The Constitutional Court found no 148 / 2020 Coll.
The Constitutional Court found of 11 February 2020 sp. zn.
Valid
The Constitutional Tribunal found
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148
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 4 / 17 on 11 February 2020 in plenary composed of the President of the Court of Paul Rychetský and judges Louis David, Jaroslav Fenyk, Josef Fiale (Judge of the Czech Republic), Jaromír Jirsa, Tomáš Lichovník, Vladimir Sládeček, Radovan Suchánek, Kateřina Šimáková, Vojtěho Šimíček, Milady Tomková, David Uhlír and Jiří Zemánek on the proposal of the President of the Act No. 14 / 2017 Coll., amending Act No. 159 / 2006 Coll., on the conflict of interest, as amended by the Act No. 14 / 2017 Coll.
as follows:
I. Proposals for the repeal of § 4a to 4c and § 9 (e) of Act No. 159 / 2006 Coll., on conflicts of interest, as amended by Act No. 14 / 2017 Coll., amending Act No. 159 / 2006 Coll., on conflicts of interest, as amended, and other related laws, and the repeal of Article II (1) and (6) and Article VIII of Act No. 14 / 2017 Coll., amending Act No. 159 / 2006 Coll., on conflicts of interest, as amended, and other related laws, are rejected.
II. The proposal to repeal Part Three of Act No. 14 / 2017 Coll., amending Act No. 159 / 2006 Coll., on Conflict of Interest, as amended, and other related laws, is rejected.
Reasons
Subject matter
1. On 15 February 2017, the Constitutional Court received a proposal from the President of the Republic (hereinafter referred to as "the appellant ') pursuant to Article 64 (1) (a) of Act No. 182 / 1993 Coll., on the Constitutional Court, on the annulment of Sections 4a to 4c and § 9 (1) (e) [Note - rightly Article 9 (e)] of the Act No. 159 / 2006 Coll., on conflicts of interest, as amended, and further related laws (hereinafter referred to as" Act No. 14 / 2017 Coll., and Part Three of Act No. 14 / 2017 Coll. This proposal was implemented under the sp. zn. Pl. ÚS 4 / 17.
2. On 8 March 2017, a group of 44 Members of the Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as "the Chamber of Deputies') submitted a proposal pursuant to § 64 (1) (b) of the Law on the Constitutional Court for the annulment of § 4a to 4c of the Act on Conflict of Interest and for the repeal of Article II (1) and (6) and Article VIII of Act No 14 / 2017 Coll. This proposal was conducted under the sp. zn. Pl. ÚS 5 / 17.
3. Article 35 (2) of the Law on the Constitutional Court makes it inadmissible if the Constitutional Court is already acting on the same issue; the entitled applicant has the right to participate in the appointment of an earlier application in the capacity of intervener. This is why the Constitutional Court decided by its Resolution of 28 March 2017, sp. zn. Pl. ÚS 4 / 17, Pl. ÚS 5 / 17 (all decisions of the Constitutional Court are available at http: / / nalus.ujud.cz), by rejecting the proposal of a group of Members for the annulment of Sections 4a to 4c of the Act on Conflict of Interest, as well as the proposal for the annulment of Article II (1) and (6) of Law No 14 / 2017 Coll. (operative part I). At the same time, it decided that the motion of a group of Members for the annulment of Article VIII of Act No. 14 / 2017 Coll., which has been conducted so far under sp. zn. Pl. ÚS 5 / 17, is linked to joint proceedings with the proposal of the applicant (President of the Republic) under sp. zn. In this procedure, the applicant (a group of Members) continues to appear and is referred to as "intervener '; in the part of the procedure where it proposes to repeal Article VIII of Act No. 14 / 2017 Coll. (which is not requested by the appellant), appears and is hereinafter referred to as" appellant' [sub IX. d)]. In the proceedings concerning the appellant's proposal to abolish Paragraph 9 (e) of the Act on Conflict of Interest and Part Three (i.e. Article IV) of Act No 14 / 2017 Coll. the appellant (group of Members) is not a party to the proceedings.
Text of the contested provisions
4. The contested provision of Paragraph 4a of the Conflict of Interest Act reads as follows:
(1) The public official referred to in Article 2 (1) must not be a radio or television operator or a publisher of periodical printing or a member, a member or a controlling person of a legal person who is a radio or television operator or a publisher of periodical printing.
(2) The public official referred to in paragraph 1 is obliged to terminate the operation of radio or television broadcasting or the issue of periodical printing or to terminate his participation or membership in a legal person who is a radio or television operator or a publisher of periodic printing, without undue delay after he has started to perform his duties, but not later than 60 days after the date of commencement of his duties. Where, for reasons independent of the public office, it is not possible to comply with the time limit set out in the previous sentence, the public office shall inform the recording authority within that time limit and shall take all necessary measures at the same time to comply with the obligation set out in the first sentence. The provisions of the Specific Legislation are not concerned there.4)
(3) A public official who has not terminated his participation or membership in a legal person who is an operator of radio or television broadcasting or a publisher of periodic newspapers, as referred to in paragraph 2, may not exercise voting rights in that commercial corporation. Where a public office holder is the sole member of a trading company, he may not, in the exercise of his authority, make decisions other than those imposed by law or relating to the cancellation of a trading company, or elect the authorities of a trading company or their members, unless they have ceased to function.
Text of explanatory note 4 in § 4a (2):
For example, § 45 of the Labour Code, as amended, § 95 of Act No. 6 / 2002 Coll., on Courts, Judgments, Addresses and Government Administration of the Courts and on the amendment of certain other laws (Law on Courts and Judges), as amended, § 21 (3) of Act No. 283 / 1993 Coll., on the Prosecutor's Office, as amended.
5. The contested provision of Section 4b of the Conflict of Interest Act reads:
A commercial company in which a public official referred to in Paragraph 2 (1) (c) or a controlled person owns a holding representing at least 25% of the participation of a shareholder in a trading company may not participate in procurement procedures under a public procurement law as a participant or subcontractor through which the supplier demonstrates qualification. The contracting authority shall exclude such a trading company from the procurement procedure. The contracting authority may not award a small-scale contract to the commercial companies listed in the sentence first, such conduct being invalid.
6. The contested provision of § 4c of the Conflict of Interest Act reads as follows:
It shall be prohibited to grant a subsidy under the legislation governing the budgetary rule (14) or an investment incentive under the legislation governing investment incentives (15) to a commercial company in which a public office-holder referred to in Article 2 (1) (c) or a controlled person owns a holding representing at least 25% of the shareholder's participation in the company.
The text of the explanatory notes in § 4c:
14) Act No. 218 / 2000 Coll., on budgetary rules and amending certain related laws (budgetary rules), as amended.
15) Act No. 72 / 2000 Coll., on investment incentives and amending certain laws (Act on investment incentives), as amended.
7. The contested provision of § 9 (e) of the Act on Conflict of Interest reads:
A public official shall be required to state precisely, fully and truthfully that... he is a radio or television broadcaster or a publisher of the periodical press or a member, a member or a controlling person of a legal person who is a radio or television operator or a publisher of the periodical press.
8. The contested provision of Part One of Article II (1) of Law No 14 / 2017 Coll. reads:
The prohibition set out in Paragraph 4c shall apply to the grant procedure or the investment incentive initiated after the entry into force of this Law. Proceedings initiated before the date of entry into force of this Act shall be completed in accordance with existing legislation.
9. The contested provision of the first Article II (6) of Law No 14 / 2017 Coll. reads:
Prohibitions and restrictions pursuant to § 4a of Act No. 159 / 2006 Coll., as effective from the date of the entry into force of this Act, do not apply to public officials who began public office before the date of entry into force of this provision.
10. The contested provision of Part Three of Article IV of Law No 14 / 2017 Coll. reads:
Act No. 231 / 2001 Coll., on the operation of radio and television broadcasting and on the amendment of other laws, as amended by Act No. 309 / 2002 Coll., Act No. 274 / 2003 Coll., Act No. 341 / 2004 Coll., Act No. 501 / 2004 Coll., Act No. 626 / 2004 Coll., Act No. 236 / 2005 Coll., Act No. 127 / 2005 Coll., Act No. 153 / 2005 Coll., Act No. 302 / 2011 Coll., Act No. 420 / 2011 Coll., Act No. 160 / 2007 Coll., Act No. 296 / 2007 Coll., Act No. 227 / 2007 Coll., Act No. 124 / 2008 Coll., Act No. 384 / 2008 Coll., Act No. 41 / 2009 Coll., Act No. 196 / 2009 Coll.
1. In Article 13, at the end of paragraph 3, the dot is replaced by a comma and the following point (g) is added:
"(g) is not a public office which, under the Act on Conflict of Interest, is prohibited from broadcasting radio or television or from being a legal person whose public office is a member, a member or a controlling person."
2. In Article 21, at the end of the text of paragraphs 6 and 7, the words "that is not the case if the shareholder was a public official who, under the Act on Conflict of Interest, is prohibited from broadcasting radio or television."
3. In Paragraph 63, the dot is replaced by a comma at the end of paragraph 1 and the following point (d) is added:
"(d) he has become a public official to whom, under the Act on the Conflict of Interests in the Operation of Broadcasting or Television, he or she has become a member, a member or a controlling person."
11. The contested provision of Part Seven of Article VIII of Law No 14 / 2017 Coll. reads:
This Law shall enter into force on 1 September 2017, with the exception of Article I (17), Article II (6) and Article IV, which shall take effect on the 15th day following its publication.
Arguments of the appellant
12. The appellant contends that, according to Section 4 of the Act on Conflict of Interest, a member of the Government may not engage in self-employment or self-employment, not being a member of the statutory body, managing or controlling body, and these restrictions do not apply to the management of own property (note - if not on business in these fields - see Section 4 (2) of Act No 159 / 2006 Coll., on conflicts of interest). On the other hand, paragraphs 4b and 4c of the Act on Conflict of Interest essentially prevent a member of the Government from owning a holding in a company of at least 25%, and this applies mutatis mutandis to § 4a of the Act on Conflict of Interest, which also provides for a member of the Government to be prohibited from owning any ownership interest in or to be a member of the legal entity in question (note - or controlling person). The provisions of Sections 4a to 4c, as compared to Section 4 of the Act on Conflict of Interest in respect of a Member of the Government, go beyond Article 70 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), according to which a member of the Government may not carry out activities whose nature is contrary to the performance of his duties.
13. Paragraph 4a of the Act on Conflict of Interests (Prohibition of Media Entrepreneurship) considers the appellant to be contradictory to Article 11 (1) of the Charter of Fundamental Rights and Freedoms ("the Charter"). This provision contains the above-mentioned prohibitions (sub-12), while assuming that the public office may not comply with those prohibitions, with the effect that those consequences may affect it in Paragraph 4a (3) of the Conflict of Interest Act. Exceptionally, the restriction of ownership may take place in the event of a collision with an extremely strong and duly justified public interest, in a careful investigation of its substance and meaning, so as not to misuse the status of the broadcaster or the publisher of the periodical press or their shareholder. When applying the principle of proportionality [e.g. part III of the finding of 13.8.2002 sp. zn.
14. In view of the principle of suitability, i.e. the ability at all to achieve the intended objective of protecting another fundamental right, or, as in this case, of public interest, it is difficult, according to the appellant, to imagine that a conflict of interest may arise, for example, with the Head of the Senate Office, the Chairman of the Office for Technical Standardisation, Metrology and State Testing or a member of the Supreme Audit Office, as otherwise foreseen in Section 4a of the Act on Conflict of Interest. Where members of a government are involved, the framework of their limitation shall be laid down in Article 70 of the Constitution and it may also be difficult to imagine that a member of the government would have to participate in one of those media in order to communicate to the public information on the performance of his or her duties, for reasons of ownership or co-ownership, in a way that contradicts the performance of his or her duties. The contested provision thus limits the management of its own property in such a way that it forces public authorities to waive ownership of the ownership of the shareholding in a broadcasting or television company or issuing periodicals. If the legislator also had in mind that Members, Senators and Members of the Government are also members of political parties or political movements, this is another (and wider) issue that does not belong to the conflict of interest law.
15. However, from the point of view of the principle of necessity, according to which it is permitted, in relation to the fundamental rights and freedoms in question, to use only the most considerate of the multiple possible means, Article 4a (3) of the Act on Conflict of Interest to Article 11 (1) of the Charter is seemingly fair, but limits the management of its own property in such a way that, even in the context of the entire Article 4a of the Act on Conflict of Interest, it forces public authorities to waive ownership of the property.
16. Similarly, according to the appellant, the contested provision will not stand even in the light of the principle of proportionality, since the damage to the fundamental right must not be disproportionate in relation to the intended objective. It will be difficult to comply with this principle because it also includes television or radio broadcasters who do not broadcast anything other than music or educational programmes or publishers focusing on publishing exclusively professional periodicals.
17. The prohibitions in Sections 4b and 4c of the Act on Conflict of Interest consider the appellant to be contradictory to Articles 3 (1) and 11 (1) of the Charter in terms of appropriateness, since the ability of the legislation adopted to achieve the intended objective is essentially zero in view of the detailed arrangements for the procurement procedure. Moreover, Article 4b of the Act on Conflict of Interest does not directly affect the contracting authority of the contract but the tenderer. Similarly (principle of suitability of the used device) this applies to the positive regulation of investment incentives (§ 4b of the Act on Conflict of Interest). Not only Act 72 / 2000 Coll., on Investment Incentives and on the amendment of certain laws (Investment Incentives Act), as amended, and its implementing provisions, but a number of other legislation, including directly applicable European Union regulations (EU), apply to the assessment and decision on requests for investment incentives. Similarly, grants with a dedicated purpose for each chapter are contained in the State Budget Act for the relevant year, approved by the Chamber of Deputies, their provision is governed by budget rules, specific legislation or by internal normative instructions; the relevant independence of the Minister consists of issuing a standard instruction, which then announces subsidy programmes and the decision-making process for granting subsidies in specific cases, with requests being generally collectively and sometimes multi-stage. The source of a significant part of the subsidies is EU funds, their use is governed by extensive regulations and methodology, the respect of which is subject to multi-level control, including by the European Commission institutions.
18. The contested provisions of § 4b and 4c of the Act on Conflict of Interest do not even stand out from the considerations of necessity and proportionality, since the legislation adopted precludes a certain range of public procurement applicants, investment incentives or subsidies, thereby creating unreasonably inequality between companies. It is thus discriminatory for them and is disproportionate in terms of constitutional principles. At the same time, these provisions are clearly contrary to the international treaties by which the Czech Republic is bound, in particular Article 1 (1) of Protocol No 12 to the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '). This also applies to the contradiction with Article 21 (4) of the Charter, according to which citizens have access to elected and other public functions on equal terms, since they create a disproportionate situation with this provision where a citizen has to decide whether or not to become a member of a government, and then a trading company in which he has a stake, in a competitive environment, disappears with all the consequences associated with it, or ceases to be a member of a government, or remains a member of a government and transfers its share to another entity; However, the constitutional principle that the fundamental right can be restricted not only in the case of an extremely strong and duly justified public interest but also in the case of a thorough examination of the substance and the meaning of the restricted fundamental right, which is not provided for in this legislation.
19. Finally, the appellant points out that the legislation enshrined in Article 4b of the Law on Conflict of Interest is contradictory to the conclusions of the EU Court of Justice in Case C-376 / 08 Serrantoni Srl and Consorzio stable edili Scrl versus Comune di Milano, judgment of 19.5.2009 in Case C-538 / 07 Assitur Srl v Camera di Commercial, Industria, Artigianato e Agricoltura di Milano and, by analogy, judgment of 16.12.2008 in Case C-213 / 07 Miniguki AE v Ethniko Symvolio Radiotileorosis and Ypourgos Epicrateias (see also the argument by the intervener sub 39).
20. The reason for the annulment of § 9 (e) of the Act on Conflict of Interest (the obligation to notify media business) and Article II (6) and Article IV of Act No 14 / 2017 Coll. sees the appellant to remove the provisions dependent on the existence of § 4a of the Act on Conflict of Interest (the relevant transitional provision and complementary amendment of Act No. 231 / 2001 Coll., on the operation of radio and television broadcasting and on the amendment of other laws, as amended). The reason for the proposal to repeal Article II (1) of Act No. 14 / 2017 Coll. (amended transitional provisions) is in particular its link to the provision of § 4c of the Act on Conflict of Interest, which is the primary subject of the application for annulment.
21. The transitional provisions of the contested legislation call into question the trust in the law and legitimate expectations of its addressees, as well as the fact that, in relation to Article 4b of the Act on Conflict of Interest, Act No 14 / 2017 Coll. in contrast to Sections 4a and 4c of the Act on Conflict of Interest does not contain an adjustment in the transitional provisions, which means that if a commercial company in which the public office holder has a statutory interest, the contract tenderer before the date of entry into force of Law No 14 / 2017 Coll. This is probably a generally acceptable so-called false retroactivity, but it is also linked to the principle of legitimate expectations which has been violated by the adopted legislation.
The appellant's observations as intervener
22. The intervener, in her extensive letter of 3 May 2017, joined the appellant's proposal to repeal the above provisions (closer to sub 1 to 3), with the appellant acting as appellant in the application for annulment of Article VIII of Law No 14 / 2017.
23. The statement of the intervener must be divided into a fundamental argument in general calling into question the constitutionality of the contested provisions of the Act on Conflict of Interest, where its objections may include a breach of the constitutionally prescribed method of adoption of Act No. 14 / 2017 Coll., that is, infringement of Article 40 of the Constitution and the transparency of the legislative process. Another part of the argument is aimed at the unconstitutionality of the various contested provisions of the Act on Conflict of Interest or its amendment by Act No. 14 / 2017 Coll.
The course of the legislative process and its conflict with constitutional order
24. First, the intervener considers that Law No 14 / 2017 Coll. should have been adopted in accordance with the procedure laid down in Article 40 of the Constitution, since it regulates passive electoral law and, therefore, the law via fact electoral, and also that the legislative process which led to the adoption of the contested provisions was so untransparent and confusing that this procedure could not be regarded as constitutionally conformal. This problem concerns in particular the consideration of Bill No. 14 / 2017 Coll. in the Chamber of Deputies.
1. Failure to comply with the procedure laid down in Article 40 of the Constitution
25. According to the intervener, Law No 14 / 2017 Coll., inter alia, by means of the new § 4a of the Act on Conflict of Interests, has a fundamental effect on passive electoral law, since it newly provides for the incompatibility of the function of Member and Senator with the ownership or membership of a legal person who is an operator of radio or television broadcasting or a publisher of the periodical press. According to the intervener, by its content, Law No 14 / 2017 Coll. corresponds to the term "electoral law 'contained in Article 40 of the Constitution.
26. In the event of incompatibility of functions with the effect of the termination of the mandates of representatives of regional and municipal councils, the incompatibility of functions is regulated in the electoral laws of regional and municipal councils (see Sections 5 (2) and 48 (3) of Act No. 130 / 2000 Coll., on elections to regional councils and on amendments to certain laws, as amended, and Sections 5 (2) and 55 (3) of Act No. 491 / 2001 Coll., on elections to municipal councils and on amendments to certain laws, as amended). From the point of view of the internal interdependence of the rule of law and its logic, it is an unfounded material matter (incompatibility of functions) to regulate differently in the electoral law relating to members of the representatives [where the amendment of the law is subject to the consent of the two chambers of the Parliament of the Czech Republic (hereinafter referred to as "Parliament ')], compared to the regulation adopted in the otherwise called Law applicable to Members and Senators (the Act on Conflict of Interest), with the fact that perhaps only through a different name can the constitutional rule of compulsory approval of the electoral law be circumscribed in both chambers of Parliament.
27. If there is a provision in the law which affects the election and incompatibility of the chosen function, the constitutional requirement of the whole law [and not only the provision on incompatibility of the elected functions - cf. the finding of 22.6.2005 sp. zn. Pl. ÚS 13 / 05 (N 127 / 37 SbNU 593; 283 / 2005 Coll.)] is then a condition for its approval under the scheme of Article 40 of the Constitution, which provides for the mandatory approval of the Senate of the Parliament of the Czech Republic (hereinafter the Senate). Since this way of dealing with Act No 14 / 2017 Coll. was not included in the explanatory memorandum nor was it mentioned by the petitioner in the proceedings of the Chamber of Deputies and the Senate, this condition (for the approval of the Law in Article 40 of the Constitution) was not fulfilled, although the Senate agreed to the Act, but the Senators did not know that their approval was necessary. The fact that the Senate approved Act No 14 / 2017 Coll. can be regarded as a coincidence at most, but not a conscious approval of Act No 14 / 2017 Coll. under the regime of Article 40 of the Constitution by both chambers of Parliament. The Members and Senators clearly enjoy the entire duration of Act No. 14 / 2017 Coll. were not at all aware that it was an electoral law for which a special requirement is laid down in Article 40 of the Constitution. The intervener considers that this calls into question the legality and constitutionality of the entire process leading to the approval of Act No. 14 / 2017 Coll.
2. Confusion and non-transparency of the legislative process
28. In particular, the intervener describes in a comprehensive manner the course of the legislative process, stating that although the House of Deputies' guarantee constitutional legal committee recommended in its resolution of 2 September 2016 no. 248 certain order and voting arrangements on individual proposals, this order and voting arrangements were changed several times at third reading because of the overlap and incompatibility of the individual amendments, the vote on individual proposals eventually took place in a different sequence from that recommended by the Guarantee Committee. This inconsistency of the various amendments (on the basis of which the constitutional complaints of the contested provisions were accepted) and the resulting voting procedure with a pre-proposed vote made it impossible for Members to be fully oriented in the voting programme and in particular the resulting content of Act No. 14 / 2017 Coll.
29. The third reading voting procedure had to be modified "last minute" in an effort to systematize the vote on mutually incompatible amendments, but it is evident that Members did not have sufficient room to prepare for the vote properly. It is already evident from the proposals themselves to change the voting procedure that the modifications were so complicated that it was very difficult for the Members present to monitor these not only closely, let alone perfectly adapt them to the previously thought-out idea of which proposal to vote on. Clearly, the course of the vote was chaotic and confusing, and it could not be expected from an ordinary Member who did not actively put forward amendments that it was clear about what proposals, what specific text and in what context he was voting. Such a process makes it impossible to reconstruct the resulting text of Act No. 14 / 2017 Coll. And to verify that this is indeed an authentic text approved by the Chamber of Deputies and referred to the Senate. In particular, it is not clear at all how transitional provisions have been approved by the Chamber of Deputies. It is also a question of whether the Senators could have had a precise idea of the impact they would have had on Law No 14 / 2017 on the amendments they had approved (or not).
30. The procedure for voting on Act No. 14 / 2017 Coll. is therefore a classic manifestation of a natural norm, which the Constitutional Court has previously declared unconstitutional [the finding of 15.2.2007 sp. zn. Pl. ÚS 77 / 06 (N 30 / 44 SbNU 349; 37 / 2007 Coll.)]. In order to maintain compliance with the constitutional order, the intervener is, in the view, essential that not only the legislation but also the method of normomaking leading to its creation be adopted under conditions which guarantee that each legislator has a clear idea of the consequences for the resulting form of the law for or against individual proposals. It is only under such conditions that the legislator can carry out appropriate preparation and consideration which is indispensable to his subsequent decision-making, whether to vote in favour or against the adoption of the standard and to keep his promise to vote to the best of his knowledge and conscience.
3. General fundamental objections to the violation of fundamental principles of constitutional order in the law on conflicts of interest
31. According to the intervener, the contested provisions as a whole are contrary to the constitutional order of the Czech Republic, in particular the fundamental principles of the rule of law (Article 1 (1) of the Constitution), the principle of legal certainty, the protection of legitimate expectations and rights acquired in good faith and the principle of the rule of law, namely the requirement for the universality of legal regulation (and hence the principle of division of power). The legislation adopted is then contrary to the requirement to comply with the special procedure for approving the electoral law in accordance with Article 40 of the Constitution; Furthermore, with a constitutionally guaranteed principle that fundamental rights and freedoms are inalienable and irrevocable (Article 1 (1) of the Charter), obligations may be imposed on the basis of law only in respect of the respect of fundamental rights and freedoms and under the conditions laid down in the Charter (Article 4 (1)), and the principle that restrictions on fundamental rights and freedoms may not be abused for purposes other than those for which they have been established (Article 4 (4) of the Charter), and must be proportionate to the stated objective (Article 1 (1) of the Constitution). Furthermore, according to the intervener, the legislation adopted is contradictory to the constitutionally guaranteed principle of equality in rights and prohibition of discrimination (Article 3 (1) of the Charter and Article 14 of the Convention), as well as to the principle that no one may be harmed by the rights of the exercise of his fundamental rights and freedoms (Article 3 (3) of the Charter). All of this, in conjunction with Article 70 of the Constitution, results in a restriction on the constitutionally guaranteed right of ownership of property (pursuant to Article 11 (1) of the Charter and Article 1 (1) of the Additional Protocol to the Convention), the right to free enterprise (Article 26 (1) of the Charter) and the right to participate in governance and the right of equal access to public functions [Article 21 (1) and (4) of the Charter and Article 25 (c) of the International Covenant on Civil and Political Rights (hereinafter referred to as "the Pact ')]. This general and initial argument is then widely distributed in relation to the individual contested provisions.
32. The intervener repeatedly contends that Law No 14 / 2017 Coll. in the contested part almost exclusively lacks the character of universality, which is immune to the material democratic rule of law, since it imposes in the Act on Conflict of Interest, as amended, provisions regulating a unique case. This is an illustrative case of abuse of legislative power and violation of the principle of division of power, as it follows from the debate in the Chamber of Deputies and the Senate, as well as from the expression of Members and Senators in the media, that the contested provisions were directed exclusively against the interests of Ing. Andrei Babiš. This is also demonstrated by the selective and purposeful approval of the immediate effectiveness of Sections 4b to 4c of the Act on Conflict of Interest in a situation where the contested provisions affect one particular person and all legislators are well aware of this fact. Moreover, the purpose of Act No 14 / 2017 Coll. can also be seen from a public debate.
Intentionally non-conformal restrictions on the right to own property and the right to free enterprise
33. The contested provisions exceed, according to the intervener, the licence provided for in Article 70 of the Constitution, in particular because, instead of restricting the activities which public officials may carry out, they restrict their right to own the property and specifically harm the assets of public officials acquired before the performance of public office starts, and even other persons who are not public officials at all. The contested provisions also restrict the right of ownership of property under Article 11 of the Charter in a completely disproportionate manner, to a wide range of public officials, while in addition, in breach of the principle of equality in rights, they interfere with the peaceful use of property by public officials and other persons who are not public officials. In addition, the intervener refers to the findings of 1.2.1994 sp. zn. Similarly, the contested provisions interfere with the right of business under Article 26 of the Charter, referring to the findings of 14.2.2001 sp. zn. Pl. ÚS 45 / 2000 (N 30 / 21 SbNU 261; 96 / 2001 Coll.) and of 25.11.2003 sp. zn. I. ÚS 504 / 03 (N 138 / 31 SbNU 227).
34. According to the intervener, the new legislation contained in § 4a to 4c of the Act on Conflict of Interest constitutes a very serious interference in the business activities of commercial companies (hereinafter referred to as "the company concerned ') and in the right of their shareholders to hold assets. The legislation adopted thus invalidates the investments of the shareholders or shareholders of the companies concerned and (because of the impossibility of applying for public contracts, etc.) discriminates against this type of ownership. The contested provisions also affect the rights of third parties dependent on the addressees of the Act on Conflict of Interest, for example in terms of employment relations, as demonstrated by the intervener by the legislation on contributions to support the employment of disabled persons under Act No. 435 / 2004 Coll., on Employment, as amended.
35. Thus, the intervener considers that paragraphs 4a to 4c of the Act on Conflict of Interest with the elimination of a genuine conflict of interest on the part of public officials are very close and goes far beyond what would be necessary for such regulation. It seems more like a form of sanctions. In addition, compensation is a requirement for a constitutional restriction on ownership. However, this condition of an admissible restriction on ownership is not met in the present case, since the Act on Conflict of Interest, as amended, does not provide for compensation for the compulsory restriction on the right of ownership of public officials, let alone the other members of the companies and companies concerned themselves.
1. Discriminality of § 4a of the Conflict of Interest Act in relation to the objective pursued
36. Paragraph 4a of the Act on Conflict of Interest cannot, according to the intervener, be regarded as appropriate to the stated objective, i.e. to avoid conflicts of interest on the part of public officials. First and foremost, the restriction of property rights cannot be based on Article 70 of the Constitution, as this allows for the limitation of certain activities of the public office in question, but not its ownership rights. Nor is the restriction of ownership on the basis of the need to protect the public interest, since the link with the protection of the public interest has not been explained in any way, let alone satisfactorily, as it prohibits the ownership of media that have no objective real influence on political events (such as motor magazines) and, on the contrary, avoids the regulation of such media which are currently the most influential, namely electronic media, whether by Internet television, news servers or social networks. The mere inadequacy of the prohibition introduced can then also be documented on the fact that while a public official must not own the media, for example, political parties and movements can own it. Therefore, Article 4a of the Conflict of Interest Act is in no way proportional to the alleged objective of avoiding conflicts of interest when it is not clear which conflict of interest should be involved, the provision focuses only on a narrowly defined segment of the media and therefore does not actually address this hypothetical conflict of interest and goes far beyond the limits necessary to ensure that the public office holder has no influence on the relevant media.
2. Discriminality of Sections 4b and 4c of the Act on Conflict of Interest in relation to the objective pursued in Article 70 of the Constitution
37. The basic attributes of § 4b and 4c of the Act on Conflict of Interest are, according to the intervener, the fact that they completely deviate from the limits of the possible regulation of the conflict of interest laid down in Article 70 of the Constitution, since they significantly restrict entities completely different from the public office, and specifically harm their assets and business activities. They also indirectly harm the public authorities themselves, as they deliberately harm the assets of companies in which the public office has a direct or indirect stake. At the same time, the companies concerned, let alone their other shareholders, are unable to influence who and to what extent they hold shares in their capital. A public official may not even be a controlling person - a minority share of more than 25% is sufficient, as well as a share held indirectly by a public official; they are thus penalised for having, directly or indirectly, a person who decides to hold a public office and thus exercising his constitutional guarantee of the right to participate in governance and equal access to public office (Article 21 (1) and (4) of the Charter). This also brings Articles 4b and 4c of the Act on Conflict of Interest into conflict with Article 3 (3) of the Charter.
38. Inadequacy, inadequacy and inadequacy of the legislation in question for the fulfilment of the constitutional licence referred to in Article 70 The Constitution also results from the fact that the prohibitions contained in Sections 4b and 4c of the Act on Conflict of Interests are flat-rate and fully reflect the question of whether or not a conflict of interest in relation to a given public contract or subsidy can at least materially arise. Paragraph 4b of the Act on Conflict of Interest prohibits participation in procurement procedures, whether by contracting authorities or by private entities which award sectoral or subsidised contracts. The fact that the public office holder had nothing to do with these entities was completely abandoned by the legislator.
39. According to the intervener, Act No 134 / 2016 Coll., on Public Procurement, as amended, (hereinafter referred to as "the Public Procurement Act ') in § 44 and the subsequent provision of § 48 (5) (b) contain strict rules on the exclusion of conflicts of interest in relation to public procurement. This Regulation shall be binding in its entirety and directly applicable in all Member States. These Directives therefore no longer provide Member States with the possibility to extend the grounds for excluding suppliers from participation in procurement procedures. In addition, the intervener submits that, since Article 4b of the conflict of interest Act manifestly prohibits participation in the procurement procedure even in cases where any conflict of interest is excluded, it is manifestly contrary to the principle of proportionality and to the primary objective of the directives, which is to ensure the widest possible participation of tenderers in the procurement procedure. These are provisions which would not be considered Euroconformal or according to earlier directives (see Case C-226 / 04 and C-228 / 04 La Cascina Soc. coop. arl and Zilch Srl v Ministero della Difesa and Others and Consorzio G. F. M. v Ministero della Difesa and La Cascina Soop. arl; Case C-213 / 07 Mikhoki AE v Ethniko Symvolio Radiotileorosis and Ypourgos Epikrateias; of 23 December 2009 in Case C-376 / 08 Serrantoni Srl and Consorzio stable edili Scrl v Comune di Milano and of 19 May 2009 in Case C-538 / 07 Assitur Srl v Camera di Commercial, Industria, Artigianato e Agricoltura di Milano).
Denial of the right to participate in governance, equal access to public functions and the principle of equality in rights
40. The intervener contends that persons who, at the time of the contested provisions, hold public office or decide to accept such a post are faced with a very fundamental dilemma as to whether to immediately dispose of their shares or shares in companies which could be adversely affected by the arrangements contained in Sections 4b and 4c of the Act on Conflict of Interest or to waive the possibility of exercising their right of access to public office. This is contrary to Article 21 (1) and (4) of the Charter and also to Article 25 (c) of the Pact [to this effect, for example, the finding of 30 April 2002 sp. zn. In addition, it is a legislation aimed at combating a particular person in order to ensure that he or she leaves his or her post immediately and, if not, to suffer property damage (see in detail below).
41. As regards the principle of equality in the rights of the intervener, it states that it is aware that there may be cases where the holder of the constitutional rights in their performance is limited as a result of less favourable treatment, where there is an objective and reasonable reason for that and where proportionality is given between the objective of such treatment and the means by which it is to be achieved [cf. úS 12 / 06 (N 121 / 50 CollN 31; 342 / 2008 Coll.]. However, this is not the case with the contested provisions which deny the possibility of exercising simultaneously the right of ownership of the property and the right to exercise public office in a way which is wholly disproportional to the objective pursued. Since the distinction criterion which distinguishes persons in terms of the conditions under which they can exercise their right of access to public functions is the kind of property which they possess, this is a prohibited discriminatory ground within the meaning of Article 3 (1) of the Charter and Article 14 of the Convention, and thus, according to the intervener, a case of direct discrimination.
42. For the purposes of assessing direct discrimination, a test which was clearly formulated by the Constitutional Court in its finding of 28 January 2014 sp. zn. The interveners in the individual steps of the test state that, in the light of comparability, the persons seeking public office are compared in the present case and have fulfilled all the conditions to be able to hold that office. The prohibited grounds of discrimination are demonstrably calculated in Article 3 (1) of the Charter and Article 14 of the Convention, both of which include property as one of the grounds for distinction. That is the reason for the exclusion being applied in the contested provisions. In the third phase of the test, it is examined whether the different treatment (exclusion) constitutes a disadvantage for the persons concerned either in the form of a denial of good or in the form of a imposition of a burden. The public officials targeted by the contested provisions are therefore limited in the exercise of their fundamental right to hold assets and rights to participate in the administration or access to public functions, as the intervener stated above. The legal provisions in question do not constitute an arrangement that could be justified by the public interest (justification of intervention), which applies to the whole of the inequality in rights. Therefore, the intervener concludes that there is unjustifiable direct discrimination against public officials in the present case.
Opposition of the transitional provisions of Act No. 14 / 2017 Coll. with the fundamental principles of the rule of law
43. According to the intervener, Articles 4b and 4c of the Act on Conflict of Interest, in conjunction with the transitional provisions contained in Article II (1) and (6) and Article VIII of Law No 14 / 2017 Coll. are in direct conflict with the fundamental principles of the rule of law (Article 1 (1) of the Constitution), in particular the principle of legal certainty and predictability of law, the protection of legitimate expectations, the rights acquired in good faith and the rule of law, including the requirement for the general nature of the law. This is due to the fact that these provisions have become effective practically immediately without, on the one hand, providing the direct and indirect addressees of those laws concerned sufficient space to adapt their circumstances to the new legislation without causing significant harm on their part, and, on the other, that, instead of general legal regulation, they are a legal standard approved to exclude a very specific person from the exercise of public office or at least cause harm to that person if he continues to act as a public office.
44. As regards the principle of legal certainty and the predictability of the rights of the intervener, it states that, although Law No 14 / 2017 Coll. as a whole has only entered into force on 1 September 2017, the contested provisions become effective on the 15th day following their publication (i.e. from 9 February 2017 - note of the Constitutional Court). It is evident that this is not only a legiskation period [to this comparison, for example, the finding of 21 March 2011 sp. zn. I. ÚS 1927 / 09 (N 50 / 60 SbNU 593)] too short, but also intended and arbitrarily set so that a very specific public office and a very specific group of companies concerned, including their other members, are damaged as much as possible. The legislature has completely misused the Legiskation period as an instrument of political rivalry, a procedure incompatible with the principles of the democratic rule of law.
45. To intervene in the legitimate expectations [cf. the finding of 3 June 2009 sp. zn. I. ÚS 420 / 09 (N 131 / 53 SbNU 647) or § 173 and 179 of the European Court of Human Rights judgment in the Centro Europa 7 S.R.L. and Di Stefano v Italy of 7 June 2012 No 38433 / 09 or § 73 in the case of Gratzinger and Gratzinger v Czech Republic of 10 July 2002 No 39794 / 98] and the rights acquired by the intervener in good faith indicate that the public authorities have accepted the appointment in good faith in the law, including the law on conflicts of interest. However, through virtually immediately effective provisions of § 4b and 4c of the Act on Conflict of Interest, there is a change in the "rules of the game 'in the course of the performance of their duties, when, from one day to the next, these officials are forced to adapt their property ratios to enable them to continue their public functions. The amendment in the form of Act No 14 / 2017 Coll. puts public officials in a situation where they are forced to decide whether to dispose of a part of their property (in some cases very substantial) or whether they will continue to retain these rights and cause damage to the companies concerned and indirectly to their shareholders. The amendment acts de facto retroactively when it now" sanctifies "the parallel exercise in the past acquired ownership of a public office for a business or shares and in the past adopted public functions, which is inadmissible [cf. the findings of 8.6.1995 sp. zn. IV. ÚS 215 / 94 (N 30 / 3 SbNU 227); of 18.12.2007 sp. zn. IV. ÚS 1777 / 07 (N 228 / 47 SbNU 983) or of 12.11.2013 sp. zl. ÚS 22 / 13 (N 185 / 71 SbNU 221; 22 / 2014 Sb.]. It is a question of whether the public officials concerned would have taken up their current duties at all if the contested provisions had been in force at the time of their accession. The legislation adopted can be seen as a kind of" legislative trap' to deprive these individuals of either public office or part of their property. The legislative amendment thus designed, according to the intervener, is incompatible with the constitutional principles of the Czech Republic. At the same time, this is a regulation that public officials could not have foreseen at the time of taking up public office, since it was not contained in the legislation and there was no draft law that contained it.
46. For all the reasons set out above, the intervener joined the proposal of the President of the Republic as the applicant and, at the same time as the individual applicant, also proposed the repeal of Article VIII of Act No 14 / 2017 Coll.
Complement of observations by interveners of 20.12.2019 and 23.1.2020
47. On 20 December 2019, the intervener supplemented its comments on the proposal and responded to the conclusions of the European Commission's audit report on the compliance of the management and control systems for the management of European Structural and Investment Funds in the Czech Republic with the legislation on measures to avoid conflicts of interest (as it is available in the media in English as Final AUDIT REPORT. Audit No. RegC414CZ0133 - e.g. https: / / www.respect.cz / policy / vejnejnejem-cely-babisuv-audit-plati-stret-zajm- i-embargo-na-subvention- hereinafter referred to as the "Audit Report '. Subsequently, by its submission of 23 January 2020, it developed its argument on the problems of transparency of the legislative process and on the interpretation of the provisions of Sections 4b and 4c of the Act on Conflict of Interest.
48. In addition to its comments on the proposal, the intervener briefly summarized the conclusions of the Audit Report that, in their view, the companies forming AGROFERT Group, the manager of which is AGROFERT, a.s., is subject to a subsidy ban under § 4c of the Act on Conflict of Interest, as the entire AGROFERT Group is, in the view of the European Commission, controlled, albeit indirectly, through the trust funds AB private trust I, Trust Fund, and AB private trust II, trust fund, public office officer, namely Prime Minister of the Czech Republic Ing. Andrej Babiš. The European Commission has thus concluded that any subsidies granted by the Czech Republic in breach of Section 4c of the Act on Conflict of Interest to companies belonging to the AGROFERT Group will not be reimbursed 100% from the European Structural and Investment Funds, provided that they have already been reimbursed, being recovered from the Czech Republic. The intervener pointed out that, according to the Audit Report, it is not enough that Ing. Andrei Babiš, as Prime Minister, temporarily gave up his property. Therefore, the findings of the audit carried out by the application of Article 4c of the Act on Conflict of Interest are an example of the fact that it is a provision in direct conflict with the constitutionally guaranteed rights, namely the right to own property pursuant to Article 11 (1) of the Charter and Article 1 (1) of the Additional Protocol to the Convention and the right to equal access to public functions under Article 21 (4) of the Charter, as already stated in its observations of 3 May 2017 (the same was raised by Article 4b of the Act on Conflict of Interest). If the above-mentioned interpretation, to which the European Commission acceded, would have to be sold and transferred to a third party by AGROFERT companies of tens of billions of CZK, virtually immediately, so that they would not be exposed to immediate economic damage (by stopping drawing subsidies, not being able to apply for public contracts regardless of their size and the contracting entity's person, etc.) given by the appointment of their former, direct or indirect shareholders, a public office. In view of the size of the group, this possibility cannot be realistically considered at all. According to the European Commission, the application of the provisions of § 4c of the Act on Conflict of Interest does not depend at all on whether there is a real risk of conflict of interest, as it only sets out the conditions under which it is prohibited to grant a subsidy to a group of commercial companies and thus limits their access to public funding. However, the European Commission itself states that the contested provision of Paragraph 4c of the Conflict of Interest Act appears to be very strict. In essence, the audit report says that there is no way, at the same time (forever), not to lose previously acquired assets in the form of shares in companies (or not to damage these corporations economically) and to perform public functions at the same time. In fact, the waiver of these shares for the duration of the term of office (including the abandonment of membership of the statutory and supervisory body, together with the transfer of asset management in the form of shares to an independent trustee) is designated by the European Commission as acting for purposes in order to comply with § 4c of the Act on Conflict of Interest and therefore, in the European Commission's view, as being immoral and invalid. In other words, a person who does not sell all of his qualifying shares in commercial corporations cannot accept public office without the risk of causing serious economic harm to the corporations concerned, although the term of office of the relevant public office holders is not pre-established, is not guaranteed (unlike, for example, judges) and may theoretically take a very short time.
49. According to the intervener, it is thus evident that Article 4c (and, consequently, Article 4b) of the Act on Conflict of Interest according to the interpretation of the European Commission, under the threat of unjustified economic damage to third parties who do not have to control the public office, de facto prevents persons holding shares in commercial corporations from exercising their right to participate in governance within the meaning of Article 21 (4) of the Charter. Those provisions as non-constitutional should therefore be repealed by the Constitutional Court. The intervener therefore persists also in view of the abovementioned consequences of the Audit Report on the petition of its proposal of 3 May 2017. At the same time, it proposed that the Constitutional Court should order the Ministry of Regional Development to submit the Czech translation of the Audit Report (see sub 243).
50. The subsequent submission by the intervener of 23 January 2020 follows, as mentioned above, the extension and deepening of its argument in two directions. On the first level, the argument follows what was mentioned in sub IV. (a) 2. to confusion and non-transparency of the legislative process. Here, a intervener based on the debate of frequently cited materials (Legislation on the conflict of interests of Members and other public officials. Comparative study 1.159. The Parliamentary Institute 2016, and the Limitation of Members of the Government to perform certain activities during the duration of the Government's function and the Declaration of Members of the Government to Defend Conflict of Interest. Comparative studies No 1.233. The Parliamentary Institute 2016) argues that the Austrian law is misstated, which shifts its meaning. It further argues that it does not state that the Austrian rules provide for exceptions to public procurement bans if the proper performance of the function is ensured by means of "the appropriate preventive measures' (note - by means of a translation by the intervener).
51. Another objection, once again based on the argument of the Austrian regulation, underlines that there is no equivalent to § 4c of the Act on Conflict of Interest, as well as that the other terms used there are narrower than, according to the intervener, widely distributed in § 4c, so that there is no basis for this provision in the Austrian regulation. A similar objection was raised as to how this model was extended in Section 4b of the Act on Conflict of Interest to the detriment of public officials. It should be noted that this argument is already contained in the intervener's observations of 3 May 2017, but is now supplemented by an aspect of the defective translation and expanding use of the Austrian model in the direction of stricter and disproportionate adjustment.
52. The intervener therefore concludes that the contested provisions of Sections 4b and 4c of the Act on Conflict of Interest have a completely opposite effect to the ordinary legal standards governing conflicts of interest and cannot therefore be regarded as preventing its formation, since it neither solves the issue of conflict of interest, but completely deviates from the limits of constitutionality when it does not conserve its substance and meaning when limiting fundamental rights. Therefore, it will stick to its proposal (see sub 2, 46).
Comments of the parties to the application under Article 69 of the Constitutional Court Act
53. The Judge-Rapporteur, in accordance with the procedure laid down in Paragraph 69 (1) of the Law on the Constitutional Court, as amended by Act No. 18 / 2000 Coll., has requested the parties to the proceedings, which are the Chamber of Deputies and the Senate. The resolution of 28 March 2017 sp. zn.
54. On behalf of the Chamber of Deputies, its President Jan Hamáček, who responded to the intervener's objections by giving a detailed description of the course of the discussion of the draft law in question. He pointed out that the contested provisions were not included in the proposal submitted by the Government, but were only added to the draft law when negotiating in the Guarantee Committee and when negotiating at second reading, which is in accordance with Sections 92 (1) and 94 (1) of the Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended ("the Act on the Rules of Procedure of the Chamber of Deputies'). The House of Deputies has repeatedly held a comprehensive debate on them, as contained in the stenoprotocols on the debate of the House of Deputies No 564 of the House of Deputies of the VII parliamentary term. The procedure for voting on individual amendments at third reading points to the fact that the draft law was discussed at second reading on 29 June 2016 (the file of amendments tabled was circulated on 1 July 2016). The Chamber of Deputies voted on amendments and draft laws at third reading on 14 September 2016. Thus, there was a period of two and a half months between the second and third readings, when each Member had the opportunity to examine the amendments tabled and decide on how they would be put to the vote (the minimum period laid down in the Chamber of Deputies' Rules of Procedure is 14 days). Paragraph 94a (1) of the Rules of Procedure of the Chamber of Deputies requires, inter alia, the Guarantee Committee to propose, after second reading, to the Chamber of Deputies in what order it should vote on the amendments tabled. The resolution of the Guarantee Committee is a recommendation, not a binding procedure for the Chamber of Deputies. Members may comment on the proposed procedure at third reading and propose amendments thereto. The order in which the amendments tabled are put to the vote shall be determined by the Chamber of Deputies. Moreover, it is clear from the speeches by Vlastimil Vozka, Radek Vondráček and Jeroným Tejka when discussing the draft law at third reading that changes in the voting procedure proposed by the Guarantee Committee were discussed and discussed sufficiently in advance of their formal submission at third reading. The President of the Chamber of Deputies concludes that it is up to the Constitutional Court to examine the constitutionality of the contested provisions in the context of the proposals submitted and to give a decision.
55. In the Senate's observations of 27 April 2017, its President Milan Štět also described in detail the legislative process of approving Act No. 14 / 2017 Coll. in the Senate. In the debate when discussing the draft law, the promotion of the ban on media entrepreneurship by political officials in § 4a of the Act on Conflict of Interest was in principle clear. It expressed views that media control would undermine equal competition between political entities, which is the very basis of the concept of democracy, and that a political officer should certainly not control the media, while it is not a disproportionate breach of the right to business or profession, for which the so-called reservation of the law under Article 41 of the Charter applies and with the support of Article 70 of the Constitution or Article 44 of the Charter, so that the prohibition in question is acceptable. On the contrary, the debate in the Senate has no longer affected the assessment of the other possible constitutional limits of the prohibitions and restrictions in question, such as the right of citizens to have access to elected functions (Article 21 of the Charter), which is a fundamental right which is guaranteed without distinction of property. There was also a possible conflict with the protection of property rights (Article 11 of the Charter). The Senate decided by voting on amendments by adopting the proposals recommended by the Constitutional-Legal Committee (and by the other committees) - two amendments of a more or less legislative-technical nature - and did not accept the amendments of individual senators. The Senate then decided to return the draft amendment to the Chamber of Deputies with amendments. It did so properly in the constitutional deadline at its 28th meeting (10th term) by Resolution No 551 of 19 October 2016, when in vote No 17 of the 69 senators present voted in favour of its approval by 61 senators, 3 and 5 of the senators present abstained. According to its President, the Senate discussed the draft law No 14 / 2017 Coll. within the limits of the Constitution of the established competence and the constitutional procedure. It is for the Constitutional Court to assess the constitutionality of the draft contested provision and to rule.
56. The Judge-Rapporteur also sent applications for annulment of the provisions in question in accordance with the procedure laid down in Article 69 (2) of the Law on the Constitutional Court, as amended, to the Government and under Article 69 (3) of the Law on the Constitutional Court, as amended, to the Ombudsman. By letter dated 7 April 2017, the Ombudsman informed the Constitutional Court that she would not use the right to intervene. The Prime Minister also informed the Constitutional Court by letter dated 24 April 2017, referring to Article 77 (1) of the Constitution, that the Government had failed to reach a consensus on the necessity and appropriateness of its procedural participation in the present proceedings and therefore did not exercise the right to intervene.
Abandonment of oral proceedings
57. The Constitutional Court concluded that further clarification of the case could not be expected from oral proceedings, and therefore, in accordance with Paragraph 44 of the First Law on the Constitutional Court, as amended, it abandoned it.
Proceedings before the Constitutional Court
58. The Constitutional Court finds that the procedural conditions of the procedure are met. Both proposals (see Sub-1 to 3) were submitted by actively legitimate bodies, i.e. the President of the Republic and a group of 44 Members of the Chamber of Deputies [§ 64 (1) (a) and (b) of the Law on the Constitutional Court], and the Constitutional Court is competent to discuss this proposal [Article 87 (1) (a) of the Constitution].
59. The Constitutional Court, pursuant to Article 68 (2) of the Law on the Constitutional Court, as amended by Act No 48 / 2002 Coll., first examined whether the contested legal provisions were in accordance with the constitutional order, namely (a) whether the contested legislation was adopted and issued within the limits of the constitutional powers laid down by Parliament, (b) whether the constitutionally prescribed method of acceptance or extradition had been complied with, and (c) whether the contested legislation was in conformity with the constitutional order in terms of content.
60. The appellant's arguments, as well as the intervener's observations, are particularly opposed to the alleged interference in the constitutionally guaranteed rights of a public office worker - a member of the government as owner and entrepreneur, although they also refer to other public officials to abolish the proposed § 4a of the Conflict of Interest Act. However, despite this argument, the appellant does not require the issue of a range of cancellations by which the Constitutional Court should state that the alleged non-constitutionality of the contested provisions of the Act on Conflict of Interest applies only to members of the Government or its President and therefore only to them and not to other persons referred to in Article 2 (1) of the Act on Conflict of Interest. Therefore, the personal application of the contested provisions had to be treated as defined and not merely based on the arguments put forward by the parties. The fact that, in this legal situation, the appellant has appointed a person in the position of Prime Minister whose "activity '(in the sense of the necessary clarification of Article 70 of the Constitution) was an immediate incentive to adopt the contested legislation, to the extent of the review of Article 4a of the Act on Conflict of Interest, cannot change anything.
61. The appellant also requests, as part of his proposal, the annulment of Part Three of Act No. 14 / 2017 Coll., namely Article IV thereof, amending certain provisions of Act No. 231 / 2001 Coll., on the operation of radio and television broadcasting and amending other laws, as amended. The amendment to the legislation does not have a separate regulatory existence as it becomes part of the amended legislation, which is the carrier of the normative content [see for example the findings of 8.10.1996 sp. zn. Pl. Pl. Pl. The amendment itself may be subject to review in proceedings before the Constitutional Court only if, in the proceedings for the control of standards, the grounds for the absence of standard competence or the breach of the constitutionally prescribed procedure of law [see in particular the findings of 2.10.2002 sp. zn. Pl. ÚS 5 / 02 (N 117 / 28 SbNU 25; 476 / 2002 Sb.), of 18.8.2004 sp. zn. Pl. ÚS 7 / 03 (N 113 / 34 SbNU 165; 512 / 2004 Sb.), of 2.4.2013 sp. Pl. ÚS 6 / 13 (N 49 / 69 SbNU 31; 112 / 2013 Sb.]. It should therefore be noted that only a review of the constitutionality of the procedure for the adoption of Act No. 14 / 2017 Coll., separately addressed by the Constitutional Court in terms of content, could have had an impact on these provisions because the provisions of Part Three of that Act merely amend the text of another Act, namely Act No. 231 / 2001 Coll. This fact led to the appellant's proposal being rejected in this part because of its apparent unfounded nature (see point II of the operative part of that finding), in conjunction with Section 43 (2) (b), in conjunction with Section 43 (2) (a) of the Law on the Constitutional Court, as amended, and Article 1 (2) (b) of the Constitutional Court's decision of 25 March 2014 (Communication No 52 / 2014 Coll.).
62. For the sake of completeness, it should be added that in the meantime the Act on Conflict of Interest was amended again by Act No. 112 / 2018 Coll., amending Act No. 159 / 2006 Coll., on Conflict of Interest, as amended. This amendment did not affect the contested provisions of the Act on Conflict of Interest, so the proposal must be considered admissible under § 67 and the contrario of the Law on the Constitutional Court, as amended by Act No 48 / 2002 Coll., and there is no reason to stop the proceedings in the case under § 68 of the same law. The opening of the legislative process in the matter of press No 565, i.e. the Government's draft law on lobbying, and press No 566 of the draft law amending certain laws in the context of the adoption of the Law on lobbying on 21 August 2019 (Chamber of Deputies, VIII. Elections), was not evaluated by the Judge-Rapporteur in such a way that he would have to wait for its outcome, even if they differ in substance; a public office is not to decide on matters of its personal interest (a law on conflicts of interest), whereas other interests are to be decided only by a lobbyist under statutory conditions.
Review of the procedure for the adoption of the legislative provision under review
63. The Constitutional Court pursuant to Paragraph 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., first examined whether Law No. 14 / 2017 Coll. was adopted within the limits of the Constitution established competence and by a constitutional procedure.
Evaluation of the constitutionality of Act No. 14 / 2017 Coll. from the point of view of defining legislative powers and constitutionality of the legislator's procedure
64. The observations of the two chambers of Parliament, the annexed annexes and the relevant stenographic records (available at www.psp.cz) indicate that the draft of the contested law was submitted to the Chamber of Deputies by the Government (as House Press No. 564 / 0). The proposal went through three readings in the Chamber of Deputies (first reading on 16 December 2015 at the 36th session of the VII parliamentary term, second reading on 29 June 2016 at the 48th session and third reading on 14 September 2016 at the 49th session), which gave its consent, when of the 182 Members and Members in favour of the proposal voted 135 were against.
65. On 26. 9. 2016, the bill was passed to the Senate (Senate Press No. 335 / 0), which at the 28th meeting of the 10th term of office discussed it and returned to the Chamber of Deputies with amendments, with 61 votes in favour of 69 senators and senators present, with 3 and 5 abstentions. The bill approved by the Senate was voted on in the Chamber of Deputies on 29 November 2016 at the 53rd meeting with the result (Resolution 1427 of the Chamber of Deputies) that of the 174 Members who applied for it voted in favour of 125, against 42. This fulfilled the requirement of Article 47 (2) of the Constitution [see sub-paragraph VIII (b) below for details and objections of the intervener].
66. The President of the Republic, to whom the law was delivered for signature on 5 December 2016, returned it to the Chamber of Deputies on 19 December 2016 with observations (Document No 564 / 15). The vote on it took place at the 54th session of the Chamber of Deputies, held on 10 and 11 January 2017, with 185 Members voting in favour of the adoption of Bill 129, against. 49 The Act was published on 25 January 2017 in the Collection of Laws.
Objection to infringement of Article 40 of the Constitution
67. The intervener in connection with the procedure for the adoption of Act No. 14 / 2017 Coll. contends (see Sub 25 to 27) that it was a material electoral act within the meaning of Article 40 of the Constitution, and although the Senate approved the draft law (with amendments), the Senators did not know that their consent was necessary for the adoption of such a law. According to the intervener, this should have been pointed out at the very beginning. The fact that it was a material electoral law, the appellant concludes that the right to vote also includes the issue of the termination of the mandate of Members and Senators in view of the incompatibility of functions (Section 5 (3) of the Act on Conflict of Interest), and consequently the conflict of interest, and that, in some cases, the issue of conflict of interest is covered by the electoral law.
68. The control of constitutionality takes place on the basis of the coherence of the rule of law and the hierarchical construction of its sources, whereas electoral law as a complex sector falls within the system of law and includes all the legislation of the election. Therefore, the term "electoral law '(as one of the elements of the rule of law) used in Article 40 of the Constitution cannot be identified with any (each) regulation of the implementation of elections, but only with what links the constitutional order to the election as a process of implementing the right to self-organisation of the rightholders in the form of the establishment of representatives of the people (Article 2 (1) of the Constitution) or representatives of the territorial Autonomous Community (Article 100 (1) of the Constitution). It is therefore an adjustment to the procedure whereby Members, Senators and Representatives are appointed by way of election to their duties and, since 2012, the President of the Republic (Article 54 (2) of the Constitution). It is a normative (not descriptive) concept, which has exactly the meaning that the Constitution attaches to it. Another (extensive) interpretation of what is an election would mean that, despite the long-term discussions and attempts to amend Article 40 of the Constitution," electoral law "could be regarded as anything related to elections. In fact, this would mean that all the implementing regulations issued under the individual electoral laws are unconstitutional, since, according to the intervener, the election arrangements are to be implemented only (a) by law and (b) by one which requires the assent of the two House of Parliament. In addition, this procedure would be necessary for the adoption of laws governing the jurisdiction, the territorial division of the State, the registration of the population, the name and surname, the protection of personal data, the publication of electoral results by the electoral authorities, criminal and criminal penalties, other acts of public interest, the organisation of the judiciary, the Law on the Constitutional Court, etc. The teleological interpretation of the law must correspond to the nature of the material regulated by it, which is the creation of representative bodies. The idea that legislators should spend most of their time conducting disputes of this kind, as a result of such a vague design, is beyond the notion of a rational legislator, namely the legislator, especially when such an adjustment was adopted at a time when there were still lively disputes about the interpretation of the scope of the prohibition of majorisation for the vote of both parts of the House of Nations of the Federal Assembly (Article 42 (2) of Constitutional Law No. 143 / 1968 Coll., on the Czechoslovak Federation, as amended).
69. It is therefore not necessary to refer back to the finding of the Constitutional Court of 22.6.2005 sp. zn. Pl. ÚS 13 / 05 (N 127 / 37 SbNU 593; 283 / 2005 Coll.), which repealed Act 96 / 2005 Coll., which amended Act No 238 / 1992 Coll., on certain measures relating to the protection of the public interest and on the incompatibility of certain functions (the Act on Conflict of Interest), as amended, in which the (only and only) question of whether the procedure laid down in Article 40 of the Constitution for the "Election Act 'should also apply to laws with a subject other than elections, but which are amended by electoral laws. From this, without any convincing justification, the intervener concludes that, in view of Article 5 (3) of the Act on Conflict of Interest, the whole of the Act should have been approved by this stricter procedure and that even Members and Senators were not aware of this fact (see in particular Sub 27 and 30). It can be said that the Senate voted on the draft act on conflicts of interest in the context of a situation that preceded a lengthy discussion on this issue for several months, at the same time a constitutional dispute was waged between the two chambers of Parliament before the Constitutional Court. Finally, if the Senate decided not to vote on the bill at all (see Resolution 377 on Senate Press No. 266 at the 10th meeting of the Senate's 5th term of office on 10 March 2006), it cannot be considered, after consideration of the circumstances, that it did so by not knowing that Article 40 of the Constitution, which prohibits the adoption of such a resolution (that is to say, the expression of the will not to be dealt with) was not in place. In the case of a" electoral law', Article 40 of the Constitution applies to the fulfilment of the conditions for its validity, but does not determine the consequences for its binding (and legal strength), as is apparent for the constitutional laws of Article 9 (1) in conjunction with Article 39 (4) of the Constitution. According to the legislator, in this case it is not enough to simply point out what law it is, but also to describe it as a "constitutional law." The intervener's objection thus lacks constitutional support.
70. Finally, the statement of objections by the intervener would lead to a fatal conclusion that the adoption of a conflict of interest law in 2006 was already burdened by such a substantial procedural error that it would be necessary to abolish not only its contested provisions in the present proceedings, but that law as a whole, since from the outset an invalid law cannot be validated by amendments that are already adopted in force. The Law on the Constitutional Court, as amended, does not provide for any period of time for the possibility of challenging the law for the reasons set out in Paragraph 68 (2) and does not make any distinction between objections to the deficiencies in the jurisdiction, procedure or content of the contested law, which is the difference from § 12 of Act No. 162 / 1920 Coll., on the Constitutional Court, where a period of three years has been established since the date on which the law on which it is under review was declared.
71. Paragraph 5 (3) of the Act on Conflict of Interest does not, however, refer to the conditions of selectivity, but to the conditions for subsequent (after acquisition) performance of the mandate. Without the election (i.e. its acquisition pursuant to Article 19 (3) of the Constitution), it would not be possible to talk about any function and therefore any incompatibility with its performance, as the provision currently cited does. There is therefore a difference between the regulation of elections or elections, as required by the Constitution in Articles 17 to 20 for parliamentary elections, and between parliamentary law, which includes, as a broader term, electoral law. Parliamentary law also includes, as part of it, the creation of a parliamentary or senatorial mandate (regulation of their election) and the legal status of its holder, which is much broader but not identical to the terms of such status, since the provision to office is only one of a number of elements of the legal status of a Member, a senator, a president or a representative, as well as other public officials referred to in Article 2 (1) of the Conflict of Interest Act. The legal status of a public official (here elected by the people or the local community of citizens) may be regulated in the Rules of Procedure, but also in the special law on Members, in the municipal or regional constitution, and not only in the electoral law, which foresees Article 40 of the Constitution, in conjunction with, in particular, Articles 17 to 20 of the Constitution (by way of their model of Article 56 to 58 of the Constitution in the case of the President's election).
72. The law on the incompatibility of functions in terms of its constitutional structure does not, although both areas of legal regulation are closely related and are also regulated in the same Act (see, for example, Section 5 of Act No. 130 / 2000 Coll., on elections to regional councils and on amendments to certain laws, as amended, Section 5 of Act No. 491 / 2001 Coll., on elections to municipal councils and on amendments to certain laws, as amended); In such a case, the procedure provided for in Article 40 of the Constitution must, of course, be applied in accordance with the findings of the findings of the decision of the sp. zn. The concept of election law of de constitutione lata falls within the concept of election law (after the election, the designation of an elected body, the number of members elected by it, the organisation of elections, the scope of judicial review of these issues (cf. Articles 15 (2) to 20 of the Constitution, Article 20 of the Constitution, however, is primarily of the normative importance of the reservation of the law for the regulation of those issues and of the reservation of the consent of the Senate). Only part of these questions are regulated by the electoral law (cf. § 1 paragraph 1 of Act No. 247 / 1995 Coll., on the elections to Parliament of the Czech Republic and on the amendment and addition of some other laws, as amended by Act No. 204 / 2000 Coll.), because, in particular, the importance of the elections is constitutional material. It follows from Article 20 of the Constitution that the legislator's expectation that these issues will be governed by the "electoral law," however much the so-called title of the law (that is to say, a generic title, which points to the basis of what the law should contain), unlike the subject-matter or copy title, is not usually recommended as a separate legislative technique.
73. For the sake of completeness, the Constitutional Court adds that even if it came to the conclusion that the contested law was, from a material point of view, an electoral law within the meaning of Article 40 of the Constitution [see, for the material significance of such a definition, the findings of 10.3.1999 sp. zn. Pl. ÚS 25 / 98 (N 38 / 13 CollNU 269; 57 / 1999 Coll.) and of 17.5.2005 sp. sp. zn. Pl. ÚS 71 / 04 (N 109 / 37 Coll. Coll. SbNU 421; 272 / 2005 Coll.) - the issue of a law with a certain content as a condition for the application of a restitution claim], it could not be regarded as having been challenged by the constituency of its acceptance process by the Senator. It is irrelevant whether the Constitution's procedure was followed knowingly or simply by "coincidence ', unless the appellant demonstrates that any error could have affected the vote of Members or Senators in such a way that the law would not be adopted (e.g. a vote on a text other than that announced by the President). This is not about" breaking down the Constitution, "as was known from the time of the Weimar Republic (so-called Verfassungsdurchbrechung - a law contrary to the Constitution was nevertheless respected if it was approved by a de facto constitutional majority), and as the German legislature subsequently prevented it from doing so in Article 79 (1) of the Federal Law.
Objection to the lack of transparency of the legislative process
74. The intervener has consistently and thoroughly argued that the legislative process was confusing and not transparent, because the order and manner of voting on the draft law had been changed several times, it was not clear which proposals, the specific text and the context in which the vote was taken, made it impossible to "reconstruct" the final text of Act No 14 / 2017 Coll. adopted by the Chamber of Deputies, in particular it is not clear which form of transitional provisions were approved. As the effectiveness of the contested Articles 4a to 4c of the Act on Conflict of Interest was determined, the intervener further concluded that the Senators had no idea of the impact the amendments would have.
75. The Constitutional Court could not attest to this objection, as it is primarily a matter of the internal autonomy of each Chamber, whereas the Constitutional Court's competence is merely the examination of the constitutionality of compliance with the procedure for the approval of the law in respect of the constitutional courts of reglement law [see, on 14 July 2005, sp. zl. ÚS 23 / 04 (N 137 / 38 SbNU 9; 331 / 2005 Sb.)]. As is apparent from the stenographic minutes of the negotiations on this proposal, due attention has been given to this issue and the voting procedure has been modified in advance, its proposal was circulated to Members on 5.9.2016 (see Press No 564 / 11 - recommendation of the Guarantee Committee on the procedure for voting on the proposed amendments - forty amendments to the Guarantee Committee, four additional mandates and immunity committee and five other Members' proposals), and the third reading of the proposal took place on 14.9.2016, the amendments being circulated to Members on 1.7.2016. The voting procedure was also the subject of a third-reading debate at the 49th meeting (see the speech by the rapporteur of the Vozka Guarantee Committee and also by Vondráček and Tejka Members) and the voting procedure was unanimously approved in vote 159.
76. The Constitutional Court, having examined the stenographic records of the meetings of the Chamber of Deputies in question and the supporting documents for their proceedings (in particular, Prints Nos 564 / 9, 564 / 10 and 564 / 15), did not find any infringement of the constitutional procedure for adopting Act No. 14 / 2017 Coll., which contains the contested provisions. Since Press No 564 / 10, in which individual amendments were incorporated, was circulated on 1 July 2016 and the meeting of the Chamber of Deputies, in which the relevant bill was approved at third reading, took place on 14 September 2016, it is clear that Members had sufficient time to get acquainted with these proposals. It can be accepted that there have been a number of amendments and therefore, due to changes in the voting procedure, it may not have been clear to some Members in advance what order the individual proposals will be put to the vote. At the same time, however, it should be taken into account that, when the law itself was being dealt with, Members were clearly informed of the specific (amendment) proposal to be discussed in the Chamber of Deputies at a given time, by stating the letter and number of the press No 564 / 10, and if it was necessary to specify it (i.e. where only a part of such a proposed proposal was discussed) and by indicating the relevant provision or issue. Under these circumstances, it is not clear how the alleged defect was or could have been manifested when it was a material that was observed and widely discussed affecting top political officials, or Members themselves (and senators). It is therefore difficult to imagine that there would be a vote on proposals which do not know exactly what their content is and what purpose the new regulation (including in the government amendment of the amendments inserted) follows.
77. The same applies to the intervener's objections raised in its reply of 23.1.2020 [see sub IV. e)]. The argument that Members have been misled in the vote on the amendments by Mr Plíšek's arguments and by the translation of the Austrian Incompatibility Act cannot justify compliance with the proposal even if this can be demonstrated from the course of the debates. This is not a reference aspect of the constitutional review, not to mention that virtually every law could be challenged in this way. This does not change the fact that the comparative interpretation is used both in the preparation and approval of laws and institutions and in their interpretation, depending on the position of the appellant or the interpreter, when the approaches of the particularist, universalist, functionalist, dialogue between legislators and courts, and finally - as in this case - the interpretation of the genealogical (cf. Choudhry, S. Globalisation in Search of Justice: Toward and Theory of Comparative Basic Interpretation. Indiana Law Journal, No 3, 1999, p. 838 and 839, same author Migration as a new metaphor in comparative constituent law. In: The Migration of Basic Ideas. Cambridge University Press, 2006, p. 14 et seq.), which, however, cannot lead to the conclusion that any defective interpretation of the foreign legislative model leads to an unconstitutional outcome (a method to better understand the issue, not a criterion of constitutionality). Therefore, this objection could not be attested, regardless of the fact that a significant part of the argument in the debate on the contested amendments was based on examples of legislation regulating conflicts of interest abroad, including a number of EU Member States. It should be noted that this view does not apply in the case of secondary EU law or obligations arising from international law for the Czech Republic (Article 1 (2), Article 10a of the Constitution), in particular international treaties which form part of the legal order of the Czech Republic (Article 10 and Article 49 of the Constitution), as for these sources directly or indirectly, their use is in accordance with the principle of Article 2 (1) of the Constitution, according to which the people are the source of all state power. This does not apply to foreign-state legislation.
78. Another objection is that it was not possible to "reconstruct" the wording of the amendment, as approved by the Chamber of Deputies, but no concrete facts to substantiate it were mentioned and even the Constitutional Court of prima facie found no such evidence. In this context, reference should again be made to the finding of 14.7.2005 sp. zn. Pl. ÚS 23 / 04 (N 137 / 38 CollU 9; 331 / 2005 Coll.), in which the Constitutional Court stressed the notification, identification and verification function of the signature of the President of the Chamber of Deputies under a resolution which is being followed up for further constitutional discussion of the Senate. The role of the Constitutional Court is not to interpret the results of the vote on individual amendments and their implications for the draft law as a whole in relation to other provisions of such a proposal and the rules of the legislative technique. Its task is to interpret the constitutional text in relation to the laws declared in the Collection of Laws, because that is precisely the condition of the validity of the law and thus the procedural condition of the procedure for controlling its constitutionality.
79. If the interveners stated that even the Senators were not sufficiently aware of the legal consequences that the adoption of Act No 14 / 2017 Coll. will have, this alleged defect does not constitute an unconstitutional procedure, regardless of the fact that it is merely speculation, based on her belief that the inconstitutionality of the contested legal provisions is obvious and that the decisions in the Senate were made about a confused text which was forwarded to him by the Chamber of Deputies.
80. If the intervener's objection is against the clarity of the proposals for Members and their transparency, it was also the subject of a parliamentary debate on the current contested regulation, but not in terms of their clarity, but in terms of logic and effectiveness (in particular Members YES). The issue of the personal scope of the amendment, namely who will be affected (i.e. not only by a specific member of the government), was also mentioned (e.g. Mr V. Filip) at the 54th meeting of 11 January 2017. What is important, however, from the point of view of the intervener's argument in this regard, is that, at this meeting, Members have already had to deal with comments on the effectiveness and unconstitutionality of the provisions now under appeal in the debate (more than fifty speeches) and in the vote. These were clearly and clearly expressed in his observations in the Chamber of Deputies when returning the draft amendment to the conflict of interest law pursuant to Article 50 of the Constitution by the President of the Republic (Press No 564 / 15). His comments are, in substance, identical to his proposal to repeal the provisions in question. The only doubt in the direction of the intervener's objections seems to have been expressed by Mr J. Birke (CSSD) at the 54th meeting, who noted: "I will steal one line from Mr Štrosmajer, that if he were to exaggerate, some colleagues here fly like eagles, not like doves."
Meritative assessment of the proposal
Opposition by the appellant and intervener against a breach of the fundamental principles of the rule of law in the context of the constitutional bases of the rules on conflict of interest
81. The initiation of the substantive review must be stressed that the circumstances which led both parties to the proceedings to submit their proposals continued to develop in the course of the proceeding from a national and Union perspective. Notwithstanding this, only the contested or directly linked provisions of the Act on Conflict of Interest in their abstract form are the subject of the present proceedings, i.e. as they result in the modification of conflicts of interest and the prohibition of action for all public officials referred to in Section 2 (1) of the Conflict of Interest Act, i.e. several tens of thousands of persons. Similarly, the conclusions of the Constitutional Court are based not on the circumstances of a particular case, but on constitutional principles for the creation of law, the organisation and functioning of the public authority and the legal status of the holders of public functions and the admissibility of interference in their fundamental rights and freedoms arising from the requirements for the proper holding of public office.
82. The discussion of a later government amendment to the Conflict of Interest Act was launched on 13 February 2015, on the basis of the 2015 Action Plan to Combat Corruption and in accordance with the Government's Plan of Legislative Work for 2015. After the proposal underwent a comprehensive comment and preparatory legislative process under the legislative rules of the Government, it was submitted, as a government bill amending Act No. 159 / 2006 Coll., on Conflict of Interest, as amended, and other related laws, to the Government of the Chamber of Deputies of the VII. parliamentary term on 31 July 2015 with the title of Press No. 564 / 0.
83. The government proposal did not concern the issue which is the subject of this procedure. However, this changed substantially during its first reading at the 36th session of the Chamber of Deputies held on 16 December 2015 (opposition Members Laudate, Farsky) and, in particular, at the second reading of the proposal at the 48th session of the Chamber of Deputies on 29 June 2016 (the vast majority of debtors). In the end, the very comprehensive debate on press No 564 / 0 has led to practically only two amendments (Members of Plíšek and Chvojka), while, for example, the relationship of the bill to judges and prosecutors associated with not being subject to the new general rules of registration and a single registration point has remained uninterested (except in the Senate debate). In addition, these two proposals have been modified and amended, and, as mentioned above, they have been subject to a thorough (politically targeted) debate during each reading, when voting on the Senate proposal and when discussing the so-called "veto of the President of the Republic" (almost identical to the one that has now been tabled to cancel them). However, the subject of the debate was not at all a matter of the procedure for the adoption of the amendment to the Act on Conflict of Interest as an Election Act, which was only mentioned in the debate in relation to the objection that it was an intervention in an upcoming election competition (the traditional constitutional problem of so-called legislative silence is not the subject of this procedure), together with the focus of amendments against the person of the President of the YES movement and the delegation of the Single Register to the Ministry of Justice and not to the Ministry of the Interior, under whose jurisdiction the internal administration of elections (Mr Laudate, Minister Dienstbier).
84. The argument of the opponents of this regulation, expressed in the debate, is also part of the two proposals which are the subject of this procedure after its deepening and supplementing. Therefore, the assessment of the rationality of the objections raised by the non-constitutionality in this substantive part of the reasoning had to be divided into:
(a) the part which answers to objections to the general concept of the contested legislation in terms of its constitutionality (sub 27 and 52 et seq.), which, by its nature, are essential and call into question not only the contested provisions but also, in part, the constitutionality of the chosen way of regulating conflicts of interest; and
(b) the part which addresses the objections to the inconstitutionality of the various contested provisions of the conflict of interest law.
Just as these general and specific objections are intertwined in both proposals, they need to be answered in the knowledge that they are a solution to the fundamental issues of the constitutionality of the organisation and the functioning of public power not only in terms of problematic legislation, but also in terms of how this regulation is perceived critically by the public.
1. Constitutional basis of the rules governing the status of public officials and the limitation of interference in their legal status
85. The Act on Conflict of Interest initially followed their prevention, as is apparent from its § 1 (a). It was intended to prevent a conflict between the personal (private, generally economic and social) interests of public officials and public interests, which were or were required to promote or defend (insidertrading, Insichgeschäfte), not only in parallel, but also subsequently, as required by his § 6 (a question called a cooling- off period, Karenzfrist, nachhamtlicher Berufsverbot). By contrast, the contested provisions of § 4a to 4c of the Act on Conflict of Interest deal with this issue in the form of prohibitions and restrictions, which is a completely different approach, which is out of the ordinary.
86. Public officials are in a dual position in relation to the law. In the exercise of their public office, the authorities, as carriers, are required to comply with the principle of the legality of public authority proceedings so that they can act only in cases, limits and in the manner laid down by law (Article 2 (3) of the Constitution, Article 2 (2) of the Charter). However, they do not cease to be holders of fundamental rights and freedoms, which necessarily leads to a conflict or at least a state of tension with the constitutional rules on the exercise of public authority. The two proposals contested by the provisions of the Act on Conflict of Interest also provide for obligations and restrictions in relation to the status of "private non-functionalists' [in particular Article 1 (b) and (c) of the Act on Conflict of Interest], which are generally linked to interference with their fundamental rights and freedoms.
87. The appellant's and the intervener's objections are aimed at the second aspect, namely that, compared with other holders of fundamental rights and freedoms, public officials are limited to a wider extent (i.e. discriminated against within the meaning of Article 3 (1) of the Charter) even where their personal (economic, financial and other) interest is involved. As natural persons gifted to an inalienable, inalienable, irrevocable and unbiased fundamental rights and freedoms (Article 1 of the In Fine Charter), public officials shall be bound by the rules governing the exercise of their public functions which do not apply to persons who do not exercise public functions (private persons) and who do not undertake to keep them by their promises. The members of the government hold special positions here as the executive authority.
88. These objections, aimed almost exclusively at the status of a particular member of the Government, may be answered on the basis of an assessment of the purpose of the Act on Conflict of Interest, whether it pursues a legitimate objective and how the constitutional cautel for the performance of the function of a member of the Government contained in Article 70, in conjunction with Article 69 (2) of the Constitution (prohibition of certain activities and the promise not to abuse the status of a member of the Government) is reflected in it, since, in terms of deontic logic, the various behavioural modalities (prohibition, order or authorisation) which are required by them. In order to be able to perform its tasks properly, the government is to be filled with persons who can be expected to be "full-time 'persons, so that they will not be" divided' in the performance of public-interest tasks, the importance of which they realise, in relation to the State they will be properly "loyal '[see the Constitutional Court's finding of 5.12.2001 sp. sp. zn. It is therefore appropriate that they will be properly paid for this engagement and will be able to benefit from their popularity and experience in another professional life. As Morlok, M. and Krüper, J. (Ministertätigkeit im Spannungsfeld von Privatinteresse und Gemeinwohl: Ein Beitrag zur Auslegung des Art. 66 GG. Neue Zeitschrift für Verwaltungsrecht, 2003, No 5, p. 574), entry into the government cannot be the same as acceptance into the dire monastic order. Therefore, this adjustment is associated abroad with the adjustment of salaries and allowances of public officials (e.g. Antrag der Abgeordneten Dr. Heinz FISCHER, Dr. Alois MOCK, Fritz MARSCH, Dr. Walter HAUSER, Kurt MOLLBACHER, Dr. Fritz KöNIG und Genossen betreffend ein Bundesgesetz, mit dem das Unvereinbarkeitsgesetz, das Bezügegesetz und andere Rechtsvorschriften geändert werden - NR: GP XV IA 82 / A AB 494 S. 50. BR: 2216 AB 2224 S. 403).
89. However, it is the duty of the democratic rule of law (Article 1 (1) of the Constitution) not only to create conditions for the proper performance of the public function associated with the obligation to act in the public interest but also to prevent the power conferred on it from being used to promote its own (personal) interests at the expense of the public interest, but also of other participants in political or competition, as well as of public confidence. In a democratic rule of law, under the constitutional order of the elections, the well-run competitions (Articles 1 (1), 2 (1) and 5 of the Constitution) are about trust and mandate from voters, not about controlling the state in order to exploit or even abuse its capacities and resources by their winners, using any appropriate means; the State is not an undertaking and the service of the State is remunerated, but the exercise of public office is not an undertaking, let alone the management of its own assets. Therefore, the purpose of the Conflict of Interest Act (see Section 1 of the Conflict Act) is not only to regulate such a conflict (Section 3 of the Conflict of Interest Act), but also to protect the public interest or to avoid situations (Sections 4 to 4c of the Conflict of Interest Act) in which a potential conflict could arise. This cannot therefore be avoided by the well-known claims made by General Motors, Charles E. Wilson, in a hearing in the Senate Defense Committee when nominated for Secretary of Defense in 1953 that what was good for America was good for his business, and vice versa ("what was good for our country was good for General Motors, and vice versa").
90. A public official is the one who, pursuant to Article 2 (3) of the Constitution, is to "serve all citizens," which is a reflection of equality before the law from a public point of view. For Members, Senators and the President of the Republic, the Constitution also expressly states this in the text of their promise (Articles 23 (3), 59 (2) of the Constitution). The relationship between the State and its "servants' is therefore different from that of the State and of natural or legal persons as private persons. Unlike Article 1 (1) The Constitution in fine is a state for citizens here, pursuant to Article 2 (3) On the contrary, the Constitution is a public office for the State as one of the forms of public or public interest. In this respect, as part of the public power mechanisms, he does not have the will, he is bound by law, the public interest and the general good, which he must observe according to the nature of his mandate. Therefore, the State is entitled, and at the same time in the public interest, to carefully consider not only the conditions under which it will be able to apply for an elected or other public office (Article 21 (4) of the Charter) but also the conditions and obligations under which such public office can be performed. In this regard, the State considers the constitutional order to be limited to the extent that the conditions laid down by it must be upheld by the law, respect the nature of the public function (see above) and must not appear to be of a discriminatory nature (cf. Article 3 (1) of the Charter), or otherwise be manifestly arbitrary or arbitrary (cf. Article 2 (2) of the Charter and Article 2 (3) of the Constitution), or appear to be clearly" unreasonable '(inadequate) as it would not be in the (equal) public interest in the proper functioning of the State, in order to reduce the scope of consideration of persons involved and thus to benefit from the services of those who might be of their knowledge, ability and experience. It is here that the so much contested application of the principle of proportionality of intervention can be applied, as there is undoubtedly a difference in direct decision-making or preparation. This aspect of the preparation of the Decision also takes into account Article 61 (1) of Regulation (EU, Euroatom) No 2018 / 1046 of the European Parliament and of the Council of 18.7.2018 laying down the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296 / 2013, (EU) No 1301 / 2013, (EU) No 1303 / 2013, (EU) No 1304 / 2013, (EU) No 1309 / 2013, (EU) No 1316 / 2013, (EU) No 223 / 2014 and (EU) No 283 / 2014 and Decision No 541 / 2014 / EU and repealing Regulation (EU, Euratom) No 966 / 2012 (hereinafter "the Financial Regulation'. But even here, it is necessary to distinguish between the intensity of intervention in the case of those who are responsible for preparing decisions, draft laws, etc., and those who are merely expressing themselves to it, when the notification of conflicts of interest may then suffice. Even here, the exclusion of the participation of such persons or corporations would be contrary to the maximum of the democratic legislator (e.g. the possibility of making comments on proposals normally contained in legislation is also part of the legal structure of the institution of division of powers or functions). The Canadian Law [Conflict of Interest Act (S. C. 2006, C. 9, p. 2) states that even in Article 3 (a), (d) and (e) it is one of its main purposes; This is intended not only to provide for the legal ethon for evaluation, but also, on the basis of clear rules, to encourage the interest of competent and experienced public sector workers and the exchange of experts between public and private sectors.
2. Constitutional conformity of the rules governing conflicts of interest and the reference criteria for interference in the fundamental rights and freedoms of public officials by ordinary law
91. General objections from the appellant and intervener lead to the need to assess the legal form chosen to regulate conflicts of interest, i.e. whether the regulation or prohibition and restrictions in such an important area for the organisation and functioning of public authority and the position of the individual are sufficient to regulate conflicts of interest by ordinary law. The Constitutional Court, in connection with the assessment of the chosen legal form of regulation by ordinary law, could not fail to see that the legislation in the Czech Republic shows some special features. Examples of other solutions may be those where the conflict of interest arrangements are addressed directly in the Constitution (including constitutionally anchored sanctions, i.e. loss of mandate - see Articles 37, 54 and 55 (1) of the Constitution of Brazil), or the starting points for the performance of public functions are more widely worded in the Constitution (e.g. Articles 269 to 271 of the Constitution of the Portuguese Republic). A provision has been chosen somewhere in the special constitutional law (e.g. the Slovak Republic), or general authority for the limitation of private sector activity in the Constitution and in combination with a special law containing constitutional provisions (Austrian Republic since 1925 in Article 19 (4), now following the adaptations in Article 19 (2) in conjunction with the special law on transparency and incompatibility - Bundesgesetz über die Transparenz und Unvereinbarkeiten für oberste Organe und sonstige öffentliche Funktionäre, where this issue is then entrusted to the Organic Act (Article 105 of the Romanian Republic, France - see La loi organque relative à la transparency de la vie publique No 2013-907 with amendments). In doing so, each state is addressing the general problem of public power according to its historical experience and current needs, so there is no accepted model of legal regulation of these issues. This follows, for example, from the documents of the Parliamentary Institute often cited in the parliamentary debate in the contested regulation, as also recalled by adding the observations of the intervener, sub IV (e), or a brief latest overview in the Conflict of interest laws in EU member states (available at http: / / www.aolep.eu / conflict-interest-laws-eu-member-states).
92. It has already been pointed out that sub-sub VIIIc) that the legislation and case law of other states can serve as a source, inspiration or source of knowledge, but are not a reference criterion for the assessment of constitutionality. Nor is there any agreement on how to understand the conflict of interest, whether as a situation (s) or as an action or as a warning against conflicts of interest (in this case preventive or penalty measures are different). According to the legislation of some States, the conflict of interest of a situation in which a public official has the opportunity or the possibility to promote his or her private interest (e.g. the Canadian Conflict of Interest Act cited in Article 4), whereas Article 3 (4) of the already mentioned Slovak Constitutional Law No 357 / 2004 Z. z. z. defines him as "a fact when a public official in the performance of his or her duties gives priority to a personal interest in front of the public interest," that is to say, as an act which has already been infringed. However, from a standardized point of view, the obligation to avoid conflicts of interest is the same. For the sake of completeness, it should be added that it is only a nominal definition (not a real one), because, in fact, a public official has only authentic personal or private interests and needs behind them. No public interests, unlike public corporations such as the State, the Region or the Municipality, are required, only to defend and favour them, as in the end expressly and correctly provided for in Section 1 (a) of the Conflict of Interest Act.
93. The Act on Conflict of Interest is therefore only an ordinary law, although it applies in particular to the freedom of action referred to in Article 2 (3), in conjunction with the exercise of the ownership powers referred to in Article 11 of the Charter, the conduct and achievement of profits, the pursuit of work, the free choice of employment or occupation referred to in Article 26, the remuneration for the work referred to in Article 28 of the Charter by restricting or even prohibiting public officials in such activities (cf. paragraphs 3 to 6 of the Act on Conflict of Interest), or, in addition, the obligations which interfere with their other constitutional rights and freedoms (right to information self-determination pursuant to Article 10 (2) of the Charter and with the associated principles of privacy, family life and family relations pursuant to Article 10 (2) and Article 32 (1) of the Charter). However, this is not contrary to the basic reference criteria for assessing its constitutionality [see sub-paragraph IX. a) 3 below], as such a restriction is foreseen in particular by Article 4 of the Charter in compliance with the constitutional bond.
94. The content of subjective public law, as enshrined in Article 21 (4) of the Charter, which is also contested by the applicant and the interveners in different contexts, is also consistent with the requirements for the exercise of public office. This right, which imposes on every citizen the possibility of self-evaluation of the exercise of public office or service, cannot be understood as preventing the legislature from establishing the conditions for their enforcement and enforcement, even if it thereby limits, to an extent necessary to the public or general interest, the temporary monitoring of the personal or private interest of those called upon to represent public authority in the conditions of a democratic rule of law (Article 1 (1), Article 2 (3) of the Constitution, Article 2 (1) and (2) of the Charter) and who have undertaken to do so by their constitutional or service promise. This concept implies not only an obligation on the legislator to regulate equal access to such public functions, but also its obligation to regulate their performance in such a way as not to create doubts about their impartial exercise in the public or general interest defined by the law adopted by the legislature resulting from free and democratic elections. Finally, it should be stressed that there is a difference between the courts of electoral law (Article 21 (3) of the Charter) and the access to public functions (selectivity and denominability) as further developed. For the sake of completeness, it should be added that the provisions of the Charter on the Freedom of Entrepreneurship do not apply to the exercise of public functions (Article 26 (1)), as their executors are in a different position from those of entrepreneurs, and are bound by Article 2 (2) of the Charter and Article 2 (3) of the Constitution; These are two different categories of legal entities, which are essential in terms of objections to the infringement of equality under Article 3 (1) of the Charter. Similarly, the conditions for the exercise (not for acquisition) of a public office in the form of restrictions on the fundamental rights and freedoms of its holder cannot be considered without further prejudice within the meaning of Article 3 (3) of the Charter, as the intervener tries to prove in different contexts. The Constitution provides the widest possible possibility to apply for office under a free decision under Article 21 (1) and (4) of the Charter. Therefore, this is not an act of amnesty contrary to Article 2 (2) of the Charter and corresponds to the needs and nature of the exercise of public authority under Article 2 (3) of the Constitution (see in particular sub-paragraphs 90, 110, 117, 167). The alleged "damage 'referred to in Article 3 (3) of the Charter, as invoked by the intervener and indirectly by the appellant, cannot be measured according to one specific person in the abstract review of the constitutionality of the law, but according to the legal status of the public office, as envisaged by our legislation in this area and how it should be interpreted (general measure) in relation to tens of thousands of persons who often perform public functions outside their profession and at the expense of their personal interests in the public interest.
3. Reference criteria for the review of the constitutionality of the Act on Conflict of Interest as so-called legislation in its own case and for the objection to a breach of the requirement of universality of the law
95. The basic reference bases of the review of the contested provisions of the Act on Conflict of Interest (Public and Private Interests) are two groups of constitutional rules and constitutional principles. The first is those which determine the nature, organisation and activity of public authorities, i.e. essentially the whole of their constitutional arrangements, in particular Articles 1, 2, 5, 6, 9, 10a, 15, 19, 21 to 28, 59, 62, 63, 65, 67 to 79, 81, 82, 85 and 87 of the Constitution. The second group is the constitutional rules for determining the obligations or restrictions on fundamental rights and freedoms (in particular Articles 1 to 4, 21, 22, 26, 28 and 44 of the Charter) in conjunction with the coupons for intervention in the fundamental rights and freedoms concerned contained in their catalogue in the Charter or in international human rights treaties. The wording of the general obligations, as they result from the content of the text of the promises of constitutional agents enshrined in the Constitution (Articles 23 (3), 25 (a), 26, 55, 59 (2), 60, 66, 69 (2), 85 or reference to their wording in conjunction with Article 93 (1)), are also of general importance. The constitutional principles and rules for the acquisition and exercise of public functions are also important. In this context, neither can the regulation of conflicts of interest in secondary Union law, and the related obligations and obligations of the Czech Republic as an EU Member State, and the need for Euroconformal interpretation of the conflict of interest law [to that end, sub IX. a) 4.].
96. The review of the constitutionality of the contested rules on conflict of interest must be made in the knowledge that this regulation is an example of legislation in its own case (in the wider sense of the word), which is already a problem by its existence; However, this alone cannot be contrary to constitutional order. It cannot be avoided where Parliament regulates the issues entrusted to the law relating directly to members of its chambers, since in particular Article 15 (1) In such a case, the Constitution does not allow any other solution, so that it cannot be relied upon by the traditional, already Justinian maxima, that no one should make decisions in their case and neither determine the rules (not in sua causa iudicet, vel ius sibi dicat). All the more so, it is necessary to maintain all constitutional cauties [see as a negative example of Constitutional Act No. 195 / 2009 Coll., to shorten the fifth parliamentary term of the Chamber of Deputies, and its abolition by the finding of 10 September 2009 sp. zn. In a broader sense, this also affects the performance of the State's economic protection function in the protection of public and private competition rules [according to the nature of the competitive conduct under Act No. 143 / 2001 Coll., on the protection of competition and on the amendment of certain laws (the Law on the Protection of Competition), as amended, and under the Civil Code], in particular where there may be a conflict of interest of public officials with their personal interests (private, economic) as defined in that Act.
97. In this connection, the objection to a breach of the general rule of law based on the intervener's claim that the contested scheme was "tailor-made '(in the negative sense) to the then Minister of Finance (Lex Babiš). As the debate in the Chamber of Deputies has shown for over a year and a half on this issue, there is no doubt as to what the inclusion of the contested regulation in the Government's proposed bill (press No 564 / 0) has created and followed up. Act No. 14 / 2017 Coll. is a response to a specific situation that has not yet been unprecedented in the history of the Czech Republic, but this can also be reported for most foreign changes responding to developments in society in particular in this field (see, for example, the lack of conceptuality of such an adjustment by Perkins, R. B. The New Federal Conflict-of-Interest Law. Harward Law Review, year 1963, p. 6, p. 1117 et seq.). This does not change the fact that a" case "could be the impetus (e.g. Austria in 1980). Now, the legislator is trying to respond to a situation in which a very strong power of economic power, partly linked to media ownership, would be concentrated in one hand. If, according to the theory, there is a distinction between random, occasional and permanent conflicts, or actual, presumed and apparent, our legislator seeks to solve all of them, so that solutions of only one of their types, e.g. by allowing an exemption in the event of a random conflict of interest, are not considered. If the intervener asks for such an adjustment in Austria in addition to its observations, this is not feasible in our current circumstances, given the purpose of the conflict of interest law. On this point, however, it should be added that the debate in the Chamber of Deputies on this subject has brought many different accusations against others, but no one has questioned this fact (the motive of the law). In connection with these objections, the Constitutional Court adds that it is bound by the petition. The appellant and the intervener thus aim only to intervene in the position of a member of the government (even in a specific way), but the contested provisions govern the position of a significantly wider range of public officials. The conclusions further drawn therefore apply to all public officials concerned, depending on the provisions under appeal (the personal scope of Sections 4b and 4c of the Act on Conflict of Interest is limited to the members of the Government and the heads of central administration).
98. However, this does not mean that the objection to infringement of the general rule of law is justified. The contested regulation is not applicable only to one particular person, as can exceptionally be seen in the constitutional regulations (e.g. § 58 (4) of the Constitutional Charter of 1920 or § 70 (2) of the Constitution of the Czechoslovak Republic of 1948, Article 1 of Constitutional Act No. 195 / 2009 Coll., shortening the fifth parliamentary term of the Chamber of Deputies). It regulates the legal situation of all persons who would be in public office under Article 2 (1) of the Conflict of Interest Act. If the Constitutional Court acceded to the statement of an intervener, this would also be contrary to the rules of abstract control of constitutionality, as the reference criterion would be the personal circumstances of one person, but this can only be applied in the event of a dispute concerning the application of the law on conflicts of interest in a particular matter with limited possibilities of generalisation and commitment (cf. Article 89 (2) of the Constitution). In addition, this could be the case for a single person, not for a certain class of persons involving a significantly larger number of public officials (according to the status of 10 January 2020, 48 005 persons were kept in the register of notifications administered by the Ministry of Justice).
99. However, the timing is also important, as this adjustment is intended to affect all similar cases for futuro. It regulates situations that may also arise in the future and is thus not limited to a member of the Government who, at the date of the amendment to the conflict of interest law, was acting as Minister of Finance, as requested by the appellant and intervener. The question of the universality of the law, let alone its contested provisions, could therefore be resolved at this point without having to deal in general with the definition of the requirement of an absolute universality of the law and at the same time the universality of each of its individual provisions. This is directly related to the contested intertemporal provisions (namely by the nature of the matter itself) which are settled by sub IX. d).
4. Opposition of the applicant and intervener against the contested provisions of the Act on Conflict of Interests and Obligations of the Czech Republic resulting from its membership of the European Union
100. While the appellant mentions a detailed adjustment of investment incentives in directly applicable EU regulations and different methodologies, it also points out the control of the European Commission's authorities (sub-19), but does not indicate how these regulations are applied in practice and as evaluated by the European Commission, but only points out that in such a case there are safeguards against their infringement. On the contrary, the intervener has a broad definition of their application in the Audit Report, arguing how the national rules on issues relating to conflicts of interest (sub-47 et seq.) are interpreted. Both thus do not call into question the origin of the rules on conflicts of interest in EU law, but reject in their argument the consequences of their commitment to implementation at the level of interpretation and application, but again in relation to a particular person or undertaking. Once again, the Constitutional Court points out at this point that, in the context of the abstract control of constitutionality, the argument of a specific person and the specific application of EU law in the form of an audit report is not decisive, since even in the case under examination it is an abstract review of the constitutionality of the contested provisions of national law. This does not preclude that such questions will be addressed to the Constitutional Court in specific cases and the results of the current abstract control can be applied precisely under the conditions of a specific case [see, moreover, in relation to the Czech Republic's membership in the EU, recital 109 of the finding of 26.11.2008 sp. zn.
101. The Constitutional Court did not agree with these objections as they contravened the constitutional bases of the membership of the Czech Republic in the EU resulting from Articles 1 (1) and (2) and 10a of the Constitution. At the same time, however, it could not have noticed a significant circumstance that it was only after such a long time since accession to the EU that it was confronted with an urgent and politically escalated need to address the compatibility of the scope of the legal setting of the conditions for the performance of public functions in the Czech Republic in relation to the regulation of conflicts of interest in EU law. It should be noted that not only the Financial Regulation of 2018, but also the 2014 Directive, as well as the Union's previously applicable conflict of interest arrangements, have been adopted in accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty on European Union (TEU) and Protocol 2 on the application of the principles of subsidiarity and proportionality to the TEU / The Treaty on the Functioning of the European Union (TFEU) (Communication from the Ministry of Foreign Affairs No 111 / 2009 Coll. p.), without the Czech Republic having considered it necessary to apply any of the instruments giving it the TFEU, with which the Rules of Procedure of the two chambers of Parliament count. Therefore, if the intervener contends that the European Commission cannot interpret the national law of the Czech Republic in the Audit Report, it is necessary, following Articles 1 (2) and 10a The Constitution states that it is the task of the European Commission (otherwise it may face action for inaction under Article 265 TFEU) to oversee, under the control of the EU Court of Justice, the application of EU law (Article 17 (1) TEU) by any appropriate means. With regard to Article 10a The Constitution cannot be regarded as a breach by the European Commission as monitoring the implementation of Union rules under the conditions of a Member State, in particular on the basis of knowledge of their (direct or intermediary) application by administrative authorities and courts.
102. EU membership (Article 4 (3) TEU) for a Member State results in a commitment of loyal cooperation with the EU institutions that "shall take all appropriate general or specific measures to comply with the obligations arising from the Treaties or acts of the institutions of the Union 'and that" shall refrain from any measure which could jeopardise the achievement of the Union's objectives'. In relation to the legislative implementation of Union law, this principle is then specified in Article 291 (1) TFEU, according to which Member States "shall take all necessary national legal measures to implement legally binding Union acts'. The EU's commitment to respect national identity (Article 4 (2) TEU) should be interpreted in relation to the above mentioned. It contains a claim by a Member State to maintain the scope for the development of its political and constitutional system, with the fact that such a solution will not conflict (as a result) with the requirement to ensure the full effect of the Union law in the context of national law (principle l'effet utile).
103. For the present case, it follows that the Union's legitimate interest in the proper management of EU budget funds and in the purity of the competitive environment within the internal market should be the same as that of any Member State whose financial contributions form part of those Union budgets and whose national market is part of the internal market of the EU. In order for this interconnected system of institutions and measures to function properly, guarantees, such as the obligation of the State not only to create public authorities involved in shared management such conditions as to be able to perform their function properly, i.e. in accordance with the law, and, if possible, to appear as objective and impartial activities of their and the entire public authority apparatus. At the same time, however, this includes the obligation to prevent the power conferred on them from being used to promote their own interests at the expense of the public interest, namely the interest of the EU, whether due to family or emotional ties, political or national affinity, economic interest or other direct or indirect personal interest (see Article 61 (3) of the Financial Regulation). The rules in the new Financial Regulation, both in terms of the constitutional principles of transparency, proportionality, equal treatment and non-discrimination, the protection of privacy and personal data, as well as the rules on exclusion from participation in the award procedure, are further important guidelines both for the national regulation of conflicts of interest and for the review of the constitutionality of such arrangements.
104. Article 61 and Article 63 of the Financial Regulation follow up to the repealed but still applicable Regulation (EU, Euratom) No 966 / 2012 (see Article 57 thereof and in particular Article 59 (1), now Article 63 (1) of the Financial Regulation), where the Member State's obligation to comply with the principles of sound financial management, transparency and non-discrimination and to ensure the visibility of the Union's action in the management of its funds is enshrined in the implementation of the budget under so-called shared management. In view of the legal effects of the Regulation under Article 288 TFEU, i.e. their direct applicability, this obligation can only be pointed out with regard to the obligations imposed on Member States in this context in Article 63 of the Financial Regulation. As regards its effects in the law of the Czech Republic, the Constitutional Court refers to the opinion expressed in general on the regulation of Union law in the judgment of 8.3.2006 sp. zn. Pl. ÚS 50 / 04 (N 50 / 40 CollNU 443; 154 / 2006 Coll.), where it emphasised its immediate applicability and priority in application (principle d'effet direct ou d'applicabilité directe), whether or not the national law explicitly applies the reference to "directly applicable EU regulation ', since the immediate legal basis of national effects of Union secondary law is a constitutional procedure (Article 10a Constitution) of the ratified Treaty. This also applies to the obligation of a Member State to impose" effective, dissuasive and proportionate penalties' on beneficiaries of funds as part of legislative, regulatory and administrative measures, provided that sectoral rules or specific provisions of national law so provide '(Article 63 (2) of the Financial Regulation). The high degree of abstraction of the provisions of Union law imposing an obligation on Member States to take appropriate measures to avoid conflicts of interest (Articles 61 (1), 63 of the Financial Regulation, Article 24 of Directive 2014 / 24 / EU), then requires the specification of a national regulatory instrument. However, Article 3 of the Act on Conflict of Interest without the contested provisions of Sections 4a to 4c can only be partially so as to be general.
105. The same applies to the obligation for States to take appropriate (preventive) measures to avoid conflicts of interest for their functions under their responsibility and to address situations which can be objectively perceived as conflicts of interest (Article 61 (1) of the Financial Regulation), with sufficient "questioning" of the impartial and objective exercise of the functions of a financial participant. From the point of view of legal terminology, it should therefore be pointed out that this turnover (... "where the impartiality and objective exclusion of the functions of a financial actor or other person, as referred to in paragraph 1, is compromised...") is translated in the Czech version quite freely as a "threat" due to the requirement of an objective perception of conflicts of interest (... situations may be tested as a conflict of interests... "), as required by Article 61 (1) of the Financial Regulation in fine. It is expressly stressed that this also applies to national authorities at all levels involved in the implementation of the budget in direct, indirect and shared management, including preparation for this activity, audit or control (i.e. not only in the decision-making process itself). Similarly, a conflict of interest was expressed in the previous Regulation No 966 / 2012, namely" threat ', whereas the "objective perception' aspect had not yet included this text. Given the cross-compliance of the contested provisions (in particular paragraphs 4b and 4c of the Act on Conflict of Interest), it is clear from EU law that the starting point for defining conflicts of interest, having regard to their importance for maintaining the rules on competition in one common market with a common budget and financial means, requires that this concept of conflict of interest (now expressly tightened) be respected by both the national legislator and its institutions which implement Union legislation on conflicts of interest in specific cases (legislative transposition, direct administrative and judicial applications, etc.).
106. In the present case, this means that the interpretation of the contested and contested provisions of the Law on Conflict of Interest must also be based, inter alia, on the content and purpose of the Financial Regulation, taking into account in particular the definition of the concept of "conflict of interest 'contained in recital 104 and Article 61 (3) of the Financial Regulation (here is the sedes materiae). The following Union implementing rules, such as in particular:
(a) Annex I, Section VIII, point (a) Point D (5) of Council Directive 2011 / 16 / EU on administrative cooperation in the field of taxation and repealing Directive 77 / 799 / EEC, under which natural persons in control of the body are under "controlling person '. In the case of a trust fund, this term shall mean the founder, the trustee, the person supervising the management of the trust (if any), the acquired or a group of prefabricated persons and any other natural person having the highest effective control of the trust fund and, in the case of a legal arrangement which is not a trust fund, that term shall mean persons in an equivalent or similar position. This provision requires that the term" controlling persons' be interpreted in a manner consistent with the Financial Action Task Force recommendations,
(b) Article 3 (6) of Directive (EU) 2015 / 849 of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing, amending Regulation (EU) No 648 / 2012 of the European Parliament and of the Council and repealing Directive 2005 / 60 / EC of the European Parliament and of the Council and Commission Directive 2006 / 70 / EC, according to which the beneficial owner is to be understood by a natural person or persons who ultimately own or control a client, or by a natural person or persons on whose behalf a transaction or activity is carried out, which includes at least:
(a) in the case of companies:
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Regulation Information
| Citation | The Constitutional Court found No 148 / 2020 Coll., on proposals for the annulment of certain provisions of Act No. 159 / 2006 Coll., on conflicts of interest, as amended, and certain provisions of Act No. 14 / 2017 Coll., amending Act No. 159 / 2006 Coll., on conflicts of interest, as amended, and other related laws |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 08.04.2020 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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