The Constitutional Court found No 51 / 2019 Coll.
The Constitutional Court found of 18 December 2018 sp. zn.
Valid
The Constitutional Tribunal found
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51
FIND
The Constitutional Court
On behalf of the Republic
On 18 December 2018, the Constitutional Court decided under sp. zn. JUDr. Zdeněk Koudelkou, Ph.D., a lawyer, with the registered office of Optatova 874 / 46, Brno, on the abolition of § 11 paragraph 2, part § 11 paragraph 3, expressed in the words "other" and "other than the operator referred to in paragraph 2," followed by Article 17 paragraph 2 (j) and part § 17f (c), expressed in the words "or (j)" of Act No. 110 / 1997 Coll., on Food and Tobacco Products and on the amendment and addition of certain related laws, as amended by Act No. 180 / 2016 Coll., with the participation of the Chamber of the Parliament of the Czech Republic Parliament and the Senate as parties to proceedings and the Government of the Czech Republic as an intervener,
as follows:
Motion denied.
Reasons
Subject matter of procedure and text of draft contested provisions of Act No. 110 / 1997 Coll., on Food and Tobacco Products and amending and supplementing certain related laws, as amended
1. The Group of 25 Senators and Senators of the Senate of the Parliament of the Czech Republic (hereinafter referred to as "the draftsman") proposes that the Constitutional Court in Act No. 110 / 1997 Coll., on Food and Tobacco Products and on the amendment and addition of certain related laws, as amended by Act No. 180 / 2016 Coll., should repeal § 11 (2), part § 11 (3), expressed in the words "other" and "other than the operator referred to in paragraph 2", § 17 (2) (j) and § 17f (c) expressed in the words "or (j)." The appellant notes that the above provisions of Act No. 110 / 1997 Coll., on Food and Tobacco Products and amending and supplementing certain related acts, as amended, (hereinafter referred to as "the Food Act ') impose an obligation on food business operators with a sales area of more than 400 m2 to provide specified foods in them to humanitarian or charitable organisations free of charge, with a penalty of up to CZK 10 000 000 for failure to comply with this obligation. In its view, these provisions conflict with Articles 1 and 11 of the Charter of Fundamental Rights and Freedoms (" the Charter') and Article 1 (1) of the Constitution of the Czech Republic ("the Constitution ').
2. Paragraph 11 of the Food Act reads:
(1) The business interests of legal persons which comply with this Act protect the interest association of legal persons named, the Food Chamber of the Czech Republic 'established under a special law.
(2) An operator of a food business which places food on the market at a place with a sales area of more than 400 m2 is obliged to store and assign food which does not comply with the requirements laid down by this law or the directly applicable European Union food requirements regulation but is safe to provide free of charge to a non-profit organisation which collects food free of charge, stores and allocates it to humanitarian or charitable organisations which provide food assistance to social services clients; These organisations shall be designated by the Ministry by an ex officio decision. Foods intended for social services clients must subsequently be marketed only free of charge.
(3) Foods placed on the market by a food business operator other than that referred to in paragraph 2 which do not comply with the requirements laid down by this law or the directly applicable European Union food requirements regulation but are safe may be provided free of charge to a non-profit organisation which collects food free of charge, stores and assigns it to humanitarian or charitable organisations which provide food assistance to social services clients; These organisations shall be designated by the Ministry by an ex officio decision. Foods intended for social services clients must subsequently be marketed only free of charge.
(4) When placing on the market the foodstuffs referred to in paragraphs 2 and 3 shall be:
(a) the notification obligation referred to in Article 3 (1) (i) is fulfilled;
(b) ensure traceability of the food pursuant to Article 18 of Regulation (EC) No 178 / 2002 of the European Parliament and of the Council; and
(c) accompanied by a dossier containing the name of the food, the quantity of the food, the information referred to in Article 9 (1) (c) of Regulation (EU) No 1169 / 2011 of the European Parliament and of the Council, the purpose of the use of the food and the information on which the food does not comply with the requirements of this law or the directly applicable European Union food law; the information referred to in point (c) of Article 9 (1) of Regulation (EU) No 1169 / 2011 of the European Parliament and of the Council must also be provided to the social services client in an understandable manner. ';
3. The contested part of § 17 (2) (j) of the Food Act is:
"The food business operator will continue to commit an offence by...
(j) in contravention of Article 11 (2), it shall not provide the non-profit-making organisation of a food which does not comply with the requirements laid down by this law or the directly applicable European Union food requirements regulation but is safe. ';
4. Attacked, i.e. highlighted part of the provisions of Section 17f of the Food Act is:
"A penalty may be imposed for an offence until...
(c) 10 000 000 CZK, if the offence referred to in § 17 (1) (a), (b), (d), (e), (j), (m), (n), (o), (r), (v) or (w), § 17 (2) (c), (h), (i), (j), (j), (6), (c), (d), (e), (f), (g), (h), (2) (a), (b), (e), (g), (h), (i), (j), (k), (l) or (m), § 17c (4) or (6), § 17d (b) or (e) '.
For the sake of completeness, "food business' is added to point 2 of Article 3 of Regulation (EC) No 178 / 2002 of the European Parliament and of the Council of 28.1.2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (hereinafter referred to as the" EU Food Law Regulation ') means a "public or private undertaking, a profitable or non-profit undertaking engaged in any stage of food production, processing and distribution'.
5. With explicit reference to Article 11 (2) (meaning perhaps Article 11 (1), second sentence), the appellant argues that no one can be forced - except in cases generally recognised in constitutional standards - to dispose of their property, since it is part of ownership law to hold and dispose of the property. The contested provisions interfere with this component of property rights by forcing owners to "dispose of certain things free of charge, for the benefit of someone." Charity (meaning apparently charity activity, so it is also necessary to understand the other part of the author's argument) is voluntary, which makes it different from top taxes. In addition, charitable organisations (probably the author means charitable organisations in general) can carry out their activities not only for the benefit of social services clients, but there may be more positive activities, such as the provision of food to zoos or associations caring for abandoned animals. The contested provisions impose an obligation to participate in charity, but according to the appellant, if the State "wants to give someone something free of charge, it can do so, but not by ordering someone else to do something, but by buying, paying and then donating these things to others." It can only be accepted that humanitarian and charitable organisations should be favoured in the form of a "paragraph 3 of the contested law '(note: it appears that Paragraph 11 (3)), but the provision of food is not a constitutional conformance as a legal obligation" only for someone'. The forced free transfer of a part of the property to other private persons is, in its view, "a method of constitutionally impossible '. It therefore proposes, in Article 11 of the Food Act, to abolish paragraph 2 and, at the same time, that part of the provisions of paragraph 3 which relate to paragraph 2 and constitute a functional whole, as well as the related penalty provisions referred to in the heading.
6. In the context of this, the appellant argues that the contested provisions introduce a so-called "contractual direct '- an obligation to conclude a donation agreement with designated persons. This is possible in law and the State introduces it if it wants to ensure a certain obligation (e.g. compulsory insurance), but until now, in this (private) relationship, there was a right to consideration on the part of the person who had an obligation to conclude the contract (e.g. in the form of reimbursement of costs in the event of an insurance event). However, the contested provisions introduce a gift obligation. According to the appellant, this is very dangerous for the rule of law, as the State effectively expropriates without compensation. In the past, the donation ceasefire was linked to the worst state regimes - the German Nazi state made the permit to evict rich Jews by forced donation or sale of their assets to the State or Aryan people, at a time of communist totalitarianism, the transfer of privately owned agricultural property, to which the local national committee's approval was required, was bound to conclude a donation agreement on agricultural land or to transfer them to a agricultural cooperative. In doing so, these schemes did not enact these procedures, but only actually applied them. In the Food Act, the state bypasses the expropriation for compensation, which cannot be justified by any good intention. Moreover, there is no legal solution to the liability for damage caused by the consumption of such foodstuffs by specific persons to their health, as the law does not address when, due to the transfer and subsequent handling of charities and humanitarian organisations, such safe food originally lost its safety. Neither is the cost of food transport from entrepreneurs to these organisations.
7. Furthermore, the appellant argued that the contested provisions were not inferior to one of the constitutional areas of ownership obligations in Article 11 (3) of the Charter, moreover, the ownership obligation is linked to the obligation to act or refrain from doing something, but it cannot be an obligation to dispose of ownership free of charge. In that case, it is not about ownership obligations but about expropriation. The State admits the possibility of expropriation, but always in the public interest. Setting the obligation to hand over food to someone free of charge is a de facto expropriation, because these are part of the property (wealth) of the entrepreneur. In this case, the constitutional condition of the refund is not met, even in a flat-rate form. This is about goods with tax obligations.
8. The appellant also recalled that the expropriation is only possible under Article 11 (4) of the Charter in the public interest, which is the difference from the ownership obligation under Article 11 (3) of the Charter, which is also established against the general interest. This is wider than public interest, with the presence of a public element of that interest which distinguishes them. This element must be in the area of public authority and be embodied in the existence of a public body to which this interest is linked or which determines it or always determines what is in the public interest on the basis of specific conditions by its individual legal act and not by law. The fight against poverty can be carried out in the general interest by "charitable entities" as private persons, but it is not a public interest with the possibility of expropriating others. This fight may be conducted through the collection of taxes by the State or by another public body. If the expropriation is understood as an individual legal act revisable by the Court but the contested provisions expropriate the property directly, judicial review shall be prohibited and the right to judicial protection under Article 36 (2) of the Charter [see the findings of the Constitutional Court of 28.6.2005 sp. zn.
9. With reference to Article 1 (1) of the Constitution and Articles 1 and 11 (5) of the Charter, the appellant stated that if the State orders someone to transfer part of the property free of charge, it is in fact in kind tax, the recipient being not the public budget of the State or other public bodies, but the income of private bodies. This avoids the distinction between public and private. If the State wants to support social services clients, it can also introduce in-kind tax, but it must be the recipient and directly redistribute it, a private body cannot do so. If the contested provisions create a new tax obligation, the collection of that tax by private entities takes place outside the procedure provided for by Act No 280 / 2009 Coll., the Tax Code, as amended, which results in inconstitutionality, as it is not sufficient to establish the obligation in question, but the procedural rights and the position of the taxes on the persons liable for the levy should be adjusted when collecting the tax. Taxes must also not be arbitrary and discriminatory. The contested provisions are "a de facto tax confiscation for only someone (large food businesses operating shops) for the benefit of someone." If the State finds that such aid is necessary (as part of a public policy worthy of public aid), it is to burden all and not just the selected entities with the necessary increase in State revenue. Everyone should be involved in the fight against poverty, and not just a narrow range of compulsory bodies, otherwise the principle of the rule of law and equality in rights is violated. In this context, the appellant argues that social policy is necessary, but the State must organise and pay it, its costs cannot be passed on only to certain private legal entities, as was the case in the case of rent regulation [see, for example, the finding of the Constitutional Court of 20.11.2002 sp. zn. ÚS 8 / 02 (N 142 / 28 CollNU 237; 528 / 2002 Coll.)]. For any state policy the state must do for its money.
Observations of the parties and the intervener
10. The Judge-Rapporteur, pursuant to Article 42 (4) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 77 / 1998 Coll., sent a motion to the parties and addressed the Government of the Czech Republic ("the Government") and the Ombudsman asking whether they would use their right to intervene as interveners.
11. The Government has, on the basis of its Resolution No 653 of 20 July 2016, entered into the current proceedings, approved a proposal to reject the motion in question by a group of Senators, and at the same time imposed on the Minister for Human Rights, Equal Opportunities and Legislation to draw up, in cooperation with the Minister for Agriculture, a detailed statement by the Government (see Sub-Sub-II B).
12. The Ombudsman did not exercise her right (Paragraph 69 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended) and stated that she would not enter the proceedings.
13. Furthermore, in accordance with the procedure laid down in Article 48 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, the Judge-Rapporteur referred to the Association of Trade and Tourism of the Czech Republic, which, pursuant to Article 1 of its Statutes, is a non-political association of legal and natural persons engaged in internal trade and tourism and in the sectors and sectors of the downstream industry which have been associated to protect their economic and social interests. At the same time he also contacted the Czech Federation of Food Banks, respectively, as the association in which the main charitable organizations and food banks operating in the Republic are represented (closer to sub II. C).
Observations of the parties
14. On behalf of the Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as the Chamber of Deputies), its then President Jan Hamáček, who limited himself to a description of the course of the legislative process. In this context, he stated that Act No. 180 / 2016 Coll., amending Act No. 110 / 1997 Coll., on Food and Tobacco Products, and amending and supplementing certain related laws, as amended, and other related laws, was discussed in the Chamber of Deputies as Press No. 687 (Government Proposal) at first reading on 26.1.2016 and was commanded to discuss the Agricultural Committee which discussed it within the prescribed 30-day period on 18.2.2016 and in its resolution (Press No. 687 / 2) recommended to the Chamber of Deputies to approve the proposal in the text of the proposed amendments, but none of which concerned the contested provision. The second reading took place on 1 March 2016 and the amendments were processed as press No 687 / 3, the third reading took place on 23 March 2016 and the proposal was approved as further amendments. In doing so, the Chamber of Deputies gave its assent to the draft law by a constitutional procedure, the law was signed by the relevant constitutional authorities and duly declared.
15. On behalf of the Senate of the Parliament of the Czech Republic (hereinafter referred to as "the Senate"), its then President Milan Štěch, who stated that the contested provisions of the Food Act are the result of amendments made by Act No. 180 / 2016 Coll., amending the Food Act. Act No. 180 / 2016 Coll. was referred by the Chamber of Deputies to the Senate as a draft law on 4 April 2016, the Organising Committee ordered the Senate to approve the draft law, as Senate Press No. 248 (10th term of office) for consideration by the Committee on Economy, Agriculture and Transport, which, by its Resolution No. 191 of 26 April 2016, recommended the Senate plenary to approve it as referred to by the Chamber of Deputies (Senate Press No. 248 / 1). The Senate Senate Press No. 248 discussed at its 23rd meeting in its 10th term of office on 27 April 2016, in which discussions were held in which some Senators expressed doubts about the constitutional conformity of the contested regulation. Senator Jaroslav Kubera stated that it is a manifest violation of the Charter and that it will "undoubtedly be the subject of a constitutional complaint," Senator Veronica Vrecion expressed the view that it is discriminatory, that "[f] the Institute is actively reminiscent of forced expropriation without compensation" and "[z] the measure followed by the proposal, i.e. the free provision of food to the relevant non-profit organisation, in order to ensure that these foods are provided free of charge to social services clients, is undoubtedly in the public interest, but that it should not be enforced by a penalty," which the Senators Milos Vyšl and Jiří Vosecký Vosecký, had a similar view, which required by the major business to be carried out by the bank, etc., and will be penalised, when he said, "we are essentially nationalized," and by Senator Eliška Wagner, "That's not... no donation. Donation must be free will... to donate, to transfer without charge. But if the law dictates it, and it's still under heavy sanctions, that's a duty. And now the question is whether such a duty, so constructed and under such sanctions, will be proportional. Well, not in my eyes. And that is the case for the Constitutional Court." After the debate, in vote 24, the Senate adopted Resolution 421, in which it approved the bill, with 41 of the 61 senators voting against it and 9 senators voting against it.
Government's observations as interveners
16. For the Government which entered the proceedings as an intervener (see Sub 11), the President Bohuslav Sobotka sent observations. In its observations, the Government pointed out that the appellant itself acknowledged that such an obligation could be imposed, but "formally in a different legal manner and procedure ', such as a tax obligation. In her view, this can be agreed by the fact that it is possible to achieve the same effect in several ways, but the procedure chosen is most appropriate, because, in addition to the primary purpose of protecting the weakest, including the protection against the negative effects of hunger, it helps to protect other public interests - in particular the protection of the environment, at the minimum actual burden on the obliged entities. The obligation laid down shall apply only to foodstuffs which do not comply with the requirements laid down in the Food Act or with the directly applicable provisions of the European Union (hereinafter referred to as" EU') governing food requirements. This is the case for food which the food business operator is obliged to remove from the market without delay unless it makes additional and costly adjustments (e.g. repackaging, relabelling). This is therefore the case for goods which cannot be used without further costs, and such exploitation is only possible under the statutory exemption scheme (e.g. Section 10 of the Food Act).
17. According to the Government, the imposition of the obligation is intended to encourage obliged entities to change their behaviour, thereby contributing to reducing food waste, which is intended to have significant positive consequences in improving the life situation of the weakest (in the Czech Republic) or even in protecting them from hunger (in the world), while there is a considerable contribution to the environment. The obligation imposed cannot be seen by the primacy of the situation in the Czech Republic, where the state social system, together with the (irreplaceable) share of the charitable activity of non-governmental non-profit organisations, provides a sufficient "safety net" against the negative effects of hunger. The legislation does not exclude, but, on the contrary, by accentuating the humanitarian dimension, directly promotes the use of food even abroad, if their nature so permits. In this context, the Government referred to Article 11 of the International Covenant on Economic, Social and Cultural Rights, which elaborates Article 25 The Universal Declaration of Human Rights, with the fact that they are part of the legal order of the Czech Republic and that they contain a commitment by the Contracting States to take appropriate steps to ensure the right to "free from hunger." Programmes and measures to prevent unnecessary food waste should be used to fulfil those obligations, and one of these measures is the contested provisions designed to ensure sufficient food needs to provide food aid to humanitarian or charitable organisations to social services clients. The applicant has completely abandoned the international commitment and the real positive effects of the legislation.
18. When it comes to the conditions of the Czech Republic, the government argues that the strengthening of aid to socially needy people is also of considerable importance, particularly in kind, in a directly usable form. The current standard of living for the weakest of people is the highest achieved from the point of view of both historical and geographic, yet some individuals who depend on this form of aid are trapped in the so-called cycle of poverty and have the minimum opportunity to change their position by themselves. Strengthening the system of support will make life easier for the most socially needed and will release part of their capacity to improve their status, which will benefit society as human potential is the state's most important wealth.
19. The two basic reasons for adopting the legislation in question are, in themselves, of an intensity of public interest, not of general interest, as the appellant claims. In addition to the positive effects in the area of social action through the long-term positive impact on reducing food waste, it contributes to environmental protection. In this context, the Government argues that the Food and Agriculture Organization of the United Nations (FAO) data on the worldwide depreciation of more than 1.3 billion tonnes of food per year is a significant part of the sales to end-customers, as well as the results of the first pan-European study on food waste from 2010, according to which 89 million tonnes of food were degraded in the EU countries in the relevant year, i.e. about 180 kg per person, according to the FAO study of 2011, which was 300 kg per person per year. This issue was included in the United Nations Climate Conference in Paris 2015, where food waste has been identified as one of the biggest causes of climate change and CO2 polluters. The quantity of CO2 so overproduced can be compared to the total production of greenhouse gases in the United States or China. The environmental dimension is then accentuated in the laws of France or Belgium, where a similar obligation is laid down in the regulations of the law on environmental protection. Climate and other environmental impacts are repeatedly mentioned by the European Commission. Thus, the contested legislation advocates a more solidarity and responsible society, where even socially weak and disadvantaged people have access to sufficient safe food and where self-destructive consumption is defined, has educational and educational effects, as it draws attention to the problem described and leads to more sustainable food treatment. These effects could then not only be achieved on a voluntary basis, although it is necessary to highly appreciate those who have already been involved in the system and thus fulfil their social responsibility.
20. If the proposal in question is based on a violation of Article 11 of the Charter, according to the Government the property right is not unrivalled, absolute, its protection is contained in the first paragraph, the other four are then devoted to the possibilities of its limitation. In so doing, the appellant includes the contested legislation under the most serious of legitimate interference with property law - expropriation, with the fact that the conditions of Article 11 (4) of the Charter are not fulfilled. The contested obligation is not a restriction of ownership by its intensity comparable to the expropriation, since the object of that obligation is practically unusable, it has only a minimum, rather theoretical value for its owner, and, on the contrary, it constitutes a non-negligible obligation, whether it intends to liquidate it or use it further under the conditions laid down. One way or another of using such food is usually more burdensome for operators.
21. The Government subsequently pointed out that, pursuant to Act No. 252 / 1997 Coll., on Agriculture, as amended, the principles for granting subsidies for the year 2016, which were in the framework of grant title No. 18, were issued by the Government. Support for the activities of food banks and other humanities for 2016 awarded funds of the expected amount of CZK 23 million, i.e. more than 1 year before the contested legislation is effective to help the creation of infrastructure and capacities for the collection and distribution of food. This will lead to a reduction in the costs of the disposal of the food in question by the compulsory bodies.
22. In the view of the Government, the obligation must be subsummed under Article 11 (3) of the Charter, with the restriction of property rights corresponding to this provision, as described in the specialised literature (see Šimáková, K. In: Wagner, E., Šimělek, V., Langášek, T., Pospíšil, I., et al., Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer ČR, a. s., 2012, p. 312, paragraph 43), i.e. it pursues the legitimate objective of helping socially needy persons by facilitating access to safe food by food banks and by reducing food waste also aimed at strengthening environmental protection, especially in the field of greenhouse gases, the proportionality between the limitation of a compulsory entity and the advantage for others is fulfilled, since on the one hand the obligation concerns only food with which additional costs are associated, at least on their proper disposal, on the other hand there is a fundamental positive effect in the field of public interests, and the indirect form of compensation consisting of the saving of the costs of the compulsory waste operators. It is also necessary to take into account the definition of mandatory operators - operators who place food on the market in an establishment with a sales area of more than 400 m2, which has been established so that the activities related to the implementation of the obligation provided for do not constitute a significant administrative burden, while at the same time it is easier to avoid the presence of food covered by Section 11 (2) of the Food Act or the food concerned there being a smaller proportion of all food purchased than for smaller establishments.
23. If the appellant finds inconstitutionality in the impossibility of judicial review of each individual expropriation act, the Government has opposed this argument by arguing that this is not an expropriation and thus such a requirement is impossible. In addition, compliance with this obligation is only enforceable by imposing a fine and not only is any individual decision on it subject to review by the court. Therefore, judicial protection is ensured.
24. In part, the Government agreed with the appellant that the contested obligation may have a negative impact in those cases where the compulsory bodies provide food for other public utility uses, in particular as feed in facilities providing rescue or animal shelters, etc. However, if the compulsory body does not fully fulfil its obligation because it has provided part of the food for reasons of other public interest, the conditions for imposing penalties for such conduct will undoubtedly not be met, as it is not socially harmful.
25. On the contrary, the Government expressed its opposition to the appellant's view that a special tax in kind should have been introduced, as this would have resulted in higher administrative costs for both compulsory bodies and public authorities, and would reduce the possibility of exploiting the potential of NGOs.
26. Therefore, since the contested provisions pursue a legitimate objective and the means to enforce it are rational and proportionate, as they represent only the necessary burden on the obliged entities, the Government proposed that the proposal be rejected.
Asked opinions pursuant to § 48 (1) of the Constitutional Court Act
27. The Association of Trade and Tourism of the Czech Republic and the Czech Federation of Food Banks sent their opinions on the proposal pursuant to Article 48 (1) of the Law on the Constitutional Court, in terms of the possibility of assessing the impact of the contested provisions on the activities of their members and meeting their objectives in their application practice.
28. The Association of Trade and Tourism of the Czech Republic stated that it was in agreement with the proposal to repeal the contested provisions of the Food Act. In addition to the level of protection of ownership or the breach of equality in rights, the measure has a technical level, consisting of guaranteeing the safety of food provided and the logistical mechanism for food transmission, including compliance with good temperatures and hygiene in transport and storage, awareness of humanitarian and charitable organisations' workers about the HACCP system, the economy of operation, as well as the need to ensure sufficient and continuous food collection by recipients throughout the Czech Republic. By not specifying specific aspects, the law raises legitimate concerns for members of the Association of Trade and Tourism of the Czech Republic and, undoubtedly, for other food business operators from the various impacts on their activities, including the risk of very easy sanctions by the government.
29. The Czech Federation of Food Banks, p., has indicated that the contested provisions concern fully-fledged foods which are suitable for human consumption, which are not in accordance with the regulations, e.g. for errors in the description of the composition, possibly for missing text in the Czech language, or have different weight or content than on the packaging, such as foodstuffs with a horse's meat content not declared on the packaging. Such foods must be withdrawn from the sale, while the shop operator may decide whether to return them to the manufacturer or supplier, respectively, or have them disposed of as waste, even if they are safe and could be fed. It is not important whether they are disposed of by retail or by the supplier, the result is the same, it is a waste. Some food businesses have already given food to food banks voluntarily, since the Minister of Agriculture, Marian Jurečka, has made this possible. However, since the chains use this option very little, the Ministry has decided to impose on trade the obligation to donate these foods. The way it happens is that food banks get the right description of the product in Czech, as it should have been put on the packaging. Foodstuffs shall also be transmitted free of charge to the competent organisations which pass them on to the poor with the current familiarity with the food. A food-donating undertaking may benefit from the possibility of not paying value added tax (hereinafter referred to as "VAT ') on donated food, may also apply the value of the gift to deduct from its tax base in the calculation of income tax, both of which are tax advantages to a food donor that would otherwise be thwarted. European food banks, including Czech food banks, which are grouped in the European Food Bank Federation, respect the principle of combating hunger and food waste in their Charter of European Food Banks. It is in the interests of food banks and linked charitable and humanitarian organisations that safe food suitable for human consumption should not be unnecessarily disposed of as waste but used as food to feed people.
Replication of the appellant
30. The Constitutional Court sent the above-mentioned observations and opinions to the appellant in the light of a possible reply. It opposed the government's claim that it recognises the tax method of "taking" food, with the fact that, if the government needs resources, it should do so by tax means, but that does not mean that it would agree with the need of the State to take up certain foods with forced gifts or form of tax, the second form would only be more acceptable to meet the needs of the state. At the same time, she expressed "dismay" over the government's approach, which justifies the need for forced donation to protect against the effects of hunger. This, according to her, is an economic and moral debacle where a government with a government budget over a trillion crowns is unable to fight the effects of hunger in any other way than the way of a forced gift. The government's argument that it carries out an international commitment is to be hypocritical, as it spends billions as subsidies on oilseed rape and other crops used as fuel. If the government states that a system of food banks has been built for subsidies, it is to be a "show of State theft," where "through its friends, they" impose subsidies on something that is not being used, and therefore it is necessary to ensure that the system is still being used. "And if the government invokes Elisha Wagner's opinion (correctly, K. Šimáčková) in the above mentioned literature, the author pointed out that this senator had signed the proposal now under consideration. In conclusion, the appellant stated that the government, by arguing against the tax system, based on the fact that the introduction of a new tax would" reduce the power of non-profit women, "had defied fundamental constitutional values. Public power is to be exercised by public bodies derived from democratic elections, not private non-profit entities. In fact, the government privatises public administration in favour of" non-profit-making "outside democratic control, providing fiscal interests - beyond proper control of public finances - with a forced gift. This violated the principle of democracy as a fundamental principle of our state.
Abandonment of oral proceedings
31. The Constitutional Court concluded that further clarification of the case could not be expected from oral proceedings, therefore it waived pursuant to § 44 of the First Law No. 182 / 1993 Coll., on the Constitutional Court, as amended.
Proceedings before the Constitutional Court
32. The Constitutional Court first examined whether the procedural conditions of the procedure were fulfilled. The application was submitted by an actively legitimate appellant, i.e. a group of 25 senators [Paragraph 64 (1) (b) of the Constitutional Court Act] and the Constitutional Court is competent to discuss it [Article 87 (1) (a) of the Constitution].
33. The Constitutional Court could therefore proceed (as required by Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.) to assess whether the contested legal provisions are in accordance with the constitutional order, i.e. (a) the contested legislation was adopted and issued within the limits of the constitutional competence laid down by the Constitutional Court, (b) the constitutionally prescribed method of their adoption and / or extradition, and (c) the contested legislation is in accordance with the constitutional order of content (§ 68 (2) of Act No. 182 / 1993 Coll.).
Review of the procedure for the adoption of the legislative provisions under review
34. The draft contested provisions were inserted into the Food Act by Act No. 180 / 2016 Coll., the proposal of which was submitted by the Government of the Chamber of Deputies on 23 December 2015 and which, when negotiating, made a number of substantial changes only during the legislative process. The Organising Committee recommended the discussion of the bill on 7 January 2016 (Resolution No 235). He appointed Mr Pavel Kováčik as rapporteur and proposed an agricultural committee as a guarantee. The first reading took place on 26 January 2016 at the 39th meeting where the bill was ordered to discuss the committees (Resolution 1050). It was discussed by the Agricultural Guarantee Committee, after which it issued a resolution on the suspension of negotiations on 3 February 2016 (Press No 687 / 1) and on 24 February 2016 a resolution on amendments (Press No 687 / 2). At the second reading, the bill passed a general and detailed debate on 1 March 2016 at the 42nd meeting. The proposed amendments were processed as Press 687 / 3, which was circulated on 2 March 2016. They included amendments by Mr Peter Kudela, designated as E1, E7, E8 and E11, which included provisions (substantive, sanction and related provisions of intertemporal) which are now being challenged directly or indirectly by the appellant. The Agricultural Committee issued a resolution by the Guarantee Committee, which was delivered on 9 March 2016 to Members as House Press No. 687 / 4 (Opinion). The third reading took place on 23 March 2016 at the 42nd meeting where the draft law was passed (Resolution No 1148), with 157 Members present voting 123, against which was 19. For the sake of completeness, the E1 amendment (the obligation to bid) was approved in vote 407 (there are 157 Members, against 116, against 33, and proposals (E7, E8 and E11) in vote 408 (there are 157 Members, against 121).
35. The Chamber of Deputies passed the bill to the Senate on 4 April 2016 as Press No. 248 / 0. On 6 April 2016, the Organising Committee established a Committee for the Economy, Agriculture and Transport, which discussed it on 26 April 2016 and adopted Resolution No 191 (Approval), which was distributed as print No 248 / 1. The proposal was debated and approved on 27 April 2016 at the 23rd meeting of the Senate (Resolution No 421), when of the 61 senators and senators present there voted in favour of 41, against which there were only 9 votes (but 25 senators signed the motion to repeal those provisions).
36. The Act was delivered to the President of the Republic for signature on 4 May 2016 and to the Prime Minister on 3 June 2016. The nominees signed it. The Act was published on 9 June 2016 in the Collection of Laws.
37. The Constitutional Court notes that it is aware that, at the time of the preparation of the current decision, a comprehensive amendment to the Food Act is being prepared to adapt the relevant part of the Czech legal order to Regulation (EU) 2017 / 625 of the European Parliament and of the Council on official controls and other official activities carried out to ensure the application of food and feed law and rules on animal health and animal welfare, plant health and plant protection products. Since the legislation proposed for annulment relates directly to the proposal to supplement Section 11 (2) of the Food Act with the sentence "This obligation does not apply to drinks with an alcoholic strength of more than 0,5% vol. ', there was no reason to possibly wait to end the legislative process in the case under consideration.
38. In view of the above, the Constitutional Court notes that Law No 180 / 2016 Coll. was adopted and issued within the limits of the Constitution established competence and in a constitutional manner. Nor does the appellant question this fact.
Meritative assessment of the proposal
39. The appellant challenges the above-mentioned provisions of the Food Act (see Sub-2 to 4), which impose on food business operators with a sales area of more than 400 m2 under threat of a financial penalty (in its words) "duty to donate free of charge" to humanitarian or charitable organisations (so-called food banks) safe but not sold or no longer sold food. It justifies this by violating their right to property in the form of expropriation in breach of Article 11 (4) of the Charter or in the form of in kind taxation in breach of Article 11 (5) of the Charter in conjunction with Article 1 of the Charter and Article 1 (1) of the Constitution. This, in its view, is reflected in a number of other errors and shortcomings in the contested legislation.
40. Its objections (see in detail sub 5 to 9, 30) for the purpose of settling the proposal argument can be summarised as follows:
(a) no one can be forced (with constitutionally recognised exceptions) to dispose of their property, as part of ownership law is freedom to hold and dispose of the property;
(b) it is therefore a breach of the right of ownership of food business operators by the introduction of a so-called "contractual direct," that is to say, the obligation to conclude a donation agreement with designated persons, without the right to consideration, while expropriation is only possible in the public interest under Article 11 (4) of the Charter, which is the difference from the ownership obligation under Article 11 (3) of the Charter, which is also established against the general interest,
(c) expropriation shall be subject to review by the court as an individual legal act; However, the contested provisions expropriate the property directly, thereby preventing judicial review and thereby violating the right to judicial protection under Article 36 (2) of the Charter,
(d) the contested provisions shall not be substitutable to one of the constitutional areas of ownership binding in Article 11 (3) of the Charter, which is linked to an obligation to act or abstain, but may not be an obligation to dispose of property free of charge;
(e) the legislator has introduced a de facto tax in kind, not the recipient of which is the public budget of the State or other public corporations, but they are private bodies, thereby eliminating the difference between public and private; the State would in such a case have to be its beneficiary and directly redistribute it; a private body cannot do so;
(f) if the State finds that such aid is necessary (as part of a public policy worthy of public aid), it is to impose a necessary increase in the State's income on all and not just the selected entities;
(g) any state policy, including social policy, must be organised and paid by the State itself, its costs cannot be passed on only to certain private-law entities;
(h) the fight against poverty is to be carried out in the general interest by "charitable bodies" as private persons; in that case, however, it is not a public interest with the possibility of expropriation of others;
(i) the government thus effectively privatises public administration in favour of "non-profit-making" outside democratic control, as it provides fiscal interests - beyond proper control of public finances - with a forced gift; This violated the principle of democracy as a fundamental principle of our state,
(j) the Food Act does not address liability for damage;
(k) the cost of food transport from entrepreneurs to such organisations is not addressed either,
(l) the constitutional condition of the refund is not fulfilled either, even in a flat-rate form; In so doing, the operator is obliged by law to donate these goods with a tax obligation,
(m) the appellant considers the argument that it is also a matter of fulfilling international obligations to be hypocritical.
41. According to the appellant, the contested provisions infringe the abovementioned provisions of the constitutional order; at the same time, they claim that they cannot even stand the proportionality test. The Constitutional Court, after examining these objections and carrying out the proportionality test, as well as taking into account the general starting points of the efforts to avoid food waste within the EU and other international organisations to which the Czech Republic is a member, has concluded that the contested provisions of the Food Act will stand, and the proposal must therefore be rejected as unfounded.
General considerations
42. In general, it should be stressed that the contested provisions of the Food Act form part of the efforts of the international community (see below sub 43 et seq.) and of the individual States to address serious issues related to food waste, which have a major impact on the social and security situation in the world and in the individual states and on further deterioration of the environment. All this relates to the need to implement measures in the fields of agriculture, fisheries, transport, storage, sale and disposal of foodstuffs. If the legislator has decided to address this issue within the Czech Republic, a number of other states are involved. However, it is not the task of the Constitutional Court to assess whether the funds chosen are sufficient (there are no binding benchmarks for this, but merely to set objectives), but whether they do not contradict the constitutional order that must be taken as a whole in a systemic way, assessed according to the principle of coherence. Therefore, when assessing the constitutionality of the intervention by the appellant of the fundamental rights and freedoms claimed, it is not just two selected provisions that are taken out of the context of constitutional order and international obligations. The contested legislation must be assessed in the context of the preamble to the Constitution, its Articles 1 (1) and (2), Articles 2, 7, 10a, and in the Charter, not only Articles 1 and 11 but also Articles 2 (2) and (3), 3 (1), 4, 26, 30 to 32, 35, 36 and 41 (1). This consistency (or discrepancy) should be assessed both in terms of those whose legal status is affected (the area of intervention measures and their constitutionality) and also in terms of those who, in view of their life situation, need State aid in such a form (the area of positive performance for their benefit again within the framework of constitutional order) and the State is already counting on it in its constitutional order by providing that "ownership is committed 'and that" State power serves all citizens' (Article 11 (3) of the Charter in conjunction with Article 2 (3) in principle of the Constitution). It is only a matter of assessing whether, when choosing funds (the objective is undoubted), the legislator has not reached out to those that the constitutional order does not allow. These measures should also be understood in the context of international and supranational (food law and EU policy), as they are part of them, while taking them into account when assessing the legitimacy of the objective pursued and the appropriateness of the contested legislation in the context of the proportionality test (see below).
43. The EU institutions deal with this issue regularly. Already in 2012, the European Parliament adopted an opinion on this in its resolution of 19 January 2012 on halting food waste: a strategy to improve the effectiveness of the food chain in the EU (2011 / 2175 (INI)). Similarly, the conclusions adopted by the EU Council at 3479 should be pointed out. the meeting held on 28.6.2016 in the Food Loss and Waste Material (available at http: / / data.consilium.europa.eu / doc / document / ST-10730-2016-INIT / en / pdf) based on FAO estimates, according to which nearly a third of all food intended for human consumption is lost or will end up in waste every year, i.e. 1,3 billion tonnes (see Measured by weight. FAO, 2011. Global food losses and food waste - extensive, causes and prevention. Rome: UN FAO). This has a significant economic, social and environmental impact, where, according to a study by the International Panel on Resources under the United Nations Environment Programme (UNEP) entitled Food Systems and Natural Resources (http: / / www.unep.org / resourcepanel / KnowledgeResources / AssessmentAresReports / Food / tabid / 133335 / Default.aspx) costs food losses and food waste worldwide economy USD 990 billion per year. Food loss and food waste lead to shortages and increase malnutrition. In addition, around a quarter of the water used for agricultural purposes is consumed for food that is eventually lost or wasted, arable land with China's surface area is used, produced by around 8% of global greenhouse gas emissions, and this situation has a share of biodiversity loss. Within the EU, food waste is also estimated to be around EUR 143 billion [see EU food donation guidelines. Commission communication of 25.10.2017 (2017 / C 361 / 01) - "Commission Communication 2017 '.] This area has therefore become a subject of interest not only in science [for the methodology for assessing waste, see for example Thyberg, K. L., Tonjes, D. J. Drivers of Food Waste and their Implication for Sustainable Policy Development. In the light of the above, the Commission concludes that the aid is compatible with the internal market.
44. The Constitutional Court is aware of the fact that, although the funds chosen in the Food Act are only going to one smaller one, however, in terms of the purpose of investigating a significant area of food waste. This conclusion is based on a special report prepared by the European Court of Auditors (see in detail https: / / www.eca.europa.eu / Lists / ECADocuments / SR16 _ 34 / SR _ FOOD _ WASTE _ CS.pdf, hereinafter "the audit '). The data contained in this report show that the means of preventing food waste are practically usable in various ways, giving, in terms of the effectiveness of the implementation of the measures (see audit, p. 9) on a scale from the most effective to the least effective as follows: 1. prevention (what is not produced is not destroyed), 2. donation, 3. feed, 4. recycling, 5. use other than food or feed and 6. disposal. The audit therefore recommends, in particular, prevention and donation measures, although it is in this second area that auditors point out that there are problems with the interpretation of legislation. Finally, this is a problem that the appellant points to in the Czech Republic's terms and conditions, and therefore, from the point of view of assessing the constitutionality of the legislative measures adopted, it submits the matter to the Constitutional Court.
45. In order to clarify the subject matter of the procedure, the Constitutional Court further recalls that, according to the FAO definition, a distinction should be made between the loss of food, which is the reduction of the quantity or quality of food, whatever the reason, and the waste of food, which is then part of the loss of food, and the alternative (non-food) use of safe and nutritious food intended for human consumption, which takes place throughout the food chain from primary production to final consumption in the household (http: / / www.fao.org / platform-food-waste / food-waste / food-waste / definition / en). The audit mentioned above (pp. 9 to 10) states that for 2012 the estimated food waste within the EU was about 88 million tonnes, while despite the measures taken and the legal arrangements in the EU Member States, this is already 123 million tonnes per year for 2020. Data from the time of adoption of the contested legislation may be provided for the Czech Republic. According to information from the Czech Business Council for Sustainable Development (Economic Newspapers 30. 12. 2016 - also available on https: / / business.ihned.cz), it is estimated that around 729 000 tonnes of food per capita per year will not be used in the Czech Republic, i.e. 69 kg per capita (more than a kilogram per week), other estimates speak up to 80 kg per year. The Constitutional Court notes here that it is aware that the methodology and methodology for measuring the loss and waste of food is in development and that the results of the measurements are thus necessarily diverging in general and in individual states (e.g. for Poland 180 kg but also 247 kg per year). This does not change the conclusion on the importance of this issue and the need for coordinated regulation (legitimate objective).
46. From the point of view of the effectiveness of the measures, it turns out that, in the above areas of waste, there are considerable differences between individual EU Member States due to measures to prevent waste (whether in a level of law or traditional friendliness and charity). The latest research within the EU-funded FUSIONS research project (note - the Food Use for Social Innovation project through optimisation of waste prevention strategies) in the Estimates of European food waste levels study. FUSIONS. The reduction of food waste through social innovation (Stockholm, 31.3.2016, available at https: / / www.eu-fusions.org / photo-down / Publications / Estimates% 20of% 20European% 20food% 20waste% 20levels.pdf) in the analysis of 28 EU Member States states (p. 4) that in these countries (data are differently reliable), on average, about 20% of the food produced remains unused (about 173 kg per person). The largest share of waste is the household - about 46,5%, followed by processing 16,9%, restaurants and canteens 10,5%, initial production 9,1% and finally the sale 4,6% (with deviations in different states). The above-mentioned audit (p. 10) lists older data (household about 52%, production 23%, processing 17% and retail 9%).
47. If, after assessing the situation in the Czech Republic, the legislator has concluded that in this area, important to avoid food waste (see sub-sub-44), there are significant reserves, its efforts to deal with this area cannot be regarded as superfluous or even undesirable by regulation. However, it is clear from the point of view of the possibility of preventing waste that it is in the retail sector (especially large stores) that the possibility of preventing waste in conjunction with dealing with other pressing social issues is the biggest. In the case of canteens and restaurants, this is possible because of the nature of the matter very limited (even here the owners do not give food to guests but to socially needy people at the end of the sale period), for households consumption is expected without food safety control. In contrast to, for example, electrical appliances (because they always need to be disposed of), where the consumer paid a fee for the disposal of so-called historical electrical waste when buying [cf., the finding of 16 December 2008 sp. zn. In this respect, therefore, the area of regulation in the Food Act is appropriately chosen, for example, in the area of food production, State intervention may go in the opposite direction in particular (cf. e.g. removal of pigs, cows, poultry in the prevention of contagious diseases or subsidy programmes aimed at reducing food production).
48. For the sake of completeness, the Constitutional Court notes, at the beginning of the general bases for the assessment of the objective pursued, that the obligation for operators of stores to provide free food for charitable or humanitarian purposes under threat of financial sanctions is not common (as is apparent from the summary prepared by the Constitutional Court's Analysis Department on 25 September 2017, A-2017- 10-JF) in European countries. It is not anchored in our closest neighbours, such as the Federal Republic of Germany, the Republic of Austria and the Slovak Republic, nor is it established in the Italian Republic or the United Kingdom. At the same time, it should be taken into account that, in Western countries, the donation of non-marketable food and charity has a relatively long tradition, often with some support from the State (e.g. through tax concessions, state incentives or subsidies, as is the case in the Italian Republic and the UK), a well-functioning system of distribution of donated food to needy persons has been established; For example, this system was established in Germany in 1993, with the Federal Central Food Bank (Bundesverband Deutsche Tafel e.V.), in the UK it is a charitable organisation of the Waste and Resources Action Programme. In particular, in the Kingdom of Belgium, the question of the durability of food provided to food banks and the possibility of their extended consumption times is regulated. However, the Constitutional Court considers it necessary to recall the recent decision of the Constitutional Court of the Federal Republic of Germany, according to which the freedom of business and the right to information self-determination in the event of an infringement of the rules on food and feed must give way to public interest in the information on such infringement and therefore pursue a legitimate objective (see BVerfG, Beschluss vom 21.3.2018 - 1 BvF 1 / 13). In: Neue Juristische Wochenschrift, 2018, p. 29, p. 2109- 2114). Such information (even in this area) may ultimately often have more severe consequences for operators than the fine imposed.
49. On the other hand, sanctions for the failure of defined food stores to conclude an agreement on the basis of which they would provide food free of charge to charitable organisations are enshrined in the French Republic. It was probably the first state in the world (followed by the Czech Republic) after the evaluation of the experience, which made provision for the obligation to conclude a contract with the current threat of a financial penalty. The current food allocation legislation is contained in Article L 541-15-6 of the Code de l'environnement. It states that within one year of the publication of Act No. 2016-138 of 11.2.2016 on the fight against food waste (just this Act changed the Environmental Code), or within one year of its opening, or from the date on which its sales areas exceed the minimum threshold (i.e. 400 m2), retailers of foodstuffs whose sales areas exceed that threshold must offer the relevant charitable organisations an agreement specifying how the food will be transferred to these organisations free of charge ("sont cédées á titre congratulations', i.e. not" sont données'). All retailers that have concluded this agreement before the declaration of the Food Wasting Act are seen in the way that they have fulfilled the obligation. Point II of the article in question then states that the failure to respect the obligation foreseen by point I will be punishable by a penalty as a Class III offence. Under the Code of Criminal Procedure, the amount of this fine should be 450 euro (cf. Article 131-13 of the Criminal Code). However, point III of that Article provides that a distributor in the food sector who intentionally makes unsold and yet edible food unfit for consumption (for example, it is expressly prohibited to pour it with chlorine), without prejudice to the provisions on sanitary safety, shall be punished by a fine of EUR 3 750. However, he is also facing an additional penalty for the publication of a fine on a notice (la peine complémentaire d'affichage) or a medialization of the decision made under the conditions laid down in Article 131-35 of the Criminal Act (all available for example at https: / / www.legifrance.gouv.fr). The impact of this adjustment, when France has taken the lead in the global ranking of "Food loss and waste 'countries with the least amount of food waste (see the summary in the Food Sustainable Index. 2017, p. 4 - available at http: / / foseustainability.eiu.com / wp- content / uploads / sites / 34 / 2016 / 09 / FoodSustainable Index. For the purposes of this Decision, the following definitions apply:
50. However, the very fact that the imposition of the obligation is not entirely common in other countries does not reflect the constitutional (non) conformity of the measure itself. It is clear that the solution adopted by the Czech Republic is not entirely unique, nor is it possible to ignore certain historical differences, which consist in the fact that in Western European countries, charitable (i.e. voluntary) activity has a great tradition and media potential, as well as a considerate approach to the environment, so that the need to adopt similar arrangements does not need to be seen as urgent by the legislator, as it considers that the results obtained on a simple voluntary basis are sufficient. This also relates to the fact that in our culture, wasting food traditionally (especially after wars) is considered a serious ethical problem.
51. However, it is not the task of the Constitutional Court to assess what system is more appropriate in the Czech Republic (that is the matter of the legislator), but only whether the relevant legislation will stand in the constitutional test. To this end, it was necessary to assess whether the contested legal provisions were having an effect on the ownership of the entities concerned, as claimed in the proposal, and, in the positive case, whether this was done within constitutional limits. in this context, the Constitutional Court examines whether the intervention in question was legal (i.e. whether it was implemented by law) and legitimate (i.e. whether it followed a particular public interest, or whether it was directed towards the common good) and whether the negative effects which are reflected in the intervention in the fundamental rights and freedoms of food business operators with a sales area of more than 400 m2 are not disproportionate to the positive effects resulting from the measure taken for society (so-called principle of proportionality), so that they cannot be reasonably demanded from the general interest of society as a whole.
Legal nature of the contested intervention in the ownership rights of the parties concerned
52. The appellant contends in this part of its argument (see the summary of sub-sections 40a to 40e) that the intervention in question in property law cannot be classified as merely a restriction of ownership (sc. ownership rights) under Article 11 (3) of the Charter, since the contested provisions cannot, on the one hand, be substitutable "under any of the areas of constitutionality of ownership ', on the other hand, it does not fall under the obligation to" dispose of property free of charge', but merely an obligation to act or refrain from any action.
53. In the case of the legal qualification of the intervention in question, the appellant considers that it is an expropriation and thus its "legitimacy 'must be assessed under Article 11 (4) of the Charter. If the Constitutional Court is of the opinion that the obligation to supply does not concern food for which the operator has some other economic use (or which has some money of quantifiable value), then, in the view of the Constitutional Court, it is no longer possible to discuss expropriation, and the case must therefore be classified as a restriction on the right of ownership under Article 11 (3) in conjunction with Article 4 (2) of the Charter (see below), the infringement of which the appellant also objects. However, it is not only that there is no asset value (see for example sub 58, 67) for which compensation could or should be granted. Nor can the very nature of the case be ignored, as it is not a one-off intervention in the assets of operators, but rather a recurring obligation. Indeed, if an individual legal act had to be issued for each case of" expropriation "of food, the system could hardly work in practice. It should be noted that, by arguing that Article 11 (4) of the Charter lays down a stricter condition for the constitutional conformity of the intervention in question" in the public interest', whereas Article 11 (3) of the Charter merely states that "in the general interest 'condition, the Constitutional Court does not consider such a distinction to be necessary in the case at issue, notwithstanding that the criterion used by the appellant is not valid (see, in particular, sub IX C and IX E below).
Legality of intervention and its subject matter
54. At the outset, the Constitutional Court observes that the contested State measure was granted in the form of a law and, therefore, it is clear that the condition of the legality of possible interference with property rights, as envisaged in Article 11 (2) to (5) of the Charter, has been fulfilled. But that would not, of course, be sufficient, because thus the protection of property rights would be given to a 'spoiler' of an ordinary legislator. It should be noted here that the provisions of Article 11 (1) of the Second Charter are directed in particular, as is its model of 1990, i.e. Article 7 (2) of the Constitutional Act No. 100 / 1960 Coll., the Constitution of the Czechoslovak Socialist Republic, as amended by the Constitutional Act No. 100 / 1990 Coll., amending and supplementing the Constitutional Act No. 100 / 1960 Coll., the Constitution of the Czechoslovak Federal Republic, and the Constitutional Act No. 143 / 1968 Coll., on the Czechoslovak Federation ("The State provides equivalent protection to all owners'), against violations of the equality of owners in the form of protection of various forms of ownership. This was the case, in particular, in civil, criminal and constitutional law by 1990 and the revision of the constitutional bases of ownership was therefore adopted with a view to establishing a uniform concept of ownership with a single legal regime. The appellant may be attested that Article 11 (1), first sentence, of the Charter does not constitute a right to participate in foreign property.
55. Likewise, Article 11 (3) The Charter does not give anyone a right to solidarity from foreign property, but merely imposes certain obligations on the owner and defines the space in which his "legal estate over the matter 'may otherwise move or under which conditions business may be carried out in this field (cf. Article 26 (2) of the Charter). In this context, the Constitutional Court would point out, at the outset, that the appellant essentially challenges the so-called social function of ownership, which is emphasised in relation to the general interest in Article 11 (3) of the Charter. The ownership cannot therefore serve only as the owner's estate over the matter, but at the same time (as the owner) obliges it to behave. By this objection, the appellant therefore puts the debate over the nature of ownership at least 150 years back into the evolution of the state's overtaken circumstances as a" night watchman "with the notion of ownership only as an exclusive and unlimited legal estate over the matter, regardless of the damage or burden it may cause to others. But at the same time, it goes back to the issues that represent the development line of views leading to the recognition of the social function of ownership in our history. Here it can be pointed out that the Austrian Minister of Finance Emil Steinbach contributed gradually to the development of this function in 1878 when his lecture Die Pflichten des Besitzes was mentioned. He then applied these ideas in his post in particular in 1885 in the discussion of accident insurance, led by whether it should be paid by the worker himself, or by the state, or by him to whom his dangerous work brings profit (the owner of the business - see Gumplowicz, R. Das österreichische Staatsrecht. 3rd edition. Wien: Manz, 1907, OJ p. 667-670, and Wittmayer, L. Die Weimarer Reichsverfassung. Tübingen: Verlag Mohr-Siebeck, 1922, p. 29-30). At the same time, Swiss J. Platter (Die Pflichten des Besitzes. Berlin: Verlag von K. Habel, 1882) argues similarly, subsequently this ownership function was highlighted in the encyclics of Pope Leo XIII. Rerum novarum (About new things) of 15.5.1891, then developed in France in the theory of solidarity of Léon Duguit, then this function of ownership was enshrined in the German Weimar Constitution in Article 153, then even more strongly in Article 14 of the Basic Law of the Federal Republic of Germany. The German model also follows our Charter in the first sentence of Article 11 (3). From this point of view, it is therefore necessary to look at the whole issue not only from a static point of view, but also from a dynamic point of view, when the ownership function in relation to its subject matter changes over time, but also from the point of view of the purpose of determining the subject of the property, which is also an aspect which is completely abandoned in the appellant's argument. The Food Act may not be compared to the decree of President of the Republic No. 101 / 1945 Coll., on the nationalisation of certain food industry enterprises, as amended, or the nationalisation and expansion of trade after 1948, as it fits in with the efforts to address several key problems at present on a scale of the state, EU and world.
56. Therefore, the Constitutional Court has focused on the constitutional qualification of the measure and the assessment of its legal consequences, including whether or not it interferes with a given fundamental human right, which also includes the right to exclude others from it. In this point, it was first necessary to specify the obligation which the contested provisions provided for to the operators concerned. There was no need to deal with items of property law other than movable goods (foodstuffs). Here, the Constitutional Court has come from a notoriety that ownership includes individual partial rights of the owner, which are the right to hold, use, enjoy and dispose of the case; The latter authorisation then includes the right of the owner in particular to transfer the matter to another person, donate it, leave it or even destroy it.
57. The right of the owner (here the food business operator) is "in play" in this case, as it is affected by the contested obligation to provide the above-defined food to non-profit organisations. It should be noted here that this is a specific situation in the case under consideration where food business operators do not have the movable goods (i.e. food) in question in order to hold, use, donate, forsake, enjoy or destroy them, but to transfer them - as goods - to other persons who are usually final consumers in return for profit. If (already) the legislation does not permit resale (and, for the nature of the case, no measure can be taken to ensure that the legal conditions are met or are not economically effective), the operator of the store remains to "dispose of 'such food. This can, however, already come to the public law field for the protection of the health of others, public health and waste management. This usually means that it itself must dispose of it as waste [cf. § 3 (1) of Act No. 185 / 2001 Coll., on waste and amending certain other laws, as amended, (hereinafter referred to as" the Waste Act')], or it may / must do so through its supplier. Another real, although perhaps not too common, option is to monetize the goods outside the store (e.g. as raw material or feed) or otherwise use them for their own use and finally donate them or dispose of them in another way which is not contrary to the constitutional cavities of Article 11 (3) of the Charter. This aspect is completely overlooked by the appellant.
58. Finally, if there is no possibility of resale or other use, the goods are of no value to the operators concerned or may exceed the costs of liquidation associated with them. Here it is necessary to point out another notoriety, namely that the value of the matter is given by the importance of the content of the property right given to the object of its ownership. It also depends on the value of its right of ownership and judgment whether the limitation of that value actually took place (e.g. judgment of the Supreme Court of 26 April 2016 in Case No 22 Cdo 1425 / 2014), and on how that value can be expressed under the applicable rules (e.g. "reasonable remuneration '," fair price', "fair market price '," value of the case', "ordinary price '," exceptional price of the case', etc.), in view of possible public interference affecting the determination of such a price (e.g. "reasonable remuneration '," fair price', "fair market price '," price of the case', "exceptional price of the case ', etc.).
59. The same applies to the relationship between the owner (operator, trader) and the goods offered for sale, which has become a public intervention (both the Czech Republic and the EU, as it is its Member State) that is unsellable, though safe. Indeed, the appellant does not take the view that the proposal is followed by the interest of traders in order to accumulate unsellable and tainable food on their premises and warehouses, when, moreover, the waste management rules under the Waste Act (in relation to which the Food Act is a special regulation in this section) do not allow them (e.g. Section 3 (4) of the Waste Act), as is the fact that waste disposal is usually subject to a charge.
60. There is also no requirement of a public law decision to withdraw the right of ownership of a specifically identified case as compared to the expropriation. However, if the operator fails to fulfil his obligation, it will then be assessed whether he did so in his private interest and whether such an interest should have taken precedence over the public interest (general welfare), or whether there was another public interest which he considered would have preferred (e.g. donating food for the zoo). The appellant's objection (see sub 8, 40) concerning the infringement of the right to judicial and other legal protection under Article 36 (1) and (2) of the Charter is therefore unfounded (see sub 100 et seq.). Therefore, the appellant's intention to expropriate the legislature (or, perhaps more precisely, recertification) does not correspond to the legislation chosen, because it does not take into account what is the subject of the provision (safe but more closely defined requirements of food law which do not meet the requirements of the food subject to trade and not preservation) and who decides on it (operator himself). If then from Article 11 (4) The Charter may deduce the right to re-acquire the expropriated item if the conditions for expropriation are not met, in the case of a "obligation to provide 'this will not be practically taken into account.
61. In this context, it is therefore necessary to analyse further the legislation in question (Sections 3, 10 and 11 of the Food Act), which the appellant as a whole does not even consider, and not to impose on the legislator anything that he did not actually pursue. This applies in particular to Article 11 (2) of the Food Act, which the appellant requests to be repealed as a whole. However, according to that provision, food subject to the scheme provided for in Article 11 (2) of the Food Act is only those which do not comply with the requirements of that Act (not foodstuffs with expired shelf life, not covered by that provision) and directly applicable EU provisions (the list of sources of food law is contained in Section 1 and Explanatory Notes 18 and 19 of the Food Act) but are safe. In particular, those which are:
- insufficiently or incorrectly marked [Paragraph 3 (1) (q) (3)],
- not satisfying the quality requirements laid down in the implementing act or declared by the manufacturer [Paragraph 3 (1) (q) (4)],
- damaged or deformed [Paragraph 3 (1) (q) (5)],
- deceptively labelled or offered for consumption in a misleading manner [Paragraph 10 (1) (a)],
- unknown origin [Paragraph 10 (1) (c)].
These concepts are further defined by Section 2 of the Food Act and the EU Food Law Regulation. In addition, account should be taken of the fact that a protocol by the supervisory authority under the Food Act will be drawn up on these defects, which will limit the free circulation of such food (on the market) on the basis of its control findings.
62. The appellant does not dispute that they are not safe, but that the food business operator is obliged to dispose of them in accordance with Article 11 (2) of the Food Act under the threat of a penalty under § 17 (2) (j) and § 17f (c) of the Food Act, which is referred to as an expropriation, in case of an inconstitutionally imposed tax. However, it does not answer the related question of what and with what costs for itself and the environment such an operator is to do with them, and what social impact such a de facto "waste" would have (and should) not only within the Czech Republic, but also within the EU, or globally, and on the contrary, what further use it can bring.
63. All these categories of food are required by the food business operator to be immediately removed from the marketing under Article 3 (1) (q) of the Food Act (see also Article 14 of the EU Food Law Regulation). It should also be pointed out here that the concept of "placing on the market 'is of particular importance in the context of the Food Act and the subject under consideration must be interpreted as provided for in Article 3 (8) of the EU Food Law Regulation. The Constitutional Court points out that, in this case, it is a directly applicable regulation of Union law, not merely a requirement for a Euroconformical interpretation of national law. This is not a situation in which there are several interpretation options, only some of which lead to the commitment taken over by the Czech Republic in connection with its membership in the EU, in which Euroconformal interpretation is required to support the implementation of the commitment, not an interpretation which makes implementation impossible [see the finding of 3.5.2006 sp. zn. ÚS 66 / 04 (N 93 / 41 SbNU 195; 434 / 2006 Sb.)].
64. The EU Food Law Regulation is therefore relevant to the case under consideration in the part in which it defines the concept of "marketing ', since only in this context is the appellant alleged to intervene in property law. The placing on the market shall mean" possession of food or feed for sale, including offering for sale or any other form of transfer, free of charge or for consideration, as well as sale, distribution and other forms of transfer as such'. It follows that the exclusion from marketing [imposed as an obligation under Article 3 (1) (q) of the Food Act] has a fundamental impact on the continued disposal of the owner of such foodstuffs (even what they are worth to him - see above sub 53). However, this aspect is also completely overlooked by the appellant, although that is where the legal obligation to provide such food for the intended purpose lies. Only for some, their further use ("placing on the market ') is possible after the implementation of measures such as re-packaging, modification of labelling, elimination of misleading advertising (which the seller probably will not make in view of the much greater losses it would cause), the determination of origin, etc., which, however, in view of the size of the sales area, will be difficult to implement and usually very labour-intensive. Foods with an expired minimum durability period may still be marketed after that date for compliance with the additional requirements laid down in Section 10 (2) of the Food Act, but must be so marked and placed separately and be safe; These do not fall under the scheme of Section 11 (2) of the Food Act or are not subject to the obligations laid down in this provision. Conversely, foodstuffs with an expired expiry date are not considered safe, must not be used in this scheme and the contested legislation does not affect them.
Scope and intensity of the intervention in the right of ownership of certain food business operators
65. Consequently, the question arises as to the scope of the obligation, i.e. whether Article 11 (2) of the Food Act also affects foodstuffs which may be monetized or otherwise used by the operator outside the store. In this case, the goods in question have a certain economic value, which would be reduced by the operator in this broader interpretation by the compulsory provision and, in the event that this obligation would also apply to these foodstuffs, it would be a very intense interference with the operator's ownership right, especially since the operator is not compensated for any losses incurred. From a constitutional point of view, it would then be the withdrawal of the right of ownership of movable goods which represent economic value to it. This is where the substance and purpose of the protection of property rights (and the concept of ownership in the Charter) must be seen. This can be qualified as an expropriation without, however, meeting the condition of Article 11 (4) of the Charter, namely, first of all, that this can only be done for compensation. In this context, it should be noted that from the point of view of Article 11 (4) of the Charter (even the differences in the subject of expropriation), the term "expropriation 'should be understood more widely than as covered by Act No. 184 / 2006 Coll., on the withdrawal or limitation of property rights to land or construction (Expropriation Act), as amended.
66. However, the Constitutional Court did not accept the annulment of the contested provisions because it concluded that such an interpretation would not correspond to what the legislator follows and would be excessively extensive. On the contrary, it concluded that these provisions should be interpreted strictly, that is to say that the conditions are not legally created for such intervention. In accordance with settled case-law, if there is a solution in the level of constitutionally consistent interpretation of the contested standards, it should be preferred to a solution consisting of their abolition (see, for example, the finding of 4.2. 1997 sp. zn. ÚS 21 / 96 (N 13 / 7 SbNU 87; 63 / 1997 Coll.)). In particular, the following reasons for this procedure may be given to the appellant's broad opposite argument.
67. The obligation concerns only those foods which are, in substance, already worthless to operators, or which are "waste" from the point of view of public law (although, at the same time, from the consumer's point of view, they are still goods because they may still have a certain useful value - the rules of food law do not apply to decisions on private food consumption). Here, the only possible alternative to the disposal of food is to provide it for another legal purpose, if it is a public or even general interest.
68. However, even in this case, the measure constitutes an interference with the operator's right of ownership. In assessing its intensity, the Constitutional Court considered that, although formally, the operator is limited (on its right to destroy the case), this is the case in a situation where it has virtually no other option than food (directly or indirectly) either to be disposed of as waste, in the way in which the legislation in question results (not so much as an authorisation but rather a legal obligation) or to provide it for further use. In other words, instead of one obligation on the management of unsold (non-sold) food, operators are under a different obligation, in the prevailing public interest, but it does not unduly harm the private interest of food business operators.
69. However, it is only when the hypothesis of Article 11 (2) of the Food Act is fulfilled that an operator has in a shop with an area of more than 400 m2 of food which does not comply with the requirements laid down by this law or the directly applicable EU food requirements, but is safe, not since the food business operator has acquired ownership. Contrary to the right to buy, where the intervention takes place at the time of the owner's decision that the case covered by the public law relating to the right to pre-purchase becomes foreign, such a moment in the present case arises as a result of objective facts. If the food is sold "on time," the intervention will not take place, as will the operator, when removing obstacles to its sale in food law.
70. Finally, it can be noted that the contested provisions of paragraphs 11 (2) and 11 (3) of the Food Act cannot be considered as an expropriation measure also because expropriation is traditionally regarded as an individualised intervention in specific rights in a specific case of the owner. It is therefore not a general determination of some public-law burden for all to the same extent, which the classical theory refers to as devaluation (Entwährung) in the broad sense of the word (see Layer, M. Principien des Enteignungsrechtes). Leipzig: Dunckler & Humblot, 1902, p. 10), with the public interest in the expropriated (individualised) object having to be permanent, not only temporary, so that it can eventually lead to the right of recovery (there, p. 213, 433 et seq.), which is hardly imaginable in the case of the foodstuffs in question. Finally, the restitution regulations of the Czech Republic respect this. It could be nationalization, confiscation, reparation, etc.
The concept of the obligation to provide and the objection to the expropriation or contractual direct
71. In addition to what has just been mentioned, it should be pointed out once again that the appellant considers the contested measure to be an expropriation for a number of reasons (see sub 40). The wording of the law and its literal rather than extensive interpretation do not permit such conclusion. The law explicitly refers only to the "obligation to provide 'of the food in question to a non-profit organisation. The turnover" provide "is used in our legal order in many places and inconsistently, both in connection with paying and free of charge, as well as duty or possibility. Therefore, this polyvalent concept must be defined or based on the fact that it is understood by the nature of the substance, or that the law must determine what is the consequence of failure to provide, i.e. failure to fulfil obligations. The provision of food under Article 11 (2) of the Food and Tobacco Products Act is a state-imposed obligation which cannot therefore be interpreted in an enlarged manner, but merely as a restriction on the right of the owner in the way that he can dispose of such food; other necessarily related conditions must be covered by an agreement with a non-profit organisation which is the holder of an authorisation which results from such an obligation of the food business operator. While expropriation means the withdrawal of ownership by public authority, the" obligation to provide' in the context of food law (in other legislation it may be otherwise) only implies that the owner of the food in question is obliged, under the threat of a fine, to leave certain foods to a non-profit organisation if it so requests and concludes an agreement with it. The law does not make this agreement any closer (in France, the approved model of the Food Transfer Agreement is published - see the figures in Commission Communication 2017, p. 12), probably also because of the way that this provision came into the law (as an amendment, see Sub 35), which is certainly not an excuse. While a mandatory entity is defined in a whole way for sure, the concept of a non-profit organisation only for its purpose, so it does not have to include only one of 15 food banks, as is the rule in practice. Similarly, other elements of such an agreement are not explicitly regulated by law, such as the time and manner of communication of the parties, the time and method of providing, the type of food, the cost of taking, the possibility of rejection by a non-profit organisation and its reasons, the duration of the agreement and other requirements, such as the confirmation by the Food Bank of the quantity and condition of the food provided (see, however, "Principles, mandatory food donation ', agreed as a common concept of the Trade and Tourism Union of the Czech Republic and the Czech Federation of Food Banks, p., to implement Article 11 (2) of the Food Act - available on food banks. cz / wp-content / upload / 2018 / 01 / Zasady-donation _ FINAL.docx, where all essential issues are regulated by interpretation of mutual rights and obligations and with a model agreement). This is even more true for the transmission of food from an intermediary (the food bank is a non-profit but not a charitable or charitable organisation in contact with the final recipients of food provision).
72. A non-profit organisation (a food bank in its current practice, in particular charities and diaconias) does not have a statutory obligation to remove such food (see, however, "Principles, mandatory food donation '- sub 71). If the operator does not hand over such a food to it for a specified purpose of use, it shall remain in its possession and may be affected only under the contested provisions of Sections 17 (1) (j) and 17 (f) (c) of the Food Act. In the context of administrative proceedings, it has the possibility to defend itself and to demonstrate that the conditions for the performance of the statutory obligation have not been fulfilled (the obligation did not apply to such foodstuffs, the customer treats them in a non-statutory manner, etc.). Finally, even the annual application of the contested provisions has not yet caused any significant problems, unless the rising costs for the functioning of the food banks (on the part of the State) are taken into account, as the quantities of food they have taken have increased significantly to the benefit of those to whom they are addressed.
73. Therefore, there is no hidden expropriation, as there is no public decision by which the food business operator is deprived of its ownership at the time when conditions of non-applicability and safety are cumulatively encountered (see Sub 61, 69). The property does not pass on to a non-profit organization if it does not request it, but it is also a mediator who must forward it free of charge to other humanitarian, charitable or charitable organisations that will provide it with a final link to the chain (asylum house, emergency dormitories, dormitories, families of single workers or otherwise in distress, individuals in need, etc.).
74. The obligation to "provide" cannot be compared to the mandatory donation or, more precisely, to the contractual direct. Donation in this area exists, but as a well-known event within the National Food Collection, which is already regularly held in stores where you can purchase and directly donate to prepared labelled baskets durable food, but also other durable goods. This is a donation (but by buyers and not traders) to the aid intermediary. However, this is not about donation, although the appellant is trying to impose it on the legislators. Donation as a legal act must fulfil the condition of the autonomy of the will on both sides, perhaps in the appellant's view, the payment of taxes could then also be described as a donation.
75. If the provision of food is concerned, the Constitutional Court could not at the same time forget that the autonomy of the owner's will to dispose of the matter in this form necessarily involves not only the decision on the provision itself, but also the choice of the addressee of the act (but it does not have the obligation to withdraw such food). As can be inferred from Section 11 (2) of the Food Act, the operator must only provide the food in question (preferably) to an entity that fulfils the conditions set out in that provision, even if it would like to do so for the benefit of other entities, also public-service organisations engaged in activities other than charity or humanitarian aid such as zoos or organisations managing abandoned animals (and therefore not complying with the conditions of Section 11 (2) of the Food Act). For this reason, the intensity of the intervention in question increases somewhat from the point of view of the freedom of action of an entrepreneur under Article 2 (3) in conjunction with Article 26 (1) of the Charter, but does not conflict with its anthropocentric establishment. However, it may be pointed out that Article 26 (2) of the Charter allows the legislator to determine the conditions under which certain business activities (here the sale of foodstuffs) can be carried out. This "obligation to provide 'is only at the very end of this process, where it is already clear that its purpose (profit) will not be achieved at the expected level, and, on the contrary, problems of" where' and "how much it will cost 'can arise at this stage. Finally, it can be noted that a number of other obligations are part of the business in this area, which are linked to the costs for operators (working conditions, hygiene, public health, safety, asset protection, fire protection, environmental protection).
76. Furthermore, although the appellant does not state that the mandatory provision of food is, as a result, contradictory to the economic interests of operators, as this reduces the overall demand for food, which may also affect their profit from the business (Article 26 (1) of the Charter). However, this negative economic impact is only mediated and not serious. In particular, it cannot be concluded that the turnover of the compulsory operators would be reduced in the same volume as that of the mandatory food. Part of the food being donated can be exported abroad as humanitarian aid, and even if that is not the case, it cannot be assumed that the volume of food possibly purchased is the same as those donated. On the one hand, perhaps not all foods will eventually find their application to the needy (e.g. they will cease to be so-called safe during distribution, as the Association of Trade and Tourism of the Czech Republic warns - sub 28), and on the other hand, the treatment of the recipients of the aid with free goods is less economic than the goods to be paid.
77. From the point of view of competition, account should also be taken of the fact that only operators under Section 11 (2) of the Food Act are "affected 'in this way, but the effects of the measure in question are (more or less)" spread out' on all food sellers (Section 11 (3) of the Food Act), since even there the population would not have purchased such food. As a general rule, these foods are directed towards the population group (asylum homes, emergency dormitories, day-care centres, families involved in field programmes of charitable organisations), whose purchasing power is rather limited, so it cannot be assumed that they would buy the same amount of food, especially those that are otherwise sold at a higher price level (e.g. the press mentioned the case where the final customer first met smoked salmon).
78. The Constitutional Court, apart from the income side of the case, could not go beyond the cost side, which may also have an impact on the operators' management, but there is no reason - given the content of the proposal in question - to consider that the costs of (compulsory) food supply would in any way significantly exceed the costs of disposal as waste in accordance with the relevant legislation, but it is undoubtedly more organisational (meant than mere removal of waste), as it will be necessary to allocate, store and transfer the food to so-called food banks. In addition, the operator may, with sufficient caution, also reduce the scope of this obligation (by optimising the supply of its food outlets, reducing their price before the recommended consumption date, applying the responsibility of the supplier of defective products, etc. - see also sub 69).
79. In this respect, the appellant's objection to the infringement of the equality of food business operators must also be addressed (see sub-40). The chosen distinction (both similar and foreign models) is based on the effectiveness of measures for larger plants, and on the fact that such operators with a surface area of more than 400 m2 possess logistic equipment such as warehouses, electronic monitoring of stock or sales stocks and their characteristics, technologies to maintain food at the desired temperature, the expert apparatus is able to better manage the office side of food provision.
80. This is therefore not a donation - this is an autonomous decision by the owner towards anyone of his choice for whatever reason. The provision concerns a well-defined matter in a defined situation in order to monitor the general well-being and at the same time the public interest (often the interest of the operator himself - to dispose of excess non-marketable goods, to gain a reputation, to maintain the necessary level of protection of public health and the quality of other stored foodstuffs). The idea of a food business operator, who, as a Harpagon, collects food that does not meet the requirements of food law, is certainly not shared by the appellant, even though its argument that it is an act similar to that of the Protectorate or of the former regime, is partly indicative of that. However, the Constitutional Court takes the view that the State, which takes such legal measures in order to protect the environment, to investigate food, to help the socially weak, does not carry out any terror in society, but acts in the interests of the general good (see below), that is to say the whole of the company (the State itself as a public authority cannot have any own interest - only pursuant to Article 2 (1) of the Constitution, it implements it within the limits of the law as the interest of those from which its authorities derive their power), while at the same time implementing a number of public interests which justify such interference in property rights or business.
Objection to introducing a tax in kind in breach of Article 11 (5) of the Charter
81. The appellant, probably in eventum, qualifies the obligation as tax, which must therefore be assessed in the light of Article 11 (5) of the Charter. The tax in modern terms is regarded as a payment obligation provided by the State by law to obtain income for the reimbursement of social needs, i.e. for the state budget, without being granted equivalent consideration to the taxable entities. The content of this concept does not correspond to the obligation. In this respect, it is not only essential that this is not a payment obligation, but rather in kind (however, no such taxes have been applied in the Czech Republic at present or in the recent past), but (at the same time) it must be taken into account that the performance in question is not directed at the benefit of the state budget (on the contrary it is partly burdened by the increasing support of food banks), and in particular the contested obligation differs by its nature from the tax obligation, when taxes are usually "constructed ', so that their amount depends on a specific unit or the amount of the financial amount. For the sake of completeness, the Constitutional Court states that it is aware of its efforts to introduce a tax on non-selling food abroad (e.g. in the Republic of Poland). As mentioned above, this would be linked to an increase in the price of food (similar to the contribution to the disposal of historical electrical equipment), or to the introduction of a withdrawal obligation as for electrical equipment or medicinal products.
82. The Act referred to in Article 2 (2) of the Charter, in conjunction with other provisions of the Charter, defines how far public authority may intervene in the public interest and what it may impose on private individuals pursuant to Article 2 (3) of the Charter ("no one may be forced to do what the law does not impose"). The food business operator is not deprived of its assets without further processing, only the conditions under which it is "to be provided" in the public interest (for the general good) of a non-profit organisation (intermediaries), which is, in turn, a charitable organisation for a general purpose defined by the legislature authorised in the elections for that purpose. It is therefore not a public law decision which decides on the precisely defined assets of the operator that its ownership, contrary to its will, goes to the State. The food operator simply "provides" such food in a situation where the conditions laid down in Article 11 (2) of the Food Act are met. Such a situation occurs when food owned by it meets the conditions laid down, i.e. it is safe, but cannot be "placed on the market ', and a non-profit organisation can use it for a legally defined purpose. Therefore, the appellant's objections to that sub will not stand between 40e and 40i.
83. The State is acting, on the one hand, in the public interest, as it facilitates the living conditions of a particular population (area of positive performance in the public interest), which also results from its obligations contained in Articles 30 to 32 of the Charter (social policy, health protection, family care). At the same time, while it interferes (an area in which it interferes) with the rights and freedoms of entrepreneurs, it is not possible to say on a flat-rate basis that any "provision" of such an intervention is always necessary. But even if it is an intervention, it does not interfere with the nature and purpose of the business as an activity carried out to obtain profit for its own account and also with the risk of loss. It is precisely the situation of such a loss (non-marketability) that the State regulates by setting out "the obligation to provide 'when it lays down the conditions for dealing with such an object of business in order to do so also in the public interest or to contribute to the performance of its functions (social, health, environmental protection, as well as public security and order). Any person who cannot obtain food for various reasons will not be tempted or forced to obtain it in another, sometimes illegal, way, way, way, way, way, way, way, way, way, way, way, way, way, way. This, too, falls within the category of means of monitoring the general interest.
84. The State supports non-profit organisations (essentially translation sites and intermediaries) from the state budget and increases support under the new measures. At the time of the submission of the proposal under consideration, the Ministry of Agriculture allocated CZK 23 million to the pilot project to support food banks as a grant title (see sub 21, also Adáková, A. How to prevent food waste? Retail info Plus. 9. 2. 2017, p. 60, the reply of Prime Minister A. Babiš to the interview of MEP O. Richter at the 20th meeting of the Chamber of Deputies on 25. 10. 2018 - he stated, among other things, that in 2018 it was already CZK 33 million and partner organisations with humanitarian focus were about 500). For 2019, the government has already approved CZK 55 million (available at https: / / www.iradia.cz / zpravy- home / food-banks -ceska-federace-food-bank-minister- work-a _ 1811141615 _ gak). This is about support for private actors, but involved in carrying out the tasks of state policies in the fields of social, health, family, security, environmental protection, indirectly employment policies and others. Finally, this would also be sufficient to demonstrate the public interest if it were indeed an expropriation in the true sense of the word, since such an organisation does not serve its own interests, but the interests of the general good (it does not serve to achieve private gain), so that their private legal nature goes back to the background in this regard. In fact, the appellant calls for a further increase in the state apparatus and the cost of the state to organise something that will be more appropriate to achieve the means of various activities of civil society, as the preamble to the Constitution finally points out (a state based on the principles of civil society). Therefore, the State cannot be criticised for doing so through them, as well as for subsidizing their activities depending on the costs associated with them (now growing, which is linked to the increase in the volume of food provided - see Government statement, sub 21).
Existence of public interest (so-called legitimacy of the objective pursued)
85. The appellant argued in its proposal that, in order to be regarded as a measure in the public interest, there would have to be a public body consisting of the existence of a public body to which that interest would be linked or which provides for it, whereas in the present case that interest is only linked to a non-profit organisation. However, this view is not shared by the Constitutional Court. The appellant itself admits that in legal theory these concepts (public and general interest) are often identified [cf. Gerloch, A. In: Hendrych, D. et al. Legal dictionary. Prague, 2009, where the public interest is referred to as "a type of interest which is of general benefit (in particular the interest of the State or other public corporation), the opposite of a purely private interest '). Nor does the European Court of Human Rights distinguish strictly between them, although Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms (like Article 11 (3) of the Charter, in which the legislator undoubtedly inspired by this International Convention) contains both of these concepts, even in later case-law in both cases uses the term" legitimate objective' (cf. Kmek, J., Košák, D., Kratochčl, J., Bobek, M. European Convention on Human Rights instead. Comment. 1st edition, Prague: C. H. Beck, 2012, p. 1277-1278, paragraph 68). The Constitutional Court does not consider it necessary, in view of the problematic state of the art of the theory (in addition to the fact that it is still divided in the field of philosophy, ethics, theology, sociology or statehood) to carry out a deeper analysis of comprehensive and inconsistent literature and to limit itself to the necessary conclusions.
86. If there was to be a distinction between the two terms, it could be considered that the general interest (general welfare as one of the general purposes of the existence of the State since the Aristotle period) is the broader concept, in the sense that the public interest in it can be manifested only in general (cf. Praha: V. Linhart, 1949, p. 36-37), in relation to the whole and its recognised and expressed values (i.e. not only for a specific case) or in a way that is intermediate. Here, as an example, there is a social need to regulate these relations in order to avoid disputes between these owners, which may also occur in their "neighbourhood '(public), which is ultimately also in the interests of the neighbours. The Constitutional Court further recalls that the constitutional and legal condition of the most serious interference in property law, which is expropriation, is not that it can happen only for the benefit of the State or of a public corporation, but also for the expropriation of private law (see for example Handrlica, J. Private legal persons awarded with an expropriation title and their rights in the level of public law. In addition, the Commission considers that the aid is compatible with the internal market.
87. For this reason, the appellant's assertion of public interest with a public interest is not entirely out of the question, since it is a regular feature of expropriation, but it is not a necessary sign, not to mention that the concept of "public interest 'in the Charter is merely an abstract of a set of specific public interests (the notion of one public interest in a democratic rule of law is funny), which may be a state, and is often also strongly opposed to one another as a public interest in universal and particular or local (the protection of the environment and expansion of mining areas, the revenue of the state and the negative consequences of mining of the state and, as a general rule, the interest of another - see, for example, the finding of 8. 11. 2018 sp. In the case of the general interest or of the common good as an objective expression thereof (e.g. the protection of generally shared values expressed in the form of fundamental rights and in the need for their protection by the State), such conflict is not foreseen (constitutional order simply prohibits the execution, censorship, torture, etc.), but this can only apply where the general and public interest is not identified (e.g. in France, the ECHR case-law).
88. It follows from the Government's argument that the public interest, which is to justify the interference in the ownership of the operators concerned, is, on the one hand, to provide social assistance and, on the other, to protect the environment. If this is the first case, the appellant pointed out that the charitable activity to be taken into account in the case at hand has always been based on volunteering. However, this argument is rather political in nature, as it reflects the state's position and the level of its independence in the position and activity of private individuals (cf. Section 11 (3) of the Food Act), and, in practical terms, this voluntary nature did not show much (with honourable exceptions - see the debate at the 23rd meeting of the Senate on 27 April 2016). From the point of view of constitutionality, the public interest can undoubtedly be seen as existing, although it may seem controversial in the case of food to be consumed domestically (however reduced by exclusion from sale or marketing). This is particularly the case from an ethical point of view, as the State has as a result shown that there may be somewhat lower demands for needy persons if they are to meet their very basic needs than for others. At the same time, however, the Constitutional Court could not ignore the fact that it is still so-called safe foods, the quality of which is either de facto identical to standard foods (such as those with damaged packaging or labelled with incorrect labelling or description, which could be sold after possible re-packaging), or, although it is somewhat lower (e.g. foods with an expired date of minimum durability, but in the case under consideration it is not intended to be stored in the long term, but immediate consumption), their sales are (at reduced price) common in the establishments concerned, even for the purpose of selling such foods have been produced by specialised shops in which they do not only buy socially weak persons.
89. The second aspect is the economic aspect, and its "contention 'is that the State" transferred' to the operators concerned, in some sense, which are thus forced to act in conflict with their commercial interests (see sub-sub 76). At the same time, however, it should be taken into account that there is a state-built, rather dense social network in the Czech Republic, but it cannot (for many reasons, which are not just on the side of the state) capture all those who need some help (in other words, the state cannot be everywhere). To this end, there are various public-service organisations that systematically provide this, in some sense, "complementary 'assistance (but that does not mean that the Constitutional Court intends to reduce its importance). This is not about a situation where the State transfers its basic obligations to private-law entities, but only about supporting organisations that provide such social assistance.
90. However, the above conclusions on food provided for humanitarian purposes, i.e. starving abroad, apply significantly less. This is because, in principle, their lower quality can be accepted and it is not even possible to assume that the sales of the operators concerned would be affected, as the State does not normally buy from them for these purposes (here it refers directly to the producers). On this point, the Constitutional Court considers the public interest to be clearly stated, since the contested measure can contribute to the fulfilment of the international obligations of the Czech Republic without imposing a significant burden on both the state budget and the operators concerned themselves. In particular, the Constitutional Court could not forget that the contested measure also pursued another objective, namely environmental protection. While, in the case of aid to the socially weak, it can be imagined that this will be left to the State in the hands of charity, the environmental element of 'voluntary' plays a significantly smaller role, on the contrary, it turns out that strict regulation is necessary in this area (with, of course, consistent training where legal regulation options are limited, such as household waste sorting). In general, environmental protection fulfils the condition of public interest, it can also be recalled that the favourable environment is also a value protected at constitutional level (see the third sentence of Article 11 (3) and Article 35 (1) of the Charter and Article 7 of the Constitution). However, the question is whether there is a public interest in this particular case. As mentioned above, the obligation applies only to food that would end up as waste in incineration plants or even in landfills, in a state where they could still serve as food. It is clear that from the point of view of nature protection it would be best for waste to be generated as little as possible and, if any, to be used in some way (e.g. as a secondary raw material) and, in the last case, to be disposed of environmentally. The contested measure undoubtedly prevents the very creation of waste produced by large food stores in considerable quantities.
91. In this context, some educational effects of the measure cannot be omitted. The Constitutional Court sees no reason to question the government's argument that food-based waste is a major problem worldwide, as is confirmed by the fact that many countries intend to reduce food waste and reduce the amount of waste so produced, or have even taken measures at legislative level. In doing so, too, the state is showing that everyone should act in an environmentally friendly manner and, in this regard, should bear a certain share of their responsibility, including the citizens themselves. Therefore, in France, for example, the legislation in question is linked to measures in the education of young people to investigate and prevent their waste. These preparatory works in the Republic of Poland then consider that the taxpayer of non-sales tax may deduct a fifth of this tax for the purpose of promoting food investigation at his premises.
92. The appellant also argued that the measure could have a negative impact on other activities which are also in the public interest, such as the provision of food to zoos or associations caring for abandoned animals. The Constitutional Court admits that this can indeed be the case, but considers that, from the point of view of public interest, priority should be given to helping people (which is finally recognised in the anthropocentric establishment of the Charter). Moreover, because the obligation is not of a general nature, there remain a number of bodies not covered by the obligation and the food can undoubtedly be donated by the operators concerned in the absence of the interest of humanitarian or charitable organisations, or in the case of food which is no longer so-called safe but still available for the purpose (i.e. animal feeding). The donation of food as feed could be assessed as a conflict of two public interests only under the conditions of a particular case.
Test of proportionality - summary
93. The Constitutional Court points out in its settled case-law that the limitation of fundamental rights must, in particular, be in line with the requirements of the rule of law and meet the requirements based on the proportionality test - in cases of conflicts of fundamental rights or freedoms with the public interest or with other fundamental rights or freedoms, the purpose (objective) of intervention in relation to the resources used must be assessed, with the proportionality principle of assessment being the criterion (in the wider sense). The legislation in question must be precise and clear in its wording and sufficiently predictable to provide the potentially affected individuals with sufficient information on the circumstances and conditions under which the public authority is entitled to intervene in their privacy and, where appropriate, to adjust their behaviour to avoid conflict with the restrictive standard. The powers conferred on the competent authorities, the manner and rules for their implementation must also be strictly defined in order to protect individuals against arbitrary interference.
94. The assessment of the admissibility of the intervention under the principle of proportionality (in the wider sense) includes three criteria. The first is the assessment of the eligibility of the purpose (or suitability) - whether a specific measure is in any way capable of achieving the intended objective of protecting another fundamental right or public good. In addition, the need is assessed in the second step - it is examined whether the most respectful of basic law was used when selecting funds. Finally, proportionality (in the narrower sense) is assessed, i.e. whether the injury to the fundamental right is disproportionate in relation to the intended objective. Therefore, measures limiting fundamental human rights and freedoms must not exceed, in so far as there is a conflict of fundamental law or freedom with public interest, the positive effects of which constitute a public interest in the measures [cf. the finding of 13.8.2002 sp. zn. ÚS 3 / 02 (N 105 / 27 SbNU 177; 405 / 2002 Sb.)].
95. However, the proportionality test can only be considered where the contested legislation or public act or other intervention by a public authority has undergone an assessment of constitutionality in terms of form and content in general terms. In the present case, it can therefore be concluded that the Constitutional Court did not find any defects in legislative powers (Parliament also respected EU law) and the Constitutional Court of the ordinary legislative process. Similarly, no direct violation of a part of the constitutional order was found. For example, the proportionality test does not take into account the violation of constitutional standards - rules, unlike constitutional standards - principles. It is impossible to assess whether the imposition of the death penalty, torture or censorship will stand in the proportionality test, because such intervention is completely excluded in every situation.
96. Since the Constitutional Court did not find such a situation in the case under examination, the appellant's extensive argument was that the three aspects of the so-called proportionality test were assessed.
97. It concluded that the purpose (objective) of the above-mentioned interference in the ownership rights of the parties concerned (see, in particular, sub IX. E, the assessment of the legitimacy of the objective) could be considered appropriate in relation to the resources used. In this respect, it found that the principle of eligibility for the purpose (or suitability) had been fulfilled, as the measure in question was undoubtedly capable of achieving the intended objective of protecting the public good. Nor was it found to be a contradiction with the principle of necessity, since the Constitutional Court is not aware of a more sensible means (from the point of view of the fundamental law concerned) by which the intended objective could be achieved. Although there were already several operators who provided the food in question on a voluntary basis before the contested provisions were effective, there was only a minor proportion of them. According to publicly available information, it can be assumed that the volume of food provided is up to back-up (about 1 900 tonnes of food was provided in 2017 for 70 000 needed (see e.g. data provided by Czech Television, Czech Federation of Food Banks, respectively, - ČT 1 Events. 3. 1. 2018, 19.00 hours, same as on 4. 1. 2018 on https: / / ct24.ceska television. cz / regions / 2350567-do not sell-some-supermarket-putures- from-January-mandatory charitam). At the end of 2018, it was already estimated that it would total around 4,200 tonnes of food in 2018 (the Czech Food Bank Director for Radio (available at https: / / www.iradia.cz / pravy- home / food-banks-federace-food-bank-minister- work-and _ 1811141615 _ gak). The Constitutional Court considers these facts to be of a relatively fundamental nature in terms of importance, which can actually contribute to the protection of the environment and other values protected by constitutional order (legitimate objective). The consideration of whether or not the introduction of (actual) tax concessions or the granting of some form of financial support would otherwise contribute to the increase in their number does not guarantee that the participation will be complete in terms of equality and electricity, in addition, such a measure would constitute an additional burden on the State budget. In principle, an "equivalent 'solution would not be the case in the view of the Constitutional Court.
98. If it is a so-called proportionality test in the narrowest sense in which it is examined whether the injury to the fundamental right is disproportionate in relation to the intended objective, i.e. whether the positive effects of the measure (in a collision of the fundamental right with the public interest) exceed the negative consequences resulting from the limitation of the fundamental right in question. As already mentioned above when comparing the area of intervention and the area of solidarity contribution to the necessary ones, although legal interference with the operator (s) 's disposal authorisation (s) takes place, however, in a situation where the operators concerned are still limited in this respect (which is due to the nature of the case in conjunction with the legislation relating in particular to waste management) and where, after the year of application of the contested legislation, no disproportionate burden was found to be attached to the obligation. On the other hand, there are generally positive effects in terms of the possibility of improving the living situation of the socially weak and clearly positive in the case of aid to the socially weak. In particular, it can reasonably be expected that the measure will contribute from a longer-term perspective to improve the environment and protect other values (see sub 75, 83, 84), which can be seen as a clearly positive fact. The Constitutional Court must therefore conclude that even in the so-called proportionality test (in the narrow sense) the contested provisions of Section 11 (2) of the Food Act and the associated part of the provisions of Section 11 (3) of the Food Act have been complied with.
99. It was therefore not necessary to address part of Section 11 (2) of the Food Act, expressed in words... "a non-profit organisation which collects food free of charge, stores and assigns it to humanitarian or charitable organisations which provide food assistance to social services clients; Such organisations shall be designated by the Ministry by an ex officio decision. Foods intended for social services clients must subsequently be marketed only free of charge '. Although it is part of Section 11 (2) of the Food Act, which was designed to be repealed as a whole, the whole of the appellant's argument was led to its part in principio, which reads:" The food business operator who places food on the market in an establishment with a sales area of more than 400 m2 is obliged to provide food which does not comply with the requirements laid down by this law or the European Union's directly applicable food requirements but is safe to provide free of charge... "
Objection of lack of judicial protection for the imposition of a fine on an offence pursuant to § 17 (2) (j) in conjunction with § 17f (c) of the Food Act
100. That conclusion also refers to the appellant's proposal, which, together with § 11 (2) and § 11 (3) of the Food Act, proposes to repeal also the related § 17 (2) (j) and § 17f (c) in the words "or (j) '. These provisions are based on the substance of the infringement in question in the section of food law. However, the appellant itself has practically not put forward any arguments in this respect, even in view of the maximum amount. However, this does not mean that the unfounded unfounded plea of inconstitutionality against the" obligation to provide "also leads to the settlement of the inconstitutionality of the offence fine under Paragraph 17 (2) (b). (j) the Food Act as well as the objection that there is no judicial protection of operators' rights. These provisions can be separated from each other, so that Article 11 (2) and part of paragraph 3 of the Food Act could continue to apply, so that those provisions would constitute the case of Legis imperfectae when the sanctions are repealed.
101. The Constitutional Court, for the sake of completeness (in addition to the appellant's argument), notes that the nature of the infringement in question is defined by the fact that it is committed by the food business operator, who "does not, in breach of Article 11 (2), provide free of charge for the non-profit organisation of foodstuffs which do not comply with the requirements laid down by this law or by a directly applicable European Union regulation governing food requirements, but are safe." In accordance with Section 17f (c) of the Food Act, a fine of up to CZK 10 000 000 may be imposed. These provisions have been inserted into the law in the form of amendments (without discussion and justification in the Chamber of Deputies), which is partly reflected in their assessment, but which in the end shows mostly only legislative-technical shortcomings which do not lead to the need for intervention by the Constitutional Court. Therefore, neither is the lack of justification for "non-free" penalties (as opposed to the justification for sanctions for food offences - see the Chamber of Deputies. VII. Election. Press 687) can change nothing in this evaluation.
102. The substance of the infringement is part of a group of offences related to the serious problem of labelling and marketing in the Czech Republic and within the European Union. As a possible legislative error, it can be described here that the designation for "placing on the market 'is something other than the provision of food for the market no longer applicable (the subject matter of protection is generally related, not an objective aspect of the infringement, although the prohibition of placing on the market in a number of provisions of Section 3 of the Food Act is, of course, directly related to this in case of otherwise safe food). The level of the penalty itself is linked to the joint regulation of the strictly monitored sale of tobacco products, and by the fact that the infringement of the rules on the placing on the market of foodstuffs contrary to EU rules is the substance of a number of other offences, as has already been said [cf. Therefore, objections to the maximum level of the fine would be withdrawn from the context of the other offences enshrined in Article 17f (1) of the Treaty. (c) the Food Act.
103. It is important, then, that in this way the right to judicial and other legal protection is ensured in the event of the imposition of a fine. If the appellant contends that such protection is lacking, it is merely a consequence of its opinion on the very nature of the "obligation to provide 'and the manner in which it is implemented as expropriation (see, in detail, sub-sub IX). It is only in the event of sanctions that the administrative or judicial review takes place, including the conditions under which its imposition is at all possible. The Constitutional Court points out that, if a review of the sanction imposed by an independent court in the administrative judiciary is ensured in the light of its rationale as well as the proportionality of the fine imposed, the appellant's conclusions on this part of the appellant's argument in the context of abstract scrutiny could only be predetermined. It can therefore be noted that the assessment of the adequacy of the intervention for the breach of the obligations imposed by the infringement, the reasons and the manner in which the rule laid down in Article 11 (2) of the Food Act and its harmful consequences are possible, but that is why they can only be subject to review after, according to the alleged sanctioned food business operator, it is possible to do so in a particular case.
104. It is very difficult to predict the problems that the legislation will cause, but in the view of the Constitutional Court, the issues that the appellant poses can be addressed by interpretation of both that law and other legislation (e.g. tax on the application of tax concessions and the calculation of value added tax), and some "technical questions' of cooperation can be dealt with by agreement of the stakeholders. Therefore, it cannot be concluded at this time (December 2018) that the legislation in question could not, in the light of its" inadequacy, 'when it comes to defining the rights and obligations of the parties concerned, be of a constitutional nature; However, it cannot be excluded, of course, that the opposite will be shown in relation to specific cases. In this context, operators in the Constitutional Court may defend themselves individually, i.e. through a constitutional complaint linked to the proposal to abolish the legal provision used. The mere concern of operators as to how the legislation will be interpreted and applied by the competent public authorities (namely these bodies point to "the risk of their very easy sanctions') does not justify the interference of the Constitutional Court.
Other objections
105. However, the appellant points out (see sub 40j and 40k) that the contested law does not explicitly regulate certain issues, such as responsibility for food safety, without stating what it specifically sees as inconstitutionality. It can be noted here that the explicit regulation in the so-called Legge del Buono Samaritano adopted in Italy (Act No 155 / 2003 of the Official Journal of the Italian Republic - available at http: / / www.gazzettaufficiale.it) and governing (limiting) the responsibility for the condition, transport, storage and use of donated food. This adjustment is unique within the European Union and follows a model in the form of the 1996 US Bill Emerson Good Samaritan Act (available at https: / / www.gpo.gov), which protects the provider (food business operator) from criminal and civil responsibility for food devoted in good faith to non-profit organisations for the final division of the necessary (Needy individuals). However, it is not clear why, in our circumstances, if such a special arrangement had not been adopted (as in many other countries), given what food is concerned and the risks associated with its distribution, the general liability regime should not apply. It should also be pointed out that the amended provisions of the Food Act do not operate in the empty air, but in a system of measures which regulate the supervision of food safety and quality and protect and promote public health, etc.
106. The parties' objection to the payment of transport costs to the relevant non-profit organisations should be noted (without any further argument) that, in the light of the compulsory bodies, it does not reach a constitutional level, and that, on the one hand, it is known from practice that non-profit organisations also commute according to the agreement and their needs (storage and cold storage, etc.) for the food in question.
107. The appellant also (again without further reasoning) pointed out that the law which expropriates the foodstuffs in question does not fulfil the constitutional condition of compensation, even in a flat-rate form (sub 401). In fact, the food business operator is legally obliged to donate these goods with tax obligations. Since it has already been distributed from above that it is not a matter of expropriation, it can be recalled here that the Czech Federation of Food Banks, p. (sub 29), according to which the company which donates food to the food bank can take advantage of the possibility of not paying value added tax on donated food (see but sub 74 - the legal nature of the obligation to provide food), the operator may also apply the value of the donation to deduct from its tax base in the calculation of the income tax, in both cases the tax advantage of a food donor which would otherwise be thwarped. It is necessary to refer here to the information provided by the General Financial Directorate on the application of value added tax when donating goods to food banks of 15 December 2014 No 59193 / 14 / 7100-20116-011695 (available at https: / / www.finannisprava.cz), in the appellant's argument, which essentially regulates the issue like other EU Member States.
108. The Constitutional Court refers here to the Commission Communication 2017 (p. 20), which, on the basis of the guidelines approved by the Committee on Value Added Tax, recommended that, when determining VAT in the case of food donations, the value of these goods should be adjusted according to the circumstances and condition of the goods at the time of donation. Where food is donated with an approximate date of "minimum durability until 'or" use by' or goods that are not suitable for sale, but can be safely consumed, Member States should take into account the relevant circumstances when determining the VAT due, which, in the case of foodstuffs that do not actually have any value, may be zero. Nothing prevented the appellant (i.e. a group of 25 senators) from exercising its constitutional powers and initiating the regulation of this issue in tax legislation, despite the fact that this issue was also the subject of a critical debate on the draft amendment in question (Senate of Parliament of the Czech Republic). Press 248) at the 23rd Senate meeting on 27 April 2016. However, the Senate's comment on the proposal only captures the critical speeches of the Senators against the amendment (sub 15), not the opposition to these views, such as the opinion of the rapporteur of Senator Jan Hajda's guarantee committee: "When I listened to some colleagues who have, in my view, overlooked the essential thing in this law (see. - increasing the effectiveness of the inspection of establishments and closing them for maladministration), whether VAT is decisive for any bread that can be given giraffes, etc., I do not know what the voters may think of such a debate."
109. Finally, the appellant's contention that the government's argument that it is at the same time a matter of fulfilling international obligations is hypocritical (see sub 30, 40m). In order to assess such a claim (the possibility of assessing the constitutionality of hypocrisy), the Constitutional Court lacks a reference benchmark in Article 87 (1) (a) of the Constitution. Therefore, it merely reiterates that the EU Food Law Regulation is generally binding and in the Czech Republic directly applicable EU secondary legislation, which does not require transposition in the form of national legislation and which has a direct effect on legal relations in the regulated field. Other documents of international or transnational organisations, which the Czech Republic is a Member State, draw attention to the above mentioned problems and suggest ways in which they can be at least partially addressed and their consequences reduced. The problem in terms of constitutional order is not that the Czech Republic, as a member of the family of democratic states (preamble to the Constitution), is involved in their solution, but in the means it uses to do so. It is impossible for our right as an EU Member State law based, inter alia, on the free movement of goods to lay down conditions for food safety other than those defined by the EU Food Law Regulation (cf. its recital 3 - "Free movement of food and feed within the Community can only be achieved if the food and feed safety requirements do not differ significantly between Member States.") This is not about hypocrisy, but about fulfilling obligations under international law and membership of a transnational organisation under Articles 1 (2) and 10a. Constitution, regardless of the principle of solidarity, which should be a matter for the community of persons organised in a democratic rule of law (see also Articles 25 (1) and 29 of the Universal Declaration of Human Rights). That is why the Constitutional Court understands the proposal to abolish the contested provisions of the Food Act merely as a sign of opposition to the imposition of additional and additional obligations on entrepreneurs, and not as a sign of selfishness or profit-seeking, regardless of the company's conditions.
Conclusion
110. The Constitutional Court has examined the objections raised in respect of compliance with the constitutional rules and the proportionality test. It concluded that they were able, at least with regard to the abstract review carried out, so that it is not excluded that, as in other cases, specific measures and public-law interference in ownership or right to engage in business (although the intervention in the latter law was not contested in the present case) may lead to a breach by the appellant of the fundamental rights and freedoms claimed. In order to protect against them in a particular case, it is only the means of judicial protection, including a constitutional complaint, where it is possible to assess whether compliance with the obligation laid down and the possible imposition of a fine for failure to comply with it can be considered no longer as an intervention, but as a breach of these constitutionally guaranteed rights and freedoms.
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Regulation Information
| Citation | The Constitutional Court found No 51 / 2019 Coll., on the application for annulment of certain provisions of Act No. 110 / 1997 Coll., on Food and Tobacco Products and amending and supplementing certain related laws, as amended |
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| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 21.02.2019 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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