The Constitutional Court found No 151 / 2009 Coll.
The Constitutional Court's finding of 7 April 2009 on the application for annulment of Paragraph 6 (2) (a) of Act No. 455 / 1991 Coll., on Business Business (Trade Act), as amended
Valid
The Constitutional Tribunal found
Text versions:
29.05.2009
151
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 7 April 2009 in plenary in the composition of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivan Janů, Vladimir Krórek, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Eliška Wagner and Michaela Židlická, outside oral proceedings and without the presence of participants in the application of the Regional Court in Pilsen to repeal the provisions of § 6 (2) (a) of Act No. 455 / 1991 Coll., on Trade Business (Trade Act), as amended,
as follows:
Paragraph 6 (2) (a) of Act No. 455 / 1991 Coll., on Business Business (Trade Act), as amended by Act No. 167 / 2004 Coll., was contrary to Articles 26 (1) and (2) and Article 4 (4) of the Charter of Fundamental Rights and Freedoms.
Reasons
Definition and recap of the proposal
On 21 November 2008 the Constitutional Court received the application of the Regional Court in Pilsen to abolish the provisions of § 6 (2) (a) of Act No. 455 / 1991 Coll., on Business Business (Trade Act), as amended.
The appellant did so pursuant to Article 64 (3) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, after having concluded, in accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 109 (1) (c) of the Civil Procedure Code, that the provisions of Article 6 (2) (a) of Law No 455 / 1991 Coll., on business activities (hereinafter referred to as the Commercial Law), as amended, are in breach of Article 26 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter).
In that case, sp. zn. 30 Ca 98 / 2008, the Regional Court in Pilsen is decided on an action against a decision by an administrative authority to revoke a trade licence pursuant to § 58 (1) (a) in conjunction with § 6 (1) (c) and § 6 (2) (a) of the Commercial Law. According to the administrative authority, the claimant was sentenced in proceedings before the Regional Court by the judgment of the Regional Court in Stuttgart, Federal Republic of Germany, of 22 October 1998 sp. zn. 4 KLS 230 Js 8137 / 98 for the offences of illicit imports of narcotic drugs in not small quantities and trafficking in narcotic drugs in not small quantities pursuant to § 1 (1), § 3 (1) (1) (1) (2), § 30 (1) (4) of the Law on Drugs, § 25 (2), § 53 of the Criminal Code of the Federal Republic of Germany on the total imprisonment of seven years, i.e. he was convicted of a criminal offence, even under the laws of the Czech Republic, namely, and of illicit production and possession of narcotic drugs and psychotropic substances. In the proceedings before the court, the defendant's administrative authority pointed out the inadmissibility of the administrative reasoning when applying the provisions of Paragraph 6 (1) (c) and (2) (a) of the Trade Code, which does not allow it to be held for intentional conduct for at least one year in the event of a sentence to an unconditional custodial sentence. On the other hand, the applicant argued that Article 3, in conjunction with Article 26 (1) of the Charter, was in breach of Article 26 (1) of the Charter and questioned the acceptability of the conditions of integrity for the exercise of all trades, when the Constitutional Court declared it inadequate for the business in agriculture [finding sp. zn.
It agrees with the content of the applicant's constitutional argument, the General Court suspended the proceedings in the case and submitted to the Constitutional Court an application for annulment of the legal provision in question. The reason for this proposal is the alleged contradiction between the legal definition of integrity under Article 6 (2) (a) of the Commercial Act and Article 4 (4) in conjunction with Article 26 (1) of the Charter.
In the preamble to its proposal, the court points out the original wording of Paragraph 6 (2) of Act No. 455 / 1991 Coll., on the business business (trade law), which states that "for the purposes of this law, the person who was legally convicted shall be considered to be" guilty of an offence the nature of which relates to the subject of the business; (b) for another offence committed intentionally if, because of the nature of the business and the person of the entrepreneur, there is a concern that he will commit the same or similar act in the course of business. "According to his view, this legal basis was consistent with the Charter, because it" spared their substance and meaning '(Article 4 (4) in conjunction with Article 26 (1) of the Charter) - the restriction of the right to conduct business was consistently linked to activities relating to criminal activity, based on the legitimate interest of the company, in order at least for a certain period of time to deprive the sentenced person of the possibility of carrying out activities in an area in which he has infringed interests protected by criminal law. Despite that observation, the Regional Court draws attention to the possible contradiction between the possibility of an administrative authority to decide to revoke a trade licence in a situation where a general court ruling on guilt and punishment for certain actions has not imposed a penalty for the prohibition of activity (with reference to a possible contradiction with Article 40 (1) of the Charter).
The appellant further points to the fundamental amendment of the Commercial Act, implemented by Act No 356 / 1999 Coll. with effect from 1 March 2000, which included the new version of Paragraph 6 (2) (a), according to which it is not considered to be fair that anyone who has been legally convicted of an intentional offence for an unconditional custodial sentence of at least one year, the content of which is identical to the present amendment, since the subsequent amendments have been made by purely formal amendments (Act No. 167 / 2004 Coll., Act No. 130 / 2008 Coll.). For the purposes of this fundamental change, the Regional Court refers to the explanatory memorandum to the draft law, then adopted under No 356 / 1999 Coll., according to which it is "to specify the existing insufficient and ambiguous criteria, which closely linked the assessment of integrity to the link between the facts of the crime and the subject of the business, or the existence of a concern about the repetition of the crime in the course of the business', and according to which it is thus carried out" having regard to the current normal regulation of integrity in the Czech legal order ', "according to the existing legislation, the integrity is assessed according to the context of the facts of the crime and the particular subject matter of business, possibly according to the concern of the repetition of the activity of the business, which does not allow the business of those persons who are guilty of the activity generally related to the enterprise'. Finally, in the explanatory memorandum, it was argued that" it allowed for over-subjective evaluation in the administrative context of the Authority '.
The Regional Court contends that the previous legislation was in no way inadequate or ambiguous in relation to the reasons so worded by the legislation under appeal, while pointing out that similar provisions include, for example, criminal law when imposing a ban on activity in relation to the link between a criminal offence and a particular activity. It rejects the argument in the explanatory memorandum to the proposal for an existing classification of the contested legal provision and argues that it was precisely the contrary that the previous regulation allowed respect to the specifics of which specific and unique case. At the same time, it draws attention to the possibilities of methodological management of the administration in the application of Section 6 of the Commercial Act. The legislative instrument chosen therefore considers the appellant to be disproportionate in relation to the achievement of the intended purpose. It points out that the contested legal regulation does not take into account the individual of a particular sentenced person, the type of business, the purpose of the sentence, the involvement of the sentenced person after the execution of the sentence, the need to integrate him into ordinary civil life. It also draws attention to any contradiction of the legal provision in question with Article 40 of the Charter.
For all the reasons so interpreted, the Regional Court in Pilsen proposes to abolish the provisions of § 6 (2) (a) of Act No. 455 / 1991 Coll., on Business Business (Trade Act), as amended, for a conflict with Articles 4 (4) and 26 (1) of the Charter, on the date of the declaration of the Constitutional Court's finding in the Collection of Acts.
Recital of the essential parts of the party's observations
Pursuant to Articles 42 (4) and 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court sent the proposal in question to the Chamber of Deputies. In its observations, received by the Constitutional Court on 5 January 2009, the President of the Chamber of Deputies of the Parliament of the Czech Republic, Miloslav Vlček, is limited only to the recap of the data and procedural stages of the adoption of Act No. 455 / 1991 Coll., as well as Act No. 356 / 1999 Coll. As much as it may be welcomed in general by the laconic way of expression, in the absence of any reference to the legislative's intentions arising from the accompanying documents of the adoption of the law, the question of the meaning and purpose of the party's observations on the proposal in question is imposed.
Pursuant to Articles 42 (4) and 69 of Act No. 182 / 1993 Coll., as amended, the Constitutional Court sent the proposal to the Senate of the Parliament of the Czech Republic. At the outset of its observations received by the Constitutional Court on 29 December 2008, its President, MUDr. Premysl Sobotka, summarises the legislative development of the provisions of § 6 (2) (a) of the Commercial Act, i.e. from the adoption of Act No. 455 / 1991 Coll., despite the adoption of Acts No. 356 / 1999 Coll., No. 167 / 2004 Coll., to the adoption of Act No. 130 / 2008 Coll., stating that it is doubtful whether the proposed petition clearly deducts what wording of the Trade Act is proposed to be deleted, since it is marked "in the version of the subsequent legislation '.
It is further stated in the statement that, from the steno from the Senate press hearing No 356 / 1999 of the draft law amending Act No. 455 / 1991 Coll., on Trade Business (Trade Business Act), the Senate plenary noted that the integrity was mentioned in the report of the Minister of Industry and Trade as the promoter of this Bill, which stated that it was "a tightening of the general conditions for the pursuit of trade, restricting the business of persons convicted of serious crimes or having tax arrears'. Furthermore, in the joint reporting report presented by the rapporteur to the Committee on Economic, Agriculture and Transport, he stated that" the aim was, in particular, to redefine the conditions for entering into business for natural and legal persons and to extend the condition of impunity to date, to the extent that no conviction was made for an intentional offence for which an unconditional custodial sentence was imposed for more than one year, or to an offence the nature of which was linked to the undertaking '. In this context, the President of the Senate points out that, when discussing the draft law in individual committees or at the Senate plenary, there were no doubts as to the conformity of the general conditions of business with the relevant provisions of the Charter, and notes that, in accordance with the resolutions of the committees and the Senate plenary on 9 December 1999, it adopted a resolution (No 232) approving the draft law as referred to by the Chamber of Deputies.
Another bill amending Act No. 455 / 1991 Coll., was dealt with by the Senate as Senate Document No. 2004 / 292, and according to the party in the proceedings, it does not appear to the Senate plenary that one of the senators considered the proposed regulation concerning integrity as contrary to the Charter (the Senate plenary then at its 14th meeting on 25 March 2004 by resolution No. 364 of the bill as referred to by the Chamber of Deputies). The same statement also applies to the discussion of the last draft law amending Act No. 455 / 1991 Coll. (Press No. 211 / 2008), the proposal was approved by the Senate plenary at its 12th meeting on 20 March 2008 by Resolution No. 333, as referred to by the Chamber of Deputies.
Abandonment of oral proceedings
According to the provisions of Paragraph 44 (2) of Law No 182 / 1993 Coll., the Constitutional Court may, with the consent of the parties, refrain from oral proceedings if it cannot expect further clarification of the case. As the appellant, both in their proposal of 18 November 2008 and the parties to the proceedings in the letter of the President of the Chamber of Deputies of the Parliament of the Czech Republic of 1 April 2009 and the President of the Senate of the Parliament of the Czech Republic of 31 March 2009, expressed their assent to the abandonment of the oral hearing and, furthermore, the Constitutional Court considers that further clarification cannot be expected from the hearing, the oral hearing in the present case has been abandoned.
Conditions for the applicant's active legitimacy
The application for annulment of the provisions of § 6 (2) (a) of the Commercial Act was submitted by the Regional Court in Pilsen pursuant to § 64 (3) of Act No. 182 / 1993 Coll., as amended.
As already stated in the case brought before the Regional Court in Pilsen under point 30 Ca 98 / 2008, the applicant seeks the annulment of the decision of the defendant administrative authority, the Regional Office of the Pilsen Region, of 26 June 2008 No. VŽU / 5727 / 08, which appealed against the decision of the Municipal Office in Domažlice of 17 April 2008 No. j. OŽ- 6414 / 2007- 11356 / 2008 / See on the revocation of the trade licence under § 58 (1) (a), taking into account § 6 (1) (c) and § 2 (a) of Law No 455 / 1991 Coll., on the business (Trade Act), rejected and the initial administrative decision.
The Regional Court in Pilsen, after having concluded, in accordance with Article 95 (2) of the Constitution, that the provisions of Article 6 (2) (a) of the Commercial Law to be applied in the context of its decision-making activities in accordance with Article 95 (2) of the Constitution, the Court of First Instance, pursuant to Article 48 (1) (a) of the Administrative Order of 18 November 2008, suspended Ca 98 / 2008-19, and the Constitutional Court of First Instance put an end to the application.
Specific control of standards pursuant to Article 95 (2) The Constitution is a judicial check on the constitutionality of the law or its individual provision to be used by the General Court in the hearing and decision of a particular case. This also limits the scope of the General Court for the procedure laid down in Article 95 (2) of the Constitution, which is limited only to the relevant substantive and procedural law in the present case. The procedural condition of the active legitimacy of the General Court pursuant to § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, is therefore such a position of the Law, or its individual provision, the abolition of which is proposed, on the subject of the tribal proceedings which gives rise to decision-making reasons for the assessment of the case by the General Court.
As is apparent from the description of the procedure in question at the General Court, the appellant's compliance with the conditions of his active legitimacy for the standard control procedure can be established.
Petit of the proposal, the classification of the contested law and the assessment of the justification of the rejection of the proposal pursuant to Article 66 (1) of Act No. 182 / 1993 Coll.
According to the petition, the Regional Court in Pilsen requests that the Constitutional Court find "the provision of § 6 (2) (a) of Act No. 455 / 1991 Coll., on Business Business (Trade Act) '.
Paragraph 6 (2) (a) of the Commercial Act, valid and effective until 30 June 2008, i.e. until the entry into force of Act No. 130 / 2008 Coll., i.e. Act No. 455 / 1991 Coll., as amended by Act No. 167 / 2004 Coll., was as follows: "For the purposes of that Act, those who were legally sentenced to an unconditional custodial sentence for a criminal offence committed intentionally, whether alone or in conjunction with other offences, and were subject to an unconditional custodial sentence of at least one year." Article I (16) of Law No 167 / 2004 Coll. states: "Paragraph 6 (2) (a) states:" (a) for an unconditional custodial sentence for an offence committed intentionally, whether alone or in connection with other offences, and has been subject to an unconditional custodial sentence of at least one year '. "
The provision of the legal provision in question, as amended by Act No. 130 / 2008 Coll. (Article I (9)), is then as follows: "For the purposes of this Act, the person who has been convicted of a criminal offence committed intentionally, whether alone or in conjunction with other offences, and has been subjected to an unconditional prison sentence of at least one year, or '.
According to Article 75 (1) of the Administrative Code, when examining the decision, the court is based on the factual and legal situation which was there at the time of the administrative decision. It follows from the above that, in the general court of the present and the case at issue, the provision of Paragraph 6 (1) (a) of the Commercial Act, as amended by 30 June 2008, is relevant.
Therefore, the relevant legal provision has been amended or repealed in the meantime. In summary, the Constitutional Court expressed its views on the impact of such a situation on the procedure for the specific control of standards in the sp. zn. It referred, first, to the finding of sp. zn. Pl. ÚS 33 / 2000 of 10.1.2001 (N 5 / 21 SbNU 29; 78 / 2001 Sb.) and to the finding of sp. zn. Pl. ÚS 42 / 03 of 28.3.2006 (N 72 / 40 SbNU 703; 280 / 2006 Sb.), according to which "if the judge of the General Court concludes that the law to be applied in the resolution of the case (i.e. not only in force at that time but also no longer valid but still applicable law), is required to bring the case before the Constitutional Court (Article 95 (2). The Constitutional Court considered the refusal to grant aid to the General Court by its decision on the constitutionality or the unconstitutionality of the applicable law as a reason for the insoluble situation of the artificial legal vacuum, the decision of the General Court itself on the unconstitutionality of the provisions applied to it to qualify as a procedure contrary to the Constitution, contrary to the principle of concentrated constitutional justice (Articles 83 and 95 (1) and (2) of the Constitution). 'Since that procedure opens up the scope for the assessment of earlier legal acts (possibly legal events) according to later but already constitutionally conformal legislation and therefore shows the characteristics of genuine retroactivity, the Constitutional Court has essentially limited it to situations allowing regulation to be applied by the true retroactivity [see also the finding of sp. zn. Thus, the real retroactivity under the Constitutional Court in the event of the declaration of the unconstitutionality of the already repealed law and the assessment of previous facts by constitutionally conformal legislation with the effect of ex tunc on the public side does not constitute a breach of the principle of protecting citizens' trust in law, or interference with legal certainty or acquired law. The Constitutional Court found in sp. zn. In the sole possible case of a breakthrough in the prohibition on the retroactive application of the rule of law in the procedure for the control of standards in the horizontal application of fundamental rights and freedoms, the Constitutional Court accepted the protection of values falling within the framework of the material core of the Constitution in accordance with Article 9 (2), values whose protection, even at the cost of breaking the ban on genuine retroactivity, contains the famous" Radbruch formula. "
For these, the petition in question cannot be interpreted as meaning the "application for annulment 'of Paragraph 6 (2) (a) of the Trade Act, valid and effective until 30 June 2008. The legal provision in question regulates the legal relationship in which the addressee of the alleged plea of unconstitutionality (Articles 4 (4) and 26 (1) of the Charter) is public authority and not a private law body. Therefore, in the case at hand, the conditions for the procedure for the specific control of standards under Article 95 (2) of the Constitution are fulfilled within the meaning of the Constitutional Court's legal opinion expressed in the finds sp. zn.
Finally, there is also the issue of the relevance of the legislative amendment to the standard control procedure. In the sp. zn. Pl. ÚS 15 / 01 of 31.10.2001 (N 164 / 24 SbNU 201; 424 / 2001 Coll.) The Constitutional Court noted on this issue, i.e. the impact of the amendment of the legal provision in the procedure on the control of standards for the procedure under § 66 (1) and § 67 (1) of Act No. 182 / 1993 Coll., that the amendment to the repeal of the proposed legal provision constitutes a ground for refusal of the application or termination of the procedure on the control of standards only if it is relevant for the assessment of the constitutionality of that provision. That legal opinion was subsequently confirmed by a number of other findings of the Constitutional Court [sp. zn. However, the situation in which there is no change is different from that in which the contested provision is removed and replaced by a new provision (or legislation), even in the case of identical wording. Since the legislative existence of a law (validity) is shaped by a single legislator's will and speech (publication of a regulation), the identity of the legislator (validity identity) is not given for two content identical and at the time of successive legislation. Based on this legal opinion, the Constitutional Court has applied the provisions of Paragraph 67 (1) (or Article 66 (1)) of Law No 182 / 1993 Coll. in similar cases (see for example resolution sp. zn.
The case in question is also different. The amendment of the Commercial Act, implemented by Act No. 130 / 2008 Coll., was not amended only part of the provision § 6 (2) (a) of the Commercial Act, but the whole of its previous classification was abolished and replaced by a new one (although the new one would not contain a relevant change for the purposes of assessing the constitutionality of the whole provision). It follows from the conclusion that, despite the content identity, in the absence of unity of the legislator's will and his speech, the conditions for the procedure for the specific control of standards under Article 95 (2) of the Constitution, in the sense of the Constitutional Court's legal opinion, expressed in the findings of the sp. zn.
Constitutional conformity of competence and legislative process
In accordance with the provisions of § 68 (2) of Act No. 182 / 1993 Coll., as amended, the Constitutional Court is required to assess whether the contested law, its individual provisions, or other legislation or its individual provisions, has been adopted and issued within the limits of the Constitution established competence and in a constitutionally prescribed manner.
The Chamber of Deputies approved the draft law in question, i.e. Act No. 167 / 2004 Coll., amending Act No. 455 / 1991 Coll., on Business Business (Trade Act), as amended, and some related laws, at its 27th session on 24 February 2004 by Resolution No. 921, when 130 Members and Members were opposed to it.
On 25 March 2004, at its 14th meeting of the Senate's fourth term of office, the bill was debated by the Senate and approved by Resolution 367 the bill as referred to by the Chamber of Deputies. In vote 39, 40 of the 62 senators present were in favour, 22 abstained.
The law in question was signed by the relevant constitutional authorities and was duly declared under No 167 / 2004 Coll. in the amount of 57 Collection of Laws, which was circulated on 16 April 2004, and, according to Article X, became effective on the date of the entry into force of the Treaty of Accession of the Czech Republic to the European Union, i.e. on 1 May 2004.
Content compliance of the contested legal provision with the constitutional order
The content change of the definition of the concept of integrity by committing an intentional offence against which the appellant is opposed by his proposal has resulted in a new classification of the provisions of Paragraph 6 (2) (a) of the Commercial Act, as amended by Act No 356 / 1999 Coll. The explanatory note to the Government's draft amendment to the Trade Act (Press 263, 1999, III. Election), adopted by the Parliament of the Czech Republic and published under No. 356 / 1999 Coll., to the fringes of the new text of Paragraph 6 (2) (a), which did not limit the concept of integrity to the link between the offence committed and the subject of the business, in comparison with the regulation contained in Law No. 455 / 1991 Coll. in view of its current ordinary regulation in respect of the wrongful conviction committed intentionally, the proposal distinguishes with the penalty of the wrongful conviction according to its gravity. A final conviction for an intentional offence, if an unconditional prison sentence of at least one year has been imposed, will always result in a loss of integrity. The same result will be the final conviction for an offence the nature of which is linked to an enterprise or subject to an enterprise, with the proposal distinguishing more intentionally and negligently offences. According to the current legislation, integrity is assessed by reference to the facts of the offence and the specific subject matter of the business, event. in the light of the concern about the repetition of criminal activity in the course of trade, this does not allow the business of those persons who commit crime generally related to business to be restricted. It will no longer be established in the assessment of integrity whether there is a concern about the repetition of criminal activity in the conduct of trade, since this legislation allowed for an overly subjective assessment in the administrative context of the Office. '
At the 17th meeting of the Chamber of Deputies of the Parliament of the Czech Republic at the second reading held on 13 October 1999 to justify the new text of Paragraph 6 (2) of the Trade and Industry Act, the Minister of Industry and Trade Miroslav Grégr stated: "The requirements for the integrity of the entrepreneur are being tightened and clarified in order to effectively prevent access to business for persons convicted of serious crimes. In the future, not only should the offence, the nature of which is linked to the subject of business, be affected by a fault of integrity, but by any intentional offence for which an unconditional sentence of imprisonment of more than one year has been imposed. '
By the proposal of the Regional Court in Pilsen, the contested jurisdiction of the legislative provision in question, adopted by Act No 167 / 2004 Coll., was based on an intention which does not affect the grounds of the alleged inconstitutionality. In the explanatory memorandum to the government amendment to the Trade Act (press 200, 2003, IV electoral term), adopted by the Parliament of the Czech Republic and published under No. 167 / 2004 Coll., it states in this context: "Paragraph 6 (2) (a) specifies the existing rules on the assessment of integrity in cases where a natural person has been convicted of a intentional offence committed in conjunction with other offences."
If the reason for the contested legal regulation was to restrict the business of those persons who commit crime in general related to business, as well as to tighten up the requirements for integrity, the appellant is deemed to be in breach of the fundamental right to do business under Article 26 (1) in conjunction with Article 4 (4) of the Charter.
The issue of integrity in relation to the provisions of Article 26 of the Charter was dealt with by the Constitutional Court in the sp. zn. He stated that however Article 26 (2) The Charter provides for the possibility of restricting the exercise of certain professions or activities by law, without specifying the purpose of the restriction, but the legal standard issued on the basis of it must be maintained in the proportionality test. It follows that, first, the very nature of the objectives pursued by the restriction must be assessed and, secondly, the need for the chosen device from the point of view of its effectiveness in relation to fundamental law - i.e. free enterprise. When assessing the constitutionality of Sections 2e (1) (c) and (5) of Act No. 252 / 1997 Coll., on Agriculture, as amended, he concluded that the condition of integrity itself was no longer met in view of the necessity of the chosen device, since it is insensitive to the fundamental freedom of business and the desired state (objective pursued) can be achieved otherwise. For these reasons, the Constitutional Court decided to abolish the provisions of Paragraph 2e (1) (c) of the Act on Agriculture, which defines the condition of integrity, and as related, the provisions of Section 2e (5) of the Act on Agriculture, which defines the concept of integrity for the purposes of the Act on Agriculture.
If possible under Article 26 (2) The Act lays down conditions and restrictions for the pursuit of certain professions or activities, within the scope of which the restriction of the fundamental right to engage in business pursuant to Article 26 (1), in conjunction with Article 41 (1) of the Charter, must, within the meaning of Article 4 (4) of the Charter, investigate the substance and meaning of the fundamental right in question. The Constitutional Court has already stated this argument in its finding in sp. zn.
The purpose and purpose of the conditions of integrity, limiting the fundamental right to entrepreneurship, is to protect the fundamental rights and freedoms of third parties, which could be affected by undertakings operating in breach of the law and good manners. However, this condition must comply with the considerations arising from the principle of proportionality for the assessment of a standard means of ensuring one and limiting another fundamental right or freedom.
As the Constitutional Court consistently judges [see the find sp. zn. Pl. ÚS 4 / 94 of 12.10.1994 (N 46 / 2 SbNU 57; 214 / 1994 Coll.), the finding sp. zn. Pl. ÚS 15 / 96 of 9.10.1996 (N 99 / 6 SbNU 213; 280 / 1996 Sb.), the finding of sp. zn. Pl. ÚS 16 / 98 of 17.2.1999 (N 25 / 13 SbNU 177; 68 / 1999 Sb.), the principle of proportionality is based on three steps: Pl. ÚS 41 / 02 of 28.1.2004 (N 10 / 32 SbNU 61; 98 / 2004 Sb.), and others], the principle of proportionality is based on the methodology on three steps: First is an assessment of the simple purpose, the assessment of the assessment of the choice of the optional normative. If the legislative instrument is not capable of achieving the intended purpose, the legislature is a manifestation of insolence, which is considered contradictory to the rule of law. The second step in the application of the principle of proportionality is to assess the simple right of need, which follows the analysis of the plurality of possible legislative means in relation to the intended purpose and their subsidiarity in terms of the limitation of the Constitution of a protected value - a fundamental right or a public good. If the legislature of the intended purpose is to achieve alternative normative means, the constitutionally conformist is the one who limits the constitutional value to the minimum. If the simple right under consideration, on the one hand, pursues the protection of one of the constitutionally protected values, on the other hand, it limits another, the third aspect of the principle of proportionality, which is the measurement, is the methodology of considering these in a conflict of standing constitutional values.
If the first aspect of the principle of proportionality is to examine the rational link between the legislature of the intended purpose and the chosen normative instrument, it implies the need to justify the argument that the commission of any intentional criminal offence for which an unconditional custodial sentence of at least one year has been imposed would be to question the credibility of the trader in the conduct of the business (e.g. committing a criminal offence of a fight in the performance of the craft trade of underwriting, cutting, carpentry, bakery, etc.).
In the legal order of the Czech Republic, the concept of integrity with regard to the commission of an intentional crime is regularly defined in the light of the subject matter of the activity. This can be demonstrated by a number of legal adjustments:
- pursuant to § 4a (1) (a) of Act No. 553 / 1991 Coll., on the Municipal Police, as amended, "the right for the purposes of this Act is not the one who has been legally convicted of an intentional offence or has been convicted of a malpractice offence in the last 5 years if his conduct by which he committed the offence is contrary to the post of an officer under that law ',
- pursuant to Article 3 (3) of Act No 95 / 2004 Coll., on the conditions for obtaining and recognising professional competence and specialised competence for the pursuit of the profession of medical practitioner, dental practitioner and pharmacist: "for the purposes of this Act, those who have not been lawfully sentenced to an unconditional custodial sentence for an intentional offence committed in connection with the provision of medical care, or those who are regarded as having not been convicted,"
- pursuant to § 7 (a) of Act No. 312 / 2006 Coll., on Insolvency Trustees, as amended by Act No. 41 / 2009 Coll.: "the condition of integrity under § 6 (1) (d) does not apply to a natural person who has been convicted of an intentional offence committed in connection with the performance of the function of Insolvency Trustee or any other intentional offence against binding rules of the market economy,"
- pursuant to Article 6 (4) (a) of Act No. 245 / 2006 Coll., on public non-profit constitutional health institutions and on the amendment of certain laws: "for the purposes of this Act, the person who has been convicted of a criminal offence whose substance is related to the provision of health care shall not be considered to be righteous,"
- pursuant to Article 8 (3) (b) of Act No. 417 / 2004 Coll., on Patent Representatives and on the amendment of the Act on Industrial Property Protection Measures: "for the purposes of this Act, no person who has been convicted of a criminal offence committed negligently in connection with the provision of services of a Patent Representative shall be deemed to be righteous,"
- Article 6 (2) (b) of Act No. 162 / 2003 Coll., on the conditions for the operation of zoos and on the amendment of certain laws (the Law on Zoos): "the condition of integrity does not satisfy those who, 3 years before the application was made, were convicted of a criminal offence, the nature of which relates to an activity carried out in a zoological garden, unless it is regarded as not being convicted, or those who were at that time found guilty of an offence or other administrative offence under legislation on the protection of nature and the environment, veterinary or animal protection rules against torture '.
When applying the proportionality test suitability The Constitutional Court assesses, on the one hand, the presence of a rational relationship between the purpose and the normative means, or the degree of its expected or actual fulfilment, and, on the other, the intensity and extent of the restrictions in the collision of the existing fundamental right or freedom or public good.
By comparing the two legal means used to define the integrity of the offence by committing the intentional crime, the Constitutional Court considers the contested regulation to be, on the one hand, its consequences which are outside the limits of the purpose pursued (i.e. also involving cases where the rational link between the purpose and the normative instrument is not present) and, on the other, its intensity and scope limiting the conflict of fundamental law to the extent that it is also affected in the third aspect of the proportionality test in the context of the measure. In this context, neither will any objection to the insecurity and ambiguity of the definition of the concept of integrity by committing an intentional offence related to the subject matter and the activity to be dealt with. The decision to abolish a business authorisation by an administrative authority is subject to review by the court and, therefore, the court is also able to examine the correct interpretation of the concept of integrity by committing an intentional offence relating to the subject of the activity and to discuss it. Furthermore, the present case law of the courts does not indicate in any way that the general courts would not be able to offer such an interpretation, supported by rational arguments. Illustration of this conclusion should be the decision of the Regional Court in Ostrava sp. zn. 22 Ca 137 / 2004, according to which "criminal offences leading to the loss of integrity within the meaning of § 6 (2) (b) of Act No. 455 / 1991 Coll., Trade Act, are not only those offences whose nature is the enterprise (economic offences): for the application of the provision cited, it is essential that the offence is related to the business activities of a particular person. Thus, it cannot be considered as fair for an entrepreneur to enforce his claims by acting in a final judgment in criminal proceedings. '
For that Constitutional Court, it concluded that the provision of § 6 (2) (a) of Act No. 455 / 1991 Coll., on Business Business (Trade Act), as amended by Act No. 167 / 2004 Coll., was contrary to Article 26 (1) and (2) in conjunction with Article 4 (1) of the Charter.
Formation of the operative part of the "derogation 'finding and its legal consequences
When the Constitutional Court ruled in the procedure for the specific control of standards under Article 95 (2) of the Constitution in the sense of the legal opinion expressed in the findings sp. zn. In the event of the conclusion of a breach of the legal provision under appeal with the constitutional order, the academic opinion expressed:
- In the finding sp. zn. Pl. ÚS 48 / 06 of 9.12.2008 (54 / 2009 Coll.) did so in the form of: "Paragraph 105 (1) of the Third Act No. 235 / 2004 Coll., on value added tax, as amended by Act No. 296 / 2007 Coll., the text" The declaration of bankruptcy does not interrupt the tax procedure and, after the declaration of bankruptcy, the payer will return the excessive deduction calculated if he does not have tax arrears arising before and after the declaration of bankruptcy. "
- In the finding of sp. zn. Pl. ÚS 72 / 06 of 29.1.2008 (291 / 2008 Coll.), the Constitutional Court concluded that the provision of § 57 (5) of the Third Act No. 337 / 1992 Coll., on the administration of taxes and charges, as amended by Act No. 230 / 2006 Coll., was contrary to Article 1, Article 11 (1), Article 36 (1) and (2), Article 37 (3) of the Charter, Article 6 (1) and Article 13 of the Convention, as a result of the proposal of the Supreme Administrative Court pursuant to Article 95 (2) of the Constitution in that part. Having regard to Article 89 (2) The consequences of the unconstitutionality found by the public authorities are required to be reflected in their decision-making practice, namely not applying the provision when dealing with specific cases. '
- In the opinion of sp. zn. Pl. ÚS 12 / 06 of 2.7.2008 (342 / 2008 Coll.), by the following academic statement: "The proposal to declare the unconstitutionality of the provisions of § 37a (1) sentence of the first Act No. 588 / 1992 Coll., on value added tax, as amended," If an excessive deduction of a refundable overcharge results, the payer shall be returned without application within 30 days of the measurement of the excess deduction, including in the case of bankruptcy. In this case, the special Regulation shall be followed. '; Article 11 of the Charter does not give rise to any interpretation of the increased protection of the rights of the State as owner (in tax matters represented by the tax administrator) which would, in the particular case under consideration, i.e. in bankruptcy cases, give it an advantage and de facto grant it a privileged position vis-à-vis other creditors.'
The Constitutional Court recalls that, with the said modality of the procedure on the specific control of standards in § 70 of Law No 182 / 1993 Coll. the types of statements contained do not correspond. The Constitutional Court has accepted in a number of its findings the extension of the typology of statements according to § 70 of Act No. 182 / 1993 Coll. It did so, for example, in the finds sp. zn. Pl. ÚS 41 / 02 of 28.1.2004 (N 10 / 32 SbNU 61; 98 / 2004 Coll.), sp. zn. ÚS 34 / 04 of 14.7.2005 (N 138 / 38 SbNU 31; 355 / 2005 Coll.) and sp. zn. ÚS 43 / 04 (see above), justifying its action.
If the procedure in question is to be concluded on the constitutional conformity of the legal provision in question, then the rejection of the application for its annulment must be interpreted in the sense of the rejection of the application for its inapplicability (Paragraph 70 (2) of Law No 182 / 1993 Coll. per analogiam) - if the relevant law of the legislature has already been abolished from the point of view of the relevant moment, it cannot be subsequently annulled by the Constitutional Court. In the event of the conclusion of a breach of the legal provision in question with the constitutional order (if the bail-out of the findings of the sp. zn. Pl. ÚS 33 / 2000, sp. zn. Pl. ÚS 42 / 03 and sp. zn. Pl. ÚS 38 / 06 results from the horizontal application of fundamental rights and freedoms, i.e. the protection of the fundamental rights of third parties), its necessary consequence is the academic statement of its contradiction with the constitutional order. The consequence of this statement is the non-applicability of the legal provision in question (if it is contrary to the constitutional order not only the legal provision, i.e. the legislative instrument but also its purpose), or the definition of the conditions under which compliance with the legislator's intended purpose can be achieved through a constitutional procedure, i.e. direct application of the constitutional order (§ 70 (1) of Act No. 182 / 1993 Coll., as amended, per analogiam).
The purpose of the procedure for the specific control of standards in cases where the relevant legal provision has already been abolished by the legislator, can therefore be achieved by stating that it is contrary to constitutional order, in the justification of the finding, by defining a framework (condition) for the direct application of constitutional order (§ 70 (1) of Act No. 182 / 1993 Coll., as amended, per analogiam). In the present case, in the light of Article 26 (1) and (2) in conjunction with Article 4 (1) of the Charter, the legislature may, in accordance with Article 6 (2) (a) of the Act No. 455 / 1991 Coll., as amended by Act No. 167 / 2004 Coll., as amended by Act No. 167 / 2004 Coll., the intended purpose of the proceedings before the General Court, from which the procedure for a specific control of the standards has arisen, be achieved by limiting the conditions of integrity for the purposes of the Trade Act to those offences committed intentionally, whether alone or in conjunction with other criminal offences for which an unconditional imprisonment of at least one year has been imposed and of which the nature relates to the subject of business, or to business in general.
President of the Constitutional Court:
JUDr. Rychetský v. r.
*) NB: Collection of finds and resolutions of the Constitutional Court, Volume 41, Found No. 125, p. 551, published under No. 409 / 2006 Coll.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No 151 / 2009 Coll., on the application for annulment of § 6 paragraph 2 (a) of Act No. 455 / 1991 Coll., on Business Business (Trade Act), as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 29.05.2009 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0