The Constitutional Court found No 77 / 2016 Coll.
The Constitutional Court found of 9 February 2016 sp. zn.
Valid
77
FIND
The Constitutional Court
On behalf of the Republic
On 9 February 2016, the Constitutional Court decided under sp. z. pl. Pl. ÚS 17 / 15 in plenary composed of the President of the Court of Paul Rychetský and the Judges Louis David, Jaroslav Fenyk, Josef Fiale, Jan Filip, Jaromír Jirsy, Tomáš Lichovník, Jan Musil, Radovan Suchanek, Vladimir Sládeček, Kateřina Šimáčková, Vojtěch Šimíček, Milady Tomková, David Uhíříří and Jiří Zemánek, on behalf of the group 21 Senators, acting on behalf of Senator of Senator Petr Bratský, Prof. JUDr. Aleš Gerloch, CSc., lawyer, with responsibility for the activities, which is obliged to provide in the establishment, in the version of the Act No. 101 / 2015 of the Court of the Court of Justice, on the application, on 21, on behalf of the motion of the Committee of the Chamber of the Committee of the Chamber of the President of the President of the President of the President of the President of the President
as follows:
I. Paragraph 3 (2), second sentence, and the words "by their continuous physical presence" in the provision of § 4 (2) of Decree of the Ministry of Justice No. 355 / 2013 Coll., on the official hours of the establishment, on the designation of the registered office and establishment and on the activities which the insolvency administrator is obliged to provide in the establishment, as amended by Decree of the Ministry of Justice No. 101 / 2015 Coll., are deleted.
II. The remainder is rejected.
Reasons
Recital of the proposal and arguments of the appellants
1. On 24 July 2015, the Constitutional Court received notification from a group of 21 Senators ("the applicants') of the annulment of the provisions of Sections 3 (2) and 4 (2) of Decree No. 355 / 2013 Coll., on the official hours of the establishment, on the designation of the registered office and establishment and on the activities which the insolvency administrator is obliged to carry out in the establishment, as amended by Decree No. 101 / 2015 Coll., hereinafter referred to as" the Order '. The contested provisions govern questions relating to the official time of the establishments of the insolvency administrators and their presence in those establishments.
2. The appellants consider that the contested decree imposes serious obstacles to the fulfilment of the objectives of the revision amendment to Act No. 182 / 2006 Coll., on bankruptcy and its methods of resolution (insolvency law), as amended. It provides that the insolvency administrator must always be present in person at the establishment and therefore cannot carry out any other activity at that time, such as being present in court proceedings. In the appellants' view, the legislator deliberately imposes obligations on the insolvency trustee that it knows in advance that no insolvency trustee will be able to fulfil. Each insolvency administrator, according to them, is not and has never been idle in the establishment, but participation in court proceedings, or contact with debtors in the inventories of the property, its redemption. However, not in the establishment but where the debtor or his property is located. It is noted that the fulfilment of the obligation of presence at the establishment would in fact conflict with the fulfilment of a number of other obligations imposed by the law on the insolvency administrator. Another limit which the legislator has not set and which, on the contrary, introduces a decree, according to the appellants, is a ban on overlapping official hours at premises and offices, which means that the insolvency administrator cannot have overlapping official hours at multiple establishments simultaneously. The appellants are convinced that the legislator is following in such a sophisticated manner the opposite of the legislature. In their opinion, the Ministry of Justice replaced this will with its own specific will, thus preventing insolvency administrators from setting up establishments. In this connection, the appellants noted that while the Minister of Justice declared that he was fighting in this decree against fictitious establishments, the regulation itself did not deal in any way with the fight against fictitious establishments, it only deals with establishments as such, i.e. with negative effects on non-fictitious establishments.
3. In particular, the appellants state that the contested decree deviates from the bond provided for in Article 79 (3) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution '), since the normative competence of the Ministry of Justice in relation to the establishments of the insolvency administrators according to the provisions of § 5a (8) of Act No. 312 / 2006 Coll., on insolvency administrators, as amended by Act No. 294 / 2013 Coll., only includes the determination of details of the office hours of the establishment, the designation of the registered office and establishment and the activities which the insolvency administrator is obliged to provide in the establishment. However, the Ministry of Justice has significantly exceeded the limits of this legal authorisation according to the appellants when, in the amended version of Paragraph 4 (2) of the contested Decree, it established, beyond the scope of the law, the obligation of the physical presence of insolvency administrators in the establishment throughout the period of official hours. Thus, contrary to the law, the Ministry of Justice has established by its decree the obligation of insolvency administrators to stay continuously in the establishment at the time of official hours. The appellants argued that this obligation by Act No. 312 / 2006 Coll., on Insolvency Managers, as amended, did not follow (hereinafter referred to as the" Insolvency Trustees Act'), which was clearly based on the case law of the General Courts, and is a conclusion with which the Ministry of Justice itself, as an administrative body entrusted with supervisory and sanctioning powers, appears to be in breach of the Insolvency Trustees Act, if a person different from the Insolvency Trustee is found in the establishment where he was duly entrusted and empowered to the activities in question. The Ministry of Justice therefore knowingly introduces at the level of the Decree an entirely new legal obligation, which it knows has no basis in the law.
4. The appellants further argue that the publication of the Decree is an excel of executive power, not only in relation to legislative power but also to judicial power. The decree runs counter to what a sublegal executive norm should serve. In fact, its role is not and cannot be the interpretation of the law (in the present case, the Insolvency Trustees Act). In fact, this also causes undue interference in the jurisdiction which has already given the interpretation of the law. In the opinion of the appellants, the Decree does not respect the interpretation of the Insolvency Trustees Act (published as R 91 / 2014), which interpreted the relevant provisions of the Insolvency Trustees Act in such a way that the actual performance of the Insolvency Trustee's activities at its registered office and establishment (establishments) is not conditional on the actual presence of the Insolvency Trustee. In the view of the Supreme Court, therefore, the Insolvency Trustee's personal presence in the establishment does not imply an obligation under the Insolvency Trustee Act. Meanwhile, in the concept of modern liberal democracy, judicial power is protected against the intervention of executive power, inter alia, by the fact that the judge is bound by law alone, not by regulations and decrees that are adopted by executive power. The appellants consider that, therefore, if the independent court concludes that the exercise of the activities of the insolvency administrator at its registered office and establishment (s) is not conditional on the actual presence of the insolvency administrator, the imposition of the obligation of the personal presence of the trustee is an attempt to deny the democratic principle, namely the protection of judicial power from interference by the executive authorities of the State. In addition, the appellants add that even if the mandating provision of § 5a (8) of Act No. 312 / 2006 Coll., on insolvency administrators, as amended by Act No. 294 / 2013 Coll., could be interpreted as giving the Ministry of Justice jurisdiction to impose an obligation of personal presence on insolvency administrators in an establishment, this would be an unconstitutional procedure delegating legislative powers to an executive. Only Parliament is called upon to change the law, and it is unthinkable in a democratic rule of law that the law is changed by executive authorities.
5. The appellants also consider that the Decree infringes Article 4 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), according to which obligations may only be imposed on the basis of law and within its limits and only with respect to fundamental rights and freedoms. Not only in the present case, they consider that the formal condition in the form of legal authorisation is not met, but it is also doubtful whether the material condition in the maintenance of fundamental rights and freedoms is met. The forced personal presence of insolvency administrators at the premises constitutes excessive interference with their personal freedom and freedom of movement and residence under Articles 8 and 14 of the Charter. If it is followed by a quoted amendment to improve and ensure the necessary expertise in the performance of all the activities of the insolvency administrator during the entire insolvency proceedings, the applicants consider that the means set out in the decree (receipt of documents, collection of documents for insolvency proceedings, allowing the insolvency practitioners to view the list of claims applied for and the documents on the basis of which it was drawn up, etc.) will not be achieved. These actions will undoubtedly be carried out at the expense of more important and more meaningful activities in order to fulfil the proper purpose of insolvency proceedings in order to determine the condition of the debtor's assets in the field and to make the necessary efforts to maintain the operation of the debtor's establishment, to participate in court proceedings (to which, paradoxically, any self-employed natural person, regardless of formal education and qualifications) and to participate in the negotiations with the creditor authorities, the public administration and the execution of a whole series of more sophisticated tasks in his or her substance. The appellants conclude that the task of the insolvency administrator is to perform professional care and in the common interest of the creditors (§ 36 (1) of the insolvency law) in order to satisfy as quickly as possible and as far as possible the creditors claiming the insolvency debtor (§ 5 of the insolvency law). In their view, contrary to the idea of the Ministry of Justice, it is not the task of the insolvency administrator to provide the auxiliary administrative work listed in Section 4 of the Decree. The burden on the insolvency administrator by excessive administration is in fact counterproductive and makes it very difficult to meet the objectives of insolvency proceedings.
6. Finally, a group of 21 Senators proposed that the Constitutional Court should abolish the contested Decree by finding the provisions of § 3 (2) and § 4 (2).
Observation of the party
7. Under Article 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 18 / 2000 Coll., a copy of the draft was sent to the Ministry of Justice as a party to the proceedings (hereinafter referred to as "the Ministry '). This expressed its opposition to the proposal to abolish the contested provisions of the Decree.
8. The Ministry first pointed out that the need to adopt a decree specifying the legal obligations for the activities which the insolvency administrator is obliged to carry out in its designated official hours in its establishment, the details of the official hours of the establishments and the rules on their labelling, has been raised in the context of the adoption of the revision amendment to the insolvency law, which took effect on 1 January 2014 [Act No. 294 / 2013 Coll., amending Act No. 182 / 2006 Coll., on the bankruptcy and the methods of its resolution (insolvency law), as amended, and Act No. 312 / 2006 Coll., on insolvency administrators, as amended]. According to the Ministry, the explanatory memorandum to the revision novel states that the change in the principle of determining insolvency administrators and their list is linked to the change in the redefinition of the establishment of the insolvency administrator, which is essentially equal to the registered office. The response to the issue of the now contested decree by the insolvency administrators was, from their point of view, pragmatic - increasing the number of establishments in order to increase the volume of the case. However, according to the Ministry, this fact meant a greater time burden, the impossibility of carrying out the activities of the insolvency administrator against the debtors and an increase in costs, both sides. It is clear from the nature of the case that the insolvency administrators with a high number of establishments were not objectively able to carry out all the activities which they had to carry out under the law with professional care in a large number of registered establishments, resulting in a negative impact on the quality of the insolvency proceedings and, consequently, in violation of both the Insolvency Trustees Act and the Insolvency Act.
9. The Ministry stated that, in order to assess the fulfilment of constitutional requirements, it is important that the insolvency law and the Insolvency Trustees Act generally contain obligations that result from the obligation of the personal performance of the function of the Insolvency Trustee, where it is possible for another person to act as an Insolvency Trustee, this is expressly provided for by law. It is therefore not a departure from the principles of Article 2 (3) and (4) of the Constitution and Article 2 (2) and (3) or Article 4 of the Charter. It is clear from the legal regulation, the meaning and purpose of the law and its interpretation that, unless expressly stated otherwise, there is an obligation under insolvency proceedings to carry out the activities of the insolvency administrator in person. Only in the case of explicit adjustment may another person act as insolvency practitioner. The decree after the amendment itself does not provide for any other or new obligations no longer provided for by law. The Insolvency Trustee Act states clearly in Paragraph 5a (4) that the Insolvency Trustee's establishment is the place in which the Insolvency Trustee actually carries on business on specified days and hours. In the context of Section 36 of the Insolvency Act and, finally, the Insolvency Act, it is generally clear, irrespective of the substatutory text of the Decree, that the obligation to have the insolvency administrator present in the establishment is required. According to the Ministry, the actual performance of the business in the establishment means that the insolvency administrator (except for certain legally foreseeable cases such as participation in the ordered court proceedings, participation in review meetings and meetings of creditors, etc., where it is clear that he will not be present at the head office or office in a given establishment in person) should regularly be physically delayed, so that the establishment of a disproportionate number of establishments does not infringe the common interest of creditors in the proper (and also personal) performance of his duties. Finally, this requirement is intended, in particular, to ensure the contact of the insolvency administrator with the debtor to whom he has been appointed and the conscientious exercise of professional care, in accordance with the law.
10. The contested lack of legal authorisation within the meaning of Article 79 (3) of the Constitution, in view of the requirement of the physical presence of the insolvency administrator in the establishment for the period of official hours, is considered unfounded by the Ministry. The decree, as amended, merely describes the form and manner of performance of the duties, does not require new obligations beyond the legal framework, which is also required by the Constitutional Court [finding sp. zn. Pl. ÚS 36 / 11 of 20.6.2013 (N 111 / 69 SbNU 765; 238 / 2013 Coll.), paragraph 49], a positive answer to the question whether the legal regulation would be applicable separately even without an implementing decree can be considered as a core of the mandate test. In the light of the above, according to the Ministry, it is possible to answer this question in a positive way, as the material covered by the amended Decree undoubtedly represents one of the interpretative variants of the law itself. The decree, as amended, specifies the activities and manner in which they are carried out. Similarly, according to the finding of the Constitutional Court of 16.12.2008 sp. zn. Pl. ÚS 28 / 06 (N 222 / 51 SbNU 753; 69 / 2009 Coll.), in which the Decree under examination also passed the test of empowerment provision, the presumption that the statutory law was passed within the limits of the law is that the legislator's will to regulate above the legal standard results. An adjustment above the legal standard is, according to the Ministry in the present case, precisely the specification of obligations. For the sake of completeness, it should be recalled that the sublegal standard already has by its nature the completion of the legal rules, as confirmed by the Constitutional Court, in the Ministry's view, for example in the finding of sp. zn. Pl. ÚS 5 / 01 of 16.10.2001 (N 149 / 24 SbNU 79; 410 / 2001 Coll.). The contested decree, as amended, was issued by the Ministry of Justice, the authority empowered by § 5a (8) of Act No. 312 / 2006 Coll., on Insolvency Managers, as amended by Act No. 294 / 2013 Coll., sets out only the way in which the activities are carried out primarily provided for in the Act (the number of hours of presence in the establishment as a necessary condition for the performance of the legal obligations to be carried out personally) and, last but not least, it is clear from the relevant authority that this is the area in which the legislator has given the scope for the regulation.
11. The Ministry does not agree with the statements of the appellants concerning the breach of the principle of division of power, since the decree in question does not go beyond the legal obligations, the rules laid down therein are based on and within the meaning and purpose of the law. Since the decree and its amendment were issued on the basis of the authorisation of the Insolvency Trustees Act, it passed the legislative process in accordance with the legislative rules of the Government and were published in the Collection of Laws and disseminated the obligations laid down by the law, it is not possible to talk about a breach of the division of power. The Ministry admits that the Supreme Court in Olomouc did not agree with the conclusion of the Court of First Instance in Case SA.2 VSOL 358 / 2014 that the actual activity of the administrator in the establishment is necessarily conditional on his actual presence in the official hours. However, the Ministry is satisfied that in the absence of the sublegal norm under assessment at that time, it merely adopted one of the possible interpretations of the provisions of § 5a (4) of Act No. 312 / 2006 Coll., on Insolvency Managers, as amended by Act No. 294 / 2013 Coll. At the same time, however, he also found it possible to interpret the Court of First Instance, albeit on the basis of a mere language interpretation. However, the Ministry considers that compelling reasons have not been given to challenge this interpretation in terms of the purpose and meaning of the standard in question. Thus, the interpretation of the Court of First Instance could not be regarded as contradictory to the law, at most as less appropriate from the point of view of the practical considerations chosen (easier performance of the selected duties of the insolvency administrator). In other words, even if the case-law of the General Courts is based on a particular interpretation of the law, it cannot be ruled out (within the limits of the law and for its implementation) by subsequent substatutory clarification of the standard implemented by means of the Decree. The opposite approach, according to the Ministry and the priori, would exclude the possibility of adopting a substatutory regulation at a different time than in an immediate run with the effectiveness of the law. At a later stage, any interpretation currently applied to the adoption of the implementing regulation would already constitute a substantive obstacle, but this is a consideration completely contrary to the meaning (s) of the standard. It should also be recalled that there is no prejudice in the present case to the prohibition on the retroactivity of legislation, since the decree, as amended, does not modify (does not specify) the scope of the rights and obligations of insolvency administrators during the period prior to its application.
12. On the question of the alleged intervention in subjective guaranteed rights, the Ministry stated that the right to business is implemented within the limits of the laws [Article 26 (2) of the Charter, including the case law of the Constitutional Court, which follows it, for example, the finding of sp. zn. It should be pointed out that the need to be physically present in the establishment during official hours affects the insolvency administrator within a 6-hour period of a week in one establishment, so that there is no unacceptable interference with fundamental rights or restrictions which would have a "choking 'impact on his life or occupation (this would have to be a prescribed stay of 40 hours per week in the workplace). Thus, according to the Ministry, there is no rational basis in the proposed comparison with the sentence of house arrest. It is also not true that the insolvency administrator would under all circumstances be forced to remain in the establishment during its official hours. Of course, if there is a serious and justifiable reason for doing so, it is possible not to be physically present at the premises (during its official hours) for a transitional period. In addition, the Ministry added that under the current legislation, it is not possible for the insolvency administrator to" choose "which activities will be carried out in person (in terms of his physical presence) and which do not. If, however, it is appropriate that any activity to which he is legally obliged not to perform personally, or vice versa, it is, of course, possible following prior notification, proper justification and marking of this fact on the information board.
13. Finally, the Ministry proposed that the Constitutional Court reject the application for annulment of the contested provisions of the Decree as unfounded.
Replication of the applicants
14. The parties' comments were sent by the Constitutional Court to the appellants for a possible reply. In their comprehensive reply, they maintained their proposal to abolish the contested decree and the arguments contained therein and refute the Ministry's arguments in detail.
15. The appellants continue to believe that the Ministry, when issuing the amendment to the Decree, exceeded the legal authorisation expressed in the provision of § 5a (8) of Act No. 312 / 2006 Coll., on insolvency administrators, as amended by Act No. 294 / 2013 Coll., while the Ministry's observations do not in any way refute this conclusion, nor can it be said that the Ministry itself points to the departure from the mandinels set by the said statutory provision for the derived standard. The appellants argue that the Ministry does not first state where it draws its conviction that the Act empowers it to impose on insolvency administrators an obligation to remain in the establishment. According to the appellants, the legal authorisation for a more detailed modification of the activities which the insolvency administrator is obliged to carry out in an establishment does not include the determination of a specific way in which the insolvency administrator is to ensure these obligations. Following the negative experience of "empowerment laws", an extensive interpretation of empowerment provisions is inadmissible under the conditions of a modern democratic rule of law. If the Ministry of Justice has empowered the Ministry of Justice to determine the range of activities to be carried out in an establishment, in their view this authorisation cannot be interpreted extensively by giving the authority to determine the specific way in which the activity is to be carried out. In fact, by establishing the obligation of continuous physical presence in the establishment throughout the period of official hours, the activities of the insolvency administrator are not merely specified or the manner in which they are carried out, as the Ministry submits. In this connection, the appellants pointed out that, from the legislator's point of view, the result to be achieved is essential, namely to ensure that the set range of activities in the establishment is ensured, but not how the insolvency administrator will achieve that result. Moreover, the activities to be carried out by the insolvency administrator in the establishment under the order, according to the appellants, are indeed of an administrative nature and the determination of the obligation to carry out these activities by the insolvency administrator would be counterproductive in the light of the declared objectives of the insolvency law, the Insolvency Trustees Act and the implementing rules.
16. The appellants further questioned the Ministry's reference to the Excessive in their view, and in other judicial districts, the absence of the case law of the Regional Court in Ostrava, which, moreover, did not stand up to the appeal and appeal review. Therefore, should the relevant case-law of the courts be taken into account in this case, it is clear that the contested order does not respect the interpretation of the Insolvency Trustees Act in the form in which it is interpreted by the Supreme Court in Olomouc, namely the Supreme Court. According to this interpretation, the actual exercise of the activities of the insolvency administrator in its head office and establishment (s) is not conditional on the actual presence of the insolvency administrator. Therefore, the obligation to have an insolvency administrator present in the establishment does not result from the law. In the appellants' view, therefore, the Ministry of Justice cannot find in the legal regulation a basis for substatutory legislation unless it finds in the law the relevant case law of the Supreme Courts for such interpretation. In this context, the reference to the regional decision-making practice of the Court of First Instance lacks any persuasion as it is not based either on formal or material reasons for the accuracy of such interpretation of the law. Therefore, if the prevailing interpretation is such that there is no obligation of the personal presence of the insolvency administrator in an establishment under any law, the implementing law according to the appellants goes beyond the legal authorisation and is out of the scope of the law, that is to say, the prater legem is found to be inadmissible contrary to Article 2 (3) and Article 79 (3) of the Constitution and Article 2 (2) of the Charter.
17. The appellants believe that the amended Decree does not only satisfy the formal condition that it be issued on the basis and within the limits of the law, but also the material requirement that the obligations be imposed only with respect to fundamental rights and freedoms (Article 4 (1) of the Charter), that the limits of fundamental rights and freedoms be regulated only by law under the conditions laid down by the Charter (Article 4 (2) of the Charter) and that the restrictions on fundamental rights are not abused for purposes other than those for which they were established (Article 4 (4) of the Charter). In accordance with Article 14 of the Charter, the right to freedom of movement and residence (Article 14 of the Charter), which may be restricted by law, where this is necessary for the security of the State, the maintenance of public order, the protection of health or the protection of the rights and freedoms of others and in designated territories, is restricted by the provision of a compulsory personal presence of the insolvency administrator at the establishment throughout the entire period of official hours (i.e. 24 hours). The Court of Justice of the European Union ("the Court of Justice of the European Union ') has consistently held that the Court of Justice of the European Union has the right to take part in the proceedings of the Court of Justice. In both cases, these rights can therefore be restricted under the Charter, but they can only become law. This certainly does not preclude the appellants from adjusting the conditions and limits of the implementation of constitutional rights in more detail, but it must always be done by secundum et intra legem, i.e. the basis of the limitation of constitutional law must always be derived from the law, which is not fulfilled in the present case. The appellants conclude that the Ministry of Justice therefore constructs this obligation with its decree completely new and without legal support.
18. In connection with this, the appellants reiterate that neither the Insolvency Act nor the Insolvency Trustees Act contain a general obligation for the personal (physical) performance of the Insolvency Trustee, as the Ministry of Justice allegedly seeks to submit to the Constitutional Court. It should be noted that the legislator provides that the insolvency administrator merely provides for the relevant business in the establishment. In their opinion, it can be concluded that it is only at the discretion of the insolvency administrator whether the activities in question will ensure their own activities or entrust them to their employees, possibly other persons. This concept is also in line with the provisions of Sections 23, 37 (2) and 40 (3) of the Insolvency Act, which explicitly provide for the use of the staff of the Insolvency Trustee and, where appropriate, other persons in the provision of its activities and tasks. This is the case, according to the appellants, in any business activity (§ 430 of the Civil Code) or the activities of a legal person (§ 166 and 167 of the Civil Code). The other thing is, of course, that the insolvency administrator is responsible for the proper selection of its co-workers, for the proper definition of their responsibilities and for the proper control of their activities so that the post of professional care is completed. On the outside, the insolvency administrator himself is responsible, whether it is private liability (§ 37 of the insolvency law) or public liability (§ 36b and 36c of the insolvency law).
19. According to the applicants, the personal performance of the function of insolvency administrator does not mean that the insolvency administrator itself carries out all the activities directly. Under the Insolvency Trustee's agenda, a number of administrative activities are to be carried out, normally held by the Insolvency Trustee's staff. The insolvency administrator therefore examines, for example, claims applications and takes an opinion on them, but the actual establishment of a list of claims applied for is already a letter-making matter, which is entrusted to the administration. In this respect, according to the applicants, the internal division of work in the office of the insolvency administrator is not unlike the internal division of work in the various departments of insolvency courts. The appellants argue that the provisions of § 11 (m) of Act No. 121 / 2008 Coll., on senior judicial officials and senior civil servants of the Public Prosecutor's Office and on the amendment of related laws, as amended, according to which a senior judicial officer in insolvency proceedings is entitled to carry out, in principle, all activities and acts of the court subject to the expressly mentioned exceptions. This also applies to the assistants of judges (§ 13 of the Insolvency Act). As neither the insolvency administrator nor the court of insolvency is carrying out all of the activities of the insolvency court itself, as this would not be physically possible, and given the lack of its expertise or economic ability. If the court of insolvency is able to oversee all the judicial apparatus in hundreds to thousands of insolvency proceedings assigned to it, there is no reason why the insolvency administrator or his registered partner should not be able to handle the same.
20. The appellants consider it surprising, unconvincing and difficult to accept, that the final part of the Ministry's observations, according to which it is also not true that under all circumstances the insolvency administrator would be forced to remain in the establishment during its official hours. The appellants stress that the obligation to personally stay in the establishment for the entire duration of the official hours is laid down in a decree to the insolvency administrator (the notified partner). Its text, with no "serious and justifiable reason," for which the insolvency administrator could be represented in the provision of business in an establishment does not count. If a breach of the obligation to be present in person (or if further conditions are met, it is possible, according to the appellants, to "allow for a degree of uncertainty and vagueness of the legislation which does not allow the insolvency administrator to distinguish ex ante whether it acts in accordance with the law or unlawful (breach of the principle of nullum crimen sine intercerta) '.
21. Furthermore, in their reply, the appellants also give extensive consideration to the proportionality test in relation to the contested provisions of the Decree, questioning the Ministry's declared purposes of the decree and its consequences. In conclusion, they stated that they insisted on their proposal.
The Ombudsman's observations
22. At the request of the Constitutional Court pursuant to Article 69 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), the Ombudsman informed the Ombudsman that he had not entered into the proceedings for the annulment of the contested provisions of the Order.
Abandonment of oral proceedings
23. The Constitutional Court has considered, in accordance with the provisions of Paragraph 44 of the Law on the Constitutional Court, that there is no need to conduct oral proceedings in the case, since it would in no way contribute to a further or more profound clarification of the case than the way in which it was informed by the parties in writing. The fact that the Constitutional Court does not consider it necessary to carry out any evidence also justifies the failure of oral proceedings. The parties did not even request the oral hearing.
Terms and conditions of the formal assessment of the proposal
24. The Constitutional Court finds that it is competent to discuss the application for annulment of the contested parts of the Order and that the motion of a group of 21 Senators fulfils all the formal requirements laid down by law and has been submitted by persons entitled [Paragraph 64 (2) (b) of Act No 182 / 1993 Coll., on the Constitutional Court]. At the same time, it finds none of the grounds for inadmissibility of the application or for termination of the procedure. Therefore, the conditions for its substantive assessment are met.
Constitutional conformity of the issue of the contested legislation itself
25. The Constitutional Court pursuant to § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., first examined whether the contested decree was adopted and issued in a constitutionally prescribed manner and within the limits of the Constitution provided for in the jurisdiction.
26. The Constitution confers powers on ministries and other administrative authorities to legislate, but the implementation of which can only take place on the basis and within the limits of the law if they are empowered by law. That provision should be interpreted strictly in the sense that this authorisation must be specific, unambiguous and clear [cf. the finding of 21 June 2000 sp. zn. ÚS 3 / 2000 (N 93 / 18 CollNU 287; 231 / 2000 Coll.)]. If this is the case, the Constitutional Court is examining whether a statutory law has been passed by a state body authorised to do so and within the limits of its competence, that is, whether it has been within the limits and under the law and not outside the law in the exercise of that competence. At the same time, the legislator's will to regulate above the legal standard must be clear from the empowerment provision. In such cases, however, the substatutory legislation may not interfere with matters which can only be regulated by law (i.e. where the so-called "reservation of law 'applies) [cf., for example, the finding of 18 August 2004 sp. zn. Pl. ÚS 7 / 03 (N 113 / 34 SbNU 165; 512 / 2004 Coll.) or the finding of 25 March 2014 sp. zn. Pl. ÚS 43 / 13 (N 39 / 72 SbNU 439; 77 / 2014 Coll.)].
27. The authority of the Ministry of Justice to issue a decree setting out the details of the official hours of the establishment, the designation of the registered office and establishment and the activities which the insolvency administrator is obliged to provide in the establishment is based on the provisions of § 5a (8) of Act No. 312 / 2006 Coll., on insolvency administrators, as amended by Act No. 294 / 2013 Coll. In view of the authorisation contained in that legal provision, it is clear in the case of the order in question that it was issued by a State authority entitled to do so. However, the situation as regards the assessment of whether the Decree in the contested provisions § 3 (2) and § 4 (2) exceeded the legal authorisation under § 5a (8) of Act No. 312 / 2006 Coll., on Insolvency Managers, as amended by Act No. 294 / 2013 Coll., and thus found itself outside the law, in fact supplementing or interpreting it, and whether by its modification it infringed the constitutional principle of the reservation of the law.
28. Article 5a (8) of Act No. 312 / 2006 Coll., on Insolvency Managers, as amended by Act No. 294 / 2013 Coll., reads:
"The Ministry shall specify by decree the details of the official hours of the establishment, the designation of the place of business and the activities which the insolvency administrator is obliged to carry out in the establishment. '
29. Paragraph 3 (2) of Decree No 355 / 2013 Coll., on the official hours of the establishment, on the designation of the registered office and establishment and on the activities which the insolvency administrator is obliged to provide in the establishment, as amended by Decree No 101 / 2015 Coll., reads:
"The official hours of each establishment must be such that the insolvency administrator in each establishment provides the activities referred to in Section 4. The term" Financial Institution "means a Financial Institution that is not a Financial Institution.
30. Paragraph 4 (2) of Decree No. 355 / 2013 Coll., on the official hours of the establishment, on the designation of the registered office and establishment and on the activities which the insolvency administrator is obliged to carry out in the establishment, as amended by Decree No. 101 / 2015 Coll., reads:
"Where the insolvency administrator is designated in insolvency proceedings in accordance with the procedure laid down in Article 25 of the insolvency law, the insolvency administrator or the notified member, if the insolvency administrator is a public company, shall be obliged to provide, at least in an establishment located in the district of the court responsible for designation, in the nearest establishment, with its continuous physical presence at the establishment during the official hours, the activities directly related to the insolvency proceedings, in particular:
(a) the collection of documents for insolvency proceedings;
(b) enabling participants in insolvency proceedings to consult the list of claims applied for and the documents on the basis of which it was drawn up;
(c) negotiations with the debtor. "
31. It is clear from the verbatim classification of the empowerment provision § 5a (8) of Act No. 312 / 2006 Coll., on Insolvency Managers, as amended by Act No. 294 / 2013 Coll., that the legislator called the Ministry of Justice only to adjust the details concerning the official hours of the establishment, the designation of the registered office and establishment and the activities which the insolvency administrator is obliged to provide at the establishment. The interpretation of the term "details' contained in the empowerment provision in the context and purpose of both the whole of the empowerment provision and the legal arrangements in question appear crucial to the assessment of the constitutional conformity of the above provisions. While the appellants consider that this concept does not allow the Ministry to adopt a regulation regulating the particular way in which the insolvency practitioner operates, which must be provided in an operational capacity, by reference to an inadmissible extensive interpretation of the provisions of empowerment and contradiction with the meaning and purpose of the law, the Ministry is satisfied that, in general, the provisions of Section 36 of the Insolvency Act make it quite clear that the personal presence of the insolvency practitioner in the establishment is without further to be required, and therefore it is not a matter of imposing an obligation beyond the law.
32. The Constitutional Court has already expressed its views on the requirements for the empowerment provisions of the laws and their character in the past, namely that "[p] respect for the division of power (restrictive interpretation of legal authority) and the principle of legal certainty is (and is to be) an authorisation for the issue of legislation to be so precise and specific as to its extent, content and purpose that the Ministry or other administrative body cannot deviate from the legal limits and thus apply its own legal (political) will against Parliament. Such a requirement for legal authorisation to define as precisely as possible the content, purpose and scope of the adjustment may be based on the principle of predictability of the law based on Article 1 (1) of the Constitution [cf., e.g. the finding of 12 March 2008 sp. zn. ÚS 83 / 06 (N 55 / 48 SbNU 629; 116 / 2008 Sb.)]. Failure to respect one of the three elements of the empowerment standard leads to a conclusion on a lack of legal authorisation to issue an implementing regulation '[paragraph 60 (b) of the sp. zn. Pl. ÚS 6 / 07 of 9.2.2010 (N 20 / 56 of SbNU 207; 66 / 2010 Coll.)].
33. The term "details" in this respect is not in itself the most concise and there is not a minor difference between its use in acts of constitutional order (cf. Articles 25 (1), 32 (6) of the Charter, etc.) and the provisions of the ordinary laws for the purposes of derived legal formation. In the first case, the legislator, inter alia, is not limited by a taxing calculation of the specified elements constituting the subject of the legal regulation. Even in the latter case, its use in empowerment provisions to the authorities does not mean executive without further imprecise, inspecificity and ultimately lack of legal authorisation as such. However, it must always be interpreted in close relation to the specific, legislature intended and foreseen subject matter of the sublegislature, whether it is referred to in the text of the empowerment standard itself, or results from the legal regulation relating to the empowerment. In so doing, such a link between the authorisation and the specific legal regulation must always exist, by the nature of the matter, in order for such authorisation to meet the above-mentioned requirements.
34. It is already clear from the text of the relevant empowerment provision § 5a (8) of Act No. 312 / 2006 Coll., on Insolvency Trustees, as amended by Act No. 294 / 2013 Coll., that the Ministry of Justice may, in its framework, modify only the details relating directly to the questions of the office hours, the designation of the head office and the establishment of the insolvency administrator and the activities which the insolvency administrator is obliged to provide at the establishment. It is then only based on the definition of the empowerment standard, it could be concluded that the regulation of the way in which these activities are to be carried out and not just the specification of these activities at the premises belongs to the Ministry of Justice. However, it is not only possible to come out of the text of legal authorisation that is isolated. Account should also be taken of the meaning and purpose of the legal regulation associated with the authorisation. In order to assess whether the determination of the continuous physical presence of the insolvency administrator throughout the period of official hours of the establishment (no) has been excluded from the legal authorisation in question, account should also be taken of the meaning and purpose of the establishments as the legislator has identified them and of the nature of the activities carried out by the insolvency administrator.
35. The Ministry is first of all convinced that the provisions of Paragraph 36 (1) of the Insolvency Act, as well as the Act as a whole, clearly imply the obligation of the personal presence of the Insolvency Trustee in the establishment. The Constitutional Court cannot testify to this conclusion. Paragraph 36 (1) of the Insolvency Act merely provides that the insolvency administrator is required to act conscientiously and with professional care in the performance of his duties and to make every effort to ensure that creditors are satisfied as far as possible. The common interest of creditors shall take precedence in the performance of its duties over the interests of its own and the interests of other persons. The personal performance of the function in the sense of carrying out all the operations exclusively by the insolvency law itself in the provision cited, but also elsewhere, is not discussed and would be somewhat contrary to the purpose and purpose of insolvency proceedings and the mission of the insolvency administrator, if so. On the contrary, as the appellants contend, the law explicitly provides for the performance of the work of employees with the insolvency administrator (cf. paragraphs 23, 37 (2) and 40 (3) of the insolvency law). In particular, Articles 37 (2) and 40 (3) of this Regulation clearly accentuate the fact that the insolvency practitioner may use other persons to perform his duties (or representing the AIFM in legal proceedings, etc.), unless the law requires him to perform the operation in person in certain cases.
36. The Insolvency Trustees Act does not require any personal performance of the function of Insolvency Trustee. If, in this law, the legislature uses the word turnover "actually carries out an activity '(Paragraph 5a (1) and (4)), it cannot be interpreted as meaning the personal exercise of the activities of the administrator himself, but as being effective in its place or place of business, even if the specific activities are provided by its employees or other authorised persons. Moreover, even the legal authority itself in § 5a (8) of Act No. 312 / 2006 Coll., on Insolvency Trustees, as amended by Act No. 294 / 2013 Coll., clearly refers only to the obligation to" ensure "the execution of activities in establishments and not to the obligation to carry them out in person. From here on, it is clear that by establishing the mandatory presence of the managers themselves in the premises, the decree in the different provisions is found in a space outside the law (praeter legem), or it lacks the legislator's clear will to adjust above the legal standard.
37. If the Constitutional Court finds that the obligation of "continuous physical presence 'is unconstitutional throughout the period of official hours, the second sentence of Paragraph 3 (2) of the second contested decree also makes sense. This provision, in conjunction with the obligation of physical presence, was intended to ensure that the insolvency administrator could have at most one registered office and four establishments. However, such a restriction is contrary to the Insolvency Trustees Act. The Act provides in Paragraph 5a (5) that the insolvency administrator may carry out its activities in several establishments, provided that the insolvency administrator has the right to own or use them. In one district court, the insolvency administrator may have only one establishment, and in one regional court it may have several establishments; This number is not limited by law. The only restriction is the number of district courts established in the District Court. It is this legislature that reduces the limit set by that provision of the decree. Paragraph 3 (1) of the contested order provides that an establishment must be opened to the public" at least six hours a day, at least one day a week on a regular basis'. As the need to be physically present in the establishment during official hours affects the insolvency administrator within 6 hours per week in a single establishment, each time between 7: 00 and 18: 00 without the possibility of overlapping with the time when the insolvency administrator is to be present at his place of residence, it is clear that no insolvency administrator can now realistically establish more than four establishments if they are to comply with the conditions set by the decree. This number is lower than the number of district courts in the Czech Republic. Therefore, the Constitutional Court could not conclude otherwise than that by establishing the obligation of continuous physical presence of the insolvency administrator at the establishment, the Order deviated from the scope of the legal authorisation of § 5a (8) of Act No. 312 / 2006 Coll., on insolvency administrators, as amended by Act No. 294 / 2013 Coll., entered into the area regulated by the Act and intervened in the will of the legislature, which reflects the relevant legal arrangements for the establishment of establishments by the insolvency administrator. Such a procedure is therefore incompatible with Article 79 (3) of the Constitution.
38. Although the Constitutional Court does not intend to contradict the claim of the Ministry of Justice that some insolvency administrators have established fictitious establishments, it cannot be overlooked that the measure adopted in the form of the contested provisions of the Decree affects all insolvency administrators who have set up a larger number of establishments without any distinction. Thus also those whose establishments actually existed and actually did. Although it is unlikely to be possible to imagine that the insolvency administrator could effectively set up an establishment in the district of every district court in the Czech Republic, this does not mean that it can be modified, even indirectly, without any additional legislation. On the contrary, the Constitutional Court agrees with the appellants who pointed out that the adoption of Decree No 101 / 2015 Coll. also affected the right of business within the meaning of Article 26 (1) of the Charter, since it is up to the insolvency administrators to exercise their powers and skills themselves and to assess their economic possibilities in the Insolvency Trustees Act. It is these possibilities that are, in fact, the fundamental and, I am obliged to say, the natural (immodest) limiting factor for setting up an excessive number of establishments. However, the fact that it may be fictitious in some cases is a completely different matter and the sanctions of such insolvency administrators will undoubtedly be appropriate in the event of such a finding. In this case, the reservation of the law applies because the conditions and restrictions for the performance of the activities of the insolvency administrator can only be laid down by law (Article 26 (2) of the Charter). The legislature set these conditions in the Insolvency Act and the Insolvency Trustees Act for the area of establishment of the establishments concerned, but the Ministry of Justice did not, as can be seen from the above, empower them to further transform.
39. The contested decree expressly obliges insolvency administrators to have a continuous physical presence in a specific place - an establishment. However, such an obligation could only be imposed by law and within its limits (Article 4 (1) of the Charter). The Ministry of Justice does not only impose conditions and restrictions on business, but imposes obligations on insolvency administrators without legal authorisation.
40. Thus, in part of the contested provisions, the decree is outside the legal limits and is in itself sufficient to derogate. Therefore, under the circumstances, the Constitutional Court has no longer addressed other arguments raised by the parties in their submissions. Since some of the contested provisions of the Decree are contrary to Articles 79 (3) of the Constitution, Article 4 (1) and Article 26 (1) of the Charter, the Constitutional Court complied with and annulled the provisions of Article 70 (1) of the Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., on the proposal in question. In the remainder he rejected the proposal as unfounded (§ 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court).
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No 77 / 2016 Coll., on the application for annulment of Sections 3 (2) and 4 (2) of Decree No. 355 / 2013 Coll., on the official hours of the establishment, on the designation of the registered office and establishment and on the activities which the insolvency administrator is required to carry out in the establishment, as amended by Decree No. 101 / 2015 Coll. |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 14.03.2016 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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