The Constitutional Court found No 512 / 2004 Coll.
The Constitutional Court found of 18 August 2004 on the application for annulment of the Order of the Ministry of Finance No 487 / 2001 Coll., amending Decree of the Ministry of Finance No. 125 / 1993 Coll., laying down the terms and rates of the statutory insurance of the employer's liability for accidents at work or occupational disease, and on the application for annulment of § 205d of the Labour Code and repealing Decree No. 125 / 1993 Coll., as amended
Valid
The Constitutional Tribunal found
Text versions:
30.09.2004
512
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 18 August 2004 in plenary on the proposal of a group of senators of the Senate of the Parliament of the Czech Republic to repeal the Order of the Ministry of Finance No. 487 / 2001 Coll., amending Decree of the Ministry of Finance No. 125 / 1993 Coll., laying down the conditions and rates of statutory insurance of the employer's liability for damage to work or occupational disease, and on the proposal of the Minister of Finance to repeal § 205d of the Labour Code and repealing Decree No. 125 / 1993 Coll., as amended,
as follows:
I. The proposal by the Senate Group of the Parliament of the Czech Republic to repeal the Order of the Ministry of Finance No. 487 / 2001 Coll., amending Decree No. 125 / 1993 Coll., laying down the conditions and rates of statutory insurance of the employer's liability for damage to work injury or occupational disease, is rejected.
II. The proposal of the Minister of Finance to abolish Paragraph 205d of the Labour Code and to repeal Decree No. 125 / 1993 Coll., laying down the conditions and rates of statutory insurance of the employer's liability for accidents at work or occupational disease, as amended, is rejected.
Reasons
Definition and recap of the proposal
On 20 March 2003 the Constitutional Court received a proposal from a group of senators of the Senate of the Parliament of the Czech Republic to repeal the Order of the Ministry of Finance No. 487 / 2001 Coll. (hereinafter also "Decree No. 487 / 2001 Coll. ') amending Decree No. 125 / 1993 Coll. (hereinafter" Decree No. 125 / 1993 Coll.') laying down the conditions and rates of statutory insurance of the employer's liability for damage to work or occupational disease.
The appellant initially summarises the content of the Decree No 487 / 2001 Coll. It states that it amends the provisions of Section 16 of Decree No. 125 / 1993 Coll., by reducing the above-mentioned administrative direction from 25% to 13,5% of the total amount of insurance premiums received by the employer in the calendar year in question, and also changes the level of premium rates for all categories in Annex 2 to Decree No. 125 / 1993 Coll. calculated economic activities but at different levels. It states that Decree No. 125 / 1993 Coll., as well as its amendments, were issued on the basis of the authorisation contained in § 205d (7) of the Labour Code.
The contention of the contested Decree No. 487 / 2001 Coll. with constitutional and legal order is seen by the appellant in the breach of the constitutionally prescribed method of its adoption within the meaning of § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, and thus in violation of Article 79 (3) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution). In his view, the Ministry of Finance failed to follow the relevant legislative procedure when adopting the contested decree.
According to the provisions of Section 23 (2) of the Labour Code, draft laws and other legislation concerning the important interests of employees, in particular economic, production, labour, wage, cultural and social conditions, need to be discussed with the relevant central trade unions and the relevant employers' organisations. In so doing, the appellant underlines the content of Decree No 487 / 2001 Coll. under the framework defined in Article 23 (2) of the Labour Code and takes the view that this decree affects the economic, labour and social interests of employees, as the increase in compulsory insurance affects negatively the level of wage growth and potential social benefits which could otherwise be achieved, for example, in collective bargaining. For this conclusion, the fact that the draft decree in question was circulated by the Ministry of Finance as part of the commemorative management of the Czechoslovak Confederation of Trade Unions and the Confederation of Industry and Transport of the Czech Republic is also clear. Infringement of Paragraph 23 (2) of the Labour Code is then seen by the appellant in the circumstances that the draft decree was not submitted to other trade unions or employers' organisations, although the decree is impacting, which is already due to the list of economic activities calculated in the annex to the Decree, not only to employers associated in the Union of Industry and Transport, but also to a number of other employers' organisations which are associated in other employers' organisations. In particular, it objects to the failure to submit a proposal to the Employers' Association of Mining and Oil Industry and to the Association of Miners of the Czech Republic.
For this reason, the appellant is convinced that the draft decree in question has not been discussed with the "competent employers' organisations', which he considers to be those organisations which have a sufficiently representative position in relation to the types of economic activities they carry out.
Moreover, the appellant contends that even in the case of the Czech Moravian Confederation of Trade Unions and the Confederation of Industry and Transport of the Czech Republic, the draft decree required by the Labour Code was not discussed. However, the term "discussion 'contained in Paragraph 23 (2) of the Labour Code does not make it conditional on acceptance of a proposal by the consent of interested parties, but according to the appellant, that legal provision would in principle be unnecessary if it did not have to take into account any objections, assess them and discuss those objections with interested parties and inform them of the conclusions adopted. In this context, the appellant submits that the draft Decree in question was sent on 20 November 2001 and that the comments should be sent by 22 November 2001, i.e. two days (although the Government's legislative rules set a 15-day deadline for submitting comments), the Decree No 487 / 2001 Coll. was published in the Collection of Laws on 20 December 2001 and became effective on 1 January 2002.
In addition to the breach of the constitutionally prescribed procedure for the adoption of the contested decree, the appellant contests its contradiction with the constitutional principles of equality and proportionality. It states that the increase in premiums was made unevenly, for example for economic activities listed under code 10.1, 12, 13 of the sectoral classification of economic activities (hereinafter "the NACE '), with an increase of more than four times, while for all others a maximum of a quarter. This inequality is then found to be contradictory to the requirement that any differences must be factually justified, e.g. by a demonstrably higher level of risk. Thus, in the appellant's view, certain employers were significantly more burdened than others, without a higher degree of likelihood of injury or occupational disease being the same.
Finally, the appellant repeatedly underlines both the two alleged derogatory reasons, namely both the breach of the constitutionally prescribed method of adoption of the contested decree and its content contradiction with the constitutional order, and therefore proposes that the Constitutional Court accept the finding that the Decree of the Ministry of Finance No. 487 / 2001 Coll., amending Decree No. 125 / 1993 Coll., which sets out the conditions and rates of the statutory insurance of the employer's liability for damage to work or occupational disease, is repealed.
Recital of the essential parts of the party's observations
In accordance with Article 69 of Act No. 182 / 1993 Coll., as amended, the Minister of Finance submitted observations on the invitation of the Constitutional Court.
It stated that the statutory insurance of the employer's liability for damage caused by an accident at work or an occupational disease is governed by the provisions of § 205d of the Labour Code and by Decree No. 125 / 1993 Coll., as amended, and in the light of the creation of this insurance, it also recalled § 789 of the Civil Code, as well as the specific feature of the statutory insurance, i.e. the fact that it arises automatically, i.e. without the will of its entities, if the fact with which the legislation links the creation of such insurance. He pointed out the critical opinion of the Ministry on the constitutionality of the legal insurance in question, which found the expression in the opinion on the control conclusion of the Supreme Audit Office of the Control Action 00 / 17 on the management of the legal insurance of the employer's liability for accidents at work or occupational disease. This critical view is based, in particular, on the objection to the principle of equal conditions for participation in competition, since only two private insurance companies designated by law can carry out statutory insurance without the law laying down more detailed conditions for their selection, and on the objection to the uncertainty of the adjustment of the definition of property damage or surplus, which is an expression of the economic outcome of the legal insurance business for the previous year and do not provide the basis for assessing the economic performance of insurance undertakings, as well as on the objection of the uncertainty of the legal authorisation of the Ministry of Finance to issue a decree adjusting the conditions and rates of premiums. The Minister of Finance considers legal insurance under market economy conditions to be anachronism and points out positive experience in applying compulsory insurance, such as lawyers and patent agents.
In its observations, the interested party points out the discrepancy between the arrangements contained in Section 205d of the Labour Code with the basic principles of private insurance in force in the European Union and that of the Community competition rules [Article 86 (c) of the Treaty establishing the European Community], since the legal advantage of two insurance undertakings authorised to carry out statutory liability insurance for accidents at work or occupational diseases creates a certain inequality in the conditions of the market supply of insurance products.
Based on this criticism of the existing legal regulations contained in Section 205d of the Labour Code, it is a wonder that the appellants overlook these systemic shortcomings of the existing legislation.
On the proposal itself, the participant notes, first of all, that the reason for the amendment of Decree No. 125 / 1993 Coll. resulted from an analysis of the costs of the insurance companies for the administrative management of the statutory insurance of the liability of the employer in respect of accidents at work or occupational disease, which was submitted to the Government on 31 October 2001 for information. On 1 January 2002 the Decree of the Ministry of Health of 30 November 2001 No. 440 / 2001 Coll., on the compensation of pain and difficulty in social application, which replaced the Decree of the Ministry of Health No. 32 / 1965 Coll., on the compensation of pain and difficulties in social application, as amended. Decree No. 440 / 2001 Coll., which was at the time of processing the contested Decree of the Ministry of Finance No. 487 / 2001 Coll. at the final stage of the legislative approval process, increased the value of the point from CZK 30 to CZK 120 when assessing health damage by accident at work or occupational diseases, and increased the number of points according to individual health damage. Thus, the effect of these changes in the legal insurance in question had to be eliminated, according to the party to the proceedings, by increasing the premiums, with effect from 1 January 2003, so that the insurance premiums paid by the employer for the first quarter complied with the new conditions laid down.
The Minister of Finance does not share the opinion of the appellant that the objection to a breach of the constitutional procedure for the Ministerial Order constitutes an infringement of Article 79 (3) of the Constitution. The purpose of this constitutional maximum is to prevent the creation of rights and impose obligations other than by law and within its limits. The interested party further points out that Article 205d (7) of the Labour Code is an authorisation provision for the issue of the order in question, and the obligation laid down in Article 23 (2) of the Labour Code does not affect its acceptance. The content of the contested decree is the change in the rates of administrative management and the change in the rates of insurance, in the first case the cost item of insurance companies, in the second case the cost item of employers. Thus, according to the Minister of Finance, the important interests of the employees were not affected by the decree. The statement also underlines the purpose of the decree in question, as well as the time-consuming situation caused by the length of the process of adoption of the Ministry of Health Decree on the compensation of pain and the difficulty of social application, which was the reason for the brief reminder procedure, in which the Ministry of Finance approached the Czech and Moravian Confederation of Trade Unions and the Association of Industry and Transport of the Czech Republic. For that party, it takes the view that there was no breach of the constitutional procedure for the adoption of Decree No 487 / 2001 Coll..
On the objection of inequality and breach of the principle of proportionality, the party submits that a more significant increase in premium rates (coefficient 4,2) has proved necessary for those economic activities which have the most adverse adverse effect in the long term (in coal mining, the premium was 778,9% of the premiums paid, in uranium mining and 118,6% of ore mining). In addition, an increase in the value of the point for painful and difficult social application was reflected in the actuarial benefits actually paid for the year 2000, while the Ministry of Health decree also increases the number of points according to individual health damage. Finally, the increase in the rates also required the adverse development of the insurance benefits paid, which grew faster than the insurance premiums received, and in 2001 a deficit of around CZK 171 million was already expected from the operation of statutory insurance, which must be replaced by insurance companies from the state budget. The legal insurance is operated by the so-called ongoing financing system, i.e. the insurance premiums paid in a given year are covered by the claims of the injured employees due during the accounting year, regardless of when the damage occurred. This means that the insurance premiums paid by the employer cover the damage that occurred often at a time when the employer himself did not exist. According to the Minister of Finance, such a system can only be operated if the State takes over the guarantee for the damages. The value of the liabilities which were thus incurred during the duration of statutory insurance and which are not covered by insurance premiums but only by the State guarantee is about CZK 22 billion.
According to the parties, the application of the principle of equality and proportionality, in the sense of the appellant's proposal, would lead to an even greater distortion of the system and the unauthorised transfer of costs associated with the payment of damage suffered from an area with a significantly higher incidence of damage to less harmful areas. However much the principle of solidarity is important in such an insurance, the principle of equivalence cannot be ignored.
In view of the reasons put forward, the party to the proceedings rejects the reasoning put forward by the appellant in relation to Decree No 487 / 2001 Coll. and proposes to abolish Article 205d of the Labour Code for its non-compliance with the Constitution, including Decree No 125 / 1993 Coll., which sets out the conditions and rates of statutory insurance of the employer's liability for accidents at work or occupational disease, as amended.
Intervention of the Ombudsman
Under the provisions of Section 69 (2) of Act No 182 / 1993 Coll., as amended, the proposal in question was sent to the Ombudsman on 10 April 2003, but did not use his right to intervene.
Ordonnance of the oral hearing and reply of the appellant to the observations of the party
According to the provisions of § 44 (2) of Act No. 182 / 1993 Coll. The Constitutional Court may, with the consent of the parties, refrain from oral proceedings, unless it is possible to expect further clarification of the case. In view of the fact that the provision in question can be relied upon to examine the case in question, the Constitutional Court asked the parties to submit their observations whether they agreed to abandon the oral hearing. In its submission of 24 March 2004, Mr J. Š, CSc, Deputy Minister of Finance, gave its assent to the Constitutional Court's proposal for a hearing; On the other hand, by letter dated 8 April 2004, the appellant disagreed with the abandonment of oral proceedings, which ordered oral proceedings.
In the present submission, the appellant further submits that, in its view, the provision of Section 205d of the Labour Code considers that it is inconsistent with the basic constitutional requirements imposed on the scope of the material, which must be regulated at the legal level, but at the same time its annulment and the subsequent implementing regulations of the Ministry of Finance would not improve the situation, since at the time of the application for annulment of Decree No 487 / 2001 Coll. there was no proposal for new legislation on the issue. The appellant's efforts therefore focused on the abolition of a mere amendment - Decree No. 487 / 2001 Coll., which amends Decree No. 125 / 1993 Coll., since it did not consider that the decree was adopted by the Constitution in the prescribed manner (Article 79 (3) of the Constitution) and, contrary to the earlier regulation, infringes the principle of equality. Furthermore, the appellant does not consider the party to be actively legitimate in bringing an application for annulment of the Act (§ 64 (1) of Act No. 182 / 1993 Coll., as amended), pointing out that it may have initiated an amendment to the relevant provision of the law by means of a government bill, or it may have used some of the amendments to the Labour Code from recent years to amend it.
According to the appellant's findings, the Ministry of Labour and Social Affairs began to work on the substantive intention of the legislation governing the insurance of employees, according to which the Czech Social Security Administration should be entrusted with the administration of the insurance. Although the relevant material was discussed by the Government on 31 March 2004, according to the appellant, it is not in such a form that the adoption of the relevant law could be expected in the foreseeable future.
In the opinion of a group of senators, the parties' comments show that the decree in question did not take place to an adequate extent with the relevant employers' organisations, as its proposal was sent to only two bodies, namely the Czechoslovak Confederation of Trade Unions and the Confederation of Industry and Transport of the Czech Republic in the context of the "shortened comment procedure '. There is therefore no doubt that other employers' organisations have not been contacted, in which the infringement of Paragraph 23 (2) of the Labour Code is seen. With regard to the specific amount of premiums expressed in terms of terms, the appellant considers that there are no compelling reasons to change the amount of premiums from the party's observations, in particular the relationship between the increase of premiums in activities 10.1, 12 and 13 according to NACE code 4.2 (in other cases only 1.4 times) and the volume of claims paid in those sectors of activity.
However, according to the present case-law of the Constitutional Court, it is not in principle permissible to propose the annulment of an amendment to the law [order of the Constitutional Court sp. zn. Pl.
For all the following reasons, the applicant for annulment of Decree No. 487 / 2001 Coll., amending Decree No. 125 / 1993 Coll., continues.
In addition to the arguments contained in the application and in the reply to the parties' observations, the appellant pointed out at the oral hearing that the injury in the mining industry would be reduced without making an evidentiary claim to the Constitutional Court.
Derogation of the contested legislation
Decree of the Ministry of Finance No. 487 / 2001 Coll. of 20 December 2001 amending Decree of the Ministry of Finance No. 125 / 1993 Coll., laying down the conditions and rates of statutory insurance of the employer's liability for accidents at work or occupational disease, as amended, read:
"According to Section 205d (7) of the Labour Code, the Ministry of Finance provides:
Decree No. 125 / 1993 Coll., laying down the conditions and rates of the statutory insurance of the employer's liability for damage to work injury or occupational disease, as amended by Decree No. 43 / 1995 Coll., Decree No. 98 / 1996 Coll. and Decree No. 74 / 2000 Coll., are amended as follows:
1. Paragraph 1 (4), including footnote 2, is deleted.
2. In Paragraph 16, "25 'is replaced by" 13,5'.
3. In Annex No 2, in the column marked "From the measuring base in promile '," 12' is replaced by "50,4 '," 7' is replaced by "9,8 '," 6' is replaced by "8,4 '," 5' is replaced by "7 '," 3' is replaced by "4,2 '," 2' is replaced by "2,8 '," 7,5' is replaced by "10,5 'and" 4' is replaced by "5,6 '.
Transitional provision
If the premiums for the first quarter of 2002 were paid less than that provided for in this Decree before 1 January 2002, the employer shall pay the premium until 31 January 2002 up to the amount laid down in Article I; if the premiums were paid at an amount higher than the premium for the first quarter of 2002 determined in accordance with Article I, the insurance undertaking shall repay the premium to the employer without undue delay.
Efficacy
This Decree shall take effect on 1 January 2002.
Minister:
Ing. Rusnok v. r. '
Conditions for the applicant's active legitimacy
The application for annulment of Decree No. 487 / 2001 Coll., amending Decree No. 125 / 1993 Coll., laying down the conditions and rates of statutory insurance of the employer's liability for damage to work injury or occupational disease, as amended, was submitted by a group of twelve senators of the Senate of the Parliament of the Czech Republic and thus in accordance with the conditions contained in the provisions of § 64 (2) (b) of Act No. 182 / 1993 Coll., as amended. In the present case, the appellant can therefore be found to fulfil the conditions of active legitimacy.
Constitutional conformity of competence and legislative process
The Constitutional Court, in accordance with the provisions of Section 68 (2) of Act No. 182 / 1993 Coll., as amended, is required to assess in the procedure for the control of standards whether the contested other legislation has been adopted and issued within the limits of the Constitution established competence and by the constitutionally prescribed procedure.
Decree No. 487 / 2001 Coll., amending Decree No. 125 / 1993 Coll., laying down the conditions and rates of statutory insurance of the employer's liability for accidents at work or occupational disease, as amended, was issued by the Minister of Finance on 20 December 2001, signed by him, subsequently published in a number of 176 Collection of Acts on 31 December 2001 and became effective on 1 January 2002 pursuant to Article III of the Decree.
In the light of the present case, it should be noted that the Constitutional Court found in its settled case-law that the amendment of the legislation did not have a separate legislative existence, but that it became part of the amended legislation [FTC 5 / 96 [FTC 5 / 96 (FTC 6, FTC No 98; FTC 33 / 01 (FTC 25, FSC No 28; FTC 25 / 2000 (FTC No 145 / 2002 Coll.)]) and, as such, its constitutionality is considered. If, in the procedure for the control of standards, the reasons for the absence of standard competence or breach of the constitutionally prescribed procedure for the adoption of the law are derogatory, the constitutionality of the amendment itself is then assessed [see page Pl. ÚS 5 / 02 (see above)].
Article 79 (3) of the Constitution is based on the authority of the Ministry to issue legislation for the implementation of the Act, provided that an express legal authorisation is granted. This authorisation in the present case is the provision of Paragraph 205d (7) of the Labour Code, according to which the closer conditions and rates of insurance are laid down in the Decree of the Ministry of Finance.
The Constitutional Court expressed itself in a number of its findings on the constitutionality of the legal authorisation and the interpretation of the legal limits for the substatutory standard.
In the find sp. zn. Pl. ÚS 3 / 2000 stated that Article 79 (3) The Constitution must be interpreted in a restrictive manner, which means that the powers to legislate must be specific, unambiguous and clear.
Although in relation to the legislature of the Government, however, with the implications for other sublegal legislations, the Constitutional Court in the case sp. zn. Pl. ÚS 45 / 2000, the Reports of the Judgments, Volume 21, Found No. 30, Declared under No. 96 / 2001 Coll., (mutatis mutandis also in the case of the Constitutional Court in the case sp. zl. ÚS 5 / 01, The Reports of the Decisions, Volume 24, Found No. 149; Declared under No. 410 / 2001 Coll.) Determined by the courts according to which the State body which is entitled to issue a substatutory law, it is "to determine that it is to be X1, X3," not also to be found. Furthermore, the Constitutional Court found that, from a theoretical point of view, the statutory (implementing) legislation required it to be general and therefore to affect an indefinite group of addressees, since it empowers the Constitution to legislate rather than to issue an individual administrative act. The limits of things reserved for regulation are protected from executive excesses of power only (so-called law reservation). The constitutional definition of the derived standard of execution is based on the following principles:
- the implementing act must be issued by an authorised body,
- cannot interfere in matters reserved for the law (therefore cannot lay down primary rights and obligations),
- the legislator must have the clear will to regulate above the legal standard (therefore the scope for the subject matter of the substatutory regulation must be opened).
On the basis of the proposed reconstruction of the relevant constitutional provisions as well as the aspects of the assessment of their application, it can be concluded in the present case that the contested decree was issued by the Ministry of Finance as a law expressly and specifically by a competent State authority, its content concerning the rates and administrative direction of the statutory insurance of the employer's liability for accidents at work or occupational diseases, then it did not deviate from the limits laid down by the empowerment provision of § 205d (7) of the Labour Code.
Paragraph 68 (2) of Act No 182 / 1993 Coll., as amended, then requires the Constitutional Court to examine, in addition to the review of the adoption and publication of legislation within the limits of the constitutional competence laid down, in particular, the adoption and publication of those provisions in a constitutional manner.
Therefore, compliance with the constitutional caurer of the legislative process must be distinguished from the constitutional definition of normative competence. This legislative directive, which also corresponds to the concept of doctrine, is followed consistently by the Constitutional Court in its case-law (see sp. zn.
From the perspective of this modulation then Article 79 (3) The Constitution constitutes a constitutional framework for defining the legislative competence of a state body, not the legislative process.
An illustration of one of the bail-outs of a constitutionally prescribed way of adopting a statutory law is the constitutions resulting from the constitutional concept of the rule of law. If, pursuant to § 1 (1) (e) and § 3 (1) of Act No. 309 / 1999 Coll., on the Collection of Laws and on the Collection of International Treaties, as amended, the publication of legislation issued by ministries in the Collection of Laws is a condition of their validity, such regulation contained in a simple law cannot be placed under the scope of the concept of the rule of law (Article 1 (1) of the Constitution), in that context under the constitutional obligation of the State to publicly declare and provide information to the law. Compliance with this obligation is a prerequisite for law enforcement, which does not justify the application of the principle of ignorance of the law (ignorant legis nemine excusat).
If the regulation of the legislative process, which is part of a simple law, is not an expression of the constitutional principle, as well as its possible infringement, within the meaning of Article 68 (2) of Act No 182 / 1993 Coll., as amended, does not constitute a failure to comply with the constitutionally prescribed procedure for adopting a law or other legislation.
In the present case, the appellant contends, on the one hand, that Article 23 (2) of the Labour Code is infringed and that the principles of the case-law of the Court of First Instance are infringed by omission of the relevant points of reference, failure to provide sufficient time for the examination of the draft order, the failure to examine the comments and their failure to assess them. If the appellant argues in favour of the application of Paragraph 23 (2) of the Labour Code to a given case by impacting an increase in premiums on the level of wages and hence on the important interests of employees, according to the party to the contested order, the change in the rates of administrative management and the change in the rates of insurance, in the first case the cost item of insurance companies, in the second case the cost item of employers, which is why the decree did not affect the important interests of employees. The inadequacy of the deadline for the examination of the draft decree by the party to the proceedings then clarifies the temporal distress in relation to the newly adopted Decree of the Ministry of Health No. 440 / 2001 Coll., on the compensation of pain and difficulty in social application.
Paragraph 23 (2) of the Labour Code provides for an obligation to discuss draft laws and other legislation concerning the important interests of workers, in particular economic, production, labour, wage, cultural and social conditions, with the relevant central trade unions and the relevant employers' organisations. The purpose of this legal provision is to empower the tripartite mechanism into the legislative process to achieve social reconciliation. However, this provision is not based on the normative competence of those trade unions and employers' organisations (within the meaning of the corporate system) under Article 79 (3) of the Constitution.
In addition to perfect standards, the rule of law includes the so-called leges imperfectae. Those, not containing sanctions, are not necessarily an expression of the incompleteness of legal regulation, and therefore cannot be linked without further law gaps. The democratic rule of law, which is based on democratic legitimacy, is based primarily on consensus, and the sanctions are only ultima ratio of legal regulation. There are therefore also necessarily legal standards which, not including sanctions, are linked to acceptance by democratic political culture.
Paragraph 23 (2) of the Labour Code must also be regarded as such an imperfect legal standard which does not affect the definition of competence.
The Constitutional Court attests to the appellant, a group of senators, as to the possibility of subjecting the decree in question to the framework laid down in Paragraph 23 (2) of the Labour Code, as the increase in premiums may have a real projection of the level of wages. It also attests to the objection to the non-representativeness of the choice of the points of reference, which is also the result of the interested party's observations, in which it clarifies the merits of the inequality in the adjustment of the rates by higher accidents in the mining and mining industry, the decree in question was not submitted for a comment by the Employers' Association of Mining and Oil Industry and the Community of Miners of the Czech Republic. Finally, the Constitutional Court also attests to the objection of the lack of a deadline for observations, non-examination and non-evaluation of comments. The manner in which the reference procedure was carried out in the present case cannot be regarded as otherwise than as a formal or formalistic fulfilment of the legal obligation without the fulfilment of its purpose, i.e. for the imperfection of the legal standard in question, as a breach of political correctness. However, as has already been explained, this does not in itself constitute a justification for a breach of the constitutional procedure for adopting and issuing another legislation.
Pursuant to Article 16 (1) of the Legislative Rules of the Government (approved by Government Resolution 188 of 19 March 1998), the draft Decree is to be sent by the authority which drew it up to the precise authorities and other points of reference designated by the authority which drew up the draft Decree if that authority considers it necessary, taking into account the content of the draft order. The legislative rules of the Government are not legal, they are an internal regulatory directive binding on it itself, the members of the Government as well as its subordinate bodies.
Infringement of Article 16 (1) of the Legislative Rules, which can be found for reasons similar to those set out in the context of the assessment of the impact of Paragraph 23 (2) of the Labour Code on the case under examination, without further, i.e. without violation of the Constitution and the statutory jurisdiction laid down by law, or without breach of the constitutionally prescribed procedure for the adoption of another law (e.g. the absence of its publication in accordance with the Rules of Law), does not constitute a derogatory ground under Article 68 (2) of Act No 182 / 1993 Coll., as amended, for non-compliance with the constitutionally prescribed procedure for the adoption of the Law or other legislation.
For the reasons indicated above The Constitutional Court concluded that the contested decree was adopted and issued within the limits of the constitutional competence laid down and in a constitutional manner.
Content compliance of the contested legislation with the constitutional order and laws
According to the settled view of the Constitutional Court, the Court of First Instance is bound by the scope of the application in its decision and cannot, in its decision, step forward from its limits (see, for example, the judgment in case sp. zn. It did not deviate from the framework of the constitutional review thus defined from the legal opinion expressed in the case sp. zn. In fact, the validity of such a provision is terminated on the basis of the principle of cessante ratione legis, cessat lex ipsa, the derogation carried out by the Constitutional Court is therefore merely of a registered, technical nature. "
If the appellant in the procedure for the control of standards is contesting a breach of the constitutional order of the defined caurer of competence and legislative process (§ 68 (2) of Act No. 182 / 1993 Coll.), the petit is then given by the heading of all the provisions constituting the legislation on which the alleged deficits of constitutionality affect.
Although the Constitutional Court has repeatedly pointed out that, when assessing the infringement of the law, or its individual provisions with the constitutional order, it is bound only by a petition and not by its reasoning [finding sp. zn. In other words, if the appellant is opposed to the content of the non-compliance of the law with the constitutional order, for the purposes of the constitutional review, it is not enough merely to denounce the proposed law, or its individual provisions, but also to state on its part the reason for the non-constitutional objection. In the context of the review, the Constitutional Court is not bound by that ground - it is bound only by petite but not by the scope of the review of the grounds contained in the application for standard control. That procedure was already applied by the Constitutional Court in the proceedings sp. zn. Pl. ÚS 16 / 93 (see above), in which the appellants sought the annulment of the entire Act No. 183 / 1993 Coll., amending and supplementing Act No. 229 / 1991 Coll., on the modification of property relations with land and other agricultural property, as amended, but in the justification of their proposal they stated the alleged reasons for the illegality of only some of its provisions, while the unconstitutional nature of the remaining ones was seen in a more unspecified "internal links' in the law. After the Constitutional Court had not found these" internal links', it rejected the proposal, without dealing with the constitutionality of the so-called remaining provisions.
If the appellant does not bear the burden of allegation of unconstitutionality in the procedure for checking the standards, such a proposal cannot be regarded as contradictory with the provision of § 34 (1) of Act No 182 / 1993 Coll., and therefore ineligible for a meritative hearing.
In the present case, a group of Senators in its proposal seeks the annulment of Decree No. 487 / 2001 Coll. on the one hand, because of the infringement of Article 79 (3) of the Constitution and Article 23 (2) of the Labour Code, i.e. because of the breach of the constitutional and legal regulation of the legislative process by the legislature and, on the other hand, because of the content of the provisions of Annex 2 to Decree No. 125 / 1993 Coll., as amended by Decree No. 487 / 2001 Coll., for the economic activities listed under code 10.1, 12 and 13 of the ECJ KEC, there is a conflict with the principles of equality and proportionality for premium rates according to the predominant activities carried out by the employer on a pro-mile basis. Thus, the appellant cumulates the reasons for the constitutional deficit of the legislative process and the contention of unconstitutional content. In the light of the principles set out above concerning the scope of the constitutional review in the procedure for the examination of standards, it is concluded that, in the present case, the whole of the appellant of the contested Decree No 487 / 2001 Coll. is assessed by the Constitutional Court only on grounds of the alleged breach of the constitutional caurer of the legislative process, but the scope of the examination of the content compliance is defined only by those provisions of Decree No 487 / 2001 Coll., for which the appellant assumed the burden of the claim, i.e. the provisions of Annex 2 to Decree No 125 / 1993 Coll., as amended by Decree No 487 / 2001 Coll., the economic activities mentioned under code 10.1, 12 and 13 of the OKEEC.
In its observations, where the appellant contests the unconstitutional inequality and breach of the principle of proportionality in the present Decree, the party clarifies this fact by showing that a more significant increase in the rates of premiums (coefficient 4,2) was necessary for those economic activities which had the most adverse adverse effects in the long term (in coal mining, the premium was 778,9% of premiums paid in 2000, in uranium mining, 509,0% and 118,6%).
The Constitutional Court dealt comprehensively with the issue of equality in the decision sp. zn. It has been identified [in particular in the findings sp. zn. Pl. ÚS 16 / 93 (see above), sp. zn. Pl. ÚS 36 / 93 (Reports of Decision, Volume 1, Found No 24; Dec. No. 132 / 1994 Coll.), sp. zl. ÚS 5 / 95 (Reports of Decision, Volume 4, Found No. 74; Dec. No. 6 / 1996 Coll.) and Pl. ÚS 9 / 95 (Reports of Decision, Volume 5, Fact No. 16 / 1996 Sb.)], with a view to the constitutional principle of equality, as expressed by the Constitutional Court of the CSFR (Opinion No. 22 / 92). But even here, he can't go any further... If the law determines the benefit of one group and thereby imposes disproportionate obligations on another, it can only happen on appeal to public values. "
The Constitutional Court thus rejected the absolute understanding of the principle of equality, stating that "equality of citizens cannot be understood as an abstract category, but as a relative equality, as all modern institutions mean it" [sp. zn. The content of the principle of equality has thus shifted into the area of constitutional acceptance of the aspects of the distinction between entities and law. The first aspect, which can be marked by the term "non-interventional inequality," thus defined by the exclusion of libel (insolence) in a given distinction.
The second point of view is based on the legal opinion expressed in the decision in the case sp. zn. This is usually the case when a breach of another fundamental right is also linked to a breach of equality... "[concurrently sp. zn. The second point of view in assessing the unconstitutionality of a law establishing inequality is that inequality based on a fundamental right and freedom (an inequality of action).
On the question of the possible qualification of the regulation of statutory compulsory insurance in the sense of expropriation, or of the restriction of property rights pursuant to Article 11 (4) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), the Constitutional Court stated in the decision sp. zn. It stated that the rules on the payment of premiums did not constitute an expropriation, as" Article 11 (4) of the Charter refers to rights in rem', which does not include income from gainful activity '.
In case sp. zn. The Constitutional Court examined the question of the constitutionality of another statutory compulsory cash payment, namely the amount of the fine in the building procedure. He stated that "the statutory minimum amount of the fine must be set in such a way as to allow at least a certain degree to take account of the property and personal circumstances of the offender, in the case in point, so that the imposition of the fine, albeit at a minimum, would not have any effect on the offender, or would not cause business to lose any meaning over a considerable (several years) period." If this principle is not respected, it is, according to the Constitutional Court's conviction, such interference in the property rights of an individual, which, given its intensity, constitutes an infringement of Article 11 (1) of the Charter and Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ').
In its case-law, the European Court of Human Rights considers taxation according to different property and income criteria to be factually justified and unfounded in the rights arising from Article 14 of the Convention (see J. A. Frowein, W. Peukert, Europäische Menschenrechtevence. EMRK-Kommentar, 2. Aufl., Kehl-Straßburg-Arlington 1996, p. 476). However, any authorisation by the State for the determination of taxes and other charges and fines arises from Article 1 of the Additional Protocol to the Convention, but it follows from the case-law of the Court of First Instance and the Commission that the protection of property in the field of taxes, charges and financial penalties is not completely removed. It remains possible to examine whether taxes, fees and money penalties are abused or not. Examples of these are taxes with confiscation effects which can be paid by the tax payer only on the substance of the property. (See J. A. Frowein, W. Peukert, Europäische Menschenrechkonvention. EMRK-Kommentar, 2. Aufl., Kehl-Straßburg-Arlington 1996, p. 824.)
The case law of the Federal Constitutional Court of Germany (BVerfGE, 93, 121 et seq.; 97, 350; for interpretation of that case-law, see the buyer J.-R. Sieckmann, Grundrechtliche Abwägung als Rechtsanwendung - das Problem der Begrenzung der Besteuerung. Der Staat, 41st Band, 2002, Heft 3, p. 385 - 405; Berliner Kommentar zum Grundgesetz, Hrsg. K.H. Friauf, W. Höfling, Berlin 2003, C Art. 14).
From the above mentioned grounds can be outlined for the examination of the constitutionality of the statutory arrangements for tax, fee, or other similar statutory compulsory benefits (including statutory compulsory insurance), as well as financial penalties, as follows:
The constitutional principle of division of power (Article 2 (1) of the Constitution), as well as the constitutional definition of legislative power (Article 15 (1) of the Constitution), gives the legislator wide scope to decide on the subject matter, extent and extent of taxes, fees and financial penalties. In doing so, the legislator has political responsibility for the consequences of this decision.
However, the tax, the fee, or the pecuniary penalties imposed by public law on the performance of the State and thus by interference with the property substrate and, therefore, the property right of the obliged entity, does not constitute a protected ownership position without the fulfilment of further conditions (Article 11 of the Charter, Article 1 of the Additional Protocol to the Convention).
The constitutional review of the tax, the charge and the pecuniary penalty shall include an assessment from the point of view of compliance with the bail-outs resulting from the constitutional principle of equality, both non-accesorial (Article 11 of the Charter), that is to say from the requirement of the exclusion of arbitrage in respect of the distinction between entities and rights, as well as of the fact that the act is to be treated as a discriminatory instrument within the meaning of Article 3 (1) of the Charter.
Where an assessment of the constitutionality of an operational inequality is made in view of the exclusion of property discrimination, or only an assessment of the fact, if it does not constitute a tax, a charge, or a pecuniary penalty, which may be affected by property law (Article 11 of the Charter, Article 1 of the Additional Protocol to the Convention), such a review shall be limited to cases in which the limits of the public compulsory cash performance by an individual of the State vis-à-vis the property substrate of the individual acquire a strangling (choking) activity; In other words, if the tax is assessed, the charge, or the financial penalty in its consequences, has a confiscation effect in relation to the property of the individual.
In view of the structure thus interpreted of the review of the constitutionality of the tax legislation, the charge, or other similar statutory compulsory benefits (including statutory compulsory insurance), as well as of the financial penalties, the appellant's argument can be placed under the category of non-Accessor inequality. The constitutional conformity of the legislation under assessment is sufficient in terms of non-accesoric inequality if the classification evaluated is found to be rational in relation to the purpose of the law, i.e. if it can in any way influence the achievement of that purpose.
If the purpose of differentiating the premium rates is to ensure its performance depending on the structure of the claims and if the information contained in the party's observations results in the most adverse injurious effect in the mining and mining industry, the difference in the premium rates as set out in Annex 2 to Decree No. 125 / 1993 Coll., as amended, cannot be described as corresponding to the party indicated by the purpose of the legislation in question. For those circumstances, the appellant's objections concerning the unconstitutional inequality of the contested legal regulation cannot be attested.
In the present case, Furthermore, the Constitutional Court did not find that, in points 10.1, 12 and 13 of Annex 2 to Decree No. 125 / 1993 Coll., as amended, the rates of statutory liability insurance for accidents at work or occupational disease had a confiscation effect on employers in relation to their property nature and therefore did not find the grounds for a possible objection to property rights under Article 11 of the Charter, Article 1 of the Additional Protocol to the Convention.
On the basis of the reasons thus set out, the Constitutional Court rejected the proposal of a group of senators of the Senate of the Parliament of the Czech Republic to repeal the Order of the Ministry of Finance No. 487 / 2001 Coll., amending Decree of the Ministry of Finance No. 125 / 1993 Coll., laying down the conditions and rates of statutory insurance of the employer's liability for damage to work injury or occupational disease, as amended.
Active legitimacy of the party to the application for standard control
The application to initiate the procedure shall specify the subject-matter. According to its established case-law, the Constitutional Court is bound by the scope of the application and cannot step out of its decision (ultra petitum) (see, for example, the decision in the case of Pol. ÚS 16 / 94, Pl. ÚS 8 / 95). The Constitutional Court has held that, in a situation where, as a result of the annulment of a statutory provision by the Constitutional Court of a provision other than that of the Constitutional Court, the provision of another, content of which is dependent, is no longer reasonable, that is to say that it loses the validity of its legislative existence, that is to say, the reason for the annulment of that provision is thus given, without being an ultra petition procedure. In fact, the validity of such a provision is terminated on the basis of the principle of cessante ratione legis, cessat lex ipsa, and the devocation carried out by the Constitutional Court is therefore merely of a registered, technical nature.
The procedure for the control of standards is guided by the principle of official character, which also includes the exclusion of the possibility of withdrawal of a proposal (see Resolution sp. zl. However, the definition of the subject-matter of the proceedings remains in the procedural capacity of the appellant, which is why the Constitutional Court, in the procedure for checking the standards, accepted in the present case the amendment (extension) of the application only and exclusively on the basis of a proposal from the appellant (see, for example, the order in Case 8 / 02 ÚS of 20 November 2002 (not published)).
The proposal of the Minister of Finance as a party to the proceedings for the annulment of Paragraph 205d of the Labour Code and the Accesorial proposal for the annulment of Decree No. 125 / 1993 Coll., as amended, (§ 70 (2) of Act No. 182 / 1993 Coll.) must be qualified as a proposal made by a manifestly unauthorised person for those circumstances, which established the reason for its refusal under Section 43 (1) (c) of Act No. 182 / 1993 Coll., as amended.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 512 / 2004 Coll., on the application for annulment of the Order of the Ministry of Finance No. 487 / 2001 Coll., amending Decree of the Ministry of Finance No. 125 / 1993 Coll., laying down the conditions and rates of the statutory insurance of the employer's liability for damage to work injury or occupational disease, and on the application for annulment of § 205d of the Labour Code and repealing Decree No. 125 / 1993 Coll., as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.09.2004 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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