The Constitutional Court found No 8 / 2018 Coll.
The Constitutional Court found of 12 December 2017 sp. zn.
Valid
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8
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on page 26 / 16 of 12 December 2017 in plenary composed of the President of the Court of Paul Rychetský and the judges and judges of Louis David, Jaroslav Fenyk, Josef Fialy (Judge Rapporteur), Jan Filip, Jaromír Jirsa, Tomáš Lichovník, Jan Musil, Vladimir Sládeček, Radovan Sukánek, Kateřina Šimáková, Vojtěch Šimíček, Milady Tomková, David Uhlíř and Jiří Zemánek, on behalf of the group 41 Members of the Parliament of the Czech Republic, on behalf of Mr Marek Benda, represented by Mr JUdr. Zdenek Kudelka, Ph.D., lawyer, with the head of the Opratov oprát 874 / 46, Brno, on the annulment of Law No 112 / 2016.
as follows:
I. Paragraph 5 (b), part of the provision of Paragraph 18 (2), consisting of the designation of the letter "(a)," comma after the word "sales" and "(b)," or (b), the issuing of an order for its execution, if the order was issued earlier, "Article 20 (1) (b) and (2) and Article 37 (1) (b), in the words" until the end of the 15th calendar month from the date of entry into force of this Act, "and point (c) of Act No 112 / 2016 Coll., on the registration of sales, shall be deleted on 28 February 2018.
II. The provisions of § 10 (2), § 12 (4) and § 37 (3) of Act No. 112 / 2016 Coll., on the registration of sales, shall be repealed with effect from 31 December 2018.
III. Government Decree No. 376 / 2017 Coll., on the exclusion of certain sales from the registration of sales, expires on 31 December 2018.
IV. The remainder is rejected.
Reasons
Arguments of the appellant
1. On 1 June 2016, a motion by a group of 41 Members (hereinafter referred to as "the draftsman ') to abolish Act No. 112 / 2016 Coll., on the registration of sales (hereinafter referred to as" the cited Act' or "Act No. 112 / 2016 Coll. 'or" the Act on the registration of sales') was delivered to the Constitutional Court, by which the Institute of Registration of Sales was introduced into the legal order of the Czech Republic. The application was submitted pursuant to § 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court. According to the appellant, there were serious procedural errors in the adoption of the Law on the Registration of Sales, which constituted the inconstitutionality of the entire Act. Furthermore, the appellant submits that the provisions of Sections 3, 4, 6, 10 (2), 12 (4) and 37 (3) of Act No 112 / 2016 Coll. are factually contrary to the constitutional order of the Czech Republic.
2. First of all, the appellant points out that the third reading debate on the government bill on the registration of sales was closed by the resolution of the Chamber of Deputies of the Czech Parliament ("the Chamber of Deputies') of 10 February 2016 (approved in vote 28). However, this was preceded by another intervention of state power consisting of the procedure of the President of the Chamber of Deputies, Jan Hamáček, on 10 February 2016, who, during his chairmanship, prevented the Chamber of Deputies from speaking at third reading, thus expressing its views on the bill. The appellant of the contested procedural defect was then concluded by the Resolution of the Chamber of Deputies of 10 February 2016, No 1068, by which the Chamber of Deputies gave its assent to the Government's draft law on the registration of sales as approved by the Chamber of Deputies. By the contested resolutions and by the contested procedure of the President of the Chamber of Deputies, Article 1 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), Article 2 (3) of the Constitution and Article 2 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter), Article 6 of the Constitution and Article 21 (1) of the Charter were infringed by the appellant.
3. According to the appellant, the Government of the Czech Republic (hereinafter referred to as "the Government ') has only the right to propose the law, not to enforce its adoption. If she really cares about the bill, she can ask the Chamber of Deputies to end the discussion of the government bill within three months of its submission, if the government links the request for a vote of confidence. However, this did not happen in the present case. According to the appellant, it cannot be overlooked that Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended, (hereinafter referred to as" the Rules of Procedure of the Chamber of Deputies' or "the Rules of Procedure ') allows the President to terminate the debate if there are no other speakers. Moreover, the Rules of Procedure allow the Chamber of Deputies to vote only on the reopening of the debate and not on its termination. This must be interpreted in conjunction with the constitutional principle that state power can only do what the law allows it to do. If the law does not expressly give the State institution - the Chamber of Deputies - the right to terminate the debate, regardless of the Members who have applied for the debate, this constitutional institution cannot usurp that right for itself. After all, even in the state of war and the state of threat, every Member has the right to speak at least once at the third reading. It is therefore an obvious abuse of power and a restriction on the rights of the opposition that, when discussing the draft law on the registration of sales, it was not possible to speak at a time of peace and quiet to some Members at third reading.
4. Moreover, the appellant concludes from the various statements of Members of the government majority and other indications that the procedure leading to the limitation of the rights of some Members has long been prepared. It was therefore not a random excerpt, but a pre-prepared association for the purpose of violating the Czech legal order. Such an association is a conspiracy and a danger to the functioning of a democratic rule of law. According to the appellant, the Constitutional Court should therefore order the hearing and proceed with the witness interviews, namely the questioning of the then Minister of Finance, Andrei Babiš, the former President of the Chamber of Deputies Jan Hamáček, the former Vice-President of the Chamber of Deputies Jaroslava Jerman, the former President of the Czechoslovak Club of Deputies, Roman Sklaák, the President of the 2011 Parliamentary Club Jaroslav Faltýnek and the former President of the KDU-ČSL of the parliamentary Club of Deputies Jiří Mihola.
5. In addition to the suggested discrepancies with the procedural rules of the legislative process, which occurred in the adoption of Act No. 112 / 2016 Coll., the appellant objects to the contradiction of Sections 3, 4 and 6 of the cited Act with the principle of proportionality of the breach of constitutional rights and the impossibility of alternative action against "small" taxpayers of income tax. In particular, the contested legislation distorts the right to business pursuant to Article 26 (1) of the Charter and the right to the protection of property pursuant to Article 11 of the Charter (the appellant refers in this context to the existence of so-called flat rates for "small 'taxpayers of income tax to reduce their burden). It recalls that the Constitutional Court has already assessed similar legislation with its effect, in the case of the so-called bail-out of" small' fuel distributors, which it assessed as unconstitutional. Although the contested provisions were based on a legitimate attempt by the legislature to limit the creation and abuse of dedicated commercial companies playing a major role in the delicacies of the fuel market, the Constitutional Court concluded that the contested legislation would not stand up because it considered that there were alternative ways of achieving this objective, which did not thus represent an enormous burden for "small 'fuel distributors [cf. According to the appellant, the disproportion between the" small' and the larger taxpayers cannot be rectified either by the argument that the contested legislation does not distinguish between individual entrepreneurs with reference to the formal concept of equality results in material inequality.
6. According to the appellant, it is also not possible to assess the law cited in isolation. In the present context, the appellant mentions the introduction of the so-called control report pursuant to § 100 (1) and § 101c to 101i of Act No. 235 / 2004 Coll., on value added tax, as amended ("the Value Added Tax Act '). It argues that the sales records together with the control report, together with their summary for" small "and" medium "entrepreneurs, create a" choking effect, "which is a violation of the right to business. For example, the State could devise a system of value added tax control reports to obtain data for the administration of income tax.
7. The appellant contends that the records of sales allow the financial administration to obtain a database of personal data, while there are insufficient guarantees that the collected data do not fall into the hands of unauthorised persons. While efforts to prevent tax evasion are in the public interest, this "automatically" cannot in itself justify a widespread violation of the right to privacy, where the protection of personal data belongs. In fact, it is a substantial difference whether the financial authority can verify certain information on a case-by-case basis by checking with a particular entity or is available in a interconnected online database on a national scale.
8. The appellant takes the view that Articles 10 (2), 12 (4) and 37 (3) of the Law cited constitute a contradiction with the principle that obligations, including tax obligations, may only be imposed by law. In so doing, the sales in simplified registration and the sales excluded from registration, including temporary exclusion, are laid down by the Government's regulation. Moreover, this government regulation was not submitted to the Chamber of Deputies together with the draft law cited, even if it is required by Paragraph 86 (4) of the Rules of Procedure of the Chamber of Deputies. Exemptions from the obligations laid down in the tax regulation must therefore simply be given by law, or the relevant legal authorisation for a body other than the legislature must be much more detailed than the law currently cited [the appellant refers in this connection to the finding of the Constitutional Court sp. zn.
9. Finally, the appellant contends that the contested law was not signed by the President of the Chamber of Deputies but only by its Vice-President, which is contrary to Article 51 of the Constitution. The Constitution does not know the position of Vice-President of the Chamber of Deputies; The Vice-President of the Chamber of Deputies is appointed only on the basis of the Rules of Procedure of the Chamber of Deputies. However, the law cannot delegate to another body the power conferred by the Constitution on another body if it does not expressly provide for it. In this context, the applicant refers to the finding of sp. zn. However, the Constitutional Court stated at that time that, in the present case, the Constitution must take precedence as a rule of the highest legal power and that it did not provide the Chamber of Deputies with such power in relation to the representatives of the municipalities.
Observations of the parties and the intervener
10. The Constitutional Court, pursuant to Article 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 18 / 2000 Coll., requested the observations of the parties to the proceedings of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic (hereinafter referred to as the Senate) and also sent the proposal to the Government (Article 69 (2) of the Law No. 182 / 1993 Coll., on the Constitutional Court, as amended) and the Ombudsman (Article 69 (3) of the Law on the Constitutional Court).
11. In its observations, the Chamber of Deputies first briefly summarised the course of the legislative process, with the fact that, in its view, the law was duly signed by the relevant constitutional authorities and duly declared. It is then up to the Constitutional Court to assess the unconstitutional objection to the adoption of the law in question, or the contested provisions, and to decide on the application for annulment.
12. In addition to this, the President of the Chamber of Deputies Jan Hamáček added his personal position to the Chamber of Deputies. He stressed that the right of the House of Opposition to block and delay decisions on the draft laws adopted by the House by a majority, in the opinion of the Constitutional Court, is also among the most fundamental rights of the House of Opposition or its individual members. In assessing the scope of this right and in applying it, it is necessary, according to the President of the Chamber of Deputies, to assume that, on the one hand, the rights and powers of the opposition must be guaranteed, but, on the other hand, that political decisions are based on the will of the majority of elections. It is therefore necessary that the individual rights guaranteed by the opposition also correspond to certain obligations and responsibilities of the opposition for their performance. On the contrary, the actions of the opposition, which would result in the very destruction of the conduct of the Chamber of Deputies, cannot be allowed, as this could be a denial of the meaning of parliamentary democracy and parliamentary democracy. Although the Rules of Procedure of the Chamber of Deputies do not explicitly regulate the termination of the debate, if other speakers are involved, the President of the Chamber of Deputies is of the opinion that, in the present case, it was carried out in accordance with the Constitution and the principles of constitutional order. Therefore, on the one hand, the seriousness of the threat to the functioning of the Chamber of Deputies itself in promoting the interests of the Government Coalition should be assessed, on the other hand, the alleged violation of the Rules of Procedure of the Chamber of Deputies. In this context, the President of the Chamber of Deputies adds that, according to the settled case-law of the Constitutional Court, legislative action cannot be regarded as an intervention by public authorities and that the procedure of the President of the Chamber of Deputies also falls within the scope of legislative action. The appellant's argument on the contrary is therefore incorrect, according to the President of the Chamber of Deputies. The appellant's objection that the law was not signed by the President of the Chamber of Deputies, but by the Vice-President of the Chamber of Deputies, then stated that, according to the Rules of Procedure of the Chamber of Deputies, the Vice-Presidents of the House represent the President on his or her instructions or in the order specified. When representing the President of the Chamber of Deputies, the Vice-Presidents of the Chamber of Deputies have the rights and obligations of the President of the Chamber of Deputies (cf. Section 30 of the Rules of Procedure of the Chamber of Deputies). The Institute of Vice-Presidents of the Chamber of Deputies is based on Article 29 of the Constitution, according to which the Chamber of Deputies elects and removes not only the President but also the Vice-Presidents of the Chamber of Deputies (for this reason the appellant's claim that the Constitution does not know the concept of Vice-President of the Chamber of Deputies). In the current practice of the Chamber of Deputies, this option has been applied more strictly so that only the so-called First Vice-President of the Chamber of Deputies is entitled to sign the law, which in this case is Jaroslav Jerman. The President of the Chamber of Deputies therefore considers the signature of the Act on the registration of sales by the first Vice-President of the Chamber of Deputies to be made in accordance with the Constitution and the Rules of Procedure of the Chamber of Deputies.
13. In the Senate's observations, the content of the proposal for the annulment of the cited law, or its individual provisions, is first described in the framework, followed by a brief recap of the legislative process in the Senate. In the second part of the statement, the views of the various senators and senators, which were heard during the debate at the Senate, are then mentioned in a voice. In particular, the performances of Jan Veleba, Iva Valenty, Petr Vícha, Veronica Vrecion, Miloš Vyšila, Václav Hample, Pavel Štohl, Eliška Wagner, Remysla Sobotka, Stanislav Juránek and Radko Martínek are mentioned, with the fact that their full speeches and speeches by other speakers can be found on the relevant Senate website. According to the Senate, it is then up to the Constitutional Court to examine and decide the application for the annulment of the Act cited, or its individual legal provisions.
14. On behalf of the Government, the former First Deputy Prime Minister and Finance Minister Andrej Babiš spoke on behalf of the Government on the proposal to abolish the Act cited above.
15. The Government first pointed out that the repeal of the Law by the Constitutional Court due to the shortcomings of the legislative process may be considered in two cases in the breach of a standard enshrined directly in the Constitution, or if, as a result of a breach of the Rules of Procedure of the Chamber of Deputies, one of the constitutional principles or values would be infringed. The Government considers that no constitutionally guaranteed right of a member of Parliament has been infringed in the course of the approval of the law on the registration of sales. The fact that the debate on the bill at third reading in the Chamber of Deputies has been concluded early does not, in its view, constitute a violation of the Constitution or any constitutional principles or values. The focus of the legislative process, according to the Constitutional Court, is to discuss the bill in the Chamber of Deputies and in its committees, or at second reading. On the contrary, in the third reading, only the correction of legislative and technical errors, grammatical errors, written or press errors, as well as the adjustments which logically result from the amendments tabled, or, in the third reading, a proposal to repeat the second reading may be made. However, at the third reading, opposition Members spoke with statements, which are included in the general debate held at first and second reading. On the one hand, therefore, the appellant invokes the rights of opposition Members as minorities involved in the consideration of the draft law, but on the other hand, it does not reflect the fact that this minority of Members, too, has abused their rights and its behaviour cannot be regarded as fulfilling the role of responsible opposition.
16. The Government also does not agree with the argument that the records of sales represent a disproportionate burden on "small 'tax entities. It also follows from Section 97 of Act No. 280 / 2009 Coll., Tax Code, that the tax entity must keep records of payments which it accepts in cash, unless it places data on such payments in another register provided for by the Act (for example, in the accounting according to Act No. 563 / 1991 Coll., as amended). In addition to keeping records imposed by law, the tax administrator may, in justified cases, impose an obligation on the tax body to keep specific records if this is necessary for the correct identification and determination of the tax. The administrative costs associated with the fulfilment of these ad hoc special records are generally higher than those under the Law on the registration of sales. The Institute of Market Records merely complements the current accounting obligation to report publicly targeted payment data, which is characterised by a lower or unclear degree of traceability towards the tax administrator. The aim of the sales records is thus to balance the business environment and better tax management in all market segments, regardless of the size of the entities. It is therefore essential that all those who are taxpayers of income taxes be subject to control through the records of sales. On the contrary, sales records do not affect those who make extra money, for example, by selling hand-held or agricultural products on local markets, since the income of such entities does not result from business as a continuous gainful activity carried out separately for their own account and responsibility for profit.
17. If the appellant contends that the possibility of linking the control report to the register of sales has not been sufficiently exploited, the Government stresses that the control report and the record of sales do not constitute a single linked entity which could be resolved by a single universal measure. The various areas must be treated selectively in order to achieve the desired efficiency appropriate to the general public interest. The fact that in a particular area of existing instruments consisting of the introduction of a certain obligation (i.e. a control report) with which certain administrative costs are associated should not prevent other instruments from being introduced in another area. The Institute of Control Report thus falls in an area other than sales records. Finally, the fact that tax control is carried out in a broader sense by electronic means instead of ad hoc data collection to date cannot be seen only as a unilateral increase in administrative costs, as this is primarily a response to technical and social developments. At the same time, the system is designed to be open both in terms of software and hardware, meaning that the taxpayer will not be forced to purchase only specific software or hardware and will depend on it to choose which solutions offered on the market that meet the given functionality. Nor can it be overlooked that the possible costs of acquiring the necessary equipment will be partly compensated by the discount on the registration of sales newly introduced into Act No. 586 / 1992 Coll., on Income Tax, as amended ("Income Tax Act ').
18. If the scope of the data which the tax administrator has the power to obtain and collect is concerned, pursuant to Section 9 (3) of the Tax Code, the tax administrator may collect personal data and other data, if necessary for tax administration, only to the extent necessary to achieve the tax management objective. On the other hand, the provision of data by tax entities is crucial for tax administration. Tax administration is a process characterised by the fact that the obligation of proof and burden lie with the tax entity. The tax administration is therefore based on the fact that tax entities cooperate with the tax administrator and provide it with the data necessary for tax administration. Thus, if the appellant considers the tax administrator to provide data, it implicitly imputes the very nature of the tax administration. The possibility of working with personal data is foreseen within the framework of the basic principles of tax management. However, both Act No. 101 / 2000 Coll., on the Protection of Personal Data and on the Amendment of Certain Laws, as amended, ("Act No. 101 / 2000 Coll. ') and the Tax Code, where the protection of personal data is regulated comprehensively, must be respected. However, the Act on the registration of sales does not create new processing of personal data. In addition, the relevant data for the record-keeping of sales are information on the total sales and information on the identification of the entrepreneur and the seller where the sales were made. These are data that would be obtained by the tax administrator using existing control tools.
19. If the appellant contends that paragraphs 10 (2), 12 (4) and 37 (3) of the Act cited are subject to the law on the imposition of tax obligations and considers it to be an unrestricted mandate for exceptions provided for by the Decree of the Government, the Government first of all oversees the conclusions of the Constitutional Court's finding of the Constitutional Court's decision on the basis of point (b) of Article 21 / 14 of the Law of 30 June 2015 (N 122 / 77 of the SbNU 759; 199 / 2015 Coll.), according to which, when assessing the constitutionality of the legislative authority itself, it would be essential to assess whether it is not apparent that the legislature authorises the legislature which does not constitute a constitutional authority. When assessing the provisions cited above, it should also be pointed out that the obligation to register sales cannot be placed under Article 11 of the Charter for the Protection of Property, namely the Institute, which is not affected by the Law on the Registration of Sales. Those provisions do not impose obligations, but establish the right not to register sales. Paragraph 10 (2) of the Law on the registration of sales also makes it conditional on the issue of a government regulation establishing sales registered in the simplified scheme by making the registration of sales in a standard manner impossible or fundamentally difficult to carry out the smooth and economical exercise of the activities from which such sales are made. The Decree of the Government pursuant to Article 12 (4) of the Act cited may fully exempt sales from the records, the registration of which would also make it impossible or significantly difficult for the smooth and economical exercise of the activity and this obstacle could not be removed by the registration of the simplified scheme. Even in the case of a government regulation under Section 37 (3) of the Law on the registration of sales, it is necessary to take into account in particular that the measure provided for in this provision may only be temporary.
20. Finally, as regards the alleged absence of the signature of the President of the Chamber of Deputies, the Government considers that, in the case now under consideration, the Constitution does not provide for the signature of the President of the Chamber of Deputies under the law. The law is signed on behalf of whoever is entitled to do so by the competent Vice-President of the Chamber of Deputies.
21. The Ombudsman, by letter dated 22 July 2016, informed the Constitutional Court that she would not exercise the right to intervene.
Replication of the appellant
22. The observations of the parties and the intervener were sent to the appellant in the light of the appellant and of any reply. The appellant took advantage of its right to make a reply.
23. In particular, on the observations made by the Chamber of Deputies or its President, the appellant stated that, if the Constitution gives the right to a person, it is also an obligation to exercise the right to exercise the Constitution in a specified manner. The Constitution does not allow the President of the Chamber of Deputies to be represented when signing the law, that is, the constitutional law and the duty of the President. Moreover, the reason for not signing the President of the Chamber of Deputies was his short foreign journey, which is negligible in terms of the overall length of the legislative process. Thus, even materially, this step was not justified.
24. In response to the Senate's observations, the appellant points out that the speeches of the individual Senators and Senators show that they knew the defects for which this motion to abolish the Law was filed by the Constitutional Court. The law was therefore adopted because of the discipline of government senators, without any response to the mentioned defects in the legislative process in the Chamber of Deputies or the defects in the substance of the law.
25. On the Government's statement, the appellant states that, although the Constitutional Court is a protector of constitutionality, it is not a rule of law, but also a constitutional principle in the exercise of state power, where power is also legislative. Therefore, if the legal rules of the legislative process are infringed, the constitutional principle of legality in the exercise of the state's legislative power is violated. If, in the Government's statement, it is claimed that the control of the Constitutional Court must be subject to a specific government regulation, not a legal authorisation, then this argument can be accepted, but not when a provision is constitutionally reserved for the law and, therefore, the legal authorisation itself which transposes the regulation into a substatutory regulation is unconstitutional. Taxes can only be provided by law, not by government regulations. Since the law provides for the obligation of a form of tax records, it must also provide for the other scope, i.e. to whom the tax records apply. In this respect, the appellant does not agree with the Government's claim that Article 11 (5) of the Charter cannot be relied on as essential elements of the tax adjustment. If the Government considers that the extensive authorisation for its regulation has been inserted into the law as an element of rapid response, such an argument is quite general and can be applied to any adjustment. On the contrary, the appellant is convinced that stability is desirable in the tax legislation and any amendments are to be adopted after discussion in Parliament.
26. On 24. 11. 2016, the author supplemented her reply by agreeing to a possible amendment to the Act on the registration of sales so that the register of sales will not be subject to a business with income up to CZK 250,000 per year. It is disproportionate to burden "small" traders as well as "large" companies.
27. On 20. 12. 2016 the appellant followed this argument by reference to the finding of 6. 12. 2016 sp. zn. Pl. ÚS 32 / 15 (40 / 2017 Coll.; control report in the Value Added Tax Act). In this finding, the Constitutional Court did not substantiate the argument of the disproportionate burden on "small 'entrepreneurs. However, the background of the Constitutional Court in this finding cannot be transferred to the Act on the registration of sales without further transfer, as the value added tax is not subject to a payer with a turnover of less than CZK 1 000 000 per year. Therefore, the appellant continues to insist on its argument that the obligation to register sales may result in the cessation of activities of, for example, business pensioners. In addition, as the Constitutional Court found in sp. zn. Pl. ÚS 32 / 15, the appellant reiterates the unconstitutionally wide scope for executive power to change the definition of the entities subject to the registration of sales by a statutory regulation.
28. On 9 February 2017, the appellant supplemented the previous argument with a reference to Paragraph 18 (2) (b) of the Market Registration Act, according to which "the fact of the registered sales is (a) the acceptance of the registered sales, or (b) the issuing of an order for its execution if the order was issued earlier '. According to the appellant, the financial administration was aware of the impossibility of implementing the provision cited in relation to online business. That is why she agreed to the interpretation that the taxpayer will have to fulfil his registration obligation only when she learns about the debiting of payment from the payer's account (customer). Although such an approach by the tax administrator is correct, the appellant points out that, in the case of Article 18 (2) (b) of the Law on the registration of sales, it is an unreasonable legislation which, by its nature, is contrary to the principles of the rule of law and should therefore be repealed for that reason. In the present context, the appellant also considers that the monitoring of cashless payments in the context of the register of sales itself, as defined in Section 5 (b) of the Market Records Act, is an unnecessary bureaucratic burden, since, in terms of traceability, there is no difference between the cashless payment from a bank account to a bank account and the cashless payments as defined in Section 5 (b) of the Market Records Act. Therefore, if the Constitutional Court does not proceed with the annulment of the full Act on the registration of sales, as previously proposed, it should at least repeal the provisions of § 5 (b) and part of the provision of § 18 (2), consisting of the designation of the letter" (a)', in comma after the word "sales' and in words' or (b) the issue of an order for its execution, if this order was issued earlier '.
29. On 17 February 2017, the appellant added to the arguments put forward that the financial administration issued a "Methodological instruction on the application of the Law on the registration of sales' (or the addition of this order), where the difference between the main and minor activities is constructed, using a criterion of the volume of payments from the minority activity (or minority activities) not exceeding CZK 175 000 and comprising a maximum of 49% of the total payments made in the establishment. Although, according to the appellant, it is understandable that the financial administration's efforts to limit the legal presence of sales records to marginal sales of very small vendors, it must be noted that neither the concept of minority payment nor the chosen indicators are provided for by law nor by statutory law. If the legislator wanted to limit the scope of the entities subject to registration of sales, it should have done so by law, not even by a methodological guide. Otherwise, according to the appellant, a conflict with the principles of the rule of law was created and the law on the registration of sales should be repealed only for that reason by the Constitutional Court.
30. On 14 November 2017, the appellant followed up on its submission of 24 November 2016 in such a way that "small 'entrepreneurs who, in her view, should not be subject to sales records could be defined by the Constitutional Court in such a way that they are those whose annual income does not exceed CZK 1 800 000 (i.e. an average of CZK 150 000 per month) before deducting expenditure. According to the appellant, the Constitutional Court could do this in the same way as in the case of the finding of sp. zn. Furthermore, the appellant clarified its proposal in such a way that, in its view, it contradicts the right of privacy if the natural persons - natural persons - have to include their birth number on each bill (as part of their tax identification number). Therefore, the Constitutional Court should repeal the provisions of Paragraph 20 (1) (b) of the Law on the Registration of Sales. Finally, it proposed that the Constitutional Court issue the following findings:
"Act No. 112 / 2016 Coll., on the registration of sales is hereby repealed. '
Alternatively, she suggested:
"1. Paragraph 3, 4, § 5 (b), § 6, § 10 (2), § 12 (4), part of the provision of Paragraph 18 (2), consisting of the designation of the letter, (a) ', comma by word, sales' and words, or (b) the issue of an order for its execution, if the order was issued earlier ', § 20 (1) (b) and § 37 (3) of Act No 112 / 2016 Coll., on the registration of sales.
2. Act No. 112 / 2016 Coll., on the registration of sales in respect of individuals who have less income than CZK 1,800,000 per year is hereby repealed. '
Observations of the parties to the proceedings to supplement the appellant's proposal (replica)
31. The above supplements from 24. 11. 2016 to 17. 2. 2017 were sent by the Constitutional Court to the parties for additional observations.
32. The Chamber of Deputies did not comment on these additions.
33. After meeting the content of the amendment, the Senate maintained its original observations and considered it sufficient.
34. In its observations, the then Minister of Finance first pointed out, on the basis of the government's mandate, that if the Constitutional Court had taken up the annulment of Paragraph 18 (2) (b) of the Law on the registration of sales, it would have meant that the acceptance of registered sales under Paragraph 18 (2) (a) of the Act, which is not technically possible, would have to be regarded as the execution of payments made by the online payment gate. If the Directorate-General for Finance has given an opinion on Paragraph 18 (2) (b) of the Act cited, this can be considered to be common and legitimate practice. Methodologies arise in particular for the need to unify the process of subordinate bodies, which is particularly necessary in the case of tax laws, in particular with regard to the high number of officials who apply those laws. For methodologies, they cannot contradict the text of the law, but should seek to interpret it as best as possible in order to make it more understandable for legal users.
35. As regards the register of non-cash payments under Section 5 (b) of the Law on the registration of sales, the then Minister of Finance first of all pointed out that, if cashless payments were not subject to registration, the financial administration would not have obtained a comprehensive picture of the taxpayer's sales, thereby preventing data analysis and the targeting of tax controls based on it. Moreover, restrictions on cash-flow records could lead to taxpayers motivating their customers to pay by card in order to avoid record-keeping. If the appellant claims that cashless payments are generally easily traceable, then there is no difference between the specific means of traceability according to the type of payment. Moreover, if the tax administrator were to seek information from non-cash payment service providers, for example, on a larger group of taxpayers in accordance with the procedure laid down in Paragraph 57 (3) of the Tax Code, this would be an enormous burden both for tax managers and for providers of such information.
36. If the appellant contradicts the "Complement of the Methodology for the application of the Accounting of Sales Act on the assessment of the possibility of the opening of the sales of a minor taxpayer's activity at a later stage than the obligation to register this activity under the NACE classification," then, according to the then Minister of Finance, it is possible to refer to the meaning of the methodological guidance, as discussed in the part of the statement concerning Paragraph 18 (2) (b) of the Act cited, where this supplement does not provide the taxpayers with any obligations that go beyond the law, but only shows how the tax administrator will maintain in assessing the situation, in order to ensure uniform application practice. However, even if, according to the then Minister of Finance, doubts arise from the Constitutional Court as to the correctness of the General Financial Directorate's practice in issuing and supplementing methodological guidance, it is not clear how it would be possible to establish the inconstitutionality of the law itself, even if the appellant itself does not explain this possible link.
Abandonment of oral proceedings
37. The Constitutional Court did not expect further clarification of the case - unlike the appellant - from the oral proceedings, and therefore abandoned it under § 44 of the First Law on the Constitutional Court. They will comment on the witness interview proposal below.
Procedural assumptions for the assessment of the proposal, the course of the legislative process and the assessment of its constitutional conformity
38. The Constitutional Court notes that it is competent to examine the proposal in question, which was submitted to it by an authorised appellant, a group of 41 Members [Paragraph 64 (1) (b) of Law No 182 / 1993 Coll., on the Constitutional Court]. The application is admissible and fulfils all the statutory requirements. Pursuant to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the assessment of the constitutionality of the Act with a constitutional order consists of answering three questions: whether it was adopted and issued within the limits of the Constitution, whether it was adopted in a constitutionally prescribed manner and whether its content is in accordance with constitutional law.
Progress of the legislative process
39. The Constitutional Court, on the basis of publicly available press releases from the Chamber of Deputies and the Senate, as well as the stenorecords of their actions (all available at www.pspp.cz, www.senat.cz), found the following facts.
40. The government bill on the registration of sales was distributed to Members as press 513 / 0 on 4 June 2015. The Organizing Committee recommended the discussion of the draft law on 4 June 2015 (resolution 172) and designated as rapporteur Ing. Arch. Jaroslav Klaška and proposed the Budget Committee as a guarantee.
41. The first reading took place on 19 June 2015 and 10 July 2015 at the 29th meeting and the draft law was ordered to discuss the committees (resolution No 853). The Committee on Budgets discussed the bill and issued on 3 September 2015 a resolution delivered to Members as press 513 / 1 (amendments). The Economic Committee discussed the draft law and issued on 4 September 2015 a record of the negotiations delivered to Members as press 513 / 2.
42. At the second reading, the examination of the draft law at the 31st meeting was suspended on 18 September 2015 (Resolution No 881). Subsequently, the bill passed a general and detailed debate on 7 October 2015 at the 33rd meeting. The amendments tabled were processed as press 513 / 3, which was circulated on 8 October 2015. The Committee on Budgets issued a resolution which was delivered to Members on 16 October 2015 as House Press 513 / 4 (Opinion).
43. The third reading took place during the 37th meeting of 18. 12. 2015, 8. 1. 2016, 22. 1. 2016, 29. 1. 2016 and 10. 2. 2016. On 10 February 2016, the bill was passed when 105 of the 145 Members present voted in favour of it, 3 Members opposed and 37 abstained (vote 42, resolution 1068).
44. The bill on the registration of sales was passed on to the Senate Chamber of Deputies in the 10th term, on 18 February 2016, with the Senate register as press number 200 / 0. The proposal was ordered by the Committee on Economic Affairs, Agriculture and Transport as a guarantee committee (the rapporteur was Senator Pavel Štohl); No resolution was adopted by the appointed committee at its 21st meeting, held on 15 March 2016. Furthermore, the bill was ordered to the Constitutional Law Committee (Senator Stanislav Juránek was the rapporteur). The Constitutional Legal Committee discussed the draft law on 9 March 2016, at the 20th meeting, where it adopted its 96 resolution recommending the Senate plenary to approve the draft law as referred to by the Chamber of Deputies (see Senate Press No. 200 / 2). The Senate then dealt with the bill at its 20th meeting on 16 March 2016 and approved the bill by resolution No 360 when it voted for 43 of the 72 senators present, 20 senators opposed and 9 abstentions.
45. The Act was delivered to the President of the Republic on 17 March 2016, signed on 30 March 2016. The Act was published in the Collection of Laws on 13 April 2016 in the amount of 43 under No. 112 / 2016 Coll., the Act became effective on 1 December 2016.
46. In the course of the proceedings before the Constitutional Court, there was a partial amendment to the Act on the Registration of Sales, Act No. 183 / 2017 Coll., amending certain laws in connection with the adoption of the Act on Liability for Infringements and Proceedings and the Act on Certain Infringements. By this amendment (specifically part 239 of the Act), part of the fourth Act on the registration of sales with the block of offences (before the amendment of administrative offences) was amended, and parts 28 to 30 and 33 of the Act on the registration of sales (part seven - common and final provisions where there is again no talk of other administrative delicacies but of new infringements).
47. This amendment is also a government bill sent to Members as press 929 / 0 on 5 October 2016. The rapporteur was MEP JUDr. Ing. Lukáš Pleticha and the guarantee committee was the constitutional legal committee. The first reading took place on 19 October 2016 at the 50th meeting. The second reading took place on 22 February 2017 at the 55th meeting. The third reading took place during the 56th meeting of 7 April 2017 and on the same day the draft law was approved when 119 of the 169 Members present voted for it, 18 Members opposed (vote 208, resolution 1624). The proposed amendment to the Act on the Registration of Sales was forwarded by the Chamber of Deputies of the Senate on 9 May 2017, with the Senate Register on Press No. 125 / 0. The proposal was ordered to the constitutional-legal committee as the committee guarantee. After that, the press was classified at the 7th Senate meeting on 31 May 2017, and the Senate did not adopt any resolution to the press. The law was delivered to the President of the Republic on 9 June 2017 and it was signed. The Act was published in the Collection of Laws on 28 June 2017 in an amount of 66 under No. 183 / 2017 Coll., when its Part 239 became effective on 1 July 2017.
Assessment of the constitutional conformity of the legislative process - hardened defects in the law adoption process
48. As mentioned above, the appellant contends, in particular, that the contested law - not its above-mentioned partial amendment - was adopted in breach of the principle of state power binding by law (Article 2 (3) of the Constitution and Article 2 (2) of the Charter), contrary to the principle of protection of the minority in the making of political decisions (Article 6 of the Constitution) and contrary to the right of citizens to participate in the administration (Article 21 (1) of the Charter), thus contrary to the postulates on which the democratic rule itself is based within the meaning of Article 1 (1) of the Constitution. Although there is no legal basis, let alone a constitutional basis, some Members have been prevented from speaking on the draft law, and at the third reading, the debate on the draft law was closed by the resolution of the Chamber of Deputies and the Chamber of Deputies gave its assent to the Government's proposal for the law cited as amended. According to the appellant, it was a deliberate and planned act of a government majority.
49. In addition to the arguments put forward in this way, the appellant also sees that the contested law was not signed by the President of the Chamber of Deputies, but only by its Vice-President, which, in her view, is contrary to Article 51 of the Constitution.
A
50. As regards the group of objections concerning the alleged contradiction of the adoption of the Law on the Registration of Sales with the principles of making political decisions, the Constitutional Court first states that the criteria of the constitutionality of the legislative process were dealt with in a number of its findings, in which it formulated the starting points fully applicable even in the present case. In the decision of 2.10.2002 sp. zn. The Constitutional Court stressed - and the appellant itself refers - that state power can only be exercised in cases, within the limits and in the procedures laid down by law. It follows that "not [...] any will of a parliamentary body, but only one that, whether it be a constitutional or simple law (its Rules of Procedure), respects and emerges from its limits, can become a law '. On the other hand, the finding of 15.2.2007 sp. zn. The Constitutional Court pointed out that formal defects in the legislative process cannot without further delay lead to the deregulation of the legislation under consideration, since such possible interference by the Constitutional Court must always be measured in relation to the principle of legitimate trust of citizens in law, the principle of legal certainty and the protection of acquired rights. In the judgment of 1 March 2011 in Case C-55 / 10 ÚS (N 27 / 60 SbNU 279; 80 / 2011 Coll.), the Constitutional Court stated that it was, in the context of the implied restraint, to derogate from the law which took account of the procedural defects of its legislature, if, in the legislative process, it was directly in breach of the Constitution or any other part of the constitutional order, or in breach of one of the provisions of the so-called sub-constitutional law (for example, the Rules of Procedure of the Chamber of Deputies), but always in the event that the infringement was acquired by a constitutional dimension. In such cases, the reason for the intervention of the Constitutional Court is in particular the protection of free competition between political parties and the protection of minorities, in particular the parliamentary opposition (cf. Articles 5 and 6 of the Constitution and Article 22 of the Charter). This basis was applied by the Constitutional Court, for example, in a finding of 27 November 2012 sp. zn. Pl. ÚS 1 / 12 (N 195 / 67 SbNU 333; 437 / 2012 Sb.), in which it stated that although the Rules of Procedure of the Chamber of Deputies had been infringed in the present situation, it was not" a failure of such intensity as would have been able to establish, in view of the overall assessment of the way in which the contested laws were adopted, their non-compliance with the constitutional order' (cited in accordance with paragraph 217 of the above). This was in the view of the Constitutional Court because the result of the legislative procedure as a whole was - by the Constitutional Court at the time - the laws in which all parties involved had the opportunity to become aware of the content of the procedure, to give their (legally foreseen) opinion to them and to present this opinion publicly (and not only on parliamentary ground), or to propose amendments to these draft laws (cf. paragraph 218 of the decision, page 1 / 12).
51. In addition to these conclusions, it should also be recalled that the Constitutional Court recently decided on the constitutional complaints of individual Members and Members of the Chamber of Deputies against (a) the resolution of the Chamber of Deputies of 10 February 2016 on the conclusion of the debate at the third reading of the Government's draft law on the registration of sales (Parliament's press 513), approved by vote No 28 in the context of the 37th meeting of the Chamber of Deputies, (b) the resolution of the Chamber of Deputies of 10 February 2016 on the acceptance of the Government bill on the registration of sales in the wording approved by the Chamber of Deputies, and (c) another intervention by the public authority in the procedure of the President of the Chamber of Deputies, which prevented the complainants from hearing in its third reading of the draft law. To this extent of the objections, their constitutional complaints and now the proposal to repeal the law under Section 64 of the Constitutional Court Act overlap. These constitutional complaints were rejected by the Constitutional Court by a resolution of 24 May 2016 in sp. zn. Pl. ÚS 11 / 16 (available at http: / / nalus.ujud.cz), as they were proposals for which he was not competent [cf. § 43 (1) (d) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Law No 77 / 1998 Coll.]. In fact, the complainants did not challenge a valid (declared) law or its individual provisions, but requested that the Constitutional Court intervene in the course of the legislative process and repeal only the procedural resolutions adopted prior to its conclusion. The assessment of such a proposal clearly goes beyond the powers of the Constitutional Court, and if such a proposal is debated, the Constitutional Court would thus exceed the powers conferred on it by the Constitution. Moreover, the applicants at the time did not act as holders of fundamental rights, but as part of the public authority - individual complainants could not be considered as natural persons entitled to lodge constitutional complaints. On the contested procedure of the President of the Chamber of Deputies (which prevented complainants from speaking at third reading when discussing the government bill on the registration of sales), the Constitutional Court pointed out, referring to its case-law, that in the present case it is not a so-called other intervention by a public authority, since the procedure of the President of the Chamber of Deputies falls within the very internal management power in which it is not for the Constitutional Court to intervene.
52. These conclusions are therefore stated by the Constitutional Court that, in this case, it has been submitted for consideration a proposal which it is competent to assess, but the appellant, to the extent of the problems raised by the legislative process, once again - and as has been incorrectly explained - argues that it tends to classify these defects as interference with the fundamental rights of Members, and that the aforementioned procedure of the President of the Chamber of Deputies refers to "another intervention of state authority '. However, other bases are relevant when checking the standards, as has been shown in a brief summary of the case law found. In particular, it is essential that Members of Parliament have a real opportunity to get to know the content of the proposed proposal and to have an opportunity to take their position on it [cf., the already cited finding sp. zn. Pl. ÚS 55 / 10 or the finding of 19.4.2011 sp. zn. ÚS 53 / 10 (N 75 / 61 SbNU 137; 119 / 2011 Sb.)]. In the decision of 30 June 2015 sp. zn. Pl. ÚS 21 / 14 (N 122 / 77 SbNU 759; 199 / 2015 Coll.), the Constitutional Court added that" [O] face [the possibility to become familiar with and comment on the draft law] is a confrontation for the adoption or non-adoption of the relevant bill, where representatives of citizens must publicly justify and defend their proposals and the public has the opportunity to control their activities. This possibility of confronting positions on parliamentary ground is a guarantee of free competition between political forces [...]'.
53. The third reading of the bill on the registration of sales took place at the 37th meeting of the Chamber of Deputies on 18 December 2015, 8. 1. 2016, 22. 1. 2016, 29. 1. 1. 2016 and 10. 2. 2016, that is to say, on the scheduled days of the meeting which are due for Wednesday and Friday in accordance with the conditions laid down in Sections 95 and 95a of the Rules of Procedure of the Chamber of Deputies.
54. On 29 January 2016, Mr Jaroslav Faltýnek came before the Member and said: "Allow me, my fellow Members, to speak with a certain procedural proposal and to put the debate back, in fact, on the subject that we are dealing with here. We are discussing today, if I have counted correctly, the 38th hour in the first, second and third reading, to this law. And I believe that all arguments against or for this debate, or for most of them, have been made, even though they are constantly repeated by the petitioners and by the opponents. I believe that the 38 hours of debate are sufficient time to discuss all these mutual views. Therefore, let me propose that we vote in a procedure without debate that the Chamber of Deputies of the Parliament of the Czech Republic will be on the government bill on the registration of sales, House Press 513, Third reading, and on the government bill amending certain laws in connection with the adoption of the Act on the registration of sales, House Press 514, Third reading, and on the proposed amendments to these prints at 11: 00 on Wednesday 10 February 2016. 'The vote on this proposal is registered under number 26. Of the 94 Members applied for, 81 Members voted against.
55. On 10 February 2016, the President of the Chamber of Deputies of the Parliament of the Czech Republic Jan Hamáček, as President of the 37th Meeting of the Chamber of Deputies, said: "Yes. It is 11: 00 and we will proceed to the vote in accordance with the resolution of the Chamber of Deputies. We need to end the debate, which we will decide by voting, which I have started, and I ask who agrees to close the debate to press the button and raise his hand. (Noise and protests in the hall.) Who is against this proposal? The vote is number 28, 157, for 96, against 50, this proposal has been adopted. '
56. Subsequently, Mr Zbynek Stanjura objected to the action of President Jan Hamáček, who put to the vote to end the debate, despite the fact that no one has made such a proposal. Then Jan Hamáček replied that it was his own proposal and his own decision. This was objected to by Mr Miroslav Kalousek, who said that it was impossible to vote on the proposal (that is, Jan Hamáček's proposal to close the debate), which was presented from the chair's seat. The vote was subsequently taken on the objection of Zbyňka Stanjury and Miroslav Kalousek (votes 29 and 30); the voting majority did not support the objections. Voting No 42 then adopted Resolution 1068 by which the Chamber of Deputies gave its assent to the bill on the registration of sales, according to House Press No. 513, as approved by the Chamber of Deputies.
57. In accordance with Rule 58 (4) of the Rules of Procedure of the Chamber of Deputies, "[k] do not appear in the Chamber at the moment of his being given the floor. If he is not present even immediately before the end of the debate, his application is forfeit. [...] If you wish to take part in the debate, it shall forward [pursuant to paragraph 5 of the same provision] the management of the meeting '. According to Rule 59 (1) of the Rules of Procedure of the Chamber of Deputies," the Chamber of Deputies may, without debate, decide to limit speaking time, which may not be less than ten minutes. The limitation of speaking time shall not apply to Members responsible for bringing an opinion to the parliamentary club'. Under Rule 59 (2) of the Rules of Procedure of the Chamber of Deputies, "the House [...] may, without debate, decide that a Member may speak on the same issue no more than twice. [...] The Member is to speak to the present case (pursuant to Rule 59 (4) of the Rules of Procedure of the Chamber of Deputies). If it deviates or exceeds the speaking time, the President may draw the attention of the Member and call him to the matter. If a Member deviates from the limits of decency, the President may call him to order. If there is no double warning to remedy, the word may be withdrawn. Members' objections to the decision to withdraw shall be decided by the House without debate '. According to Rule 66 (1) of the Rules of Procedure of the Chamber of Deputies" [The President will close the debate if there are no other speakers in the debate. [...] On completion of the debate [in accordance with paragraph 2], the President shall give the final floor to the appellant and the rapporteur. Both the appellant and the rapporteur may give up their final words. [...] The House (referred to in paragraph 3) may decide, without a debate, to reopen the debate until the vote on the final resolution is opened. The debate shall also be resumed if a member of the Government takes the floor before the vote on the final resolution. The provisions of paragraph 2 shall apply mutatis mutandis to the end of a newly opened debate'. According to Rule 95 (2) of the Rules of Procedure of the Chamber of Deputies, "[v] e third reading [...] is held a debate in which it can be proposed only to correct legislative technical errors, grammatical errors, written or press errors, modifications which logically result from the amendments tabled or, where appropriate, to propose a repeat of the second reading '.
58. It follows from the citation of the above provisions of the Rules of Procedure of the Chamber of Deputies that the restriction or termination of the debate on the draft of the Law under review at third reading was not carried out in accordance with the law (specifically in accordance with the Rules of Procedure of the Chamber of Deputies, where neither the Constitution nor any other part of the constitutional order itself provides details in this respect), both by the Chamber of Deputies itself and by its President. This, despite the fact that the option given by the Law to the President of the sitting to guide the debate has not been used (e.g. the withdrawal of the speech, if the speaker deviates from the present case, the content of the third reading debate is rather closely defined in Section 95 (2) of the Rules of Procedure of the Chamber of Deputies). Therefore, it remains to be assessed whether these defects (or defects) of the legislative process when adopting the draft law on the registration of sales have reached such an intensity as to allow the Constitutional Court, despite the considerable restraint, to derogate from that law. However, the Constitutional Court - also in view of its case-law - could not testify to such a view because it did not find that there had been a breach of the rights of the opposition or the principles of the democratic rule of law in the field of "parliamentary 'law in general, or in such an alleged intensity.
59. First of all, reference must be made to Article 95 (2) of the Rules of Procedure of the Chamber of Deputies, according to which, in the context of the third reading debate, it is only possible to propose a correction of the legislative, grammatical, written or printing errors which logically result from the amendments tabled, or to propose a repetition of the second reading. From the point of view of the limits laid down in this provision, any intervention in constitutional protected values and principles - as has just been defined - is somewhat less identifiable, although it is certainly not entirely excluded. However, the appellant itself does not offer more detailed arguments in the context. On the contrary, it is clear from the length of the third reading debate (see above) that the purpose and purpose of Paragraph 95 (2) of the Rules of Procedure of the Chamber of Deputies has been fulfilled. For this conclusion, not only is the number of days in which the third-reading debate took place, but also its overall time distribution starting in December 2015 and ending in February 2016. Under these circumstances, it can be concluded that sufficient space has been created both for the possible correction of errors (including the possibility of responding to amendments) and for the submission of a proposal for a repeat second reading.
60. In addition to this framework - and only to supplement it - it can be noted that the draft law on the registration of sales was communicated to both the professional and lay public [from publicly available sources (http: / / www.eltrzby.cz), that the Ministry of Finance held expert conferences and lectures on the subject, and the draft law was addressed by various interested and professional entities with whom the draft law was consulted (cf. For example, the SME and business association project of the Czech Republic also available at http: / / www.eltrzby.cz or the Czech Economic Chamber project available at https: / / www.eet- anoale.cz). Without doubt, this has strengthened the social debate reflecting the feedback on the proposed bill.
61. In addition to this "material" or "content" aspect (that is to say, an aspect affecting what the law provides to be), it is, of course, not possible to ignore the procedural side of the problem described. Public law decisions, including the procedure of parliamentary bodies, are based on rules that monitor the rationality, clarity and control of their procedure (initialled according to Filip, Jan. The House's repeated vote as a constitutional problem or a parliamentary majority cannot do everything that the Rules of Procedure expressly do not prohibit it. Legal Science and Practice Journal 2001, No 4, p. 342). The described procedure of the then President of the Chamber of Deputies Jan Hamáček did not comply with these rules, but there was no distortion of the fundamental assumptions for the adoption of generally binding legislative acts, namely the continuity and commitment of the legislative body's own decisions (here the Chamber of Deputies). These assumptions have been met in the present case and the Chamber of Deputies has maintained what it has decided [cf.], for example Pierre, Eugène, in the broader context. Traité de droit politique électoral et parlementaire. Supplement. 4th edition. Paris: Librairies-imprimeries réunion, 1919, p. 1191 et seq. (available online at http: / / gallica.bnf.fr)].
62. If the appellant claims, in connection with the objections to the defects in the legislative process, that, according to her conviction by the parliamentary majority, it was a pre-prepared "organised organisation '(cf. literally Chapter 2.4 of her proposal), conducted for the purpose of violating the legal order of the Czech Republic, then the Constitutional Court states that she is a judicial body for the protection of constitutionality and is not entitled to assess the political reasons for the above described procedure of the Chamber of Deputies or its President. Otherwise, it could become part of the political struggle itself, and therefore failed to comply with the proposal and did not go to the hearing by the appellant in the narrative part (point 4 i. F.) of the designated witnesses.
63. Therefore, it remains to be concluded that there has been a procedural error in the process of adopting the Acquisition Act. However, the Constitutional Court did not agree to derogate from the Law on the registration of sales because of this error, as this would be contrary in the present case to the values of the rule of law, in particular the principle of legal certainty (Article 1 (1) of the Constitution) and to the principle of the protection of constitutionality [Article 83 and Article 87 (1) (a) of the Constitution] - cf.
B
64. If the appellant criticises the law under review for the absence of the signature of the President of the Chamber of Deputies, then in this context the Constitutional Court did not fail to see that, at the same time, it did not clearly formulate the consequences that such - its alleged defect - should have. Article 51 The Constitution empowers the President of the Chamber of Deputies, the President of the Republic and the Prime Minister to sign the "adopted" Act. Parliament has therefore clearly shown its will, and the signatures in question are an act of purely formal, certifying only the fact that the law has been adopted [e.g. V. Knapp states to the effect of signing the law by constitutional officials that "they do not have the nature to confirm its validity, to take effect, nor are they a necessary condition for its publication..., the signature [is] merely a certificate of the adoption of the law..., for the bodies of signing the law only means the obligation to sign the approved law ', in the creation of the law and its rules. Legal advisor. 1996, No 3, 4 (Annex), p. XV; cf. a.k.a. Weyr, F. Czechoslovak Constitutional Law. Praha: Melantrich, 1937, p. 199]. Therefore, the signature of the constitutional factors referred to in Article 51 of the Constitution is not a condicio sine qua non for publication and thus for the validity and effectiveness of the adopted law (see Sládeček, V. Article 51 (Signing of laws). In: Sládecek, V., Mikule, V., Suchanek, R., Syllova, J. Constitution of the Czech Republic. Comment. Issue 2. Praha: C. H. Beck, 2016, p. 518; Hřeběk, J., In: Pavlicek, V., Hřeběk, J. Constitution and constitutional order of the Czech Republic. Comment. Episode 1. The constitutional system. Issue 2. Praha: Linde, 1998, p. 197; Syllova, J. Article 51. In: Hendrych, D. et al. Constitution of the Czech Republic: comment. Issue 1. Praha: C. H. Beck, 1997, p. 76]. The specialised literature also concluded that" the President of the Chamber of Deputies, by his signature, certifies that the law has been adopted following the procedure in Parliament; confirms the correct procedure in the procedure for adopting the law "(Høeběk, J., cit. d., p. 196). The Constitutional Court, in its decision of 14.7.2005 sp. zn. Pl. ÚS 23 / 04 (N 137 / 38 SbNU 9; 331 / 2005 Coll.), was indirectly in agreement with this view, because it distinguished between the signature of the President of the Chamber of Deputies in the resolution followed by the draft law to the Senate and the signature under the adopted law pursuant to Article 51 of the Constitution; in the first instance, according to the Constitutional Court, the signature of the President of the Chamber of Deputies has a function of identification and verification, in the second case - i.e. under the regime of Article 51 of the Constitution - only the function of notification (according to V. Schorma, the law only signs" as a sign of the termination of the legislative process "in Parliament - Schorm, V. Several words on promotion or are Czech laws signed, promoted and declared? In: Honor doc. JUDr. Vladimir Mikule for 65th birthday. Praha: ASPI, 2002, p. 138). This also means that the President of the Chamber of Deputies ensures that the bill resulting from the legislative process in Parliament is drawn up in writing. He is therefore not entitled to refuse to sign the adopted law, even if he had doubts about its constitutionality, whether in substance or procedural [Suchanek, Art. 51 (Signing of laws). In Bahěľová, L., Filip, J., Molek, P., Podrazký, M., Suchanek, R., Šimělek, V., Zeměnek, L. Constitution of the Czech Republic. Comment. Praha: Linde Praha, 2010, p. 622]. Constitutional practice, which, with reference to paragraphs 29 (1) (g) and 30 (1) and (2) of the Rules of Procedure of the Chamber of Deputies, allows the representation of the President of the Chamber of Deputies and in the signing of laws (as in the case of the Prime Minister, the representative of the Deputy Prime Minister), although the Constitution itself is silent, can be accepted from a constitutional point of view (see Sukánek, R. there, and cf. Hřeběk, J., cit. d. 198). After all, commentary literature did not overlook [expressly Herc, T. Article 51 (Signing of laws). In: Rychetský, P., Langášek, T., Herc, T., Mlsna, P. et al. Constitutional Law on Security of the Czech Republic. Comment. Prague: Wolters Kluwer, 2015, p. 499 and 501], that with regard to the dissolution of the Chamber of Deputies in 2013, 15 laws were referred to the Office of the Chamber of Deputies of the President of the Republic and signed by the President of the Republic [one of these laws was subsequently subject to constitutional review by the Constitutional Court - see the finding of 23.8.2016 sp. zn. Pl. Pl. ÚS 16 / 15 (334 / 2016 Coll.), and paragraph 36 of the judgment of 11.7.2017 sp.
Evaluation of the actual content of the contested law and its individual provisions
1. Assessment of the constitutionality of the Act on the registration of sales as a whole, in particular Sections 3, 4 and 6 of the Act on the registration of sales - the conflict between a reasonable violation of the constitutional rights of "small 'taxpayers of income tax
65. The text of the contested provisions of the Act is as follows:
Designation of the entity and subject matter of the sales records
(1) The subject of the registration of sales is the taxpayer
(a) income taxes on natural persons; and
(b) corporation tax.
(2) The subject of the sales records is the registered sales of the taxpayer.
Definition of registered sales
(1) The revenue shown is a payment which fulfils the formal requirements for registered sales and which establishes the revenue in question.
(2) The sales recorded are also payments which meet the formal requirements for registered sales and are:
(a) intended for subsequent drawing or settlement, which constitute the income in question; or
(b) by the subsequent drawing or settlement of the payment giving rise to the revenue in question.
Determined income
(1) For the purposes of this Act, the operative income shall be:
(a) in the case of a natural person's income tax payer, income from a separate business activity, excluding income which:
1. is not subject to income tax;
2. is unique from the point of view of usually accepted sales, or
3. is subject to tax levied by withholding at a specific rate of tax; or
(b) in the case of a corporation tax payer, income from an activity which is an enterprise, excluding income which:
1. is not subject to income tax;
2. is unique from the point of view of usually accepted sales,
3. is subject to tax levied by withholding at a specific rate; or
4. is subject to tax on a separate tax base.
(2) The income referred to in paragraph 1 shall be the income of the taxpayer who is an entity under the Income Tax Act which the taxpayer would have had if he were not an entity.
(3) For the purposes of this Act, the income of a public company and a limited company is also the income of a public company and a limited company which is subject to income tax with its shareholder. This income is not the income of this shareholder for the purposes of this Act. '
66. According to the appellant, the obligation to register sales electronically for "small 'income tax payers is excessively burdensome. The registration of sales for these entities does not provide for any simplification, thereby undermining their fundamental right to the protection of property pursuant to Article 11 of the Charter, as well as the right to do business under Article 26 (1) of the Charter. This argument was supplemented by a submission dated 20 December 2016, referring to the difference between a set of entities with an obligation to electronically register sales and a set of entities with an obligation to report checks under the Value Added Tax Act. Finally, as mentioned above, on 14 November 2017, the appellant modified its proposal in such a way that the Constitutional Court should repeal the law on the registration of sales at least against entrepreneurs whose income is less than CZK 1,800,000 per year.
67. The appellant's argument must firstly be noted that the Act on the Registration of Sales does not entail any tax or other obligation that would directly and intentionally affect the property sphere of those affected by the obligation of registration. This is recalled by the Constitutional Court only because many taxpayers of electronic equipment which complies with the requirements of the Act cited, which they owned and used regardless of the newly imposed registration obligation. Moreover, tax laws have previously imposed an obligation on tax entities to register and, eventually, to prove their income for the relevant period. Therefore, it remains to be assessed whether the newly imposed form of the registration obligation is unduly burdensome.
68. As stated above, the appellant claims, on the one hand, that there is an intervention in the right to protection of property and, on the other hand, that there is a right to do business without differentiating arguments between these two fundamental rights. It is clear that, in view of the nature of the adjustment under consideration, it is necessary to assess as the primary intervention in the right to engage in business, with the intervention in ownership being secondary and manifesting itself in the alleged non-constitutional restrictions, or even by preventing business.
69. The Constitutional Court recalls at this point that, in accordance with Article 26 It is necessary to distinguish between access to the right to do business (namely freedom of business - paragraph 1) and the pursuit of a profession or other economic activity and the conditions associated with that exercise (paragraph 2). In this context, it should be recalled, first of all, that the right to do business is included in the title of the Fourth Charter as so-called economic, social and cultural rights. The Constitutional Court has dealt with these rights repeatedly in its case law. For example, in the finding of the Constitutional Court of 23.4.2008 sp. zn. The Charter is not directly applicable to the same extent as fundamental human rights or political rights. Article 41 (1) of the Charter, according to which the rights referred to in Article 26, Article 27 (4), Article 28 to 31, Article 32 (1) and (3), Article 33 and Article 35 of the Charter can only be invoked within the limits of the laws implementing those provisions, expresses the opinion of the legislator that the regulation of those rights is primarily in the hands of the legislator and that, in a secondary and limited manner, the constitutional guarantee of economic, social and cultural rights can be considered a question of justice.
70. Following this, the Constitutional Court, for example, found on 5.10.2006 sp. zn. The Charter and the very nature of those rights exclude that the methodology of their review is identical to that used in relation to other fundamental rights (in particular in Title II of the Charter). Thus, the constitutional test in this sense will also be passed by a legal regulation that can detect the pursuit of a legitimate objective and which does so in a way that can be seen as a reasonable means of achieving it, even if it does not have to be the best, the most appropriate, the most effective or the wisest. Having regard to Article 4 (4), At the same time, however, the Constitutional Court noted that the legislature's discretion is not (or from a constitutional point of view) unlimited even in the field of the regulation of social and economic rights and can be subject to review by the Constitutional Court.
71. On the basis of these grounds, the Constitutional Court has constructed the so-called "Sensitivity Test '(distinct from the proportionality test) as a methodological tool for reviewing the legislator's intervention in the area of constitutionally guaranteed rights in the title of the Fourth Charter. Standards of review of constitutionality in the case law of the Constitutional Court. Jurisprudence. OJ L 347, 20.12.2013, p. 671. The sensitivity test reflects both the need to respect the legislator's rather extensive discretion and the need to rule out its possible excesses and consists of four following steps:
1. Definition of the meaning and substance of the fundamental right, namely its essential content.
2. Assessment of whether the law does not affect the very existence of a fundamental right or the actual realisation of its essential content.
(3) Assessment of whether legal arrangements pursue a legitimate objective; Therefore, whether it is an arbitrary fundamental reduction in the overall standard of fundamental rights.
4. Consider whether the legal means used to achieve it is reasonable (rational), although not necessarily the best, most appropriate, most effective or wisest.
72. In this context, it is therefore necessary, according to the Constitutional Court, to define the meaning and substance of the right to do business. The right to do business (or to pursue another economic activity - to pursue, or to pursue, a free profession - where this difference is not relevant from the point of view of the material under consideration) is not only of relevance to the purely economic (reflecting economic indicators such as living standards, etc.) but also constitutes a means of self-actualisation of the individual to fulfil his or her natural rights and thus constitutes the material nature of the rule of law itself, as enshrined, for example, in Article 1 (1) of the Constitution [cf. I. ÚS 504 / 03 (N 138 / 31 SbNU 227)]. In the decision of 23 September 2008, sp. zn. Pl. ÚS 11 / 08 (N 155 / 50 SbNU 365) - concerning primarily the right to freedom to choose a profession, however, its conclusions can also be drawn on the right to engage in business - the Constitutional Court stated that State authority must not impose unjustified obstacles on individuals in the selection and pursuit of otherwise lawful activities, provided that the individual has the necessary preconditions for such activities. Public subjective rights referred to in Article 26 (1) The Charter, by its nature, is ambivalent in that it does not only create the status of negative, that is to say, the above-mentioned area of freedom of autonomy of the individual, which is not for public authorities to intervene in, but is, to some extent, a public authority that makes the conditions for economic activity positive, thereby creating the very preconditions for their performance (as well as the status of positivus) - cf. Although fundamental rights under Article 26 of the Charter - as has already been explained - can only be invoked within the limits of implementing laws, the obligation to investigate the substance and meaning of fundamental rights (Article 4 (4) of the Charter) applies in this case, which means, inter alia, that the conditions for carrying out the economic activity must also take into account the possibility of making profits [cf. the finding of 23.5.2000 sp. zn. ÚS 24 / 99 (N 73 / 18 SbNU 135; 167 / 2000 Sb.)]. According to the Constitutional Court, it can therefore be summarised, for the purposes of this finding, that the meaning and substance of the right to do business are, on the one hand, an individual level (the possibility of individual self-determination), and, on the other hand, a material legal level, where such individual freedom is also a fundamental part of the democratic rule of law, and, on the other hand, an economic level (it is simply a profit that is partly taxed so that the State obtains the resources to perform its functions). The Constitutional Court therefore concludes that the introduction of electronic registration of sales of the substance and the meaning (Article 4 (4) of the Charter) of the right to conduct business does not infringe and the introduction of a new form of registration obligation is to be subsummed under Article 26 (2) of the Charter.
73. A very schematic way of describing the system of sales records is that electronic devices store data on transactions (transactions) in autonomous fiscal memory or send them by remote access to data storage sites operated by the tax administrator. The suggested procedure is further supplemented by, for example, a system of random checks by the tax administrator, etc. The obligation to register and the tax authorities to prove income from business activities arises from a number of valid and effective legal provisions [except for the Accounting Act, for example, Sections 7 and 23 of the Income Tax Act, according to which the income tax base constitutes the difference between taxable income and relevant expenditure (costs)]. In addition, the legislature of the chosen technical solution attaches itself to the existing obligations of tax entities and, as a result, only means that these obligations are more enforceable.
74. In the absence of the Constitutional Court's responsibility to assess any properties and parameters of these facilities (including Internet connection), it is not, for the reasons set out above, appropriate to compare the treatment currently under consideration, for example, with the situation with which the Constitutional Court has been confronted in proceedings conducted under sp. zn. On the contrary, the contested legislation takes into account, at least in part, any costs associated with the introduction and operation of revenue records [e.g. the Income Tax Act foresees a one-off discount on this tax (the discount may amount to a maximum of CZK 5,000 - cf. § 35bc of the Income Tax Act) and the introduction of revenue records is accompanied by the inclusion of food services under the first reduced rate of value added tax of 15% (cf. Annex 2 to the Value Added Tax Act).
75. From the above, the Constitutional Court concludes that the introduction of a new registration does not infringe any of the two fundamental rights (paragraph 68) (that is not its purpose), but it is the tax entity itself who, by choosing the appropriate technical solution (see a wide range of hardware and software products offered by a number of specialised entities), can prevent the negative and disproportionate effect of the registration of sales on its business. After all, the government can be told that a side effect will be a settlement of the business environment, which is undoubtedly a positive motive in this context. Even the appellant itself is not convincing that the new form of registration, in itself, has a "choking effect" on the business of smaller taxpayers or that it would undermine the very essence of their property.
76. Moreover, a similar argument was recently dealt with by the Constitutional Court of the Republic of Austria in its decision of 9 March 2016 sp. zn. G 606 / 2015 - cf. paragraph 3.2.3 of this decision; the decisions of this court are available at https: / / www.ris.bka.gv.at - in which it did not acknowledge the constitutional legal relevance of the requirement to increase turnover, which is linked to the obligation to use the register office, since he also did not argue that the new obligation would have a "smaller 'liquidation effect; On the contrary, he stressed the need to prevent the artificial reduction of turnover motivated by an attempt to avoid a new form of electronic registration.
77. For this reason, the Constitutional Court considers that the new form of registration infringes the very nature and meaning of the right to conduct business (or secondary right to own property), although individual cases can certainly occur in practice where tax entities, under the influence of the new form of registration, decide not to continue their economic activities, for example because they are not comfortable using new technologies.
78. In assessing whether the legislation under assessment pursues a legitimate objective, the Constitutional Court attaches to the argument put forward by the Government that the records of sales complement the existing system on the fact that the data on payments marked by a low or unclear degree of traceability vis-à-vis the tax administrator are publicly targeted. The aim of the sales records is also to equalise the business environment and to manage the tax more effectively in all market segments, regardless of the size of the tax entity, thus the aim of the sales records regulation is to effectively collect taxes as one of the sources of the resources used by the State to ensure its functioning and, respectively, the functions performed by it [cf. also House Press No. 513 / 0, VII. Justification of the main principles of the proposed legislation]. The fact that the evidence contributes to the achievement of these objectives is not even questioned by the appellant itself.
79. Finally, it remains to be determined whether the record-keeping of sales can still be regarded as a reasonable means of leading to the stated objective. In order to answer this question, it is necessary, according to the Constitutional Court, to compare the possible solutions that the legislator may have chosen instead of electronic registration. An alternative to electronic online records is either the management of the current "continuous" records, for example under the Accounting Act, where, even in the current situation, the tax entity must spend its resources and efforts and, in checking the tax administrator, document the correctness of the tax granted and paid by it. In between the online option under assessment and the current registration method, registration cash registers with autonomous fiscal data storage are used abroad (for example, the system of registrations has already been introduced in Italy under the Act of 1983, since 1 January 2017 the online regime has been in place). The completion of the existing system by means of a solution based on a register with an autonomous fiscal data repository would certainly meet the basic objective (i.e. streamlining the collection of tax), but would nevertheless entail a burden on tax entities to acquire new equipment (therefore, a fundamental difference cannot be observed in this respect) and, moreover, this option would require regular collection of data. Thus, if the legislator has decided on an online solution, he has chosen a path along the lines of today's trend on the threshold of the IV Industrial Revolution (cf. Gilchrist, Alassdair, for example. Industry 4.0: The Industrial Internet of Things. New York: Apress, 2016). Thus, the solution chosen in the legislation can be regarded as reasonable from a constitutional point of view.
80. It is not the task of the Constitutional Court to determine for itself which entrepreneurs are to be involved in sales and which are not. If he found out that the legislature's choice of solution - the electronic record of sales here - was not constitutional for whatever reason or against any of the addressees, he would go for his deregation. If the appellant refers, without essentially any argument (cf. Recapitulation from above), to the finding of sp. zn. Pl. ÚS 28 / 13, then its reference is not appropriate, since the matter concerned a completely different issue (judge's salary) and, moreover, in the proceedings sp. zn. The Constitutional Court therefore examined the application submitted to it at the time by the procedural aspects corresponding to the procedure from which that proposal came. In this context, it is not possible to overlook the various proposals by political entities to adjust the personal scope of the Market Records Act, which provide sufficient scope for the use of legislative initiatives and their subsequent projection into legal regulation.
2. Inproportional burden on the taxpayer caused by the synergy effect between the register of sales and the control report - restriction of the right to do business under Article 26 (1) of the Charter
81. The applicant submits that the cumulation of the obligations arising from registration and from the submission of the inspection report has a "small" and "medium" business effect. "On this heading of objections, the Constitutional Court must first point out that the constitutionality of the Institute of Control Reports pursuant to Sections 100 and 101c et seq. of the Value Added Tax Act has recently been addressed and the annulment of the Institute of Audit Reports of 6 December 2016 sp. zn. The Constitutional Court notes, in addition to the allegation of a negative synergy effect, that the appellant does not give this argument too much argument when it is satisfied with essentially a disproportionate bureaucratic burden. From the case law of the Constitutional Court and of the Supreme Administrative Court [cf., for example, the finding of 20.5.2008 sp. zn. Pl. ÚS 1 / 08 (N 91 / 49 SbNU 273; 251 / 2008 Coll.) or the Supreme Administrative Court judgment of 8.4.2015 No. 1 Afs 43 / 2015-39 (the decision of the Supreme Administrative Court is available at http: / / www.nsjus.cz)], however, it follows that the" choking effect 'is referred to when the legislator chosen creates a barrier to the exercise of the guaranteed fundamental right (thus the exercise of business).
82. However, the appellant does not assert that (or does not put forward any relevant arguments), nor did the Constitutional Court find such synergies between the register of sales and the control report. The control reports of tax entities subject to obligations under the Value Added Tax Act require the electronic form to be completed at regular intervals and the authorisation channels (always via the Internet) sent to the tax administrator. The records of sales automatically (again over the Internet) send the tax administrator information about payments received by the tax entity in a legally defined form. It can certainly be agreed with the appellant that a large proportion of the tax entities subject to value added tax (and "burdened 'by the control report) will also be obliged to use the sales records. In such a case - and the appellant's argument on that point - it would be appropriate for both registration systems to be covered by one software solution. However, in the view of the Constitutional Court, the relationship between the register of sales and the control report (or the information contained therein) is not a burden that lacks reasonable reasons. Therefore, this is not a situation where the tax administrator could simply ascertain from the sales records, for example, whether and to what extent the value added tax deduction was applied. Thus, in the given session, the finding of 2 December 1998 sp. zn. ÚS 46 / 97 (N 148 / 12 SbNU 371; 312 / 1998 Sb.), when the Constitutional Court had already identified itself against the new obligation imposed on heavily disabled persons twice a year, where it assessed as a non-constitutional obligation for men (and only men) to apply for an application for an application for a pension insurance scheme, is to be considered in accordance with the law for a person caring for a child until four years of age or older. According to the Constitutional Court, the whole matter can be explained in a simplified manner (although sufficiently appropriate), in such a way that not every goods or services provided are" automatically' in which tax liability under the Value Added Tax Act falls (the Value Added Tax Act then distinguishes between, inter alia, whether domestic transactions are granted, whether the payer granting the tax is a person established in the country, etc.; pursuant to Section 19 (2) of the Market Registration Act, the system contains only data on the basis of value added tax and the tax itself according to the tax rate applied, or the total amount in the value added tax scheme for travel services and the sale of goods used). With regard to information technology, it is conceivable that data on value added tax should be processed together with data resulting from sales records, but it is not data that the tax administrator can identify or obtain from another authority, for example. It is simply a tax entity that has an influence or codetermines a significant proportion of these variables. It is, therefore, finally he who must fill them in the prescribed information structure. However, we are already looking for an answer to the question of the suitability of which technical solution, as mentioned above; However, such considerations are completely outside the constitutional legal dimension.
3. Dispute of registration of privacy sales
83. As stated by the Constitutional Court in its recent finding sp. zn. The finding of sp. zn. Pl. ÚS 32 / 15 specifically refers to the finding by which the Constitutional Court annulled the selected provisions of Act No. 127 / 2005 Coll., on Electronic Communications and on the amendment of certain related laws (the Act on Electronic Communications), as amended, by which the Czech legislature transposed Directive 2006 / 24 / EC of the European Parliament and of the Council of 15.3.2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or public communications networks and amending Directive 2002 / 58 / EC, hereinafter "Directive 2006 / 24 / EC '[it was found on 22.3.2011 sp. In its judgment of 8 April 2014 in joined cases C-293 / 12 and C-594 / 12, which declared the directive to be invalid, the Constitutional Court - and subsequently the Court of Justice of the European Union, in its judgment of 8 April 2014 in joined cases C-293 / 12 and C-594 / 12, respectively - stressed the importance of respect for private life and the right to information self-determination. One of the primary functions of the law and the state in democracy, according to the Constitutional Court, is the provision of space for the development and self-evaluation of individual personality. In addition to the traditional spatial understanding of privacy (protection of dwellings) and the possibility of creating social relations undisturbed by public power, the right to respect for private life and the guarantee of self-determination in the sense of individual decision-making is a right. This right to information self-determination - enshrined in particular in Article 10 (3) of the Charter - means, as a result, an opportunity for an individual to decide whether, to what extent and in what circumstances his privacy information is to be made available to other bodies. The said one is of decisive importance not only for the free development and self-renationalisation of an individual in society, but is a condition for the functioning of the state itself, if it is to be democratic and legal, because, on the contrary, in the conditions of an ubiquitous state (in the form of a" Big Brother "), not only the right to privacy is illusory, but also one of the pillars of our socio-cultural circle, the possibility of free choice. Following the legislation under consideration at the time, the Constitutional Court added that, thanks to the development of the Internet and mobile communications, thousands of information interfering with the privacy of each individual are constantly recorded and made available, although it deliberately did not allow anyone to enter it. To these conclusions, the Court of Justice of the European Union, in the judgment cited above, added that, in order to assess the conformity of Directive 2006 / 24 / EC with primary European law - given the other circumstances - it was not significant that it did not allow itself to be acquainted with the content of electronic communications transmitted by mobile networks or Internet (mobile operators and Internet providers so simplified to monitor" who, who, how long, how often and from where, but not what they communicate). In fact, only the retention of schematically indicated secondary information could, according to the Court of Justice of the European Union, have an unacceptable impact on the use of means of communication and thus on the exercise of freedom of expression. In addition, the fact that the retention and subsequent use of such information took place without informing the persons concerned, in which, according to the Court of Justice of the European Union, it may have given the impression that their privacy is under constant supervision.
84. The task of the Constitutional Court is therefore to assess whether the legislation contained in the Law on the Registration of Sales will stand up to the protection of the privacy of a tax entity and its right to information self-determination, in the light of the case-law conclusions of the Court of Justice of the European Union [when both courts take into account the case-law of the European Court of Human Rights but also, for example, the Federal Constitutional Court of Germany (cf.
85. First of all, the Constitutional Court had to assess whether the conclusions of the most recently cited decisions could affect the commercial (professional) activities of tax entities. It was based on the relevant case law of the European Court of Human Rights (cf., for example, the often cited Niemietz decision against Germany of 16.12.1992, the reference number of complaint 13710 / 88, or the more recent judgment in Wieser and Bicos Beteiligungen GmbH against Austria, the reference number of the complaint 74336 / 01) in which the European Court of Human Rights took the view that it was not possible or necessary to try to find an exact definition of "privacy 'or" private life'. This is particularly because, for certain professions, it is essentially impossible to determine whether the entity is working or engaged in private life at a particular time (cf. Given the wide range of tax entities affected by sales records, even in this case, it is not appropriate to distance itself from the suggested understanding of the autonomous sphere (privacy). Finally, the Constitutional Court pointed out in the sp. zn. Such a comprehensive picture - due to the data observed (cf. below) - in the case of sales records is not [in view of the different degree of protection in the relevant social links - the position of a public person, the position of a private person in contact with other private persons (work, business), the position of a private person in contact with the family and the intimate sphere of a private person], however, the information obtained by the electronic record indicates certain aspects of the activities of the tax entity.
86. It must also be assumed that the right to privacy with all its modalities (cf. Articles 10, 12 and 13 of the Charter) is included in the title of the second Charter, designated "Human Rights and Fundamental Freedoms'. In the present situation, therefore, the right to privacy (autonomous sphere of a particular entity) is not available in the legislature within the meaning of Article 41 (1) of the Charter, as was the case with the right to do business, but, on the contrary, its possible restriction must be maintained in a more stringent - by the Constitutional Court normally used - a proportionality test which is not limited solely to the protection of the substance and the meaning of the fundamental law (freedom), but which is measured by the criterion of appropriateness. The Constitutional Court uses the method referred to in the Constitutional Court's case-law as a test of proportionality with the order for optimisation [to be generalized in comparison with the reference referred to above: Cervínek, Zdeněk. Standards of review of constitutionality in the case law of the Constitutional Court. Jurisprudence. 2015, No 4, p. 21-29, or the finding of 12.10.1994 sp. zn. The proportionality test with the order for optimisation consists of three steps: 1. suitability testing, i.e. whether the legislator of the chosen measure is capable of achieving the objective pursued; 2. whether the legislature's choice of solution in the pluralism of possible (and equally effective solutions) is most respectful of the fundamental rights concerned; 3. Examination of whether the negative associated with the legislator adopted by the measure will not obscure the positive effect observed (this means considering a conflict of standing constitutional values).
87. The objective followed by the legal regulation of sales records has been identified in the reasonable test, which technically means increasing the identification of less traceable payments and practically improving tax collection, in particular income tax. It was also apparent from the proportionality test that the measures (i.e. electronic registration) specified in the legislation under review were able to achieve the stated objective. It has also been found that none of the alternative methods - i.e. current accounting records based on individual documents, where the tax granted and paid must correspond to these documents, or the system of registers used abroad - is comparable to the electronic record of sales (measured in terms of efficiency).
88. It remains, therefore, to determine - this time in relation to the right to the protection of the autonomous sphere (privacy) and to the right to the information self-determination of a tax entity - whether the new form of registration does not restrict the appointed fundamental rights to the extent that it goes beyond the positive elements that it brings in the form of protection of the public interest - that is, in improving tax collection -. The quoted finding of sp. zn. The related powers granted to competent authorities must be strictly defined in order to provide individuals with protection against arbitrary interference in their rights. In the find sp. zn. Pl. ÚS 32 / 15 The Constitutional Court noted that it was difficult to imagine an effective tool of the tax administrator, which would not collect data on transactions of tax entities which, by nature, are more or less linked to the collection of certain personal data [here the Constitutional Court referred, inter alia, to Sections 11 (1) (b) and (c) of the Tax Code]. However, the scope of the data required of a tax entity must be specified by law, provided that the specific data can be determined in the form of a statutory law. According to the Constitutional Court, on the other hand, it is also not possible to overlook the limit laid down in Paragraph 9 (3) of the Tax Code, according to which the collection of data by the tax administrator is possible only as long as it is strictly necessary for the correct identification and determination of the tax and for ensuring its reimbursement. In addition, the Constitutional Court mentioned that the tax rules themselves ensure the protection of personal data and other information (cf. Moreover, the data protection arrangements are not limited to their actual processing by the tax administrator, but are also linked, for example, to Act No. 106 / 1999 Coll., on Free Access to Information, as amended, etc.
89. According to Article 5 of the Law on the registration of sales, the payment to the taxpayer is recorded in the electronic register, which is carried out:
(a) cash;
(b) a cash-free transfer of funds by the payer's order through the payee to whom the payer is to register the proceeds;
(c) by cheque,
(d) a note,
(e) in other forms which are of a similar nature to those referred to in (a) to (d); or
(f) by offsetting a deposit or equivalent security composed of one of the payment methods referred to in points (a) to (e).
90. According to Article 19 (1) and (2) of the Trade Registration Act, the tax authorities send the following data with the data message:
(a) the tax identification number of the taxpayer;
(b) the name of the establishment where the sale takes place;
(c) the identification of the cash facility on which the sale is registered;
(d) the serial number of the receipt,
(e) the date and time of receipt of the sales or the issue of the receipt, if it is made out earlier;
(f) the total amount of revenue;
(g) the taxpayer's security code;
(h) the subscriber's signature code;
(i) an indication of whether the sales are registered under the normal or simplified arrangements;
(j) the total amount of payments to be made for subsequent drawing or settlement;
(k) the total amount of payments resulting from drawing or clearing payments;
(l) the tax identification number of the taxpayer who has entrusted the registration of the revenue of the taxpayer who records the turnover,
(m) the basis of value added tax and the tax at value added tax rates;
(n) the total amount under the value added tax scheme for the travel service;
(o) the total amount under the value added tax scheme for the sale of the goods used.
91. In accordance with Section 20 of the Market Registration Act:
"(1) The payer shall indicate on the receipt:
(a) the fiscal identification code;
(b) its tax identification number;
(c) the name of the establishment where the sale takes place;
(d) the identification of the treasury facility on which the sale is registered;
(e) the serial number of the receipt,
(f) the date and time of receipt of the sales or the issue of the receipt, if it is made out earlier;
(g) the total amount of revenue;
(h) the taxpayer's security code;
(i) an indication of whether the sales are registered under the normal or simplified arrangements.
(2) An indication of the registered sales reported on the receipt is also the tax identification number of the taxpayer who has entrusted the registration of the sales of the taxpayer who records the sales.
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Regulation Information
| Citation | The Constitutional Court found No. 8 / 2018 Coll., on the application for annulment of Act No. 112 / 2016 Coll., on the registration of sales, or its individual provisions |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 16.01.2018 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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