The Constitutional Court found No 338 / 2017 Coll.
The Constitutional Court found of 8 August 2017 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
16.10.2017
338
FIND
The Constitutional Court
On behalf of the Republic
On 8 August 2017, the Constitutional Court decided, under sp. zn. Pl. ÚS 9 / 15, in plenary composed of the President of the Court of Paul Rychetský and the Judges and Judges of Louis David, Jaroslav Fenyk, Josef Fiale, Vladimir Sládeček, Radovan Suchánek, Kateřina Šimáčková, Vojtěch Šimíček, Milady Tomková, David Uhlíř (Judge of the Rapporteur) and Jiří Zemánek, on the proposal of the Supreme Administrative Court to declare inconstitutionality of the Czech Republic § 10b paragraph 1 (a) of Act No 565 / 1990 Coll., on local fees, as amended by Act No. 185 / 2001 Coll., by the Chamber of Parliament of the Czech Republic and the Senate as parties to the proceedings,
as follows:
Paragraph 10b (1) (a) of Act No 565 / 1990 Coll., on Local Charges, as effective until 30 June 2012, was contrary to Article 32 (1) in conjunction with Articles 4 (4), 3 (1) and 11 (1) in conjunction with Article 4 (4) of the Charter of Fundamental Rights and Freedoms.
Reasons
Definition of the case
1. Pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Declaration of Inconstitutionality of Article 10b (1) (a) of the Act No. 565 / 1990 Coll., on Local Charges, as amended by Act No. 185 / 2001 Coll., which is effective until 30.6.2012 (hereinafter referred to as "the Law on Local Charges').
2. The appellant stated that, as an 11-year-old complainant, the local charges for the operation of the collection, collection, transport, sorting, recovery and disposal system of municipal waste (hereinafter referred to as "the charges for the operation of the waste collection system ') for 2002 and 2003 were charged to the complainant in the appeal proceedings by J. B. on whose appeal the complaint is brought under sp. zn. 9 As 211 / 2014. Payment notices were delivered to the complainant's mother at the address No T. The addressee was not known at that address, so the tax administrator delivered the returned consignments by a public decree. In January 2007 (to the address No T.) and October 2008 (to the address H.), the complainant's mother received calls for payment of arrears within the deadline. In October 2008, a payment notice was also delivered to the complainant's mother to measure the fee for the operation of the waste collection system for 2006. In June 2009, the complainant's mother received an invitation to pay arrears on the basis of the three abovementioned payment notices. However, the complainant's mother did not respond to these calls. On 16 November 2011 (i.e. after the acquisition of the complainant's maturity), an execution order was issued to make a deduction from the complainant's salary to recover the fee for the operation of the waste collection system for the years 2002, 2003 and 2006. The complainant attacked this execution order unsuccessfully by appeal. The decision to appeal was subsequently unsuccessfully challenged by the action before the Regional Court in Ostrava. The appellant is now in charge of the appeal against his judgment.
3. The Supreme Administrative Court, when examining the case in advance, concluded that Paragraph 10b (1) (a) of the Local Charges Act, as amended by 30 June 2012, in the part in which it imposes a charge on young children residing in the municipality and does not transfer that charge at least on a payment basis to the legal representative of a minor, cannot be interpreted in a manner consistent with the constitutional order of the complainant. In his view, this regulation is contrary to the right to the protection of property, to the special protection of children and adolescents, the right to a fair trial, and also to the obligation of the State to respect the best interests of the child. The following considerations led to this:
4. The Law on Local Charges, in its operative version, provided for permanent residence in the municipality as a decisive aspect for determining the taxpayer. He did not take into account the age of the taxpayer or his financial self-sufficiency. The creation and termination of the charge obligation for the operation of the waste collection system is generally fully within the jurisdiction of the municipality. However, the municipality cannot influence a clearly defined range of taxpayers, including minors. The municipalities have wide scope for defining concessions and exemptions from local charges in the generally binding Decree, which they introduce. By 31 December 2010, they also had the possibility to waive the fee or its accessories on request due to hardness. None of these possibilities apply to the complainant. According to the previous case-law of the Supreme Administrative Court, it is necessary to assess whether payment orders have been duly delivered - this will also not be the case in cases where a minor is in conflict with his legal representative who has taken over the payment notice (in case sp. 1 As 116 / 2014, the minor has been ordered by constitutional education because her mother was not competent). However, in Case C-211 / 2014, the court did not find the complainant's family relations to be inoperable. It is not possible to find any deficiencies in delivery in that the complainant was not involved in the proceedings. Minors should be involved in driving according to their age, rational and emotional maturity. However, the complainant was eleven years old at the time of the payment orders for 2002 and 2003 and could therefore not be sufficiently advanced to participate effectively in the assessment procedure before the tax administrator. In the case of the 2006 payment notice, although the complainant was already 15 years old, the delivery of her legal representative was impeccable. Moreover, the correction of any deficiencies in service (which are not given in the complainant's case) could not lead to the correction of any deficiencies in the contested legislation.
5. The imposition of taxes and charges is generally a constitutionally permissible interference with property law. However, their choice cannot lead to a denial of this right, in particular, the legislator cannot impose such a tax obligation if it can be assumed that taxpayers will not be able to fulfil it at all (without this being due to the subjective circumstances on their part). A minor complainant was subject to a fee obligation regardless of its property situation. It is clear that minors will not normally have any property from which to fulfil their tax obligations. At the same time, they will not have the opportunity to acquire such property by working. This is also the case with the complainant, which was nine, ten and thirteen years in the relevant period. In a situation where a large group of underage taxpayers do not have or can not have any property, the imposition of a fee obligation is not only to thwart the substance of the property itself, but even its negative - these taxpayers are entering adulthood with public debts. Taxes and charges should be imposed on minors only if they affect their property or income. Only in such cases, compliance with payment obligations depends on the possibility of a minor, not on the possible fulfilment of the maintenance obligations of parents or other persons. The imposition of a tax liability on minor minors may be regarded as a denial of the substance and meaning of the rights guaranteed by Article 11 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter). It is therefore an extremely disproportionate regulation prohibited by Article 4 (4) of the Charter.
6. It is the responsibility of the Czech Republic to provide children with such protection and care as is necessary for their welfare. The creation of a minor's debt, which will have to be repaid from any first income, does not correspond to that obligation. While it cannot be completely excluded for minors to incur debts. However, the protection of the best interests of the child requires that adequate substantive and procedural safeguards exist, including, where appropriate, against the legal representative of a minor or in the event of negligence. Children cannot influence whether they are legally in a relationship with the municipality established by the Local Charges Act as a result of the declared permanent residence. In principle, they cannot influence the proper payment of the fee; the respective payment notice may not be available at all. By 30 June 2012, the legislation had assumed silently that parents or other legal representatives would be obliged to pay for the child. This can be expected in functional families. However, formally neutral legislation affects minors whose parents do not comply with the obligation to pay as part of parental responsibility. This may result in unequal treatment on the basis of social origin.
7. The adjustment of the fee obligation therefore makes a child a taxpayer who is not normally employed and has no ability to influence his or her fee obligation, but is (exclusively) responsible for its compliance, even though he or she often cannot. This obligation can be enforced, and the debt often becomes known when it is enforced after maturity. Thus, the underage is in a significantly worse position than the other taxpayers, as it is built before the final act and the fees due must be paid (the execution procedure cannot be reviewed by the defects of the evaluation procedure). Although the highest fee rate is relatively small, the accumulation of fee periods, the cost of recovery and the possibility of a triple increase in the fees not paid in time leads to debt reaching several thousand crowns when maturity is achieved without any fault of the taxpayer. Such a cumulative effect has a severe effect on taxpayers. The Ombudsman also referred to this in the 2008 Synthesis Report on his activities. These conclusions fully affect the complainant's case, since, at the time of the execution order, it itself provided part of the cost of living by occasional work (the mother was without income). Currently, the complainant is studying at a university and receiving an orphan's pension.
8. In conclusion, the Supreme Administrative Court stated that the defects of the contested legislation cannot be remedied by the possible enforcement of compensation between the child and his parents who neglected their parental responsibility. This entails, on the one hand, additional costs, and, on the other hand, it does not always come into consideration (the death of the parent as in the case of the complainant, his lack of property, unknown residence, etc.). In particular, in the families of the deprived or for some reason inoperable, this will result in completely disproportionate effects of the contested legislation. This is not an isolated case as the appellant is conducting further proceedings on complaints in similar cases (proceedings are suspended until the decision of the Constitutional Court). It can therefore be concluded that special protection for children and adolescents is not ensured.
Proceedings before the Constitutional Court
9. The Chamber of Deputies stated in its observations that the fees for the operation of the waste collection system were inserted into the Act on Local Charges by Act No. 185 / 2001 Coll., on Waste and on the amendment of certain other laws. This was discussed as a government bill (Press 705) and was approved as amended. After the bill was returned by the Senate, the bill was approved on 15 May 2001, the bill was signed by the relevant constitutional authorities and was duly declared.
10. The Senate stated that it had discussed the bill and, after a debate which focused mainly on the content of the draft waste bill and on amending some other laws, returned it to the Chamber of Deputies as amended. It was adopted by the Senate. The law has been properly signed. With effect from 1 July 2012, the contested provision was amended by introducing, in conjunction with Article 12, the solidarity of the minor and his legal representatives. The Senate dealt with the rigour of legislation in its 9th term (Press No 303). The Senate Bill was submitted to the Chamber of Deputies (Press No. 287), but the Senate withdrew it on 23 December 2014. According to this proposal, inter alia, persons who are placed in an establishment for the exercise of constitutional or protective education or in an establishment for children requiring immediate assistance should be exempt from the charge. Furthermore, it should not have been possible to charge a fee to a taxpayer incurred at the time of his minors, even after he had reached age. At the same time, it should have been possible to waive the fee on official duty. The Senate therefore dealt with the issue of the issue, while doubts about constitutionality did not arise. With a view to the approval of House Press No. 219 on 29 April 2015, which also addresses this issue, the Senate is prepared to further address it.
11. The Government stated that the matter had to be assessed on three levels: legislation effective until 30 June 2012, regulations effective from 1 July 2012 and the arrangements prepared (House Press No. 219, Senate Press No. 78). The legislation effective until 30 June 2012 determined the taxpayers according to their permanent residence regardless of their age or property situation. However, the later arrangements allow a fee to be charged to a minor or his legal representative, as they are solidarity debtors. The proposed arrangements foresee an automatic transfer of the fee obligation to the legal representative or guardian, as appropriate.
12. The contested regulation does not have a severe effect as the burden on taxpayers is not sufficiently intense. The fee rate in the relevant period was no more than CZK 500 per person per year. Thus, until the acquisition of maturity, the debt may amount to a maximum of CZK 9,000, an amount that an adult is able to repay in principle within a few months. The excessive burden does not result in a possible triple penalty increase in the case of late payment. The later increase in the upper limit of the fee to CZK 1000 was linked to the introduction of solidarity between the minor taxpayer and his legal representatives, which excludes possible negative influence on the taxpayer. Moreover, the fees are not enforced until the taxpayer receives some property or income.
13. Tax regulations also offer enough institutes to limit the adverse effect of non-payment of the fee. These are in particular the institutes of waiting for the payment of the tax or the distribution of its remuneration into instalments. The suspension is possible on request and on an official basis, if the immediate payment would have caused serious damage to the tax entity, its nutrition or the nutrition of persons dependent on it was at risk. These institutes prevent a charge for the operation of the waste collection system from having a confiscation effect. Similarly, it is possible to reduce the amount declared by wage cuts. The execution costs, if any, may be reduced by allowing municipalities to reclaim the fees due themselves, not by using judicial executors. The protection of minors is adequately ensured through parental responsibility. In the event of failure to comply, the child shall be able to claim compensation. Therefore, there are sufficient procedural and substantive safeguards for both child protection and a fair process.
14. It is not important to the point that the child does not choose a permanent residence. From a tax point of view, this possibility is irrelevant - tax is involuntary. Adults also do not choose the place of permanent residence according to the level of the fee requirement as they take into account more important aspects. The legislation under appeal is neutral, burden all underage taxpayers equally. On the contrary, discrimination would be a distinction between taxpayers according to whether they come from functional families. Therefore, any adverse effects are derived from a specific approach of the tax administrator which does not take into account the particular circumstances of the individual taxpayers. They do not result from the legislation itself, so it is not unconstitutional. Moreover, the proposed adjustment responds to this inappropriate practice of tax authorities by introducing an automatic transfer of a minor's fee obligation to his legal representative or guardian. The Government did not therefore consider the contested regulation to be unconstitutional and proposed the rejection of the proposal.
15. The Ombudsman stated that she would not exercise her right to intervene.
Content of the files submitted
16. The Constitutional Court of the applicant's file, sp. zn. 9 As 211 / 2014 and the file documents attached thereto, has verified that the circumstances of the case correspond to their description in the application. At the same time, the Constitutional Court also joined the sp. zn. 2 As 149 / 2014 and 7 Afs 18 / 2015, which the Supreme Administrative Court maintains in matters of fact and legally similar to that of J. B., which were suspended until the Constitutional Court's decision.
17. From the sp. zn. 2 As 149 / 2014, the Court found that the complainant in the appeal procedure B.A. had been gradually charged with payment orders of the Brno City Council for the operation of the waste collection system for the years 2004 to 2010 (the first payment notices were delivered to the complainant as 10 years, the last as 16 years). The complainant, the City of Brno, confirmed these payment notices (with the exception of the payment notices for 2007 and 2008, which had not been properly delivered to it, thus imposing a charge obligation). It was reported for permanent residence in Brno at the relevant time (except March to September 2007). By bringing an action against the Regional Court in Brno, the complainant challenged only the decision to appeal against the 2010 payment notice. This payment notice was originally delivered to her address of permanent residence, but at that time she remained in the court ordered constitutional education in the Children's Home in Boskovice. The payment notice was not delivered to her until 2012 via her lawyer. The Regional Court upheld the action and annulled the contested decision. In principle, the Regional Court raised a similar argument as the appellant in the present case, even in his view it is not possible to impose a charge on minors. However, the Court found no reason to refer the case to the Constitutional Court. It concluded that, although the Local Charges Act defines both taxpayers and minors at first sight, it is a charge obligation which must necessarily be imposed on parents or other legal representatives. The relevant provisions must therefore be interpreted not in accordance with their literal wording, but taking into account all the context: they do not require persons to pay the fee but persons for whom the fee is to be paid. The Municipality of Brno complained against this decision.
18. From the file in sp. zn. 7 Afs 18 / 2015, the court found that the complainant in the complaint proceedings by J. CH. had been charged with payment notices of the Brno City Council for the operation of the waste collection system for the years 2002 to 2012 (fees for 2004 to 2009 were waived). The complainant appealed against the 2012 payment notice (registered via a lawyer in 2013) but confirmed by the appeal authority. At the relevant time, the complainant was reported for permanent residence in the city of Brno, but he was effectively resident in the Children's Home in Boskovice as part of the constitutional education ordered by the Court in 2002. The complainant contested the decision of appeal by suing the Regional Court in Brno, which rejected it. The Court of First Instance did not agree with its earlier conclusions set out in the above-mentioned case B.A., since, in the meantime, the Supreme Administrative Court judgment No 1 As 116 / 2014-29 of 12.11.2014, according to which § 10b (1) (a) of the Local Charges Act defines directly the persons of the taxpayer, not the persons for whom the fee is to be paid. The complainant lodged a complaint against that judgment.
Procedural assumptions for discussion of the proposal
19. Article 95 (2) The Constitution states that the court shall bring the case before the Constitutional Court if it concludes that the law to be applied in the resolution of the case is contrary to the constitutional order.
20. This is a case of so-called specific (incident) and not abstract control of standards. The General Court is entitled to make a proposal if it proposes the repeal of the law or its individual provision, the application of which is to be immediate, or if necessary its unavoidable application, and not just a hypothetical use or other broader context [Resolution sp. zn. It follows from the purpose and purpose of the specific control of the constitutionality of legal standards that the law (or its provision) to be applied in the resolution of the case is only one which obstructs the achievement of a desirable, i.e. a constitutional, consensus result; If not removed, the outcome of the present proceedings would be different [point 26 of the sp. zn.
21. It is for the appellant to accept, on the one hand, the adequate argument that the contested law (its individual provision) is contrary to the constitutional order but, at the same time, to point out and prove that the use of the contested provision is unavoidable and that only its abolition will result in the achievement of the desired constitutional conformity result [point 19 of the sp. zn. However, the assessment of the impartiality of the application of the contested provision, by virtue of the nature of the case, belongs primarily to the general court which leads the initial proceedings. These are usually questions of sub-constitutional law, for which the Constitutional Court, as a judicial body for the protection of constitutionality, rather than of ordinary legality, is consistently held in restraint [the finding of sp. zn. The conclusion that the application of the contested provision is not necessary for the referring court may be made by the Constitutional Court in particular if the appellant's conclusion would be manifestly unsustainable [paragraph 20 of the sp. zn.
22. The Constitutional Court has also previously concluded that under Article 95 (2): The Constitution may be discussed in substance by the Court of First Instance on the declaration of the unconstitutional status of an already repealed law (or its provision) if it is still applicable to the present case and regulates in particular the relationship between the individual and the public authority [the findings sp. zn.
23. In the present case, § 10b (1) (a) of Act No. 565 / 1990 Coll., on local charges, as effective until 30 June 2012, was used to determine J. B. as a taxpayer for the operation of the waste collection system. However, according to the appellant's detailed reasoning, the complainant cannot be liable to the charge. According to Article 71 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, the declaration of the inconstitutionality of the contested provision would lead to the inoperability of payment orders issued in the complainant's case. If the case was still in the tax proceedings, it would be necessary, in such a situation, to suspend the execution of the Complainant's salary by virtue of Article 181 (2) of Act No. 280 / 2009 Coll., Tax Code, as amended by Act No. 458 / 2011 Coll. However, the matter is in the administrative procedure phase. The appellant therefore has the possibility of cancelling the execution notice under Paragraph 110 (2) (a) of the Administrative Rules.
24. This procedure cannot be rejected as manifestly unsustainable only because objections to the defects of the proceedings found (or the decision as a result thereof) cannot in principle be transferred to the enforcement proceedings. First, this principle is undoubtedly known to the appellant as it was itself judged by the appellant in the field of tax execution (judgment No 28 / 2009-124 of 19 September 2009, publ. under No 1966 / 2010 Coll. NSS), and, secondly, there are general exceptions from that principle, according to which fundamental defects of the Enforcement Order can be assessed in the execution proceedings. These are foreseen, for example, in § 268 (1) (h) of the Civil Code (The enforcement of the decision will be stopped if enforcement is inadmissible because there is another reason for which the decision cannot be implemented). Another reason, according to the civil courts, is that circumstances for which a further exercise is capable of establishing a conflict with procedural principles (although they may have material background). This conclusion has also been repeatedly stated by the Constitutional Court that that plea serves to eliminate manifest injustice also where enforcement would be contrary to the principles of the rule of law. [cf. Findings sp. zn. II. ÚS 2230 / 16 of 1.11.2016 or sp. zn. IV. ÚS 3216 / 14 of 17.12.2015 (N 218 / 79 CollNU 503) and the civil case-law cited therein]. The tax execution arrangements do not differ very much from those of the Civil Code: according to Paragraph 181 (2) (i) of the Tax Code, the tax administrator, on the basis of a proposal from the recipient of the enforcement order or by itself, will stop the official tax execution if there is another reason for which the tax execution cannot be continued. Therefore, the conclusions on "other reasons' under civil procedural arrangements can be considered as transferable under the tax rules, taking into account any special circumstances.
25. Nor can the conclusions of the permanent case law of the Constitutional Court on the execution of arbitration findings be omitted. In spite of the existence of the principle of "impermeability 'of the proceedings for the enforcement procedure [finding sp. zn. I. ÚS 466 / 97 of 13.8.1998 (N 88 / 11 SbNU 279)], it is possible to evaluate in the enforcement procedure the validity of the arbitration agreement as a condition for the issue of an exequated arbitration finding, since the law does not exclude [cf. Findings sp. zn. III. ÚS 462 / 12 of 24.10.2013 (N 179 / 71 SbNU 153), sp. sp. zn. I. ÚS 174 / 13 of 7.5.2013 (N 80 / 69 SbNU 335) or sp. ÚS 1624 / 12 of 27.9.2012 (N 164 / 66 SbNU 433) and in their cited case law]. The proposed procedure differs from that caselaw by the Supreme Administrative Court only in that the constitutionality of the contested provision as a condition for the issue of the enforceable title cannot be assessed by itself (unlike the civil court which may assess the validity of the contract). As the complainant may have challenged the execution title directly (by appeal and, where appropriate, by action against the payment notice), the debtor may have challenged it from the arbitration finding (by means of an application for annulment by the court). In spite of this possibility of defence, the Constitutional Court concluded that the opposition to the arbitration finding was admissible even at the stage of the enforcement procedure. It should be the same now.
26. It follows from the above that even in the execution proceedings it is possible, under certain conditions, to object to the proceedings and to the outcome thereof. Under these conditions, the unconstitutional nature of the Enforcement Order may also be assessed by the Enforcement Court and may result in appropriate consequences. The tax execution arrangements differ only in that the tax rules govern the procedure of the tax administrator, not the "executive administrative court '. However, the tax administrator has no way of asserting his doubts as to the unconstitutional nature of the regulation used for the issue of the enforceable title (Article 95 (2) of the Constitution is aimed only at courts, not administrative authorities). The administrative procedure as a review procedure is not an enforcement procedure in the strict sense of that term, but it is only administrative courts that can draw a procedural consequence from their conclusion on the unconstitutional nature of the legislation. In this context, the Constitutional Court generally recognises that there is a conceptual and institutional division between proceedings before administrative authorities and administrative courts (e.g. the finding of sp. zn. I. ÚS 3006 / 15 of 21.9.2016). It does not, however, regard it as an insurmountable division and, in spite of the concentration of the proceedings, requires the administrative courts to assess certain questions ex officio, even if they are legally required to assess them only by the administrative authorities [e.g. the findings of point (i) of Article 4 (1) of Regulation (EC) No 2486 / 13 of 1 October 2014 (N 184 / 75 of the SbNU 39), point (ii) of the ÚS 2732 / 15 of 12 January 2016]. In fact, the Supreme Administrative Court itself has recently concluded (in addition to the specific provisions of the constitutionally guaranteed rights and the resulting requirements of the Constitutional Court case-law) that, in the light of Article 4 of the Constitution, the thesis" administrative justice is not always sustainable' (Resolution No 5 of the extended Chamber of NSS No 104 / 2013-46 of 16 November 2016, pp. under No 3528 / 2017 Coll. NSS).
27. The appellant therefore considers it possible that, when reviewing a decision in the context of tax execution, the constitutionality of the original legislation under which the enforceable title was issued should also be reviewed (the finding and execution procedure are, moreover, sub-proceedings under Section 134 of the Tax Code). Whether it does so by interpretation of Paragraph 181 (2) (i) of the Tax Code, or by analogy with the Constitutional Court in the execution of arbitration findings, is a question of the sub-constitutional law which the Constitutional Court cannot fundamentally examine (the role of the supreme judicial authority here belongs to the Supreme Administrative Court under Article 92 of the Constitution, in conjunction with Article 12 (1) of the Administrative Rules). It is essential that this procedure cannot be ruled out by the appellant. A declaration of inconstitutionality of the contested provision, if any, would lead to the inoperability of payment orders, to compliance with the appeal complaint and to the annulment of the enforcement orders. The contested provision will therefore be used to resolve the case and prevent the result which the appellant considers to be consistent with the constitutional order. The active procedural legitimacy of the Supreme Administrative Court is therefore given.
28. Since the other conditions of the procedure have also been fulfilled, the Constitutional Court has agreed to a substantive hearing. According to § 44 of the First Law No. 182 / 1993 Coll., on the Constitutional Court, as amended, he abandoned oral proceedings because further clarification of the case could not be expected.
Self-assessment
29. The legislation of the Czech Republic provides the municipalities with a total of three different possibilities of financing the management of municipal waste: (a) the local fee for the operation of the collection, collection, transport, sorting, recovery and disposal system of municipal waste pursuant to § 10b of the Act on local charges; (b) the municipal waste levy pursuant to § 17a of Act No. 185 / 2001 Coll., on waste and amending certain other laws, as amended; or (c) the contractual system for collecting the reimbursement of municipal waste pursuant to § 17 (6) of the same Act. In the present case, underage J. B. was charged a fee for the operation of the waste collection system.
30. The contested provision of Paragraph 10b (1) (a) of the Local Charges Act, as applicable, provided that the fee for the operation of the collection, collection, transport, sorting, recovery and disposal of municipal waste is paid by a natural person resident in the municipality; the household fee may be paid by the joint representative, by the owner or by the administrator for the family or apartment building; those persons are obliged to notify the municipality of the names and dates of birth of the persons for which the fee is paid.
31. The Constitutional Court, pursuant to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., addressed whether the contested provision was adopted within the limits of the Constitution laid down by competence and by the constitutional procedure. In view of the observations made by both chambers of Parliament, the available descriptions of the legislative procedure for the adoption of the relevant law, as well as the fact that the legislative procedure is not even questioned by the appellant, it can be considered that the condition of constitutional conformity of the legislative process has been met.
General bases of the constitutional review of tax legislation
32. The Charter of Fundamental Rights and Freedoms in Article 11 (5) allows for interference in property law, which occurs in connection with the establishment, measurement and collection of taxes or charges [FIFG 29 / 05 of 1.6.2005 (N 113 / 37 of SbNU 463)]. The tax is imposed in the public interest, namely the acquisition of revenue by the State budget for the purposes of fulfilling the functions of the State [Points 40 and 41 of the found sp. zn. The issue of optimal tax burden is one of the issues the solution of which results from social consensus, preferences, population values, population mentality, traditions etc. Transferring political debate into tax legislation is the task of political representation from elections. The assessment of taxes in terms of the fulfilment of their basic functions or the suitability of the tax system falls within the competence of the democratically elected legislator, not the Constitutional Court [paragraph 78 of the sp. zn. Pl. ÚS 18 / 15 of 28.6.2016 (271 / 2016 Coll.)].
33. However, the abstention of the Constitutional Court in reviewing tax laws from the point of view of their constitutional conformity does not only stem from the interest in maintaining the principle of division of power and the responsibility of elected representative bodies, but also from the very nature of taxes. The tax is public budget implementation, which is characterised by ineffectiveness and inequivalence; Therefore, its payer is not entitled to a specific consideration by the public authority (point 41 of the above-mentioned finding sp. zn. Pl. ÚS 29 / 08). Its purpose is to obtain revenue from the State budget. From the point of view of the need, i.e. the existence of an equally effective but less burdensome vehicle, taxes in court proceedings cannot be assessed as there is no appropriate comparator. The assessment of necessity is therefore a matter of a political nature, the solution of which lies with the legislator. The proportionality of the relationship between the victim of the taxpayer in the form of intervention in his constitutionally guaranteed rights and the benefits achieved is also beyond the possibility of judicial evaluation. In the case of tax, the taxpayer and the whole company benefit from the proper functioning of the State. The rationality of balancing these benefits cannot be well assessed from a constitutional point of view. If the court were to do so, it would inevitably enter into the field of individual policies, which does not belong to it (point 58 of the sp. zl. ÚS 29 / 08).
34. Only the legislator is entitled to decide whether a tax is needed, to what extent and under what conditions, and in this respect to which he is entitled to take account of various criteria. It has a wide scope for the construction of the tax system, but it is not entirely exempt from the obligation to respect the requirements of constitutional order. In particular, it is limited to Article 11 (1) and (5) in conjunction with Article 4 (4) of the Charter in the form of a prohibition of extreme inadequacy (the choking effect), the prohibition of indiscretions in the determination of obligations, or the distinction of entities and rights under Article 1 of the Charter, the order of equality in the application of fundamental rights and freedoms under Article 3 (1) of the Charter and, where appropriate, other constitutional decisions of value (e.g. the right to engage in other economic activities under Article 26 of the Charter, the protection of parenthood, family, children and adolescents under Article 32 of the Charter).
35. The impact of the tax on taxpayers must not, in its consequences, be confiscating or choking in relation to the property of the individual [finding sp. zn. The legislature must not intervene in a manner which would undermine the substance of the property itself or destroy the taxable person's property base [finding sp. zn. The confiscation or choking tax limits the use of the substance of the taxed property or the continuation of the taxed activity in such a way that, with its weight and effects, it is similar to the prohibition of otherwise lawful activity (which will no longer have its fundamental justification). In the case of such an impact of the tax, there is a conflict with the constitutional order even if this effect is reflected only in part of the taxpayers [paragraphs 42 and 48 of the sp. zn. Pl. ÚS 31 / 13 of 10.7.2014 (N 138 / 74 of the SbNU 141; 162 / 2014 Coll.)].
36. The tax obligation must not only stand for the exclusion of extreme disproportionality, but also for the constitutional principle of equality, whether in the form of a prohibition of arbitrariness in the determination of obligations, or for the distinction of entities and rights under Article 1 of the Charter, or in the form of equality in the application of fundamental rights and freedoms under Article 3 (1) of the Charter (cf. The principle of equality in relation to tax legislation requires an equal burden on taxpayers according to their economic performance. Thus, each taxpayer should be involved, according to his capacity (income, assets and purchasing power), equally in the financing of the general tasks of the State (points 38 and 45 of the sp. zn. This expression of equality in tax legislation is, moreover, known for a long time to constitutional law (cf. Article 13 of the Declaration of Human Rights and Citizen of 1789 or Article 134 of the Weimar Constitution of 1919). Historically, it is also possible to point out the dissatisfaction and unrest in the UK caused by the introduction of the so-called Community Charge, a level-playing head tax perceived as the unfairly burdensome low-income groups of the population that contributed to the departure of Prime Minister Margaret Thatcher.
37. The equality of the tax burden does not mean the consistency of the tax burden for all, but merely that the requirement that the different should be treated differently, the same, the degree of difference of the entities or situations being the same as the degree of difference of legal regulation [finding sp. zn. The level tax burden then implies that the taxation of higher income must be proportionate compared to the tax burden on lower income (vertical tax justice), or that taxpayers who have relatively equal solvency should pay the same tax [horizontal tax justice, cf. paragraphs 126-127 of the decision sp. zn. Pl. ÚS 18 / 15 (see above)]. However, the full equality of the tax burden cannot be achieved, as the legislator must also consider other requirements when formulating tax laws. At the same time, tax rules should be sufficiently specific, understandable and applicable in practice (both by taxpayers and by financial authorities). The need for the practical applicability of these provisions is reflected in the fact that the characteristics of the individual components of the tax can be adequately characterised and flat-rate by the legislator.
General bases of the constitutional review of the fee regulations
38. The contested provision regulates the monetary performance of a legal fee, not a tax. However, the legal mark does not play a role for the purposes of the review before the Constitutional Court, as Article 11 (5) of the Charter foresees both the payment of taxes and fees. Moreover, the content of these institutes at constitutional level cannot be interpreted by their legal definition (interpretation of the Constitution conforms to the law), even because the legislature can achieve the same objective in various legislative ways (cf. points 178- 179 of the above mentioned finding, sp. zn. The fee is usually understood in contrast to the tax in the sense that it is a cash transaction which is levied as compensation for an individual advantage, thus being collected on an ad hoc basis [point 41 of the sp. zn. Fees may also generally be defined as one of the public-law revenues imposed on individuals by public law in such a way that they at least partially cover the costs associated with the activities of those individuals. According to Karl English. Fr. Borová, 1929, p. 74 et seq.) are both fees and taxes authorised by the contributions of subordinate economies, but "taxes only with regard to load capacity, fees also with regard to individual benefits'. Therefore," the top purpose of fees is never yield '. Similarly Milan Bakš presents (M. Bakš et al. Financial law. 3rd edition. C. H. Beck, 2003, p. 87), that "whereas taxes are mostly inequivalent to payments for which direct consideration is not granted, and at the same time payments which are of a rather periodic nature are usually collected on a one-off basis, in the context of some consideration by the State or its authorities, regions, municipalities, etc. Thus, they are generally in the nature of a certain equivalent for the provision of services, authorisation, court decisions, etc.'.
39. Despite this conceptual difference, the abovementioned constitutional tax requirements can also be applied to fees (point 43 of the sp. zn. Pl. ÚS 29 / 08) where the nature of the case so permits. The subject of the tax may be income as an expression of the increase in personal economic freedom, property as a substance capable of yield (under Article 11 (3) of the Charter already obliges ownership itself) or turnover as an expression of the voluntary use of the property to evaluate it. For this reason, its impact on the taxpayer's assets or economic activity is important for assessing the suffocating or confiscating effect of the tax (see case-law cited in paragraph 35 above). Fees with regard to their construction cannot have a confiscation effect in such a form as taxes, since their subject matter is not related to the property of the taxpayer (which does not preclude its taking into account when constructing corrective elements). The fee shall be levied in relation to a specific consideration - to cover at least part of the cost of its provision, possibly for other purposes - of a typically regulatory or managerial nature (e.g. judicial fees, charges for carrying out activities with socially adverse effects). Therefore, the principle of equal burden on taxpayers according to their economic performance cannot be fully applied. This would ultimately mean that the same performance (e.g. issuance of a passport or withdrawal of land from the agricultural land fund) will be charged on the basis of the income or property of the taxpayer. The amount of the fee should be related to the performance (advantage) provided rather than to the possibilities of the taxpayer. Even here, however, it is difficult to appreciate the advantage granted and it is better equipped with legislators (both professionally and democratically) for the relevant comprehensive considerations. If there is a rational relationship between the level of the fee and the counterperformance, the Constitutional Court may only take the discretion of the level of the fee itself as it does for taxes.
40. In the case of a charge, the suffocating effect is reflected in particular in relation to the possibility of obtaining a public service charge or of continuing the taxpayer's charging activity. The regulatory (management) function of the fee can only be fulfilled where the required performance will be denied to the taxpayer because of his unwillingness to pay the fee, not because of his inability to pay it. This is of particular importance in charging the performance or activities guaranteed by law. The application of a number of rights is conditional on the use of a legally established procedure (e.g. pursuant to Article 36 (1) and (4) of the Charter), which often includes payment of the relevant fee. However, such a requirement in the light of Article 4 (4) The Charter is not appropriate in cases of insolvency in which it cannot be fairly claimed that the taxpayer should bear its consequences (typically non-fault incapacity, lack of a direct link between the failure to pay the fee and the law applied). In particular, in the case of fundamental human rights and freedoms, political rights and rights to judicial and other protection, the advantages and powers provided by them are, in principle, guaranteed regardless of the property options involved.
Fee for operation of the waste collection system
41. Article 11 (5) of the Charter provides that taxes and charges may only be imposed by law. According to the settled case law of the Supreme Administrative Court, according to the contested provision, the taxpayer was a natural person resident in the municipality, regardless of his age. This is a clear definition of the person liable to pay the fee, not of the number of persons for whom the fee is to be paid (judgments No 1 As 116 / 2014-29 of 12.11.2014, publ. under No 3191 / 2015 Coll. NSS and No 5 Afs 175 / 2006-116 of 31.1.2008, publ. under No 2473 / 2012 Coll. NSS). It can be agreed with the appellant that the taxpayers' persons have been so clearly defined in § 10b (1) (a) of the Local Charges Act that there is no doubt that the underage J. B is to be one. The contested provision thus complies with the requirement of certainty and the legal form of tax legislation pursuant to Article 11 (5) of the Charter of Fundamental Rights and Freedoms [point 46 of the FTP 31 / 13 of 10.7.2014 (N 138 / 74 of the FTP 141; 162 / 2014 of the FSC), point 18 of the FTP 1611 / 07 of 2.12.2008 (N 211 / 51 of the FTP 639), point 30 of the FTP of 6.2.2007 (N 24 / 44 of FN 293)]. It also follows from the requirement of certainty that payment obligations may not be transferred from minors to their legal representative by means of an extensive interpretation by the Institute of the Joint Representative (the law does not determine it by the payer of the fee, although it otherwise applies) or the Institute of Parental Responsibility (see in detail paragraphs 58-61).
42. The fee for the operation of the waste collection system was at the relevant time designed as "payment per person." Under the contested provision, the creation of a charge obligation is in no way linked to the production of municipal waste by a specific person or the frequency of the removal of waste. The purpose of the charge is budget, it is essentially a flat-rate contribution to the municipality for the operation of the municipal waste management system. This does not correspond to the doctrine definition of the concept of charge. It is, however, used to cover, in full or in part, the costs of the operation of the public service, which provides the taxpayers with a specific performance (advantage), which the taxpayers may not, but may use (similar to the fees under Act No. 348 / 2005 Coll., on radio and television charges and amending certain laws, as amended). The appellant has previously indicated that this contribution structure serves to simplify the administration of the measurement and collection of the compulsory levy, in particular where the actual use of the public service provided is difficult to verify and the administration of the charge would be ineffective (NSS No 1 As 116 / 2014-29, paragraphs 37 and 6 Afs 24 / 2016- 26 of 27.4.2016, paragraph 11). The opposite approach would lead both to the possibility of avoiding payment as a fee without cause and impunity, as well as to the uneven de facto burden on those taxpayers who would pay the fee voluntarily. The collection by way of a contribution thus legitimises the need for effective administration associated with factual reasons to conclude that all taxpayers of the provided performance (benefits) may [by analogy to the constitutional legal issue of contributions (Beitrag), cf. BVerfGE 137, 1, paragraph 43, or BVerwG sp. zn. 6 C 6.15 of 18.3.2016, par. 26-29].
43. The introduction of a waste collection system contributes to the protection of the environment, the protection of human health and the promotion of sustainable development [§ 1 (a) of Act No. 185 / 2001 Coll., on Waste and on the amendment of certain other laws, as amended]. This is done by applying, inter alia, the waste management rules detailed in Section 17 of this Act. The environment, human health and sustainable development are protected not only at the legal level (Act No. 17 / 1992 Coll., on the Environment, as amended, and a number of other constituent laws) but are also of constitutional importance. The emphasis on their protection is reflected in the formulation of the preamble to the Constitution (determination to guard and develop together inherited natural and cultural, material and spiritual wealth), the formulation of the national objective of the sustainable exploitation of natural resources and the protection of natural resources (Article 7 of the Constitution), the establishment of a right to a favourable environment (Article 35 (1) of the Charter) or the limitation of the exercise of property and other rights (Article 11 (3) and Article 35 (3) of the Charter).
44. At the relevant time, the fee was used to ensure the financing of the municipal budget [§ 7 (1) (e) of Act No. 250 / 2000 Coll., on the budgetary rules of the territorial budgets], while the relationship between the operation of the waste collection system and the amount of the fee was ensured, according to § 10b (3) of the Local Charges Act, by constructing a rate consisting of the amount determined on the basis of the actual costs of the municipality of the previous year and the amount of the optional, but not one part of it could exceed CZK 250; However, pursuant to Paragraph 11 (3), a penalty increase in the fee or part of the fee could have occurred.
45. It is clear from the above that the fee for the operation of the waste collection system serves to fulfil a legitimate, constitutionally explicit objective. It is undoubtedly an appropriate means of financing the operation of such a system and, in that sense, it is a consideration for its operation. The benefits of collecting, collecting, transporting, sorting, recovery and disposal of municipal waste are enjoyed by everyone or at least by almost all taxpayers of this charge. The performance provided by the waste collection system consists not only of the disposal of municipal waste produced by its individual agents (which can hardly be avoided, see paragraphs 10 and 11 of NSS judgment No 6 Afs 24 / 2016-26), but also in the fact that individuals are not exposed to the possible harmful effects of their non-generated waste (see judgment of the European Court of Human Rights in case Di Sarno and others against Italy No 30765 / 08 of 10.1.2012).
Underaged as a taxpayer in charge of operating the waste collection system
46. The constitutional acceptability of the chosen method of financing the waste collection system does not constitute absolute freedom to choose a tax entity, i.e. that minors can be a taxpayer without any restrictions.
47. According to Article 32 (1) of the Second Charter, special protection for children and adolescents is guaranteed. This is a right which can only be invoked under the laws transposing it under Article 41 (1) of the Charter. However, this institutional guarantee must not be completely emptied by legal regulation - the substance and meaning must be preserved (Article 4 (4) of the Charter). The Convention on the Rights of the Child (published under No 104 / 1991 Coll.) in Article 3 (1) requires that the interest of the child be a leading aspect in any activity concerning children, whether carried out by public or private social care establishments, courts, administrative or legislative bodies. Article 3 (2) Furthermore, the Convention on the Rights of the Child obliges the Contracting States to ensure the protection and care necessary for the child's welfare, taking into account the rights and obligations of its parents, legal representatives or other individuals legally responsible for it, and to take all necessary legislative and administrative measures.
48. With reference to the abovementioned Constitutional Court, it has previously concluded that it is not possible to impose a payment obligation on a minor by law unless it is generally able to influence whether it makes use of charging services. In addition, a minor of lower age may not be aware of such payment obligations [finding sp. zn. II. ÚS 728 / 15 of 16.9.2015 (N 170 / 78 SbNU 543)]. The Constitutional Court has therefore examined whether underage taxpayers may or must have the means to fulfil their payment obligations or whether they must be provided instead.
49. The contested provision was properly adopted and declared, in accordance with the principle of formal publication, so the taxpayers were adequately notified. For minors who, in view of their abilities, rational, free and moral maturity, cannot be required to have full material knowledge of the published law, this knowledge shall be facilitated under parental responsibility by their legal representatives or, where appropriate, by representatives established. In the present case, this should have happened at the latest in the context of the proceedings before the tax administrator [Sections 25 (1) and 26 (1) of the Tax Code, Section 10 (1) of Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended, hereinafter referred to as the "Taxes and Fees Administration Act '].
50. As a general rule, it cannot be excluded that minors will also have sufficient assets (obtained by, for example, gift, inheritance) or income (obtained by, for example, gainful activity) to fulfil their fee obligations. However, it does not have to have such assets, and the possibility of obtaining income through its own efforts is limited by law due to their age. Moreover, the Czech Republic is bound by its international obligations [cf. Article 32 of the Convention on the Rights of the Child or the Convention on the Lowest Age for Employment (published under No 24 / 2008 Coll.)].
51. The fee for the operation of the waste collection system was levied regardless of whether the minor taxpayer had any income or property from which he could pay it. At the same time, this fee was collected as a contribution - a minor had therefore not been able to avoid paying the fee by not asking or making use of the charged personalised consideration. At the same time, it was not able to influence its charge obligation by changing the place of permanent residence (only the fee for the operation of the waste collection system is levied on the basis of this registration criterion; its designation depends on the permanent residence of the mother or the decision of legal representatives, cf. § 10 paragraphs 3 and 10 of Act No. 133 / 2000 Coll., on the registration of residents and birth numbers and on the amendment of certain laws (the Act on the registration of residents), as amended). In this respect, only partly attributable to a government which considers that taxes and charges are involuntary transactions and the possibility of influencing their imposition by choosing a permanent residence is therefore irrelevant.
52. In the present case, the involuntary nature of the charge highlighted by the Government is manifested by the fact that a minor taxpayer is obliged to pay the fee regardless of whether or not he has the means to pay it, or whether it can prevent its measurement if he does not (and does not need to). In such a situation, a well-known anecdotal statement by Benjamin Franklin, according to which nothing can be certain in this world except death and taxes [Smyth, A. H. The Writings of Benjamin Franklin, Vol. X (1789- 1790). New York: MacMillian, 1907, p. 69].
53. In addition to these two securities, the third guarantee should, however, have the place of protection of fundamental rights and freedoms by the judicial authority (Article 4 of the Constitution). In the case of charges, it is customary to give priority to determining their amount in relation to an advantage or performance (in the case of contributions in relation to an advantage made available) and the principle of tax justice in the form of an even burden on taxpayers according to their economic performance cannot be fully applied. However, this does not change the fact that, at least to some extent, the economic performance burden, even in a characterised and flat-rate form, must apply. The tax legislature must not lower the assets which act as the basis for the individual shaping of the life of the taxpayer [point 45 of the sp. zn.
54. The justification for the existence of a non-taxable basic existential minimum is based on the fundamental right in the form of human dignity, which requires the State to maintain or ensure to every citizen basic needs for human and dignified existence (Article 10 (1) of the Charter) and on the requirement to respect the autonomous sphere of the individual (Article 2 (3) of the Charter). It is the subjective right of an individual to respect the autonomous expression of his personality, including those of the free, which is reflected in his particular conduct, unless such conduct is expressly prohibited by law. The individual and his free conduct always have priority in the material rule of law over the state power implemented by the law. The free sphere of the individual and its immediate constitutional guarantee in the form of enforceable subjective law are conditiones sine qua non material rule of law, which is built on respect for the fundamental rights of the individual [find sp. zn. I. ÚS 43 / 04 of 13.4.2004 (N 54 / 33 of SbNU 55)].
55. The protection of the autonomous space of the individual also includes respect for the organisation of its living conditions, in which it can be freely implemented, inter alia, as a social and economic being, which obtains the means to live the life of work and other activities with economic aspects [Found sp. zn. I. ÚS 504 / 03 of 25.11.2003 (N 138 / 31 SbNU 227)]. However, the free development and the development of personality in this area is substantially limited in cases where the activity of an individual must focus mainly or entirely on the payment of debts [in this respect the importance of the social role of insolvency law, cf. Resolution sp. zn. I. ÚS 3271 / 13 of 6 February 2014 (in SbNU not published, available at http: / / nalus.ujud.cz), paragraphs 30 and 31]. Such a situation can in principle be accepted as regards the consequence of voluntarily accepted or own fault of intrinsic liabilities (since contracts are to be observed, debts are to be paid and injury is to be replaced).
56. The protection of the autonomous space in the case of minors is subject to a special protection requirement (Article 32 (1) of the Charter). Its essence in this context lies in guaranteeing the free organisation of its own living conditions when achieving maturity. Public power cannot impose obligations on minors that, by their degree or manner, impose a burden on the limits of the possibility of adapting their lives to their own needs. Such an option is not maintained if minors are admitted to adult life with serious debts (the debt burden is, moreover, one of the major criminal factors). It is therefore a constitutionally protected interest of the child not to enter into adulthood with commitments that may have a choking effect (page I of the ÚS 1775 / 14 of 15.2.2017). This is all the more true in cases where debts are supremely determined (therefore the pacta sunt servanda principle is not applied) at a time when public authority also limits the possibilities of the gainful activity of such debtors. It cannot therefore be excluded that a payment obligation is imposed on someone who does not have any property and cannot obtain it on his own account.
57. Whether the imposition of payment obligations on minors takes place in specific cases to an extent that limits their autonomy in shaping their own living conditions, the legislature did not allow any detection of the construction of the contested provision. Even if the minor taxpayer himself showed that he did not have the resources to pay the fee and did not have the opportunity to obtain it (e.g. his own child's work), he could not take this into account - because of the hardness of the tax waiver he knew the legislation until 31 December 2010 (Section 16 of Act No. 565 / 1990 Coll., on Local Charges, as amended by Act No. 229 / 2003 Coll.; the decision to waive the tax was also based on administrative discretion).
Parental liability as a charge obligation
58. According to the Government, the protection of a minor is adequately ensured by the parental responsibility institute. A minor is a taxpayer as a carrier of a public law obligation, and his parent should be responsible to the minor for fulfilling that obligation in a private law. The fee must thus be paid, including, where appropriate, from its own resources, unless a minor does so. If a parent does not pay for a minor, he / she is liable, in the view of the Government, to the minor for the damage he / she incurs in imposing liability under public (tax) law.
59. However, this conclusion does not have sufficient legal support. According to Article 31 (1) of Act No. 94 / 1963 Coll., on Family, as amended by Act No. 91 / 1998 Coll., ("the Family Act '), parental responsibility was a summary of rights and obligations (a) in the care of a minor child, including in particular care for his or her health, physical, emotional, rational and moral development, (b) in the representation of a minor child, (c) in the management of his or her assets. The responsibility thus defined implies that parents are obliged to manage the child's assets, where the child's potential debts undoubtedly belong. According to Section 37a (1) of the Family Act, the administration should have been carried out with the care of a proper economy, in such a way that the child would not suffer harm to its property interests. But it is still about managing the child's wealth, not the parents'. As a result of parental responsibility, the obligation of parents to represent the child in tax proceedings and to pay taxes due and charges by means of funds derived from the wealth of the child [§ 31 (1) (b) and (c) of the Family Act] could therefore be imposed, not by the parent's own funds (e.g. the child's income tax). Otherwise, in the context of parental responsibility, a guardian under Section 81 of the Family Act, for example, would have to pay fees for a minor (with the possibility of disputes as to whether the provisions on the rights and obligations of parents and children are still being applied appropriately). If the guardian was not obliged to carry out this obligation, the minor might not have anyone to pay the fee at all (Section 78 of the Family Act).
60. In view of the circumstantial nature of the proceedings, reference may also be made to specific cases dealt with by the Supreme Administrative Court in which a dispute concerning the charging obligation of minors has arisen. J. B. is a unilaterally orphaned, unprovided child - the mother died, and according to the complainant, the father never paid maintenance fees imposed by the court. J. Ch. was placed in constitutional education at the age of eight because his parents were unable to provide him with good educational conditions in the long term. B. A. was placed in constitutional education when she was 15 years old, since her mother was found completely ineducational. Both of the last taxpayers remained in constitutional education until the acquisition of maturity. The possibility for underage taxpayers to recover damage from legal representatives not only for the above legal reasons, but also in the present factual situation appears only to be theoretical (the Federal Constitutional Court even referred to it as "generally worthless," cf. BVerfGE 72, 155, to the right to free acquisition of maturity). In fact, the solution proposed by the government requires that, in order to compensate for the damage (represented by the amount of the legal fee and the costs of its possible execution), minor taxpayers sue their own legal representatives if they are alive, with only additional time and financial costs. All of this in a situation where Article 32 (1) of the Charter guarantees special protection for children and adolescents. It is clearly not an effective means of protecting the rights of minors.
61. The government-held position is also irrationally complicated: it bypasses the existing tax liability institute (§ 57a of the Tax Administration Act, § 171 of the Tax Code) and transfers the consequences of failure to fulfil obligations by the legal representative to a minor who can only obtain the protection of his rights subsequently in civil proceedings, if he is against whom. Such transmission of a charge obligation in the payment level by private law does not have a clear legal basis. As a result of the interpretation of the law, a taxpayer (even if only in procedural terms) would become someone whom a tax or other law of a taxpayer with a desirable degree of certainty does not foresee [cf. point 46 of the decision of the sp. zn. Therefore, the government's proposed solution will not stand up to the requirements of certainty and clarity of tax laws under Article 11 (5) of the Charter and Article 1 (1) of the Constitution or the general requirement to impose obligations under the law under Article 4 (1) of the Charter.
62. It can be agreed with the appellant that the entire construction of the payment of the waste charge under Section 10b of the Local Charges Act is based on the implicit assumption that, for underage taxpayers who do not have sufficient resources, this obligation will in fact be fulfilled by their legal representatives. This assumption also follows from the Government's statement that the reasons for increasing the highest possible fee rate to CZK 1 000 from July 1, 2012 see, among other things, the new procedural guarantee - the debtor's solidarity of the taxpayer and his legal representative. However, unlike the appellant and the Government, the Constitutional Court cannot comment on this provision, since it has not been challenged and is not the law to be applied in the resolution of the case within the meaning of Article 95 (2) of the Constitution.
63. However, it should be reiterated that the implicit assumption did not appear in effective legislation during the relevant period. If there is no support in the law, it cannot be constructed, with respect for the requirement of certainty when imposing tax obligations, by a court interpretation so extensive that it is completely free from the legal text and the system of transcription. It is the task of the courts to apply, not to transform the work of the legislator. In addition, the effective payment or non-payment of a fee by parents as legal representatives does not change the obligations of underage taxpayers under tax legislation (Section 241 of the Tax Code). Therefore, the negative consequences of non-compliance are exclusively borne by underage taxpayers, especially those who have not had enough own resources or for which the fee has not been paid by their parents as part of their statutory maintenance obligation.
64. As is apparent from the files presented by the Supreme Administrative Court, these are mainly cases in which it has previously had to intervene by the State in order to prevent or at least mitigate the harmful consequences of dysfunctional family relations. These findings cannot be downgraded by the appellant having brought proceedings in just three cases. The appeal procedure is an exceptional remedy, so it cannot be assumed that the distribution of the Supreme Administrative Court's agenda reflects the structure of the issues addressed by the administrative authorities. Moreover, access to justice is effectively restricted to people in the law of uneducated, poor or otherwise disadvantaged (the most unfair judgments are those that could never be issued). In this respect, the content of the files submitted by the Supreme Administrative Court indicates the notional tip of the iceberg rather than the negligible nature of the problem.
Reducing the effect of the charge on minors
65. Since the Constitutional Court concluded that only the taxpayer himself, not his parents, was responsible for fulfilling the fee obligation of a minor taxpayer, under the contested provision, he was further concerned with whether it was an adjustment of a choking or discriminatory nature.
66. The definition of the stifling tax was previously carried out by the Constitutional Court in particular in relation to the individual's assets (e.g. the above mentioned findings sp. zn. A similar conclusion can be made for taxes on the taxpayer's income (pension) or charges on his activity (cf. paragraphs 35, 39 and 40). If the tax (fee) is liable to impose a lawful treatment in such a way that it is virtually impossible for the average taxpayer to continue it, as it loses its fundamental justification, it is a tax (fee) that breathes this activity. The same applies to cases where a public law obligation to pay cash is imposed entirely, regardless of its capacity as a taxpayer, in respect of its income, assets or capabilities.
67. The fee for the operation of the waste collection system shall not take into account the property, income or whether the taxpayer uses the services to which the fee is linked. It imposes an obligation on underage taxpayers who, as a rule, do not have the means to comply with it, nor do they have sufficient discretion to carry out themselves on a voluntary basis. Failure to fulfil this obligation is without exception - forgiveness is not possible - linked to the negative consequences that the tax execution of the accumulated debt on the threshold of adult life will in the extreme [this happened in case J. B., which was an uninsured child, was rectified by the income from the earnings of the study]. Although the government stated that the amount of the fee debt could reach a maximum of CZK 9,000, which in its view could not be liquidation for the adult. However, they disregard the possibility of a triple penalty increase pursuant to Article 11 (3) of Act No. 565 / 1990 Coll., on Local Charges, as amended, (again a decision based on administrative discretion). However, in the absence of any resources from which the fee debt could be paid, the excess of CZK 9,000 (let alone CZK 27,000) is not a negligible burden, all the more so if the obligation to pay the execution costs also accedes to it.
68. In this context, it should be recalled that public authority depends primarily on its rational application. The public authority has the right to require acceptance of its application, because its orders are achievable and are not manifestly unreasonable - so only what it can give needs to be asked of everyone. The Constitutional Court therefore concludes that imposing a tax or charge obligation on minors who are in fact unable to comply with it (and cannot be expected to do so in a fair manner) has a severe effect on those taxpayers. This effect will undoubtedly only affect some of the underage taxpayers. However, the conflict with constitutional order is also established if only a part of the taxpayer [point 42 of the sp. zn. The very fact that the recovery of the levy debt typically takes place only after maturity does not change things - only to deter the effect of constitutionally inadequate legislation into the future, where it is confronted with the protection of the autonomous sphere of the individual in shaping the conditions of adult life.
Unequal impact on certain minor taxpayers
69. It is thus irrelevant that the Government's claim that the legislation in question is based on equal treatment of all minors. This was not disputed by the Supreme Administrative Court - it relied on the adverse effects of formally equal legislation. Where different treatment is made on the basis of a seemingly neutral criterion, which, as a result, specifically affects a group of persons defined precisely by some of the above grounds referred to in Article 3 (1) of the Charter as opposed to others, is indirect discrimination [the finding of sp. zn. I. ÚS 2482 / 13 of 26.5.2014 (N 105 / 73 SbNU 683), point 36; the finding of sp. zn. III. ÚS 1136 / 13 of 12.8.2015 (N 143 / 78 SbNU 209), point 40; or the finding of sp. zn. II. ÚS 1609 / 08 of 30.4.2009 as amended by the authentic resolution sp. sp. II. ÚS 1609 / 08 of 9.7.2009 (N 105 / 53 SbNU 313)].
70. In such a case, the burden of proof is initially imposed on the appellant, who must prove that, at first sight, the neutral criterion affects the knowledge more strongly of the protected group (defined by ethnic, racial, sexual or other "suspect 'criteria referred to in Article 3 (1) of the Charter) and that the latter's case can be included in the protected group. Proving these two conditions gives a presumption of indirect discrimination with regard to all members of the protected group concerned. Thus, the burden of the claim and the evidence is transferred to a counterparty which must either 3 deny any of the two above claims (i.e. that there is no significant impact on the protected group, or that its real reason is something other than discriminatory, or that the applicant himself does not belong to the group, etc.) or 4. Prove that there is an objective and reasonable justification for the undue disadvantage of the protected group, namely that it was a measure pursuing a legitimate objective which was appropriate, necessary and proportionate to achieve it (point 36 of the found sp. v. I. ÚS 2482 / 13, paragraphs 42-46 of the sp.
71. The Government argued against the proposal in particular that there is no reason to distinguish taxpayers according to the criterion of family functionality or social background (it considers that this criterion is unconstitutional), thus denying the very existence of a protected group. It also stated that the contested scheme could not have a significant impact on any of the taxpayers (because of the guarantees arising from parental liability and tax-paying guarantees). The reasons for the legitimate possible disadvantage of some of the taxpayers were not provided.
72. In the present case, the neutral criterion of permanent residence under § 10 of Act No. 133 / 2000 Coll., on the registration of residents and birth figures and on the amendment of certain laws (the Act on the registration of residents), as amended, is decisive. However, it follows from the decision-making work of the Supreme Administrative Court that the legislation is primarily burdened by those underage taxpayers who are without their own assets or come from a socially disadvantaged environment. This is documented by cases assessed by the Supreme Administrative Court, the resolution of which depends on the Constitutional Court's decision on the present case.
73. The Constitutional Court has not testified to the first argument of the Government. The "suspicious criterion 'referred to in Article 3 (1) The Charter is a constitutionally explicitly foreseen criterion of social origin in the present case. In this context, social origin cannot be interpreted as an optical of the early 20th century, namely as a question of the distinction between noble and unborn individuals, which has been resolved by the adoption of Act No. 61 / 1918 Coll., which abolishes nobility, orders and titles, [cf. distinction between social origin and family in Article 2 (1) of the Convention on the Rights of the Child or Article 2, 24 and 26 of the International Covenant on Civil and Political Rights (published under No. 120 / 1976 Coll.)]. The protected group must therefore be understood as being liable for the fee for the operation of the waste collection system, which, given their age and property options, is unable to pay the fee themselves (cannot be expected to do so fairly) and does not have any other way to meet this public payment obligation. This is particularly the case in cases of lack or impossibility of paying a fee to one of the legal representatives instead of a taxpayer in the context of internal family solidarity. So, simply, this group can be referred to as children from socially dysfunctional families.
74. The obligation to protect this group arises from the above-mentioned guarantee of personal autonomy, which in the case of minors manifests itself as a requirement for free acquisition of maturity, as well as from obligations accepted at the legal level: to strengthen social inclusion (§ 2 (2) of Act No. 108 / 2006 Coll., on Social Services), including the inclusion of families, to protect the child's right to favourable development and proper education and to act to restore the disturbed functions of the family [§ 1 (1) (a) and (c) of Act No. 359 / 1999 Coll., on the social protection of children]. According to the preamble of the Constitution, the Czech Republic is to be the homeland of equal, free citizens. It must be assumed that members of vulnerable or disadvantaged groups can fulfil their responsibilities to others and to the whole only if they are free not only formally to participate in political and social life, but also materially, i.e. free from the distress that will make such participation effectively impossible. To this end, constitutional order guarantees the protection of social rights, even in part subject to a law which takes into account the fiscal possibilities of the State (Article 41 (1) of the Charter).
75. It cannot be accepted that the contested legislation cannot have a significant impact on that group of minors (or part of it) for the existence of individual guarantees. These guarantees cannot be considered effective. Significant elements of a potentially discriminatory impact include the specific way in which the contested legislation is actually applied, including all related guarantees to prevent the application of a neutral criterion with an unacceptable impact. The nature of these guarantees typically has the conditions under which this criterion may be applied, as well as the means available to the individual concerned for the protection of his or her right, or the control mechanisms by other entities (point 44 of the above mentioned find sp. zn. III. ÚS 1136 / 13).
76. However, as explained above by the Constitutional Court, the contested legislation did not know any guarantees to avoid a severe impact on underage taxpayers (parental liability and the related possibility to claim compensation does not apply, to the proceedings for payment of the tax, see below). The observations of the Government or the parties to the proceedings do not give rise to any reason to justify the negative effects on the minor minors for which fees were not paid by those who should have done so as part of their maintenance obligation. In such a state, the Constitutional Court has concluded that the contested legislation does not take into account the principle of the economic performance of underage taxpayers and without any reasonable reason burdenthe underage taxpayers as a social group within the meaning of Article 3 (1) of the Charter.
77. However, the Constitutional Court was primarily concerned with whether the contested regulation guarantees special protection for children and adolescents within the meaning of Article 32 (1), second sentence, of the Charter. This protection is in accordance with Article 41 (1) The Charter can only be invoked within the limits of the laws implementing it. However, the Constitutional Court has previously stated that, in the light of Article 4 (4) of the Charter, the implementing legislation cannot deny the very meaning of such a guarantee [finding sp. zn. In so doing, in the context of Article 32 (1) of the Charter, only the higher protection must be understood.
78. Young taxpayers had no effective means of protecting their rights in the context of the search procedure, although imposing a charge obligation might have had an intolerable effect. The only means of mitigating the adverse effects thus appears only in the charge proceedings - the possibility of taking into account the difficult situation of the minor in the collection or execution of the charge, in particular by decision on the postponement or repayment of his remuneration under Section 60 of the Tax Administration Act or Section 156 of the Tax Code. However, this is not a means of protecting the rights of a minor either. First, it is a decision to which the taxpayer is not entitled (based on administrative discretion), and second, his rights are violated when the fee is charged in the procedure. The Government itself states in its statement that the fee is not, in principle, enforced on a minor until it has at least some property or income. In other words, the public authority imposes a payment obligation on a minor regardless of whether it can influence or fulfil it, and subsequently waits for the minor to receive and pay the debt. If they don't pay voluntarily, there will be a tax execution. Such a procedure is clearly aimed primarily at ensuring an effective selection of the fee charged, not protecting the rights of the taxpayer. Therefore, where no effective protection is available to underage taxpayers against the possible rousing effect of the charge, the requirement for special (higher) protection cannot be considered to be met.
Conclusion
79. For the reasons set out above, the Constitutional Court concluded that the legislation that bursts minors with a charge obligation, whether or not they have the means to comply with it (or at least the possibility of obtaining such funds), burdensome them regardless of the possibility to influence the imposition of a payment obligation (e.g. by withholding a charge) or at least exempt them (e.g. by applying a hardening clause), is contrary to Article 32 (1) second sentence in conjunction with Article 4 (4) of the Charter of Fundamental Rights and Freedoms (absence of special protection for children and adolescents), Article 3 (1) of the Charter (inadmissible discrimination on grounds of social origin) and Article 11 (1 in conjunction with Article 4 (4) of the Charter (deterrent).
80. It is not possible to agree with the sometimes expressed concerns expressed in the literature that the declaration of inconstitutionality of the contested provision will result in minors not being obliged to pay any taxes and charges, which would create a way to circumvent tax obligations. The legislator undoubtedly has the power to decide that the taxpayers of a particular tax or charge will also be minors. However, if they decide to do so, regardless of whether a minor has any taxable property or income at all, or whether he has the option of avoiding the charged conduct (if he does not have the appropriate means), the legislator must already take into account, at the level of the proceedings, that there may be cases of excessive hardness and adopt appropriate solutions. It should also consider whether the charge is imposed for consideration by the State or the municipality which the minor is actually receiving. However, in the case of a charge for the operation of the municipal waste disposal system (in particular for small children), the sole producer of waste is the parent who takes care of the child's nutrition through the actual performance at which the waste is generated. The maintenance obligation of parents to the child involves all the normally needed care for the child, in this case not only the provision of the necessary supplies to the household in which the child lives, but also the disposal of the resulting waste. It would be rational to consider whether to impose a charge instead of a child directly on a parent who benefits from a municipal waste disposal system.
81. The Constitutional Court therefore complied with the proposal of the Supreme Administrative Court. However, the reasons which led him to do so apply only to minors who pay a fee for the operation of the waste collection system. The Court therefore limited the scope of its decision to this particular group of taxpayers [cf. sp. zn. Pl. ÚS 28 / 13 of 10.7.2014 (N 137 / 74 CollNU 93; 161 / 2014 Coll.)]. Having regard to Article 89 (2) The Constitution is obliged by the public authorities to reflect the consequences of the alleged unconstitutionality in their decision-making practice, i.e. to take account of the above-mentioned derogatory grounds when dealing with specific cases (cf. the grounds for finding sp. zn. I. ÚS 3599 / 15 of 3 February 2016) and not to apply § 10b (1) (a) of Act No 565 / 1990 Coll., on local charges, as amended by 30 June 2012, to the extent that it imposed obligations on minors.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by Judges Josef Fiala, Vladimir Sládeček and Radovan Sukánek to decide.
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Regulation Information
| Citation | The Constitutional Court found no. 338 / 2017 Coll., on the application to declare the inconstitutionality § 10b paragraph 1 (a) of Act No. 565 / 1990 Coll., on Local Charges, as amended by Act No. 185 / 2001 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 16.10.2017 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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