The Constitutional Court found No 62 / 2009 Coll.
The Constitutional Court's finding of 2 December 2008 on the application for annulment of the provisions of Sections 183i to 183n of Act No. 513 / 1991 Coll., Commercial Code, as amended by Act No. 216 / 2005 Coll., and the provisions of Section 200da (3) of Act No. 99 / 1963 Coll., Civil Code, as amended by Act No. 216 / 2005 Coll.
Valid
The Constitutional Tribunal found
Text versions:
06.03.2009
62
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 2 December 2008 in plenary in the composition of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimir Křirka, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická as participants in the proceedings in Prague, on the abolition of the provisions of Act No. 183i to 183n of Law No. 513 / 1991 Coll., the Commercial Act, as amended by Act No. 216 / 2005 Coll., and the Act of the Chamber of the Parliament of the Czech Republic as participants in the proceedings and the Municipal Court of the City Court of Prague for which he acts, acting on Dr.
as follows:
I. The proposal to repeal the provisions of Sections 183i to 183n of Act No. 513 / 1991 Coll., Commercial Code, as amended by Act No. 216 / 2005 Coll., is rejected.
II. The application for annulment of the provisions of § 200da (3) of Act No. 99 / 1963 Coll., Civil Code, as amended by Act No. 216 / 2005 Coll., now the provision of § 200da (4) of Act No. 99 / 1963 Coll., Civil Code, as amended, is rejected.
Reasons
Definition and recap of the proposal
1. On 4 October 2005, the Constitutional Court received the application of the Municipal Court in Prague, for which the Judge JUDr. Zuzana Ciprýnová (hereinafter referred to as "the applicant"), pursuant to the provisions of § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court") on the abolition of the provisions of Sections 183i to 183n of Act No. 513 / 1991 Coll., the Commercial Code, (hereinafter referred to as "the Commercial Code"), as amended by Act No. 216 / 1994 Coll., on the Senior Judicial Officials, as amended by Act No. 358 / 1992 Coll., Act No. 99 / 1963 Coll., the Civil Code, as amended by Act No. 189 / 1994 Coll.
2. The proposal in question was submitted by the appellant in the context of the decision on the application for registration of the amendment - the resolution of the General Meeting of the Business Company, a.s., held on 9 September 2005 on the transfer of the participating securities of the minority shareholders of that company to the main shareholder pursuant to the provisions of § 183i et seq. of the Commercial Code to the Commercial Register, kept by the appellant under the file mark B 1563.
3. The appellant considers that the provisions of Sections 183i to 183n of the Commercial Code, as amended by Act No. 216 / 2005 Coll., are contrary to Articles 11 and 36 of the Charter of Fundamental Rights ("the Charter '), Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention') and Article 1 of the Additional Protocol to the Convention. Paragraph 200da (3) CS, as amended by Act No. 216 / 2005 Coll., then according to the appellant, it is contrary to the right to a fair trial under Article 36 of the Charter and contrary to the principle of independence of the courts enshrined in Articles 81 and 82 (1) of the Constitution of the Czech Republic ("the Constitution ').
4. The appellant submitted an application for annulment of the provisions of § 183i to 183n of the Commercial Code, as amended by Act No. 216 / 2005 Coll., and § 200da (3) o. s.
5. On 8 December 2005, the Constitutional Court issued a resolution sp. zn. In view of the fact that the application was made by a legitimate appellant within the meaning of Article 64 (1) (b) of the Law on the Constitutional Court, the appellant had the right, pursuant to Article 35 (2) in fine of the Law on the Constitutional Court, to take part in the hearing of the earlier application as an intervener in the proceedings in Pl. ÚS 43 / 05. Since the Senate Group's proposal aimed at repealing the provisions of Sections 183i to 183n of the Commercial Code, as amended by Act No. 377 / 2005 Coll., on the supplementary supervision of banks, savings banks and credit cooperatives, electronic money institutions, insurance companies and securities dealers in financial conglomerates and on the amendment of certain other laws (Act on Financial Conglomerates), effective from 29 September 2005, the group of Senators, after the resolution of the Constitutional Court, sp. zn. By order of the Constitutional Court of 5 September 2006 sp. zn.
6. On 22 August 2006 and on 2 January 2007, the Constitutional Court issued a resolution under sp. zn. In view of the fact that the proposals were submitted by a legitimate appellant within the meaning of Article 64 (3) of the Law on the Constitutional Court, the creditor has the right, pursuant to Article 35 (2) in fine of the Law on the Constitutional Court, to take part in the hearing of the earlier application as an intervener in the proceedings in the Pl. ÚS 43 / 05.
7. On 17 September 2007, the Municipal Court in Prague, acting on behalf of JUDr. Zuzana Ciprýnová, submitted to the Constitutional Court a further proposal for the annulment of the provisions of Sections 183i to 183n of the Commercial Code and of Section 200da (3) o. s. s., and on 25 September 2007 three further proposals for the annulment of the same provisions. The Constitutional Court by resolutions of 9 October 2007 sp. zn. Pl. ÚS 20 / 07, 23 January 2008 sp. zn. Pl. ÚS 21 / 07, 29 November 2007 sp. zn. Pl. ÚS 22 / 07 and 24 April 2008 sp. zn. Pl. ÚS 23 / 07 (in the Collection of Finances and Order of the Constitutional Court not published, available at http: / / nalus.ujud.cz) rejected those proposals in conjunction with the provisions of § 43 (2) (b) of the Constitutional Court Act as inadmissible.
8. On 10 March 2006, 10 April 2006 and 4 September 2006, the Constitutional Court received requests from Mr J. H., Mr J. N. and Mr J. Č. for the granting of the status of interveners under the provisions of Sections 63 and 76 (3) of the Law on the Constitutional Court in connection with the application of the provisions of Sections 183i to 183n of the Commercial Code in respect of the transfer of participating securities from their ownership to the majority shareholder. On 22 June 2006, the Constitutional Court received a letter from the Municipal Public Prosecutor in Prague, sp. zn. KZC 527 / 2006, which stated that, in the legal case of the appellant, a.s., on the application for registration of the transfer of shares under § 183i of the Commercial Code, it entered into proceedings within the meaning of § 35 (1) (i) o. of the Constitutional Court, stating that it does not know, in the proceedings for the annulment of laws and other legislation, the Law on the Constitutional Court, which is bound pursuant to Article 88 of the Constitution of the Constitutional Court, except in cases arising from a procedure under the provisions of § 35 (2) of the Law on the Constitutional Court of Procedure, a minor party. At the same time, the Constitutional Court notes that the above mentioned provisions do not imply the right of the Municipal Public Prosecutor in Prague to intervene as a party to the proceedings. If the Municipal Public Prosecutor's Office in Prague derives its right to enter the proceedings from the provisions of § 35 (1) (i) o. s., such an entry into the proceedings before the Constitutional Court would only be justified if the status of the party or intervener were to be the responsibility of the commercial firm, a. s. In addition, the Constitutional Court concludes that the party to the proceedings before the Constitutional Court can only be identified by the Law on the Constitutional Court (§ 28 (1) to (4)).
Formal preconditions for discussion of the proposal
9. The Constitutional Court first examined whether the formal grounds for the substantive assessment of the application were met and, thus, addressed the question of whether the appellant was legitimate in the present case in order to submit the application.
10. The contested provisions were included in the Czech legal order with effect from 3 June 2005 and 1 July 2005 by Act No. 216 / 2005 Coll. The approved amendment of the set of laws governing the management of the Commercial Register and the entries in it provided for in Sections 183i to 183n of the Commercial Code an amendment to the Institute known in foreign orders as the so-called squeeze-out, i.e. the withdrawal of shares against the owner's will. By providing for § 200da (3) o. s., the procedure of the Registry Court in examining the founding documents and, where appropriate, the documents required for the change of the registration of company data was then modified by the provision of § 200da (3) o. s.
11. According to Article 95 (2) of the Constitution on which the application is based, if the court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court. As stated by the Constitutional Court in its Resolution of 28 November 2002, sp. zn. It is not disputed that this condition is always met in the case of a law, or its individual provision, the application of which is to be immediate and to be used in the case at hand, i.e. in the case at hand in the proceedings for the entry into the Commercial Register of the shareholders' participating securities of the company in accordance with § 183i et seq. of the Commercial Code, as amended by Act No 216 / 2005 Coll. Paragraph 200da (3) CS, as amended by Act No. 216 / 2005 Coll., then requires the Registry Court to register, without a decision, the facts underlying the annexed notarial registration, provided that only the entrepreneur is a party to the proceedings and proposed that such registration be carried out. It is therefore not for the Court of First Instance to examine, in substance, the notarial entries which are drawn up on the operative events, in particular concerning changes to the founding documents of companies and other legal entities.
12. In order for a court to question the constitutionality of a law, it is not only its hypothetical use or other broader context that is necessary, but its inevitable application. Direct application of the provisions of § 183i to 183n of the Commercial Code, as amended by Act No. 216 / 2005 Coll., as stated above, is not part of the judicial activity of the Registry Court. The acceptance by the appellant of a broad interpretation of the concept of "the law to be used in the resolution of the case 'would in essence constitute a right of the court to challenge any provision which has been applied since there is always a certain chain of applied rules and de facto the law as a whole is always applied. However, this interpretation is rejected by the Constitutional Court (cf. Order of the Constitutional Court of 23 October). 2000 sp. zn.
13. It follows from the above that the application for annulment of the provisions of § 183i to 183n of the Commercial Code, as amended by Act No. 216 / 2005 Coll., was made by someone manifestly unauthorized [§ 43 (1) (c) of the Law on the Constitutional Court], which does not allow the Constitutional Court to deal with the appellant's moral arguments concerning the various contested provisions of the Commercial Code. In addition, the Constitutional Court finds that the contested provisions of the Commercial Code have been amended repeatedly - with effect from 29 September 2005 by the provisions of Section 46 of Part Nine of Act No. 377 / 2005 Coll., on the supplementary supervision of banks, savings and credit cooperatives, electronic money institutions, insurance companies and securities dealers in financial conglomerates and on the amendment of certain other laws (Law on financial conglomerates), on the effectiveness of Act No. 57 / 2006 Coll., on the amendment of laws in connection with the unification of financial market supervision, and on the effectiveness of Act No. 104 / 2008 Coll., on the takeover offers and on the amendment of certain other laws (Law on takeover bids). In addition, the compliance of the contested provisions of Sections 183i to 183n of the Commercial Code, as amended by Act No. 377 / 2005 Coll., with the constitutional order, was already subject to a review by the Constitutional Court of the proceedings under sp. zn.
14. In such a procedural situation, the Constitutional Court is not entitled to give an authoritative opinion on the constitutional conformity of the provisions of Sections 183i to 183n of the Commercial Code, as amended by Act No. 216 / 2005 Coll., even from the point of view of the views expressed by the Constitutional Court in the decision of 10 January 2001 sp. zn. Pl. Pl. Pl. 33 / 2000 (ECR 21, p. 5, p. 29, published under No. 78 / 2001 Coll.), possibly views on this finding presented in the different opinions of the six Judges of the Constitutional Court of First Instance (see page 2006 sp.
15. The Constitutional Court further examined the part of the proposal which the appellant sought to repeal the provisions of § 200da (3) o. s. s., as amended by Act No. 216 / 2005 Coll.
Text of the contested legal provision
16. The provisions of § 200da (3) o. s. CS, as amended by Act No. 216 / 2005 Coll., read:
§ 200da (3) o. s. o.
"Without a decision being given, the court shall also register facts whose effectiveness or validity does not take place under a separate law until the registration is made, or record other facts underlying the annexed notarial registration, provided that the party to the proceedings is only an entrepreneur and has proposed that such registration be carried out. Notary registration shall be the eligible basis for such registration, even if specific legislation does not require this form of legal action. ';
17. The Constitutional Court found that the contested provision had been amended by Act No 79 / 2006 Coll., amending Act No 85 / 1996, on the Law of the Advocate, as amended, and other related laws, so that § 200da (3) o. s. is worded as follows since 15 March 2006:
§ 200da (3) o. s. o.
"The Court of First Instance shall register without taking a decision on this, even if the proposed facts have a basis in the annexed notarial record; in that case, in addition to the finding referred to in paragraph 1, the court shall examine only whether the notarial registration complies with the requirements laid down in a specific law. The procedure laid down in the preceding sentence shall apply only if the applicant and the sole party to proceedings are the entrepreneur to whom the registration relates. Notary registration is an eligible basis for registration, even if specific legislation does not require this form of legal action. '
18. Although the amendments made changed the wording of § 200da (3) o. s.), despite the amendment, the wording of the contested provision remained essentially the same when, in the operative direction of the present case, the amendment was not relevant. With reference to Part Three of Article VI (1) of the Transitional Provisions of Act No. 79 / 2006 Coll., under which "Proceedings in Commercial Register Matters initiated before the date of entry into force of this Act shall be completed in accordance with the existing legislation." The Municipal Court in Prague shall follow the wording of § 200da (3) o. s. in force on the date of application for registration of the resolution of the General Assembly, i.e. on 16 September 2005. The Constitutional Court has thus, in accordance with its current caselaw, given its obligation to decide on a proposal submitted in accordance with the provisions of Paragraph 64 (3) of the Constitutional Court Act.
19. Later, the legislator by Act No. 126 / 2008 Coll., amending certain laws in connection with the adoption of the Act on Transformation of Companies and Cooperatives, amended the provisions of § 200da o.s., but only by inserting a new paragraph 2 for paragraph 1. Paragraph 3 of § 200da o.s. thus became paragraph 4. The determination of the provisions of § 200da (3) o. s., now paragraph 4, remained the same as the previous one.
Constitutional procedure
20. The Constitutional Court is obliged, in accordance with the provisions of Paragraph 68 (2) of the Law on the Constitutional Court, to assess whether the contested law or part of it has been adopted and issued in a constitutional manner.
21. From the electronic library of the Chamber of Deputies of the Parliament of the Czech Republic, the Constitutional Court found that the bill was submitted to the Chamber of Deputies by Mr JUDr. Jiří Pospíšil on 21 January 2004. The proposal was circulated to Members as press 566 / 0 on 21 January 2004 and sent to the Government for an opinion on 22 January 2004. The proposal was adopted at the 41st session of the Chamber of Deputies on 9 February 2005 by Resolution 1457, when 182 of the 185 Members present voted in favour of the proposal.
22. In his observations on the proposal of 16 November 2005, the President of the Senate of the Parliament of the Czech Republic stated that the Senate had been forwarded by the Chamber of Deputies on 7 March 2005. The Senate discussed the proposal at its fourth meeting in its fifth term of office on 31 March 2005 and, in vote 96, adopted resolution 104 on the draft law by which it returned the bill to the Chamber of Deputies with amendments. 64 senators out of 69 were voted in favour of the resolution, 5 senators abstained and no one was against it.
23. From the electronic library of the Chamber of Deputies of the Parliament of the Czech Republic, the Constitutional Court further found that the draft law of the Chamber of Deputies was renegotiated at its 44th meeting on 3 May 2005. The House maintained its position and approved the draft law by resolution 1626, when in vote 25 of 193, 135 and 2 opposed it.
24. The President, the Prime Minister and the President of the Chamber of Deputies signed the Act and declared it in the Collection of Laws of 77 under No. 216 / 2005 Coll.
25. It can be concluded that Act No. 216 / 2005 Coll. was adopted and issued in a constitutional manner.
Recital of the essential observations of the parties
26. The Constitutional Court requested, in accordance with Article 69 (1) of the Law on the Constitutional Court, the observations of the parties - Chamber of Deputies and Senate of the Parliament of the Czech Republic - and the intervener to the proceedings of the Municipal Court in Prague, for which JUDr. Hana Albertová is acting.
27. In his observations of 16 November 2005, the President of the Chamber of Deputies of the Parliament of the Czech Republic described the procedure for the adoption of Act No. 216 / 2005 Coll. and stated that the legislature acted in accordance with the legal procedure when negotiating the contested law and expressed his vote that the adopted law was not contrary to the constitutional order of the Czech Republic. At the same time, he added the text of Mr Doležal's amendment, the amendments - press 566 / 4, the approved text of the law - press 566 / 5, the third reading stenographic record of 9 February 2004 and the resolution of the Chamber of Deputies No 1457 and No 1626.
28. In his observations of 16 November 2005, the President of the Senate of the Parliament of the Czech Republic described the procedure for discussing the bill by the Senate. As regards the contested provision, according to the content of the President of the Senate, the legislature, when adopting its amendment, was guided by the overall philosophy of change, leading to the acceleration and streamlining of the procedure before the Commercial Register. The legislature assumed that the notarial registration had the character of an authentic instrument, its content being attributed to the premise of the correctness of such a document. In spite of this, the Registry Courts were examined, which led to delays in the proceedings and to conflicts of interest in the content of such a document. Amendment o. s. has amended the procedure of the Court of First Instance in examining the founding documents and, where appropriate, the documents required for the change in the registration of company data in such a way that the court only checks whether those documents contain the legally required elements and annexes and whether the requirements relating to the individual facts entered in the register are fulfilled. Where compliance with the above requirements is demonstrated by a notarial registration, the registry court shall confine itself to examining whether the particulars in the registration application correspond to those in the notarial registration. A notary drawing up a notarial record shall be responsible for the content of the legal act which it has verified and for its compliance with the legal entity's founding documents. The Court of First Instance only carries out a substantive review in the case of constitutive entries in the Commercial Register, only if it is not a public instrument sufficient to attest sufficient evidence to the facts to be entered, that is to say, that no notarial registration has been attached.
29. By-party to the proceedings - The Municipal Court in Prague, for which JUDr. Hana Albert is acting, did not submit his observations on the application.
30. The parties' comments were sent to the applicant and the intervener for a possible reply. In its reply of 30 August 2006, supplemented by its submission of 10 November 2006, the appellant maintained its views in the application for annulment of the contested provisions, while stating that it was necessary to respect the conclusions of the European Court of Human Rights (hereinafter referred to as the European Court of Justice) set out in the Kredit and Industrial Bank case No 29010 / 95 of 21 October 2003, as this is a similar situation. In his view, the entry in the Commercial Register of a resolution of the General Meeting is a direct and unforgivable reason for the transfer of ownership of shares under the provisions of § 1831 of the Commercial Code (without such registration there would be no transfer of ownership). Therefore, the maximum stated by the European Court of Justice, i.e. that such cases should be decided on in a confirmatory and public court proceedings, is fully valid here.
31. The Constitutional Court sent a reply to the appellant of 30 August 2006, including its amendment of 10 November 2006, to the parties and interveners. The appellant then added its argument in relation to the case-law of the Constitutional Court by referring specifically to the order of the Constitutional Court of 25 March 2003 sp. zn. IV. ÚS 720 / 01 (unpublished in the ECR, available at http: / / nalus.ujud.cz) and to the fair process factor as a condition for the assessment of proportionality in interventions in the law on the peaceful use of property. This amendment to the application was also served by the Constitutional Court on the parties and the intervener. The parties and the intervener did not comment on the reply submitted or on the additions received.
32. On 13 May 2008, the Constitutional Court received a reply to the appellant's proposal of 7 May 2008. The appellant drew attention to two legislative changes which, in his view, need to be addressed. These are changes that occurred as a result of the entry into force of Act No. 377 / 2005 Coll. (in addition to the proposal no. 577 / 2005 Coll.), the supplementary supervision of banks, savings and credit cooperatives, electronic money institutions, insurance companies and securities dealers in financial conglomerates and the amendment of certain other laws (the law on financial conglomerates), and the adoption of the new Act No. 104 / 2008 Coll. (in addition to the proposal no. 208 / 2008 Coll.), the offer of take-over and the amendment of certain other laws (the law on takeover). In its extensive submission, the appellant analyses in detail the reasoning including the reasons for the rejection of the Senate's proposal by the Constitutional Court of 27 March 2008 sp. zn. Pl. ÚS 56 / 05 (see above), and proposes that the Constitutional Court should re-examine the issue of the constitutionality of the contested provisions of Paragraph 183i et seq. of the Commercial Code, regardless of the decision in the sp. zl. ÚS 56 / 05 and the question of the constitutionality of the right of redemption in relation to the above mentioned.
33. The Constitutional Court served on the appellant's application of 7 May 2008 to the parties and the intervener. On 11 June 2008, only the Senate of the Parliament of the Czech Republic, which described the procedure for adopting the Financial Conglomerates Act and the Takeover Offers Act, delivered its observations to the Constitutional Court.
34. By letter dated 21 July 2008, the appellant delivered to the Constitutional Court a copy of the article of the author Mariji Bartl of the European University Institute, published in the journal Jurisprudence No. 3 / 2008 on p. 4 to 14, which is a response to the finding of the Constitutional Court of 27 March 2008 sp. zn. As stated by the appellant, the article in question sent the Constitutional Court, on the one hand, in support of the arguments put forward and, on the other, as an independent expert's view. This submission was also served on the parties and the intervener.
Conduct of negotiations
35. On 10 January 2007, a public meeting took place at the plenary of the Constitutional Court, at which the appellant sent the President of the Plenary a short journey in writing to complete his proposal of 8 January 2007. Since neither the Constitutional Court nor the parties could therefore have been given sufficient time to acquaint themselves with the appellant's additional argument, there was no other choice but to postpone the public hearing.
36. By order of 20 March 2007, the Constitutional Court suspended the proceedings in respect of the application. This was due to the fact that, at the same time as the Constitutional Court, Pl. ÚS 56 / 05, further proceedings were pending with regard to the application for annulment of the provisions of Sections 183i to 183n of the Commercial Code, in which a question was addressed which might have been relevant to the decisions taken under the Pl. ÚS 43 / 05. Therefore, the plenary of the Constitutional Court, led by an interest in maintaining the correctness and fairness of the proceedings, found that the proceedings in the Plenary Case sp. zn. Since the decision was taken on 27 March 2008 in case sp. zn. The Constitutional Court therefore decided, by order of 2 April 2008, that the proceedings should be continued.
In accordance with Article 44 (2) of the Law on the Constitutional Court, the Constitutional Court asked the parties and the intervener whether they agreed to refrain from oral proceedings in a situation where further clarification could not be expected from such proceedings. The Chamber of Deputies and the Senate of the Parliament of the Czech Republic and the intervener have given their written consent to the abandonment of the oral hearing. The appellant insisted on the oral order. Therefore, the Constitutional Court ordered oral proceedings on 2 December 2008. There were no other arguments in this oral hearing, since the Chamber of Deputies and the Senate of the Parliament of the Czech Republic apologized in writing for their non-participation in the hearing, the intervener did not appear without apology, and the appellant excused his non-participation without further justification shortly before the oral hearing.
Content compliance of the contested provision with the constitutional order
37. In its proposal, the appellant specifically contends that the contested provision of § 200da (3) CS, as amended by Act No. 216 / 2005 Coll., has put the Registry Court in such a position that, even if it had in its hands absolutely convincing evidence that the content of the notarial registration is incorrect, incomplete or false, it cannot carry out and evaluate such evidence, but it must carry out the registration, even without issuing any formal decision on that registration. The contested provision is, in the appellant's view, contrary to the Constitution because, in the case of its application, it is impossible to discuss the decision of an independent court.
38. The Constitutional Court finds, for the general part of the explanatory memorandum to draft Law No 216 / 2005 Coll. that the fundamental objective of the proposed amendment was the overall transformation of the substantive and procedural rules of the Commercial Register. The current concept of the business register is based not only on the first publication and hence on the Austrian Commercial Code and related regulations, but also on new experiences from Germany and Austria. This concept is repeatedly justified by the need to implement European directives and by increasing the protection of third parties. The proposed regulation of the law places particular emphasis on the amendment of the procedural regulation of registrations in the Commercial Register, which is largely contained in the O & D. Thus, the Registry Court is entitled to examine the formal assumptions of the application and, in part, also substantive if notarial registration has not been submitted. There is no breach of legal certainty as the examination of the completeness of the forms and the consistency between the documents and the proposal guarantees the safety and accuracy of legal relations. Given the tradition of the Czech Republic, the unnecessary increase in transformation costs and the overall design of the Czech legal order based on public law control, the bill was maintained by the court as a body leading the entire agenda. The new, although already used in Czech law and in European countries, was a common method, the introduction of compulsory forms with binding annexes. The proceedings are in principle initiated on a proposal and a favourable decision of the Registry Court is not made by a separate decision, but by an ipso facto decision. In contrast, ex officio proceedings require specific decisions. The decisive role was transferred to entrepreneurs who, with access to all relevant resources and information, should be able to formulate a proposal that fully meets the requirements of the law. The consequence of the adoption of the amendment was to accelerate the registration process, eliminate any further proceedings and improve the environment for business of Czech and foreign persons, and thus improve the fulfilment of the rights guaranteed by the Charter.
39. In a specific part of the explanatory memorandum to the draft law No 216 / 2005 Coll. it is stated that, in the interests of clarity of the whole system, the protection of legality and the prevention of confusion to the public, the proposal will formally examine whether it meets the requirements of the law, whether the proposed company is interchangeable or misleading under the Commercial Code, and whether the subject matter of the business is in accordance with the rights granted. In addition to the points expressly laid down by law, the court is not entitled to carry out any other control of the application, with the exception of the provisions of § 200db o.s. CS. Article 10 of the First Council Directive 68 / 151 / EEC of 9 March 1968 on the coordination of provisions for the protection of the interests of members and third parties laid down in the Member States for trading companies within the meaning of Article 58 of the Treaty on European Communities, which provide for nothing in respect of substantive review, was also a helpful argument. In principle, the Czech legislation could be formulated in such a way that the substantive review would be abandoned entirely and would be only satisfied with notarial notaries and other notaries known to the existing legal order. If it is possible to abandon the substantive review altogether, then its partial retention is nothing that violates principles or distorts legal certainty. While the proposed law is based on partial and conditional retention of substantive review, it continues to recognise the fictitious nature of the legal entity and thus the increased need for protection of third parties, but the main reason is elsewhere. This is the current concept of the Commercial Code and the paradigmatic concept of the teaching of commercial law, when the shift of the Commercial Register (registration) closer to the registered view is a matter of a more comprehensive change in commercial law.
40. From a comparative point of view, it should be noted that in the European Union, some countries have a commercial register in a separate law relating to the Civil Code, others have a Commercial Code and others have a Civil Code. The authorisation of registration shall also be based entirely individually, both on the authorisation principle and on the registration principle. The proceedings shall be conducted by courts, registers, administrative offices or patent offices. For example, in the Netherlands, the Commercial Register is kept by the Chamber of Commerce, which, in case of doubt about the legality of the required registration, refers to the (cantonal) court. In Germany, the commercial register is always kept by the local register court according to the company's registered office. Registration shall be carried out by a senior judicial officer or a judge. For example, the following acts shall be reserved for judges: first minutes, minutes of amendments to the statutes which do not affect only the text of the statutes, changes to social agreements, erasures for defined reasons, etc. The business register is kept by courts electronically, and the role of notaries in certifying the facts related to processes in companies is important. In squeeze-out cases, the minority shareholder is granted a specific type of procedure, so called Spruchverfahren, which, although initiated on a proposal, but the obligation of the appellant's claim is limited to the circumstances ascertainable from the management report, the appellant does not have to quantify a specific amount, etc. In Switzerland, the Commercial Register is kept by the relevant Office of the Commercial Register (Handelsregisteramt), each Swiss Canton has its own office where local companies are registered. In Austria, the business register system is similar to that in Germany. The trade register shall be kept by the competent court of the Land and, where the trade register is kept, a special court for trade disputes shall always be established. Here too, some acts are carried out by a senior judicial officer, more serious to the judge. In the squeeze-out case, a review of the appropriate compensation is ensured by a specific procedural institution in an undisputed procedure in which the court is acting on its own initiative. In France and Spain, the commercial register is kept by relatively independent members of the free profession - registrar. In the UK, the Commercial Register is maintained by the State Office of Companies House. In Sweden, the trade register of Bolagsverket, which is the office of registration of Swedish companies, operates independently since mid-2004 (separated from the patent office). This institution is not publicly funded and therefore charges for its services. It carries out basically all operations related to the management of companies such as registration, deletion, receipt of accounts, winding-up decisions, etc. In Finland, the Commercial Register is maintained by the National Patent and Registration Office of Finland. The commercial register is based here on the principle of publicity, with the reporting of changes or new data being sent to that office either by companies themselves or by courts. As can be seen from this summary, business registers may be managed by both judicial bodies and others. If, for various reasons, the courts do so, it is the exercise of atypical, extrajudicial power.
41. As regards the case-law of the Registry Courts, the European Court of Justice ("ECJ ') expressed its views on their nature in several of its decisions. For example, in HSB-Wohnbau GmbH (C-86 / 00) or Job Centre (C-111 / 94), the ECJ refused to deal with the preliminary questions raised by the Heidelberg Regional Court (Germany), since it did not consider it as a registered court within the meaning of Article 234 of the Treaty establishing the European Community, on the ground that no dispute had been brought before it, and referred it to it as an office which, on application, decided on registration. The ECJ also refused to deal with questions raised by the courts of the Member States acting as an administrative body and not a judicial body - for example, when dealing with the issue of the Real Estate Register (Doris Salzman, C-178 / 99) or when examining questions raised in a dispute raised by a private arbitrator (Nordsee Deutsche Hochseefisherei GmbH v Reederei Mond, C-102 / 81). It follows that the ECJ, in the same way as the transfer to the Real Estate Register, does not regard the registration as a decision addressing the issues at issue before an independent court, but considers the registration as an administrative decision which is not terminated by a decision which is a judicial decision.
42. The European Union standards only regulate the commercial register itself, not the way in which it is managed, which they leave entirely to national regulation. In general, therefore, it was entirely up to the legislator to decide for the Czech Republic whether he maintained the register, even in the form of mostly administrative acts, on the courts. If the Czech legislature left substantive legislation in the Commercial and Proceedings Code in the Czech Republic and chose to register the so-called registration principle, it cannot be considered as such unconstitutional.
43. Proceedings in the matters of the Commercial Register are a special type of non-contested procedure. The substantive rights which are the subject of such proceedings are mainly governed by the provisions of § 27 to 38l of the Commercial Code. Proceedings in the matters of the Commercial Register are then governed by § 200a et seq. This list contains the information which is included in Section 35 of the Commercial Code, as well as other data provided for in the Act. The amendment made by Act No. 216 / 2005 Coll. brought about a fundamental change in the way in which the proceedings were opened, in the way in which the proceedings were conducted and in the manner and content of the court's decisions. In particular, the Court's own proceedings were simplified by abandoning the substantive examination of the application for the opening of the registration procedure. By transferring part of the responsibility for the correctness of the entries to the registered persons, the role of the court as guarantor of the compliance of the minutes with the rule of law has been weakened by the introduction of a review of only the formal assumptions of the proposal.
44. According to the legislation laid down in Act No 358 / 1992 Coll., on notaries and their activities (notarial order), as amended, in the provision of § 80a (1): "The notary shall, upon request, draw up a notarial record of the decision of the body of a legal person if the specific law requires the acquisition of such notarial registration or if it is decided on the facts recorded in the public lists, even if the special law does not require the acquisition of such notarial registration." In accordance with the provisions of Paragraph 80e (1) of the notarial order: "If a notary finds in the course of a hearing an authority of a legal person which takes a decision on which a notarial registration is to be made that the conditions for the adoption of a decision required by law or by the founding documents are not fulfilled, he shall inform the President thereof and shall make that fact known in the notarial register. The same shall apply where the content of the proposed resolution or of the adopted resolution is contrary to legislation or to the instruments of incorporation. '; As found by the Constitutional Court from the notarial minutes of 9 September 2005 sp. zn.
45. It is clear that by adopting the contested provision § 200da (3) o. s. s., as amended by Act No. 216 / 2005 Coll., there has been a significant increase in the liability of notaries who guarantee the legality of the conduct prior to the adoption of the decision by the legal entity. A notary drawing up a notarial registration, which has the character of an authentic instrument (§ 134 o. s. s.), is responsible for the legality of the legal act which he has verified and for its compliance with the founding documents of a legal person. The provisions of § 200da o. s. s., as amended by Act No. 216 / 2005 Coll., define the headings of the cases in which the court authorises registration by decisions and authorises registration by carrying it out by specifying when registration is to be carried out without a decision and when the court authorises the authorisation of registration. The Court of First Instance is therefore obliged to rely on a notarial registration, its substantive content in the registration procedure is not examined if its content shows that the determination of the substantive conditions for the creation, modification or termination of the recorded facts has been made by a notary (§ 200da (3) o. s.), as amended by Act No. 216 / 2005 Coll.), if the applicant and the sole party to the proceedings is the entrepreneur to whom the registration relates.
46. The issue of the register procedure was dealt with by the Constitutional Court in a number of its decisions. For example, in resolutions of 24 January 2000 sp. zn. The Constitutional Court has concluded that, in the register procedure, the rights or obligations of shareholders are not decided on, but only on, the rights or obligations of a business entity registered or incorporated in the business register; The shareholders of the company are therefore not parties to the registration proceedings.
47. The appellant's objections are essentially aimed at the fact that according to the classification of the contested provision § 200da (3) o. s. s., as amended by Act No. 216 / 2005 Coll., the court is entitled only to register the facts listed in the notarial register, not to examine them factually and decide on them. It can be concluded from the justification of the application for annulment of the provisions of § 200da (3) o. s. s., as amended by Act No. 216 / 2005 Coll., that the appellant did not "fully subjectively" adopt the established registration principle and continues to insist on a substantive review of the application for registration, including the carrying out of the evaluation of the evidence. In fact, the appellant's argument seeks to eliminate or alter the effects of the current legislation on the matter and thus puts the Constitutional Court in the role of a positive legislator, which, as is apparent from Article 87 of the Constitution, which sets out its powers in a taxa, does not belong to him.
48. On the appellant's objection that it is necessary to respect the conclusions reached by the European Court of Justice in the judgment of 21 October 2003 in the Kredit and Industrial Bank case against the Czech Republic, the Constitutional Court states that, in the present case, it was the introduction of forced administration in the bank for the period from 30 September 1993 to 31 March 1994. The bank did not cease to exist at the time of the introduction of the forced administration and the bank was represented by the forced trustee, which was also registered in the Commercial Register. To the alleged infringement of Article 6 of the Convention, the Bank argued that it did not have an appeal to the administrative decision of the Czech National Bank to introduce forced administration or subsequent administrative and judicial decisions. In the judgment cited, the European Court of Justice recalled that... "where, as in the case under consideration, decisions taken by administrative bodies which decide on civil rights and obligations themselves do not comply with the requirements of Article 6 of the Convention, it is necessary that such decisions be subject to the subsequent control of a judicial authority with full jurisdiction which guarantees the protection of this Article (see for example Albert and Le Compte against Belgium, 1983, Ortenberg against Austria, 1994, Bryan against the United Kingdom, 1995)." The substance of the case was the absence of an effective appeal against the administrative authority's decision to impose a forced administration. In the present case, this is a completely different case from the decision in the case of the Credit and Industrial Bank, which cannot be applied to the case. In the case of proceedings in the matters of the Commercial Register, namely in the case of the submission of the application and application of the contested provision § 200da (3) o. s. s., as amended by Act No. 216 / 2005 Coll., the court will examine the application from the point of view of formal assumptions. If they do not find any obstacles to the case, they shall register without the decision being taken. In the case of a registration procedure, the notarial registration as a authentic instrument is not examined in the light of the substantive law (§ 134 o. s. s.), if its content indicates that the determination of the substantive conditions for the creation, modification or termination of the recorded facts has been made by a notary (§ 200da par. 3 o. s., as amended by Act No. 216 / 2005 Coll.). The implementation of the minutes cannot therefore be regarded as a decision, it is merely a court act (§ 36 et seq. o. s.). It follows from the nature of this act that there is no appeal against it (there is no statement to which the party may disagree). Thus, the case of the Credit and Industrial Bank against the Czech Republic does not fall within the scope of the present case and the reference to it does not consider the Constitutional Court to be possible.
49. In addition to the application of 8 January 2007, the appellant referred to the order of the Constitutional Court of 25 March 2003 sp. zn. IV. ÚS 720 / 01 (not published in the ECR, available at http: / / nalus.ujud.cz), in which the Constitutional Court, in the view of the appellant, undoubtedly considered the possibility of assessing the validity of the resolution of the general meeting in the register proceedings as one of the procedural guarantees. In addition, the Constitutional Court states that, in the present case, it was a dispute concerning the annulment of the order of the General Assembly on the transfer of capital to the "main shareholder '. The complainants were excluded from the proceedings in the case of the Commercial Register (§ 200c o. s. s.), as before the amendment of Act No. 216 / 2005 Coll.), and thus, according to their claim, they were effectively excluded from the proceedings, since their opponents had ceased to be removed from the Commercial Register. In the present case, the Constitutional Court concluded that the decision of the Registry Court could not be regarded as another intervention by a public authority within the meaning of Article 87 (1) (d) of the Constitution in the rights of the complainants, and stated that:" The filing of an action for annulment of an order by the General Assembly is not without further automatic reason for the suspension of proceedings, but it is for the Registry Court or, in accordance with the legislation in force at that time, to consider whether, in view of the grounds for the annulment of the order, it was appropriate to suspend proceedings. Thus, the procedure chosen by the Court was in line with the applicable rules and corresponded to the meaning and purpose of the other related rules relating to the transformation of companies, the aim of which is without delay to enable the registration of these changes, which take place on the contractual basis of their members, given that the process of conversion of a company which is a serious interference with the existence of a company, is difficult to refute from a certain point in time in view of its legal, economic and technical aspects. The above provision of § 131 (4) and, finally, § 220h of the Commercial Code, which since the entry into the Commercial Register, is considered irreversible, also taking into account the interests of third parties which are put before the interests of their shareholders. It is in the light of this legislation that the Constitutional Court does not share the view of the complainants that the provisions of Paragraph 131 (8) of the Commercial Code reveal to the complainant, in general terms, the necessary sequence of proceedings in the first place and only after the procedure in question. The Constitutional Court does not consider that, in the case of the transfer of assets to a single shareholder in connection with its registration in the Commercial Register and the possibility of the contested proceedings concerning the annulment of the General Assembly's orders, the situation is so different from that of other company's changes that it should take a different position in this case than in its previous decisions relating to the same issue, since, in other cases, the court will not invalidate the General Assembly's resolutions even if it finds it.'
50. The Constitutional Court, in its judgment in Sp. v IV. ÚS 720 / 01, further stated that: "The right to judicial and other legal protection guarantees everyone that he may seek his right by means of an independent and impartial procedure and, in specified cases, by another authority. Therefore, it cannot be regarded as a breach or restriction of the right to judicial protection in the case where, under the law of the shareholders of a public limited company, they are not parties to the registration proceedings, in a situation where the right to judicial and other legal protection is not denied to them in the light of § 131 in conjunction with the provisions of § 220h, 220k, 220l and 220p of the Commercial Code. The shareholders of a public limited company can therefore claim their rights in an impartial and independent court other than by participating in the register proceedings (including the possibility of making reservations against that other procedure subsequently before the Constitutional Court). In the opinion of the Constitutional Court, the decision of the Court of Auditors did not give rise to an unconstitutional restriction on the ownership of the complainants as shareholders, since the possibility of legal protection of their property rights linked to the ownership of shares has been adequately preserved, despite the fact that the ownership of the shares alone does not guarantee the shareholders an immutable position or absolute equality of shareholders, since the extent of the shareholder's rights is derived from the number of shares of the same nominal value and the nature of the public company implies the possibility of" risk 'of changing the position of its shareholders, in particular minority shareholders. The Constitutional Court thus considers that, from the point of view of proportionality, the legislation thus designed, i.e. the impossibility of a shareholder's participation in the register proceedings, with reference to those other possibilities for the exercise of his rights in different separate proceedings, has, from the point of view of proportionality, in competition with and subsequently derived from existing ownership rights of majority and minority shareholders, as well as their nature of the different interests of its constitutionally acceptable. In other words, in this context, the mutatis mutandis conclusions expressed in the resolution in Case No IV. ÚS 324 / 97 (Reports of Decisions, Volume 10, Order No 8, p. 363), according to which the rationis decidendi "if a person is a shareholder of a particular nominal value, that position carries a certain risk of a possible restriction or interference with property law. However, the measures leading to this situation must lead to a fair balance between the requirements of general interest and the imperative for the protection of the fundamental rights of the individual. There must therefore be a reasonable relationship between the resources used and the purpose pursued (judgment of the European Court of Human Rights in the Mellachen case, 1989, A-169).' The Constitutional Court notes that there is no reason to deviate from the conclusions set out in the resolution cited, even in the case under consideration, even if it is a somewhat different legal basis in both cases. The two proposals, however, combine the appellants' efforts to deal with their substantive rights under the Commercial Code in the context of the register proceedings.
(51) In addition to the proposal of 8 January 2007, the appellant also stated that a fair process factor is a condition for assessing proportionality in interference with the law on the peaceful use of property and therefore the substantive and procedural aspects of the law on redemption cannot be torn apart. In the view of the appellant, the assessment of the validity of the general meeting's resolutions in the register procedure is of unique importance and is the only existing (and even half-possible) possibility of reviewing the measure resulting in interference with the property law. In addition, the Constitutional Court states that it is clear from the appellant's claim that the appellant himself is aware that the amendment of the relevant provisions governing the procedure of the Registry Court in the entry into the Commercial Register in such a way that a compulsory judicial review of the recorded facts would be established is not capable of removing the alleged deficiencies of the regulation enshrined in the provisions of § 183i to 183n of the Commercial Code, as amended by Act No 216 / 2005 Coll. It can be concluded from the above that the appellant is clearly under the pretext of the alleged non-constitutionality of the contested provision of § 200da (3) o. s. s., as amended by Act No. 216 / 2005 Coll., regardless of its consistency with the substantive provisions contained in the Commercial Code, to amend the provisions of § 183i to 183n of the Commercial Code, as amended by Act No. 216 / 2005 Coll., governing the right to purchase participating securities. The Constitutional Court therefore considers that the appellant's assertion of the inconstitutionality of the contested provision of § 200da (3) CS, as amended by Act No. 216 / 2005 Coll., only because the substantive arrangements for the purchase of participating securities appear to it to be unconstitutional, misleading. In the opinion of the Constitutional Court, the procedure for registration is neither an appropriate nor sufficient instrument to protect the alleged affected shareholders' rights. The Constitutional Court has already stated in its resolution of 18 May 1999 sp. zn. I. ÚS 185 / 98 (ECR No 14, Order No 35, p. 331) that the proceedings before the Registry do not determine the rights or obligations of shareholders, but only the rights or obligations of an entrepreneur registered or registered in the Commercial Register. In the event that shareholders' rights could be affected by the illegality of the decision on the basis of which the relevant registration takes place, the law provides protection for those rights where it considers it necessary by other means.
52. It is clear from the text of the provision of § 200da (3) o. s. s., as amended by Act No. 216 / 2005 Coll., that after the adoption of the contested provision, the courts in the cases provided for by law no longer examine the substantive assumptions of the applications for registration, but only those of the formal, precisely defined law, and thus the activity is mainly registration. On the whole, the Constitutional Court considers it necessary to state that, according to the current legislation, the bodies applying for registration (hereinafter referred to as "participants') pay the notary a fee for writing the notarial registration (Decree No. 196 / 2001 Coll., on the remuneration and replacement of notaries and heirs, as amended). They also have an obligation to pay the relevant court fee for the application to initiate proceedings in the matters of the Commercial Register (Act No. 549 / 1991 Coll., on Legal Charges, as amended). This is a paid act, without which registration cannot be completed. The participants would then legitimately expect that if all the legally stipulated conditions for the registration are fulfilled, including the connection of the relevant notarial record certifying compliance of the General Assembly's resolution with the relevant legislation, there can be no doubt that the conditions for the registration have been fulfilled and registration may be carried out.
53. The standard legal instruments of both European constitutional courts and international and transnational courts (cf. numerous decisions of the European Court of Justice and the ECJ) include a proportionality test used by the courts, inter alia, in assessing conflicts of public interest with individual rights or freedoms. In the decision of 13 August 2002 sp. zn. The Constitutional Court, referring to the preamble and the first article of the Constitution, stated that, in cases of conflicts of fundamental rights or freedoms of public interest, or with other fundamental rights or freedoms, the purpose (objective) of such intervention in relation to the resources used should be assessed, the criterion for this assessment being the principle of proportionality (proportionality in the wider sense), which may also be called a prohibition of excessive interference in rights and freedoms. This general principle includes three criteria for assessing the admissibility of intervention. The first is the principle of eligibility for the purpose (or suitability), according to which the measure in question must at all be capable of achieving the intended objective of protecting another fundamental right or public good. It is also a criterion of necessity according to which the use of only the most respectful - in relation to the fundamental rights and freedoms concerned - is permitted by several possible means. The third criterion is the principle of proportionality (in the narrowest sense), according to which the damage to fundamental law must not be disproportionate in relation to the intended objective, i.e. measures limiting fundamental human rights and freedoms must not, if there is a conflict of fundamental right or freedom with the public interest, go beyond the positive effects of those measures.
54. The Constitutional Court considers that the conduct of the registration without a decision, provided that the facts cited have a basis in the annexed notarial registration, and provided that the party to the proceedings is merely an entrepreneur and that the implementation of such registration has been proposed, is, as is apparent from the general part of the explanatory memorandum already cited, to draft Act No. 216 / 2005 Coll., certainly a legitimate objective, since the basis of the proposed amendment was precisely the overall transformation of the substantive and procedural rules of the Commercial Register and the adoption of the amendment should have resulted in the acceleration of the registration process, the elimination of possible further proceedings and overall improvement of the environment for the business of both Czech and foreign persons, and thus better compliance with the rights guaranteed by the Charter. The execution of a direct registration under the registration principle will also satisfy the requirements of the eligibility criterion for the fulfilment of the purpose (or suitability), according to which the relevant measure must at all be able to achieve the intended objective of protecting another fundamental right or public interest. The contested provision is capable of meeting the requirements of Article 36 (2) of the Charter and ensuring the judicial protection of the rights which may have been affected by registration. This objective can be achieved without judicial review as the mandatory form of the annexed notarial registration guarantees the correctness of the facts in the register. The objective pursued by the contested provision therefore appears legitimate.
55. However, it is also necessary to examine the need for the chosen device from the point of view of its effectiveness in relation to the fundamental rights which the appellant considers to be infringed, i.e. the right to a fair trial and the principle of independence of the courts. In this context, the Constitutional Court recalls that the fundamental purpose of the Commercial Register is to ensure the transparency of business life, to make available to each interested party all information about the trader, which is important in terms of its credibility, in terms of its ability and willingness to fulfil existing and future obligations. The trade register is mainly aimed at the registration of persons acting in trade relations. The European Union is built on the idea of free competition and the rule of law. In line with developing legislation and case law in the countries of the European Union, there is a visible shift in the management of the business register to the performance of its functions in the mere register of business entities, with substantive review being abandoned and a decisive role to be transferred to an entrepreneur who should be able to formulate a proposal that meets the requirements of the law. In the light of the above, the second measure of the principle of proportionality will fully stand, that is the need for the chosen device.
56. In the light of the third criterion, namely the proportionality criterion (in the narrowest sense), the Constitutional Court did not find that the contested provision of § 200da (3) CS, as amended by Act No. 216 / 2005 Coll., as compared to other measures enabling the same objective to be achieved, limited the right of the appellant or the parties to the register proceedings to a fair trial or to be contrary to the principle of independence of the courts. Of course, the legislature had scope to consider whether it would anchor a direct registration in the Commercial Register, while being obliged to ensure that the procedure chosen was based on objective and reasonable reasons (legitimate objective of the legislator) and that there was a relationship of proportionality between that objective and the means to achieve it (legal advantage). The Constitutional Court recognises that the recdification of the Civil Code by Act No 216 / 2005 Coll. constituted substantial changes in the concept of the management of a commercial register, but these changes in relation to the contested provision do not in any way contradict the proportionality of the funds used. According to the established case-law of the European Court of Justice, the purpose of Article 6 (1) of the Convention is not to create new substantive rights lacking legal basis in that State, but to provide procedural protection for the rights conferred by national law, which in itself does not provide for any specific substance in the rights and obligations provided by the laws of the Contracting States.
57. The Constitutional Court has not found that the provision of § 200da (3) o. s., as amended by Act No. 216 / 2005 Coll., infringes the principle of proportionality in respect of all three components under consideration, nor that its application would result in abuse of the right protected by constitutional order.
58. As regards the appellant's allegation of a breach of the principle of independence of judicial authority by the contested provision of § 200da (3) CS, as amended by Act No. 216 / 2005 Coll., the Constitutional Court finds that the principle of independence of the courts is one of the fundamental constitutional principles. In the Czech Republic power is exercised by independent courts on behalf of the Republic, according to the explicit wording of Article 81 of the Constitution. Article 82 (1) The Constitution also guarantees the independence and impartiality of judges in the exercise of judicial mandates. The fundamental principles of legal proceedings are then governed by the Constitution and the Charter, which define in their provisions the jurisdiction of judicial authority (see Articles 4 and 81 to 96 of the Constitution) and the minimum standards of respect for the fundamental rights and freedoms of the parties to legal proceedings, including the constitutional right of each to judicial and other law and to a fair trial (see Articles 36 to 40 of the Charter). All parties to legal proceedings have equal rights before the court (see Article 96 (1) of the Constitution), regardless of their form and position in society. The independence of decision-making of the general courts then takes place within a constitutional and legal procedural and substantive framework. The procedural framework is, in particular, the principles of a sound and fair process as set out in Article 36 of the Charter, Article 6 (1) of the Convention and Article 1 of the Constitution. Right to a fair trial within the meaning of Article 36 The Charter is then an expression of one of the core principles on which the democratic rule of law is based, based on respect for the rights and freedoms of man and citizen (Article 1 of the Constitution). The protection of these rights is principally conferred on the general courts (Article 90 of the Constitution) which, in the exercise of their jurisdiction, are bound by law (Article 95 (1) of the Constitution), both in the field of substantive and procedural law, the provisions of which (for the protection of rights) define a procedure which is bound not only by a party to the proceedings but also by a general court itself. The application of these procedural rules by the general courts or, where appropriate, their interpretation as a formal (procedural) presumption of the legality of their decisions must therefore always be consistent with constitutional principles.
59. The fact that the court examines the conditions for registration only from a formal point of view is not contrary to the principle of independence of the courts (Articles 81 and 82 (1) of the Constitution) nor does it constitute a breach of the right to a fair trial under Article 36 of the Charter. The Charter provides judicial (procedural) protection only to the right which guarantees the parties the legal order (substantive). The purpose of this provision is therefore to grant the right to a fair trial to exercise its right, that is to say, the right which the legislator guarantees to the participants as a subjective right. According to the settled case law of the Constitutional Court, a breach of the right to a fair trial under Article 36 of the Charter would occur if anyone were denied the possibility of seeking his right before an independent and impartial court. Within the meaning of Article 6 (1) The Convention would then infringe the right to a fair trial if the right to discuss the case of a party were infringed in a fair, public and timely manner. The Constitutional Court has not come to the conclusion that the contested provision of § 200da (3) o. s., as amended by Act No. 216 / 2005 Coll., constitutes a breach of the right to a fair trial so declared, which guarantees to any legal and constitutional order an appropriate assessment of its law, in full respect of the provisions of § 95 (1) of the Constitution, according to which the judge is bound by law and by an international treaty which forms part of the law.
60. The Constitutional Court considers that the contested provision of § 200da (3) o. s. s., as amended by Act No. 216 / 2005 Coll., does not even contradict the requirement of the so-called full jurisdiction as the appellant contends. The protection of entrepreneurs against undesirable entries in the Commercial Register is regulated in case of fiction of the registration in the provision of § 200db paragraph 4 o. s. s., as amended by Act No. 216 / 2005 Coll., according to which the entrepreneur and persons who are registered under a special regulation in the context of the registration of an entrepreneur may, within one month of registration, request a cancellation or amendment of the registration in question.
61. The appellant justified his proposal to abolish the provisions of § 200da (3) o. s. s., as amended by Act No. 216 / 2005 Coll., by claiming that the contested provision of the Civil Code is in his view contrary to the right to a fair trial and to the principle of independence of the courts enshrined in Articles 81 and 82 (1) of the Constitution. The Constitutional Court found no contradiction in the contested provision with the constitutional order. In addition to the appellant's argument, the Constitutional Court was concerned whether the legislation in question had a constitutional non-conformal effect on property rights and concluded that the minority and majority owners had the legal protection guaranteed by the substantive provisions of the Commercial Code (Paragraph 183k (1) of the Commercial Code) and therefore the ownership rights of the owners of the participating securities were not affected. In order to protect the right to property in connection with the application of the provisions of Sections 183i to 183n of the Commercial Code, the Constitutional Court expressed its views in detail in the already cited find sp. zn. Pl. ÚS 56 / 05 (see above).
62. If the contested provision of § 200da (3) o. s., as amended by Act No. 216 / 2005 Coll., imposes on the court, when the conditions laid down by law, the execution of the registration in the course of an undisputed procedure, and the Constitutional Court has not found its contradiction with the constitutional order in connection with the application of that provision, it cannot be concluded, in the light of the foregoing, that there are no grounds for annulment of the contested provision.
63. The Constitutional Court therefore rejected the application for annulment of the provisions of § 183i to 183n of the Commercial Code, as amended by Act No. 216 / 2005 Coll., pursuant to § 43 (2) (b), in conjunction with § 43 (1) (c) of the Law on the Constitutional Court, as an application made by someone manifestly illegitimate, and the application for annulment of the provisions of § 200da (3) CS, as amended by Act No. 216 / 2005 Coll., now rejected the provision of § 200da (4) of the Law No. 99 / 1963 Coll.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 62 / 2009 Coll., on the application for annulment of the provisions of Sections 183i to 183n of Act No. 513 / 1991 Coll., the Commercial Code, as amended by Act No. 216 / 2005 Coll., and the provisions of Section 200da (3) of Act No. 99 / 1963 Coll., the Civil Code, as amended by Act No. 216 / 2005 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 06.03.2009 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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