Communication from the Constitutional Court No. 260 / 2018 Coll.

I. The right of each of the joint owners to use the joint venture shall be limited by the same right of the other joint owners to use the joint venture according to the size of the share.

II. If the joint owner uses a joint case without legal justification beyond the scope of his co-ownership, he shall intervene in the right to own the property of the other co-owners protected by Article 11 (1) of the Charter of Fundamental Rights and Freedoms and to obtain, at their expense, unjustified enrichment.

1. The constitutional complaints referred to in Article 87 (1) (d) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") with the complainants Anita Veselic and Irene Schmitt, both represented by JUDr. Ivo Koula, a lawyer, based in Krupská 28 / 30, Teplice, seek the annulment of the judgment of the Municipal Court in Prague (hereinafter referred to as "the Municipal Court") of 31 January 2017 No. 12 Co 363 / 2016-106. The complainants claim that the judgment under appeal infringed their right to judicial protection as enshrined in Article 90 of the Constitution and in Article 36 (1) of the Charter of Rights ("the Charter of Fundamental Rights'), the right to the protection of property rights under Article 11 (1) of the Charter and the right to a fair trial under Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms. The constitutional complaint shall be kept under page III of the ÚS 1030 / 17.

2. The constitutional complaint, the attached decisions and the resolution of the Supreme Court (accessible at www.njud.cz) state that, in the proceedings brought by the District Court for Prague 5 ("the District Court '), the two complainants appealed against the defendant (in the proceedings for a constitutional complaint in the capacity of intervener) for a" right to compensation for the non-use of common real estate' for the period from 1.1.2013 to 30.4.2016. Among the co-owners there was an undisputed amount of shares in common real estate and that the common real estate was used exclusively by the intervener since 1994. In the course of the proceedings, the intervener objected to the limitation of the recovery claim, referring to the case-law of the Supreme Court, stating that the recovery claim is an unjustified enrichment for which a two-year limitation period is provided for by law. The complainants argued by the case-law of the Constitutional Court that the claim enforced was property law, which is limited within a general three-year limitation period.

3. The District Court opted for the arguments of the complainants and, by judgment of 30 May 2016, No 18 C 22 / 2016-76, their action was fully granted. He imposed an obligation on the intervener to pay the first complainant CZK 106 666 with accessories (1st sentence), the second complainant CZK 26 666 with accessories (2nd sentence), and to compensate each of them for the costs of the proceedings (II. and IV. sentence). It took the view that the intervener used the property in question in addition to its co-ownership interest, or to the extent of the co-ownership of the two complainants, in accordance with § 137 of the Civil Code No 40 / 1964 Coll. and § 1122 (1) of the Civil Code No 89 / 2012 Coll. above that period, was entitled to pay a financial compensation of the amount derived from the normal price for the use of the property in question according to the size of their co-ownership. The statement of limitation raised by the intervener did not find it justified because it did not consider the claim claimed to be a claim for unfounded enrichment but as a claim for payment of compensation which is a claim based on the above provisions of the Civil Code, the claim for unfounded enrichment (having an subsidiary nature) is considered only where the claim cannot be derived from another legal basis [referring to the decision of the Constitutional Court of 22.2.2006 sp. zn. II. ÚS 471 / 05 (N 43 / 40 SbNU 355) and of 10.3.2011 sp. The Circuit Court concluded that in such a case the general three-year limitation period (correctly "period ') would apply, which had not been brought before the action.

4. On the basis of the judgment of the Circular Court, the intervener brought an appeal against the judgment of the Circular Court, pursuant to which the City Court, by judgment of 31 January 2017 No 12 Co. 363 / 2016-106, amended the judgment of the Circular Court in the first operative part of the operative part of the judgment, so that the intervener was ordered to pay the first complainant an amount of CZK 31 139,12 with an accessory, rejected it, otherwise confirmed (I operative part), amended it in the second sentence by rejecting the action in order that the intervener was required to pay the costs before the courts of both stages (III. and IV. operative part). The partial rejection of the action covered the period prior to the two years before the initiation of the procedure, i.e. the period from 1.1.2013 to 22.12.2013, with reference to the objection of limitation. The municipal court, unlike the district court, assessed the claim as a claim for an unjustified enrichment and applied a two-year limitation period to its limitation. He stated that the procedure under § 137 (1) of Civil Code No. 40 / 1964 Coll., or § 1122 (1) of Civil Code No. 89 / 2012 Coll. is applicable only if there has been a restriction of the co-ownership right by law and in the way it is dealt with, by agreement, by majority decision or by court decision. Such a situation is not the case; the limitation of the complainant's co-ownership right has occurred without agreement or decision of the majority, i.e. by the arbitrary conduct of the intervener, and in such a situation the co-owner excluded from the use is entitled to the issue of unjustified enrichment pursuant to § 451 of Civil Code No. 40 / 1964 Coll., or § 2291 (sic - ref.) and subsequent Civil Code No. 89 / 2012 Coll. The municipal court came out of the case law of the Supreme Court, for example from the judgment of 13 January 2016 in Case 22 Cdo 3983 / 2015, and from the decision of the Grand Chamber of the Supreme Court of 10 October 2012 in Case 31 Cdo 503 / 2011.

5. In the course of the proceedings on a constitutional complaint, the intervener informed the Constitutional Court that it had lodged an appeal against the judgment of the Municipal Court. By order of 19 June 2018 No 26 Cdo 2116 / 2017-144, the Supreme Court rejected this appeal against the first complainant because the contested conclusions of the Court of Appeal are in accordance with the case law of the Court of Appeal, from which there is no need to derogate, against the second complainant because it is directed against the decision of the Court of Appeal, which was decided by the contested judgment on a cash performance not exceeding CZK 50 000.

6. Complainants of the joint constitutional complaints, although each of them had set out against the statements of the judgment of the municipal court concerning it (after a brief recap of the development of the court's dispute), argued to the municipal court that, although it had observed the conflict between the legal conclusions of the Supreme Court and the Constitutional Court on the nature of the claim enforced and, in the subsequent question of the length of the limitation period, the decision was simply based on the case-law of the Supreme Court, without, in any way, explaining the case-law of the Constitutional Court contained in particular in the finds that it not relevant.

7. In another part of the complainant's constitutional complaint, they expressed the view that the most appropriate way to justify their constitutional complaint was to quote from the above findings of the Constitutional Court, which, in their view, have not yet been overcome and the content of which was governed by the provisions of Article 1 (1) of the Constitution and in the authority of the Constitutional Court as a peak in the judicial system of the State at the time of the initiation of the legal proceedings. The audited plan was implemented by transcription of part of the legal sentence of the finding sp. zn. II. ÚS 471 / 05 and points 9 to 13 of the finding sp. zn. II. ÚS 2919 / 10 with explicit references to the source used by them (Automated Legal Information System).

8. The finding of the Constitutional Court of 22.2.2006 sp. zn. II. ÚS 471 / 05 (N 43 / 40 CollNU 355) was published with the legal sentence (or part thereof): "The Constitutional Court does not share the view of the Court of Appeal that the performance by the joint owner, in addition to his co-ownership, for the use of the object of joint ownership is a performance without legal justification and therefore without any justification. Unjustified enrichment is subsidiary in nature and takes account only where the claim cannot be derived from another legal title. Where the joint-owner seeks compensation against the second joint-owner on the grounds that he uses the joint-ownership in addition to his share of the joint-ownership without an agreement with him, this is a claim based on the legal provision of Paragraph 137 (1) of the Civil Code, which shows to what extent the joint-ownership of the joint-ownership contributes to the rights and obligations arising from joint ownership. A claim based on a legal provision cannot be an unfounded claim within the meaning of the provisions of the Civil Code on unfounded enrichment. The provisions on unjustified enrichment are mandatory and cannot therefore be interpreted in an inadmissible manner. Such an interpretation is in extreme conflict with the meaning and purpose of these provisions. The Constitutional Court has already concluded in the past that the interpretation of simple law, which is in extreme conflict with the cogent provision of the law, constitutes a violation of the right to a fair trial."

9. In the case under point I. ÚS 383 / 05 The Constitutional Court assessed the relationship between the co-owners in a situation where the minority co-owner left the joint cause without the consent of the majority co-owner to a third party for rent. In the preamble to the finding of 10.10.2007 sp. zn. I. ÚS 383 / 05 (N 156 / 47 SbNU 35) stated: "From the established case-law of the General Courts, which the Constitutional Court has concluded from the point of view of constitutional law, it is clear that, in the event that the co-owner does not use (cannot use) a joint case to the extent that its co-ownership is not held between him and the other co-owner, without payment of the remuneration for the use of that proportion. Since the co-owner who uses the case above the scope of his co-ownership interest in this way is unable to return the transaction in the form of the exercise of the right of lease, the co-owner must provide the other co-owner with a cash compensation as an economic consideration of what cannot be issued. Under Paragraph 458 (1) of the Civil Code, all that has been acquired by unfounded enrichment must be issued. If this is not possible, in particular because the enrichment concerned performance, a cash refund must be granted (e.g. decision of the Supreme Court sp. v. 25 Cdo 2616 / 99, 22 Cdo 1095 / 2001, 33 Odo 778 / 2005, or decision of the Court of Appeal in the present case). 'The Constitutional Court identified itself with the construction of an unfounded enrichment in the case sp. zn. IV. ÚS 3778 / 17, in which, by order of 29 May 2018 (available at http: / / nalus.ujud.cz), the Constitutional Court rejected, for obvious unfounded reasons, a constitutional complaint against decisions of the General Courts granting the applicant a right to an unjustified enrichment against other joint-ownership shareholders in excess of its joint ownership shares.

10. In the decision of 10.3.2011 sp. zn. II. ÚS 2919 / 10 The Constitutional Court found that various interpretations of the conclusions of the finding of the sp. zn. II. ÚS 471 / 05 had appeared in law in connection with the finding of sp. zn. I. ÚS 383 / 05, and confirmed the conclusions of the finding of the finding of sp. zn. II. ÚS 471 / 05, with the fact that a different view in the finding of sp. zn. I. ÚS 383 / 05 resulted from a different situation in the present case (annulment of the lease concluded between the tenant and the minority co-owner and its consequences for the parties to the contract in terms of substantive legitimacy).

11. The extensive practice of case law could also be traced in the decision of the General Courts to issue unfounded enrichment resulting from the use of the common cause. For example, in a case brought before the Brno Regional Court under sp. zn. 7 C 62 / 2004, the Regional Court in Brno ("the Regional Court ') changed its original legal opinion, which it took in the previous decision in that case, and the new case in Case C-471 / 05 [2010] ECR 16, Co. 425 / 2008-129, was assessed in the legal opinion expressed in the finding of the Constitutional Court. The judgment of the Regional Court was appealed and because the Chamber of the Supreme Court of 22 Cdo, which, according to the schedule of work, was to discuss it and to decide on it, came to a different legal opinion from that expressed in the judgment of the Supreme Court of 28 April 2004, sp. zn. 22 Cdo 2624 / 2003, according to which the unjustifiable enrichment of the joint owner using the case above the scope of his co-ownership and the amendment of some other laws (i.e. whether the majority of the co-owners, calculated according to the size of their joint ownership or use, had been decided by the court by agreement, the courts, the court, the court, the court, the court or the court or tribunal of the court or tribunal of the court or tribunal of the court of the court, or tribunal of the court, or tribunal of the court of the court of the court of the court of the court), whether the court of the court of the court of the court or tribunal or tribunal or tribunal of the court of the court of the court of the court of the court of the court of the case, and of the case was not, and of the case, and of the court of the After the hearing, the Grand Chamber adopted the conclusions set out in the legal sentence of the judgment of 10 October 2012, sp. zn. 31 Cdo 503 / 2011 (judgment published under No 17 / 2013 of the Reports of Judgments and Opinions):" If the co-owner uses a joint cause (in particular without the decision of the majority of the co-owners, or without the agreement of the co-owners, or without the decision of the court) a joint cause beyond his co-ownership, he is obliged to issue what he has enriched with such use, to the other co-owners under the rules on the issue of unjust enrichment (§ 451 et seq.). "In his reasoning, he pointed out, inter alia, that already in the judgment of 12.8.2009, sp. zn. 28 Cdo 75 / 2009 The Supreme Court pointed out the finding of the Constitutional Court of 22.2.2006 sp. zn. II. ÚS 471 / 05, but subsequently stated that in a later finding of 10.10.2007 sp. zn. I. ÚS 383 / 05" The Constitutional Court has fully confirmed the legality of the legal assessment of similar claims, as it is achieved in the Supreme Court, when it stated that, from the point of view of the Constitutional Court, the case law of the General Court, which implies that, in the event that the co-owner does not use (cannot use) a joint object corresponding to his co-ownership, without paying the remuneration for the use of the second co-owner (other co-owners), there is no remuneration for that share.' Following the adoption of the judgment, it can be observed that the case-law of the Supreme Court is constant in that case [cf. Resolution of 19.2.2015 sp. zn. 28 Cdo. 4162 / 2014, resolution of 7.10.2015 sp. zn. 28 Cdo. 1602 / 2015, judgment of 13.1.2016 sp. zn. 22 Cdo. 1331 / 2016, resolution of 11.10.2017 sp. zn. 28 Cdo 3259 / 2017, resolution of 30.5.2018 sp. zn. 22 Cd. 6104 / 2017 - see. This resolution is an application for a constitutional complaint lodged under page III. III.

12. The Third Chamber of the Constitutional Court, which is decisive in this case, has reached a legal opinion which deviates from the legal opinion of the Constitutional Court as set out in point II.II of the ÚS 471 / 05, and therefore, in accordance with Article 23 of Law No 182 / 1993 Coll., on the Constitutional Court, has referred to the plenary with a proposal to take up that opinion. The question to be answered in the light of the said divergence is: does the joint owner, without legal justification, take advantage of a common matter beyond the scope of his co-ownership, is the other joint owner entitled to an unjustified enrichment or is he entitled to a right based on the relevant legal provision, which implies the extent to which the joint owners participate in the rights and obligations arising from joint ownership?

13. The nature of the problem lies in the legal qualification of the joint-ownership's entitlement to the performance arising from the fact that another joint-owner uses a joint cause beyond his share, which affects, inter alia, the limitation of that entitlement.

14. If a case is found to be owned by several entities without being divided between them, it is a matter of ownership. A set of co-ownership relationships is an element of a system created by ownership relationships in general, while at the same time it constitutes a special system at a lower level, the elements of which are different types of co-ownership relationships. For each co-ownership relationship, the consequences of the pluralism of the entities can be distinguished, both in the relationships that arise between the co-owners themselves (internal relations) and in those that arise between the co-owners and third parties (external relations). For the interrelationship between the joint owners, the essential nature of the joint ownership (joint ownership, joint ownership) is determined by determining the degree and manner of participation of the joint owners in the rights and obligations arising from joint ownership; in the case of joint ownership, the nature (real share, ideal share) and the size of the joint ownership is further determining. In particular, for external relations (relating to a common case), it is determining that all joint owners are considered jointly to be one entity, and that the legislation establishing the nature of the common relationship with third parties (sub-liability or solidarity) is relevant. In the case of joint ownership, external relations include a relationship between one joint owner and third parties whose indirect object is a joint ownership interest.

15. In response to the question put, the internal arrangements for the joint ownership of shares are decisive. According to Article 137 (1) of Civil Code No. 40 / 1964 Coll., the joint ownership stake expressed the extent to which the joint owners participated in the rights and obligations arising from the joint ownership. It was then clear from the nature of this co-ownership relationship as an ideal joint ownership that the share did not define a part of the joint case for which the co-owner would be entitled to exercise his own right but defined the legal status of the co-owner to the other co-owners, determined how the co-owners participated in the benefits of the case, costs, etc. Similarly, Article 1122 (1) of Civil Code No. 89 / 2012 Coll. (with the participation expressed by the degree of participation of each co-owner in the creation of a common will). Likewise, it can be concluded that the co-ownership share is also relevant for the scope of the use of the common cause. While in the case of real joint ownership, the character of the share would directly determine the part of the joint cause which each joint owner is entitled to use, such a measure is lacking in ideal joint ownership. Therefore, for this type of co-ownership, co-owners may use the case simultaneously, the use of the common case may be limited in time (e.g. by allowing a particular co-owner to use the case exclusively for a specified period of time), it may also "divide" the common case for use in such a way that any co-owner (or some) may use a specified part of the common case. It can be concluded that the right of each of the joint owners to use the joint venture is limited by the same right of the other joint owners to use the joint venture according to the size of the share.

16. The use of the common case may be determined in concreto by an agreement of the joint owners or their majority decision (§ 139 (2) of Civil Code No. 40 / 1964 Coll., § 1128 et seq. of Civil Code No. 89 / 2012 Coll.) or also by a judgment of the Court (§ 139 (3) of Civil Code No. 40 / 1964 Coll., § 1139 of Civil Code No. 89 / 2012 Coll.). On the basis of these legal facts, one of the co-owners may be completely excluded from the use of the common case or be entitled to use the case to a lesser extent than would correspond to its share. In such a case, however, the use of the common case does not take place beyond the scope of the joint ownership interest without legal justification (without a fair reason - see the Decree of Civil Code No. 89 / 2012 Coll.). However, the use of a common case cannot in this case exclude the right of the co-owner to compensation for not taking advantage of a common case to the extent appropriate to his co-ownership. The compensation in this case derives from the general adjustment of the compensation for the limitation of property rights (Article 11 (4) of the Charter) and can also be derived from § 137 of the Civil Code No. 40 / 1964 Coll. or from § 1122 (1) of the Civil Code No. 89 / 2012 Coll.

17. A different situation occurs if the co-owner uses a joint case in addition to his share without a legal reason, possibly without a fair reason (without agreement of all the co-owners or without a binding decision of the majority of the co-owners or of the court). If each co-owner has a right to the whole case, his right is limited by the same right of each co-owner (e.g. § 1117 of Civil Code No. 89 / 2012 Coll.). This means that the co-owner cannot "use the joint cause without further 'beyond his co-ownership interest at the expense of other co-owners. the very existence of co-ownership of a common case is not a legal reason for such use. It can therefore be concluded that the use of a common case in excess of the co-ownership interest constitutes the use of foreign value, thereby creating an unjustifiable enrichment (i.e. by owning the utility value of a common case over a co-ownership interest). In the Civil Code regime No. 40 / 1964 Coll. it was an unfounded enrichment without legal reason (§ 451 (2)), under the Civil Code No. 89 / 2012 Coll. it is the specific facts of the unfounded enrichment (§ 2991 (2)).

18. For the reasons set out above, the plenary of the Constitutional Court therefore concluded that, in view of the limitation of the right of each of the joint owners to use the same law of the other joint owners according to the size of the share, the right to own the property pursuant to Article 11 (1) of the Charter in ideal joint ownership, such an interpretation of the arrangements contained in the sub-constitutional civil law according to which, by using the joint owner over the scope corresponding to his joint ownership, without legal justification, the joint owner is to obtain unjustified enrichment.