The Constitutional Court found No 200 / 2018 Coll.
The Constitutional Court found of 14 August 2018 sp. zn.
Valid
200
FIND
The Constitutional Court
On behalf of the Republic
On 14 August 2018, the Constitutional Court decided under sp. zn. JUDr. Zdeněk Koudelkou, Ph.D., a lawyer, with the registered office of Optatova 874 / 46, Brno, to abolish part of the provision of § 6 (3) in the figure "2 000 ', part of the provision of § 11 (2) in the figure" 2 000' and § 13 (3) in the Decree of the Ministry of Justice No. 330 / 2001 Coll., on the remuneration and replacement of the court executor, on the remuneration and reimbursement of the expenses incurred by the manager and the conditions of liability insurance for damage caused by the executor, as amended, with the participation of the Ministry of Justice as party to proceedings,
as follows:
Motion denied.
Reasons
Subject matter
1. By a proposal pursuant to Article 64 (2) (b) of Act No 182 / 1993 Coll., on the Constitutional Court, which was served on 15 June 2017 by the Constitutional Court and supplemented by a submission on 23 June 2017, the Group of 10 Senators (hereinafter referred to as "the Proposals") requested that the Constitutional Court, in proceedings under Article 87 (1) (b) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), annul the following provisions of Decree No. 330 / 2001 Coll., on the remuneration and substitutes of the judicial executor, on the remuneration and reimbursement of the final expenses of the company manager and on the conditions of liability insurance for damage caused by the executor, including the later provisions, including Decree No. 341 / 2016 Coll., (hereinafter referred to "):
(a) part of the provision of Paragraph 6 (3), consisting of the figure "2 000,"
(b) part of the provision of Paragraph 11 (2), consisting of the figure "2 000,"
(c) Paragraph 13 (3).
Text of the contested provisions
2. The contested provisions shall read as follows:
(a) Remuneration for execution imposing payment of the amount of money
Paragraph 6 (3) of Decree No. 330 / 2001 Coll.: The remuneration referred to in paragraph 1 is at least "CZK 2,000."
(b) Common provisions on remuneration for the execution of the execution activity
Paragraph 11 (2) of Decree No. 330 / 2001 Coll.: If the right of the executor to conduct the execution is withdrawn by decision of the court to exclude the executor or to suspend the execution or change of the executor pursuant to § 51 (a), (b) and (d) of the Act, the remuneration of the executor whose authorisation has expired shall be "CZK 2,000 ', unless otherwise specified.
(c) Reimbursement of final expenditure
Paragraph 13 (3) of Decree No. 330 / 2001 Coll.: "If the debtor fulfils the obligation within 30 days of the date of receipt of the call for payment of the enforced claim and pays the advance on the reduced execution costs and the authorised costs, the executor shall be entitled to reimbursement of the final expenses in a lump sum of CZK 1,750 instead of the refund referred to in paragraph 1. Paragraph 2 shall apply mutatis mutandis. ';
3. Decree No. 330 / 2001 Coll. was last amended by Decree No. 441 / 2016 Coll. of 20 December 2016, which took effect on 1 April 2017. Decree No. 441 / 2016 Coll., amending Decree No. 330 / 2001 Coll., on the remuneration and compensation of the court executor, on the remuneration and reimbursement of the completed expenses of the company manager and on the conditions of liability insurance for damage caused by the executor, as amended, Decree No. 330 / 2001 Coll. was amended in part of the contested provisions § 6 (3) and § 11 (2) by replacing the amount of "CZK 3 000" with "CZK 2 000" and by the provision of § 13 (3) the words "does not exceed the amount of CZK 10 000 and the compulsory" was replaced by "and paid". "
Arguments of the applicants
4. In the present proposal, the appellants argue in particular that the contested provisions have reduced the remuneration and compensation of the court executor in an arbitrary manner to the extent that the exercise of the execution activity is jeopardised and have liquidation effects for the members of the profession concerned. At the same time, the appellants argued that the contested provisions were arbitrary in determining the rules governing the remuneration of court executors, threatening their material security, violating the right to engage in other economic activities, unjustifiable differences in access to other similar professions and violating the prohibition of forced and compulsory work.
5. The appellants consider that the contested provisions infringed fundamental constitutional rights, namely:
- Article 1 (1) of the Constitution, since the State, in the context of the regulation in question, has made it impossible and arbitrarily made the execution of the execution activity more difficult as a matter of substance for the rule of law.
- Article 2 (3) of the Constitution and Article 2 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the "Charter"), since, in the absence of guaranteed costs of unsuccessful execution and of successful execution, costs have increased over the years, it is entirely unjustified and inappropriate to reduce the remuneration and reimbursement of the costs of the court executor. The appellants, following the fact that the Ministry of Justice in the defence of the contested provisions based its analysis on the method of the so-called model office in which it concluded that the model executive office could handle its idea with 6 employees, stated that the Executive Chamber of the Czech Republic questioned this conclusion in its observations on the draft Decree No. 441 / 2016 Coll. The legislative board of the Government, and in support of their claims in the proposal, indicated their own correlation table, which, in their view, shows that, irrespective of the definition of the reference office, the number of employees of the court executors closest to the model office ranges from 5 to 23 employees, on average from 10 to 11 employees.
- Articles 9 (1) and 26 (1) The instruments of infringement of the principle of the protection of legitimate expectations of the right to conduct an economic activity and the unjustifiably different approach of the State towards judicial executors, on the one hand, and notaries and insolvency administrators, on the other. According to the appellants, the Constitutional Court protects legitimate expectations with the fact that the right to exercise a right in the future cannot be unilaterally withdrawn. This is linked to the principle of predictability of law and the principle of legal certainty. According to the appellants, the court executor is an entrepreneur (operator of economic activity) from a tax point of view and civil law, but his activity is regulated by the State more than by any other business profession, since a part of the public authority is transferred to him. This obliges the State, as a de facto regulated cost for its activities, to establish the remuneration of the court executor to an extent capable of ensuring the long-term performance of that activity and not to make unjustified changes.
6. The appellants consider that the reason for the contested provisions may have been the de facto effort by the Minister of Justice, Dr. Robert Pelican, Ph.D., to reduce the number of executors in the form of economic "starvation." In the appellants' view, the approach of this Minister of Justice, which has led to the contested part of the legislation, is generally dangerous as it leads to risks arising from changes in the enforcement services market, negative effects on the management of the business public, possible bankruptcy of certain court executors, a reduction in the enforceability of the law, an increase in the average maturity of creditors' claims and, last but not least, an increase in the costs of debt management as a result of the extension of the money cycle, including monitoring costs.
7. In conclusion, the appellants proposed a solution in the event of the annulment of the contested provisions and following the time effects, since the provisions cited in recitals 6 (3) and 11 (2) of Decree No 330 / 2001 are not applicable if the provisions cited are repealed.
Observation of the party
8. The Constitutional Court pursuant to § 42 (4) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 77 / 1998 Coll., sent the present application for annulment of the contested provisions to the Ministry of Justice for observations.
9. In its observations of 31 August 2017, the Ministry of Justice stated that the amendment to the Decree on the Remuneration and Reimbursement of the Executioner, the remuneration and reimbursement of the completed expenses of the Company Manager and the conditions for liability insurance for damage caused by the Executive - Decree No. 441 / 2016 Coll. was not unconstitutional, and to that it provided the following arguments on the individual points of the proposal.
10. The application for annulment of Section 6 (3) and Section 11 (2) of Decree No 330 / 2001 Coll. consisting of the figure "2 000" of the Ministry of Justice stated that such a partial proposal was entirely unfounded, since the setting of the lower limit of remuneration could not be found to be unconstitutional. On the contrary, the minimum amount of remuneration shall provide for a guarantee under which the remuneration of court executors may not be made. This issue does not have constitutional legal relevance, as the problem in this case is the actual amount (which, according to the appellant, should be higher), not the minimum amount. The proposal is therefore not justified to this extent.
11. The application for annulment of Article 13 (3) of Decree No. 330 / 2001 Coll., according to which if the debtor fulfils within 30 days of the date of receipt of the request for the enforcement of the enforced claim and pays the advance on the reduced cost of execution and the authorised costs, the executor is entitled to reimbursement of the final expenses in a lump sum of CZK 1,750 instead of CZK 3,500, the Ministry of Justice considers that this proposal is not in any way convincing. The reduction of the flat-rate amount of the reimbursement of the final expenditure is provided for in the legislation in force where the debtor pays the claim without direct coercion, the reduced cost of the execution and the cost of the right after having received the call for recovery at the beginning of the execution procedure. Before the amendment carried out by Decree No. 441 / 2016 Coll., this lump sum was reduced only if the recovered supply did not exceed CZK 10,000. This reduction follows the finding of the Constitutional Court of 1 March 2007 sp. zn. In its decision, the Constitutional Court stressed that a reduced remuneration could be regarded as equivalent to the efforts made by the executor, which is also in line with the principle of proportionality, measuring the proportionality of the intervention in the property of the debtor in order to protect the property of the creditor (recovery of his claim). The Constitutional Court concluded that the constitutional conformance of the executive's remuneration should not be based on the direct dependence of the remuneration on the amount of the enforcement, but rather reflect the complexity, responsibility and strain of the execution activity. In the opinion of the Ministry of Justice, the application was not sufficiently dealt with by that view of the Constitutional Court, which testifies to a reduction in the reimbursement of the final expenses of the court executors in cases where the debtor in the context of the execution procedure fulfils his obligation and does not make it difficult to recover his debt. At the same time, the Ministry of Justice pointed out that the judicial executor should not be harmed by the legislation in question, since even the reduced lump sum of the compensation of the final expenses is covered by Paragraph 13 (2) of Decree No. 330 / 2001 Coll., on the remuneration and compensation of the court executor, on the remuneration and reimbursement of the final expenses of the manager and on the conditions of liability insurance for damages caused by the executor, as amended by Decree No. 291 / 2006 Coll., according to which it is due to exceed the amount of the final expenses of the executor effectively incurred in connection with the execution activity of the flat-rate-based amount, it shall be reimbursed in full. In this context, therefore, the proposal is also completely unfounded.
12. In the view of the Ministry of Justice, it should be recalled that, until now, the legislation in force is based on the fact that the exercise of the enforceable titles is primarily entrusted to the court executors, courts, tax administrators and administrative authorities. The Ministry of Justice considers that the contested regulation did not make the execution of the execution activity difficult (and of course this is not even the object of the contested regulation). The appellants themselves do not provide specific data that would relate to such effects on the execution activity from the date of the entry into force of Decree No 441 / 2016 Coll.
13. The Court of Justice has expressed its opposition to the claim that the remuneration of the court executor is a financial contribution from which the court executor is obliged to cover all the costs of the execution activity, as the court executor pays the costs of the execution activity both from the remuneration and from other compensation provided to him in accordance with the law. The Ministry of Justice considers that the activities of court executors cannot be regarded as a classical business, on the contrary it is a specific profession in which the State has a significant interest and therefore regulates it.
14. In addition to the claims made in the proposal for the so-called model office, the Ministry of Justice stated that the Final Report of the Impact Assessment of Regulation or RIA (the Final Report), sent to the working committees of the Legislative Council of the Government, contained a model example concerning the Executive Office, the location of which was not directly determined, not the Executive Office in Prague. Also the draft amendment to Decree No. 330 / 2001 Coll. was based on the idea of the model office of 2 697 cases per year or 4 485 cases per year. The final report, prepared for the purposes of discussion in the work committees of the Legislative Council of the Government, is based on the fact that the model office has been active on the market since 2001 and not since 2009, as stated in the proposal. In addition, the final report was revised and supplemented in the context of the resolution of the comments, and some of the observations made by the Supreme Court, such as the reformulation of the target status, added an additional variant of the solution to the justification of the Final Report, added an assessment of the material submitted from a constitutional point of view. The Prime Minister's comment on the development of several variants of the model office was also granted. It can therefore be concluded that the proposal in this respect is based on data which do not correspond to the last version of the Final Report.
15. In the view of the Ministry of Justice, it should be pointed out that the alleged infringement of the right to do business and to pursue other economic activities is not of an absolute nature. This is also demonstrated by the fact that this right can only be invoked under Article 41 (1) of the Charter within the limits of the laws implementing it. As regards the proposal in question, the Ministry of Justice states that the proportionality of the remuneration for the partial execution activities cannot be seen in isolation, but the level of the revenues of the court executive must be assessed in a broader context. Furthermore, in support of their claim that the reduction in remuneration for the partial actions of the execution procedure has a liquidation effect for the members of the profession concerned, the applicants do not provide relevant and convincing evidence.
16. In addition to the alleged breach of the principle of the protection of legitimate expectations, the Ministry of Justice stated that it was impossible to overlook the degree of superficial nature with which the proposal treats the concept of legitimate expectations. The present case cannot be compared with the finding of 9 March 2004 sp. zn. While the right to future transfer of permanent use to ownership was a "asset value 'worthy of protection within the meaning of Article 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (" the Convention'), in the case of the remuneration of court executors, it cannot be said that the decree for the once set amount of remuneration would be "property 'of the court executor. This becomes a specific claim for payment of the remuneration for the part-operation of the execution procedure for which the remuneration under the Order is due. If the statutory amount of such remuneration is not in itself a" property right' of the court executor, it cannot be relied upon to protect the legitimate expectation that this rate will not be changed. Nor can the established case law of the Constitutional Court of 7 September 2010 on salary changes in relation to other legal professions, in which it refused that the position of other legal professions would be comparable to that of the judicial independence [cf., the finding of 7 September 2010 sp. zn. Pl. ÚS 12 / 10 (N 188 / 58 SbNU 663; 269 / 2010 Coll.) to the salary of judges, the finding of 28 June 2011 sp. zn. Pl. ÚS 17 / 10 (N 123 / 61 SbNU 767; 232 / 2011 Sb.) on the salary of civil servants of 2 February 2016 sp. With the exception of judges, the reduction in pay ratios of members of a particular legal profession is generally a constitutional solution.
17. The different approach of the Ministry of Justice to judicial executors and other similar professions in terms of equality can be seen from two angles [cf. the finding of 28 March 2006 sp. zn. ÚS 42 / 03 (N 72 / 40 SbNU 703; 280 / 2006 Coll.)]. This is a non-accesorial equality, which sets out the lowest possible standard of equal treatment and consists of equality before the law, which is manifested, in particular, by the prohibition of libido in law making. The contested provisions were adopted after a prior in-depth examination and in setting a legitimate objective, and therefore non-accesorial inequality cannot be negotiated in this case. On the contrary, equality of action is linked to a particular fundamental right, and the appellants have not been able to demonstrate that the specific amounts constituting the remuneration and compensation of the court executors would be part of one of the fundamental rights guaranteed by the Charter. Therefore, we cannot talk about inequality even in that sense. There are such functional differences between the various legal professions regulated by the State, and we will find such a different legal framework for them that comparison is not well enough.
18. According to the Ministry, it is not possible to compare the performance of the court executor's activities with that of the insolvency administrator and notary. The exercise of the activities of all the professions appointed is aimed at a different objective and therefore the sense of regulation of individual activities is not comparable. Whereas the task of the court executors is to carry out the forced execution of enforceable titles, in which the executor primarily ascertains, ensures and monies the property of the debtor for the purpose of payment of the claim of the creditor, the insolvency administrators treat the property of the debtor, while the notaries are entrusted with the exercise of notaries, i.e. the drawing up of public documents and legal proceedings, the certification of legal facts and declarations, the acceptance of documents and money in the notarial custody, the activities of the judicial commissioner in proceedings on the estate, the exercise of property management and other activities. It is clearly incomparable. As regards the other legal profession, lawyers, it should be noted that by Decree No. 120 / 2014 Coll. of 26 June 2014 amending Decree No. 177 / 1996 Coll., on the remuneration of lawyers and the compensation of lawyers for the provision of legal services (legal services), as amended, the rate of legal service activities was reduced for the purpose of determining the reimbursement of costs in the event that the civil legal proceedings in which compensation is decided were initiated by an application lodged at a fixed standard, applied repeatedly by the same applicant in both factual and legal cases, and the subject of proceedings is a cash transaction, the value of which does not exceed CZK 50 000. It may be considered that the amount of compensation provided for in the proceedings affects the amount of the lawyer's remuneration and, therefore, it is not appropriate to conclude in the proposal that the Ministry has focused only on changing the remuneration of one of the regulated legal professions.
19. The Ministry also stated in its observations on the proposal that the state of the court executors also enjoyed a number of advantages which sufficiently offset the partial difficulties associated with the performance of the profession. It is worth noting from a number of these advantages that, unlike other liberal professions, the organisation of court executors is governed by the principle of numerus clausus, according to which the total number of executive offices, and therefore the judicial executors, is subject to legal regulation. This results in a substantial reduction in competition in the field and thus in an easier way to ensure a regular agenda idea. Since it is a regulated business and at the same time the State also provides for the supply of cases and thus regulates competition, it can also regulate the revenues of court executors. A similar privilege is enjoyed by the court executors on the issue of liability for misconduct in the execution and related activities. The actions of the court executor in the execution of the execution activity as well as in the drawing up of the executive records are, under the law, considered to be the execution of the state administration. Therefore, the State is responsible for any misconduct in relation to the injured persons in the scheme of Act No. 82 / 1998 Coll., on liability for damage caused in the exercise of public authority by decision or by maladministration and amending the Czech National Council Act No. 358 / 1992 Coll., on notaries and their activities (notarial order), as amended (§ 4 of the Act). In addition to the general considerations, the appellants have not provided any concrete evidence showing that the contested provisions impose a burden which could be considered manifestly unduly burdensome, it can also be noted in this section that the proposal is not justified. Also, the objection that the reduction in the remuneration of the court executors constitutes a forced job or service within the meaning of Article 9 (1) of the Charter must be rejected, in the opinion of the Ministry. Finally, the Ministry of Justice proposed that the Constitutional Court reject the application.
20. On 7 September 2017, the Constitutional Court sent the observations of the Ministry of Justice to the appellants for a possible reply, stating that they had been given a period of 15 days. The appellants did not respond to that invitation by the Constitutional Court within the prescribed time limit.
Observations of the Ombudsman
21. At the request of the Constitutional Court pursuant to Article 69 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, whether it entered the proceedings as an intervener, the Ombudsman informed the Ombudsman by letter dated 24 July 2017 that it had decided not to exercise its procedural right under Article 69 (3) of the Law on the Constitutional Court and did not enter the proceedings.
Abandonment of oral proceedings
22. The Constitutional Court concluded that further clarification of the case could not be expected from oral proceedings and, since he did not carry out the evidence, he did not order oral proceedings in accordance with Article 44 of Act No 182 / 1993 Coll., on the Constitutional Court, as amended.
Terms and conditions of the formal assessment of the proposal
23. The Constitutional Court is responsible for hearing an application for annulment of the contested parts of Decree No. 330 / 2001 Coll., a motion by a group of 10 Senators fulfils all the statutory formalities and has been submitted by persons entitled [§ 64 (2) (b) of the Law on the Constitutional Court]. At the same time, the court found none of the grounds for inadmissibility of the application or the termination of proceedings. Therefore, the conditions for a substantive assessment of the proposal are met.
Active procedural legitimacy and legal conditions for the adoption of the contested provisions
24. In the procedure for the control of standards pursuant to Article 87 (1) (b) of the Constitution, the Constitutional Court within the meaning of the provisions of Section 68 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 48 / 2002 Coll., examines whether "other legislation 'has been adopted and issued in a constitutional manner and within the limits of the Constitution provided for in the jurisdiction.
25. The appellant is a group of 10 Senators, for which Senator Jiří Oberfalzer acts, and that group is represented by that lawyer. The application for annulment of the contested provisions of Decree No. 330 / 2001 Coll. is made on the basis of Article 64 (2) (b) of the Law on the Constitutional Court. The application shall be accompanied by a signed document to which nine Senators and one Senator have confirmed that they are joining the proposal. The applicant is therefore actively authorised to submit the proposal under consideration.
26. Decree No. 330 / 2001 Coll., including the contested provisions, was issued by the Ministry of Justice. Article 79 (3) The Constitution confers powers on ministries and other administrative authorities to legislate, but this can only be done on the basis of legal authorisation and within the limits of the law. That provision of the Constitution should be interpreted strictly, this authorisation must be specific, unambiguous and clear [cf. finding of 21 June 2000 sp. zn. ÚS 3 / 2000 (N 93 / 18 CollNU 287; 231 / 2000 Coll.)]. If this is the case, the Constitutional Court is examining whether the statutory law was passed by a state body authorised to do so and within the limits of its competence, i.e. whether it was within the limits and under the law in the exercise of that competence. At the same time, the legislator's will to regulate above the legal standard must be clear from the empowerment provision. However, even in such a case, the substatutory law may not interfere with matters which can only be regulated by law (i.e. where the so-called reservation of the law applies) [cf. the finding of 18 August 2004 sp. zn. Pl. ÚS 7 / 03 (N 113 / 34 SbNU 165; 512 / 2004 Coll.) or the finding of 25 March 2014 sp. zn. Pl. ÚS 43 / 13 (N 39 / 72 SbNU 439; 77 / 2014 Coll.].
27. The authority of the Ministry of Justice to issue Decree No. 330 / 2001 Coll. results from the provisions of § 92 and § 131 (a) of Act No. 120 / 2001 Coll., on judicial executors and enforcement activities (Enforcement Regulations) and the amendment of other laws under which the Ministry empowers it to determine by decree the amount and method of determining the remuneration of the executor, the final expenses, compensation for service of documents and compensation for the loss of time, including a reasonable advance.
28. Decree No. 330 / 2001 Coll. was issued by the Ministry of Justice on 5 September 2001, published in 128 / 2001 The Collection of Laws on 18 September 2001 and became effective on the date of its publication, i.e. on 18 September 2001. Decree No. 441 / 2016 Coll. was issued by the Ministry of Justice on 20 December 2016, published in the amount of 179 / 2016 by the Collection of Laws on page 7031 on 23 December 2016 and became effective on 1 April 2017.
29. Due to the authorisation contained in Act No. 120 / 2001 Coll. in the case of the order in question, it is clear that the provisions under review have been adopted and issued by the State authority to do so by the competent authority and, in its content, did not deviate from the limits laid down in the empowerment provision to determine the amount of the executive's remuneration. Thus, if the Ministry of Justice issued Decree No. 330 / 2001 Coll. including its amendment made by Decree No. 441 / 2013 Coll., it was signed by the competent Minister of Justice and properly published in the Collection of Laws, it did so within the limits of the Constitution established competence and in a constitutional manner.
The Constitutional Court's own review
30. The appellants seek the annulment of a part of the contested provisions for their conflict with the constitutional order, contesting in particular the infringement of Articles 1 (1), 2 (3) of the Constitution and 2 (2), 9 (1) and 26 (1) of the Charter and the breach of the principle of legitimate expectations.
31. The proposal goes against the amendment made by Decree No. 441 / 2016 Coll., which took effect on 1 April 2017. This decree changed the execution tariff and reduced the minimum remuneration of the executor from CZK 3,000 to CZK 2,000. At the same time, the limit of CZK 10,000 has been removed in case of a reduction in the final expenses of the executor, if the compulsory claim is met voluntarily within 30 days of the date of receipt of the call for compliance.
32. The Constitutional Court considered the arguments put forward in the application and in the opinion of the Ministry and concluded that the proposal was not justified.
33. The Constitutional Court dealt with the issue of determining the amount of the costs of execution and the remuneration of the court executor and the constitutional interpretation of the execution tariff earlier, in particular in the opinion of plenary of the Constitutional Court of 12 September 2006 sp. zn. In that opinion, the Constitutional Court concluded that it is not an infringement of Articles 11 and 36 (1) of the Charter if, when deciding on the costs of the execution, the General Court admits to the court executor the costs of the proceedings against the debtor, provided that the execution is terminated due to a lack of property on the part of the debtor and the creditor cannot be found to be a procedural charge for the cessation of the execution. In its Opinion, the Constitutional Court based its view on the settled case-law of the various chambers of the Constitutional Court on the fact that the Constitutional Court, in its order of 31 August 2004, sp. zn. II. ÚS 150 / 04 (available at http: / / nalus.ujud.cz), expressed the basic premise that the executor acts as an entrepreneur under the Commercial Code, which corresponds as a fundamental characteristic to the status of entrepreneur, a continuous activity carried out for profit and in relation to a legitimate self-interest. At the same time, the court executor shall be remunerated for the execution successfully carried out, but shall also bear the risk that the property of the debtor will not be sufficient to satisfy the creditor or the cost of the execution, and that risk cannot be passed on without justification to the person entitled. The Constitutional Court's Board did not accept the objection that there was an inequality between a group of persons who exercise state authority within the judicial system (judges) who are guaranteed remuneration for their work and private executors to whom such a guarantee is not provided. The execution order clearly guarantees that the court executor carries out his activity for consideration (Paragraph 3 (1) of the execution order). The right to reimbursement shall in principle be granted against the debtor or, in exceptional cases, under the conditions laid down by law against the creditor. The court executor, as the holder of the claim thus granted, is no longer in the position of a public authority but in the position of a normal creditor who can recover the claim granted only by means of an enforcement procedure. The recognised costs of execution cannot be compared to the salaries of judges, because they are not remuneration for work, as is meant by Article 28 of the Charter, since they concern only employees and they are not judicial executors.
34. In the find sp. zn. Pl. ÚS 8 / 06 The Constitutional Court assessed the basis for calculating the executive's remuneration in the event of voluntary performance of the debtor following the execution order. The Constitutional Court found that the principle of proportionality of the limitation of the fundamental right to the protection of its assets guaranteed by Article 11 (1) of the Charter also applies to the execution of the judgment. The execution of the property of the debtor may serve only to satisfy the right of the creditor and to reimburse the costs of the execution proceedings, including the appropriate remuneration of the executor. In this finding, the Constitutional Court defined the principles on which the law on the remuneration of the court executor should be based and on which the general courts must follow.
35. In the decision of 24 February 2015, Pl. ÚS 5 / 14 (N 44 / 76 SbNU 609), the Constitutional Court expressed its views on the reimbursement of costs in the event of termination of the execution, in a renewed procedure following the judgment of the European Court of Human Rights in the case of Vaculík v Czech Republic (judgment of 19 December 2013, complaint No 40280 / 12), and stated that "there was an extreme violation of the principles of the fair process (Article 36 (1) of the Charter) in order to reflect in the basis for calculating the remuneration of the court executor only relevant at the time of the execution regulation and to remain a substantial change which occurred after the execution order."
36. In its judgment of 29 August 2017 in sp. zn. III. ÚS 1253 / 17, which dealt with the remuneration of the court executor in the event of the compulsory obligation, the Constitutional Court stated: "The constitutional interpretation of the enforceable tariff assumes that, when determining the amount of the executor's remuneration, only the amount of the performance which he has obtained (§ 5 (1) of the enforceable tariff) is to be based on the level of voluntary performance, not the fictitious amount of the enforcement activities (§ 5 (4) of the enforceable tariff), and that he still needs to be corrected by considerations reflecting the degree of voluntary performance by the compulsory and complex, responsibility and strenders. '
37. There is nothing to change in the conclusions reached in the decisions cited above, and the Constitutional Court is based on them in the present case. In its caselaw, the Constitutional Court repeatedly and consistently recalls the link between the principle of predictability of the consequences of legislation and the principles of the rule of law. The predictability of the legislation must also be assessed from a dynamic point of view, i.e. the legislator must take into account the existing legal situation, including the development of legal relations, and must implement the changes sensitively and only to the extent necessary to achieve the regulatory objective. Only by doing so is the legislator guaranteed the stability of the sphere of free conduct and legal certainty of the participants in legal relations. These requirements are also applicable in the sphere of derived standard formation, so that they can be required to be fulfilled by all the entities involved in the issue of legislation (point sp. zn.
38. The role of the Constitutional Court in this procedure is to assess whether the contested legislation, namely the reduction of the minimum remuneration of the executor from CZK 3 000 to CZK 2 000 and to determine the flat-rate reimbursement of expenses irrespective of the amount of the recovered claim, is in line with the constitutional order, on the basis of the following aspects which express the specific nature of the basic law or the constitutional principle with which the contested legislation is to be contested, according to the appellants' claims.
39. The appellants argue that the contested parts of the Decree have been arbitrarily made more difficult or even impossible to carry out the execution activity, to threaten the material security of the court executors, to infringe the principle of legitimate expectations in relation to the right to do business and to engage in other economic activities, to unjustifiably diverge the State's approach to other similar professions, as well as to breach the prohibition of forced and compulsory work.
40. The appellants object to the right to do business under Article 26 (1) of the Charter, but the right to do business itself may only be invoked by an individual within the meaning of Article 41 (1) of the Charter within the limits of the laws implementing it. As a result, the legislator has relatively wide availability for a specific definition of the content and the way in which this article is implemented, but it is not absolute either. In its view, the legislature is primarily bound by Article 4 (4) of the Charter, which prevents the restriction of the fundamental right of business from affecting its very nature and meaning [cf. the finding of 15 September 2015 sp. zl. ÚS 13 / 14 (N 164 / 78 SbNU 451; 297 / 2015 Coll.)]. The legislator is also obliged to respect the principle of equality in rights within the meaning of Article 1 of the Charter and Article 3 (1) of the Charter [finding sp. zn.
41. The Constitutional Court has already stated in detail the right to do business and the related case-law in the sp. zn. Pl. ÚS 13 / 14 in the context of the proposal to abolish § 16 of Decree of the Ministry of Justice No. 37 / 1967 Coll., to implement the Law on Experts and Interpreters, as amended, setting out the rate of remuneration for expert opinions. He concluded here that the contested provision does not infringe the right to do business (Article 26 (1) of the Charter) or the prohibition of forced labour (Article 9 (1) of the Charter). The activity of an expert consisting in the processing of expert opinions requested by the public authorities for the purpose of carrying them out as evidence in judicial or other proceedings before a public authority cannot be regarded as a purely business activity carried out for the purpose of profit, since the expert (as opposed to the entrepreneur) does not carry the risk of doing business and the costs incurred (they are paid separately) are not excluded from the remuneration he receives for his activity. It is therefore an activity of "public interest 'for the purposes of proceedings before public authorities. Unconstitutionality would be established only if there was no profit at all from the activity, or even if a minimum profit was made, but at the same time, for example, the obligation to process expert opinions by persons with a particular specialisation would be established, but this does not apply in any of the examples mentioned. In fact, certain profits (above costs incurred) are also guaranteed by existing legislation and no one must be forced to be classified as experts. On the contrary, the appointment of an expert must also be seen as a confirmation of the expertise and appreciation of the person's ability, a circumstance which, of course, may also be positive in his further professional activity.
42. Also in the finding concerning the electronic registration of sales [of 12 December 2017 the finding sp. zn. Pl. ÚS 26 / 16 (8 / 2018 Coll.)] The Constitutional Court recalled that in accordance with Article 26 It is necessary to distinguish between, on the one hand, access to the right to conduct business as a freedom of business guaranteed in paragraph 1 of this provision, and, on the other hand, the pursuit of a profession or other economic activity involving the conditions attached to that exercise, which may be laid down by law (Article 26 (2) of the Charter). The right to do business is included in the title of the fourth Charter as the so-called economic, social and cultural rights, as well as the economic, social and cultural rights listed in Article 41 (1) of the Charter. It is therefore not directly applicable to the same extent as fundamental human rights or political rights. The regulation of these rights is primarily in the hands of the legislator, and only secondary, and to a limited extent, the constitutional guarantees of economic, social and cultural rights can be regarded as a question of Judicial.
43. These conclusions are also consistent with the methodology for reviewing the intervention into the right to do business. The constitutional test will be passed by legislation that pursues a legitimate objective and does so in a way that can be seen as a reasonable means of achieving it, even if it does not have to be the best, most appropriate, most effective or wisest. The methodological tool of the Constitutional Court to review the legislative intervention is therefore a "rationality test '(different from the proportionality test), which reflects both the need to respect the legislator's relatively large discretion and the need to rule out its possible excesses [cf. ÚS 83 / 06 (N 55 / 48 SbNU 629), 116 / 2008 Sb.), the finding of 24 April 2012 (Pl. ÚS 54 / 10, paragraph 48 (N 84 / 65 SbNU 121; 186 / 2012 Sb.) or the finding of 22 October 2013 Sb. In the find sp. zn. Pl. ÚS 26 / 16 Following the earlier case law, the Constitutional Court has defined that the meaning and substance of the right to engage in business are, on the one hand, purely individual (the possibility of individual self-evaluation), and, on the other hand, material law, where such individual freedom is also an essential element of a democratic rule of law and, finally, economic. In the case of the right to do business and pursue other economic activities, the limitation on its substance and meaning would be if, as a result of that activity, it would no longer be able to provide the means for those carrying out it [cf.
44. The rationality test consists of four steps. The first is the definition of the meaning and substance of economic or social law, namely its essential content. The second is whether the law does not affect the very existence of economic or social law or the actual realisation of its essential content. The third step is to assess whether the legal regulation pursues a legitimate objective, namely whether it is an arbitrary fundamental reduction in the overall standard of fundamental rights. The final fourth step is to consider whether the legal means used to achieve it is rational, albeit not necessarily the best, most appropriate, most effective or wisest.
45. In Sections 5 and 6 of Decree No. 330 / 2001 Coll., the basic criteria for calculating the remuneration for the execution imposed on the payment of the cash amount are defined. The basis for the calculation of the remuneration shall be the amount of the enforceable performance, not including the cost of execution and the eligible costs. The lowest possible amount of remuneration was reduced by Decree No. 441 / 2016 Coll. from CZK 3,000 to CZK 2,000. The modification of the basic criteria is set out in § 11 (2) of Decree No. 330 / 2001 Coll., which provides that if the right of the executor to conduct the execution of the execution is ceased by decision of the court to exclude the executor or to suspend the execution or change of the executor pursuant to § 51 (a), (b) and (d) of Act No. 120 / 2001 Coll., on judicial executors and the execution order and on the amendment of other laws, as amended, the remuneration of the executor whose authorisation has expired is made, instead of CZK 3 000 following that amendment of CZK 2 000. In addition to the remuneration of the executor in connection with the execution of the execution activity, the reimbursement of the final expenses according to § 13 paragraph 1 of Decree No. 330 / 2001 Coll., in a lump sum of CZK 3,500. However, if the debtor fulfils within 30 days of the date of receipt of the call for payment of the recovery claim and pays the advance on the reduced costs of the execution and the costs of the creditor, the executor shall be entitled, in accordance with Article 13 (3) of Decree No. 330 / 2001 Coll. instead of the compensation referred to in paragraph 1, reimbursement of the final expenses in a lump sum of CZK 1,750.
46. The first step of the review in the rationality test is to define the meaning and substance of economic law, namely the essential content of the right to undertake and operate another economic activity under Article 26 of the Charter. The Charter considers the right to undertake and pursue other economic activities as a separate fundamental right. Act No. 89 / 2012 Coll., Civil Code, in § 420 (1) defines the entrepreneur as the self-practitioner for his own account and responsibility, in a commercial or similar manner, with the intention of doing so consistently for the purpose of making profits. Therefore, the right to pursue a self-employed activity is hereby protected, it can only be restricted by law and such a restriction must be proportionate and must conserve the substance and meaning of this fundamental right. The Constitutional Court has given the obligation of general courts to "provide protection of business activities if it is affected by it in a way contrary to the fundamental rules of fairness and good manners of competition '[cf. the finding of 11 September 2009 sp. zn. IV. ÚS 27 / 09 (N 200 / 54 SbNU 489]].
47. The Charter expressly allows the possibility of setting conditions and restrictions for the pursuit of certain professions or activities by law, without explicitly defining the reasons for which it may so be. However, Article 4 (4) of the Charter contains the legislature's limit of discretion, according to which their substance and meaning must be investigated when applying the provisions on the limits of fundamental rights and freedoms. Of the fundamental rights referred to in Article 26 Consequently, the Charter only results from those rights which are governed by the laws of the fundamental rights implementing the Charter (see Article 41 (1) of the Charter).
48. Although the right to profit does not result from the right to do business and to pursue other economic activities, the State is obliged to create conditions that allow individuals to seek to achieve it. This conclusion shall apply to the full in the specific business conditions of enforcement. It should therefore be pointed out that the court executor, as an entrepreneur, has a profit from the successful execution of the execution (remuneration), but also carries the risk that the property of the debtor will not be sufficient to satisfy the legitimate or the cost of the execution. This risk cannot be passed on without justification to the parties to the execution proceedings.
49. The second step in the rationality test is to assess whether the law does not affect the very existence of economic or social law or the actual realisation of its essential content.
50. The Constitutional Court has also repeatedly addressed the question of whether price regulation as such is an unconstitutional restriction on the freedom to conduct business and other economic activities. In the finding on the rent regulation of the apartment [cf. the finding of 21 June 2000 sp. zn. Pl. ÚS 3 / 2000 (N 93 / 18 SbNU 287; 231 / 2000 Coll.)], it concluded that it did not: "Price regulation does not prevent anyone from doing or operating any other economic activity, since everyone has the freedom to decide whether to do business under the given conditions in a given area. '
51. Stricter requirements for legislature are imposed by obiter dictum of 23 May 2000 sp. zn. Pl. ÚS 24 / 99 (N 73 / 18 SbNU 135; 167 / 2000 Sb.) on the determination of the value of the point in health according to which: "The protection of the freedom of contractual will, which is a derivative of the constitutional protection of property law pursuant to Article 11 (1) of the Charter, is also a necessary part of the democratic rule of law. Price regulation is therefore an exceptional and acceptable measure only under very limited conditions. Although the fundamental right contained in Article 26 (1) of the Charter may be invoked within the meaning of Article 41 (1) of the Charter only within the limits of the implementing law, for the legislator or for the legislator, the limits laid down in Article 4 (4) of the Charter shall also apply in this case, according to which, when applying the provisions on the limits of fundamental rights and freedoms, their substance and purpose must be investigated. State (public) regulation, based on taking into account important factors (in the area of the premium, the cost of providing health care, etc.), must also take into account the possibility of making a profit when setting the price. The absence of such a maximum in price regulation may result in the exclusion of a certain area of business and the creation of a State monopoly, i.e. the substance and meaning of the fundamental law resulting from Article 26 of the Charter. '
52. These conclusions are invoked by the Constitutional Court in its decision of 11 June 2003, sp. zn. The individual regulation contained in the legislation depriving the addressees of the possibility of judicial review of the fulfilment of the general conditions of the regulatory regulation of a particular body lacking a transparent and acceptable justification in relation to the possibility of general regulation must be regarded as contradictory to the principle of the rule of law (Article 1 of the Constitution), which is an immune division of power and judicial protection of rights (Articles 81 and 90 of the Constitution).
53. In its judgment of 15 May 2012 in Case 17 / 11 ÚS (N 102 / 65 SbNU 367; 220 / 2012 Coll.) on the introduction of charges and taxation of electricity from photovoltaic (solar) power stations, the Constitutional Court recalled its conclusions contained in the finding of 4 February 1997 in Case 21 / 96 ÚS (N 13 / 7 SbNU 87; 63 / 1997 Sb.), according to which "the abolition of the old and the adoption of the new legislation is necessarily linked to the principle of equality and the protection of the trust of citizens in law, which is the result of the protection of other public interest or fundamental law or freedom."
54. In the case of a group of senators of the Senate of the Parliament of the Czech Republic for the annulment of Section 16 of the Decree of the Ministry of Justice No. 37 / 1967 Coll., in order to implement the law on experts and interpreters, as amended by Decree No. 432 / 2002 Coll., the Constitutional Court issued the already mentioned negative finding sp. zn. The requirements for the activities of judges and experts are also of a completely different nature and content, with the fact that judicial experts are engaged in an activity of "public interest 'for the purposes of proceedings before public authorities.
55. The proportionality of the remuneration for the partial execution actions should be seen in a broader context, while the applicants have shown no causal link between the reduction of remuneration and the possible loss-making of those executive offices.
56. The Constitutional Court therefore concluded in the first two steps of the rationality test, in which it examined whether there had been any interference with the substance or the essential content of the right to business and to conduct other competition, that the contested legislation did not affect the very existence of one of those rights or the actual realisation of its essential content. The proportionality test was therefore not necessary in the present situation.
57. The third step in the rationality test review is to assess whether the legal regulation pursues a legitimate objective, namely whether it is an arbitrary fundamental reduction in the overall standard of fundamental rights.
58. The cost of execution consists of two components. The first is the execution fee, which covers in particular fixed operating costs (staff wages, salaries, rent, software and IT equipment, compulsory video recording, office equipment, energy, purchase and operation of vehicles, banking services, tax and accounting services). The second component consists of the reimbursement of final expenses (for example, by a cost flat rate), which covers the direct costs associated with the execution procedure (judicial and other charges, postal, travel, telecommunications, professional statements, copies, input or acquisition of data from information systems).
59. As is apparent from his observations, the aim of the Ministry of Justice was to set the level of the fees of the court executor to cover its costs and reasonable profit, and the adoption of the contested provisions on the remuneration and compensation of the court executors did not take place without prior in-depth consideration and without a legitimate objective. The Constitutional Court considers that the solution adopted will stand up from a constitutional point of view, as the court executor may be required to respond to a change in legislation during the proceedings. Reducing the tariff and compensating for final expenses does not have a destructive impact on the enforceability of the law in the Czech Republic, nor is it intended to deprive the executors of fair remuneration.
60. In any case, the social context and the rational meaning, purpose and benefit of the outcome of a conflict of two or more fundamental rights or principles that are in conflict must be considered. The Constitutional Court considers that, in the present case, it is not possible to give priority to the interest of the court executors in profit over the protection of the fundamental rights of the parties to the enforcement proceedings to bear only reasonable costs. The contested provisions pursue a legitimate objective of reducing the costs of the parties to the proceedings to an appropriate extent.
61. The fourth question is therefore whether the contested provisions are a rational means of achieving their objective. The Ministry of Justice also regulates the remuneration of legal professions other than court executors, such as notaries, lawyers or insolvency administrators. In its observations on the proposal, it expressed its opposition to the appellants' assertion that it treated court executors differently, on the one hand, and notaries and insolvency administrators on the other. The conclusions on the status of the court executive and his claims for remuneration are, in the opinion of the Ministry, in line with the legal opinion expressed by the European Court of Human Rights in the Van der Mussel case against Belgium (judgment of 23 November 1983, Case No 8919 / 80). In the present case, concerning the obligation of the barrister to provide services under the system of legal aid without remuneration [see also Siladin v France (judgment of 26 July 2005, complaint No 73316 / 01) and Stummer v Austria (judgment of the Grand Chamber of 7 July 2011, complaint No 37452 / 02)], the European Court of Human Rights referred to the Convention on Forced or Compulsory Labour No 29 of the International Labour Organisation (506 / 1990 Coll.). For the purposes of this Convention, the term "forced or compulsory work" means "any work or service enforced from anyone under the threat of any penalty to which the person concerned has not volunteered." The European Court of Human Rights considered this definition as a starting point for its interpretation of Article 4 (2) of the Convention and developed standards for assessing what may be considered normal in relation to the obligations of members of a particular profession. These standards take into account whether the services provided fall outside the normal professional activity of the person concerned, whether they are remunerated or otherwise compensated, whether the imposition of the obligation pursues the objective of social solidarity and whether the burden imposed is disproportionate (see also Steindel v Germany, decision of 14 September 2010 on acceptability, complaint No 29878 / 07 concerning the obligation of a doctor to serve on call).
62. In the Grazian- Weiss case against Austria (judgment of 18 January 2011, complaint No 31950 / 06) The European Court of Human Rights on the obligation of a lawyer to perform the duties of guardian, to challenge the complainant that those who have studied law but who have worked in professions other than lawyers and notaries (judges, prosecutors, civil servants and business lawyers) have not been obliged to perform the duties of guardian, although they had the same legal knowledge through their studies, and that there are significant differences between the professional group of lawyers whose rights and obligations are laid down in specific legislation, and a group of other persons who have studied law or even completed subsequent professional training, but do not work as lawyers. In cases where legal representation is necessary, professional groups of lawyers and notaries, on the one hand, and other persons with legal qualifications, on the other hand, are not in relevant respects in similar situations. The European Court of Human Rights has concluded that those who have studied law or, where appropriate, have received further professional legal training but do not act as lawyers, cannot represent the parties in legal proceedings in which legal representation is compulsory. Moreover, it is possible that such persons, even if they have studied law or have received vocational training, do not work in the field of law. It therefore decided that neither Article 4 of the Convention nor Article 14 of the Convention in conjunction with Article 4 of the Convention were infringed.
63. The Court of First Instance (http: / / www.efsa.europa.eu), which takes the view that the Court of First Instance is in a position to exercise its right to exercise its right to exercise its right to exercise its right to exercise its right to exercise its right to exercise its right to exercise its right to exercise its right, as well as its concerns as to the "economic survival 'of the court executors and the consequences of decisions on the costs of execution for their effective independence in the proceedings, inter alia, in the opinion of the Constitutional Court of First Court of First Instance, Pl. Since the court executor cannot refuse the mandate of the court to execute the execution, it is therefore right and fair that it should be remunerated accordingly for the work done. Moreover, it follows from the case law of the Constitutional Court that the very fact that all claims of the court executor are not met is not unconstitutional (cf. Resolution sp. zn. I. ÚS 1619 / 11 of 14 March 2012).
64. The person entered on the list of executors by his application for entry and entry in the list has given his consent to carry out the activities of the court executor and to the associated risks, including that in not all cases the court executor will achieve the satisfaction of all his claims. The risks associated with the performance of a particular profession, including the risk of non-payment of remuneration for work done, shall be offset by the benefits associated with that profession.
65. The Constitutional Court concluded that the contested provisions of Part of Decree No. 330 / 2001 Coll. they are not the result of an arbitrary or manifestly irrational procedure by the Ministry of Justice. Legislation pursues a legitimate objective, is not an arbitrary fundamental reduction in the overall standard of fundamental rights, and the legal means used to achieve it is reasonable, although not necessarily best in terms of judicial executors. The contested provisions pursued the objective of reducing costs in the execution procedure, an objective which cannot be considered illegitimate from the point of view of those fundamental rights, and since the provisions contained could not be considered unreasonable, they also succeeded in the third and fourth steps of the rationality test.
66. Finding the optimal method of determining the cost of execution and the remuneration of the court executor is in the full competence of the Parliament of the Czech Republic and the executive. If, therefore, the Constitutional Court, in the context of the procedure for the control of standards, considers that it is not intended to replace the legislator in seeking a substantive solution, but to ensure that he properly fulfils his duty under the constitutional order.
67. The Constitutional Court has not found in the present case grounds for finding an infringement of the right to conduct business or the principle of legitimate expectation of the right to pursue an economic activity, since the reduction in the minimum remuneration of the court executor and his reimbursement of the final expenses does not make it impossible for the court executors to pursue their activities. Nor can there be a breach of the principle of equality in rights within the meaning of Article 1 of the Charter, since the different approach of the State towards judicial executors on the one hand and notaries and insolvency administrators on the other hand has reasonable reasons.
68. The Constitutional Court considers that the appellants' objection concerning the prohibition of forced and compulsory works is not appropriate. This can be pointed out by the conclusions of the Constitutional Court in the above-cited opinion of the plenary of the Constitutional Court, sp. v. Pl. ÚS-st. 23 / 06, in which the risk of failure to satisfy the legal claims and the case-law of the European Court of Human Rights (paragraphs 70 and 71) was also pointed out. In order to be a forced labour or service, unfair pressure on the general or specific performance of the executive activities would have to be demonstrated, but this did not happen.
69. The appellants' argument was not able to justify the alleged inconsistency with constitutional order. In view of this, according to the provisions of Paragraph 70 (2) of the Law on the Constitutional Court, the Constitutional Court rejected the application for annulment of the contested provisions of Decree No 330 / 2001 Coll. in its entirety.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No 200 / 2018 Coll., on the application for annulment of certain provisions of Decree No. 330 / 2001 Coll., on the remuneration and compensation of the court executor, on the remuneration and reimbursement of the expenses incurred by the trustee and on the conditions of liability insurance for damage caused by the executor, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 14.09.2018 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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