The Constitutional Court found no 28 / 2022 Coll.
The Constitutional Court found of 18 January 2022 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
25.02.2022
28
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 43 / 18 on 18 January 2022 in plenary composed of the President of the Court of Pavel Rychetský, Judge Milady Tomko and Judges Ludvik David, Jaroslav Fenyk, Josef Fiala, Jan Filip (Judge of the Czech Parliament as a Member of Parliament), Jaromír Jirsa, Tomáš Lichovník, Vladimir Sládeček, Radovana Sukánek, Pavel Šámal, Vojtětěček, David Uhlíříř and Jiří Zemánek on the proposal of the Regional Court in Ostrava on the abolition of Article 60b of Act No. 435 / 2004 Coll., as amended by Act No. 435 / 2017 Coll.
as follows:
Motion denied.
Reasons
Content of the proposal and text of the legal provisions contested
1. Under Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the "Constitution") in conjunction with Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, and Article II (3) and (4) of the Law No. 206 / 2017 Coll., amending Act No. 435 / 2004 Coll., on Employment, as amended, and other related laws (hereinafter referred to as "Act No. 206 / 2017 Coll."), the Constitutional Court seeks to repeal Article 60b of Act No. 435 / 2004 Coll.
2. The contested Section 60b of the Employment Act was inserted into Part Two of Title Four of the Act entitled "Intermediate employment by employment agencies' by Article I (15) of Act No. 206 / 2017 Coll.; it has not yet been amended. Its text is as follows:
"(1) A legal or natural person seeking authorisation to arrange employment under § 14 (1) (b) shall be required to provide a deposit of CZK 500,000.
(2) Bail shall be granted at the request of the Directorate-General of the Labour Office by the lodging of an amount on the special account of the Directorate-General of the Labour Office, subject to all the conditions laid down for the granting of an authorisation for employment by a legal or natural person.
(3) If the employment authorisation is terminated, the compound amount shall become an overpayment of the legal or natural person who has ceased to exist. If the overcharge thus obtained is a refundable overpayment, it shall be returned by the Directorate-General of the Labour Office within 60 days of the date of expiry of this authorisation.
(4) The provisions of the tax rules shall apply mutatis mutandis to the administration of the payment of bail. '
3. The contested Article II (3) of Act No. 206 / 2017 Coll. contains a transitional provision as follows:
"The obligation under Article 60b (1) and (2) of Act No. 435 / 2004 Coll., as effective from the date of the entry into force of this Act, has been exercised by a legal or natural person whose application was initiated before the date of entry into force of this Act by an administrative procedure for the granting of an authorisation for the provision of employment and the administrative procedure has not been terminated definitively by the date of entry into force of this Act. '
4. The contested Article II (4) of Law No 206 / 2017 Coll. contains a transitional provision as follows:
"A legal or natural person who, prior to the date of entry into force of this Act, has been authorised to arrange employment pursuant to § 14 (1) (b) of Act No. 435 / 2004 Coll., as effective before the date of entry into force of this Act, is required to grant bail pursuant to § 60b (1) of the Act No. 435 / 2004 Coll., as effective from the date of entry into force of this Act, by deposit of an amount into the special account of the Directorate-General of the Labour Office; the authorisation for the mediation of employment shall cease in vain at the end of that period. ';
5. Before the appellant is brought a legal action on an administrative action seeking the annulment of the decision of the Ministry of Labour and Social Affairs, which confirmed the decision of the Labour Office of the Czech Republic - Directorate-General, which decided to stop the administrative procedure in respect of the application for the delay of the payment of the deposit [§ 106 (1) (b) and § 156 of Act No. 280 / 2009 Coll., Tax Code, as amended by Act No. 170 / 2017 Coll., hereinafter referred to as the "Tax Code ']. The plaintiff requested the payment of the deposit under Section 60b (1) of the Employment Act of CZK 500,000 in instalments. According to Article II of Act No 206 / 2017 Coll., the administrative authorities did not comply with the requests because, in accordance with Article II of the Act No. 206 / 2017, a person who had been granted an authorisation to arrange for employment before the date of application of the Act had an obligation to pay the bail under Paragraph 60b (1) of the Employment Act until 30 October 2017, while failing to comply with that obligation the Act linked the termination of the authorisation to arrange employment. The applicant (s) was therefore no longer required to provide bail at the date of the application. Furthermore, the administrative authorities have indicated that Article 156 of the Tax Code cannot be applied at all to the granting of the bond (deferral of the payment of the tax or distribution of its payment on instalments). The deposit shall either be lodged in full or no authorisation shall be granted; However, a tax debt does not arise by default.
6. According to the appellant, the action to be decided on contains, to a large extent, the constitutional argument to which it agrees. The contested provisions are in breach of Article 26 (1) and (2) of the Charter of Fundamental Rights and Freedoms ("the Charter ') and will not stand in the light of the findings of the Constitutional Court's finding of 13 May 2014, sp. zn. From the point of view of the rationality of the chosen solution, it can be accepted that the solution adopted is capable of achieving the stated objective, but the problem is that it is not clear, on the one hand, what rational consideration was given by the legislator in determining the amount of the bail-out and, on the other hand, that the solution adopted also has" side effects' which are contrary to the public interest. In fact, this solution distorts the business environment in the agency employment sector by eliminating economically weaker players, who would otherwise be perfectly capable of undertaking business in the sector.
7. According to the appellant, the fundamental problem of the legislation adopted is the absence of proportionality of the solution adopted in relation to the declared objectives, on several levels:
(a) It shall not be established to what extent the circumvention of the law has been extended in such a way as to justify a general intervention against all legal or natural persons authorised for the appropriate form of employment mediation (hereinafter referred to as "employment agencies") in the form of a uniform and universal bail-out. Could it not be demonstrated that the circumvention of the law was committed by a number of agencies comparable to 544 agencies which, as a result of the contested regulation, had ceased their activities within three months of the contested scheme's effectiveness? Was it not possible to use the instruments of infringement and to penalise only those who committed the circumvention described?
(b) Why has the bail been imposed on any authorisation for employment mediation pursuant to Article 14 (1) (b) of the Employment Act when, according to the explanatory memorandum, only multiple employment agencies were created by one enterprise; Why, then, could bail not have resulted in a single entity or even one controlling entity of corporations involved in the purpose of setting up agencies?
c) On the basis of what considerations has the legislator reached bail of CZK 500,000 and not another? The explanatory memorandum repeatedly states that this amount was set as "about 20 times the average wage in the national economy '. There is no rational link between the level of the average wage and the ability of the employment agencies to obtain the funds to pay the prescribed bail. The bail is so - it seems - totally random and arbitrary. The explanatory memorandum states apodictically that the amount of the deposit" cannot constitute a restriction on market entry'. However, this conclusion cannot be made by multiplying the average wage in the national economy, but rather by referring to the costs associated with the creation and operation of the Agency. However, such costs are not mentioned, let alone quantified. Those 544 defunct agencies seem to suggest that the author of the explanatory memorandum was wrong in his reasoning that bail would not restrict entry.
(d) Why has the legislature failed to take account of the fact that there are non-comparable economic forces in the agency employment market? The explanatory memorandum states, however, that "it is not possible to step up the amount of bail in view of the size and economic turnover of the employment agencies, since it is not possible to identify how many employees the Agency will temporarily allocate in the future '. It would be safer instead of one bond to determine the ongoing payment of bonds and differentiate according to certain periods of time, for which it would be possible to determine how many employees were allocated by the agency.
8. The appellant asks about the contested transitional provisions (Article II (3) and (4) of Act No. 206 / 2017 Coll.) why it was necessary and proportionate to the objective pursued to impose an obligation to bail on existing agencies within a relatively short period of 3 months of the entry into force of the Act. It should be recalled that existing employment agencies were authorised for a relatively short period of 3 years (Section 62 (3) of the Employment Act). For the period thus determined, they had a legitimate expectation that during that period they would be able to carry out the authorised activity without change so essential that it would prevent a small fraction of the agencies from completing their business during that period. Was the urgency prevailing in resolving the above-mentioned circumvention of the law over this legitimate expectation?
9. The appellant concludes that the proportionality of the solution adopted in relation to the objective set does not exist both in terms of the choice of the means of regulation used (determination of bail) and in terms of its overall application (against all entities and in relation to all permits) and in terms of its size (arbitrarily chosen amount which was for a non-negligible number of liquidation entities). In the light of the clearly stated obligation to deposit (sc. grant), as well as the consequence of its failure to comply with Article 60b (1) of the Employment Act and Article II (3) and (4) of Law No 206 / 2017 Coll., the appellant did not find room for a constitutionally conformal interpretation of those provisions and had no choice but to propose to the Constitutional Court that they be annulled.
Observations of parties, governments and data of the Association of Personnel Providers
10. The Judge-Rapporteur, acting in accordance with the procedure laid down in § 69 (1) of the Law on the Constitutional Court, as amended by Act No. 18 / 2000 Coll., sent the proposal to the two chambers of Parliament of the Czech Republic as parties to the proceedings and pursuant to § 69 (2) and (3) of the Law on the Constitutional Court to the Government and to the Ombudsman. At the same time, he requested the opinion of the Association of HR Providers as a professional organisation of personnel agencies and consultancy firms in the field of personnel services.
11. On behalf of the Chamber of Deputies, its then President, Mgr. Radek Vondráček, who stated that § 60b was inserted into the Employment Act by Act No. 206 / 2017 Coll. This bill was submitted by the Government to the Chamber of Deputies on 16 June 2016 and was distributed to Members as the 911 House Press Office. The first reading of the 911 House Press took place on 2 December 2016 at the 53rd session of the Chamber of Deputies, where this proposal was ordered to discuss the Social Policy Committee as a committee of guarantee. The Committee on Social Policy discussed the proposal on 1 February 2017 and issued a resolution which was circulated to Members as Parliament's 911 / 1 (amendments). The second reading of the draft law took place on 1 March 2017, when the draft law passed both general and detailed debate. In a detailed debate, amendments were tabled, including the Members, which were subsequently circulated to Members on 2 March 2017 as House Press 911 / 2. Subsequently, the Social Policy Committee issued a resolution by the Guarantee Committee, which was delivered to Members as House Press 911 / 3 on 10 March 2017. The resolution contained the opinion of the Guarantee Committee on the various amendments and the draft voting procedure. In the third reading of the draft law, which took place on 10 April 2017, it was not approved (from 168 Members enrolled, the amendment was for 72 and against 77) by Mr Antonín Sedi to raise bail under Section 60b of the Employment Act from CZK 500,000 to CZK 1 000 000. At the same time, it was not adopted (out of 171 Members applied for 59 and 94 votes against), nor was the proposal of Ms Ing. Margaret Pekarova Adama to delete the entire Section 60b of the Employment Act from the draft law. The Chamber of Deputies then voted in favour of the entire government proposal (out of 171 Members were in favour of 133 and against 34 votes). The Chamber of Deputies passed on 9 May 2017 a draft Senate law, which discussed it at its meeting of 8 June 2017, when it approved the bill as referred to by the Chamber of Deputies. The President of the Republic signed the Act on 15 June 2017. In the Collection of Laws the law was declared on 14 July 2017. The President of the Chamber of Deputies stated that the draft contested provisions were adopted after a properly implemented legislative process and that the legislature acted in the belief that the contested provisions complied with the Constitution and the Czech legal order.
12. On behalf of the Senate, his then President Jaroslav Kubera, who stated that the draft law No. 206 / 2017 Coll. was delivered to the Senate on 9 May 2017 and was assigned a press number in the Senate register of the 11th term. The proposal was discussed by the Committee on Health and Social Policy (Resolution No 48 of 17.5.2017, Senate Press No 116 / 1) as the Committee on Guarantee and Constitutional Law (Resolution No 41 of 17.5.2017, Senate Press No 116 / 2) as the next committee. The Committee on Health and Social Policy recommended that the Senate return the bill to the Chamber of Deputies with amendments which did not concern the contested provisions. The Constitutional Legal Committee then recommended approving the bill as referred to by the Chamber of Deputies. The Senate dealt with the bill at its 7th meeting in its 11th term of office on 8 June 2017. In the general debate, only Senator Tomáš Czernin spoke critically about the contested provision. Neither did the rapporteurs of the committees to which the press was ordered. As the draft law, as presented by the Chamber of Deputies, came from the committee of constitutionally-legal terms, the draft law was approved by the Chamber of Deputies, in accordance with the second sentence of Section 108 (2) of Act No 107 / 1999 Coll., on the Rules of Procedure of the Senate, the Senate first voted on this proposal after the general debate. In vote 73, of the 52 Senators and Senators present, 30 voted in favour of the proposal, against which was the 6th Resolution No 188 of 8.6.2017 The Senate approved the bill as referred to by the Chamber of Deputies.
13. The Government adopted a resolution under which it intervened authorised the Minister of Labour and Social Affairs to represent her in the proceedings before the Constitutional Court and the Minister of Justice to draw up, in cooperation with the Minister of Labour and Social Affairs, the Government's observations on the proposal to reject the application. In its observations sent on 9 January 2019 by the Minister of Justice and the Chairman of the Legislative Council of the Government of JUDr. Jan Kneženka, Ph.D., the Government stated that prior to the introduction of the obligation to provide bail for employment agencies, there were business entities which set up a larger number of employment agencies, through which they assigned one and the same employee to the same user within one month. This allocation in a given month did not exceed the scope of so-called small-scale employment, an activity in which the employee's income per calendar month is payable less than CZK 2,500. Not only did the State lose significant funds in the selection of social and health insurance, but this practice also resulted in serious social consequences for a temporary staff member, since, by not being involved in social insurance systems, there is no entitlement, for example, to sickness insurance, unemployment benefit or, in the future, to an old-age pension.
14. The introduction of bail was, inter alia, led by the legislature to demonstrate the financial capacity of the labour agency, to eliminate the creation of assigned labour agencies, to prevent the circumvention of legislation, particularly in the areas of health and social insurance, and to ensure that only those entities which have a minimum background and are able to guarantee basic accounting and operational standards, including material equipment, enter the agency employment market. According to the explanatory memorandum to the draft law, the amount of the bail was established taking into account the fact that the financial requirements for the creation of the employment agency are minimal. The labour agency could thus enter the labour market almost without resources, since it was essentially not necessary to dispose of material means of production to carry out its activities. Although the introduction of bail for the employment agency is a tightening regulation, it is acceptable and proportionate for the operators concerned. In the legislative process, alternative ways of achieving the stated objective were also assessed and it was concluded that bail is the most appropriate measure.
15. The area of legal limitation by decision of the legislator is relatively broad, but the restriction must not be discriminatory. Bail for employment agencies does not unduly interfere with the substance and sphere of entrepreneurs, as it is not of a sanctioning nature. In the event of the termination of an authorisation for employment mediation, the excess is a legal or natural person who has ceased to exist and if there is a refundable excess, the body (former employment agency) is reimbursed. This also implies a further purpose of the deposit, namely to ensure payment of any arrears of the entity.
16. The government has also shown statistics that it is clear that, despite the temporary reduction in the number of agencies of work, there is a long-term increase in their number following the introduction of the bail, which shows that the bail was not liquidation. The government also added that the introduction of bail was also thoroughly discussed with both the social partners and representatives of the labour agencies. In addition, it should be noted that, where appropriate, the amount of the deposit cannot be graduated in the Employment Act according to the size of the Agency's work or turnover, given that at the time of the administrative procedure for the issue of a permit for employment mediation, there is no indication of how many employees the Agency will temporarily allocate in the future. With regard to the appellant's argument that individual administrative acts may be penalised only by those who have committed the circumvention described above, it should be noted that bail is not directed exclusively against those who abused a small-scale employment institute. In order to be able to impose bail only on entities, it is necessary to reiterate that bail is not only intended to limit the purpose of setting up agencies, but also to demonstrate their financial capacity. The question of legitimacy of the chosen objective of the legislation can be found in the explanatory report and the RIA report on the draft law. As regards the rationality of the chosen instrument, the bail referred to above may certainly be one of the means of eliminating the negative effects that occur in the field of agency employment. This means of regulation was also chosen by other European states, not just the Czech Republic. If the appellant claims that more frequent checks on labour inspections and individual deposit of bonds would be the appropriate means of doing so, it is more of a controversy with the legislator on the most appropriate means of regulation, the Government considers that it has satisfactorily explained why the bond obligation was chosen. If there is a possible cause for a choking effect, which the appellant also points out, indicating the number of agencies that have ceased to exist because of the new legislation, this effect is refuted by the statistics produced, drawing on the data collected by the relevant authorities. The number of agencies' work with the introduction of bail did not only reduce rapidly but increased, which supports the Government's argument that the deposit of CZK 500,000 does not constitute any significant obstacle that could achieve the intensity of the "choking effect" against the subjects concerned, thereby violating the right to business embodied in Article 26 of the Charter. The Government therefore proposed rejecting the proposal in question.
17. In its opinion, the Association of Personnel Service Providers stated that the agency employment mediation provided for in Article 14 (1) (b) of the Employment Act has some special features, since there is an employment relationship between the Agency's employment as an employer and its employee, which is to be temporarily assigned to another body, which, however, imposes work on this employee. This is a specific triangle of relations, for which it is important for the successful functioning of which only verified bodies whose intention is to carry out their activities in accordance with legislation should carry out this mediation activity. The association of HR providers welcomed at this point the adopted amendment to the Employment Act, since prior to the introduction of the bail-out obligation under Section 60b of the Employment Act, there were obviously business entities on our market which established a larger number of employment agencies, through which they assigned one and the same employee to the same user within one month. This allocation in a given month did not exceed the scope of so-called small-scale employment. If the income from this activity was lower than CZK 2,500, the employer was not obliged to pay the health and social insurance payments for such employees. Not only did the State lose substantial funds in the selection of social and health insurance, but the practice involved serious social consequences for temporary staff, as it was not involved in social insurance systems, which created obvious problems for these people in the future. The start of the employment mediation activity compared with other business activities did not entail nearly any entry costs, and it was precisely this measure, contained in the amendment to the Employment Act, where the employment agency had to go to the labour market with some funds. Bail thus fulfils, inter alia, the measure that the labour agency has certain reserves to financially meet its obligations towards the State.
18. The Ombudsman stated that she would not exercise her right to intervene.
19. The observations of the parties to the proceedings, the Government and the Association of Personnel Providers were sent to the appellant in the light of a possible reply, but he did not make use of this possibility.
Abandonment of oral proceedings
20. The Constitutional Court concluded that, in view of the content of the application and the written observations of the parties to the proceedings, further clarification of the case could no longer be expected from the oral hearing and therefore, pursuant to Article 44 of the Law on the Constitutional Court, it decided on the case without its regulation.
Procedural assumptions of the annulment procedure
21. The Constitutional Court has also examined whether the legal procedural conditions for the hearing of the application under Article 87 (1) (a) and Article 95 (2) of the Constitution and Article 64 (3) of the Constitutional Court Act are fulfilled.
22. 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; not only hypothetical use or other broader context (Order of the Constitutional Court of 23.10.2000 sp. zn. All decisions of the Constitutional Court are available at https: / / nalus.ujud.cz]. It follows from the purpose and meaning of the so-called specific control of the constitutionality of legislation that the law (or its individual provisions) to be applied in the resolution of the case is only a law which impedes the achievement of the desired, i.e. a constitutional consensus result; If it had not been removed, the outcome of the ongoing proceedings would have been different, namely unconstitutional [see the finding of 6 March 2007 sp. zl. ÚS 3 / 06 (N 41 / 44 SbNU 517; 149 / 2007 Sb.), recital 26].
23. The Constitutional Court finds that the Regional Court is testifying to the active procedural legitimacy of the application for annulment of the contested provisions, since those provisions are to be applied in the administrative action before it. As the Constitutional Court has verified, in an administrative action to be decided by the Regional Court, the applicant contends (sub 5) that the application of the contested provisions has affected his right to engage in business, the protection of which is guaranteed in Article 26 (1) and (2) of the Charter. It sets out the constitutional legal argument to which the appellant was concerned and concluded that it was not possible to carry out a constitutional interpretation in the case under consideration. The Constitutional Court takes into account that a substantial part of the appellant's objections will not be dealt with directly in the proceedings before him, but without the contested legislation, an action would not have been brought against the decisions of the administrative authorities (see sub-5) and the proceedings would have become irrelevant without it. The applicant, in the action before the appellant, contests the provisions in question in the present case, but not directly because it did not intend to grant the bail, but because it requested that it be granted in the form of a postponement of the payment of the tax or, where appropriate, the distribution of its remuneration into instalments under Section 156 of the Tax Code, in addition to the time when the period for granting the bond under Article II of Law No 206 / 2017 has expired. However, without the contested legislation, such a dispute would not have occurred, as the complainant would have no reason to bring an administrative action.
Constitutional conformity of the legislative process
24. The Constitutional Court has examined the progress of the legislative process and found that the data provided in the statements of the Chamber of Deputies and the Senate (Sub 11 and 12) demonstrate that Act No. 206 / 2017 Coll., which adopted the contested provisions, 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 reasons for the proposal
25. The Constitutional Court considered the arguments put forward in the application and concluded that the proposal was not justified.
26. Article 26 (1) Each Charter shall have the right to free choice of profession and to prepare for it, as well as the right to undertake and pursue other economic activities.
27. Article 26 (2) The Charter of Fundamental Rights may lay down conditions and restrictions for the pursuit of certain professions or activities.
28. Pursuant to Article 41 (1) of the Charter of Rights referred to in Articles 26, 27 (4), 28 to 31, 32 (1) and (3), 33 and 35 of the Charter, namely fundamental rights in the above provisions of the Charter, may be invoked only within the limits of the laws implementing those provisions.
29. The laws which affect the economic, social and cultural rights referred to in Article 41 (1) of the Charter shall, as a general rule, be assessed by a rationality test when examining their possible conflict with constitutional order. This should also be the case with the contested provisions. In some cases, however, such a law (or the contested provisions) laying down the limits of economic rights needs to be measured by a stricter test of proportionality. This is the case where legal regulation negates the core of constitutionally guaranteed economic law. This is the case when it questions its very existence or does not respect its substance and meaning. This may also be the case where the intervention in economic law also constitutes an intervention in fundamental human law, which is logically and functionally linked to it, or is hiding behind the legal regulation of economic law, the intervention in fundamental human law, which is otherwise manifestly unrelated to the economic law in question. By virtue of the right to do business, it is the right to enter into certain legal or social relations freely, to exchange with others the results of their mental and physical efforts for money or other values and to obtain income from their property. The aim of the business is to make a profit. Therefore, the core of this right is a sufficient degree of discretion on own property and time so that an individual can satisfy his or her business ambitions, as well as the income needed to meet his or her economic needs [cf. e.g. the finding of 26.2.2019 sp. zn. ÚS 37 / 16 (N 31 / 92 SbNU 324; 119 / 2019 Sb.), paragraph 26].
30. The centre of gravity of the objections to the contested provisions lies in the determination of the obligation of legal or natural persons seeking authorisation to mediate employment under Section 14 (1) (b) of the Employment Act to grant a deposit of CZK 500 000 to the special account of the Directorate-General for Labour. This obligation applies not only to applicants who are still applying for authorisation for mediation, but also to those who are already in the process of such an application and, finally, to those (which is the applicant in the proceedings before the appellant in the present case) who have already obtained them, but to those who have already obtained them under the current legislation (see the legislation cited in sub 2 to 4). In other words, the false retroactive effect provided for by Act No. 206 / 2017 Coll. The Act entered into force on 14.7.2017 and the contested provisions became effective on 29.7.2017.
Substantial assessment of the veracity of the proposal to abolish Article 60b of the Employment Act
31. It should be noted, first of all, that the contested provisions affect, in terms of the number of entrepreneurs (the legislation of the affected entities), a marginal, albeit relatively significant, segment of the labour market, and as such cannot in itself deny the very existence of a constitutionally guaranteed right (let alone freedom) to do business, its substance or its meaning. Bail indirectly limiting the access of entrepreneurs to certain types of business is in the legal order of the Czech Republic, as well as abroad (see below), a standard institution which has its place for justifiable reasons - e.g. the obligation of the person storing raw tobacco to provide bail of CZK 20 000 according to § 134zk of Act No. 353 / 2003 Coll., on consumption taxes, as amended, the obligation of the fuel distributor to provide bail of CZK 20 000 in accordance with § 6i of Act No. 311 / 2006 Coll., on fuel and fuel stations, and on changes to certain related laws (Act on fuel), as amended regulations, various types of action in connection with the operation of gambling under § 89 and 100 of Act No. 186 / 2016 Coll.
32. It is also clear from the above that, under Section 60b of the Employment Act, the institution itself cannot deny the very existence of a constitutionally guaranteed right to conduct business, as it is a standard instrument for regulating business, as well as that the amount of bail provided for in the contested provisions cannot be considered prima facie (the Constitutional Court will subsequently proceed to a more detailed assessment of the amount of the bail as being disproportionate or excessive, objectively preventing the operators concerned from doing their business. In this context, it should also be noted that according to the statistics provided in the Government's observations, despite the temporary and understandable reduction in the number of agencies' work after the deposit, there was even a long-term increase in their number in the following year (the number of agencies authorised to work on 31 December 2014 was 978, the number of agencies was 1,014 on 31 December 2016, 1,222 on 31 December 2017, 812 on 31 December 2017 and 2,096 on 4 December 2018 were registered, of which the number was authorised to work in the form of agencies' 1 025 agencies'). It is so obvious that the increase in the number of agencies after the deposit was introduced was even greater than in the years when the deposit was not introduced. For the sake of completeness, as of 10.1.2022, a total of 2 137 agencies operated in the Czech Republic with some of the types of permits provided for in Section 14 (1) of the Employment Act, of which 1 108 were authorised to arrange employment in the form of agency employment (data available at https: / / www.uradprace.cz / web / cz / agencies-work, last visit 10.1.2022).
33. The Constitutional Court, in its established decision-making practice, takes the view that both the exercise and interpretation of certain rights enshrined in the title of the Fourth Charter in relation to Article 41 (1) of the Charter is to be kept abreast. The assessment of the effectiveness and appropriateness of the legal regulation in this field therefore leaves, in principle, the Constitutional Court within the legislature's jurisdiction and in its activities, except in cases of established non-constitutionality, no longer intervenes [cf. the finding of 15.2.1994 sp. zn.
34. Discretion granted by the legislature in Article 41 (1) of the Charter or Article 26 of the Charter is not unlimited. The legal definition of the conditions for implementing the right to conduct business must not be contrary to fundamental constitutional principles and must not interfere with its very nature. As in the case of fundamental rights and freedoms directly enforceable under the Charter, the legislature must also respect the general rule of Article 4 (4) of the Charter, according to which, when applying the provisions on the limits of fundamental rights and freedoms, their substance and the meaning of [cf. the finding of 23 April 2008 sp. zn.
35. Furthermore, the Constitutional Court had to consider whether the legal regulation of economic law was not to hide interference with fundamental law or freedom, which was at first sight unrelated to the economic law in question. This would be the case, for example, if, as a result of the seemingly neutral regulation of economic law, discrimination was contrary to Article 3 (1) of the Charter or interference with the right to express freely the religion guaranteed by Article 16 (1) of the Charter. In view of the fact that the appellant itself does not provide for such a possible intervention and the Constitutional Court does not see such intervention in determining the bail in question, it is sufficient from this point of view to conclude that the legal regulation does not at the same time constitute an intervention in any fundamental human right or freedom which is logically and functionally linked to it. On the contrary, it indirectly ensures the legitimate interests of the State, protects against circumvention and ensures better status of agency staff.
36. In view of the alleged infringement of the right to engage in business guaranteed by Article 26 (1) in conjunction with Article 2 (3) of the Charter or Article 2 (4) of the Constitution, it is necessary to consider that, since it is not an intervention in the fundamental rights and freedoms not listed in Article 41 (1) of the Charter, the required proportionality test is not necessary and therefore sufficient to assess the rationality test. However, if the appellant points out that the proportionality of the solution adopted does not exist in relation to the objective set out, the Constitutional Court will also address that objection (the existence of a legitimate objective is foreseen by all steps of each of the tests for the examination of the intervention into fundamental rights and freedoms) within the third and fourth steps of the rationality test, that is to say, when assessing whether the legal regulation pursues a legitimate objective and whether it is not manifestly or arbitrarily contrary to Article 2 (2) of the Charter or Article 2 (3) of the Constitution, and whether it is reasonable.
37. The Constitutional Court concludes that, in the present case, it is therefore sufficient and proportionate to assess the constitutionality of the contested provisions of the rationality test (rationality), which, for the reasons set out above in the case-law of the Constitutional Court, has been enforced and settled in accordance with the model of other States [for example, in 1897, the Supreme Court of the United States established, in a decision in the Gulf, Colorado & Santa Fe Ra. Co. v. Ellis, 165 U.S. 150 (1897), a so-called "Rational basis test," where the State must prove that the contested legislation pursues a legitimate state objective and that the resources used by the State are rationally related to that objective]. This test serves as a methodological tool for reviewing the legislative intervention of the aforementioned fundamental rights and freedoms.
38. The wording of the various steps of the rationality test was expressed somewhat differently by the Constitutional Court, taking into account the considerations and circumstances of the cases under consideration, [see, for example, the finding of 27.1.2015 sp. zn. Pl. ÚS 16 / 14 (N 15 / 76 SbNU 197; 99 / 2015 Coll.), paragraph 85; or the finding of 24.4.2012 sp. zl. ÚS 54 / 10 (N 84 / 65 SbNU 121; 186 / 2012 Coll.), paragraph 48] but the points of view followed are the same. The rationality test shall consist of the following four steps:
(a) the definition of the essential content of economic, social or cultural law, namely its so-called core;
(b) an assessment of whether the claim requested relates to the core of that right (its substantial content);
(c) an assessment of whether the interests against the claim are legitimate (from a constitutional point of view); and
(d) considering whether, in view of the conflicting legitimate interests of the claim, the law is reasonable (rational), although not necessarily the best, most effective or the wisest, nevertheless pursuing a legitimate objective (public interest) [already finding sp. zn. Pl. ÚS 1 / 08 of 20.5.2008 (N 91 / 49 SbNU 273; 251 / 2008 Coll.), paragraphs 102-105].
39. The definition of the core of economic law (right to do business) and its essential content has already been carried out by the Constitutional Court above (sub 31 et seq.) in considering whether a proportionality test or a reasonable test is necessary. The Constitutional Court concluded here that a rationality test is sufficient and notes that the provisions under appeal will stand in the first two steps of the rationality test. The following can be added to these arguments in detail.
40. The right to do business includes a positive, as well as a negative, aspect of the freedom to do business (Article 26 (1), in conjunction with Article 2 (3) of the Charter or Article 2 (4) of the Constitution), which is to respect the autonomous area for decision-making by the holder of such freedom. This freedom includes: freedom to decide whether to do business, in what field, by what means, the possibility to choose the legal form of business for own account (risk of business) in order to achieve profit, freedom to choose the means of competition in the market economy, contractual freedom and associated freedom of choice of sale, offering services, pricing, management, lending, participation in the capital market, employment of workers, strategy and business tactics, business time, etc., with the fact that the entrepreneur will not be harmed. Regardless of what has just been said in general, it cannot be borne in mind that the case under consideration is specifically a "permit for employment mediation '(not a registration system or a mere registration system), not the freedom to decide whether or not a person will be in business on a particular section without State intervention, but which the appellant does not take into account. This is therefore a problem of intervening in freedom to do business, which is not attacked by the appellant. It can thus only be added that the restriction of the right to do business or to pursue other economic activities under Article 26 (2) of the Charter on the basis of a concession or authorisation (as in the present case) is constitutionally conformal if an important public interest, such as the achievement of social policy objectives, the social protection of workers, the financial balance of the social security system or sickness insurance, the prevention of fraud and the circumvention of the law, etc.
41. In addition, pursuant to Article 26 (1) of the Charter on the aspect of the right to conduct business, the State is required, when the conditions (i.e. after authorisation - see sub 40 in fine) for entry into the business environment, to provide the right holder with the conditions for his business activity as defined by law, to register him as an undertaking, to protect his reputation, brand, to protect his rights and legitimate interests in business, etc. This includes the right to oppose State interference in the decisions of the entrepreneur and of its own business (Articles 2 (2) and (3), Article 26 (1) and Article 36 (1) of the Charter), the right for the State, in the interests of its protection function (Article 1 (1) of the Constitution), to protect the entrepreneur from the interference of other private individuals and the unlawful interference of its institutions (insolvency proceedings, civil proceedings, competition protection). At the same time, however, the State also has an obligation to restrict business in order to protect the rights and freedoms of others, for example in consumer relations (see the finding of 2 July 2019 sp. zn. Furthermore, it is a right for the State to create conditions for the functioning of the business environment (the general principle of the constitutional system as a subjective objective principle), taking into account the obligations arising from membership of the European Union in particular under IX. Title of the Treaty on the Functioning of the European Union (see below).
42. From this broader point of view, the Constitutional Court considers the contested legislation to be rational, in the essence of the freedom to engage in non-intervening activities and, in the case of business as a right, merely laying down the necessary conditions which meet the requirements of the rationality test.
43. It can be concluded that the right to do business in the field of so-called agency employment is limited only marginally by the establishment of the deposit in question and this restriction does not affect its core. On the contrary, the contested legislation equates the business environment and also provides protection to the interests of the State in the tax and social insurance and public health insurance payments sector and thus indirectly to other entities (agency employees in terms of their participation in sickness insurance schemes, unemployment support or the establishment of an old-age pension). Finally, the nature of the bond itself precludes a different conclusion (even with regard to its size and return), in particular with regard to the legitimate objective pursued, since the conditions laid down by the State were practically minimal until the adoption of the contested Section 60b of the Employment Act, with the negative consequences that the contested legislation is currently having at least as far as possible removed.
44. In assessing the legitimacy of the objective of legal regulation, it is possible to refer not only to the explanatory report on the relevant press of the Chamber of Deputies (the 911 press of 2016, the explanatory report only explains but does not commit), but also to generally well-known facts or similar legislation in the countries of the European Union in which agency employment is also used. The contested legislation therefore undoubtedly pursues a legitimate objective or objectives, i.e. the need to demonstrate the financial capacity of the labour agency, to eliminate the creation of assigned labour agencies, to prevent circumvention, in particular in the areas of public health and social insurance, and to ensure that only those entities which have a minimum background and are able to guarantee basic accounting and operational standards, including material equipment, enter the agency employment market. This also corresponds to the situation in other Member States of the European Union, as well as the requirements of European Union law on the employment sector in this way.
45. On the basis of an analysis of the legislation of the countries of the European Union, the Constitutional Court points out that the functioning of labour agencies is subject to a often much higher financial amount (guarantees, bail-outs or the composition of the amount into a special fund) than in the case of the contested provisions under consideration. In particular, in the case of the Kingdom of Belgium, the Agency must contribute to the social fund. Their obligations include, among other things, the payment of a financial guarantee of EUR 75 000 (about CZK 1,827 million, everything and everything in the calculation according to the Czech National Bank's course on 10 January 2022). This amount paid by the employment agencies shall serve as a guarantee for staff and social fund in the event of their difficulties in payment. In the case of France, bail is not directly provided for in the case of employment agencies with the competent administrative authority, but employment agencies are obliged to conclude a financial guarantee contract. The financial guarantee is then negotiated annually. It is generally dependent on the company's annual turnover; is a specific percentage of turnover during the last financial year (8%). However, it cannot be lower than a decree each year [in 2019, for example, it was EUR 127 079 (about CZK 3,096 million), which depends on average wage growth]. In the case of Italy, it depends on the type of agency of work, but for some of them bail can amount to up to EUR 350 000 (about CZK 8,526 million), while the agencies specialised in employment mediation must then have a capital of at least EUR 50 000 (about CZK 1,218 million). In the case of Hungary, in the field of agency employment, the Act imposes an obligation to deposit an advance of 500 000 forints (about CZK 34,000) for private agencies wishing to provide employment in the territory of Hungary or in the territory of the countries that are members of the European Economic Area. An advance of 1 million forints (about CZK 68,000) is then required to set up agencies to operate in countries outside the European Economic Area. In the case of the Slovak Republic, the agencies are not obliged to deposit a deposit of the legal amount, but legal persons must prove that they have assets of at least EUR 30 000 (about CZK 731 000), and natural persons, on the other hand, must prove that they have concluded a bank guarantee contract of at least EUR 15 000 (about CZK 365 000). In the case of the Republic of Slovenia, the agencies are obliged to lodge a bank guarantee of at least EUR 30 000 (about CZK 731 000) when applying for registration in a special register. Finally, in the case of Spain, the minimum amount of the financial guarantee is EUR 22 500 (about CZK 548 000). At the same time, temporary employment agencies are required to update this guarantee regularly (e.g. with a minimum wage indexation). The situation in Germany is somewhat different, where the functioning of labour agencies requires at least proof of the fixed financial amount in the account as a sign of creditworthiness. The creditworthiness must be demonstrated either by the current statement from the bank account or by confirming the bank's granting of the loan, where the minimum amount of the applicant's funds available must be at least EUR 10 000 (about CZK 244 000), with more than 5 employees being employed or temporarily allocated to work, this amount is increased by EUR 2 000 (about CZK 48 800) for each additional employee. In addition to the above, an administrative fee of EUR 1 000 (about CZK 24 400) for an annual limited permit or EUR 2 500 (about CZK 61 000) for an unlimited permit is charged for an application for a permit for employment mediation. No similar obligation, except for the composition of a small "registration" fee, can be traced in the Kingdom of Denmark, Croatia, Ireland, Poland, Austria and Greece.
46. Pursuant to Article 4 (1) of Directive 2008 / 104 / EC of the European Parliament and of the Council on Agency employment (hereinafter referred to as "Directive 2008 / 104 / EC '), prohibitions or restrictions on agency employment may be justified only on the grounds of the general interest relating, in particular, to the protection of workers of labour agencies, the safety and health requirements at work and the need to ensure the proper functioning of the labour market and to avoid possible abuse. The Court of Justice of the European Union then in its judgment of 17 March 2015 in Case C-533 / 13 Auto- ja Kuljetusalan Työntekijäliitto ACP ry against Öljytuote ry, Shell Aviation Finland Oy concluded that Article 4 (1) of Directive 2008 / 104 / EC, when viewed in its context, must be understood as defining a framework for the standardisation of the activities of Member States in the field of prohibitions or restrictions on agency employment and obliges them to review in order to ensure that any prohibitions and restrictions on agency employment are justified.
47. As is apparent from the explanatory memorandum (Press 911 of 2016) to Act No. 206 / 2017 Coll., through which the obligation to provide bail was introduced, proof of financial standing by bail is an important prerequisite for the real exercise of the intermediary's activities and ensuring the quality of the employment mediation requirements. If the appellant (see sub-7) contends that there is an incorrect conclusion in the explanatory memorandum that the amount of the deposit "cannot constitute a restriction on entry to the market ', he is certainly right, because it is a restriction, but rational and justified, that is. However, this does not alter the conclusion on the constitutional conformity of Article 60b of the Employment Act. The aim of the proposed measure was to guarantee the success of the Agency's work, eliminating the creation of the assigned agencies. According to the legislature, the amount of bail was also chosen in view of the limited liability of legal persons, where such persons can be established with a minimum deposit. The purpose of the deposit is to demonstrate financial capacity, i.e. to meet its financial obligations. The aim of the proposed adjustment was to ensure that only those employment agencies which have a minimum adequate background and are able to guarantee at least basic accounting and operational standards, including material equipment, entered the employment market. The introduction of a single bail-out should have been a measure that was intended to affect several aspects - ensuring the financial capacity of the agency of work, preventing the creation of assigned agencies of work, and avoiding circumvention of legislation, in particular in the areas of health and social insurance, through a small-scale employment institution of one employee assigned by several property-linked labour agencies (cf. Similarly, the expression of the government of sub 13 et seq., and the expression of the Association of Personnel Providers (17).
48. In assessing whether the interests against the claim are legitimate, that is to say from a constitutional point of view, the Constitutional Court first finds that the contested regulation was also assessed in the light of the claims contained in the primary and secondary law of the European Union (Article 4 (1) of Directive 2008 / 104 / EC) in its preparation and approval. As is apparent from the explanatory memorandum to Act No. 206 / 2017 Coll., from the Government's observations and finally from the Association of Personnel Service Providers, the aim of the contested regulation was, inter alia, to achieve greater protection for employees of employment agencies, since in the past it was shown that small (often property and staff-related) agencies did not exceed the scope of so-called small-scale employment, in the absence of social insurance schemes, that the employer was not obliged to pay for such employees. This objective of the contested provisions is regarded by the Constitutional Court as legitimate as it seeks to protect workers as a weaker party to labour law and to participate in social health and pension insurance systems, which also has constitutional implications (Articles 30 and 31 of the Charter).
49. The legitimate objective of the contested legislation can also be found to be that only those employment agencies which have a minimum adequate background and are able to guarantee at least basic accounting and operational standards, including material equipment, will enter the agency employment market. At the same time, the legitimate objective of the contested legislation can be seen in the fact that the adoption of the contested provisions has prevented the creation of special-purpose agencies. These objectives also fully correspond to Article 4 (1) of Directive 2008 / 104 / EC and are also legitimate in the public interest in maintaining a certain standard of business environment in the Czech Republic and also in the legitimate interest of the State in controlling these business entities (employment agencies).
50. The additional purpose of the deposit may also be regarded as legitimate by ensuring that any arrears of the bodies concerned (labour agencies) are paid against public budgets (in particular tax arrears or social and health insurance). It is also not possible to ignore the fact analysed above (sub-45) that a form of bail (i.e. the composition of a financial amount as a guarantee) for labour agencies is a standard in several countries of the European Union, and even these countries do not consider the deposit thus established to be contradictory to the right of business. On the basis of the above, the Constitutional Court finds that the essential objectives of the contested provisions are legitimate.
51. As regards the objection of the amount of the bail and the failure to make a distinction between the amount of the bail provided by the Constitutional Court, the Constitutional Court recalls that this is not directly the subject of proceedings before the appellant, where it is merely a requirement that the delay in payment of the bond be allowed under the tax rules. However, even if this were not the case, the Constitutional Court notes that it is an adjustment for the area and, on the contrary, a favourable situation. The legislature also addressed its size when discussing the proposal in the Chamber of Deputies itself, where it was voted on by Mr Antonín Sedi to raise it to CZK 1 million because of the intensive need to minimise the negative effects of agency employment in view of the purposeful emergence of many agencies of work (see the proposal to print 911 from 28 February 2017). Similarly, Mrs Markéta Pekarova Adama's proposal to be removed from the draft law was discussed (there, under No. 5885 of 28 February 2017).
52. In setting bail, the legislator did not decide to set bail at different levels, but only set a threshold, minimum, as a precondition for agency activity at all. There is no doubt that it would be possible to set criteria for differentiation, even if this would entail complications and additional requirements in the performance of government (increase or decrease in the number of agency staff, employment areas such as seasonal work, etc.). However, if the basic boundaries are established without further distinction between applicants and entrepreneurs in this way, this cannot be regarded as unconstitutional, let alone unconstitutional, but it is an adjustment that simplifies business, it does not require continuous monitoring of changing quantities on the basis of which the amount of bail can be graduated and, for example, require "repayments' or" repayments'. Notwithstanding this, it should be added to the appellant's objection (sub 7) that the amount of the bail is set by a multiple of the average wage, that the Employment Act works with this figure in a number of other provisions (as the law in general), while the appellant does not dispute that the previous amount of the bond has been established in the same way.
53. The final step of the rationality test, which is to answer the question whether the legal means to achieve the objective is reasonable, although not necessarily the best, most effective or most wise [see for example the findings of the Constitutional Court of 30.10.2002 sp. zn. Pl. ÚS 39 / 01 (N 135 / 28 SbNU 153; 499 / 2002 Sb.), of 13.12.2005 sp. zn. Pl. ÚS 6 / 05 (N 226 / 39 SbNU 389; 531 / 2005 Sb.), of 12.3.2008 sp. Pl. ÚS 83 / 06 (N 55 / 48 SbNU 629; 116 / 2008 Sb.) or of 20.5.2008 sp. If the rationality test is not to be emptied, the Constitutional Court must measure the rationality of the legal instrument under consideration with the rationality of possible better regulation. There must therefore be an obstacle through which irrational legislation will not pass compared to another, rational one. In so doing, it is necessary to acknowledge [the extensive professional literature on matters of fact assessment in decisions of constitutional courts in other countries, cf., the finding of 2.2. 2021 sp. zn. Pl. ÚS 44 / 17 (49 / 2021 Sb.)] that, in the absence of a system which in the Czech Republic would specifically verify and ex post evaluate the economic and social effectiveness of the legislation adopted, the decision of the Constitutional Court judges may in some respects be guided by internal persuasion [cf., mutatis mutandis, the finding of 26.2.2019 sp. Pl. ÚS 37 / 16 (N 31 / 92 SbNU 324; 119 / 2019 Sb.], paragraph 43]. The Constitutional Court recalls that only partially the evaluation of constitutionality can express quantitative data, and they have not been present at all (see Government observations). The decrease may have been caused by various causes (e.g. the acquisition of time during withdrawal and the resubmission of an application for authorisation to obtain time, etc.). Therefore, data are not reliable and the only basis and are not necessary here. The Constitutional Courts usually do not work to check the constitutionality of laws with concrete facts, but much more with general facts (in the professional literature and case law of the so-called Generelle Tatsachen, legislative facts).
54. The appellant himself explicitly stated in his proposal that "from the point of view of the rationality of the chosen solution, it can be accepted that the solution adopted is capable of achieving the stated objective ', which then indicates a more appropriate solution from its point of view. In this context, the Constitutional Court recalls that the powers of the Constitutional Court are specifically defined in Article 87 (1) and (2) of the Constitution, whereas under Article 87 (1) (a) of the Constitution, the Constitutional Court can only repeal the provisions of the law which are contrary to fundamental rights and freedoms, but it cannot replace them in any way. It therefore" only "plays the role of the so-called negative legislator in this respect. The law itself could only be amended by the legislator [cf., for example, the Resolution of 29 June 1998 sp. zn. II. ÚS 272 / 98 (U 42 / 11 SbNU 323)]. Therefore, the Constitutional Court cannot in any way interfere in the decision-making of the legislature in the present case, how specifically to regulate the social relations concerned, but can only assess whether the contested provisions are constitutionally compatible and, if not, abolish those provisions. The choice of control tools and their degree of application in labour relations are primarily tasks of the legislator, which in particular assesses whether the newly introduced measures can lead to the objective pursued.
55. The Constitutional Court notes that even if there were better, more appropriate or more effective means to achieve the desired objective, this does not necessarily mean that the legislature of the chosen solution is unconstitutional. Although the Constitutional Court understands some of the appellants' partial complaints mentioned in sub 6 et seq. of this finding, it cannot be concluded that the legislation under assessment would be extremely irrational [see, to that effect, the findings of 21.4.2009 sp. zn. Pl. ÚS 29 / 08 (N 89 / 53 SbNU 125; 181 / 2009 Coll.) or of 27.11.2012 sp. zl. ÚS 1 / 12 (N 195 / 67 SbNU 333; 407 / 2012 Coll.)]. While it may be agreed with the appellant that the specific amount of the bail of CZK 500 000 is not strictly justified in the explanatory statement, on the other hand, the fact that the statement of grounds shows that the amount of the bail has been established in view of the fact that the financial requirements for the creation of the agency of work are minimal and that the introduction of the bail for the agency of work is, however, a tightening regulatory act, but determined in such a way as to make it acceptable and proportionate for the operators concerned. The Constitutional Court also points out that the amount of bail for employment agencies (even in view of the comparison with legislation in other countries - sub-45) does not unduly interfere with their assets. For the constitutionality of the arrangements adopted, the fact that the deposit is not of a penalty nature also shows that they are not. In the event of the termination of an authorisation for employment mediation, the excess shall be a legal or natural person who has ceased to exist and, if there is a refundable excess, shall be refunded to that person.
56. The fact that the amount of the bail does not make it impossible for business operators to enter the market is evidenced by statistical data (see sub-32) from the time the contested legislation became effective. It follows that even after the contested legislation has been introduced, new agencies of work are being set up. The argument that, where appropriate, the amount of bail cannot be graduated in the Employment Act according to the size of the Agency's work or turnover can also be considered relevant, given the fact that at the time of the administrative procedure for the issue of a permit for employment mediation, it is not possible to identify how many employees the Agency will temporarily allocate in the future. For the sake of completeness, it is possible to draw attention to the legislation in Germany where the "bail 'is increased by EUR 2 000 (about CZK 48 800) for each additional employee, but this particular consideration is, according to the Constitutional Court, from a constitutional point of view (Article 41 (1) of the Charter) of the legislator's considerations.
57. The appellant contended that it was not illegal to impose individual administrative measures only on those agencies that committed the circumvention of the law described (abuse of a small-scale employment institute), but that such action was clearly undesirable for employees (see Sub 43 and 47). In addition, it was not the only objective of the legislation adopted (with more sub 43). Finally, the argument that bail is not only aimed at limiting the purposeful setting-up of employment agencies, but also at demonstrating the financial capacity needed for business, as has been repeatedly emphasised above, can be considered reasonable.
58. For the sake of completeness of the Constitutional Court's argument that the contested provisions will not stand in the light of the conclusions of the finding of 13 May 2014 sp. zn. However, it must be pointed out that "there is no bail as bail 'and, despite the fact that the reference finding concerned the issue of bail, it was a bail in relation to fuel distributors, not natural persons, with whom the finding of 19 January 2016 is to be treated differently [cf. The area of employment is undoubtedly very different from the distribution of fuel, with the purpose and amount of the bail in the case under consideration being different from that for fuel distributors. Moreover, the security for fuel distributors was aimed at a different objective than in the present case. Therefore, the conclusions set out in the cited finding are only partially applicable in the present case and cannot be taken over without further examination. The legislature could undoubtedly have established a bail-out of a different amount, but if it decided on a level that could be considered a threshold for a given area, there is no constitutional objection.
The reasons for the proposal to repeal the transitional provisions of Article II (3) and (4) of Act No. 206 / 2017 Coll.
59. The transitional provisions at issue (sub-paragraphs 3 and 4) may then also be identified as legitimate, rational and constitutionally consistent. If these transitional provisions (which result in the obligation to provide bail-out apply to all employment agencies, both emerging and existing, which existed before the date of the entry into force of Act No. 206 / 2017 Coll.), there would be unjustifiable unequal treatment, whereby entities which were obliged to demonstrate financial capacity on the agency employment market and those which had not demonstrated such eligibility, which would undoubtedly be inconsistent with the declared regulatory objectives and could lead to discrimination and unacceptable inequalities in the business environment in the Czech Republic, as well as to the economic and social rights of agency employees.
60. The length of the transitional period of three months, even in the view of the Constitutional Court, was sufficient time to familiarise itself with the proposed new legislation (which was also discussed in public at the time of its hearing) and to allocate the financial resources needed to pay the bail by existing employment agencies. This condition (bail) is not only linked to the decision to authorise an agency activity itself, but also relates to the activity itself and to the fulfilment of other obligations imposed on the agencies.
61. Thus, even the contested transitional provisions cannot be regarded as an unrational regulation in order to proceed with its abolition by a satisfactory finding of the Constitutional Court, as it is a matter of establishing a new obligation for entities already established. It is impossible to overlook the fact that this is not a law but a request for a 'permit', so the terms of the proposal for obtaining it are simply changed. Similarly, the regulation of the amount of bail is not an arbitrary procedure or an arbitrary act, but is pursuing a legitimate objective.
Conclusion
62. The Constitutional Court concludes that, in its assessment of the laws governing economic issues, it has already expressed itself in the past in favour of maintaining the maximum degree of restraint [for all cases, the finding of 29 May 2013 sp. zn. The regular part of the rationality test is then the assessment of whether the contested provision is manifestly not a result of arbitrary discrimination (discrimination within the meaning of Article 3 (1) of the Charter), whether the contested legislation is reasonably related to a legitimate objective, is obviously not a result of arbitrary discrimination and the expression of arbitrarily contrary to Article 2 (2) of the Charter, or Article 2 (3) of the Constitution, and whether the legal means of achieving the objective is reasonable. The proportionality test would need to be carried out if legal regulation negates the core (substance and meaning) of constitutionally guaranteed economic law or freedom. In the present case, the provision of bail-out for legal or natural persons applying for authorisation to arrange employment pursuant to Article 14 (1) (b) of the Employment Act does not preclude constitutional order; therefore, there is no need to intervene by the Constitutional Court under Article 87 (1) (a) of the Constitution in such regulation by the legislator.
63. On the basis of all the above, the Constitutional Court concludes that the proportionality test does not require the contested provisions and will stand up to the rationality test. If the restriction of the right to do business or to pursue another economic activity does not constitute a restriction pursuant to Article 26 (2) The Charter in the form of a concession or a permit linked to the provision of a bail-out pursuant to Article 60b of the Employment Act for legal or natural persons applying for authorisation to mediate employment pursuant to Article 14 (1) (b) of the same law to the values of constitutional order and, if this is followed by an important public interest, such as the achievement of social policy objectives, the social protection of workers, the financial balance of the social security system or sickness insurance, the prevention of fraud and the circumvention of the law, is a procedure of constitutional consistency. In such a case, the intervention of the Constitutional Court under Article 87 (1) (a) of the Constitution is not appropriate in such a decision by the legislator.
64. For the reasons set out above, the Constitutional Court concluded that the appellant's argument did not demonstrate the alleged non-compliance of the contested provisions of the Employment Act and of Law No 206 / 2017 Coll. with the constitutional order. Therefore, pursuant to Article 70 (2) of the Law on the Constitutional Court, the Constitutional Court rejected the application for annulment of the contested provisions.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 28 / 2022 Coll., on the application for annulment of Article 60b of Act No. 435 / 2004 Coll., on Employment, as amended, and Article II (3) and (4) of Act No. 206 / 2017 Coll., amending Act No. 435 / 2004 Coll., on Employment, as amended, and other related laws |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 25.02.2022 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Legal Areas:
Labour relations
Labour law
Public Contracts 1
Objednávka - kontroly systému vytápění budov
Oderská městská společnost, s.r.o.
Ing. Bohdan Svozil
68 970 CZK
16.06.2023
Source:
Hlídač státu
(CC BY 3.0 CZ)
The regulation text is for informational purposes only.
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