The Constitutional Court found No. 444 / 2012 Coll.
The Constitutional Court found of 30 October 2012 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
13.12.2012
444
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 8 / 09 on 30 October 2012 in plenary composed of Stanislav Balík, Vlasta Formánková, Vojen Güttler (Judge Rapporteur), Pavel Holländer, Ivana Janů, Vladimir Křirka, Dagmar Lastovecká, Jan Musil, Pavel Rychetský and Miloslav Excellent on the proposal of the Supreme Administrative Court to abolish the provisions of Article IV (3), (5) and sentences of the second and final point (6) of Act No. 304 / 2007 Coll., amending certain laws in connection with the completion of the transition of the terrestrial analogue television broadcasting to terrestrial digital television broadcasting, with the Parliament of the Czech Republic as participants in the proceedings
as follows:
Motion denied.
Reasons
1. In accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), the appellant requested that the Constitutional Court annul those provisions in the heading. In the preliminary hearing of the complaint by the complainant MINORITY, a. s., against the defendant of the Broadcasting Council (hereinafter referred to as "the Council '), held with the appellant under sp. zn. 1 As 101 / 2008, he concluded that the contested provisions of the Act cited contravene Articles 1, 2 (1) and (3), 81 and 90 of the Constitution, as well as Article 36 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter').
2. In the introductory part of its proposal, the appellant dealt with the substance of the above-mentioned procedure in the case of the complainant MINORITY, a. s. stated that by its decision of 26.2.2008 sp. zn. 2008 / 153 / River / BAR, No. mal / 1753 / 08, the Broadcasting Board, pursuant to Article IV (5) of Law 304 / 2007 Coll., amending certain laws in connection with the completion of the transition of terrestrial analogue television broadcasting to terrestrial digital television broadcasting (hereinafter referred to as "the contested Act '), granted the Barrandov Television Studio, a. s., a compensatory licence to the terrestrial digital television broadcasting programme of the Television Barrandov, on the request of that company of 10.1.2008. The complainant MINORITY, a.s., whose applications for licences were rejected by the previous Council Decisions of 4.4.2006 No 25 / 06 and No Ru / 26 / 06, contested the action before the Municipal Court in Prague, both by the defendant's decision of 26.2.2008 and by the decision of the First Intelligence Compensation Licence, a.s. by the Municipal Court of Resolution of 20.8.2008 rejected the action of the complainant as a manifestly unjustified person within the meaning of Article 46 (1) (c) of Law No 150 / 2002 Coll., the Administrative Rules, since the sole party to the proceedings for the granting of the Compensation Licence (Article IV (5) of Law No 304 / 2007 Coll.) is in accordance with Article IV (6) of Law 304 / 2007 Coll.
3. In its appeal against this order, the complainant sought the annulment of this order by the Municipal Court. It stated that Article IV (5) of Act No. 304 / 2007 Coll., to which the Municipal Court argues, is contrary to the constitutional order of the Czech Republic. The Council's decision, which was allegedly issued without due process, conferred an unjustifiably advantage on a group of licence applicants and infringed the constitutionally guaranteed right of applicants to equality in law. As a result of the decision, there will be vacancies in the digital networks built, which means illegal discrimination against the applicant for the benefit of the holders of compensation licences. According to the complainant, the purpose of the judicial review of the administrative decision was also denied by the granting of compensatory licences under the Act cited.
4. In the next part of his proposal, the appellant further analysed the issue of the contested Act No. 304 / 2007 Coll., effective from 1 January 2008, in the context of so-called digitisation. On the one hand, its provisions require the Broadcasting Board to grant a compensation licence to a person who, before the date of the entry into force of Law 304 / 2007 Coll. was granted a licence for terrestrial digital broadcasting by a Council decision against which the action was brought, on the other hand, determines that only the applicant is a party to the proceedings for the granting of the compensation licence and regulates the requirements of the decision granting it.
5. In order to understand the issue of compensation licences, the appellant considers it appropriate to outline the pending proceedings on licences to operate on-the-spot television broadcasting via terrestrial transmitters in the DVB-T system, i.e. digital broadcasting licences. The licence procedure from which the first digital television operators in the Czech Republic were to be established was terminated by issuing two Council Decisions of 4.4. 2006 No. Ru / 25 / 06 (for so-called multiplex B) and No. Ru / 26 / 06 (for so-called multiplex C); several licences have been granted in each of these procedures. The unsuccessful licence applicants, including the complainant, contested these Council decisions by actions before the Municipal Court in Prague, which were awarded by law suspensive effect (§ 66 of Act No. 231 / 2001 Coll., on the operation of radio and television broadcasting and amending other laws, as amended). The Municipal Court granted the applicants and annulled the two Council Decisions of 30.3.2007 sp. zn. 8 Ca 169 / 2006, 10.4.2007 sp. zn. 7 Ca 165 / 2006 and sp. zn. 7 Ca 157 / 2006, 11.4.2007 sp. zn. 10 Ca 157 / 2006 and 20.4.2007 sp. zn. 10 Ca 156 / 2006 respectively, and returned the cases to the Council for further proceedings, i.e. to take new decisions on licence applications. For the sake of completeness, the appellant added that all these judgments of the Municipal Court were challenged by complaints before the Supreme Administrative Court and in the appeal proceedings. However, only the judgments of 11.3.2008 no. 1 As 21 / 2005-271 and of 20.3.2008 no. 1 As 22 / 2007-337, that is, following the effectiveness of Act No. 304 / 2007 Coll., some provisions of which are now contested.
6. On 1 January 2008, at the time when, following the repeal of the two Council decisions, the licensing procedure was reopened and the Council was to decide again on the licences, Act 304 / 2007 Coll. As is apparent from the explanatory memorandum, its aim was to eliminate some obstacles to digital broadcasting. One of these barriers was that the persons licensed by the Council could not start broadcasting; This is first due to the suspensive effect of actions brought against the decision by unsuccessful applicants, then following the annulment of the licence decision. The legislature therefore decided, on the one hand, to suspend the original licence procedure and, on the other hand, to allow persons whose original licence was subsequently contested by an administrative action to obtain so-called compensatory licences whose content should have been identical to that of the original licence. However, it was no longer necessary to succeed in the declared licence procedure to obtain the licence. The sole party to the proceedings for the award of the compensation licence was to be the holder of the original licence and, if it did not cease to meet the general conditions for participation in the licence procedure, the concession was to be granted automatically.
7. The Supreme Administrative Court considers that by adopting Law 304 / 2007 Coll., the legislator violated the principle of division of powers in the state and entered into the sphere of the reserved power of the judicial and, where appropriate, executive powers by its own acts. The Act, including its transitional provision in Article IV, was adopted for a year and a half after the Council's decisions on the granting of licences were challenged by administrative actions and six months after the Municipal Court in Prague annulled both of those decisions and returned the cases to the Council for further proceedings. By the moment of legal power of the judgments of the Municipal Court, the Council was required to re-decide which of the applicants would be granted licences and to follow the binding view of the Municipal Court. However, before the Council fulfilled this obligation, the legislator imposed on it in Article IV (3) of Act 304 / 2007 Coll., in order to suspend the licensing procedure for the operation of terrestrial digital television broadcasting, which was launched and definitively completed by the date of entry into force of this Act. At the same time, in Article IV (5) of the Act, the legislature provided that, without any discretion, the Council, in proceedings with a single party, would grant a compensatory licence to those who had already been granted in such a closed procedure if they so requested. In the view of the appellant, the legislature thus inappropriately intervened in the exercise of jurisdiction: even if the court has annulled both Council decisions on the application of unsuccessful applicants and ordered her to continue the pending procedure with the same number of applicants - that is to say, to re-examine all applications for licences and to take into account the complaints of the municipal court and to remedy her procedural misconduct - Law 304 / 2007 Coll. has made the judicial review already under way completely unnecessary.
8. By creating a new compensation licence (i.e. compensation for a licence which cannot be used for digital broadcasting because the decision on it was contested by an action), the legislature, according to the appellant, also violated the sovereign domain of the judiciary. The action against the decision rejecting the application for a (ordinary) licence pursuant to § 12 to 25 of Act No. 231 / 2001 Coll., as amended, is legally subject to suspensive effect; the opening of legal proceedings itself, although it is said to be somewhat irregular, weakens the effects of a decision by an administrative authority, which, while still being demonstrated by the presumption of correctness, cannot be exercised until the court's decision on the action. According to the appellant, the suspensive effect has its place even in cases where a limited number of licences are applied for by more than one applicant and the decision not to grant licences to certain applicants is thus generally linked to the granting of licences to other applicants. In fact, the operation of radio and television broadcasting is so expensive that the opening of broadcasting on the basis of an administrative decision which the court finds to be illegal would likely cause significant damage to licence holders, which could then also be claimed by the State. Therefore, the suspensive effect of an action in conjunction with a period of 90 days before the court's decision on an action should prevent the adverse consequences described at the price of a delay. The legislature adopted a general rule according to which judicial review is essentially subject to all decisions of the administrative authorities on the rights and obligations of natural and legal persons in the field of public administration [Sections 4 (1) (a) and 65 (1) of the Administrative Rules]; for a certain area of decision-making under Act No. 231 / 2001 Coll., as amended, then, with the help of the suspensive effect of the administrative action by law in the future, it stated that the very fact of activation of judicial power outweighs the possibility of exercising rights from the presummed correct decision of the administrative authority. However, by adopting Act No 304 / 2007 Coll. according to the legislator, these general rules were denied in order to address the specific situation on the digital broadcasting market. The suspensive effect of the action and the exercise of jurisdiction in a particular case have become inconvenient for the legislators; He therefore circumvented the final decision of the municipal court to revoke the licences and by law alone that those who failed in the court proceedings would still be given the opportunity to broadcast, albeit not the standard licensing procedure.
9. In the appellant's view, the legislator did not even hide its intention. The explanatory memorandum to Act No. 304 / 2007 Coll. refers to the "special public interest in unblocking the situation in the media market," which must also be subject to independent judicial decisions and the right of unsuccessful parties to a fair trial arising from Article 36 (1) and (2) of the Charter. In the applicant's view, unblocking the media market is not in itself an objective; The real value that the legislator intended to achieve with its legislative action in the field of digital broadcasting is, among other things, 'an increase in education and awareness of citizens', as mentioned in the Government's programming statement. These values, however, cannot, in the appellant's view, justify the arbitrary entry of legislative power into ongoing legal proceedings and follow-up proceedings.
10. As stated by the Constitutional Court in the case sp. zn. Although Law 304 / 2007 Coll. did not provide for the launch of digital broadcasting to a certain date to be of public interest, contrary to the laws repealed by the recently cited findings. However, it pursues the same objective of achieving the issue of individual administrative acts in accordance with the concept of public interest as the legislator. According to the appellant, it is therefore clear that the formally impeccable legal standards contained in Article IV (3) and (5) and also in the provision of point 6 which follow up on the preceding points do not meet one of the material characteristics of the legal standard, which is universality. Despite the form of the legislative act, it aims to resolve the particular situation, namely to block out some judicial power and to re-regulate the media market situation regardless.
11. The legislature's unacceptable interference in the area of jurisdiction cannot, according to the appellant, be remedied even by the fact that the pending legal proceedings in proceedings against the original licensing decisions will, in the words of the explanatory memorandum, "continue unimpeded '. Even if the Court annulled the Council's decision, as it had done before, this act will have no meaning for successful prosecutors, as the Council will not be able to proceed with the procedure which was terminated under Article IV (3) of Law No 304 / 2007.
12. As mentioned above, the appellant sees in the legislator's procedure - from a subjective point of view - a breach of access by applicants to the court. In its Article 36 (2), the Charter allows the person who, according to his claim, has been shortened on his rights by a decision of the public authority to refer to the court requesting a review of the legality of that decision. According to the Supreme Administrative Court, the legislator withdrew the right to review the administrative decision in the court proceedings by adopting Act No 304 / 2007 Coll. or emptied its material content. However, the fact that only one of the original participants in the licence proceedings - which in accordance with the licences originally granted - has been granted a licence which allows for broadcasting in so-called B multiplex or C multiplex - is, according to the applicant, in the same way as the previous licensing decision, which also met only a limited number of applicants. This, moreover, follows from the last sentence of Article IV (6), according to which the Council's decision to grant a compensatory licence contains the conditions for broadcasting identical to those laid down in the decision to grant the licence against which the action has been brought. It is therefore clear that the compensatory licence is not a decision of a completely different nature, which should be given in a different type of procedure than a "normal 'licence: quite the contrary, it is a copy of the previous licence decision, since the difference is only within the time limit of the compensatory licence. The interested broadcasters in multiplex B and / or multiplex C had all the applicants concerned by the Council decision of 4.4.2006 (drawn up on 12.5.2006) No. Ru / 25 / 06 and No. Ru / 26 / 06; after the Court annulled those decisions and returned the cases to the Council, it established a public subjective right for all applicants to re-examine and decide on all applications. Again, against the next Council decision, unsuccessful applicants could bring an administrative action. However, the legislature denied applicants the right to question the Council's decision in the court on who will be broadcasting in multiplex B and multiplex C, as it excluded them from the participation in the proceedings on compensation licences in Article IV (6) of Law No 304 / 2007 Coll., thereby depriving them of the right to file administrative proceedings. According to the appellant, the legislator has infringed their right of access to the court within the meaning of Article 36 (2) of the Charter.
13. In addition to the reasoning part of the application, the appellant sent the Constitutional Court a submission, in substance, concerning the issue of its active legitimacy in relation to all the contested provisions received by the Constitutional Court on 21 August 2012. It states in particular that on the basis of the contested provisions of Article IV (5) and the second and last sentences of point 6 of Act No 304 / 2007 Coll. The Municipal Court in Prague rejected the action for lack of active legitimacy (see No 1.56 of the judicial file); Since this legal conclusion of the municipal court is being challenged by the appeal complaint (see No 1.63- 64 of the judicial file), the Supreme Administrative Court will have to interpret and apply these provisions. If the Constitutional Court found such an amendment to be unconstitutional and annulled, the Supreme Administrative Court would have to abolish the contested order and refer the case back to it for further proceedings. However, questions of the constitutionality of the so-called "compensation licences' and of the proceedings concerning them would necessarily arise in the present proceedings, the regulation of which is again contained in the cited Article IV (5) and the second and last sentences of point 6 (see action by the applicant on 1 January-6 of the file). If such an adjustment were found to be unconstitutional, the municipal court would have no choice but to revoke the compensation licences contested. At the same time, however, it would be confronted with the fact that this act would have no meaning for the complainant, as the original licence procedure is required to be terminated by the Broadcasting Council (Article IV (3) of Act No 304 / 2007 Coll.). According to Article 90 of the Constitution, courts are called upon to protect rights and administrative courts are to provide protection for public subjective rights which are effective and meaningful. It follows from the foregoing - in the appellant's view - that the various questions (participation of the applicant in the administrative procedure and its active legal basis); adaptation of compensation licences and their procedures; the termination of the licence procedure by law) are continuous vessels which cannot be considered separately.
14. Furthermore, the appellant considers that the "case 'within the meaning of Article 95 (2) The Constitution is defined in particular by the action. It has now raised all the questions put by the Supreme Administrative Court to the Constitutional Court for consideration. Thus, although that court deals with only a certain part of the issue raised in the appeal proceedings, the remainder will also have to be dealt with in the further proceedings, whether by the Municipal Court in Prague or by the Supreme Administrative Court. It would be possible to imagine a procedure in which administrative courts would submit to the Constitutional Court proposals for the annulment of the various provisions of Act No. 304 / 2007 Coll. gradually; Once the Constitutional Court had decided on the first question, the second question would have been submitted to it, the third one would have been submitted to it, and so on, if necessary, until the content of the action had been exhausted. Although such a solution may be considered formally justifiable by the appellant, from the point of view of the complainant and of the other parties involved in the proceedings as" customers of justice', it will only be a matter of extension of proceedings, although all questions have been submitted to the administrative court at the outset.
15. The appellant is therefore convinced that all the contested provisions of Law 304 / 2007 Coll. satisfy the conditions of Article 95 (2) of the Constitution.
16. He therefore proposed that the Constitutional Court should decide by finding that the contested provisions of Law No 304 / 2007 Coll. are deleted from the date set by the Constitutional Court.
17. The Constitutional Court requested comments from the Chamber of Deputies and the Senate of the Parliament of the Czech Republic on the proposal of the Supreme Administrative Court and also asked the Broadcasting Council for an opinion.
18. It is stated in the Chamber of Deputies of the Parliament of the Czech Republic that the bill was submitted to the Chamber of Deputies by the Government on 26 July 2007 and was distributed to Members as press 262. The first reading took place at the 19th meeting of the Chamber of Deputies on 15 August 2007, in which the draft law was directed to the Committee on Science, Education, Culture, Youth and Sports and to the Permanent Media Commission. The Committee has issued a resolution containing amendments; However, the Commission did not adopt this resolution at its extraordinary meeting. The deadline for consideration in committee was reduced by 50 days. The second reading took place at the 21st meeting of 25 September 2007, the deadline for initiating the third reading being reduced to 48 hours after the amendments were received by Members. All the amendments tabled were drafted as Press 262 / 2 and circulated on 25 September 2007. The third reading took place at the same meeting on 27 September 2007 and the draft law was approved; of 146 Members voted for 142, no one opposed. The bill was passed on to the Senate, which approved it on 1 November 2007. It was then delivered to the President of the Republic, who signed it on 22 November 2007. It follows from the above that the law was passed by the necessary majority of Members of the Chamber of Deputies, signed by the relevant constitutional authorities and duly declared.
19. The substance of the proposal is cited in the statement in the explanatory memorandum to the contested law. According to it, the draft law "is in accordance with both the Constitution and the Charter of Fundamental Rights and Freedoms, including Article 17, which regulates the right to freedom of expression, and Article 36, which provides for the possibility for everyone to claim his right in an independent and impartial court. The proposed legislation is in line with the international treaties with which the Czech Republic is bound. '
20. In the Chamber of Deputies, reference is made to the Government's explanatory report stating the following arguments for the proposed legislation: "In the transitional provisions of the amendment to the Broadcasting Act, the so-called compensatory licence is to be modified, which is also to be granted to those who fulfil the legal conditions for participation in the licence procedure and were granted a digital television licence before the date of entry into force of the proposed act, but against which an administrative action has been brought. The proposed provision guarantees that those who have been granted a licence by a decision which has been challenged by an action may, on the basis of a digital television compensation licence, operate in the period from the effective date of the proposed act to the date of completion of the transfer of analogue terrestrial television to digital terrestrial broadcasting, regardless of the outcome of the legal proceedings. This exceptional procedure is justified by the particular public interest in unblocking the situation in the media market, starting digital television, as the European Union recommends, and creating a competitive environment in this area. This can be considered to be a clearly worded public interest, which can be measured with the need to respect the independence of judicial decisions, which will not be distorted, as the pending legal proceedings will continue unhindered. It should also be noted that the impossibility of broadcasting is due to the suspensive effect of the action brought by the law, which is an exception to the rule that final decisions by the administrative authorities can be implemented. By decision of the Council in the main proceedings, the persons to whom a proper licence for digital terrestrial television was granted have, in good faith, acquired from this decision a public subjective right to operate television broadcasting (see the principle of presumption of the accuracy of public acts), which does not alter the legal effect of the administrative action, which merely means that the rights deriving from this decision cannot be exercised; However, those rights de jure exist until such time as the decision is annulled by a court. Any annulment of such a decision by a court would result in property damage for those persons, the compensation of which could be claimed by the State whose institution the Council is. Therefore, the proposed legislation seeks to face this potential risk through the Institute of Compensation Licensing Licence granted to those who were granted a digital television licence before the date of entry into force of the proposed act, against which an administrative action was brought. The right of the unsuccessful parties to a fair trial arising from Article 36 (1) and (2) of the Charter is therefore in contrast to the principle of protection in the good faith of the acquired rights of the successful parties to the licence proceedings, that is to say the principle which corresponds to the concept of the material rule of law [see Article 1 (1) of the Constitution and, for example, the finding of the Constitutional Court, sp. zn. I. ÚS 163 / 02 of 9.11.2004 (N 169 / 35 of the SbNU 289), in which the Constitutional Court stated that one of the fundamental attributes of the rule of law is the confidence of the individual in the decision-making of the authorities of the state authorities, whether it be legislative, executive or judicial. The pursuit of a state where an individual can trust in acts of the State and in its substance is a prerequisite for the functioning of the material rule of law.] '
21. The expression of the Chamber of Deputies is concluded by the legislature acting in the belief that the law adopted complies with the Constitution and our rule of law. It is, however, up to the Constitutional Court to assess its constitutionality and to give its decision.
22. The Senate of the Parliament of the Czech Republic stated in its observations on the proposal that the provisions of Act No. 304 / 2007 Coll. fell on legal relations in the field of broadcasting with effect from 1 January 2008. Similar provisions previously did not exist in our legal order and are of their origin in resolving the situation in the field of television broadcasting in connection with the transition of analogue terrestrial television to digital television.
23. The Senate discussed the law after it was referred by the Chamber of Deputies on 9 October 2007. This was dealt with by the Committee on Education, Science, Culture, Human Rights and Petitions, as well as by the Standing Commission of the Senate on the Media; the committee recommended to the Senate plenary that the proposal be approved in the version referred to by the Chamber of Deputies; the committee recommended not to deal with the bill. When discussing the proposal in plenary of the Senate on 1 November 2007, the representative of the appellant increased the argument of the parties to the compensation licence by saying: "The proposal also contains the principle of the granting of so-called compensatory licences, which was probably one of the biggest problems contained in the proposal, and we were looking for a way, while maintaining the Czech Republic's legal order, to allow the broadcasting of six digital television broadcasting licences which were subsequently challenged by the action, and thus finally to start digital broadcasting in the Czech Republic." The Commission's rapporteur added that "the bill was dealt with by an almost unbreakable intertwine, the Gordian knot, which occurred after essentially collapsed the selection process of the Broadcasting Council to grant digital broadcasting licences. In order not to completely stop this process, it was necessary to find a solution and, of course, the solution cannot be ideal because it was not created in an ideal environment. However, why do we need this bill? For the simple reason that there is simply a European agreement that analogue broadcasting will be off at a certain date, and the Czech Republic, of course, must resolve this problem if it finds itself in television darkness and in television silence." The same speaker further argued: "This law seeks to resolve the suspended tender procedure in two cases. Firstly, the opening winner of this selection procedure gives compensation licences and secondly, it cancels the selection procedure. This means that it determines to the Broadcasting Council that this procedure should be repealed. This is of course necessary, the granting of some property, and the broadcasting license is of course a form of property, the granting of property by law is problematic. However, it is a form that could come out of this vicious circle, where it would be possible to block this trial, indefinitely, with an endless sequence of protests and lawsuits. A certain positive that diminishes this negative aspect is that these compensatory licences are only valid for switch off, or switch off analogue broadcasting, i.e. they will be effective for virtually only a few years. For their holders, this means that while they will have a certain advantage in starting their broadcasts, they will not be sure that they will hold this licence long enough for their investments to return safely. So I would say that they too will bear a certain disadvantage from this solution."
24. After a general debate, the Senate adopted a resolution at its 9th session in its sixth term of office on 1 November 2007, approving the bill by votes of 60 Senators of the present 64, as referred to by the Chamber of Deputies.
25. The Senate, like the Chamber of Deputies, cited the general part of the explanatory memorandum to this Act (see above) and added that in its special section the explanatory memorandum to Article IV, current paragraphs 3, 5 and 6, states:
Point 3 - "In view of the fundamental systemic change in the licensing of digital terrestrial television broadcasting, it is proposed that the Council stop the pending and final licensing procedures under existing legislation. This provision shall also apply to proceedings in which, where appropriate, the Council should decide again if the original decision has been annulled by an administrative court. Participants to these licence procedures may obtain a licence for terrestrial digital television if they apply for it pursuant to the new version of Section 25 of Act No. 231 / 2001 Coll. '
To point 5 - "The conditions under which compensation licences are to be granted to other entities in connection with the suspension of licensing procedures resulting from a fundamental change in the licensing arrangements for digital terrestrial broadcasting are proposed. '
Point 6 - "The details of the application for a compensation licence and the Council's procedure for granting it shall be laid down. '
26. The Senate also recalled that the contested provisions of Act No. 304 / 2007 Coll. were not affected by a single amendment to this Act, i.e. Act No. 302 / 2011 Coll., amending Act No. 483 / 1991 Coll., on Czech Television, as amended, and some other laws. This law only repealed point 12 of the relevant Article IV, which did not affect the adjustments to the compensation licence.
27. The Senate also concluded that it was for the Constitutional Court to assess the constitutionality of the contested provisions.
28. In the opinion of the Broadcasting Council, it is noted that Article IV of Act No 304 / 2007 Coll. was transitional provisions which served to bridge the period until the completion of the transition of the analogue terrestrial to digital terrestrial broadcasting. In particular, on the basis of the provisions of Article IV (3), (5), (second and last sentences) and (6), the Council was required to grant a compensatory licence at the request of a person who had been granted a licence for terrestrial digital broadcasting on a full scale before the date of entry into force of this Law by a Council decision against which the action was brought. Provided that the person of the applicant fulfilled the conditions for participation in the licence procedure pursuant to § 13 (3) of Act No. 231 / 2001 Coll., as amended, he was in principle entitled to the grant of the compensatory licence and the application was decided on in a procedure the sole participant of which was the applicant for the licence. The Council then assessed the fulfilment of the application only of the formal requirements (the legal requirements of the licence application), but not the content (in terms of the programme structure and other programming conditions), since the legislator provided that the Council's decision to grant a compensation licence under point 5 had to contain the licensing conditions for broadcasting identical to those laid down in the decision to grant a licence for a terrestrial digital television broadcasting licence against which the action was brought.
29. In this way, the Council granted the compensation licence to Barrandov Television Studio, a. s., and to First Intelligence, a. s. According to the provisions of Article 8 (IV) of Law No 304 / 2007 Coll., the compensation licence shall cease on the date of completion of the transition of the terrestrial analogue television to digital broadcasting. The validity of the compensatory licences, as well as the applicability of the incriminated provisions, was therefore limited to the period until the completion of the switchover to digital terrestrial television. Point 1 of Article IV of the Transitional Provisions of Act No. 302 / 2011 Coll., amending Act No. 483 / 1991 Coll., on Czech Television, as amended, and certain other laws, provided that 11 November 2011 was considered as the date of completion of the transition of the terrestrial analogue television to terrestrial digital television broadcasting in the Czech Republic. On that date also the compensation licences granted under Article IV (5) of Act 304 / 2007 Coll. The current legislation no longer contains a joint licence procedure with several participants as regards the granting of a licence for the operation of digital terrestrial television broadcasting. The procedure for granting this type of licence is governed by Section 25 of Act No. 231 / 2001 Coll., as amended, which provides, inter alia, that the procedure cannot be initiated on the initiative of the Council and only the licence applicant is a party to the proceedings. The Council shall not grant a licence for the operation of digital terrestrial television only if the applicant does not comply with the conditions laid down in Paragraph 13 (3) or if the proposed programme composition does not comply with the requirements laid down in Sections 31 and 32 (1) or if the grant of the licence would be contrary to the obligations arising from an international agreement which the Czech Republic is bound by and which has been published in the Collection of Laws or in the Collection of International Contracts. Under Article 25 of Act No. 231 / 2001 Coll., as amended, any person who fulfils the statutory conditions may be granted a licence to operate digital terrestrial television broadcasting. Persons who lost their compensation licences in connection with the completion of the switchover to digital terrestrial television were then obliged to submit an application for new licences to operate television broadcasting in accordance with § 25 of Act No 231 / 2001 Coll., as amended, which are no longer linked in any way to the original expired compensation licences. Therefore, none of the terrestrial digital broadcasters is currently subject to the rights and obligations under Article IV (3), (5) and (6) of Act 304 / 2007 Coll.
30. According to the Council's opinion, it should therefore be noted that the provisions of Article IV (3), (5) and (6) of Act No 304 / 2007 Coll., which the Supreme Administrative Court proposes to abolish, are no longer applicable at the moment, since their scope was limited by the nature of the case to the period until the completion of the process of switching the terrestrial analogue to digital terrestrial television. Compensation licences granted under them by law expired on 11 November 2011. The provisions in question no longer imply to digital broadcasters, nor can they derive from the nature of the case, any rights and obligations. It is therefore a provision of obsolescence and its abolition would have no legal effect in the future.
31. The Constitutional Court first examined, in accordance with Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., whether the law in respect of which the appellant objects to the unconstitutionality of its provisions was adopted and issued within the limits of the Constitution established competence and by the constitutional procedure.
32. From the observations of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic, as well as from the relevant parliamentary press and voting data, he found that the contested Act No. 304 / 2007 Coll., amending certain laws in connection with the completion of the transition of the terrestrial analogue television to terrestrial digital television, was adopted in compliance with the provisions of Article 39 (1) and (2) of the Constitution, duly signed by the relevant constitutional authorities and declared in the Collection of Acts; It was therefore issued by the Constitution in the prescribed manner and within the limits of the Constitution provided for in the competence.
33. On 21. 8. 2012 a further motion by the Supreme Administrative Court to repeal Article IV (3) of Act No. 304 / 2007 Coll. In view of the fact that the Constitutional Court in the present case is in part identical (Article IV (3), (5) and (6) of Act No. 304 / 2007 Coll.), the draft was subsequently put in place, which was introduced under sp. zn. Pl. ÚS 22 / 12 (resolution sp. zn. Pl. ÚS 22 / 12 of 9. 10. 2012, available at http: / / nalus.ujud.cz), on the annulment of that legal provision (Article IV (3) of Act No. 304 / 2007 Coll.) for the litispendence of 9. 10. 2012 as inadmissible (§ 35 (2 of the Law on the Constitutional Court) by the Constitutional Court under Article 43 (2) (b) of Law No 182 / 1993 Coll. Although the authorised appellant has another right to take part in the proceedings as an intervener (Paragraph 35 (2) of the Law on the Constitutional Court), since it is the same appellant, that provision cannot be applied. It is also not possible to comply with the proposal for bringing together the cases contained in the subsequent application. Nor can the proposal in question be understood to be an addition to the argument already set out in detail above, as it is also materially the almost identical reasoning already contained in the original proposal.
34. In the view of the Constitutional Court, it is also necessary, in the light of any assessment of the applicant's active legitimacy, to respond to the conclusion contained indirectly in Parliament's observations and expressly in the opinion of the Broadcasting Council, namely that the contested provisions no longer give rise to rights or obligations for the parties to the proceedings or digital television broadcasters, and therefore the provisions of the obsoleční and their abolition would have no legal effect in the future. This is because the provisions of Article IV (3), (5) and the sentences of the second and last paragraphs of point 6 of Act 304 / 2007 Coll., which the Supreme Administrative Court proposes to abolish, are no longer applicable at the moment, since their scope was limited by the nature of the case to the period until the completion of the process of transition of the terrestrial analogue to terrestrial digital television broadcasting and the compensatory licences granted under the Act expired on 11 November 2011.
35. The Constitutional Court finds that the contested transitional provisions of Act No. 304 / 2007 Coll. it has actually fulfilled its legislative purpose and the situation for which it was intended cannot therefore occur objectively in the future. However, from a legal point of view, they remain part of the law in force, since there was no formal depreciation (cf.
36. The objective of the so-called specific regulatory control under Article 95 (2) The Constitution is a judicial check on the constitutionality of the law or its individual provision to be used by the General Court in the hearing and decision of a particular case. This also determines the scope of the General Court for the procedure laid down in Article 95 (2) of the Constitution, which is limited only to the relevant substantive and procedural law in the present case; In contrast to the abstract control of constitutionality, the specific control is carried out in a relatively narrow framework of judicial decision-making, into which the Constitutional Court can only enter under relatively strictly defined conditions. The procedural condition of the active legitimacy of the General Court pursuant to § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, is therefore such a relationship between the Law and, where appropriate, its individual provision, the abolition of which is proposed, with regard to the subject matter of the tribal proceedings which gives rise to a decision on the part of the General Court.
37. It follows from the above narrative part of the finding that the substance of the case under examination is so closely linked to the legal provisions contested, that the appellant was authorised to proceed under the provision cited in the Constitution; that is because it will have to apply the provisions in question in the proceedings. Although the contested provisions for futuro obsoleční, they are still applicable in some cases; the general court has, in accordance with the Constitution, referred to the Constitutional Court, which is only called upon to make a binding assessment as to whether the provisions in question still in force are in accordance with the constitutional order of the Czech Republic. In this context, therefore, the Constitutional Court's obligation to assess and decide the issue of their constitutionality is also given.
38. For the sake of completeness, the Constitutional Court - in a broader context - adds that, in the context of a specific check on constitutionality, it is also entitled to review, under certain circumstances, a law that is no longer valid, but - in relation to the time that the particular matter is concerned - still applicable. On the interpretation of this situation, the Constitutional Court stated, in particular, in the judgment in Case C-38 / 06 ÚS 38 / 06 of 6.2.2007 (N 23 / 44 SbNU 279; 84 / 2007 Coll.), in which it summarised in detail all its relevant case-law relating to the matter. The Constitutional Court, in a somewhat simplified manner, concludes that, in the absence of explicit intertemporal provisions, that is to say, in a situation where the legislator is silent as to whether the claim under the previous regulation is maintained and the applicability of the new regulation, it is necessary to adopt an interpretation which saves the meaning and substance of the fundamental law, in the present case the right to legitimate expectations. If the General Court, which has referred to the Constitutional Court pursuant to Article 95 (2) of the Constitution, is to apply the law in its version before its amendment, it is thus permitted that the Constitutional Court may decide on the case by an academic, declaratory, statement stating the unconstitutionality of the legislation already repealed.
39. Following those findings, the Constitutional Court was therefore able to deal with the proposal in substance.
40. For the sake of clarity, it is appropriate to repeat the text of the contested legal provisions, for which the Constitutional Court has examined their compliance with the constitutional order of the Czech Republic as part of the so-called specific control of constitutionality.
41. The transitional provisions of Article IV (3), (5) and the sentences of the second and last paragraphs of Article IV (6) of Act No 304 / 2007 Coll., which the applicant requests to abolish, are as follows:
3. The licence procedure for the operation of terrestrial digital television broadcasting by means of transmitters initiated and definitively completed by the date of entry into force of this Act shall be terminated by the Broadcasting Council (hereinafter referred to as the Council).
5. The compensation licence shall also be granted by the Council to a person upon request,
(a) which, before the date of entry into force of this Act, has been granted a licence for universal terrestrial digital television by a Council decision against which an action has been brought; and
b) which meets the conditions laid down in § 13 (3) of Act No 231 / 2001 Coll.
6.... Only the applicant shall be a party to the infringement proceedings.... The Council decision granting the compensatory licence referred to in point 5 shall contain the licensing conditions for broadcasting identical to those laid down in the decision granting the licence for the terrestrial digital terrestrial television broadcasting against which the action has been brought; the programme shall be placed in the same electronic communications network unless the holder of the compensation licence agrees with the undertakings providing the electronic communications network otherwise.
42. The Constitutional Court found the motion unfounded.
43. Summarize, once again, the substance of the proposal, the appellant, referring to the alleged non-compliance of the contested provisions with Articles 1, 2 (1) and 2 (3), 81 and 90 of the Constitution, as well as Article 36 (2) of the Charter, called for the annulment of part of the transitional provisions (amendment) of Act 304 / 2007 Coll. (Note: the transitional provisions are of separate importance and are not amending provisions), since it is (in particular) of the view that the legislator had infringed the principle of division of powers in the State and its own acts entered into the sphere of jurisdiction reserved; This is because the law was adopted about a year and a half after the Broadcasting Council's decisions to grant licences were contested by administrative actions and half a year after the City Court of Prague annulled the contested decisions and returned the cases to the Council for further proceedings. However, before the Council fulfilled the obligation imposed by the Court, the legislature imposed on it in Article IV of the Act cited in order to suspend the licensing procedure for the operation of terrestrial digital television broadcasting, which had been initiated and which had not been completed by the date of entry into force of the Act. At the same time, the legislator has ordered the Council to grant a compensatory licence in proceedings with a single party to whom it has previously been granted in such a closed procedure if it so requests. The legislator therefore - in the appellant's view - made the judicial review already taken place - in order to address the specific situation on the digital broadcasting market - unnecessary, since the suspensive effect of the actions had become inconvenient to him and he did not even hide his intention (see the explanatory note). According to the appellant, otherwise formally impeccable legal standards contained in the contested provisions do not meet one of the material characteristics of the legislation, which is general, since they are aimed at resolving a particular situation, namely the reorganisation of media market conditions, regardless of the opinion of the judiciary. This intervention by the legislature in the area of jurisdiction cannot, according to the appellant, be remedied even by the fact that the pending legal proceedings in the proceedings against the original licensing decisions can take place further, since even the possible annulment of the Council's decisions in those proceedings will have no meaning for successful applicants; In fact, the Council will not be able to continue the licence procedure which was terminated pursuant to Article IV (3) of Law No 304 / 2007 Coll.. In this procedure, the legislator also sees an infringement of the subjective right of access to the court with reference to Article 36 (2) of the Charter, which allows the person who, according to his claim, has been reduced to his rights by a decision of the public authority to refer the court to the application for review of the legality of the decision; By adopting Act No 304 / 2007 Coll., unsuccessful applicants for digital broadcasting licences were withdrawn from the possibility of having administrative decisions examined in court proceedings.
44. The Constitutional Court states that if the case were to be considered strictly categorically in an "ideal world ', in the proverbial ivory tower, the appellant should be correct in his argument, but the Constitutional Court must also take into account the wider circumstances of the case and its nature (all the more so because it is a concrete control of the standards) and take into account, inter alia, legislative developments as well as the regulation of the issues at present. It could not ignore the serious reasons for which the legislature took action which is the substance of the contested legislation. These reasons are set out in detail in the above observations of the parties and are reflected in the statement of reasons for the contested law.
45. Legislative developments were as follows:
46. By the contested provisions of Act No. 304 / 2007 Coll., effective as of 1 January 2008, the Radio and Television Broadcasting Council was ordered to grant the so-called compensation licence to a person who had already been granted a licence for terrestrial digital broadcasting on a full scale before the date of entry into force of the Act by a decision of the Council against which the (administrative) action was brought (unsuccessful licence applicants); only that applicant was involved in the new infringement proceedings. The fact was that the actions of unsuccessful licence applicants were given suspensory effect. As stated in the explanatory memorandum to the contested law, the failure to launch the broadcast was "caused by the suspensive effect of the action brought by the law, which is an exception to the rule that a final decision by the administrative authorities can be implemented. Persons who, by decision of the Council in the main proceedings, have been granted a proper licence for digital terrestrial broadcasting have, in good faith, acquired from this decision the legality of that decision (see the principle of presumption of the accuracy of public acts) a public subjective right to the pursuit of television broadcasting, on which nothing has changed the legal effect of the administrative action, which merely means that the rights deriving from this decision cannot be exercised; However, those rights de jure exist until such time as the decision is annulled by a court. Any revocation of such a decision by a court would give those persons property damage, the compensation of which could be claimed by the State whose institution the Council is. '
47. The contested legislation therefore guarantees the possibility for the licensee to operate on the basis of a digital television compensation licence from the date of application of the Act until the date of completion of the transfer of analogue terrestrial television to digital television, regardless of the outcome of the legal proceedings. This extraordinary procedure, according to the explanatory memorandum, "was justified by the exceptional public interest in unblocking the situation on the media market, starting digital television, as the European Union recommends, and creating a competitive environment in this area. This can be considered to be a clearly worded public interest, which can be measured with the need to respect the independence of judicial decisions, which will not be distorted, as the pending legal proceedings will continue unhindered."
48. The so-called compensatory licences were valid for a limited period of time until the analogue signal was switched off before the switch-over to digital television. As stated in its opinion, inter alia, by the Broadcasting Council, Article IV (1) of the Transitional Provisions of Act No. 302 / 2011 Coll., amending Act No. 483 / 1991 Coll., on Czech Television, as amended, and certain other laws, it was stipulated that 11 November 2011 was to be considered as the date of completion of the transition of terrestrial analogue television to terrestrial digital television broadcasting in the Czech Republic. On that date also the compensation licences granted under Article IV (5) of Act 304 / 2007 Coll. The current legislation no longer contains a joint licence procedure with several participants as regards the granting of a licence for the operation of digital terrestrial television broadcasting. The procedure for granting this type of licence is governed by Section 25 of Act No. 231 / 2001 Coll., as amended, which provides, inter alia, that only the licence applicant is a party to the proceedings. The Council shall not grant a licence for the operation of digital terrestrial television only if the applicant does not comply with the conditions laid down in Paragraph 13 (3) or if the proposed programme composition does not comply with the requirements laid down in Sections 31 and 32 (1) or if the grant of the licence would be contrary to the obligations arising from an international agreement which the Czech Republic is bound by and which has been published in the Collection of Laws or in the Collection of International Contracts. Under Article 25 of Act No. 231 / 2001 Coll., as amended, any person who fulfils the statutory conditions may be granted a licence to operate digital terrestrial television broadcasting. Even those who lost their compensation licences in connection with the completion of the switchover to digital terrestrial broadcasting were then obliged to submit an application for new licences to operate television broadcasting in proceedings under Section 25 of Act No. 231 / 2001 Coll., as amended, which were no longer in any way linked to the original expired compensation licences.
49. First of all, the Constitutional Court considers as one of the central constitutional problems of the case under examination the issue of the possible unacceptable inequality, which could consist in the unjustified advantage of the holders of the so-called compensatory licence, namely the successful applicants for a licence for a universal digital broadcasting terrestrial television, compared to the unsuccessful applicants for that licence, who have brought an administrative action against the Council's decision to grant that licence.
50. When understanding the constitutional principle of equality, the Constitutional Court identified in particular [in particular the findings in the cases referred to in sp. zn. Pl. ÚS 16 / 93 of 24.5.1994 (N 25 / 1 SbNU 189; 131 / 1994 Sb.), sp. zn. Pl. ÚS 36 / 93 of 17.5.1994 (N 24 / 1 SbNU 175; 132 / 1994 Sb.), sp. zl. ÚS 5 / 95 of 8.11.1995 (N 74 / 4 SbNU 205; 6 / 1996 Sb.), sp. Pl. ÚS 9 / 95 of 28.2.1996 (N 16 / 5 SbNU 107; 107 / 1996 Sb.)] with a conclusion, as already expressed by the Constitutional Court of the Czech and Slovak Federal Republic [Constitutional Court]. But even here, they can't go any further... If the law determines the benefit of one group and thereby imposes disproportionate obligations on another, it may do so only by referring to public values. 'Thus, the Constitutional Court rejected the absolute understanding of the principle of equality, stating that "equality of citizens cannot be understood as an abstract category, but as a relative equality, as all modern institutions mean it' (the finding of the Pol. The content of the principle of equality has thus shifted into the area of constitutional acceptance of the aspects of the distinction between entities and law. The first aspect is seen in the exclusion of libel [cf. sp. zn. Pl. ÚS 12 / 02 of 19.2.2003 (N 20 / 29 CollNU 167; 83 / 2003 Coll.)]. The second point is based on the legal opinion expressed in the judgment of 7.6.1995 in the case under point Pl ÚS 4 / 95 (N 29 / 3 SbNU 209; 168 / 1995 Coll.):" inequality in social relations, if it is to affect fundamental human rights, must achieve an intensity, doubting, at least in a certain way, the very essence of equality. This is usually the case when an infringement of another fundamental right, such as the right to own property pursuant to Article 11 of the Charter, one of the political rights referred to in Article 17 et seq. of the Charter... etc. '[the finding sp. zn. The second point of view in assessing the unconstitutionality of a law establishing inequality is the fundamental concern of one of the fundamental rights and freedoms. The Constitutional Court thus interprets in its caselaw the constitutional principle of equality in terms of both accessorial and non-accessorial equality.
51. In the present case, however, these aspects - as in the case under Sp. Zn. Pl. ÚS 12 / 02 [the transformation of the Czech Railways State Organisation into a public limited company, see the finding of sp. zn. Pl. ÚS 12 / 02 of 19.2.2003 (N 20 / 29 SbNU 167; 83 / 2003 Coll.); p. 167, 189 et seq.] - were necessary to draw on the assessment of the law which regulates a unique case of its kind, which therefore also deviates from one of the fundamental material terms of the law which is universality. In the above mentioned finding, the Constitutional Court stated in particular: "The arguments in favour of the universality of the law are as follows: the division of power, equality and the right to an independent judge. What assumptions can, however, be formulated for exceptions, under which assumptions it would be possible to consider the constitutionality or the unconstitutional nature of a law governing a unique (i.e. a specific) case? Under what conditions can it be concluded that the law on a unique case constitutes a breach of the principle of equality? The first point of view to be tested is the criterion of assessing the constitutionality of a state based on non-accesoric inequality: but the principle of equality does not offer any real limitations to the laws relating to a unique case, because it allows something unique and exceptional to be treated in accordance with its specificity. The question, however, is whether there really is such a special nature in this case that the general arrangements seem arbitrary and the regulation is proportionate for a unique case. To the extent that the law on a unique case is the expression of ratia - not just voluntas - it is integrated into the organised structure of the rule of law. '(H. Schneider, Gesetzgebung. 2. Auflage, Heidelberg 1991, p. 31). If the adoption of a law on a unique case is not an expression of voluntas, there must therefore be rational arguments for them. It is not part of the power of the Constitutional Court to assess the degree of this rationality. The second aspect is the criterion for assessing the constitutionality of the status based on the Accesoric inequality; that is the inadmissibility of the inequality resulting in fundamental constitutional rights and freedoms. A particular argument against the laws on unique cases is the principle of division of power, i.e. the separation of legislative, executive and judicial powers in a democratic rule of law:" The adoption of laws on unique cases is the most hindered by the area of application of law. The right to legal judge and the independence of legal protection are also excluded by the legislature in areas which are not protected by the principle of nulla poena sine, (where the lex can only be a general and written legal sentence in a meaningful way).' (there, p. 32). The amount to be reported in column 060 of this row: Original deduction according to Article 36 (1) (b) of CRR Section 9 of the US Constitution also stated in this context: "No law may be passed containing a judgment of a court '.'
52. Also international human rights instruments [cf. sp. zn. Pl. ÚS 17 / 11 of 15.5.2012 (published under No. 220 / 2012 Coll.; all the case-law of the Constitutional Court is available in the electronic database at http: / / nalus.ujud.cz)] and many decisions of the international supervisory authorities are based on the fact that not every unequal treatment of different entities can be qualified as a breach of the principle of equality, i.e. as unlawful discrimination against one entity compared to another. In order for a breach to occur, several conditions must be met: different entities in the same or comparable situation are treated differently without objective and reasonable grounds for different approaches being applied. Therefore, certain legal arrangements which favour one group or category of persons over another cannot, in itself, be regarded as a breach of the principle of equality without further action. The legislature has some scope to consider whether such preferential treatment will anchor. It must ensure that the favourable approach is based on objective and reasonable grounds (legitimate objective of the legislator) and that there is a relationship of proportionality between that objective and the means of achieving it (legal advantage) (see, for example, the judgments of the European Court of Human Rights in Abdulaziz, Cabales and Balkandali, 1985, § 72; Lithgow of 1986, § 177 and Inze of 1987, § 41).
53. The question of retroactivity (false) should also be considered in the present case. Here, the Constitutional Court recalls its conclusions contained in the finding in sp. zn. Pl. ÚS 21 / 96 of 4.2. 1997 (N 13 / 7 SbNU 87; 63 / 1997 Coll.), according to which the abolition of the old legislation and the adoption of the new legislation are necessarily linked to interference with the principles of equality and protection of citizens' trust in law; it takes place as a result of the protection of another public interest or fundamental right or freedom. However, the legislature's decision on how to resolve the time conflict of old and new legislation is not, from a constitutional point of view, random or arbitrarily, but a matter of consideration in the conflict of constitutional principles. Therefore, the conclusion on the type of legislative solution for the time conflict of laws should lead to an assessment of that conflict of values by the aspect of proportionality with regard to intertemporal. Promotionality can be characterised by the fact that a higher degree of public interest or the protection of fundamental human rights and freedoms justifies a higher degree of intervention in the principles of equality and the protection of citizens' confidence in the law by new legal regulations. In so doing, the restriction of the fundamental right must, within the meaning of Article 4 (4) of the Charter, examine its substance and meaning. Thus, not only the degree of difference between old and new legislation, but also other factors, such as the social urgency of introducing the legislation subsequently adopted, plays a role in assessing the legislative solution for that time conflict. As stated by the Constitutional Court in the judgment of 15 May 2012 in sp. zn. Pl. ÚS 17 / 11 (paragraph 58), the limits on the constitutional admissibility of false retroactivity are exceeded only if the statutory false retroactivity would be inappropriate or unnecessary to achieve the purpose of the law or if the permanent interests of the persons concerned outweigh the legislative reasons for legislative changes. The general expectation that the right in force will remain unchanged is not constitutionally protected.
54. In the light of the above-mentioned fundamental principles and the conclusions previously adopted by the Constitutional Court, it was therefore assessed in the present case whether the contested legislation was an unjustified expression of legislative will and whether it was a legitimate pursuit of a well-founded preferential approach and not an unconstitutional distinction between the parties concerned, which would not be based on objective and reasonable grounds and considerations.
55. In the context of a democratic rule of law, the legislator is not sovereign and cannot proceed arbitrarily, but must have a significant and rational reason for its action; This is also related to the notion of a so-called rational legislator, which, by nature of the matter, has the possibility of reconsidering - in the light of developments in the situation - the substance of the legislation already adopted in compliance with the conditions of constitutionally acceptable false retroactivity. Nor can it - of course - be concluded that the legislator should never change the law if legal proceedings have already been initiated on the basis of it. Law-making is primarily the responsibility of the legislator, and even the constitutional principle of division cannot be absolute. However, it must be pointed out once again that, if there is no need to respect the legislator's will to take the measures which he has chosen, it is also necessary to insist that the legitimate legal purpose pursued by rational means be met, while excluding insolence.
56. In the view of the Constitutional Court, taking into account the specific circumstances of the case described above, the proposed constitutional limits - including in relation to the issue of false retroactivity described above - may be considered to be not exceeded and the justification for the special arrangements for the creation of so-called compensatory licences, as contained in the cited explanatory report on the draft law, as well as in the observations of the parties and the opinion of the Broadcasting Council.
57. Although in the case under examination there has been a very irregular change in the rules "during the game," according to the Constitutional Court, it is impossible to overlook what was at stake. In fact, there was a very specific situation where the legislator found himself in a time strain or trap of his previous solution adopted; was guided by the need to adopt a new solution urgently, including with regard to the commitments undertaken by the State at European level. As quoted in the Senate's comments from the rapporteur of the Senate's Standing Commission on Media (cf. above): "the bill was dealt with by an almost insoluble intertwine, the Gordian knot, which occurred after essentially collapsed the selection procedure of the Broadcasting Council for the granting of digital broadcasting licences. In order not to completely stop this process, a solution had to be found and, of course, the solution could not be ideal.... In short, there is a European agreement that the analogue broadcast will be switched off at a certain date, and the Czech Republic, of course, must solve this problem if it is in the dark and in the quiet." While the Constitutional Court itself does not believe that there is necessarily a need for "television darkness and silence," as is apparent from this somewhat suggestive expression, but - at least - the danger of very unpleasant and complicated consequences undoubtedly existed here. Therefore, in the view of the Constitutional Court, it can be accepted that there was a strong public interest in the case at hand in the proper launch of digital television broadcasting, which prevailed in conflict with the interests of the unsuccessful licence applicants who initiated legal proceedings.
58. It was also necessary to consider - by nature of the case - the interests of a limited number of licence applicants versus the majority of the population on television, as well as the question of the legitimate expectation of successful licence applicants that they could actually start broadcasting. In principle, unsuccessful licence applicants did not lose the possibility of a court settlement, although they cannot, of course, obtain the cancellation of the licence already granted, since the legislation in question has already been consumed; concerned only the time to complete the transition from analogue to digital television. It would be another matter if the contested law applied to a large number of potential applicants; However, as has already been said above, the nature of the case was a relatively narrow number of subjects (who can be broadcast), and in contrast there was a clear public interest in broadcasting. The legislator decided, in a simple way, to favour successful licensees under the pressure of objectively viewed situations. The original licence procedures were terminated, but the case was not legally brought into force.
59. For these reasons, the Constitutional Court does not consider the legislature's action by arbitrary and contested provisions to be legitimate. From this point of view, the resources chosen to achieve this aim seem reasonable and proportionate. The legislative procedure under examination can therefore be regarded as constitutionally consistent. However, the Constitutional Court admits that the matter is very borderline and, in other circumstances, a similar solution could already exceed the constitutional threshold. It is in the light of the specific circumstances set out above that the Constitutional Court also did not measure the legislation in question by a detailed and strictly strict three-stage test of the principle of proportionality, which, inter alia, presupposes that if the legislator of the purpose pursued can achieve alternative standards, the constitutional conformance of the one which limits the constitutionally protected value to the minimum. The Constitutional Court does not intend to lecture the legislature, acting, inter alia, under time pressure, on possible, theoretically more appropriate options for resolving the situation.
60. For the sake of completeness, it should be noted that the appellant's reference to the findings in sp. zn. The constitutional problem of the laws under review in those cases was that, directly in the words of the law, the development of a specific waterway or the construction of a runway was described as a public interest; In the present case, the contested law was not so formulated (cf. above) and in particular the circumstances leading to its adoption were different.
61. Thus, in that procedure, the legislator responding to the current situation, which culminated in the adoption of the contested legislative provisions, cannot, in the view of the Constitutional Court, be found to be elements of an unjustified libel and can be regarded as legitimate and implemented in a manner appropriate to its purpose.
62. Therefore, the Constitutional Court rejected the proposal, as is clear from both the statement and the justification for the finding.
63. The Constitutional Court considered that there was no need to order oral proceedings in order to clarify the case and therefore, with the consent of the parties, it waived it within the meaning of Paragraph 44 (2) of the Constitutional Court Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no. 444 / 2012 Coll., on the application for annulment of Article IV (3), (5) and the sentences of the second and last paragraphs of Article 6 of Act No 304 / 2007 Coll., amending certain laws in connection with the completion of the transition of analogue terrestrial television to digital broadcasting |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 13.12.2012 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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