The Constitutional Court found no 60 / 2018 Coll.
The Constitutional Court's finding of 12 December 2017, sp. zn.
Valid
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60
FIND
The Constitutional Court
On behalf of the Republic
Article 20 (1) (a) (b) of the Act of Accession of the Czech Republic, which states that "the Court of First Instance of the Czech Republic," the Court of First Instance of the Czech Republic, "the Court of First Instance of the Czech Republic," the Court of First Instance of 12 December 2017 in the plenary of the Court of First Instance of Paul Rychetský and the judges of Louis David, Jaroslav Fenyk, Josef Fiale, Mr Filipe, Mr Jirsa, Mr Tomír. "and the political institutions," and Mr Jan Musil, Vladimir Sládeček, Mr Radán Suchánek (Judge of the Foreign Bank), President of the Republic of the Czech Republic, § 17, paragraph 17 (7), § 17, § 17 (8), paragraph (i) in the words "of the Law of the Chamber of Parliament," of the Constitutional Court of the Constitutional Court of the Constitutional Court of the Constitutional Court of the Constitutional Court of the Czech Republic, "of the Czech Republic.
as follows:
Motion denied.
Reasons
Subject matter
1. By a proposal pursuant to Article 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, received by the Constitutional Court on 23 March 2017, a group of 18 Senators (hereinafter referred to as "the author") requested that the Constitutional Court, in proceedings under Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), repeal the following provisions of Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended (hereinafter referred to as "Act No. 424 / 1991 Coll."):
(a) Paragraph 17 (8) (i) in the words "provided by a bank, a payment institution or an electronic money institution or a branch of a foreign bank, a payment institution or an electronic money institution within the territory of the Czech Republic," on the date of the publication of a finding in the Collection of Laws;
(b) the provisions of Paragraph 18 (2), on the date of publication of the finding in the Collection of Laws;
(c) the provisions of § 20 (3) and § 20 (7) in the words "the mandate of a Member or Senator shall be CZK 900 000 per year," on 1 January 2019 (note of the Constitutional Court: the appellant shall refer to the relevant provision as § 20 (6) of Act No. 424 / 1991 Coll., but by Act No. 302 / 2016 Coll. the provisions have been renumbered to paragraph 7);
(d) Paragraph 17 (4) to (7), § 17 (8) (j), § 17a in the words "and political institutes" and "and political institute", § 17b in the words "and political institute" and "and political institute", § 18 in the words "political institute," § 19f in the words "and political institute," § 19h (1) (k), § 19k, § 19l in the words "or political institute," § 20 (1) (b), § 20 (5) and (8) in the words "and Article 20a contribution to the promotion of the activity of a political institute" and Article 20a paragraph 3, on the date of the publication of a decision in the laws, "§ 20 (11) and (12) in the words" or in support of the activity of a political institute, "or a contribution to the promotion of a political institute."
2. The proposal was accompanied by a request for priority consideration.
Text of the contested provisions and related legislation
3. Act No. 424 / 1991 Coll. has since the date of submission of the proposal under consideration been amended by Act No. 183 / 2017 Coll., amending certain laws in connection with the adoption of the Act on Liability for Infringements and Proceedings and the Act on Certain Infringements, and subsequently by Act No. 303 / 2017 Coll., amending certain laws in connection with the abolition of public utility status. The contested provisions and other related provisions are listed without a footnote. The contested provisions or selected parts of the contested provisions of Act No. 424 / 1991 Coll. (Note to the Constitutional Court: marked in bold) reads:
Paragraph 17 (4)
"The Party and the Movement may establish or be a member of a single political institute; For the purposes of this Act, a political institute shall mean a legal person whose main activity is research, publication, educational or cultural activity in the field of:
(a) developing democracy, the rule of law, pluralism and the protection of fundamental human rights;
(b) development of civil society and social cohesion;
(c) promoting active participation of citizens in public life;
(d) improving the quality of political culture and public debate; or
(e) contributing to international understanding and cooperation. ';
Paragraph 17 (5)
"The Political Institute shall publish all the results of its activities referred to in paragraph 4 in a manner that allows remote access, in accordance with the nature of the activity. ';
Paragraph 17 (6)
"A political institute shall not engage in the activities of a school or educational establishment under the Education Act or act as a university under the Higher Education Act."
Paragraph 17 (7)
"A contribution to support the activities of a political institute may be granted if the political institute has registered public utility status. The contribution to support the activities of a political institute shall not be used to finance the election campaign of a Party or a movement or coalition or their candidate or independent candidate. ';
(Note. Constitutional Court: The sentence of the first provision was deleted by Act No. 303 / 2017 Coll. with effect from 1 January 2018.)
Paragraph 17 (8)
"The reception of parties and movements may be:...
(i) loans and loans granted by a bank, a payment institution or an electronic money institution or a branch of a foreign bank, a payment institution or an electronic money institution within the territory of the Czech Republic;
(j) contribution from the state budget of the Czech Republic to support the activities of the political institute. "
Paragraph 17a (1)
"Parties and movements and political institutes use only funds held in accounts with a bank, payment institution or electronic money institution or with a branch of a foreign bank, payment institution or electronic money institution in the Czech Republic for their activities. This does not apply if there are expenditure not exceeding CZK 5,000; such expenditure may be paid in cash. ';
Paragraph 17a (2)
"Parties and movements and political institutes shall keep separate accounts for:
(a) contributions from the State budget, donations and other free of charge;
(b) the performance resulting from the employment relationship with the Party and the Movement and the Political Institute;
(c) financing of electoral campaigns under the conditions laid down in the electoral laws;
(d) other revenue and expenditure. "
Paragraph 17a (3)
"The funds referred to in paragraph 2 (a) shall be maintained by the parties and the movement and political institutes in a separate account allowing third parties free and continuous access to the display of an overview of payment transactions in those accounts (hereinafter referred to as the Special Account). ';
Paragraph 17a (4)
"Parties and movements and political institutes shall, without undue delay, communicate to the Authority the number or other unique identifier of the account in which they keep the funds referred to in paragraph 2 (d); at the request of the Office, the number or other identifier of the account in which they keep the funds referred to in paragraph 2 (b). ';
Paragraph 17b (1)
"The payment order by which the party and the movement and political institute or any other person requests the execution of a payment transaction in favour or at the expense of a specific account shall state the purpose of the payment transaction. '
Paragraph 17b (2)
"A payment service provider with a special account of a party, movement or political institute shall be obliged to allow third parties to view the history of payment transactions retroactively over the last 3 years. ';
Paragraph 17b (3)
"The address of the website on which an overview of payment transactions on a separate account is made available shall be notified by the parties and the movement and political institutes of the Office, which shall publish the address on its website. ';
Paragraph 18 (1)
"Parties and movements may not accept a gift or other free of charge
(a) from the State, unless otherwise provided for in this law,
(b) from a contribution organisation;
(c) from the municipality, the urban area, the urban district and the region;
(d) from a voluntary association of municipalities;
(e) from a public undertaking and a legal person having the ownership of a State or a public undertaking, as well as from the person in whose management and control the State is involved; This does not apply if the State or a State enterprise does not have 10% of its shareholding;
(f) from a legal person having the ownership of a region, a municipality, a city or a city district; This does not apply if the holding does not reach 10%,
(g) from a community of general interest, a political institute and an institution;
(h) the assets of the trust fund;
(i) from another legal person, where other legislation so provides;
(j) from a foreign legal person with the exception of a political party and a fund set up for public service activities;
(k) from a natural person who is not a national of the Czech Republic; This does not apply if the person concerned is entitled to vote in the Czech Republic to the European Parliament. '
Paragraph 18 (2)
"Parties and movements shall not accept a gift or other free of charge if the sum of all cash donations or, where applicable, the amounts corresponding to the normal price of the gift or other free of charge received from one and the same person in one calendar year exceeds CZK 3 000 000. A legal person who is the first person controlled or controlled in relation to a person under the sentence shall be considered as one and the same person. If a donor or provider of another free performance is a member of a party or movement, a membership allowance exceeding CZK 50 000 shall be considered a gift or other free performance. '
Paragraph 19f.
"Office
(a) supervise the management of parties and movements and political institutes under this law;
(b) process and publish on its website a report on its activities for the calendar year concerned;
(c) publish on its website the full annual financial reports of the parties and of the movement and of the findings resulting from its activities;
(d) notify the Ministry of Finance by 31 May of the relevant calendar year whether the annual financial report of the party and the movement for the previous year has been submitted to it and whether it is found to be complete; The Office shall also inform the Ministry of Finance within that period that the annual financial report has not been submitted or is incomplete,
(e) notify the Ministry of Finance of the outcome of the assessment of the annual financial report submitted retrospectively pursuant to Paragraph 19h (3) or submitted at the request of the Authority to supplement or correct the deficiencies referred to in Section 19h (5), without delay and no later than 10 days after receipt of the annual financial report,
(f) negotiate offences and impose administrative penalties;
(g) exercise the powers laid down in other legislation in the area of the financing of electoral campaigns;
(h) exercise the powers laid down in another legislation. "
Paragraph 19h (1)
"The Parties and the Movement shall submit to the Office by 1 April each year an annual financial report covering:
(a) the accounts under the Accounting Act;
(b) the audit report on the verification of the accounts, with an unqualified statement;
(c) an overview of the total revenue, broken down by Article 17 (8), to which the parties and the movement add:
1. an overview of the companies or cooperatives in which the party or movement has a share, indicating the amount of that share;
2. an overview of loans, loans and other debt, indicating the amount and terms of the debt, including the maturity date, the name, surname and date of birth; where the provider is a legal person, its business name and identification number shall be indicated;
(d) an overview of wage expenditure by the party or by the movement of persons paid, indicating the number of such persons and the type of work carried out;
(e) an overview of total expenditure on taxes, fees and other similar cash transactions;
(f) expenditure on elections broken down by type of election to which the party and the movement have participated in a given calendar year;
(g) an overview of the gifts and their gifts, indicating the amount of the donation and the normal price of the non-donation, the name, surname and date of birth; where the donor is a legal person, its business name and identification number shall be indicated;
h) an overview of other free-of-charge transactions, the normal price of which exceeds CZK 50 000, giving the name, surname and date of birth; where the provider is a legal person, its business name and identification number shall be indicated;
(i) an overview of the value of the property acquired by inheritance or by reference; if the value of the property acquired exceeds CZK 50 000, the name, surname, date of birth and date of death and the municipality of the last residence of the deceased,
(j) an overview of the members whose membership allowance for the calendar year exceeds CZK 50 000, giving their name, surname, date of birth, town of residence and total amount of the membership allowance;
(k) the name and address of the political institute of which the party or movement is the founder or member and the expenditure incurred to support its activities at least equal to the contribution to the political institute's activities. ';
Paragraph 19k (1)
"The political institute commits an offence by:
(a) the contribution to support the activities of the political institute shall be used in breach of Article 17 (7);
(b) in contravention of Article 17a, does not keep separate accounts or notify the Office of the information referred to in Article 17a (4); or
(c) in contravention of Article 17a, it shall not establish a special account or in breach of Article 17b, it shall not notify the address of the website. ';
Paragraph 19k (2)
"A fine of up to CZK 200,000 may be imposed for the offence referred to in paragraph 1 (a) to (c)."
Paragraph 19l (1)
"In determining the amount of the fine to a legal person, account shall also be taken of the impact of the fine imposed on the possibility of further existence of a party and a movement or political institute. '
Paragraph 20 (1)
"The Party and the Movement shall be entitled, under the conditions laid down in this Act, to the following State contributions:
(a) a contribution to an activity involving a permanent contribution and a contribution to the mandate; and
(b) a contribution to support the activities of the political institute. ';
Paragraph 20 (3)
"Entitlement to a permanent contribution shall be conferred on the Party and the Movement, which received at least 3% of the votes in the elections to the Chamber of Deputies."
Paragraph 20 (5)
"Entitlement to contribute to the activities of the political institute shall arise from a party and a movement at least one Member of which has been elected a party and a movement in at least two of the last three consecutive parliamentary periods of the Chamber of Deputies, including the current parliamentary term, and which is the founder or member of the political institute. This contribution may be used by the Party or the Movement solely to cover expenditure on the activities of a political institute. ';
Paragraph 20 (6)
"The permanent contribution is 6 000 000 CZK per year for the party and the movement that received 3% of the votes in the last elections to the Chamber of Deputies. The party and the movement will receive CZK 200,000 per year for every additional 0.1% of the votes started. If the Party and the Movement receive more than 5% of the votes, the contribution shall not be increased further. ';
Paragraph 20 (7)
"The contribution to the mandate of a Member or Senator is CZK 900 000 per year and to the mandate of a member of the regional council and a member of the Prague City Council is CZK 250 000 per year."
Paragraph 20 (8)
"The contribution to support the activities of a political institute shall be equal to 10% of the total amount of the contribution to the activity belonging to the party or movement per year. In the request referred to in Article 20a (3), the party and the movement shall indicate the name and address of the political institute in support of which the contribution is intended. ';
Paragraph 20 (10)
"An agreement on the share of the members of the coalition in the election result is crucial in order to establish the right to a permanent contribution and contribution to support the activities of the political institute and to determine their level with the party and the movement that are members of the coalition. If such an agreement is not concluded, or if it is not delivered to the Ministry of Finance within the prescribed time limit, the election result shall be divided equally. Paragraph 2 shall remain unaffected. The Party and the Movement shall deliver to the Ministry of Finance an agreement on the share of the members of the coalition by the last day of the deadline for the registration of candidate documents. '
Paragraph 20 (11)
"If the agreements referred to in paragraph 10 received by the Ministry of Finance differ and the party and the movement are entitled to a permanent contribution or a contribution to support the activities of a political institute, the Ministry of Finance shall suspend the payment of a permanent contribution or a contribution to support a political institute to all members of the coalition; the Ministry of Finance shall pay a permanent or retroactive contribution to support the political institute after this conflict has been resolved. ';
Paragraph 20 (12)
"In the year of the elections to the Chamber of Deputies, the Senate, the County Council or the City Council of Prague, annual state contributions for each parliamentary term are calculated separately. The party and the movement belong to one twelve per month of the annual state contribution calculated. In the month of the elections, the party and the movement will receive a state contribution calculated from the election results of that term, which will be more favourable to the party and the movement. If the Chamber of Deputies disbanded, new elections to the county council or to the district council of the capital city of Prague are made, the party and the movement are entitled to an annual permanent contribution, a mandate allowance and a contribution to support the political institute's activities in proportion to the month in which the Chamber of Deputies disbanded, a new election to the county council or to the district council of Prague. If the mandate of a Member, a member of the County Council or a member of the City Council of Prague is vacant and there is no alternate or if the mandate of the Senator is terminated, the annual contribution to the mandate and the contribution to support the political institute's activities shall be in proportion to the month in which this occurred. '
Paragraph 20a (3)
"The contribution to support the activities of the political institute shall be paid annually by the Ministry of Finance, at the request of the Party and the Movement, in two half-yearly instalments. The contribution to support the activities of the political institute shall not be paid out before the activity contribution is paid. ';
Arguments of the appellant
4. The contested provisions of Act No. 424 / 1991 Coll. relate to the following four subjects.
A. Three percent of the voting limit in the elections to the Chamber of Deputies for a permanent contribution and the amount of the contribution to the mandate of a Member or Senator in the amount of CZK 900 000
5. The unconstitutionality of the regulation of the level of the limit for the granting of a permanent contribution and the amount of the contribution to the mandate of a Member or Senator shall be dealt with jointly by the appellant and shall find it contradictory with Articles 21 and 22 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) and with the principle of free competition between political parties under Article 5 of the Constitution. The appellant, using specific examples and calculations, states that financial contributions to "established 'political parties and political movements (hereinafter referred to as" political parties') disproportionately favour these parties over smaller parties and depart from constitutional limits. The appellant claims that since the last finding of the Constitutional Court on the review of the constitutional clause for the permanent contribution [finding sp. zn. The 40% lower limit for entitlement to a permanent contribution (3%) than the closing clause (5%) is disproportionately high, given the results of the elections and the real support of the parties that could reach the 2% threshold for this contribution. In practice, only three political parties outside the Chamber of Deputies reached it in some elections.
6. The appellant further submits that if the State imposes new obligations on political parties, which entail increased operating costs, it should also contribute to the fulfilment of those obligations. The appellant therefore explicitly notes that the proposal to abolish the relevant provisions does not provide with the incentive to abolish the State aid system entirely, but with the incentive to create a new and constitutionally consistent system which would eliminate the continuing inequalities in the financing of political parties by the State and which would reflect, for example, the conclusions of the GRECO Group (the Group of States against Corruption) of the Council of Europe.
B. Limiting the total amount of donations to a political party from one and the same person in a calendar year of CZK 3 000 000
7. The contested provision of Paragraph 18 (2) of Act No. 424 / 1991 Coll. prohibits political parties from accepting a gift or other free of charge (hereinafter referred to as the "gift") from one and the same person if the total total of such donations or cash amounts corresponding to the normal price of the gift or other free of charge would exceed CZK 3 000 000 in the calendar year.
8. The appellant considers this provision in principle to be non-problematic; contends, however, that the inclusion of political parties in the framework of the individual scope of the prohibition involves interference in the freedom of competition of political parties contrary to Article 5 of the Constitution. According to the appellant, this amount is insufficient and limits political parties to the possibilities of cooperation. The adjustment mainly affects smaller players, because it is for them that the possibility of providing a gift from another political party is one of the forms of cooperation they use. As an example, the appellant presents the situation of the political party And working at a regional level that does not run for the Chamber of Deputies, but would like to support another political party B, which is running and intends to defend the interests of Party A in the Chamber of Deputies. Due to the contested provision, page A is limited to CZK 3 000 000. According to the appellant, in the case of a gift, there is a qualitative difference between a political party and another type of legal person. For a political party, it is a gift to participate in a free political competition. And since, according to the appellant, the inclusion of political parties in the personal scope of the provision cannot be bridged by interpretation, it proposes its abolition.
C. Narrowing down the range of entities with which political parties are entitled to conclude a contract to grant loans and loans to banks registered in the Czech Republic
9. The contested provision of § 17 (8) (i) of Act No. 424 / 1991 Coll. narrows down the range of entities with which political parties are entitled to conclude a contract to grant loans or loans (hereinafter referred to as "loans"), to banks, payment institutions or electronic money institutions or branches of a foreign bank, payment institution or electronic money institution in the Czech Republic (hereinafter referred to as "banks registered in the Czech Republic" or "banks"). According to the appellant, this provision puts less economically strong political parties at a disadvantage than those who receive State financial support. According to the appellant, there is indirect discrimination against economically less powerful political parties contrary to Article 3 (1) of the Charter by applying the relevant provision. In its view, the reason is that the ability of individual entities to raise funds for their activities in this way is fundamentally different according to their economic situation, because the banks are carefully examining the applicant's economic situation before granting loans or loans and there is no reason for them to do otherwise with political parties. Massive political parties, or parties receiving contributions from the State, are more attractive to banks because they have the assets to which they can guarantee or are able to repay loans and loans, for example, from state contributions. Moreover, according to the appellant, the effect of the disadvantage of less economically strong political parties is reinforced by the introduction of an institute of contribution to the activity of a political institute whose conditions of provision are set out to be determined only by established and economically strong political parties.
10. In addition to indirect discrimination against less economically strong political parties, the appellant also contests the contested provision with the principle of free competition for political parties under Article 5 of the Constitution, because if a political party does not obtain a loan or loan on account of its economic situation, it will be limited in the free competition of political parties without a meaningful justification.
11. The appellant finds the contested provision to be inconsistent with Article 21 of the Charter, arguing that, under the new legislation, economically less strong political parties will have significantly more difficult access to loans and loans, in particular if they do not at the same time achieve electoral results that guarantee them sufficient State contributions. Thus, narrowing down the range of potential loan providers and loans will increase the pressure on economically less powerful political parties to procure funds in other legally permitted ways. According to the appellant, the solution in the form of an increase in membership contributions, which is one of these methods, appears to be unacceptable because it would limit the participation of citizens in public life because of their property situation.
12. The last objection to this contested provision is its alleged importionality. The appellant submits that the aim of Mr Martin Plíšek's amendment, which resulted in the contested provision, was to strengthen transparency both in terms of transparency of relations between the political party and the providers of credit or loan, and in terms of strengthening the independence of the political parties to those providers. This second partial objective of transparency is considered internally contradictory by the appellant because the elimination of the risk of dependence on other providers will lead to the strengthening of the risk of dependence on banks, which can use precisely the instrument of lending or lending to political parties to promote their economic and political interests. According to the appellant, this narrowing will not lead to any increase in transparency, nor will it strengthen the independence of political parties on loan and loan providers. In its view, there are alternative procedures to achieve both objectives, the application of which would be more friendly to the principles protected by constitutional order.
13. In order to enhance transparency, the appellant considers that the wording in the original draft government amendment to the law would be sufficient to provide a summary of loans, loans and other debts in the annual report, indicating their amount and terms including maturity, names, surnames and dates of birth. From these figures it would be possible to deduce whether it is a loan or a loan that is legitimate or questionable (hidden gift).
D. Political institutes and contribution to the activities of the political institute
14. The legislation of the political institutes in the contested provisions of § 17 paragraphs 4 to 7 of Act No. 424 / 1991 Coll. (as well as other contested provisions referring to political institutes) considers the appellant to be contradictory to Article 3 (1) of the Charter, as it leads to discrimination against smaller and new political parties. The fact that only those parties that are members or founders of political institutions, and at least one Member of which has been elected in two of the last three consecutive parliamentary periods of the Chamber of Deputies, including the current term of office, are granted support under the law, according to the appellant, gives priority to established political parties. According to the current key, only five political parties, in particular the Czech Social Democratic Party, the Communist Party of Bohemia and Moravia, the Civil Democratic Party and the TOP 09, would have achieved support for the activities of the political institute. In the appellant's view, it is not clear why only success was chosen as a criterion for the existence of entitlement to the contribution in the elections to the Chamber of Deputies and not as a criterion for the elections to the Senate, the European Parliament or the Regional Councils.
15. The contested legislation is compared by the appellant with the legislation of the so-called political foundations in the Federal Republic of Germany ("Germany"), which, according to the explanatory memorandum to the contested law, was the main inspiration. The German legislation, as a condition for granting a contribution, requires a political foundation of a related political party to penetrate either the Federal Assembly or twice in one of the Earth's dreams. It is therefore more open than the Czech version. Another difference is that if a political party in Germany falls out of one of the representative bodies after the elections, the Foundation associated with it receives support in the next parliamentary term. The appellant also refers to the case law of the German Federal Constitutional Court, which places emphasis on the legal and factual independence of political institutes on political parties as a condition for their public funding, as well as the need for adequate safeguards in the relevant legislation, which acts against the risk of undermining the equality of opportunities of political parties. According to the appellant, the Czech legislation does not comply with such requirements.
16. In addition to the contention raised against the principle of non-discrimination, the appellant also contests with the principle of free competition between political parties under Article 5 of the Constitution. According to the appellant, the contested regulation gives a petrification to the current party structure in the Czech Republic. The practical example shows how political parties with a relatively similar profit in elections to the Chamber of Deputies (5.1% and 4% of votes) can receive significantly different amounts of financial support from the State. This gap is even greater by the fact that the more successful of them can also receive support by contributing to the political institute's activities.
Observations of the parties and the intervener, reply of the appellant
17. The observations of the Chamber of Deputies of 4 May 2017 relate only to the formal aspects of the legislative process which led to the adoption of the contested legislation. The Chamber of Deputies states that Act No. 302 / 2016 Coll., amending Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended, and other related laws, discussed as House Press No. 569 (Government proposal) at first reading on 20 October 2015 and was also ordered to discuss the Constitutional and Guarantee Audit Committee. Both committees have dealt with it three times. The second reading of the draft law took place on 12 April 2016 and 1 June 2016 and the amendments were processed as House Press No. 569 / 7. The third reading of the bill took place on 29 June 2016 and the bill was approved by the Chamber of Deputies, including as amended by Mr Martin Plíšek (concerning the limitation of the range of admissible loan providers) and Mr Zbyňka Stanjury (which proposed an increase in the amount of the contribution to the mandate of the Member or Senator from CZK 855 000 to CZK 900 000).
18. In its observations of 5 May 2017, the Senate states that the bill was transferred by the Chamber of Deputies to the Senate on 28 July 2016 and was assigned a print number 309 (10th term). The Guarantee Committee was set up by a constitutional legal committee (the only committee to which the bill was ordered) which recommended the Senate to approve the bill in the version referred to by the Chamber of Deputies. The Senate discussed the bill on 24 August 2016. In the debate, Senator Jiří Šesták, among other things, spoke on the issue of restrictions on the range of loan providers and loans and pointed out that there is a danger of "unequal political competition" and indirect discrimination against smaller political parties. This was responded in the general debate by Minister Jiří Dienstbier, who pointed out that even the existing legislation, which did not restrict the range of loan providers and loans, had risks in terms of transparency and independence from private individuals. It stated that limiting credit providers and lending to institutions that have a proper licence to lend money is the most transparent solution. After the general debate, a single proposal was put to the vote to approve the draft bill referred to by the Chamber of Deputies. The bill was approved by the votes of 37 senators in the participation of 62 senators, no senator voted against.
19. The Government approved its entry into the proceedings by order No 335 of 3 May 2017 and proposed the rejection of the motion of a group of Senators to repeal the contested provisions of Act No. 424 / 1991 Coll. In its observations to the Constitutional Court on 6 June 2017, it expressed its views on all the areas of the contested provisions.
20. As regards the alleged unconstitutionality of the establishment of a limit for the granting of a permanent contribution, the Government notes that the matter was already dealt with by the Constitutional Court in the sp. zn. The appellant's assertion that it is impossible for a smaller party to enter into the current political system with the gain of the parliamentary mandate will be contradicted by the government. It mentions the parliamentary participation of the Green Party after the 2006 elections, the Public Affairs after the 2010 elections, the parliamentary representation of the dawn of the direct democracy of Tomia Okamura and the return of the KDU- CSL to the Chamber of Deputies in 2013.
21. The Government has also briefly expressed its views on the question of the unconstitutional nature of the amount of the contribution to the mandate of a Member or Senator. Since the political system is not closed to new entities, the government argues that even in this case the Constitution is not violated. The Government states that, although the Constitutional Court found the contribution to be unconstitutional at the time, it did so in the context of the previous annulment of the electoral contribution, which unduly increased the disproportion of political support and aimed at closing the political system at the time. According to the Government, the political system is currently not closed to new parties, the amendment of Act No. 424 / 1991 Coll. does not increase state contributions to parliamentary parties and therefore the situation is different.
22. In particular, in order to provide donations between political parties, the Government states that the establishment of limits on the gifts of natural and legal persons is common in a number of European states and is justified by the need to avoid undue influence on the political side of individual donors. The aim is precisely to promote free competition between political parties protected by Article 5 of the Constitution. The Government also states that the author, by her example of a political party for which the limit may seem difficult, does not demonstrate that it is an extended practice of cooperation between political parties (in the range of donations over CZK 3 000 000). This example cannot therefore justify the presence of a certain general interest in the absence of a similar restriction, or its "choking effect."
23. On the issue of loans and loans provided by banks, the government argues that the relative concept of equality must be taken into account. According to the Government, with reference to the case law of the Constitutional Court [e.g. the finding of sp. zn. However, according to the Government, none of these cases are fulfilled. First, the Government argues that there is no fundamental right to "obtain a loan or loan from a non-bank (or other) entity '. For this reason, according to the Government, the essence of equality is not violated. The loan financing of political parties may be seen as an economic activity of a political party falling within the scope of Article 26 (2) of the Charter, which allows it to establish conditions and restrictions by law. At the same time, this right can only be invoked within the limits of the laws implementing it, as it falls under Article 41 (1) of the Charter.
24. The Government also notes that the restriction in question cannot be considered as arbitral to the banks. First of all, the Government refers to the explanatory memorandum to the House Press 569 / 0, which resulted in Act No. 302 / 2016 Coll. amending Act No. 424 / 1991 Coll., according to which the amendment aims to "ensure a higher degree of transparency of the financing of political parties and political movements, in particular in the context of their financial and material support by third parties, and a higher level of control of the management of the party... '. As political parties are privileged because of their role in representative democracy, the state's interest in transparent financing of political parties is also legitimate. According to the Government, the amendment by Mr Martin Plíšek, which led to the narrowing of the range of loan and loan providers to banks and similar institutions alone, fulfils the purpose of strengthening transparency by making them transparent and effectively controllable. According to the Government, the contested regulation therefore has a legitimate objective, is rational, is not arbitrary and is also effective with regard to the general supervision of banks and the so-called special authorisation of the Office for the Management of Political Parties and of political movements, which, pursuant to § 38 (3) of Act No. 21 / 1992 Coll., on banks, as amended, may request information on their clients. The Government considers the identification of the legitimate purpose of the legislation to be appropriate both to exclude the indirect discrimination claimed and to exclude the infringement of Article 5 of the Constitution.
25. The Government adds to this point that any increase in the dependence of political parties on other types of funding can also be taken positively as an appeal to the prudence and prudence of political parties in their management and that it is necessary to respect the discretion of the legislator who adopted the bill and can assess the impact of the law in the future. Finally, with reference to the provisions of Decree No. 163 / 2014 Coll., on the performance of the activities of banks, savings and credit cooperatives and securities dealers, and Decree No. 141 / 2011 Coll., on the performance of the activities of payment institutions, electronic money institutions, small-scale payment service providers and small-scale electronic money publishers, as amended, the Government states that the rules therein ensure the exclusion of bank preference in lending.
26. As regards the unconstitutional rule of political institutions, the Government states that the legislator intended to create conditions for the establishment and long-term sustainable functioning of institutions that would play a strengthening role for political party in society and thus for the stability of the overall political system. The Government underlines that the political institutes, in accordance with Article 17 (4) of Law No 424 / 1991 Coll., strengthen the essential characteristics of the democratic political system and that the public has the opportunity to control this through the obligation of the political institutes to publish the results of their activities, the nature of which makes it possible in a way that allows remote access.
27. The Government also notes that the granting of a contribution to the activities of a political institute is only possible if the political institute has registered public utility status, which does not indicate that political institutes could serve to distort the free competition of political parties (note the Constitutional Court: by adopting Act No. 303 / 2017 Coll., which amends certain laws relating to the abolition of public utility status, the provisions on the registration of public utility status have been abolished).
28. The establishment of the activities of political institutes is therefore rational, according to the Government, as is the intention of the legislator to provide financial support for political institutes. According to the Government, this is an aspect of the concept of defending democracy, as is the inspiration of the legislator in German law.
29. According to the Government, the legislature did not exercise discretion if he followed the election results only to the Chamber of Deputies and not to other representative bodies. The Government refers here to the finding of the Constitutional Court sp. zn. Pl. ÚS 10 / 03 and states that the contested regulation justifies the position of the Chamber of Deputies as the most important representative body in the Czech Republic. The association with electoral success to the Chamber of Deputies reflects, according to the government, the political party's position in the constitutional system of the state. According to her, it is so understandable if the legislator derives financial support from political institutions from being elected to the Chamber of Deputies.
30. The Government also corrects the appellant's assertion that, according to the contested legislation, the contribution to the activity of the political institute is also granted to a political party that has "fallen out of the Chamber of Deputies" for one period and that, therefore, the law has not deviated from German inspiration in this respect. In addition, the Government notes that the appellant failed to include KDU- ČSL in the list of parties entitled to receive support for the activities of the political institute at present.
31. With the appellant's claim that the Czech legislation of political institutes would not stand up to the demands of the German Federal Constitutional Court on the legal and factual independence of similar institutions on political parties and on the absence of a gap in the protection of the equality of political parties' chances, the government does not agree. It recalls that the political institute does not constitute a new type of legal entity. Since the political institute is a legal person different from the political party and the legislation governing the relevant type of legal person applies to it (Civil Code, Commercial Corporations Act, etc.), the risk of regulatory loopholes is also reduced. According to the Government, the actual state of independence cannot yet be assessed or summed up because of the novelty of this legislation.
32. The Ombudsman decided not to exercise her procedural right under § 69 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, and did not intervene.
33. In its reply to the Constitutional Court on 24 August 2017, the appellant addressed the Government's observations in particular. In order to adjust the 3% limit for the granting of a permanent contribution and the amount of the contribution to the mandate of a Member or Senator, the appellant has added a further comparison of the financial support of the selected political parties to its claims on the unconstitutionality of the current financing model.
34. To limit the aggregate amount of gifts of CZK 3 000 000 and its unconstitutional impact on the free competition of political parties, the appellant states that the government's argument that the practice of providing gifts between political parties is not so frequent as to justify the rejection of the limit on donations in general is odd. According to the appellant, the possible low frequency of occurrence of certain behaviours cannot be a reason to heal the unconstitutionality.
35. On the issue of loans and loans granted only by banks, the appellant states that it insists on the unconstitutional impact of the reduction of the range of admissible providers in question to less economically strong political parties, as the narrowing will significantly affect them, unlike established political parties. To the Government's objection that the limitation of providers to banks promotes the achievement of transparency in the management of political parties, the appellant responds that, although the achievement of transparency in terms of the transparency of relations between the political party and the credit provider is legitimate (including in the sense of ensuring the purity of the resources provided), the problem is that the chosen means of achieving the objectives are inadequate. The appellant points out that the disproportionate nature of this device can also be illustrated in the speech by Mr Plíšek, who, when justifying the amendment in question, spoke about excluding the possibility of "financing through loans, e.g. by an anonymous natural person ', but the proposed and legislature approved by him is much more general and does not allow any other provider than banks.
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Regulation Information
| Citation | The Constitutional Court found No 60 / 2018 Coll., on the application for annulment of certain provisions of Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 12.04.2018 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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