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HEADNOTES
According
to Art. 1 para. 1 of the Constitution, the Czech Republic is a
sovereign, unitary, and democratic state governed by the rule of law,
founded on respect for the rights and freedoms of man and of citizens,
one of the main pillars of which is legal certainty. It is from this
point of view that the content of legally normative acts, including
implementing legislation, must be adjudicated (the unclear and
indefinite construction of which might also lead to the violation of the
right to fair process protected in Art. 36 para. 1 of the Charter of
Fundamental Rights and Basic Freedoms), as must the operation of legal
enactments upon past time periods, alternatively their influence upon
past legal facts, since even potential impermissible retroactivity is in
conflict with the postulate of the democratic, law-based state.
It is in accordance with the principle of legal certainty for new legal
rules to have such an impact on existing legal relations, if their
coming into existence, and the legal claims and the performance of legal
transactions related thereto, established prior to the new rule coming
into effect, are governed by the repealed norm. The transitional
provisions of Government Regulations Nos. 233/2004 Coll. and 291/2006
Coll. constitute a violation of this principle, as they apply the new
principle for the formation of an enforcement official‘s base commission
even to proceedings commenced before the changes came into effect.
There is no doubt at all that the selected construction has shaken
confidence in the legal order, because enforcement officials‘
commissions are governed by legal rules which did not come into effect
until after the enforcement officials had already performed all of the
legal acts directed at the satisfaction of collected claims.
According to the Constitutional Court’s constant jurisprudence, both in
proceedings on constitutional complaints and in abstract norm control
proceedings, the principle of proportionality provides the mechanism for
the resolution of a conflict between fundamental rights, or public
goods protected by the constitutional order. Without calling into
question the right of enforcement officials to fair remuneration for
enforcement activities actually carried out, the Constitutional Court
considers the fact that an enforcement official‘s base commission also
includes an amount paid by the obliged person, even if the enforcement
official had not directly participated in levying execution, must be
considered as unjustified preferential treatment as against those
enforcement officials who actually levied execution (as such a
differentiation is not rationally justifiable). Moreover, in the
Constitutional Court’s view the adopted construction lacks even an
„educational“ component, since no possibility is provided de jure to
acknowledge that the obliged debtor has himself satisfied his obligation
(without direct action to enforce it), even if only at the last
possible moment. Although the Regulation’s provisions indicate that
enforcement officials are entitled, in such a case, to a commission at a
50% rate, however, only in cases where the enforcement official waives
the levying of execution, whereas the Enforcement Code enables them to
do so only in the case that the costs of enforcement activities, which
includes also the enforcement official’s commission, are also paid. It
follows therefrom that, in accordance with the literal wording of the
Act, if the obliged person fails to pay the enforcement official her
commission in the full amount, she cannot waive the levying of
execution, even if the claim sought has been paid; therefore,
enforcement officials have the right, against the sense of logic, to a
commission in the full amount (this is movement in a circle). The
Constitutional Court considers this construction to be in conflict with
Art. 1 para. 1 of the Constitution, as the creation of unfulfillable
conditions for a reduced rate to apply is in conflict with the principle
of the law-based state. In its ultimate consequences, such a legal
framework also constitutes an interference with the obliged person’s
fundamental right to the protection of property enshrined in Art. 11
para. 1 of the Charter of Fundamental Rights and Basic Freedoms.
The constitutional conformity of the rules governing enforcement
officials‘ commissions should not be based on a direct correlation
between the commission and the value of the exacted performance, rather
should reflect the complexity of the enforcement officials‘ activity
according to individual types and the manner of levying execution, as
well the enforcement official’s responsibility and the amount of work
required for it.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Constitutional Court in its Plenum, composed of its Chairman Pavel Rychetský and judges Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimír Kurka, Jiří Mucha, Jan Musil, Jiří Nykodým, Miloslav Výborný, Eliška Wagnerová and Michaela Židlická, in the matter of the petition, submitted by the Constitutional Court‘s Panel I, proposing the annulment of § 5 para. 1, the second sentence, of Regulation. No. 330/2001 Coll., as subsequently amended, and in the matter of the petition of P. s. b. d., represented by Mgr. L. H., an advocate, proposing the annulment of Art. II., point 1. of Regulation No. 233/2004 Coll., which amends Regulation No. 330/2001 Coll., on the Commissions for and Reimbursement of Court Enforcement Officials, on the Commissions for and Reimbursement of Expenditures of the Administrator of an Enterprise, and on the Conditions for Indemnity of Responsibility for Damage Caused by Enforcement Officials, with the participation of the Ministry of Justice and the Public Protector of Rights, decided as follows:
I.
The provisions of § 5 para. 1, the second sentence, of Regulation. No.
330/2001 Coll., on the Commissions for and Reimbursement of Court
Enforcement Officials, on the Commissions for and Reimbursement of
Expenditures of the Administrator of an Enterprise, and on the
Conditions for Indemnity of Responsibility for Damage Caused by
Enforcement Officials, as subsequently amended, is annulled as of the
day this Judgment is published in the Collection of Laws.
II. The provisions of Art. II., point 1. of Regulation No. 233/2004
Coll., which amends Regulation No. 330/2001 Coll., on the Commissions
for and Reimbursement of Court Enforcement Officials, on the Commissions
for and Reimbursement of Expenditures of the Administrator of an
Enterprise, and on the Conditions for Indemnity of Responsibility for
Damage Caused by Enforcement Officials, is annulled as of the day this
Judgment is published in the Collection of Laws.
III. The provisions of Art. II., point 1. of Regulation No. 291/2006
Coll., which amends Regulation No. 330/2001 Coll., on the Commissions
for and Reimbursement of Court Enforcement Officials, on the Commissions
for and Reimbursement of Expenditures of the Administrator of an
Enterprise, and on the Conditions for Indemnity of Responsibility for
Damage Caused by Enforcement Officials, as amended by Regulation No.
233/2004 Coll., is annulled as of the day this Judgment is published in
the Collection of Laws.
REASONING
A.
1.
In its constitutional complaint, delivered to the Constitutional Court
on 29 September 2004, the complainant, a commercial company, E.-S.,
s.r.o., represented by Mgr. M. Z., an attorney, sought the annulment of
the 20 July 2004 ruling of the District Court for Prague 3, No. E-Nc
1895/2002-52, which affirmed the order to pay the costs of enforcement
activities, issued in an enforcement proceeding in which it had the
status of an obliged person. It asserted that, as a result of the
contested ruling, its right enshrined in Art. 36 of the Charter of
Fundamental Rights and Basic Freedoms (hereinafter „Charter“) had been
violated, which contention it substantiated by a description of the
course of the enforcement proceeding, especially its concluding phase
concerning the determination of the costs of enforcement activities and
their payment. Above all, it reproved the court for failing to take
into consideration § 11 para. 2 of Regulation. No. 330/2001 Coll., on
the Commissions for and Reimbursement of Court Enforcement Officials, on
the Commissions for and Reimbursement of Expenditures of the
Administrator of an Enterprise, and on the Conditions for Indemnity of
Responsibility for Damage Caused by Enforcement Officials, as amended by
Regulation No. 233/2004 Coll., which amends Regulation No. 330/2001
Coll., on the Commissions for and Reimbursement of Court Enforcement
Officials, on the Commissions for and Reimbursement of Expenditures of
the Administrator of an Enterprise, and on the Conditions for Indemnity
of Responsibility for Damage Caused by Enforcement Officials. The
complainant inferred that, if it voluntarily pays off the entire debt,
without any action in execution playing any part therein, then the
execution of the writ has been waived, hence the enforcement official’s
commission should be determined in accordance with § 11 para. 1 lit. a)
of the cited Regulation, that is only at a 50 % rate. It adds thereto,
that in the case of a claim to a commission in the full amount in
accordance with § 11 para. 2 of the cited Regulation, the necessary
conditions were not satisfied, alternatively that the conditions laid
down in § 11 para. 2 lit. a) were not satisfied. This proceeding is
being conducted as No. I. US 639/04.
2.
The Constitutional Court ascertained from the file of the District
Court for Prague 3, No. E-Nc 11895/2002, that a motion against the
complainant had been filed at that court to issue a writ pursuant to Act
No. 120/2001 Coll., on Judicial Enforcement Officials and Enforcement
Activities (Enforcement Code) and on Amendments to further Act
(hereinafter „the Enforcement Code“), to exact a claim in the amount of
2,303,588 Czech Crowns with ancillary rights. By its 24 October 2002
ruling, No. E-Nc 11895/2002-9, a writ of execution was issued and a
judicial enforcement official, JUDr. D. K., from the Prague 4 Office of
Enforcement Officials, with its seat at Novodvorská 1010, Prague 4, was
charged with executing the writ. As follows from the file, the
resulting warrant of distress was issued to the obliged person,
decreeing that enforcement be effected by enjoining two claims from an
account, by the sale of immovable property and the sale of movable
items. On 1 December 2003 the judicial enforcement official issued an
order to pay the costs of enforcement activities, No. Ex 236/02-59, in
which he set 278,467 Czech Crowns as the total amount (of which
276,408.60 Czech Crowns was the enforcement official’s commission for
executing the writ, 1585.90 Czech Crowns was the reimbursement of cash
outlays, and 472.50 Czech Crowns the costs of delivery). The
complainant filed an objection to this order, based on the assertion
that the amount of the payment collected by the enforcement official
served as the basis for the determination of the commission for
executing the writ, yet the enforcement official had merely issued
warrants of distress affecting the obliged person’s property interests
and the obliged person had performed the obligation entirely
voluntarily, in part directly to the entitled person and in part to the
enforcement official’s account. The enforcement official referred the
objection to the court which, by its 16 February 2004 ruling, No. E-Nc
11895/2002, quashed the order at issue, as it concurred with the
complainant’s position that the amount of the collected debt had served
as the basis for determining the commission, so that it would be
necessary for the enforcement official to state, in its substantiation
of the order to pay the costs of enforcement activities, the amount that
was exacted thereby (and not merely collected) and in what manner the
resulting commission was subsequently calculated. On 2 May 2004 the
judicial enforcement official issued a new order to pay the costs of
enforcement activities, No. E 236/02-89, which set, as the costs of
enforcement action, the total amount of 384,040 Czech Crowns (of which
382,796.50 Czech Crowns represented the enforcement official’s
commission, 708 Czech Crowns the reimbursement of cash outlays, 535.50
Czech Crowns the costs of delivery – Note: the enforcement official used
the amount of 2,144,517 Czech Crowns as the basis in his determination
of the amount of his commission), and the complainant once again filed
objections against this order. After they had been referred to the
court, it affirmed the order to pay the costs of enforcement activities,
finding the objections to be unfounded. The court based that decision
on the amended wording of § 5 para. 1 of Regulation No. 330/2001 Coll.,
which was applicable as well to enforcement proceedings initiated before
the day the amendment had come into effect (unless a decision on an
enforcement official’s commission had already become final). As follows
therefrom, any performance which had been effected after the court’s
writ of execution has been delivered to the obliged person is deemed to
be an exacted performance, which serves as the basis for determining the
commission for executing the writ. In view of the fact that the
obliged person paid the collected amount the day after the writ of
execution had been delivered to him, the court found that the
enforcement official’s commission, as well as further amounts demanded,
are in conformity with the amended wording of Regulation No. 330/2001
Coll. The Constitutional Court further ascertained from the court file
that the entitled person, in response to the query of the District Court
for Prague 3, had informed it that the payment of the claims proceeded
as follows: after the writ of execution had issued, 1,819,975 Czech
Crowns were paid by 21 January 2004, 324,542 Czech Crowns were paid on
13 February 2004 (that is, a total of 2,144,517 Czech Crowns, from which
the sum of 770,000 Czech Crowns were paid through the judicial
enforcement official), and on 16 February 2004 the fee for delay, in the
amount of 159,071 Czech Crowns, was waived.
3.
In the course of the proceeding on the constitutional complaint, Panel I
of the Constitutional Court found that the case under adjudication
concerned the application of § 5 para. 1, the second sentence, of
Regulation. No. 330/2001 Coll., on the Commissions for and Reimbursement
of Court Enforcement Officials, on the Commissions for and
Reimbursement of Expenditures of the Administrator of an Enterprise, and
on the Conditions for Indemnity of Responsibility for Damage Caused by
Enforcement Officials (hereinafter „the Regulation“). The Regulation
was issued by the Ministry of Justice on the basis of the empowerment
inserted into § 131 lit. a) to c) of the Enforcement Code and came into
force on 18 September 2001. The provisions of § 5 para. 1, the second
sentence, in their original wording, read as follows: „Unless
hereinafter provided otherwise, the basis for the determination of the
commission for the enforcement of an obligation involving the payment of
a sum of money shall be the amount of the payment exacted by the
enforcement official.“ Regulation No. 233/2004 Coll., with effect from
30 April 2004, supplemented this provision such that it then read:
„Unless hereinafter provided otherwise, the basis for the determination
of the commission for the enforcement of an obligation involving the
payment of a sum of money shall be the amount of the payment exacted by
the enforcement official. The exacted performance is deemed to be any
performance, effected after the obliged person has received delivery of
the court’s writ of execution, in satisfaction of the obligations stated
in the writ of execution, any performance in satisfaction of the
obligation to pay the costs of enforcement activities or to pay the
entitled person‘s costs.“ According to the algorithm inserted into § 6
of the Regulation, the enforcement official’s commission is calculated
on the basis of the tax base:
1) The commission for the enforcement of an obligation involving the payment of a sum of money shall be calculated at the rate of
up to a 3,000,000 Czech Crowns of the base 15 %
from the remaining amount, up to 40,000,000 Czech Crowns of the base 10 %
from the remaining amount, up to 50,000,000 Czech Crowns of the base 5 %
from the remaining amount, up to 250,000,000 Czech Crowns of the base 1 %
2) Any amount over 250,000,000 Czech Crowns shall not be counted as part of the base.
3) Commissions under para. 1 shall amount to at least 3 000 Czech Crowns.
In Regulation No. 233/2004, the following rule was introduced into the transitional provisions:
„1. Enforcement officials are entitled to the commission provided for in this Regulation even in enforcement proceeding which commenced prior to the day this Regulation entered into effect, with the exception of proceedings in which the judicial enforcement official’s commission has already been finally decided.“
1) The commission for the enforcement of an obligation involving the payment of a sum of money shall be calculated at the rate of
up to a 3,000,000 Czech Crowns of the base 15 %
from the remaining amount, up to 40,000,000 Czech Crowns of the base 10 %
from the remaining amount, up to 50,000,000 Czech Crowns of the base 5 %
from the remaining amount, up to 250,000,000 Czech Crowns of the base 1 %
2) Any amount over 250,000,000 Czech Crowns shall not be counted as part of the base.
3) Commissions under para. 1 shall amount to at least 3 000 Czech Crowns.
In Regulation No. 233/2004, the following rule was introduced into the transitional provisions:
„1. Enforcement officials are entitled to the commission provided for in this Regulation even in enforcement proceeding which commenced prior to the day this Regulation entered into effect, with the exception of proceedings in which the judicial enforcement official’s commission has already been finally decided.“
4.
In both versions, the Regulation takes into account the debtor’s
„voluntary“ performance of his obligation during the first phase of
enforcement activity, that is, even before the writ is executed. In the
original wording, according to § 11 para. 1, lit. a), if the
enforcement official waives levying execution on the writ (in accordance
with § 46 para. 3 of the Execution Code), in the case of the
enforcement of an obligation requiring the debtor to pay a monetary sum,
he is entitled to a commission in the amount of 50 % of the commission
according to § 6, with the proviso that the amount of the claim which
should be exacted is considered the base for the commission. According
to the amended wording, in the case of the enforcement of an obligation
requiring the debtor to pay a monetary sum, enforcement officials who
waive the execution of a writ are entitled to a commission in the amount
of 50 % of the commission in accordance with § 6. The second paragraph
was also supplemented with the following text:
„The enforcement official is entitled to a commission in the full amount, if he waives the execution of the writ after having
a) called upon the obliged person in writing to voluntarily perform the obligation which the power of distress imposes upon her, and
b) the obliged person voluntarily performs that which the power of distress imposes upon her, and reimburses the costs of enforcement activities after the expiration of a commensurate period of time laid down by the enforcement official in accordance with lit. a).“
„The enforcement official is entitled to a commission in the full amount, if he waives the execution of the writ after having
a) called upon the obliged person in writing to voluntarily perform the obligation which the power of distress imposes upon her, and
b) the obliged person voluntarily performs that which the power of distress imposes upon her, and reimburses the costs of enforcement activities after the expiration of a commensurate period of time laid down by the enforcement official in accordance with lit. a).“
5.
According to § 46 para. 3 of the Enforcement Code, the enforcement
official can waive the execution of the writ only in the case that the
obliged person voluntarily performs that which is imposed upon him by
the power of distress, and covers the costs of enforcement activities;
pursuant to § 87 para. 1 of Enforcement Code, the costs of enforcement
activities comprise the enforcement official’s commission, the
reimbursement of cash expenditures, compensation for time lost in
executing the writ, compensation for the delivery of documents, the
commission and the payment of the costs of the administrator of an
enterprise, and, if the enforcement official or administrator of the
enterprise is a taxpayer of value-added tax, then the relevant
value-added tax is also a cost of enforcement activities.
6.
In adjudicating whether the constitutional complaint is well-founded,
the First Panel of the Constitutional Court made the finding that the
applied provision, § 5 para. 1, the second sentence, of Regulation. No.
330/2001 Coll., as amended by Regulation No. 233/2004 Coll., is in
conflict with constitutional acts; accordingly, in the sense of § 78
para. 2 of Act No. 182/1993 Coll., on the Constitutional Court, as
subsequently amended (hereinafter „Act on the Constitutional Court“), it
decided in its 8 February 2006 ruling, No. I.US 639/04-12, to suspend
the proceeding and to submit a petition to the Constitutional Court
Plenum for the adjudication of its constitutionality.
7.
By its petition delivered to the Constitutional Court on 30 November
2004, the complainant, P. s. b. d., represented by Mgr. L. H., an
attorney, sought the quashing of the 13 September 2004 ruling of the
District Court for Prague 5, No. Nc 733/2003-134, and the 29 January
2003 order to pay the costs incurred in enforcement activities, No. EX
1651/03-248, issued by JUDr. J. P., PhD., the judicial enforcement
official, as corrected by its 29 March 2004 rulings, No. 1651/03-264.
The complainant simultaneously submitted a petition proposing the
annulment of Art. II., point 1. of Regulation No. 233/2004 Coll., which
amends Regulation No. 330/2001 Coll., on the Commissions for and
Reimbursement of Court Enforcement Officials, on the Commissions for and
Reimbursement of Expenditures of the Administrator of an Enterprise,
and on the Conditions for Indemnity of Responsibility for Damage Caused
by Enforcement Officials. It is asserted in the petition that the
contested decisions violated the petitioner’s constitutionally protected
rights enshrined in Art. 1 of the Constitution and Art. 2 para. 2 and
Art. 40 para. 6 of the Charter; therefore, it proposed their annulment.
The petition substantiates the proposal to annul Art. II, para. 1 of
the Regulation in view of its alleged prohibited retroactive effect.
That proceeding is being conducted as No. I. US 752/04.
8.
The Constitutional Court ascertained from the file of the District
Court for Prague 5, No. Nc 733/2003, that a motion had been filed
seeking the issuance against the complainant of a warrant of execution,
in accordance with Act No. 120/2001 Sb, to exact a claim in the amount
of 5,261,822.42 Czech Crowns with ancillary rights. By its 21 May 2003
ruling, No. Nc 733/2003-6, writ of execution was issue and a judicial
enforcement official, JUDr. J. P., from the Prague 5 Office of
Enforcement Officials, with its seat at U Šalamounky 41/769, was charged
with levying execution. As further appears from the file, on 19 August
2003, the judicial enforcement official issued a warrant of distress
for the sale of joint property interests in immovable property and, on
23 November 2003, delivered to the obliged person the warrant of
distress enjoining claims upon the account and an order of the same day,
No. EX 1651/03-208, to pay the costs of enforcement activities in the
amount of 1,016,493 Czech Crowns (of which the enforcement official’s
commission was 926,550 Czech Crowns, the costs of enforcement activities
were 41,538 Czech Crowns, and 48,405 Czech Crowns represented
value-added tax). The complainant filed an objection to this order in
which he drew attention to the fact that he had voluntarily paid the
debt. By its ruling of 16 January 2004, No. Nc 733/2003-60, the
District Court quashed the order to pay the costs due to being
unverifiable and unintelligible. In the meantime, on 19 December 2003,
the judicial enforcement official issued a further order to pay the
costs of enforcement activities, No. EX 1651/03-230, in which he
quantified further costs of enforcement activities in the amount of
2,496,784.50 Czech Crowns, which represent the costs connected with the
administration of the enterprise, that is, the expenses of the
administrator of the enterprise and his remuneration. The complainant
also filed an objection to this order, in which he expressed the view
that the remuneration of the administrator of the enterprise lacks any
basis, as the warrant of distress to sell the enterprise was issued in
conflict with the Enforcement Code, because the previously elected
method of levying execution – the sale of the obliged person’s immovable
property – was entirely sufficient to cover the amount of the
outstanding debt. By its 6 February 2004 ruling, No. Nc 733/2003-69,
the District Court quashed the order due to being unverifiable. On 29
January 2004 (with the incorrect date, „29 January 2003“, which he
corrected, by giving the right date in his 29 March 2004 ruling, No. EX
1651/03-264) the judicial enforcement official issued an order to pay
the costs of enforcement activities, No. EX 1651/03-248, in the amount
of 1,173,775.40 Czech Crowns (of which 926,550 Czech Crowns represented
the enforcement official’s commission, 35,561 Czech Crowns the costs of
enforcement activities, 203,841 Czech Crowns of value-added tax on the
commission, at the 22 % rate, and 7823 Czech Crowns was the value-added
tax on the costs, at the 22 % rate). The complainant filed an objection
against this order, as he considered the commission without basis and
the costs as undocumented and unproven. Concurrently, by its 5 March
2004 ruling, NC 733/2003-102, the District Court for Prague 5 halted
execution of the writ, as regards the amount of 5,261,822.42 Czech
Crowns with interest due to delay and the expenses of the antecedent
proceeding, when it deemed as proven that the obliged person had settled
the claim voluntarily, without the need for enforcement, and the right
to performance thus ceased to exist; the execution of the costs of
enforcement activities was meant to continue. By its subsequent 13
September 2004 ruling, No. Nc 733/2003-134, the District Court revised
the order to pay the costs of enforcement activities by determining the
amount of costs at 1,119,944.60 Czech Crowns, while it based its
decision on the amended wording of § 5 para. 1 of Regulation No.
330/2001 Coll., and in conformity therewith calculated the enforcement
official’s commission to be 917,830 Czech Crowns with 201,922.60 Czech
Crowns in value-added tax and cash outlays of 60 Czech Crowns with 132
Czech Crowns in value-added tax.
9.
In the course of the proceeding on the constitutional complaint,
Constitutional Court Panel I established that (just as in the proceeding
on the constitutional complaint in matter I. US 639/04) this case also
concerned the application of § 5 para. 1, the second sentence, of the
Regulation, including the transitional provision, the annulment of which
the complainant - P. s. b. d., - proposed in that case, and, by its 2
November 2006 ruling, No. I.US 752/04-26, on the identical grounds it
suspended the proceeding and submitted to the Constitutional Court
Plenum a petition proposing the adjudication of the constitutionality of
these provisions, as it was persuaded that they are in conflict with
constitutional acts.
10.
Both petitions proposing the annulment of a legal enactment concern the
legal arrangements for the commissions of enforcement officials, thus
the subjects of the proceeding are identical in content and factually
connected. In view of this finding and in the interests of judicial
economy, the Constitutional Court decided, in its 14 November 2006
ruling No. Pl. US 8/06-18, in conformity with § 63 of the Act on the
Constitutional Court, with the application of § 112 of the Civil
Procedure Code, to join these matters for a common proceeding, with the
proviso that this proceeding will subsequently be conducted as No Pl. US
8/06.
B.
11.
In the course of the subsequent phase of the proceeding, the
Constitutional Court submitted the petition in the matter conducted as
No. I.US 639/04 to the Minister of Justice for his statement of views
and to the Public Protector of Rights (and, at the same time, asked him
to inform it whether he is intervening into the proceeding). In view of
the fact that the matter being conducted as No. I. US 752/04 is a
matter with identical content and one that proceeds from the same line
of argument, on grounds of procedural economy, the Constitutional Court
did not consider it as indispensable to send this petition to the
interested persons.
12. In
its statement signed by the former Deputy Prime Minister of the Czech
Republic and the Minister of Justice, JUDr. P. N., the Ministry of
Justice first expressed doubt on whether it is appropriate, within the
framework of an enforcement proceeding, to reward the obliged person for
voluntary fulfillment otherwise than as is provided for in the valid
legal framework; in this connection, it emphasized that an enforcement
proceeding generally takes place due to the fact that the obliged person
had not fulfilled, duly and in time, his obligation from a mandatory
legal relation and not even, following the issuance of a court decision,
on the strength of that decision. In a further part, it recapitulated
the content of § 46 para. 3, § 87 para. 1 and § 88 para. 1 of the
Enforcement Code and cited three model situations which may come about
in connection with the waiver of execution of the writ. First of all,
the obliged person can voluntarily perform that which a power of
distress imposes upon him, on the basis of the enforcement official‘s
formal written requests that he voluntarily perform the obligation by a
deadline set by the enforcement official. In such a case, the judicial
enforcement official can tie in the order to pay expenses with the
mentioned request, and he is entitled to a commission (if it is an
enforcement of an obligation involving the payment of a monetary sum) at
a 50 % rate. In such a case, the judicial enforcement official can
deduce the amount of the commission based upon the presupposition that,
in reaction to the official’s request, the obliged person will
voluntarily fulfill his obligation within the set period. A further
possibility is the voluntary performance of the duty without a prior
written request from the judicial enforcement agent; in that case the
enforcement official may, after the obligation has been satisfied, issue
an order to pay the costs of enforcement activities and, following
payment of these costs (the commission again at the rate of 50 %), waive
levying in execution of the writ. Finally, if the situation
anticipated in § 11 para. 2 of the Regulation comes about, that is, if
the obliged person meets the obligation voluntarily only after the
deadline set in the written request has passed, the judicial enforcement
official is entitled to a commission in the full amount, an outcome
which the Ministry considers to be appropriate.
13.
As to the objection that there is a hidden increase in the base for the
calculation of commissions implemented by the Regulation, the Ministry
stated that it is necessary to take as the starting point the
empowerment to issue regulations, which is contained in § 131 lit. a) of
the Enforcement Code, and expressed the opinion that, in view of this
fact and taking into account Art. 4 para. 1 of the Charter, the
Regulation is in conflict neither with the constitutional order nor with
the statute for the implementation of which it was issued.
Note. The following is the relevant language of § 131 lit. a) of the Enforcement Code:
„The Ministry is empowered to set by regulation
a) the amount of and the manner for determining the commissions of enforcement officials, cash expenditures, the reimbursement for the delivery of documents, and the loss of time, including a cash deposit in an appropriate amount.“
Note. The following is the relevant language of § 131 lit. a) of the Enforcement Code:
„The Ministry is empowered to set by regulation
a) the amount of and the manner for determining the commissions of enforcement officials, cash expenditures, the reimbursement for the delivery of documents, and the loss of time, including a cash deposit in an appropriate amount.“
14.
The Public Protector of Rights informed the Court that, in conformity
with § 69 para. 2 of the Act on the Constitutional Court, he is
intervening into the proceeding. As to the petition itself, he stated
that could not but express his agreement with the view of the
Constitutional Court’s First Panel concerning the annulment of § 5 para.
1, the second sentence, of Regulation. No. 330/2001 Coll.; he considers
its arguments to be persuasive and exhaustive, and he agrees with the
petition proposing the annulment.
15.
In the course of the proceeding on the petition submitted by the
Constitutional Court’s Panel I, the Ministry of Justice proceeded to
further amend the provision in question, with effect from 1 August 2006
(see Regulation, . 291/2006 Coll., which amends Regulation of the
Ministry of Justice No. 330/2001 Coll., on the Commissions for and
Reimbursement of Court Enforcement Officials, on the Commissions for and
Reimbursement of Expenditures of the Administrator of an Enterprise,
and on the Conditions for Indemnity of Responsibility for Damage Caused
by Enforcement Officials, as amended by Regulation No. 233/2004 Coll.).
As of that date, § 5 para. 1 reads as follows: „Unless hereinafter
provided otherwise, the base for the determination of the commission for
the enforcement of an obligation involving the payment of a sum of
money shall be the amount of the payment exacted by the enforcement
official. The exacted performance is deemed to be any performance
effected after the court has issued a decision pursuant to § 44 para. 2
of the Act.“ At the same time, the following rule was included among
the transitional provisions:
„1. Enforcement officials are entitled to the commission provided for in Regulation No. 330/2004 Coll. (note., the correct number is „No. 233/2004 Coll.“) and this Regulation even in enforcement proceedings which commenced prior to the day this Regulation entered into effect, with the exception of proceedings in which the judicial enforcement official’s commission has already been finally decided.“
In connection with this amendment, the Council of Enforcement Officials submitted to the Constitutional Court an initiative proposing that the proceeding be discontinued in the sense of § 67 para. 1 of the Act on the Constitutional Court.
„1. Enforcement officials are entitled to the commission provided for in Regulation No. 330/2004 Coll. (note., the correct number is „No. 233/2004 Coll.“) and this Regulation even in enforcement proceedings which commenced prior to the day this Regulation entered into effect, with the exception of proceedings in which the judicial enforcement official’s commission has already been finally decided.“
In connection with this amendment, the Council of Enforcement Officials submitted to the Constitutional Court an initiative proposing that the proceeding be discontinued in the sense of § 67 para. 1 of the Act on the Constitutional Court.
16.
In this situation the Constitutional Court concerned itself with the
assessment of whether grounds have arisen for dismissing the proceeding
in accordance with § 67 para. 1 of the Act on the Constitutional Court.
It is true that formally § 5 para. 1, the second sentence, has been
repealed; however, it was replaced by a provision which makes use of an
absolutely identical construction, the change consisting solely in the
designation of the start of the time period, from which the rendering of
performance is considered as exacted performance; in its essence, the
new determination of the start of this time period was even more in
favor of the enforcement official. For this reason, the Constitutional
Court’s First Panel continued to adhere to its position that § 5 para.
1, second sentence of Regulation. No. 330/2001 Coll., as subsequently
amended, is in conflict with constitutional enactments, and adds that
the two above-mentioned transitional provisions also conflict with
constitutional principles.
17. Overview of relevant provisions of enforcement enactments:
17. Overview of relevant provisions of enforcement enactments:
The
rule waiving execution § 46 para. 3, the first sentence of the
Enforcement Code The enforcement official can waive levying in
execution of the writ only in the case that the obliged person
voluntarily performs that which is imposed upon him by the power of
distress, and covers the costs of enforcement activities.
The
rule on the costs of an enforcement action § 87 para. 1 of the
Enforcement Code The costs of enforcement activities comprise the
enforcement official’s commission, the reimbursement of cash
expenditures, compensation for time lost in levying execution of the
writ, compensation for the delivery of documents, the commission and the
payment of the costs of the administrator of an enterprise, and, if the
enforcement official or administrator of the enterprise is a taxpayer
of value-added tax, then the relevant value-added tax is also a cost of
enforcement action under separate legal enactments 20) (hereinafter
"costs of the enforcement activities").
Rules for the basis for enforcement officials‘ commissions (in the case of monetary amounts) § 5 para. 1 of Regulation No. 330/2001 Coll., in the version valid until 29 April 2004 Unless hereinafter provided otherwise, the base for the determination of the commission for the enforcement of an obligation involving the payment of a sum of money shall be the amount of the payment exacted by the enforcement official.
Rules for the basis for enforcement officials‘ commissions (in the case of monetary amounts) § 5 para. 1 of Regulation No. 330/2001 Coll., in the version valid until 29 April 2004 Unless hereinafter provided otherwise, the base for the determination of the commission for the enforcement of an obligation involving the payment of a sum of money shall be the amount of the payment exacted by the enforcement official.
§
5 para. 1 of Regulation No. 330/2001 Coll., as amended by Regulation
No. 233/2004 Coll. Unless hereinafter provided otherwise, the base
for the determination of the commission for the enforcement of an
obligation involving the payment of a sum of money shall be the amount
of the payment exacted by the enforcement official. The exacted
performance is deemed to be any performance, effected after the obliged
person has received delivery of the court’s writ of execution, in
satisfaction of the obligations stated in the writ of execution, any
performance in satisfaction of the obligation to pay the costs of
enforcement activities or to pay the entitled person‘s costs.
§
5 para. 1 of Regulation No. 330/2001 Coll., as amended by Regulations
No. 233/2004 Coll. and No. 291/2006 Coll. Unless hereinafter
provided otherwise, the base for the determination of the commission for
the enforcement of an obligation involving the payment of a sum of
money shall be the amount of the payment exacted by the enforcement
official. The exacted performance is deemed to be any performance
effected after the court has issued a decision pursuant to § 44 para. 2
of the Act.
The rule for enforcement officials‘ commissions in the case execution of the writ is waived § 11 para. 1 of Reg. No. 330/2001 Coll., in the wording valid until 29 April 2004 If the enforcement official waives levying in execution of the writ (§ 46 para. 3 of the Act), she is entitled to a commission:
a) in the case of the enforcement of an obligation involving the payment of a sum of money, in the amount of 50 % of the commission as calculated pursuant to § 6, where the basis for the commission is deemed to be the amount of the claims that must be exacted,
b) in the case of the enforcement of an obligation other than one involving the payment of a sum of money, in the amount of 30 % of the commission as calculated pursuant §§ 7 to 10.
The rule for enforcement officials‘ commissions in the case execution of the writ is waived § 11 para. 1 of Reg. No. 330/2001 Coll., in the wording valid until 29 April 2004 If the enforcement official waives levying in execution of the writ (§ 46 para. 3 of the Act), she is entitled to a commission:
a) in the case of the enforcement of an obligation involving the payment of a sum of money, in the amount of 50 % of the commission as calculated pursuant to § 6, where the basis for the commission is deemed to be the amount of the claims that must be exacted,
b) in the case of the enforcement of an obligation other than one involving the payment of a sum of money, in the amount of 30 % of the commission as calculated pursuant §§ 7 to 10.
§ 11 paras. 1 and 2 of Reg.
No. 330/2001 Coll., as amended by Reg. No. 233/2004 Coll. (Reg. No.
291/2006 Coll. unaffected thereby) (1) Unless hereinafter provided
otherwise, an enforcement official who has waived levying in execution
of a writ (§ 46 para. 3 of the Act), is entitled to a commission:
a) in the amount of 50 % of the commission as calculated pursuant to § 6, if it concerns the enforcement of an obligation involving the payment of a sum of money;
b) in the amount of 30 % of the commission as calculated pursuant §§ 7 to 10, it concerns the enforcement of some obligation other than the payment of a sum of money.
(2) The enforcement official is entitled to a commission in the full amount, if he waives the execution of the writ after having
a) called upon the obliged person in writing to voluntarily perform the obligation which the power of distress imposes upon her, and
b) the obliged person voluntarily performs that which the power of distress imposes upon her, and reimburses the costs of enforcement activities after the expiration of a commensurate period of time laid down by the enforcement official in accordance with lit. a).
a) in the amount of 50 % of the commission as calculated pursuant to § 6, if it concerns the enforcement of an obligation involving the payment of a sum of money;
b) in the amount of 30 % of the commission as calculated pursuant §§ 7 to 10, it concerns the enforcement of some obligation other than the payment of a sum of money.
(2) The enforcement official is entitled to a commission in the full amount, if he waives the execution of the writ after having
a) called upon the obliged person in writing to voluntarily perform the obligation which the power of distress imposes upon her, and
b) the obliged person voluntarily performs that which the power of distress imposes upon her, and reimburses the costs of enforcement activities after the expiration of a commensurate period of time laid down by the enforcement official in accordance with lit. a).
C.
18.
In norm control proceedings the Constitutional Court is obliged, in
accordance with § 68 para. 2 of the Act on the Constitutional Court, to
assess whether the contested legal enactment was adopted and issued
within the confines of the powers set down in the Constitution and in
the constitutionally prescribed manner.
19.
The competence of ministries to issue legal enactments for the
implementation of statutes is founded on Art. 79 para. 3 of the
Constitution, on the assumption that an express statutory empowerment
has been made. The Constitutional Court has already expressed its view
in its judgments (for ex., No. Pl. US 45/2000) on the issue of the
constitutionality of a statutory empowerment, as well as the
interpretation of statutorily-prescribed limits to sub-statutory norm
creation. Implementing legal enactment must, in the first place, be
issued by the authorized person. The state body which is authorized to
issue sub-statutory legal enactment must proceed on the basis of the
statute and within its bounds (secundum et intra legem), not beyond the
statute (praeter legem). Stated simply, if according to a statute, X
should be, the empowered state body is entitled to provide that X1, X2,
X3 should also be, but not that Y should be. The barrier of matters
that are reserved to regulation solely by statute (the „reservation of a
statute“) then protects against the excesses of executive power; the
state body in question cannot lay down primary rules and obligations.
From the theoretical perspective, a further requirement is placed upon
sub-statutory (implementing) enactments, namely, that they be general
and, thus, affect an uncertain group of addressees, as the Constitution
provides for empowerment to make legal rules, not to issue individual
legal acts.
20. In this
matter, § 131 lit. a) of the Enforcement Code is the empowerment to
issue regulations, according to which the Ministry of Justice is
empowered to lay down by regulation the amount and manner of determining
the commissions of enforcement officials, cash expenditures, the
reimbursement for the delivery of documents, and the loss of time,
including a cash deposit in an appropriate amount.
21.
Regulation No. 330/2001 Coll. was issued by the Ministry of Justice on 5
September 2001, promulgated on 18 September 2001 in Issue 128/2001 of
the Collection of Laws and, in accordance with its § 28, came into force
on the day of its promulgation. The amending Regulation 233/2004 was
issued by the Ministry of Justice on 20 April 2004, promulgated on 30
April 2004 in Issue 77/2004 of the Collection of Laws and, in accordance
with its Art. III, came into force on the day of its promulgation.
Regulation No. 291/2006 Coll., which amends Regulation of the Ministry
of Justice 330/2001 Coll., on the Commissions for and Reimbursement of
Court Enforcement Officials, on the Commissions for and Reimbursement of
Expenditures of the Administrator of an Enterprise, and on the
Conditions for Indemnity of Responsibility for Damage Caused by
Enforcement Officials, as amended by Regulation No. 233/2004 Coll., was
issued by the Ministry of Justice on 2 June 2006, promulgated on 19 June
2006 in Issue 92/2006 of the Collection of Laws, and Art. III thereof
designated 1 August 2006 as the day of its coming into force.
22.
The Constitutional Court has ascertained that the contested provisions
were issued by the Ministry of Justice, which is a state body that is
explicitly and specifically empowered by law (competent), and is related
in its content to the determination of the amount of compensation of
enforcement officials, so that it did not stray from the confines laid
down in the empowering provision, § 131 lit. a) of the Enforcement
Code. In view of what has been stated, the Constitutional Court came to
the conclusion that the contested regulation was adopted and issued
within the confines of the powers set down in the Constitution. It also
ascertained that it had been adopted in the constitutionally prescribed
manner.
D.
23.
After weighing the given arguments and positions, especially the
position of the Ministry of Justice formulated in its final petition,
the Constitutional Court came to the conclusion that it is imperative to
annul § 5 para. 1, the second sentence, of Regulation. No. 330/2001
Coll., as well as the transitional provisions to the amending rules. In
reaching that conclusion, it was guided by the following
considerations.
24. The
Constitutional Court assessed (also in the sense of the first objection
put forward by the Ministry of Justice) whether grounds have arisen for
dismissing the proceeding in accordance with § 67 para. 1 of the Act on
the Constitutional Court. It is true that § 5 para. 1, the second
sentence, has been repealed; however, it was replaced by a provision
which makes use of an absolutely identical construction. In this
context, the Constitutional Court refers to its case law, in which it
reacted to similar situations (Judgment in the matter No. Pl. US 50/04,
especially Part VI., published as No. 154/2006 Coll.).
25.
As regards the Ministry of Justice‘s proposal, in eventum, to reject
the petition submitted by Panel I due to the loss of standing brought
about by the fact that the amendment to the contested provision resulted
in the subject of the constitutional complaint no longer having any
connection to the wording of § 5 para. 1, the second sentence, of
Regulation. No. 330/2001 Coll., the Constitutional Court does not concur
with this objection either, as the commencement of the proceeding is
the relevant time for determining the petitioner‘s standing.
26.
As to the Ministry of Justice‘s substantive objections, concentrated on
an emphasis on the status of the obliged person (there is no individual
right either to educational effects or to a reduction, so that it is
only a matter of appropriateness, not of constitutional law) and the
relation between enforcement officials (non-linear relation between the
commission and the work, no possibility to quantify it) the
Constitutional Court would add: According to Art. 1 para. 1 of the
Constitution, the Czech Republic is a sovereign, unitary, and democratic
state governed by the rule of law, founded on respect for the rights
and freedoms of man and of citizens. Legal certainty is one of the main
pillars of the law-based state, and the content of legally normative
acts, including implementing legislation, must be adjudicated with this
in mind. The unclear and indefinite construction of legal enactments
also represents the violation of the right to fair process protected in
Art. 36 para. 1 of the Charter. The operation of legal enactments upon
past time periods, alternatively their influence upon past legal facts,
must also be adjudicated from the point of view of the principles of the
law-based state, and potential impermissible retroactivity may, from
this perspective, be in conflict with Art. 1 para. 1 of the
Constitution.
27. In its
jurisprudence, the Constitutional Court has constantly and repeatedly
recalled the connection between the principle of predictability of the
consequences of a legal enactment and the principle of the law-based
state. Without doubt the predictability of legal enactments must be
assessed also from the dynamic perspective; that is, in amending legal
regulations, the legislature must take the existing legal situation into
account, including the situation of the course of legal relations, and
the changes must be carried out sensitively and only to the degree
essential to attain the object of regulation. It is necessary to insist
the legislature conduct itself in such a manner, for the stability of
the sphere of free conduct is guaranteed thereby, as is the legal
certainty of parties to legal transactions (in details, Judgment in
matter No. Pl. US 38/04). There is no doubt that these requirements
apply even in the field of derived norm creation; hence, their
satisfaction can be demanded of all subjects engaged in the issuance of
legal enactments.
28.
According to the Constitutional Court’s constant jurisprudence, the
principle of proportionality allows for the resolution of a conflict
between fundamental rights, or public goods protected by the
constitutional order. This principle appears both in proceedings on
constitutional complaints and, as in the case currently under
adjudication, that is, in abstract norm control proceedings. In the
cited 20 June 2006 Judgment, No. Pl. US 38/04 (published in the
Collection of Laws as No. 409/2006 Coll.), or in the 13 August 2002
Judgment, No. Pl. US 3/02 (published in the Collection of Laws as No.
405/2002 Coll.), the Constitutional Court declared the following
concerning cases where fundamental rights or freedoms are in conflict
with a public interest or with other fundament rights or freedoms: „ . .
. it is necessary to evaluate the objective (aim) of such interference
in relation to the means employed, and the measure for this evaluation
is the principle of proportionality (proportionality in the wider
sense), which can also be designated a ban on excessive interference
with rights and freedoms. This general principle contains three
criteria for evaluating the permissibility of interference. The first
of these is the principle of the capability to effectuate the objective
(or suitability), under which the relevant measure must be capable of
achieving the intended aim, which is the protection of another
fundamental right or public good. Next is the principle of necessity,
according to which, of several possible means, it is permitted to employ
– in relation to the affected fundamental rights and freedoms – only
the least intrusive one. The third principle is the principle of
proportionality (in the narrower sense), according to which the
detriment to a fundamental right may not be disproportionate in relation
to the intended aim, that is, in the event of a conflict between a
fundamental right or freedom with the public interest, the negative
consequences of measures restricting fundamental human rights and
freedoms may not exceed the positive elements represented by the public
interest in these measures." The obligation to respect the principle of
proportionality does not apply only to administrative bodies in their
decision-making, but also to the legislature, in a broader perspective
to the norm-creator, which the Ministry of Justice doubtless is, so far
as concerns the creation of sub-statutory norms.
29.
Without denying the right of enforcement officials to fair remuneration
for enforcement activities actually carried out, the Constitutional
Court considers the fact that an enforcement official‘s base commission
also includes an amount paid by the obliged person, even if the
enforcement official had not directly participated in levying execution,
must be considered as unjustified preferential treatment as against
those enforcement officials who actually levied execution (as such a
differentiation is not rationally justifiable). Moreover, in the
Constitutional Court’s view the adopted construction lacks even an
„educational“ component, since no possibility is provided de jure to
acknowledge that the obliged debtor has himself satisfied his obligation
(without direct action to enforce it), even if only at the last
possible moment. Although the Regulation’s provisions indicate that
enforcement officials are entitled, in such a case, to a commission at a
50% rate, however, only in cases where the enforcement official waives
the levying of execution, whereas the Enforcement Code enables them to
do so only in the case that the costs of enforcement activities, which
includes also the enforcement official’s commission, are also paid. It
follows therefrom that, in accordance with the literal wording of the
Act, if the obliged person fails to pay the enforcement official her
commission in the full amount, she cannot waive the levying of
execution, even if the claim being collected has been paid; therefore,
enforcement officials have the right to a commission in the full amount
(this is movement in a circle). The Constitutional Court considers this
construction to be in conflict with Art. 1 para. 1 of the Constitution,
as the creation of unfulfillable conditions for a reduced rate to apply
is in conflict with the principle of the law-based state (see the
mentioned Judgment in the matter, Pl. US 38/04). In its ultimate
consequences, such a legal framework also constitutes an interference
with the obliged person’s fundamental right to the protection of
property enshrined in Art. 11 para. 1 of the Charter (see also one of
the basic principles of execution – the principle of the legal
protection of the obliged person, the purpose of which consists in the
fact the execution can serve only to satisfy the entitled person’s right
and to reimburse the costs of the enforcement proceeding, including an
appropriate commission for the enforcement official; however, it may not
cause the obliged person disproportionate detriment due to the fact
that it does not properly take into account a certain measure of
„voluntariness“ in satisfying the enforced obligation, even if only
after a warrant of execution is issued, however, still prior to being
compelled to perform the obligation; the legal framework under
adjudication denies the preventive function of execution, that is, as a
mechanism, the purpose of which is not to liquidate the obliged person’s
property – see also the purpose of an insolvency proceeding). A
reduced-rate commission can, therefore, be considered as an equivalent
corresponding to the effort expended by the enforcement official, an
option which is also in conformity with the principle of
proportionality, weighing the suitability of the interference with the
obliged person’s property against the objective of protecting the
property of the entitled person (collecting his claims). The
Constitutional Court concludes that, in order to be constitutionally
conforming, the rules governing enforcement officials‘ commissions
should not be based on a direct correlation between the commission and
the value of the exacted performance, rather should reflect the
complexity of the enforcement officials‘ activity according to
individual types and the manner of levying execution, as well the
enforcement official’s responsibility and the amount of work required
for it. Until such a legal arrangement is adopted, it will be up to the
ordinary courts, when deciding on enforcement officials‘ commissions,
to interpret „the extent of performance exacted by the enforcement
official“ in conformity with the indicated principles.
30.
The Ministry of Justice’s conviction (see para. 12) that an enforcement
official can make calculations with the presupposition that the
obligation will be satisfied, and charge a reduced commission, is based
on the „willingness“ of enforcement officials and does not correspond to
the statutory text (nor with the way enforcement officials proceed in
practice). After all § 46 para. 3, the first sentence, of the Execution
Code enables enforcement officials to waive the levying of execution
only in the case that the obliged person voluntarily performs that which
the power of distress imposes upon him, and cover the costs of
enforcement activities (of which the enforcement official‘s commission
also constitutes a part) and the enforcement official is entitled to a
reduced commission only in the case that he or she waives the levying of
execution (§ 11 para. 1 of the Regulation). It is also evident that
the enforcement official cannot, alternatively must not, waive the
levying of execution if the commission is not paid, and that the obliged
person cannot pay the commission until the time that he is billed for
it, since its amount is not yet known.
31.
In this connection and with reference to the fact that enforcement
officials cannot refuse to execute a writ, the Constitutional Court
would note that the existing rules concerning the amount of commissions
for enforcement officials cannot be justified and that the reimbursement
of the costs of the proceeding can be awarded them as against an
obliged person even in the case that the execution of the writ is halted
due to insufficient assets on the part of the obliged person (see
Position of the Constitutional Court, No. Pl. US – st. 23/06).
Compensation in this sense of „disadvantaged“ enforcement officials must
be found in the advantages directly connected with his profession, for
ex., in his nearly exclusive status in exercising the power of distress,
in which respect only judicial enforcement officials can partially
compete with them. It cannot be accepted that the commission charged
against one group of obligated persons can be markedly increased merely
due to the fact that, in the case of other obligated persons, which have
no functional relationship with the first group of obligated persons,
(hence, they can bear no responsibility for the first group’s debts and
lack of assets), execution of the writ had to be discontinued due to
insufficient assets. Accordingly, the Constitutional Court has annulled
§ 5 para. 1, the second sentence, of Regulation. No. 330/2001 Coll., as
subsequently amended (the first statement of the judgment).
32.
The transitional provisions also violate the principle of legal
certainty, as the unconstitutional principle (i.e., that the base for an
enforcement official’s commission is established without taking into
account in any way the situation of the enforcement proceeding) applies
to proceedings initiated before the changes came into effect. It is
generally known that legal science distinguishes „genuine
retroactivity“, which includes cases where the legal norm regulates the
creation of legal relations created prior to their coming into effect,
as well as the claims arising therefrom, from „non-genuine
retroactivity“, which consists in the fact that legal relations, which
came into being while the old law was in effect, are governed by that
law up until the time the new law takes effect, after which it is
governed by the new law. However, the creation of legal relations,
existing prior to the entry into effect of the new legal arrangement,
legal claims which arise from these relations, and the legal
transactions already carried out are governed by the repealed legal
norm. In both cases under adjudication, the claims being collected had
already been satisfied while the preceding legal rules were still in
effect, and the judicial enforcement officials also gave a statement of
account of the costs of enforcement activities (including the
commission); their orders were cancelled, however. Their new orders
were assessed from the perspective of the amended rules, hence the
courts could view as unfounded any objection made with reference to the
preceding legal rules. There is no doubt at all that such a
construction has shaken confidence in the legal order, because the
commissions are governed by legal rules which did not come into effect
until after the enforcement officials had already performed all of the
legal acts directed at the satisfaction of collected claims. On these
grounds, the Constitutional Court has annulled the transitional
provisions (the second and third statements of judgment).
33.
In the spirit of these rules, the Constitutional Court appeals to the
Ministry of Justice to respect, when setting the amount of commissions
in the context of its statutory empowerment to issue implementing
legislation, the fundamental principles of justice and the law-based
state, including the principle of proportionality, which is a modern
constitutional principle (which, according to the Constitutional Court’s
constant jurisprudence, also applies – cf. Judgment in matter Pl. US
33/97, and calls upon the legislature to satisfy it when creating legal
enactments - cf. Judgment in matter, Pl. US 61/04). Inspiration
therefor can be found in an overview of the course of determination by
the Ministry of the level of the commission of advocates and notaries.
34.
Nor is the inconsistent judicial practice in relation to „waiver of
levying in execution of the writ“ (§ 46 para. 3, the first sentence, of
Act No. 120/01 Coll.) conducive to legal certainty. The wording of this
provision suggests that it is an informal transaction on the part of
the enforcement official, which cannot be considered permissible. The
moment at which a proceeding in execution concludes must be
unequivocally determined (also in relation to third parties, for ex.,
for the expunging of entries from the land register). Whereas in the
proceeding held before the District Court for Prague 5, by its 5 March
2004 ruling, No. Nc 733/2003-102, the court halted execution of the
writ, in the proceeding held before the District Court for Prague 3, no
such act was done. The Constitutional Court considers it appropriate
for ordinary courts to conduct proceedings on the enforcement of
decisions consistently, in accordance with § 268 para. 1, lit. g) of the
Civil Procedure Code, and to dismiss proceedings even in the case that a
collected claim ceases to exist in the course of the enforcement
proceeding because it has been satisfied.
35.
For the reasons given, the Constitutional Court Plenum decided, on the
basis of § 70 para. 1 of the Act on the Constitutional Court, to annul §
5 para. 1, the second sentence, of Regulation. No. 330/2001 Coll., as
subsequently amended, Art. II., point 1. of Regulation No. 233/2004
Coll., and Art. II., point 1. of Regulation No. 291/2006 Coll., as of
the day this Judgment is published in the Collection of Laws.
Notice: Decisions of the Constitutional Court cannot be appealed.
Notice: Decisions of the Constitutional Court cannot be appealed.
Brno 1 March 2007
Dissenting Opinion
of Justice Vladimír Kůrka
This separate opinion is directed exclusively against the first statement of the judgment and is based above all upon the conviction that the majority opinion of the Constitutional Court Plenum grounded its reservation in § 5 para. 1, the second sentence, of Regulation. No. 330/2001 Coll., as subsequently amended (hereinafter „Regulation No. 330/2001 Coll.“), inappositely, as this provision is, from the perspective of the criticisms expressed in the Judgment, as well as the aim pursued therein, of no consequence. After all, it merely serves as the basis for the (general) determination of the commission of enforcement officials, whereas, in contrast thereto, in the decisive connections, it was § 11 para. 1 which was determinative; it was precisely the latter provision‘s purpose to react to the situation about which the Constitutional Court was concerned in both matters („if the obliged person voluntarily performs that which the power of distress imposes upon her . . .“) and only on the basis of that provision was it meant to be made clear that the cost burden on obliged persons, as far as concerns the enforcement official’s commission, lowers such that enforcement officials receive only 50 % of the amount they would be entitled to, if they had actually (by enforcement instruments) exacted the relevant performance. For that matter, in matter No. I. US 639/04, from which emerged the First Panel’s petition pursuant to § 64 para. 1 lit. c) of the Act on the Constitutional Court, the complainant sought precisely that the boon of the provisions of § 11 para. 1, lit. a) of Regulation No. 330/2001 Coll. not be denied her.
The
plenary Judgment does not in any sense call into doubt this objective
of the provisions of § 11 para. 1 of the Regulation; it is entirely
within its rights, however, to criticize it that, by conjoining it with
the obliged person‘s duty also „to pay the costs of enforcement
activities“ it is rendered effectively inapplicable, in consequence of
which it comes into conflict with Art. 1 para. 1 of the Constitution, as
„the creation of unfulfillable conditions for a reduced rate to apply
is in conflict with the principle of the law-based state“.
It
is therefore precisely the provisions of § 11 para. 1 of the Regulation
(and not § 5 para. 1, the second sentence) whose intention is, on the
one hand, to take into account the actual reduction of the enforcement
officials‘ „efforts“ in procuring the performance of the obligation
according to the power to act (which corresponds also to the reduction
of his fee) and, on the other hand, to have „educational“ effects on the
obliged person, due to the fact the he obtains a certain cost
„discount“, if he performs „at the last possible moment“ without being
obliged to do so by enforcement.
The
provisions of § 5 para. 1, the second sentence, of the Regulation is
directed at a dissimilar objective. It is an attempt to eliminate the
problem connected with the first sentence of this provision, namely, to
explicate the term, „exacted performance“ in situations when, after an
enforcement proceeding has already commenced, the obliged person
performed the obligation „voluntarily“. The need to supplement the
original (single) sentence of § 5 para. 1 came about due to the fact
that there was no unity in judicial practice on the issue of whether an
„exacted performance“ can be understood exclusively as that which was
effectuated within the framework of instruments of enforcement actually
carried out (on the basis of the execution orders issued by the
enforcement official) or, on the contrary, whether it also included
performances provided by the obliged person, although outside of that
framework, but under the pressure thereof and in an effort to avert it,
when an enforcement official has at the same time already, on the basis
of the charge to execute a specific writ, engaged in certain activity.
Grounds, which could not be overlooked, existed for placing both on a
par with each other, thus, even in the second instance of provided
performance, for conceiving of it as „exacted“ (and as forming a part of
the „base for the determination of the commission for levying in
execution of the writ“ in the sense of § 5 para. 1, the first sentence,
of the Regulation). Situations are known which are difficult to
distinguish, namely, if the obliged person performs within the framework
of the manner in which the execution is levied, or outside of that
framework, or „voluntarily“ (cf., for ex. § 325a of the Civil Procedure
Code, before the enforcement official resorts to a personal search).
In
place of the until then ambiguous interpretation, the second sentence
of § 5 para. 1 of the Regulation laid down (from the entry into effect
of Regulation No. 233/2004 Coll.) a statutory fiction, which is to
consider a performance as „exacted“; the amendment conveys a substantive
meaning that could also have been accomplished by interpretation, but
which judicial practice had not proved able (timely) to unify.
On
a general level, it applies that a legal fiction is permissible, even
in terms of the constitutional requirements, if it pursues a legitimate
aim, and if it is appropriate, necessary, and proportionate.
It
follows from the described difficulty in interpreting § 5 para. 1 in
its original wording, and it can also further be substantiated, that the
fictions expressed afterward in § 5 para. 1, the second sentence,
moreover, as amended by Regulation No. 291/2006 Coll., are tolerable
from those perspectives. The concept of an exacted performance, as
amended in Regulation No. 233/2004 Coll., reflects first and foremost
the circumstance of „non-voluntariness“ of the obliged person’s
performance, if it occurred by the operation of the subjectively
intermediated fact of execution (by delivery of the court’s writ of
execution); a performance „exacted“ in the sense of Regulation No.
291/2006 Coll. then proceeds from the fact that at the moment the court
issues its writ of execution and charges an enforcement official with
executing it, certain „endeavor“ or activity by the enforcement official
is generally already tied up therewith (cf., for ex., § 35 para. 2, §
44 para. 1 of the Enforcement Code). The acceptability of these
fictions is deepened by the observation that only the base of
enforcement officials‘ commissions is determined through them, whereas
the reduction thereof, in the case of satisfaction which the obliged
person provides in the framework of the Enforcement Code (however, apart
from the regime of compelled collection according to the issued
enforcement orders), is reserved for the instrument to which the
provisions of § 11 para. 1 of the Regulation is directed.
The
elimination of the second sentence of § 5 para. 1 of the Regulation can
only accomplish the result that the original interpretive problem,
namely, what constitutes an „exacted performance“, be reopened for
judicial practice.
Even if
objections can be raised against the specific form of the fiction under §
5 para. 1, the second sentence, of the Regulation (which can be
imagined especially in relation to those already established by
Regulation No. 291/2006 Coll.), one cannot even disregard the fact that
„purposefulness“, alternatively „appropriateness“ or „correctness“, are
not, in and of themselves, applicable considerations of
constitutionality, that is, of the constitutional review of legal norms.
A
constitutional law element can hardly be found in the consideration
that, „without the direct participation“ of the enforcement official in
the obliged person’s performance of her obligation, the enforcement
official would receive an unjustified preference as against those
enforcement officials who „actually“ levied execution (as in one case,
the latter will be made up of a particular group of people, but in
another case, they will be other people, and there is nothing suggesting
that they would feel themselves discriminated against), and the
prospective absence of any „educative“ component in relation to the
obliged person clearly does not rise to the level of constitutional law,
if, as was already stated, an effective room is reserved for that
interest in some other context (§ 11 para. 1 of the Regulation).
A
genuine constitutional law argument on the protection of property in
the sense of Art. 11 para. 1 of the Charter, bound up with the principle
of the protection of the obliged person (not to cause him detriment to a
greater extent than is indispensable, etc.), which was otherwise
justifiably asserted in the Judgment, has, however, a limit, which
cannot be overlooked and is constituted „by enforcement“; protection
which is provided to the obliged person is logically limited by the fact
that it attaches to a person who did not voluntarily meet his
obligation, so that it was necessary authoritatively to impose it upon
him by the power of distress (typically through judicial decision), and
which he, nevertheless, did not perform in favor of the entitled person,
not even by a further deadline set on the basis of the right. If such a
person takes upon himself the risk that execution will be levied
against him, it is not unacceptably, even in constitutional law, to
connect therewith also the adverse consequences of a further judicial
(enforcement) proceeding, which consists in objectively anticipated
detriment in terms of costs, including the costs of enforcement
activities, as a part of the enforcement official’s commission (§ 87
para. 1 of the Enforcement Code). Then it can only with difficulty be
deduced that the protection of the obliged persons under Art. 11 para. 1
of the Charter could find expression even in the assessment of which
performance, provided after the enforcement proceeding has already
commenced, should come within the concept of an „exacted“ performance
and which should not.
Finally
it is appropriate to remark that certain „flat rating“ of the costs of a
proceeding (whether it appears in the form of the State’s cost, which
the parties to a court proceeding help to defray by paying court fees,
or the costs of representation, which the parties are obliged to pay)
are, in relation to court proceedings, accepted by a general consensus,
as such „flat rating“ captures the objective inability – only for the
determination of those costs, that is apart from the actual focal point
of the relevant proceeding - satisfactorily (and „practically“) to lay
down the „actual“ or „appropriate“ costs, and those corresponding to the
effort or expert requirements, whether of the State or the
representatives of the parties. Therefore, in these contexts, the
„value“ of the dispute is traditionally measured by the subject, chiefly
expressed monetarily, and not by an estimate of its „actual“ expert or
organizational demandingness (cf. § 6 of Act No. 549/1991 Coll., on
Court Fees; § 7, § 8 of Regulation No. 177/1996 Coll., on the
Remuneration of Attorneys and Substitute Attorneys for the Provision of
Legal Services; § 3 of Regulation No. 484/2000 Coll., which Lays Down a
Flat Rate Remuneration for an Attorney or Notary representing a Party in
Decision-Making on the Reimbursement of Costs in a Civil Court
Proceeding; § 4 of Regulation No. 196/2001 Coll., on the Remuneration
and Substitution of Notaries and Inheritance Administrators; and
others). Where a situation arises that is genuinely of the type of
lower „demandingness“, the mentioned enactments do not look for a
„discount“ in the reduction of objects, „bases“, or „tariff values“,
etc. (cf. § 5 para. 1 of Regulation No. 330/2001 Coll.), rather in the
regime which the provisions of § 11 para. 1 of the same enactment (see §
10 para. 3 of Act No. 549/1991 Coll. or § 13 to § 15 of Regulation No.
484/2000 Coll.) is – in the context – meant to serve.
Stated
in summary, it leads to the conclusion that the Judgment’s line of
reasoning against the provisions of § 5 para. 1, the second sentence, of
Regulation No. 330/2001 Coll., is effective neither on the plane of
sub-constitutional law nor on the constitutional law plane, and that the
ambition to derogate should not have been directed against this
provision, rather against § 11 para. 1, to which a significant part of
the Judgment’s reasoning otherwise applies.
Brno, 1 March 2007