The Constitutional Court found No 291 / 2008 Coll.
The Constitutional Court's finding of 29 January 2008 on the application to declare unconstitutional the provisions of § 57 paragraph 5 of Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended by Act No. 230 / 2006 Coll.
Valid
The Constitutional Tribunal found
Text versions:
19.08.2008
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 29 January 2008 in plenary in the composition of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimir Krórek, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the Supreme Administrative Court pursuant to Article 95 (2) of the Constitution of the Czech Republic to declare the anti-constitutional provisions of § 57 (5) of Act No. 337 / 1992 Coll., on Tax Administration and Charges, as amended by Act No. 230 / 2006 Coll.,
as follows:
I. Paragraph 57 (5) of Act No 337 / 1992 Coll., on the administration of taxes and charges, as amended by Act No 230 / 2006 Coll., was contrary to Articles 1, 11 (1), 36 (1) and (2), 37 (3) of the Charter of Fundamental Rights and Freedoms and Articles 6 (1) and 13 of the Convention on the Protection of Human Rights and Fundamental Freedoms.
II. The remainder is rejected.
Reasons
Definition and recap of the proposal
1. On 5 October 2006, the Constitutional Court received the application of the Supreme Administrative Court to declare the inconstitutionality of the provisions of § 57 (5) of Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended by Act No. 230 / 2006 Coll., ("the contested provision").
2. The appellant did so after, in the context of its decision-making activities in accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 48 (1) (a) of Act No. 150 / 2002 Coll., the Administrative Court concluded that the provisions of Article 57 (5) of Act No. 337 / 1992 Coll., on the administration of taxes and charges, as amended by Act No. 230 / 2006 Coll., to be applied in the resolution of sp. zn. 2 Afs 108 / 2005, are contrary to Articles 1, 36 and 37 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter).
3. In that case, sp. zn. 2 Afs 108 / 2005, the Supreme Administrative Court is decided on the complaint of the complainant Ing. J. N. against the judgment of the Regional Court in Hradec Králové of 20.1.2005, sp. zn. 31 Ca 115 / 2004. This judgment dismissed his action against the decision of the Financial Directorate in Hradec Králové of 9.3.2004 No 6828 / 150 / 2003- Sj. which rejected the complainant's appeal against the decision of the Financial Office in Pardubice of 20.8.2003 No 149179 / 03 / 248940 / 2632. This decision was the invitation to pay the tax arrears by the guarantor according to the provisions of § 57 paragraph 5 of Act No. 337 / 1992 Coll., on the administration of taxes and charges, in the amount of CZK 274 084.
4. The Supreme Administrative Court suspended the proceedings in question and submitted a motion to the Constitutional Court to declare the unconstitutionality of the contested provision. The opening of its proposal points out that the application for annulment of the provisions of § 57 (5) of Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended by Act No. 230 / 2006 Coll., has already been submitted to the Constitutional Court in the case under sp. zn. 7 Afs 116 / 2004. However, the procedure for this proposal was terminated by the Constitutional Court by a resolution of the plenary of 11.7.2006 sp. zn. Pl. ÚS 30 / 05 (not published), by reference to the provisions of § 67 (1) of Act No. 182 / 1993 Coll., since the Constitutional Court, when examining the proposal in question, found that Parliament of the Czech Republic had adopted Act No. 230 / 2006 Coll., amending Act No. 89 / 1995 Coll., on State Statistical Service, as amended, and other related laws on 25 April 2006. This law also amended Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended. The Act also annulled the draft contested provision § 57 (5) of the Act (cf. Part Five, Article V (10) of Act No. 230 / 2006 Coll.) and amended the liability institution in the provision § 57a substantially different from the contested - and deleted - provision § 57 (5) of Act No. 337 / 1992 Coll. '. The Supreme Administrative Court then points out that this decision of the Constitutional Court did not create an obstacle to the case decided, as that would only have occurred in the case of a decision given in the form of a finding. It also argues in support of its conclusion that the Constitutional Court was in the proceedings for the present application and is also entitled to assess the constitutionality of the contested provision on the basis of the direct application of Article 95 (2) of the Constitution.
5. Furthermore, the Supreme Administrative Court also states in the application - with reference to the arguments already used in the application before the Constitutional Court under the sp. zl.
6. The guarantor's obligation to pay the tax arrears for the tax debtor constitutes a serious interference with its subjective rights. The question of the protection of these rights has already been dealt with by the Constitutional Court many times in its decisions and according to its constant case law, the appeal under the provision cited must always be examined by the competent general court under the administrative justice regime, since by refusing judicial review, the party to the administrative proceedings would remain without judicial protection, thereby violating its constitutional fundamental right under Article 36 (1) and (2) of the Charter. In the sense of the Constitutional Court, it is primarily from the constitutional legal aspects and requirements arising from the protection of constitutionality that the scope and manner of judicial control of administrative acts of coercion (NB: sic) should be given sufficient and significant attention, as well as the necessary refusal of their judicial review to a sufficiently convincing manner.
7. The Law on the Administration of Taxes and Taxes limits the number of participants to Article 14 of Act No. 71 / 1967 Coll., on Administrative Procedure (Administrative Order), so that not all persons affected by their rights and whose rights are being dealt with or whose rights may be affected by administrative decisions are parties and can effectively defend their rights. The Law on the Administration of Taxes and Fees lists in Section 7 the persons involved in the proceedings, which are the employees of the tax administrator, tax entities and third parties. While the rights and obligations of both the tax administrator and tax entities can be enumerated by law, the procedural status and the rights of third parties in the procedure, which is mainly ex offo, are often not further regulated at the final stage of the procedure, as is the case with the legal guarantor. Some third parties may be directly affected by, for example, their ownership law, others having direct interference with their rights, perhaps only in a level of theory and reflection (expert, witness, etc.), because they are not burdened by tax obligations, but have only non-monetary obligations.
8. Under Paragraph 57 (1) of the Law on the Administration of Taxes and Duties, the guarantor has essentially the status of a tax debtor and is prosecuted by the tax liability under its own property damage, whereas no other third party is granted such status by the law. However, the only authorisation granted to the guarantor under paragraph 5 of that provision shall be the right to appeal to a limited extent against a request for payment of the tax arrears, at the stage at which the tax obligations have already been definitively decided. The tax administrator treats the guarantor as a "party to the proceedings', i.e. that he imposes obligations on him and admits to a very limited extent the rights (the right of appeal, stating the reasons for which he has not initiated the procedure, in which he has not granted him any procedural position in which he has not dealt with him, and has only added the guarantor to the tax proceedings at the time of failure by the tax authority.
9. The guarantor is not a party to the evaluation procedure and only if the taxpayer fails to comply with his tax obligations is obliged to pay the tax arrears, and it cannot be excluded that there may be cases where the taxpayer has been set in breach of the law. However, the possibility for the guarantor to object to this decision in administrative proceedings and, consequently, also in review proceedings in court, is limited to the reasons set out in the third sentence of Paragraph 57 (5) of the Law on the Administration of Taxes and Duties, although that decision imposes an obligation for him to fulfil his duties as a taxpayer.
10. Although the guarantor essentially has the same obligation as the taxpayer to pay the tax charged, the conditions for the application of the right are incomparably more limited. The law thus confers different rights on the taxpayer and the guarantor, without giving any substantive grounds for it, and the fact that it has become a guarantor cannot in any way affect the law. The rules in force with respect to the guarantor completely disregard the procedural arrangements for his position in the assessment procedure, as they do not allow him to participate in the procedure which he is not aware of, and for the first time imposes obligations with a minimum guarantee of enforcement rights.
11. In addition to the Supreme Administrative Court, it states that the new legal regulation implemented by Act No. 230 / 2006 Coll., is not, in principle, of a more constitutional legal quality, and sets out, in support of such conclusion, arguments (arg.
Recital of the essential parts of the party's observations
12. Pursuant to Articles 42 (4) and 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), the Constitutional Court sent the motion in question to the Chamber of Deputies. In his observations of 4 January 2008, the President of the Chamber of Deputies of the Parliament of the Czech Republic, Ing. Miloslav Vlček, recap the process of adopting Act No. 337 / 1992 Coll., pointed out the amendment made by Act No. 230 / 2006 Coll. (whose process of adoption was also summarised) and expressed the view that the legislature acted in both cases in accordance with the legal procedure and in the belief that the laws adopted were in accordance with the constitutional order and the legal order of the Czech Republic. The President of the Chamber of Deputies has agreed to abandon the oral procedure.
13. Pursuant to Articles 42 (4) and 69 of the Constitutional Court Act, the Constitutional Court sent a proposal to the Senate of the Parliament of the Czech Republic. In his observations of 3 January 2008, his chairman, MUDr. Premysl Sobotka, testified to the opinion expressed by the appellant that even the new regulation, which was incorporated into the Law on the Administration of Taxes and Fees under Act No. 230 / 2006 Coll., did not deal with the above-mentioned problem sufficiently, in particular as regards the position of guarantor as a so-called third party, and is likely to have similar problems in the future as the previous one. In theory, the concept of control of constitutionality constitutes a logical whole, as it cannot be held that the Constitutional Court, as far as the repeal of legislation is concerned, can only be formally endowed with the power to repeal the provision or regulation in its "last 'approved text. However, it can be concluded from practice that the application of the provisions of Sections 66 and 67 of the Law on the Constitutional Court in connection with the institution of the suspension of proceedings within the meaning of Article 95 (2) of the Constitution, or pursuant to Section 109 (1) (c) of the Civil Code, causes from time to time difficulties in its implementation, but which can in many cases rather be attributed to the urgent changes to the rule of law. However, those circumstances, which cannot more or less affect the persons concerned, should not be at their expense.
Derogation of the contested legislation
14. Paragraph 57 (5) of Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended by Act No. 230 / 2006 Coll., reads: "The tax arrears are also liable to be paid by the guarantor if the law imposes liability on them and if they are invited by the tax administrator to fulfil this payment obligation. The guarantor may appeal against this call. In the appeal, the guarantor may object only to the fact that he is not the guarantor or that the guarantee has been applied to a greater extent than the legal scope laid down or that it has already been paid. '
Assessment of the jurisdiction of the Constitutional Court to discuss the application and the conditions for the applicant's active legitimacy
15. The Constitutional Court had first to answer the question whether it was responsible for the substantive examination of the application, since the appellant did not seek to abolish the contested provision, but merely to state its unconstitutionality. Such petit of the submitted proposal was a logical consequence of the fact that Parliament of the Czech Republic adopted on 25 April 2006 Act No. 230 / 2006 Coll., amending Act No. 89 / 1995 Coll., on the State Statistical Service, as amended, and other related laws, which also amended Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended. That law also annulled the draft contested provision § 57 (5) of that law (cf. Part Five, Article V (10) of Act No. 230 / 2006 Coll.) and amended the liability institution in the provision § 57a partly different from the contested - and deleted - provision § 57 (5) of Act No. 337 / 1992 Coll. However, the contested provision, as it was before the amendment of Act No 230 / 2006 Coll. was applied in the present case, thus also in the appeal proceedings, the application of that provision will have to be reviewed, and therefore the Supreme Administrative Court referred to the Constitutional Court pursuant to Article 95 (2) of the Constitution.
16. In this context, the Constitutional Court refers to the finding of sp. zn. The Constitution shall examine the constitutionality of the contested provision as a matter of principle, even if it has already been repealed (amended), on condition that the public authority and not the private law body are the addressee of the alleged reason for the unconstitutionality. Since the public authority is the addressee of the alleged reason for unconstitutionality in the present case, in the context of the opinion expressed in sp. zn. As regards the earlier order of the Constitutional Court, sp. zn. Pl. ÚS 30 / 05, the Constitutional Court, by consensus with the Supreme Administrative Court, states that, in view of the provisions of § 35 (1) of the Law on the Constitutional Court, does not constitute an obstacle to rei iudicatae.
17. The proposal of the Supreme Administrative Court, as mentioned above, is related to its decision-making activities and is therefore the competent appellant pursuant to Article 95 (2) of the Constitution; the conditions of the applicant's active legitimacy for the standard control procedure are also fulfilled.
Content compliance of the contested legal provisions with the constitutional order
18. The Supreme Administrative Court in the submitted application contested - from the point of view of the alleged unconstitutionality - the provision of § 57 (5) of Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended by Act No. 230 / 2006 Coll., as a whole. The contested provision is structured in three sentences containing three distinct legal standards and their constitutionality should therefore be assessed separately in view of their content.
19. The sentence of the first contested provision states that "The tax arrears are also liable to be paid by the guarantor where the law imposes liability on them and where they are invited by the tax administrator to fulfil that payment obligation. '
20. From the arguments of the Supreme Administrative Court, it cannot be reliably concluded that the unconstitutionality of that part of the contested provision is found to be unconstitutional. It is even doubtful, in a sense, whether the parties to the unconstitutionality of the first sentence (as well as the second sentence) of the contested provision are at all argued in the proposal and whether only the sentence of the third contested provision is found to be unconstitutional (this follows, for example, from the content of point VI of the proposal). However, this provision as a whole is expressly contested in the petition, and the Constitutional Court is bound in its decision by the petition, not by its justification.
21. The Constitutional Court finds that the legal rule enshrined in the sentence of the first contested provision provides in itself only that the tax arrears are also liable to be paid by the guarantor if the law imposes a liability on them and if they are called upon by the tax administrator to fulfil that payment obligation, that is to say the very nature of the guarantee institution. Therefore, the provision of Paragraph 57 (5) of the First Law No. 337 / 1992 Coll., on the administration of taxes and charges, as amended by Act No. 230 / 2006 Coll., is not unconstitutional. It is only the result of the entire legal concept (which consists of several legal provisions), according to which the tax guarantor is not a party to proceedings with the tax entity with the same rights and possibilities of procedural defence as the tax entity. That legal concept was not contested by the appellant before the Constitutional Court and therefore the Constitutional Court could not deal with its unconstitutionality.
22. The same conclusion can also be reached in relation to the alleged unconstitutionality of the sentence of the second contested provision "The guarantor may appeal against this call." since it is a legal standard which stipulates the protection of the tax guarantor's rights in proceedings before administrative authorities, which is also a prerequisite for possible protection from administrative courts.
23. In relation to the sentence of the third contested provision, according to which "In the appeal, the guarantor may object only to the fact that he is not a guarantor or that the guarantee has been applied to a greater extent than the legal scope laid down or that it has already been paid ', this is essentially a different case. The Constitutional Court (which is not bound in its decision by the reasoning of the proposal, which is of importance given the content of the statement of reasons for the proposal in question) considered, in particular, whether the standard establishing the restrictive scope of the facts which the guarantor may object to in the appeal is contrary to the constitutional order, namely Article 36 (1) of the Charter, according to which" Everyone may seek the law established by the procedure of his or her own right in an independent and impartial court and, in specified cases, in another institution. "
24. The Charter lays down the right of everyone to seek protection of their rights in a court or other body. The purpose and purpose of this provision is to lay down the obligation of the State to grant protection to everyone, since there cannot be a situation in a legal State in which the right-holder cannot obtain protection (in a court or other institution). It is based in general on the fact that the state is here to protect its citizens, but also those who reside in its territory, to guarantee that their rights are protected.
25. Paragraph 4 of Article 36 of the Charter (to which paragraph 1 of Article 36 of the Charter of Texts refers) refers, although it refers to a law which regulates "conditions and details" in relation to all previous paragraphs of Article 36 of the Charter, such a law, issued on the basis of constitutional authority, is bound by the provision of Article 36 of the Charter, so it cannot derogate from its content (it is thus irrelevant to argue that the key aspect of the constitutional conformity of such a law is, or the degree of refusal of such constitutional rights by the legislator, etc., as argued, for example, Supreme Administrative Court in sp. zn. 2 Afs 51 / 2004:... "constitutional courts arising from Article 36 (1) of the Charter of Fundamental Rights and Freedoms and Article 1 (1) However, the Constitution does not allow the tax guarantor to be so widely denied the right to an effective defence of his subjective public rights..."). The purpose and purpose of the "ordinary" law referred to in Article 36 (4) The Charter is merely to determine the conditions and details of implementation as to their content (already) by the legislator in Article 36 of the Charter of anchored rights, that is, conditions and details of a purely procedural nature (not "material law ').
26. Where everyone has, pursuant to Article 36 (1): The Charter of the right to seek the protection of its rights in a court or other body, with the conditions and rules governing the exercise of that right laid down by law, such a law, issued on the basis of a constitutional mandate, cannot deny anyone's right to seek the protection of their rights in a court or other body in which the situation is completely negligent and thus a constitutionally guaranteed fundamental right, even in certain cases. Article 36 (1) Each Charter is constitutionally guaranteed the possibility of seeking protection of its right in a court or other body in all situations of infringement (there is no constitutional restriction). In other words, no person can be completely excluded by law from the possibility of seeking protection of his right, even if only in a specific case, since his right under Article 36 (1) of the Charter would be annulled. The opposite interpretation would also imply that the laying down of everyone's right to appeal to judicial and other bodies of protection for the protection of their rights by the legislator, i.e. with the highest legal force, would in fact lose meaning, since for the one for which the infringement situation could be annulled by the will of the 'ordinary', a subordinate legislator.
27. As regards the case under consideration, it should first be noted that the Law on the Administration of Taxes and Fees in the then-amended version (i.e. until the amendment made by Act No 230 / 2006 Coll.) sets out the primary obligation to pay the tax to the tax entity to which the payment notice itself is also delivered and only then sets the payment obligation to the guarantor. Thus, in addition to the debtors themselves, the tax arrears are obliged to pay the tax arrears, as well as the guarantor, provided that the law imposes liability on them if they are invited by the tax administrator to fulfil this payment obligation. It is a special legal guarantee institution governed by the public regulation method, the implementation of which, provided that a particular person demonstrates the status of legal guarantor, requires only a call by the tax administrator in relation to the person who is legal guarantor. However, the tax guarantor is not a party to the tax proceedings from the outset, with the same rights and possibilities of procedural defence as the tax entity (Paragraph 7 (2) of the Tax and Charges Act is even incorporated among "third parties" in the same position as the witness, expert, etc.). The guarantor shall not receive a payment notice or any other decision which has imposed the tax on him for direct payment. It is only by serving the "guarantee notice 'under the contested provision that tax proceedings begin for the tax guarantor, but at the same time by delivering it is already in the position of the body to which the payment obligation is imposed. The" guarantee call' is therefore a decision by which the obligation to pay the tax arrears to the guarantor is transferred, it is a decision which has material legal consequences, as it already states for certain that all the legal conditions for the guarantor to take the place of the original debtor have been fulfilled and it bears witness to the position of the taxpayer with all the consequences, which means that the debt can be recovered. The actual content of the call (decision in the material sense) is not affected by the inaccurately chosen label by its legislator, i.e. the "challenge '(and not the buyer).
28. Similarly, the Constitutional Court argues in its caselaw on the nature of the customs guarantee, which is also applicable to the position of guarantor in tax proceedings. The Constitutional Court noted, for example, in the judgment in Case C-445 / 2000 ÚS 445 / 2000 (ECR 23, paragraph 136) that "a call made by a customs authority within the meaning of Article 73 (1) of the Act No. 337 / 1992 Coll., addressed to a debtor who has not paid a customs penalty due within the legal period and which is called upon to pay a penalty within the period of reimbursement, is the first procedural step of the authority implementing the recovery of the customs default and is therefore of a procedural nature. Until now, the conclusions of the Court can be entirely accepted. The administrative court, for the same purpose, to which the appeal is addressed also to the guarantor, imports the same procedural nature of the call addressed to the guarantor. However, that conclusion of the court fails the mandatory provisions of § 32 paragraph 1 of Act No. 337 / 1992 Coll. Under that provision, the tax and the provisions of Section 320 of the Customs Act and the customs procedure may impose obligations or confer rights only by decision. However, unlike the debtor who had previously been obliged to pay the debt by decision of the customs authority, such an obligation was not laid down in relation to the guarantor by decision of the customs authority before the call was made. The guarantor's own statement in the guarantee instrument, even though its acceptance by the customs authority has been confirmed by a decision, cannot have the nature of the decision imposing an obligation within the meaning of Article 32 of the Act cited above, since the guarantor's obligation to pay the debt for the debtor - as evidenced by the very nature of the guarantee institution - is only updated if the debtor himself fails to comply with his debt in a timely and proper manner, when the debtor is informed by a call addressed to the guarantor that the debtor, whose duty to pay the guarantee has been paid, has not fulfilled his debt at a specific level. It is only by this call to the designated guarantor - as the content of the call in question suggests - that the obligation to pay the arrears is imposed within the prescribed period, at a specific amount for the debtor who did not pay it himself within the specified period. Only this call, despite its designation, can be regarded as a decision given within the meaning of the provisions of § 32 (1) of Act No. 337 / 1992 Coll., which is thus in proportion to the guarantor in the enforcement of the arrears of the execution title, and for this reason it should be considered as a material decision. '
29. It is only by delivering a "guarantee call 'setting out the obligation to pay the tax guarantor that tax proceedings are to begin for the tax guarantor and only from that time can the guarantor effectively exercise its procedural rights and thus protect its substantive rights.
30. However, as far as the content of these rights is concerned, it is crucial that the contested provision in the third sentence limits the substantive scope of the facts which the guarantor may object to in the appeal by means of an exhaustive list; the guarantor may, in appeal, object to the "guarantee call 'only" the fact that it is not the guarantor or that the guarantee has been applied to a greater extent than the legal scope laid down or that it has already been paid'.
31. Such a restriction does not change even in administrative or judicial practice the often applied extensive interpretation of these facts, which allows them to include some of the circumstances of the literal text unverifiable; Even with the applicability of extended interpretation, the restriction on the appeal of applicable objections remains. The opposite interpretation could not be accepted by applying the rule of constitutionally conformistic interpretation (in the event that the unconstitutionality of the cited restriction of appeals is brought to light), since - as is the case with the case law of the Constitutional Court (as well as professional teaching) - this rule is applicable only in a situation of double (or multiple) possible interpretation of the law (otherwise it would no longer be a logical interpretation of the law but of the creation of the law, and the derogatory power of the Constitutional Court would generally be superfluous if each law could be "interpreted" constitutionally conformally). In the case at hand, it can naturally be inferred from the fact that the legislator limited the scope of the applicable objections to the three explicitly mentioned conclusion in contrast, i.e. that it did not actually impose any restrictions. Then the use of a taxa list by the legislator would lose any reasonable sense. Moreover, the opinion on the limited factual extent of the facts which the guarantor may object to in the appeal is based on the consistent practice of administrative authorities, administrative courts (cf. also the observations made by the Supreme Administrative Court in the application) and the Constitutional Court.
32. The necessary logical context is also an identical limitation of the material scope of the applicable objections in proceedings before the administrative court. A decision by an administrative authority in the part of the refusal to deal in a substantive way with non-classified objections under the statutory provision cited could not be challenged by the Court of Justice, since the opposite procedure of the administrative authority would be contrary to a legal imperative and would also be replaced by a substantive review of those objections by the administrative court itself. Moreover, the practice of the administrative courts (including the Supreme Administrative Court) also testifies to this, and even in the application in the present case, the Supreme Administrative Court is thus argued ("The possibility of the guarantor to object to this decision in administrative proceedings and, consequently, also in the review proceedings in the court, is limited to the reasons set out in the last sentence of Paragraph 57 (5) of the Law on the Administration of Taxes and Fees... ').
33. It cannot therefore be concluded that, in the contested provision of the third sentence, the legislature annulled the right of the guarantor to seek the protection of his rights in a court or other body in all cases, with the exception of the three expressly mentioned, and thus denied the constitutional guaranteed fundamental right in such cases. In the case of tax guardians who would like to seek protection of their right claiming that they had been infringed other than that they would have been obliged to pay the tax arrears, even if they were not a guarantor, the liability was applied to a greater extent than the legal scope or had already been paid, thus, in accordance with the legislator's procedure, the exclusion of that category of entities from the right to seek protection of their right in a court or other body. The guarantor clearly cannot, according to the provisions of Paragraph 57 (5) of the Third Law on the Administration of Taxes and Duties at the time, object to, for example, facts affecting the substance and the amount of its duty, so that, as the Supreme Administrative Court in this proposal rightly suggests, the tax should not have been fixed (the tax debtor at all), it should have been set at the wrong amount, etc. The intention of the (non-constitutional) legislature was obviously to impose such a restriction on the appeal against the "guarantee notice ', which had already taken place, and thus essentially informally dealt with twice.
34. The Constitutional Court has no choice but to state that such action by the legislator is inconsistent with the constitutional order. Paragraph 57 (5), third sentence, of the Law on the Administration of Taxes and Fees, in its then version, is contrary to Article 36 (1) of the Charter.
35. That finding is particularly true in a situation where the guarantor seeks protection not only of "ordinary 'law but of fundamental rights, namely the right to use property peacefully (which is subsummable under Article 11 (1) of the Charter - for example, the finding of a sp. zn. III. The obligation to pay the tax arrears constitutes an intervention into the guarantor's property sphere, as it degrades it by the amount of its assets, i.e. the amount it will be obliged to pay. The tax obligation (or the collection of the tax itself) is considered to be an interference in the right to use property peacefully (cf. Article 1 (1), first sentence, of Protocol 1 to the Convention on the Protection of Human Rights and Fundamental Freedoms:" Any natural or legal person has the right to use his property peacefully. "), as well as in the case law of the European Court of Human Rights (cf. Judgment of 9 November 1999 in the case of Spacek v v Czech Republic), and thus constitutes an infringement of the fundamental right of the guarantor to use property peacefully in accordance with Article 11 (1) of the Charter.
36. Paragraph 57 (5) of the Third Law on the Administration of Taxes and Duties in the then version of the Constitutional Court finds it unconstitutional even in the context of Article 13 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention"), according to which "Everyone whose rights and freedoms have been violated by this Convention must have effective remedies before the national authority, even if the infringement has been committed by persons in the performance of official duties."
37. The obligation to pay tax (i.e. tax arrears) is eligible in which case to be contrary to Article 1 of Protocol 1 to the Convention and therefore in accordance with Article 13 The conventions must have effective remedies before the national authority for anyone whose right has been infringed, i.e. the tax guarantor.
38. However, in the light of the third sentence of the contested provision, the rule of law does not contain an effective remedy in respect of the infringement of the right of the tax guarantor to the peaceful use of property, since, by way of appeal against a "guarantee notice ', only the content of the claim on the breach of the right of the guarantor can be assessed in substance by imposing an obligation to pay a tax arrester, even if it is not a guarantor, the liability has been applied to a greater extent than or has already been paid, and thus only such infringement of the right of the tax guarantor under Article 1 of Protocol 1 to the Convention can be adequately remedied. In other words, by virtue of Article 57 (5) of the Third Act on the Administration of Taxes and Fees in the then version, an appeal cannot be effectively remedied in all situations of breach of the right of the guarantor to the peaceful use of property, and such an instrument cannot therefore be regarded as" effective' within the meaning of Article 13 of the Convention, but it cannot be concluded that the contested provision of the third sentence is also contrary to the cited article of the Convention.
39. The Constitutional Court also considers that the contested provision of the third sentence is contrary to Article 36 (2) of the Charter, according to which "Who claims to have been shortened on his rights by a decision of a public authority may refer the court to examine the lawfulness of such a decision, unless otherwise provided for by the law. However, the review of decisions concerning fundamental rights and freedoms under the Charter shall not be excluded from the jurisdiction of the court. '
40. The Charter has adopted the principle of general judicial review of administrative decisions which means that all administrative decisions are judicial, unless the law excludes them from such review; The purpose is a more effective guarantee of the legality of the public administration activity (rather than on the basis of the principle of the nominal and therefore more limited judicial review). The legislator reflected here the necessity of the executive control rule - in which, although it is incumbent on it to intervene authoritatively in the legal sphere of natural and legal persons, there are no elements of independence, etc. - of independent judicial power. It is, therefore, essentially the protection of the subjective public rights of everyone (provided by an independent judicial authority), that is to say, the protection against (illegal) interference by the public administration, which also differs from the previous general paragraph of Article 36 of the Charter, which guarantees everyone the right to seek protection of rights other than those of the public body, and thus does not constitute protection against interference only by the public authority, but also by natural or legal persons.
41. Although the legislature, in the sentence of the second provision cited, delegates to the legislature an exemption from the review of administrative decisions by the court, such constitutional authorisation is limited in that a judgment on fundamental rights and freedoms guaranteed by the Charter must not be excluded from the judicial review power. The Constitution clearly reflected the different relevance of fundamental rights and freedoms and "ordinary 'rights and freedoms; the greater rights are protected logically by their different nature.
42. In the present case, as has already been imported from above, the decision on the obligation to pay the tax arrears (that is, in the case of a "guarantee call 'and the decision on appeal) concerns the fundamental rights of the guarantor (right to use property peacefully); the legal exception to the rule is therefore not allowed by the legislator.
43. The conclusions referred to in Article 36 (1) and (4) of the Charter are identical in relation to Article 36 (2) of the Charter, i.e. the law laying down "conditions and rules" in accordance with Article 36 (4) The Charter may not derogate from the content of Article 36 (2) of the Charter. If, therefore, everyone has, pursuant to Article 36 (2): The Charter of the right to judicial review of decisions of public authorities relating to fundamental rights and freedoms, with the conditions and rules governing the exercise of that right laid down by law, such a law, issued on the basis of a constitutional mandate, cannot completely negate anyone's claim, even in certain cases only, and thus, a constitutional fundamental right in such situations. Article 36 (2) The Charter is not permitted by the law, and there is no restriction on the right to judicial review of decisions concerning fundamental rights and freedoms.
44. The logical consequence - as was also imported above - of the limited factual extent of the facts which the guarantor may object in the administrative proceedings under the contested provision of the third sentence is the same limitation of the applicable objections before the administrative court.
45. It cannot therefore be concluded that the contested provision, which implies also the limitation of the substantive scope of the objections before the administrative court, is - consistently speaking - also contrary to Article 36 (2) of the Charter. In the third sentence of Paragraph 57 (5) of the Law on the Administration of Taxes and Fees, in its then wording, the legislature annulled the right of the guarantor to judicial review of decisions relating to his fundamental rights in all situations, with the exception of the three explicitly mentioned, and thus denied the constitutional guaranteed fundamental right in those cases. In the case of tax advisers who would seek judicial redress in the event that their fundamental right was infringed other than that they would be obliged to pay the tax arrears, even if they were not the guarantor, the liability was applied to a greater extent than the legal limit or had already been paid, thus, in accordance with the legislator's procedure, the exclusion of that category of entities from the law under Article 36 (2) of the Charter.
46. Moreover, in a similar way, the third sentence of Paragraph 57 (5) of the Law on the Administration of Taxes and Fees is contrary to Article 6 (1) of the Convention, since the requirement that everyone whose civil rights or obligations are concerned must be guaranteed access to the Court is not fulfilled.
47. The Constitutional Court also assessed whether the contested provision was contrary to the constitutional principle of equality.
The constitutional principle of equality enshrined in Article 1 of the Charter, according to which people are free and equal in dignity and rights, and complementary to Article 3 of the Charter as a principle of non-discrimination in granted fundamental rights, is interpreted by the Constitutional Court in its caselaw from a dual perspective [for example, the findings of sp. zn. The first is due to the requirement of the legislature to rule out the libel in the procedure of differentiating groups of entities and their rights, and the second to the requirement of the constitutionality of the aspects of differentiation, i.e. the inadmissibility of a fundamental right and freedoms by the legislator.
48. By delivering a request to pay the tax arrears by the guarantor, the guarantor is in the same position as the tax debtors whose tax arrears are guaranteed. It is obliged to pay the outstanding tax arrears of the tax debtor to the extent of its liability, that is to say the same obligation as the tax debtor, including the possibility of the tax execution of its assets being affected. It can thus be argued, as the Supreme Administrative Court states in the submission, that the guarantor has essentially the status of tax debtor within the meaning of Article 57 (1) of the Law on the Administration of Taxes and Taxes. On the other hand - unlike the tax debtor, who was already a party to the evaluation procedure in which he could fully protect his rights, to raise any objections - the contested provision allows the guarantor to protect his rights only to a very limited extent in substance by establishing a taxa in the appeal against the "guarantee challenge 'of the applicable objections.
49. However, on the basis of the principle of equality, if the guarantor is to have the same obligation as the debtor - that is to say, the obligation to pay tax arrears, thus reducing the property as well as the debtor by paying the tax - no reason can be found to justify the inequality in access to the tax debtor and the guarantor as described above (they have a diametrically different means of defence from the same obligation - the extent of the objections raised by the tax guarantor against the decision on tax liability in relation to his person is substantially limited). The Constitutional Court therefore concludes that the contested provision, in its consequences, produces an unjustified inequality between the entities subject to tax. While the postulate of equality does not imply a requirement of general equality between everyone and everyone, it implies a requirement that the law does not, without justification, favour or disadvantage one over another. In the present case, it is common ground that the requirement to grant the same rights under the same conditions without unjustified differences is not respected by the contested provision, since the legislature, without constitutional grounds, has significantly put the tax guarantor entities at a disadvantage.
50. The guarantee is not an institution that is only in tax proceedings, but is, on the contrary, a general institution of the whole rule of law, which is elaborated in detail primarily by private law theory and case law, whose roots are deep into the long past years and are permeated by Roman law tradition, seized and processed in different directions and schools during the reception of Roman law. The guarantee is therefore not from financial law and certainly not from the Czech Tax Code (cf. One of the fundamental principles of the private guarantee institution is that the guarantor can object to the creditor all the objections that the debtor would have against the creditor (§ 548 (2) of Act No. 40 / 1964 Coll., Civil Code). In this sense, the Constitutional Court also argued in its above-mentioned finding of sp. zn. II. ÚS 445 / 2000 (see above), when referring to the "substance of the guarantee institution '(under the public guarantee), as well as in the decision of page I of the ÚS 429 / 01 (ECR 34, p. 134):" The public law regime of liability for customs duties cannot completely eliminate the general principles of the obligation to legal relations... In fact, it should be recalled here that, in the modern legal concept, the line between public and private law is no longer as well understood as at the time before, so that private legal elements can often be traced in a legal relationship, in principle, by public law, and vice versa. "Furthermore, the Constitutional Court stated in the judgment in paragraph I. ÚS 643 / 06 (not yet published in the ECR, see http: / / nalus.ujud.cz):" by order of internal consistency and inconsistencies of the rule of law, the same legal institute (here guarantee) is required to mean the same, regardless of the sector of law in which it is currently applied. "Similar principles were based on the Supreme Administrative Court, or in the judgment in Case 81 / 2004, in which it stated that" the rule of law, based on the principles of unity, rationality and internal content, necessarily implies an imperative of the same view of comparable legal institutions, albeit adapted in different laws or even sectors. "In sp. zn. 5 Afs 138 / 2004 The Supreme Administrative Court stated that" An interpretation cannot be accepted that there is a substantial difference between public and private liability; This follows from the decision of the enlarged Senate of the Supreme Administrative Court (1 Afs 86 / 2004, next p. www.nsjud.cz).' If there is no restriction of the applicable claims by the guarantor in civil law where the contractual liability is applied, the logical argument and the maiori ad minus can be inferred that the more significant restriction of the applicable objections should not have a place in relation to the legal liability.
51. The Constitutional Court thus finds that, where the contested provision of the third sentence constitutes an unconstitutional inequality, it also conflicts with Articles 1 and 37 (3) of the Charter.
52. For the above reasons, the Constitutional Court concluded that the provisions of § 57 (5), third sentence, of Act No 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended by Act No 230 / 2006 Coll., were contrary to Articles 1, 11 (1), 36 (1) and (2), 37 (3) of the Charter, 6 (1) and 13 of the Convention, and therefore complied with the proposal of the Supreme Administrative Court under Article 95 (2) of the Constitution in this part. Having regard to Article 89 (2) The consequences of the unconstitutionality found by the public authorities are required to be reflected in their decision-making practice, i.e. not applying the provision when dealing with specific cases.
In the first and second sentences of Section 57 (5) of Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended by Act No. 230 / 2006 Coll., the Constitutional Court found no non-compliance with the constitutional order and therefore rejected the proposal to that extent.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 291 / 2008 Coll., as amended by Act No 230 / 2006 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 19.08.2008 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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