The Constitutional Court found No 230 / 2021 Coll.
The Constitutional Court found of 18 May 2021 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
17.06.2021
230
FIND
The Constitutional Court
On behalf of the Republic
On 18 May 2021, the Constitutional Court decided under sp. zn.
as follows:
Paragraph 82b (3) of the third sentence of Act No. 235 / 2004 Coll., on Value Added Tax, as effective until 31 March 2019, was contrary to Article 36 (1) of the Charter of Fundamental Rights and Freedoms in conjunction with Article 1 (1) of the Constitution of the Czech Republic and Article 2 (2) of the Charter of Fundamental Rights and Freedoms.
Reasons
Subject matter
1. The Municipal Court in Prague (hereinafter referred to as the "applicant") pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court") submitted to the Constitutional Court a proposal for the declaration of inconstitutionality under the heading of that part of the Act.
2. The appellant made a proposal after having, in proceedings for an action against a decision by an administrative authority under sp. 10 Af 12 / 2019 in accordance with Article 95 (2) of the Constitution, concluded that the contested provision was contrary to Articles 2 (3) and 4 of the Charter of Fundamental Rights and Freedoms ("the Charter ').
The facts of the case
3. The application and the requested court file of the applicant shall state that the applicant in that case is a trading company with its registered office and a person registered in the Slovak Republic. On 22 August 2016, the applicant requested the Tax Office for the City of Prague ("the tax administrator ') on the refund of value added tax pursuant to Section 82a of Act No. 235 / 2004 Coll., on value added tax, as amended, (" the VAT Act') and pursuant to Section 82a (5) (d) of the same Act gave an electronic (e-mail) address for communication with the tax administrator. He issued a call on 2 November 2016 to remove doubts and provide additional data. Since the applicant did not respond, the tax administrator rejected the application by decision of 31.3.2017 No 2612712 / 17 / 2001- 53523- 106443. On 18 June 2018, the applicant brought an appeal against that decision, which the tax administrator rejected as late and stopped by decision of 28 June 2018 No 5628059 / 18 / 2001-53523-106443.
4. The applicant opposed the latter decision of the tax administrator by arguing that the appeal of 2 November 2016 and the decision of 31 March 2017 had only been served on it on 18 June 2018 when it lodged the appeal. By Decision of 19 December 2018 No 55053 / 18 / 5300- 21443- 702551, the Appellate Financial Directorate rejected the appeal and confirmed the decision of the tax administrator. It is submitted that the Appellate Financial Directorate considered those acts of the tax administrator to be received under the contested provision. The Appellate Financial Directorate referred to the Internal "Automated Tax Information System (ADIS) ', from which it is submitted that the documents were sent and delivered. Box" Date of dispatch.' is completed with the relevant data as well as the box "Delivered ', while the box" Not dispatched' is not completed.
5. The applicant brought an action against that decision of the Appellate Financial Directorate to the appellant, in which it contends that the administrative authorities have not demonstrated the dispatch and delivery of the call of 2 November 2016 or the decision of the tax administrator of 31 March 2017; the information system is an internal information system of the tax administrator, it is not a public register or authentic instrument. The information system lacks control mechanisms and the delivery of documents remains at the level of the claim.
Arguments of the appellant
6. First, the appellant points out that the contested provision follows Article 82a (5) (d) of the VAT Act, according to which the application for refund also contains an electronic address and the requirements of Council Directive 2008 / 9 / EC of 12.2.2008 laying down detailed rules for the reimbursement of value added tax provided for in Directive 2006 / 112 / EC to taxable persons not established in the Member State of refund but in another Member State ("Directive 2008 / 9 / EC '), which provides for certain specific acts to be notified electronically. Pursuant to Article 20 (1) of the same Regulation, a Member State is required to notify by electronic means a call for supplementary information for the processing of a refund application.
7. Furthermore, the appellant submits that the Czech administrative courts have not yet dealt with the application of the contested provision. It is also not aware of the judgment of the Court of Justice of the European Union ("the Court '), other than Case C-133 / 18 Sea Chefs Cruise Services, which, however, now concerns the situation at hand only marginally. However, the appellant failed to see that the" content-corresponding provision' of Paragraph 101g (5) of the VAT Act was annulled by the Constitutional Court as a non-constitutional finding of 6.12.2016 sp. zn. The now contested provision does not deviate from the repealed legal provision 'in decisive terms'. The supporting conclusions of that finding, expressed in points 72 and 73, can also be used in the present case.
8. The appellant further submits that, according to the Appellate Financial Directorate, the contested provision constitutes a legal fiction according to which the transmission of the data message itself to the applicant is considered to have been received by that electronic address. Therefore, it is sufficient for the tax administrator to prove the receipt of the document to prove its dispatch. The appellant points out that according to settled case-law of the administrative courts, communication by public data network to an e-mail address (e-mail) is "unguaranteed and inconclusive 'and that the document (e-mail report) does not need to be served (cf. Comprehensive judgment of the Supreme Administrative Court of 4 September 2015 No. 8 As 6 / 2015-37). The Supreme Administrative Court has consistently held that, if the service contested by the" e-mail' submission is made, it will not benefit from the advantages enjoyed by the "classical method '(see judgment of 6 March 2019 No 2 As 153 / 2018- 31).
9. According to the Supreme Administrative Court, the demonstration of electronic service is also more difficult than other means of service, which is accentuated by the Constitutional Court (cf. Resolution of 20.7.2005 sp. zn. I. ÚS 250 / 05, of 22.1.2009 sp. zn. III. ÚS 2361 / 08 or of 18.3.2015 sp. zn. I. ÚS 137 / 15; all decisions are available at http: / / nalus.ujud.cz). The copy of the e-mail statement is not inimitable and is generally not sufficient to prove dispatch (see the order of the Supreme Administrative Court of 11.8.2006 No. 8 Afs 82 / 2006-68) as well as the so-called printscreen screen. According to the Supreme Administrative Court, it is therefore unsustainable for the e-mail sent to prove its service, since it could be regarded as a properly served document which, for example, had never been delivered for technical error (see judgment of 11.6.2015 No 7 of Azs 113 / 2015-32). The Supreme Administrative Court and the Constitutional Court have clearly distinguished the system of data boxes as a privileged and reliable form of delivery from e-mail communications that do not have such characteristics.
10. Therefore, according to the appellant, firstly, it is not possible to guarantee the reliability of the communication via e-mail and therefore cannot have such a privileged position as other means of delivery. Second, that those characteristics do not prevent its use if the addressee so requests (party to the proceedings), while ensuring that the addressee is confirmed by the addressee, otherwise the public authority will deliver the document as if it had not requested electronic service of the addressee (cf. § 19 paragraphs 4 and 9 of Act No. 500 / 2004 Coll., the Administrative Code, as amended by Act No 183 / 2017 Coll.). The general administrative procedure thus provides sufficient guarantees, contrary to the tax rules applied independently of it (cf. Section 262 of Act No. 280 / 2009 Coll., Tax Code). According to the appellant, there is no reasonable reason not to apply those grounds even in the tax proceedings. Moreover, the unreliability of the electronic form of communication was reflected by the Constitutional Court in the already referred finding sp. zn. Pl. ÚS 32 / 15.
11. The contested provision assumes without further delay that the decision on the refund of value added tax will be served on the applicant to an electronic address. It is decisive, however, that in situations where the consignor is an individual sent by e-mail, he is not protected at such a level as the public authority, if he is the consignor of the document. Even an extract from the tax administrator's internal system should not be of such weight as to be able to link the legal consequences of service of the document without further delay. Even if the latter could be accepted, it is still the case (according to that finding) that the dispatch itself does not imply service of the document.
12. In conclusion, the appellant points out that, taking into account the obligation of the Czech Republic to serve certain acts taken in connection with the refund of value added tax under Directive 2008 / 9 / EC, it considered whether the grounds for initiating the procedure for a preliminary ruling were given to the Court of Justice. It concluded, however, that this is not necessary, since, firstly, the obligation to introduce such steps so that the proceedings before the tax administrator are constitutionally conformed, Directive 2008 / 9 / EC does not prevent, and secondly, the obligation to ensure the delivery by electronic means does not concern the decision itself on the application for reimbursement.
Observations of the parties and interveners
13. The Judge-Rapporteur, pursuant to Article 69 of the Law on the Constitutional Court, sent a motion to the Senate of the Parliament of the Czech Republic ("the Senate") and to the Chamber of Deputies of the Parliament of the Czech Republic ("the Chamber of Deputies") as parties. It also sent the proposal to the Government and the Ombudsman as state bodies, which are entitled to intervene under Paragraph 69 (2) and (3) of the same Act.
14. The Chamber of Deputies stated in its observations that the contested provision was added to the VAT Act by Act No. 489 / 2009 Coll., amending Act No. 235 / 2004 Coll., on Value Added Tax, as amended, which was discussed in the fifth parliamentary term as House Press No. 887 and circulated to Members on 12 August 2009. The first reading of the draft law took place on 29 September 2009, when the draft law was ordered to the budgetary committee. It discussed it on 1 October 2009 and recommended it for approval without amendments. The second reading of the bill took place on 20 October 2009; the amendments were processed as House Press 887 / 2 and circulated the following day. At the third reading, the bill was passed in the presence of 154 Members, 142 of which were in favour of the proposal, none against it and 12 abstentions. The Chamber of Deputies passed the Senate Bill on 13 November 2009. The Senate approved the bill at the 14th meeting of 10 December 2009. The law was delivered to the President of the Republic on 16 December 2009. The President of the Republic signed the Act was declared in the Collection of Laws under No. 489 / 2009 Coll.
15. According to the Chamber of Deputies, the bill was adopted after a properly implemented legislative process. The legislature acted in the belief that the provision at issue was in accordance with the constitutional order of the Czech Republic. Finally, the Chamber of Deputies stated that it was up to the Constitutional Court to assess the constitutionality of the contested provision.
16. The Senate stated in its observations that the amendment to the VAT Act concerned was submitted to it in its seventh term of office on 13 November 2009. The 30-day period for the examination of draft law No. 489 / 2009 Coll. under Article 46 (1) of the Constitution expired on 14 December 2009. The press was ordered by the Committee on Economic Affairs, Agriculture and Transport as the Committee on Guarantee (and the only one), which recommended it to be approved by the Resolution of 9 December 2009, as approved by the Chamber of Deputies. The Senate classified the press at its 14th meeting and discussed it on 10 December 2009. In the general debate, no senator, the provision in question, "has not been the subject of any critical debates'. The Senate approved the bill by 352nd resolution, as referred to by the Chamber of Deputies in the vote of Order No 8. Out of the 58 senators present, 48 of them were in favour of Quorum 30, no one was against it.
17. The Senate further argues that the draft Act was submitted to the Czech Republic to comply with its obligations under Directive 2008 / 9 / EC and other Union provisions on the refund of value added tax. The Senate has discussed the draft law within the limits of the Constitution and in the manner laid down.
18. The Government, through the Minister of Justice, has stated that it has approved its entry into the proceedings and has proposed the rejection of the proposal. First, the Government argues that, although the text of the Constitutional Court annulled by Paragraph 101g (5) of the VAT Act is in line with the provisions currently contested, the conclusions of the finding, sp. zn. It is necessary to look at both provisions in their context, since the repealed Section 101g (5) of the VAT Act concerned a control report; the provision currently under assessment of the same law concerns the reimbursement of value added tax in the domestic territory to taxable persons in another Member State of the European Union. The Government further argues that value added tax is a highly harmonised tax, which is not the case with the control report. This difference will necessarily affect the interpretation of the various provisions of the VAT Act.
19. Moreover, the Government stresses that Directive 2008 / 9 / EC does not consider e-mail delivery as a "second-rate 'method. This is given historically; the issue was previously covered by Council Directive 79 / 1072 / EEC of 6.12.1979 on the harmonisation of the laws of the Member States relating to turnover taxes, which was mainly based on a paper document scheme. This Directive was subsequently replaced by Directive 2008 / 9 / EC. It anchored a new way of communicating using modern technologies. Persons applying for refund shall be able to submit applications for refund electronically via an electronic portal established at European Union level. However, this portal no longer contains a specific application for subsequent communication following the submission of this application - that is to say, especially when delivering notifications, calls and decisions of the tax administrator. At European Union level, legislation does not currently provide for a single electronic system enabling subsequent communication. Therefore, the Union rules also prefer e-mail communications (the person is required to indicate the e-mail address to which the tax administrator's documents are served and notified).
20. As there is no single electronic system, national delivery methods - a data box or a document - must be delivered. However, for taxable persons in another Member State of the European Union, the obligation to have a data box set up under Act No. 300 / 2008 Coll., on electronic operations and the authorised conversion of documents, as amended, would lack meaning for the purposes of a one-off refund of value added tax and appeared undesirable and burdensome in view of the principle of the effectiveness of European Union law. According to the Government, therefore, in a given specific situation, the means of delivery by e-mail is appropriate and proportionate in accordance with the general principles of Union law. Conversely, the delivery of paper is impractical for both tax authorities and the applicant and would entail an increase in the administrative burden and costs of both entities. The Government stresses that there are changes in postal services which weaken the evidence of the delivery of documents to another Member State. Moreover, e-mail service in the field of value added tax refunds to persons established in another Member State of the European Union is not only a Czech specific. The system is also set up by the Slovak Republic, including the fiction of delivery at the time of sending the email. Sweden, Latvia and Finland have a similar system. The contested regulation therefore responds to the inefficiency of delivery abroad.
21. Furthermore, the Government points to differences in the control report and refund of value added tax in the country to taxable persons in another Member State. The introduction of e-mail communication compared to the control report is essential for non-existing links of foreign entities to the Czech Republic. According to Section 82a (1) of the VAT Act, persons who do not have their registered office or establishment in the Czech Republic are registered for tax in other Member States of the European Union and do not, except for a limited number of exceptions, carry out supplies of goods or services with a place of supply in the Czech Republic. The Government points out that Union law sets strict deadlines for procedures for the refund of value added tax. The periods for which the refund of the tax may be requested (minimum 3 months, maximum 1 year, except for the remainder of the year, see Section 82a (8) of the VAT Act and Articles 16 and 17 of Directive 2008 / 9 / EC respectively) are specified. The deadline for the application is also set (Article 82a (10) of the VAT Act and Article 15 of Directive 2008 / 9 / EC respectively). In addition, the time limits for tax authorities to issue decisions (Article 82b (5) of the VAT Act, Article 19 (2) and Article 21 of Directive 2008 / 9 / EC) and the request for supplementary information (Article 82b (4) of the VAT Act, Article 20 (2) of Directive 2008 / 9 / EC) are also laid down. The tax administrator also has an obligation to inform the applicant by electronic means that the application has been received (Section 82b (3) of the VAT Act, Article 19 of Directive 2008 / 9 / EC). It is clear to the applicant when to expect the activities of the tax administrator. It is therefore "at least specific 'that the applicant has not taken any steps to establish the state of its application until the date of service of the decision which it considers to be due until June 2018.
22. The Government further argues that the tax administrator has established procedures to ensure greater security of delivery of e-mail, e.g. formal control of the existence and correctness of e-mail addresses in the e-portal. An automatic e-mail check system has been created, including in case of a system crash. Unsent email is automatically sent at the earliest opportunity. From a technical point of view, it is unlikely that an e-mail is sent to the address indicated in the refund application. In addition, the General Financial Directorate examines the dispatch of specific documents in certain situations. To date, it has not been established that a specific document has not been sent to an e-mail address.
23. The Government underlines that, for the refund of value added tax in the country to taxable persons in another Member State, delivery by e-mail is the most appropriate; reduces the administrative burden and corresponds to the current state of the company. The evidence is the receding postal services. The means of delivery under consideration shall be supported both at Union and Member State level. The most appropriate time of delivery appears to be the sending of an e-mail, as this moment can be accurately determined. Contrary to the control reports, the relatively short period for compliance with the tax liability of a tax entity under threat does not depend on this point and the applicant is generally only familiar with the decision of the tax administrator on the refund of value added tax.
24. In conclusion, the Government states that the appellant is only entitled to submit an application to declare inconstitutionality § 82b (3) of the third sentence of the VAT Act in its version effective until 31.3.2019 (see the finding of the Constitutional Court of 10.1.2001 sp. zn. Therefore, the same arrangements contained in Section 82b (2) of the Third VAT Act, as currently amended, would remain effective. According to the Government, such a situation is undesirable, interferes with the legitimate expectations of tax entities and tax authorities and leads to legal uncertainty of the persons concerned and instability of the rule of law. The Government therefore proposes to reject the proposal as unfounded.
25. The Ombudsman informed the Constitutional Court that he would not use his right to intervene.
26. The Judge-Rapporteur sent the observations received to the appellant in the light of a reply, if any. However, the appellant did not exercise its right to reply within the specified period.
Abandonment of oral proceedings
27. The Constitutional Court concluded that further clarification of the case cannot be expected from oral proceedings and therefore, in accordance with Article 44 of the Constitutional Court Act, it decided on the case without its regulation. The fact that the Constitutional Court does not consider it necessary to carry out the taking of evidence also justifies the failure of oral proceedings. Neither the parties nor the intervener requested the oral hearing to be held.
Derogation of the contested provision
28. Paragraph 82b (3) of the third sentence of the VAT Act, as amended by 31 March 2019, reads as follows:
"Delivery shall mean the sending of a data message to that electronic address for the purposes of this provision. '
29. By Act No. 80 / 2019 Coll., amending certain laws in the field of taxation and certain other laws, paragraph 1 of Paragraph 82b of the VAT Act was repealed and paragraph 3 was marked as paragraph 2 of the same provision. The content of that paragraph remains unchanged and reads: "The tax administrator may carry out all acts against the applicant electronically. The notification, calls and decisions concerning the refund to a taxable person in another Member State shall be delivered to the electronic address indicated in the refund application. For the purposes of this provision, delivery shall mean sending a data message to that electronic address'. Paragraph 82b (2) of the third sentence of the VAT Act, as amended by Act No. 80 / 2019 Coll., amending certain laws in the field of taxation and certain other laws (i.e. in the current version), is in substance identical to the contested provision.
Procedural preconditions for the annulment procedure (declaration of inconstitutionality of the law)
30. Pursuant to Article 95 (2) of the Constitution, if the court concludes that the law to be applied in the resolution of the case is contrary to constitutional order, it shall bring the matter before the Constitutional Court. The General Court shall be entitled to make a proposal if it proposes the repeal of the law or its individual provision, the application of which is to be immediate or necessary; the hypothetical use or other broader context is not sufficient [cf. Order of 23.10.2000 sp. zn. It follows from the purpose and meaning of the so-called specific control of the constitutionality of legislation that the law (its individual provisions) to be applied in the resolution of the case is only a law which obstructs the achievement of a desirable, i.e. a constitutional, consensus result. If not removed, the outcome of the present proceedings would be different, namely non-constitutional [cf. point 26 of the decision of 6.3.2007 sp. zn.
31. The Constitutional Court considers the conditions of Article 95 (2) of the Constitution and Article 64 (3) of the Law on the Constitutional Court to be fulfilled in the present case. The Municipal Court in Prague is entitled to submit an application to declare inconstitutionality § 82b (3) of the third sentence of the VAT Act, as it is valid until 31.3.2019, as it is to be used in the administrative action before it. As the Constitutional Court has verified, in an administrative action decided by the appellant, the applicant contends that it has not been served with a decision which applies to the fine of service under the contested provision. In the proceedings, the appellant assesses whether and when the document was served on the applicant.
32. According to Article 66 (1) of Act No 182 / 1993 Coll., on the Constitutional Court, the application is inadmissible if the law, other legislation or individual provisions which are proposed to be annulled are annulled before the application is served on the Constitutional Court. According to Article 67 (1) of the same Law, the procedure is to be terminated if the law, other legislation or individual provisions of which the annulment of which is proposed were to lapse before the end of the proceedings before the Constitutional Court.
33. However, the rejection of the application for inadmissibility or termination of proceedings is not appropriate, as the findings of the case under consideration, expressed in the decision of 10.1.2001 sp. zn. It is true that, if the judge of the General Court concludes that the law to be applied in the resolution of the case (not only in force at that time but also at that time no longer valid but still applicable) is contrary to the constitutional law, he is obliged to bring the case before the Constitutional Court. If the Constitutional Court had refused to deal with the constitutionality of the applicable law, it would have acted in breach of Article 95 (2) of the Constitution and the principle of concentrated constitutional justice resulting from Articles 83 and 87 (1) (a) of the Constitution.
34. The procedural assumptions of the procedure for the annulment of the law (its individual parts), or the proposal to declare its inconstitutionality, are therefore fulfilled in the present case.
Constitutional conformity of the legislative process
35. The Constitutional Court has dealt with the course of the legislative process and found that the data provided in the statements of the Chamber of Deputies and the Senate (sub-paragraphs 14 to 17) demonstrate that the law of which the contested provision is part has been adopted and issued within the limits of the Constitution established competence and in a constitutional manner. This is also not disputed by the appellant.
Substantial assessment of the proposal
36. The Constitutional Court dealt with the application of the electronic (e-mail) fiction in the tax proceedings in the sp. zn. The Constitutional Court annulled the provision of Paragraph 101g (5) of the VAT Act, which provided for the fiction of the service of the tax administrator's operation (the invitation) by means of a public data network (e-mail) at the time of dispatch, since the delivery of that act was linked by the legal order to the beginning of the deadline for the tax entity's obligation to supplement data whose failure could lead to the imposition of a fine. To justify the fact that the service of a public data network to an electronic address (e-mail) cannot be considered as "completely reliable ', while the repealed provision imposed an obligation which its addressee did not need to know without its guilt (cf. point 73 above) and was therefore contrary to Articles 2 (3) and 4 (1) of the Charter.
37. It is true that the now contested provision also provides for the legal fiction of the receipt of a document by the tax administrator by e-mail at the time of its dispatch. However, contrary to the annulled provision in the reference case, the contested provision does not link the obligation of the individual to bear the consequences of the penalty liability. The effects of the notification are not linked in the present case to the threat of a financial penalty, but to the applicability of the parties' procedural rights. In the case decided by the appellant, the contested provision determines, inter alia, the beginning of the period for appeal. Therefore, it is not appropriate to apply the conclusions of that finding without further ado, if its underlying argument is a contradiction of similar legislation with Articles 2 (3) and 4 (1) of the Charter. Nevertheless, it is necessary to assess whether the conclusions of the reference finding cannot be a reason for the inconstitutionality of the contested provision, even if the optics of other constitutionally guaranteed rights and freedoms.
38. This does not prevent the appellant from contesting the contested provision only with Articles 2 (3) and 4 of the Charter. The Constitutional Court is bound in the proceedings for annulment of laws and other legislation only by the petition of the application, not by its justification (scope of review of the grounds contained in the application) [cf. the findings of 24.5.1994 sp. zn. Pl. ÚS 16 / 93 (N 25 / 1 SbNU 189; 131 / 1994 Coll.), of 18.8.2004 sp. zn. Pl. ÚS 7 / 03 (N 113 / 34 SbNU 165; 512 / 2004 Sb.) or point 71 of the judgment of 27.1.2015 sp. Pl. ÚS 16 / 14 (N 15 / 76 SbNU 197; 99 / 2015 Sb.)]. It is therefore not impossible to examine the contested provision in the light of other provisions of the constitutional order of the Czech Republic, other than those invoked by the appellant. Similarly, the Constitutional Court has in the past already followed [e.g. the finding of 16 June 2015 sp. zn. Pl. ÚS 12 / 14 (N 109 / 77 SbNU 577; 177 / 2015 Coll.) or the already referred finding of sp. zn. Pl. ÚS 2 / 19].
Constitutional guarantees of well-managed tax proceedings
39. Since the contested provision concerns the procedure of a public authority in tax proceedings, the Constitutional Court examined whether the rights and freedoms guaranteed in Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') could be affected. It is therefore necessary to establish whether the contested provision falls within its competence, in particular whether it concerns civil (civil) rights or obligations or criminal charges [cf. paragraph 41 of the judgment of the European Court of Human Rights (" ECHR') in Le Compte, Van Leuven and De Meyere v Belgium of 23.6.1981 No 6878 / 75 and 7238 / 75].
40. The tax procedure currently under consideration does not fall within the category of decision-making on civil rights and freedoms (cf. paragraph 29 of the judgment of the Grand Chamber of the ECHR in case Ferrazzini v Italy of 12.7.2001 No 44759 / 98). As indicated above, as a result of the application of the contested provision, there is no criminal liability of the individual and therefore no criminal proceedings (cf. Section 36 et seq. of the Grand Chamber of the ECHR judgment in Jussila v Finland of 23 November 2006 No 73053 / 01). Application of Article 6 The Convention is therefore excluded in the present case.
41. However, the tax procedure falls within the protection of the rights and freedoms guaranteed by the Charter and, in general, the requirements arising from the rule of law under Article 1 (1) of the Constitution for the relationship between the State and the individual. In the decision of 11.9.2001 sp. zn. I. ÚS 591 / 2000 (N 133 / 23 SbNU 265) The Constitutional Court stated that even in the tax proceedings, it was necessary to treat the findings of 7.1.2004 sp. zn. II. ÚS 173 / 01 (N 2 / 32 SbNU 9), of 9.1.2008 sp. zn. II. ÚS 2095 / 07 (N 7 / 48 SbNU 57), of 28.5.2009 sp. zn. III. ÚS 2096 / 07 (N 122 / 53 SbNU 543) or point 23 of the judgment of 1.9.2010 sp. zn. IV. ÚS 591 / 08 (N 179 / 58 SbNU 569)]. Those findings concerned rights under the title of the fifth Charter.
42. In addition, from the opinion of the plenary of the Constitutional Court of 8.11.2011 sp. zn. It is the duty of the tax administrator to act in accordance with the principle of proportionality in the application of individual procedural institutes and to minimise interventions so that the specific procedural procedure does not become disproportionate and in breach of the principle of respect for the autonomous sphere of the individual (Article 1 (1) of the Constitution, Article 2 (2) and (3) of the Charter). Similarly, the Constitutional Court has in the past found that, in the process of detecting, verifying and enforcing tax obligations, the tax administrator is bound by Article 2 (2) of the Charter [cf. the finding of 1.6.2005 sp. zn. IV. ÚS 29 / 05 (N 113 / 37 SbNU 463) or point 30 of the finding of 22.2.2019 sp. zn. II. ÚS 819 / 18 (N 29 / 92 SbNU 304)].
43. It shall be submitted that the tax administrator's procedures in tax proceedings are also subject to the rules on the exercise of State authority as defined in Article 2 (2) of the Charter and Article 2 (3) of the Constitution. The status of an individual is protected in general by the elements of the rule of law laid down in the terms of legal (tax) proceedings, in particular under the title of the fifth Charter where they are applicable to tax proceedings.
Deficiencies of the consequences of the contested provision
44. As indicated above, the contested provision concerns the service of a notification, a call and a decision by the tax administrator in respect of a refund to a taxable person in another Member State which affects the applicability of the procedural rights of a party to the value added tax refund proceedings to a person registered in another Member State, including remedies. However, it is not impossible to apply the general bases referred to in the appellant's reference finding sp. zn. It can therefore be concluded that the e-mail does not have sufficient reliability as a way of delivery to ensure that the document is delivered to the addressee at the time of dispatch itself. If the Government argues that measures have been taken by the tax administrator to ensure greater security of delivery of e-mail (sub-22), it should be noted that these measures are aimed only at ensuring security of dispatch, not delivery. However, sending an e-mail message alone does not necessarily mean that it is delivered to the addressee (cf. Judgment of the Supreme Administrative Court of 11.6.2015 No 7 of Azs 113 / 2015-32 or paragraph 13 of the judgment of 4.9.2015 No 8 As 6 / 2015-37). Those measures therefore have no decisive influence on the determination of whether the document is served on the addressee. Therefore, there is a real risk that the document sent by e-mail will be delivered to or delivered to the addressee at any time.
Right to due tax treatment
45. The Constitutional Court also considers the right of participants to a fair trial as an inseparable part of the right to judicial protection. Taking into account the general scope of the rule of law, a similar requirement may also be made for legal proceedings other than legal proceedings, with respect, of course, to their specificities in the administration of state affairs. In the context of tax proceedings, the requirement of the rule of law, without doubt, is that the actions of administrative (tax) bodies respect the fundamental rights and freedoms of individuals. This includes a requirement for the addressee of legal acts of tax authorities to be familiar in advance (requirements of legal certainty, certainty, trust in law, predictability of public conduct under Article 1 (1) of the Constitution, reservation of law under Article 11 (5) of the Charter necessarily linked to the requirement of legal certainty) with what will be required of him within the limits of the overseers' tax conduct (Article 2 (2) and (3) of the Charter). This also includes the actual possibility to know the contents of the document (so-called material approach to service) [cf. point 14 of the Found of 11.7.2017 sp. zn. II. ÚS 1577 / 16 (N 120 / 86 SbNU 79) or point 13 of the Found of 9.4.2019 sp. zn. III. ÚS 3851 / 18 (N 57 / 93 SbNU 257)]. If a party has been denied such an opportunity, the provisions of the Charter shall be infringed.
46. The Constitutional Court does not consider that the principle of the so-called material approach to service as its own judicial proceedings as part of the constitutionally guaranteed rights to the equality of participants and to be heard; that principle must be seen as part of the constitutional guarantees of the right to judicial and other legal protection under Article 36 (1) of the Charter. It cannot be accepted that even in tax proceedings (so-called other proceedings) its party cannot be aware of the document with which the legal order links the entry of legal effects. Although the obligation in the present case is not linked to the service, it directly affects the exercise of its rights as party to the proceedings. The Constitutional Court sees no reason why such principles should not be controlled by so-called other proceedings. The grounds for that caselaw can therefore also be applied to the tax procedure.
47. At the same time, the case-law on the so-called material approach to delivery does not mean that e-mail delivery is generally excluded as a way of delivery from the constitutional point of view - this is not even from the reference found in the sp. zn. Nor do other means of service rule out the fact that a document does not reach the addressee for practical difficulties associated with the "technical" solution. This is particularly true in the case of "classical 'delivery by means of a letter in which the human factor is decisive [as is also demonstrated by the situations dealt with in the Constitutional Court's decision-making practice; See for example the findings of 26.7.2018 sp. zn. IV. ÚS 1001 / 18 (N 128 / 90 SbNU 129) or of 28.4.2020 sp. zn. IV. ÚS 3835 / 19].
48. Those grounds do not preclude or link the legal consequences of the service with the envisaged legal fact (legal fiction), as is the case in the tax procedure for other forms of service (cf. § 47 (2) of the Tax Code or § 17 (4) of Act No. 300 / 2008 Coll., which sets the 10-day deadline for the entry of the fiction of the service from the time of deposit of the document or delivery to the data box). However, the problem is that the contested provision links the legal consequences of service to the moment of dispatch. In so doing, the party to the proceedings has no real opportunity to know the content of the document before the effects of the service arise. There is no period within which the legal order provides the addressee with a document to enter his legal sphere. These are different facts, which are based on the established decision-making practice of the Supreme Administrative Court (sub-9) and the Constitutional Court in the reference find sp. zn. Pl. ÚS 32 / 15.
49. At the same time, by the very nature of legal fiction, it is acceptable to combine the legal consequence with a fact that has not occurred. The purpose of any legal fiction is to allow a situation which is contrary to the facts to be regarded as existing and which allows it to be subject to different legal consequences than those resulting from merely stating the facts. It constitutes a legal technical procedure by which it is considered to be an existing situation which is manifestly contrary to reality (cf. CORNU, Gérard et al. Vocabulaire juridique. 9e édition. Paris: PUF, 2011, p. 454), and its purpose is to strengthen legal certainty (cf. KNAPP, Viktor. Law theory. Issue 1. Praha: C. H. Beck, 1995, p. 206) or facilitating the examination of the facts (cf. GERLOCH, Aleš. Law theory. 7th updated edition. Plzen: Aleš Čenek, 2017, p. 207). However, it constitutes an exceptional instrument designed to achieve legal certainty as one of the main constitutional postulates in the rule of law [cf. ÚS 272 / 13 (N 106 / 69 SbNU 733) or the finding of 1.10.2015 sp. zn. IV ÚS 883 / 15 (N 179 / 79 SbNU 25)].
50. The appellant points out that the administrative order for service by e-mail provides sufficient guarantees for the document sent in this way to reach the addressee's sphere (otherwise the public authority will deliver the document as if it had not asked for electronic service by the addressee) or to prove it (sub 10). According to the appellant, the administrative rules foresee that e-mail delivery is technically less reliable than a data box or a document. Although the Government stated that the moment of dispatch was chosen to take on the effects of the service, it is the only moment that can be accurately identified (sub 23). However, that statement does not explain why the effects of the service cannot arise, for example, by the end of the legal period which starts to run from an objectively identifiable point of view, as is the case with a data box or a document (sub 50), or why other measures which increase the evidence and quality of the service (not of dispatch) cannot be linked to the delivery of the document by electronic means, as claimed by the applicant.
51. However, the role of the Constitutional Court is not to find the most appropriate solution instead of the legislator. However, this proves that the legal fiction under the contested provision is not an exceptional instrument; there are alternatives which the legislator could have chosen without being forced to apply the exceptional instrument of the legal fiction under consideration in the form provided for in Paragraph 82b (3) of the Third VAT Act.
52. If the Government argues that e-mail delivery is the only option, as it concerns service abroad to established bodies, it should be noted that the contested provision does not concern e-mail delivery as such. It is only a question of whether the legal consequences of service of the document may be linked to the time of dispatch. It is not even important if the government argues that the principle of uniform enforcement of value added tax on the territory of the European Union is not relevant.
Right of access to so-called other legal protection
53. As indicated above, the contested provision concerns, in part, the service of a judgment (which does not fully comply with the request for reimbursement of value added tax to a taxable person in another Member State of the European Union) against which an appeal (appeal) is admissible. The contested legislation therefore affects the access of a party to an appeal, as the moment of service determines, inter alia, the beginning of the so-called appeal period [Paragraph 82b (7) of the VAT Act in its version effective until 31 March 2019 (Paragraph 82b (6) of the VAT Act now effective) in conjunction with Section 109 (4) of the Tax Code].
54. The Charter does not guarantee an individual's right of appeal in any case [cf. point 26 of the Opinion of the plenary of 28.11.2017 sp. zn. Pl. ÚS- st. 45 / 16 (ST 45 / 87 SbNU 905; 460 / 2017 Sb.)]. However, where the possibility of an ordinary or exceptional appeal is guaranteed by law, the decision on such remedies shall also fall within the requirements laid down in Article 36 (1) of the Charter (see there). As indicated above, the exercise of the rights of access to so-called other legal protection (justice) by the Constitutional Court has in the past also been found in tax proceedings (cf. paragraphs 21 et seq. of the decision sp. zn. IV ÚS 591 / 08).
55. The shortcomings of the contested provision therefore concern the right of access to so-called other legal protection (the authority responsible for the appeal decision). With regard to Article 36 (1) The Charter is about whether the participant was given a real opportunity to exercise procedural rights (there to have access to remedies, cf. Resolution of 29 October 2015, sp. zn. III. ÚS 988 / 14). It is submitted from the above that such an opportunity, as a result of the contested legislation, could have been denied to the party or the legal order had not provided sufficient guarantees to facilitate such an opportunity, since those legal effects are linked to the fact that the decision was sent to the decision and therefore the decision does not need to be taken into the sphere of the party (the addressee) without his own fault for the reasons set out above or at a time interval. The contested provision therefore contradicts Article 36 (1) of the Charter in conjunction with Article 1 (1) of the Constitution in the part concerning the service of decisions against which appeals are admissible.
Service and principle of proportionality
56. As mentioned above, the Constitutional Court, when assessing the constitutionality of tax administration procedures in tax proceedings, bases itself on the fact that its management has a public interest in determining and collecting taxes with the protection of the autonomous sphere of the individual (sub 42), the tax administrator's procedures in tax proceedings are subject to the rules on the exercise of State authority as defined in Article 2 (2) of the Charter. That provision of the Charter, together with Article 2 (3) thereof, lays down one of the principles of the rule of law: whereas the exercise of state authority is bound by laws, i.e. state authority must not do anything that the law does not allow it to do, it is the contrary for an individual - it can do everything that is not prohibited by law and it must not be forced to do what the law does not impose. The ideal starting point is the primate of the individual before the state. In contrast to the exercise of state power, the individual has a wider scope for his activities and the state can limit him only by law, not by choice, but only in certain situations. In other words, the provisions of the Charter cited result in a prohibition of libel [cf. point 37 of the decision of 30 January 2018 sp. zn. Pl. ÚS 15 / 15 (N 12 / 88 SbNU 171; 62 / 2018 Coll.) or point 67 of the decision of 9.2.2021 sp. zn. The legislature is obliged to respect that principle even in the case of standard formation in tax management procedures.
57. In measuring these values, the principle of proportionality (sub 42) is decisive. The so-called proportionality test [cf. point 27 et seq. of 20.6.2006 sp. zn. Pl. ÚS 38 / 04 (N 125 / 41 SbNU 551; 409 / 2006 Coll.), point 40 et seq. of 18.7.2017 sp. zn.
58. The so-called proportionality test includes three criteria. The first is the assessment of the eligibility to meet the legitimate objective pursued (suitability). It is established whether a specific measure can achieve the intended objective of protecting a non-limited basic right or protecting a public good. Another criterion is the assessment of necessity. It examines whether the most respectful means of selecting the appropriate means have been used. The last to assess proportionality (in a narrower sense), i.e. whether the injury to the fundamental right is disproportionate in relation to the legitimate objective pursued. Measures limiting fundamental human rights and freedoms must not, by their negative consequences, exceed the positives that bring a conflicting interest in taking such measures.
59. If, in the present case, it is a criterion of first (appropriateness), by the very nature of the contested provision as a procedural provision and a statement by the Government, it can be concluded that the objective of the contested provision is to deliver quickly and effectively the tax administrator's actions in the proceedings for the purpose of determining and collecting the tax. The above-mentioned case law of the Constitutional Court states that it is a legitimate objective. There is no doubt that the combination of the legal effects of the service at the time of dispatch is directed towards that objective, as the duration of the procedure shortens. It is therefore an appropriate measure.
60. If it is a second criterion (necessity), it is stated from the above that the legislator had the possibility to choose other alternatives (sub 48 and 50). The Government has not made any argument as to why it is not possible, as in the case of delivery by means of a data box or letter, to establish the effects of service at least at the end of the period which starts to run from the specified time of service. Such a solution would lead to the objective pursued, to a comparable extent, if it were to extend the procedure within days. This does not change the government time limits governing the procedure (sub 21), as these periods are within months, nor is the government's claim that it is technically unlikely that the e-mail is not sent to the address indicated in the refund application, or that the Directorate-General for Finance, in certain situations, also examines the dispatch of specific documents, while it has not yet been established that a specific document is not sent to the e-mail address. In addition, if the Appellate Financial Directorate referred to the internal "Automated Tax Information System (ADIS) 'from which it is alleged that the documents were sent and received (sub-4, cf. Government's observations, sub-22), the Constitutional Court cannot consider this in the present proceedings as it will be the subject of an administrative action (in which the applicant denies this claim - sub 5) which is brought before the appellant.
61. That partial conclusion does not mean that the alternative is at the same time the only possible, most appropriate or even correct alternative. However, it means that the solution chosen by the legislator in the contested provision is not necessary. The contested legislation therefore does not meet the criterion of the necessity of the so-called proportionality test.
62. Therefore, there is no reason to address the third criterion of the so-called proportionality test. Failure to meet the second criterion leads to the conclusion that the measure under assessment did not pass the test [mutatis mutandis, the finding of 26.4.2005 sp. zn. The contested provision will therefore not stand up to the optics of the degree of intervention in the principle of respect for the autonomous sphere of the individual, since the objective of the contested legislation can be achieved in a comparable manner at a lower intensity of intervention in that principle. It also indicates that the legislature acted arbitrarily when establishing the legal fiction under consideration.
63. It can therefore be concluded that, when the tax refund procedure in another Member State is brought together by e-mail with the moment of dispatch, the tax refund procedure in another Member State of the European Union infringes the right of the parties to the tax proceedings and the so-called other legal protection within it (Article 36 (1) of the Charter in conjunction with Article 1 (1) of the Constitution) in the part concerning the notification of decisions against which legal remedies are permitted and, as a result, the principle of respect for the autonomous sphere of the individual (Article 2 (3) of the Charter) and the prohibition of potions (Article 2 (2) of the Charter), is not to be taken into account, as such legal effects are wholly reliable.
Conclusion
64. For the above reasons, the Constitutional Court found the contested provision contradictory to Article 36 (1) of the Charter in conjunction with Article 1 (1) of the Constitution and Article 2 (2) of the Charter.
65. However, the Constitutional Court must deal with the continued application of a legal provision with the same content and effects as the contested provision, as the Government points out (sub 24). It is true that the amendment of the VAT Act only made technical changes, namely "renumbering" paragraphs (sub-29). Therefore, after the effectiveness of Act No. 80 / 2019 Coll., which amends certain laws in the field of taxation and certain other laws, § 82b (2) of the VAT Act remains the third sentence, which actually coincides with the contested provision. The identity of those provisions is also given in a normative manner, since there is an apparent unity of the legislator's will - the contested provision has not been repealed and replaced by the same provision (cf. a contrario finding sp. zn. Pl. ÚS 38 / 06).
66. The very existence of an identical provision in terms of content and normative terms is not a reason to reject a proposal to declare the inconstitutionality of the law (or any other law and its individual provisions). For the very nature of the so-called incident check on the constitutionality of legislation initiated in accordance with Article 95 (2) Any draft court under that provision would be regarded as a failure in the present situation in advance and the opinion of the Constitutional Court would only be of an academic nature without actual legal effects. The Czech Constitution has chosen a judicial model for the control of constitutionality; The Constitutional Court is a judicial authority for the protection of constitutionality (Article 83 of the Constitution). His work must therefore be effective and real.
67. However, the Constitutional Court does not underestimate the Government's argument on the legal uncertainty of the persons concerned. In a situation where a legal provision is found to be unconstitutional and the rule of law continues to contain both a normative and a content (completely) identical provision which is commonly used in administrative practice, the tax administrator is obliged, in accordance with the principle of legality, to comply with a legal provision that conforms to a non-constitutional legal provision, which is legally and in substance.
68. The Constitutional Court nevertheless consistently recognises the principle that the decision is bound by the scope of the application and the decision cannot be taken by ultra petitum [cf., for example, the findings of 13.12.1995 sp. zn. Pl. Pl. ÚS 8 / 95 (N 83 / 4 SbNU 279; 29 / 1996 Coll.), of 8.12.2010 sp. zn. Pl. ÚS 39 / 10 (N 242 / 59 SbNU 465; 395 / 2010 Sb.) or point 42 of 11.10.2016 sp.
69. Nor is the breach of the systemic links or the dependence of the provisions concerned on other provisions unaffected by the proposal sufficient cause for the ultra vires procedure [see paragraph 69 of the decision of 4.2.2020 sp. zn. Nor is it a situation where another content-dependent provision loses the validity of the normative existence [cf. and contrario finding of 31.10.2001 sp. zn. ÚS 15 / 01 (N 164 / 24 SbNU 201; 424 / 2001 Coll.)]. The relevant steps to change the rule of law in this situation are exclusively for legislators [cf. the finding of 13.8.2002 sp. zn. ÚS 3 / 02 (N 105 / 27 SbNU 177; 405 / 2002 Coll.)]. Therefore, the Constitutional Court did not agree to abolish the content and normative identical § 82b (2) of the Third VAT Act, as amended by Act No. 80 / 2019 Coll., amending certain tax laws and certain other laws.
70. For all the above reasons, the Constitutional Court granted the application of the Municipal Court in Prague that, in view of Article 89 (2) The Constitution requires the public authorities to reflect the consequences of the inconstitutionality found in their decision-making practice, i.e. not to apply the third VAT Act, as amended by 31.3.2019, when dealing with specific cases.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found no 230 / 2021 Coll., on the declaration of inconstitutionality § 82b paragraph 3 of the third sentence of Act No. 235 / 2004 Coll., on VAT, as amended until 31 March 2019 |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 17.06.2021 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Public Contracts 2
Objednávka - zpracování projektové dokumentace pro vydání společného povolení stavby v podrobnosti...
Krajská správa silnic Libereckého kraje, příspěvko...
Ing. Petr Kobza
133 100 CZK
19.08.2021
Smlouva o dílo
Město Kolín
Ing. Karel Fousek
592 900 CZK
30.05.2016
Source:
Hlídač státu
(CC BY 3.0 CZ)
The regulation text is for informational purposes only.
Comments 0