The Constitutional Court found No 177 / 2011 Coll.

Paragraph 104e (b) of Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended, is deleted from the date of the publication of this finding in the Collection of Laws.

The Constitutional Court received on 8 November 2010 a proposal from the Supreme Administrative Court (hereinafter referred to as "the appellant ') to repeal the provisions of Section 104e (b) of Act No 582 / 1991 Coll., on the organisation and implementation of social security, as amended.

The appellant did so in accordance with Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court '), after having concluded, in the context of its decision-making activities in accordance with Article 95 (2) of the Constitution of the Czech Republic and Article 48 (1) (a) of the Act No. 150 / 2002 Coll., the Administrative Rules of Procedure (hereinafter referred to as" the Rules of Procedure'), that the provisions of Article 104e (b) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter of Fundamental Rights'), as amended by the Rules of Procedure to be applied in the case sp.

In that case sp. zn. 4 Ads 6 / 2010 is decided by the Supreme Administrative Court on a complaint against the order of the Municipal Court in Prague of 14 September 2009 No 12 Cad 5 / 2009-13 on the refusal of an action against the decision of the District Social Security Administration of Prague-West of 19 February 2009 No 42010 / 220-9015- 26.1.2009- 1437 / 9 / OM / 3 on the non-compliance of the application for remission of the penalty imposed by Act No 589 / 1992 Coll., on social security insurance and contribution to the state employment policy, as amended.

First of all, the appellant points out the basic argument of the order of refusal of the Municipal Court in Prague, which was a reference to the provision of § 104e (b) of Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended, excluding judicial review in cases of remission of periodic penalty payments for non-payment of social security contributions. In addition, it recaptures for the assessment of the case the relevant provisions of sub-constitutional law, namely § 104ch of Act No. 582 / 1991 Coll., as amended, Decree No. 161 / 1998 Coll., on the remittance of periodic penalty payments by social security administrations, as amended by Decree No. 329 / 2007 Coll., § 70 (f) s. s., and § 104e (b) of Act No. 582 / 1991 Coll., as amended. The appellant draws attention to the development of the case law of the Constitutional Court when, in the case-law adopted before the Court of Justice [Resolution sp. zn. I. ÚS 282 / 2000 of 27.9.2000 (U 35 / 19 of the SbNU 311)], the Constitutional Court held a prudent position on the judicial review of the administrative discretion in respect of the remission of social security premiums. From the point of view of constitutional law, the current case law of the Constitutional Court [finding sp. zn. III. ÚS 2556 / 07 of 22.7.2009 (N 164 / 54 SbNU 93), resolution sp. zn. III. ÚS 103 / 06 of 23.1.2007 (in the Collection of Finals and Order of the Constitutional Court not published; available at http: / / nalus.ujud.cz), resolution sp. zn. IV. ÚS 2323 / 07 of 13.11.2007 (U 11 / 47 SbNU 1047), resolution sp. zn. IV. ÚS 1136 / 08 of 17.4.2009 and resolution sp. both available at http: / / nalus.ujud.cz)], in which he repeatedly expressed the need for judicial review of the tax exemption decision pursuant to Article 55a of Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended, (hereinafter referred to as the "Tax Code '). The Supreme Administrative Court considers that the procedure of the administrative authority in the course of the payment of periodic penalty payments pursuant to Act No. 582 / 1991 Coll., as amended, and pursuant to Paragraph 1 (1) of Decree No. 161 / 1998 Coll., on the remission of periodic penalty payments by social security administrations, as amended by Decree No. 329 / 2007 Coll., does not differ from that of the administrative authority in the course of the remission of tax accessories due to the elimination of hardness. In both cases, the obligation to pay the tax accessories or periodic penalty payments constitutes an intervention in the property sphere of the participant, that is to say, its right to property pursuant to Article 11 (1) of the Charter, and, at the same time, an intervention in the right to peaceful use of property within the meaning of Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms, with the remission of the periodic penalty payments, similar to the remission of the accessories of the tax, means the withdrawal of that intervention. According to the appellant, the application for exemption (its accessories), as well as the penalty payment for non-payment of social security premiums, is based on the administrative discretion of the administration, in which case both are subject to an assessment of facts (hardness of the law) other than those which led to the assessment of the accessories of the tax or social security and the contribution to the state employment policy.

For all the reasons so interpreted, the Supreme Administrative Court proposes to repeal the provisions of Section 104e (b) of Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended, for a conflict with Article 36 (2) of the Charter.

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 22 December 2010, the President of the Chamber of Deputies of the Parliament of the Czech Republic Miroslav Nemcová states that the provision of § 104e was incorporated into Law No. 582 / 1991 Coll., amending and supplementing the Act of the Czech National Council No. 582 / 1991 Coll., on the organisation and implementation of social security, and certain other laws, while the present wording of the provision was inserted into Act No. 582 / 1991 Coll., Act No. 151 / 2002 Coll. Act No 151 / 2002 Coll. was submitted to the Chamber of Deputies by the Government on 1 October 2001 as House Press No. 1081. In the explanatory memorandum, the government expressed the belief that the proposed regulation is in line with the constitutional order of the Czech Republic and the international treaties by which the Czech Republic is bound. As regards the contested provision, the Government stated in the explanatory memorandum that the waiver of the periodic penalty payment is a measure which, under the provisions of § 104ch of Act No. 582 / 1991 Coll., the Ministry of Labour and Social Affairs can do in order to remove the hardness of the law and, for the same reason, the penalty may also be waived by the Czech Social Security Administration or the District Social Security Administration, under the conditions laid down in Decree No. 161 / 1998 Coll., issued on the basis of the authorisation contained in that statutory provision. Excluding the judicial review of the legality of this decision on the remission of periodic penalty payments, the Government has proposed that it is a procedure of an exceptional nature in substance, since its content is the implementation of the authorisation of an administrative authority to go beyond the general substantive rules and its decision to deprive someone of the need to fulfil his statutory obligations. It was the extraordinary nature of this type of procedure that led the government to consider excluding judicial review.

President The Chamber of Deputies further notes that the first reading of the House of Press 1081 took place on 25 October 2001, the constitutionally legal committee then discussed the press at its 97 meeting on 18 January 2002, recommending the Chamber of Deputies to adopt the bill as its comprehensive amendment, which took over the dictation of the provision of Paragraph 104e as presented by the Government. At the second reading, which took place on 30 January and 8 February 2002, no amendment was made to the provision. At the third reading of 15 February 2002, the Chamber of Deputies adopted a bill with 149 votes for 159 Members present. It also contains information on the further progress of the legislative process, according to which the Senate approved the draft law on 21 March 2002, signed by the President on 26 March 2002 and the Prime Minister on 2 April 2002; In the Collection of Laws the Act was published on 17 April 2002 under the number 151 / 2002 Coll.

Finally, it is noted that Law No 151 / 2002 Coll. was adopted after the proper implementation of the legislative process, signed by the relevant constitutional authorities and published in the Collection of Laws, and expressed the view that the legislature acted in the belief that the adopted law was in accordance with the Constitution of the Czech Republic and the Code of Law, and it is at the Constitutional Court's discretion to examine the constitutionality of the provisions of § 104e (b) of Act No 582 / 1991 Coll., on the organisation and implementation of social security, as amended, and to give the relevant decisions.

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 beginning of his observations, received by the Constitutional Court on 15 December 2010, his President Milan Štěm recap the legislative development of the regulation of the provisions of Section 104e of Act No. 582 / 1991 Coll., on the organisation and implementation of social security. It states that the provision in question was incorporated into Act No. 582 / 1991 Coll. in its first amendment made by Act No. 590 / 1992 Coll., that is, before the Senate was established. The Act introduced a fourth title (Sections 104a to 104h) in Part Six, governing the procedure, concerning the management of social security premiums and the contribution to the state employment policy. Paragraph 104e provided that an appeal may be brought before a court (referring to Article 244 et seq. of the Civil Code, which laid down an exclusion, according to which the courts did not examine the decision on claims for transactions not entitled or applications for the abolition of the law). In the subsequent period - already after the creation of the Senate - the provision of § 104e of the Act in question was amended in the context of the adoption of Act No. 150 / 2002 Coll., the Administrative Rules in which the Constitutional Court was held to have annulled part of the fifth order. In the Administrative Rules, judicial review of decisions of administrative bodies has also been newly regulated, including the provision that judicial review excludes acts of administrative authority whose review excludes specific law. The regulation contained in the Administrative Rules was also reflected in the legally related legal provisions in the framework of Act No 151 / 2002 Coll., amending certain laws in connection with the adoption of the Administrative Rules. It also included an amendment to the Act on the Organisation and Implementation of Social Security (part-fifteenth), which also laid down a situation where certain decisions are excluded from judicial review, one of these cases (Article XV (8)) was the introduction of the new text of the provision of Paragraph 104e (b), according to which decisions on the remission of periodic penalty payments (Article 104ch) are excluded from judicial review. The Government justified that concept of exclusion of judicial review "the exceptional nature of this type of procedure '.

The President of the Senate further states in his observations that the bill in question was forwarded to the Senate on 25 February 2002 after approval in the Chamber of Deputies. In the Senate, as Senate Press No. 224, it was then discussed in the Committee on Territorial Development, Public Administration and the Environment, both recommending the Senate to approve this so-called accompanying act as referred to by the Chamber of Deputies. The Senate subsequently discussed the bill at its 15th meeting (3rd term) on 21 March 2002. A representative of the petitioner, the Minister of Justice, and the rapporteur of the Constitutional Legal Committee, who presented a joint report to the two committees mentioned above, none of these speeches explicitly mentioned the issues related to the provision of Paragraph 104e (b) of the Law. The Senate decided immediately by voting no 95, in which of the 43 senators and senators present at the time of May 22, 38 against 1, the Senate decided to approve the draft law.

It is noted that, when discussing the draft law in question, neither in the Senate nor in the previous phase of the legislative process, it was not considered that the interpretation of its provisions of Paragraph 104e could or should have been regarded as contradictory to constitutional principles, as this may involve interference with fundamental rights and freedoms against which there would be no judicial protection. In this context, it also refers to the case law of the Constitutional Court of 2000, according to which it is constitutionally acceptable to exclude judicial review of decisions of administrative authorities on requests for non-compliance or to remove the hardness of the law.

Finally, the President of the Senate notes that it is up to the Constitutional Court to assess the constitutionality of the draft contested provision § 104e (b) of Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended, and to rule on the matter. In addition, it is noted in the observations that, should the proposal of the Supreme Administrative Court be upheld, it would be appropriate to take a clear view of other cases where, in the relevant laws, certain decisions of the administrative authorities are excluded from administrative review (e.g. in the regulation contained in the part of the 15th, seventeen, eighteenth, nineteenth Law amending certain laws in connection with the adoption of the Administrative Court's Rules), in the cases of decisions relating to the removal of hardness or performance to which there is no legal claim.

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 application of 4 November 2010 and the parties to the proceedings in the letter of the President of the Chamber of Deputies of the Parliament of the Czech Republic, registered at the Constitutional Court on 20 May 2011, and the President of the Senate of the Parliament of the Czech Republic, served at the Constitutional Court on 18 May 2011, expressed their consent to the termination of the oral hearing and, furthermore, the Constitutional Court considers that further clarification of the case cannot be expected from the hearing, it has been abandoned in the present case.

The application for annulment of the provisions of Section 104e (b) of Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended, was submitted by the Supreme Administrative Court pursuant to the provisions of Section 64 (3) of Act No. 182 / 1993 Coll., as amended.

As already stated in the judgment in Case No 4 Ad 6 / 2010, the Supreme Administrative Court is decided on a complaint against the order of the Municipal Court in Prague of 14 September 2009 No 12, Cad 5 / 2009-13, on the refusal of an action against the decision of the District Social Security Administration of the Prague West of 19 February 2009, No 42010 / 220- 9015- 26.1.2009- 1437 / OM / 3 on the failure to comply with the application for the waiver of the penalty imposed by Law No 589 / 1992 Coll., on social security contributions and the contribution to the state employment policy, as amended.

The Supreme Administrative Court, having concluded, in the context of its decision-making activities in accordance with Article 95 (2) of the Constitution of the Czech Republic, that the provisions of Article 104e (b) of Act No 582 / 1991 Coll., on the organisation and implementation of social security, as amended, to be applied in the resolution of sp. zn. 4 Ads 6 / 2010-36, is in breach of Article 36 (2) of the Charter, the tribunals procedure provided for in § 48 (1) (a) S. Resolution of 21 September 2010 No 4 Ads 6 / 2010-36 suspended and submitted to the Constitutional Court of the present application for the control of standards.

Specific control of standards pursuant to Article 95 (2) The Constitution of the Czech Republic is a judicial control of 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 of the Czech Republic, 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.

According to the petition, the Supreme Administrative Court requests that the Constitutional Court find "the provision of § 104e (b) of Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended," annulled.

According to the provisions of § 104e (b) of Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended, decisions on "remission of periodic penalty payments (§ 104ch)" are excluded from judicial review.

In accordance with the provisions of Section 68 (2) of the Law on the Constitutional Court, the Constitutional Court is required to assess whether the contested law, its individual provisions, or any other legislation or its individual provisions have been adopted and issued within the limits of the Constitution of the Czech Republic by the designated competence and by the constitutionally prescribed means.

It has been found from the House of Press and Tailor Reports, as well as from the observations of the President of the Chamber of Deputies and the President of the Senate of the Parliament of the Czech Republic, that the Chamber of Deputies approved the draft law in question, i.e. Act No 151 / 2002 Coll., amending certain laws in connection with the adoption of the Administrative Rules, at its 36th session of 15 February 2002 in Voting No 596 by Resolution No 2106, when 149 Members and Members of Parliament in favour of its adoption. On 21 March 2002, the bill was discussed at its 15th meeting of the third term of office of the Senate plenary and Resolution No 327 The Senate has shown the will not to deal with the bill. The resolution in question was adopted in vote 95, in which of the 43 senators and senators present in May 22 voted in favour of the motion 38, against 1.

The law in question was signed by the relevant constitutional authorities and was duly declared under No 151 / 2002 Coll. in the amount of 61 Collection of Acts, which was circulated on 17 April 2002, and became effective on 1 January 2003 pursuant to Article XXVII.

On the basis of the above, the Constitutional Court notes that Act No 151 / 2002 Coll., amending certain laws in connection with the adoption of the Administrative Rules of Procedure, was adopted in accordance with the constitutional courts concerning the competence and legislative process.

The legal institute waived the penalty for the non-payment of social security contributions was in Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended, incorporated by its amendment by Act No. 241 / 1994 Coll., amending and supplementing the Act of the Czech National Council No. 589 / 1992 Coll., on Social Security Insurance and Contribution to the State Employment Policy, as amended, Act No. 100 / 1988 Coll., on Social Security, as amended, Act No. 54 / 1956 Coll., as amended, Act No. 582 / 1991 Coll. The reason for the report of the Government's proposal for the amendment to the Act on the Organisation and Implementation of Social Security in favour of the introduction of a legal institute for the remission of periodic penalty payments for the non-payment of social security premiums was as follows: "The possibility of waiving periodic penalty payments to individual social security payers is introduced to remove hardness. It is based on a similar institute (remission of tax accessories), which regulates tax and tax management regulations. The principles applicable to this Institute in the field of taxation shall also apply to social security contributions. ';

The Constitutional Court in its resolutions sp. zn. IV. ÚS 226 / 09 of 23.10.2009, IV ÚS 2323 / 07 of 13.11.2007 (U 11 / 47 CollU 1047), III ÚS 103 / 06 of 23.1.2007, IV ÚS 1136 / 08 of 17.4.2009, I. ÚS 398 / 09 of 17.6.2009, III. ÚS 963 / 09 of 14.7.2009 (Resolution available at http: / / nalus.ujud.cz) concluded, according to which the Supreme Administrative Court, whose case-law is a decisive factor in the harmonisation of the administrative practice, in cases based on the administrative discretion of the judicial review, according to which the Constitutional Court of Justice does not have a constitutional basis, must be regarded as a procedural instrument of law. In other words, in matters based on administrative discretion, it must be considered as a procedural means of protecting rights under the provisions of Section 75 (1) of the Constitutional Court Act and those laid down by the Administrative Rules.

The case-law in question resulted in the finding of sp. zn. III. ÚS 2556 / 07 (see above), in which the Constitutional Court, on the provision of § 55a of Act No. 337 / 1992 Coll. (valid until 31 December 2010), found that the tax rules provide for the possibility of making proper appeals against the decision of the tax administrator (section 4, § 48 et seq.) and the so-called "extraordinary remedies' (part 5, § 54 et seq.), among which the Act also included a waiver of tax pursuant to § 55a of that law, it is not decisive that the remission of tax is not a typical exceptional remedy. In this proceeding, the Ministry may waive the tax in whole or in part on account of irregularities arising from the application of tax laws or in the case of accessories for the removal of hardness. The purpose of this procedure is therefore to assess the facts other than those which led to the assessment of the tax, so it cannot be said that the accuracy of the assessment of the tax would be repeatedly assessed and that this would open the way for a repeat judicial review of the same facts as those which were or could be examined for the action against the decision on the assessment of the tax. At the same time, certain new conditions are laid down under which the request can be met. It is therefore not a favour of the determining authority which rests on its unlimited reasoning. Paragraph 55a therefore provides for the remission of the tax or its accessories by a combination of a vague legal concept and administrative discretion. the indefinite legal concept, the" reasons for irregularities resulting from the application of tax laws' and the "reason for the elimination of hardness', cannot be sufficiently defined in substance and its application depends on the assessment in each individual case. By doing so, the legislature created an area for the public administration to assess whether a particular situation is substitutable or not to an indefinite legal concept, and the existence of a particular situation is clearly not linked to the only possible legal consequence. it is at the discretion of the administrative authority to determine, within the limits set, such a consequence, namely whether the tax debtor's application to comply and the tax or its accessories should be waived. However, compliance with these limits - administrative discretion or abuse of them - is, in the Constitutional Court's legal opinion, revisable, as expressly follows from the provisions of Paragraph 78 (1) (b) of the Rules of Procedure; there is the right of a party to require that a decision of an administrative authority be given in due process as defined by the standards of both substantive and procedural (" tax ') law and, where appropriate, to exclude any insolence. The right to due process is therefore a public subjective procedural right which could be affected or infringed and the protection of which can be sought in court, even if there is no subjective right to grant the relief under consideration.

The Constitutional Court also referred to the case law of the Supreme Administrative Court, in particular to the legal opinion expressed by the Supreme Administrative Court in judgment No 6 A 69 / 2000-55, according to which a decision dependent on the discretion of an administrative authority (inter alia, the decision on the remission of tax under Paragraph 55a of the Tax Code) can be examined in accordance with the prescribed procedural procedure and the limits of administrative discretion.

According to the Constitutional Court, the reverse interpretation of the tax and administrative rules would then establish a state of limitation (exclusion) of the right to judicial protection within the meaning of Article 36 (2) of the Charter.

The Constitutional Court notes, however, that the legal conclusions resulting from the caselaw fully affect the current legislation contained in Section 259 and 260 of Act No. 280 / 2009 Coll., the tax rules.

The basic question for the assessment of the present case is whether that legal opinion is analogous to the judicial review of the decision to waive the penalty for non-payment of social security premiums.

Since neither the tax rules nor the administrative rules contained an explicit provision for the exclusion of the judicial review of the tax exemption decision of the tax administrator or its accessories pursuant to Paragraph 55a of the Tax Code, the Constitutional Court's legal conclusion in favour of such review in the case-law outlined above (in particular in the case-law of the Court of First Instance III) resulted in a constitutional interpretation of the relevant provisions of the Tax Code and the Administrative Court's Rules - this case-law was not adopted for that reason in the standard control procedure, but in the procedure on constitutional complaints.

In comparison to the institutes, the decision of the tax administrator to waive the tax or its accessories and the decision of the social security authorities to waive the penalty for non-payment of social security contributions, the Constitutional Court attaches the opinion of the legislator on their analogous nature. This analogous nature is given by two characters: the first is the similarity between the penalty payment for non-payment of tax and the penalty payment for non-payment of social security premiums - in both cases, the definition of the two institutes is part of a more general category (genus proximum) - both of which constitute the legal consequence of the non-payment of public service payments, the remuneration provided for by law and the purpose (to a different extent) of which is the provision of public goods by public authorities. The analogous feature of the second is the comparable purpose of the remission of periodic penalty payments in both cases, which is to eliminate hardness in individual cases and in specific circumstances which are not generally predictable by law and whose assessment is subject to administrative discretion.

If, in the case of a legal institution, the waiver of penalty payments for non-payment of social security contributions - contrary to the situation of the legal institution, the remission of tax and its accessories - in the case of the provisions of Paragraph 104e (b) of Act No 582 / 1991 Coll., on the organisation and implementation of social security, as amended, is given an explicit legal obstacle to judicial review, the analogy indicated - contrary to the procedure contained in the sp. zn. III. ÚS 2556 / 07 - can not only lead to a constitutionally conformal interpretation of the relevant simple law, but necessarily results in a derogatory conclusion as a result of a breach of Article 104e (b) of Act No 582 / 1991 Coll., as amended, with Article 36 (2) of the Charter.

In this context, the Constitutional Court points out that the decision to waive the penalty for non-payment of social security contributions is not the substance of the case. it is only a respect for the limits of administrative discretion, it is the protection of the proper process and the exclusion of indiscretions in decision making, i.e. the guarantee of the right to due process, even if in such cases the substantive subjective right to grant the allowance (remission of periodic penalty payments) is not given.

The Constitutional Court finds that the assessment of the constitutional conformity of any such legal regulation necessarily requires a concrete examination of the fulfilment of the conditions of the analogous application of the legal conclusions resulting from the relevant case-law of the Constitutional Court, in particular from the finding of sp. zn. III. ÚS 2556 / 07.