 (1) (d) of the Constitution, constitutes a procedural instrument for the protection of the constitutionally guaranteed fundamental rights and freedoms, which is in relation to the other means of protecting the rights of individuals in the context of subsidiarity. The subsidiarity attribute of the constitutional complaint has both a formal dimension and a material dimension. On the one hand, the subsidiarity of a constitutional complaint is reflected in the requirement to use up all the funds in front of individual public authorities provided by the rule of law to individuals, which is an expression in the inadmissibility of a constitutional complaint (§ 75 (1) of the Law on the Constitutional Court). On the other hand, the principle of subsidiarity and a material dimension, which implies that subsidiarity is due to the very competence of the Constitutional Court as a body for the protection of constitutionality (Article 83 of the Constitution), that is to say, an institution which provides protection for the fundamental rights of an individual only if fundamental rights have not been respected by other public authorities.

29. It follows that, in principle, a decision challenged by a constitutional complaint should also be a final decision on the case. For this reason, the Constitutional Court does not in principle accept a constitutional complaint against the Supreme Court's decision (cf. Wagner, E., Dostál, M., Langášek, T., Pospíšil, I.: Law on the Constitutional Court with commentary. Praha: Apsi, 2007. str. 383). However, it does not follow that there are cases where, in addition to a repeated decision by a court whose original decision has been annulled by appeal and another decision by the Supreme Court (order of refusal of appeal), it is precisely the Supreme Court's own decision that must be challenged. An example can be given of a situation where the Supreme Court oversees that the appeal has been filed late, considers it factually and decides on the basis of an appeal. It is clear that, in such a case, the court whose decision has been annulled is bound by the legal opinion set out in the decision of appeal and, on the contrary, it does not itself have the competence to draw the consequences that the appeal should not have been dealt with at all. A similar model case is the Supreme Court's decision of appeal, in which the admissibility of the appeal was assessed arbitrarily (unjustifiably or in contravention of the precaselaw, etc.). If the Constitutional Court had therefore maintained the categorical conclusion on the inadmissibility of a constitutional complaint against the judgments of the highest judicial instances, part of the legal proceedings would have been completely outside the scope of any control, since de facto those courts would have been given an almost unlimited power of appeal, where a possible stay from the limits of a fair trial would not have been allowed to correct the lower instance and the constitutional protection of the rights of the parties would also have been excluded through the inadmissibility of a constitutional complaint.

30. It follows from the above that the decision of appeal may exceptionally be subject to review, provided, of course, that the resources available to the complainant were exhausted and that it was not granted or could not be granted protection of his right to a fair trial. In such cases, the Constitutional Court, within the meaning of its caselaw referred to in paragraph 27, is required to provide the complainant with the protection of the right to a fair trial and to assess the procedure as a whole. It can be summarised that, if a constitutional complaint is admissible in the present case and it also meets other requirements, the active legitimacy of the Second Chamber of the Constitutional Court for the application is also given in the context of a specific examination of the standards or the application for annulment of § 237 (1) (c) o. s. s., which was applied precisely in the Supreme Court's appeal decision. Indeed, in the above-mentioned comment (p. 377), the postulate is expressed that "[d] in the absence of any change in the design of the admissibility of a claim (s), even a simple rule for assessing the admissibility of constitutional complaints cannot be adopted. The Constitutional Court cannot avoid the assessment of the admissibility of an appeal because, however, there is a question of access to the Constitutional Court (and the risk of denegationis iustitiae on such a serious issue as the protection of constitutionally guaranteed fundamental rights and freedoms), it should exercise the utmost restraint and doubt as to the admissibility of a constitutional complaint in favour of the complainant, since it is the legislature's duty to define procedural rules in a clear and predictable way so that the parties can effectively protect their rights, and it is also the duty of the courts in the application of procedural rules to avoid an excessive formality which would be contrary to the fairness of the proceedings and which would affect the right of access to the courts in substance. '

31. In the decision sp. zn. I. ÚS 2166 / 10 of 22.2.2011 it is stated: "Article 1 (1) The Czech Republic is a legal state based on respect for the rights and freedoms of man and citizen. The fact that the Czech Republic belongs to a family of democratic material-eaten legal states has significant implications in the field of interpretation and application of law. The principle of rule of law is linked to the formal characteristics that the legal rules in the legal system must show so that individuals can take them into account when determining their future behaviour (cf. O'Hood, Philips, Paul Jackson: Constitutional and Administrative Law, 7. Edition, Sweet and Maxwell, London 1987, p. 33n.). In the view of the Constitutional Court, the principle of predictability of the law, its clarity and internal inconsistencies are among the fundamental principles of the rule of law [cf. Without clarity and certainty of the rules, the fundamental characteristics of the law are not fulfilled and thus the requirements of the formal rule of law are not met. Any legislation must therefore express respect for the general principles of law (principles), such as trust in law, legal certainty and the predictability of legal acts that structure or are deductible from the rule of law of a democratic rule of law. Legal standards must also be subject to content requirements, as in a material legal state based on the idea of justice they represent fundamental rights of correction both in the content of legal standards and in their interpretation and application. Therefore, it is the task of the judge in the conditions of the material rule of law to find a solution which would ensure the maximum realisation of the fundamental rights of the parties to the dispute and, if this is not possible, to decide in accordance with the general idea of justice, or according to the general principle of natural law [see page II of the CUS 2048 / 09 of 2.11.2009 (N 232 / 55 of the SbNU 181)]. '

32. The requirement of the legal basis for the possible limitation of fundamental law arising from Article 4 (2) of the Charter is based on a democratic principle as well as on the principle of the material rule of law. Its purpose is to make it impossible for the executive to realise their own ideas about how and how much fundamental rights can be reduced. By granting this power to a democratically legitimate parliament, it is to be ensured that the restriction of fundamental rights will only take place after a democratic parliamentary discourse and, moreover, obtain a restriction on fundamental law and subsequent democratic feedback.

33. Indeed, the Convention foresees law for the limitation of fundamental rights, as well as the International Covenant on Civil and Political Rights. It should be added, however, that the ESLP (for good reasons due to the interest in maintaining the internal cohesive system of the Convention, which not only includes the countries of the civil law circuit, but also those of the common law circuit, where the law is not, and never has been, an exclusive source of law in the formal sense, which can now also be claimed by countries that originally clearly belonged to the civil law circuit with limited understanding of the law sources) does not understand the law only in the formal sense, but also accepts the law in the so-called material sense. From the perspective of the ESLP, such abstract general rules are regarded as having external effects, i.e. they are oriented towards an indefinite number of persons for the purpose of adapting a certain amount of facts, regardless of whether a specific rule was created by an authority which, according to national legislation, is competent to legislate in a process foreseen by constitutional order. In this respect, the ECHR reflects the specific legal order and its sources of law.

34. Already in the decision of the Sunday Times of 26.4.1979, complaint No 6538 / 74, the court noted that the word "law" (law) in the phrase "law" or more precisely law (prescribed by law) covers, apart from written laws, unwritten law. It would be contrary to the intention of the Convention's creators if restrictions on rights originating in common law were excluded from the impact of the "prescribed by law" clause only because they are not contained in the law in a formal sense. This approach would deprive a common law State which is a Party to the Convention of its defence through the possible limitation of rights foreseen in the present case by Article 10 (2) of the Convention and would undermine the very nature of the legal system of that State. The ESLP considered that a formal law is only necessary if the rules resulting from common law are so uncertain that they contravene the principle of legal certainty. The Court then confronted the official language mutations of the Convention and concluded that they were not literally the same and therefore attempted to interpret them in such a way that the objective and purpose of the Convention were achieved.

35. The Court then formulated two requirements resulting from the "prescribed by law 'turnover. On the one hand, the legislation must be sufficiently accessible so that persons are able to know that the rule they have created affects a particular matter. The second requirement is that the standard cannot be regarded as a law - law, unless it is sufficiently precisely formulated to enable persons to adapt their behaviour. A person must be able, where appropriate equipped with an appropriate expert board, to anticipate the consequences which may result from certain (its) behaviour, with a degree of certainty which corresponds to the circumstances. The consequences may not be predictable with absolute certainty, as experience shows that this is unattainable. However, while the security is very desirable, it may give rise to excessive rigidity from the other side; However, the law must be able to keep up with changing circumstances. In accordance with the said rules, many rules are necessarily formulated in a way that is more or less vague, and their interpretation and application are issues of practice.

36. It follows from what has been reproduced in the ECHR's decision that its requirements for fundamental rights restrictive by law respect both the diversity of legal systems, but the requirements expressed must also be extended towards the quality of the law in the formal sense. Although the ECHR admits both the regulatory power and the judicial caselaw (see, for example, Markt Intern Verlag GmbH and Klaus Beermann v Germany of 20 November 1989, complaint No 10572 / 83), its decision has to be consistent and generally available.

37. The law which limits fundamental rights shall, within the meaning of Article 4 (3) of the Charter, apply equally to all cases which fulfil the conditions laid down. In other words, it is a guarantee of equal limitation of rights, i.e. an equal limitation of the rights set up by the situation of accesorial equality. This provision shall also be linked to Article 14 of the Convention.

38. The concept of a democratic rule of law in the 20th century reflects the material concept of democracy, and therefore only to a certain extent accepts both the degree of discrepancy applied in the formulation of sublegal standards, but only as long as the purpose foreseen by the law itself remains preserved, the same requirement is imposed on decisions of impartial and independent courts. In addition, they are required to make decisions, i.e. interpret and apply the law in the same cases in the same way, i.e. in a way that is not arbitrary in the choice of the cases under consideration, or in a way that passes the purpose of the law applied, or in a way that would lack meaning. The listed aspects must be considered as aspects of a fair process understood both as an individual right and as a principle contained in objective (positive) constitutional law. It is also an expression of the degree of materially understood legal status achieved. Article 2 (2) The Charter is a constitutional expression of the principle of a general ban on the exercise of libido in the exercise of state (public) power. In sp. zn. Pl. ÚS 11 / 02 of 11.6.2003 (N 87 / 30 SbNU 309; 198 / 2003 Coll.) The Constitutional Court has explained that even an unjustified change of legal opinion can cause interference in fundamental rights as it is exercised arbitrarily.

39. In the decision sp. zn. II. ÚS 566 / 05 of 20.9.2006 (N 170 / 42 SbNU 455), it states, inter alia: "At the same time, the Constitutional Court could not overlook that it was mainly a court of order which so radically changed the conclusions resulting from its own previously published caselaw. The Constitutional Court therefore also had to consider whether such a procedure was also a breach of constitutional fundamental rights and whether it did not deviate from the constitutional principle of the material rule of law (Article 1 (1) of the Constitution). The material rule of law is built, among other things, on the trust of citizens in law and the rule of law. Such confidence is subject to the stability of the rule of law and sufficient legal certainty for citizens. The stability of the rule of law and legal certainty are influenced not only by the legislative activity of the State (law-making), but also by the activities of the state authorities applying the law, since it is only the application and interpretation of legal standards that creates in the public awareness of what is and is not right. The stability of law, individual legal certainty and, ultimately, the degree of trust of citizens in law and in the institutions of the rule of law as such therefore also affects the way in which law-enforcement bodies, in particular courts whose fundamental task is to provide protection for rights (Article 90 of the Constitution), have interpreted legal standards. Moreover, the present case law of the Constitutional Court and of the European Court of Human Rights is based on such importance of the case-law of the courts, which considers the case-law of the courts to be in the material sense (cf. Kruslin's decision against France of 24 April 1990, Müller and others against Switzerland of 24 May 1988, Markt Intern Verlag GmbH and Klaus Beermann against Germany of 20 November 1989 and others and, for example, the findings sp. zn. IV ÚS 611 / 05 and Pl. ÚS 20 / 05; Collection of finds and orders of the Constitutional Court, Volume 40, Found No 34 and Found No 47, issued under No. 252 / 2006 Coll.). The decisive role is therefore whether the interpretation of legal standards is stable over time, which, on the other hand, does not mean that the interpretation of the rule of law once achieved is immutable. The principle of legal certainty, as well as the principle of equality before the law, requires that the case-law of the courts should be amended under certain conditions (change of value view of law, change of cultural ideas of the company about law, change in the structure of the rule of law or change in those elements of the rule of law which lie in the hierarchy above the interpreted standard, etc.), by a certain predetermined procedure. The Constitutional Court has also argued on these issues that, in general terms, in relation to the binding nature of the judicial case-law, an interpretation should be made once more, unless there is a subsequent finding of sufficient relevant reasons based on rational and more convincing arguments, in summary more consistent with the rule of law as a significant whole and testifying to the amendment of the case-law, the starting point for decisions of the following cases of the same type, from the point of view of the principles of legal certainty, predictability of law, the protection of legitimate trust in law (legitimate legitimate legitimate expectations) and the principle of formal justice (equality) - cite in the case sp. Collection of finds and resolutions of the Constitutional Court, Volume 36, Found No 16. The principle of legal certainty leads to the conclusion that an individual, led by trust in law, should always have at least a framework idea as to whether the conduct which he or she commits is legally lawful or prohibited... The principle of equality before the law then means that the law should be interpreted for all cases satisfying the same conditions as. These principles do not apply without exception if there is sufficient legitimate reason for limiting them, that is to say, a sufficiently legitimate reason for changing the interpretation of the rule of law, and if procedural procedures for that purpose have been followed by the body of changing interpretation. Only such justified circumstances that warrant a change in interpretation and the procedural procedures used in a transparent manner can justify interference with the legal certainty and equality of individuals. These principles apply all the more to bodies whose function is, inter alia, the harmonisation of caselaw, i.e. where the adopted legal conclusions have a more general impact on the interpretation of legal standards by way of harmonisation. In the case of such, generally the highest, judicial authorities are provided for a change of caselaw or a derogation from the interpretation of the law, as well as a specific procedural procedure ensuring the participation of a wider range of judges. This, too, is due to the fact that changing the case law of such a judicial body means much more visible interference with the principle of legal certainty and equality before the law."

40. In the case of Prince Hans-Adam II of the Liechtenstein ESLP on 12 July 2001 (complaint No 42527 / 98), inter alia, in paragraph 43, he stated that Article 6 (1) of the Convention ensures that everyone is entitled to a court (tribunal), if it goes to his civil rights and obligations. In that sense, Article 6 of the Convention provides for the right of access to a court. In paragraph 44, he explained that the right of access to a court is not absolute and may be restricted by State law. When applying restrictions, care must be taken to ensure that access to a court is not restricted or reduced in such a way or to such an extent that the very essence of that right is infringed. The restriction of the law will not be consistent with Article 6 (1) of the Convention even if it does not pursue a legitimate objective and does not maintain a reasonable relationship of proportionality between the device used and the objective pursued by the measures.

41. Article 14 of the Convention shall not prohibit any difference in treatment in the exercise of the rights and freedoms recognised by the Convention. However, it protects persons (including legal persons) in an analogous situation from discriminatory treatment. "Different treatment" (discriminatory) within the meaning of Article 14 The Convention means a procedure which lacks objective and reasonable justification, i.e. if it does not pursue a "legitimate objective 'or if there is no" reasonable relationship of proportionality between the device used and the objective to be implemented by that device' (mutatis mutandis point 637 of the ECHR Decision Neftyanaya Kompaniya Yukos v Russia of 20 September 2011, complaint No 14902 / 04).

42. The Convention (Article 35 (1)) obliges the complainant to use up all the domestic resources which, however, must indeed be available and must be sufficient to enable the complainant to obtain a remedy for the infringement. The existence of such means must be sufficiently certain, both in theory and in practice; If this is not the case, there is a lack of the necessary accessibility and efficiency (point 637 of the ECHR Decision Neftyanaya Kompaniya Yukos v Russia). In other words, according to the ECHR case-law, the complainant is not obliged to make use of those remedies which are insufficient or inefficient (judgment in Assanidze v Georgia, 8.4.2004, complaint No 71503 / 01, paragraph 127).

43. In the decision sp. zn. I. ÚS 612 / 01 of 17.4.2002 (N 47 / 26 SbNU 33), it states, inter alia: "One of the fundamental conceptual features of the constitutional complaint as a means of protecting constitutionally guaranteed fundamental rights or freedoms is subsidiarity. This means that a constitutional complaint can normally be lodged only if the appellant has exhausted all the means provided by the Law on the Protection of the Law (§ 75 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court) before it is lodged. Otherwise, a constitutional complaint is inadmissible. The principle of subsidiarity of the constitutional complaint is that the Constitutional Court is not part of a system of general courts or a system of public authorities. Its task, within the meaning of Article 83 of the Constitution of the Czech Republic, is to protect constitutionality and therefore to intervene in the activities of other public authorities only in the event that it finds in their decisions an unconstitutional breach of certain fundamental rights or freedoms of the complainant. '

44. The finding of sp. zn. IV. ÚS 128 / 05 of 10.5.2005 (N 100 / 37 SbNU 355) stated, inter alia, that "the very existence of an appeal as an exceptional remedy does not enjoy constitutional protection, in other words, it is not the duty of the State to compose such a means of protection of rights into its legal order. However, this does not deprive the court of the obligation to interpret and apply the conditions for the authorisation of this device, if the State created it in its legislature, so as to respect the maximum right to a fair trial. If there is a restriction in the law on the right of access to a court in the context of an exceptional appeal procedure, it is necessary to monitor whether those restrictions are proportionate to the protection of fundamental law, not only in a standard level but also in the assessment of a particular case in the context of interpretation and application of such restrictions. As mentioned above, fundamental rights do not only create a framework of the normative content of a simple law, but also a framework of its interpretation and application... a court of appeal must be aware, when interpreting and applying the conditions for admission, that the party to proceedings always monitors the protection of its subjective rights, regardless of the other purpose of the special appeal procedure. Therefore, the protection of subjective rights cannot be omitted from consideration or where the legislature is the subject of an extraordinary appeal for the so-called harmonisation of caselaw. This purpose cannot outweigh the protection of the subjective rights of a party by completely emptying the protection of the subjective right and by becoming only a sort of supplier of material 'for the harmonisation of case-law, but by seeking a reasonable balance between the limitation of the right of access to a court and that purpose, which at the same time represents the public interest, which in the present case is to ensure a consistent application and interpretation of the simple law by general courts.'

45. In the light of the above criteria, the Constitutional Court has undertaken to assess the constitutionality of the contested provision. First of all, it should be noted that the Constitutional Court is already aware of the reality of the conditional necessity of a certain reduction in the admissibility of the appeal itself, as an exceptional remedy, as it is aware of the danger of "overcrowding" the Supreme Court. This leads to a disproportionate extension of the appeal procedure and thus significantly contributes to the creation of unconstitutional delays and to the State's responsibility for the damage caused by them. In general, there is no argument against the narrowing of the admissibility of an appeal solely for the purpose of harmonising the caselaw by addressing only legal issues as envisaged by the contested provision. Moreover, such a structure, generally expressed, appears to be consistent with the practice of other European states.

46. In this context, however, the question had to be resolved whether the purpose of the contested provision was, in addition to the harmonisation of the caselaw [by means of the removal of serious procedural and substantive misconduct of the lower courts in the system of the general courts and by virtue of the obligation to provide protection for fundamental rights (Article 4 of the Constitution) - that is to say, to ensure individual fairness, if the decision which constituted them were to give rise to serious legal relevance], as well as certain regulation of the idea of meritally assessed cases, namely by the decision of the Supreme Court itself to refuse the admissibility of appeals. In fact, it cannot be overlooked here that the Supreme Court does not decide on the admissibility of the submissions as such (it only decides as a preliminary ruling), but on the contrary it only decides that the appeal is inadmissible, if it does not previously find "essential legal importance 'of the case, i.e. content, unless it finds that there are above-mentioned errors and admits to them the status of" of serious legal importance' [see the resolution of the Supreme Court in sp. section 30 Cdo 3368 / 2009 or the resolution of the Supreme Court of 25 November 2009 No 29 Cdo 5254 / 2007-117; Conversely, for example, the resolution of the Supreme Court of 30 November 2011, sp. zn. 20 NCCR66 / 2011, which states that the decision of the Court of Appeal may not be of fundamental legal importance in terms of "decision-making at all ', but that the admissibility of the appeal cannot be denied, if the legal question addressed in the decision of the Court of Appeal is relevant to the decision of a particular case, it is therefore essential that the legal assessment in question is relevant to the case itself. However, in the same period, the Supreme Court remained with the doctrine, according to which" The Court of Appeal's judgment of 25 November 2011 is of fundamental legal importance at the same time only if the legal question addressed therein is of fundamental importance not only for the decision in the case under examination, but for the purposes of the judicial action at all (their case-law)' - see the order of 25 November 2011, sp. sp. zn. 23 Cdo. 1398 / 2010, where the Supreme Court again stated: "The presumption of admissibility of an appeal under Article 237 (1) (c) (c.) (c.) is that the decision of the Court of Appeal is of fundamental legal importance not only for the case under consideration but for the decision of the courts at all (their case-law), where the legal question of fundamental importance must be specifically defined. 'It follows from the above that the court will decide on the refusal of the admissibility of an application after finding that there are no grounds for hearing a case, from a moral point of view.

47. However, the latter theoretically possible purpose (regulation of the idea) needs to be examined, as it can, even if explicitly not admit, project its decision-making. Its possible unconstitutionality could result from its contravention of the principle of predictability of law based on the principle of the rule of law and the principle of general equality before the law, if it were to refuse to allow it to be inadmissible in the above-mentioned purposes, even if the previous decision or the previous proceedings were examined, were burdened by serious errors in both substantive and procedural law, or if they resulted in a breach of the fundamental rights of the parties to the appeal proceedings, although the case-law of the Constitutional Court shows that such errors are a matter of fundamental legal importance (see page IV of the Opinion of the ECR 128 / 05 and Others). Furthermore, it cannot be overlooked that the refusal to deal with a defective procedural or substantive case also poses a risk in the form of a denial of justice. This, however, is not constitutionally tolerable in the case of cases burdened by the above-mentioned defects or refusing to grant protection of fundamental rights, in addition to the situation where there is no need for a unanimous decision of the three-member senate [see, in contrast, paragraph 43 (2) (a) of the Constitutional Court Act], or for any larger judicial body, which would be a kind of insurance against the possible denial of justice or the denial of the protection of fundamental rights [see the decisions of the entire U.S. Supreme Court on the admissibility of a device called and a certierari or the decision of the German Federal Court of Justice (BGH) where the two-thirds majority of the six members of the Chamber decide on the refusal of the remedy (revision). Therefore, the design of the contested provision does not correspond to the certiorari institute, as it is designed in its country of origin; Notwithstanding this, it shall take account of the normative order contained in Article 4 of the Constitution, which cannot be denied the construction of the institute contained in the sub-constitutional legislation (o. s. s.). The Office of the Government Agent for the Representation of the Czech Republic before the European Court of Human Rights, as it is based on its observations, is clearly not aware of this fact (see paragraph 10).

48. The Constitutional Court further took into account, when examining the case, that, pursuant to § 241 (1) o. s., the appellant - a natural person must be represented from the outset by a lawyer [if he does not have legal training himself - § 241 (2) (a) o. s., or if he is not a legal person for whom the persons listed in § 21, 21a and 21b o. s., have legal education]. It follows that each appellant is considering the use of this (exceptional) appeal, which has been taught by law, inter alia, by the parties to its admissibility. Nevertheless, it is clear from the case law of the Supreme Court and from the analysis carried out of its decision-making (paragraph 12) that a significant percentage of submissions (80,58%) is rejected precisely for inadmissibility, since the Supreme Court did not find a properly worded "question of fundamental legal importance 'in the appeal. This situation persists, although the contested provision has been part of the legal order for almost 11 years (see paragraph 23).

49. In principle, constitutional order leaves the legislature to decide whether and what remedies it creates in civil matters, what purposes it intends to pursue and how it will adjust them in detail.

50. The fundamental reason for which the system of appeals is set up in a broad sense is linked, on the one hand, to the aim of improving the provision of individual justice in the form of finding the most appropriate judicial decisions and, on the other hand, to the institutional safeguarding of the unity of the rule of law through the unification of caselaw, including the unification of judicial law. The unity of the rule of law is threatened at the heart of it, if it is inequally judged on an analogous subjective claim (right). In the sp. zn. Pl. ÚS 15 / 01 of 31.10.2001 (N 164 / 24 SbNU 201; 424 / 2001 Coll.) In addition, the Constitutional Court stated: "No rule of law is and cannot be built ad infinitum from the point of view of the system of procedural remedies for the protection of rights, as well as from the point of view of the system of review procedures. Every rule of law brings, and must necessarily bring, a certain number of errors. In reality, the purpose of the review or review procedures may be to minimise such errors in an approximation rather than to eliminate them in full. The system of review instances is therefore the result of a measure, on the one hand, of an effort to achieve the estate of law, on the other hand, the effectiveness of decision-making and legal certainty. From the point of view of this criterion, the introduction of exceptional remedies, namely the extension of proceedings and the breaking of the principle of irrevocability of decisions that have already become legal, is only adequate for exceptional reasons. '

51. Although each system of appeals is in the sense of all the caselaw on which binding procedural findings are made as to what (relating to the subject-matter of the proceedings) is lawful. In addition, there is no reference model for an appeal which is binding on the standard statement of means of procedure. Therefore, if the legislature decides and establishes a procedural instrument, it has a wide range of discretion, both when deciding on access to an internal court and in relation to formulating an appeal procedure in which it reflects its ideas of their purpose. It can put the procedural initiative in the hands of the parties, thereby showing that it has greater confidence in the private initiative and in the implementation of the general objectives (here the unification of case-law) to be achieved by the procedural means; It could, however, also entrust the lower courts to present the case with the question referred for a preliminary ruling to the highest instance, independently of the initiative of the procedural parties. It is also possible to think of a solution whereby it will bind access to remedies to general criteria such as the value of the dispute or the diformity of previous decisions in the matter, or it may follow a criterion which is the importance of individual legal matters in the light of the general interest. This will create more or less controllable access to the appeal in the form of a procedure for its admissibility, acceptability or refusal by either a judge whose decision is to be reviewed by the means or a judge called upon to decide on it.

52. However, when selecting any of the indicated modalities, the legislator is obliged to respect certain requirements arising from the constitutional order that apply whenever the exercise of a state-organised judiciary is to be regulated. These are guarantees of judicial and judicial independence and respect for fundamental aspects of a fair process to an extent consistent with the nature of the appeal. Respect for the framework further complements requirements that depend on the rule of law, fundamental rights and equality.

53. The central aspect of legal status is to prevent arbitrary and violent enforcement of individual legal claims. Such persons shall be referred to a judicial solution to their legal cases and shall be expected from the courts to give them final and enforceable decisions respecting or protecting the fundamental rights of the parties. Through the very existence of the judiciary, both the prohibition of arbitrary violence in the resolution of legal matters and the state power monopoly are manifested. These aspects illustrate the essential importance of rules governing access to courts, as well as rules governing procedural procedures and the form of remedies for the protection of the rule of law. From there it is also possible to deduce the imperative that the rules on access to higher judicial instances must be formulated as clearly as possible so that they are as clearly identifiable as possible for individual persons. This is because it is these rules that determine the boundaries and manner in which the person concerned is to claim his right. The requirement to be certain of these rules is enhanced by the fact that the parties are on the path of enforcing their legal claims with great human and financial burdens, which must last but not least include legal fees and legal representation costs, but also the payment of the costs of the counterparty in the event of an inefficient appeal. The right and enforceable decision, which stands at the end of such a process, which represents an executive title, can intervene deeply in the legal sphere of the participant who is to perform or endure something. It can be said that procedural law has in this context, to a large extent, a function which guarantees freedom for both individuals and society.

54. It follows from what has been stated that the construction of an appeal, as expressed in the contested provision, which requires that a substantive review be carried out at that stage before its rejection, does not, for constitutional reasons, allow the idea of the matters to be decided on by the Supreme Court itself to be regulated through the refusal of an appeal. If this would be the case for things that otherwise should have a chance of success, the risk of unequal assessment of comparable things would be increased to the extent that it would no longer be possible to consider a legal assessment relating to the specific content which the case shows, but on the contrary - it would be almost entirely independent, more or less by chance left to it, and so much as to show a procedure which does not respect predictable, i.e. the predetermined criteria, and is thus contradictory with the order of the same application of the law in the same (analogical) cases, which is, however, dictated by the constitutional order [expressly Article 26 of the International Pact on Civil and Political Rights and Article 1 of the Charter in its interpretation by the Constitutional Court of the Constitutional Court. Similarly, the Federal Constitutional Court - BverfG, which initially identified equality only with a desire to do so (2 BvR 1 / 51), is now no longer considered sufficient to justify the unequal treatment of groups of persons by taking into account, from the nature of the matter, an appropriate differentiating element, but there must be a truly objectively justified differentiation factor of sufficient weight (Decision 1 BvR 1164 / 07). The difference in situations must therefore be such as to justify the difference in treatment (Decision 1 BvL 51 / 86; Decision 1 BvL 50 / 87; 1 BvR 873 / 90; 1 BvR 761 / 91). It is de facto a concept of equality as proportionality: consider similar cases in a similar way, different in different ways, depending on their degree of similarity or diversity. The main question here is whether the purpose of the distinction justifies its consequences. If other fundamental rights are also in play, the legislator's options are narrower (Decision 1 BvL 29, 30, 33, 34, 36 / 83). If these restrictive criteria apply to legislators, they must be respected by the Court in interpreting the legal provisions and thus respect the principle of equality, which is fundamental to constitutional order.

55. First of all, it will be a question of whether the contested legal provision is sufficiently predictable for its addressees, in particular in the aspect of the interpretation of that part of the contested standard, which foresees that the contested decision is of legal importance in the matter itself. Paragraph 237 (3) CS, which contains only a demonstrative, mechanical list of examples in which a positive answer to this question should follow, does not reduce the need for such a review.

56. It is clear that the important purpose of the contested provision is to ensure the harmonisation of the caselaw. However, as is distributed from above, this purpose can only be achieved within a given constitutional order. It follows, inter alia, that, when a legal standard is constructed by means of a non-specific concept which requires the initial consideration of the court, it is necessary to examine whether such a standard is sufficiently predictable for its addressees following the caselaw of the court which interprets the standard. The law's predictability (the law in the material sense - see above) is ensured by the contradictory caselaw of the court which interprets and applies the rule of law, i.e. the case law of the Supreme Court, naturally corrected by the views expressed by the Constitutional Court. It is therefore necessary to examine whether this case-law can be regarded as indisputable, or stable, to the extent that it can also be assessed as predictable.

57. The Constitutional Court first examined the empirical data it had collected to assess the case (see paragraph 12). It is submitted that the experts who were taught were already unsuccessful only in formulating a "fundamental legal issue 'in the entire 80,58% of the formally impeccable appeals based on the admissibility of the contested provisions. The success in assessing the claims found admissible is not relevant in the context. That figure alone leads to a partial conclusion on the doubts of the parties to the predictability of the contested provision.

58. The Constitutional Court has also reached the conclusion of a changing or mutually inconsistent assessment of what can be described as "a matter of major legal importance 'in the context of a spot check of cases. For example, in Decision 28 Cdo 2996 / 2009, the Supreme Court concluded:" In relation to the admissibility of the appeal, further attention can be drawn to the order of the Supreme Court of 15 February 2001, sp. zn. 22 Cdo 1731 / 99, in which it is noted that, where the solution to a particular legal issue is linked to the assessment of a unique factual basis, this does not make the decision of the Court of Appeal a decision of fundamental importance.' This was decided by the Supreme Court despite the instructions resulting from the Constitutional Court's finding of 10.5.2005 sp. zn. IV. ÚS 128 / 05, which further confirmed the finding of 2.12.2008 sp. zn. II. ÚS 323 / 07.

59. A similar, perhaps even more significant problem can be found in the decision (judgment) sp. zn. 25 Cdo 1950 / 2007, in which the Supreme Court concluded that "the appeal is admissible under § 237 (1) (c) o. s.) for a matter of fundamental legal importance, namely the application of § 8 (2) of Act No. 82 / 1998 Coll. (as amended by Act No. 160 / 2006 Coll.), which in the past was decided differently by the Court of Appeal (§ 237 (3) o. s.)." After that, he rejected the appeal and somewhat surprisingly stated that he had no reason to deviate from the legal opinion expressed by the Grand Chamber by judgment of 26 August 2009 in Case 31 Cdo 3489 / 2007. If it was decided by the Grand Chamber in an analogous case and there was no room for a factual distinction from that case, then surely there was no reason to find room for "a matter of fundamental legal importance," as the Senate of the Supreme Court said quite surprisingly. It cannot be ignored that both the decision of the Grand Chamber and the decision now cited relied on such an interpretation of the substantive law, which has been repeatedly found to be constitutionally unconformal by the Constitutional Court (the finding of the sp. zn.

60. In Decision No 26 Cdo 5211 / 2007 The Supreme Court stated that if the court ascertains the content of the contract, using the interpretation of the will, it is a fact finding, not a legal assessment of the case. In Decision No 29 Cdo 101 / 2007, the Supreme Court interpreted "the conditions of a restricted tender procedure 'as a manifested will embodied in the legal act of one of the parties to the dispute, the subject matter of which was the wording of the right to conclude a sales contract, to which the other party responded by its legal act, and their conduct was assessed as an innominate contract within the meaning of Article 269 (2) of the Trade Code.

61. In decisions sp. zn. 26 Cdo. 689 / 2009, sp. zn. 26 Cdo. 3876 / 2010 and 22Cdo. 1936 / 2009 The Supreme Court stated that the question of whether a certain exercise of the law is contrary to good manners in the light of the factual circumstances established for the assessment of a particular case cannot be regarded as a matter of fundamental legal importance with a general scope for judicial practice. On the contrary, in its decision in sp. zn. 22 Cdo 1185 / 2009, it stated that it was entitled to take account of the infringement of the legal act (s) with good manners within the meaning of § 39 of the Civil Code under its review, but only in the event of manifest inadequacy of the relevant considerations of the court in the proceedings. The Constitutional Court found in sp. zn. I. ÚS 548 / 11 of 21 June 2011 stated on that question that, if the Supreme Court ruled on a flat-rate basis out the possibility of assessing the fundamental legal importance of the question of whether the objection of limitation was contrary to good manners, the reasoning is manifestly illogical and therefore any infringement of the complainant's right to a fair trial.

62. The latter could lead to the presumption that the question is resolved as a result of an enforceable decision by the Constitutional Court (Article 89 (2) of the Constitution) and that the Supreme Court will in future follow a binding order provided by the Constitutional Court. However, the examples below show that such a set of considerations having a constitutional basis cannot be relied on.

63.In Decision No 20 Cdo 2530 / 2003 According to the Supreme Court, the complainant did not assert in the appeal the reason for the wrongful assessment of the case, or its argument was not substitutable under § 241a (2) (b) (c) and § 237 (3) (c) (c) and § 237 (3) (c) (c). According to the Supreme Court, only Article 241a (2) (b) (c) of the EC Treaty, which is an incorrect legal assessment of the case, can the appeal be admissible under the contested provision. The objection that the proceedings are affected by a defect which may have resulted in an incorrect decision in [§ 241a (2) (a) o. s. s.] is not subsummable under § 237 (1) (c) s. s. § 237 (1) (b). As mentioned above, it is not entirely possible to take into account the constitutional obligation, which also binds the court to grant individual protection of fundamental rights, all the more so when the other purpose of the appeal procedure, that is to say, the unification of the caselaw of the general courts, would also be fulfilled by admission. '

64. For a similar reason, for example, the finding of sp. zn. II. ÚS 182 / 05 of 18.12.2007 (N 227 / 47 CollU 973) of the order of the Supreme Court sp. zn. 32 Odo 260 / 2004. In the same way, the findings of sp. zn. IV ÚS 128 / 05 (see above), II ÚS 650 / 06 of 9.1.2008 (N 3 / 48 SbNU 25), I ÚS 2030 / 07 of 11.9.2007 (N 138 / 46 SbNU 301), II ÚS 2837 / 07 of 6.8.2008 (N 136 / 50 of SbNU 205), II ÚS 3005 / 07 of 4.3.2009 (N 45 / 52 SbNU 449) or I. ÚS 2884 / 08 of 18.3.2009 (N 60 / 52 SbNU 591) or I. ÚS 1452 / 09 of 17.8.2009 (N 186 / 54 SbNU 303), respectively. To the Supreme Court, the annulled decisions of the Supreme Court unduly restrict the right of applicants to access the Supreme Court. All the decisions cited by the Constitutional Court have found a breach of the fundamental right of the individual complainants to a fair trial in the procedure of the Supreme Court. ÚS 2117 / 09 of 15.3.2010 (N 51 / 56 SbNU 553), inter alia, stated: "16. The Constitutional Court has dealt with the relationship between § 237 (1) (c) and § 241a (2) (a) o. s.) many times in the past, for example in the finds sp. zn. IV. ÚS 128 / 05 of 10.5.2005 (N 100 / 37 SbNU 355) and sp. zn. I. ÚS 2030 / 07 of 11.9.2007 (N 138 / 46 SbNU 301). In these findings - from which it further draws in the preamble to the present Decision - it concluded that the interpretation of the Supreme Court, according to which the ground of appeal under § 241a (2) (a) o. s. o., precludes the possibility of admission under § 237 (1) c) o. o. s., leads to an inadmissible reduction of the right of access to the Court of Appeal. It follows from such an interpretation that the review of the defects of the proceedings by the Court of First Instance will only be carried out on the basis of the permission of the former, pursuant to § 237 (1) (a) and (b) o. p. 17. In these findings, as well as in other decisions, the Constitutional Court admitted that the right of appeal, or of an exceptional appeal, is not guaranteed by the Constitution and, where it exists, goes beyond the constitutional rules of procedure [cf. At the same time, however, he has repeatedly stated that decision-making by the court, whether in the ordinary or exceptional appeal proceedings, cannot be outside the constitutional framework for protecting the fundamental rights of an individual. In its Opinion in sp. zn. IV. ÚS 343 / 04 of 14.3.2005 (N 55 / 36 of the SbNU 581), it stated, on the basis of specific judgments, that the European Court of Human Rights repeatedly confirms that Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms does not require the contracting States to establish appeals or appeals, but, where such jurisdiction exists, guarantees of Article 6 In particular, conventions must be respected where they ensure that the parties have an effective right of access to the courts in order to discuss their rights (for all cases in Brualla Gómez de la Torre v Spain, 26737 / 95, § 33 in fine, available electronically at http: / / www.echr.coe.int /). 18. Thus, the existence of an exceptional appeal does not enjoy constitutional protection; In other words, it is not the duty of the State to compose such a means of protecting rights in its legal order. However, this does not deprive the court of the obligation to interpret and apply the conditions for the authorisation of this device, if the State created it in its legislature, so as to respect the maximum right to a fair trial. If there is a restriction in the law on the right of access to a court in the context of an exceptional appeal procedure, it is necessary to monitor whether those restrictions are proportionate to the protection of fundamental law, not only in a standard level but also in the assessment of a particular case in the context of interpretation and application of such restrictions. As the Constitutional Court also consistently judges, fundamental rights do not only create a framework of the normative content of a simple law, but also a framework of its interpretation and application. Therefore, the conditions for admission under Article 237 (1) (c) and Article 237 (3) (c) of the EC Treaty should be interpreted in such a way as to fulfil both the constitutional obligation of the courts to protect the individual's fundamental rights (Article 4 of the Constitution) and the purpose of that type of appeal procedure. 19. The Supreme Court - bound by the Constitutional Court's finding in the case sp. zn. IV ÚS 128 / 05 - in its resolution of 25.11.2005 sp. zn. 20 Cdo. 1643 / 05 (available at www.njus.cz) interpreted the concept of legal assessment 'pursuant to § 241a (2) (b) o. s. o., by referring not only to the standards of substantive law but also to procedural law. Similarly, the Supreme Court has already been judicated by the Supreme Court - for example, in Resolution sp. zn. 20 Cdo 1591 / 2004 of 26.5.2005 (available at www.njus.cz). 20. The Constitutional Court had no reason to derogate from the conclusions set out above (and resulting from the judgments cited both by the Constitutional Court and by the Supreme Court) in the present case, and therefore, after finding that the Supreme Court had assessed the admissibility of an appeal based on an interpretation that was constitutionally incompatible because of the undue narrowing of the individual's access to the Court, it concluded that there was a reason for its intervention. The Constitutional Court, whose function is the protection of the constitutionally guaranteed fundamental rights of an individual, reiterates that it fully respects the power of the Supreme Court to choose the appropriate interpretation of the relevant provisions of o.s., but only in such a way as to respect the protection of the fundamental rights of an individual. In the present case, the Supreme Court did not fulfil its constitutional obligation to provide protection for the complainant's fundamental rights and infringed its fundamental right of access to the court within the meaning of Article 36 (1) of the Charter... 22. In short, in the present case, neither the Supreme Court respected its previous case-law nor the Constitutional Court's finding case-law, without presenting a sufficiently substantiated (competitive) argument which is capable of explaining why it deviates from that case-law; Of course, a reference to an earlier and overturned decision by the Supreme Court does not constitute a reason for a judicial departure. This infringed Article 89 (2) of the Constitution [for example, the finding of page III of ÚS 252 / 04 of 25.1.2005 (N 16 / 36 of SbNU 173;]. In addition, by refusing the complainant's leave for its alleged inadmissibility, the Supreme Court denied the complainant justice, in breach of Article 36 (1) of the Charter. Of course, the Constitutional Court does not prejudge how the Supreme Court decides to call the complainant. However, in the further proceedings, the grounds relied on in the assessment of admissibility in the light of § 237 (1) (c) o. s. o. 23. Nor does it change the fact that, according to § 237 (3) o. s. s., as amended by Law No 7 / 2009 (i.e. as effective from 1 July 2009), when assessing the admissibility of a claim in the light of § 237 (1) (c.) o. s.' s. According to the transitional provisions to Act No 7 / 2009 Coll., the appeal against the decisions of the Court of Appeal declared (issued) before the date of entry into force of the Act will be discussed and decided in accordance with the existing legislation. 'In the absence of respect for the case law of the Constitutional Court dealing with the question outlined (Article 89 (2) of the Constitution), the Supreme Court was ordered to pay the complainant the costs of the proceedings before the Constitutional Court.

65. In resolution sp. zn. I. ÚS 281 / 10 of 31.5.2010 (in the Collection of Found and Order of the Constitutional Court not published, available at http: / / nalus.ujud.cz), it was necessary to repeat, inter alia, the above: "According to the Supreme Court, this is only an incorrect legal assessment of a case under § 241a (2) (b) o. o. o. o. o., and not a justification under § 241a (2) (a) o. s. In support of this restrictive conclusion, the Supreme Court refers, inter alia, to the order of the Constitutional Court sp. zn. III. ÚS 51 / 06, III. ÚS 10 / 06, IV. ÚS 155 / 06 and III. ÚS 1482 / 08. To this end, it should be added that the most recent resolution concerns confusion, that is to say, a different issue, and the three previous decisions referred to are unique excesses of March, April and July 2006, which are not confirmed by the previous or subsequent case-law of the Constitutional Court. Moreover, these decisions take only the form of a resolution rejecting a constitutional complaint and not finding it. On the contrary, the findings of the Constitutional Court show consistently the opposite of the legal conclusion. For example, the finding of sp. zn. I. ÚS 1452 / 09 of 17.8.2009 (N 186 / 54 SbNU 303), in which recital 19 of the Constitutional Court ruled that, for reasons of legal law, the Court of First Instance did not respect the settled caselaw of the Constitutional Court (e.g. sp. zn. The interpretation that the ground of appeal pursuant to § 241a (2) (a) o. s. There is no doubt that even the Court's procedural procedure may pose a question on which different views may exist in judicial practice, requiring their unification by decision of the Supreme Court. 'The fact that the legislature arbitrarily and in spite of the case law of the Constitutional Court in Act No. 7 / 2009 Coll., amending Act No. 99 / 1963 Coll., the Civil Code, as amended, and other related laws, in § 237 (3) CS excluded the possibility of taking account, inter alia, of the plea of appeal under § 241a (2) (a) CS, does not alter this conclusion. On the one hand, the legal situation before the amendment was decisive and, on the other hand, the Constitutional Court will assess whether such a restriction of the pleas in law can be considered to be constitutional conformance only in connection with the application of this provision.'

66. On the question of fundamental legal importance raised by the above mentioned amendment, the resolution sp. zn. II. As the above-mentioned view of the Constitutional Court continues to be true, a specific procedural defect may have a judicial overlap, and as such it is, by the nature of the case, an eligible ground for examining a question of fundamental legal importance. Thus, if the court based its decision on an interpretation of procedural law and the appellant opposed such an interpretation, this question cannot be excluded from the assessment of the existence of a matter of fundamental legal importance. The difference from the previous case-law of finding (in competition with which, therefore, the mere resolution will not stand up) will only be in form, or sub-ranking under a particular plea. Therefore, it will be possible to include such an objection in the future under § 241a (2) (b) o. s. In the light of the explanatory memorandum to the relevant part of Act No. 7 / 2009 Coll., according to which: "The exclusion of the pleas in law referred to in § 241a (2) (a) is due to the nature of this plea, where it can be assumed that a specific procedural defect will not have a judicial overthrow if the court bases its decision on the interpretation of the procedural law and the appellant against such an interpretation of broths, that is an argument applicable under § 241a (2) (b) '.

67. The assessment of the empirical data mentioned above necessarily leads to the conclusion that there is a real problem consisting of a discrepancy in the case law of the Supreme Court relating to the interpretation and application of the contested provision in the systematic disregard of the correct views of the Constitutional Court on various legal issues. In the view of the Constitutional Court, this unfortunate situation is determined by the fact that the general purpose of the appeal is not identified by the Supreme Court and that its purpose is neither respected in the submission of the above-mentioned case law of the Constitutional Court (paragraph 43). This results in a constitutionally unacceptable inequality of the complainants before the law or before the law, which should be drawn through a steady interpretation of the Supreme Court (see both our case-law and foreign case-law referred to in paragraph 54 and paragraph 52 below). In such a situation (based on a procedural non-uniform procedure of the Supreme Court and non-respect of the case-law of the Constitutional Court), it is necessary to conclude that the contested provision is to such an indefinite or vague legal standard that it no longer constitutes a foreseeable right in the real environment, i.e. in the possibilities of general justice (see paragraphs 34 to 38), thereby being found contrary to the requirements of the rule of law (Article 1 (1) of the Constitution), from which the requirement of predictability of the law can be inferred. In the individual cases in which complainants file a constitutional complaint, the case law of the Constitutional Court usually finds a breach of the right to a fair trial in the decisions of the Supreme Court (Article 36 (1) of the Charter) or the exercise of a constitutionally prohibited libel (Article 2 (2) of the Charter, see paragraph 38). Furthermore, empirical data suggest that the time has run out for a systematic conclusion to be drawn to address the outlined problem in general, not just in the position of individual constitutional complaints. It is also impossible to ignore the fact that the Czech Republic is relatively often called to international legal liability before the ECHR, primarily as a result of the unexplained interpretation of the contested provision. The Constitutional Court states that this discrepancy, which results from the conceptual defect of the contested provision, was not brought to the attention of the Minister of Justice by the government representative for representation before the ECHR with the appropriate proposal for redress, as well as the lack of action by the Minister of Justice and the Supreme Court in relation to the analysis of the effectiveness of the contested provision, although both institutions are well aware of the problem and should be informed. It will now be up to the Parliament of the Czech Republic to adopt the constitutional law of the Institute of Appeal in order to ensure the function of the Supreme Court, consisting of the unification of the case-law of the General Courts, which the Constitutional Court, whose function (protection of constitutionality) is standardised in Article 83 of the Constitution, cannot be modified by ordinary law or in fact.

68. The Supreme Court President's argument (paragraph 18) was dealt with by the Constitutional Court. As regards its objection to Paragraph 237 (3) (a), the Constitutional Court adds that, by simply cancelling the word 'in particular', it would interfere with the legislature's authority to determine the admissibility of the right of appeal, or in this way it would narrow it down itself, although there are certainly other grounds for judging by the Supreme Court, which, moreover, the legislature itself presupposes a demonstration of itself.

69. However, the Constitutional Court wishes to respect the free will of the legislator, which it will incorporate into the new regulation of appeals, points out that such regulation must be predictable to such an extent that the admissibility of the pleadings must be obvious to any potential party before making use of the appeal in the form of pleadings. Following the annulment of the contested provision, a number of provisions are becoming applicable to the contested provision. The new rules of appeal should have a clear theoretical concept in particular in the sense that such an appeal is intended to follow (with respect to the existing case law of the Constitutional Court and, naturally, also in the light of the functions to be performed by the Supreme Court, see above), for which the Constitutional Court has provided the legislator with a sufficient period of time by delaying the enforceability of the operative sentence.

70. For all the reasons indicated, the plenary of the Constitutional Court under Paragraph 70 (1) of the Constitutional Court Act decided to repeal the contested provision for its contradiction with the provisions of the constitutional order referred to in the preceding paragraphs.

71. As an obiter dictum, the Constitutional Court adds that this decision does not generally address the possibility of actual "choice 'of cases, i.e. the institute and the certiorari, or the institution of admissibility of submissions, since it sees no reason for this in the context indicated. It merely recalls that the Institute is hardly applicable to the circumstances of the Supreme Court, whose decision must remain fully revisable from the point of view of constitutionality in the context of the proceedings on constitutional complaints. The reasons for such a request were already mentioned, for example, in the finding of page III of the ÚS 202 / 05 of 16.3.2006 (N 60 / 40 of the SbNU 579), in which the Constitutional Court stated, inter alia:" In its decision of 11.2.2004 sp. zn. (c) and (3) o. s.) In this finding, it pointed out its finding of 20 June 1995 sp. zn. III. ÚS 84 / 94 (Collection of findings and orders of the Constitutional Court, Volume 3, Found No 34), according to which the independence of decisions of the General Courts takes place within the constitutional and legal procedural and substantive framework; the procedural framework is, in particular, the principles of sound and fair process, as they result from Article 36 et seq. of the Charter, as well as from Article 1 of the Constitution, and one of those principles, which forms part of the right to due process, as well as the concept of the rule of law (Article 36 (1) of the Charter, Article 1 of the Constitution), and the exclusion of any choice in decision-making, is also the duty of the courts to justify their judgments. It also referred to its finding of 26 September 1996, sp. zn. III. Similarly, as in the factual field, as in the field of insufficiently interpreted and well-founded legal arguments, similar consequences arise which lead to incompleteness and, in particular, to the inconclusive nature of the decision, which, however, is contrary not only to the requested purpose of the judicial proceedings, but also to the principles of a fair trial (Article 36 (1) of the Charter), as the Constitutional Court understands. It also referred to the finding of 9.7.1998, sp. zn. equality in rights in relation to the ordinary courts therefore establishes, among other things, the right to the same decision in the same cases, while excluding the libel in the application of the law... In some cases, a mere reference to the previous decision of the Court of Appeal (or the Constitutional Court) may be sufficient, and this will usually be the case in cases where the case is manifestly identical and legally similar... If, in this situation, the Supreme Court was of the opinion that, despite certain differences in the two cases, the same could be considered as such, it should have explained its position sufficiently in the reasoning of its decision, in particular in a situation where its legal assessment was (possibly) different from that of the appellate court (and where, moreover, the views of the lower degree courts were not uniform as mentioned above). In the absence of this, the relevance of the reference cannot be assessed either.'