The Constitutional Court found no 90 / 2023 Coll.
The Constitutional Court found of 21 February 2023 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
05.04.2023
90
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. Pl. ÚS 17 / 22 on 21 February 2023 in plenary composed of the President of the Court of Pavel Rychetský and Judges Jaroslav Fenyk (Judge Rapporteur), Josef Fiale, Jan Filip, Jaromír Jirsy, Tomáš Líčník, Vladimir Sládeček, Radován Suchanek, Jan Svatona, Pavel Šámal, Vojtěch Šimíček, Milady Tomková, David Uhířír and Jiří Zemánek, on a proposal from the group of senators, for which is treated by Senator Tomáš á Jirsa, Dr.
as follows:
Motion denied.
Reasons
Definition of the case
1. A group of 17 Senators, under which Senator Tomáš Jirsa (hereinafter referred to as "the author"), acts in proceedings for the annulment of the laws referred to in Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") in conjunction with Article 64 et seq. of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court"), seeks the annulment of Article 304c (1) of the Third Act on Human Rights and Fundamental Freedoms (hereinafter referred to as "the Law No 99 / 1963 Coll.," (hereinafter referred to as "the contested provision)," hereinafter referred to as "the Charter of Fundamental Rights of Fundamental Rights and Freedoms"), "and Article 1 of the Additional Protocol on the Protection of Human Rights and Fundamental Freedoms."
Arguments of the appellant
2. The appellant first of all points to the context of the process of adopting the contested provision. It states that, since the contested provision was adopted on the basis of an amendment, there is no reasoned report, including the anticipated economic and financial impact of the proposed legislation on the state budget, the business environment of the Czech Republic, social and environmental impacts. In general, the explanatory memorandum to a significantly different text of the law than the one adopted, says that the costs will go to the Ministry of Justice.
3. By adopting a significantly different text of the law from the government's proposal, and by making it a text of amendments, the contested provision is not far from the so-called adhesive in terms of assessing the legislative process. This is also because the contested provision is, by its nature, a provision governed by public law which significantly interferes with a private law relationship. By law, the State has established a contractual direct link to a financial institution which is a private body and an entrepreneur. Although the contested provision is an amendment to the procedural regulation, it is by its nature a substantive provision and is therefore, in fact, an indirect amendment to Act No. 89 / 2012 Coll., the Civil Code, as amended, whose amendment was not proposed by the Government.
4. According to the appellant, the contested provision confers an advantage on third parties - compulsory, i.e. debtors in execution or enforcement proceedings, thereby favouring a formally undeclared public interest in protecting those persons at the expense of entities operating in the field of money and banking. It also benefits from the compulsory treatment of other entities to which monetary institutions hold unprotected accounts for remuneration.
5. As part of the proportionality test, the appellant claims that the compulsory or debtor is certainly in a difficult social situation, but there may be other persons, such as elderly pensioners with minimum pensions, persons registered at the Czech Labour Office as jobseekers, etc. If the public interest in helping the socially weak and needy were to be calculated, the contested provision is a selective and unjustified selection of only a sub-group of needy persons. The contested provision does not make a distinction between the debtor who caused the damage, hurt his health, etc., and the debtor, who is the wife of the debtor gambler, who learned about the debts only from the execution order, etc.
6. The applicant then refers to the finding of 14.1.2020 sp. zn. The public interest, according to the appellant, is undoubtedly to prevent illegal excesses in the execution or enforcement of decisions. In order to prevent such excesses, disciplinary action institutes are available against a judge or judicial executor, damages for maladministration, etc. In this context, the appellant refers to the finding of 27 November 2007, sp. zn. II. ÚS 1331 / 07 (N 207 / 47 SbNU 255), from which it is intended to show why the objective, that is to say, of protection against unlawful execution, should be achieved through the proper functioning of the State and the administration of the judicial executors. Therefore, the contested provision is disproportionate.
7. According to the appellant, the case under consideration is beyond abstract control of the standards of the contested provision. If the contested provision was found to be constitutional, it would open the way to any arbitrary interference in third parties' rights (e.g. by requiring the carrier to provide a discount on fare, energy supplier on electricity and gas prices, private school operator at school, etc.).
8. According to the appellant, it cannot also be disregarded that the contested provision is a price regulation which is similar to the rent regulation, to which the Constitutional Court recap in its decision of 28 February 2006 sp. zn. In view of the normal level of fees for the establishment and management of an account, it is not possible, on the one hand, to assume the so-called suffocating effect, because the obligation to pay for the keeping of a protected account, as paid for the keeping of an unprotected account, is not an item which would significantly interfere with the budget of the debtor. In addition, the MMF account brings with it the possibility of a credit card or electronic banking, which currently significantly increases the possibility of securing living needs (e.g. the purchase of food during the period of quarantine).
9. Even the money institution is able to bear the cost of keeping protected accounts free of charge, but it is not possible to overlook the agenda of the money institution, which is far more extensive on the side of the monetary institution than on the debtor. Finally, there may also be disproportion between the number of protected accounts for traditional money institutions and newly created ones. The appellant summarises that the contested provision is not justified, proportionate and reasonable. It also states that the protected account may also be set up by a monetary institution which was not a subdebtor in the recovery of the claim, thus entering the proceedings if it enters it at all, in the course of the proceedings.
Proceedings before the Constitutional Court
10. Pursuant to Article 88 (1) of the Constitution, in conjunction with Article 64 (1) (b) of the Law on the Constitutional Court, a group of at least 17 Senators has the right to file an application for annulment of the law or its individual provisions. The proposal in this case was made by a group of 17 Senators and, in accordance with Article 64 (5) of the Law on the Constitutional Court, as amended by Act No. 320 / 2002 Coll., together with a signature document, to which each of them individually confirmed that it was attached to the proposal. The applicant therefore fulfils the condition of active legitimacy.
11. The Constitutional Court did not, however, overlook that for the contested legislation, introduced by Act No. 38 / 2021 Coll., amending Act No. 99 / 1963 Coll., Civil Code, as amended, Act No. 120 / 2001 Coll., on the Judicial Executives and Enforcement Activities (Enforcement Order), as amended, and Act No. 119 / 2001 Coll., laying down the rules for cases of parallel performance of decisions, as amended, voted by the following Senators and Senator proposing its abolition: Martin Červíček, Ladislav Fitor, Tomáš Goláň, Hynek Hanza, Jitka Chalánková, Ladislav Chluka, Tomáš Jirsa, Pavel Karpíšek, Michal Kortyš, Jiří Oberfalzer, Leopold Sulovský, Jaroslav The other proposing Senators, namely Lumir Aschenbrenner, Rostislav Koštial and Tomáš Trítina, did not take part in the vote at all. Although the Constitutional Court does not in any way call into question the possibility of changing the views of the legislature on the constitutionality of certain legislation, it reiterates its appeal to the legislature in order to consistently address the possible ilconstitutional nature of the laws during the legislative process and does not have to subsequently be valid, effective and in practice applied legislation which they have helped enforce before the Constitutional Court [cf. recital 25 to the preamble to the finding of 28 June 2016 sp. v. Pl. ÚS 18 / 15 (N 121 / 81 SbNU 889; 271 / 2016 Coll.) or recital 39 to the finding of 12 / 12 / 17 (N 228 / 87 SbNU 663; 60 / 2018 Coll.)].
12. The proposal also contains other legal requirements, it is admissible within the meaning of Section 66 of the Law on the Constitutional Court and negotiable (a contrario § 67 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.).
Proceedings before the Constitutional Court
13. The Constitutional Court under Section 69 of the Law on the Constitutional Court also invited the Chamber of Deputies and the Senate, the Government and the Ombudsman as potential interveners and the Czech National Bank to comment. Both the Government and the Ombudsman informed the Constitutional Court that they were not entering the proceedings.
Observations of the Chamber of Deputies
14. The Chamber of Deputies (through its President) took note of the progress of the legislative process. The contested provision was inserted into the Civil Code by Act No. 38 / 2021 Coll., amending Act No. 99 / 1963 Coll., the Civil Code, as amended, Act No. 120 / 2001 Coll., on the Judicial Enforcement and Enforcement Activities (Enforcement Regulations), as amended, and Act No. 119 / 2001 Coll., laying down rules for cases of parallel enforcement of decisions, as amended. The draft law later published under No 38 / 2021 Coll. (hereinafter referred to as "the draft law ') was submitted to the Chamber of Deputies by a group of Members on 28 August 2020. The bill was distributed on 31 August 2020 to Members as House Press No. 986 / 0 in the eighth parliamentary term.
15. The first reading of the draft law took place on 7 October 2020, when the Chamber of Deputies ordered it to be consulted by the Constitutional Legal Committee. The Committee discussed the bill on 21 October 2020 and issued a resolution published under the number of the House Press 986 / 2. The second reading of the draft law took place on 23 October 2020, in which a general and detailed debate took place. The amendments to the draft law resulting from the current legislative process were drafted and published under the number of House Press 986 / 3. The Chamber of Deputies discussed the bill at third reading on 13 November 2020 and agreed to the bill. In the final vote (vote 329), 87 votes in favour and one vote against from the 99 Members present. The contested provision was approved in the wording of the amendment by Catherine Valach, which, in summary of the amendments and other proposals (House Press No. 986 / 3), was named D2.
16. The Chamber of Deputies passed the Senate Bill on 24. 11. 2020, which was discussed at its third meeting on 17. 12. 2020 and returned to the Chamber of Deputies with amendments (Senate Resolution 90 of the 3rd meeting of 17. 12. 2020). The Chamber of Deputies discussed the bill returned by the Senate on 19 January 2021, when, in its final vote (vote No 34), it approved the bill as amended by the Senate; of the 158 Members present, 143 voted in favour and no one voted against. The President of the Republic signed the Bill on 22 January 2021. Subsequently, the draft law was published in the Collection of Laws in 17 under No. 38 / 2021 Coll.
Statement by the Senate
17. In its observations (made through the President of the Senate), the Senate first states that a bill containing the so-called "protected account" was submitted in the Chamber of Deputies as a parliamentary proposal. In this original proposal, § 304c (1), third sentence, read: "The Cash Institute does not have the right of payment from the compulsory account contract. 'An amendment was subsequently adopted in the course of the legislative process, which amended the sentence of the third § 304c (1) o. In the debate on this proposal it was said that it was a formulating change based on the request of the Czech National Bank.
18. The bill was passed on to the Senate by the Chamber of Deputies on 24 November 2020. In the Senate, the bill was discussed as print No 8 of the 13th term. The draft law was discussed by the Constitutional Legal Committee on 9 December 2020. The content of Paragraph 304c (1) of the third and third sentences was not in itself a topic of debate; the main topic was the amendments tabled by Senator Anna Hubáčková (establishment and administration of a protected account) and by Senator Michael Canov (local jurisdiction of court executors). The amendment by Senator Anna Hubáček constituted an alternative comprehensive adjustment to the protected account, which, in contrast to other deviations from the draft referred to by the Chamber of Deputies, included a very different mechanism for tying the protected account with the existing compulsory account with the money institution, including addressing the conditions under which the protected account is to be maintained. This alternative arrangement, however, in the proposed § 304c (3), first sentence, stated that the monetary institution does not have the right to pay for the establishment of a protected account. The present representative of the Czech Banking Association also participated in the debate to adopt this amendment. The Constitutional Legal Committee, by Resolution No 10, recommended that the Senate return the bill to the Chamber of Deputies with this amendment.
19. The Senate addressed the bill at its third meeting on 17 December 2020. As part of the speech of the rapporteur, both the Constitutional Legal Committee and other senators in the general debate on the draft law, the proposal referred to by the Chamber of Deputies was widely confronted with an alternative amendment embodied in the resolution of the Constitutional Legal Committee. Once again, the issue of the validity of the establishment or, where applicable, the keeping of a protected account was not a separate issue. The debate was conducted in a spirit of weighing the different ideas and systems for both proposals. All the acting senators then supported the amendment of the constitutional legal committee, including a reference to the favourable opinion not only of the Czech Banking Association but also of some representatives of the non-profit sector dealing with debt advice. Following the completion of the detailed debate, the amendment contained in the resolution of the constitutional legal committee, an alternative adjustment of the protected account (of the 66 senators and senators there were 65 for, against no one, one abstained). In vote 82, the Senate adopted Resolution 90 returning the bill to the Chamber of Deputies as amended. For the motion, 67 senators and senators were elected. Finally, the Senate notes that, when discussing the draft law, it acted within the limits of the Constitution's prescribed powers and in a constitutionally consistent manner.
Statement of the Czech National Bank
20. The Constitutional Court and the Czech National Bank requested observations pursuant to Articles 48 (2) and 49 (1) of the Constitutional Court Act.
21. The Czech National Bank stated in its observations that the Money Institute (which the Czech National Bank only refers to as a bank in its observations), which holds an executable account, has a contractual direct vis-à-vis its client - the holder of the executable account. Since the debtor in execution can only draw the protected account service from a bank that holds an executive account, the law had to lay down the conditions, including the price that the protected account would follow (so that banks could not use the fact that the client could not contact the competing bank in order to determine those conditions and that the courts would not subsequently be overwhelmed by actions for the inadequacy of those conditions or the determination of the content of the contract).
22. The contested provision provides that the protected account is to be subject to the same conditions as those governing the executable account and that the conditions for the management of the executable account must not change depending on whether or not the execution of the decision is conducted. In determining the bank's obligation to have a protected account set up and maintained free of charge, the legislature based on the perception of the client for which the protected account is only a separate part of the encumbered account, which, during the execution period, serves only for incoming payments and the transfer of a non-commensurate minima to the protected account and whose establishment and management are therefore already included in the price of the encumbered account. The contested provision is also intended to prevent circumvention of the terms and conditions provisions by, for example, setting a high remuneration for the management of an account with a monthly turnover below a certain level and calculating that a turnover at which a low or no fee would be charged cannot be achieved by the nature of the matter in the protected account. The original proposal required the bank to provide all the services in the protected account free of charge, only based on the explanation of the Czech National Bank was it possible to charge at least a standard remuneration for outgoing payments, fees related to payment funds etc.
23. If the Constitutional Court had complied with the appellant, the banks could have charged a fee for the establishment and maintenance of a protected account, but only the same as they charge for an executive account. If it would not be possible to adjust § 304c (1), fourth and fourth sentences, it would not allow the banks to charge the price in which all the increased costs associated with the establishment and management of the protected account, which is probably the applicant's objective, would be reflected. The establishment and maintenance of protected accounts undoubtedly represents an increased cost on the part of banks, with the largest costs having to be invested in connection with the modification of systems, preparation of contractual documents, methodology, staffing, etc., before the provision of the protected account. The possibility of charging a new price (fee) for the establishment and maintenance of a protected account, but only the same as for the management of the occupied account, would therefore have only a minimal, sometimes zero benefit for banks (given the large number of accounts held free of charge). Thus, the application for annulment of the contested provision will not (apparently) have the intended effect.
24. According to the Czech National Bank's findings, the total number of protected accounts is between 400 and 500, making the problem completely marginal from a financial point of view. Moreover, this is not the first case where a bank must provide a certain service or make certain efforts free of charge for the benefit of third parties (e.g. § 38 (7) of Act No. 21 / 1992 Coll., on Banks, as amended, (hereinafter referred to as "the Banking Act '), imposing an obligation on banks only to pay material costs, i.e. not fully market conditions). In the case of a protected account, this is a strong public interest in ensuring that the exportable person does not lose the chance to re-enter the company, or that this opportunity does not unnecessarily decrease. Finally, the Czech National Bank states that it is inclined to reject the proposal in substance.
Replication of the appellant
25. In her reply, the draftsman comments only on the comments of the Czech National Bank, as the Chamber of Deputies and the Senate merely summarized the progress of the legislative process against which she does not object. The Czech National Bank, according to the appellant, argues in favour of the failure to abolish the contested legislation from an economic rather than from a constitutional point of view. If they consider that, in the event of the annulment of the contested provision, the various monetary institutions could provide for a different high remuneration, which would introduce an inequality between the obliged entities in execution according to which banks would have set up a protected account, it can be argued that, by analogy, it could be argued, for example, in the case of the amount of the compulsory liability required to perform their profession, that they need a car. It is not possible to accept a solution that, given that one of the entrepreneurs sets a higher price, no entrepreneur should be paid for security; such a procedure would be contrary to Article 26 of the Charter.
26. The Czech National Bank, according to the author, is aware that a proportionality test is needed and shows that there is a strong public interest in the re-inclusion of the exportable person into the company. According to the amounts at issue, it can be concluded that the payment of the remuneration would not have a "choking effect 'for the debtor in execution. It is not only compulsory in execution that they are in a difficult situation, as is the case for single mothers, seniors without an old-age pension, etc. The rights guaranteed by Articles 11 and 26 of the Charter shall be taken into account when establishing any direct. Indeed, there is never any reason for any other solution that the State could pay for the establishment and maintenance of a protected account. The appellant therefore persists in its argument in the application for annulment of the contested provision.
Abandonment of oral proceedings
27. After the above recap of the proceedings, the Constitutional Court concluded that there was no need for oral hearing in the case, as it would not have brought any further clarification of the case than from the written observations requested. Having regard to the wording of Paragraph 44 of the Constitutional Court Act, it therefore decided without oral hearing.
Review of the procedure for the adoption of the contested provision
28. The Constitutional Court first examined, in the terms of Paragraph 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., whether the contested provision was adopted within the limits of the Constitution laid down by competence and by the constitutional procedure.
29. The Constitutional Court verified the progress of the process of adopting Act No. 38 / 2021 Coll., by which the contested provision was inserted into the Civil Code. It was based, in particular, on the observations submitted by the Chamber of Deputies and the Senate, as well as on publicly available electronic sources (stenograms from meetings of the two chambers of the Parliament of the Czech Republic, resolutions and House and Senate, freely available at https: / / www.psp.cz and https: / / www.senat.cz).
30. Although the appellant explicitly states in its reply that it does not raise any objections to the course of the legislative process, its derogatory argument contains a reference that the contested provision "does not have much to the so-called adhesive from the point of view of the legislative process'. The Constitutional Court therefore examined the procedure for hearing and adopting the draft law in such a manner (briefly).
31. The constitutionally inadmissible legislative "attachment 'is (generally) where the amendment to the draft law is introduced by a completely unrelated material which is to be legally modified in a completely different field of social relations than the one which the present draft law intends to regulate in its original version [cf. When distinguishing between the admissible amendment and the inadmissible" adhesive', the key criterion is "whether there is a close relationship between the content and purpose of the original draft law and the content and purpose of the proposed amendment '[paragraph 57 in fine find of 9.1.2013 sp. zn.
32. From the content of the House Press No. 986 / 0 (as well as from the observations of the two chambers of Parliament of the Czech Republic), the Constitutional Court found that, in the original parliamentary bill, the third sentence of Paragraph 304c (1) (a) was drawn up as follows: "The Cash Institute does not have a right of payment under the account agreement." It follows from the section marked as D2 of the summary of amendments and other proposals (House Press No. 986 / 3) that the original wording of the sentence of the third section of Paragraph 304c (1) CS was replaced by the following sentence by the amendment by Mrs Catherine Valach: "The Institute of Money does not have the right to pay for the establishment and maintenance of a protected account. 'The draft law was adopted in this section.
33. Although the text of the legislation of the so-called protected account as a result of the amendments to the draft has partly changed (cf. the content of House Press No. 986 / 0 and the resulting version of Act No. 38 / 2021 Coll.), the intention of the contested provision - i.e. the determination of the validity of the service provided by the money institutions - remains intact and the importance of that provision is preserved. The only (amendment) amendment made to the contested provision was that, for the benefit of the monetary institutions, the latter was expressly limited to the establishment and maintenance of a protected account and thus does not apply to the possibility of claiming payment for other services associated with its use. Therefore, the Constitutional Court cannot conclude that the contested provision was brought into the legal order as a constitutionally inadmissible "appendage 'in the sense of its (above) caselaw.
34. Nor is there a relevant objection to the absence of a reasoned report, since it was circulated together with the parliamentary bill and includes, inter alia, an assessment of the envisaged economic and financial scope of the proposed legislation, in particular the requirements on the state budget, as well as an assessment of the social and economic impact on the compulsory and debtor, as a beneficiary of the contested provision. Although the explanatory memorandum does not contain an assessment of the expected impact of the legislation on the business environment of the Czech Republic (i.e. on the business of the money institutions concerned), it is not a fact of any constitutional importance in itself.
35. The Constitutional Court in the legislative process did not find any constitutionally relevant defects and concludes that Law No 38 / 2021 Coll. including the contested provision was adopted by a constitutionally prescribed procedure and within the limits of the constitutional powers and powers provided for. In detail, the Constitutional Court refers to the description of the progress of the legislative process summarised in the statements of the Chamber of Deputies and the Senate in paragraphs 13 to 18 above.
Meritorious review of the proposal
36. After examining the formal elements of the proposal and the process of adopting the contested provision, the Constitutional Court examined it in substance and, on the basis of the considerations set out below, concluded that the proposal was not justified.
37. The contested provision reads: "The Money Institute shall not be entitled to payment for the establishment and maintenance of a protected account."
38. The applicant seeks the annulment of the contested provision for its alleged contradiction with Articles 1, 11 and 26 of the Charter and Article 1 of the Additional Protocol to the Convention. The appellant does not explicitly specify in its proposal the constitutional right or freedom to which individual claims and objections are bound. The appellant contends that the arguments put forward by the appellant are a mixture of individual unconstitutional aspects which, in turn, lead to the overall conclusion that the contested provision "is not justified and proportionate, reasonable." The Constitutional Court will therefore submit the contested provision of review in the intentions of the appellant's so-called arguments, dividing its reasoning for maintaining methodological clarity structurally according to the various constitutional rights and freedoms which the appellant expressly contests.
39. The Constitutional Court states that, although the contested provision contains the term "money institution ', as a legislative abbreviation for institutions referred to in Section 260 of the Civil Code (which are banks, branches of a foreign bank or savings and credit cooperatives, electronic money institutions, branches of a foreign electronic money institution, issuers of small-scale electronic money, payment institutions, branches of a foreign payment institution or providers of small-scale payment services), the argument of the Constitutional Court contained in this finding will apply to banks and branches of foreign banks (hereinafter collectively referred to as" banks') providing payment services on the basis of a payment account contract [§ 2669 of the Civil Code in conjunction with § 2 (1) and (b) and § 127 et seq. the general part of the explanatory memorandum to Act No. 38 / 2021 Coll.].
Proposed infringement of Article 11 of the Charter and Article 1 of the Additional Protocol to the Convention
40. The Constitutional Court, having considered the appellant's argument, concluded that the contested provision did not interfere with the ownership of the monetary institutions guaranteed by Article 11 (1) of the Charter and Article 1 of the Additional Protocol to the Convention.
41. The Constitutional Court first of all takes the view that the appellant merely claims to intervene in the ownership of the monetary institutions but does not specify it. It cannot be categorically excluded that the contested provision, or its limited possibility of requiring payment, would not be eligible (at least hypothetically) to intervene in the property law of the monetary institutions [the price regulation - in general - limits the contractual freedom, which is a derivative of the constitutional protection of property law pursuant to Article 11 (1) of the Charter (or, more precisely, in the context of that law, its anchoring is the most firm), cf. Obiter dictum of the finding of 23.5.2000 sp. zn. Pl. ÚS 24 / 99 (N 73 / 18 SbNU 135; 167 / 2000 Sb.), the finding of the ÚS 20 / 05 or recital 51 of the judgment of 14.8.2018 sp. Pl. ÚS 14 / 17 (N 134 / 90 SbNU 205; 200 / 2018 Sb)].
42. The appellant does not even specify, let alone illustrate (e.g. by reference to statistical data and other relevant documents), how the contested provision is manifested directly, emotionally and negatively in the property sphere of the monetary institutions or other persons. The following lines of reasoning are relevant to the Constitutional Court, which testify against the contested interference with the constitutionally guaranteed property right:
43. The first level lies in the very essence of the functioning of the money institutions, as business entities providing payment and other financial services for profit - in this case banks. The economic essence of banking is the two main banking activities, namely taking deposits from the public and lending; the banks thus accumulate free funds from the public to provide them to the persons to whom they serve to meet their needs (LIŠKA, P. In: LIŠKA, P. a kol. Comment. Praha: Wolters Kluwer ČR, 2016, p. 9). In doing so, the deposit liabilities (assets) constitute a significant part of the liabilities of banks [see for example the data from the publicly available report of the Czech National Bank on financial market supervision for 2021, available at https: / / www.cnb.cz, showing that deposits in accrued value account for around 75% of the total liabilities of the banking sector in recent years (2019 to 2021)]. The bank's resources are then used in line with the objectives of the banks for their long-term returns (see BOLO, S. et al. Banking. Issue 2. Prague: C. H. Beck, 2013, p. 122-130), with the main source of income for commercial banks being interest income, which accounts for a substantial part of the bank's profits (approximately 70% of the total profits from financial activity - see data from the already quoted report by the Czech National Bank on financial market supervision for 2021, p. 49 and 50).
44. The purpose of the protected account's legislation is, inter alia, to strengthen non-cash transparent banking traffic by providing compulsory natural persons with the possibility of setting up an account enabling them to make non-cash payment with amounts not subject to the enforcement of the decision. As a result of the enforcement of the decision, the debtor was obliged to manage amounts that are executable in cash or in a third party's account prior to the adoption of the legislation on the protected account (cf. SZÍNOVÁ, R. The new legislation on the so-called protected account. Chamber papers No. 1 / 2022. Wolters Kluwer ČR, p. 28), or was pushed into the so-called grey economy (cf. general part of the explanatory note to Act No. 38 / 2021 Coll., see also ŠIKA, M. Treatise on the Institute of Protected Account. Judge No 7 / 2021. Wolters Kluwer CZ, p. 26).
45. The teleology currently defined shows an incentive for obliged entities to set up and maintain protected accounts for monetary institutions in which they can freely dispose of the funds deposited there without fear of the execution of such funds. Of this, the increase in the volume of the financial resources of the money institutions can be predicted, thereby ensuring that they are liquidity and can be further used for the actual profit-making of the money institutions (see POOL, S., requoted, p. 122). It is therefore also not clear whether the actual contested provision to the monetary institutions is, in terms of their property (economic) interests, to harm, as ultimately, in terms of the intended considerations, only a change in the composition of their income and costs.
46. Secondly, the Constitutional Court points out that the current - generally known - trend in the provision of payment services is that monetary institutions (banks) offer the establishment and management ("ordinary") of a payment account in the vast majority of cases free of charge, except for exceptions without further conditions or in the order of tens of crowns per month (for example, a summary and comparison of current accounts available in the database of Czech banks and financial products on https: / / www.banky.cz). In the current market for payment services, where the provision of the service in question is substantially free, the obligation to establish and maintain a protected account free of charge does not appear to be an intervention by which monetary institutions suffer from their total income and aggregate amount of own resources. In other words, it cannot be concluded that the assets of the money institutions would be impaired by the contested provision introduced by the obligation directly (let alone unduly). Moreover, the Czech National Bank also points out in its observations that the annulment of the contested provision would have only a minimal, often zero benefit, given the normal amount of the management fees and the establishment of "current 'accounts [to the constitutionality of the bank charges in general compared to the finding of 10.4.2014 sp. zn. III. ÚS 3725 / 13 (N 55 / 73 SbNU 89)].
47. It should be added that the contested provision does not apply to other charges relating to the use of the protected account (cf. § 304c (1), fourth sentence of the fourth o. s. s.), according to which the monetary institution keeps the protected account under the conditions governing the account in which enforcement of the decision is made against the debtor). The revised regulation does not therefore deny the money institutions the possibility to demand payment from these other payment services (e.g. the Czech National Bank reported fees for outgoing payments, payment facilities etc.).
48. The appellant itself recognises that monetary institutions are able to bear the cost of free keeping of their protected accounts, precisely because of the normal amount of fees for setting up and maintaining the account. If it is not possible to overlook an agenda with the establishment and management of a protected account linked to it, the Constitutional Court states that the appellant does not specify in any way what specific agenda is to be, what its complexity is and how it is reflected in the alleged infringement of Article 11 of the Charter and Article 1 of the Additional Protocol to the Convention. Moreover, as is apparent from the Czech National Bank's observations, the number of people using the protected account institutes is (at present) relatively low in the order of hundreds.
49. The time aspect must also be taken into account. The legislation of the protected account (including the contested provision) is effective from 1.7.2021. Since 11 months had elapsed since the legislation was effective until the submission of the proposal (8.6.2022), the appellant was able to specify or at least approximately quantify (almost a year ago) the claimed burden associated with the existence of the contested provision. In doing so, it can be assumed that such balance sheet (statistical) data are available to monetary institutions. However, from its proposal, such circumstances (albeit at the level of the claim) do not apply. It is not the role of the Constitutional Court to consider such an argument, let alone to ascertain on the basis of it the facts or the effects of the contested provision on the constitutional rights and freedoms, if, moreover, there are circumstances against that claim.
50. Although the Constitutional Court recalls that when assessing the constitutionality, the facts are more general than those specific (quantitative data) [cf. recital 53 of the judgment of 18.1.2022 sp. zn. Pl. ÚS 43 / 18 (28 / 2022 Coll.)], in the current review, no facts (whether general or specific) on which the Constitutional Court could conclude on the interference with the property law of the money institutions, or at least considered the degree (proportionality) of such intervention do not exist.
51. It is impossible for the appellant to compare the contested provision with the issue of the so-called rent regulation, which the Constitutional Court has dealt with several times in the past and in respect of which he has committed infringement of the right of the owners concerned to protect their property - in a simplified manner - by the fact that the content and exercise of a number of basic rights which constitute the content of the property right (the right to freely dispose of the property, benefit from it etc.) were unjustifiably challenged and denied [cf. the finding of 21.6.2000 sp. If, in this context, the appellant cites an excerpt of the grounds of the Constitutional Court's finding that the PSO 20 / 05, under which "[c] en regulation, if it does not exceed the limits of constitutionality, must clearly not reduce the price so that, in view of all the costs which have been demonstrated and necessarily incurred, the possibility of at least eliminating their return, since in such a case it would in fact imply a denial of the purpose and of all the functions of ownership ', it is not clear how this conclusion is reflected in the conclusion on (not) the constitutionality of the contested provision.
52. The situation now under consideration is different from the rent regulation already in the fact that the contested provision does not restrict the ownership right (or the autonomy of the will) of monetary institutions in relation to specifically identifiable things, or in other words, there are not directly limitations on some of the aspects of ownership (the right to dispose of own property, to treat it contractually, etc.). Moreover, the rent regulation affected a wide range of owners of real estate, regardless of their business status, whereas the contested provision now applies only to money institutions (banks), i.e. entities operating in a highly regulated business sector.
53. By its nature, the contested provision provides for an obligation to provide a service without the right to an adequate remuneration rather comparable (but not entirely comparable) to the issue (regulated) of remuneration for the performance of other business activities [cf. sp. zn. Pl. Pl. ÚS 13 / 14 (N 164 / 78 SbNU 451; 297 / 2015 Sb.) in relation to the remuneration of experts, the finding of sp. zn. Pl. Pl. ÚS 14 / 17 in relation to the remuneration of lawyers performing the duties of 24 September 2019 sp. In these cases, the reference criterion was the right to do business under Article 26 (1) of the Charter (in relation to lawyers acting as guardians, the right to acquire funds for their living needs by working under Article 26 (3) of the Charter), not the protection of property rights under Article 11 (1) of the Charter; the intervention in this right could possibly be only secondary, manifested by the restrictions on business [cf. the finding of 12 December 2017 sp. zn. Pl. ÚS 26 / 16 (N 227 / 87 CollNU 597; 8 / 2018 Coll.)] - see, however, part VI (2) of this finding.
54. In the light of the above, the Constitutional Court concludes that, on the basis of (not of detailed and substantiated) arguments, it could not conclude that the contested provision had been involved in the ownership of the money institutions. The Constitutional Court therefore did not even assess whether the contested provision, or, more precisely, the restriction of property rights in it, would stand for the proportionality test.
The contested infringement of Article 26 of the Charter
55. The contested provision limits the possibility for monetary institutions to require payment for the provision of a service (establishment and maintenance of a protected account); The appellant can therefore be accused that the contested provision interferes with the right of money institutions to engage in business (Article 26 (1) of the Charter) as persons engaged, inter alia, in the provision of payment services.
General considerations
56. In accordance with Article 26 It is necessary to distinguish between access to the right to conduct business as a freedom of business guaranteed in paragraph 1 of this provision and the pursuit of a profession or other economic activity, including the conditions attached to that exercise, which may be laid down by law (Article 26 (2) of the Charter). The right to do business shall be classified in the title of the fourth Charter as so-called economic, social and cultural rights, as well as the economic law listed in Article 41 (1) of the Charter. It is therefore not directly enforceable to the same extent as fundamental human rights or political rights. The regulation of these rights is primarily in the hands of the legislator and only secondary and, to a limited extent, the constitutional guarantees of economic, social and cultural rights can be regarded as a question of judicial [paragraph 69 of the preamble to the decision of the sp. zn.
57. Although there is no right to profit from the constitutionally guaranteed right to do business and operate another economic activity, the State is obliged to create conditions that allow individuals to make real efforts to achieve it [see, for example, recital 48 of the Recital of the Decision of 22.10.2013 sp. zn. ÚS 19 / 13 (N 178 / 71 CollNU 105; 396 / 2013 Coll.)]. The Constitutional Court assesses the effectiveness and appropriateness of the legal regulation in this field by keeping the legislature in a broad (albeit not absolute) discretion for the specific definition of the content and manner of implementation of this right [cf. the finding of 12.7.2001 sp. zn. Pl. ÚS 11 / 2000 (N 113 / 23 SbNU 105; 322 / 2001 Coll.) or recital 278 to the finding of 27.11.2012 sp. zn. Pl. ÚS 1 / 12 (N 195 / 67 SbNU 333; 437 / 2012 Coll.)]. It is always necessary to ensure the limits resulting from Article 4 (4) of the Charter [recital 198 to the judgment of 12 March 2008 sp. zn.
58. The Constitutional Court uses the so-called "reasonable test '[see paragraphs 102 to 105 of the preamble to the finding of 20.5.2008 sp. zn. Pl. ÚS 1 / 08 (N 91 / 49 SbNU 273; 251 / 2008 Coll.) or paragraph 85 of the preamble to the finding of 27.1.2015 sp. zn. Pl. ÚS 16 / 14 (N 15 / 76 SbNU 197; 99 / 2015 Coll.)], consisting of the following four steps:
(a) the definition of the meaning and substance of economic or social law, namely its essential content;
(b) an assessment of whether the law or other legislation does not affect the very existence of economic or social law or the actual realisation of its essential content;
(c) an assessment of whether the legislation contained in the law or other legislation pursues a legitimate objective, that is to say, whether it is an arbitrary substantial reduction in the overall standard of fundamental rights; and
(d) consider whether the means used to achieve it is reasonable, albeit not necessarily the best, the most appropriate, the most effective or the wisest.
59. If the Constitutional Court, in the second step of the reasonable test, concludes that the contested legislation negates the core of the constitutionally guaranteed economic law, it denies its very existence, substance and purpose, does not continue to implement it and instead assesses the admissibility of the intervention in that law within the framework of the (stricter) proportionality test [cf.
60. Right to do business pursuant to Article 26 (1) The Charter guarantees the possibility of carrying on business as well as that the obligations and restrictions relating to it will not prevent its main purpose (cf. That provision includes a positive and negative aspect of the right to do business (Article 26 (1) in conjunction with Article 2 (3) of the Charter or Article 2 (4) of the Constitution), which is to respect the autonomous scope for the decision-making of the rightholder; the right to conduct business includes several related aspects (cf. sp. zn. Pl. ÚS 43 / 18).
61. As further explained by the Constitutional Court in the finding in sp. zn.
Application of general considerations to the circumstances of the case
62. First of all, the Constitutional Court notes for further consideration that the appellant does not oppose the legislation of the so-called protected account as a whole and its pre-existing contract line, but rather its (relatively) small section concerning the set validity of a specific monetary institution provided by the service.
63. If it is a first step in the rationality test, it can generally be said that the meaning and substance of the right to do business are, on the one hand, purely individual (the possibility of individual self-evaluation) and, on the other hand, material law, as such individual freedom is also a fundamental necessity of a democratic rule of law and, finally, economic; the restriction on the substance and the meaning of the right to engage in business and to pursue another economic activity would be if, as a result of that activity, an activity would no longer be eligible to provide funds for the needs of those carrying out it [see recital 53 of the judgment of 9.2.2021 sp. zn. Pl. ÚS 106 / 20 (123 / 2021 Coll.) and the caselaw cited therein; All decisions of the Constitutional Court are available at https: / / nalus.ujud.cz].
64. The Constitutional Court has already concluded in the past that "[c] en regulation does not prevent anyone from doing business or operating any other economic activity, since everyone has the freedom to decide whether to do business in a given area under the conditions" (finding sp. zn. Pl. ÚS 3 / 2000) if, at the same time, the courts resulting from Article 4 (4) of the Charter [for example, the finding of 11.6.2003 sp. (Pl. ÚS 40 / 02 (N 88 / 30 CollNU 327; 199 / 2003 Coll.)]. The State must not create a state monopoly if the meaning and substance of the basic law referred to in Article 26 (1) of the Charter is to be maintained in the terms of Article 4 (4) of the Charter, therefore it must not be allowed to prevent a certain area of business, it must not create a state monopoly and it must maintain the possibility of making a profit, taking into account the relevant factors of a particular social area (cf.
65. According to the Constitutional Court, the intervention in the right to do business, preceded by the contested provision, with its low intensity, is not at all eligible to intervene in the core of this constitutionally guaranteed right, nor is the appellant itself claiming that this is not the case (on the contrary it does not foresee the "choking 'effect of the legislation under review). The contested provision regulates only a partial aspect of the business of monetary institutions (remuneration for setting up and maintaining a protected account) for a minority circle of their customers (mandatory with an existing account with the same money institution) without any significant influence on the unimpeded performance of the financial market business. The burden, as well as the related costs associated with the establishment and management of protected accounts, cannot be considered prima facie to be excessive, objectively preventing money institutions from carrying out their business properly. As has already been indicated, the establishment and management of protected accounts is only one of many payment or more generally financial services provided by monetary institutions in their business activities and which can have only negligible (if any - see Section VI (1) of this finding) influence in their economic (property) sphere. Nor can it be concluded that such an obligation would prevent new business entities from entering the market for the provision of payment services.
66. The contested provision would affect the substance and meaning of the right to engage in business if, on its basis, the provision of a service free of charge, given the extent of its provision in fact - without any other compensation - would make it impossible for the monetary institutions to obtain at least a reasonable profit and to fulfil the economic meaning of their existence. However, this is clearly not the case with regard to the contested provision.
67. The Constitutional Court therefore concludes that the contested provision does not affect the defined meaning and substance (Article 4 (4) of the Charter) of the right to engage in business guaranteed in Article 26 (1) of the Charter. The introduction of an obligation to provide a service without entitlement to remuneration should therefore be subsummed under Article 26 (2) of the Charter and should not be subject to a stricter proportionality test.
68. As part of the third step of the rationality test, the Constitutional Court considered whether the contested provision could be regarded as legitimate. First, however, the Constitutional Court had to identify this objective. The special part of the explanatory memorandum to Act No. 38 / 2021 Coll. justifies the prescribed nullity only by "[...] based on the construction of the existence of an account with the money institution for which enforcement of the decision is made against the debtor '. In addition to the conditions under which the protected account is maintained, the explanatory memorandum adds that" [with] the purpose of the adjustment is to intervene as little as possible in the existing relations between the monetary institution and the debtor and, at the same time, in the public interest to ensure that the execution of the decision is not effectively subject to the funds for which the law prohibits it, and transparency of cash transfers and the enforcement of the decision itself has been strengthened. At the same time, a new rule is laid down that the terms and conditions of the management of an account to which enforcement of a decision is directed against the debtor must not change depending on whether or not enforcement of the decision is being exercised. This change takes place in the light of the practice of some banks which, in the context of the execution, charge considerable additional bank charges, with [...] Therefore, when introducing a protected account into the Czech legal order, this fundamental change is proposed, which in the public interest increases the effectiveness and functionality of regulation in the enforcement of decisions. "
69. If, for the purposes of its assessment, the Constitutional Court reconstructs the objective pursued by the contested provision, both from its text and (predominantly teleological) interpretation, as well as from the related explanatory memorandum, it concludes that it monitors the protection of obliged persons against excessive charges for the establishment and maintenance of a protected account by a monetary institution, and ultimately reduces the property burden imposed by the compulsory enforcement of the decision. According to the Constitutional Court, the objective thus defined is legitimate.
70. It should also be taken into account at this point that, in contrast to the aspects of the right to engage in the activities referred to in Article 26 (1) of the Charter of the Constitutional Court, the obligation of the State to restrict business in order to protect the rights and freedoms of other persons, for example in consumer relations [see, to that effect, the finding of 2. 7. 2019, sp. zl.
71. The contested provision (i.e. the whole institution of the protected account) enters into the regulation of private relations on a highly regulated business segment where a limited number of business entities are subject to strict state supervision and control. Obligation to restrict business in order to protect the rights and freedoms of others and the related area of the legislator (its discretions and limits) for the lawful restriction of the exercise of business activities within the meaning of Article 26 (2) The instruments are therefore substantially wider in the field of the provision of monetary services (as well as throughout the financial market) than in other less regulated business sectors. If the legislator prefers the protection of the debtor at the expense of the monetary institutions and their - primarily property - interests, the restriction on their business activities cannot be regarded as illegitimate, let alone arbitrary.
72. When the last (fourth) step of the proportionality test is taken, the Constitutional Court finds that the contested provision is a reasonable means of achieving its objective, or it cannot conclude that the legislation under assessment governing the balance between the conflicting interests - i.e. the protection of the mandatory, on the one hand, and the protection of the property interests of the monetary institutions on the other hand - is manifestly irrational [cf. recital 48 to the judgment of 24 April 2012 sp. zn. Pl. ÚS 54 / 10 (N 84 / 65 SbNU 121; 186 / 2012 Coll.] or recital 374 to the Recital sp. If the appellant contends explicitly that the contested provision is unreasonable, it is not apparent from its proposal what it should specifically consist of.
73. If the rationality test is not to be emptied, the Constitutional Court measures the rationality of the legal remedy under consideration with the rationality of possible better regulation. Therefore, there must be an obstacle through which unreasonable legislation will not pass in comparison to another, reasonable one (see, for example, recital 43 of the Recital of the Opinion, page Pl. ÚS 37 / 16). If the legislator wanted to achieve the intended effect (objective pursued), only such legislation as would transfer the costs of setting up and maintaining the protected account to the State, as the appellant partially imposes. Here too, however, the outlining starting point of view is that, in cases of a highly regulated business sector in which only a limited number of business entities can operate, the legislator is given a looser consideration in balancing individual public interests and distributing the costs of securing them.
74. In addition, except for the repeatedly mentioned low (to zero) load intensity associated with the contested provision, it should be noted that the legislation of the protected account does not exclude the possibility of charging other connected services with the protected account from its original draft. At the same time, it does not interfere with the possibility of requiring payment for the establishment and management of a payment account whose existence (and enforcement disability) with the same money institution is a legal condition for the establishment of a protected account. In the case of a protected account, it is therefore - as the Czech National Bank admittedly states in its observations - only a "separate part of the blocked account" whose management is not excluded for remuneration. The legislation aimed at delaying the mandatory management of their finances cannot be considered unreasonable, or perhaps even arbitrary. All the more so in the context that the contested provision is without prejudice to the legal relations (and possible remuneration) relating to the establishment and management of a (normal) payment account by which the person requesting the establishment of a protected account with the same payment institution must already have it.
75. The legislation which would impose the costs in question on the compulsory ones alone would not have been able to achieve, or more precisely, the objective identified, rather than in such an - intended - scope. In this context, the Czech National Bank may also be accused that a possible deregulation of the contested provision would not bring about the desired effect in the form of the possibility of requiring payment for the establishment and maintenance of a protected account under market conditions, provided that at the same time the monetary institution is obliged to keep a protected account under the conditions governing the account for which enforcement of the decision is made against the debtor (Section 304c (1), fourth sentence, of the judgment).
76. Finally, the Constitutional Court adds that its conclusion does not mean that it confirms the solution chosen by the legislator as the only possible or even best solution. At this point, it underlines its conclusions expressed in the finding in point sp. zn. it is not called upon to assess the economic aspects of the necessity and necessity of, for example, the various business adjustments due to the need to safeguard individual, often side by side or even against (alleged) public interests. The choice of restrictive control tools and their level of application are primarily the responsibility of the legislator. Only Parliament, as a representative body, can take such action in our constitutional system. His responsibility for recognising the problems that require regulation, the choice of instruments and their effects, which may sometimes be negative, is primarily political '[recital 179 to the cited finding]. See also recital 85 of the Recital of the finding of 12.5.2015 sp. zn. The involvement of the Constitutional Court in legislative activities is only appropriate if it finds in it elements of unconstitutionality - but it does not find them in the contested provision.
77. The Constitutional Court therefore summarises that the obligation to establish and maintain a protected account free of charge is not an unconstitutional restriction on the right to do business guaranteed by Article 26 (1) of the Charter or to exceed the limits arising from Articles 4 (4) and 26 (2) of the Charter. The contested regulation has passed the test of rationality, as it does not interfere with the very core of the right to do business, pursues a legitimate objective and has chosen reasonable and not arbitrary means to achieve that objective.
The contested infringement of Article 1 of the Charter
78. In its established decision-making practice, the Constitutional Court is based on the fact that the right to equal treatment is guaranteed, on the one hand, in Article 1 of the Charter as a separate fundamental right, which can be sought directly and without further (equality of non-acesoric), on the other hand, as a fundamental right conditional on Article 3 (1) of the Charter only in connection with the alleged interference with another fundamental right or freedom protected by the Charter (equality of acesoric) [see the finding of the Constitutional Court of the Czech and Slovak Federal Republic of 8.10.1992 [Pl. ÚS 22 / 92 (Order of the Constitutional Court of the Czech Republic, p. 11, p. 41]; see the findings of 4.6.1997 sp.
79. The distinction between accessorial or non-accessorial equality in legal control proceedings before the Constitutional Court is of no key importance. In particular, the reason for the different treatment, that is to say the distinctive character established, and at the same time the specific right (s) in respect of which it is treated differently is decisive. This must be in accordance with the requirements laid down by the Constitutional Court for the justification of the legitimacy (justification) of the different treatment (see paragraphs 100 and 101 of the preamble to the finding of sp. zn.
80. If legal regulation favours one group or category of persons over another, it cannot, by itself, be described as a contradiction with the principle of equality. The legislature must have some scope to consider whether such preferential treatment will anchor. In order to infringe the right to equal treatment, various entities in the same or comparable situation must be treated differently without having objective and reasonable grounds for a different approach [cf., e.g. the finding of 21.1.2003 sp. zn. Pl. ÚS 15 / 02 (N 11 / 29 SbNU 79; 40 / 2003 Coll.), of 22.1.2008 sp. zn. Pl. Pl. ÚS 54 / 05 (N 16 / 48 SbNU 167; 265 / 2008 Sb.), of 15.11.2011 sp. sp. zn. Pl. ÚS 20 / 09 (N 195 / 63 SbNU 247; 36 / 2012 Sb.) or paragraph 75 of the judgment of 15.5.2012 sp.
81. The appellant criticises, inter alia, its contradiction with Article 1 of the Charter, i.e. the so-called non-Accesorial Equality, which it sees as favouring the contested provision in relation to other persons to whom the monetary institutions establish and maintain "unprotected" accounts for remuneration. In this regard, it also argues that, on the contrary, the contested provision also applies to entities to which the appellant considers that the advantage should not be granted. The appellant does not expressly object to an infringement of equality.
82. In particular, the appellant contends that, if the contested provision is aimed at helping the socially weak and needy, it selectively favours only the sub-groups of the needy (compulsory). However, that objection is odd, according to the Constitutional Court, for two reasons:
83. Firstly, the appellant is based on an inappropriately general definition of the purpose of the contested provision, namely the entire legislation of the protected account, which is specifically the protection of the mandatory persons to which only the protected account institute applies (see also paragraphs 67 and 68 above). Secondly, the appellant of the pre-screened circles of persons - i.e. persons in a difficult social situation and compulsory - are not comparable in an abstract level or are not (necessarily) different categories. In fact, it is not excluded that these headings of persons may intersect, since in principle any natural person may be able to face the forced execution of a decision (for example because of a difficult social situation), thereby becoming a person liable to use the protected account institute - free of charge and managed -. Therefore, in the case of the contested provision, it can no longer be a constitutionally inadmissible different treatment within the meaning of Article 1 of the Charter (or Article 3 (1) of the Charter).
84. The appellant further contends that, provided that there is a public interest in protecting debtors in execution, the contested provision does not make a distinction between the reasons for which the person concerned is subject to the enforcement of the decision (in this context it refers to the debts incurred by the guilty conduct, as a result of criminal activity, to the preferential claims, etc.). In addition, the Constitutional Court states that that objection is not at all capable of establishing a conclusion on the infringement of the legislation under review with the requirement of equality, since the contested provision does not differentiate in any way between the headings of the compulsory (or persons who can benefit from the contested provision), whereas, as mentioned above, the category of debtor is universal. In other words, there is no priori limited number of persons who may become mandatory. There is therefore no entity to be treated differently. As regards the fact that the contested provision applies only to natural persons (not to legal persons), the appellant does not take any action.
85. Although the appellant does not expressly do so, any inequality must be distinguished not only in respect of persons in respect of whom the contested provision is working (i.e. compulsory) but also in respect of persons who are affected by the obligation to establish and maintain a protected account free of charge (i.e. monetary institutions). The appellant's assertion that, as a result of the free establishment and keeping of protected accounts, there may be a discrepancy between the number of protected accounts for traditional cash institutions and newly created institutions may be substratedly undermined. However, the appellant does not specify what this disproportion is to consist of. The Constitutional Court itself has no reason to believe that the contested provision would unduly affect a certain range of entities if it applies to all monetary institutions without distinction.
Other objections
86. If the appellant's remaining objection is concerned, the Constitutional Court states:
87. As a completely impossible Constitutional Court, it rejects the appellant's argument that the non-annulment of the contested provision by the Constitutional Court would give the basis for arbitrary interference by the legislature in the rights of third parties (guaranteed by Articles 11 (1) and 26 of the Charter). In fact, an abstract review of the legislation is carried out by the Constitutional Court, taking into account specific aspects and circumstances, as it has done in the present case, when it did not find any contradiction in the contested provision with the constitutional order.
88. Furthermore, the objection that the contested provision - entered into the Civil Code as a Civil Code - goes into the private sphere of law, i.e. that it regulates the rights and obligations of private legal entities in the level of obligations does not have constitutional relevance. The Constitutional Court has already pointed out in the past that there is more frequent and closer intermingling, a combination and an intensive interaction between elements of private law and public law [finding of 10.1.2001 sp. zn. Pl. ÚS 33 / 2000 (N 5 / 21 SbNU 29; 78 / 2001 Coll.)]. It is also possible to cross the borders between private and public law within a single law, but in itself does not constitute an inconstitutionality of the law [recital 178 to the judgment of 27.3.2018 sp. zl. ÚS 7 / 17 (N 55 / 88 SbNU 727; 81 / 2018 Coll.)].
89. Finally, if the appellant's objection is that the public interest - i.e. preventing unlawful excesses in the execution or enforcement of judgments - can be achieved through the proper functioning of the State and the self-administration of the judicial executors, and therefore it considers that the use of the device is disproportionate, the Constitutional Court notes that this objection is clearly wrong with the substance of the review of the case now under consideration. In this section, the appellant disputes the purpose and purpose of the protected account as such, against which (or, consequently, the whole related legislation) it does not apply.
Conclusion
90. For all the above reasons, the Constitutional Court decided, in accordance with Paragraph 70 (2) of the Constitutional Court Act, to reject the application.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 90 / 2023 Coll., on the application for annulment of § 304c (1) of the third sentence of Act No. 99 / 1963 Coll., Civil Code, as amended by later regulations |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 05.04.2023 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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