![PDF ikona](fileadmin/Default_theme/Images/filetypes/pdf.png)
HEADNOTES
The
Constitutional Court comprehensively considered the question of
constitutional interpretation of letter a) point 2. of item 14a of the
price list of fees in judgment file no. I. ÚS 664/03. In the
introduction it referred to its previous case law on the duty to pay
fees (file no. IV. ÚS 162/99), where it emphasized that “the regulation
of the duty to pay fees, or exemption from it, implemented by Act no.
549/1991 Coll., on Court Fees, as amended by later regulations, is one
of the fundamental instances that creates conditions for the right to
judicial protection under Art. 36 par. 1 of the Charter.” In judgment
file no. I. ÚS 664/03 it then concluded from that thesis that “a general
court’s excess in deciding on the amount of a fee under Act no.
549/1991 Coll. can become so great that it also interferes in the
fundamental right under Art. 36 par. 1 or 2 of the Charter.” Therefore,
it ruled out as unconstitutional the alternative interpretation
permitting cumulation of court fees when applying letter a) point 2. of
item 14a of the price list of fees: “The interpretation of Act no.
549/1991 Coll., under which a party to a proceedings is required to pay a
court fee for all administrative decisions that are factually and
legally completely identical, concern the same parties, and are issued
the same day, by the same administrative body, is not only
disproportional, but also unconstitutional. In Art. 36 par. 2, the
Charter of Fundamental Rights and Freedoms provides the principle that
anyone who claims that his rights were infringed by a public
administration body can turn to a court to review the legality of that
decision. In view of that article of the Charter, the steps taken by the
municipal court substantially limited the complainant’s access to the
court.”
In
the cited decisions 1 Afs 127/2005-105 a 2 As 53/2004-76, in accordance
with tradition, doctrine, and the constitutional principle of
protecting freedom, the Supreme Administrative Court stressed the
importance of the dispositive principle in administrative court
proceedings, and within that the plaintiff’s right to define the subject
matter of the proceeding, i.e. including by the cumulation of contested
administrative decisions. In this regard, in addition to the protection
of freedom and autonomy of will, it pointed to the rationality of that
procedure, to the principle of procedural efficiency. The Constitutional
Court fully agrees with the understanding of both principles, the
dispositive principle and the principle of procedural efficiency, as
thus analyzed.
The
permissibility of objective cumulation in the statement of claim of a
petition also corresponds to the purpose of the legal institutions of
joining or separating matters (§ 39 of the Administrative Procedure
Code). Thus, if on the one hand the petitioner’s autonomy of will,
reflected in application of the dispositive principle, is protected, on
the other hand the homogeneity of court proceedings is also protected,
by the institution of separating matters under § 39 par. 2 of the
Administrative Procedure Code, under which, if one complaint is directed
against several decisions, the panel chairman may, by resolution,
separate out each such decision for separate handling, if a joint
proceeding is not possible or suitable. A joint proceeding is possible
and suitable in the case of matters that are factually and legally
either identical or analogous and that concern the same parties. In this
regard, the Supreme Administrative Court’s reasoning in decision ref.
no. 1 Afs 24/2005-70 is not aimed at the non-acceptability of procedure
under § 39 par. 2 of the Administrative Procedure Code, but at the
failure to observe the safeguards that that provision establishes.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Constitutional Court, consisting of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný and Eliška Wagnerová, ruled on 29 January 2008 on a petition from the Municipal Court in Prague seeking the annulment of item 14a point 2. let. a) of the appendix to Act no. 549/1991 Coll., on Court Fees, as amended by later regulations, expressed by the words: “For a complaint, or other petition to open proceedings in matters of the administrative judiciary a) against a decision by an administrative body, CZK 2,000,” as follows:
The petition is denied.
REASONING
I.
Definition of the Matter and Recapitulation of the Petition
On
21 September 2006 the Constitutional Court received a petition from the
Municipal Court in Prague, seeking the annulment of item 14a point 2.
let. a) of the appendix to Act no. 549/1991 Coll., on Court Fees, as
amended by later regulations, expressed by the words: “For a complaint,
or other petition to open proceedings in matters of the administrative
judiciary a) against a decision by an administrative body, CZK 2,000.”
The
petitioner filed the petition under § 64 par. 3 Act no. 182/1993 Coll.,
as amended by later regulations, after it concluded, in connection with
its decision-making activity in accordance with Art. 95 par. 2 of the
Constitution and § 48 par. 1 let. a) of the Administrative Procedure
Code, that item 14a point 2. let. a) of the appendix to the Act on Court
Fees, which is to be applied in resolving the matters file no. 9 Ca
52/2006, 9 Ca 53/2006, 9 Ca 54/2006, 9 Ca 55/2006 and 9 Ca 56/2006, is
inconsistent with Art. 36 par. 1 of the Charter of Fundamental Rights
and Freedoms (the “Charter”) and Art. 1 of the Constitution.
In
the matters file no. 9 Ca 52-56/2006 the Municipal Court in Prague is
ruling on five complaints by the company FAD, a. s., with its registered
address at Václavské nám. 1/846, Prague 1, against the Financial
Directorate for the Capital City of Prague, whereby it seeks the
annulment of 162 decisions by the defendant, which denied appeals
against assessment of real estate transfer tax issued by the Financial
Office for Prague 5. These decisions did not give the plaintiff in tax
proceedings the right to exemption from real estate transfer tax under §
20 par. 7 let. a), b) of Act no. 357/1992 Coll., on Inheritance and
Gift Tax and on Real Estate Transfer Tax, which it applied on the
transfer of residential and non-residential units in precisely
identified real estate, where the purchase contracts with the relevant
buyers – individuals and legal entities – are from various dates, and
the legal effects of the registration of ownership arising from these
contracts also always arose at different moments (dates). The
administrative decisions on tax assessment, as well as the appeal
decisions in the administrative proceedings, were issued by the
financial authorities as independent decisions, factually and legally
evaluating the particular transfers. Within its discretion the plaintiff
contested 162 administrative decisions in 5 complaints aimed against
those administrative decisions that correspond to a particular
transferred item (e.g., a flat with non-residential premises) or only
non-residential premises of a particular kind (e.g. a cellar, or a
garage).
At the beginning of
the reasoning in the petition to annul the statutory provision in
question, the Municipal Court in Prague refers to one of the conditions
for filing complaints before an administrative court, fulfilling the
duty to pay fees under Act no. 564/1991 Coll., on Court Fees, as amended
by later regulations. Under § 1 let. a) of the Act, court fees are
charged for proceedings before the courts of the Czech Republic, for
services listed in the price list of court fees, and in matters for the
administrative judiciary, under item 14a point 2. let. a) of the price
list of court fees, which is an appendix to the Act on Court Fees, a
court fee of CZK 2,000 is set for a complaint against a decision by an
administrative body. According to the petitioner, in matters where the
plaintiff contests more than one administrative decision, it is an open
question what service actually is a complaint under item 14a point 2.
let. a) of the price list of court fees. In other words, whether this
service is, purely formally, without regard to the content and
circumstances leading to the issuance of an administrative act, a
written filing entitled “complaint,” or whether a complaint is every
complaint item made in such a written filing, because that, if it is
directed against another decision, must also be a complaint. Here the
petitioner points out that in the administrative courts a proceeding
before an administrative court is defined not only by the group or
parties to the proceedings, the plaintiff and the administrative body
that made a decision at the 2nd level of an administrative proceeding,
but also by the subject matter of the proceedings, which is always
autonomously the individual, independent administrative decision,
because the issue is the evaluation of whether the decision was legal,
substantively and procedurally.
As
part of the grounds for its active standing in a proceeding on the
review of norms, the Municipal Court points out that the statutory
provision of item 14a point 2. let. a) of the price list of court fees
is supposed to be applied in these legal matters as a prerequisite for
processing complaints.
However,
determination of the amount of a court fee in these proceedings depends
on the choice of one of two alternative interpretations of item 14a
point 2. let. a) of the price list of court fees. In weighing them, the
petitioner states that the fee amount set according to the number of
written filings would not correspond to the actual number and scope
according to the content of the complaint and proceedings conducted
under § 65 et seq. of the Administrative Procedure Code, and would
depend purely on the plaintiff’s decision how many complaints – written
filings – to use to exercise his right to judicial protection against a
certain number of administrative decisions, so the fees for the
proceedings would be based on the plaintiff’s decision, regardless of
the subject matter of the proceedings. By separating the petitions into
individual complaints within his discretion regarding petitions the
plaintiff would himself set the amount of court fees. The petitioner
considers this consequence of the plaintiff’s dispositive authority to
violate the constitutional principle of equality (with reference to Art.
4 par. 1 of the Charter), because, in its opinion, this would create
inequality in the right to access to courts. For that reason, in
analogous cases the Municipal Court in Prague considered that it is not
decisive for the duty to pay fees how a complaint is filed, whether
matters are related, whether they relate to the same parties, whether
the court will review and decide them on the basis of the same factual
and legal analysis, or whether the contested decisions by administrative
bodies were or were not issued on the same date, but, under item 14a
point 2. let. a) of the price list of court fees, in connection with § 1
let. a) of the Act on Court Fees, it charged court fees for each
complaint item directed against one independent administrative decision.
However,
this procedure followed by the court was not found constitutional by
Constitutional Court judgment file no. I. ÚS 664/03. After restating the
content of that judgment, as well as corresponding decisions by the
Supreme Administrative Court, ref. no. 2 As 53/2004-76 a ref. no. 1 Afs
127/2005-105, the Municipal Court in Prague states that, because the
procedural steps on the issue of the duty to pay fees and the
substantive essence of the dispute are absolutely comparable, in these
matters cited above, with regard to which it is filing this petition to
annul item 14a point 2. let. a) of the appendix to the Act on Court
Fees, it feels bound by the opinion of the Constitutional Court, which
rejects the interpretation that a party to a proceeding is required to
pay a court fee for a complaint against each individual administrative
decision.
Thus, if the
Constitutional Court does not consider it constitutional, in the
administrative courts, to charge a court fee of CZK 2,000 for a
complaint against every administrative decision, and the law provides no
other arrangement for charging court fees in administrative court
matters, then, according to the Municipal Court, there is no choice but
to conclude that item 14a point 2. let. a) of the price list of court
fees, which must be applied only in connection with § 1 let. a) of the
Act on Court Fees, is unconstitutional. According to the petitioner,
this conclusion also follows from the Constitutional Court’s arguments
in judgment file no. I. ÚS 664/03, according to which, the procedure
applied by the Municipal Court led to a disproportionate fee in relation
to the amount of tax assessed (40% of the total tax assessed). However,
in comparison to the adjudicated matter, the petitioner disputes that
argument, because here the total amount of the court fee (CZK 324,000)
appears very proportionate in relation to the total amount of taxes
assessed, determined by the sum of the individual assessed taxes (each
individual tax in the amount of tens of thousands, or thousands, or a
million crowns). According to the petitioner, the criterion of
disproportion between the amount of a court fee and the possible result
of a proceeding cannot be applied, for example, in a proceeding on
review of administrative decisions in matters of misdemeanors, because,
in view of the amount of a fine under Act no. 200/1990 Coll., on
Misdemeanors, this amount is lower than a court fee. Peripherally to the
merits of the compared matters, the Municipal Court in Prague points to
the Constitutional Court’s different view of the subject matter in an
administrative proceeding, insofar as judgment file no. I. ÚS 664/03
argues on the basis of a “commercial case,” and further states that it
originally considered it clear that under the current wording of item
14a point 2. let. a) of the price list of court fees, only an
administrative decision can be considered to be a measure of payment of a
court fee, because that price list item concerns the administrative
courts, where the subject matter of a review proceeding is an individual
administrative act, and the court reviews not only substantive
legality, but also the formal elements of the administrative act that
was issued. For that reason, it handles individual tax decisions
procedurally in independent proceedings as an administrative case, or a
case of issuing an individual administrative act, which is why, in terms
of a court fee, it does not consider a complaint against several
decisions to be one commercial case, based on the factual and legal
issues in the relationships that were the basis for issuing the tax
decisions. Tax administrators issue tax assessments independently, and
the assessments are independent grounds for execution of decisions.
However,
according to the petitioner, in terms of the legal opinion in judgment
file no. I. ÚS 664/03, the text of the statutory regulation in question
does not express the viewpoints raised by the Constitutional Court. The
Municipal Court in Prague believes that the situation that arose after
the Court adopted judgment file no. I. ÚS 664/03 does not permit
assessing a court fee for a complaint against each administrative
decision in this matter of five complaints against 162 administrative
decisions, because that would be unconstitutional. However, the
Municipal Court believes that it does not have the ability to assess the
plaintiff a court fee, even from a formal standpoint, according to the
number of complaints, because it is responsible for charging a court fee
in the correct amount, and that amount cannot be determined by the will
of the plaintiff and the way in which the plaintiff chooses to file
complaints, and Act no. 549/1991 Coll., as amended by later regulations,
does not provide other criteria for charging court fees. At the same
time, the Court states that it is bound by the legal opinion of the
Constitutional Court as regards reviewing the connection between the
amount of the court fee and the subject matter of the proceeding, i.e.
as regards the need to decide on the amount of the fee case by case,
which, however, could mean conflict with the principle of equality and
predictability of law, as well as the principle of efficient proceedings
(given the need, in such a case, to be familiar with the adjudicated
matter in great detail at the point when a proceeding is opened).
In view of these reasons, the petitioner takes the position that the statutory regulation of court fees in the administrative courts should precisely set the rules, for which service, or what proceeding, and in what amount a plaintiff can be charged a court fee, so that a court, when applying the relevant provision of the law, would not be exposed to various alternative interpretations. As the Municipal Court in Prague, based on its belief on the basis of the cited Constitutional Court judgment, found itself in a procedural situation where it is not certain what amount of court fees it is to charge the plaintiff for the complaints filed so that it will fulfill its statutory obligation to charge court fees under item 14a point 2. let. a) of the price list of court fees in connection with § 1 let. a) Act no. 549/1991 Coll., and if it is, under Art. 95 par. 2 of the Constitution, bound by the law, and at the same time by the imperative to act in a constitutional manner, it therefore concluded that the legal regulation of item 14a point 2. let. a) of the price list of court fees is unclear, because it permits various interpretations of the amount of a court fee for a complaint against a decision by an administrative body, and, as a result, makes the parties to a proceeding unequal in their constitutionally guaranteed right to access to the court under Art. 36 par. 1 of the Charter, and at the same time violates one of the fundamental principles of a law-based state, the principle of legal certainty and confidence in the law under Art. 1 par. 1 of the Constitution, which is guaranteed by the principle of predictability of the law, its understandability, and the principle of the internal consistency of the law.
In view of these reasons, the petitioner takes the position that the statutory regulation of court fees in the administrative courts should precisely set the rules, for which service, or what proceeding, and in what amount a plaintiff can be charged a court fee, so that a court, when applying the relevant provision of the law, would not be exposed to various alternative interpretations. As the Municipal Court in Prague, based on its belief on the basis of the cited Constitutional Court judgment, found itself in a procedural situation where it is not certain what amount of court fees it is to charge the plaintiff for the complaints filed so that it will fulfill its statutory obligation to charge court fees under item 14a point 2. let. a) of the price list of court fees in connection with § 1 let. a) Act no. 549/1991 Coll., and if it is, under Art. 95 par. 2 of the Constitution, bound by the law, and at the same time by the imperative to act in a constitutional manner, it therefore concluded that the legal regulation of item 14a point 2. let. a) of the price list of court fees is unclear, because it permits various interpretations of the amount of a court fee for a complaint against a decision by an administrative body, and, as a result, makes the parties to a proceeding unequal in their constitutionally guaranteed right to access to the court under Art. 36 par. 1 of the Charter, and at the same time violates one of the fundamental principles of a law-based state, the principle of legal certainty and confidence in the law under Art. 1 par. 1 of the Constitution, which is guaranteed by the principle of predictability of the law, its understandability, and the principle of the internal consistency of the law.
For
these reasons, the Municipal Court in Prague proposes that the
Constitutional Court, after conducting proceedings, decide in a judgment
that item 14a point 2. let. a) of the appendix to Act no. 549/1991
Coll., on Court Fees, as amended by later regulations, expressed by the
words: “For a complaint, or other petition to open proceedings in
matters of the administrative judiciary a) against a decision by an
administrative body, CZK 2,000,” be annulled as of the date that the
Constitutional Court specifies in the judgment.
II.
Recapitulation of the Essential Parts of the Briefs from the Party to the Proceeding, and the Petitioner’s Response
Pursuant
to § 42 par. 4 and § 69 Act no. 182/1993 Coll., on the Constitutional
Court, as amended by later regulations, the Constitutional Court sent
the petition to the Chamber of Deputies. In the opening of his brief of 1
November 2006, the Chairman of the Chamber of Deputies of the
Parliament of the Czech Republic, Ing. Miloslav Vlček, states that item
14a, including the contested point 2. let. a), was inserted into the
price list of court fees by an accompanying statute to the
Administrative Procedure Code, which was published as no. 151/2002
Coll., and the bill was presented to the Chamber of Deputies by the
government on 4 October 2001, and discussed as publication 1081. As
regards the question of whether the contested statutory provision is
consistent with the constitutional order, the brief refers to the
explanatory report to the bill, according to which “the proposed
regulation is consistent with the constitutional order of the Czech
Republic and international treaties by which the Czech Republic is
bound.” The first reading, as the brief states, was held on 25 October
2001 at the 39th session of the Chamber of Deputies; in vote no. 234 the
bill was assigned to the constitutional law committee, and of the 117
deputies present 109 voted in favor, and none against. The
constitutional law committee discussed publication 1081 at its 97th
meeting, on 18 January 2002; in contrast to the original wording of the
government bill, containing an amount of CZK 5,000, in its resolution
the constitutional law committee proposed lowering the amount to CZK
2,000 (committee resolution no. 235 was subsequently discussed as
publication 1091/1). The second reading took place at the 46th session
of the Chamber of Deputies; general debate of the bill took place on 30
January and 8 February 2002, and detailed debate followed on 8 February.
The amending proposals arising from it were combined in publication
1081/2. The third reading took place at the same, i.e. 46th session of
the Chamber of Deputies, on 15 February 2002; the final resolution,
whereby the Chamber of Deputies accepted the bill, based on publication
1081, as amended by the amending proposals, was adopted when, out of 159
deputies present, 149 voted in favor, and none against. The bill was
then passed to the Senate, which did not discuss it. The President of
the Republic signed the Act on 28 March 2002.
Based
on the foregoing, the Chairman of the Chamber of Deputies states that
the Act was approved by the required majority of deputies in the Chamber
of Deputies, was signed by the appropriate constitutional authorities,
and was duly promulgated.
In
view of the amending proposals adopted by the Chamber of Deputies,
which affected the contested provision only as regards the proposed
amount, and in view of the explanatory report, the brief states that the
legislative assembly acted in the belief that the adopted Act was
consistent with the Constitution and the legal order, and that it is up
to the Constitutional Court, in accordance with “the constitutional
complaint from the Municipal Court in Prague” (sic!) and its petition to
annul item 14a point 2. let. a) of the price list of court fees of Act
no. 549/1991 Coll., on Court Fees, as amended by Act no. 151/2002 Coll.,
the part expressed by the words: “For a complaint, or other petition to
open proceedings in matters of the administrative judiciary a) against a
decision by an administrative body, CZK 2,000,” to review the
constitutionality of the Act and issue the appropriate decision.
In
conclusion the Chairman of the Chamber of Deputies points to the less
than precisely formulated petition from the Municipal Court in Prague,
which proposes annulment of the words “For a complaint, or other
petition to open proceedings in matters of the administrative judiciary
a) against a decision by an administrative body, CZK 2,000,” but in Item
14a point 2. the phrase is: “For a complaint, or other petition to open
proceedings in matters of the administrative judiciary,” and the text
is then divided into letters a) to d). According to the party to the
proceeding, deleting the words cited above would leave in this phrase in
Item 14a point 2. only the words “or other petition,” and the text of
letters b) to d), which, in practice, would lead to confusion and make
the provision inapplicable.
Pursuant
to § 42 par. 4 a § 69 Act no. 182/1993 Coll., as amended by later
regulations, the Constitutional Court also sent the petition to the
Senate of the Parliament of the Czech Republic.
In
the introduction of his brief of 7 November 2006, Senate Chairman MUDr.
Přemysl Sobotka, in agreement with the brief from the chairman of the
Chamber of Deputies, points to the incorrect formulation of the
statement of claim in the petition, and points out that what would
remain after derogation would be ungrammatical (e.g., the remaining
words “or other” would obviously be out of place), and technical
legislative inconsistencies [it is proposed to annul letter a) of item
14a point 2. including the words “For a complaint, or other petition to
open proceedings in matters of the administrative judiciary,” although
letter a) does not contain those words at all], and finally
inconsistencies in content [if the word “complaint” were deleted, then
for further interpretation letter d) point 2. of item 14a, would not be
fully covered, i.e. “other cases” which now includes, eg.. a complaint
about inactivity]. The Senate then adds that its brief will cover an
alternative to the petition to annul letter a) point 2. of item 14a of
the price list of fees.
Regarding
the genesis of the contested statutory provision, the brief states that
item 14a of the price list of fees was adopted during a period of
legislative discussion of reform of the administrative judiciary in 2002
[with the exception of the newly inserted point 2. let. d), which was
inserted in that point by Act no. 159/2006 Coll., on Conflict of
Interest]. It was implemented by Act no. 151/2002 Coll. The bill of this
Act was passed to the Senate on 25 February 2002, the Senate
organization committee passed the bill, as no. 224, to the
constitutional law committee, as the guarantee committee, and to the
committee for local development, public administration, and the
environment. Both committees, in resolutions no. 83 of 6 March 2002, and
no. 94 of 12 March 2002, respectively, recommended that the Senate
approve the version of the bill passed to it by the Chamber of Deputies.
On 21 March 2002 the Senate addressed the bill in a plenary session at
the 14th session of its third term of office, and in resolution no. 327
it expressed its intent not to discuss it. In vote no. 95, 38 of the 43
senators present were in favor of the bill, and one against.
According to the brief, as regards the content of the contested provision, no problems were raised during the legislative process in the Senate, which is also shown by the form in which the bill was adopted, which is de facto adopting a bill by the Senate in a plenary session without debate. The Senate concludes from this that it discussed the bill within the bounds of its constitutional power, and decided as stated above.
According to the brief, as regards the content of the contested provision, no problems were raised during the legislative process in the Senate, which is also shown by the form in which the bill was adopted, which is de facto adopting a bill by the Senate in a plenary session without debate. The Senate concludes from this that it discussed the bill within the bounds of its constitutional power, and decided as stated above.
As
regards the matter itself, the Senate’s brief is based on
interpretation of § 1 of the Act on Court Fees. It states that the text
prima facie permits a thorough distinction between a proceeding fee, a
court service fee, and a court administration service fee, and that, in
response to non-uniform application in practice, the Supreme Court
considered this distinction in its opinion of 4 July 1996. file no. Cpjn
68/95 and Opjn 1/95. It then summarizes the developments in regulation
of court fees, beginning with Imperial Order no. 279/1915 Imperial Laws,
through Act no. 173/1950 Coll., Minister of Finance Directive no.
3/1951 Coll., and no. 22/1959 Coll., Act no. 116/1966 Coll., Act no.
147/1984 Coll. up to Act no. 549/1991 Coll., and its amendment by Act
no. 255/2000 Coll. According to the party, as much as the first of these
regulations can be described as well organized and relatively highly
specific, regulations from the period after 1948 were typically more
generally, unclear, and combined various legal institutions (e.g. the
legal framework from 1951 and 1959 mixed fees for a complaint or
petition with fees for various extracts, certifications, etc.).
In connection with § 1 of Act no. 549/1991 Coll., as amended by Act no. 255/2000 Coll., the brief from the Senate chairman states that item 14a, which includes the affected provision, is placed in the fee list among fees charged for a proceeding, though neither the wording of § 1 let. a), under which fees for proceedings are charged “for services listed in the price list of fees,” not the introductory sentence of point 2. of item 14a of the price list of fees, stating “for a complaint or another petition to open proceedings in matters of the administrative judiciary,” nor the two taken together, can be read to mean that the proceeding as a whole should not be subject to fees. The Senate believes that it specified the rate of the fee based on the requirement of making judicial protection available, the nature of the adjudicated matter, and the demands on the deciding body – the court. In view of the fact that in its petition the petitioner weights the terms “proceeding,” “complaint” and “administrative decision contested by a complaint,” the Senate is of the opinion that the legal construction of the fee law remains essentially unchanged despite the different terms used over time, and its basis is separation into fees for a proceeding and a fee for service items, taking into account the difference between services performed by a court and those performed by the judicial administration. For that reason, it formulates the following interpretation of the provision in question: in a court proceeding before an administrative court, against a decision by an administrative body, a fee is charged the performance of the judicial function in one matter, a fee of CZK 2,000 payable when filing a complaint.
In connection with § 1 of Act no. 549/1991 Coll., as amended by Act no. 255/2000 Coll., the brief from the Senate chairman states that item 14a, which includes the affected provision, is placed in the fee list among fees charged for a proceeding, though neither the wording of § 1 let. a), under which fees for proceedings are charged “for services listed in the price list of fees,” not the introductory sentence of point 2. of item 14a of the price list of fees, stating “for a complaint or another petition to open proceedings in matters of the administrative judiciary,” nor the two taken together, can be read to mean that the proceeding as a whole should not be subject to fees. The Senate believes that it specified the rate of the fee based on the requirement of making judicial protection available, the nature of the adjudicated matter, and the demands on the deciding body – the court. In view of the fact that in its petition the petitioner weights the terms “proceeding,” “complaint” and “administrative decision contested by a complaint,” the Senate is of the opinion that the legal construction of the fee law remains essentially unchanged despite the different terms used over time, and its basis is separation into fees for a proceeding and a fee for service items, taking into account the difference between services performed by a court and those performed by the judicial administration. For that reason, it formulates the following interpretation of the provision in question: in a court proceeding before an administrative court, against a decision by an administrative body, a fee is charged the performance of the judicial function in one matter, a fee of CZK 2,000 payable when filing a complaint.
The
Senate emphasizes the freedom of expression of a subject of law,
wherefore it considers it correct to tie the court fee to the complaint
(an act performed at the discretion of the plaintiff), and not to
conceive of it as an economic contribution to the state’s expenses for
its official activities. The plaintiff’s discretion includes his right
to define the subject matter of proceedings in his filing (e.g., to file
one complaint with an administrative court, requesting the review of
several administrative decisions). On the other hand, the Senate (with
reference to decisions of the Supreme Administrative Court, ref. no. 2
As 53/2004-76 and ref. no. 1 Afs 127/2005-105) points out that the court
is entitled to join matters to be handled jointly, or separate out for
individual proceedings several administrative decisions contested in one
complaint, if a joint proceeding is not possible or suitable (§ 39 par.
2 of the Administrative Procedure Code). The brief concludes from this
analysis that in a matter where several decisions by administrative
bodies are contested in a single complaint, the decisions are factually
and legally identical, and they concern the same parties, one proceeding
must be conducted, for which one rate is charged – one proceedings fee,
per the price list. In this regard, it emphasizes the relationship
between fulfilling the duty to pay fees and the guarantee of access to
the court.
Based on the
analogous elements between a civil court proceeding and the
administrative courts, the Senate agrees with the doctrinaire position
on the purpose of court fees (V. Hora, Československé civilní právo
procesní. Díl II. [Czechoslovak Civil Procedure Law. Part II.], Prague
1923, p. 71), that on the one hand the judiciary “may not be a
profit-making enterprise,” and on the other hand there should not be
“litigiousness, abuse of the court and court proceedings, and thus
damage to the whole.” In other words, a court fee should function as
motivation for a potential plaintiff (to not abuse the judiciary), and
in terms of the society, the fee plays the role of a partial economic
equivalent for the activities of the court (the performance of the
judiciary). According to the Senate, this legal conclusion also follows
from the case law of the European Court of Human Rights (Buffalo, S.r.l.
in liquidation v. Italy). Based on the proportionality of the
relationship of these purposes, the Chairman of the Senate also
considers the amount of the court fee (i.e. CZK 2,000) to be
appropriate.
Regarding the
objection that the petitioner is not clear, the Senate states that, in
its opinion, the statutory rules in this matter are sufficiently clear,
understandable, and sufficiently general that they permit the court to
apply the norm case by case, yet leave sufficient room for discretion.
It also believes that Constitutional Court judgment file no. I. ÚS
664/03, according to which “interpretation of Act no. 549/1991 Coll.,
under which a party to a proceeding is required to pay a court fee for
each administrative decision that is factually and legally completely
identical, concerning the same parties, and are issued on the same day
by the same administrative body, is not only disproportional, but also
unconstitutional,” is a clear and understandable starting point for
resolving any doubts in interpretation. Based on this, it points to the
principle of constitutional interpretation of simple law, which should
be the starting point for the petitioner’s actions in this matter.
In conclusion, the brief states that it is fully up to the Constitutional Court to “evaluate the constitutionality of the petition to annul the contested provisions.”
In conclusion, the brief states that it is fully up to the Constitutional Court to “evaluate the constitutionality of the petition to annul the contested provisions.”
In
its response to the brief from the Chamber of Deputies, delivered to the
Constitutional Court on 17 January 2008, the petitioner emphasizes that
its petition is based on Art. 11 par. 5 of the Charter, under which
fees can be imposed only on the basis of law, and on Art. 37 par. 3 of
the Charter, under which all parties in a proceeding are equal, from
which it concludes that even in the case of a complaint against more
than one decision, the level of financial expense for the dispute must
be determined independently of the judgment of the judge, derived from
studying the elements of the matter. In the response, the Municipal
Court in Prague illustrates the argument based on equality of parties to
a proceeding with examples from its own practice. It also poses the
question whether, if setting the amount of the court fee depends on the
court’s deliberation, the Ministry of Finance, as a person participating
in the proceeding, should not have, under § 34 par. 1 of the
Administrative Procedure Code, an opportunity to express its opinion on
each amount of a court fee. Regarding the formulation of the statement
of claim, the petitioner emphasizes that it is within the powers of the
Constitutional Court, under § 70 par. 1 Act no. 182/1993 Coll., to
decide that a statute or other legal regulation, or the individual
provisions thereof, are annulled as of the date that it sets in a
judgment, which is an instrument for preventing undesirable
disproportion. In the conclusion of the response it states that it
maintains its petition, and does so with reference to the newer case law
of the Constitutional Court (file no. III. ÚS 464/06).
III.
Waiver of a Hearing
Under
§ 44 par. 2 Act no. 182/1993 Coll., as amended by later regulations,
the Constitutional Court may, with the consent of the parties, waive a
hearing, if it cannot be expected to clarify the matter further. In view
of the fact that both the petitioner, in its filing of 22 January 2008,
and the parties to the proceeding, in letters from the Chairman of the
Chamber of Deputies of the Parliament of the Czech Republic, of 8
January 2008, and from the Chairman of the Senate fo the Parliament of
the Czech Republic, of 7 January 2008, agreed to waive a hearing, and in
view of the fact that the Constitutional Court believes that a hearing
cannot be expected to clarify the matter further, a hearing was not held
in this matter.
IV.
Statement of Claim in the Petition, and the Wording of the Contested Legal Regulation
In
its decision making, the Constitutional Court is bound by the scope of
the filed petition, and cannot step outside its bounds (ultra petitum)
in its decision (see, e.g. decisions in the matters file no. Pl. ÚS
16/94, Pl. ÚS 8/95, Pl. ÚS 5/01, Pl. ÚS 7/03, and Pl. ÚS 10/03). Insofar
as the Municipal Court in Prague proposes annulling item 14a point 2.
let. a) of the appendix to Act no. 549/1991 Coll., on Court Fees, as
amended by later regulations, expressed by the words: “For a complaint,
or other petition to open proceedings in matters of the administrative
judiciary a) against a decision by an administrative body, CZK 2,000,”
although the entire content of the petition is directed against letter
a) point 2. of item 14a of the price list of fees, the Constitutional
Court considers the definition of the statement of claim to be an
obvious error, and if it went outside that in its deliberations, that
was not action ultra petitum, but the removal of obvious inconsistency
between the content and citation of the legal regulation identifying the
statement of claim in the petition (similarly, see judgment file no.
Pl. ÚS 38/06). Otherwise, if the statutory provision identified by the
petitioner were annulled, the remaining part of item 14a point 2. of the
price list of fees would cease to make sense.
Letter
a) point 2. of item 14a of the price list of fees, which is an appendix
to Act no. 549/1991 Coll., on Court Fees, as amended by later statutes,
reads: “a) against a decision by an administrative body, CZK 2,000.”
V.
Conditions for Petitioner’s Active Standing
The
petition to annul letter a) point 2. of item 14a of the price list of
fees, which is an appendix to Act no. 549/1991 Coll., on Court Fees, as
amended by later statutes, was filed by the Municipal Court in Prague
under § 64 par. 3 Act no. 182/1993 Coll., as amended by later
regulations.
As already stated in the narration, in the matters file no. 9 Ca 52-56/2006 the Municipal Court in Prague is ruling on five complaints by the company FAD, a. s., with its registered address at Václavské nám. 1/846, Prague 1, against the Financial Directorate for the Capital city of Prague, whereby it seeks the annulment of 162 decisions by the defendant, which denied appeals against assessment of real estate transfer tax, issued by the Financial Office for Prague 5. These decisions did not give the plaintiff in tax proceedings the right to exemption from real estate transfer tax under § 20 par. 7 let. a), b) Act no. 357/1992 Coll., on Inheritance and Gift Tax and on Real Estate Transfer Tax, which it applied on the transfer of residential and non-residential units in precisely identified real estate.
As already stated in the narration, in the matters file no. 9 Ca 52-56/2006 the Municipal Court in Prague is ruling on five complaints by the company FAD, a. s., with its registered address at Václavské nám. 1/846, Prague 1, against the Financial Directorate for the Capital city of Prague, whereby it seeks the annulment of 162 decisions by the defendant, which denied appeals against assessment of real estate transfer tax, issued by the Financial Office for Prague 5. These decisions did not give the plaintiff in tax proceedings the right to exemption from real estate transfer tax under § 20 par. 7 let. a), b) Act no. 357/1992 Coll., on Inheritance and Gift Tax and on Real Estate Transfer Tax, which it applied on the transfer of residential and non-residential units in precisely identified real estate.
The
Municipal Court in Prague did so under § 64 par. 3 Act no. 182/1993
Coll., as amended by later regulations, in connection with its
decision-making activity, in accordance with Art. 95 par. 2 of the
Constitution and § 48 par. 1 let. a) of the Administrative Procedure
Code, after concluding that letter a) point 2. of item 14a of the price
list of fees, which is an appendix to Act no. 549/1991 Coll., on Court
Fees, as amended by later statutes, which is to be applied in resolving
the matter file no. 9 Ca 52-56/2006, is inconsistent with Art. 36 par. 1
of the Charter and Art. 1 of the Constitution.
The
procedural condition for the active standing of a general court under §
64 par. 3 Act no. 182/1993 Coll., on the Constitutional Court, as
amended by later regulations, is a relationship between the law, or the
individual provision, that is proposed to be annulled, and the subject
matter of the core proceeding, such as establishes decision-making
grounds for a general court to evaluate the matter.
As paying the court fee is a condition for handling a matter (§ 9 of the Act on Court Fees), we can state that the conditions for the petitioner’s active standing in a proceeding on review of norms have been met.
As paying the court fee is a condition for handling a matter (§ 9 of the Act on Court Fees), we can state that the conditions for the petitioner’s active standing in a proceeding on review of norms have been met.
VI.
Constitutionality of Competence and the Legislative Process
In
accordance with § 68 par. 2 Act no. 182/1993 Coll., as amended by later
regulations, in proceedings on review of norms the Constitutional Court
is required to review whether the contested act, its individual
provision, or another legal regulation or its individual provision, was
adopted and issued within the bounds of constitutionally provided
competence and in a constitutionally prescribed manner.
It was determined from Chamber of Deputies publications and stenographic records, as well as the brief from the party to the proceedings, that the Chamber of Deputies approved the bill of the contested Act, i.e. Act no. 151/2002 Coll., in the 3rd reading, at its 46th session, on 15 February 2002, in resolution no. 2106, when, out of 159 deputies, 149 voted in favor and none were against.
The Senate addressed the bill in a plenary session on 21 March 2002, at its 15th session of its third term of office, and in resolution no. 327 it expressed its intent not to discuss it. In vote no. 95, out of 43 senators present, 38 were in favor and one was against.
The Act was signed by the appropriate constitutional officials, and was duly promulgated as no. 151/2002 Coll. in part 61 of the Collection of Laws, which was distributed on 17 April 2002, and, under Art. XXVII, the provision relevant for the Constitutional Court’s decision, Art. X point 18. went into effect on 1 January 2003.
It was determined from Chamber of Deputies publications and stenographic records, as well as the brief from the party to the proceedings, that the Chamber of Deputies approved the bill of the contested Act, i.e. Act no. 151/2002 Coll., in the 3rd reading, at its 46th session, on 15 February 2002, in resolution no. 2106, when, out of 159 deputies, 149 voted in favor and none were against.
The Senate addressed the bill in a plenary session on 21 March 2002, at its 15th session of its third term of office, and in resolution no. 327 it expressed its intent not to discuss it. In vote no. 95, out of 43 senators present, 38 were in favor and one was against.
The Act was signed by the appropriate constitutional officials, and was duly promulgated as no. 151/2002 Coll. in part 61 of the Collection of Laws, which was distributed on 17 April 2002, and, under Art. XXVII, the provision relevant for the Constitutional Court’s decision, Art. X point 18. went into effect on 1 January 2003.
VII.
Consistency of the Contested Statutory Provisions with the Constitutional Order
The
most general expression of the purpose and meaning of court fees is
contained in the explanatory report to the government draft of the Act
on Court Fees (publication 476), adopted by the Czech National Council
on 5 December 1991, and promulgated as no. 549/1991 Coll.: “The task of
legal regulations that govern the assessment and collection of court
fees is also, through appropriate levels of fees, to party cover the
expenses that the state incurs by operating the judiciary, and, at the
same time, to limit the filing of certain incompletely formulated
petitions to open court proceedings. It is also their role to provide
incentives for obligated parties to voluntarily fulfill their
obligations vis-à-vis their fellow citizens and other subjects.”
From
a comparative law aspect, the German Federal Constitutional Court
emphasizes the first of these purposes of court fees (BVerfGE 50, 217
[226]). It states that “a fee is a public law financial performance that
is unilaterally imposed on the fee payer on the grounds of public law
performance vis-à-vis an individual (by a public law norm or a similar
sovereign act) and is intended to fully or partly cover the expenses in
connection with that performance.”
The
meaning and purpose of letter a) point 2. of item 14a of the price list
of fees, which is an appendix to Act no. 549/1991 Coll., on Court Fees,
as amended by Act no. 151/2002 Coll., is to project the adoption of the
Administrative Procedure Code into the regulation of court fees.
The
petitioner’s basic objection that the contested legal provision is
unconstitutional is the existence of several alternative interpretations
of it, and the lack of clear and definite criteria for choosing among
them. Moreover, the petitioner does not accept the arguments contained
in Constitutional Court judgment file no. I. ÚS 664/03, that setting the
amount of a court fee under letter a) point 2. of item 14a of the price
list of fees by imposing a fee for a complaint for each contested
administrative decision led to a disproportionate fee in relation to the
tax assessed, and the petitioner cites examples where such a
disproportion does not occur.
The
Constitutional Court comprehensively considered the question of
constitutional interpretation of letter a) point 2. of item 14a of the
price list of fees in judgment file no. I. ÚS 664/03. In the
introduction it referred to its previous case law on the duty to pay
fees (file no. IV. ÚS 162/99), where it emphasized that “the regulation
of the duty to pay fees, or exemption from it, implemented by Act no.
549/1991 Coll., on Court Fees, as amended by later regulations, is one
of the fundamental instances that creates conditions for the right to
judicial protection under Art. 36 par. 1 of the Charter.” In judgment
file no. I. ÚS 664/03 it then concluded from that thesis that “a general
court’s excess in deciding on the amount of a fee under Act no.
549/1991 Coll. can become so great that it also interferes in the
fundamental right under Art. 36 par. 1 or 2 of the Charter.” Therefore,
it ruled out as unconstitutional the alternative interpretation
permitting cumulation of court fees when applying letter a) point 2. of
item 14a of the price list of fees: “The interpretation of Act no.
549/1991 Coll., under which a party to a proceedings is required to pay a
court fee for all administrative decisions that are factually and
legally completely identical, concern the same parties, and are issued
the same day, by the same administrative body, is not only
disproportional, but also unconstitutional. In Art. 36 par. 2, the
Charter of Fundamental Rights and Freedoms provides the principle that
anyone who claims that his rights were infringed by a public
administration body can turn to a court to review the legality of that
decision. In view of that article of the Charter, the steps taken by the
municipal court substantially limited the complainant’s access to the
court.”
The Constitutional
Court also confirmed that position in its other case law. In judgment
file no. II. ÚS 745/06 it stated that “a constitutional result of
interpretation of Act no. 549/1991 Coll. cannot be an interpretation
that a party to a proceeding is required to pay a court fee for all
administrative decisions, if these are decisions that are factually and
legally completely identical, concern the same parties, and are issued
on the same day by the same administrative body." In another judgment
about this issue, file no. I. ÚS 43/07 it stated the following: “If the
municipal court, in the contested decision, based on interpretation of
the relevant provisions of Act no. 549/1991 Coll., assessed the
plaintiff a court fee of CZK 2,000 for each individual administrative
decision contested by the administrative complaint, although all these
decisions concerned one case (an appeal against an assessment of
penalties), addressed the same legal issue, concerned only the
plaintiff, were issued on the same day by one and the same
administrative body, and contained the same legal reasoning, according
to the Constitutional Court that substantially limited the plaintiff in
access to the court, or, in light of Art. 36 par. 2 of the Charter of
Fundamental Rights and Freedoms, limited the plaintiff’s right to
judicial review of a decision by a public administration body.” Insofar
as the petitioner argues on the basis of judgment file no. III. ÚS
464/06, we can only state that, under § 23 Act no. 182/1993 Coll., that
decision was not sufficient to justify a change in the Constitutional
Court’s legal opinion on the adjudicated issue.
The
Supreme Administrative Court also considered the question of
interpretation of letter a) point 2. of item 14a of the price list of
fees in its case law. From the nature of a complaint as a dispositive
act, whereby the plaintiff turns to a court with a request for judicial
protection and defines the subject matter of the court proceedings, it
concluded in its decision ref. no. 1 Afs 127/2005-105 that the court has
an obligation to respect the circumstance whether the plaintiff, in the
complaint, contested one decision or several decisions, unless the
plaintiff’s procedural conduct is inconsistent with procedural
regulations. In other words, if objective cumulation is permissible, a
court is not entitled to mar the effects of the dispositive act by
separating matters out for independent treatment (in conflict with the
conditions in § 39 par. 2 of the Administrative Procedure Code) and thus
to violate the dispositive principle (on which the administrative
judiciary is built), an individual’s subjective right to have the
autonomy of his will respected, as well as the principle of procedural
efficiency. Based on this analysis of grounds for impermissible
procedure by a court, the Supreme Administrative Court, in decision ref.
no. 2 As 53/2004-76 concluded, among other things, the following
consequence, relevant for the adjudicated issue: “Where this procedure
is not justified, it burdens … the parties to a judicial dispute (for
example, by unjustified multiplication of court fees).”
In
proceedings on the review of whether letter a) point 2. of item 14a of
the price list of fees is consistent with the constitutional order, the
Constitutional Court found no reason to deviate from is previous case
law on this issue. It only adds the following:
The
Constitutional Court’s basic reasoning methods in proceedings on review
of a norm include the principle of giving priority to a constitutional
interpretation over derogation, under which, in a situation where a
certain provision of a legal regulation permits two different
interpretations, one consistent with the constitutional order and the
other inconsistent with it, grounds to annul the provision do not exist.
It is then the task of all state bodies, when applying that legal
regulation, to interpret it in a constitutional manner. This method is
based on the principle of separation of powers and the related principle
of restraint, i.e. the principle that if a constitutional situation can
be achieved by different means, the Constitutional Court chooses the
means that limits the legislative branch least.
The
Constitutional Court has subscribed to this principle in a number of
its decisions. It first did so in judgment file no. Pl. ÚS 48/95. It
then applied the principle of giving priority to a constitution
interpretation over annulment in a number of other decisions in
proceedings on review of norms (e.g. file no. Pl. ÚS 5/96, Pl. ÚS 19/98,
Pl. ÚS 15/98, Pl. ÚS 4/99, Pl. ÚS 10/99, Pl. ÚS 41/02, and Pl. ÚS
92/06).
In the cited
decisions, in accordance with tradition, doctrine, and the
constitutional principle of protecting freedom, the Supreme
Administrative Court stressed the importance of the dispositive
principle in administrative court proceedings, and within that the
plaintiff’s right to define the subject matter of the proceeding, i.e.
including by the cumulation of contested administrative decisions. In
this regard, in addition to the protection of freedom and autonomy of
will, it pointed to the rationality of that procedure, to the principle
of procedural efficiency. The Constitutional Court fully agrees with the
understanding of both principles, the dispositive principle and the
principle of procedural efficiency, as thus analyzed.
The permissibility of objective cumulation in the statement of claim of a petition also corresponds to the purpose of the legal institutions of joining or separating matters (§ 39 of the Administrative Procedure Code). Thus, if on the one hand the petitioner’s autonomy of will, reflected in application of the dispositive principle, is protected, on the other hand the homogeneity of court proceedings is also protected, by the institution of separating matters under § 39 par. 2 of the Administrative Procedure Code, under which, if one complaint is directed against several decisions, the panel chairman may, by resolution, separate out each such decision for separate handling, if a joint proceeding is not possible or suitable. A joint proceeding is possible and suitable in the case of matters that are factually and legally either identical or analogous and that concern the same parties. In this regard, the Supreme Administrative Court’s reasoning in decision ref. no. 1 Afs 24/2005-70 is not aimed at the non-acceptability of procedure under § 39 par. 2 of the Administrative Procedure Code, but at the failure to observe the safeguards that that provision establishes.
Insofar
as the petitioner objects to judgment file no. I. ÚS 664/03 on the
basis of an example where the cumulate calculation of court fees does
not reach a disproportionate level, the Constitutional Court only
comments that in that judgment it only pointed out the possible negative
consequences of interpretation of letter a) point 2. of item 14a of the
price list of fees, as presented by the Municipal Court in Prague.The permissibility of objective cumulation in the statement of claim of a petition also corresponds to the purpose of the legal institutions of joining or separating matters (§ 39 of the Administrative Procedure Code). Thus, if on the one hand the petitioner’s autonomy of will, reflected in application of the dispositive principle, is protected, on the other hand the homogeneity of court proceedings is also protected, by the institution of separating matters under § 39 par. 2 of the Administrative Procedure Code, under which, if one complaint is directed against several decisions, the panel chairman may, by resolution, separate out each such decision for separate handling, if a joint proceeding is not possible or suitable. A joint proceeding is possible and suitable in the case of matters that are factually and legally either identical or analogous and that concern the same parties. In this regard, the Supreme Administrative Court’s reasoning in decision ref. no. 1 Afs 24/2005-70 is not aimed at the non-acceptability of procedure under § 39 par. 2 of the Administrative Procedure Code, but at the failure to observe the safeguards that that provision establishes.
Thus, the Constitutional Court considers the analysis of letter a) point 2. of item 14a of the price list of fees, which is an appendix to Act no. 549/1991 Coll., on Court Fees, as amended by Act no. 151/2002 Coll., contained in the cited case law of the Constitutional Court and the Supreme Administrative Court, to be constitutional, i.e. compatible both with Art. 36 of the Charter, and with Art. 1 of the Constitution. This fact establishes the grounds for applying the principle of priority for a constitutional interpretation over derogation in the adjudicated matter.
Based on the foregoing, the petition from the Municipal Court in Prague, seeking the annulment of letter a) point 2. of item 14a of the price list of fees, which is an appendix to Act no. 549/1991 Coll., on Court Fees, as amended by Act no. 151/2002 Coll., was denied [§ 70 par. 2 Act no. 182/1993 Coll.].
Instruction: Decisions of the Constitutional Court cannot be appealed (§ 54 par. 2 of the Act on the Constitutional Court).
Brno, 29 January 2008