The Constitutional Court found no 87 / 2003 Coll.

1. Paragraph 183b (3) (a) of Act No. 513 / 1991 Coll., Commercial Code, as amended, shall be deleted from the date of publication of this finding in the Collection of Laws.

2. Article II (8) of Act No. 142 / 1996 Coll., amending and supplementing Act No. 513 / 1991 Coll., Commercial Code, as amended, and amending Act No. 99 / 1963 Coll., Civil Code, as amended, shall be deleted from the date of the publication of this finding in the Collection of Laws.

Pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) The Constitutional Court decides to repeal the laws or their individual provisions if they are contrary to the constitutional order. In the light of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, it may adopt such a decision on the basis of a proposal which is also entitled to be made by a group of at least 41 Members or a group of at least 17 Senators [§ 64 (1) (b) of the Act]. In the present case, a group of 25 Members and a group of 21 Senators submitted a proposal. To ask the counsel of the appellants, the Constitutional Court found that this was indeed a proposal from a group of Senators of the Parliament of the Czech Republic, when the number of Members on the proposal signed was insufficient and those Members co-signed the proposal submitted by the Senators as an expression of political support for the proposal itself. Senator Robert Kolář was designated as the agent of the group of senators who made the application. This is therefore a relevant proposal from a group of 21 Senators of Parliament of the Czech Republic. It is a proposal to abolish Article 183b (3) (a) of Act No. 513 / 1991 Coll., Commercial Code, as amended, and Article II (8) of Act No. 142 / 1996 Coll., amending and supplementing Act No. 513 / 1991 Coll., Commercial Code, as amended, and amending Act No. 99 / 1963 Coll., Civil Code, as amended, (hereinafter "Act No. 142 / 1996 Coll. ').

In the statement of reasons for its proposal, a group of Senators stated that the provisions of § 183b of Act No. 513 / 1991 Coll., the Commercial Code, which was part of it since 1 July 1996, when Act No. 142 / 1996 Coll., which amended the Commercial Code and which introduced the Institute of Takeover, expressed as "an obligation to make a public proposal for a share purchase contract '. It only impacted on public tradable shares and undertook a shareholder who, acting alone or jointly with other persons, obtained a share in that form of shares in the range of one half, two thirds or three quarters of the total of the nominal value of all shares of the company with which the voting right is attached, or who exceeded that share. Act No. 370 / 2000 Coll., amending Act No. 513 / 1991 Coll., Commercial Code, as amended, Act No. 358 / 1992 Coll., on notaries and their activities (notarial order), as amended, Act No. 15 / 1998 Coll., on the Securities Commission and on the amendment and addition of other laws, as amended by Act No. 30 / 2000 Coll., Act No. 200 / 1990 Coll., on the Obligations of Infringements, as amended, Act No. 99 / 1963 Coll., as amended by the Commercial Act, and Act No. 328 / 1991 Coll., as amended by the Act No. 370 / 2000 Coll. The obligation to make a takeover offer is designed more widely - in relation to all holders of participating securities of the target company, i.e. also unregistered. At the same time, the threshold for the creation of an obligation to make an offer of acceptance from a 50% share of voting rights to a share that allows controlling the company from a 40% share of voting rights (the legal presumption of controlling the company when reaching that share) has been reduced, as well as, if control is proven even at a lower proportion, that obligation will also arise. Furthermore, the obligation will also arise if a person obtains 40% of the voting rights of any title, i.e. not only as a right derived from the shares of the company. In this respect they refer to the explanatory memorandum to Act No. 370 / 2000 Coll., according to which the takeover offer was defined in accordance with Article 2 of the proposal for a 13th Directive of the European Union.

In the indicated context, the appellants further point out that the Act No. 142 / 1996 Coll. already provided for an exemption from the compulsory takeover offer for "the Czech Republic, the State Organisation and the Czech National Bank" [in § 183b (2) (a) of the Act]. At the same time, Article II (8) of the Act was also excluded from the scope of Section 183b of the Commercial Code "State Money Constitution, National Property Fund of the Czech Republic, Land Fund of the Czech Republic and persons who acquire shares of the company in accordance with the privatisation decision under a special law." The applicants claim that, in view of the inclusion of this provision as a transitional provision, this exemption was probably intended to be temporary, but nevertheless, as such illogically and legally erroneously as a transitional provision, it is not and has become a regular perpetual legal standard.

According to the explanatory memorandum, these exemptions should have been temporary until the Czech Republic's accession to the European Union, as the proposal for the 13th Directive does not allow such exemptions from the compulsory offer.

The amendment to the Commercial Code, made by Act No. 370 / 2000 Coll., was extended by the derogation from the compulsory takeover offer in section 183b (3) (a) of the Commercial Code to an even wider range of entities, which thus became the Czech Republic, the state organization, the National Property Fund of the Czech Republic, the Land Fund of the Czech Republic, the municipalities, higher authorities and the Czech National Bank, if the participating securities were transferred to them or acquired in connection with the privatisation of the State's assets. By Act No. 120 / 2001 Coll., which further amended the Commercial Code, that exemption was extended to "additional persons if the participating securities were transferred to them or acquired in connection with the privatisation of the State's assets' (Section 133 (2) of the Act). The appellants concluded that, at the date of the submission of the proposal, the text of the provisions of Section 183b (3) (a) of Act No. 513 / 1991 Coll., the Commercial Code, as amended, is as follows:

"The obligation referred to in paragraph 1 shall not apply to the Czech Republic, the State Organisation, the National Property Fund of the Czech Republic, the Land Fund of the Czech Republic, the Municipality, the Higher Authority, the Czech National Bank and other persons, if the participating securities have been transferred or acquired in connection with the privatisation of the State's assets." Act No. 370 / 2000 Coll. then, in Article IX (4), the validity of Article 183b (3) (a) of the Commercial Code was limited in time on the date of validity of the contract whereby the Czech Republic accedes to the European Union. Article II (8) of Act No. 142 / 1996 Coll., also applies in a non-systemic way, and the exemption from the compulsory offer to take over shares in the event of privatisation occurs in a duplicate legal order from 1 July 2001, when the heading of excluded entities is defined differently.

The appellants further point out the purpose of the mandatory takeover offer, which was to provide protection for the rights of minority shareholders of companies, in particular against abuse of the dominant position of majority shareholders, at their expense, as the controlling of the company can cause large-scale consequences, including economic losses, to the majority owner. While the 13th Directive gives the Member States considerable freedom to make a concrete adjustment to the mandatory takeover offer, it also lays down principles that must be respected in legislation. The first of these principles is that all owners of the shares of the company subject to the offer, if in the same situation, must have the same treatment. According to the appellants, the contested provisions of the law are clearly contradictory and therefore the legislator has also limited them to the date of entry into force of the Treaty of Association of the Czech Republic to the European Union.

The mere contradiction of the contested provisions with the constitutional order of the Czech Republic is seen by the appellants in their conflict with Articles 1, 4 (3), 11 (1) of the Charter of Fundamental Rights ("the Charter '), Article 26 of the International Covenant on Civil and Political Rights (" the Pact'), Article 14 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '), in conjunction with Article 1 of the Additional Protocol to the Convention, as well as Article 1 of the Additional Protocol to the Convention itself and, finally, Article 1 of the Constitution.

Infringement of Article 1 The acts of the appellants refer to the principle expressed in this article that everyone is equal in rights. In doing so, they are of the opinion that the contested provisions infringe that principle when the selected entities (as defined by law) are given an unjustified advantage over those other (other) entities in an identical legal position. This inequality then confers an unjustified advantage on some entities in the form of their exemption from the statutory regime of the compulsory share takeover offer, as well as significant interference with protected rights and material property damage to other shareholders. According to the applicants, the beneficiaries are divided into two categories. These are public bodies (Czech Republic, state organization, National Property Fund of the Czech Republic, Land Fund of the Czech Republic, municipalities, higher authorities and Česká národní banka) and other persons, if the participating securities were transferred to them or acquired in connection with the privatisation of the State's assets. They claim that even the public nature of the group's entities does not constitute the first of these grounds for their advantage when the contested provisions cannot be relied upon in cases of exercise of public authority, as they are cases of a purely private nature, since those bodies of public law act as shareholders in the context at hand, but also as ordinary participants in private or commercial relations without a superior position typical of public law. On the contrary, they are in an equal position with the other parties to that legal relationship with private law entities. For the second category of entities, the justification for their advantage cannot be found at all. Such "other persons' may be any natural or legal person where the connection to the exercise of public authority is no longer an option. Another part of the proposal points out the definition of the constitutional principle of equality, already expressed in the decision of the Constitutional Court of the CSFR (No 11 Reports of resolutions and findings), which was also accepted by the Constitutional Court of the Czech Republic, which expressed it in a number of its decisions (sp. zn. This, in so far as the benefit of one group is to be determined by law and at the same time sets out the disproportionate obligations of another group, can only happen with sufficient justification based solely on the protection of public values. The two aspects of the constitutionality of the breach of the principle of equality are thus distinguished - the exclusion of libido (sp. zn. Neither of the above aspects is met in the present case, when the exclusion of designated entities from the share-taking obligation regime is precisely a sign of the legislator's desire to violate the principle of equality. This inequality, according to the appellants, already reaches such an intensity of intervention in its very essence that it also involves a breach of other fundamental rights (the right to own property pursuant to Article 11 (1) of the Charter or Article 1 of the Additional Protocol to the Convention). In this context, the appellants draw attention to the designated legislature created by a completely inconsistent company of entities (public and private-law type), to which they have granted the prerogatives not justified or of the public interest or reasonable reasons. The principle of proportionality, as a fundamental emblem of the rule of law (Article 1 of the Constitution), assumes that measures limiting fundamental human rights and freedoms must not, by their consequences, exceed the positives presented by the public interest in those measures. A breakthrough in this protection is permitted by the constitutional order of the Czech Republic solely in the interests of the protection of democratic society, possibly in the interests of the constitutionally guaranteed fundamental rights and freedoms of others. The exclusion of designated entities (including the State) which are directly involved in privatisation is, in the view of the applicants, not in the interests of protecting democratic society. This is because efforts to achieve the highest possible profit from privatisation for public budgets should not outweigh the interest of equal treatment of all minority shareholders in the event of company domination by a new entity that receives a share in privatisation.

Infringement of Article 26 of the Pact and Article 14 of the Convention in conjunction with Article 1 The Additional Protocol to the Convention must, according to the appellants, be noted that those provisions emphasise that they are all equal before the law and have the right to the same protection of the law without any discrimination, namely that the law prohibits any discrimination and guarantees all persons equal and effective protection against discrimination for any reason when the appellants refer in this connection to Article 3 (1) of the Charter, which provides that fundamental rights and freedoms are guaranteed to all without distinction. However, the contested provision of the Commercial Code clearly discriminates against both persons who meet the criteria for compulsory takeover and have no legal derogation, as well as other shareholders of target companies who cannot exercise their right to divest shares to the acquirer. In this way, the law does not only protect against discrimination, but introduces discrimination. Furthermore, the appellants also point to the decision-making practice of the United Nations Committee on Human Rights, which, when applying Article 26 The Pact has repeatedly expressed the view that the exclusion of libel is that discrimination cannot be applied beyond reasonable and objective criteria. However, this is not the case in the present case for the reasons already stated, and in the context of Article 14 of the Convention it is a discrimination in the use of the right to own property (Article 1 of the Additional Protocol to the Convention).

In relation to the alleged infringement of Article 4 (3) and (4) The Charter points out that, although the conditions for the limitation of the law are precisely laid down by law, this statutory restriction does not apply to all cases (Article 4 (3) of the Charter). In order for such a restriction to be constitutionally conformal, it can only happen if Article 4 (3) and (4) of the Charter are complied with. This is not the case in the present case, since a category of owners - minority shareholders of target companies - is forced to submit to the control of the company by a new shareholder and does not have the right to exercise the protection of its ownership by the sale of its shares, whereas another group of minority shareholders is entitled to the right in question.

The contested infringement of Article 11 (1) of the Charter and Article 1 The Additional Protocol to the Convention is argued by the appellants by the fact that in the first group of entities there are those persons to whom the takeover obligation (Paragraph 183b of the Commercial Code) applies and thus a significant restriction on the right of ownership when they are obliged to do a certain private-law act - the redemption of shares by minority shareholders - not by their own will, but solely to fulfil the statutory obligation. They are thus discriminated against by the entities excluded by the contested provisions of the Commercial Code from the compulsory take-over regime, which is not so restricted by the right of ownership. Intervention into ownership is more pronounced in this context for minority shareholders who, in the event of the control of the target company by the entities referred to in the contested provisions, denied the possibility of exercising the right to divest shares against the new acquirer, which would otherwise be theirs, which may affect their assets contained in their own shares. Such an exception is then denied the very meaning of the principle of compulsory acquisition of shares which was followed by law and whose purpose was to ensure that the right to property protection was fulfilled (Article 11 (1) of the Charter or Article 1 of the Additional Protocol to the Convention, respectively). This is an intervention in the right to own property, expressed in the long term in the case-law of the Constitutional Court, as well as in the European Court of Human Rights, that is to say, the rights perceived as the protection of the property already acquired (e.g. Pol. The appellants further refer to the settled case law of the European Court of Human Rights on the provision of Article 1 of the Additional Protocol to the Convention and, in this context, to a standard which lays down the principle of respect for property and, where appropriate, the right to peaceful use of it, a standard governing the conditions for the disposal of property and a standard giving the State the right to regulate the use of property in accordance with the public interest. In this context, any interference with property law is expressed by the unconditional existence of an important public interest despite the absence of a uniform definition of this concept, the meaning of which is variable "in time and space '(Handyside judgment of 7.12.1976 - A-29) and cannot be precisely defined. The emphasis of the European Court of Human Rights in this respect places on the material aspect, namely whether there is a de facto intervention in the content of property law. In the appellant's view, it is the minority shareholders of the target companies who, although formally not affected by the contested provisions of the law, are affected by the actual content of their ownership rights (in a material way). The European Court of Human Rights has repeatedly expressed the need for a reasonable relationship between the resources used and the purpose of the limitation of the right to own property in order to establish a fair balance between the general interest and the interest in protecting the fundamental rights of the entity concerned (proportionality). Similarly, the Constitutional Court decides with emphasis on the necessity of a reasonable relationship between the resources used and the purpose pursued (sp. v. IV ÚS 324 / 97). The appellants conclude in this section that, in the case of the contested provisions of the Commercial Code, this is not the case, since the intervention in the right to hold the assets of minority shareholders of the target companies, as a result of the exception described, is not justified even for public law bodies, much less in the case of the exclusion of" other persons'. This does not give rise to a fair balance between the interest in the protection of the general interest and the imperative of the protection of the rights of individuals, since, in the present case, in particular for strategic undertakings with many minority shareholders, the imperative of the protection of their rights is already increasing by the importance of the general interest in the implementation of privatisation and is even becoming a public interest itself, and therefore it is no longer possible to speak at all in the present state of affairs about a reasonable relationship between proportionality but, on the contrary, to intervene in the protected right of ownership of property. From the perspective of Article 11 (1) The acts of the appellants indicate that the protection of ownership of both persons acquiring shares of target companies not covered by the exemption and minority shareholders clearly has the protection of their ownership rights weakened compared to the protection of the ownership interests of the entities covered by that exemption.

In relation to Article 1 of the Constitution, in view of the above-mentioned violations of fundamental rights guaranteed by the Charter as well as of the international treaties by which the Czech Republic is bound, and in view of the fact that such infringements have occurred by the legislature, the appellant believes that the declaration of the fundamental principles of the State as expressed in Article 1 of the Constitution has also been infringed. On Article II (8) of Act No. 142 / 1996 Coll., apart from its contested inconstitutionality, the appellants also point to its non-systemic and legally defective classification among the transitional provisions of the Act cited, which, in their definition, are to have a transitional (temporary) character, although it is in fact a regular legal standard of unlimited and manifestly non-transitory validity, resulting in a practical impossibility of orientation in the text of the Act.

By reference to what has been stated, they propose that the Constitutional Court issue a finding repealing Article 183b (3) (a) of Act No. 513 / 1991 Coll., as amended by Act No. 142 / 1996 Coll., Act No. 370 / 2000 Coll. and Act No. 120 / 2001 Coll., and Article II (8) of Act No. 142 / 1996 Coll. as these provisions of the Commercial Code are contrary to Articles 1 of the Constitution, Article 1, Article 4 (3) and Article 11 (1) of the Charter, Article 14 of the Convention in conjunction with Article 1 of the Additional Protocol to the Convention, as well as well as to Article 1 of the Additional Protocol to the Convention itself and Article 26 of the Pact. The proposal is accompanied by the view that the matter is urgent within the meaning of section 39 of Act No. 182 / 1993 Coll., on the Constitutional Court, as the decision of the Government of the Czech Republic on the privatisation of certain strategic undertakings is coming close, which could result in significant and unremovable interference with the protected fundamental rights of the number of minority shareholders of these companies.

The Chamber of Deputies stated in its observations that the contested provisions were gradually included in the Commercial Code by a number of laws, the first of which was Act No. 142 / 1996 Coll., which did not apply to the obligation to make a public proposal for a contract for the purchase of publicly traded shares pursuant to § 183b (2) (a) of the Commercial Code on the Czech Republic, the State Organisation and the Czech National Bank, and under No II (8) of the transitional provisions, to the money institutions, the National Property Fund of the Czech Republic, the Land Fund of the Czech Republic and to the person who acquires shares of the company in accordance with the privatisation decision under the special law.

Act No. 370 / 2000 Coll. in us.§ 183b (3) (a) extended the scope of entities not covered by the obligation under the new wording of the Act "make an offer of takeover to all holders of participating securities of the target company," on the National Property Fund of the Czech Republic, the Land Fund of the Czech Republic, the municipality and the higher self-governing bodies, if the participating securities were transferred to them or acquired in connection with the privatisation of the State's assets, and thus essentially included almost all the entities referred to in Article II (8) of the Act No. 142 / 1996 Coll., excluding persons who acquire shares in accordance with the privatisation decision under the special law. By Act No. 120 / 2001 Coll., on judicial executors and enforcement activities (Enforcement Regulations) and on the amendment of other laws, then the provisions of Paragraph 183b (3) (a) were added "persons who were transferred or acquired by participating securities in connection with the privatisation of the State's assets', and Act No. 239 / 2001 Coll., on the Czech Consolidated Agency and on the amendment of certain laws, the group of these entities was further extended by the Czech consolidation agency.

In particular, in the context of creating conditions for the proper functioning of the capital market, the legislature's intention to adopt the mandatory takeover offer was to protect minority shareholders and to create conditions for the development of business activities of persons who acquired shares in connection with the privatisation of State assets. The legislature considered that there was a social interest in excluding public bodies and public corporations and certain persons from the obligation to purchase securities, so as not to concentrate the assets in the hands of these former non-business entities at the expense of developing the business activities of private persons.

The contested provisions of the Commercial Code were adopted by the legislature in the context of the full legislation governing the transformation of the economy, the economic policy of the State and the development of the capital market, knowing that the role and position of public bodies in the field under consideration is different from the status and activity of the business entities to which the Commercial Code applies and is not of an entrepreneurial nature, and it is therefore justified to exclude them from the regime governing the statutory supply of securities under the Commercial Code. The exclusion of these and other entities from the scheme under Section 183a (1) of the Commercial Code, on condition that they acquired shares in the privatisation of the State's assets, was given to the public interest in the successful conduct and completion of privatisation and the development and promotion of private business.

The privatisation process is exceptional in terms of normal market standards, such as the European Directives and other documents, in its scope and economic and legal nature. The legislature was also aware of this when introducing the compulsory takeover bid, and as a temporary exception - precisely for the privatisation process - the bodies listed in Paragraph 183b (3) (a) of the Commercial Code waived or did not impose this obligation on them. This exemption is also limited in time, i.e. the provision in Section 183b (3) (a) of the Commercial Code in question expires on the date of entry into force of the Treaty of Accession of the Czech Republic to the European Union. It is reasonable to assume that, by this date, the Czech Republic will already be a fully functioning market economy and that the potential assets of the State, or shares owned by it, will already be regarded as shares of other owners without jeopardising the functioning of the national economy.

In the context of equal treatment, in the interests of the development of the national economy and the market company and in the interests of the legally protected general interests, equal access to minority shareholders of privatized entities is necessary throughout the process of privatization of the State's assets. The emergence of a functioning market economy based on private ownership is a public value worthy of protection, because it is hard to imagine a democratic society without that foundation. As part of the privatisation of the State's assets, the objective was set out at the same time as the change in ownership to remove the distorted monopoly structure and at least partially disperse ownership shares. Should a compulsory takeover regime be established for privatised companies, this would create a monopoly by law, i.e. administration, and not on the basis of market developments, which could again jeopardise the functioning of a democratic society.

The compulsory takeover offer institute was introduced into our legal system with effect from 1 July 1996, when the privatisation process was already underway. This also led the legislator to approve the exclusion of those entities from this obligation. It is all the more evident that at present, in the final stage of privatisation, there would be an unjustified advantage for minority shareholders holding shares in privatised entities with a change in conditions.

Owning is not an abstract category, it is always linked to its "material, respect. Real basis" and according to it it is also necessary to evaluate the content of this concept, the right and obligation of the owner and the possibility of its legal limitation. The stock is a risky investment instrument everywhere. An improper part of the acquisition of a share is the price of the share and an estimate of its profitability and risk. Minority shareholders, on the basis of their own voluntary decision, acquired ownership of the shares of the companies concerned with knowledge of the terms and conditions, knowing that the majority shareholder is a State that transfers its shareholding to another entity through privatisation procedures, while the State publishes its intention sufficiently in advance so that minority shareholders can freely decide either to remain in the company or to offer shares for sale before the transfer takes effect.

On the contrary, given that private entities not mentioned in Paragraph 183b (3) (a) of the Commercial Code intended to achieve a majority share in voting rights can only hide their intention, for example, by formal information, the way in which the general meeting is convened, additional protection of minority shareholders is appropriate.

The specification of "other persons" is sufficient in the law by means of the acquisition title.

The Chamber of Deputies considers it an unfounded claim by the applicants that, materially, the actual content of the ownership rights of minority shareholders of target companies is significantly affected. The ownership of the share is associated with the rights of the shareholder as a shareholder in particular to participate in the management of the company under the Commercial Code and the statutes of the company, to participate in the general meeting, to vote on it, to have the right to request clarification and to receive a certain answer on his question; according to the percentage of its shares in the capital, the shareholder has the right to request an extraordinary general meeting, the right to ask the court to review certain decisions, the right to a share of profits and the share of the liquidation balance on the company's demise, etc. No one can be deprived of such ownership rights and Paragraph 183b (3) (a) of the Commercial Code does not interfere with ownership rights associated with shares.

The right to the protection of property guaranteed by the Constitution and the Charter, as well as by the international treaties by which the Czech Republic is bound, is intended to allow, inter alia, ownership care which would not be misused to harm the rights of others or contrary to legally protected general interests. The legislature therefore appropriately, in line with the general interest of developing a democratic society based on market economic relations and private ownership, amended the terms of the transfer of State assets to other entities by law. Finally, the Chamber of Deputies stated that the legislature acted in the belief that the law adopted was in line with the Constitution, the Constitutional Order and the Rules of Law, and it is therefore up to the Constitutional Court to confirm the constitutionality of the contested provisions in the context of the proposal and to give its decision.

In its observations, the Senate pointed out that the genesis of modifications to the provisions of Section 183b (3) (a) of the Commercial Code shows that the proposal is directed against the complex of changes made to the Act No. 370 / 2000 Coll., when, pursuant to Article XI (4) of this Act, "Paragraph 183b (3) (a) of the Commercial Code, as amended by this Act, expires on the date of entry into force of the Treaty of Accession of the Czech Republic." This law was referred to the Senate Chamber of Deputies on 9 June 2000. The bill was ordered under press number 294 to discuss the constitutional committee, the Committee on Economic, Agriculture and Transport and the Committee on European Integration. The Constitutional Committee discussed the bill at its 56th meeting on 11 July 2000 and adopted Resolution 238 recommending the Senate to return the bill to the Chamber of Deputies with amendments. At its 35th meeting held on 22 June 2000, the Committee on European Integration also recommended the Senate to return the bill to the Chamber of Deputies with amendments. The same conclusion was reached by the Committee on Economy, Agriculture and Transport at its 46th meeting on 10 July 2000 (Resolution No 356).

The Senate debated the bill at its 20th meeting in its second term of office on 12 July 2000 and adopted Resolution 424 on the Bill, which returned the bill to the Chamber of Deputies with amendments. 54 Senators and Senators of 63 were voted in favour of the resolution and only 1 Senator was opposed. The Commercial Code itself concerned 65 amendments, but none of them concerned Article 183b (3) (a) of the Act.

The Chamber of Deputies renegotiated the bill at its 27th meeting on 14 September 2000. The bill, as amended by the amendments adopted by the Senate, was approved by Resolution No 1171 when it was voted against by 108 Members and 55 Members in order number 52 of 185.

The last draft amendment to the Commercial Code (later published by Act No. 501 / 2001 Coll.), which added the letter (e) § 183b of the Commercial Code, was delivered to the Senate on 16 November 2001. The bill under press number 150 was ordered by the Committee on Economic, Agriculture and Transport, the Constitutional and European Integration Committee. Even before the committee meeting, the Senate adopted Resolution 200, which stated that it did not consider Press 150 to be a draft law under Article 45 of the Constitution and that it did not receive a draft law which the Chamber of Deputies discussed under No 824 and with which it gave its assent at its 39th meeting on 31 October 2001 (Resolution 1828). Therefore, no resolution was adopted to the press itself referred to by the Senate Chamber of Deputies until 15 December 2001, i.e. within the constitutional deadline, and the law was then delivered to the President of the Republic for signature.

On the application for annulment of Paragraph 183b (3) (a) of the Commercial Code, it can only be noted that the Senate did not deal in substance with the issue of exemption from the compulsory takeover offer under that provision and therefore did not consider the constitutionality of the contested provisions. However, some of the senators, as evidenced by the proposal, are convinced of this conflict.

For the sake of completeness, it can be added that in the previous discussions of the issue, the Senate was based on the fact that the exemption would only be in force until the Czech Republic acceded to the European Union because the proposal for a recast of the 13th Directive of 1990 does not allow such an exemption from the compulsory takeover offer.

The Constitutional Court turned to the request for observations on the application to the Government of the Czech Republic. By its Vice-President JUDr. Pavel Rychetsky's mouth, she stated that at her meeting on 29 January 2003, the discussion of the Government's proposal for a statement on that motion by a group of Senators was interrupted in the light of the fact that she submitted to the Chamber of Deputies a draft amendment to the Commercial Code, which is included in the programme of the 10th meeting of the Chamber of Deputies, which will start on 18 February 2003. At the same time, the Government has proposed that the Chamber of Deputies give its consent at first reading. In addition, the Vice-President of the Government stated that the contested provision would appear to be removed in Parliament's legislative process and therefore proposed to wait with the possible conduct of the oral proceedings of the Constitutional Court for a decision by Parliament on a government amendment to the Commercial Code. With reference to the fact that the Government of the Chamber of Deputies, tabled an amendment to the Commercial Code, does not affect that provision of the Commercial Code, which is contested by a group of Senators, the Constitutional Court asked the Government for further explanations in this regard in order to be able to take its course. The Deputy Prime Minister JUDr. Pavel Rychetský said that the Government proposed that the draft amendment to the Commercial Code which he tabled should be approved by the Chamber of Deputies at first reading, but the Chamber of Deputies expressed its opposition to this proposal and released it by second reading. He added that the fact remains that the government's proposal for an amendment to the Commercial Code does not address the substance of the objection of a group of Senators concerning the provision of Paragraph 183b (3) (a) of the Commercial Code, but, as he has already stated, it is assumed that this provision will probably be removed in the legislative process. He therefore recommended, once again, to wait with possible oral negotiations for a decision by Parliament on a government amendment to the Commercial Code. The Constitutional Court has decided that there is no reason to wait for any further action by the Chamber of Deputies, and that it will already proceed directly to the motion of a group of Senators to abolish that provision of the Commercial Code.

The Constitutional Court also requested the opinion of the Securities Commission (hereinafter referred to as "the Commission ') on the submitted proposal from a group of Senators. In its observations, signed by the President and the Director of the Legal and Legislative Department, the Commission pointed out the The 13th Directive of the European Communities and stated that this regulation is still at the stage of the proposal, with the takeover offer being one of the most controversial legislative topics at Community level. Therefore, this Directive cannot be relied on as valid European standards, but it should serve as one of the ideal guidelines for the national regulation of the takeover offer, which was also governed by the Czech legislature in 2000 when it limited the effectiveness of the contested and incompatible exemptions under Paragraph 183b (3) (a) of the Commercial Code at the date of entry into the European Union (Article IX (4) of Act No 370 / 2000 Coll.). It also pointed out that the purpose of adjusting the mandatory takeover offers in developed countries is to protect shareholders (mainly minority) and employees of the company in which the investor acquired a share that allows the company to dominate. Although it is an intervention in the contractual freedom of the investor, the national legislator (not only Czech, but also British, German, Austrian or American) chose this solution for the reasons stated. However, the Commission has not been able to find an exception to Article 183b (3) (a) of the Commercial Code in the legislation on the compulsory takeover offer in developed countries, with the fact that it is reasonable to assume that these countries did not face the task of selling the State's assets to private hands to the extent that the Czech Republic did. In the Commission's view, one of the probable reasons for the imposition of the derogation is to make the best possible profit for the State in transferring the State's assets to other persons for reasons further developed. Furthermore, the Commission, as an administrative office supervising the capital market, expressed its views on the expected concrete impact of the possible abolition of this derogation on the capital market. It envisages a reduction in the acquisition price for new buyers, a minimum significant reduction in the business of the privatized title in the public markets and further mentions the impact on the field of collective investment in relation to the portfolio of investment and share funds. In this connection it pointed to the three most important still unprivatized titles (ČEZ, Český Telecom, a. s. and Unipetrol, a. s.). It adds that it follows from the conclusions publicly declared by the Government of the Czech Republic that until the accession of the Czech Republic to the European Union, only Unipetrol, a. s. will be able to complete the privatisation, which is the least significant of the three entities in terms of capital market trading.

In conclusion, the Commission stated that it shares certain doubts as to the constitutionality of the contested provisions and that it depends on the interpretation of the Constitutional Court whether the concerns about the stability of the capital market in emerging economy conditions are a statement of public interest, the protection of which may justify the existence of the contested provisions.

Party of formal formalities of laws amending the Commercial Code The Constitutional Court notes that they have been accepted and issued within the limits of the Constitution laid down by competence and in a constitutional manner (§ 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court).

With effect from 1 July 1996, a new institute named "the obligation to make a public proposal for a share purchase contract" was introduced into Act No. 513 / 1991 Coll., the Commercial Code (Act No. 142 / 1996 Coll.). Other amendments (already mentioned) have been further adapted to the current, now valid and effective form. Paragraph 183b (3) (a) of the Commercial Code is to be assessed in the light of the reservations raised by the appellant in relation to Article 183b (1) of the Commercial Code, as amended, which is marked by the heading "Mandatory takeover offer on the control of the target company 'and is worded as follows:

"If the participating securities of the target company are registered, a shareholder who obtains, either alone or together with other persons, a share of the voting rights (§ 183d), which allows it to dominate the company (§ 66a), shall, within 60 days of the date on which the shareholder acquires or exceeds that share, make an offer to take over all holders of the participating securities of the target company. Where that shareholder makes an application pursuant to paragraph 9 or 11, that period shall be extended by 20 working days. The same obligation shall apply to the shareholder and the persons acting in agreement whose share of the participating securities or voting rights obtained under the first sentence reaches or exceeds the limit of two thirds and three quarters of the voting rights. The obligation to make a takeover offer shall arise on the day following the day on which the shareholder has acquired or exceeded the share which it creates. ';

Paragraph 183b (3) (a) of the Commercial Code then reads as follows:

"The obligation referred to in paragraph 1 shall not apply to the Czech Republic, the State Organisation, the National Property Fund of the Czech Republic, the Land Fund of the Czech Republic, the Municipality, the Higher Authority, the Czech National Bank, the Czech Consolidation Agency and other persons, if the participating securities have been transferred to them or acquired in connection with the privatisation of the State's assets."

The controller shall be the one who, in fact or in law, exercises directly or indirectly a decisive influence on the management or operation of the undertaking of another person. If it is not demonstrated that another person has equal or greater voting rights, a person who has at least 40% of the voting rights on a person shall be deemed to be the controlling person and that persons acting in agreement who have at least 40% of the voting rights on a person are the controlling persons (§ 66a of the Commercial Code). It is clear from a constitutional legal point of view, which is the only one and exclusive of the Constitutional Court's conclusions, that there are entities that are burdened with an obligation to bid ("an obligation to make a public contract for the purchase of shares') and entities that do not have such an obligation. From the above obligation to offer shares of minority shareholders, the Commercial Code excludes taxiously designated entities (shareholders), which, as already mentioned, the Czech Republic, state organisations, the National Property Fund of the Czech Republic, the Land Fund of the Czech Republic, the municipalities, higher self-governing bodies, the Czech National Bank, the Czech consolidation agency - bodies of the public law type - as well as somewhat inconsistent bodies designated as other persons, if the shares were transferred to them or acquired in connection with the privatisation of the State's assets. In the present context, the position of the designated entities is thus manifestly different from that of other entities which are subject to the same obligation in connection with that offer. This is undoubtedly an inequality which can, in particular, find its economic impact in the implementation of a particular commercial transaction, including the status of minority shareholder. The inequity thus expressed is assessed by the Constitutional Court from the point of view already established and described in a number of its decisions (Pl. ÚS 16 / 93, Pl. ÚS 34 / 95, Pl. ÚS 6 / 96, Pl. ÚS 18 / 01 and others), based also on a finding adopted by the Constitutional Court of the CSFR (No 11 Reports of resolutions and findings). He always pointed out in his decision to reject absolute understanding of equality as a principle, but when determining the relative concept of the principle of equality, it is necessary to reasonably and appropriately justify its limits and its meaning. Even in the case of relative equality, where the benefit of one group is set by law at the expense of another group in determining the disproportionate obligations of that group, it can only be done with a sufficiently explained reference to the protection of public values. It is thus a legally justified determination of the disproportionate obligations of one group in relation to another group which does not have them, and at the same time an appropriate and reasonably justified interest in the protection of public values.

In the present case, there is a correlation between two groups of entities in two different cases, which are based on the same legal basis, which is to establish the obligation to offer shares at the time of the takeover of the company (Section 183b (1) of the Act of Commerce.). The first is when a person (shareholder as a "private-law 'entity different from the State) is obliged to make such an offer (in both cases of equivalent conditions), the second is the authority of a State which, although acting under the same conditions (and is also a private-law entity), does not have to do so. The second case is a group of shareholders (minority) who must receive this offer; On the other hand, however, a group of minority shareholders which does not receive such an offer for the entities defined in Article 183b (3) (a) of the Commercial Code. The inequality in the position of the two groups of those entities in both cases is evident. In order for the inequality thus expressed to be considered unconstitutional, from the point of view of Article 1 of the Charter, it appears necessary to answer the question itself of understanding of equality in each particular case. This, however, is already in view of the settled case-law of the Constitutional Court, which is based on the already cited decision of the Constitutional Court of the CSFR No 11 of the Reports of Resolutions and Finances, when the Constitutional Court of the CSFR found that (in relation to the laws on payroll tax, population income tax and income tax on literary and artistic activities) the equality of citizens before the Law was not seen as an abstract category, but was always attributed to a certain legal standard, incorporated in a relationship between different subjects and so on.

Where a right has been granted out of equality, each individual shall be entitled to require that the State, within the limits of its possibilities, remove all de facto inequalities. However, this structure applies only if we understand equality as absolute. The equality of relative, as all modern institutions mean, only requires the removal of unjustified differences. Finally, it is for the State to decide, in order to ensure its functions, to grant a group less benefits or a position other than that of another group, even if it is in a comparable position. In principle, in every area of human activity, it is necessary to require that the legislative authority substantiate its decision with objective and rational criteria. If the law determines the benefit of one group and thus imposes disproportionate obligations on another group, it can only do so by referring to public values.

In this respect, he argues The Chamber of Deputies, by giving a social interest in the sale of securities in the dissolution of public law institutions and corporations and certain persons, and thus calling up a situation where the privatising (buyer) entity does not have an obligation to purchase certain securities (minority shareholders).

Paradoxically, the argument put forward by the Chamber of Deputies in its observations suggests that the contested provision makes it seem to protect minority shareholders from themselves. It is clear that, from 1 July 1996, a group of shareholders holding shares of privatised companies, unlike another group of shareholders, held shares of companies not subject to privatisation, was in an unequal position. The compulsory offer to take over the shares does not necessarily entail an obligation on the shareholder to make use of such an offer, but only the possibility of responding to such an offer, in other words the possibility at all to consider its position and to use it, or to reject it, with only the internal reasoning of the shareholder based only on its own belief in the accuracy of its action. In the case of entities defined by Article 183b (3) (a) of the Commercial Code, the possibility of such consideration is waived and must respect the state-created state of play, whereby, if, nevertheless, the offer of its share of the entity referred to in Article 183b (1) of the Commercial Code is made, it does not have to accept the offer. At the same time, however, it is appropriate to state that, from the perspective of the already mentioned Constitutional Court, it should not express itself in economic or political terms and should further discuss the possible advantages or disadvantages of the position of the shareholders under consideration. At the same time, however, it seems possible to say that, according to the Constitutional Court's view, it is not even possible to establish roughly whether the position of minority shareholders is only unfavourable in view of the arguments put forward by the appellant and the priori. In this respect, the Constitutional Court is not entitled to further consideration of the privatisation well or badly carried out and not at all of the planned privatisation. Nor can it be ruled out, of course, that the retention of shares (not making use of the mandatory takeover offer) can be beneficial for the shareholders.

Despite the suggested considerations, the Constitutional Court and its assessment of individual proposals are always decisive aspects of constitutional law. In finding this necessity, this is a matter of public interest and its defensibility in the two groups of bodies described. The public interest expressed by the interested party in completing the transformation of the national economy and by means of privatisation into a standard market economy common in EU countries, and thus the acquisition of more significant funds into public budgets, then competes with the interest of a group of citizens - minority shareholders on equal opportunities to apply the shares acquired, namely to have the same choice of how to dispose of their assets (shares), like the shareholders of companies (others), who receive the compulsory offer to take over shares under the Commercial Code. In view of this, it is clear that, as owners, they do not have the same right and the same ability to treat their property (with it) as other owners in a comparable position. Although in a more narrowly defined part of their right to dispose of the property, they are limited in that derivative in terms of what has already been said (against a comparable group of owners).

In the present case, this restriction cannot be balanced by the public interest declared by the party. A similar argument cannot be unilaterally rejected, but it cannot also be accepted to the extent that it fully advocates the stated public interest. From the perspective of civil society and the belief that the Czech Republic is a sovereign, united and democratic rule of law based on respect for the rights and freedoms of man and citizen (Article 1 of the Constitution), the Constitutional Court notes that the public interest cannot outweigh the interests of the individual to own property, but also the principle that the ownership of all owners has the same legal content and protection (Article 11 (1) of the Charter). In the absence of an unequal position in particular of comparable minority shareholders groups, on the one hand, the interest of the State, on the other hand, undoubtedly, is in facilitating the completion of the previously unimplemented privatisation projects and, on the other hand, the increased income in public budgets, on the other hand, the interest of a non-negligible group of citizens (minority shareholders, in many cases small shareholders) in the same scope as can be done under the same conditions (legally defined) by a comparable group of other minority shareholders. In the opinion of the Constitutional Court, the inequality thus created cannot be justified by the said public interest or by reference to public values. It is common ground that, in the transformation (especially economic) of our company after November 1989 (even in the context of coupon privatisation), a stock market was established, where it can be considered that each shareholder was convinced that, under the same conditions, he would be able to decide on the shares he owns (and thus on his assets), in particular in the same situation and thus on the same scale. However, if the State favoured a group of shareholders (in this case minority) at a certain stage of de facto (but also de jure), it could not do so (even with reference to the declared public interest) at the expense of a group of citizens of others who are also minority shareholders. The Constitutional Court is not firmly convinced that a restriction on the contractual freedom of minority shareholders, which is a derivative of the ownership component, would result in strong interference with their assets, but their damage cannot even be ruled out. In this context, he also concluded that, if the legislature had at all been introduced into the rule of law of the State (Commercial Code) by the Institut of the compulsory takeover offer, its effects should be the same for all categories of shareholders, including, of course, minority ones. This, taking into account the fact that the State has many possibilities to secure public budgets by its well-thought-out economic policy, without obtaining the necessary funds in this activity by favouring one group of citizens over the other, even if it takes away a certain group of citizens from the choice of procedure in their economic considerations of the management of their property, even if property rights may not be damaged in this context. The economic considerations of the minority shareholder remain its own, but the possibility of such considerations remains essential.

In short comparative terms, it can generally be said that in States that are members of the EU, exemptions are not based on the compulsory takeover offer for entities that have acquired an appropriate share of other companies in the deetisation process (Great Britain, Netherlands, France, Belgium and others). From the candidate countries, this exemption is not admissible even in Slovenia except where the company's core capital does not exceed one million Slovenian tolars. It can only be concluded that the legislature, by adopting the provisions of Paragraph 183b (3) (a) of the Commercial Code, did not maintain the same approach to all the relevant entities. In establishing the same conditions, it created different groups of entities which have different options for disposing of their property (fully used). The constitutional principle of equality enshrined in Article 1 of the Charter, according to which people are free and equal in dignity and rights, and the complementary principle expressed in Article 3 of the Charter, as a principle of non-discrimination in granted fundamental rights, is interpreted by the Constitutional Court in its caselaw from a dual point of view (the findings of the Constitutional Court Pl. ÚS 16 / 93, Pl. ÚS 36 / 93, Pl. ÚS 5 / 95, Pl. ÚS 9 / 95, Pl. ÚS 33 / 96, Pl. ÚS 9 / 99, Pl. ÚS 18 / 01 and others). The first is the requirement to exclude the libel in the legislature's procedure in differentiating groups of entities and their rights, and the second is the requirement of the constitutional acceptance of the aspects of differentiation, i.e. the inadmissibility of a matter of fundamental rights and freedoms by distinguishing bodies and rights by the legislator. In the indicated direction, the Constitutional Court did not find any reason which could reasonably explain the inequality in access to individual shareholder groups as described above. The argument of the State's advantage for reasons of public interest (success and speed of privatisation) runs against Article 11 (1) of the Charter. Nor did the legislator reasonably justify the practice of causing that inequality.

The Constitutional Court has concluded that the contested provision, in its consequences, creates an unjustified inequality between the parties involved in the implementation of the process established by the legislature by the adoption of a compulsory takeover bid. While the postulate of equality does not imply a requirement of general equality between all and all, it implies a requirement that the law does not unreasonably favour one from another. In the present case, it is common ground that the requirement to grant the same rights under the same conditions without unjustified differences in the dictation of the contested provision is not respected, since the legislator, without acceptable grounds (even in constitutional terms), has put those entities which have acquired shares in connection with the privatisation of the State's assets at a disadvantage. In the light of the above, it cannot be disregarded that, within the meaning of Article 4 (2): The provisions of the Charter may be adapted to the limits of fundamental rights and freedoms under the conditions laid down in this constitutional document only by law, while, when applying the provisions on the limits of fundamental rights and freedoms, their substance and meaning must be investigated and such restrictions may not be misused for purposes other than those for which they have been established (Article 4 (4) of the Charter). If everyone has the right to own shares, he or she shall also have the right to dispose of shares as with his or her property to an extent which must be defined equally under the same conditions. In other words, everyone has the right to own property, the ownership of all owners having the same legal content and protection (Article 11 (1) of the Charter). Similarly, ownership commits and must not be misused to harm the rights of others or contrary to the legally protected general interests, with the compulsory restriction of property rights being possible in the public interest, on the basis of the law and for compensation (No 11 (3) and (4) of the Charter). Another procedure is contrary to the constitutional order of the Czech Republic, especially when it does not respect the principle of minimising interference with fundamental rights in the form of possible restrictions and, at the same time, maximising the preservation of the substance of the fundamental law. The Constitutional Court therefore annulled the contested provisions for their contradiction with Article 11 (1), (3) and (4), in conjunction with Articles 1 (1), 3 (1) and 4 (3) and Article 4 (4) of the Charter, as well as Article 14 of the Convention, as amended by Article 1 of the Additional Protocol to the Convention and Article 26 of the Pact, on the date of the publication of that finding in the Collection of Laws.

As regards the appellant's request under Paragraph 39 of the Law on the Constitutional Court, it can only be briefly stated that the Constitutional Court first had to deal with the proposal to repeal Act No. 501 / 2001 Coll., which amended the Commercial Code, also submitted by a group of Senators. In this case, it decided on the finding of 2 October 2002, sp. zn.