The Constitutional Court found No. 220 / 2012 Coll.

Motion denied.

1. On 11 March 2011, the Constitutional Court received a proposal from a group of Senators of the Czech Republic to abolish the provisions of § 7a to 7i, § 8 in the "except for the control of the levy and its administration 'of Act No. 180 / 2005 Coll., on the promotion of the production of electricity from renewable energy sources and on the amendment of certain laws (Act on the promotion of the use of renewable sources), as amended, Article II (2) of Act No. 402 / 2010 Coll., amending Act No. 180 / 2005 Coll., on the promotion of the production of electricity from renewable sources, and on the amendment of certain laws (Act on the promotion of the use of renewable sources), § 20 (15), § 21 (2) of Act No. 357 / 1992 Coll.

2. The appellants argue that the above mentioned legal provisions are contrary to the Constitution of the Czech Republic (hereinafter referred to as the Constitution) guaranteed the right to own property pursuant to Article 11 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the "Charter of Fundamental Rights'), Article 17 (1) of the Charter of Fundamental Rights of the European Union or the right to protect against interference with the peaceful use of property pursuant to Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the" Additional Protocol '), with free enterprise pursuant to Article 26 of the Charter of Fundamental Rights and Freedoms and Article 16 of the Charter of Fundamental Rights of the European Union; with the essential elements of the democratic and legal state under Article 9 (1) of the Constitution, as all the contested provisions of the law suffer retroactive effect; and with the constitutional principle of equality before the law pursuant to Articles 1 and 3 of the Charter of Fundamental Rights and Freedoms.

3. In paragraphs 13-21 of the proposal, the appellants summarise the factual claims relating to the legal conditions relating to the promotion of the use of renewable resources.

4. In paragraphs 22-37 of the proposal, the appellants focus on the amendments to Act No. 180 / 2005 Coll., on promoting the production of electricity from renewable energy sources and on amending certain laws (Act on the Promotion of the Use of Renewable Resources), as amended, ("Act No. 180 / 2005 Coll. ') and Act No. 586 / 1992 Coll., on Income Taxes, as amended, (" Act No. 586 / 1992 Coll.'), which, in their view, are against both the intention of the European Union and the Czech legislator, since they restrict and subsequently eliminate the support of renewable energy producers.

5. In the fifth part of the proposal (paragraphs 38-53) marked "The reasons for the proposal ', the applicants define the Czech State as a democratic and legal state and quote the findings of the Constitutional Court relating to this issue.

6. In Chapter VI, the appellants specifically comment on the amended Act No. 180 / 2005 Coll. and state that this law is contrary to the principle of equality under Articles 1 and 3 of the Charter, the right to own and use property peacefully, the freedom of business under Article 26 of the Charter, as well as the essential requirements of the democratic and legal state under Article 9 of the Constitution. Inequality before law within the meaning of Articles 1 and 26 The Charter is found in particular in that Act No. 402 / 2010 Coll., amending Act No. 180 / 2005 Coll., on the promotion of the production of electricity from renewable energy sources and amending certain laws (Act on the Promotion of the Use of Renewable Resources), as amended, and certain other laws ("Act No. 402 / 2010 Coll. ') imposed an obligation to pay the electricity levy produced from solar radiation in the period from 1.1.2011 to 31.12.2013 on those solar power producers whose plants were put into operation from 1.1.2009 to 31.12.2010. However, those producers that put the plant into operation from the effective date of Act No. 180 / 2005 Coll. or earlier, i.e. from 2005 to 31.12.2008, are not a liability. The difference is also that only some, arbitrarily selected, solar energy producers, but not other renewable energy producers, are subject to the levy. The taxpayers are not the payers. The levy collection is unfounded, arbitrary and unfounded by the public interest. The entire industrial sector in the production of energy from renewable sources, situated on the same starting line [see sp. zn. This shows an unequal approach both by the legislator and the right to do business within the meaning of Article 26 of the Charter. The burden on certain groups by way of deduction should therefore be seen as a non-compensatory intervention by the legislator in the freedoms concerned within the meaning of Article 26 of the Charter. As regards the right of peaceful use of property, the subject of constitutional protection within the meaning of Article 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms is, on the one hand, the existing property and the legitimate expectation of its acquisition. The addressees of Law No 180 / 2005 Coll. have been given the utmost assurance by the State that they can expect the acquisition of assets in the form of the proceeds of energy production in the terms of the scheme, which did not know the burden of some of them by way of a levy within the meaning of the contested amendment. This expectation was a legitimate expectation.

7. Chapter VII of the proposal attacks the form of Act No. 357 / 1992 Coll., on the tax on inheritance, donation and property transfer tax, as amended, (hereinafter referred to as "Act No. 357 / 1992 Coll.") following the amendment made by Article III of Act No. 402 / 2010 Coll., which introduces taxation free of charge of acquired allowances. Such taxation of emission allowances is, according to the appellants, contrary to the Community law governing greenhouse gas emission allowance trading in Directive 2003 / 87 / EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading in the Community and amending Council Directive 96 / 61 / EC ("Directive 2003 / 87 / EC '). Article 10 of this Directive obliges Member States to ensure the allocation of at least 90% of the total quantity of emission allowances free of charge for a period beginning on 1 January 2008, in accordance with the approved national allocation plan. The national allocation plan for the Czech Republic was approved by the European Commission by decision of 26.3.2007 and was subsequently adopted in the form of Government Decree No. 80 / 2008 Coll., on the National allocation plan for the trading period 2008-2012. The national allocation plan cannot be amended without the prior approval of the European Commission, so the free allocation of greenhouse gas emission allowances below 90% of the total emission allowances cannot be reduced. Therefore, the operators of installations included in the greenhouse gas emission allowance trading scheme legitimately expect the protection of their property rights, which will be consistent with the adopted national allocation plan for the period 2008-2012, taking into account in particular the planned long-term investments in the greening of the installations they operate. Therefore, any unexpected and irrationally short-term significant interference with the conditions under which these operators make investment decisions results in a distressing effect that the Constitutional Court pointed out in its previous decision-making practice. Therefore, the voluntary introduction of the taxation of greenhouse gas emission allowances in breach of the legitimate expectations of operators of installations included in the greenhouse gas emission allowance trading scheme is unconstitutionally interfering with the protected right of ownership. From a public point of view, the contested legislation is contrary to Act No. 526 / 1990 Coll., on Prices, as amended, and to Act No. 265 / 1991 Coll., on the Jurisdiction of the Bodies of the Czech Republic in the Price Field, as amended, which provides for the competence of the administrative authorities in the field of prices, possibly with Act No. 151 / 1997 Coll., on the Valuation of Assets and on the amendment of certain laws (the Law on Valuation of Assets), as amended. It is not clear what the new scope of the Ministry is to" publish "the market value of the allowance. Allowances are not an extracommercial asset because they are the subject of trade, in which case price regulation is always an intervention in property law and therefore prices can only be regulated by law. However, neither Act No. 526 / 1990 Coll., on prices, as amended, nor Act No. 265 / 1991 Coll., on the competence of the authorities of the Czech Republic in the field of prices, as amended, does it give effect to the provisions of the Act No. 526 / 1990 Coll., on prices, as amended, nor to the Act No. 265 / 1991 Coll., on the competence of the authorities of the Czech Republic in the field of prices, as amended, given that the latter Ministry, regardless of the lack of competence in the field of prices, is not to determine the market price of allowances by decision but only to publish. Furthermore, the applicants point out that the legal nature of the allowances is exclusively public; because it is an authoritarian authorisation in a given year to emit a certain amount of greenhouse gases. However, the contested provisions are based on the principle of public law completely excluded; in the private-law conduct of private-law persons, since the gift is the subject of a donation contract. The assumption that the State acts in private and free of charge in the exercise of state power, i.e. in the authoritarian decision on the rights and obligations of third parties, that the State acts in a private and free manner to transfer the State's assets (which are not allowances), is also correlated with Act No. 219 / 2000 Coll., on the property of the Czech Republic and its appearance in legal relations, as amended, and lacks the fundamental logic of the constitutional foundation. In addition to the above, the contested provisions of Amendment No 357 / 1992 Coll. constitute a case of genuine retroactivity, since the new standard taxes emission allowances already issued for the years 2011 and 2012, but for the production of electricity in an installation which was produced on or after 1 January 2005.

8. In Chapter VIII, the appellants state that the exemption from income tax pursuant to § 4 (1) (e) or § 19 (1) (d) of Law No 586 / 1992 Coll. repealed by Article II (2) of Law No 346 / 2010 Coll. was not related to the legislature's decision to promote renewable energy in 2005 but was granted to taxpayers since the tax reform in 1992 and clearly followed the public interest expressed in Article 7 of the Constitution, namely the interest of the State in the sustainable use of natural resources and the protection of natural resources. The tax exemption in this regard therefore constitutes a stable legal regulation, backed by the Constitution, which implies that it is also a stable part of the legal consciousness of the addressees of this legal regime. Therefore, such legislation was part of the legitimate expectation of the beneficiaries of the law, who based their business plans in the field of renewable energy. Consequently, as a result of the contested amendment and the manner in which it is transposed, intervention in the legitimate expectations of taxpayers is an intervention, as well as the establishment of inequalities between its addressees; the criterion is once again the time when the production facility is put into operation. All addressees have based their business on the same assumption and on the effectiveness of the current adjustment; Some have made full use of the exemption, others partly, others are denied. Once again, it is the legislature's desire to vote for the Legisvac so that taxpayers, starting businesses at any time for the effectiveness of the previous regulation, can enjoy tax exemptions on a straight and equal basis.

9. Finally, the appellants summarise that the contested provisions in relation to the other related amendments are clearly prohibitive and discriminatory, although the Czech Republic has not yet fulfilled its commitment to achieve a share of energy from renewable sources by 2020 of 13%; for 2010, an indicator of 8% of the share, and according to the reports of the Energy Regulatory Authority (§ 7 of Act No. 180 / 2005 Coll.) this indicative objective was not achieved. The appellants consider that the nature of the legislator's intention by the amendments under appeal stems from this. It is not a clearly worded public interest, but a follow-up of a purely fiscal and prohibitive intention in relation to an otherwise formally supported field which is carried out by arbitrary legislative intervention by the legislator. It also interferes with international obligations under the accession agreements to the European Union which bind the Czech Republic. The way in which the contested provisions of the laws interfere with the already acquired rights of recipients of legal aid, which it formally maintains, but simultaneously directly eliminates it (subject to a levy, tax and income tax exemption) is constitutionally unacceptable, not only for interference with the principle of equality and acquired property rights, or legitimate expectations, by retroactively effective amendments, but also for their internal contradictions. In addition, in the case of the retaxation of tax allowances, it is an excerpt from the constitutional rule that taxes can only be imposed by law, and the determination of the tax base of executive power is entrusted without the criteria being laid down at the same time. It is clear that the legislator has complied with the short-term practical (fiscal) objectives of the executive, justified by the public interest, at the expense of higher values, which are the inviolability of fundamental individual rights and confidence in state power acts. The appellants believe that no economic or fiscal objective justifies such interference with the needs of the democratic and rule of law. In view of all the above legal and economic arguments, the appellants consider that the contested parts of Act No. 402 / 2010 Coll. and Act No. 346 / 2010 Coll. are capable of causing serious consequences for the Czech Republic, in particular in the form of a decline in the assessment of its general credibility, indicating the degree of risk to the business and the quantification of the likelihood that the country will meet its obligations. The applicants are also convinced of the reality of the threat of international arbitrage to the subjects affected by the contested laws, and the consequences of such arbitrage may deeply affect the economy of the Czech Republic. The applicants consider that, in addition to assessing the constitutional conformity of the contested provisions, as suggested above, it is appropriate to examine their context with the original scheme for the promotion of energy from renewable sources, other uncontested amendments, the administrative practice of the Czech Republic and the context with the international obligations of the Czech Republic.

10. On 30 September 2011 the Constitutional Court received a proposal from the Municipal Court in Prague to repeal the provisions of Sections 7a to 7i of Title III of Act No. 180 / 2005 Coll. and Article II (2) of Act No. 402 / 2010 Coll. In view of the fact that the Constitutional Court in the present case is dealing with a proposal identical to that of the Municipal Court in Prague, the application for the annulment of those legal provisions for the litispendence of litispendence on 15 November 2011 was later rejected by the Constitutional Court pursuant to Article 43 (2) (b) of Law 182 / 1993 Coll., on the Constitutional Court, as amended, by the Constitutional Court, on the grounds set out in Article 43 (1) (e) of Law 182 / 1993 Coll., on the Constitutional Court, as amended by Law 77 / 1998 Coll. At the same time, the City Court in Prague was granted the right to take part in the hearing as an intervener (Paragraph 35 (2) of the sentence behind the semicolon of the Law on the Constitutional Court).

11. The Constitutional Court was also served on 28 July 2011 by the submission of amicus curiae brief consultants of the Platform for OZE, which brings together Czech and foreign entrepreneurs and investors in the field of renewable energy sources (hereinafter referred to as "OZE"). Given the fact that the RES Platform is an initiative without legal personality, its consultants submitted this submission. Another amicus curiae brief was delivered to the Constitutional Court on 23 November 2011 by the Association for the Protection of Small and Medium-sized Renewable Electricity Producers. The designated association also sent its observations to the Constitutional Court on (the Constitutional Court) the observations of the Prime Minister and the Ministry of Finance on the application and requested that their opinion be included in the file.

12. He also referred to the Constitutional Court on 5 August 2011 to RNDr. J. S., CSc, DSc., who stated that, at the same time as the constitutional complaint in the case of the annulment of Law No 180 / 2005 Coll. he proposes to be granted the status of intervener in the present case. The Constitutional Court has informed J. S. that it is up to the examination of the Fourth Chamber of the Constitutional Court of whether it will choose the procedure for the interruption of a case brought under sp. zn. IV. ÚS 2316 / 11 and the submission of the full case to the Constitutional Court, which, for the obstacle to litispendence, may reject the appellant's application for annulment of the legal provisions and grant him the status of intervener in proceedings under sp. P. ÚS 17 / 11. In its submission of 28 August 2011, J. S. informed the Constitutional Court that, in its case, the litispendency considerations were not justified as it proposed the annulment of the provisions in question for a completely different reason than the appellants. In order to illustrate the divergence of opinion in the balancing of public interest in State aid for investments in the sector, the Constitutional Court puts forward at this point the opinion of J. S., which, contrary to the applicants, considers that the return on investments of less than 15 years is contrary to the meaning of the law and resigns to the protection of the company, which must pay an enormous amount for the construction and operation of photovoltaic power stations (FVE).

13. On 25 January 2012, the Constitutional Court received a submission from Black & Bush Projekt 1, s. r. o., which acts as a prosecutor in proceedings before the Regional Court in České Budějovice sp. zn. 10 Af 69 / 2011, sp. zn. 10 Af 112 / 2011 and sp. zn. 10 Af 137 / 2011, in which it seeks annulment of the decision of the Finance Directorate in České Budějovice sp. 2956 / 11- 1200 of 30 June 2011, and underpins its proposal on the contradiction of the provisions of § 7a to 7i of Law No. 180 / 2005 Coll. These proceedings were suspended by the Regional Court in České Budějovice pursuant to § 48 paragraph 1 (a) of Act No. 150 / 2002 Coll., the Administrative Rules of the Court, as amended, on the basis of the submission of the case to the Constitutional Court.

14. In accordance with Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 18 / 2000 Coll., the Constitutional Court invited the Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as the Chamber of Deputies) and the Senate of the Parliament of the Czech Republic (hereinafter referred to as the Senate) to comment on the proposal.

15. The Chamber of Deputies, through the President of the Chamber of Deputies of Miroslava, has drawn attention to the unclear wording of the petition or some of the contested parts of the laws in the draft group of Senators, even after the amendment of the petition of 3 June 2011. The President of the Chamber of Deputies also notes that the appellants of the contested provisions were discussed in the Chamber of Deputies in the framework of House Press 145. In substance this press included the contested provisions relating to Act No. 180 / 2005 Coll. and to Act No. 357 / 1992 Coll. The provisions relating to Act No. 586 / 1992 Coll. were discussed in the framework of House Press No. 158. As regards House Press No. 145, the Government submitted a draft of the Law in question to the Chamber of Deputies on 14 October 2010. This original government proposal did not contain the contested provisions, which became part of it only in the context of the comprehensive amendment resulting from the committee's deliberations. The first reading of the bill took place on 29 October 2010 at the 7th meeting of the Chamber of Deputies. The bill was ordered to be discussed by the Economic Committee, which, in the context of this discussion, adopted the above-mentioned comprehensive amendment contained in Resolution No 34 of 2 November 2010 of this Committee (Press No 145 / 1). The second reading of the draft law took place on 3 November 2010. In a detailed debate, amendments drawn up in a summary of amendments and other proposals were tabled (Press 145 / 2). The third reading took place on 9 November 2010. The bill was approved in the version of the adopted Comprehensive Amendment to the Economic Committee, vote 140 opposed the bill of 159 Members 123 and 12 opposed. The bill was passed on to the Senate, which discussed it on 8 December 2010. The Senate has not adopted a resolution on this bill. The law was then signed by the relevant constitutional authorities and declared in the Collection of Laws in the amount 144 under the number 402 / 2010 Coll. The contested provisions also contained the aforementioned House Press No. 158 - Government Bill amending Act No. 586 / 1992 Coll. This press was submitted by the Government on 29 October 2010. On a proposal from the Government, the President of the House declared a state of legislative emergency under Article 99 of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended by Act No. 359 / 2004 Coll., ordering the draft law to be discussed by the Budget Committee. He issued Resolution No 65 (Press No 158 / 1) on 2 November 2010. The second reading of the bill took place on 2 November 2010 at the 8th meeting of the Chamber of Deputies. The third reading of the bill took place immediately after the second reading. Under it, the resolution of the Committee on Budgets No 65 was first voted, and a vote was then held on the draft law under which the Chamber of Deputies gave its assent to the draft law when in vote No 30 the draft law of 145 Members 103 and 40 opposed. The bill was referred to the Senate on 3 November 2010, which discussed it on 12 November 2010. The Senate approved this proposal as referred to by the Chamber of Deputies. The Act was then signed by the relevant constitutional authorities and was published in the Collection of Laws in No. 127 under No. 346 / 2010 Coll. It is for the Constitutional Court to examine the constitutionality of the provisions in question in the context of the proposal and to take a decision. At the same time, the President of the Chamber of Deputies said that she agreed to drop the oral hearing before the Constitutional Court.

16. The Senate, through its President Milan Štách, stated that the provisions of Act No. 180 / 2005 Coll. and Act No. 357 / 1992 Coll., which are proposed for annulment, were part of the draft Act which was referred to the Senate on 11 November 2010. The Senate Organizing Committee ordered this proposal as Press No. 379 (in the 8th term) to be discussed by the Committee on Economic, Agriculture and Transport, as the Committee on Guarantee, and the Committee on Territorial Development, Public Administration and the Environment. The Committee on Economic, Agriculture and Transport discussed the draft law at its meeting on 7 December 2010 and did not adopt any resolution. The Committee on Territorial Development, Public Administration and the Environment discussed the draft law at its second meeting on 7 December 2010 and also agreed on no resolution. The Senate discussed the bill at its 2nd meeting on 8 December 2010. He was capable of a quorum, but he did not adopt a resolution. In the presence of 66 senators in favour of the bill referred to by the Chamber of Deputies, 21 senators voted against it; likewise, none of the amendments tabled in the detailed debate were adopted. The draft law was adopted within the meaning of Article 46 (3) of the Constitution and published in the Collection of Laws under No. 402 / 2010 Coll. In order to abolish the proposed provision of Act No. 357 / 1992 Coll. it was part of a draft law which was referred to the Senate on 3 November 2010. The Senate Organizing Committee ordered this bill as press number 366 (in the 7th term) to discuss the Committee on Economic, Agriculture and Transport. The Committee on Economic Affairs, Agriculture and Transport discussed the draft law at its 34th meeting on 11 November 2010 and adopted Resolution 384 recommending the Senate to approve the draft law as referred to by the Chamber of Deputies. The Senate debated the draft law at its 25th meeting on 12 November 2010 and approved by Resolution No 604 the draft law, as referred to by the Chamber of Deputies, when 43 Senators voted in favour of it, 29 Senators opposed and 5 Senators abstained. In the Collection of Laws this law was subsequently published under No. 346 / 2010 Coll. The fact that the Senate has not adopted a resolution on the draft law contained in Press 379 reflects the overall atmosphere of the Senate's negotiations, as no clear recommendation has been made from the committees that have discussed the proposal. The course of discussion and, in particular, the fact that the Senate has not adopted a resolution on the material in question suggests that there was no majority opinion in the Senate on the proposal under discussion. However, even with reservations and doubts of a legal nature, no proposal was made to reject the bill. In conclusion, even after the amendment of the petition of 3 June 2011, the proposals are not clearly formulated. On the other hand, it can be noted that, as regards the order of the fourth draft (the repeal of Article II (2) of Act No. 346 / 2010 Coll.), this is already a consummated transitional provision which was intended to ensure that the income tax exemption could be applied in the tax return on 31 March 2011 or 30 June 2011, i.e. already in the application of Act No. 346 / 2010 Coll., without having to rely on the constitutional principle of legitimate expectations and predictability of law for the 2010 tax period. Therefore, the users of the Act have determined for sure that the income tax exemption can still be applied for 2010. At the same time, the President of the Senate stated that he agreed to waive the oral hearing before the Constitutional Court.

17. The Constitutional Court has addressed the Government of the Czech Republic with a call for observations within the meaning of Article 48 (2) of the Law on the Constitutional Court. The Government of the Czech Republic expressed on the proposal by its President in the sense that the rapid development of the production of energy from Oz caused an increase in the cost of its financing and the resulting negative socio-economic effects. They began to fully manifest themselves at the end of 2008 in the context of the initial phase of the global economic crisis, and during 2009, there was such a change in the circumstances of electricity generation from renewable sources that it was necessary, in the public interest, to reconsider the state's position on public support for the production of energy from Oz. This was mainly a significant reduction in photovoltaic panel technology in 2008 and 2009, which, in conjunction with the favourable course of the Czech crown and the favourable business environment, led to the solar boom. In view of the above, as well as the fact that the public support scheme for the production of energy from Oz was established in the Czech Republic on the basis of the principle of the transfer of a large part of the financing of the aid to the end customer and the State budget, there was a real threat that the costs of financing the aid to date would be so disproportionate in relation to the declared objectives in relation to Law No 180 / 2005 Coll. that the existing public aid policy had to be reassessed in such a way that the expected negative effects would not occur and that the aid scheme would be reflected in the fact that, as a result of the fall in the investment costs of the initial investment, there was a substantial change in the conditions of business. It was therefore necessary, in the public interest, to use all legitimate means to reassess the current level of financial support for the production of electricity from OZE (and in particular from solar radiation) while maintaining all the above mentioned fundamental rights and guarantees to investors in the energy plant of OZE under Act No. 180 / 2005 Coll. One of the steps to limit the scope of public support to electricity producers from Oz was the use of the right to impose taxes, charges and other similar transactions. This right was used by the legislator to accept the appellant of the contested parts of Act No. 346 / 2010 Coll., as well as Act No. 402 / 2010 Coll. The appellants of the contested tax measures only led to a de facto temporary reduction in public aid (its financial component), which is fully in the intentions of Directive 2001 / 77 / EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal market for electricity ("Directive 2001 / 77 / EC ') and of the European Commission document 2008 / C82 / 01" Community guidelines on State aid for environmental protection'. As regards the appellants of the contested provisions contained in Act No. 402 / 2010 Coll., the Prime Minister is convinced that the arguments set out in the attached statements of the Ministry of Industry and Trade and the Ministry of Finance are sufficient to establish that the appellants of the contested rules have been adopted in the public interest, are not the result of the irrational behaviour of the legislator, random changes (errors) in the course of the legislative process, and that they are elected in a rational way to the purpose of their amended laws to achieve those objectives. It can therefore be concluded that the appellants of the contested part of Law No 402 / 2010 Coll. do not interfere with the above-mentioned fundamental rights of the electricity producers of the RES (investors) or the principles of the promotion of electricity generation from the RES embodied in Directive 2001 / 77 EC, the information of the European Commission 2008 / C82 / 01 "Community guidelines on State aid for environmental protection 'and Law No 180 / 2005 Coll. in their constitutionally guaranteed law. The legitimate expectations regarding the protection of their assets - that is, the legitimate expectations arising from the guarantee of the long-term return on investment made by the appellants in the contested parts of Law No 402 / 2010 Coll. were not affected by the alleged breach of Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms. The appellants contested by the parts of Act No. 402 / 2010 Coll. there is no prejudice to any legitimate expectations regarding the level of revenues, since the return is an accounting category which must always be assessed individually within the meaning of Decree No 500 / 2002 Coll., which implements certain provisions of Act No 563 / 1991 Coll., on accounting, as amended, for entities that are entities accounting in the dual accounting system, as amended. It should also be pointed out that the potential expectations of investors relating to profits were never guaranteed by Act No 180 / 2005 Coll. and do not support it. The fact that the appellants of the contested parts of Act No. 402 / 2010 Coll. will have a de facto effect on the rate of investor profits (which will be influenced by the cost side which will increase by the newly introduced tax liability) is therefore not relevant from the point of view of assessing constitutional conformity. The assumption that any investor in the energy production from Oz had and could legitimately expect a possible reduction in the amount of public aid is already due to the very definition of the preamble to Directive 2001 / 77 / EC (paragraph 16), which states:" However, after a sufficient transitional period, it is necessary to adapt the support programmes to the developing internal electricity market.... This framework should allow electricity from renewable energy sources to compete with electricity produced from non-renewable energy sources and to reduce costs for consumers while reducing the need for public support in the medium term.' The consequence of the adoption by the appellant of the contested parts of Act No. 402 / 2010 Coll. is (from the point of view of the so-called new investors - i.e. those who put the plant into operation between 1 January 2009 and 31 December 2010) only a temporary effect on the rate of profit (increased costs of the newly introduced tax liability) and the resulting extension of the period of return on their investment. However, the system of support and the principles of setting regulated prices, governed by Act No. 180 / 2005 Coll., continues to guarantee investors conditions such as to achieve a simple return period of 15 years. The appellants contested by the parts of Act No. 402 / 2010 Coll. neither is affected by the right to own property under Article 11 (4) of the Charter of Fundamental Rights and Freedoms, since that article protects rights in rem, other than income from a gainful activity [compare, for example, the findings of sp. zn. The appellants of the contested parts of Act No. 402 / 2010 Coll. did not even violate the principle of equality. In this context, the Prime Minister points out the case-law of the Constitutional Court on the question [e.g. the finding of the Constitutional Court of the Czech and Slovak Federal Republic sp. zn. Pl. ÚS 22 / 92 of 8.10.1992 (Found No. 11 of the Resolution and Finals of the Constitutional Court of the CSFR, Prague: Linde Praha, a. s., 2011, p. 49) and finds sp. zn. Pl. ÚS 33 / 96 of 4.6.1997 (N 67 / 8 of the SbNU 163; 185 / 1997 Coll.), sp. Pl. Pl. ÚS 16 / 93 of 24.5.1994 (N 25 / 1 of SbNU 189; 131 / 1994 Sb.), sp. In the context of the above and of the accompanying evidence, it can be summarised that the effects of all the applicants of the contested measures cannot be affected by the so-called "choking effect 'of the electricity producers from Oz. It is neither an intervention that would lead to such a fundamental change in the assets of the operators concerned that the very substance of the assets of the operators concerned would be undermined, nor an intervention that would prevent them from achieving the guaranteed benefits, which certain entities have legitimate expectations of. At the same time, the contested legal measures are undoubtedly the result of a political decision, which, however, is constitutionally consistent, was adopted in accordance with the economic principles and took into account the starting state of the electricity system. Last but not least, the Prime Minister draws attention to the necessary coherence of the issue of public support for the production of energy from the RES with European Union law, which also had to be taken into account in the context of the" solar boom', or in the context of the emergence of a jump gap in the initial investment costs between "old 'and" new' investors in solar power plants. The Government (or legislator) had to take into account the European Commission document 2008 / C82 / 01 "Community guidelines on State aid for environmental protection 'in the context of the above facts. It follows from that document that operating aid for the production of energy from OZE (purchase prices, green bonuses) can be considered compatible with the common market only if it covers the difference between the cost of production of energy from OZE and the market price of the type of energy concerned, the amount of which is limited to a minimum and is non-discriminatory and proportionate. However, a possible lack of response by the Government (legislator) to the" solar boom' - that is, leaving the amount of public aid to all its beneficiaries producing electricity from solar radiation at the same level - would be highly likely to mean that the European Commission would designate such public aid in relation to "new 'investors as incompatible with the common market under Article 87 (3) (c) of the Treaty establishing the European Community. This would then entail an obligation for overcompensated" new investors' to repay the public aid granted and the subsequent negative concentration on their assets.

18. To the appellant contested the provision contained in Act No. 346 / 2010 Coll., i.e. the proposal to abolish "tax holidays," the Government states that the draft law in question was dealt with in a legislative emergency scheme as part of the "reform package." It follows from the stenorecord of the 25th Senate meeting held on 12 November 2010 that a broad discussion was held on the adequacy and correctness of the use of the Institute of Legislative Emergency (virtually the procedure under Section 118 of Act No. 107 / 1999 Coll., on the Senate Rules of Procedure, as amended by Act No. 172 / 2004 Coll.) in the discussion of the draft laws submitted, which resulted in a democratically adopted decision of the Senate to accept the Prime Minister's request to discuss the proposed laws (including the draft law in question) in a brief hearing. The bill itself amending Act No. 586 / 1992 Coll. (Senate Press 366) was justified by the Minister of Finance, subjected to substantive discussion (in the guarantee committee and plenary) and subsequently approved. The above facts are contained in the steno from the meeting of the 25th meeting of the Senate. In this case too, it can therefore be concluded that the procedural rules as well as the democratic principles of decision-making have been observed. It can also be noted that there was no misuse of procedure under Article 118 of Act No. 107 / 1999 Coll., on the Rules of Procedure of the Senate, as amended by Act No. 172 / 2004 Coll., to circumvent the proper legislative procedure, and that the Senate opposition was in no way shortened on its rights.

19. In its comments on the proposal, the Ministry of Industry and Trade stated that the appellants did not provide evidence of the alleged 'libel or extremity of the legislator' or evidence of 'contrary to the principle of equality'. On the contrary, the Ministry of Industry and Trade considers that instruments that need to be used to protect the country's economy and its citizens have always been sensitive to the principle of rationality, proportionality and always on the basis of public interest. The levy in question concerns electricity produced from solar radiation between 1 January 2011 and 31 December 2013 in an installation put into service between 1 January 2009 and 31 December 2010, i.e. during the period when the costs of acquiring solar collectors fell significantly, thus giving the State a greater advantage over the investors during that period than the entrepreneurs who invested in the previous period. The current solar electricity levy (26% of the purchase-price aid) was calculated in order to continue to guarantee the 15-year return on the invested investments guaranteed by the law. So he is not chosen randomly and certainly not extreme. In the light of the facts described above and the sharp reduction in the investment costs of the construction of solar power plants, the recovery period was gradually shortened, which did not correspond to the original intention of the legislator. Return on investments decreased from the original 15 years to 8-9 years. It is clear from the above that legislative changes were, and had to be, predictable, justified, and not an affectionate expression. The addressees of Act No. 180 / 2005 Coll. can therefore continue to expect the acquisition of the revenues from the production of energy in solar power plants through subsidies from the State, in the terms of the scheme of the Act and in compliance with the basic principle of the return on investments made up to 15 years. If the appellants at point 10 state that the contested legal provisions are contrary to "freedom of business' (Article 26 of the Charter, Article 16 of the Charter of Fundamental Rights of the European Union), it should be pointed out that freedom of business and thus the possibility of investing in the sector remains guaranteed and is not limited, only the question of the benefit of investing in the sector varies, which is also common in other areas of business. The measures adopted do not in any way interfere with the constitutional principle of equality before the law, on the contrary, they accentuate this equality in the fact that the sector concerned is subsidised by the state budget and supported in energy prices by more than other sectors of our economy, for greater emphasis on the interests of electricity generation from solar power. Finally, the Ministry of Industry and Trade points out that the applicants do not demonstrate in any way the alleged significant economic consequences affecting the property sphere of the addressees of the contested parts of the laws as well as the founding property liability of the Czech Republic. The claim about the decline of the assessed general credibility of the Czech Republic in relation to the measures taken seems speculative. The Ministry of Industry and Trade considers that if the" rating "of the Czech Republic had fallen, this would have been the case if no measures had been taken, as the negative effects associated with, for example, additional costs on electricity would have been affected by all electricity customers - including the largest customers who are the backbone of the Czech industry.

20. The Ministry of Finance stated in its observations that the legislation on renewable sources was presented in order to stop the inefficient increase in the cost of supporting the production of electricity from renewable sources, in particular because of the high support of photovoltaic power stations, and to limit the effects of this support on Czech industry, economy and households. Where the appellants demonstrate that the application of a standard which reduced the level of redistribution in the sector for addressees who started to operate in the field before the date of entry into force of the law is contrary to their legitimate expectations, on the grounds that their legal status changes during their business, this conclusion cannot be accepted. The law is changing practically constantly and, from the point of view of its application, it is in no way possible to apply the old legislation until the addressee of the standard ceases to do business in the field or realistically liquidates certain tangible assets on which the business was based. The Ministry of Finance points out that the final Energy Regulatory Authority (hereinafter "ERU ') has been and is still under the provisions of Paragraph 6 (1) of the Renewable Resources Support Act, as amended by 31 December 2010. This is limited by the condition laid down in § 6 (4) of Act No. 180 / 2005 Coll., as amended by Act No. 137 / 2010 Coll., that the purchase prices must not be lower than 5% of the value of the purchase prices in force in the year in which the new determination is made. However, the importance of this condition is a restriction of executive power, in this case represented by the ERUs, which means that the ERUs are not entitled to reduce the purchase prices annually by more than 5%, in any case there is no legislative power that can thus reduce or even oblige the ERUs to reduce the purchase price by their intervention. Thus, if, at the time of the adoption of the contested legislation, the legislature could reduce the purchase price from the point of view of its power, it could undoubtedly have implemented an act which had the same economic consequences as the reduction of these ransom prices (i.e. it could have accepted the levy legislation, together with the additional costs subsidy scheme). The legislators are therefore not prevented from intervening in regulation by any provision of the law. The Ministry of Finance notes that the extreme decline in investment costs has caused the regulatory resources entrusted to the ERU legislator to be insufficient to replace obsolete regulation by regulation that corresponds to new objective facts. Therefore, the legislator itself had to go into regulation in this sector. It is clear from the above that legislative changes were, and had to be, predictable, justified for their addressees, and not an affectionate expression, as they followed the change in objective facts, which made the original regulation manifestly poor. This concept of legitimate expectations corresponds to that held by established European case-law, according to which" if a prudent and prudent economic operator is able to anticipate the adoption of a Community measure which may adversely affect his interests, he cannot rely on the principle of legitimate expectations if that measure is adopted. This is particularly true in an area such as the area of common market organisations, the subject matter of which includes permanent adaptation depending on changes in the economic situation' (i.e. judgments of the Court of Justice of the European Union C-104 / 97 P, C-265 / 85, C-22 / 94, C-104 / 97, C-37 / 02 and C-38 / 02, C-17 / 03 and C-63 / 93). Therefore, the legitimacy of the expectations of the operators was not infringed, on the contrary, if the State had not taken appropriate action, the rights and legitimate expectations of other entities would have been clearly affected. The right to engage in business is brought by the appellants from the imposition of an extreme burden on taxpayers of 26% and 28% respectively. They import that this measure has a so-called "choking effect 'and that further business in this area is no longer possible. However, according to the Ministry of Finance, the arrangement" does not destroy "the taxpayer's property base [see the finding of point sp. zn. Pl. ÚS 29 / 08 of 21.4.2009 (N 89 / 53 SbNU 125; 181 / 2009 Coll.)], as the operator is only shortened by the original aid, which is set to return on investment close to 15 years, which is the limit contained in the current legislation and also contained in the previous legislation. Moreover, it cannot be said that" the arbitrary determination of the solar energy producers towards other renewable energy producers' (which are not levy-payers) has been reduced by the overpayment of solar power by distributors (final consumers), thereby eliminating discrimination against other renewable sources. Thus, the choice of taxpayers in the levy is not unreasonable and the arbitrary and public interest that is being pursued by law (protecting the national economy and minimising the negative social impacts) is clearly evident. For the above reasons, it should be concluded that the scheme in question is neither arbitrary nor discriminatory as stated by the applicants. It is also in line with the principle of equality, as this principle undoubtedly does not imply a requirement of equality between everyone and everyone, but merely a requirement that the law of one from another does not distinguish unreasonably. In the present case, this criterion is clearly declared and justified. With regard to the proposal to abolish the tax free of charge on allowances acquired by the Ministry of Finance, the Ministry of Finance notes that Government Decree No 80 / 2008 Coll., on the National Allocation Plan for the trading period of the years 2008-2012, merely promises to acquire allowances to the operator of greenhouse gas installations, provided that the statutory conditions are met. The actual acquisition of emission allowances into operators' assets takes place every year at the time of the inclusion of a specific number of allowances in operators' accounts. The above means that from the effectiveness of the amendment implemented by Act No. 402 / 2010 Coll., i.e. from 1 January 2011, the allowances acquired will only be taxed in the future. On the basis of these findings, it should be noted that the adjustment in question cannot be either retroactive or retroactive because it focuses only on the facts that occurred after 1 January 2011. Neither does the Ministry of Finance agree with the appellants' objection, which states that the adjustment is contrary to Article 11 (5) of the Charter, since not only taxes but also the conditions on which the amount of tax is identifiable must be laid down by law. The Ministry of Finance points out that the Act on inheritance tax, donation tax and real estate transfer tax only provides that the average market value of the allowance is published by the Ministry of the Environment, but not that the Ministry of the Environment determines the market value of the allowance for tax purposes. This is because the Ministry of the Environment will only publish the average market value of the allowance itself. The basis of the tax is laid down by law only in this case, so the appellants' objections are not relevant in this respect. The tax free of charge of the allowances acquired does not infringe the validity of their acquisition guaranteed by the law and does not infringe the provisions of the European Union Directives. There is also no reduction or other change in the allocation of allowances approved by the national allocation plan. States that also tax free allowances are Great Britain, Greece and Spain. The taxation of allowances obtained free of charge is therefore not contrary to European Union law.

21. The Constitutional Court also referred to the Energy Regulatory Authority with a request to provide information on the development of the return on investment, the amount of income and the amount of the ransom prices (§ 6 (1) of Act No. 180 / 2005 Coll.) for each year from the date of the Act No. 180 / 2005 Coll., as regards the maintenance of the amount of revenues per unit of electricity from renewable sources after the introduction of the levy on the promotion of the purchase prices for 15 years from the year of the establishment's entry into operation in the future, the regulation of the purchase prices pursuant to § 6 (4) of Act No. 180 / 2005 Coll., as amended by Act No. 137 / 2010 Coll., and in the course of the decrease of inputs (in particular the prices of photovoltaic panels) since the effectiveness of Law No. 180 / 2005 Coll.

22. The Energy Regulatory Authority sent to the Constitutional Court observations, including accompanying graphs and tables, from which it concluded that even after counting the impact of the contribution on the return on the investment, the achieved IRR (internal rate of return) is above the WACC (weighted average cost of capital) level and the return periods below the 15-year threshold, regardless of the method of financing for individual projects. As regards the evolution of the ransom prices for all the declared categories of FVE in the years 2006-2012, this shows an upward trend in curves corresponding to the provisions of Section 6 (1) (b) (2) of Act No. 180 / 2005 Coll., i.e. the consideration of the index of prices of industrial producers. The development of specific investment costs within the meaning of Annex 3 to Decree No 475 / 2005 Coll., implementing certain provisions of the Act on the Promotion of the Use of Renewable Resources, as amended, shows a downward trend. The purchase price is then calculated according to the Energy Regulatory Authority's statement by guaranteeing a non-negative net present value of the project (NPV > 0) and IRR (Internal Rate of Return) equal to and above the expected WACC model (Weighted Average Cost of Capital), so that the 15-year return period is respected. For the sake of completeness, the Energy Regulatory Authority states that most projects in the area of RES (including FVE) have a significantly shorter return period, with only small hydropower plants approaching the 15-year limit. In this context, the Energy Regulatory Authority stresses that the introduction of a withholding tax does not affect the provisions of Section 6 (1) of Act No. 180 / 2005 Coll., which regulates the principles to be observed when determining the level of ransom prices. The purchase prices for 2009 and 2010 were established according to these principles at a time when the introduction of the levy was not even considered - i.e. in autumn 2008 and 2009. The decision to introduce the levy was taken only in autumn 2010 and concerns only the FVE put into service between 1 January 2009 and 31 December 2010. The determination of the ransom prices for 2011 and following this levy was also not affected. At the same time, the Energy Regulatory Authority does not have the legal space to take into account measures of a fiscal nature into retroactive charge and, moreover, there would be no legal possibility of adjusting the purchase prices again when the provisions on the electricity levy from solar radiation cease to be effective (and, even if possible, the adjustment of the ransom prices against fiscal measures would then completely eliminate these measures). The Energy Regulatory Authority notes that the revenues as such were not affected by the introduction of the solar electricity levy, as the beneficiaries still receive the same gross revenue to which they are entitled in accordance with the provisions of Act No. 180 / 2005 Coll. (the fiscal measures from the logic of the matter interfere with the disposition of that gross revenue). In the light of the above, the Energy Regulatory Authority was not in any way obliged to take specific measures as a result of the effectiveness of the provisions on the introduction of a solar electricity levy. The Energy Regulatory Authority concludes that, on the basis of the above-mentioned legislation, it could not respond to a situation in which there was a significant annual decrease in the specific investment costs of setting up these resources as a result of a decrease in PV panel prices by more than 40% in 2009 corresponding to a reduction in the purchase price of electricity from these sources, since under Law No 180 / 2005 Coll. it was only allowed to reduce the purchase price of electricity to new sources on an annual basis by 5%. This has resulted in a very significant advantage for newly built photovoltaic power plants compared to other types of renewable sources for which the aid was set optimally.

23. The Constitutional Court sent observations to the appellants and interveners and enabled them to comment.

24. In their reply, the appellants stated that, if the sudden legislative changes of the end of 2010 affecting the constitutionally guaranteed rights of investors in photovoltaic power plants justify the State's public interest, it is evident that, for a long time, it has neglected the protection of this alleged public interest and did not proceed to the modification of "obsolete legislation 'at a time when it was not yet necessary to interfere with the rights of owners already in operation by the FVE. The applicants are of the opinion that the situation at hand cannot be attributed to the FVE operators because it is solely a consequence of the conduct or omission of the State. The appellants do not dispute the State's competence to take measures to protect the public interest; However, such measures must be proportionate and must not deviate from the constitutional limits. As a result of the introduction of the levy, however, according to the appellants, its taxpayers will pay their national energy policy (or state measures against the increase in the price of electricity for final consumers). The Constitutional Court has repeatedly held that it is not acceptable for a selective group of private entities to bear the effects of the implementation of a State-elected social policy. The appellants agree with the Prime Minister's claim, which stated in its observations that the level of profit was never guaranteed to the investors in Oz. However, investors were explicitly guaranteed the amount of aid per unit of electricity produced, which was violated by the introduction of the levy. These guarantees, which bind the State to the investor through the constitutional principle of the protection of legitimate expectations, are contained in the law from 2005 to today. In such a situation, investors' expectations that the State will respect those guarantees cannot be regarded as disproportionate or illegitimate. If the Ministry of Finance and the Prime Minister call into question the legitimate expectations of investors in the FVE in maintaining the amount of aid, they do not demonstrate any evidence or argument by the Ministry of Finance about the predictability of changes in the conditions for existing installations and the widespread awareness of their necessity. In the reply, the applicants further point to the fact that there was a systematic increase in electricity prices in the past, without creating any reaction from the State. It is so clear that, unless the State has found an urgent public interest in the past and prevented a substantial increase in electricity prices, neither the threat of an increase in these prices nor the real reason for the introduction of a levy and subsidy at the end of 2010. Even if there was a legitimate public interest of the State in limiting the increase in electricity prices, the substantial discrepancy between the relatively slight consequence of this measure (a reduction in the price of electricity by around 5%) on the total price of electricity compared to the significant intervention in investor property rights (a levy of 26-28%) to the FVE shows that the public interest in this case could not exceed the intensity of the legitimate expectations of investors, all the more so as year-to-year increases exceeding 10% are not exceptional even for other energy commodities with a substantial financial impact on their customers. In this context, the appellants stress that the aid paid to the RES electricity producers did not have to be directly related to the price of electricity to its final consumers, as repeated in the statements of the Prime Minister and the two ministries at several locations. It was the legislature's decision that it imposed the burden of financing the development aid for RES only on final consumers of electricity, when it was not limited in any way to finance it from entirely different sources. In their reply, the appellants question the statistics on which the conclusion of the Ministry of Finance (e.g. point 299) is based on the radical reduction of the return on investment to 8-9 years. In the model situation of the FVE with installed output of 1 MW and investment costs as well as other economic parameters determined by ERUs, the return on investment in the FVE did not fall below 13 years before the introduction of the levy. It was therefore only 2 years shorter than the return guaranteed. This corresponds to the normal maturity of bank loans drawn for the construction of the FVE, which ranged from 13 to 15 years. Thus, a two-year derogation from the statutory maximum 15-year return period cannot in any way justify the additional burden on investors in the FVE. Unlike the Ministry of Finance, the appellants also believe that the introduction of the levy is at least an unfairly retroactive measure. This is an incorrect retroactivity in its inadmissible form, in breach of Articles 1 and 9 of the Constitution. The applicants add that the false retroactivity is in accordance with the principle of protection of trust in law if it is appropriate and necessary to achieve the objective pursued by law and the overall measurement of the" disappointed 'confidence and importance and urgency of the reasons for legal change is maintained. As described above, these requirements were not met when the levy was introduced. In particular, the application of the retroactive measure was not necessary in relation to the objective pursued by the State, or other measures could be used to fulfil the objective pursued, which, in accordance with Article 4 (4) of the Charter of Fundamental Rights and Freedoms, would further conserve the substance and meaning of the fundamental rights affected. The applicants point out that from a material point of view, the levy also shows some signs of retroactivity that are genuine. The introduction of the levy infringed the minimum amount of aid to the FVE. This guarantee contained a stable amount of aid for a period of 15 years after the plant was put into service. If, for part of this guaranteed period, the amount of aid is to be changed depending on the date on which the FVE is put into service, it is a change in the facts that have already occurred, and thus the true retroactivity of the law, since the economic situation is equivalent to the reduction of the guarantee. According to the appellants, the levy cannot be regarded as a tax measure within the meaning of Article 11 (5) of the Charter of Fundamental Rights and Freedoms, but as a reduction in the amount of aid fixed. In the light of the above, the conclusions and case-law of the Constitutional Court concerning a limited review of tax measures and pointing out that the legislator has wide scope for self-consideration in the area of taxation cannot therefore be applied in the examination of the constitutionality of the levy. Nor is it appropriate to apply a less stringent proportionality test used by the Constitutional Court in the field of taxes or other compulsory payments to the State. The constitutional conformity of the levy must be measured by a general three-stage proportionality test, as defined by the Constitutional Court, for example, in its finding of 13.8.2002 in the case sp. zn. The appellants add that, in view of the nature of the values concerned by the levy, which include the right of ownership and the essential character of the democratic rule of law, it is not appropriate to apply to the case under consideration nor to the less stringent "reasonable test' used by the Constitutional Court in the context of the review of infringements of economic and social law. If the Ministry of Industry and Trade on pages 8 and 9 of its statement states that there was no breach of the principle of equality between individual FVE operators, since the rational basis of the distinction is the reduced investment costs of the FVE in 2009 and 2010, the applicants argue that there are significant differences between the specific projects of each FVE operator in particular in the investment costs, individual contractual terms, method of financing, selected technologies, etc., yet the selected group of these investors is now discriminated against by the introduction of a levy. The criterion of the period of entry into service of the FVE alone, as well as the reason for the legislator's discriminatory approach, will not stand. This also applies to the advantage of electricity producers from other types of RES, to which the entire aid is paid under the law. It has not been reassessed in any way, even if this aid is substantially reflected in the final price of electricity. In particular, in its comments on the opinion of the Energy Regulatory Authority, the appellants state that, although the Energy Regulatory Authority also mentions the method of calculating the discounted return, in its comments, only the simple return period, which is logically significantly shorter than the discounted return period, is incorrectly calculated in the table on page 4 with the five-year income tax exemption already abolished, thus also shortening the length of the calculated return period. Therefore, the applicants stress that the criterion of maintaining the 15-year return on investment guarantee must be clearly assessed using the discounted return and the calculations submitted by the Energy Regulatory Authority therefore lack relevance. In this context, the appellants refer to Annex 4 to their observations of 12 December 2011, which contains a model calculation of the discounted return on investment in the FVE in full compliance with the abovementioned Energy Regulatory Authority methodology. It is clear from this calculation that even if the introduction of the levy would not result in a clear breach of the 15-year return on investment guarantee, this period was extended to the very limit of the legally guaranteed rate as a result of the introduction of the levy. In such a case, it cannot be ruled out that a number of investors have been violated by the introduction of both the 15-year return on investment, since the same projects may differ in their return on investment. By letter dated 14 May 2012, the applicant's representative informed the applicant that it did not insist on oral hearing.

25. The Municipal Court in Prague, as an intervener of the proceedings, stated that it had nothing to add to the proposal of a group of senators, as it did not find it economical and effective to repeat the arguments already put forward. At the same time, the Municipal Court in Prague said that it agreed to waive the oral hearing before the Constitutional Court.

26. The contested provisions of Act No. 180 / 2005 Coll.:

The subject of the solar electricity levy ("the levy ') is electricity produced from solar radiation in the period from 1 January 2011 to 31 December 2013 in an installation put into service between 1 January 2009 and 31 December 2010.

(1) The levy is payable by the manufacturer when it produces electricity from sunlight.

(2) The transmission system operator or regional distribution system operator is the charge payer.

The basis of the levy is the amount excluding value added tax paid by the payer in the form of a purchase price or a green bonus to the taxpayer in the form of a charge for electricity from sunlight produced during the period of the levy.

Electricity produced from solar radiation in a power plant with installed output of up to 30 kW is exempted from the charge, which is located on the roof structure or perimeter wall of one building connected to the ground with a fixed base registered in the property register.

The rate of the levy on the basis of the levy is in the form of:

(a) purchase prices of 26%;

(b) a green bonus of 28%.

The levy period shall be the calendar month.

(1) The payer of the levy is obliged to reduce or select the levy from the base of the levy.

(2) The payer is obliged to withdraw the levy from the levy base within 25 days of the end of the period; within the same period, he shall be obliged to lodge a bill of account.

(1) The management of the levy is carried out by the territorial financial authorities.

(2) The administration of the levy shall be carried out according to the tax rules.

The levy is the income of the state budget. "

Paragraph 8 - the words "except for the control of the levy and its administration '.

27. The contested provisions of Act No. 402 / 2010 Coll.

Article II (2):

'2. For the payment periods of January and February 2011, the payer is obliged to pay the levy and to file the bill of contribution pursuant to § 7g of Act No. 180 / 2005 Coll., as effective from the date of entry into force of this Act, within the deadline for the payment of the levy and the filing of the bill for the payment period of March 2011. '

28. The contested provisions of Act No. 357 / 1992 Coll.

Paragraph 6 (8):

"(8) The subject of the donation tax shall be the free acquisition of greenhouse gas emission allowances in 2011 and 2012 for the production of electricity in an installation which, on or after 1 January 2005, produced electricity for sale to third parties and in which only the combustion of fuels (hereinafter referred to as the free-of-charge allowance ') is carried out from activities covered by the greenhouse gas emission allowance trading by the electricity manufacturer.'

(1) The tax base for free-of-charge allowances shall be the average market value of the greenhouse gas emission allowance on 28 February of the relevant calendar year multiplied by the number of free-of-charge allowances for electricity production for the relevant calendar year.

(2) The average market value of the greenhouse gas emission allowance on 28 February of the relevant calendar year will be published by the Ministry of the Environment in a way that allows remote access. '

The tax rate for free-of-charge allowances acquired shall be 32%. ';

Paragraph 20 (1) (a):

The words "with the exception of allowances obtained free of charge '.

Paragraph 20 (15):

"(15) The grant tax shall exempt the acquisition of a number of free-of-charge allowances corresponding to the ratio of the average quantity of electricity produced from cogeneration to the total quantity of electricity produced in 2005 and 2006. '

Paragraph 21 (9):

"(9) In the case of free-of-charge allowances, the taxpayer shall submit a tax return to the tax authorities responsible locally by 31 March of the relevant calendar year. This tax return shall include the taxpayer's information on the proportion of electricity production and the proportion of heat production in total greenhouse gas emissions for the calendar year 2005 and subsequent years. '

29. The contested provisions of Act No. 346 / 2010 Coll.

Article II (2):

"2. The exemption provided for in Article 4 (1) (e) or Article 19 (1) (d) of Act No. 586 / 1992 Coll., as effective until the date of entry into force of this Act, shall last apply for the tax period which began in 2010."

30. The application for annulment of the provisions of § 7a to 7i, § 8 in the section "except for the control of the levy and its administration" of Act No. 180 / 2005 Coll., Article II (2) of the transitional provisions of Act No. 402 / 2010 Coll., § 6 (8), § 7a, § 14a, § 20 (1) (a) in the section "with the exception of the allowances obtained free of charge," § 20 (15), § 21 (9) of Act No. 357 / 1992 Coll. In the present case, it can therefore be concluded that the conditions of active legitimacy on the part of the applicants are met.

31. The Constitutional Court is required, in accordance with the provision of § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., in proceedings concerning the control of laws or other legislation, to assess whether the contested legislation was adopted and issued in a constitutional manner.

32. From the relevant website of the Chamber of Deputies of the Parliament of the Czech Republic it was found that the Government submitted the draft Act No. 180 / 2005 Coll. to the Chamber of Deputies on 13 November 2003. The draft law was passed on 23 February 2005, in vote No 513 the draft law of 166 Members was 103 and 44 was against it. The bill was passed on to the Senate, which discussed it on 31 March 2005 and approved the bill in the version referred to by the Chamber of Deputies by Resolution 98. The law was not signed by the President of the Republic within the legal period. The approved law was delivered for signature to the Prime Minister on 2 May 2005. The Act was published on 5 May 2005 in the Collection of Laws in the amount of 66 under the number 180 / 2005 Coll.

33. The draft Act No. 402 / 2010 Coll., amending, inter alia, Act No. 180 / 2005 Coll. and Act No. 357 / 1992 Coll., the Government submitted to the Chamber of Deputies on 14 October 2010. The bill was passed on 9 November 2010, in vote 140 the bill of 159 Members was 123 and 12 were against it. The bill was passed on to the Senate, which discussed it on 8 December 2010. The Senate has not adopted a resolution on this bill. The Act was signed by the President of the Republic on 15 December 2010 and declared on 28 December 2010 in the Collection of Laws in the amount 144 under the number 402 / 2010 Coll.

34. Act No. 346 / 2010 Coll., which amended Act No. 586 / 1992 Coll., the Government presented to the Chamber of Deputies on 29 October 2010, the President of the House declared a state of legislative emergency on a proposal from the Government. The draft law was discussed in a brief hearing and was approved on 2 November 2010 by Resolution No 119. The bill was passed on 3 November 2010 to the Senate, which discussed it on 12 November 2010 and approved it in the version referred to by the Chamber of Deputies. The Act was signed by the President of the Republic on 23.11.2010 and declared on 8.12.2010. in the Collection of Laws in the amount 127 under the number 346 / 2010 Coll.

35. The appellants state that Law No 346 / 2010 Coll. was discussed in a legislative emergency, which disqualified the legislative process. The majority of the House justified the affinity of the state of legislative emergency by referring to Article 99 of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended by Act No. 359 / 2004 Coll., by "the State is in danger of significant economic damage '. However, the assumption that the existence of the law in force could be the cause of immediate widespread damage, according to the appellants, clearly deviates conceptually from the legislative emergency regime, for which no conditions have been laid down. The appellants also draw attention to the extreme reduction in the legal time limits for discussion between the reading in the Chamber of Deputies, so the legislative process has given Members conditions at the very limit of the possibility to discuss the draft in substance. Likewise, although this is undoubtedly a government initiative, the rules of government legislation have been ignored and the matter has been presented without consideration by the Legislative Council of the Government.

36. In relation to the objection of the unconstitutional defects of the legislative process in the Chamber of Deputies, the conclusions of the findings of sp. zn. Pl. ÚS 55 / 10 of 1.3.2011 (80 / 2011 Coll.) and sp. zn. Pl. ÚS 53 / 10 (see above) of the legislative emergency procedure as per the anti-constitutional procedure must be drawn up, but emphasise the overall context of the hearing of the contested draft. The constitutional authority of the Constitutional Court does not take place automatically (objectively) in any doubt as to the veracity of the state of legislative emergency, but only in a situation where the core of democratic parliamentary debate is materially affected, which can only be seen in relation to the positions of the parliamentary (parliamentary) debate actors themselves. Whereas, in the proposals sp. zn. It can be concluded from this that, in the case of the material discussed in the relevant press, the parliamentary debate under the legislative emergency regime does not, as a result, constitute a deficit, with reference to any undue restriction on the parliamentary rights of a political minority. The purpose of the constitutional function of the parliamentary opposition is not always, and at all times, to hold a position different from that of the majority of governments, nor can it be required to change its view of the material in question over time, in the face of reality. The task of the Constitutional Court is not, at the initiative of the members of another parliamentary chamber, to provide protection for the rights of a parliamentary minority who, in relation to a particular material, does not consider the outcome of the discussion of the draft in the Chamber of Deputies to be unconstitutional.

37. It follows from the stenorecord of the 25th Senate meeting on 12 November 2010 that by letter dated 27 October 2010, the Prime Minister asked the Senate, on behalf of the Government, to discuss the bill according to Senate Press No. 366 (draft law amending Act No. 586 / 1992 Coll.) in so-called abridged negotiations, pursuant to Article 118 of Act No. 107 / 1999 Coll., on the Rules of Procedure of the Senate, as amended by Act No. 172 / 2004 Coll. According to this provision, in the abridged act, the Senate may discuss the draft law referred to by the Chamber of Deputies if it was discussed in the Chamber of Deputies in the abridged act under Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended, and if the Government so requested. The motion under Rule 118 (1) of the Senate Rules of Procedure has been approved: 78 registered, Quorum 40, for 43, against 34. The above-cited finding of sp. zn. "However, a different situation would arise if a group of Members made a similar proposal with a longer period of time, i.e. only a few months or even years after the adoption of the law. Such a time span could be seen as (additional, tacitly) the agreement of the Members concerned to the parliamentary majority procedure. At the same time, such a procedure would no longer allow for the real protection of the violated rights of the Members concerned, since Parliament would decide on the draft law under changed circumstances or in a different proportion of force in its chambers." The finding of sp. zn. Until that date, his current term of office is in place and therefore he is in his current composition, which does not affect the duration of the mandate of the senators. In fact, regardless of the date of the following first meeting, the mandate will expire within the meaning of Article 25 (b) of the Constitution (see paragraph 138 of the quoted finding). In this respect, the Constitutional Court finds it clear that the proposal in the present case cannot succeed in the part in which it questions the legislative procedure in relation to Senate Press No 366. The Senate approved the draft, according to the findings of the Constitutional Court, on 12 November 2010, the publication of Law No. 346 / 2010 Coll. on 8 December 2010. The application sp. zn. Pl. ÚS 17 / 11 was lodged only on 11 March 2011 when the application was served on the Constitutional Court. This situation is assessed by the Constitutional Court as a "separation of several months' within the meaning of the finding of the sp. zn. In the case, there was no objective obstacle on the part of the appellant, which would have prevented it from making a proposal without undue delay after the hearing and the publication of the contested law in the same way as the Group of Members in cases sp. zn. In them, proposals were made with arguments relating to the abuse of the legislative emergency institute as early as 9 December 2010, although the contested laws were only published in the Collection of Laws on 8 December 2010. On the same date, Law No. 346 / 2010 Coll.

38. In addition to the above, it is clear that the other limit set out in the sp. zn. If, in the past, the Constitutional Court did not find the unconstitutional nature of the composition of the Senate in the meantime after the elections and the first meeting of the Senate (see the finding of the Pol. Finally, it would have to weigh the different role of the Senate (and the Institute of Short Negotiations) in the legislative process in relation to the Chamber of Deputies (and the Institute of Legislation), in which the fundamental political conflict between the majority of governments and the opposition takes place and which has the last word in the legislative process (Article 47 of the Constitution, also Article 50 (2) of the Constitution). The distinction between the present case and the fact that the appellants in cases sp. zn. Pl. ÚS 53 / 10 and sp. zn. Pl. ÚS 55 / 10, i.e. the legislative emergency institute of the particular group of opposition Members, did not themselves, on the basis of their constitutional political considerations, submit a proposal for the annulment of Law No 346 / 2010 Coll. although they had the opportunity to do so in similar cases (cited above). Where the legislative procedure in both chambers of Parliament is intended, in particular, to enable persons involved in the "real assessment and discussion of the draft Parliament '[finding of 31 January 2008 sp. zn. Pl. ÚS 24 / 07, part X / a (N 26 / 48 CollNU 303; 88 / 2008 Coll.), the finding of sp. zn.

39. The Constitutional Court notes that the adoption and issue of the legislation under review took place within the limits of the constitutional competence and in a constitutional manner.

40. The proposal is not justified as to the alleged unconstitutionality of the content of the contested provisions.

41. In view of the structure of the appellants' objections and the content of the contested legal provisions, the Constitutional Court divided the subject matter of its review into three parts. First of all, it is a question of the constitutionality of the introduction of electricity levy from solar radiation (amendment of Act No. 180 / 2005 Coll. by Act No. 402 / 2010 Coll. and transitional provision of Act No. 402 / 2010 Coll.), second of the constitutional review of the imposition of tax on the free acquisition of allowances (amendment of Act No. 357 / 1992 Coll.) and finally Article II (2) - Transitional provision of Act No. 346 / 2010 Coll., which abolishes in the future the exemption from income tax pursuant to § 4 (1) (e) or § 19 (1) (d) of Act No. 586 / 1992 Coll. (revenue from the operation of the solar plant).

42. The subject of the solar electricity levy is, within the meaning of Section 7a of Act No. 180 / 2005 Coll., on the promotion of the production of electricity from renewable energy sources and on the amendment of certain laws (Act on the Promotion of the Use of Renewable Resources), as amended by Act No. 402 / 2010 Coll., Electricity produced from solar radiation between 1 January 2011 and 31 December 2013 in an installation put into service between 1 January 2009 and 31 December 2010.

43. The Constitutional Court took as proven both by the appellants and by the public authorities the uncompared starting point of the situation which led to the amendment of Act No. 180 / 2005 Coll., Act No. 357 / 1992 Coll. and Act No. 586 / 1992 Coll. This was a situation in which the rapid development of the production of energy from the RES caused the cost of its financing to rise, leading to a reassessment of the state's position to date on public support for the production of energy from the RES. According to the Government, this process was completely legitimate and taken in the public interest in order to avert the social-economic impact while maintaining all rights and guarantees to investors in the energy plant of the RES under Act No. 180 / 2005 Coll. On the other hand, the appellants contend that the legislation adopted is contrary to the Constitution, guaranteed by Article 11 of the Charter of Fundamental Rights and Freedoms, contrary to the freedom of business provided for in Article 26 of the Charter of Fundamental Rights and Freedoms and Article 16 of the Charter of Fundamental Rights of the European Union, with the fundamental requirements of the democratic and legal state laid down in Article 9 (1) of the Constitution, as all the contested provisions of the law are retroactive; and with the constitutional principle of equality before the law pursuant to Articles 1 and 3 of the Charter of Fundamental Rights and Freedoms.

44. The amount of electricity prices from renewable sources and green bonuses is set out in Section 6 of Act No. 180 / 2005 Coll., on the promotion of electricity production from renewable energy sources and on the amendment of certain laws (Act on the Promotion of the Use of Renewable Resources), as amended by Act No. 137 / 2010 Coll., according to which the ERO provides for a calendar year-ahead purchase price for electricity from renewable sources (hereinafter referred to as "purchase prices') separately for each type of renewable energy sources and green bonuses, so that, for installations put into service after the date of entry into force of this Act, a 15-year return on investment costs for the unit of electricity from renewable sources, which are mainly the cost of installed unit of power, the use of primary energy in renewable sources and the period of use of the plant and which are determined by the implementing legislation, while maintaining the amount of revenues from renewable sources. For installations put into service before the date of entry into force of this Act, the minimum level of purchase prices established for 2005 under the existing legislation should be maintained for a period of 15 years, taking into account the price index of industrial producers. When setting the ransom prices and green bonuses, the ERO is based on different costs for the acquisition, connection and operation of individual types of equipment, including their time development. The purchase prices established by the ERO for the following calendar year shall not be less than 95% of the value of the purchase prices in force in the year in which the redetermination is made, this shall not apply to the determination of the purchase prices for the following calendar year for those types of renewable sources for which less than 11 years of return on investment is achieved in the year in which the redetermination of the purchase prices is made; The ERO shall proceed in accordance with paragraphs 1 to 3 when setting the ransom prices.

45. The Constitutional Court notes that, in any event, Article 6 of Act No. 180 / 2005 Coll., on the promotion of the production of electricity from renewable energy sources and on the amendment of certain laws (Act on the Promotion of the Use of Renewable Resources), as amended by Act No. 137 / 2010 Coll., setting out the level of the price of electricity from renewable sources and green bonuses, was not affected by the amendment of Act No. 402 / 2010 Coll. there is no doubt that, as a result of the introduction of the new provisions of § 7a followed by the introduction of the electricity levy from solar radiation, there was in essence a change in the amount of aid granted to FVE operators.

46. The objection to the retroactivity of the contested provision must be made as follows. Law No 402 / 2010 Coll. came into force on 1 January 2011. Paragraph 7a (1) of Act No 180 / 2005 Coll. explicitly sets out the subject of the levy, which is "electricity produced from solar radiation between 1 January 2011 and 31 December 2013 '. In view of the constitutional limits of the tax legislation laid down by the Constitutional Court, it is strictly not retroactive in any sense. For example, in the find sp. zn. Pl. ÚS 9 / 08 of 12.7.2011 (236 / 2011 Coll.) - paragraph 15 - the link between the effectiveness of the legislation and the tax period was laid down. The retroactivity, which was incorrect, was in the case sp. zn. In the present case, however, it is clear that the tax period, or the period in which the electricity produced is the subject of a levy, is still taking place with the effect of the legislation, i.e. that the levy is not at all the subject of electricity produced before the application of the law.

47. At the same time, however, the Constitutional Court had to take into account the specific issue of the regulated electricity market from renewable sources and in particular the guarantee contained in Section 6 (1) of Act No. 180 / 2005 Coll. Since the specific link between the levy pursuant to § 7a et seq. of Act No. 180 / 2005 Coll. to the overall system of aid for the production of electricity from renewable energy sources is evident, the question of possible retroactivity of the legislation in terms of the 15-year duration of guarantees within the meaning of § 6 (1) (b) (1) of Act No. 180 / 2005 Coll.

48. In this respect, the Constitutional Court notes that the provisions of § 7a to 7i of the contested law are essentially having the effect of improper retroactivity, as they result in the amount of the contribution to the reduction of aid to producers whose 15-year guarantee period pursuant to § 6 (1) of Act No. 180 / 2005 Coll. began to apply before the Act No. 402 / 2010 Coll.

49. In these specific circumstances, the Constitutional Court discussed the appellants' objections in the light of its legal conclusions on the issues of false retroactivity, precisely in view of the insertion of the period under Section 7a into the period under Section 6 (1) (b) (1) of Act No. 180 / 2005 Coll.

50. The Constitutional Court has repeatedly defined in its current case-law the terms of genuine and incorrect retroactivity (retroactive) of the legal standards [cf., in particular, the finding of Pl. ÚS 21 / 96 of 4.2. 1997 (N 13 / 7 SbNU 87; 63 / 1997 Coll.), the detailed justification of which can be referred in this context and the parts of which are cited extensively by the appellants, as well as the finding of 12 March 2002 (Pl. ÚS 33 / 01 (N 28 / 25 SbNU 215, 145 / 2002 Coll.)]. This is a true retroactivity where the legal rule causes the formation of legal relations before its effect under the conditions which it has only set out retrospectively, or where there is a change in legal relations under the old legislation, even before the new law is effective (cf. Silent, L. The temporal scope of the amendment to the Civil Code. Lawyer, No 12, 1984, p. 1104, Procházka, A. Basics of Intertemporal Law, bearing in mind § 5 of the Circuit, Brno, 1928, p. 70, Tilsch, E. Civil Law. General section. Prague, 1925, p. 75). In the case of false retroactivity, although the new law does not create legal consequences for the past, it does, in the past, legally qualify as a condition for future legal consequences or modifies legal consequences based on earlier regulations (cf. Walk, A. Retroactivity of laws. in Dictionary of public law. St. III, Brno, 1934, p. 800, Tilsch, E. Civil law. General section. Prague, 1925, p. 78).

51. As already stated by the Constitutional Court in its finding sp. zn. Pl. ÚS 53 / 10 of 19.4.2011 (119 / 2011 Coll. - Dismissing Judges Balík, Janů, Korka and Lastovecká), the Constitution does not contain an explicit prohibition of retroactivity of legal standards for all areas of law, but it follows from the principle of the rule of law according to Article 1 (1) of the Constitution, the character of which includes the principle of legal certainty and the protection of the trust of the citizen in law [cf. the finding of 8 June 1995 sp. This prohibition applies in principle only to cases of genuine retroactivity, not to retroactivity of improper. On the contrary, the subsequent type of retroactivity is generally permissible. At the same time, the content of this prohibition as a constitutional principle is not to exclude any retroactive legal regulation, but only one which also constitutes an intervention in the principles of the protection of trust in law, legal certainty or acquired rights [cf. sp. z. z. pl. ÚS 21 / 96 (see above), the finding of 13 March 2001 sp. zn. Pl. ÚS 51 / 2000 (N 42 / 21 SbNU 369, 128 / 2001 Coll.), the finding of 6 February 2007 sp. Only in this case is the legal standard contrary to Article 1 (1) of the Constitution. At the level of constitutional order, this starting point can also be illustrated in the wording of Article 40 (6) of the Charter, which even explicitly admits genuine retroactivity for the benefit of the individual. According to that provision, where different criminal law rules are provided for at the time of the act and at the time of the decision on it, the act is assessed in accordance with legislation which is more favourable to the perpetrator.

52. Those principles also constitute a criterion for the possible acceptance of exemptions from the prohibition of genuine retroactivity, some of which were also specified by the Constitutional Court in its previous case-law. For example, in his finding sp. zn. He described as such the application of a legal standard that is in direct conflict with fundamental, generally recognised principles of humanity and morality. However, he also referred to the legal opinion that "the retroactive application of the law to civil law conditions could also be justified by public policy (ordre public), especially if the provisions were affected by absolutely cogent provisions issued as a result of a certain marginal situation of the conversion of values in society (L. Silent, op. cit. p. 1102) '. Another example of the admissibility of genuine retroactivity was the non-application of the law to the facts which occurred at the time of its effectiveness, where the Constitutional Court found that such a law had been inconsistent with the constitutional order and application of that law in a vertical legal relationship, i.e. the legal relationship between the State and the individual, or exceptionally in horizontal relations, would have led to a breach of the fundamental right of the individual [cf. ÚS 15 / 09 of 8.7.2010 (N 139 / 58 of SbNU 141; 244 / 2010 Sb., paragraphs 53 and 54)].

53. While the genuine retroactivity of the rule of law is allowed only exceptionally, in the case of retroactivity of the wrong, the general admissibility can be established. In this case, on the contrary, the legal theory admits exceptions, when false retroactivity is not admissible in the light of the principle of the protection of trust in law. Such a situation is the case where "this affects confidence in the facts and the importance of legislative wishes to the public does not exceed, or does not reach an individual's interest in the continued existence of existing law '(Pieroth, B. Rückwirkung und Übergangsrecht. Verfassungsrechtliche Maßstäbe für intertemporale Gesetzgebung, Berlin, 1981, p. 380-381, cf. Decision of the Federal Constitutional Court of 19 December 1961 sp. zn. 2 BvR 1 / 60; BVerfGE 13, 274, 278). This view is also reflected in the established case law of the Federal Constitutional Court, according to which false retroactivity is in line with the principle of protection of trust in law if it is appropriate and necessary to achieve the objective pursued by law and in the overall measure of" disappointed' confidence and the importance and urgency of the reasons for legal change will be maintained within the limits of the load capacity (cf. Decision of the Federal Constitutional Court of 7 July 2010 sp. zn. 2 BvL 14 / 02, paragraph 58).

54. In relation to the question of the admissibility of false retroactivity, it is necessary to mention the concept of legitimate expectations, the relevant substance of which is the property interest, which falls under the protection of Article 11 (1) of the Charter and Article 1 of the Additional Protocol [cf. This provision provides for the right of everyone to use their property peacefully. According to the settled case law of the European Court of Human Rights, the concept of "property 'contained in this provision must be interpreted as having an autonomous scope which is not limited to the ownership of tangible assets and does not depend on the formal qualification of national law (Case 31443 / 96 Broniowski v Poland, paragraph 129). It may include both" existing assets' and assets, including claims on which the complainant may claim that at least "legitimate expectations' are to achieve a certain use of ownership. The Constitutional Court stated on this principle, in accordance with the case law of the European Court of Human Rights, that" it clearly refers to the concept of protection of legitimate expectations as a property claim which has already been individualised by a legal act or is individualised directly on the basis of legislation '[the finding of 8 March 2006 sp. zn. Infringement of Article 1 The additional protocol may also be made by the legislator if the amendment of the law would make it impossible to acquire the property which certain entities have had a legitimate expectation (cf.

55. Finally, the Constitutional Court recalls its conclusions contained in the finding in the sp. zn. But the legislature's decision on how to deal with a time conflict between old and new legislation is, from a constitutional point of view, not random or selfless, but a matter of considering a conflict of values. Therefore, the conclusion on the type of legislative solution for the time conflict of laws should lead to an assessment of that conflict of values by the aspect of proportionality with regard to intertemporal. Promotionality can be characterised by the fact that a higher degree of public interest or the protection of fundamental human rights and freedoms justifies a higher degree of intervention in the principles of equality and the protection of citizens' confidence in the law by new legal regulations. In so doing, the restriction of the fundamental right must, within the meaning of Article 4 (4) of the Charter, examine its substance and meaning. Thus, not only the degree of difference between old and new legislation, but also other factors, such as the social urgency of the introduction of that legislation, plays a role in assessing the legislative solution for that time conflict.

56. In view of the fact that the Constitutional Court concluded in principle that the provisions of § 7a to 7i, § 8 in part "except for the control of the levy and its administration 'of Act No. 180 / 2005 Coll., on the promotion of the production of electricity from renewable energy sources and on the amendment of certain laws (Act on the promotion of the use of renewable sources), as amended by Act No. 402 / 2010 Coll., and Article II (2) of the transitional provisions of Act No. 402 / 2010 Coll., it also had to deal with the question of its admissibility. Although false retroactivity is fundamentally acceptable, it cannot be excluded, in view of the principle of legal certainty and the protection of trust in the law, that the individual's interest in the continued duration of the existing legislation over the legislature expressed by the public interest in changing it. Therefore, the Constitutional Court had to assess whether, on the part of the FVE operators concerned, such a constitutionally relevant interest was given in maintaining the existing statutory electricity price from renewable sources and green bonuses without further reducing it by a levy that would outweigh the public interest in reducing it by measuring it. For the reasons set out below, the Constitutional Court did not find such an interest of the FVE operators in the present case.

57. The Constitutional Court states that, for an overall understanding of the issue of the use of energy from photovoltaic installations in other countries of the European Union, the USA and China, the Renewables Global Status Report (GSR), issued at the request of the United Nations by REN21 (Renewable Energy Policy Network for 21st Century, www.ren21.net), has become familiar. Since 2005, this organisation has been issuing evaluation reports as a result of efforts to capture the overall global situation of renewable energy. The latest report is from 2011 and was published in August 2011 (see http: / / www.ren21.net / REN21Activities / Publications / GlobalStatusReport / tabid / 5434 / Default.aspx). This is the world's most comprehensive report summarising the results of available statistics, reports and expert communications from government, non-governmental and international institutions and industrial associations. According to this latest annual report, the PV industry experienced an extraordinary year when global production and markets more than doubled compared to 2010. Overall, it is estimated that this was a 17 GW increase worldwide (compared to less than 7,3 GW in 2009), bringing the total to about 40 GW, which is seven times the performance five years ago. The report also points out that some of the existing preferential tariff policies (FIT) in the world are currently being reassessed. In particular, many countries are reworking solar photovoltaic tariff policies to mitigate the sharp growth in the number of installations that, in many cases, far exceeded expectations due to an unprecedented decrease in solar photovoltaic prices (panel price) in 2009-2010. As found by the Constitutional Court, none of the countries' monitored groups (Slovakia, the Federal Republic of Germany, Italy, Austria, Poland, Bulgaria and Spain) have changed their conditions of support for the production of electricity from renewable energy sources, but the case-law of the Constitutional and Supreme Courts of the above-mentioned States, as will be stated below, has already expressed its views on the conditions under which the rule of law on existing legal relations cannot be maintained.

58. For example, the Federal Constitutional Court on the constitutionality of the Renewable Energy Act in Resolution sp. zn. 1 of BvQ 28 / 10 of 23 September 2010 stated that false retroactivity means that the validity of legal facts, the creation of legal relations and the legal consequences thereof that occurred before the new Act was effective will be assessed according to the law of the former. However, if the previously established legal relationship continues to exist, the legal consequences of the legal relationship in question arising after the effective date of the new law under this new law will be assessed. The limits on the constitutional admissibility of false retroactivity are exceeded only if the legislator's choice of false retroactivity would be inappropriate or unnecessary to achieve the purpose of the law or if the continued interests of the persons concerned outweigh the legislative reasons for legislative changes. The general expectation that the right in force will remain unchanged is not constitutionally protected. In its Resolution sp. zn. 1 BvR 3076 / 08 of 18.2.2008 (BVerfGE 122, 374 ff), the Federal Constitutional Court stated that the provisions of § 19 EEG 2009 had retroactive effects, since they also apply to bioenergy plants put into service before the entry into force of the law (i.e. before 1.1.2009), but the complainant could not have trusted the permanent existence of § 3 (2) EEG 2004. Moreover, Paragraph 19 (1) of the EEG 2009 pursues a legitimate objective in order to avoid unnecessarily high financial burdens for distribution network operators and ultimately also for customers (i.e. customers) of electricity, who, as a result of the compensation mechanism incorporated in EEG 2009, have to pay so-called differential costs, precisely because of the division of one or more large bioenergy plants into several small installations.

59. The constant case law of the Italian Constitutional Court, which does not concern energy material, implies an obligation to respect the legal frameworks resulting from European Union law in the area of public expenditure limitation, and the national legislator is allowed to intervene in expenditure through reduction measures where the economic situation (the government account deficit) so requires, with the only restriction, which is the unequivocal wilful and evident irrationality of the changes made (ex plurimus of 14 April 2008). With regard to exemptions and benefits in the field of tax law, this regulation is entirely left to the legislator and its free field of activity in the field of tax legislation, with the constitutional review focused on the apparent insolence (libido) and irrationality (ex plurimus finding No 431 / 1997 of 16.12.1997).

60. The Austrian Constitutional Court (Verfassungsgerichtshof - VfGH) in its decision sp. zn. G 6 / 11-6 of 16. 6. 2011, VfGH rejected the proposal to declare unconstitutional legislation which reduced the age limit for entitlement to family contributions from 26 to 24 years for uninsured children (with some tax implications). VfGH concluded that, in this respect, the legislator was given a wide range of considerations and, following his previous case-law, stated that simple confidence in the fact that the current legal situation does not change does not benefit from constitutional legal protection. As is apparent from the explanatory memorandum, the contested legislation was adopted precisely for budgetary reasons.

61. The Polish Constitutional Court in Case P 24 / 05 [2006] ECR 24 / 05 of 25.7.2006, in which it examined the provisions of Paragraph 9 (3) of the Energy Act, which authorised the Minister of Economic Affairs to issue regulations imposing an obligation on energy undertakings to purchase electricity and heat from non-conventional and renewable sources, stated: "The energy industry is subject to the laws of the regulated market. Access to energy sources is essential for the existence of society and individuals, as well as for the sovereignty and independence of the state, namely to ensure the freedoms and rights of people and citizens. The ownership of energy sources is a prerequisite for the general benefit of the Republic of Poland, as expressed in Article 1 of the Constitution. The energy management area thus combines different constitutional values and principles that include: freedom of economic activity (Article 22 of the Constitution), citizens' security and the principle of sustainable state development (Article 5 of the Constitution) and environmental protection (Article 74 (1) and (2) of the Constitution). The contested legal provision is one of the elements by which public authority exercises influence on the energy industry in order to require economic efficiency, which must be brought into line with the constitutionally expressed needs relating to the achievement of the general benefits. Both the specific nature of the energy market as a regulated market and the aforementioned constitutionally expressed needs justify restrictions on the freedom of economic activity in the economy. '

62. The question of retroactivity was also addressed by the Supreme Court of Spain, and, in the context of the legislation on electricity from renewable sources, namely Government Regulation No 661 / 2007, it took decisions in several cases (147 / 2007 - Eolic Cat Associacio Eolica de Catalunya; 149 / 2007 - Nueva Generadora del Sur; 151 / 2007 - Consultora de Financiación Integral y Asociados y Alferglass and 152 / 2007 - Tarragona Power), declared in agreement on 9 December 2009. In general, the Supreme Court of Spain, in accordance with the case law of the Constitutional Court, states that the principle of legal certainty cannot be reconciled with the absolute integrity of the legislation. Even when it comes to applying changes to the implementation of energy policy, the legislator (as in the case of tax legislation, for example) is given some discretion. In the above-mentioned decisions, the Supreme Court, referring to Law No 54 / 1997, on electricity, (del Sector Eléctrico) recalled that this authorises the Government to introduce a method, calculation and updating of renewable energy compensation on the basis of objective, transparent and non-discriminatory criteria. According to the Supreme Court, the legislation in question obliges the Government to ensure a reasonable profit over the lifetime of these installations, while the law defines a reasonable profit as a return on investment in respect of the value of the capital market money. In other words, the government may amend the legislation in this area as it deems appropriate, under the conditions that installations subject to a special scheme will not be materially affected in relation to the return on their investments (in this case, the lifetime of the installation was set at 25 years and a reasonable profit based on an expert report of 7% after deduction of taxes). In doing so, the Supreme Court accepts the argument to protect the public economic interest. In the context of the consequences of retroactive legislation, the Supreme Court then judges that retroactivity as such does not, under any circumstances, render new legislation invalid. However, if, for example, installations subject to amended legislation suffer losses as a result of these measures, they may be liable to the State for damage.

63. The Croatian Constitutional Court, in its decision in sp. zn. U-I-3610 / 2010 of 15 December 2010, in which it dealt with a flat-rate reduction of all pensions by 10% of the amounts previously paid, stated that the legislator was empowered to amend the legislative arrangements for pension insurance in order to adapt it to the changed economic and social circumstances of the country or to stabilise it, i.e. to create conditions for a long-term sustainable pension system, including the adoption of measures aimed at achieving public finances savings and stabilising State budget expenditure. The right to a pension does not mean the right to a certain amount of a pension. Possible loss of a certain part (percentage) of the pension or other pension benefits received until such time as may be the result of legislative measures newly determining former pension rights also does not imply and priori the interruption of the nature of the pension right for as long as the loss of a certain part of the former pension benefit is a result of a general redefinition and is proportional in terms of its effects.

64. From the relevant case law of the US Supreme Court on the issue in question, it can be drawn to the most important decisions considered to be United States v Darusmont and United States v Carlton. In a decision by the United States in Darusmont 449 U.S. 292 (1981), when it examined changes to the Income Tax Act adopted in October 1976, which applied to transactions made after 1 January 1976, the US Supreme Court formulated a fundamental principle enabling retroactivity: "Taxation is neither a penalty imposed on the taxpayer nor a liability which it accepts on a contractual basis. This is only a way of allocating government costs among those who are entitled to benefit to some extent and those who must bear the burden. Since no citizen is excluded from this obligation, its retroactive imposition does not necessarily infringe the due process of law rule, and it is not sufficient to point out that the event subject to tax, i.e. the achievement of income, preceded the law to challenge the current tax. 'In the field of retroactive application of US tax legislation, the most reference is to United States v Carlton, 1994, 512 U.S. 26 (1994). The majority opinion formulated the standard to be used in the following cases: the requirement of a proper judicial procedure applicable to tax laws with retroactive effect is therefore the same as that applied to retroactive economic legislation:" Provided that retroactive application of the law is supported by legitimate legal purposes, the decision on the rationality of such legislation remains within the exclusive competence of legislative and executive power...'.

65. The Constitutional Court states, in particular, that the matter in question cannot be considered without taking into account the particular economic situation of the State under which the legislator has treated the appellant under the restrictive measure. These economic reasons are set out extensively in the observations made by both the Government and the relevant ministries with which the applicants have been informed, the Constitutional Court does not therefore consider it necessary and necessary to restate them at this point in addition to the description of the proposal.

66. In this context, the Constitutional Court points out that the economic situation of the State, or the reasons which lie undeniably in the attempt by the State to avert the adverse economic consequences of a decision taken by the legislature on a condition that no longer corresponds to the economic reality, cannot in itself, from a constitutional point of view, justify the adoption of legislation that would result in retroactively interference with the right to own the property of a group of entities. However, such a procedure by the legislature can be considered to be the accession of other conditions defined below.

67. On the issue of the reduction in the level of State aid and legitimate expectations, the Constitutional Court stated in point 159 of the above-mentioned finding, sp. zn. Pl. ÚS 53 / 10 of 19 April 2011, that "determining the contribution from the State budget for a particular purpose and for a particular group of persons always depends on the extent to which the legislator finds its effectiveness or public interest in its provision. This is particularly true in the case of a contribution the provision of which is merely a benefit from the legislator, without at the same time being linked to the fulfilment of a certain fundamental right or freedom. The parties concerned could not rely on the legislator to reassess this amount over time. Nor can the associated responsibility of the government and Parliament for the state of public finances be omitted, with which the legislator's authority to adjust State budget expenditure to its real possibilities and current needs by amending the legislation on mandatorial spending... '.

68. In the present case, the Constitutional Court considers it a priority that, according to the comments of the Energy Regulatory Authority and the Ministry of Industry and Trade, even after the adoption of the contested provisions, the promotion of the use of renewable energy sources remains maintained, to the extent that the electricity producers of the RES provide the legal guarantee of the amount of revenues per unit of electricity in support of the purchase prices for a period of 15 years, while a simple period of return on investment is guaranteed 15 years after the installation is put into operation. The Constitutional Court, together with the Government's statement, submitted annexes indicating that these statutory guarantees to the RES electricity producers will be maintained. From this point of view, the appellants' argument is not relevant, which calls into question the Government's argument on the return on investments in the period before the introduction of the 8-9-year levy. Moreover, it is clear from the statements of the appellants and the calculations submitted by them corresponding to the Energy Regulatory Authority Decisions that for a typical 1 MW FVE project, the return was at 13 years and the introduction of the levy was close to 15 years. According to the applicants, the normal maturity of bank loans drawn for the construction of the FVE, which was between 13 and 15 years, is also the same. It is therefore clear that the legal guarantee of the 15-year return on investment, whether simple or (in a model example submitted to the appellant) by the Constitutional Court, was respected. If the appellants refer to the significantly negative economic effects of the contested measures, it can be concluded that these claims are not sufficiently substantiated by their argument.

69. However, what the appellants categorically reject is the government's claim to maintain the level of revenues per unit of electricity. The condition of maintaining the amount of revenues per unit of electricity from renewable sources in support of the purchase prices for a period of 15 years from the year when the equipment is put into service as a minimum taking into account the index of prices of industrial producers is laid down in Section 6 of Act No. 180 / 2005 Coll., on the promotion of the production of electricity from renewable energy sources and on the amendment of certain laws (Act on the Promotion of the Use of Renewable Resources), as amended by Act No. 137 / 2010 Coll. The appellants consider that this guarantee cannot be seen in the terms of the FVE as a guarantee of yield within the meaning of the accounting item, as the Prime Minister states, but as a guarantee of the amount of revenue.

70. The Energy Regulatory Authority has submitted to the Constitutional Court a table showing revenue (in the form of an IRR) and a simple return period for new FVE resources. From the table presented, the Energy Regulatory Authority concluded that, even after taking into account the impact of the contribution on the return of the investment, the achieved IRR (internal return percentage) is above the WACC (weighted average cost of capital) level and the return periods will not fall below the 15-year level, regardless of the method of financing for individual projects. The return rate applicable for the years 2009 to 2010 after deduction of the levy varies between 6,94% and 10,22% depending on the installed capacity of the FVE, with a simple return period between 10-12 years. At the same time, the Energy Regulatory Authority notes that the fact that the investment carried out is not able to produce sufficient cash flow in some years of its existence to cover interest payments and the principal of the loan, which is granted for a shorter period than the expected return period, does not mean that such an investment does not have the expected return - it is merely a cash flow problem that is triggered by various requirements for its flow during the life of the investment, not by the fact that the investment as a whole does not have a return.

71. The Constitutional Court therefore concluded that, as a result of the acceptance by the appellant of the contested parts of Act No 402 / 2010 Coll. from the point of view of the investors who put the plant into operation between 1 January 2009 and 31 December 2010, only a temporary effect on the rate of profit caused by the increase in costs by the newly introduced levy obligation and the resulting extension of the period of return on their investment. However, the system of support and the principles of setting regulated prices, governed by Act No. 180 / 2005 Coll., continues to guarantee investors conditions such as to achieve a simple return period of 15 years. Thus, in relation to the return period, the change is reflected only in the fact that it will be achieved within a longer (but legally maintained) time horizon than the electricity producers from Oz expected. However, this de facto consequence is necessary, in terms of the principle of legal certainty and the protection of trust in the right, to equate the situation of mere reliance on the fact that state aid for the use of renewable energy sources will not be changed in the future. However, such trust cannot be granted from a constitutional point of view (compare the finding of the Constitutional Court sp. zn. Pl. ÚS 53 / 10, paragraph 160). In view of the same calculations submitted by the Energy Regulatory Authority, it is clear that the question not only of the simple return on investment (in terms of legal guarantees) but also of the other issue of reasonable profit from business on a regulated market must relate to the total period foreseen for the 20-year life of photovoltaic panels. In this respect, compare the above-mentioned conclusions of the Supreme Court of Spain, which, in the assessment, was based on the expected lifetime of the panels of 25 years.

72. In the light of the above, the Constitutional Court could not attest to the appellants' objections that the conditions for the application of false retroactivity had not been met if the levy had been introduced. In the present case, the Constitutional Court considers that the choice of legal measures aimed at limiting State aid was based on justified reasons which, on the one hand, the rapid development of the energy production from the RES resulted in an increase in the cost of its financing and, on the other, a decrease in the cost of photovoltaic installations. As the Government stated in its comments on the proposal, given the fact that the public support for the production of energy from Oz was set in the Czech Republic on the principle of transferring a large part of the financing of the aid to the end customer and the state budget, there was a real threat that the costs of financing the aid to date would be manifestly disproportionate in relation to Law No 180 / 2005 Coll. of the declared objectives. By the contested provisions of the objective pursued, that is to say, to avert the negative social-economic impact of, in particular, a substantial increase in the price of electricity for end-consumers and, secondly, the regulation of State aid in response to the extreme decline in investment costs, the Constitutional Court considers, from that point of view, entirely legitimate. The resources chosen to achieve this objective seem reasonable and proportionate, since, as the submitted documents show, the electricity levy from solar radiation has been established in such a way as to continue to guarantee a 15-year return on the investments invested, which is guaranteed by law. It is therefore not an extreme measure and the production of energy from the State budget from the RES continues to be heavily subsidised and supported by ransom prices.

73. The Constitutional Court also addressed the objection as to whether the introduction of the levy discriminated against the producers of solar energy whose production facilities were put into operation from 1.1.2009 to 31.12.2010, compared with the producers which put the production plant into operation from the date of the Act No. 180 / 2005 Coll. or earlier, i.e. from 2005 to 31.12.2008. According to the appellants, the levy is thus established by law for no reason, arbitrarily and is not based on public interest.

74. The Constitutional Court in a number of its decisions [e.g. the findings in cases referred to in sp. zn. Pl. ÚS 16 / 93 (see above), sp. zn. Pl. ÚS 36 / 93 (see above), sp. zn. Pl. ÚS 5 / 95 of 8.11.1995 (N 74 / 4 SbNU 205; 6 / 1996 Sb.), sp. zn. Pl. ÚS 33 / 96 (see above), sp. zn. He identified in them an understanding of equality, as expressed by the Constitutional Court of the Czech and Slovak Federal Republic in his finding of 8 October 1992 sp. zn. Pl. ÚS 22 / 92 (see above). The Constitutional Court of the Czech and Slovak Federal Republic saw equality as a relative category which requires the removal of unjustified differences. The principle of equality in rights must therefore be understood in such a way that legal discrimination in access to certain rights must not be an expression of pleasure, but does not imply that any right must be granted to anyone. This conclusion is also based on the adaptation of Articles 1 to 4 of the Charter. The provisions of Article 1 of the Charter, the infringement of which is expressly objected, cannot be interpreted in isolation from other general Articles 2 to 4 of the Charter, but must be regarded as a single whole. It is clear from the adaptation of this general provision that the basic protected values listed in Article 3 of the Charter did not devise the Constitution as absolute. The same reflects the provisions of Article 4 of the Charter, which directly foresees the existence of statutory obligations and restrictions, but also Article 2 (3) of the Charter, which foresees the possibility of imposing certain obligations or restrictions. Also, international human rights instruments and many decisions of international control bodies are based on the fact that not every unequal treatment of different entities can be classified as a breach of the principle of equality, i.e. as unlawful discrimination against one entity compared to other entities. In order for a breach to occur, several conditions must be met: different entities in the same or comparable situation are treated differently without objective and reasonable grounds for different approaches being applied. The Constitutional Court thus rejected the absolute understanding of the principle of equality, stating that "equality of citizens cannot be understood as an abstract category, but as a relative equality, as all modern institutions mean it" [sp. zn. The content of the principle of equality has thus shifted into the area of constitutional acceptance of the aspects of the distinction between entities and law. The first one sees the elimination of the libel. The second aspect is based on the legal opinion expressed in the case at issue under point Pl ÚS 4 / 95 of 7.6.1995 (N 29 / 3 SbNU 209; 168 / 1995 Coll.): "inequality in social relations, if it is to affect fundamental human rights, must achieve an intensity challenging, at least in a certain way, to the very essence of equality. This is usually the case when an infringement of another fundamental right, such as the right to own property pursuant to Article 11 of the Charter of Fundamental Rights and Freedoms, one of the political rights referred to in Article 17 et seq., of the Charter of..." [the finding sp. zn. The second point of view in assessing the unconstitutionality of a law establishing inequality is therefore the fundamental concern of one of the fundamental rights and freedoms.

75. Therefore, certain legal arrangements which favour one group or category of persons over another cannot, in itself, be regarded as a breach of the principle of equality without further action. The legislature has some scope to consider whether such preferential treatment will anchor. It must ensure that the favourable approach is based on objective and reasonable grounds (legitimate objective of the legislator) and that there is a relationship of proportionality between that objective and the means of achieving it (legal advantage) (see, for example, the judgments of the European Court of Human Rights in Abdulaziz, Cabales and Balkandali, 1985, § 72; Lithgow of 1986, § 177 and Inze of 1987, § 41). In the area of civil and political rights and freedoms, which immanently characterises the obligation of the State to refrain from intervening in them, there is only a minimal scope for preferential (i.e., by its essence, active) treatment of certain entities in general. On the other hand, in the area of economic, social, cultural and minority rights, in which the State is often obliged to take active action to eliminate the speculative aspects of inequality between different groups of companies which are intrinsically socially, culturally, professionally, professionally or otherwise stratified, the legislator has a much greater scope for applying its notion of the permissible limits of de facto inequality within it. It therefore elects preferential treatment much more frequently.

76. In this context, the Constitutional Court refers to the opinion of the Energy Regulatory Authority, which stated that, on the basis of the applicable legislation at the relevant time, it could not respond to a situation where there was a significant annual decrease in the specific investment costs of setting up these resources as a result of a decrease in the prices of photovoltaic panels by more than 40% in 2009 corresponding to a reduction in the purchase price of electricity from these sources, since by Law No 180 / 2005 Coll. it was only allowed to reduce the purchase price of electricity for new sources annually by 5%. This has resulted in a very significant advantage for newly built photovoltaic power plants compared to other types of renewable sources for which the aid was set optimally. In the light of the foregoing, the Constitutional Court concluded that if, on the basis of the calculations resulting from the reduced investment costs of the FVE in 2009 and 2010, the legislature only accepted the introduction of a new legal institute - a levy - in relation to the solar power producers' circle, only those whose plants were put into service from 1.1.2009 to 31.12.2010, such a criterion cannot be considered rational and constitutionally consistent. The Constitutional Court has not convinced the appellants that such an intervention is a disproportionate intervention (measured by the percentage difference between the cost of electricity to the end customer and the amount of the levy). The mathematical concept of the proportionality relationship between the alleged interference with their property rights and the legislator of the measures adopted in this way cannot be accepted for their distorted simplification. The Constitutional Court, with regard to the amount of the levy or to the establishment of a threshold above which the levy would no longer be constitutionally conformal, must reiterate that, on similar fiscal issues, it is necessary to respect the legislature's will to take the measures it has chosen, while insisting that the legitimate legal purpose pursued by rational means and the simultaneous exclusion of manifest insolence be met. On the legitimacy of the contested provisions of the objective pursued and the rationality of the funds chosen, the Constitutional Court has already stated in paragraph 72 above. As regards the exclusion of arbitrariness, the Constitutional Court assesses the level of financial burden on the parties concerned, namely whether it is an intervention in rights that would go beyond the threshold over which the submission of the FVE operators to the additional levy and other financial instruments would go beyond the limits of constitutionality. The Constitutional Court, having taken into account the fact that even after the introduction of the levy, the 15-year period of return on investment will remain for FVE operators, has not reached a conclusion on the insolubility of the additional burden on FVE operators through the solar electricity levy.

77. The Constitutional Court is of the opinion that, for the reasons set out above, it is not appropriate to measure the legislation in question to the appellant by the three-stage proportionality test defined by the Constitutional Court, for example, in its finding sp. zn. This principle is based on the premise that intervention in fundamental rights or freedoms, even if not provided for by their constitutional arrangements, may occur in the event of a collision between them or in the event of a collision with another constitutionally protected value which is not the nature of the fundamental right and freedom - public good - [cf. the finding of the Constitutional Court of 9.10.1996 sp. zn. Pl. ÚS 15 / 96 (N 99 / 6 SbNU 213; 280 / 1996 Coll.]). In the present case, the Constitutional Court does not see the conflict of two or more fundamental rights or constitutionally protected values as a dominant problem, but rather the questioning of the constitutionality of a law which does not involve interference with constitutionally guaranteed rights and freedoms, but, as a result, the reduction of State aid envisaged by the earlier law. It cannot be inferred to the appellants that the amount of aid thus set by law in the future would exclude any newly established tax burden (regulation). Such a requirement for the legality of legislation does not support the legislation in force, and, as the Constitutional Court has stated above, it is in the context of the specific conditions of the present case a measure having the effects of only false retroactivity.

78. The subject of donation tax within the meaning of Article 6 (8) of Act No 357 / 1992 Coll., on inheritance tax, donation tax and real estate transfer tax, as amended by Act No 402 / 2010 Coll., the free acquisition of greenhouse gas emission allowances in 2011 and 2012 for the production of electricity in an installation which, on or after 1 January 2005, produced electricity for sale to third parties and in which the activities covered by greenhouse gas emission allowance trading are only covered by the combustion of fuels (hereinafter referred to as the "free-at-charge allowance ') by the electricity producer.

79. The taxation of emission allowances is, according to the applicants, contrary to the Community law governing greenhouse gas emission allowance trading in Directive 2003 / 87 / EC. Article 10 of this Directive obliges Member States to ensure the allocation of at least 90% of the total quantity of emission allowances free of charge for a period beginning on 1 January 2008, in accordance with the approved national allocation plan. Therefore, the voluntary introduction of the taxation of greenhouse gas emission allowances in breach of the legitimate expectations of operators of installations included in the greenhouse gas emission allowance trading scheme is unconstitutionally interfering with the protected right of ownership.

80. The national allocation plan for the Czech Republic was approved by the European Commission by decision of 26.3.2007 and was subsequently adopted in the form of Government Decree No. 80 / 2008 Coll., on the National allocation plan for the trading period 2008-2012.

Government Decree No. 80 / 2008 Coll., on the National Allocation Plan for the trading period 2008-2012:

The Government mandates pursuant to § 8 (5) of Act No. 695 / 2004 Coll., on the terms of greenhouse gas emission allowance trading and on the amendment of certain laws:

(1) A national allocation plan setting out the total quantity of allowances to be issued in each calendar year of the 2008-2012 calendar year ("trading period") and the quantity of allowances to be allocated to each operator in each calendar year of the trading period is hereby published.

(2) Annex 1 to this Regulation sets out the total quantity of allowances to be issued in each calendar year of the trading period. Annex 2 to this Regulation sets out the quantity of allowances to be allocated to each installation operator in each calendar year of the trading period.

(1) This Regulation shall enter into force on the day of its publication.

(2) This Regulation shall expire on 1 January 2013.

Annex 1: Total quantity of allowances to be issued in each calendar year of the trading period

Annex 2: Quantity of allowances to be allocated to each installation operator in each calendar year of the trading period

81. The Constitutional Court refers to the detailed observations of the Ministry of Finance, which it identifies, to the appellants' objections to the lack of competence of the Ministry of the Environment in the price area and the related public law nature of the allowances, which is contrary to the private legal nature of the provisions in question (donation tax). According to Section 7a (2) of Act No 357 / 1992 Coll., on the tax on inheritance, donation and property transfer tax, as amended by Act No 402 / 2010 Coll., the average market value of the allowance on 28 February of the relevant calendar year will be published by the Ministry of the Environment in a manner that allows remote access. According to Article 16 (1) (j) of Act No. 695 / 2004 Coll., on the terms and conditions of greenhouse gas emission allowance trading and amending certain laws, as amended by Act No. 164 / 2010 Coll., the Ministry of the Environment publishes the expected market value of the allowance. Law No 357 / 1992 Coll. therefore only provides that the average market value of the allowance is published by the Ministry of the Environment, but not by the Ministry of the Environment determining the market value of the allowance for tax purposes. If the appellants contend that the new standard taxes emission allowances already issued, the Constitutional Court also acknowledged here the conclusion presented by the Ministry of Finance that the Government Decree No. 80 / 2008 Coll., on the National Allocation Plan for the 2008-2012 trading period, is merely a promise of the acquisition of allowances by the greenhouse gas installations operator, provided that the statutory conditions are met. The actual acquisition of emission allowances into operators' assets takes place every year at the time of the inclusion of a specific number of allowances in operators' accounts. The above means that, since the amendment No. 402 / 2010 Coll., i.e. 1 January 2011, will be taxed only in the future by the acquired allowances, so it is not a regulation or an improper retroactive one. On the question of the legitimate expectations of the parties concerned, there can be no more than a reference to the conclusions expressed by the Constitutional Court on the issue of the charge for solar electricity.

82. The appellants argue that the legislation in force since 2002 is an expression of the State's interest in the sustainable use of natural resources and the protection of natural resources (Article 7 of the Constitution) and is as such part of the legitimate expectation of the addressees of the law, who have also based their business plans in the field of renewable energy. Consequently, as a result of the contested amendment and the manner in which it is transposed, intervention in the legitimate expectations of taxpayers is an intervention, as well as the establishment of inequalities between its addressees; the criterion is once again the time when the production facility is put into operation.

83. According to the explanatory memorandum to Act No 346 / 2010 Coll. the contested provisions respond to the need to eliminate by all legal means the currently unjustified indirect support for the production of electricity from environmental sources, in particular from solar installations, and therefore tighten the tax regime for environmental sources and installations by ending the exemption from the operation of environmental installations. At the same time, the provisions in question are aimed at meeting important public interest (maintaining stability of energy prices, not increasing public debt, etc.), which could be justified in the spirit of the Constitutional Court's case-law by a potential intervention in the legitimate expectations of taxpayers.

84. It is therefore clear that the reasons and objectives of the contested legislation, which was adopted to abolish the exemption from the tax on the operation of solar installations - Article 4 (1) (e) and Article 19 (1) (d) of Act No 586 / 1992 Coll. - are identical to the reasons and objectives of the adoption of the legislation which provides for the levy on electricity from solar radiation, which is why the Constitutional Court refers in this section to recitals 65-77 to this finding, which fully affect the issue. For the sake of completeness, the Constitutional Court adds that the exemption from income tax has been abolished for other environmental establishments. This exemption was last used by taxpayers for the tax period which started in 2010, which means that the change also applies to taxpayers who put environmental resources and equipment into operation before the amendment became effective.