The Constitutional Court found No 375 / 2013 Coll.

Motion denied.

1. The Constitutional Court received on 10 January 2013 a proposal from the Regional Court in Ostrava to repeal the provisions of § 43 of Act No. 353 / 2003 Coll., on excise duties, as amended, (hereinafter referred to as the "Consumer Tax Act").

2. The applicant submits in the constitutional complaint that it was brought before the action of AB style, s. r. o., against the decision of the Customs Directorate of Ostrava of 24 October 2011 No. 6248-2 / 2011-140100-21, which rejected the appeal of the company and confirmed the decision of the Customs Office of Frýdek-Místek of 19 August 2011 sp. zn. 9041 / 2011, which imposed a fine in accordance with § 43 of the Excise Tax Act of CZK 2,925 139 representing 10% of the amount of the amount of the security applied to the excise duty on alcohol and wine. The appellant agrees with the constitutional legal argument which is the substance of the action in question and therefore, within the meaning of Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court '), it acceded to the application for annulment in respect of the application of Article 43 of the Excise Tax Act.

3. The appellant considers that the fine imposed is its nature of sanctions for administrative or tax offences, but from the point of view of legal theory it is a prerequisite for imposing a penalty of some kind of illegal or, respectively, criminal conduct. If the Excise Tax Act on the one hand provides for the provision of tax, the tax warehouse operator is obliged to provide tax (cf. Paragraph 20 (9) of the Excise Tax Act) and also regulates the procedure for the implementation of the tax security in the event that the tax debtor does not pay the tax or accessories, on the other hand, the payment of the tax by the guarantor cannot be regarded as unlawful or harmful. The same conduct, or procedure, cannot be in accordance with the law at the same time and also fulfil the characteristics of an administrative (tax) offence. Paragraph 43 of the Excise Tax Act, in view of the above, shows a conflict with constitutionally protected rights as well as with the principles of the rule of law, to which the Czech Republic declares itself, since the fundamental features of the rule of law include the requirement that the State, through its institutions, does not affect anyone for acts which are not illegal or harmful and which are, moreover, expressly permitted by law.

4. The appellant further points out that the fine under the provision cited above is imposed only in some cases on the implementation of the tax security, without having any rational basis. Paragraph 43 of the Excise Tax Act is therefore, in the appellant's view, discriminatory as it creates unjustified differences between individual entities depending on the method of securing the tax. This provision is thus contrary to Article 1 of the Charter of Fundamental Rights and Freedoms. The appellant also sees discrimination in the absence of any other tax provision. There is no reasonable reason why sanctions of this nature should only be applied to excise duties and not to other taxes.

5. Furthermore, the appellant points out that the provision in question provides for a firm penalty, which at the same time determines the minimum amount of the fine which makes it impossible to take into account the property and personal circumstances of the offender or any other relevant circumstances. Consequently, the fine may be wholly disproportionate to the circumstances of the case and to the property ratios of the person to whom it was imposed and, in some cases, may be of a liquidation nature. However, such a penalty may not be formulated in the rule of law, as the Constitutional Court has already ruled in its decision of 13.8.2002 sp. zn. Pl. ÚS 3 / 02 (N 105 / 27 SbNU 177; 405 / 2002 Coll.) or in the decision of 25.10.2011 sp. zn. Pl. ÚS 14 / 09 (N 183 / 63 SbNU 117; 22 / 2012 Coll.). In the present case, the customs office imposed an AB style, s. r. o., fine of CZK 2,925 139, which in itself constitutes a significant intervention in its property situation. Neither the customs office nor the Directorate-General for Customs measures AB style, s. r. o., assessed nor addressed the proportionality of the amount of the penalty, since the provisions of Section 43 of the Excise Tax Act do not provide them with the possibility of administrative discretion or moderation of the amount of the fine contrary to the requirements described above. Moreover, the customs authorities referred to this fact in the grounds for the contested decision. The liquidation effects of the fine can also be seen in that, pursuant to Article 9 (1) (b) of Act No. 676 / 2004 Coll., on compulsory marking of alcohol and amending Act No. 586 / 1992 Coll., on income taxes, as amended, as amended, can be the result of repeated or serious infringement of the tax or customs legislation of the decisions of the customs authorities to withdraw the registration, without which AB style, s. r. o., cannot sign the alcohol, thus not even perform its business activities. Paragraph 43 of the Excise Tax Act is therefore contrary to the constitutional order of the Czech Republic and unacceptably interferes with AB style, s. r. o., to own the property guaranteed by Article 11 of the Charter of Fundamental Rights and Freedoms.

15. In accordance with Article 69 (1) of the Law on the Constitutional Court, the Constitutional Court called on the Chamber of Deputies of the Parliament of the Czech Republic (the Chamber of Deputies) and the Senate of the Parliament of the Czech Republic (the Senate) to comment on the proposal.

16. The Chamber of Deputies, through the President of the Chamber of Deputies, said that the Excise Tax Act was discussed in the Chamber of Deputies as a government bill as Press No. 317 at first reading on 20 May 2003, and commanded to discuss the Budget Committee which discussed the draft law and issued a resolution containing amendments (No 317 / 1). The second reading of the draft law took place on 22 July 2003, the amendments tabled at second reading were processed as print No 317 / 2. The bill was approved at the third reading on 24 July 2003. At the third reading, 198 Members voted in favour of the motion 100 and 97, one abstained. Paragraph 43 has not been amended in the Chamber of Deputies and has been adopted in the form proposed by the Government. The Senate received a bill on 13 August 2003. On 11 September 2003 the proposal was discussed and then returned with amendments to the Chamber of Deputies. The Chamber of Deputies, by voting on 26 September 2003, remained on the original proposal. The President of the Republic signed the Act on 13 October 2003. The approved law was delivered to the Prime Minister on 17 October 2003. The law was published in the Collection of Laws in the amount of 118 under the number 353 / 2003 Coll. The contested provision was amended four times at the date of its application by amendments to Act No. 353 / 2003 Coll. (Printing No. 317, IV. Election), which were published in the Collection of Laws under No. 217 / 2005 Coll. (Printing No. 801, IV. Election), 575 / 2006 Coll. (Printing No. 41, V. Election Period), 281 / 2009 Coll. (Printing No. 686, V. Election Period), 59 / 2010 Coll. (Printing No. 888, V. Election Period). The appellant's contentious nature of the provisions of Paragraph 43 was already contained in Act No 353 / 2003 Coll., the subsequent amendments did not have a greater effect on the meaning of the contested provision. In all cases, it was a government proposal. It follows from the above that the draft law was discussed and approved in a constitutional manner and according to the standard rules of the legislative process.

17. The Senate, through its President Milan Štách, stated that the bill was delivered to the Senate on 13 August 2003 in the fourth term and, as Senate Press No. 156, it was ordered by the Organising Committee to the Committee on Economic, Agricultural and Transport (as Guarantee Committee) and the Committee on European Integration. At its 20th meeting of 4 September 2003, the Committee on Economic, Agriculture and Transport discussed and adopted Resolution 128 recommending the Senate to reject the draft law (156 / 1). The Committee on European Integration discussed the bill at its 21st meeting in its 4th term of office, held on 3 September 2003, and, by Resolution No 97, recommended that the bill be returned to the Chamber of Deputies with amendments (156 / 2). On 11 September 2003, the Senate adopted a resolution at its 10th session in its fourth term of office returning the bill to the Chamber of Deputies, as amended by the amendments adopted, as annexed to this resolution; the annex contained changes concentrated in 19 points, none of which revised part of the draft law governing the contested provision of Paragraph 43 (Senate Resolution 205 of 11 September 2003). In voting no. 50 of the 71 senators present, 42 senators voted in favour, 2 votes against. The statement further describes in detail the legislative process of adopting individual amendments to the contested provision, with the Senate acting within the limits of the Constitution of the Czech Republic in a specified competence and in a constitutional manner.

18. The Constitutional Court within the meaning of Article 48 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, requested comments from the Ministry of Finance and the Directorate-General for Customs. In its observations, the Ministry of Finance discussed in general the issue of administrative punishment and then the provision of tax as a specific instrument of the Excise Tax Act. The Ministry of Finance stated that the tax security provided for in the Excise Tax Act laid down in Section 21 et seq., is based on Council Directive 2008 / 118 / EC on the general arrangements for excise duties and repealing Directive 92 / 12 / EEC. The Ministry of Finance pointed out that the primary function of the tax guarantee under Section 21 et seq. of the Excise Tax Act is to cover the risks associated with the production, processing and holding of excise products. Only the secondary function of the tax guarantee pursuant to § 21 et seq. of the Excise Tax Act is the payment function. The specific provisions of Section 21 et seq. of the Excise Tax Act are determined by the type of commodities that are subject to high excise duties and by the existence of a conditional exemption scheme. Given the relatively long repayment period, which is longer than the deadline for filing the tax return, there is a real risk that, in the event that the excise duty is not paid properly and in time, the products already selected will not be held by the excise payer concerned. In such cases, the provision of tax shall at least partially eliminate the threat of misuse or fraud of such products and the risks arising in the present case for the State. It is already clear from the text of Section 43 of the Excise Tax Act itself (and, where appropriate, other provisions that must be interpreted in the context of that provision) that the fine is not imposed for the application of the tax guarantee itself to cover excise duty (that is, the procedure in accordance with the legislation), but for the fact that the excise duty was not properly and timely paid, while the risk cover was reduced. It is therefore clear that the element of illegality here is that the tax entity did not properly pay the excise duty in accordance with (tax) legislation and the tax administrator was forced to carry out the security. The damage shall occur where a breach of the statutory obligation leads to a threat of a certain public interest. In the present case it is mainly a public interest in the correct determination and collection of the tax resulting from § 1 (2) of Act No. 280 / 2009 Coll., the tax rules, where the basic objective of tax administration is defined. The public interest can also be seen in the need to cover the risks associated with the production, processing and holding of excise products. In the light of the foregoing, it should be noted that those claims concerning the impossibility of assessing the illegality and the harm caused by the imposition of a fine under Section 43 of the Excise Tax Act are not relevant. Thus, the imposition of this fine could not have infringed any sign of the rule of law which is objected. Paragraph 43 of the Excise Tax Act contains a reference to three exceptions to the obligation to impose a fine in cases where the tax security is used to cover excise duty. This is a provision of Section 23 (4) (the Excise Tax Act contains an incorrect reference as from 1 January 2013, which should be aimed at paragraphs 3), 29 (2) and 33 (7) of the Excise Tax Act. In all of the above situations, the amount of excise duty is known in advance, the security is granted by the deposit or transfer of funds to the tax administrator's deposit account and it is possible to use the security to cover excise duty with the agreement of the entity that provided the security. In addition, for all the above situations, if no agreement has been given on the use of the tax security for its reimbursement and the excise duty has not been properly and in time paid, the tax administrator will comply with the provisions of Sections 23 (5) (from 1 January 2013 it is paragraph 4), 29 (5) and 33 (8) of the Excise Tax Act, thus applying the tax guarantee for excise duty. It would therefore be illogical for the law to defend, let alone penalise, a situation in which the tax security would be used, with the consent of the tax entity, to pay the tax. The reason why no other tax provision contains a provision similar to Article 43 of the Excise Tax Act is the fact that only in excise duties the tax guarantee fulfils primarily a completely different function than the general tax guarantee institute. Furthermore, the Ministry of Finance does not agree with the appellant's conclusion that the absence of a discrepancy in determining the amount of the penalty that is typical of the so-called payment offences (e.g. interest on late payment, periodic penalty payments) would automatically constitute the liquidation nature of the penalty. The reasons why the legislature opted for an ex-ante penalty option based on a percentage of a given base, or a minimum or maximum fixed limit, are predictability and the legal certainty involved, the avoidance of leeway by a public authority, the reduction of the risk of corruption, administrative governance and the speed of management. As regards the level of the percentage itself as a parameter, when assessing the proportionality of the penalty under Section 43 of the Excise Tax Act, account must be taken in particular of the special nature of the business related to the selected products which are subject to excise duties. Entrepreneurs entering this area are well aware of the fact that it is a highly regulated sector, with this regulation not only pursuing a fiscal objective but also other objectives (e.g. protecting the population from harmful products). In view of the individual situation, the impact of the penalty on the tax entity can be affected, for example by the use of the institution of the waiting period or the distribution of the remuneration into instalments (Section 156 et seq. of the Tax Code). In conclusion, the Ministry of Finance points out the inconsistency of this provision and its general acceptance by tax entities.

19. In its observations, the Directorate-General of Customs stated that the provision of tax pursuant to Article 21 of the Excise Tax Act is an institution which constitutes a guarantee, in particular, for allowing the benefit of the conditional exemption scheme, which means deferring the obligation to grant and pay tax. In the case of an authorisation under the Excise Tax Act which cannot be issued without the provision of a tax guarantee, the entire duration of the authorisation must be maintained at the statutory level. Consequently, the provision of the tax guarantee does not exempt the tax entity from the obligation to grant and pay the tax within the prescribed period. A fine of 10% of the amount of the tax security used for the payment of the tax is a penalty instrument of a similar nature to a fine for late claims under Section 250 of the Tax Code or interest on late payments under Section 252 et seq. The "unlawful 'conduct prior to its imposition is the same as in the case of an obligation to pay interest on late payments, namely the failure to pay the tax due within the period of its payment. This is therefore an act that is not socially dangerous, but threatens the fiscal interests of the state. It should also be pointed out at this point that the tax security is not provided in full in the amount of the tax assumed but only in proportion (Section 21 (7) of the Excise Act). The Directorate-General for Customs does not agree with the view of the Regional Court in Ostrava that the Excise Tax Act would penalise a tax entity for an act which is not illegal and, moreover, is expressly permitted by law. The fact that the Excise Tax Act provides that the tax administrator shall apply the tax security to the payment of the tax if it is not paid within the legal period of its maturity, while regulating the procedure of the tax administrator vis-à-vis the guarantor, does not deprive the tax body of the obligation to pay the tax within the term of payment, despite the tax security provided. In order to ask the court what the consequences of the repeal of the provisions of Paragraph 43 of the Excise Tax Act would be, the Directorate-General for Customs states that its abolition could lead to a loss of incentive for certain tax entities to pay the tax within the period of its maturity when they are granted the tax security. The automatic reimbursement of the tax due on the collateral provided without a threat of penalty for tax warehouse operators and re-authorised beneficiaries (i.e. holders of authorisations that are not" used up' by one-off performance) would result in a reduction or exhaustion of the security provided, which would mean an increase in cases where the tax operator would have to be called upon to supplement the tax security if it did not do so itself within the period laid down in Article 21 (10) of the Excise Act. Thus, the tax guarantee would virtually cease its function of guarantee in relation to the business of producing and handling the selected products and would de facto constitute a tax advance.

20. The Constitutional Court sent the above observations to the appellant and enabled him to comment on them, but the appellant did not make use of that possibility.

21. In accordance with Article 69 (2) of the Law on the Constitutional Court, the Constitutional Court sent a proposal to the Prime Minister of the Czech Republic, which by letter of 4 March 2013 stated that it would not use its right to intervene.

22. The Ombudsman also stated that he would not exercise his right to intervene in accordance with Paragraph 69 (3) of the Constitutional Court Act.

23. The contested provision of Paragraph 43 of the Excise Tax Act reads:

Fines

Where the tax administrator uses the tax security to pay the tax, the tax warehouse operator, to the beneficiary in accordance with § 22, to the authorised consignor in accordance with § 3 (k), to the tax representative in order to send the selected products pursuant to § 33 or to the user, shall impose a penalty of 10% of the amount of the tax security used for the payment of the tax. Where the tax administrator uses the tax security to pay the tax pursuant to Articles 23 (4), 29 (2) and 33 (7), the fine shall not be imposed.

24. Article 95 (2) The Constitution of the Czech Republic states that if the court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it will bring the matter before the Constitutional Court. This authorisation is further specified in § 64 (3) of the Law on the Constitutional Court, according to which the Constitutional Court may apply for annulment of the law or its individual provisions. It is a condition of a substantive discussion of such a proposal that the classification of Article 95 (2) of the Constitution of the Czech Republic be fulfilled in the sense that it must be a law to be applied in the resolution of a case, i.e. the law or its provision which is proposed for annulment, should be applied directly by the appellant in the resolution of a particular dispute. The Constitutional Court found this condition fulfilled, as the applicant - Regional Court in Ostrava - decides on the action against the decision of the Customs Directorate of Ostrava of 24 October 2011 No 6248-2 / 2011140100-21 which applied the contested provisions of the Excise Tax Act.

25. In the context of the procedure for the application for annulment of a law or part of a law, the Constitutional Court examines whether the contested regulation has been adopted and issued within the limits of the Constitution of the Czech Republic in a constitutional manner (Section 68 (2) of the Constitutional Court Act).

26. The draft Consumer Tax Act was circulated to Members as Press 317 / 0 on 2 May 2003. By resolution No 636 of 24 July 2003, the Lower House approved the proposal by a majority of 100 Members out of 198 present, 97 votes against the proposal. On 13.8.2003 The Senate discussed the proposal (press 156 / 0) and returned it to the Chamber of Deputies with amendments (resolution 205). The Chamber of Deputies, which was returned by the Senate, debated the bill on 26 September 2003 (Resolution 653) and approved the bill by a majority of 101 Members from 199 present. 96 Members voted against. The law was delivered to the President of the Republic on 30.9.2003 and signed by the President of the Republic on 13.10.2003. The Act was published on 24 October 2003 in the Collection of Laws in the amount of 118 under the number 353 / 2003 Coll.

27. The Constitutional Court notes that the adoption and issue of the legislation under review has taken place in the prescribed manner. Since the appellant did not object to a defect in the legislative process or to a breach of the Constitution of the Czech Republic provided for by the legislature, the Constitutional Court

? Act No. 217 / 2005 Coll., amending Act No. 353 / 2003 Coll., on Consumer Taxes, as amended, Act No. 265 / 1991 Coll., on the Jurisdiction of the Bodies of the Czech Republic in the Price Field, as amended, and certain other laws,

? Act No. 575 / 2006 Coll., amending Act No. 353 / 2003 Coll., on Consumer Taxes, as amended, and other related laws,

? Act No. 281 / 2009 Coll., amending certain laws in connection with the adoption of the Tax Code,

? Act No. 59 / 2010 Coll., amending Act No. 353 / 2003 Coll., on Consumer Taxes, as amended, and Act No. 676 / 2004 Coll., on Mandatory Labelling of Lime and amending Act No. 586 / 1992 Coll., on Income Taxes, as amended, as amended,

? and Act No. 407 / 2012 Coll., amending Act No. 353 / 2003 Coll., on Consumer Taxes, as amended, and other related laws,

In addition to taking into account the observations submitted by the Chamber of Deputies and the Senate, it formally verified the progress of the legislative process from a publicly available source of information at http: / / www.psp.cz.

28. According to the provisions of Section 44 of the Constitutional Court Act, if the application was not rejected in the absence of an oral hearing without the parties present, the Constitutional Court will order the oral hearing if further clarification can be expected from that hearing. In accordance with the conditions laid down in this legal provision, the Constitutional Court has ruled on the case with the abandonment of oral proceedings.

29. The proposal is not justified as to the alleged unconstitutionality of the content of the contested provision.

30. In the explanatory memorandum to the Excise Tax Act, it was stated in the dictation of the contested provision that the penalties for infringement of tax discipline are generally set out in Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended. However, there is no penalty for an offence where, because of the failure to comply with the tax obligation, the tax administrator must obtain payment of the tax on its security.

31. Therefore, it follows from the explanatory memorandum that the function of the fine in question, as provided for in Article 43 of the Excise Act, is to impose a penalty in the event that the excise duty has not been paid properly and in a timely manner, therefore the payment of the excise duty had to be subject to the application of a guarantee, thereby reducing the risk coverage. As is apparent from the opinion of the Ministry of Finance, in such a situation the public interest in the correct determination and collection of the tax resulting from § 1 (2) of Act No. 280 / 2009 Coll., the tax rules, as well as the public interest in the need to cover the risks associated with the production, processing and holding of products subject to excise duty, is threatened. The Constitutional Court, which does not object to the conclusions drawn from the explanatory memorandum and the observations of the Ministry of Finance, cannot attest to the appellant that a fine for payment of the tax is imposed on the tax body in the present case in the legal manner - by means of the implementation of the tax security. As is apparent from Article 21 (3) and (4) of the Excise Tax Act, the tax security shall be used by the customs office to pay the tax if the tax is not paid within the legal period of its due date, while the tax administrator is obliged to invite the debtor to pay the tax. Thus, at the time of payment of the tax by the tax administrator, the amount of the tax security set out in Paragraph 21 (7) of this Law will be reduced as a proportional amount of the tax liability envisaged. In the case of an authorisation under the Excise Tax Act which cannot be issued without the provision of a tax guarantee, the entire duration of the authorisation must be maintained at the statutory level. The fine is therefore a cash penalty for the loss of funds which the authorisation holder was obliged to grant before the authorisation was granted. However, the payment by the customs office of payment of the tax on the security is not the legal form submitted by the tax, but by the alternative method, if the tax entity fails to pay the tax properly and in due time. However, such a method is linked to the imposition of a fine of 10% on the amount of the tax security used to pay the tax, which should, inter alia, be a reason for the tax body to pay the tax properly and in a timely manner and to remain unaffected by the security provided by law. Therefore, the Constitutional Court cannot attest to the appellant's objection that, in the present case, a fine has been imposed on a tax body for conduct which cannot be found to be unlawful or harmful and which is expressly permitted in the law.

32. The appellant further alleges that the contested provision is discriminatory as it contains, without due cause, a reference to three exemptions from the obligation to impose a fine in cases where the tax security is used to cover excise duty.

33. In the first case, the authorisation is for re-admission of selected products under the conditional exemption scheme or for a single acceptance of selected products under the conditional exemption scheme. According to Section 22 (9) of the Excise Tax Act, the tax administrator shall determine the amount of the tax security and issue permission to re-receive the selected products under the conditional exemption scheme if the appellant provides a tax equivalent to the amount of the tax which the beneficiary of the selected products is required to grant and pay on a one-off basis after being put into free circulation. With the agreement of the appellant, the tax administrator may pay the tax provided by the security. If they do not do so, the tax administrator shall decide to release the security within 5 working days of the date on which the amount of the tax was credited to the designated account of the tax administrator whose territorial jurisdiction the beneficiary has its registered office or place of residence.

34. Paragraph 29 (1) and (2) of the Excise Tax Act lays down the obligation of a legal or natural person collecting selected products from another Member State for business purposes to register before withdrawing those selected products for free circulation in another Member State as a taxpayer and to notify the tax administrator of the quantity of selected products and to provide security of the amount which he would be obliged to grant and pay if the selected products were put into free circulation in the tax territory of the Czech Republic. In this case, too, with the consent of the person who provided the tax guarantee, the tax administrator provided by the tax guarantee may pay the tax.

35. The last group concerns the dispatch of selected products which have been put into free circulation in another Member State by or on behalf of a natural or legal person, and that person has a place of residence or registered office in that other Member State, a legal or natural person having his registered office or his place of residence in the tax territory of the Czech Republic, who does not carry out any other independent economic activity. The tax representative for the dispatch of selected products shall, before each shipment of selected products from another Member State, provide a tax security corresponding to the amount of tax for the quantity of selected products sent if these selected products were put into free circulation in the tax territory of the Czech Republic. With the agreement of the tax representative for the dispatch of the selected products, the tax administrator may pay the tax locally to the tax representative for the dispatch of the selected products provided by the security.

36. The Constitutional Court takes the view that this is the case where the customs office has paid the tax provided by securing the tax with the agreement of the authorised recipient for the single receipt of the selected products (Section 23 (3) of the Excise Tax Act) or has paid the tax provided by securing the tax with the agreement of the legal or natural person collecting the selected products from another Member State for business purposes (Section 29 (1) and (2) of the Excise Tax Act), and finally, if the tax provided by the provision of the tax with the agreement of the tax representative for the dispatch of the selected products [§ 3 (t), § 33 (7) of the Excise Tax Act].

37. The Constitutional Court has already dealt with the issue of equality in rights in a number of its decisions. It was stated above all that the constitutional principle of equality, as set out in Article 1 of the Charter of Fundamental Rights and Freedoms, does not mean absolute equality. In the finding of sp. zn. Pl. ÚS 6 / 96 of 5.11.1996 (N 113 / 6 SbNU 313; 295 / 1996 Coll.), which was followed by other case-law, this was specifically stated as follows: "The constitutional principle of equality in rights enshrined in Article 1 of the Charter cannot be understood as absolute and equality as an abstract category. The Constitutional Court of the CSFR has already expressed its understanding of equality, enshrined in that article, as a relative equality, as all democratic constitutions mean it, only demanding the removal of unjustified differences (the finding of the Constitutional Court of the CSFR published under No 11 of the Reports of the Resolution and the findings of the CSFR). The principle of equality in rights must therefore also be understood as meaning that legal discrimination in access to certain rights between legal entities must not be an expression of pleasure, but does not imply that any right must be granted to anyone."

38. The Constitutional Court generally interprets the principle of equality from a dual point of view [see for example the findings of sp. zn. Pl. The first is due to the requirement of the legislature to rule out the libel in the procedure of differentiating groups of entities and their rights, and the second to the requirement of the constitutionality of the aspects of differentiation, i.e. the inadmissibility of a fundamental right and freedoms by the legislator. While the postulate of equality does not imply a requirement of general equality between everyone and everyone, it implies a requirement that the law does not, without justification, favour or disadvantage one over another. Thus, constitutional order also admits a legal inequality if there are constitutionally acceptable reasons for doing so.

39. This is also the case in the present case. It is clear from the above that, in the above mentioned cases of exemption from the obligation to impose a fine, this is always a situation where the amount of excise duty is known in advance, the amount of tax security corresponding to the amount of tax which the tax entity is required to grant and pay is paid by the composition or transfer of funds to the tax administrator's deposit account and is expressly permitted by law to use the tax security to cover excise duty with the agreement of the entity which provided the tax security. Therefore, it can be agreed with the Ministry of Finance's argument that it is not justified to penalise the legally foreseen and permitted conduct, whereby the provision of a tax which primarily fulfils the functions of payment (as opposed to cases not covered, where it primarily performs the function of reinsurance) is used for tax purposes, with the consent of the tax entity. On the other hand, in the other cases of selected products which are subject to the conditional exemption scheme, the tax security should be seen to be used for the payment of the excise duty due only exceptionally so as not to reduce the amount of resources provided. In such cases, in contrast to the three specific situations described above, the possibility of securing the tax is also given by a bank guarantee if the tax administrator decides to accept it or by a guarantee if the guarantor is authorised by the tax administrator.

40. The Constitutional Court therefore considers that it is not possible to attest to the appellant that the contested provision based on the differences between tax operators, depending on the method chosen, is not justified. In the cases referred to, the tax authority shall notify the tax administrator of the exact quantity, or the name of the products collected, and the customs office shall be entitled, within the meaning of Section 26 (7) of the Excise Act, to order the designation of those products before the start of the transport of the selected products under the conditional exemption scheme or exempt from tax. The tax may, with the consent of the person concerned, be paid on the security granted (which must be composed of the amount of tax that the person concerned would have to pay), if the tax is paid, the customs office of guarantee shall release the security within five working days of the date on which the tax is credited to the customs office's designated account. Under the legal conditions thus laid down, the Constitutional Court has the absence of a fine in the payment of the tax on the collateral provided, as envisaged in the contested provision of Paragraph 43 of the Excise Tax Act, on grounds based on rational and constitutionally acceptable grounds which do not give rise to undue discrimination against tax entities.

41. Finally, the appellant argued that the fine in question is not enshrined in any other tax legislation and its nature is liquidation, which is based, inter alia, on its fixed rate, which makes it impossible to take account of the assets and personal circumstances of the tax entity and, where appropriate, other significant circumstances.

42. As regards the fact that the analogy of a fine pursuant to Article 43 of the Excise Act does not appear in another tax legislation, the Constitutional Court refers here to a specific group of excise products which are mineral oils, alcohol, beer, wine and intermediate products and tobacco products, and to the fact that business in such products (in particular as regards the tax warehouse operator or authorised consignee or consignor) is subject to authorisation to carry out such activities. According to Article 19 (1) of the Excise Tax Act, the selected product is under a conditional exemption scheme where it is placed in a tax warehouse or transported under a conditional exemption scheme. For each tax warehouse, the tax security must correspond, unless otherwise provided by the Excise Tax Act, to the amount set out in Paragraph 21 (7) of that Act. Also, the products selected may be transported under the conditional exemption scheme only if the operator of the consignor's tax warehouse or the authorised consignor provides a tax security equal to the amount of tax which he would be obliged to grant and pay when the selected products are put into free circulation, unless the Excise Tax Act provides otherwise.

43. The Constitutional Court dealt with the issue of fines and their possible liquidation impact on individuals more than once, for example in the appellant of cited findings of 13.8.2002 sp. zn. Pl. ÚS 3 / 02 (see above), of 10.3.2004 sp. zn. Pl. ÚS 12 / 03 (N 37 / 32 SbNU 367; 300 / 2004 Coll.) and of 25.10.2011 sp. zn. Pl. ÚS 14 / 09 (see above). In the first two findings, the Constitutional Court declared the illegality of the statutory penalty rate (cash penalty) on the ground that the fine, although imposed in a minimum permissible area, interferes with the property conditions of an individual with considerable intensity and has a liquidation character. The Constitutional Court expressly stated that "a fine may be regarded as an intervention with a constitutional legal dimension if it interferes with an individual's property situation with considerable intensity. The Constitutional Court therefore assessed the purpose of the intervention in relation to the resources used, the proportionality principle being the criterion for this assessment. 'In the latter finding, sp. zn. Pl. ÚS 14 / 09, the Constitutional Court concluded that" constitutional rules do not require the legislator, when the penalty rate is laid down by law, to always abandon the lower limit of the penalty area. The type of severity (damage) of the criminal conduct of a given species may generally be so high that it does not allow even in an individual case to determine the zero value of the penalty notice. The assessment of the lower limit of the penalty rate is essentially a matter for the legislator. The constitutional rules do not contain any directive on the lower limit issue - but the order for proportionality between the type of seriousness of the criminal conduct and the level of the penalty rate must be followed.' The different opinions referred to by the appellant referred to the principle of proportionality (when intervening in property law) and the requirement for individualisation (proportionality) of the sentence.

44. The Ministry of Finance, in its observations on the constitutional complaint, states that, in the case of sanctions (payment offenses) which are normally provided for by the tax legislation, these are not firm sanctions in the true sense, but are penalties provided for by a certain percentage of the amount of the amount of money which is affected by the infringement in a particular case. Thus, in individual cases, the amount of the fine will be different, to a large extent depending on the intensity of the infringement, for which the extent of the cash performance covered by the infringement is crucial. This scope also reflects to a large extent the individual economic circumstances of the sanctioned entity that determine the extent of the cash outflows. Thus, although the penalties for administrative misconduct in tax administration are generally not set in such a way as to give an individual review of the circumstances of the sanctioned entity in each individual case, the overall system setting of their construction includes a built-in "self-moderation" mechanism, where the amount of the penalty (i.e. in this case the percentage) is determined by the legislator directly in the law, taking into account the seriousness of the infringement and, to a large extent, the individual economic circumstances of the sanctioned entity.

45. The conclusions of the Ministry of Finance can be agreed as long as, like other sanctions for tax discipline violations, as designed in the tax rules, the fine in question is set at a fixed percentage rate. This is 10% of the amount of the tax security that was used for the payment of the tax, not the whole of the tax security.

46. As is apparent from the above-mentioned findings of the Constitutional Court, the principle of proportionality is a decisive factor in assessing the purpose of the intervention in relation to the resources used. The Constitutional Court points out at this point again that the excise duty is not a "normal 'tax, but a tax relating to a specific group of products, and that business with them is subject to a special scheme which is known in advance to the tax authorities concerned. Similarly, as the Constitutional Court did in its finding of 25 October 2011, Pl. ÚS 14 / 09, even in the present case, the Constitutional Court addressed whether the setting of a fixed percentage of the fine was not affected by the principle of administrative discretion if the determining authority could not take sufficient account of the social and property ratios of the tax entity in a particular case and properly differentiate between the scale of the penalty and its imposition.

47. The Constitutional Court dealt with the issue of the constitutionality of the penalty (§ 135d of Act No 353 / 2003 Coll., on excise duties, as amended by Act No 217 / 2005 Coll.) because of an alleged breach of the principle of differentiation and proportionality of the penalty in its recent finding of 30 July 2013, in which it stated that the answer to the question of the necessity of the penalty as such (in the sense of the type of penalty), or the related issues of the intensity of the public interest, could not be made by the Constitutional Court. The Constitutional Court stated that these are issues of a political nature, the solution of which is in the sole competence of the legislator, to whom, in the end, the legislative regulation of the question of whether or not certain acts should be criminal, defining the facts of offences (offences, offences, other administrative offences) and determining the type and level of sanctions. In the cited finding, the Constitutional Court also pointed out the continued fragmentation and inconceptual nature of the legislation on administrative punishment and concluded that the absence of the possibility of administrative discretion in the legislation could not be interpreted as meaning that the legislator intended to exclude the obligation of administrative authorities to respect the constitutional fundamental rights of citizens through administrative discretion; Such an interpretation could not be regarded as constitutionally conformal. Thus, the lack of explicit regulation of such an option in the law did not find in itself a reason for the intervention of the Constitutional Court or for the Constitutional Court to express the unconstitutional nature of the loophole in law.

48. The Constitutional Court cannot ignore the fact that the contested legal standard already respects the requirement for differentiation of penalties by relying on the amount of excise arrears. In this regard, it can be concluded with regard to the above-mentioned penalty that, as a result, it reflects the amount of funds moving in the trade in mineral oils, alcohol, beer, wine and intermediate products and tobacco products, which corresponds to the amount of tax which the tax entity is obliged to grant and pay and, consequently, the amount of the security of the tax on which the fine is derived within the meaning of Section 43 of the Excise Tax Act. In this context, and taking into account the above-mentioned conclusions, as they result from the finding of sp. zn.

49. The Constitutional Court therefore concludes that it did not find any grounds to declare the unconstitutionality of Section 43 of the Excise Tax Act and therefore rejected the proposal without the implementation of the oral procedure under the provisions of Section 70 (2) of the Constitutional Court Act.