The Constitutional Court found No 422 / 2017 Coll.

Motion denied.

1. In the proceedings for a constitutional complaint brought under sp. zn. I ÚS 1467 / 13, the complainant Bourke Trust, a.s., sought the annulment of the order of the Supreme Court of 28 February 2013 No 3 / 2013- 283, the order of the High Court of Olomouc (hereinafter referred to as the "Supreme Court ') of 18 October 2012 No 13 VSOL 41 / 2012- 266 and the order of the Regional Court of Brno (hereinafter referred to as the" Regional Court') of 4 May 2012 No 37 (39) ICm 1154 / 2010- 223, alleging that a breach of Articles 11 and 36 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the "Listina ') had taken place of those judgments.

2. Together with the constitutional complaint, the complainant submitted a proposal pursuant to Article 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., for the annulment of Sections 235 (2) and 239 (1) of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended, which justified the violation of Articles 11 and 36 of the Charter by the provisions cited.

3. The constitutional complaint, in accordance with the schedule of proceedings of the Constitutional Court, was assigned to the new Judge-Rapporteur after the expiry of the term of office of the original Judge-Rapporteur on the basis of Paragraph 12 (18) (transitional provisions) of the schedule of proceedings of the Constitutional Court, as amended (No Org. 61 / 14), corresponding to the new composition of the Chamber; The Constitutional Court has informed the complainant of this change.

4. The constitutional complaint was lodged by a well-founded complainant who was a party to the proceedings in which the decisions contested by the constitutional complaint were given, the Constitutional Court is competent to discuss it, the complainant is legally represented in accordance with the requirements of § 29 to 31 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, ("the Law on the Constitutional Court '). The constitutional complaint is admissible as the complainant has exhausted all legal procedural means to protect its right (§ 75 (1) of the Law on the Constitutional Court and Contrario) and did not even constitute a manifestly unfounded proposal [§ 43 (2) (a) of Law No 182 / 1993 Coll., on the Constitutional Court, as amended by Law No 77 / 1998 Coll.]. Since the Third Chamber of the Constitutional Court found no reason to reject a constitutional complaint, the III Chamber of the Constitutional Court decided on 10 December 2015 by resolution sp. zn. I. ÚS 1467 / 13 (No. Pl. ÚS 33 / 15-1), as amended by the amending order of 10 December 2015 (No. The case was further discussed under sp. zn.

5. In the insolvency case of the debtor of the Ozodní podnik, a. s., the complainant (as creditor) brought an action against the Česká spořitelna, a. s., and JUDr. Miloslav Horská, the insolvency administrator of the debtor, requested before the Regional Court in Brno that the oral agreement of 24.6.2009 and 8.1.2010, concluded between the debtor and the first defendant (confirmed by a letter entitled "Confirm of Trade in the Financial Market '), is an ineffective legal act in relation to creditors who exercise their right to the debtor. This action was dismissed by order of this court of 4 May 2012 No 37 (39) ICm 1154 / 2010-223 pursuant to Paragraph 160 (4) of the Insolvency Act on the ground that the complainant, as the creditor applied for, is not the person entitled to bring the action because, pursuant to Paragraph 239 (1) of the Insolvency Act, only the insolvency administrator may oppose the insolvency proceedings.

6. This decision was challenged by the complainant by appeal. By order of 18 October 2012, VSOL 41 / 2012- 266 confirmed the order of the Regional Court, concluding that the complainant did not have a status in insolvency proceedings which would entitle it to bring proceedings.

7. The complainant opposed this order by the appeal rejected by the Supreme Court by order of 28 February 2013 No 29 of ICdo 3 / 2013- 283. It fully agreed with the view of the lower-level courts, according to which the complainant does not have an active substantive legitimacy to bring the action. In the same way as the lower-ranking courts, the Supreme Court found no reason to proceed under Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 64 (3) of the Law on the Constitutional Court, since, in its view, the legislation [§ 235 (2) and § 239 (1) of the Act No. 182 / 2006 Coll., on the bankruptcy and resolution methods (hereinafter referred to as the Insolvency Act), as amended by Law No. 296 / 2007 Coll.], which was intended to be applied in the case, is not an anti-constitutional action, on the basis of a return to our traditional legal system of creditors and the rules of their common interest (§ 239 (2 and § 46 of the Insolvency Act).

8. The subject of the constitutional complaint is alleged interference with the complainant's fundamental rights based on the application of the constitutional complaints contested by the provisions of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended. Therefore, the course of the (now interrupted) procedure, in the form of the complainant's argument as well as the observations of the parties and the interveners, focused essentially on this question.

9. The complainant - in this proceeding under the sp. zn. It states that two situations may arise as a result of a defaulting act of the debtor - either the debtor's assets have already left the property for the benefit of a third party, which is not thus an insolvency creditor or has not yet left the debtor, then the third party with its claim for an inefficient legal act is to be classified as insolvency creditors. In the first case, the opposition action has the effect that the property which has passed on the property returns to it, in the second case, the insolvency creditor ceases to have the right to a proportional satisfaction of his claim, but in both cases the level of satisfaction for all insolvency creditors increases. Those who have the right to bring an action against the defendant and to conduct a dispute shall decide whether creditors will have a constitutionally protected hope of greater satisfaction of their claims; The insolvency practitioner and the creditor committee, the insolvency creditor may not be a party to such proceedings and may be an intervener only with the agreement of the insolvency administrator. While the creditors' committee may oversee the management of the dispute by the insolvency administrator, given that the incident dispute is governed by the principle of oral, contradictory and concentration, the exercise of such supervision is illusory and may be carried out at most ex post, taking into account the administrator's responsibility for the damage caused. In the event that the defendant is a dominant creditor in a dispute against the defendant, the insolvency administrator has a systemic incentive to sabotage the management of such proceedings, since that creditor can significantly intervene in its legal and economic position by exercising his rights.

10. The appellant also pointed out that it has no instrument to force the insolvency administrator to bring an action, except through the creditors' committee, but this, too, constitutes a restriction on its rights, which is still very intense, because where the transfer of rights from individual to representative body is bound to be restricted by the individual's right. The appellant concluded from this that the right to bring an action against the insolvency administrator was far from being equivalent to the exercise of that right by the creditor, thereby restricting its freedom of action, in the case of the right to conduct a dispute being a complete restriction, in relation to its property law.

11. In addition, the contested provisions, according to the appellant, constitute an intervention in its right to a fair trial. In this context, the appellant argued that this right, according to the case law of the European Court of Human Rights ("the ECHR '), also affects insolvency proceedings and further stated that the extent to which the creditor's claim would be satisfied is in the hands of someone other than the creditor and the creditor has no way of influencing the exercise of the rights in any way, at most ex post to raise a harmful claim against the insolvency administrator. The creditor is so denied the right to access the court. At the same time, it pointed out the finding of 1 July 2010 sp. zn. In addition, the appellant added that the creditor had certainty that the insolvency administrator would file a opposition action when he" bought "enough claims to" provoke "himself or others into the creditor committee, which implies that the construction is built only for rich creditors. In this way, the appellant sees a parallel to the court fees, which, if they are excessively high, may constitute an infringement of the right of access to the court. Only such insolvency proceedings can be fair, in which creditors are seen as equal, meaning equality in respect of their legitimate interests from the legislator's point of view. However, it is not fair to set the current insolvency resistance in this sense, because it allows only large creditors to implement it, although even small creditors are worthy of protection.

12. Subsequently, the appellant addressed the question of whether the intervention is pursuing a legitimate objective. On the basis of the explanatory memorandum, it noted that the purpose of the adjustment was to simplify insolvency proceedings by not complicating the number of actions by individual creditors. However, the simplicity of legal proceedings is not in itself part of fundamental rights or of a public good, and if it were understood that the legislator might have wanted fewer disputes and thus less burden on courts, only the acceleration of insolvency proceedings could be considered a legitimate objective; However, the question is whether the measure adopted can lead to this.

13. The appellant then made an assessment of the so-called proportionality of the intervention. If the aim was to simplify insolvency proceedings, the elimination of the opposition actions by creditors may lead to this objective. If the aim was to speed up insolvency proceedings, there is no reason to believe that the proceedings for the action of the creditor should take much longer than the proceedings for the proceedings of the administrator - all proceedings for those actions should end at approximately the same time and, if not, it is a matter for the judicial system and the creditor should not pay for its shortcomings. In addition, the creditor has the possibility, in principle, to bring the same action as an action for annulment pursuant to Article 231 (2) of Act No 182 / 2006 Coll., on the bankruptcy and its methods of resolution (insolvency law), as amended, where the active legitimacy of the certificate of urgent legal interest may be very thin, or may cause an incident to arise between the ineffectiveness and ineffectiveness of the legal act under Act No 182 / 2006 Coll., on the insolvency law, as amended. While the chances of the creditor's success are lower here, the dispute may arise and the effect of the acceleration of the proceedings will not occur. Therefore, the legislator was unable to monitor the accelerated insolvency proceedings.

14. The appellant also addressed the question of whether the measure taken was necessary. It contends that, if the aim was to simplify insolvency proceedings and consequently to accelerate them, this argument cannot stand. In order to avoid duplication, the legislator may have introduced a special binding arrangement for the merger of cases, to "increase 'the various procedural acts, to establish legal conjectures, to limit the scope of the remedies or the grounds for their application, to introduce penalties or a flat-rate form of compensation for the unsuccessful application of the action, which would certainly lead to minor interference with the fundamental rights of creditors; an example may be the draft insolvency law (press No 1044 of 8.7.2005) submitted by a group of Members, according to which the insolvency creditor may have called on the administrator to file an action for insolvency, and, failing that, the last word of the insolvency court, or the Slovak legislation, according to which the creditor may bring an action for insolvency proceedings if he does not, within a reasonable period of time, invite the insolvency administrator, which the appellant considers to be a reasonable compromise between the different values where the element of collectivisation is present with the possibility of individual initiative. The fact that the opposition law is regulated differently abroad does not deprive the legislator of the obligation to proceed in such a way that the specific regulation will stand up to the constitutional test, which is applied to all circumstances, nor did the Constitutional Court follow that argument, otherwise it would not have been able to decide that the regulation of the law in question is unconstitutional, because there are also differences in this respect specifically between, for example, German and Swedish legislation. According to the author, the argument of our traditional treatment is misleading, as the accepted concept of human rights developed only after World War II. In addition, the appellant added that insolvency from the nature of the case cannot maintain all the characteristics of individual performance, but collectivization should only be done to the extent necessary to investigate individual freedoms, in the present case the form chosen is not necessary because there are more gentle ways.

15. The appellant also examined whether the damage caused by the measure in question was appropriate to its benefit, indicating that the benefit was questionable if the creditors had the possibility of causing alternative litigation, in comparison with which the injury was disproportionately higher, since "the provisions in question... strongly underpin the effectiveness of the opposition action as a legal institute ', and thus could not recover the most valuable assets. In this context, it points out that a large creditor usually has a debtor" in hand "and will therefore do everything to avoid insolvency, including by doing ineffective legal acts to favour that creditor over others. In subsequent insolvency proceedings, a large creditor may control and influence the creditor committee's activities as well as the filing of a (no) opposition action. According to the appellant, the opposition action is used to enforce" small things, "and significant values do not enter the property, and the right of the insolvency administrator to bring an action and the conduct of the dispute creates an ideal ground for corruption. The argument of the obligations of the insolvency administrator and the creditors' committee and their responsibilities is worthless in the proportionality test, as the claim for compensation is not a" excuse 'for violation of fundamental rights, and the benefit of speeding up legal proceedings can never take precedence over the right to a fair trial.

16. The Regional Court, in its observations on the constitutional complaint, referred to the principles of the insolvency proceedings law, in particular the position of the creditor committee and the insolvency administrator, refusing the application of the contested provisions to infringe the constitutionally guaranteed fundamental rights of the appellant.

17. The Supreme Court took the view that the legislation in question was not unconstitutional, pointing to the possibility of enforcing the common interest of creditors, if they were to bring an action against the opposition, through the creditors' committee.

18. Also, according to the Supreme Court, the contested legal regulation entrusting the exercise of the right of defence to the hands of the insolvency administrator is to be in conformity with the constitutional order, for reasons having its origin in the requirement to maintain and manage the property of the debtor; This is a standard adjustment, usual in a number of European countries - members of the European Union (hereinafter referred to as "the EU ') - except for Slovakia and Austria it is Belgium, France, Germany, the Netherlands, Poland, England and Wales in the United Kingdom - so there is no reason to consider it unconstitutional either in the Czech Republic. At the same time, the Supreme Court pointed out Article 46 (2) of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended by Act No. 294 / 2013 Coll., according to which a decision on whether the insolvency administrator is obliged to file an action for insolvency may reserve a meeting of creditors.

19. Česká spořitelna, a. s., as intervener of the proceedings on a constitutional complaint, stated that the applicant did not use the methodology of the constitutional review in accordance with the standards applied in the case-law of the Constitutional Court, as summarised and applied in the resolution of 6 February 2014 in its resolution of 6 February 2014 in its judgment of 6 February 2014 in the ÚS 3271 / 13 (not published in the SbNU, all decisions of the Constitutional Court are available at http: / / nalus.ujud.cz). The appellant, with its proposal, seeks only to be able to exercise a specific procedural instrument established by the rules of the so-called sub-constitutional law (to oppose the debtor's legal conduct by filing a counterclaim) which would not have been available outside insolvency proceedings. With reference to the legal conclusions expressed in this resolution Česká spořitelna, a. s., she stated that the active legitimacy of the insolvency administrator alone does not deviate from the discretion that the legislator has in regulating the resolution of bankruptcy and its consequences. Opposition law serves in insolvency law to maintain a collective regime of compliance with the debtor's obligations, while the legislator must carefully balance the interest in maintaining "collective insolvency proceedings" against the collective interest in the stability of commercial transactions. Act No 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended, significantly extended the scope of the transactions which can be contradicted, both in substance and in time, and, if, in this situation, it only granted active legitimacy to the insolvency administrator, it was on the basis of a rational view that this would provide the economy with adequate protection as such against the potential destructive effects that any creditor might exercise its right of defence. In this situation, there is nothing wrong with whether a qualified and State-regulated person is entrusted with the exercise of the right in question, personally responsible for the damage, if any, caused by the use of the Opposition Law and compulsory insurance in the event of damage. The consideration that such a legal regime may be more appropriate than (potentially beneficial but potentially destructive) legislation, where the opposition action may be used by any creditor (including those who are deprived or otherwise immune to the punishment for its abuse), does not appear to be manifestly unreasonable. For the purpose of the proportionality test, the application of other Member States' legislation appears appropriate. The appellant argues that the case law of the ECHR concerning the definition of claims and their constitutional protection, the constitutional standard of protection of fundamental rights (namely property rights and the right to a fair trial) is equivalent to the standard of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '), and if our legislation were to infringe fundamental rights, this would have to be the case in other countries where the Opposition Law only testifies to insolvency administrators (Belgium, England and Wales, Germany, the Netherlands, Poland, Italy, Luxembourg). The pluralism of legal solutions suggests that the issue falls within the legislator's discretion from the point of view of constitutional law, and if the Constitutional Court dictates one particular solution to the legislator, in his view the optimal solution, it would itself become a legislator in the area of insolvency law. In addition, Česká spořitelna, a. s., mentioned that the appellant, outside insolvency proceedings, would not have any opposition right, since according to § 42a of Act No. 40 / 1964 Coll., the Civil Code in force on 9 October 2010, his condition was the existence of an enforceable claim against the debtor, and asked whether (not) the existence of an adjustment to the objectivity as such was at all eligible to intervene in the constitutionally guaranteed law. In the resolution sp. zn. I. ÚS 3271 / 13, the Constitutional Court expressed its views on the lien in that regard, when dealing with the proposal to abolish part of § 398 (3) of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended by Act No. 217 / 2009 Coll., the application of which caused the creditor to receive less than the amount of the debtor under ordinary civil law. If the appellant constructs the creditor's right" fully freely to influence the degree of hope of satisfying its claim' as a constitutionally guaranteed fundamental right to which it was intended to be impacted, it confused the definition of the concept of "property 'established by the ECHR and the Constitutional Court with the law (legitimate expectation) to achieve a certain minimum level of satisfaction for creditors, which is to be unsustainable. It is obvious that in the economy, not all claims are satisfied, and therefore the claim that creditors can" legitimately expect "that their claim will be met at a minimum level is absurd as the claim that the legislator is violating the Constitution if it does not include in insolvency law any conceivable procedural rights enforceable by the creditor on an individual basis which could potentially lead to greater satisfaction of a particular creditor, regardless of the social consequences. Such a concept of" legitimate expectations "does not result from the finding of sp. zn. It found that there was an unconstitutional rule which did not provide the creditor with any procedural procedure to initiate a judicial review of another creditor's claim. This was based on the consideration that, by establishing the claim of one creditor, the claims of the other creditors, or their relative amount, were indirectly established in insolvency proceedings, where all creditors were satisfied by one of one, not sufficiently large in substance. However, this is not about the rules governing the identification of claims by individual creditors, but about the extent of the assets, that is, whether assets that are no longer formally the property of the debtor can be included in it, or whether they can be disregarded from the rights of third parties established by the debtor. If the determination of the extent of the property were not available to the legislator's discretion, further rules of insolvency law, such as § 207, 208 and § 285 (4) of Act No. 182 / 2006 Coll., on bankruptcy and methods of resolution (insolvency law), as amended by Act No. 294 / 2013 Coll. In the event that the conclusions of the finding, sp. zn.

20. Another intervener of JUDr. Miloslav Horská found the procedure of general courts legitimate. More generally, it expressed its views on the appellant's argument, which drew attention to the apparent imbalance in its position as a participant in insolvency proceedings. According to the designated interest of each creditor, the maximum extent of satisfaction of its claims and thus the interest in the recovery of any assets lost is the substance. The creditor for a period of time had not been able to comment on another creditor's claim, with the appellant logically appealing to the annulment of the provisions in question in a situation where the Constitutional Court had already changed one of its unfavourable situation by returning the creditor the right of action to the creditor, in particular where the right to bring an action against him under previous legislation in Act No 328 / 1991 Coll., on bankruptcy and settlement, as amended, ("bankruptcy and settlement law '). As regards the argument that the recovery of the right will only delay the proceedings and that creditors will abuse that right, the same was argued in the case of the law of the dispute, but the process of filing the action against the defendant can be ensured by setting such conditions as to prevent abuse of the institution.

21. In its reply, the appellant pointed out that this is a methodological dispute of considerable importance, as if the Constitutional Court applied a rationality test instead of a proportionality test, this represents a material end to its review role in the field. Subsequently, in the context of the case-law of the Constitutional Court, the differences between the two tests were dealt with in detail, that in the event of their conflict, that is to say when, on the one hand, the fundamental right under the title of the second Charter and, on the other hand, the social, economic or cultural right under the title of the fourth Charter is at stake, it is to be addressed in the light of Article 4 (4) of the Charter in the event of a conflict, while at the same time drawing attention to the serious consequences which arise if, instead of that test, a rationality test is wrongly applied, that the Constitutional Court of First Instance has waived its control of respect for human rights.

22. In this context, it opposed the procedure of the Constitutional Court in Case No I-ÚS 3271 / 13, where the rationality test was used, although the appellant's right of ownership was found to be affected, rejecting the view that the "rigour 'of the proportionality test should be dependent on the specific circumstances of the case, since it is not possible for any of the fundamental rights calculated in the title of the second Charter to be granted a lower methodological protection than others, as this is the way against the indivisible core of the Constitution; if this was the practice of the Constitutional Court, that is not the reason for legitimising the procedure in that case. At the same time, it rejected that there was a strict choice of this test in the case-law of the Constitutional Court, in the cases referred to as a standard test, where a less stringent proportionality test is mentioned, in fact it was a rationality test, as well as that insolvency law constitutes a comprehensive regulation in economic matters and that social rights under the Charter are also at stake, as the insolvency doctrine warns that insolvency law should concentrate on something other than the issue of the satisfaction of creditors' property rights, such as economic policy or the social interests of employees. The reason for not using the proportionality test cannot be that it is an intervention brokered, nor is the admittance of the Constitutional Court by the case-law of the ECHR, since, on the one hand, it was a case of interim measures, and, on the other hand, contrary to Article 11 (5) of the Charter, which allows the application of the rationality test only in the field of taxation, Article 1 of the Additional Protocol to the Convention provides for a lower standard of protection, since it also allows the seizure of property in the public interest and use of property in accordance with the general interest.

23. The appellant also rejected the argument of the Czech savings bank, a. s., that it would not be satisfied by the non-insolvency opposition law, since it is not possible to establish parallels between the collective and individual debt recovery regime and, moreover, the absence of an enforceable title is not an obstacle to the filing of the opposition action. It has never claimed that it has the right to any minimum satisfaction of the claim - the right of the defendant is a legal instrument to increase the hope of satisfying the claim and, by having that instrument other than the creditor, the third party decides on its assets, thereby preventing the creditor from handling his property in his power and thus intervening. It is true that, in comparison to the previous adjustment, the facts of the infringement are wider, but the argument of an increase in the time span is controversial, since if the debtor has removed his assets from the scope of the creditors, which usually takes place long before the opening of insolvency proceedings, his actions will in principle be untenable as a result of a reduction in the period of one year, and if the creditor forces the debtor to comply with them in a priority way over others, he is generally a large creditor who also has a decisive influence on the course of insolvency proceedings and who does not allow the insolvency administrator to challenge his operations, so that such action is not, in principle, immaterial. It cannot therefore be argued that this is the result of the legislator's "clearly reasonable reasoning," since it does not serve its intended purpose. According to the appellant, the possible abuse of the defendant's right by the creditor could, for example, be eliminated by the insolvency court's consent to file a claim by the creditor or by lodging a guarantee on any claims of harm, and the fact that the institution in question may be misused is not a reason for its exclusion.

24. In order to argue the Supreme Court with foreign legislation, the appellant stated that this is of no importance under the proportionality test, moreover, the computation carried out by the Supreme Court and by the intervener of the commercial company Česká spořitelna, a. s., whether the creditor is actively authorised to file a counterclaim is of no use because of its narrow scale, because it does not say anything about whether the same objective will not be achieved in any other way, so that such a legitimacy is actually superfluous. In this context, it has put forward questions that need to be answered so that the picture of a foreign legal order, or its functioning in practice, is sufficiently broad and points to the already achieved standard of protection of human rights, presented by previous legislation, which cannot be further reduced. In addition to the claims made by the intervener of Česká spořitelna, a. s., on the "inapplicability 'of the finding sp. zn. Pl. ÚS 14 / 10 (see above), the appellant stated that, according to the review case law of the Supreme Court, the relevant decision could have an impact on both assets and liabilities of property.

25. The Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as the Chamber of Deputies) "in accordance with established practice" was limited to a description of the course of the legislative process which led to the adoption of the law, the provision of which is proposed for annulment. The proposal was discussed as Press No. 1120 (Government proposal) at first reading on 26 October 2005 and was ordered to discuss it with the Constitutional Legal Committee. This committee discussed the proposal on 26 January 2006, a comprehensive amendment was tabled to the press at its meeting (the resolution, together with the comprehensive amendment, was included in Press 1120 / 1). The second reading took place on 27 January 2006 and the amendments were processed as print No 1120 / 2, the third reading took place on 8 February 2006, the proposal was approved as a comprehensive amendment and other amendments. The proposal was approved by both chambers of Parliament in accordance with the constitutional procedure, the law was signed by the relevant constitutional authorities and duly declared. The contested provisions were amended by Act No. 294 / 2013 Coll., amending Act No. 182 / 2006 Coll., on the Decrease and Means of Solutions (Insolvency Act), as amended, and Act No. 312 / 2006 Coll., on Insolvency Managers, as amended, which made partial changes, however, did not concern the substance of the proposal now under consideration.

26. The Senate of the Parliament of the Czech Republic (hereinafter referred to as "the Senate") stated that the draft insolvency law had been referred to it on 28 February 2006 and the Organising Committee appointed it as Senate Press No. 288 (5th term of office) for consideration by the Constitutional Legal Committee (as Guarantee Committee) and the Committee on Economy, Agriculture and Transport. The Constitutional Legal Committee discussed the draft law on 15 March 2006 and adopted Resolution No 93 (Press No 288 / 1) on which it recommended the Senate to approve the draft law in the version referred to by the Chamber of Deputies, the same was done by the Committee on Economy, Agriculture and Transport, which discussed the proposal on 22 March 2006 and adopted Resolution No 298 (Press No 288 / 2). The Senate approved the draft law in question within a constitutional deadline at its 10th meeting by Resolution No 416 of 30 March 2006, as 49 Senators voted in favour of it in vote No 199 of the 54 senators present, and none were against it. None of the provisions proposed to abolish has become a direct subject of discussion, on a general basis with regard to some of the problems raised by the appellant, such as the timeliness of insolvency proceedings and the influence of creditors in the insolvency proceedings, expressed by the Minister of Transport Milan Šimonovský, representing the Minister of Justice of Paul Germans, stating that "[d] another important element of this bill is the emphasis on the uniformity of insolvency proceedings and minimising the timeliness of the process. In view of the specific nature of the insolvency issue, a key change in the approach to the creditor's influence on the ongoing proceedings and the possibility of influencing the decision-making at each stage of the debtor's insolvency resolution cannot be neglected '. The bill was adopted in the Senate within the limits of the Constitution and in a constitutional manner. As regards the related amendment to the Insolvency Act, the Senate states that on 16 August 2013, the Chamber of Deputies of the Senate submitted a draft law amending Act No 182 / 2006 Coll., on the bankruptcy and resolution methods (Insolvency Act), as amended, and Act No 312 / 2006 Coll., on Insolvency Managers, as amended, this proposal was discussed by the Constitutional and Legal Committee (Resolution No 95 of 3 September 2013), which recommended the draft law to be approved by the Chamber of Deputies, which the Senate did at its 13th meeting on 12 September 2013 by Resolution No 327, when in vote No 27 of the 57 Senators present voted against. The draft law was adopted within the limits of the Constitution laid down by competence and in a constitutional manner, it was published in the Collection of Laws under No. 294 / 2013 Coll. and became effective on 1 January 2014. When discussing this amendment, there were no views relating to the provisions in question. It is noted from the explanatory memorandum (House Press No. 929) that" [d] further addition of Paragraph 235 (2) eliminates the problems of practice in resolving the question whether even legal acts which are not effective in law as a consequence of actions carried out by the debtor after the opening of insolvency proceedings are to be dealt with by means of a defendant's action or otherwise, in favour of the dispute, by the defendant's action (the exception from this rule is compared to the explanatory report on the amendment of Paragraph 246 (2) of the insolvency law). In addition to Article 239 (1), it explains that the insolvency practitioner submits an action against the opposition without considering that he is not a person with a right of disposal (the debtor with a right of disposal cannot be expected to challenge his own legal acts in this way, nor does the general regulation of contradictory and inefficient legal acts render him actively legitimate for the lodging of such actions). "

27. In its observations of 12 January 2016, No 21576 / 2015-OHR stated that it would not exercise its right of entry into the proceedings under Section 69 (2) of the Constitutional Court Act.

28. The Ombudsman also stated in her observations of 22 December 2015 sp. zn. 1 / 2015 / SZD / MP that she did not exercise her right to enter the proceedings under Paragraph 69 (3) of the Constitutional Court Act.

29. The Judge-Rapporteur also requested the opinion of the Ministry of Justice (hereinafter referred to as "the Ministry") under Paragraph 48 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court. First, the Ministry expressed its views on the meaning and purpose of the opposition action in insolvency proceedings, with the legislature's task being to strike a balance between the protection of the principles of collective satisfaction of creditors and the principle of pacta sunt servanda, or legal certainty, where too vague an adjustment to the contradictory effect increases transaction costs (due to an increased risk of inconsistency with the closed transaction). The rules of inefficiency are formulated in Czech law with a view to finding such a balance, both from a substantive and procedural point of view, in this point by setting a one-year deadline and by limiting the circle of actively legitimate persons, which is the insolvency administrator. It shall decide whether or not to apply the ineffectiveness of the proceedings, except that the creditor committee, to which there is evidence of a certain law of coercive action against the insolvency administrator, which may refuse to bring an action against the defendant only if, in substance, there is insufficient funds and the creditors fail to lodge an advance.

30. The legislature, according to the Ministry, considered that extending it to other persons (especially creditors) would not be useful because of the impending duplication. The application practice of the bankruptcy and settlement law, according to which creditors were also actively legitimised, confirmed that the procedure had been overlapped in the past, causing significant complications and inefficient delays in the proceedings. For this reason, the group of actively authorised persons was limited to an insolvency trustee whose duty is to ensure the collective rights of creditors and, inter alia, to make every effort to satisfy creditors as much as possible, which has an obligation irrespective of the interests of the part of creditors by whose will it is set. The current concept is therefore based on the exclusive authorisation of the insolvency administrator with a degree of inclination to strengthen the position of the creditor committee.

31. As a result, the Ministry pointed out that there are more legislative solutions with both positive and negative ones, and that, for example, the United Nations Commission on International Trade Law (UNCITRAL) has spoken on this issue in its Legislative Guide on Insolvency Law, Part Two (2004), p. 135- 152. According to him, a large number of legal orders give active legitimacy to the insolvency administrator, the legitimate reason being the status of insolvency administrator in insolvency proceedings, with regard to its availability with property in substance. The legal guide also deals specifically with the legal rules in which the insolvency administrator is the only actively legitimate body for bringing an action against the opposition, and in order to decide not to bring an action against the defendant (based on cases of intentional negligence, negligence or malpractice), the costs of the proceedings may also play a role due to the lack of assets, but if the creditors or the creditors' committee conclude that the filing of the action against the defendant can benefit as a result, certain legal orders allow the insolvency administrator to require the filing of the action or directly grant them an active legitimacy, generally on the condition of its own financing. Some legal rules make the application subject to the prior agreement of the creditors or the majority of the creditors (if it is submitted by the insolvency administrator) or to the agreement of the insolvency administrator (if it is submitted by the creditor). In the event of an active legitimacy of creditors, the legislative guide considers it appropriate for the insolvency administrator to be informed of the creditors' intentions and to prevent its submission from having a negative impact on the debtor's assets. Where the insolvency practitioner requests the consent of the insolvency practitioner, certain legal rules provide for the possibility, in the event of failure to grant it, to apply to the insolvency court for the authorisation of the defendant's action, while the insolvency practitioner has the right to comment on the reasons why he did not give his consent. The result may be the granting of consent or a direct meritorious discussion of the matter. The legislative guide also mentions solutions that lay down additional conditions for the active legitimacy of creditors (or creditors' committee). Certain legal rules provide for an obligation on creditors to pay the costs of proceedings or penalties to prevent potential abuse of the proceedings. In cases where the legal order grants the creditors active legitimacy, the legislative guide points out the problems of the solution, in addition to the said conflict with the intentions and opposition actions of the insolvency administrator and the problem of a possible information deficit, it concerns the issue of the costs of proceedings for the opposition and the abuse of the institution.

32. The Ministry states that, on the question that is offered in this context, i.e. to what extent the legislation is in line with current international standards, the number of persons actively authorised corresponds in principle to the prevailing foreign trend. The German and Austrian rules allow only the insolvency administrator to file an action in the same way, the United States of America has similar arrangements, whereas the Swiss regulation allows the insolvency administrator and any creditor to oppose the actions, the same applies to the Slovak legislation, but the creditor can only exercise that right if its complaint has not been upheld by the insolvency administrator within a reasonable period of time. According to the Ministry, there are many alternatives, each of which has its strengths and weaknesses, and the best option cannot be clearly chosen. A solution whereby the insolvency administrator and creditors are actively legitimate persons is in line with the requirements for the protection of the subjective rights of the participants, eliminates the unjustified inactivity of the insolvency administrator; on the contrary, the excessive use of the institute of opposition proceedings may lead to significant interference with the debtor's assets and effects for other creditors who accept the principle of collective recovery of their claims and prefer a more economical and rapid procedure in insolvency proceedings. A variant where creditors are entitled to file a challenge with the consent of the insolvency administrator or court prefers a coordinated procedure between creditors and the insolvency administrator to limit their possible isolated conduct. This option allows the lender to assert the will of the lender if a consensus fails to be reached, dealing with a possible lack of legitimacy in the enforcement of individual interests in insolvency proceedings, or even intentional abuse by minority creditors, a partial problem remains a time and materially demanding procedure that envisages possible intervention by the insolvency court. The advantage of the option where the actively legitimate person is only the insolvency administrator [in Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended, is modified by the law enforcement powers of the creditor committee] is the rapid and economical conduct of the dispute, where the insolvency administrator, as an impartial independent person, acts objectively and conscientiously with professional care and / or economic care in proceedings, i.e. does not bring an action against the court where this would result only in the creation of unnecessarily incurred costs which would adversely affect property. Both the creditor and the insolvency administrator combine the same interest not only from the point of view of the normative but also from the economic point of view, i.e. to acquire as much as possible assets, since its remuneration is paid from the proceeds obtained in the insolvency proceedings. In view of this, it seems expedient to avoid duplicating and multiplicated opposition actions arising from the information deficit, as they result in a slowdown in insolvency proceedings and additional costs, in addition to multiple actions concerning the same legal behaviour of the debtor, there is a risk of resisting various actions but in extensive quantities, which would, even in the case of obligatory merger, cause significant burdens to the insolvency court and would lead to a significant extension of insolvency proceedings. According to the Ministry, the breach of the obligations of the insolvency administrator initiated by the majority creditor cannot be seen as a lack of legislation but as an individual failure of the entities of a particular insolvency proceedings to be dealt with under insolvency law, possibly criminal law. The justification of the proposal is based on the fact that certain entities intentionally violate their obligations or abuse their position. If the insolvency administrator properly performs his or her duties or the creditors' committee protects the common interest of creditors, the granting of the right of appeal to all creditors in respect of insolvency proceedings is manifestly redundant and potentially undesirable. The purpose of the contested provisions is therefore to ensure the speed and economy of the proceedings by granting active substantive legitimacy only to those for whom it is considered appropriate for effective management. Their aim is to prevent delays and to ensure the prompt and effective protection of the rights of all participants, thereby ensuring one of the components of the right to judicial protection (Article 38 (2) of the Charter).

33. On the grounds of the constitutional review, the Ministry stated that the purpose of this procedure is not to assess whether the contested provisions are the best possible legislative solution, but a major part of the proposal is the controversy having a political character without constitutional interference. The insolvency proceedings are a specific process designed to balance different interests when a private operator is in a crisis situation, and in a number of respects there may be different modalities of the appropriate arrangements for which both the advantages and the disadvantages they bring to different persons can be pointed out. If it is about limiting certain procedural rights to the person of the insolvency practitioner, the adjustment is entirely normal and consistent with international recommendations. In addition, insolvency proceedings are governed by Council Regulation (EC) No 1346 / 2000 on insolvency proceedings, the Court of Justice of the European Union, in Case C-339 / 07, having held that the insolvency court is responsible for the proceedings of creditors relating to insolvency proceedings with a European element, even if the defendant is located in another State; There could therefore be a situation where the Czech body, as creditor of insolvency proceedings before the German court, would want to bring an action against another Czech body, which is not possible under German law. If the Constitutional Court came to a conclusion on the unconstitutional nature of the contested provisions, it would not be possible to defend the application of the German legal order from a constitutional point of view, thereby creating a clear conflict between EU law and the Czech constitutional order. The Ministry also stated, referring to the ECHR judgment of 5.4.2005 in Katsiuk v Ukraine (No 58928 / 00, § 39) and the Constitutional Court finding of 25.6.2002 sp. zn. The insolvency administrator is not a public authority but a private-law procedural body, sui generis, which does not represent the interests of debtors or creditors and to whom the private-law liability for the performance of his duties [Paragraph 37 of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (Insolvency Act), as amended by Act No. 296 / 2007 Coll.]. In the context of the review of the contested provisions, it should be taken into account that, on the basis of these provisions, there is no limitation of the procedural rights of creditors for the benefit of other creditors or of the rights of creditors for the benefit of the public authority.

34. The importance of the Constitutional Court's finding, sp. zn. Pl. ÚS 14 / 10 of 1. 7. 2010 (N 133 / 58 SbNU 67; 241 / 2010 Coll.), was the question of who and with what claims the insolvency proceedings could at all be registered in the insolvency proceedings, which is a central aspect of the whole process, whereas in the case at hand it was a departure from the insolvency proceedings, which could lead to paralysis of insolvency proceedings, which is based on the principles of concentration and speed by which the legislature aims to ensure the effective satisfaction of all creditors of the debtor, while it was certainly not the intention of the Constitutional Court to challenge these principles (paragraph 41), but to eliminate from Act No 182 / 2006 Coll. It is therefore not possible to apply the conclusions to the case in question mechanically, since they were adopted to address the specific issue of the law of the proceedings, when strict insistence on the absolute right of all individual creditors to seek individual proposals could lead to the collapse of the procedural structure of insolvency proceedings.

35. The possible non-compliance of the contested provisions with the Convention was also not found by the Ministry. The right of access to the Court of Justice under the Ministry is contained only implicitly in the Convention and the Convention does not contain a exhaustive list of objectives for which the right may be restricted. The ECHR points out that the States have considerable discretion in limiting the right of access to the court (Bulena v Czech Republic, § 29). The Court of First Instance tests in particular whether they pursue a legitimate objective and whether there is a reasonable balance between the resources used and the objective pursued (Ashingdane v United Kingdom No 8225 / 78, § 57). The judgment of the Grand Chamber in Kotov v Russia, No 5422 / 00, which sets out in general the positive obligations of the State in insolvency proceedings; The ECHR dealt with a situation where the legal order did not allow the complainant to claim his rights in the event of an unfair distribution of the proceeds obtained from the assets of the debtor by the liquidator (acting in a similar role as the insolvency administrator) among the creditors and concluded that it was sufficient, in view of the fulfilment of the State's positive obligations, to claim his rights against that liquidator, if he acted in breach of the law (§ 119 and 120). Paragraph 37 (1) of the Insolvency Act is therefore relevant, and if the appellant has stated that the issue of liability is a "different subject ', this caselaw shows the contrary. If the creditor has evidence showing that the opposition is likely to be successful, and it will pass that evidence on to the insolvency administrator who nevertheless refuses to bring the action, he may be successful in the damages proceedings, which motivates the insolvency administrator to act impartially.

36. In the Ministry's view, there was no lack of compliance with the legislation or constitutional order, as it will stand in the proportionality test. The contested provisions form part of the entire insolvency procedure system, which aims to fulfil the purpose of insolvency proceedings - the maximum satisfaction of creditors. In view of the crisis situation of the debtor, it is logical that individual insolvency creditors will try to ensure the greatest possible satisfaction of their claims, and their interests may be contrary to the interests of all creditors (as a whole), with Act No 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended, "curtailing" individual procedural rights in order to satisfy creditors as a group fairly in real time. The objective pursued is to protect the assets of all insolvency creditors or to protect their right to a fair trial, which includes the right to achieve justice in real time. If the appellant states that the speed of the proceedings is not, in itself, a legitimate objective pursued, it is completely disregarded that this speed is not of its own use. In insolvency proceedings with many participants and other interested parties, ensuring its speed is absolutely necessary to protect the fundamental rights of individuals, with the contested provisions clearly leading to this objective, since the concentration of the right to challenge in the hands of the insolvency practitioner is excluded from the situation where the proceedings would be extended by the management of dozens of overlapping incident disputes. If there is a need test, insolvency proceedings have also worked in the past in the absence of restrictions on active legitimacy, so it could appear that this is not a milder means of achieving the objective pursued. However, as is apparent from the explanatory memorandum to the draft insolvency law (House Press No. 1120, p. 208), the legislator also dealt with the issue of previous legislation (Hásová, J. et al. Comment. 2nd edition, Prague: C. H. Beck, 2014, p. 797). With a high number of insolvency creditors in many proceedings, these problems cannot be resolved only by a better organisation of the judiciary, but their individual opportunities for access to the court must be limited to the extent necessary. It was therefore a response to a lack of previous legislation that did not sufficiently safeguard the protection of insolvency creditors. The legislature, led by an attempt to intervene as little as possible in the right to judicial protection, has imposed the right to bring an action against an insolvency practitioner who, while not representing the interests of individual insolvency creditors, aims to safeguard their rights and interests.

37. In the case of a proportionality test in the narrow sense, the Ministry has established that it is a conflict of identical rights (for judicial protection or procedural guarantees concerning the right to own property) of insolvency creditors as a group and individual creditors, and that, in the light of the constitutional law, it is not possible to identify a single correct model of balancing their interests, namely the so-called political question [in the sense of the finding of 20 November 2007 sp. zn. Pl. ÚS 50 / 06 (N 196 / 47 SbNU 557; 18 / 2008 Sb.), paragraph 29, or paragraph 3 of the different Opinion of Judge Jan Filip. 25. 3. 2014 sp. The legislator, within the limits of the constitutional bail-in provided for in Article 4 (4) of the Charter, has, to a certain extent, preferred the safeguarding of the rights of all insolvency creditors over their individual interests. It cannot be ruled out that the insolvency administrator will not fulfil its obligations; in this case, any insolvency creditor may claim damages under § 37 of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended by Act No. 296 / 2007 Coll., which constitutes a means of judicial protection which does not delay and complicate insolvency proceedings. Such an arrangement is proportionate as it contains safeguards to protect the fundamental rights of all insolvency creditors as a whole and as individuals.

38. In its reply concerning only the opinion of the Ministry, the appellant pointed out that the Ministry was "derailing" the debate from its constitutional plane. It accused him of using the "fashion" approach of Law & Economics, with the fact that it is only a source of support for law-making or law-finding, since it can deny any individual fundamental right in its pure form, and that it did not include fundamental rights and freedoms in its "equation," thereby achieving a false result. Unlimited and unconditional parallel active legitimacy could lead to complications and delays, but this is not a legitimate reason for this pluralism to be abandoned, but rather for a solution to eliminate its negative manifestations. The Ministry's argument that the Insolvency Trustee has a professional care obligation cannot be valid because, in the context of insolvency, the Trustee is repeatedly present, as well as large institutional creditors (typically banks), and by allowing the legislator, irrespective of any breach of the Professional Care Obligation, to invoke the Insolvency Trustee and to elect the Trustee "own 'in their place, to become subordinate to the large insolvency creditors, as they depend on whether the Trustee, who does not behave as such, loses its" contract' and will not be elected to other insolvency. For this reason, the cases where the administrator would claim a claim against a large institutional creditor will be close to zero, although it is those creditors who have a great influence on the debtor, which they can use to force the debtor to carry out contradictory acts, the value of which is the highest in absolute terms and those claims are almost always fully met.

39. The appellant pointed out that the document is abstract from the constitutional dimension of insolvency law in individual states, where fundamental rights and freedoms can be understood differently, and that the Ministry has dismissed its incorrect interpretation with reference to the final recommendation, which, in the event that the administrator does not use its primary active legitimacy, is constructing a "safety net" which should prevent the defendant from "forfeiting" the claim. The Czech legislation does not contain such a thing, since the possibility of a binding order from the creditor committee is not an instrument accessible to small creditors, moreover, the authorisation of the creditor committee has no effect on the way in which the opposition proceedings are conducted. The document is opposed to the option of an unconditional active legitimacy of an individual creditor, but it supports the consent of other insolvency authorities, as it is possible to strike a balance between the legitimate interest of individual creditors and the risk of misuse of their authorisation, the document also refers to the possibility of misuse of active legitimacy by the insolvency administrator. According to the appellant, any exercise of the right may be misused, but the solution is not a "primitive 'measure in the form of withdrawal of the right in question. The" Comparation' of foreign legislation carried out by the Ministry does not have any telling value as it cannot be limited to familiarising itself with the content of a few provisions, but a broader context must be seen, for example under which conditions a creditor can conduct out-of-court disputes, such as the status of a creditor in insolvency proceedings, such as guidelines, requests or incentives, whether and how they must be responded, how the representative creditor's creditor's system is set up, and what the creditor's powers and obligations are, how the insolvency administrators are set up in a particular procedure and how the law in practice works. The quality of the "computation" is also mentioned in Germany that individual insolvency creditors can also bring the opposition action. This is not about any reliable information, nor is it important, because they have no place in the constitutional test.

40. The draftsman agrees that the second variant is a risk, but if this were to be with other conditions, he does not see the reason why it could be obstructed on one pole, since Act No 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended, contains a number of professional procedural moments, for example, as enshrined in § 298 or § 230 (4) (which was not included in the draft law), where, according to the Ministry's optics, there is no doubt that there is a time delay and economic waste, in the case of irrevocability, there is also a considerable "time cushion 'for bringing an action in the form of one year into which it would also be possible in the decision-making process, where, in case of non-compliance with the application. Therefore, this variant does not entail any particular complication, so that, in a situation where the first variant involves interference with the basic law, this solution should be chosen, and the reference made by the Ministry to the hypothetically ineffectual costs incurred in view of the intervention cannot be sustained.

41. According to the appellant, neither the construction of the Ministry can stand that creditors have a common interest in the fullest possible satisfaction of their claims and therefore also in the filing of the opposition action, since this does not correspond to insolvency principles or practice - the secured creditors generally have no interest in bringing opposition actions, as well as in the creditors of claims for substance and those who participated in contradictory legal acts. From an economic point of view, even considering that the administrator is motivated by the possibility of obtaining a higher remuneration to bring an action against the defendant.

42. The appellant also rejected the Ministry's argument that it was not a lack of regulation if the administrator intentionally infringes his obligations on an individual basis, because then his legal responsibility arises. The insolvency order is set so that the vast majority of cases will never be affected, usually where it is essential to satisfy other creditors. The question of whether the legislation is operational is assessed on the basis of whether it succeeds in achieving the purpose for which it has been introduced, and it is irrelevant whether a breach of legal obligation is necessary because of the failure to function; In this context, the appellant pointed out the finding of the Constitutional Court of 17 April 2013 sp. zn. There is no real penalty to the insolvency administrator because the person against whom the claim should be exercised is the strongest creditor in insolvency proceedings, so that he controls the creditor committee which will not engage in any activity against him, on the contrary he may refuse to approve the financing of the dispute, the insolvency court will not normally find any infringement in the absence of an action, as it should be he who should discuss and decide on the case for the chronic congestion of the insolvency courts. In the case of criminal law, it is a highly sophisticated and specialised issue in which the entire litigation has to be simulated as if the action had been brought, so that criminal proceedings usually end with its termination. The Ministry's argument that, when there is no breach of obligations, the system operates and the introduction of active legitimacy for individual creditors is superfluous and potentially harmful, the appellant refused to accept that a certain level of collectivisation is necessary and not everyone intervening with it in the fundamental right of an individual creditor is unconstitutional, but it must be assessed whether that level is acceptable. And it is already exceedingly in this matter, and it does not work anyway. The proposal does not depend on how the insolvency administrator handles its legitimacy and whether the adjustment is still operational, its centre of gravity lies in the complete withdrawal of active legitimacy, although there is a more constitutional solution. Nor does the argument that the legislation in question is designed to ensure the speed and economy of the proceedings and thus to ensure fair trial for all participants, as the speed of the proceedings is not a quality that takes precedence over the right to judicial protection.

43. The appellant also rejected the argument that the purpose of the procedure is not to assess whether the contested provisions constitute the best solution and that the proposal is essentially political controversy. This could be the case if the contested provisions did not interfere with fundamental rights. The purpose of the procedure is certainly not to seek the best solution, but to assess whether the solution will stand in the constitutional test and in the intervention minimum test. The Ministry of Compliance is constructing a conflict with EU law, which only regulates the issue of jurisdiction, not active legitimacy. As the relationship between the two national legal systems is governed by the principle of territorial integrity, there is no conflict in where insolvency proceedings should take place. According to the appellant, the fact that the insolvency administrator is not a public authority and therefore no collectivization takes place neither for the benefit of other creditors nor for the benefit of the public, is irrelevant and, if the question of the nature of this function was addressed by the ESLP, that is to say, for reasons which are the sole reasons of its management (i.e. whether its conduct is imputable to the Member State), which is irrelevant to that procedure.

44. The Ministry also stated in an attempt to distinguish itself from the decision of the Constitutional Court on the issue of the law of action that there is a risk of swelling in the incident disputes and that this is a deliberate step by the legislator. According to the appellant, however, it overlooked the alternative to a solution with which such consequences were not linked. The argument of the State in support of the reform of the law of the day was essentially the same as it is now, after its annulment an adjustment has been adopted which has been in operation so far and without any major objections. For the reasons set out above, it is not possible to accept the argument by comparing the rules or the ECHR case law, since the construction of (abstract) control (standards) by the Constitutional Court is different (and also deeper). The Ministry's reference to the case of Kotov cannot be sustained because it is not about whether a person has suffered damage and whether there is a chance of replacing it within the framework of national law, but whether collectivization could not be carried out in a more efficient way in terms of the rights affected, while the creation of a harmful claim does not matter. The fact that the liability claim of the administrator is created from the point of view of abstract control of constitutionality is not a sufficient argument to address the interference in fundamental rights by disproportionate collectivisation as resulting from the finding (paragraphs 48 to 55) of 1.7.2010 sp. zl. Pl. ÚS 14 / 10 (N 133 / 58 SbNU 67; 241 / 2010 Sb.), in addition, an individual creditor is not entitled to recover all the damage suffered by the "property loss', which could be very appropriate for this situation, but only a proportional part of the claim which, in the event of a successful recovery, would have to be taken into account of the" rational creditors'.

45. If the Ministry has concluded that the contested provisions in the constitutional test will stand, according to the appellant, the acceleration of proceedings may indeed be a legitimate objective, but they are not in a position to achieve that objective, since the legislature has failed to conclude other routes which the creditor can make use of, namely an action for annulment of the same conduct which has not been "collectized ', no time limit has been applied to it, the creditor limits only the need to demonstrate the legal interest, which is, according to the case law of the court, a real insurmountable, but the creditor can repeatedly file such an action in the context of obstruction. In addition, relative ineffectiveness (ineffectiveness) may be applied, both in the context of a dispute over the authenticity of the creditor's claim in those cases where the debtor failed to fulfil his obligation to comply with the irrevocable act before the insolvency proceedings are initiated. The creditor may declare that the legal proceedings in question are invalid for years and may, where appropriate, argue that they are ineffective, which, according to the case-law, is of a valid nature, then wait for at least one year before the expiry of the period for the filing of the opposition proceedings by the insolvency administrator, and if the action is not brought by the insolvency administrator, the action of the creditor will be dismissed, which is likely to take another year. Nor has the Ministry submitted any empirical data to substantiate its allegations of speeding up proceedings, so these are theoretical considerations.

46. As regards the argument of the Ministry that the insolvency administrator has an obligation to act in the interests of individual creditors, and since the only correct solution cannot be found, it is a political question, the appellant stated that the criterion of necessity (whether the same objective can be reached in a way that interferes with fundamental rights less) of the contested provisions is a prussian stone which shows the unsustainability of the contested provisions, while the assessment of this question has been materially avoided by the Ministry. This is an incorrect procedure because it could only do so if the rights under the title of the fourth Charter were at stake.

47. If the Ministry carried out a proportionality test in the narrower sense, this step, according to the appellant, is actually redundant, moreover, the Ministry included only one element in the testing - the creation of a liability claim, not yet sufficiently. As regards the injury, the appellant pointed out the intervention in the fundamental rights of individual creditors when the defendant's claim, consisting of the provision of sui generis of their claims, ceased to be available to them and the fact that the opposition action was crippled, as the insolvency administrator is motivated to claim the largest and most creditworthy claims, and finally, with the insolvency administrator's current liability set, individual creditors cannot satisfy their claims. On the positive side there is only the acceleration of insolvency proceedings, and this quality has not been empirically documented, with strong reasons to believe that it cannot bring any acceleration. Even in this test the contested legislation will not stand.

48. The appellant supplemented its argument by a comparison of Czech and Austrian insolvency law by the submission of 2 January 2017. In particular, in Austrian law, the secured creditor stands outside the insolvency proceedings (he does not have voting rights and has a certain degree of sovereignty regarding the subject of the collateral), but the Czech law has created a potential dominant position because he has the right to vote for claims which are covered by the value of the pledge and allows the insolvency administrator to give binding instructions to the parties to cash the pledge. In the case of unsecured creditors in Austria, there is active support for the so-called "creditors' associations, which professionally represent" small 'creditors, the Czech legislation does not pay attention to them, and their position is weak as creditors are elected to the creditor committee. The Austrian system shows no weaknesses in its operation in practice. In the Czech insolvency proceedings, a creditor with a large secured claim may dominate, with an open path to obtain benefits at the expense of unsecured creditors, the insolvency court generally does not exercise any supervision, the insolvency administrator does not oppose the secured creditor and the unsecured small creditors are usually "apathetic." In Austria, the insolvency administrator is under the active control of the court, he is irrevocable to the creditor and, for the reasons set out above, he does not have to worry about secured or large unsecured creditors, whereas he usually does not file an action against us against the dominant creditor of the insolvency administrator or leads the dispute to fail. In this way, small creditors' claims are systematically reduced, thereby interfering with their ownership law and violating the equality of creditors.

49. The Constitutional Court found, taking into account the comprehensive and thoroughly argued observations (see Sub 9 to 48), that further clarification of the case could not be expected from oral proceedings and therefore abandoned it pursuant to § 44 of the First Law on the Constitutional Court.

50. At the time of the application, the contested provisions were as follows:

Article 235 (2)

"(2) The ineffectiveness of the debtor's legal acts shall be based on a decision by the insolvency court to bring an action against the insolvency administrator, which has been contradicted by the debtor's legal acts (hereinafter referred to as the opposition action ').'

Subsequently, this provision was amended by point 133 of Act No. 294 / 2013 Coll., as follows:

"In Article 235 (2), the words, including those which the law designates as ineffective and which the debtor has made after the effects of the opening of insolvency proceedings have occurred, 'and the words, unless otherwise specified, shall be added at the end of the text of paragraph 2.';

Paragraph 235 (2) of Act No 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended, now reads:

"(2) The ineffectiveness of the debtor's legal acts, including those which this law refers to as ineffective and which the debtor has made after the effects of the opening of insolvency proceedings have occurred, shall be based on a decision by the insolvency court to bring an action against the insolvency practitioner, which has been contrary to the debtor's legal acts (hereinafter referred to as the defendant's actions), unless otherwise specified. '

Article 239 (1)

"(1) In insolvency proceedings, only the insolvency administrator may oppose the legal acts of the debtor, namely the opposition brought against persons who are obliged to pay the debtor from inefficient legal acts to property; It's an incident. If, at the time of the opening of insolvency proceedings, the same proceedings are carried out on the basis of an action by another person, the proceedings may not be continued until the end of insolvency proceedings. '

Subsequently, this provision was amended by point 134 of Act No. 294 / 2013 Coll., as follows:

"In the first sentence of Paragraph 239 (1), the words' shall be inserted after the words, only the insolvency administrator, 'even if they are not a person with available privileges,' and part of the sentence after the semicolon shall be deleted, including the semicolon. ';

Paragraph 239 (1) of the Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended by Act No. 294 / 2013 Coll., now reads:

"(1) In insolvency proceedings, only an insolvency administrator may oppose the legal acts of the debtor, even if it is not a person with available rights, and that is a defendant brought against persons under the obligation to issue the debtor's transactions from inefficient legal acts to property. If, at the time of the opening of insolvency proceedings, the same proceedings are carried out on the basis of an action by another person, the proceedings may not be continued until the end of insolvency proceedings. '

51. The Constitutional Court first examined whether the procedural conditions for hearing the application were fulfilled. The application was submitted by an actively legitimate body [Paragraph 64 (1) (e) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 83 / 2004 Coll.], and the conditions of Article 74 of Law No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., since the application of the contested provisions gave rise to a fact which is the subject of a constitutional complaint, the Constitutional Court is competent [Article 87 (1) (a) of the Constitution] and is not inadmissible (Article 66 of Law No. 182 / 1993 Coll., on the Constitutional Court, as amended by Law No. 48 / 2002 Coll.).

52. Although the Constitutional Court has already dealt with the application for annulment of Sections 235 (2) and 239 (1) of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended by Act No. 296 / 2007 Coll., in the plenary case sp. zn. However, when assessing the conditions of the procedure, the Constitutional Court concluded that, while the case was subject to the active legitimacy of the Regional Court in Brno (see Section 64 (3) of the Law on the Constitutional Court), the provisions in question were to be applied in the case (see Article 95 (2) of the Constitution), the application was made through a judge who was not entitled to act as Regional Court in Brno because the case was assigned to him in contravention of the applicable schedule of the work of that Court [as it resulted from another action for confusion brought before the Supreme Court in Olomouc by order of 6 April 2011 No 12 VSOL 2 / 2011-303 (KSBR 39 INS 398 / 2010)]. Therefore, this proposal, outside oral proceedings, was rejected as being made by someone manifestly unauthorized [Paragraph 43 (2) (b) in conjunction with Paragraph 43 (1) (c) of the Constitutional Court Act]. For the sake of completeness, it is recalled that the application concerned the case of the insolvency of the Odenní podnik, a. s., in which the creditor lodged the commercial company PYRGHOS LEFKOS, a. s., on 7 September 2010 the opposition proceedings brought under sp. zn. 39 ICm 1154 / 2010, in which the court had to apply both the contested provisions of Act No 182 / 2006 Coll., on the insolvency and insolvency proceedings, as amended by Act No 296 / 2007 Coll.

53. The Constitutional Court was thus able to proceed to assess whether the contested provision was in accordance with the constitutional order, i.e. (a) whether the contested legislation was adopted and issued within the limits of the constitutional competence laid down and the constitutional procedure for such adoption or extradition was respected, and (b) whether the contested regulation was in accordance with the constitutional order in terms of content (§ 68 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Law No 48 / 2002 Coll.).

54. In assessing whether the contested provisions were adopted within the limits of the Constitution and the constitutionally prescribed manner, the Constitutional Court came out of the transcripts of the relevant stenoprotocols from meetings (available at www.pspp.cz and www.senat.cz) and from the observations of the two chambers of Parliament of the Czech Republic.

55. The procedure for the adoption of the insolvency law itself (see also sub 25 and 26) has been reviewed by the Constitutional Court and no procedural defects have been identified [see the finding of 1.7.2010 sp. zn.

56. Paragraph 235 (2) of the Insolvency Act was first amended by Act No. 296 / 2007 Coll., when the word "insolvent" was inserted before the word "court." From the point of view of the material under consideration, it was merely a clarification. The Constitutional Court did not find that this amendment was adopted and issued not in a constitutional manner; The plaintiff doesn't even say so.

57. The contested provisions were amended by Act No. 294 / 2013 Coll., but the question at issue, that is, the rule that the active substantive legitimacy to file the opposition action only testifies to the insolvency administrator, has not changed. Therefore, a possible annulment of the decision of the Constitutional Court would affect in the same way the various time versions of the contested provisions, that is to say the relevant wording, which was applied in the resolutions of the general courts of the contested constitutional complaints (see paragraph 1), and the appellant's position would therefore not be changed in the proceedings. For the reasons set out below and in view of the outcome of the procedure, this issue had no further need to be addressed.

58. The Government submitted this bill to the Chamber of Deputies on 5 March 2013. At the 52nd session of the Chamber of Deputies, held on 19 March 2013, the Government's bill, discussed as House Press No. 929 at first reading, was ordered to discuss the constitutional legal committee. At its 58th meeting on 10 April 2013, the Constitutional Legal Committee decided to suspend the hearing and adopted amendments to it at the 61st meeting on 29 May 2013, but not to the provisions in question. As part of the second reading of the bill, no amendment was tabled at the 54th session of the Chamber of Deputies on 12 June 2013. The third reading took place at the 57th session of the Chamber of Deputies on 8 August 2013, when the bill was approved in vote 53 (resolution 1745); 130 Members present voted in favour of the Bill 94 and against 0. The Chamber of Deputies passed the bill on 16 August 2013 to the Senate. The Senate discussed the bill as Senate Press No. 161 (9th term). The bill was first debated in the Constitutional Legal Committee on 3 September 2013, which approved it in Resolution 95 and subsequently discussed it and approved it by the Senate at its 13th meeting of 12 September 2013 by Resolution 327, when out of the 57 senators present voted in favour of 47, against 0 votes. The approved law was delivered to the President of the Republic on 17 September 2013, which he signed on the same day and the Prime Minister did so on 20 September 2013. However, because of the dissolution of the Chamber of Deputies, it was not signed by the President of the Chamber of Deputies. It was then announced in the Collection of Laws on 27. 9. 2013 in the amount of 112 under number 294 / 2013 Coll. In the light of the above, the Constitutional Court notes that Act No 294 / 2013 Coll., which amended the contested provisions of Act No 182 / 2006 Coll., on the bankruptcy and the methods of its resolution (insolvency law), as amended, was adopted and issued within the limits of the constitutional competence and constitutional requirements.

59. The appellant contends that the provisions of Act No. 182 / 2006 Coll., concerning the bankruptcy and the methods of its resolution (insolvency law), as amended, which only the insolvency administrator has been authorised to file a counterclaim, infringe its right of ownership and the right to a fair trial (more precisely to judicial protection in the form of access to the court).

60. The Constitutional Court considers that the proposal must be assessed in the light of the standards contained in Articles 11 (1) and 36 (1) of the Charter and, where appropriate, Article 6 of the Convention and Article 1 of the Additional Protocol to the Convention without having to consider the question raised (see sub 33) and the arguments of the intervener (sub 43) in view of the direct effect of Council Regulation (EC) No 1346 / 2000 on insolvency proceedings. The appellant stated in its proposal that the contested legislation constituted a breach of its right of ownership, on the basis that the creditor's claim was protected by this title in insolvency. In this regard, however, the appellant cannot be fully attested. It is necessary to distinguish between the debtor's bankruptcy and the legal solution to the bankruptcy. The bankruptcy is primarily a factual situation [as defined in Section 3 of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended by Act No. 64 / 2017 Coll.], where the debtor's liabilities exceed the assets in which the debtor is objectively unable to meet all of his obligations towards creditors. If, for this reason, the debtor cannot satisfy the claims of all creditors in full, which is a normal economic phenomenon, this can be considered as a fact establishing "intervention 'in the ownership rights of those creditors, whether enforceable or not enforceable against the debtor (if these are legal). However, this intervention, where the right of each creditor is limited by the rights of other creditors, does not primarily consist in the conduct or inactivity of the State (however, the State also has positive liabilities in the protection of property law, including the adjustment of insolvency proceedings - see van Apeldoorn, J. C. Human Rights in Insolvency Proceedings. Amsterdam: Kluwer Legal Publishers, 2012, p. 302 n.), and can therefore not be held liable. However, its obligation is to resolve the situation in a constitutional manner, that is to ensure that, as soon as possible, the minimum cost of the debtor's remaining assets are distributed fairly to its creditors, or that it is possible to adopt another solution which is considered superior to their individual interests in the so-called common interest [see Section 2 (j) of the Insolvency Act] and which, where appropriate, also takes into account the public interest.

61. It follows that even in the case of a creditor's claim, which can already be regarded as a protected asset under Article 11 (1) of the Charter or Article 1 of the Additional Protocol to the Convention, in the event of an insolvency found, the situation is changed. The impact of Article 11 (1) of the Charter on the case under consideration is only a brokered one, or a breach thereof depends on the infringement of Article 36 (1) of the Charter. First, the creditor must apply his claim in the legal manner (except for exceptions) in the present proceedings, i.e. to apply [§ 165 of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), as amended by Act No. 294 / 2013 Coll.], which must be established [§ 201 of Act No. 182 / 2006 Coll., on the bankruptcy and methods of its resolution (insolvency law), or, if otherwise, in the case of an emergency procedure, must be determined [§ 159 (1) (a) of the insolvency law]. It is only then possible to refer to a claim such as "property ', but only to the part in which such claim does not compete with the rights of other persons in the context of the proportional satisfaction of the debtor's creditors' claims (or the debtor's right in the event of debt relief); In this respect, the costs incurred by resolution of insolvency (including the costs associated with the opposition action) will also be significant. The Constitutional Court must stress here, in the context of the appellant's assertion, that Article 11 (1) of the Charter guarantees the protection of property rights, i.e. not property (its value and unchanging state) as such. In other words, the exact extent to which the claim in question will be satisfied, and thus the amount of the" new 'claim, or the "property' of the creditor, will depend on the rules of insolvency proceedings and its actual outcome. This is influenced by a number of legal and economic factors, but, in particular, in terms of the protection of property law, it is crucial how bankruptcy will be dealt with and, consequently, to what extent the debtor's assets will be allocated to individual creditors; In that regard, the principle of debt satisfaction (cf. § 1 (a) of the Insolvency Act) should be crucial, which in this area is precisely a manifestation of the fulfilment of the State's positive obligation to ensure the protection of the right of ownership of assets under Article 11 (1) of the Charter in the form of such a principle of proportional satisfaction of creditors' claims against the debtor. In the view of the Constitutional Court, this obligation is fulfilled by the State in the form of insolvency proceedings, including the contested provisions. Only a possible deviation from the principle of proportional satisfaction of claims can then be regarded as (justified or unjustified) interference with property law, as this would result in a breach of the principle of equality of owners in the protection of their right granted by the State. This question was raised by the Constitutional Court in the case already referred to in point I. ÚS 3271 / 13, but it can be added that, in view of the different (i.e." non-procedural ') issue which was dealt with in that case, the Constitutional Court does not consider it necessary to comment further on the relevant conclusions and on the appellant's argument on them. As regards the complainant's view of the so-called "common interest' (see sub-sub-41), it should be pointed out that, in view of the fulfilment of the State's positive obligation to organise creditors' relations with the insolvent debtor and creditors of each other, it is, in fact, the Insolvency Law Institute and the State's instrument for organising such relationships [see paragraphs 70 and 77 of the judgment of 11.7.2017 sp. zl. ÚS 23 / 14 (283 / 2017 Coll.)] and not a reflection of the particular situation in an insolvency proceedings. It is therefore a question of establishing the obligation for insolvency parties to monitor such an interest and thus to fulfil the purpose of the insolvency proceedings, but it is not a question of whether such a situation has occurred.

62. In the present case, this is the procedural aspect of insolvency proceedings, or the stage at which the debtor's assets and liabilities, which provide the starting values for determining the amount of the transactions that each creditor will have to pay, are still built for sure (see above). In this context, it would therefore be appropriate to refer not to ownership, but to the right to payment of a claim, which each of the parties referred to in Article 36 (1) and (4) The Charter may apply to a court or other body under the conditions laid down by law. In the event of insolvency of the debtor, the creditor may at some point claim his right to reimbursement of the claim only in insolvency proceedings which are relatively specific.

63. It is seen from the angle of the constitutionally guaranteed right of judicial protection that the examination or determination of the nature of the proceedings in question, for example, in relation to its individual stages or parts (whether it is a search procedure or rather an enforcement procedure) is not so important, since the impact of Article 36 (1) and (4) of the Charter on such proceedings cannot be disputed. Moreover, according to the case law of the ECHR, as the appellant itself stated, Article 6 of the Convention also affects the execution procedure as a whole (Hornsby v Greece, judgment of 19.3.1997 No 182579 / 91), and the partial proceedings within it [Mladoschovitz v Austria, judgment of 15.7.2010 No 38663 / 06, or the Central Mediterranean Development Corporation Limited v Malta (No 2), judgment of 22.11.2011 No 18544 / 08], the insolvency proceedings directly referred to in the Yerša case against Russia, as pointed out by the appellant.

64. However, it should also be taken into account that the insolvency proceedings are a specific procedure (see also resolution sp. zn. I. ÚS 3271 / 13 and the finding of sp. zn. Pl. ÚS 23 / 14), the constitutionality of which must first be assessed as one whole, albeit at different stages, consisting of successive proceedings, i.e. not only as a set of procedural acts, decisions and partial proceedings, taking place within, or in connection with, the insolvency proceedings, as is the case in the case of disputes arising from insolvency proceedings, that is an incident (§ 140 (1) of the Insolvency Act), or "other 'disputes (§ 140 (2). Therefore, the view of the so-called common interest of all creditors is significant, since only the final outcome of insolvency proceedings is of real importance to the parties concerned.

65. Another specific feature of the insolvency proceedings is the number of participants in which the insolvency creditor is in a two-time position, i.e. both as an individual and as a member of a group of insolvency creditors, and is not always "on its own ', but the actions performed by him may also have an impact on all other creditors [collective nature of insolvency proceedings under § 3 (1) (a) of the Insolvency Act, which is, inter alia, protected by the Institute of Opposition Law - see Richter, T. Insolvency Law. Issue 2. Praha: Wolters Kluwer, 2017, in particular p. 392 n., 402 n.]. The interests of the individual may not always correspond to the interests of the creditors as a whole, or there may be a situation where the application of procedural rights by the individual as in individual proceedings may ultimately lead (and thus to the detriment of all other creditors) not only to the low efficiency of the insolvency proceedings, but could result in its overall inoperability. In other words, the exercise of individual procedural rights by one of the creditors, which are also protected at the constitutional legal level (as one of the principles of the due process), may conflict with the right of other creditors to (effective) judicial protection. It follows from the above that a certain limitation of individual procedural rights is necessary by the nature of the case. This is thus a certain procedural period, as described above in the substantive situation, where the property rights of an individual creditor restrict the rights of other creditors. For these reasons, it is not possible to" remove "the individual (incident) proceedings as a whole and to" mechanically "them from the individual procedural principles relating to individual proceedings.

66. The solution to this conflict is to transfer the exercise of certain procedural rights from an individual to a whole (or to the authorities representing that whole) or to a third party, as appropriate. This process, which the appellant referred to as "collectivisation ', is, in general, by the nature of the matter referred to above, a measure which is absolutely necessary and at the same time the only possible one, since without it the proper conduct of insolvency proceedings cannot be imagined nor can it be imagined that it could be replaced by another solution. The question then is only the appellant of the mentioned and disputed" collectivization' (i.e., more precisely, the collective nature of the application of the creditor's rights); in particular, the application of which procedural rights should apply and what procedural powers should be left in the hands of the individual so that the insolvency proceedings are as effective as possible, that is to say to protect the system sufficiently against the application of its own interests by the individual at the expense of the whole, which would be incompatible with the fundamental principles of insolvency proceedings, and at the same time would not completely deprive individual participants of their procedural initiative, since it is the individual who, in the protection of his rights, will, as a rule, be more consistent than the person to whom that authorisation has been delegated because it may not be so motivated or his motivation would be different because of his own interests. What is important, however, is that every individual should have as much space as possible to be "master of his cause" and also to be responsible for his actions. In other words, the procedural rights of the parties to the proceedings are, in terms of their primary purpose, a driving force for the proceedings, but at the same time they can also be a brake on them, and therefore the ideal form or extent of them must be sought. Given this, the individual exercise of procedural rights is certainly worthy of preference and the transfer of "competences" from an individual to another entity should be considered an exception to the rule; However, this does not mean that it would have an absolute priority in this collision, on the contrary, it can (must) be maintained only to the extent that the procedure in question corresponds to the very nature of the proceedings, to the extent that this does not prejudice the sound process as a whole (from the point of view of all creditors). It is therefore possible to talk about certain "optimization" where individual exercise of procedural rights must be ensured to the maximum extent, but this, while maintaining the full functionality of the entire insolvency resolution system.

67. When dealing with this issue, account should be taken of the relatively large complexity of harmonising individual interests and the so-called common interest in insolvency law, resulting in a relatively wide range of possible solutions (see UNCITRAL in: Legislative Guide on Insolvency Law conclusions on this. United Nations. New York, 2005, p. 148-150, and Recommendation No 93 on the rules of the so-called avoidance procedure, namely the solution to the question currently under assessment by the Constitutional Court - available at http: / / www.uncitral.org / pdf / english / texts / insolven / 05-80722 _ Ebook.pdf). The choice of any such solution is essentially in the hands of the legislator; from this point of view, it is a political question for the Constitutional Court in the sense of the obligation to assess whether, for example, there is another "better 'solution. Its task is to assess only the constitutional conformity of the solution to the existing, namely in the case under trial, the matter must be considered from the point of view of the constitutionally guaranteed fundamental right of access to the court (not the right to a fair trial - the appellant complains that it is denied access to the court by the contested provisions). If the insolvency proceedings were to be regarded as one whole, the creditor is not reduced in that right, since in the present proceedings he may submit an application for insolvency proceedings and claim his claim in that procedure. However, at the same time, insolvency proceedings can be seen as a set of individual proceedings (see above), and if they affect the rights of a particular person (creditor), they should certainly be able to initiate such proceedings (and if initiated by another person, to participate). In other words, the fundamental right in question cannot be reduced to the mere application of a claim in insolvency proceedings.

68. However, this does not mean that it must always exercise these rights directly (in person), it may also do so indirectly, i.e. through the person of the insolvency practitioner, but even such exercise may be necessary, as explained above, in its entirety. In the above mentioned finding sp. zn. Pl. ÚS 14 / 10 The Constitutional Court explained in detail that the Law implementing Article 36 (1) The Charter cannot claim the protection of its rights in a court or other body in which it is entirely negligent. However, it linked this to the personal exercise of the right in question and, for its complete absence, concluded that Article 36 (1) of the Charter was infringed. It came to the conclusion at the time (no doubt) that the intermediate exercise of procedural and, in particular, of the claim law by the individual creditor - despite the specificities described above in the insolvency proceedings in which collectivisation of the exercise of certain procedural rights is necessary or necessary - is not "sufficient '. It should be noted, however, that the reference to the finding of the Constitutional Court of 29.1.2008 sp. zn. Pl. ÚS 72 / 06 (N 23 / 48 SbNU 263; 291 / 2008 Coll.) was not entirely appropriate since in that case the tax guarantor had no" substitute' form of protection of his rights. A similar situation in which the injured party's decision of the Court of First Instance may have been wholly deprived of the right to take part in criminal proceedings (cf. § 44 (2) of the Code of Criminal Procedure, as amended by 23.2.2001), was dealt with by the Constitutional Court in its decision of 31.1.2001 sp. zn. The subsequent amendment to the Code of Criminal Procedure (implemented by Act No. 283 / 2004 Coll.) has anchored in case the number of injured persons would be extremely high and the individual exercise of their rights could be jeopardised by the rapid conduct of criminal prosecution, the authority of the Court of First Instance to decide that the damage may be exercised only by a joint agent chosen by it, limiting the number of elected agents to six, and that, if the damage to the choice is not agreed, the court will make that choice. The Constitutional Court is aware, of course, that the insolvency administrator is not a representative of the participants - creditors, but the same features can be found in that it is a similar way of dealing with the problem of a large number of participants in the relevant proceedings, where a representative may be "forced" by the court's decision and where the exercise of procedural rights by that person may not correspond to the ideas of each of the participants.

69. The Constitutional Court does not take the view that the transfer of an authorisation from an insolvency creditor to a third party, i.e. an insolvency administrator, would, in itself, be - by the nature of the matter itself (see below) - unconstitutional. Otherwise, a number of regulations of those countries of the European Union would have to be found to be "automatically" in a contradiction with Article 6 of the Convention, where the exercise of the right of the defendant belongs exclusively to the insolvency administrator, and, moreover, a large part of the legislation would have to be in force, since in other proceedings only insolvency administrators, such as the exclusion or exclusion of property matters [§ 225 et seq., Act No 182 / 2006 Coll., bankruptcy and resolution procedures (insolvency law), as amended], are expected to be held or participated in. In this context, it is necessary to recall the German legislation (see already sub 14, 32, 33, 39), according to which the insolvency administrator [§ 129 Insolvenzordnung ("InsO ') is entitled to oppose the debtor's actions.]; the exception consists of those proceedings where the insolvency administrator (otherwise referred to as Anspruchsinhaber - see for example Nerlich, J., Römermann, V. Insolvenzordnung. Kommentar. München: C. H. Beck, commentary on § 129, footnote 22, p. 2016) does not appear (see § 280, in the past § 313 (2 InsO), except for consumer insolvency proceedings (Andres, D., Leithaus, R., Dahl, M. Insolvenzordnung. Kommentar. 3rd edition. München: C. H. Beck, 2014, footnote 14 to § 129); Insolvency creditors do not have an immediate influence on this act - if the insolvency administrator refuses to exercise its right, they may simply refer to an insolvency court which may require the insolvency administrator to carry out his or her duties and possibly hold him liable (Sections 58 and 59 InsO). It is precisely the purpose of protecting creditors from inequality (see Foerste, U. Insolvenztrucht. 4th edition. München: C. H. Beck, p. 144).

70. The legal status of the insolvency administrator will play an important role in this respect in terms of guarantees of independent and impartial performance of the function in question, or the existence of control and correction mechanisms in the event of unlawful inactivity of the insolvency administrator. On this point, however, the Constitutional Court found no obstacle. Under Paragraph 36 (1) of the Insolvency Act, the Insolvency Trustee is required to act conscientiously and with professional care in the performance of its duties and to make every effort to ensure that creditors are satisfied as far as possible; This means, as a result, that it is obliged to protect their so-called common interest, which is superior to individual interests and which consists in the rapid, economical and as much satisfaction as possible of their interests (see also Sections 1 (a) and 2 (j), Section 5 (a) of the Insolvency Act); its activities and procedures are subject to the supervision and supervision of, in particular, the insolvency court and the creditor committee [§ 10 (b), § 58 (2) of Act No. 182 / 2006 Coll., on bankruptcy and its methods of resolution (insolvency law), as amended by Act No. 296 / 2007 Coll.], and for its activities it bears personal and property responsibility [§ 23, § 31 (1) of Act No. 182 / 2006 Coll., on bankruptcy and methods of resolution (insolvency law No. 296 / 2007 Coll.]. In addition, the law does not leave the law to its own decision, but can be decided by the creditor committee (Section 239 (2) of the insolvency law). It cannot be seen here that, in the case of an opposition action, it is already a procedure which is assessed in the light of the so-called common interest, namely the amount of the property, where the determination of the procedure is also a matter of considering the economic interest (benefit of the filing of the opposition action) by the creditor authorities. Finally, individual creditors may contact the insolvency court to intervene in the context of their so-called supervisory activities [§ 10 (b), § 11 of Act No. 182 / 2006 Coll., on the bankruptcy and resolution methods (insolvency law), as amended by Act No. 296 / 2007 Coll.], if they are of the opinion that the insolvency administrator does not fulfil its obligations in that regard.

71. If the Constitutional Court takes the view that a legal restriction on an individual creditor to bring an action constitutes an infringement of the fundamental right of judicial protection, namely its component, which is the right of access to the court, it must take into account the specificities described above, that is to say that the need for such action arises per se as a result of a conflict with the same law, i.e. the right to judicial protection, according to which each person must be able to effectively claim his rights by judicial means. Efficiency must be understood in terms not only of procedural but also of time; equal protection of the rights and legitimate interests of individuals can only be achieved if the party to the proceedings has the necessary procedural instruments (and therefore their minimum standard is also guaranteed in constitutional terms), the length of such proceedings is of no minor importance, according to the phrase "late found justice - no justice '; In the insolvency proceedings," time is money' is more than any other case, since, with its length, the costs which diminish the debtor's assets and thus the extent of the satisfaction of individual creditors increase. At the same time, it is clear that the overall duration of the proceedings will increase depending on the number of parties to the proceedings and the extent of their procedural authorisations, as well as the nature of the proceedings (the insolvency proceedings are quite complicated).

72. In its proposal, the appellant submitted the measure to the so-called proportionality test, with the result that it clearly cannot stand it. However, the Constitutional Court did not identify with this view. As mentioned above, certain "collectivisation" of the exercise of procedural rights in insolvency proceedings is, by nature, necessary, since without it such proceedings cannot be effective, or functional. In particular, in view of the above, it is sufficiently clear that the measure in question pursues a legitimate objective, i.e. an increase in the effectiveness of insolvency proceedings, since the existing arrangements constituted by the bankruptcy and settlement law were not able to ensure a sufficiently effective enforcement of creditors' rights, nor does the Constitutional Court have any reason to believe that it would not be possible to achieve that objective or that there would be another way of ensuring the desired situation without any interference with that procedural law. In that regard, it has already been mentioned that the limitation of the procedural rights of the parties usually entails an acceleration of the legal proceedings and it can hardly be assumed that this could be otherwise. It is known from the official activity of the Constitutional Court that the length of the previous proceedings under the bankruptcy and settlement law was significant, and the length of the events involved (see also the 2005 Competition News survey, available at http: / / www.kn.cz / clanek / jakadelka- bankruptcy), plus the new rules in the form of insolvency law not only theoretically but also practically leads to a significant shortening of the length of insolvency proceedings compared to bankruptcy proceedings (see the explanatory report to Act No. 294 / 2013 Coll., according to which this shortening was three times). If the appellant argues that there is an alternative solution which leads to the same result, it cannot be attributed to it because it is irrelevant whether there will be an increase in the number of opposition proceedings or the number of participants in a single procedure, since the regular consequence of the first or second solution will be an extension of the judicial agenda and, consequently, a greater or lesser extension of insolvency proceedings. Similarly, the practice shows that the other measures to reduce management are not usually too effective. It might be a good fact that the alternative solution is almost "equivalent," because there will only be a small extension of the procedure, but it is not. The measure in question was not the only measure and therefore cannot be viewed in isolation, irrespective of the entire insolvency adjustment system. And the Constitutional Court has already intervened in it once when it "confessed" to an individual creditor of the so-called defiance. In addition, the argument (about the need for the personal exercise of procedural rights) could also be applied to other incident proceedings (and possibly other proceedings) involving the insolvency administrator, as their results could also affect the level of satisfaction of creditors, which would require the construction of a completely new insolvency system. The fact that there are also other options for creditors to block insolvency proceedings does not consider the Constitutional Court to be significant, as the inadequate duration of legal proceedings may not be due to abuse of rights, and any step that leads (in itself or in conjunction with others) to its shortening must be assessed positively. It cannot be ruled out that there is a truly equivalent solution from the point of view of the whole system, but the Constitutional Court is not called upon to address this issue, as it would essentially fit into the role of the initiating legislator, which, as explained above, is not his place. The same applies to the objection to placing emphasis on the fashion concepts of Law & Economics, although it is clear that the starting point for assessing general grounds for insolvency and insolvency proceedings will be economic considerations, as in the case of, for example, medical and medical law, medical science.

73. If it is a question of whether the restriction will stand in the proportionality test in the narrow sense, that is, whether the damage to that procedural authorisation is disproportionate to that objective (see, for example, the finding of the Constitutional Court of 9 October 1996 sp. zn. At the same time, it took into account the nature of the intervention in the constitutional guarantee of the right to judicial protection and its non-negligible intensity, but it is not a denial of the right in question (Article 4 (4) of the Charter), since it is (at least) carried out in an intermediate manner. In its proposal, the appellant pointed out the various weaknesses or shortcomings of the legislation in force, pointing out the possibilities for dealing with them, but on the basis of such a fact, it cannot, without further ado, be concluded that it is unconstitutional, it must also be taken into account that the best legislation cannot prevent it from being violated, circumvented or abused by its addressees, or that it is always properly interpreted and applied by public authorities. It can therefore be concluded that, from the point of view of the procedure, the intervention of the Constitutional Court could lead to relevant fundamental so-called systemic errors in the legislation which would result in a party (insolvency creditor) not being able to effectively claim its right. And that's not what the Constitutional Court found.

74. The main group of reservations of the applicant concerns legal guarantees of independent performance of the function of insolvency administrator. The appellant pointed out that the majority creditor (usually according to the bank), who had committed a contradictory conduct, could have put pressure on the insolvency administrator not to bring an action against the insolvency practitioner. However, the insolvency administrator is not legally dependent on such a creditor in relation to the filing of an action against insolvency proceedings, since the creditor committee can decide only on the filing, not on the filing, of an action for annulment (Section 239 (2) of the Insolvency Act), and if the filing of the action does not bear the characteristics of a conscientious or qualified procedure (Section 36 (1) of the Insolvency Act), the insolvency court could accept, in the version of the Act, the insolvency law, the insolvency proceedings, and the methods of its resolution (Insolvency Act), as amended, or perhaps an appeal from the office [§ 31 of Law 182 / 2006 Coll., the insolvency proceedings and the methods of its resolution (Insolvency Act). The same is true if the appellant argues that several strong insolvency creditors - banks on which the insolvency administrator is economically dependent to a certain extent - are present in the current insolvency situation, and therefore tend to avoid such a creditor simply because he would rather not bring an action against it. Even here, we cannot talk about a systemic error, but only about the failure of an individual who succumbs to possible coercion or corruption of an insolvency creditor, or otherwise embezzlement of his duties. It is certainly not possible to rule out that the insolvency administrator will take up his duties as described by the appellant, but such an approach would not be too rational from the point of view of the future performance of his duties, since the services referred to above with regard to one of the creditors in one insolvency proceedings may result in such insolvency administrators becoming unacceptable to other creditors in other insolvency proceedings (where, moreover, he may pose a risk to that creditor himself). It is not without meaning to decide that an action must be brought where it also has an obligation to act impartially, i.e. to protect the interest of all creditors, and is legally liable for the proper performance of its duties (§ 58 (1), § 60 (1) of the Insolvency Act). The Constitutional Court is not aware of the fact that it would be common for a creditor to control a single creditor from its activities, and the question is, moreover, whether (under what circumstances) the acquisition of debts could be economically paid to it, but in the event of the failure of the creditor committee and the insolvency administrator, there remains the possibility of a minority creditor to contact the insolvency court in order to intervene in his so-called supervisory activities. The appellant also pointed out that the possibility of applying any compensation to the insolvency administrator or the creditors committee is not sufficient to guarantee that the recovery of any claim would be problematic, since in our law the theory of so-called loss of opportunity is not applied (however, it should be pointed out that the finding of the Constitutional Court of 20 December 2016 sp. zn. III. ÚS 3067 / 13) is not applicable, nor will any of the creditors concerned be willing to bring an action. Even if the Constitutional Court admitted that, in these cases, the preventive action of liability may be somewhat "weaker," it cannot be overlooked that it is one of the whole guarantee system, and this reasoning is rather speculative, as issues of legal responsibility are subject to constant development, so it cannot be said with certainty that the injured creditor would not have a chance of success, nor can it be predicted how many creditors would have brought the action. In addition, the possibility of possible criminal penalties cannot be omitted, especially at a time when the area is very closely monitored by law enforcement authorities.

75. The exercise of the function of insolvency administrator and the management of insolvency proceedings by insolvency courts (judges) is sometimes the subject of criticism, but this is usually the case where the property is redistributed. In these areas, a broader allocation of procedural rights to individual creditors may reduce the scope for possible infringements of the insolvency administrator and creditors (in particular "large ones'), but such a claim cannot be based on the conclusion of the inconstitutionality of the contested legislation; Moreover, the previous legislation represented by the bankruptcy and compensation law contained that authorisation without preventing such an infringement.

76. As indicated above, the Constitutional Court sees the intervention in question, consisting of not admitting an active legitimacy to an individual creditor for bringing an action against the opposition as relatively significant, but cannot consider it to be an intervention in the very essence of the right to refer the "case 'to the court or other body referred to in Article 36 (1) in conjunction with Article 4 (4) of the Charter. At the same time, it must take into account that, from the point of view of constitutionality, there is no less significant value for" driving speed'; of course, it cannot be understood that the measure to ensure the speed of proceedings could be taken at the expense of the essence of certain constitutionally guaranteed procedural rights, such as the right to seek the protection of its rights in the court [finding of 1.12.2009 sp. zn. Pl. ÚS 17 / 09 (N 250 / 55 SbNU 415; 9 / 2010 Sb.)], which follows the right to participate in the proceedings [finding of 30.4.2009 sp. zn. II. ÚS 2448 / 08 (N 106 / 53 SbNU 331) or the right to comment on the proposal [finding of 26.4.2005 sp. zn. II. ÚS 310 / 04 (N 93 / 37 SbNU 269)].

77. At the same time, it should be taken into account that insolvency proceedings are not "ordinary 'legal proceedings; It is not only about the multiplicity of its participants - insolvency creditors, but also about the" multiplicity of proceedings "that are conducted in insolvency proceedings, it is not even possible to overlook that the individual creditor" does not play for himself "because the procedural acts that he does may manifest itself in the legal sphere of others (not only positively). In particular, the appellant overlooks the fundamental differences between the proceedings and the proceedings, as well as the Constitutional Court in the decision of the insolvency administrator on the recognition or denial of the claim (see recitals 20 and 30). The specific nature of the procedure implies the need for specific legal regulation; This is to be seen in its complexity, not to be broken down into individual" building parts, "i.e. individual proceedings or actions which cannot then be opposed to one another (the revolving and the opposition proceedings have a different purpose). In such a situation, it should be decisive whether the process of identifying (or securing) the assets and liabilities of the debtor leads to an effective protection of the subjective rights of creditors. The Constitutional Court is not convinced that the necessary and only constitutionally conformal condition for this effective protection would be to grant the procedural rights to creditors" in full'; Such legislation would certainly be ideal in some respects (see above), but it cannot be preferred "at all costs," if it is to be at the expense of the aforementioned effectiveness of protecting the subjective rights of creditors. In principle, therefore, the nature of the matter will always be a compromise between the individual and collective exercise of creditors' procedural rights, but it will be essential whether the relevant regulation, under the circumstances (in particular social circumstances), provides procedural authorisation in such a form as to guarantee such effective protection. Thus, in seeking a compromise between the individual and collective exercise of creditors' procedural rights, the legislator is entitled to determine that a particular procedural instrument can only be applied at a certain stage of insolvency proceedings.

78. As regards the proportionality test carried out in the narrower sense [see, for example, the Constitutional Court's finding of 13.8.2002 sp. zn. Pl. ÚS 3 / 02 (N 105 / 27 SbNU 177; 405 / 2002 Coll.)] concludes that, in general, it is not possible to conclude that a certain limitation on the personal exercise of a given procedural authorisation to individual creditors would have to be regarded as disproportionate, since, firstly, it is not a fundamental restriction, since the exercise of "their" procedural rights "is entrusted to a qualified person and the responsible person, on the one hand, the measure in question may be associated with a significant contribution to the acceleration of such proceedings, the duration of which has been regarded as a significant social problem. The Constitutional Court did not find that the legislation in question had failed in practice if it was to protect the subjective rights of creditors effectively; After all, the appellant itself did not claim such a thing, merely in theory pointing to the risks of criminal activity or abuse of the position of a majority creditor, as discussed above.

79. In the light of the above, the Constitutional Court concluded that there were no grounds for the annulment of the contested legal provisions and therefore rejected the proposal under Paragraph 70 (2) of Act No 182 / 1993 Coll., on the Constitutional Court.