The Constitutional Court found No. 38 / 2013 Coll.
The Constitutional Court found of 12 December 2012 sp. zn.
Valid
38
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 31 / 08 on 12 December 2012 in plenary composed of the President of the Court of Pavel Rychetský and the Judges Stanislav Balík (Rapporteur), Vlasta Formánková, Military Güttler, Pavel Holländer, Dagmar Lastovecká, Jana Musil, Jiří Nykodemí, Miloslav Excellent and Michaela Židlická, on the proposal of the Supreme Administrative Court, under which Mgr. Daniela Zeman, on the declaration of the anti-constitutional Act No. 558 / 2004 Coll., No. 693 / 2004 Coll., in the version of Act No. 479 / 2003 Coll., No. 237 / 2004 Coll., No. 239 / 2004 Coll., No. 313 / 2004 Coll.
as follows:
Motion denied.
Reasons
Definition and recap of the proposal
1. On 3 November 2008, the Constitutional Court received a proposal from the Supreme Administrative Court, for which Mgr. Daniela Zeman, hereinafter referred to as "the appellant," pursuant to the provisions of § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, on the annulment of the provisions of § 42 (11) (b) of Act No. 353 / 2003 Coll., on excise duties, as amended by Act No. 479 / 2003 Coll., No. 2377 / 2004 Coll., No. 379 / 2005 Coll., No. 558 / 2004 Coll., No. 693 / 2004 Coll., No. 310 / 2006 Coll., and No. 179 / 2005 Coll., as amended by Act No. 217 / 2005 Coll. ';
2. The present application was lodged in connection with the appellant's decision on the appeal of the defendant to the Customs Directorate of Ostrava (hereinafter referred to as "the Customs Directorate ') against the applicant M. B. against the judgment of the Regional Court in Ostrava (hereinafter referred to as" the Regional Court') of 21 June 2007 No 22 Ca 341 / 2006-23, which annulled its decision of 18 July 2006 No 2835-06 / 06-1401-21. By this decision, the Customs Directorate rejected the applicant's appeal against the decision of the Karviná Customs Office of 17 February 2006 No 636- 04 / 06- 1461- 21 which declared the forfeiture of the means of transport owned by the applicant - Renault Master 2.5 DCI, registration number XXX XXXX, PL, hereinafter referred to as "the means of transport concerned '. The case is referred to the applicant under sp. zn. 9 Afs 183 / 2007.
3. The appellant considers that the provisions of Paragraph 42 (11) (b) of Act No 353 / 2003 Coll., on Consumer Taxes, as amended, (hereinafter referred to as "the Excise Tax Act ') are contrary to constitutional rules, namely the provisions of Article 11 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter') and Article 4 (4) of the Charter. The appellant seeks a petition to repeal part of the provision of Paragraph 42 (11) (b) of the Excise Tax Act in the words "or means of transport ', but states in the heading of the same submission that the annulment of the contested provision is sought" in the part concerning the imposition of the forfeiture of the means of transport by the owner as a person different from the person checked when known to the Customs Directorate'.
4. In a rather comprehensive submission, the appellant explained in detail the course of the previous proceedings before the Customs Office of Karviná, the Customs Directorate of Ostrava and within the administrative judiciary before the Regional Court of Ostrava and the appellant at the stage where the administrative proceedings were suspended, with a request for annulment of the contested provision to the Constitutional Court. In particular, he described how by decision of 17 February 2006 No 636- 04 / 06- 1461-21, the customs office of Karviná imposed the forfeiture of the means of transport in question, the owner of which is M. B., whereas by decision of 18 July 2006 No 2835- 06 / 06- 140- 21, a "legal standard hypothesis, i.e. the legal fact with which the legal standard in question (§ 42 (11) of the Excise Act) linked the intervention into the subjective rights of third parties, including the owner of the means of transport, was fulfilled and properly demonstrated in the case under consideration '. By judgment of 21 June 2007 No 22 Ca 341 / 2006-23, the Regional Court of Ostrava annulled the contested decision of the Customs Directorate of Ostrava and referred the case back to him for further proceedings," he testified to the plaintiff's objection pointing to the lack of discretion of the administrative authorities of the two stages regarding the fault or degree of involvement of the applicant in the transport of selected products'. The Regional Court further concluded that the customs authorities are entitled under the provisions of Section 42 (11) of the Excise Tax Act and not obliged to proceed to the forfeiture of the means of transport and, in the context of administrative discretion, all the circumstances of the case must be assessed and therefore the question of the owner's involvement in the conduct in which the law was found to conflict. With the opposite legal opinion, the Customs Directorate of Ostrava is complaining against the judgment of the Regional Court. The reason for bringing the case to the Constitutional Court is that the appellant will apply the contested provisions of the Excise Tax Act in the appeal proceedings.
5. The appellant then preceded the wording of the contested provision of Paragraph 42 (11) of the Excise Tax Act, as well as from his point of view the provisions of the Charter concerned, pointed to Article 17 The Universal Declaration of Human Rights and mentioned the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms. According to the appellant, "the wording of the provisions of Paragraph 42 of the Excise Tax Act does not give any basis for the conduct of the evidence procedure in order to examine the fulfilment of the various elements of the liability relationship, including the fault of the owner and the causal link between his infringement and the consequence, as well as the possibility of the owner to waive that responsibility in the absence of proof of his knowledge or understanding with the illegal transport of the selected products. It is irrelevant whether the obligation of proof (burden of proof) would be borne by the owner or the customs authorities. At the same time, it is not possible for the fulfilment of the conditions of the liability relationship to be assessed only within the administrative discretion, i.e. only at the stage of the procedure where the administrative authority is considering whether or not it will proceed to deposit the means of transport. The administrative discretion is a matter of free discretion of the administrative authority (which is not covered by the Excise Tax Act) and therefore it cannot be guaranteed that, in each individual case, the administrative authority will deal with the liability of the owner and, on the basis of the findings made, decide to forfeit the means of transport. 'The appellant then points out the penalty nature of the contested provision and that, pursuant to § 15 (1) of Act No. 200 / 1990 Coll., on misdemeanors, and § 55 (2) of the Criminal Act, forfeiture of the case can only be declared if the case belongs to the perpetrator. In the appellant's view, it is not acceptable to accept a situation where the forfeiture of a means of transport is not limited by similar conditions as in criminal and criminal law. The appellant observes that neither the content of the rule of law clearly indicates what reasons led the legislator to adopt that rule nor the purpose precisely followed by its adoption. For the reasons set out above, the appellant contends that the Constitutional Court should abolish the contested part of the provision of Paragraph 42 (11) (b) of the Excise Tax Act" or means of transport'.
6. In its submission of 15 November 2012, the appellant, in reply, amended the petition and requested that the unconstitutional nature of the contested provision be declared, even if it had already been annulled, because it should be applied in the proceedings before it. By order of 12 December 2012, the Constitutional Court accepted the amendment.
Proceedings and recap of the observations of the parties
7. In accordance with Section 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 18 / 2000 Coll., the Constitutional Court invited the Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic to comment on the proposal.
8. The Chamber of Deputies, through its President Miroslava, has described the legislative history of the adoption of the Act on Consumer Taxes and added that the provisions of Paragraph 42 of the Act on Consumer Taxes have been significantly amended by Act No. 95 / 2011 Coll., amending Act No. 353 / 2003 Coll., on Consumer Taxes, as amended, and Act No. 61 / 1997 Coll., on Lime, and amending and supplementing Act No. 455 / 1991 Coll., on Trade Business (Trade Act), as amended, and the Act of the Czech National Council No. 587 / 1992 Coll., on Consumption Taxes, as amended by the Act on Lithium, as amended. The Act introduced with effect from 1 May 2011 a new text of the provisions of Section 42 of the Excise Tax Act. In that amended version, the contested part of the provision of Paragraph 42 (11) (b) is no longer present by the appellant. Finally, the Chamber of Deputies expressed the view that the legislature acted in the belief that the law adopted was in line with the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and our legal order, with it being up to the Constitutional Court to assess the constitutionality of the contested provision.
9. The Senate also described, through its President Milan Štěv, the legislative history of the adoption of Act No. 353 / 2003 Coll., on Consumer Taxes, and its subsequent amendments. The Senate pointed out that, although the provisions of Paragraph 42 of the Consumer Tax Act were amended by Act No. 95 / 2011 Coll., amending Act No. 353 / 2003 Coll., on Consumer Taxes, as amended, and Act No. 61 / 1997 Coll., on Lime and on Amendment and Addition to Act No. 455 / 1991 Coll., on Commercial Business (Trade Tax Act), as amended, and the Act of the Czech National Council No. 587 / 1992 Coll., on Consumer Taxes, as amended, (Act on Lime), as amended, however "the text proposed by the appellant for annulment in the applicable and effective version of the Excise Taxes Act in § 42 is no longer included, since it was thus amended in Article 42, in substance, moved into a new provision 'to a new provision § 42d (a). The Senate then described the legislative history of the adoption of Act No. 95 / 2011 Coll., amending Act No. 353 / 2003 Coll., on Consumer Taxes, as amended, and Act No. 61 / 1997 Coll., on Liquor and on Amendment and Addition to Act No. 455 / 1991 Coll., on Trade Business (Trade Trade Act), as amended, and Act No. 587 / 1992 Coll., on Consumer Taxes, as amended, and as amended, on the findings of the Constitutional Court of 6 February 2007 in order to assess the constitutionality of the contested provision.
Active ID of the applicant
10. Pursuant to Article 95 (2) of the Constitution, if the court concludes that the law to be applied in the resolution of the case is contrary to constitutional order, it shall bring the matter before the Constitutional Court. This authorisation is further specified in § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, according to which the Constitutional Court may file an application for annulment of the Act or its individual provisions. The subject matter of a formal discussion of such a proposal shall be the fulfilment of Article 95 (2) The Constitution, in the sense that it must be a law to be applied in the resolution of the case, i.e. the law or its provision which is proposed for annulment, is to be applied directly by the appellant in the resolution of a particular dispute. The Constitutional Court found this condition fulfilled, as the appellant will, with reference to the provisions of § 75 (1) of Act No. 150 / 2002 Coll., the Administrative Rules of the Court of Justice (hereinafter referred to as "p.") in the decision to rely on the factual and legal situation which was there at the time of the decision of the administrative body and thus apply the contested provision of § 42 (11) (b) of the Excise Tax Act in the words "or means of transport ', as it was in force on 18 July 2006, the date of the decision of the Customs Directorate of Ostrava.
Constitutional conformity of the legislative process
11. Pursuant to the provisions of § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court, in addition to assessing the compliance of the contested law with the constitutional laws, ascertains whether it has been adopted and issued within the limits of the constitutional competence and in a constitutional manner.
12. In the present case, the appellant did not object to a defect in the legislative process or to a breach of the legislature's constitutional competence.
13. The contested provision of Paragraph 42 (11) (b) of the Excise Tax Act was part of the Government's draft Excise Tax Act submitted by the Government to the Chamber of Deputies in the 4th parliamentary term on 29 April 2003 as House Press No. 317. The first reading of the draft law took place on 20 May 2003. The bill was ordered to the Committee on Budgets, which discussed it, and on 21 July 2003 it issued a resolution containing amendments which did not, however, concern the contested provision. The second reading of the draft Excise Tax Act took place on 22 July 2003. As part of the second reading, amendments were tabled which did not, however, affect the contested provision (House Press No. 317 / 2). The bill was approved at the third reading on 24 July 2003. The Senate was then referred to on 13 August 2003 as Senate Document 156. This press has been ordered to discuss the Committee on Economic, Agriculture and Transport and the Committee on European Integration. On 11 September 2003, at its 10th meeting, the Senate proposed to return the bill to the Chamber of Deputies with amendments. The Chamber of Deputies voted on the bill returned by the Senate on 26 September 2003. The Chamber of Deputies remained in this vote on the original bill. In the final vote, there were 199 Members of the 101 Members present for the original draft Act on Excise Taxes referred to the Senate, 96 Members opposed. The law was then signed by the relevant constitutional authorities and declared in the Collection of Laws under No 353 / 2003 Coll. (amount 118).
14. The Constitutional Court, after verifying the accuracy of these data resulting from the observations of the Chamber of Deputies and the Senate, concluded that the contested provision was adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure.
Text of the contested provision
15. The part of the provisions of Paragraph 42 (11) of the Excise Tax Act to be applied by the appellant is:
"The customs office or customs office shall be entitled to impose the forfeiture of selected products which prove to have been handled in the manner referred to in paragraphs 1 and 2, or the means of transport which carried such products, if:
(a) these selected products or means of transport are owned by the controlled person; or
(b) the person who owns these selected products or means of transport is known to the Customs Directorate. "
Legal evaluation of the Constitutional Court
16. The Constitutional Court concluded that the application was not justified.
17. The Constitutional Court, based on the principle of minimising interference in the decision-making activities of public authorities, has repeatedly stated in its case-law that, taking into account the possibility of a constitutional interpretation of the contested provision, that priority is given to the appeal of the contested provision [cf., for example, the finding of the Constitutional Court of 26 April 2006 sp. zl. ÚS 37 / 04 (N 92 / 41 SbNU 173; 419 / 2006 Coll.]). The Constitutional Court has taken this approach even this time.
18. In the case of the contested provision, or part thereof, given by the words "or means of transport ', two conflicting variants are offered, which is also known to the appellant himself. Thus, the legal assessment reached by the Regional Court and the opposite legal opinion put forward by the appellant in the Court's points of view. Whereas, in the case of the procedure under the first variant, it would not be necessary to repeal the contested provision, if it had been upheld by the contrary, it would have been appropriate to derogate.
19. The Constitutional Court first of all considers it necessary to point out that the contested provision is not mandatory and that, as the appellant also admits, it is up to the customs authority to state whether or not the goods are forfeited. Compliance with the condition that the person who owns the means of transport is known to the customs authority does not oblige that authority to declare the means of transport forfeited. That condition is a mere condition of sine qua non, which means that the forfeiture of the means of transport cannot be declared against the unknown owner.
20. From the very condition that the owner of the means of transport must be known for the possible possibility of forfeiting the means of transport, it can be concluded by teleological interpretation that, for that owner, the material and procedural means of defence and objections are provided by law.
21. The Constitutional Court is based on the principle that administrative discretion must not lead to unfounded decisions and must not lead to the preference of the authorities which take decisions in tax or other administrative proceedings. It is already clear from the language interpretation that administrative discretion is a consideration and not an application of the legal rules with case-law hypotheses. Administrative discretion shall always take place within the limits laid down by the constitutional order, by the relevant legal standard or by the basic principles of the law governing the decisions of the administrative authorities. Moreover, the appellant himself is aware that the judicial review "is limited within the meaning of Article 78 (1) of the EC Treaty precisely and only to examining whether the administrative authority has not deviated from the limits and considerations laid down by law, whether administrative discretion is in accordance with the rules of logical reasoning and whether the premises of such judgment have been established in accordance with the proper procedural procedure. 'In the case before the General Courts, it is therefore entirely appropriate that the General Courts apply themselves directly the alleged provisions of the Charter in relation to the protection of the owner's property rights. It is evident that the forfeiture of a means of transport owned by a third party is primarily of a penalty nature and cannot be declared constitutional in relation to the payment of any tax arrears without the fact that the owner of the means of transport is found to be guilty of a tax offence. The opposite interpretation would also deny the general rule of law of nullum crimen sine lege, which can be applied by analogy to a case before the appellant.
22. The Constitutional Court, in addition to the above, adds that this constitutional interpretation of the contested provision is capable of achieving the same objective as the appellant would have wished to achieve by the way of the annulment of the contested provision or by a declaration of its unconstitutional nature, i.e. to avoid, where appropriate, the forfeiture of a means of transport owned by a third party which would not have been involved in committing the offence. In the absence of any prejudication, the Regional Court, which finds the Constitutional Court to be fully constitutional in conformity, has so closely outlined the further procedure before the customs authorities in its judgment of appeal.
23. The Constitutional Court failed to see that the appellant had interrupted the procedure and lodged an application with the Constitutional Court in the context of a complaint lodged by the Customs Directorate. Let the annulment of the contested provision and its constitutional conformal interpretation not lead to the success of that party in the administrative proceedings before the appellant, should it be shown in the further proceedings that the owner of the means of transport did not participate in the offence.
24. The Constitutional Court therefore concludes that it did not find any grounds to declare the unconstitutionality of § 42 (11) (b) of Act No 353 / 2003 Coll., on excise duties, as amended, in the words "or means of transport," and therefore rejected the application, in agreement with the parties to the proceedings, without carrying out oral proceedings under the provisions of § 70 (2) of the Law on the Constitutional Court.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no. 38 / 2013 Coll., on the application to declare unconstitutionality § 42 paragraph 11 (b) of Act No 353 / 2003 Coll., on excise duties, as amended, in the words "or means of transport" |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 18.02.2013 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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