The Constitutional Court found No 301 / 2021 Coll.
The Constitutional Court found of 22 June 2021 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
18.08.2021
301
FIND
The Constitutional Court
On behalf of the Republic
On 22 June 2021, the Constitutional Court decided under sp. zn.
as follows:
Motion denied.
Reasons
Subject matter and arguments of the appellant
1. On 14 January 2021, the Constitutional Court received a proposal from a group of 19 senators (hereinafter referred to as "the appellant ') to repeal Act No. 609 / 2020 Coll., amending certain laws in the field of taxation and certain other laws (hereinafter referred to as" the contested law') for a conflict with Articles 1, 50 (2), 51 and 52 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Articles 2 (2) and 4 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter'). At the same time, the appellant requested priority consideration of the proposal.
2. From the point of view of its content, the contested law, also referred to as the "tax package," in particular abolishes the so-called "super gross wage" and instead introduces taxation of the income of individuals at rates of 15 and 23 percent. Furthermore, the contested law increases the basic discount on the taxpayer to CZK 27,840 in 2021 and CZK 30,840 in 2022, also regulates the so-called catering flat rate as an alternative employee benefit and introduces accelerated depreciation of material assets.
3. The appellant requests the annulment of the contested law as a whole because of a conflict of law with the constitutional order. According to the appellant, the contested law was declared in the Collection of Laws without being issued in a constitutionally prescribed manner according to the rules of the legislative process. The appellant's objections are not aimed at the actual content of the contested law. The appellant sees that the contested law has been declared in the Collection of Laws despite the fact that it has not been signed by the President of the Republic (hereinafter referred to as "the President '), but has been returned to the Chamber of Deputies for a new vote and, moreover, it has not been signed by the President of the Chamber of Deputies, but only by its Vice-President.
4. In the absence of the President's signature of the contested law, the appellant specifically argues that the President cannot sign the law without returning it to the Chamber of Deputies. According to the appellant, the absence of the President's signature of the adopted law is possible only from a constitutional point of view if the President returned it to the Chamber of Deputies, pointing to Articles 51 and 52 of the Constitution. At the same time, the appellant points out that the President's signature of the adopted law is an essential formality.
5. The appellant further contends that the President's signature on the contested law is not absent because it was returned to the Chamber of Deputies. The appellant points to the President's letter of 28 December 2020 No. KPR 5479 / 2020, which was sent to the President of the Chamber of Deputies (hereinafter referred to as "the letter of 28 December 2020 '). According to the appellant, the President's letter of 28 December 2020 is a constitutional act containing the President's will to return the adopted law within the meaning of Article 50 (1) of the Constitution - the so-called suspensive veto. The appellant takes the view that this constitutional act is a manifestation of the will of the President to be assessed according to his content (§ 555 of Act No. 89 / 2012 Coll., Civil Code), of which, in the case of constitutional acts, the recording of negotiations is essential, in this case expressed in words which must be interpreted according to the intention of the appellant (§ 556 (1) of the Civil Code). According to the author, the intention of the President is clear from the statement - the President gives fundamental reservations to the contested law, which led him not to attach his signature to it and to return it to the President of the Chamber of Deputies for further action. In addition, the appellant adds that, if it is considered that every individual has the sense of an average person and the ability to use it with normal care and care, and that each person can reasonably expect it in legal proceedings (§ 4 (1) of the Civil Code), all the more so must be assumed in the case of a constitutional act of the President. According to the appellant, there is nothing that can change the fact that the President does not invoke Article 50 of the Constitution in his heading of 28 December 2020, which provides for his suspension theorem. Such a requirement is not regulated at constitutional or legal level. The appellant summarises that, if the contested law was declared in the Collection of Laws without the House of Deputies voting on it again (Article 50 (2) of the Constitution), there has been a manifest breach of the formalities attached by the Constitution to the legislative process.
6. According to the appellant, it does not change the fact that the President sent on 31 December 2020 an entry No KPR 5479 / 2020 (hereinafter referred to as "the letter of 31 December 2020 ') to the President of the Chamber of Deputies, in which he informs him of the intention expressed in his letter of 28 December 2020. The appellant points out that the act of declaring the law must be preceded by a formalised process, and therefore the subsequent judgments following the publication of the law can hardly heal the fundamental defects in its adoption. Moreover, the legislation of the legislative process does not even foresee that a written statement of the President's will to return the law could be amended or withdrawn.
7. In the context of the objection to the absence of a signature of the contested law by the President of the Chamber of Deputies, the appellant contests that in this case the contested law could have been signed by the Vice-President of the Chamber of Deputies. In fact, the representation in question is only possible in the event of serious reasons, and it is a question of whether such serious reasons could have even occurred when the President of the Chamber of Deputies spoke to the media until the end of 2020, and perhaps he has also done some actions on the matter. According to the appellant, it cannot be concluded that the President of the Chamber of Deputies may be represented by his Vice-President in the constitutional act of signature of the adopted law, as he wishes, when one of the legitimate exceptional obstacles is not prevented from signing it. The appellant is not aware that any of the legitimate obstacles to the President of the Chamber of Deputies in this act are being prevented. According to the appellant, the government "pushed" to declare the contested law and the signature of the Vice-President of the Chamber of Deputies seemed to be easier to measure.
8. In conclusion, the appellant summarises that, when both the President of the Chamber of Deputies and the President of the Chamber of Deputies were asked to sign the contested law and the President, who also returned the adopted law to the Chamber of Deputies, it is unsustainable that the contested law was declared.
Observations of the parties, the interveners and the President
9. In order to assess the case, the Constitutional Court called on the parties, the interveners and the President to comment on the application for annulment of the contested law.
Observations of the Chamber of Deputies and the Senate
10. The Chamber of Deputies, through its President, in its observations on the proposal, first briefly summarised the course of the legislative process which led to the adoption of the contested law. In particular, the Chamber of Deputies stated that the contested law was discussed in the Chamber of Deputies in this parliamentary term as Press No. 910 (Government proposal) at first reading on 7 July 2020 and was ordered to discuss the Budget Committee as a guarantee committee. The Committee on Budgets discussed the draft law on 9 September 2020 (Resolution No 910 / 1). The second reading of the draft law took place on 27 October 2020 and the amendments were processed as print No 910 / 2. The Guarantee Committee discussed the amendments after the second reading on 4 November 2020 and issued resolution No 910 / 3. The third reading of the draft law took place on 19 November 2020, the proposal was approved by the Chamber of Deputies. The Chamber of Deputies has passed the Senate bill, which returned it with amendments. The bill returned by the Senate was voted on in the Chamber of Deputies on 22 December 2020. The Chamber of Deputies adopted the bill as amended by the Senate.
11. Furthermore, on the objection to the signature of the contested law by the Vice-President of the Chamber of Deputies, the President of the Chamber of Deputies states that, pursuant to Article 30 (1) and (2) of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, the Vice-Presidents of the Chamber of Deputies represent its President on its instructions or in the designated order. In representing the President of the Chamber of Deputies, its Vice-Presidents shall have the rights and duties of the President. In this context, the President of the Chamber of Deputies states that by his decision at the beginning of the current parliamentary term, the Chamber of Deputies has set the order in which the Vice-Presidents represent him. He appointed Vojtěch Filip as the first Deputy Vice-President, who is also entitled to sign the laws on his behalf in his longer absence. On the appellant's objection that no relevant reason for signing the contested law appointed by the Vice-President of the Chamber of Deputies was given, its President states in his observations that, for serious personal reasons, he was not present in the Chamber of Deputies in the second half of December 2020 and that the law was signed by Vice-President Vojtěch Filip following that instruction.
12. The Senate, as a party to the proceedings, stated in its observations that it had discussed the draft of the contested law in its 13th term of office, that it had been assigned a number in the Senate register. 11 The Committee on Economic, Agriculture and Transport, to which the press has been ordered to negotiate as a guarantee, recommended, by resolution of 9 December 2020, that the bill be returned to the Chamber of Deputies with amendments. On the same day, the draft law was discussed by the Constitutional and Regional Development, Public Administration and the Environment Committee. They also advised the Senate to return it to the Chamber of Deputies with amendments. The Senate classified the press at its third meeting and discussed it on 10 December 2020. During a long debate, a number of arguments were made against and against the proposed amendments. The Senators have accepted the vast majority of the committee's amendments. These concerned, in particular, the adjustment of the tax rebate to the taxpayer and the change in the budgetary determination of taxes in favour of regions and municipalities. In the final vote, the Senate decided by its 267. resolution that it would return the draft of the contested law to the Chamber of Deputies, as amended, when in the vote of Order No 28 of the 77 Senators and Senators present there were in favour of the motion 46, against which 17 were opposed. The Chamber of Deputies subsequently agreed to the bill as approved by the Senate. Finally, the Senate notes that, when discussing the draft contested law, it acted within the limits of the Constitution laid down competence and in a constitutional manner.
Statement by the Government and the Ombudsman
13. In accordance with the provisions of § 69 (2) and (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court sent a motion to initiate proceedings to the Government and the Ombudsman, indicating the legal period within which they could intervene and, where appropriate, to comment on the application.
14. On 24 February 2021, the Constitutional Court received a communication from the Minister of Justice, Marie Benešová, that the Government, at its meeting on 22 February 2021, had discussed its application for entry into the proceedings before the Constitutional Court under sp. v. Pl. ÚS 6 / 21, and adopted with it Resolution 176 approving its entry into that proceedings, proposing the refusal or, where appropriate, the rejection of the motion in question by the Group of Senators and authorising the Minister of Justice to draw up, in cooperation with the Minister of Finance, a detailed statement by the Government on the proposal which it subsequently submitted to the Constitutional Court on 25 February 2021.
15. The Government stated at the outset that the application should be rejected by the Constitutional Court, for lack of jurisdiction within the meaning of Article 43 (1) (d) of the Law on the Constitutional Court, as amended by Act No 77 / 1998 Coll., or by Article 43 (2) (b) thereof, on the ground of the appellant of the inappropriately chosen type of procedure. In fact, the subject of the assessment should not be the question of compliance with the constitutionally anchored essential rules of the legislative procedure, but of establishing the scope of the President's competence [based on Article 62 (i) and Article 51 of the Constitution], which, in the present case, signs the law already adopted and not its proposal. The Constitutional Court cannot, in an abstract legislative procedure, examine a non-legislative act - the signature of the President of the Republic. In this context, the Government points out that, from the point of view of the principle of subsidiarity, other procedural means should be used first to remedy the appellant if he considers that the President of the Republic is exercising his authority contrary to the Constitution. This procedural instrument shall be the proposal referred to in Article 65 (2). A constitution or a constitutional complaint against the intervention of a public authority shall be unimpeded in carrying out the mandate within the meaning of Article 26 of the Constitution or, where appropriate, the procedure referred to in Article 87 (1) (k) of the Constitution. Another reason for rejecting the proposal is that, although the act of signing the adopted law is part of the legislative process in a broader sense, it cannot be considered as part of that phase of the constitutionally prescribed legislative procedure, which is a source of the legitimacy of the law, and can therefore be subject to review in the procedure for repealing laws and other legislation. In this respect, the contested law, according to the Government, was adopted in compliance with all the rules of the legislative procedure.
16. Furthermore, the Government does not agree with the appellant's view that the title of the President of 28 December 2020 should be interpreted as a constitutional act containing the President's wish to return the adopted law within the meaning of Article 50 (1) of the Constitution. On the contrary, from the text of the President's letter of 28 December 2020, in conjunction with the constitutional practice associated with the recovery process of the adopted law, the government believes that it is quite clear that the President's will not veto the contested law, not to use a period of 15 days to exercise veto law, not to use his authority to sign the law and allow it to be published. The Government stresses that the application of the President's authorisation to return the adopted proposal is always accompanied by a long-term practical formal procedure (constitutional practice), the use of which (not) allows the recipient of the letter to know clearly what the President's will is, whether or not he has decided to exercise his suspensive veto right. That constitutional practice consists in the long-term strictly used observance of the formalised form of expression of the President's will to veto the adopted law. Specifically, the use of one of the forms of the verb "return 'in conjunction with the explicit reference to Article 50 (1) of the Constitution. In addition, in order to qualify as veto, the Constitution also does not provide for a compulsory requirement, which is to justify such a procedure.
17. As regards the wording contained in the President's title: 'I return that law to another measure', Mr President, it is undisputed in the view of the Government that, in particular, the President has stated that he will not use the time limit provided for him by Article 50 (1) of the Constitution in order to exercise his right of veto, while at the same time making it possible to refer the adopted law to the Prime Minister, as is apparent from Article 51 of the Constitution. The Government is also convinced that the President, through the above mentioned part of his statement, has fulfilled the formal purpose of Article 51 of the Constitution, as he has certified by his own hand-signed document that he has been allowed to exercise the constitutional veto right - that is, he has not been shortened by his right to intervene at the heart of the legislative process. This was confirmed by the President in his letter of 31 December 2020, through which he expressed his views on the motives which led him to decide not to veto the contested law and not to sign it at the same time. However, according to the Government, this statement of the President of 31 December 2020 does not have any legal relevance and only confirms the will contained in the first statement of the President, and therefore the appellant's arguments relating to that statement should be considered irrelevant and non-circulatory.
18. The party to the appellant's objection heading concerning the absence of the President's signature under the contested law states that the authority of the President to sign adopted laws [Article 62 (i) and Article 51 of the Constitution] must be regarded as having been exercised after the end, i.e. outside the material core of the constitutionally prescribed legislative process, the constitutionality of which is assessed in the abstract standard control procedure. The Government takes the view that the formal meaning and purpose of Article 51 of the Constitution are "only 'in the creation of an area for the constitutional actors concerned to be able, after the legislative process (core) has been completed, to certify that the rights of the constitutional authorities represented by them have not been reduced in the current (core) course of the legislative process and, furthermore, to establish the order in which this, the three constitutional actors shared, are authorised. However, the Government considers that, following the amendment of the Constitution by Constitutional Law No 71 / 2012 Coll., it has also made its material point of view in relation to the President of the Republic - that is to say, to create an area in which the directly elected head of state could formally express his political view on the adopted law, as this is prohibited during the legislative process (its core) [see the decision of the Constitutional Court in Case 77 / 06 of 15.2.2007 (N 30 / 44 SbNU 349; 37 / 2007 Coll.), the decisions of the Constitutional Court are available at http: / / nalus.ujus.cz].
19. The Government takes the view that the intention of the Constitution was to establish the prerogatives of the President under Article 62 (i) and Article 51 of the Constitution as a personal privileged right, not as an obligation. Therefore, the exercise of the powers of the President established in Article 62 (i) and Article 51 of the Constitution in the form of omissionary action (not signing a law which did not veto) cannot be regarded as unconstitutional because it is not capable of distorting the principle of democratic legal status, nor the principle of division of power, nor the constitutional rule according to which State power can be exercised only in cases and within the limits laid down by the law, in the manner provided for by the law. Such actions by the President could not (and were not) affect the principles of legal certainty and the predictability of the law (as components of the rule of law), nor did it infringe the rights of any of the legislative authorities (the law adopted by them was declared and came into force). On the contrary, in a situation where the President cannot exercise his office for serious reasons, the opposite interpretation would lead to unequivocal unconstitutional conclusions. In that situation, the absence of the President's signature under the adopted law would lead to a de facto blocking of the legislative process. Likewise, the result, i.e. the paralysis of the legislative process, could lead to mere inaction by the President, which cannot be allowed in a democratic rule of law either.
20. In addition, the Government notes that the above interpretation is consistent with the long-term practice of applying this authorisation (right not to sign) to all current presidents since the creation of a separate Czech Republic. Therefore, not signing a non-vetoed law by the President is not an isolated excesses, as the appellant suggests. On the contrary, it can be described as a long-term practice of a constitutional procedure which corresponds to the value and institutional consensus of all existing presidents in relation to the interpretation of Articles 62 (i) and 51 of the Constitution in the sense of privileged law. President Václav Havel has done this for example in the case of Act No. 59 / 2003 Coll. The same was done by President Václav Klaus when he did not veto or sign, for example, Act No. 292 / 2004 Coll., Act No. 180 / 2005 Coll., Act No. 443 / 2006 Coll. and others. The Government adds that the above was repeatedly confirmed indirectly by the Constitutional Court, which in the past examined the constitutionality of several laws or their individual provisions, which the President did not veto and did not sign [the above mentioned finding sp. zn. Pl. ÚS 77 / 06, the finding of sp. zn. Pl. Pl. ÚS 1 / 12 of 27.11.2012 (N 195 / 67 SbNU 333; 437 / 2012 Sb.), the finding of sp. zn. Pl. ÚS 10 / 13 of 29.5.2013 (N 96 / 69 SbNU 465; 177 / 2013 Sb.)], since he did not find in any of such findings as a derogatory reason for the non-constitutional of the procedure of their acceptance due to the absence of signature.
21. Finally, the Government contends that the possible deregulation of the contested law would have a serious impact on private persons in terms of the principle of legal certainty and good faith in the law, and would therefore be contrary to the requirements of the principle of material rule of law, legal certainty and effective protection of constitutionality. In this context, the Government points out that the purpose of the deregulation would not be to protect legislative bodies that would feel affected by a procedure that infringes the rules of the legislative process, but to protect objective values stemming from the principle of the rule of law, the violation of which constitutes a defective legislative process. However, the consequences of the deregulation would be, precisely from the point of view of the rule of law, disproportionately more serious [cf. In its observations, the Government is also more closely concerned with the further consequences of the possible annulment of the contested law by the Constitutional Court.
22. The Ombudsman informed the Constitutional Court that he did not intervene.
Statement by the President
23. Article 48 (2) of the Constitutional Court Act asked the Constitutional Court and the President for observations. The President stated in his observations that, if he decides to proceed under Article 50 of the Constitution, he refers to Article 50 of the Constitution, stating that "he shall return the law to the Chamber of Deputies for further consideration '; He's been doing this like his predecessors when they decided to veto the law. In the present case, however, in the letter of 28 December 2020, the President of the Chamber of Deputies merely informed him that he had decided not to attach his signature to the contested law and to return it to the President of the Chamber of Deputies for further action. Since this heading became the subject of misinterpretation, not by the President of the Chamber of Deputies, but in the public space, he considered it necessary to respond by letter of 31 December 2020, in which he clearly stated that he did not exercise his right within the meaning of Article 50 (1) of the Constitution, and that the other measures which the President of the Chamber of Deputies had to take consist in submitting the contested law to the Prime Minister for signature and then to be published in the Collection of Laws.
24. The President further states that, in the case under consideration, the deadline for the possible refunding of the Act to the Chamber of Deputies for further consideration expired on 6 January 2021. It follows from the letter of 28 December 2020 that he has waived that right for the remainder of that period. The contested law was declared on 31 December 2020, the same day as the President refuted his statement of disinformation concerning his progress. If the appellant contends that the President's response by letter dated 31 December 2020 was delayed, it is therefore irrelevant, having no relation to the facts.
25. Furthermore, the President points out that cases where the head of state has decided not to add his signature to the law without returning it to the Chamber of Deputies for further consideration within the meaning of Article 50 of the Constitution are not unique for the duration of the existence of a separate Czech Republic. In addition, the President specifically states that his predecessor did not veto or sign Act No. 330 / 2010 Coll. (Amendment to the Act on the Promotion of the Use of Renewable Resources), Act No. 92 / 2011 Coll. (Amendment to the Act on the Czech National Bank), Act No. 221 / 2011 Coll. (Amendment to the Act on Air Protection), Act No. 428 / 2012 Coll. (Act on Property Compensation with Churches and Religious Companies) and a number of others. All these laws were declared in the Collection of Laws and became effective. In the case of the Act on Property Compensation with Churches and Religious Companies, it was also subject to its review before the Constitutional Court, with the finding of 29 May 2013 sp. zn. Pl. ÚS 10 / 13 (paragraph 90) that the Constitutional Court decided not to veto or sign the law, standing in neutral and apparently only took note of it. According to the President, if the head of state decides not to return the law to the Chamber of Deputies for further consideration, but not to add his signature to that law, he will justify the absence of his signature. The President notes that this is what he himself did in the letter of 28 December 2020 and it is impossible to issue such a statement of reasons as reservations suggesting a return of the law to the Chamber of Deputies for further consideration.
26. In conclusion, the President summarises that the contested law within the meaning of Article 50 of the Constitution did not veto or return to the Chamber of Deputies for further consideration and the absence of its signature under the contested law is not a reason for which the contested law could not be declared in the Collection of Laws and become effective. The President therefore proposes that the Constitutional Court reject or reject the appellant's proposal.
Replication of the appellant
27. The above observations were sent to the appellant by the Constitutional Court and to a possible reply. In her reply, the appellant first responds to the observations of the Chamber of Deputies or its President, which she considers problematic. If the Chamber of Deputies wanted to stand up for the impeccable legislative process, such a draft opinion should have been assessed by its plenary and voted in favour of it. However, the President of the Chamber of Deputies has delivered an opinion on behalf of the House of Deputies in his own affairs. In this context, the appellant makes a procedural proposal requesting the Constitutional Court to call on the Chamber of Deputies to address its President's observations and to address its resolutions. Otherwise, the observations should not be considered as observations of the party to the proceedings but as witnesses by the President of the Chamber of Deputies. Following that, the appellant requests that the hearing of the President of the Chamber of Deputies be carried out on serious grounds intended to prevent him from exercising his duties at the appropriate time. For these reasons, the appellant proposes that oral proceedings be ordered on the matter.
28. The appellant also notes that it fully persists in its assessment of the unconstitutionality of the procedure in which the contested law was not revoted by the Chamber of Deputies. As regards the part of the statement of the President of the Chamber of Deputies - concerning the objection that the contested law was signed on behalf of the Vice-President of the Chamber of Deputies, and the reference of the President of the Chamber of Deputies to Paragraph 30 of the Rules of Procedure of the Chamber of Deputies, which should provide a sufficient basis for such a procedure - the appellant contends that the ordinary law of the House of Deputies is lacking and adds that it is unacceptable that in the present case two of the three prescribed signatures may not be absent or be replaced by the signature of other persons not authorised to do so by the Constitution. The President of the Chamber of Deputies claims that the procedure under Rule 30 of the Rules of Procedure of the Chamber of Deputies has taken place for serious personal reasons, the appellant notes that, if the President of the Chamber of Deputies has been able to submit observations for the media at that time, he should also be able to fulfil his constitutional obligations.
29. In response to the President's statement, the appellant points out that, from the point of view of constitutional order, it is entirely indecisive whether the President expressly invokes a specific provision in the constitutional act, as it does not contain such a requirement of constitutional order. On the communication of the President of 31 December 2020, which states that his three-day-old veto act within the meaning of Article 50 of the Constitution is not, the appellant stresses that, in the case of acts of this magnitude, there is no room for a "second chance 'and the President is expected to express his will in a familiar and comprehensible manner at the first attempt. Even if the Constitutional Court came to the conclusion that it was not about the refunding of the law, it is not constitutional, according to the appellant, to declare the President unsigned but not returned.
30. The appellant also responds to the Government's observations, first of all to the part of the appellant that criticises the procedure chosen by the appellant. The appellant also points out that, in the present case, the question is whether the contested law is legally adopted and, therefore, the abstract control of its constitutionality. As regards the Government's argument that the letter of 28 December 2020 could be regarded as a refunding of the law if the justification for the procedure were present, the appellant notes that it contains, from a material point of view, the President's statement of reasons. Where the Government imports that the authorisation of the President pursuant to Articles 62 (i) and 51 The Constitution is a personal prerogative of the President, not his duty, the appellant argues that if the purpose of those provisions is to certify such a fundamental fact as to whether or not the Head of State has been shortened on his rights, then they must be regarded as an obligation. As regards the Government's warning that the absence of the President's signature could lead to a de facto blocking of the legislative process, the appellant recommends, in such a case, that, if the President is unable to exercise his office for serious reasons, Article 66 of the Constitution should be applied and that the meaning of Article 51 of the Constitution should not be emptied instead.
31. In conclusion, the appellant points out that the contested law represents a strong impact on the stability of public budgets, and persists in its proposal, i.e. that the contested law should be repealed by the Constitutional Court because of the fundamental defects of the constitutionality of the legislative process of its adoption.
32. On 31 May 2021, the author supplemented her reply. It stated that the case under examination does not have a comparison in the decision of the Constitutional Court and that the President's action in question is not constitutional. According to the appellant, the Constitutional Court should be unequivocally established in the future, as to what possibilities of action under the Constitution for the President in the framework of the legislative process, and whether the absence of the President's signature on the non-refundable law remains admissible. The appellant further recalls that, at the time of the first Czechoslovak Republic, it was the duty of the President to sign also those laws which he unsuccessfully vetoed. Finally, the appellant points out that the President cannot give up the right to return the law in a constitutionally relevant manner and can only allow a 15-day period to pass in vain. Therefore, even if the Constitutional Court found that the President did not veto the law, but did not sign it, the law could no longer take effect on 1 January 2021. This conclusion should, according to the appellant, be reflected in the operative part of the decision of the Constitutional Court in order to protect legal certainty and trust in the rule of law. In the light of that appellant, in the event of failure to comply with the objections of the parties to the constitutional conformity of the legislative process, the Constitutional Court also proposes, in the operative part of the finding, that the contested law became effective on 13 January 2021.
Proceedings before the Constitutional Court
33. Under Article 64 (1) (b) of the Law on the Constitutional Court, a group of at least 17 senators has the right to apply for annulment of the law or its individual provisions. The application in this case was lodged by a group of 19 senators; In accordance with Article 64 (5) of the Law on the Constitutional Court, as amended by Act No. 320 / 2002 Coll., it also attached to it a signature document to which each of them individually confirmed that it was attached to the application. The applicant therefore fulfils the condition of active legitimacy.
34. The contested law is an amendment, and the appellant does not consider the individual provisions of the law which have been amended by the contested law. The Constitutional Court has therefore further addressed whether it is possible to challenge the amendment of the law as a whole individually or to fight directly against the amended provisions in the law. The Constitutional Court has repeatedly concluded in its established case-law that the amendment to the law does not have a separate legislative existence, but it becomes part of an amended standard [e.g. the finding of sp. zn. Pl. ÚS 5 / 96 of 8.10.1996 (N 98 / 6 SbNU 203; 286 / 1996 Coll.), the resolution of sp. zn. Pl. ÚS 25 / 2000 of 15.8.2000 (U 27 / 19 SbNU 271), the findings of sp. zn. Pl. Pl. Pl. (N 28 / 25 SbNU 215; 145 / 2002 SbNU 97; 95 / 2002 Sb.), sp. If the procedure for checking the standards is a derogatory reason for the absence of standard competence or a breach of the constitutionally prescribed procedure for the adoption of the law, the constitutionality of the amendment itself is also assessed [see the finds sp. zn. The appellant explicitly challenges the amendment of the law as a whole with arguments against the unconstitutional nature of the legislative process, which is admissible in view of the above.
35. The Constitutional Court notes, in the light of the above, that the proposal contains all the legal requirements required, is admissible within the meaning of the provisions of Section 66 of the Law on the Constitutional Court, as amended by Act No 48 / 2002 Coll., and at the same time there are no grounds for terminating the procedure under the provisions of Section 67 of the same Act. Therefore, the Constitutional Court assessed the proposal meritantly; Decided on it without a regulation of oral proceedings because it did not carry out the taking of evidence within the meaning of Paragraph 44 of the First Law on the Constitutional Court, as amended (see paragraph 62 below), and further clarification could not be expected from the hearing.
36. The appellant asked for a preliminary examination of the application, which was justified by the fact that the decision of the Constitutional Court, apart from its own assessment of the case, would also have significant case-law in the future. The Constitutional Court found such a justification for the request for a prior hearing to the General Court. However, although no formal decision was taken on this request, it was made via fact, since the plenary decided on the case within a period of less than five months from the date on which the application was served on the Constitutional Court.
Progress of the legislative process and assessment of its constitutional conformity
37. According to Article 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the assessment of the constitutionality of the Act with a constitutional order consists of answering three questions: whether it was adopted and issued within the limits of the Constitution, whether it was adopted in a constitutional manner and whether its content is in accordance with the constitutional laws.
38. As part of the review of the amendment of the law, the Constitutional Court only assesses whether the constitutional framework of the legislative process (in the Constitution, established competence and acceptance in a constitutionally prescribed manner) has been respected, resulting in the adoption of the amendment. This is also the case with the appellant's argument, which is directed only against the unconstitutional nature of the legislative process or the publication of the contested law.
39. The observations of the two chambers of Parliament, the annexed annexes and the relevant stenographic records (available at www.psp.cz) show that the proposal for the contested law was submitted to the Chamber of Deputies by the Government (as House Press No. 910). The proposal went through three readings in the Chamber of Deputies (first reading on 7.7.2020, second reading on 27.10.2020 and third reading on 19.11.2020), which agreed with it, when of the 102 Members and Members in favour of the proposal voted 68, there were 28 and 6 abstentions.
40. The draft of the contested law was referred to the Senate (Senate Press No. 11), which discussed it on 10 December 2020 and returned it to the Chamber of Deputies with amendments, with 46 votes in favour of 77 senators and senators present. The bill approved by the Senate was voted on in the Chamber of Deputies on 22 December 2020, with the result that out of the 104 Members present, 70 voted in favour, 22 and 12 abstained.
41. The President, to whom the contested law was delivered for signature on 22 December 2020, did not sign it and was followed in such a way that it was not returned to the Chamber of Deputies for a new vote. The contested law was sent for publication in the Collection of Laws on 28 December 2020. The contested law was declared in the Collection of Laws on 31 December 2020.
42. In order to assess the competence of the issuing body, the Constitutional Court finds that the competence of the Parliament of the Czech Republic, which adopted the contested law, is clearly based on Article 15 (1) of the Constitution. The Constitutional Court therefore finds that the contested law has been adopted within the limits of the constitutional competence laid down and neither has the appellant raised any objection in that direction.
43. The constitutional defects of the legislative process which the appellant expressly worded can be summarised as follows:
1) There has been a declaration of the contested law in the Collection of Laws, although the President has shown his will to return it to Parliament or to the Chamber of Deputies for a new vote (suspensive veto),
2) absence of the President's signature under the contested law,
3) The contested law was not signed by the President of the Chamber of Deputies but by the Vice-President.
44. As regards the alleged defects in the legislative process, the Constitutional Court states first of all that the criteria of the constitutionality of the legislative process were addressed in a number of its findings, in which it formulated the starting points fully applicable even in the present case. In the decision of 2.10.2002 sp. zn. The Constitutional Court stressed - and the appellant itself refers - that state power can only be exercised in cases, within the limits and in the procedures laid down by law. It follows that "not (...) any will of a parliamentary body, but only one that the law, whether constitutional or simple (on its Rules of Procedure), respects and emerges from its limits, can become a law." On the other hand, the finding of 15.2.2007 sp. zn. The Constitutional Court pointed out that formal defects in the legislative process cannot without further delay lead to the deregulation of the legislation under consideration, since such possible interference by the Constitutional Court must always be measured in relation to the principle of legitimate trust of citizens in law, the principle of legal certainty and the protection of acquired rights. In its judgment of 1 March 2011 in Case C-55 / 10 ÚS (N 27 / 60 SbNU 279; 80 / 2011 Coll.), the Constitutional Court stated that the law on procedural defects of its normative process was derogated from - in the context of the implied restraint - if, in the legislative process, it was directly infringed by the Constitution or any other part of the constitutional order or a breach of one of the provisions of the so-called sub-constitutional law (for example, the Rules of Procedure of the Chamber of Deputies), but always in the event that such infringement is of constitutional significance. In such cases, the reason for the intervention of the Constitutional Court is in particular the protection of free competition between political parties and the protection of minorities, in particular the parliamentary opposition (cf. Articles 5 and 6 of the Constitution and Article 22 of the Charter).
45. In other words, the Constitutional Court adheres to the principle of restraint and abolishes legislation exceptionally, unless its essential rules have been complied with in the legislative process and the errors reach constitutional legal dimensions. This conclusion was not reached by the Constitutional Court in the present case, as is subsequently explained.
Assessment of the President's will
46. Article 50 (1) The President shall have the right to refer back the adopted law, except for the constitutional law, with a justification within 15 days of being referred to him. Pursuant to Article 50 (2) of the Constitution, the Chamber of Deputies shall vote again on the returned Act. Amendments are not admissible. If the Chamber of Deputies persists on the returned law by an absolute majority of all Members, the law will be declared. Otherwise, the law has not been passed.
47. The right of the President to refer back the adopted law is included in the list of presidential powers and the powers of which there is no need for the co-signature of the Prime Minister or of his authorised member of the Government [Article 62 (h) of the Constitution]. It is the authorisation of the President in the legislative process, the application of which by the President autonomously and significantly affects the activities of the legislator.
48. If the President of the contested law had returned to the Chamber of Deputies, in accordance with Article 50 (1) of the Constitution, as the appellant contends, and yet the law was declared in the Collection of Laws, without having to vote again on its adoption, there would have been a breach of Article 50 (2) of the Constitution. In view of the above considerations (paragraphs 44 and 45), such a direct violation of the constitutional order could lead to the fact that the law so proclaimed by the Constitutional Court would be derogated if, at the same time, the protection of the constitutionality of the legislative process in the present case outweighed the protection of citizens' legitimate trust in law and the principle of legal certainty and the protection of acquired rights. The Constitutional Court has therefore further assessed whether the President has applied the suspensive veto by letter dated 28 December 2020.
49. The text of the President's entry of 28.12.2020 is as follows:
"Mr President,
On 22 December 2020, you submitted to me a bill amending certain tax laws and certain other laws.
I say I have decided not to attach my signature to this law. This is due to the fact that the amendment to the Income Tax Act is part of the Act, which, when reducing the income tax base of the dependent activity on compulsory insurance and at the same time leaving a rate of 15% while increasing the basic tax rebate on natural persons first for 2021 and then for the subsequent tax period, is able to significantly deepen the adverse development of public finances, especially the state budget, with an estimated impact of up to CZK 90 billion. I consider these changes to the Income Tax Act, consisting of a reduction in taxation not only in one but directly in two levels, to be the current financial situation of the State as a sign of reduced liability.
I return that law, Mr President, to another measure. "
50. The Constitution does not regulate the form of the President's will to return the law pursuant to Article 50 (1) of the Constitution. In that regard, it only provides for an obligation to do so on the grounds and within the time limit laid down. It can therefore be regarded as a return of the law as a speech by the President, which goes to the Chamber of Deputies, which makes it clear that the President exercises the right to return the adopted law to a new vote and justifies why he does so.
51. Given that this is a manifestation of the will of the executive representative - a constitutional body which, by this procedure, exercises its authority, which significantly enters into legislative power (see paragraph 47 above), the President's will to exercise this power must be unequivocal to the extent that it practically does not provide room for interpretation other than the fact that it expresses the will to apply a suspensive veto. In other words, the will must, without any doubt, imply that the President is exercising the power to return the adopted law to a new vote, otherwise it is not a refunding of the law under Article 50 (1) of the Constitution. It is up to the President himself to do so in a clear, unambiguous, and therefore unmistakable way if he wishes to exercise his authority to return the law to a new vote. The assessment of only acts applied in this way as a veto is to ensure legal certainty in legislation.
52. In the light of that Constitutional Court, it adds that it did not attest to the part of the appellant's argument that the President's will in question should be assessed in the same way as in the case of the interpretation of legal acts under the Civil Code (§ 555 et seq.), as in the case at hand it is not an interpretation of the will in the field of private law but of the will to exercise the constitutional authority.
53. In the light of the above, the Constitutional Court assessed the President's letter of 28 December 2020 and concluded that it was not a suspension theorem, as it was such a manifestation of the will of the President, which actually allows a different interpretation than that of returning the contested act to a new vote, namely an interpretation which the President itself invokes.
54. According to the observations of the Chamber of Deputies, the Government, but also the President in particular, the letter of 28 December 2020 gave rise to the President's wish not to sign the contested law and, at the same time, not to return it to a new vote in the Chamber of Deputies, but to refer it to the President of the Chamber of Deputies for the purpose of its publication in the Collection of Laws.
55. If the President's decision not to join his signature under the contested law is taken, the Constitutional Court first of all stresses that, in the history of the Czech Republic, i.e. in the period of effectiveness of the current Constitution, the procedure when the President did not sign or return the Act to a new vote, in several cases, as pointed out by the Government and the President in his observations (this was done in the cases of Act No. 292 / 2004 Coll., No. 180 / 2005 Coll., No. 443 / 2006 Coll., No. 239 / 2008 Coll., No. 427 / 2011 Coll., No. 428 / 2011 Coll., and No. 428 / 2012 Coll.). In any of these cases, such omission of his obligation to sign the law has not been interpreted as claiming the right to return the law adopted pursuant to Article 50 (1) of the Constitution to the Chamber of Deputies. In some such cases of law, they were also examined before the Constitutional Court in a case of abstract control of standards [finding of 15.2.2007 sp. zn. Pl. ÚS 77 / 06 (N 30 / 44 CollU 349; 37 / 2007 Coll.), finding of 27.11.2012 sp. zn. Pl. ÚS 1 / 12 (N 195 / 67 SbNU 333; 437 / 2012 Coll.) and finding of 29.5.2013 sp. zn. Pl. ÚS 10 / 13 (N 96 / 69 CollU 465; 177 / 2013 Sb.)], none of which was found by the Constitutional Court to be unconstitutional of the procedure for the adoption of the Law by reason of the President. It follows from the above constitutional practice and the case law of the Constitutional Court, from which the Constitutional Court has no reason to deviate now, that the signature of the President is not a condition for the publication of the law, although the President is constitutionally obliged to sign the adopted draft law.
56. It is necessary to distinguish between two aspects of the case, namely the President's own action and the influence of the negotiations on the completion of the legislative process. The President's signature itself is not a condicio sine qua non law. However, it is necessary to state - even taking into account the (totally predominant) views of teaching (cf. e.g. Acid, J. Article 51. In: Klíma, K. a kol. commentary on the Constitution and Charter. Plzen: Aleš Čenek, 2009, p. 422 et seq., Suchanek, R. Article 51. In: Bahluľová, L., Filip, J., Molek, P., Podhrazký, M., Suchanek, R., Šiměnek, V., Zeměnek, L. Constitution of the Czech Republic. Comment. Praha: Linde Praha, 2010, p. 625 et seq., Herc, T. Article 51. In: Rychetský, P., Langášek, T., Herc, T., Mlsna, P. et al. Constitution of the Czech Republic. Constitutional Law on Security of the Czech Republic. Comment. Praha: Wolters Kluwer, 2015, p. 504 et seq., Sládeček, V. Article 51. In: Sládeček, V., Mikule, V., Suchanek, R., Syllova, J. Constitution of the Czech Republic. Comment. Praha: C. H. Beck, 2016, p. 520) - that the contested procedure of the President of the Republic is not in line with the Constitution. It is his duty to sign or apply the veto - tertium non datur. On the other hand, however, the fact that the President's signature on the law adopted is not sufficiently intense to affect the (proper) termination of the legislative process does not prevent the publication and therefore the entry into force and effectiveness of the law adopted.
57. The Constitutional Court further focused on the fact that the President, apart from the fact that he did not sign the contested law, "returned it" to the President of the Chamber of Deputies "for further action." The Constitutional Court concluded that, even in the light of the above, the title of the President of 28 December 2020 cannot be considered as such a statement by the President of the content of which it would be sufficiently obvious (see paragraphs 50 and 51 above) that it exercises the right to return the adopted law to a new vote. In connection with the President's right to refer back the laws referred to in Article 50 (1) The Constitution takes on the signature of the adopted law by the President in the sense that the President certifies, inter alia, that he had the opportunity to exercise his right to return it, or that he renounces that right before the expiry of the prescribed period [Herc, T. Article 51 (Signing of laws). In: Rychetský, P., Langášek, T., Herc, T., Mlsna, P. et al. Constitution of the Czech Republic. Constitutional Law on Security of the Czech Republic. Comment. Praha: Wolters Kluwer, 2015, p. 499 and p. 501). The importance of signing the law by the President is therefore also that it is a step accelerating the procedure leading to the declaration of the law. Therefore, in the event that the President has decided not to sign the contested law, his "return" to the President of the Chamber of Deputies may be interpreted as a step accelerating the procedure for declaring the President of the Unsigned Act before the deadline for applying the suspensive theorem has expired. This is how the President himself explains his progress.
58. Finally, the fact that the President's statement of 28 December 2020 contains a justification for the procedure applied does not alter the above. The obligation that a suspensive veto must be justified by the President in accordance with Article 50 (1) of the Constitution cannot, in this respect, import any more than the fact that the President does not state his reasons for applying the suspensive veto is contrary to constitutional order. The presence of a justification in the President's letter of 28 December 2020 would therefore be relevant in this respect only if it were a speech by which the President exercises his authority under Article 50 (1) of the Constitution. Moreover, in cases where the President does not sign or return the law to the new vote of the Chamber of Deputies, it is the practice of the President to justify this practice, as the Constitutional Court found from the parliamentary press available at http: / / www.ppp.cz (e.g. the President's letter of 22 November 2012, House Document 4603).
59. In view of the above, the Constitutional Court concludes that the title of the President of 28 December 2020 cannot be regarded as the exercise of the President's authorisation under Article 50 (1) of the Constitution, as it is not a manifestation of the President's will, which would unmistakably imply that the contested law should be returned to the Chamber of Deputies for a new vote. On the contrary, this will can be interpreted as the President himself has done, and as the successive constitutional institutions have done, i.e. the contested law has not been signed by the President, he has not exercised the right of suspension theorem and has passed it on to the publication in the Collection of Laws. In addition, the Constitutional Court adds that it follows from the House's press that, in accordance with the long-term practice of exercising the right of the President to return the adopted law to the Chamber of Deputies, there is such a speech by the President, in which it expressly and unambiguously states that it is a procedure under Article 50 (1) of the Constitution, which is directly referred to in the text (e.g. the President's letter of 10 March 2017 No. KPR 1462 / 2017).
60. The appellant's objection, contained only in its reply, that the President was unable to waive the right of recovery of the contested law and therefore the contested law could not have taken effect before the 15-day period for the exercise of veto under Article 50 (1) of the Constitution had expired, the Constitutional Court first of all recalls that the intervention of the Constitutional Court into the legislative sphere due to the defects of the legislative process could only occur if its essential rules were not complied with in the legislative process and the errors reached constitutional legal dimensions. Such a defect in relation to the appellant's objection could be the case if, as a result of the failure to provide the full 15-day period - even before the declaration of the law - the President was shortened on his right to exercise veto. However, this was not the case in the present case.
Absence of signature of the President and President of the Chamber of Deputies
61. In the context of the appellant's objections - that the contested law was not signed by the President of the Chamber of Deputies, but only by the Vice-President of the Chamber of Deputies and the Prime Minister - the Constitutional Court recalls its previous case-law, which shows that constitutional practice can be accepted from a constitutional point of view, which, with reference to Article 29 (1) of the Constitution and Article 29 (1) (g) and Article 30 (1) and (2) of the Rules of Procedure, allows the representation of the President of the Chamber of Deputies to be accepted by one of its Vice-Presidents, even in the signing of the laws, although the Constitution itself [Opinion of 12 / 16 of 12 December 2017 (N 227 / 87 SbNU 597; 8 / 2018 Sb)].
62. On the basis of the foregoing, the Constitutional Court concludes that the appellant's alleged formal defect in the legislative process, prior to the publication of the contested law and consisting of the absence of the signature of the President and the President of the Chamber of Deputies, is not - in view of the above-mentioned restraint of the Constitutional Court (paragraphs 44 and 45) and in the context of a situation where the law in question corresponds to its wording of the law which was adopted - eligible in the present case to constitute a derogatory ground for the annulment of the contested law. In view of this, the hearing of the President of the Chamber of Deputies as a witness to the circumstances of the signing of the contested law by the Vice-President of the Chamber of Deputies, as requested by the appellant (see paragraph 27 above), would be redundant.
Conclusion
63. For all the reasons set out above, the Constitutional Court concluded that the proposal was not justified and therefore, pursuant to Article 70 (2) of the Law on the Constitutional Court, it decided as stated in the operative part. The fate of constitutional complaints is shared by all procedural proposals made by the appellant (see paragraph 27 above). They were therefore not decided by the Constitutional Court by a separate statement.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No 301 / 2021 Coll., on the application for annulment of Act No. 609 / 2020 Coll., amending certain tax laws and certain other laws |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 18.08.2021 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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