The Constitutional Court found no 291 / 1999 Coll.
The Constitutional Court found of 3 November 1999 on the application for annulment of part of the provision § 248 (2) (e) of Act No. 99 / 1963 Coll., Civil Code, as amended
Valid
The Constitutional Tribunal found
Text versions:
06.12.1999
291
FIND
The Constitutional Court
On behalf of the Czech Republic
On 3 November 1999 the Constitutional Court decided in plenary on the proposal of N. CZ, spol. s r. o., to abolish part of the provisions of § 248 (2) (e) of Act No. 99 / 1963 Coll., Civil Code, as amended, as follows:
1. The application for annulment of the provisions of § 248 (2) (e) of Act No. 99 / 1963 Coll., the Civil Code, as amended, expressed in the words "decision of the administrative authorities of a preliminary nature" is rejected.
2. The remainder is rejected.
Reasons
By decision - binding information from the Ministry of Finance - Directorate-General for Customs of 25 June 1998 No 5704 / 32- 1764 / 98 was included in the application of the complainant (applicant) N. CZ, spol. s r. o., concerning the tariff classification of the goods "Intact demosana vitamin C grape sugar - Compression-made sweets" (Intact Gmbh, Münster, Germany) under the subheading of Combined Nomenclature 1704 90 81 as compression-made confectionery.
By decision of the Ministry of Finance of 20 August 1998 No. 54 827 / 98, the decomposition submitted by N. CZ, spol. s r. o., was rejected and decisions - binding information from the Ministry of Finance - Directorate-General for Customs confirmed.
By order of the Supreme Court of Prague of 30 November 1998 No 7A 81 / 98- 18, proceedings against the defendant's decision of 20 August 1998 No 54, 827 / 98 were closed in the case of the applicant N. CZ, spol. s r. o., against the defendant by the Ministry of Finance. In the preamble to its decision, the Supreme Court in Prague stated in particular that, pursuant to § 248 (2) (e) of Act No. 99 / 1963 Coll., the Civil Code, as amended, the courts did not examine, inter alia, decisions of preliminary nature of administrative bodies. Such decisions include, for example, the adoption of a binding opinion, a decision on prior consent, so-called underlying decisions, etc., that is to say, decisions on which further decisions of a final nature are based, which are impacted on the rights and obligations of a particular entity. The Court of First Instance, on the basis of the action in question, only examines this decision of a final nature, while at the same time examining the legality of the earlier administrative decision on which the decision under review is based if the earlier decision was binding on them and if no specific procedure is laid down for its examination (Section 245 (1) EC). The Supreme Court in Prague also stressed that "the decision of the administrative authority to which binding information has been issued under Article 46 of the Customs Act is precisely such a decision of a preliminary nature, on which the final decision issued in the context of customs and tax proceedings will only be based 'and could therefore not discuss the action. The Supreme Court in Prague stated that it had to stop proceedings under § 250d (3) o. s., as" the action was directed against a decision which could not be subject to judicial review. "
In a constitutional complaint against this decision of the Supreme Court in Prague, the complainant stated in particular that the procedure of the Supreme Court in Prague infringed his fundamental rights and freedoms referred to in Articles 36 (2) and 37 (2) of the Charter of Fundamental Rights and Freedoms ("the Charter '). In his view, the Supreme Court in Prague also failed to comply with the provisions of Articles 90 and 95 of the Constitution of the Czech Republic (hereinafter referred to as" the Constitution') when it did not provide the complainant with the legal protection of the right to judicial review of decisions of a public authority. In assessing the opinion of the Supreme Court in Prague, the complainant also states that § 245 o. s.) relates to cases of so-called sub-summed administrative acts, whereas "binding information - written information on the tariff classification of goods, issued under § 46 (2) to (4) of the Customs Act, is undoubtedly a separate administrative decision of the public administration - Ministry of Finance of the Czech Republic, Directorate-General of Customs' and is therefore not a" underlying administrative act which the customs office would be obliged to obtain... '. In his view, a participant has the right to appeal against such a partial decision, or decomposition, and therefore "must be subject to judicial review, even if it is provisional in relation to the final decision of the public authority'.
Since, according to the complainant, there has been an intervention in the Constitution for a guaranteed right to judicial review of a decision of a public authority as a result of the fact that the Supreme Court in Prague has applied § 248 (2) (e) and § 248 (2) (e) CS - which also excludes from judicial review a decision of a preliminary nature which cannot be examined by a court under § 245 (1) CS and another possibility of such review by a court in the law is not given - it is contrary to Article 90 of the Constitution and Article 36 (2) of the Charter.
Therefore, the complainant proposed that the order of the Supreme Court in Prague dated 30 November 1998 No 7A 81 / 98-18 be annulled and, together with that, proposed that part of the provision of § 248 (2) (e) o. s.
By order of the First Chamber of the Constitutional Court of 30 March 1999, sp. zn. I. ÚS 48 / 99, the proceedings for a constitutional complaint under Article 78 (1) of Law 182 / 1993 Coll., on the Constitutional Court, (hereinafter referred to as the Law on the Constitutional Court) were suspended and the application for annulment of the provisions of the Law was referred to the plenary of the Constitutional Court for a decision under Article 87 (1) (a) of the Constitution.
The parties to the proceedings - Chamber of Deputies of the Parliament of the Czech Republic (Section 69 of the Law on the Constitutional Court), the Supreme Court in Prague and the Ministry of Justice (Section 48 (2), Section 49 (1) of the Law on the Constitutional Court) commented on the proposal.
In particular, the Chamber of Deputies stated that Article 90 of the Constitution together with Article 36 The Charter lays down the fundamental jurisdiction of the courts, which has a constitutional basis and constitutes the protection of subjective rights granted by the courts in the manner laid down by the law. This method of protection shall be laid down in the Rules of Procedure and in certain other provisions and shall be respected by anyone seeking protection of his right in the courts. Article 36 (2) The Charter includes cases where a public authority decides on a subjective right and anyone who claims to have been shortened by its decision may appeal to the court to examine the legality of such a decision. The legal proceedings provided for in Part Five CS are of a specific nature in these cases, since the administrative decision is reviewed only to the extent that it interferes with subjective law and only for the purposes of legality. Article 36 At the same time, however, the Charter allows for certain review decisions to be excluded on the basis of the exceptions laid down by the Act. The Chamber of Deputies pointed out that Article 248 (2) (a) of the Treaty makes use of this option, which provides a exhaustive list of the decisions of the administrative authorities for which judicial review is excluded and "judicial protection in these cases is denied to participants even where the decision has intervened in their rights and obligations illegally '. In accordance with that provision of the Charter, it is stated in the statement that, however, the jurisdiction of the court must not preclude a review of decisions relating to fundamental rights and freedoms under the Charter.
Following Article 95 (1) of the Constitution, which, inter alia, expresses the binding nature of the court by law, the Chamber of Deputies stated that even in cases where the text of the law is not entirely clear and allows various interpretations, it is not possible for the court to refuse to rule on the matter because of the ambiguity or incompleteness of the law. The Court must therefore apply the law on the basis of its own interpretation in such cases. The Supreme Court in Prague was also based on the classification of the decisions of the administrative authority to which binding information was issued under § 46 of the Customs Act as an underlying decision, i.e. a preliminary decision in an administrative procedure in relation to another administrative decision of a final nature. The Court of First Instance therefore only reviews this decision of a definitive nature following an action.
The application of § 248 (2) (e) o. s. by the Supreme Court in Prague, which decided on the basis of its interpretation and practice, has been designated by the Chamber of Deputies as a court procedure under Article 36 (2) of the Charter in respect of constitutional guarantees.
The Chamber of Deputies did not substantiate the reasons for the complainant's infringement of his fundamental rights and freedoms under Articles 36 (2) and 37 (2) of the Charter, together with Articles 90, 95 and 96 of the Constitution, since the Supreme Court in Prague merely took advantage of the possibility given to him by the law, i.e. it decided that the decision of the Ministry of Finance is excluded from the review under Article 248 (2) (e) (c) (d). This provision of the Civil Code, as amended by Act No. 519 / 1991 Coll., is therefore not contrary to the constitutional order of the Czech Republic or to the international treaties by which the Czech Republic is bound.
Law No 519 / 1991 Coll. was approved by the necessary majority of Members of the Federal Assembly on 5 November 1991, signed by the relevant constitutional authorities and duly declared.
The Chamber of Deputies expressed its view that the legislature acted in the belief that the law adopted was in line with the Constitution and the rule of law.
In its observations, the Ministry of Justice first of all pointed out the content of the constitutional complaint, which shows that the complainant seeks only the annulment of the part of the provision of § 248 (2) (e) o. s., which consists in the words "decision of the administrative authorities of a preliminary... nature '. The contested provision is, in the opinion of the Ministry of Justice, one of the legally defined cases, the so-called lockout, i.e. cases where courts do not examine decisions of administrative authorities. Such a legal possibility is provided by Article 36 (2) of the Charter.
In the view of the Ministry of Justice, the provision on the inadmissibility of judicial review of decisions of an administrative nature was included in the preliminary nature of the case precisely because "it is a preliminary decision, in other words, not a final one '. There is therefore no reason for the judicial review to be subject to a decision of an administrative authority of a preliminary nature when a judicial review of a final (de meritre) decision of an administrative authority is ensured by law. The Ministry of Justice therefore considers the contested legislation to be constitutional conformity, consistent with Article 36 (2) of the Charter.
The Supreme Court in Prague stated that "the legislation contained in that provision is not contrary to the Constitution, since cases where certain decisions cannot be subject to judicial review may be defined by law '.
Custom analysis
The complainant requests the annulment of part of the provision of § 248 (2) (e) o. s.
1. The Constitutional Court found from the report on the 18th Joint Meeting of the House of the People and the House of Nations of the Federal Assembly of the CSFR that on 5 November 1991 Act No. 519 / 1991 Coll., amending and supplementing the Civil Code and the notary Order, was approved by the necessary majority of Members in the House of Nations (for 88 Members, against no one, the vote abstained from 5 Members) and in the House of the People (for 91, against no one, the vote abstained from 6 Members). In the same entry, the editorial note refers to Resolution FS No 219, SN No 373, SL No 355. The law was then signed by the relevant constitutional authorities and duly declared in the Collection of Laws in the amount of 99 sent out on 18 December 1991.
2. A. In substance, the Constitutional Court notes that, when making decisions pursuant to Article 87 (1) (a) of the Constitution, it is based in particular on an examination of whether the contested provision complies with a constitutional law or an international treaty under Article 10 of the Constitution (so that its annulment is not necessary) or whether that provision is not constitutionally conformal. In that case, the Constitutional Court would have no choice but to repeal the contested provision.
In particular, the complainant contends (as can be seen from the content of the constitutional complaint) that the contested provision also excludes from judicial review a decision of a preliminary nature of administrative bodies which cannot be examined by the Court under Paragraph 245 (1) (a) and another possibility of examining such a judgment by the Court is not provided for in the law.
This view is not shared by the Constitutional Court.
In particular, the Constitutional Court examined whether § 248 (2) (e) o. s.
According to Article 90 of the first Constitution, the courts are called on to provide the protection of rights in the legal manner. According to Article 36 (2) of the Charter, those who claim to have been shortened on their rights by a decision of a public authority may appeal to the court to examine the legality of such a decision, unless otherwise provided for by the law.
It can undoubtedly be concluded that anyone seeking the protection of his or her subjective right in court must respect the legal method of his or her protection, which is generally regulated in Part Five of the o. s. s. It follows from § 244 o. s., that the courts examine the decisions of public authorities as long as they interfere with subjective rights. This is explicitly stated in § 244 (3) o. s., which refers to decisions taken in administrative proceedings and other decisions which establish, amend or revoke the authorisations of natural or legal persons. The subject of the review is only the legality of these decisions (§ 244 (2) o. o. s. s.). Article 36 (2) The Charter allows - subject to the jurisdiction of the Court of First Instance to exclude the review of decisions relating to fundamental rights and freedoms under the Charter - the possibility of exceptions to the general review of the proper jurisdiction. Some decisions of public authorities can therefore be excluded from the review by virtue of the exceptions provided for by the Act. The list of those decisions of the administrative authorities for which the judicial review is inadmissible is first and foremost enshrined in Section 248 (2). Among these exceptions, the decision of the administrative authorities of a preliminary, procedural or order nature, including the decision on order fines, shall also be mentioned under point (e).
B. A taxing list of decisions of public authorities whose decisions are not further examined by the courts therefore constitutes an exception (s) to the general rule expressed in the idea of the so-called (positive) general clause, that is to say the principle that anyone who claims to have been shortened on his rights by the decision of the public authority may refer to the court to examine the legality of such a decision (Article 36 (2), part of the sentence of the first Charter). These exceptions to the principle of the General Clause are only possible if the Charter of Conditions is respected. They assume that, under the jurisdiction of the Court, the review of decisions relating to fundamental rights and freedoms under the Charter (Article 36 (2), sentence two of the Charter), that the limits of fundamental rights and freedoms may, under the conditions laid down by the Charter, be governed by law only (Article 4 (2) of the Charter), and that, when applying the provisions on the limits of fundamental rights and freedoms, their substance and their meaning must be investigated, such restrictions being not misused for purposes other than those for which they have been established (Article 4 (4) of the Charter).
The exceptions to the general rule (from the so-called positive general clause) therefore provide for the constitution in Article 36 (2) of the last part of the sentence of the first Charter only on condition that the law so provides. This is the application of the so-called negative enumeration, i.e. the statutory list of exceptions to the review of decisions of public authorities granted by the court, provided that it is not a review of decisions concerning fundamental rights and freedoms under the Charter.
C. These considerations of a more general nature can be further specified (and supplemented) - as regards the limits of the so-called negative enumeration [expressed in particular in § 248 (2) (e) o. s.), taking into account Articles 4 (4) and 36 (2) of the Charter - as follows.
I. Article 4 (4) The Charter states that their substance and meaning must be investigated in the application of the provisions on the limits of fundamental rights and freedoms. The limits of fundamental rights and freedoms - as regards judicial review of decisions of public authorities - are given by:
(a) by the Charter itself, in the first sentence of Article 36 (2), in fine ("Who claims to have been shortened in his rights by a decision of a public authority, may apply to the court to examine the legality of such a decision, unless otherwise provided for by the law."),
(b) the Civil Code (i.e. the Law) in Sections 248 (1), (2) and (3), where the courts do not examine decisions of the administrative authorities.
The case at issue concerns the application of § 248 (2) (e) o. s., which excludes, inter alia, decisions of preliminary nature from judicial review. According to the Constitutional Court, the application of this provision (which creates a limit to the fundamental right of judicial protection under Article 36 of the Charter) is without prejudice to the substance and meaning of that fundamental right. This is because the right of a natural or legal person to judicial protection is sufficiently ensured by the fact that it is within the jurisdiction of the courts to review decisions of administrative bodies which are the nature of the final decision.
II. The second sentence of Article 36 (2) of the Charter states that, however, the review of decisions relating to fundamental rights and freedoms under the Charter must not be excluded from the jurisdiction of the court. This provision follows the first sentence of Article 36 (2) of the Charter. From the comparison of the two sentences of this paragraph, it can be considered that the second sentence of Article 36 (2) The Charter refers to fundamental rights and freedoms (under the Charter) other than the fundamental right to judicial protection; otherwise the exclusion of the right to judicial protection would always be contrary to the Charter, and the sentence of Article 36 (2) of the First Charter ("unless otherwise provided for by the law ') would not make sense.
The legislator undoubtedly intends to provide judicial protection - in the context in question - in principle. At the same time, however, in accordance with Article 36 (2) of the Charter in § 248 (2) CS, it calculates those decisions of the administrative authorities for which judicial review is excluded. It is therefore clear that Article 248 (2) (e) CS, which concerns, inter alia, a decision of a preliminary nature of administrative bodies, does not, to the extent contested, conflict with Article 90 of the Constitution and Article 36 (2) of the Charter.
Therefore, the Constitutional Court rejected the application for annulment of part of the provisions of § 248 (2) (e) of Act No. 99 / 1963 Coll., Civil Code, as amended, in the words "decisions of preliminary nature of administrative authorities'.
As regards the rest of § 248 (2) (e) o. s., which refers to the exclusion of decisions of a procedural or order nature of administrative bodies, including decisions on order fines from judicial review, those provisions were not applied by the contested decision. Therefore, to that extent, the application for annulment of that legal provision was rejected, since it was submitted by a person manifestly unauthorized [§ 43 (1) (c), § 74 of the Law on the Constitutional Court, arg. and minori ad maius].
President of the Constitutional Court:
JUDr. Kessler v. r.
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Regulation Information
| Citation | The Constitutional Court found no 291 / 1999 Coll., on the application for annulment of part of the provision § 248 paragraph 2 (e) of Act No. 99 / 1963 Coll., Civil Code, as amended |
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| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 06.12.1999 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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