The Constitutional Court found No 309 / 2019 Coll.

Paragraph 259 of Act No. 134 / 2016 Coll., on Public Procurement, as amended, is deleted from the date of the declaration of the finding in the Collection of Laws.

1. The Constitutional Court received a constitutional complaint pursuant to Article 87 (1) (d) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 72 et seq. of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court). The complainant requests the annulment of the judgment of the Regional Court in Brno of 7 June 2017 No 62 A 82 / 2017-169 and the judgment of the Supreme Administrative Court of 17 January 2019 No 3 As 184 / 2017- 73, since it considers that they infringed its right to a fair trial under Article 36 (1) of the Charter of Fundamental Rights and Freedoms (" the Charter'), the right of petition under Article 18 (1) of the Charter and the right to participate in the administration of public matters under Article 21 (1) of the Charter. The administrative courts have also infringed the complainant's right to have state power served all citizens within the meaning of Article 2 (3) of the Constitution. The complainant linked its constitutional complaint to a proposal pursuant to the provisions of Section 74 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., to repeal the provisions of Section 259 of Act No. 134 / 2016 Coll., on Public Procurement, as amended, (hereinafter referred to as "the Law on Public Procurement 'or" ZVZZ').

2. In particular, it is submitted from the constitutional complaint and from the requested court file that the complainant lodged on 12 January 2017 with the Authority (hereinafter referred to as "the Authority '," the Office' or "the defendant ') an initiative to initiate an administrative procedure on the basis of an ex officio review of the acts of the contracting authority in the selection of the concessionaire and, at the same time, requested a communication on how the complaint was handled. On 14 February 2017, the complainant sent a statement to the ÚOHS requesting further information on how it was handled. On 17 February 2017, the ÚOHS replied that since the complainant did not pay the complaint fee of CZK 10,000 within the deadline, the complaint could not be dealt with.

3. The complainant subsequently brought a so-called intervention action before the Regional Court, whereby the Regional Court, in the judgment under appeal of the present constitutional complaint, concluded that the intervention action was admissible since, in the case of the infringement of the passivity of the defendant's administrative office, in carrying out a follow-up to an administrative procedure, protection other than by way of an action pursuant to Article 82 of Act No 150 / 2002 Coll., the Rules of Procedure, as amended by Act No 303 / 2011 Coll., (hereinafter "p. '), is not applicable. As regards the case itself, the Regional Court stated that" failure to execute' the complaint cannot mean that the facts referred to in the "pending 'complaint should remain forever outside the sight of the defendant. The defendant is precisely there to exercise permanent and effective public procurement supervision on his own, beyond proposals and initiatives. The levying of initiatives within the meaning of Section 259 of the CISA does not alter the defendant's obligation." Dissolution' within the meaning of Paragraph 259 (4) of the ZVZZ is, according to the Regional Court, a procedure whereby the defendant does not have to respond to the complaint in the manner foreseen in Section 42 of the Administrative Code. Thus, in the absence of payment of the fee, the complainant does not have the right to be informed by the defendant whether or not he has initiated an ex officio procedure, since § 259 (4) of the ZVZZ is a special legal standard in relation to § 42 of the Administrative Code. As regards the regulation itself contained in Section 259 of the ZVZZ, the Regional Court stated that it shares a number of strong doubts as to its justification, correctness and clarity, but is not a legislator, and if it were to interpret and apply this provision differently, "it would only do so as a criticism of the legislation ', which would be a manifestation of inappropriate activism. However, the above doubts raised by the Regional Court did not in themselves lead to doubts as to the constitutionality of § 259 ZVZZ.

4. The complainant lodged a complaint against the judgment of the Regional Court, which was rejected by the Supreme Administrative Court by the judgment under appeal, stating that it also found no reason to bring the case before the Constitutional Court. The right to a fair trial is not absolute and may be subject to a number of conditions and restrictions. These include setting a fee obligation. On the other hand, these restrictions must also have certain limits in order not to become an obstacle to access to a court or other body. In particular, the purpose of the charge obligation is to protect institutions from congestion, as well as to ensure that individuals do not abuse the right to judicial and other legal protection. The determination of the fee is legitimate if it pursues this objective and is proportionate to what is at stake in the proceedings for the participant. It is possible to agree with the view of the Regional Court on the non-traditional concept of a charge obligation set out in Section 259 of the ZVZZ (the very existence of the charge, the lack of consideration of the value of the contract, the impossibility of exemption, reduction or repayment). However, this cannot yet be considered to be the unconstitutional nature of the provision in question. In the view of the Supreme Administrative Court, even given the absolute amount of the fee of CZK 10 000, it is not possible to talk about its apparent inadequacy, especially when considering the nature of the complaint to initiate an administrative procedure on its own initiative. Contrary to a proposal (or request) by which the appellant defends his rights exclusively and on the basis of which an administrative procedure is initiated automatically by a party, anyone may give an initiative to initiate an administrative procedure ex officio, and it is not decisive whether his intention is to defend his or her own rights, the interests of other persons, or whether the complaint is purely burdensome or bullying. However, no person has a subjective right to an ex officio procedure and therefore, in the event of failure to initiate such proceedings, the right of the complainant to a fair trial cannot be affected. The administrative authority shall assess whether the conditions for initiating the administrative procedure are met and, if it considers that they are met, shall initiate the procedure regardless of how it has been informed. In addition, the fees for the application may amount to a number of times higher than the complaint fee provided for in Section 259 of the ZVZZ, as also demonstrated by the Regional Court on the charge for the application for the initiation of the procedure for reviewing the acts of the contracting authority to the defendant. The possibility of a reduction, remission or repayment of the application fee is then reflected in the fact that the fee is payable by the party to the proceedings in order to be able to defend its rights in the proceedings before the public authority to which it is entitled following its submission. Nor does the Court of First Instance have any doubts as to the legitimacy of the objective of setting a charge, which was, in particular, to protect against overloading the defendant and to ensure that individuals do not abuse the complaint. As regards the legal assessment of the meaning of the word "initiative ', the Authority does not have to respond to the initiative in the manner foreseen in Section 42 of the Administrative Regulation, but while maintaining the principle of official character. Paragraph 259 of the ZZVZZ provides a lex specialis on the general obligation of administrative bodies contained in Section 42 of the Administrative Regulation, to receive and deal with initiatives. It follows that that obligation will not be granted to the EOHS until the fee obligation of the complainant will be fulfilled. Thus," failure' of the complaint may be understood as meaning that the defendant is not obliged to subsequently notify the complainant of the complaint and the complainant of the complaint, but, in view of the principle of official law, it cannot be inferred from this that the defendant is "prohibited 'by an ex officio procedure. The defendant, therefore, did not act illegally in the case at hand.

5. In a constitutional complaint, the complainant accepts the conclusion of the administrative courts, according to which the provision of Section 259 of the ZVZZ does not provide any interpretation other than that that a fee of CZK 10 000, which cannot be waived, must always be imposed in order to initiate an effective procedure on an official basis. This provision cannot therefore be interpreted in a constitutional way. At the same time, it is demonstrated that the OOHS did not initiate an official procedure in this case, although the complainant's submission was alleged to have been factually justified, as it initiated the procedure on the initiative of another body which filed the fee. It is also clear that the contested provision has been applied in this case, which makes this situation different from the case dealt with in the Constitutional Court order of 23 October 2018 sp. zn.

6. The complainant points out the fact that the contested legal provision was not part of the government proposal, but was an amendment tabled by the resolution of the Public Administration and Regional Development Guarantee Committee on 13 January 2016, so that there is no explanatory report to it, and only from the discussion held at the plenary in the Chamber of Deputies can it be concluded that the motive for adopting such an amendment was the initiative of the President of the UOHS to charge incentives in order to limit the bullying and unfaithful initiatives which the Office is too burdensome. However, it is a question of whether such a reason can be sustained in a situation where the complainant does not have a direct interest in the outcome of the procedure, but rather demonstrates the general social interest to be protected in the procedure. At the same time, uninterrupted dialogue between citizens and public administrators is essential, as citizens thus realise the possibility of politically, socially and legally disciplining public authorities to actually serve all citizens - even those who cannot pay the fee. The complaint is also the exercise of the right to petition pursuant to Article 18 of the Charter, the substance of which is the fact that someone is responding to it. Nor is there a constitutional licence to restrict this right. Submission of the complaint shall also constitute a means of the right to participate in governance pursuant to Article 21 (1) of the Charter, the levying of which constitutes an obstacle to that right. The dispute with Article 36 (1) of the Charter is seen by the complainant in the limitation of the subjective right to draw attention to infringements with a social impact. Public procurement law regulates the management of predominantly public resources and therefore the public has the natural right to view these processes through, for example, public registers, information law, media communications, etc., and to evaluate this information. If it considers that there is an infringement, it should activate the procedure to remedy the infringement. The levying of such a right must not have a suffocating effect, nor must it be emptied or made available only to a narrow circle of persons. The public interest here is so intense that the situation can be compared to the charge of a criminal declaration. The complainant also points out the principles of good governance and the United Nations Convention against Corruption (No 105 / 2013 Coll. s..), whose Article 13 obliges signatory states to strengthen public cooperation instruments.

7. The imposition of a charge would therefore have to be tested for the necessity of limiting the rights quoted in order to protect the right of others, but who cannot be interested in delaying the Office from a specific agenda that is beneficial. This is not a conflict between fundamental rights, but between fundamental rights, on the one hand, and the organisational need of the State, on the other. In so doing, the restriction chosen does not have the same legal status as other charges may be waived; In addition, in the case of legal fees, they may be imposed on the counterparty. Its level is 75% gross minimum wage and 32% gross average wage. "At the initiative, the elite economic privilege becomes accessible to only a few people or organisations. 'The complainant also points out the results of the inquiries by the Ombudsman's representative, which indicate that, by decision of the President of the ÚOHS, none of the responsible staff was allowed to know the documents of the unpaid complaint, since in these cases they are" illegal initiatives'. The complainant considers this to be absurd.

8. II. The Chamber of the Constitutional Court concluded that the application for annulment of Paragraph 259 of the Law on Public Procurement and the application of that provision (Section 74 of the Law on the Constitutional Court, as amended by Act No 48 / 2002 Coll.) had brought about a fact which is the subject of a constitutional complaint, and at the same time the complainant's claim could not be regarded as manifestly unfounded. Therefore, the proposal to abolish Article 259 of the Public Procurement Act and its reasons need to be dealt with in substance.

9. In the light of the above, the Chamber of the Constitutional Court, by order of 21 May 2019 No II of the ÚS 1270 / 19-34, decided to suspend the proceedings on a constitutional complaint and pursuant to the provisions of Paragraph 78 (1) of the Law on the Constitutional Court, referred the complainant's application for annulment of the contested provision of Section 259 of the Law on Public Procurement to the Constitutional Court for a decision pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic.

10. The Constitutional Court, pursuant to § 69 paragraph 1 of the Law on the Constitutional Court, as amended by Act No. 18 / 2000 Coll., requested the observations of the parties to the proceedings of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic. The Constitutional Court also sent the application to the Government of the Czech Republic ("the Government ') pursuant to Paragraph 69 (2) of the Law on the Constitutional Court and to paragraph 3 of the same provision. Both of these authorities intervened in this proceeding.

11. The Chamber of Deputies limited itself in its observations to a description of the course of the legislative process, stating that the law in question was signed by the relevant constitutional authorities and was duly declared. It is up to the Constitutional Court to examine the question of the inconstitutionality of Article 259 of the Public Procurement Act and to decide on a proposal for its annulment.

12. In the Senate's observations, in addition to the recap of the content of the constitutional complaint and the legislative process, the content of the debate between the Senators and Senators was summarised, when they heard views promoting the introduction of the fee and the opinions criticising its introduction. The bill was debated in the Senate within the limits of the Constitution and in a constitutional manner, and the Chamber of Deputies subsequently adopted the proposal, as approved by the Senate. It is for the Constitutional Court to examine and decide the application for annulment of the contested legal provision.

13. In particular, it is submitted from the Government's observations that it takes the same position as already expressed in the case under point Pl. ÚS 28 / 18. While the Chamber of Deputies is discussing a parliamentary proposal to delete the contested legal provision, the Government has taken a dissenting view on it, as it fears that the IOHS will be overwhelmed by the initiatives and the extension of its decision-making activities. According to the Government, the provision in question can also be interpreted as meaning that the fact that the fee at a statutory level has not been imposed in conjunction with the complaint (which leads to "not handling the complaint ') does not affect the Authority's obligation to examine the complaint in the context of its own supervisory and control activities and subsequently, where appropriate, to initiate an ex officio procedure, which results from the principle of legality and regularity. Otherwise, the Office could commit not only manifestly inadmissible inaction, but also a de facto denial of its role as a competition authority. However, in the event of non-payment of the fee, the Authority does not, according to the Government, have the obligation to inform the notifier of the discharge. The imposition of the charge obligation was led by a legitimate objective, i.e. protection of the ÚOHS from congestion, which was caused by purposeful and bullying incentives submitted in an apparent attempt to circumvent the applicant's obligation to deposit bail (at least CZK 50,000 and at most CZK 10 million) and also automatically generated incentives. In the context of public procurement, these are highly competitive relationships where the incentives to initiate an administrative procedure (as well as proposals to review the acts of the contracting authority) are not motivated by the attempt to defend the public interest but by the private interests of the competitor. The objective of the fee is therefore to" filter out "initiatives which are not intended to protect the public interest and which, as a result, result in the damage to the parties to the other proceedings. The amount of the fee is also not disproportionate. There has been no breach of the constitutional principle of equality under the contested provision as the amount of the fee is set uniformly for all entities without distinction. The proposal to repeal the provisions of Section 259 of the Public Procurement Act should therefore be rejected. On the other hand, the government considers the impossibility of exemption from the levy, or the impossibility of extending the deadline for its payment, to be a deficit which, although it considers to be below the constitutional legal dimension, should be corrected by the legislator.

14. The Ombudsman refers to the observations already made by the Ombudsman in the case under point Pl. ÚS 28 / 18, where it was in particular suspended from the non-systemic nature of the fee under review. In addition, the reduction of the number of incentives for non-payment of fees has allegedly led to the reduction of the Authority's own control activity in the field of public procurement, as the Authority is practically not carrying out a separate control activity in this respect. The Ombudsman also pointed out that there were no exceptions to the charge in question. In her view, this causes difficulties for both the public authorities (even if they have to pay a fee) and representatives of civil society and individuals for whom the fee may be discriminatory. The limitation of the possibility of initiating initiatives also leads to a disproportionate restriction on the exercise of the right to petition. In addition to its earlier observations, the intervener states that an integral part of the petition law is also an answer in the matter, which does not, of course, mean that the petit will be granted. The legislation which obliges the petitioner to pay almost the equivalent of a net minimum wage refers to the intervener as immoral. Limitation of the right to petition to optimise the performance of the state administration does not constitute the instrument of presumption. The public interest is to guarantee the transparency and fairness of the custom environment and not the very functioning of the ÚOHS. In addition, it follows from the attached annexes that the interpretation carried out by the ÚOHS led to the conclusion that, by failing to execute the complaint, it was understood to be "thrown into the basket ', not to follow the principles of official and legality. The complainant's notification of how it handled the information of the OHS consists of one or two sentences. The fact, as was dealt with in the complaint, could, moreover, have been learned by its giver under Act No. 106 / 1999 Coll., on Free Access to Information, as amended." The result of the constitutionally conformistic interpretation is the actual obsolescence of the provisions of § 259 ZZZZZ "since this leads to a larger number of applications under Act No. 106 / 1999 Coll., as amended. The introduction of the fee resulted in a rapid reduction in the quantity of information originating from outside, which, from 1 305 initiatives taken in 2016, decreased to 93 in 2017, making it a decrease of more than 93%. This suppresses the transparency and fairness of the custom environment as a result of the resignation of individuals and organisations to their perceived problems. This is also related to the absence of its own control activity of the ÚOHS, which even requires the payment of this fee, also allegedly from administrative bodies which do not provide general incentives, but follow specific legislation. For all these reasons, the Constitutional Court should comply with the application and abolish the contested provision.

15. The Constitutional Complaints were also addressed by the Office for the Protection of Competition (a comment from the Constitutional Court: although it is not a party to the proceedings in this plenary case, it is nevertheless an intervener in the proceedings on a constitutional complaint which was interrupted precisely for the purpose of examining the application for annulment of the legislative provision in question by the plenary), which, on the question of the contested constitutionality of § 259 ZZZZZZ, stressed the specificities of public contracts, which are by nature private law and where a fundamental economic interest is given in the possible examination of the procurement procedure. It is therefore appropriate to concentrate in particular on such procurement procedures where at least a potential positive impact on the efficient use of public funds can be observed after the intervention of the ÚOHS. This environment is highly specialised and is quite different from the ordinary public administration agenda. The purpose of the fee in question is to rationalise the processes under which the contracting authority's procedure and to streamline the activities of the ÚOHS can be questioned. The amount of CZK 10,000 is not disproportionate and is completely negligible compared to the amount of the deposit. It is clear that the vast majority of the initiatives put forward are motivated by the attempt to defend the private interests of the competitor. However, this amount is not disproportionate even to the absolute amount, as it is a marginal amount, for example, of bagging disputes and therefore does not prevent anyone from accessing the Office. However, it is likely to "filter out" stimuli of a bullying or obstructive nature in a desirable way. There is also no restriction on the constitutionally guaranteed fundamental rights, and the contested legal provision will therefore stand up and should not be lifted, as it is not a barrier to the submission of an initiative by a person who is not directly involved in a specific procurement procedure.

16. The Constitutional Court first examined whether all procedural conditions for the examination of an application under Article 87 (1) (a) of the Constitution laid down by the Law on the Constitutional Court were fulfilled in the present case.

17. According to the provisions of § 64 (1) (e) of the Law on the Constitutional Court, as amended by Act No. 83 / 2004 Coll., the proposal to repeal the Act or its individual provisions is pursuant to Article 87 (1) (b). (a) the Constitution is entitled to lodge a complaint under the conditions laid down in Paragraph 74 of this Act or a motion to renew proceedings under the conditions laid down in Paragraph 119 (4) of this Act.

18. Paragraph 74 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., states, in turn, that, together with a constitutional complaint, an application may be made for the annulment of a law or other law or its individual provisions, the application of which resulted in a fact which is the subject of a constitutional complaint if, according to the complainant's claim, they are contrary to a constitutional law or, where appropriate, to another law.

19. The Constitutional Court, in the context of the assessment of the appellant's right to file an application for annulment of the contested provision pursuant to Article 64 (1) (e), in conjunction with Article 74 of the Constitutional Court Law, assessed whether the application of that provision constituted a fact which was the subject of a constitutional complaint, i.e. whether it might have infringed the fundamental rights relied upon. Such application of the contested provision would be if, in a constitutional complaint, the alleged breach of fundamental rights and freedoms were a result of its application to the appellant, and the removal of that infringement would not have occurred other than by excluding its use in a retrial or procedure by a court or other public authority [cf. Resolution of 7.2.1995 sp. zn. Pl. Pl. Pl. In other words, in the case of the appellant, it must be given the possibility of projecting a possible de-rogation into the outcome of the proceedings on a constitutional complaint, although there may also be facts which, despite the application of a non-constitutional law, do not allow [typically the protection of the rights of other persons who acted in confidence in the non-constitutional law, see e.g. the finding of 18.12.2007 sp. zn. IV ÚS 1777 / 07 (N 228 / 47 SbNU 983); prevent the non-application of an unconstitutional law from having more adverse consequences for the appellant than its application; e.g. the finding of 6.3.2012 sp. zn. IV. ÚS 1572 / 11 (N 45 / 64 SbNU 551); the need to avoid a threat to the State's ability to perform its functions (e.g. in view of the impact on the state budget) or to the threat of other comparable public interest; e.g. finding of 10.7.2014 sp. zn.

20. In the present case, the subject-matter of the proceedings was defined by an action for protection against the unlawful interference of the defendant, consisting of the condition that the complaint was dealt with by the payment of a fee in accordance with § 259 ZVZZ. This was a substantially different procedural situation than the one decided by the Constitutional Court by the repeatedly mentioned resolution sp. zn. Pl. ÚS 28 / 18, when the complainant requested the State to issue an unjustified enrichment under Article 2991 of the Civil Code of CZK 10 000 with legal interest on late payments, which was to be incurred by the State by collecting an unconstitutional fee under the contested provision. In the present case, any conclusion on the non-constitutionality of the contested provision could lead to compliance with the appellant's application and could also have an impact on the assessment of the veracity of its constitutional complaint in the sense previously mentioned. In fact, as is referred to above, the ground for which the defendant of the ÚOHS did not react to the complaint was precisely the existence of the currently contested legal provision. Consequently, after its possible annulment by the Constitutional Court, the legal ground for which the Authority has not dealt with this complaint will be dismissed.

21. In the present case, the conditions of the appellant's design authorisation under § 64 (1) (e) in conjunction with § 74 of the Constitutional Court Act are therefore fulfilled.

22. 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.

23. The Constitutional Court, based on publicly available press releases from the Chamber of Deputies and the Senate (all available at www.psp.cz, www.senat.cz), has found the following facts.

24. The government bill on public procurement was circulated to Members as Press No. 637 / 0 on 27 October 2015. The Organising Committee recommended, as rapporteur of JUDr. Ing. Jiří Pletich, that the draft law should be discussed by the Committee on Public Administration and Regional Development. The first reading of the bill took place on 25 and 26 November 2015 at the 36th meeting and the bill was ordered to the committees (Resolution 976). The bill was discussed gradually (and repeatedly) by the Economic Committee, the Public Administration and Regional Development Committee and the Constitutional Committee. They adopted amendments to the draft law. The second reading took place on 27 January 2016 at the 39th meeting when the draft law passed a general and detailed debate. The amendments tabled were incorporated as Press 637 / 6. The third reading took place during the 42nd meeting on 4 and 9 March 2016, with the bill being approved (Resolution 1100).

25. The bill was subsequently passed on to the Senate by the Chamber of Deputies on 14. 3. 2016, and the Senate register refers to Press No. 220 / 0. The Committee on Territorial Development, Public Administration and the Environment was designated as the Guarantee Committee. Furthermore, the draft law cited was directed to the Committee on Economy, Agriculture and Transport and to the Constitutional Law Committee. All three committees have adopted amendments to the draft law. The Senate subsequently addressed the bill at its 21st meeting on 6 April 2016 and returned the bill to the Chamber of Deputies with amendments by resolution No 380.

26. The Chamber of Deputies then adopted, at its 44th meeting, a bill as amended by the Senate (Resolution No 1181).

27. The law was delivered to the President of the Republic on 21 April 2016 and signed it. The Act was published in the Collection of Laws on 29 April 2016 in the amount of No 51 under No. 134 / 2016 Coll. and the Act became effective on 1 October 2016.

28. On the basis of that Constitutional Court, it notes that Act No. 134 / 2016 Coll., which also includes the now contested provision § 259, was adopted in compliance with the quorum and with the majority of the votes set out in Article 39 (1) and (2) of the Constitution, was duly signed and declared in the Collection of Laws; It was therefore issued by the Constitution in the prescribed manner and within the limits of the Constitution provided for in the competence.

29. As mentioned above, the complainant linked the constitutional complaint to the proposal to repeal Section 259 of the Public Procurement Act. This legal provision reads as follows:

(1) The Office shall collect a fee of CZK 10 000 in respect of each contract in respect of which an error is indicated in the complaint in order to initiate an administrative procedure on its own initiative.

(2) Where several persons have taken the initiative jointly, the fee referred to in paragraph 1 shall be levied only once.

(3) The fee shall be payable when the complaint is lodged on behalf of the Office.

(4) Where a fee has not been paid by the deadline referred to in paragraph 3, the complaint shall not be settled.

(5) The fee is not refunded.

(6) No exemption from the fee or extension of the period for payment of the fee is permitted.

(7) The Administrative Charges Act does not apply. "

30. Article 1 (1) The Constitution is a sovereign, united and democratic rule of law based on respect for the rights and freedoms of man and citizen. At the same time (Article 2 (3) of the Constitution and Article 2 (2) of the Charter), state power serves all citizens and can only be exercised in cases, within the limits and in the ways laid down by law. According to Article 11 (5) of the Charter, taxes and charges can only be imposed by law.

31. It is precisely the constitutional principle of the rule of law that makes it clear that there is a requirement of predictability and inconsistency of law and a ban on libel; at the same time, the principle of primate of the individual before the state, where the state serves all citizens and not the citizens of the state. The requirement of clarity of the law and its internal compliance is all the more valid where the law provides for a charge obligation (Article 11 (5) of the Charter), as is the case now under review. From Article 4 (1) The Charter is based on the fact that obligations can only be imposed on the basis of the law and within its limits and only with respect to fundamental rights and freedoms. This charge obligation must therefore be laid down by law in a clear, comprehensible, consistent and predictable manner.

32. But, as will be explained further, it is with these constitutional principles that the contested legal provision will not stand up.

33. According to the provisions of Section 249 of the Public Procurement Act, "the procedure for reviewing the acts of the contracting authority shall be initiated on a written proposal from the complainant... or ex officio '. If, therefore, the Authority has reason to suspect that an infringement has been committed by the contracting authority, it is obliged to initiate administrative proceedings. The law does not, in accordance with the purpose of the principle of official law, further regulate the sources from which the Authority is entitled to obtain information on the error of the contracting authority. This will be mainly about information obtained in the context of the monitoring activity carried out by the ÚOHS itself, or at the initiative of any natural or legal person or other administrative body (e.g. the Police of the Czech Republic), but also from other sources (typically from the media, from a proposal that does not meet the statutory requirements, etc.).

34. In view of the presumption of rationality of the legislature, a comparison is also offered to the provisions of Section 42 of the Administrative Code, according to which: "The administrative authority is obliged to take initiatives to initiate an ex officio procedure. Where the complainant so requests, the administrative authority shall inform him within 30 days of the date on which the complaint was received that he had initiated the procedure or that he did not find reasons for initiating the procedure to be ex officio, or that the complaint had been forwarded to the competent administrative authority. The communication shall not be sent by the administrative authority if it is referring to the complainant pursuant to Article 46 (1) or Article 47 (1). '; This provision contains a general provision governing the opening of proceedings by an official administrative authority, which is however more detailed and concrete compared to the cited Section 249 of the Public Procurement Act. If, therefore, the legislature had not incorporated the contested provision in the Public Procurement Act, Paragraph 259, it would have been appropriate to proceed in accordance with Section 42 of the Administrative Regulation.

35. The Constitutional Court has already been able to comment in part on similar issues in the past when, when examining the so-called other intervention of a public authority within the meaning of Article 72 (1) (a) of the Constitutional Court Act (i.e. the procedure of the Office for examining the conformity of a contract with the law), it has stated that it cannot depend on the willingness of the administrative authority to initiate proceedings (which can only be initiated on its own initiative), as its activities are also governed by the principle of official character, according to which that authority has both the right and the obligation to initiate proceedings as soon as the facts foreseen by the law occur, and regardless of how it has been established. On the other hand, however, there is no constitutionally guaranteed fundamental subjective right to initiate proceedings against another in which the alleged infringement would be prosecuted [cf. II. ÚS 586 / 02 of 8.10.2002 (U 34 / 28 SbNU 433)].

36. in resolution sp. zn. II. ÚS 2990 / 13 of 23 October 2013 The Constitutional Court interpreted the provision of Paragraph 42 of the Rules of Procedure in such a way that the complaint lodged there must be understood as "only 'as an incentive for further action (again, according to the Constitutional Court, there is no right of complainants to prosecute another person for an administrative offence). On the other hand, however, administrative proceedings are governed by the principle of both official and legal law, according to which the institution is obliged to prosecute all the offences it becomes aware of. In other words, there is no right to comply with the complaint and an appropriate obligation on the administrative authority to initiate the procedure. The possibility of initiating an administrative procedure on an ex officio basis (albeit on the basis of an external initiative within the meaning of Article 42 of the Administrative Regulation) is primarily intended to ensure that, in the public interest, an administrative question is dealt with by an authoritative authority and not by the exercise of individual subjective rights of natural and legal persons (cf., also the Supreme Administrative Court judgment of 7.5.2010, sp. zn. 5 Ans 5 / 2009; all case-law of this court is available at www.nsjus.cz).

37. However, the caselaw also admits, on the other hand, that acts or procedures in the investigation of the initiation of proceedings pursuant to Paragraph 42 of the Administrative Regulation and the communication of the outcome of such an investigation may constitute unlawful interference within the meaning of Paragraph 82 of the EC Treaty, if it affects the rights of the notifier (cf., the Supreme Administrative Court judgment of 15.12.2016 sp. zn. 2 As 225 / 2016). In the light of the principle of good administration, it is necessary for the administrative authority, in the communication to the administration, to not initiate the administrative procedure, to at least briefly deal with the reasons for the decision (see judgment of the Regional Court in Brno of 29 June 2017, sp. zn. 31 A 81 / 2014).

38. The legal provision currently under appeal provides for a fee for the submission of an initiative to initiate an ex officio review procedure (paragraph 1). The legislator made the handling of the complaint subject to payment of this fee (paragraph 4). This procedure cannot, of course, be understood as merely a communication by which the ÚOHS, pursuant to the provisions of § 42 of the Administrative Regulation, will inform the complainant whether or not an ex officio procedure has been initiated under § 249 of the Public Procurement Act. This communication is merely information on how the complaint is handled. Instead, the handling of the complaint is a matter of familiarisation with its content and of the associated apriorative assessment of its rationality, which will not often be possible without the Office for the Protection of Competition not requiring appropriate documentation under Section 258 (1) of the Public Procurement Act. Therefore, if Article 259 (4) of the Public Procurement Act provides that the complaint is not to be dealt with in the event of non-payment of the fee, that means that the Authority is not to deal with it in its own right for the purpose of possible initiation of an ex officio review procedure. At the same time, the complainant should be aware that the non-payment of the fee will not result in the execution of the complaint, which is further in view of the fact that the consequences arising directly from the law will not be notified.

39. In the context of the charge in question, in the light of Article 11 (5) of the Charter, the Constitutional Court also recalls the normal meaning of the fees provided for by the law. As a general rule, fees can be defined as one of the public-law revenues imposed on individuals by public law in such a way as to cover at least part of the costs associated with their activities. As K. Engliš (Financial Science, Fr. Borová in Brno, 1929, p. 74 et seq.) has consistently explained, both fees and taxes are authoritatively determined contributions of subordinate economies, "but taxes only in terms of capacity, fees also in terms of individual benefits." Therefore, "the top purpose of fees is never yield '. Similarly, M. Bakéš notes (BAKESH, M. et al., Financial Law. 3., C. H. Beck, 2003, p. 87) that" whereas taxes are mostly inequivalent to payments for which direct consideration is not provided, while payments which are more likely to have a periodic character are usually levied on a one-off basis, in the context of some kind of consideration by the State or its authorities, counties, municipalities, etc. Thus, they are generally in the nature of a certain equivalent for the provision of services, authorisation, court decisions, etc.'.

40. The arguments put forward by the appellants of the contested legal arrangements are therefore completely wrong with the normal function of the fees, since the appellant and the fee paid for it does not provide any equivalence at all. This equivalence is given where the payment of a fee makes it conditional on the opening of legal proceedings (administrative, judicial) in which the rights and obligations of its participants are decided, or otherwise, on compensation of the payer (waste charge, dog fee, etc.). In the present case, however, no proceedings are initiated by paying the charge and can therefore only be granted a certain regulatory function. In the present case, this is not a normal administrative (or judicial) charge which is linked to "other 'legal protection in the terms of Article 36 (1) of the Charter, but to matters of public or public interest (in previous terminology - denunciation).

41. The purpose of the fee obligation thus defined is to (as is given, in particular, from the Government's observations mentioned above) to prevent the administration of manifestly unfounded or burdensome submissions, thereby reducing the overall burden on the ÚOHS of handling such initiatives. Therefore, in the light of the fee, those who wish to lodge the complaint should consider whether the complaint actually has a chance to result in the initiation of an ex officio review procedure.

42. In this context, however, the Constitutional Court did not overlook the ombudsman's remark in its observations. In fact, with reference to the inquiries carried out by the Ombudsman (or its representative's), the Ombudsman stated that in 2017 the Authority had not carried out any control in the field of public procurement, in 2018 (probably on the date of the submission of the observations to the Constitutional Court) only five checks had begun, only after the initiation of the inquiry by the Ombudsman. As noted above (as stated by the Authority itself in the Annual Report), the number of initiatives investigated by the Office after the introduction of the charges fell significantly from 1,305 in 2016 to 93 in 2017. According to the Constitutional Court, regardless of the frequency of the independent audit activity by the authorities, it can be concluded that the initiatives are an irreplaceable source of information for the Authority's activities, since even its best control activity cannot far replace the interest of those outside the Authority. However, in the information framework, there is no indication, according to the Constitutional Court, that the introduction of a charge would create room for the Office to better examine the actual reasonable incentives; After all, the Office itself expressed its views on the procedure for a constitutional complaint under point II.II of the ÚS 3621 / 17, adding to its observations the amendment in question (or the House Press and its justifications), but it did not return to fulfilling the reasons set out therein, which explained the need for a change to the original draft law, even using practical considerations.

43. Thus, according to the Constitutional Court, the legislation under assessment does not create room for more efficient solutions to the Authority's genuinely reasonable initiatives and cannot protect the rights and freedoms of the contracting authorities themselves in a meaningful way, so that the above-mentioned regulatory function of this charge has not been fulfilled. In addition, it is pointed out in the expert literature (cf. HARNACH, J. Incentive fee - cánek on the new ZVZZ. Public procurement, 2016, No 4, p. 43- 44) that the investigation of the complaint by the contracting authority does not in any way limit the procurement procedure in which, regardless of the investigation, it can continue and reach a contract with the selected supplier. This is due to the continued electronic use of public contracts, where the contracting authority has all the supporting documents in the course of the ongoing investigation. In addition to the theoretical view, the Authority's burden argument must also be viewed in a somewhat practical manner. The number of staff of the Authority was dimensioned to a high number of review activities under previous legal arrangements. However, a number of legislative changes have been made in the meantime, which has reduced the Authority's review agenda (cf. Article J. Harnacha in detail).

44. Paragraph 259 (7) of the ZZZZZ also shows that the fee in question is not covered by Act No. 634 / 2004 Coll., on Administrative Charges, as amended, ("the Act on Administrative Charges'). However, this means, inter alia, that neither the State authorities nor the local authorities are exempted from this charge under Article 8 of the Law on Administrative Charges, or Certainly, it cannot be argued - seen by the reasons for the amendment - that it is these entities who would want to burden the Authority or the contracting authorities themselves unreasonably. It is also in this partial aspect of the present case that the absurdity of the contested legal provision and the absence of the above-mentioned regulatory function of this charge, which must also be applied by the State authorities, is thus fully evident, and it is not even clear whose income it is and what its proceeds are to be used for.

45. A key problem with the contested legal provision (paragraph 4) is the result of the non-payment of a fee in terms of the obligation of the ÚOHS to initiate the procedure for reviewing the acts of the contracting authority in accordance with Section 249 of the Public Procurement Act. On the one hand, the law foresees that the ÚOHS will examine all the relevant circumstances which could justify the initiation of an ex officio procedure for reviewing the acts of the contracting authority, but, on the other hand, precludes it from dealing to that end with those initiatives which did not pay the fee. Thus, there is a considerable contradiction between the two legal obligations of the Office, and the contested legal provision therefore contradicts the above requirement of predictability and inconsistencies of the law as a fundamental precondition for the rule of law, as well as the requirement of good administration, based on a friendly approach and communication between administrative authorities and citizens.

46. The ÚOHS must always be aware of the content of the complaint, for the sole purpose of assessing whether or not it is a complaint for which a fee may have been paid. However, if, pursuant to Article 259 (4) of the Public Procurement Act, the complaint is not to be dealt with, then, for the purposes of assessing the merits of the opening of the procedure, it must no longer deal with the facts mentioned therein. In essence, the Office is therefore to select facts which it will take into account or disregard ex officio when initiating the procedure, depending on whether it has learned them on the initiative of which the fee has not been paid or otherwise. Therefore, even if the Authority were to be aware of the content of such an initiative and it appeared to it to be significant, that provision prevents it from handling it, thus further addressing it and, for this purpose, for example, requested appropriate documentation. In this way, however, the contested legal provision creates a very absurd situation, leading to the possible abuse of that institute in the event of the complaint and the non-payment of the relevant fee. In short, the payment of the fee shall be subject to the administrative procedure where the latter is obliged to initiate an official procedure. The legislature thus charged the complaint even in a situation where the State is obliged to act ex officio, i.e. to carry out one of its statutory activities (Article 2 (3) of the Constitution and Article 2 (2) of the Charter).

47. Paragraph 259 (4) of the Public Procurement Act thus specifies and follows up on the provisions of Section 249 of the Public Procurement Act (in relation to the opening of the procedure on an ex officio basis), but at the same time it enters into an internal conflict of content. As a result, this means that, in the event of failure to pay a fee, the obligation to initiate or initiate an administrative procedure may not apply only if such a complaint has been lodged again and properly (possibly by the same person) or if the Authority finds otherwise in its official business. However, a distinction between the facts which the OHS can take into account according to the way it was acquired would be very problematic, easily influenced and hardly verifiable. The ÚOHS would probably find a way to address the facts mentioned in the complaint for which a fee was not paid. By virtue of its supervisory powers, and in particular the possibility of initiating an ex officio review procedure under Section 249 of the Public Procurement Act, it can deal with any procurement procedure even without an initiative. In its observations, the Government even admits that, in its supervisory and control activities, the Authority should also address the content of initiatives which it does not deal with, which would, however, completely undermine the sense of the obligation not to deal with the complaint, as expressly follows from the contested legal provision.

48. However, this ambiguity, unforeseeable and, in relation to other legal provisions, an intrinsically contradictory definition of the duties of the Authority results in the Office either handling all the initiatives, but as a result it does not respect Article 259 (4) of the Public Procurement Act; or he will actually choose the incentives he will be looking at despite the unpaid fee. However, such a "ambiguous" conclusion, which is in a possible view of the administrative authority, is unacceptable under the rule of law and is correlated with Article 11 (5) of the Charter, since, on the basis of the statutory fee, it must be quite clear what its meaning is and what will follow its reimbursement.

49. Therefore, the ambiguity of the circumstances in which the EOHS may (or even must) address the requirements of predictability and indivisiveness of law and the prohibition of libel arising from the rule of law under Article 1 (1) of the Constitution. The ÚOHS may not, on the one hand, deal with the complaint in the event of non-payment of a fee pursuant to Section 259 (4) of the Public Procurement Act, on the other hand, has an obligation under Section 249 of the Public Procurement Act to deal with its content if it could result in facts leading to the initiation of a review procedure by the contracting authority. In fact, the complainant pays a fee to the ÚOHS, despite the ambiguity of the content of Section 259 (4) of the Public Procurement Act, to fulfil its legal obligation to deal with all the relevant circumstances, that is to say that there is no unconstitutional state on the part of the State where the Law requires (and simultaneously) a certain procedure. In fact, in return for the fee, the ÚOHS will comply with its constitutional and legal obligations, which must always be given in the rule of law. The constitutionality and legality of the ÚOHS procedure shall not be the actual object of the fee. In general, the solution of that discrepancy in favour of the supervisory and control authorisations indicated by the Government would, in turn, result in the non-payment of the complaint fee being completely unnecessary. In this interpretation, notwithstanding Article 259 (4) of the Public Procurement Act, the ÚOHS would always address all initiatives and evaluate their content. However, if the complaint has to be dealt with regardless of the payment of the fee, that means that the charge has no meaning in relation to the execution of the complaint.

50. Therefore, the interpretation of the relevant legal regulation leads to the conclusion that the charge under Section 259 of the Public Procurement Act is either free of any consideration, or that consideration is to avoid the creation of an unconstitutional situation which would result from the need for the simultaneous application of the conflicting provisions of Sections 249 and 259 of the Public Procurement Act. In the first case, the inconstitutionality of the charge is based on the fact that the person who pays it (i.e. the person who fulfils his legal obligation) will ultimately be able to do the same as the person who fails to fulfil that obligation, for which, according to the contested provision, there is no penalty. In fact, the fee thus imposed itself "sanctifies" the person who paid the fee by paying it, which is the manifestly unacceptable consequence of the charge obligation, which is contrary to the constitutional prohibition of libel under Article 1 (1) of the Constitution. In the latter case, contrary to ensuring the constitutionality and legality of the procedure of a public authority, something which must be guaranteed unconditionally and unexceptionally in the rule of law - the State should not charge a special fee to act where it is required by law. The charge obligation, the consideration of which should be precisely respect for the fundamental principles of the rule of law, thus runs counter to the prohibition of libel under Article 1 (1) of the Constitution and is contrary to the obligation of public authorities under Article 2 (3) The Constitution shall apply state power only in the cases, within the limits and in the ways laid down by the law. Such a fee cannot be imposed on anyone. Therefore, the Constitutional Court did not deal with the level of the fee itself.

51. For the sake of completeness, it should be added that the inconstitutionality found relates to the full provision of Section 259 of Act No. 134 / 2016 Coll., on the award of public contracts and not only its paragraphs 4. The consequence foreseen by this paragraph cannot be separated from the rest of the legal regulation of the fee obligation in question without substantially changing its content. By deleting paragraph 4, a new complaint fee would have been imposed, which would have been due at the time of the complaint, and, in the event of non-payment, would have been enforced by the taxpayer in a standard manner in accordance with Act No. 280 / 2009 Coll., Tax Code, as amended. However, the legislator did not establish such a much stricter outcome. It would therefore be an unacceptable interference with the legislature's competence if the Constitutional Court "created a new, even more burdensome, charge by deregation.

52. Since the contested legal provision is, for the reasons set out above, contrary to Articles 1 (1) and 2 (3) of the Constitution and Article 2 (2) and Article 11 (5) of the Charter, the Constitutional Court has no longer dealt with the alleged breach of further constitutional bail-outs (Articles 18, 21 (1) and 36 (1) and (2) of the Charter) as this would be superfluous.

53. The Constitutional Court, pursuant to the provisions of § 70 (1) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., has complied with the complainant's proposal and has decided that the provisions of § 259 of Act No. 134 / 2016 Coll., on the award of public contracts, are repealed on the date of the publication of this finding in the Collection of Laws.