2001/02/14 - Pl. ÚS 45/2000: Sugar Quotas I

14 February 2001

Pl.ÚS 45/2000 of 14 February 2001
Sugar Quotas I


 
HEADNOTES


1.

The fundamental right of everyone to conduct business and other

economic activity guaranteed by Art. 26 of the Charter of Fundamental

Rights and Freedoms does not apply directly, and can be exercised only

within the bounds of statutes; on the other hand, however, any limits

for such conduct of business or activities are subject to statutory

reservation.

2. If the legislature cannot delegate to the

executive branch an area of regulation of relationships designated for

statutory regulation, and thereby give up its own legislative obligation

(Constitutional Court judgment promulgated as no. 206/1996 Coll.), all

the more so the executive branch cannot itself assume the right to such

regulation, with reference to a statute that obviously has a different

purpose and meaning.

 

 


CZECH REPUBLIC

CONSTITUTINAL COURT
JUDGMENT

 

IN THE NAME OF THE REPUBLIC

 


The

Plenum of the Constitutional Court ruled on a petition from Cukrovar

V., s.r.o., seeking the annulment of Government Order no. 51/2000 Coll.,

which provides measures and state participation in the creation of

conditions to ensure and maintain production of sugar beets and sugar

and stabilization of the sugar market, with the participation of the

Government of the Czech Republic, represented by its deputy chairman,

JUDr. Pavel Rychetský, as follows:

Government Order no.

51/2000 Coll., which provides measures and state participation in the

creation of conditions to ensure and maintain production of sugar beets

and sugar and stabilization of the sugar market, is annulled as of the

day this judgment is promulgated in the Collection of Laws.
 

 


REASONING



On

4 August 2000 the Constitutional Court received a constitutional

complaint from Cukrovar V., s.r.o., against a measure from the Ministry

of Agriculture of the CR of 2 June 2000, file no. 1914/2000-1000, on

setting special individual sugar quotas for the business year 2000/2001.

In this measure, the ministry set an individual sugar quota for the

complainant, divided into 7,470 tons for the domestic quota and 2,490

tons for the export quota; the complainant had originally applied for a

domestic quota of 27,000 tons and 5,000 tons for export. Together with

the constitutional complaint, the complainant filed a petition seeking

the annulment of Government Order no. 51/2000 Coll., which provides

measures and state participation in the creation of conditions to ensure

and maintain production of sugar beets and sugar and stabilization of

the sugar market.

The fourth panel of the Constitutional Court,

by a resolution of 20 September 2000, file no. IV. ÚS 468/2000, under to

§ 78 of Act no. 182/1993 Coll., on the Constitutional Court, as amended

by later regulations, interrupted the proceeding on the constitutional

complaint and passed the petition for the annulment of the cited

government order to the plenum of the Constitutional Court.

The

company Cukrovar V., s.r.o., (the “petitioner”) stated that it leased

the sugar refinery for a planned production of 32,000 tons of sugar

annually from Mr. O. M., who had bought the sugar refinery from the

assets of a bankrupt company, Union cukr, a.s., on the basis of a

purchase agreement of 4 November 1999. The contracts were concluded at a

time when no one could predict that the contested government order

would markedly restrict, or make impossible, the conduct of business in

sugar manufacturing. The company invested not inconsiderable funds into

acquiring the sugar refinery and purchasing new technology, with the aim

of achieving its planned annual capacity; however, after the issuance

of the government order, it is in a situation where it is required to

ask the Ministry of Agriculture to issue a measure pursuant to that

order, although it believes that such regulation of production is

unconstitutional and illegal.

In the petitioner’s opinion, the

conduct of certain activity, which can be considered to include the

production and sale of sugar, can be restricted only by statute, not by a

government order. Moreover, the government order created a special,

essentially preferred category of so-called “strategic” sugar producers

(listed in appendix 1 to the cited order), through an administrative

route, and without giving other sugar-producing companies the

opportunity to even influence the selection of sugar refineries included

in it. This gave an advantage to one group of producers to the

detriment of another group, as regards the opportunity and access to

conducting business under Art. 26 par. 1 of the Charter of Fundamental

Rights and Freedoms (the “Charter”) in conjunction with Art. 1 and Art. 3

par. 1 of the Charter, on equal rights. The petitioner also stated that

under the first sentence in the government order, the authorizing

provision for setting quotas is evidently considered to be § 2 par. 1 of

Act no . 252/1997 Coll., on Agriculture. However, that provision

definitely does not establish the right of any particular state body,

and thus not even the government, to issue sub-statutory regulations in

the area of setting quotas and regulating production and through them to

assign rights and obligations. Thus, although the government may issue

orders without express authorization, it must do so within the bounds

provided by law, which was not done in this case.

The petitioner

also expressed disagreement with the fact that conditions for price

stabilization of the agricultural commodities market could be

interpreted to the effect that the government is authorized, in order to

achieve this aim, to remove from certain subjects the opportunity to

freely conduct business in a particular field, without having such

authorization in the law. The fact that issues of quotas and regulation

of production of agricultural commodities cannot be regulated by a mere

government order is also attested to by the fact that, after issuing the

contested order, the Ministry of Agriculture submitted a draft of a

statute that permits such a procedure to the government, which in turn

submitted it to Parliament. At the hearing, the petitioner stated that

it had in mind the statute that was adopted in the interim, Act no.

256/2000 Coll., on the State Agriculture Intervention Fund and on the

Amendment of Certain Other Acts (the Agricultural Intervention Fund

Act). This actually confirmed the fact that regulation performed by the

contested order, as a matter of form, cannot stand. In the petitioner’s

opinion, the contested government order violates the right to do that

which is not forbidden by law and the right not to be compelled to do

that which is not imposed by law (Art. 2 par. 4 of the Constitution of

the CR and Art. 2 par. 3 of the Charter). If the petitioner accepted the

measure of the Ministry of Agriculture, the production facilities of

the sugar refinery would be used at approximately 30%, and this would

lead to the economic necessity to liquidate production with a great

loss. This would also violate Art. 11 of the Charter, which guarantees

protection of property and states that property rights shall have the

same content and enjoy the same protection. The petitioner is de facto

forbidden to bring the sugar it produces to the market in the Czech

Republic, by state decision, and without compensation. The petitioner

also stated that similar procedures could exclude and discriminate

against producers of other food commodities.

In the brief that it

submitted at the request of the Constitutional Court, the government

stated that Government Order no. 51/2000 Coll. was issued to implement §

2 par. 1 of Act no. 252/1997 Coll., on Agriculture. This provision does

not contain an express authorization to issue government orders, but

under Art. 78 of the Constitution of the CR the government is authorized

to implement statutes and issue orders within their bounds – thus, it

may use orders to implement a statute even without express

authorization. The list of measures in the cited provision of the Act on

Agriculture, which are to be used to achieve the aims of the Act, is

only to provide examples. Therefore, the government considers it

possible for the executive branch, in implementing this provision, to

use other measures if they lead to achieving the statutory aim –

creating conditions for maintaining the production potential of

agriculture, in this particular case in the area of sugar beet

cultivation and sugar production and stabilization of the market in

sugar, as a basic agricultural commodity. Such state measures, unlike

subsidy programs and indirect subsidies, are not subject to

parliamentary approval. Therefore, the government believes that the

contested orders does not exceed and does not violate Art. 78 of the

Constitution, because it does not exceed the bounds of the state that it

is intended to implement.

The government also pointed out that

the contested provision did not affect the petitioner’s right to freely

conduct business. Through this order, the government decide to motivate

sugar producers – both so-called “strategic” and other producers – in a

certain manner to reduce production by setting domestic and export sugar

quotas, while at the same time offering them various compensatory forms

of state assistance (providing expert consultation, sugar market

research, ensuring export opportunities, assistance in securing sales of

sugar). The provision of § 10 of the cited government order must be

interpreted in the context of the entire legal regulation. In

particular, § 11 clearly indicates that the observance of quotas is

based on voluntary compliance and advantageousness for the producer,

who, based on the desired conduct, is entitled to these forms of

compensatory state assistance. No penalties are imposed on producers who

exceed the quotas, but they are not entitled to the exercise of

measures pursuant to §§ 6-8. Thus, the government order does not impose

any obligations other than those that are set forth in the statute, and

thus the right to conduct business under Art. 26 par. 1 of the Charter

is not limited. On the contrary, the government itself commits to take

certain positive measures to the benefit of producers that behave in the

desired manner, which clearly arises from § 1 of the government order,

under which the order regulates state participation in the creation of

conditions for ensuring and maintaining the production of sugar beets

and sugar and stabilization of the sugar market in the CR. Thus, access

to the market is not closed or limited.

The government also

stated that claims of violation of the guarantee of equal rights and

discrimination of non-“strategic” sugar producers will not stand,

because, on the contrary, issuing the government order took into account

actually existing differences in production capacity between individual

subjects. The institution of strategic producers was created in view of

the expected production during the business year, and certainly was not

implemented randomly or based on administrative discretion, but on the

basis of clearly established criteria – the objective characteristics of

individual producers, arising from the production volume of individual

sugar refineries in the last five years, i.e. taking into account their

long-term activities. Not taking these objective differences into

account would have been discrimination, because it would disadvantage

large producers who invested considerable amounts into their long-term

development. In view of the sugar market’s limited capacity the

government attempted and is attempting to stabilize the situation, and

therefore it is forced to limit, in a certain manner, the scope of its

assistance to sugar beet growers or sugar producers. However, no

limitations are set on the opportunity to produce sugar and sell it on

the market.

On the basis of the foregoing facts, the government

stated its belief that the content of the government order is balanced

so as not to have a discriminatory effect on any of the sugar beet

growers or sugar producers and it is certainly not aimed at limiting

their number; therefore, it proposed that the petition be denied.

In

its brief, which was requested before the proceeding on the

constitutional complaint was suspended, the Ministry of Agriculture

stated that the contested government order is not intended to

approximate European Community law, although it adopts certain

principles that are applied in EU member states. In particular, it is

based on the following principles:

-    transposition of the

commitments in Art. 69 and 70 of the European Association Agreement

through Act no. 252/1997 Coll., on Agriculture,

-    fulfilling commitments vis-à-vis the EU and the WTO – introducing sugar “order,”

-  

 the temporary validity of the government order (the limitation is only

for the business year 2000/2001, i.e. from 1 August 2000 to 30

September 2001),

-    setting individual quotas for the strategic

sugar producers (11 sugar refineries associated in 8 entities, which

have produced and brought to market on average at least 10,000 tons of

sugar per year during the last five years),

-    setting a

minimum price for sugar beets, a minimum price for sugar, and a maximum

price for sugar beets based on § 1 par. 6 of Act no. 526/1990 Coll., on

Prices, in order to address an extraordinary market situation,

-  

 the openness of the entire system for other sugar producers, based on

an application for allocation of a special individual quota,

-  

 self-financing of export support with the assistance of individual

producer’s own financial reserves in the amount of CZK 1,950 per ton of

sugar produced,

-    compensatory forms of state assistance

(providing expert consultancy, sugar market research, ensuring export

opportunities, assistance in securing sales of sugar).

The

ministry also stated that in this order the government only expresses

support with maintaining an achieved stability in the sugar and sugar

beet sector, primarily for sugar beet growers and sugar producers. The

draft government order was submitted after several months of expert

discussion, by a deadline that corresponded to the beginning of

agro-technical deadlines for planting sugar beets. Failure to address

the situation with the sugar and sugar beet commodities could lead to

overproduction and the collapse of the whole sugar market and failure to

fulfill commitments that the CR government made to the EU. The

government order is another systematic step to addressing the critical

situation in the sugar market in the CR, and it follows on from the

protective measures adopted in August 1999 for sugar imports into the CR

(Government Order no. 212/1999 Coll., which sets protective measures

for the import of sugar).

In the ministry’s opinion, organizing

the sugar market by introducing production quotas has been a standard

rule in the EU for over 30 years. The order pursued the society-wide

interest in stabilizing sugar beet cultivation and sugar production in

the CR, without giving preferences to individuals or legal entities,

because the imposition of quotas affected all existing producers without

exception. However, the order does not forbid anyone from producing

sugar.

In its response to the government’s brief, the petition

stated that it maintains its opinion that, in the decree, the government

in many respects exceeded the bounds of § 2 par. 1 of Act no. 252/1997

Coll. In its opinion, the government could independently adopt orders

only in the area of “creating conditions for price stabilization of the

agricultural commodities market,” but designating so-called “strategic”

and “non-strategic” sugar producers definitely cannot be considered to

be such creation of conditions. Accepting such a loose interpretation of

what “creating conditions for price stabilization” means would mean

that everything in § 2 of the Act on Agriculture would be completely

unnecessary. In the petitioner’s opinion sugar production is not

agriculture, given that the Act itself distinguishes the term

“agriculture” and the term “food,” and § 2 makes it quite clear that it

is aimed only at support of agriculture.

The petitioner also

stated that the government’s brief does not at all indicate how the

government motivates other producers (i.e. “non-strategic” producers) to

decrease sugar production. Unlike the government, the petitioner is

convinced that § 10 of the order does have a penalty, in conjunction

with § 11, because if someone produces even one single kilogram of sugar

over the assigned quota, then, as a penalty, state assistance provided

under § 6-8 of the government order is withdrawn. The petitioner

likewise does not share the opinion, contained in the government’s

brief, that the order does not impose obligations other than those that

are imposed in the statute. In this regard it pointed to the obligation

to provide extensive information each month to the Ministry of

Agriculture (§ 9) and the obligation to establish a financial reserve

and use it (§ 4). It also stated that the government actually

acknowledges that, through the selection it conducted, it advantaged

large producers who invested considerable funds into their development.

However, the petitioner added that the information which the government

took as its starting point was completely inadequate, because, for

example, in the petitioner’s case, no research regarding intentions and

investments was conducted However, as soon as the petitioner applied for

a special individual quota, it had to endure an inspection of the sugar

refinery by the commission, answer a great number of questions fro the

commission, and submit a quantity of data ordered by the Ministry of

Agriculture, although the government order says nothing about such

procedures.

Last but not least, the petitioner added that the

milk quotas announced in the interim only confirm the gravity of the

problem and point to a dangerous trend in limiting the right to freely

conduct business.

At the hearing on 14 February 2001, the

government’s attorney presented the procedural statement that had been

delivered to the Constitutional Court the day before the hearing.

Primarily, he objected that the constitutional complaint should have

been denied on formal grounds as inadmissible under § 75 par. 1 of Act

no. 182/1993 Coll., on the Constitutional Court, because the petitioner

had not exhausted the procedural means for protection of its rights. The

government considers the contested action by the Ministry of

Agriculture to be an administrative decision that could and should have

been contested through an appeal on a point of law under § 61 of the

Administrative Procedure Code, or an administrative complaint. If the

petitioner did not do so, the judge rapporteur should have denied the

complaint. If he did not do so, the plenum should have made that

decision. As regards the matter itself, the government’s attorney stated

that this is a fundamental decision. In its accession agreement, the

Czech Republic committed itself to creating equal conditions for all

investors from the fifteen EU member states, and is therefore also

obligated to comply with commitments arising from the Common

Agricultural Policy. In EU countries commitments arising from Art. 39 of

the Treaty on the European Communities are secured primarily by sugar

and milk quotas. Therefore, he disagreed with the petitioner arguments

that the quotas interfere in property rights, and referred to the case

law of the European Court of Human Rights on these issues. He also

stated that the government is convinced that Act no. 252/1997 Coll., on

Agriculture, can be interpreted in a manner that shows that the

government acted within the bounds of the Act when issuing Order no.

51/2000 Coll..

The Minister of Agriculture stated at the hearing

that, at the time when the government was deciding through its order, it

could take into account only the sugar refineries that were producing

white sugar at that time, and the previous five years of production had

been taken as a measure for allocating quotas. EU states have acted

similarly in the past. The petitioner is one of the companies that

wanted to enter the system after it had already been created, and

therefore he believes that the adopted system for the sugar sector is

fair. If the Constitutional Court nevertheless decided to annul the

contested order, it would be desirable in terms of market stability for

it to do so with effect as of 1 October 2001, because by then a new

government order will have been prepared, tied to the new Act on the

State Agriculture Intervention Fund.

The petitioner’s attorney

responded to the government’s abovementioned supplemental statement by

casting doubt on the opinion that a two-line letter from the Minister of

Agriculture, which has none of the formal characteristics of an

administrative act, could be considered an administrative decision that

would first have to be contested in the manner described by the

government. He emphasized that the purpose of their petition is not a

battle against quotas as such, but an attempt to have all producers have

equal access to the market, under conditions set forth in advance.

However, as the appendix to the contested directed named 8 producers and

their quotas, then that part is not a normative act, but an individual

act, as it is not intended for an uncertain number of subjects, and in

that regard is therefore unconstitutional. Only a very small part of the

quota was left for unnamed subjects, and no conditions at all were set

for its allocation. Therefore, he maintained the petition in full, as

submitted.

The Constitutional Court deliberated on the petition as follows:

As

regards the supplementally raised objection that the constitutional

complaint and the petition submitted with it had to be denied on grounds

o inadmissibility, i.e. due to failure to exhaust administrative means

of recourse, we must state the following.

In the judgment

promulgated as no. 243/1999 Coll., the Constitutional Court stated the

principle that the Constitutional Court cannot accept an objection that

the complainant did not exhaust all procedural means of recourse that

the law provides for protection of its rights, if the complaint

concerned is one whose significance substantially exceeds the

complainant’s own interests. There is no doubt that this is so in the

present case, which is also attested to by the brief from the party to

the proceeding on the seriousness of the issue. Thus, it is evident that

the conditions in § 75 par. 2 let. a) of Act no. 182/1993 Coll., on the

Constitutional Court, have been met. Therefore, the Constitutional

Court merely states that it does not share the opinion of the party to

the proceeding on the possibility of a remedy in administrative

proceedings, or the possibility of an administrative complaint in the

present matter, without considering necessary to further explain and

justify its opinion, because it is evident that it would be authorized

to handle the matter, under the cited provision of the Act on the

Constitutional Court, even in a situation if procedural remedies really

had not been exhausted.

As regards the merits of the matter, the Constitutional Court deliberated as follows.

First,

it stated that the contested government order is derived from and

intended to implement § 2 par. 1 of Act no. 252/1997 Coll., on

Agriculture. That Act has as its aim, under § 1:

a)    to create

conditions to ensure the ability of Czech agriculture to ensure the

basic sustenance of the population, food security, and the necessary

non-food raw materials;

b)    to create the prerequisites for

support of non-production functions of agriculture that contribute to

protection of elements of the environment such as the ground, water, and

air and to preserve settled countryside and landscape;

c)  

 establish an obligation to compensate detriment suffered by persons

injured by the imposed economic regimes arising from statutory

limitations.

It is provided in § 2 par. 1 that the state

contributes to the creation of conditions for maintaining the production

potential of agriculture through indirect support, direct support

through subsidy programs, and creating conditions for price

stabilization of the market in agricultural commodities, in particular

with the help of warehouse coupons, futures contracts, certification of

public wheat warehouses and support for the functioning of commodities

exchanges. The following par. 2 states that subsidy programs and

indirect support are approved by the Chamber of Deputies together with

the Act on the State Budget.

Under § 2 par. 3 state subsidy

programs also support non-production agricultural functions consisting

of protection of elements of the environment such as the ground, water,

and air, and activities involved in maintaining the countryside. Under

par. 4 the state creates conditions for the support of less favorable

areas and adopts assistance programs for that purpose. Par. 5 provides

that the government shall establish, by decree, subsidy programs to

support the cited measures and criteria for evaluating them.

Government

Order no. 51/2000 Coll. provides in § 1 that its subject matter is

regulation of state participation in the creation of conditions for

ensuring and maintaining production of sugar beets and sugar and

stabilization of the sugar market in the CR. Particularly important

among the other provisions is § 10, which provides that sugar produced

over the individual or special individual quotas may not be brought to

the market in the CR or to the market in countries where import of sugar

from the CR is not permitted or is limited by an international treaty

by which the CR is bound. Appendix 1 to the decree indirectly sets

individual quotas for “strategic sugar producers” (a total of 8

companies).

The Constitutional Court also stated that it has no

reason to deviate from its previous relevant case law in evaluating the

petition.

This case law is primarily judgment Pl. US 17/95,

promulgated as no. 271/1995 Coll., in which the Constitutional Court

stated that, under Art. 78 of the Constitution, the government is

authorized to issue orders to implement statute, while remaining within

the bounds thereof, and thus does not need express delegation in a

statute; however, the order may not exceed the statutory bounds – i.e.

it cannot be praeter legem. In other words, it must remain within the

bounds of the statute, which are either defined expressly or follow from

the statute’s meaning and purpose. The Constitutional Court also stated

that it can be said generally that the executive branch never has

completely free discretion, because it is always limited by the

Constitution, international treaties, and general legal principles.

In

judgment Pl. US 32/95, promulgated as no. 112/1996 Coll., the

Constitutional Court stated that the rights set forth in Part IV. of the

Charter, entitled “Economic, Social and cultural Rights,” are made

concrete only by a relevant statute, and can be exercised on the basis

of such a statutes and within its bounds. The Constitutional Court also

stated that these rights therefore are not directly applicable (unlike

rights arising directly from human existence, such as the right to life,

inviolability of the person, personal freedoms, etc.), but require the

conjunction of other factors in order to be exercised. Thus, according

to the judgment, these rights can be exercised under Art. 41 par. 1 of

the Charter only within the bounds of statutes that implement these

provisions. The Constitutional Court ruled according to the same

principles in judgment Pl. US 35/95, promulgated as no. 206/1996 Coll.,

when it stated that the legislature cannot rid itself of the obligation

of the statutory definition of the content, scope and manner of

providing a fundamental right (in that case the right to payment-free

health care) by authorizing an executive body to issue norms of lesser

legal force than a statute that would determine, instead of a statute,

the bounds of these fundamental rights or freedoms.

From a

constitutional viewpoint, bodies with legislative powers are authorized

and obligated to issue legal regulations in the form that is prescribed

for them. Under Art. 78 of the Constitution, the form prescribed for the

government is an order. Under that provision the government may issue

orders in order to implement statues, and while remaining within the

bounds thereof. Thus, the existence of a statute is sufficient, but

within it there must be room for the government’s legislative activity.

The fact that in some cases the legislature expressly authorizes the

government to issue orders changes nothing about this. The government

must then act “secundum et intra legem,” not outside the statute

(praeter legem). Simply stated, if, according to a statute, X is to

exist, the government may specify that X1, X2, or X3 is to exist, not

that Y is to exist.

From a theoretical viewpoint, an order is

subject to the requirement that it be general and affect an uncertain

group of subjects, because the Constitution authorizes issuing legal

regulations, not issuing an individual administrative act /a bill of

attainder. Protection from excesses by the executive branch is provided

by the obstacle of matters reserved for regulation only by statute

(“statutory reservation”).

To summarize, the constitutional definition of derived norm creation by the executive branch rests on the following principles.

-    an order must be issued by an authorized entity,

-    an order may not interfere in matters reserved to statutes (i.e. it cannot establish primary rights and obligations),

-  

 legislative intent for regulation beyond the statutory standard must

be evident (i.e. discretion must be provided for the sphere in which the

order functions).

Under Art. 26 par. 1 of the Charter, everybody

has the right to engage in commercial and economic activity, and par. 2

states that the law may set conditions and limitations upon the conduct

of certain professions or activities. Thus, it is evident that this is a

fundamental right which does not apply directly within the meaning of

the abovementioned judgments, and can be exercised only within the

bounds of statutes; on the other hand, however, any limits for such

conduct of business or activities are subject to statutory reservation.

There

is no doubt that the order in question contains a number of provisions

that interfere in the sphere of free conduct of business. If the

government derives its authorization for this from Act no. 252/1997

Coll., on Agriculturally, and specifically cites the disputed order as

an implementing regulation for § 2 par. 1 of that Act, then although the

Constitutional Court respects the already cited principle of a looser

relationship between a statute and an order, as it considers the

priority for an order to be constitutional that it be consistent with

the meaning and purpose of a statute as a whole, it is forced to state

that neither grammatical, systematic, or logical interpretation, even

with the greatest degree of an expansive approach, indicates that it

would be possible to derive from the cited statutory provision

regulation of production that is tied to agriculture, i.e. to limit the

placement of produced goods on a particular market.

Thus, insofar

as the Constitutional Court, in the abovementioned judgment promulgated

as no. 206/1996 Coll., stated that the legislature cannot delegate to

the executive branch an area of regulation of relationships designated

for statutory regulation, and thereby give up its own legislative

obligation, all the more so the executive branch cannot itself assume

the right to such regulation, with reference to a statute that obviously

has a different purpose and meaning. The cited Act on Agriculture is

aimed quite clearly at the area of primary production, and if it

authorizes the government to issue orders, it is quite evident that

these are regulations aimed at different areas. If the legislature

wished to authorize the executive branch to regulate the conduct of

business through production quotas, it would undoubtedly do so

expressly, as it did in § 2 par. 5, § 3 par. 3 and 4, or in § 5 par. 3.

Thus,

we can summarize that the contested government order violates the

statutory reservation set forth by Art. 26 par. 1 of the Charter, and in

the form of an order limits the free conduct of business in a manner

that the statute does not foresee or generally regulate. In other words,

if the Constitutional Court acted to annul sub-statutory regulations on

the grounds that the bounds created by the legislature for legislative

activity by the executive branch are uncertain, then it must do so all

the more in an area where the statute does not at all foresee any

legislative initiative by the government. This excess is sufficient

grounds for annulling the contested legal regulation without any need to

consider in greater detail the other objections and arguments from the

petitioner and the party to the proceeding.

The Constitutional

Court is, of course, aware that in the interim Act no. 256/2000 Coll.,

on the State Agricultural Intervention Fund and on the Amendment of

Certain Other Acts (the “Act on the State Agricultural Intervention

Fund), has entered into effect; that Act regulates, among other things,

“production quotas,” and, in § 12 par. 3, authorizes the government to

issue orders that establish these quotas and conditions for them.

However, that cannot change anything about the fact that the contested

Government Order no.. 51/2000 Coll. was issued outside the bounds of the

law, as the original Act no. 472/1992 Coll., on the State Fund for

Market Regulation in Agriculture (annulled by the cited Act no. 256/2000

Coll.) did not establish any support for setting production quotas.

For

all the stated reasons, the plenum of the Constitutional Court decided

to annul Government Order no. 51/2000 Coll., due to inconsistency with

Art. 4 par. 1 and 2 and with Art. 26 par. 1 and 2 of the Charter, as

well as with Art. 2 par. 4 of the Constitution of the CR, as of the day

this judgment is promulgated in the Collection of Laws, as it found no

reasons to postpone the executability of its decision.

Instruction: Decisions of the Constitutional Court cannot be appealed (§ 54 par. 2 of the Act on the Constitutional Court).

Brno, 14 February 2001