The Constitutional Court found no 584 / 2004 Coll.

Motion denied.

On 1 July 2003, the Constitutional Court received a proposal pursuant to Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court ') by which the Supreme Court, acting on behalf of the President of Chamber 21 Cdo JUDr. Z. N., called for the abolition of the words" representatives of the State Government and of certain bodies (1)' in Section 1 of the Law No. 308 / 1999 Coll., on the withdrawal of another salary for the second half of 1999 and, for the second half of 2000, to representatives of the State authorities, judges, prosecutors and members of the Securities Commission Presidium. The application was lodged in connection with the proceedings pending before the Supreme Court under point 21 of Cdo 361 / 2003 in the legal proceedings of a group of applicants - members of the Supreme Audit Office - against the judgment of the Municipal Court in Prague of 19.12.2001 No 17 Co 710 / 2001-83. The subject-matter of the proceedings, which was opened under sp. zn. 8 C 30 / 2001 at the District Court for Prague 7, is CZK 55 200 with accessories for each of the applicants. This amount represents an additional salary for the second half of 1999, to which the applicants were to be entitled under § 4 (2) (b) of Act No. 236 / 1995 Coll., on the salary and other formalities connected with the performance of the duties of representatives of the State Government and of certain state bodies and judges, as amended by Act No. 138 / 1996 Coll. The amount of the claim was not paid to them as an additional salary by reference to Act No. 308 / 1999 Coll. The applicants therefore requested the payment of this amount to the President of the Supreme Audit Office, but they were linked to the trial. They also took the place when they brought an action before the District Court for Prague 7, which decided to dismiss their action by rejecting by judgment of 15.6.2001 No 8 C 30 / 2001-48, as amended by order of 25.6.2001 No 8 C 30 / 2001-54. In its judgment of 19.12.2001 No 17 Co 710 / 2001-83, the City Court of Prague confirmed that judgment with the amendment that the defendant did not grant the party the costs. The appellants lodged an appeal before the Supreme Court against the judgment of the Court of Appeal.

By order of 1 July 2003 No 21 Cdo 361 / 2003-149, the Supreme Court, as a court, suspended proceedings in this case when it concluded that the provisions of Article 1 of Law No 308 / 1999 Coll. were partly contrary to the Constitution of the Czech Republic (hereinafter the Constitution). He referred to the finding of the Constitutional Court No. 233 / 1999 Coll., in which the Constitutional Court concluded that the provisions of § 4 (2) of Act No. 236 / 1995 Coll., as amended, resulted in the following legal conditions for the creation of the right to another salary for the second half of 1998, namely the actual exercise of office for at least 90 calendar days in the second half, and the duration of the post of representative on 30 November or the duration of the judicial employment relationship on 31 December of that year. From the fact that Law No 308 / 1999 Coll. took effect until December 3rd 1999, the appellant concluded that the withdrawal of the additional salary for the second half of 1999 constituted a case of genuine retroactivity (retroactivity) in the context of the Constitutional Court's legal opinion expressed in Found No 233 / 1999 Coll.. The case was therefore referred to the Constitutional Court with a proposal to abolish part of the provision of Section 1 of Act No. 308 / 1999 Coll., in the words "representatives of the State Government and of certain bodies (1)."

On receipt of the application, the Constitutional Court concluded that the application fulfilled the conditions for proceedings before the Constitutional Court. It did not find any reason for the termination of proceedings under Section 67 of the Constitutional Court Act or for the rejection of the application under Section 43 of the same Law. The application was submitted by a legitimate appellant within the meaning of Paragraph 64 (3) of the Constitutional Court Act. There was no doubt that the condition of Article 95 (2) of the Constitution was fulfilled and it was necessary for the General Court to apply the contested part of the provision of Section 1 of Act No. 308 / 1999 Coll. That is why the Constitutional Court has called on the Chamber of Deputies and the Senate of the Parliament of the Czech Republic as parties to the proceedings to comment on this proposal, pursuant to Rule 69 (1) of the Law on the Constitutional Court.

On behalf of the Senate, his chairman, Dr. Petr Pithart, spoke about the discussion of the draft later Act No. 308 / 1999 Coll. in the Senate. The Senate discussed the draft law not long after the decision No. 233 / 1999 Coll., which deleted the word "judges" from the similar Act No. 268 / 1998 Coll., for the second half of 1998. The Senate respected the view of the Constitutional Court and returned the bill with amendments to the Chamber of Deputies, which approved it on 30 November 1999 in its original version. On his own question of the proposal he then stated that the contested retroactivity cannot be ruled out in the light of the conclusions of the Constitutional Court made in the Found No 233 / 1999 Coll. However, this cannot relate to another salary for the second half of 2000, where it was certainly not about retroactivity. Finally, he pointed out the conclusion reached in the judgment No. 320 / 2000 Coll., which rejected the application for annulment of Act No. 287 / 1997 Coll., supplementing Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the duties of representatives of state authority and of certain state bodies and judges, as amended by Act No. 138 / 1996 Coll., where the Constitutional Court referred to the question of effective protection of constitutionality in the event of the application for annulment of the law under appeal having elapsed since the entry into force of the Law No. 196 / 1999 Coll. The opinion on a possible statement of the finding was not expressly expressed by the Senate.

In the Chamber of Deputies, its President PhDr. Lubomír Zaorálek also pointed out the course of the discussion of Bill No. 308 / 1999 Coll. The Chamber of Deputies was aware of the lack of time and its efforts were not to allow retroactivity of this law. The proposal was submitted by the Government on 2 September 1999 and on 15 September 1999 was issued on No 233 / 1999 Coll. The fact that the word "judges" was deleted from the similar Act No. 268 / 1999 Coll. but was not taken into account. Similarly, the Senate amendments were overvoted on 30 November 1999. Finally, the President of the Chamber of Deputies stated that the law was passed after a properly implemented normative process, while the legislature acted in the belief that the law would comply with the Constitution and the Charter of Fundamental Rights and Freedoms. It is therefore for the Constitutional Court to examine the application and issue the relevant finding.

On this basis, after examining the various provisions of Act No. 308 / 1999 Coll. and Act No. 236 / 1995 Coll., as amended, the Constitutional Court concluded that the revised part of the provisions of Section 1 of Act No. 308 / 1999 Coll. in the words "representatives of state power and certain state authorities 1)" meets the constitutional requirements of the law under the conditions of the rule of law, but only under certain conditions. He therefore decided to reject the proposal because the alleged constitutional defects of the contested law can be overcome by a constitutional interpretation of both laws. The following considerations led him to this.

The basic question in the present case is, according to the appellant, the so-called genuine retroactivity (retroactivity) of that section of Section 1 of Act No. 308 / 1999 Coll. In this respect, the appellant referred to the finding of the Constitutional Court sp. zn. In this finding, the Constitutional Court pointed out the fact that, until now, in cases where the additional salary was withdrawn, only the cases directly related to the judges as a special group of entities affected by § 1 (g) of Act No. 236 / 1995 Coll. (in its original version). As regards the position of the other bodies designated as "representatives', it was only indirectly possible to state that" The provisions of Article 4 (2) of Act No. 236 / 1995 Coll., as amended, resulted in the following legal conditions for the creation of the right to another salary for the second half of 1998, on the one hand, the actual exercise of office for at least 90 calendar days in that semester, and the duration of the post of representative on 30 November 1998 or the duration of the judicial employment relationship on 31 December 1998. Thus, the right to another salary would be created only by the fulfilment of that condition, i.e. at the earliest on 30 November 1998, which in consequence means that the contested law, which does not link any legal effects to any legal fact, sets the legal effects before its effect, does not act retroactively, and since, on the date of its effectiveness, i.e. on 19 November 1998, no person has ever been able to obtain a subjective right to another salary, could not even intervene in so-called acquired rights. 'This conclusion was reiterated by the Constitutional Court in the latest finding on this issue (sp. zn.

The starting point for assessing the possible retroactivity of the contested law is therefore the conditions under which entitlement to a further salary could have occurred in 1999 and the finding that Law No 308 / 1999 Coll. had intervened retroactively in this situation. According to Article 4 (1) of Act No. 236 / 1995 Coll., the additional salary is defined as one-off cash transactions provided in each calendar half of the year at the amount of the monthly salary payable to the representative and judge in the last calendar month of the actual performance of the duties in the relevant calendar half of the year. A further salary cannot therefore be seen as a salary for the calendar half-year ending on 30 June or 31 December. Paragraph 4 (2) of Act No. 236 / 1995 Coll., as amended by Act No. 138 / 1996 Coll., subsequently sets out the following two conditions. The first positive condition (but not in terms of time) is the actual performance of a representative within the meaning of § 1 (a) to (f) of the same law, for at least 90 calendar days in the calendar half-year. Until then, the period during which the representative did not perform his duties due to sickness, accident, pregnancy or maternity shall not be counted. The second condition, which is worded negatively, is that the representative should not cease his duties before 31 May or 30 November. Thus, the law does not require the work of the entire half-year, but the bulk of it. It is not decisive when the term of office began in the given term, it is determined that it lasted at that term date. However, in general, the representative may also fulfil the conditions; he has reached 90 days of actual office only after 31 May or 30 November. The calendar half-year - in the present case, the period from 1.7.1999 to 31.12.1999 - defines only the time span in which the legal conditions for entitlement are to be met. Its expiry is merely a matter of legal fact, with which the possibility of meeting these conditions is attached, but is not a condition for such entitlement. The date of 31 December 1999 is therefore irrelevant in terms of the entry into force of Act No. 308 / 1999 Coll.. On 30 November 1999, in turn, it is of the importance that it sets the moment when entitlement can be acquired first, as the Constitutional Court has already stated in the above mentioned findings.

This is important in view of the need for a constitutional interpretation of the consequences of Act No. 308 / 1999 Coll. Although this law was passed on 30 November 1999, when the Chamber of Deputies overvoted the Senate amendment, it was announced and at the same time it became effective only on 3 December 1999. The basic question is therefore whether exceeding the date 30.11.1999, as a result of the entry into force of that law only on 3.12.1999, leads in any event to the creation of so-called retroactivity and interference with acquired rights. The Constitutional Court, having considered the possibility of interpreting Article 4 of Act No. 236 / 1995 Coll., as amended by Act No. 138 / 1996 Coll., concluded that this is not the case. The repeal of the proposed section of Section 1 of Act No. 308 / 1999 Coll. would therefore necessarily mean a change in the legal situation even where the anti-constitutional situation did not actually arise. This concerns representatives who met the conditions for entitlement to additional salary for the 2nd half of 1999 pursuant to § 4 (2) of Act No. 236 / 1995 Coll., as amended by Act No. 138 / 1996 Coll., until 3.12.1999 and for the whole year 2000. For the second year of 1999 Law No 308 / 1999 Coll. could therefore prevent the creation of a right only for persons who, while acting as a representative on 30 November 1999, had not yet fulfilled the basic condition of the actual period of 90 days. Otherwise, this law would have to be repealed as unconstitutional in the contested part in the part concerning the second half of 1999.

The Constitutional Court therefore concludes that the proposal to abolish the words "representatives of State power and of certain state bodies' in § 1 of Law No 308 / 1999 Coll. is not justified and that the protection of acquired rights of a group of representatives can be achieved by a different procedure. If the Constitutional Court had complied with the application, it could have already exceeded the scope of its competence. In the present case, the Constitutional Court considered it sufficient to carry out a constitutionally conformal interpretation, on the one hand, of the general rules governing entitlement to a further salary in Act No. 236 / 1995 Coll., as amended, and, on the other hand, of the special arrangements for its withdrawal in § 1 of Act No. 308 / 1999 Coll. As in the case of the findings concerning the additional salary of judges, the Constitutional Court concluded that Law No 308 / 1999 Coll. cannot be interpreted as retroactive in relation to so-called representatives unless the conditions laid down were met before the date of application of that law. Although this law initially intended to withdraw the additional salary for all, because it was not issued in time, it could no longer have touched those representatives who had fulfilled the conditions for its payment on 2 December 1999.

The other circumstances that led to that conclusion are related to the above issue. The specific control of the constitutionality of legislation is based on the concept of specialised and concentrated constitutional justice in the Czech Republic. The General Court, which concludes that the law to be applied in dealing with the present case is contrary to the constitutional order, is obliged to bring the case before the Constitutional Court. In the present case, it is clear that the conditions of Article 95 (2) of the Constitution are fulfilled. The members of the Supreme Audit Office fall under the concept of so-called representative within the meaning of § 1 (e) in conjunction with the letter (f) of Act No. 236 / 1995 Coll., as amended, and under the term "representatives of state authority and of certain state bodies' under § 1 of Act No. 308 / 1999 Coll. From the point of view of the case, it was necessary to consider whether the turnovers of" representatives of state power 'and "representatives of some state authorities' constituted two separate groups of persons or not. The Constitutional Court adhered to the conclusion that the turnover of" representatives "in General Law No. 236 / 1995 Coll. affects one group of persons no longer divisible. It's not just a grammatical interpretation. Paragraph 4a, which was inserted into Act No. 236 / 1995 Coll. by Act No. 287 / 1997 Coll. Therefore, it was not necessary to consider the wording of a petition where, from the turnover of" some state bodies', the appellant did not mention the word "state '. In view of the above, the proposal is sufficiently specific. The interpretation of this concept is important for the question to be addressed, as, in the context of a specific check on constitutionality, only a part of the bodies which fall under the term" representative' gives rise to proceedings. However, the consequences of the finding could, even indirectly, also be reflected in the legal status of other entities that form a set of so-called representatives. In addition, Law No 308 / 1999 Coll. does not grant additional pay to other officials, some of which fall under the regime of judges (e.g. prosecutors) and others under the regime of so-called representatives (e.g. members of the Securities Commission Presidium). The repeal of the proposed section of Section 1 of Act No. 308 / 1999 Coll. would thus necessarily concern not only several members of the Supreme Audit Office but all other bodies falling under the legislative abbreviation "representative," i.e. Members and Senators of Parliament, members of the Government, the President of the Republic, remaining members, Vice-President and President of the Supreme Audit Office, Judges of the Constitutional Court and Members, Vice-President and President of the Council for Radio and Television, who met these conditions on 30 November 1999, not already members of the Securities Commission's Presidium. However, with regard to salary and labour legislation, it is only a theoretical problem, as the entitlement to pay another salary to other officials and other officials is already limited in respect of more than three years' time-span from its creation. Only a theoretical nature would be the consideration of the possible question of the bias of the judges of the Constitutional Court, who are also part of the concept of representative pursuant to § 1 (d) of Act No. 236 / 1995 Coll., as amended.

In view of the above, The Constitutional Court did not find a proposal to abolish the words "representatives of state power and of some authorities1) in § 1 of Act No. 308 / 1999 Coll., to withdraw another salary for the second half of 1999 and for the second half of 2000 to representatives of state power and certain state bodies, judges, prosecutors and members of the Securities Commission presidium, justified. It therefore rejected it under Paragraph 70 (2) of the Constitutional Court Act.