2006/03/08 - Pl. ÚS 50/04: Sugar Quotas III

08 March 2006

HEADNOTES

It

generally applies that, where Community legislation has left certain

matters in the competence of the Member States (that is, where there are

no explicit Community law rules), or where it has explicitly delegated

the regulation of these matters back to the Member States, it is up to

the Member States to adopt and apply their own legislation.  Still, it

cannot be asserted that Community law in no way operates in such

fields.  On the contrary, even in cases where Members States implement

part of Community policy by means of their own legal instruments, the

Member States‘ discretion is limited by the overarching general

principles of Community law, among which also ranks the protection of

fundamental rights.  As such rules take the form of national law, they

must simultaneously be in conformity with the Czech constitutional

order.

Although

the Constitutional Court’s referential framework has remained, even

since 1 May 2004, the norms of the Czech Republic’s constitutional

order, the Constitutional Court cannot entirely overlook the impact of

Community law on the formation, application, and interpretation of

national law, all the more so in a field of law where the creation,

operation, and aim of its provisions is immediately bound up with

Community law.  In other words, in this field the Constitutional Court

interprets constitutional law taking into account the principles arising

from Community law.

In its judgment No. Pl. US 11/02 (published as No. 198/2003 Sb.), the

Constitutional Court formulated the doctrine of the continuity of its

own case-law, which it deduced from the attributes of the democratic

law-based state.  There is no doubt that, as a result of the Czech

Republic’s accession to the European Community (EC), or European Union

(EU), a fundamental change occurred within the Czech legal order, as at

that moment the Czech Republic took over into its national law the

entire mass of European law.  Without doubt, then, just such a shift

occurred in the legal environment formed by sub-constitutional legal

norms, which necessarily must influence the examination of the entire

existing legal order, constitutional principles and maxims included,

naturally on the condition that the factors which influence the national

legal environment are not, in and of themselves, in conflict with the

principle of the democratic law-based state or that the interpretation

of these factors may not lead to a threat to the democratic law-based

state.  Such a shift would come into conflict with Art. 9 par. 2, or

Art. 9 par. 3 of the Constitution of the Czech Republic.

In the Constitutional Court’s view, the current standard within the

Community for the protection of fundamental rights cannot give rise to

the assumption that this standard for the protection of fundamental

rights, through the assertion of principles arising therefrom, is of a

lower quality than the protection accorded in the Czech Republic, or

that the standard of protection markedly diverges from the standard up

till now provided in the domestic setting by the Constitutional Court.

As far as concerns measures of an economic nature pursuing an aim that

flows directly from the Community policy of the EC, a definite principle

of constitutional self-restraint can be inferred from the case-law of

the European Court of Justice (ECJ).  For that matter, the

Constitutional Court was also aware of this point when it adopted

judgment No. Pl. US 39/01, since it stated in its reasoning that, as

concerns the extent of its review powers, such a conclusion may not be

reached which would afterwards present an obstacle to the Czech

Republic’s membership in the European Union, albeit by its holding it

denied that self-restraint to a certain extent.

The Constitutional Court therefore came to the conclusion that in this

case there are grounds for departing from its judgment in matter No. Pl.

US 39/01.  This modification does not, however, relate to the

substantive assessment itself of the key selected by the Government,

rather to the fact that the Constitutional Court no longer deems itself

to be called upon to subject such a key to abstract constitutional

review in the manner in which it did in its judgment No. Pl. US 39/01. 

Naturally, that does not rule out the possibility that the ordinary

courts address, in specific cases of individual producers, the fairness

of this key, assuming that specific facts will be established on the

basis of which such inequality is alleged.

By its adoption of the contested provisions, § 3 of Regulation No.

548/2005 Sb., which merely paraphrases Art. 1 par. 3 of Commission

Regulation (EC) No. 1609/2005, the Government failed to respect the fact

that, as a result of the Czech Republic’s accession to the EU, a

transfer of powers of national organs to supra-national organs has taken

place on the basis of Art. 10a of the Constitution of the Czech

Republic.  In the moment when the Treaty Establishing the European

Community, as amended by all revisions to it and by the Treaty of

Accession, became binding on the Czech Republic, a transfer was effected

of those powers of national state organs which, according to EC primary

law, are exercised by organs of the EC, upon those organs.

The Czech Republic conferred these powers upon EC organs.  In the

Constitutional Court’s view, this conferral of a part of its powers is

naturally a conditional conferral, as the original bearer of

sovereignty, as well as the powers flowing therefrom, still remains the

Czech Republic, whose sovereignty is still founded upon Art. 1 par. 1 of

the Constitution of the Czech Republic.  In the Constitutional Court’s

view, the conditional nature of the delegation of these powers is

manifested on two planes:  the formal and the substantive plane.  The

first of these planes concerns the power attributes of state sovereignty

itself, the second plane concerns the substantive component of the

exercise of state power.  In other words, the delegation of a part of

the powers of national organs may persist only so long as these powers

are exercised in a manner that is compatible with the preservation of

the foundations of state sovereignty of the Czech Republic, and in a

manner which does not threaten the very essence of the substantive

law-based state.  In such determination the Constitutional Court is

called upon to protect constitutionalism (Art. 83 of the Constitution of

the Czech Republic).  According to Art. 9 par. 2 of the Constitution of

the Czech Republic, the essential attributes of a democratic state

governed by the rule of law, remain beyond the reach of the Constituent

Assembly itself.

Direct applicability in national law and applicational precedence of a

regulation follows from Community law doctrine itself, as it has emerged

from the case-law of the ECJ.  If membership in the EC brings with it a

certain limitation on the powers of the national organs in favor of

Community organs, one of the manifestations of such limitation must

necessarily also be a restriction on Member States‘ freedom to designate

the effect of Community law in their national legal orders.  Art. 10a

of the Constitution of the Czech Republic thus operates in both

directions:  it forms the normative basis for the transfer of powers and

is simultaneously that provision of the Czech Constitution which opens

up the national legal order to the operation of Community law, including

rules relating to its effects within the legal order.

The Constitutional Court is of the view that – as concerns the

operation of Community law in the national law – such approach must be

adopted as would not permanently fix doctrine as to the effects of

Community law in the national legal order.  A different approach would,

after all, not correspond to the fact that the very doctrine of the

effects that Community acts call forth in national law has gone through

and is still undergoing a dynamic development. This conception also best

ensures that which was already mentioned, that is, the conditionality

of the transfer of certain powers.

 


CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Constitutional Court Plenum, composed 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, Eliška Wagnerová and Michaela

Židlická on the petition of the group of Deputies of the Assembly of

Deputies of the Czech Parliament proposing the annulment of §§ 3 and 16

of Government Regulation No. 364/2004 Sb., Laying Down certain

Conditions for the Implementation of Measures of the Common Organization

of the Markets in the Sugar Sector, as well as the petition of the same

petitioners proposing the annulment of § 3 of Government Regulation No.

548/2005 Sb., Laying Down certain Conditions for the Implementation of

Measures of the Common Organization of the Markets in the Sugar Sector,

with the participation of the Government of the Czech Republic as a

party to the proceeding and the Public Defender of Rights as a secondary

party to the proceeding, has decided, as follows:

I.

The proceeding on the petition proposing the annulment of §§ 3 and 16

of Government Regulation No. 364/2004 Sb., Laying Down certain

Conditions for the Implementation of Measures of the Common Organization

of the Markets in the Sugar Sector, is  d i s m i s s e d.

II. § 3 of Government Regulation No. 548/2005 Sb., Laying Down certain

Conditions for the Implementation of Measures of the Common Organization

of the Markets in the Sugar Sector, is a n n u l l e d.

 


REASONING


I.
Resumé of the Petition

A)

    In their original petition, delivered to the Constitutional Court

on 18 October 2004, a group of 35 Deputies of the Assembly of Deputies

of the Czech Parliament sought the annulment of §§ 3 and 16 of

Government Regulation No. 364/2004 Sb., Laying Down certain Conditions

for the Implementation of Measures of the Common Organization of the

Markets in the Sugar Sector.
 

As

the petitioners stated, the market in sugar has for several years been

regulated in the Czech Republic.  The Government attempted to regulate

the production of sugar in its Regulation No. 51/2000 Sb., which was in

force from 14 March 2000 until 12 March 2001 and was annulled by the

Constitutional Court in its judgment No. 96/2001.  After that regulation

had been annulled, the Government issued Government Regulation No.

114/2001 Sb., § 4 par. 3, § 5 par. 3, § 7 and § 13 of which the

Constitutional Court annulled in its judgment No. 499/2002 Sb., the main

ground it gave for its decision to annul being the inequality between

producers, thus also growers dependent upon the producers.  According to

the petitioners, the Constitutional Court stated that the inequality

„came about due to the fact that, on the basis of a measure which was

formally unconstitutional and substantively discriminatory, certain

producers might have increased their production, as they were protected

from competitors who did not have a production quota and, thus, could

not produce without being burdened by a punitive levy.  The Government

had, in a rule that was formally proper, retained into the future the

undesirable state of affairs which was called forth by its earlier

regulation, both formally and substantively unconstitutional.“
     
.

. . .  According to petitioners, the Constitutional Court reached this

conclusion on the basis of its finding that the position of individual

sugar refineries was influenced by the unconstitutional rules contained

in Government Regulation No. 51/2000 Sb. prior to its annulment.
 

On

5 November 2003 the petitioners submitted a petition proposing the

annulment of Government Regulation No. 114/2001 Sb., on the Setting of

Production Quotas for Sugar for the Quota Years 2001/2002 through

2004/2005. . . .

     . . . . with effect from 1 July 2004, the

contested Regulation was repealed by Government Regulation No. 364/2004

Sb., and on 31 July 2004 the petitioners requested a postponement with

hearing the matter so that it might amend its original petition.  The

petitioners were convinced thta the newly adopted Regulation No.

364/2004 Sb. was connected in substance with the already contested

Government Regulation No. 114/2001 Sb., thus they intended to submit a

request to amend their original petition. . . However, by its 14

September 2004 ruling the Constitutional Court dismissed the proceeding

pursuant to § 69 par. 1 of Act No. 182/1993 Sb., as subsequently amended

(hereinafter „Act on the Constitutional Court“).
 

The

petitioners thus expressed their conviction that also the newly adopted

Regulation No. 364/2004 Sb., in particular §§ 3 and 16 thereof, is in

conflict with the constitutional order of the Czech Republic.  According

to the petitioners, both provisions deal with the issue of the

allocation of quotas, while it is evident from the mere text of both

contested provisions that they proceed from the preceding legal

enactment (Government Regulation No. 114/2001 Sb., in the version which

had already been contested in the proceeding which the Constitutional

Court dismissed).  In view thereof the petitioners arguments are

directed against a regulation which is formally no longer in effect and

to which the contested provisions of the new regulation refer.
.  .  .  .

Even despite the above-mentioned Constitutional Court judgment

(published as No. 499/2002 Sb.), the lawmaker did not rectify the

matter, rather by its reference to the quotas determined in accordance

with existing legal enactments retained the unconstitutional state of

affairs in the newly contested regulation.
.  .  .  .
The

Government thus selected, as the reference period for the determination

of the key to the allocation of quotas to individual applicants,

precisely a period in which the unconstitutional Regulation No. 114/2001

Sb. was in effect . . .  Thus, according to the petitioners, instead of

selecting, as the reference period for the determination of the key to

the allocation of quotas to individual applicants, a period in which the

market in sugar had not yet been regulated, the Government, entirely

arbitrarily and in conflict with the position taken by the

Constitutional Court, laid down as the reference period precisely a

period during which an unconstitutional legal regulation was in effect.
.  .  .  .

The assumption, via § 3 of Government Regulation No. 364/2004 Sb.,

contested by the petitioners, of the system of quotas determined in

accordance with the rules contained in Government Regulation No.

114/2001 Sb., resulted in the new regulation also being

unconstitutional.
 

By calling

into doubt the constitutionality and legality of the determination of

individual production quotas, the petitioners thereby call into doubt

also the reserve, to which § 16 of Government Regulation No. 364/2004

Sb. refers. . . .
 

In other

words, the contested provisions, §§ 3 and 16 of Government Regulation

No. 364/2004 Sb., maintain continuity with the preceding, according to

the petitioners unconstitutional and unlawful, rules contained in the

preceding Regulation No. 114/2001 Sb., which was also contested by the

petitioners in the previous proceeding before the Constitutional Court. 

However, the Constitutional Court dismissed that proceeding in view of

the fact that, during the course of the proceeding, the contested

regulation was repealed precisely by Regulation No. 364/2004 Sb.
.  .  .  .

 

B) 

On 3 January 2006, the Constitutional Court received a submission by

which the petitioners reacted to the steps taken by the Government,

which on 21 December 2005 adopted Regulation No. 548/2005 Sb., Laying

Down certain Conditions for the Implementation of Measures of the Common

Organization of the Markets in the Sugar Sector.  With effect from 31

December 2005, this regulation repealed Regulation No. 364/2004 Sb., §§ 3

and 16 of which were contested by the original petition.  In their

submission the petitioners expanded the original petition and expressly

proposed the annulment of § 3 of the new regulation, No. 548/2005 Sb. 

In the reasoning of their petition they stated that they consider the

Government to have acted be opportunistic as part of an already repeated

attempt to evade a hearing on the matter before the Constitutional

Court. . . .
 

The

petitioners believe that to dismiss the petition and thereby de facto

approve the Government’s manner of proceeding would be a purely

formalistic approach, for which the Constitutional Court has always

criticized the ordinary courts.  Accordingly, they submitted . . . an

amendment to the original petition and proposed that the Constitutional

Court annulled § 3 of the new regulation, No. 548/2005 Sb., as of the

judgment is published in the Collection of Laws.
 


II.

Resumé of the Essential Parts of the Views of Parties, Secondary Parties, and Additional Evidence
 

A)

In its 24 November 2004 statement of views on the original petition

proposing the annulment of §§ 3 and 16 of Regulation No. 364/2004 Sb.,

the Government of the Czech Republic submitted the following arguments

to the Constituitonal Court.
According to the Government, following

the Czech Republic’s accession to the EU the Czech sugar-making

industry, as well as the sector of the sugar beet growers, is governed

in full by the rules of the common organization of the market in sugar,

which form a part of the EU Common Agricultural Policy. . . . Within the

framework of the Czech Republic’s preparation to join the Common

Agricultural Policy of the EU in the sugar sector of the common

organization of the market, in the Government’s view it was necessary to

proceed to the adoption of legal instruments which would make it

possible, at the moment of the Czech Republic’s accession to the EU, to

provide for administrative measures in the sugar sector of the common

organization of the market, which the State Agricultural Intervention

Fund would implement on the basis of Act No. 256/2000 Sb., on the State

Agricultural Intervention Fund . . .
.  .  .  .
The basic legal

instrument for introducing the currently valid system of production

quotas into the legal order of the Czech Republic was Act No. 256/2000

Sb., which empowers the Government to lay down by regulation the

production quotas and the conditions for the system of production

quotas. . . .
.  .  .  .
In concluding its statement, the

Government observed that it considered the petition unfounded, in view

of the Czech Republic’s obligation toward the EU to construct,

consistent with the objectives of the rules of the EU Common Agriculture

Policy, a functioning and effective system of production quotas.  As

the Government stated, in case the contested provisions of the

regulation were to be annulled, the Czech Republic would become a

country which, in the framework of the market organization have not

allocated production quotas to individual sugar producers, which within

the framework of the EU would be quite unusual, and according to the

Government such a circumstance would bring upon the Czech Republic

unquantifiable and inestimable consequences, with impact on all growers

of sugar beets and producers of sugar.  The Government thus proposed

that the Constitutional Court reject the petition on the merits.
.  .  .  .

D)  Further on 2 January 2006, the Constitutional Court requested from

the State Agricultural Intervention Fund information concerning whether

Commission Regulation (EC) No. 1609/2005 had been applied within the

Czech Republic.  The Fund’s information made clear that the Fund had met

its obligations arising from Art. 1 par. 3 of the Regulation and, prior

to 1 November 2005, laid down a reduction applicable to each producer

holding a Quota A or Quota B.

E)  On 4 January 2006 the

Constitutional Court received the Government’s reaction to the

petitioners’ submission requesting permission to amend the original

petition so as to be a petition proposing the annulment of § 3 of

Regulation 548/2005 Sb.  The Government gave its views that the results

that the proceeding has so far yielded cannot serve as the foundation of

an amended petition, as the two regulations differ (§ 3 of Regulation

No. 548/2005 Sb is formulated differently from the original § 3 of

Regulation No. 364/2004 Sb.).  The Government denies the assertion that

it has repeatedly been evading a hearing and judgment by the

Constitutional Court, as the legislative process proceeded independently

of the procedure before the Constitutional Court; the request to

abbreviate the legislative process for the draft regulation was

circulated already on 1 November 2005, that is, already before the

Government was asked whether it agrees to dispense with an oral

hearing.  A new regulation was adopted because it was necessary to

accommodate the national norms to Commission Regulation (EC) No.

1609/2005 and also to prepare the national norms for a new sugar regime

which will be adopted on the Community plane.  In view of the extent of

the changes the Government opted for the route of issuing a new

enactment rather than amending the existing one.  The Government thus

proposed that the Constitutional Court not permit the petition to be

amended and that it dismiss the proceeding.

F)  On 12 January

2006 the Government delivered to the Constitutional Court documents

relation to the process of adopting Regulation No. 548/2005 Sb. . . .
Further

the Government informed the Constitutional Court that, by withholding

its consent to dispensing with the oral hearing, it was exercising its

right, as it attached extraordinary importance to the proceeding.  After

all the legislative process was still under way at that point in time

and it was not clear either that the regulation would be adopted or when

it would come into effect.  It was for this reason that the Government

apprised the Constitutional Court of the facts only in the moment when

the regulation was published in the Collection of Laws.
.  .  .  .
 


III.

The Oral Proceeding
 

At

the 8 March 2006 proceeding, the petitioners’ legal representative

referred to the content of all petitions and summarized the major

arguments.  The petitioners do not seek the abolition of regulation as

such, merely that the manner in which sugar is regulated be modified. 

In that regard, what is essential is the choice of the reference period

for designating individual quotas, which in the case of all earlier

regulations had always been a period which the Constitutional Court in

its previous judgments determined to be unconstitutional.  The choice of

the reference period in the key was arbitrary, as follows even from a

comparative survey that a longer period could have been selected.  While

the petitioners’ legal representative acknowledged that absolute

equality between producers was unobtainable, still in the effort to

approach, to the greatest extent possible, a situation of equal status

between producers, another manner for allocating quotas could have been

chosen.
.  .  .  .
The Government’s representative also referred

to the Government’s pleadings in which it clearly laid down the reasons

it considered as fair the chosen means for allocation.  In its view

various methods for calculating individual quotas had been selected in

the past, but in all cases it had been called into doubt; and it can be

expected that, even were the Government to select another key in the

future, it would be contested as well.  In the view of the Government’s

representative, an absolutely fair method for calculation cannot be

found, and if one producer should happen to be disadvantaged from this,

it cannot be condemned as creating an unequal status of all producers. 

Accordingly, the Government adheres to its view that the submitted

petition is unfounded.
.  .  .  .
 


IV.
 

Standing of the Petitioner and Admissibility of the Petition
 

The

Constitutional Court first of all examined whether the conditions for

standing of the petition are met, whether the petition is admissible,

and whether there are grounds for dismissing the proceeding.  It

declared that, in conformity with § 64 par. 2 lit. b) of the Act on the

Constitutional Court, the petition was submitted by an authorized

subject, namely a group of 35 Deputies of the Assembly of Deputies of

the Czech Parliament.
 

In

connection with assessing the petition’s admissibility and the

conditions for dismissing the proceeding, the Constitutional Court was

confronted with a situation in which, during the course of the

proceeding on the original petition, the Government repealed the

contested legal enactment and adopted a new one, to which the petitioner

reacted by requesting permission to amend the original petition.  Then,

after it had become acquainted with the arguments of the parties and

the secondary party to the proceeding, in its 14 February 2006 ruling,

the Constitutional Court decided, in relation to the request to amend

the petition, that it would permit the petition to be amended.
 

The

Constitutional Court has already in the past, in its proceeding No. Pl.

US 8/02, been faced with a similar situation where, during the course

of the proceeding, the Ministry of Finance repealed the the contested

act on the regulation of rents and adopted a new one, of the same

content; also in the proceeding No. Pl. US 49/03, where, as well during

the course of the proceeding before the Constitutional Court, the

Representative Body of the Municipality, Jindřichovice pod Smrkem,

annuled the contested generally binding ordinance and adopted a new

ordinance of identical content.  In both those case the Constitutional

Court permitted the petition to be amended.
 

In

the case now being heard before the Constitutional Court, it found

grounds for proceeding in the same manner since, in the course of the

proceeding on the original petition, the Government formally repealed

the contested legal enactment and adopted a new one, substantively

similar to the preceding one.  In addition, the Government did so only

after it had refused its consent to dispense with an oral proceeding,

moreover just before the date set for the oral proceeding.  At the time

when the draft regulation was already prepared, the Government did not

apprise the Constitutional Court of that fact, even though it must have

been aware of the fact that regulation’s adoption would have

considerable impact on the proceeding before the Constitutional Court. 

Then, several days before the oral proceeding, the Government’s

representative merely informed the Constitutional Court of the adoption

of the new regulation, at the same time indicating that it did not plan

to take part in the oral hearing, as it anticipated the proceeding would

be dismissed.
 

Should the

Constitutional Court accept the Government’s approach and dismiss the

proceeding, as the Government presupposed, that would represent, in the

given situation, the repudiation of the aim and purpose of the institute

of abstract norm control.  By resort to the same approach as the

Government adopted in this case, the Constitutional Court could, at any

time in the future, be debarred from reviewing contested legal

enactments of any sort whatsoever.  In other words, the dismissal of the

proceeding would represent an intolerable precedent for future action

by state bodies.  In this way the function of a specialized and

concentrated system of abstract norm control, as envisaged by the

Constituent Assembly, would be directly thwarted.  The overall

ramifications of such an approach would be to enfeeble the protection of

constitutionalism in the Czech Republic, thus also the principle of the

substantive law-based state.
 

In

the Constitutional Court’s view, the substantive identity of § 3 of

Regulation No. 364/2004 Sb. and § 3 of Regulation No. 548/2004 Sb. is

evident from the actual issue on the merits that is the subject of

constitutional review, namely the constitutional conformity of the

prescribed manner for the calculation of individual production quotas. 

Although one can concur with the Government that the wording of both

provisions differs, as regards their content, implicit within the terms

of both provisions is the retention of the original key for the

calculation of individual production quotas, which was the main subject

of constitutional review, both in the original and the amended

petition.  Therefore, the outcome of the proceeding up till now relating

to the review of §§ 3 and 16 of Regulation No. 364/2004 Sb. can, in

this respect, serve also for the proceeding on the amended petition

proposing the annulment of § 3 of Regulation No. 548/2004 Sb.
 

In

view of these facts, the Constitutional Court has, pursuant to § 63 of

Act No. 182/1993 Sb., on the Constitutional Court, as subsequently

amended, in conjunction with § 95 par. 1 of the Civil Procedure Code,

granted the request to amend the petition.
 

As

regards the petition proposing the annulment of § 3 and § 16 of

Regulation No. 364/2004 Sb., the Constitutional Court has, pursuant to §

67 par. 1 of the Act on the Constitutional Court, dismissed the

proceeding and carried on with the proceeding in relation to the

petition to annul § 3 of Regulation No. 548/2005 Sb.
 

Since

the petition proposing the annulment of § 3 of Regulation No. 548/2005

Sb. was submitted to the Constitutional Court after Regulation No.

548/2005 Sb. had been published in the Collection of Laws, it is, thus,

an admissible petition (§ 66 of the Act on the Constitutional Court a

contrario).
 


V.
 

The Wording of the Contested Provision
The

provision, contested in the original petition, of Government Regulation

No. 364/2004 Sb., Laying Down certain Conditions for the Implementation

of Measures of the Common Organization of the Markets in the Sugar

Sector, reads as follows:

  „§ 3
  Quotas
  (1) The

production quota for sugar 3) assigned to a producer of sugar

(hereinafter ‚quota holder‘) by the State Agricultural Intervention Fund

(hereinafter ‚Fund‘) from 1 September 2003 subdivided among the sugar

refineries operated by a quota holder, or a production quota for sugar

3) by which the Fund has reduced a quota holder’s quota, in accordance

with existing legal enactments 4) shall be considered as the total of

Quota A 5) and Quota B 5) in accordance with European Community

enactments 1).
(2) Quota A 5) of a quota holder amounts to 97 % of

the quota assigned by the Fund to the quota holder in accordance with

existing legal enactments 4).  Quota B 5) of a quota holder amounts to 3

% of the quota assigned by the Fund to the quota holder in accordance

with existing legal enactments 4).
(3) Within 30 days of the day this

Regulation comes into effect, the Fund shall designate for the quota

holders under paras. 1 and 2, the quantity of Quota A 5) and the

quantity of Quota B 5) for the period as laid down in European Community

measures 6), subdivided according to the quota holders‘ individual

sugar refineries.“

1) Council Regulation (EC) No. 1260/2001 of 19

June 2001 on the common organisation of the markets in the sugar

sector, as amended by Commission Regulation (EC) No 680/2002 of 19 April

2002, nařízení Komise (ES) č. 2196/2003 of 16 December 2003, Commission

Regulation (EC) No. 39/2004 of 9 January 2004 and the Act concerning

the conditions of accession of the Czech Republic, the Republic of

Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of

Lithuania, the Republic of Hungary, the Republic of Malta, the Republic

of Poland, the Republic of Slovenia and the Slovak Republic and the

adjustments to the Treaties on which the European Union is founded.
.  .  .  .
3)

§ 2 lit. d) of Act No. 256/2000 Sb., on the State Agricultural

Intervention Fund and on Changes to Certain other Acts (the Act on the

State Agricultural Intervention Fund), as amended by Act No. 128/2003

Sb.
4) § 5 and foll. of Government Regulation No. 114/2001 Sb., on

the Setting of Production Quotas for Sugar for the Quota Years 2001/2002

through 2004/2005, as amended by Government Regulation No. 296/2002

Sb., Government Reglation No. 15/2003 Sb., Government Regulation No..

97/2003 Sb., Government Regulation No. 319/2003 Sb., Government

Regulation No. 160/2004 Sb. and judgment of the Constitutional Court

announced as No. 499/2002 Sb.
5) Art. 11 of Council Regulatin (EC) No. 1260/2001.
6)Art. 10 par. 1 of Council Regulation (EC) No. 1260/2001.“

The

new provision, adopted by the Government and contested by the

petitioner, of Regulation No. 548/2005 Sb., Laying Down certain

Conditions for the Implementation of Measures of the Common Organization

of the Markets in the Sugar Sector, reads as follows:  
㤠3
Production Quotas

A sugar producer who is the holder of an individual production quota of

sugar A (hereinafter „Quota A“) and the individual production quota of

Sugar B (hereinafter „Quota B“) in accordance with existing law 4)

(hereinafter „quota holder“) is, for the economic year 2005/2006 a

holder of Quota A and Quota B as reduced in accordance with European

Community enactments 5) on the quantity of sugar which represents this

quota holder’s share in the overall reduction in the guaranteed

quantities within the framework of Quotas A and B allotted to the Czech

Republic. 5)
4) § 3 of Regulation No. 364/2004 Sb., Laying Down

certain Conditions for the Implementation of Measures of the Common

Organization of the Markets in the Sugar Sector.
5) Art. 1 of Commission Regulation (EC) No. 1609/2005.“

It

is evident from the wording of the contested provision that both the

rule contained in § 3 of Regulation No. 364/2004 Sb., and the rule

contained in § 3 of Regulation No. 548/2005 Sb. maintains in effect the

pre-existing legal rules, that is, they proceed on the basis of the key

for the allocation of individual production quotas which was laid down

in the preceeding Regulation No. 114/2001 Sb. and, thus, applied to

individual applicants in the appropriate proceedings.  Therefore, it is

evident that, regardless the form which a given legal rule takes, its

possible constitutional infirmity springs from the preceding rule, as

the petitioners themselves otherwise asserted in their petition (see

below).  Accordingly, the Constitutional Court focused its attention

first of all on the adjudication of the issue whether the key laid down

by the Government for the allocation of individual production quotas is

in conformity with the constitutional order of the Czech Republic
 


VI.
 

Actual Review


 

A)  What follows from the wording of the contested provisions is merely

the fact that the production quota for sugar, laid down for individual

producers by decision of the Fund pursuant to Regulation No. 114/2001

Sb., is considered to be preserved unaffected even now, that is,

following the Czech Republic’s accession to the EC, and that it is

considered as the sum of Quota A and Quota B, pursuant to EC Regulation

No. 1260/2001 (§ 3 of Regulation No. 364/2004 Sb.), or that, in

consequence of the reduction, pursuant to Commission Regulation (EC) No.

1609/2005, of the national quota, as subdivided into Quota A and Quota

B, the production quota of individual producers is reduced

proportionately (§ 3 of Regulation No. 548/2005 Sb.).
 

In

this connection the Constitutional Court considers as essential the

fact that the Government has already annulled, in its Regulation No.

364/2004 Sb., its previous regulation, which had laid down the original

key for the allocation of individual production quotas.  Although, in

the contested provision, the Government explicitly presumes that the

decisions adopted on the basis of the previous legal rule remain

unaffected, at the same time it annulled the normative foundation for

those decisions.  The Government repeatedly (in adopting Regulation No.

364/2004 Sb. and Regulation No. 548/2005 Sb.) elected such an approach,

even while being aware of the fact that the key for the allocation of

individual production quotas is under adjudication in a proceeding

before the Constitutional Court.  In consequence of the annulment of

Regulation No. 114/2001 Sb., the Constitutional Court had already once

in the past been precluded from the constitutional review of the key for

the original allocation of individual production quotas.  In other

words, although the Government formally repealed, in its Regulation No.

364/2004 Sb., the previous rule for the allocation of individual

production quotas, via § 3 of Regulation No. 364/2004 Sb. and, following

its repeal, § 3 of Regulation No. 548/2005 Sb., the results of that

allocation remain unaffected.
 

For

this reason, the Constitutional Court focused its attention on the

review of the key which the Government had prescribed for the allocation

of quotas already in its Regulation No. 97/2003 Sb, which amended

Regulation No. 114/2001 Sb., as this key is directly tied to both § 3 of

Regulation No. 364/2004 Sb. and § 3 of Regulation No. 548/2005 Sb.,

albeit the very provision defining the key for the calculation of quotas

had already in the past been formally repealed by the Government.
 

The

legal rules governing the allocation of production quotas for sugar are

contained in a field of law in which the national rules are tied up

with the rules contained in the acquis communautaire.  In other words,

whereas the aims and objective of these rules, which form a part of the

broader field of the common organization of the market in agricultural

commodities, that is, are a component of the instruments of the Common

Agricultural Policy, are contained in the norms of European law, they

left to the Member States the definition and selection of the

corresponding means by which those aims are to be achieved.  Thus, the

contested legal rules relating to the setting of the key for the

allocation of quotas are, on the one hand, within the domain of national

law, on the other hand they are directly tied to the norms of European

law.  The Constitutional Court was, thus, for the first time faced with

the question of the degree to which it is even authorized to adjudge the

constitutional conformity of such legal norms as are tied up with

Community law.
 

The

Constitutional Court is not competent to assess the validity of

Community law norms.  Such questions fall within the exclusive

competence of the European Court of Justice.  In terms of Community law,

as it has been expounded by the European Court of Justice (hereinafter

„ECJ“), Community law norms enjoy applicational precedence over the

legal order of Member States of the EC.  According to the case-law of

the ECJ, where a matter is regulated solely by EU law, it takes

precedence and cannot be contested by means of referential criteria laid

down by national law, not even on the constitutional level.
 

Without

the Constitutional Court being obliged to gives it view on this ECJ

doctrine, it cannot overlook the following circumstances.  There are

additional circumstances and reasons which must be considered when

assessing this issue.  First and foremost, the Constitutional Court

cannot disregard the fact that several high courts of older Member

States, including founding members, such as Italy (Frontini v. Ministero

delle Finanze, Constitutional Court, Case No. 183/73, 27 December 1973;

Fragd v. Amministrazione delle Finanze dello Stato, Constitutional

Court, Case No. 232/1989, 21 April 1989) and Germany (Wünsche

Handelsgesellschaft (Solange II), Federal Constitutional Court, Case No.

2 BvR 197/83, 22 October 1986; Maastricht Treaty 1992 Constitutionality

Case, Federal Constitutional Court, Case Nos 2 BvR 2134 and 2159/92, 12

October 1993), and later acceding Member States such as Ireland

(Society for the Protection of Unborn Children (Ireland) Ltd. v. Grogan ,

Supreme Court, 19 December 1989, and Attorney General v. X, 5 March

1992) and Denmark (Carlsen and Others v. Rasmussen, Supreme Court, Case

No. I-361/1997, 6 April 1998), have never entirely acquiesced in the

doctrine of the absolute precedence of Community law over the entirety

of constitutional law; first and foremost, they retained a certain

reserve to interpret principles such as the democratic law-based state

and the protection of fundamental rights.
 

The

Constitutional Court is aware of the fact that on these issues rests

the foundation of constitutional exegesis for the entire Community and

that these issues have certain implications not just in the legal

sphere, but also the political.  These issues may have a serious impact

on the subsequent evolution of the judicial practice within the

Community, even on the evolution of the Community, or Union, as such, so

that it should, therefore, even be the obligation of the Constitutional

Court, the judicial body for the protection of constitutionalism of one

of the recently acceded Member States, to attempt in its case law to

cogently express its view on these issues.  Of especial significance in

this respect is the issue whether Czech constitutional law, and above

all the essential attributes of the democratic law-based state in the

sense of Art. 9 par. 2 of the Constitution of the Czech Republic,

countenance that an international organization, to which the Czech

Republic has transferred a part of its sovereignty, is accorded the

possibility to create law which enjoys applicational precedence over the

entire Czech constitutional order [for more detail on this issue, see

Part V.B) of this judgment],
 

As

referred to above, where the subject regulated by Community law is the

common organization of the market, in the given case the market in

agricultural commodities, the Community enjoys in practice full

competence.  However, that does not entail the absolute obligation on

the part of the Community to prescribe rules for each and every issue

related to the sector of regulation in question.  Rather, the Community

is obliged, by virtue of the application of the principle of

subsidiarity, to adopt a position of restraint and leave a certain part

of that competence in the hands of the Member States or, after the

Community assumes full competence over a certain field, to delegate it

back, in particular for the purpose of supplementing specific aims of

general „policy-making“ or for the purpose of the administration of the

general rules of Community law.  Therefore, it is generally the case

that, where Community legislation has left certain matters in the hands

of the Member States (that is, where there are no explicit Community law

rules), or where it has explicitly delegated the regulation of these

matters back to the Member States, it is up to the Member States to

adopt and apply their own legislation.  Still, it cannot be asserted

that Community law in no way operates in such fields.  On the contrary,

even in cases where Members States implement part of Community policy by

means of their own legal instruments, the Member States‘ discretion is

limited by the overarching general principles of Community law, among

which also ranks the protection of fundamental rights (see the ERT Case,

Case C-260/89, Elliniki Radiophonia Tiléorassi AE and Panellinia

Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and

Sotirios Kouvelas and Nicolaos Avdellas and others, [1991] ECR I-2925).
 

In

other words, in certain cases the Community delegates powers back to

the Members States for the purpose of implementing certain Community law

acts, or it leaves certain issues unregulated, thus allowing Member

States to adopt specific rules for the implementation of European law. 

Naturally even in such cases, the Czech Republic is bound by the

principles of European law.  As such rules take the form of national

law, they must simultaneously be in conformity with the Czech

constitutional order.
 

The

Constitutional Court is thus convinced that, although the applicable

legal rules are rules of national law, to which apply the criteria

flowing from the constitutional order of the Czech Republic,

nonetheless, it cannot, without more, disregard the fact that they

relate to an issue, the origins of which spring from Community law, a

legal system produced by an international organization to which the

Czech Republic has, by virtue of its accession pursuant to Art. 10a of

the Constitution of the Czech Republic, transferred some portions of its

state sovereignty.  In consequence thereof, this system has, in those

portions, become directly binding for the Czech Republic, also within

the legal order of the Czech Republic.
 

Although

the Constitutional Court’s referential framework has remained, even

after 1 May 2004, the norms of the Czech Republic’s constitutional

order, the Constitutional Court cannot entirely overlook the impact of

Community law on the formation, application, and interpretation of

national law, all the more so in a field of law where the creation,

operation, and aim of its provisions is immediately bound up with

Community law.  In other words, in this field the Constitutional Court

interprets constitutional law taking into account the principles arising

from Community law.
 


A-1)

The Assesment of the Contested Legal Provision Taking into Account the Criteria Resulting from ECJ Case-Law
 

Before

proceeding to adjudicate upon the contested legal provision from the

perspective of the standards attained in Community law, the

Constitutional Court investigated whether the conformity of the key

chosen for the allocation of individual production quotas is an issue

which the Constitutional Court should, pursuant to Art. 234 of the EC

Treaty, refer to the ECJ for its direct assessment.  There is, however, a

further issue related thereto, namely whether the Constitutional Court

can be considered a court or tribunal which is, pursuant to Art. 234 of

the EC Treaty, called upon to submit preliminary questions.  It is

necessary to inquire whether it is appropriate for a court which

adjudicates matters from a restricted perspective, as is the case with

the Constitutional Court, to refer matters to the ECJ.  At the very

least such query appears legitimate in relation to proceedings on

abstract norm control, which is the type of proceeding in the matter

under consideration.  For example, in a 1995 judgment the Italian

Constitutional Court declared that it did not feel itself to be a court

under Art. 234 of the EC Treaty (see Case No. 536/95, Messaggero Servizi

Sr. v. Office of Registrar of Padua, 29 December 1995).  It gave two

basic reasons for this conclusion.  The Constitutional Court is not the

type of court to which Art. 234 applies, and Art. 234 cannot be applied

in the context of certain types of proceedings which the Constitutional

Court hears (abstract norm control proceedings).
 

On

the other hand, one cannot overlook the opposing practice of other

Member State constitutional courts which, in contrast, consider

themselves to be a court in the sense of Art. 234 of the EC Treaty and

in a number of cases have made references to the ECJ for a preliminary

ruling (the Austrian Constitutional Court or the Belgian Court of

Arbitration) (cf. Bobek, M., Komárek, J., Passer, J. M., Gillis, M., The

Preliminary Question in Community Law, Linde, Praha 2005, pp.72 – 73).
 

The

Constitutional Court is aware of the delicacy of the question as to

whether the Constitutional Court can be considered a court in the sense

of Art. 234 of the EC Treaty, or in which type of proceedings, and

reserves to itself in the future the possibility of adopting an

unequivocal answer, in other words, to refer a matter for the

adjudication to the ECJ in individual types of proceedings.
 

The

Constitutional Court is, however, of the the view that, in the given

case, one of the exceptions formulated in ECJ case-law could be applied

to the matter before the Court (see Case 283/81, Srl CILFIT and

Lanificio di Gavardo SpA v. Ministry of Health, [1982] ECR 3415,

recently affirmed by its decision of 15 September 2005, C 495/03,

Intermodal Transports BV v Staatssecretaris van Financiën).  In these

decisions the ECJ determined that it is not necessary to submit a

preliminary reference to the extent that „previous decisions of the

Court have already dealt with the point of law in question, irrespective

of the nature of the proceedings which lead to those decisions, even

though the questions at issue are not strictly identical“.  In other

words, this is a situation where previous decisions of the Court have

already dealt with the legal issue being resolved in the case at hand

(CILFIT par. 14).  In the Intermodal Transports Case, the ECJ stated

that the solution adopted in CILFIT and Others gives the national courts

sole responsibility for determining whether the correct application of

Community law is so obvious as to leave no scope for any reasonable

doubt and for taking the decision as to whether it is necessary to refer

to the ECJ a question concerning the interpretation of Community law

which has been raised before it (on this point, see also Bobek, M.,

Komárek, J., Passer, J. M., Gillis, M., The Preliminary Question in

Community Law. Linde, Prague 2005, pp.227 – 231).
 

In

the field of the Common Agricultural Policy, and especially as regards

the setting of production quotas, there is such an extensive, consistent

and long-term settled case-law of the ECJ as to, without any doubt,

enable the Constitutional Court to review the key to the allocation of

the production quotas from the perspective of national constitutional

law interpreted in light of Community law itself, or in light of its

conformity with the general principles of Community law.  In that

process, the Constitutional Court allows the general principles of

Community law, expressed in the existing ECJ jurisprudence, to radiate

through its interpretation of constitutional law..
 


The Principle of Member State Discretion and its Limits

 

Practically

from the beginning of its operations, the ECJ has emphasized that the

regulation of matters in areas governed by Community law must be

supplemented by Member State regulation (see joined cases 205 to 215/82 -

Deutsche Milchkontor GmbH and others v Federal Republic of Germany, ECR

2633 at par. 17:  “According to the general principles on which the

institutional system of the Community is based and which govern the

relations between the Community and the Member States, it is for the

Member States, by virtue of Article 5 [now Art. 10] of the Treaty, to

ensure that Community regulations, particularly those concerning the

Common Agricultural Policy, are implemented within their territory. In

so far as Community law, including its general principles, does not

include common rules to this effect, the national authorities when

implementing Community regulations act in accordance with the procedural

and substantive rules of their own national law.”)  For that matter

such a conclusion corresponds, on the one hand, to the needs of a

developing legal order, but, on the other hand, is still appropriate to

the notion of leaving certain matters to national or local conditions. 

As was further pointed out in the Milchkontor case, this conclusion

follows from the principle of cooperation under Art. 10 of the Treaty

and applies especially in the area of agriculture.  In such cases, where

national legal provisions are connected to Community rules, as the

Constitutional Court already emphasized above, the Member State is

nonetheless bound by the general principles of Community law, in

particular, the postulates concerning the protection of fundamental

rights (Case 5/88 - Hubert Wachauf v Bundesamt für Ernährung und

Forstwirtschaft [1989] ECR 2609; Case C-459/02, Willy Gerekens and

Association agricole pour la promotion de la commercialisation laitière

Procola v État du grand-duché de Luxembourg, par. 21).
 

In

the past the ECJ has construed Community legislation in the area of

agriculture very liberally so as to allow Member States a high degree of

discretion in implementing the relevant instrument of agricultural

policy:  “in matters concerning the common agricultural policy the

Community legislature has a discretionary power which corresponds to the

political responsibilities given to it by Articles 40 and 43 [now

Articles 34 a 37] of the Treaty” (Case C-331/88 - The Queen v Minister

of Agriculture, Fisheries and Food and Secretary of State for Health, ex

parte: Fedesa and others [1990] ECR I-4023, at par. 14; or see paras.

13-16 of Joined cases 196/88, 197/88 and 198/88 - Daniel Cornée and

others v Coopérative agricole laitière de Loudéac (Copall), [1989] ECR

2309).  In one case concerning the setting of quota quantities by the

Member States, the Community law provision requiring the MS to “take

account of” the production objective of a development plan was

interpreted by the ECJ as according the MS discretion whether or not to

grant to those producers who had undertaken a development plan any

additional reference quantities as a result.  Even where the MS granted

such additional quantities, the ECJ only required that the amount “bear a

relation to the production objective” and not that they be in “a

relationship of strict proportionality”.  On the contrary, in relation

to the overall planned production objective, Member States were entitled

to take account of other criteria, such as social objectives, for

example, by giving some advantage to smaller producers (see also Case

C-16/89 - G. Spronk v Minister van Landbouw en Visserij [1990] ECR

I-3185, par. 14-16).  According to ECJ case-law, the Member States’

broad discretion is limited only by three basic criteria:  the adopted

measure must be consistent with the objectives of the agricultural

policy, be based on objective criteria, and comply with the general

principles of Community law (see case C-313/99, Gerard Mulligan and

others v. Minister for Agriculture and Food, Ireland, paras. 33-35; see

also case C-16/89 - G. Spronk v Minister van Landbouw en Visserij [1990]

ECR I-3185, par. 13, concerning Member State discretion to determine

the size of the special reference quantities to be allocated to

producers).
 

The Member

States‘ wide discretion is thus restricted solely by the objectives of

the Common Agricultural Policy and by the general principles of

Community law.  For example, in a case where the linguistic

interpretation of a Community measure would have led to the infringement

of particular producers’ fundamental rights, the ECJ held that “[t]he

Community regulations in question accordingly leave the competent

national authorities a sufficiently wide margin of appreciation to

enable them to apply those rules in a manner consistent with the

requirements of the protection of fundamental rights” (Case 5/88 -

Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft, [1989] ECR

2609, par. 22).
 

The high

degree of discretion accorded to Member States in implementing Community

legislation in the field of agriculture can also be illustrated by one

case involving milk quotas.  The Community legislation provided

generally that, in case of the transfer of land, the allotted reference

quantity remains tied to the land.  In its domestic legislation, Ireland

implemented this norm in a manner whereby it provided that, in case of

such transfer of land, 20 % of the allotted reference quantity would

return to the national reserve.  In its decision, the ECJ confirmed that

it considered such a measure as falling within the limits of Member

State discretion (see case C-313/99, Gerard Mulligan and others v.

Minister for Agriculture and Food, Ireland, paras. 33-35).
 

In

light of these principles, the Constitutional Court assessed the

alleged infringement of the constitutionally protected right of equal

access in relation to applicants for quotas, and came to the conclusion

that the approach adopted by Government of the Czech Republic in laying

down the key to the allocation of quotas .passes muster.
 


The Principle of Proportionality


According

to the ECJ’s case-law, the principle of proportionality forms an

integral part of the general principles of Community law.  The ECJ has

several times in its decisions held that this principle requires

Community legislation to be “appropriate and necessary for meeting the

objectives legitimately pursued by the legislation in question” and that

“when there is a choice between several appropriate measures, the least

onerous measure must be used and [it] must not be disproportionate to

the aims pursued” (for ex., Case 265/87, Hermann Schräder HS Kraftfutter

GmbH & Co. KG v Hauptzollamt Gronau, [1989] ECR 2237, par. 21).
 

It

follows from the constant jurisprudence of the ECJ that the ECJ does

not apply the standard of proportionality equally stringently to all

cases.  In particular in the field of economic policy-making, it is

clear that the ECJ has opted rather for the route of judicial restraint

and has left to the competent legislative body the major responsibility

for determining whether the measure in question has met the relevant

standard: “In so far as an assessment of a complex economic situation is

involved, it must be borne in mind that, as the Court has held, where,

as in this case, the Commission enjoys significant freedom of

assessment, the Community judicature, when examining the lawfulness of

the exercise of such freedom, cannot substitute its own assessment of

the matter for that of the competent authority but must restrict itself

to examining whether the assessment of the competent authority contains a

manifest error or constitutes a misuse of powers . . . “(Case C-99/99,

Italian Republic v Commission of the European Communities, [2000] ECR

I-11535, par. 26).
 

Typically,

the ECJ exercises this type of restraint as well in the area of

agriculture:  “[I]n matters concerning the common agricultural policy

the Community legislature has a discretionary power which corresponds to

the political responsibilities given to it by Articles 40 and 43 [now

Articles 34 a 37] of the Treaty.” (Case C-331/88 - The Queen v Minister

of Agriculture, Fisheries and Food and Secretary of State for Health, ex

parte: Fedesa and others, [1990] ECR I-4023, at par. 14).  In other

words, in the area of the Common Agricultural Policy, the ECJ has made

very clear where the limits of judicial scrutiny lie.
 

As

a consequence of this highly deferential standard, the ECJ leaves to

the legislature a wide margin of appreciation for deciding when a

measure is necessary and appropriate:  “Where the need to evaluate a

complex economic situation is involved, the Community institutions enjoy

a wide measure of discretion. In reviewing the legality of the exercise

of such discretion, the Court cannot substitute its own assessment of

the matter for that of the competent authority but must confine itself

to examining whether that assessment is vitiated by a manifest error or

misuse of power or whether the institution in question has not

manifestly exceeded the limits of its discretion” (Case C-87/00 -

Roberto Nicoli v Eridania SpA., par. 37 ).  Accordingly, the ECJ has

seldom in practice come to the conclusion that a measure in the area of

economic policy-making violated the principle of proportionality.  When

it has in the past, it was not due to its disagreement as to the

soundness of the measure in question, that is with the measure‘s actual

content, rather as a result of its excessive impingement on individual

rights and their blatant infringment (see Case 114-76, Bela-Mühle Josef

Bergmann KG v Grows-Farm GmbH & CO. KG, [1977] ECR 1211, at par. 7).
 

The

ECJ has also in the past spoken directly to the issue of whether a

measure directed at restricting the level of production of a certain

agricultural commodity represents an infringement of the principle of

proportionality (see Case 138/79, SA Roquette Frères v Council of the

European Communities, [1980] ECR 3333).  That particular case was

instigated by the situation where the ECJ had previously declared a

specific regulation invalid, in consequence of which the regulation

subsequently adopted was contested by the interested parties on the

grounds that the relevant producers were left in doubt as to what the

regulation would be, which resulted in their production being hampered. 

The ECJ observed in that case that the legitimacy of the aim which the

relevant measures pursue must be kept in mind.  It is the stabilization

of the relevant market through limiting surplus production.  In other

words, if the measure pursues this aim, the quota system which is the

means of its attainment cannot, in and of itself, represent a violation

of the principle of proportionality.  In relation to claimants‘ specific

arguments that uncertainty in relation to the content of the legal

rules lead to the worsening on their situation on the market, the ECJ

stated that: “the Council cannot be expected to have regard to the

reasons, commercial choices and internal policy of each individual

undertaking when it adopts measures of a general interest” (Roquette

Frères, par. 30)  Further, the ECJ pointed out in the case that such an

argument could be relevant only in the cases that individual producers

demonstrate that, due to the unclear legal situation, they have in fact

changed the circumstances of their business and production.
 

Since

the Constitutional Court is, in the given case, operating within the

circumscribed confines of a proceeding on abstract norm control, it can

scarcely review what impact, if any at all, that the contested legal

rule has had on the sphere of fundamental rights of specific individual

producers.  In this type of proceeding, the Constitutional Court could

review the contested legal rule solely from the perspective of

principles which can be derived from specific fundamental rights, it did

not and could not have reviewed any possible actual intrusion upon the

fundamental rights of individual producers.
 


The Principle of the Protection of Fundamental Rights

 

As

has already been mentioned above, when implementing Community law,

Member State are bound by the obligation to respect fundamental rights

(Case 5/88 - Hubert Wachauf v Bundesamt für Ernährung und

Forstwirtschaft. [1989] ECR 2609; Case C-459/02, Willy Gerekens and

Association agricole pour la promotion de la commercialisation laitière

Procola v État du grand-duché de Luxembourg, par. 21).  The ECJ has many

times adjudicated upon restrictions of these fundamental rights by

measures in the area of economic policy and has repeatedly declared

that, in implementing Community policies, fundamental rights may be

subject even to significant limitation:  “The fundamental rights

recognized by the Court are not absolute, however, but must be

considered in relation to their social function. Consequently,

restrictions may be imposed on the exercise of those rights, in

particular in the context of a common organization of a market, provided

that those restrictions in fact correspond to objectives of general

interest pursued by the Community and do not constitute, with regard to

the aim pursued, a disproportionate and intolerable interference,

impairing the very substance of those rights.” (for ex., Case 5/88 -

Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft, [1989] ECR

2609, par. 18).
 

In

assessing the permissibility of limitation upon the fundamental rights

in the area of agricultural policy, the ECJ has found it essential to

weigh and consider the particular nature of the common organization of

the market and the quota system in the Common Agricultural Policy.  “It

is an essential feature of that organization of the market that it is

variable in terms of the economic factors which affect the development

of the market and in terms of the general direction of the Common

Agricultural Policy.” (Case 230/78 - SpA Eridania-Zuccherifici nazionali

v Minister of Agriculture and Forestry, [1979] ECR 2749, par. 21).
 

In

view of what has been stated above, the Constitutional Court now

proceeds to assess the issue of whether the contested legal rules can be

considered as in conformity with the basic sectoral principles and the

fundamental rights arising from Community law which could be affected by

the contested legal rules.  These are the principles of legitimate

expectation, the principle of legal certainty and the prohibition of

retroactivity, the prohibition of discrimination, the protection of the

right to undisturbed engagement in economic activity in the form of

entrepreneurship or employment, and the protection of property rights.

a)    The Principle of Legitimate Expectations

The principle of legitimate expectations has been formulated in the ECJ

case-law as a general principle of Community law.  In the context of

the Common Agricultural Policy, the ECJ has concluded that the principle

of legitimate expectations cannot be interpreted such as to guarantee a

producer access to a reference quantity in an amount corresponding to

what it expected or can claim in terms of its expected production in a

given year (see case 230/78 - SpA Eridania-Zuccherifici nazionali v

Minister of Agriculture and Forestry, [1979] ECR 2749, par. 22)  In that

case the ECJ stated that an individual producer “cannot claim a vested

right to the maintenance of an advantage which it obtained from the

establishment of the common organization of the market”.  On the

contrary, the ECJ has clearly expressed the position that individual

producers’ expectations may be disappointed due to the necessity to

modify the relevant rules as required for the implementation of the

Common Agricultural Policy and that they remain “subject to any

restrictions stemming from Community rules adopted after the plan was

approved, in particular in the context of market or structural policy”

(see joined cases 196-198/88 - Daniel Cornée and others v Coopérative

agricole laitière de Loudéac (Copall), par. 26).
 

As

the ECJ stated in another case:  “It is settled case-law that in the

sphere of the common organization of the markets, whose purpose involves

constant adjustments to meet changes in the economic situation,

economic agents cannot legitimately expect that they will not be subject

to restrictions arising out of future rules of market or structural

policy” (Case C-63/93 - Fintan Duff et al v Minister for Agriculture and

Food and Attorney General, [1996] ECR I-569, par. 20).  In that case

the ECJ held that the discretion given to the Member States in an EC

Regulation to grant special reference quantities to producers who had

adopted a development plan, did not create in such producers a

legitimate expectation actually to receive such reference quantity (see

also Case C-177/90 - Ralf-Herbert Kühn v Landwirtschaftskammer Weser-Ems

[1992] ECR I- 35, par. 13).  According to the ECJ, for the same reason

it is not in conflict with the principle of legitimate expectations if a

4.5 % reduction in the reference quantity, which is initially

introduced as “temporary”, is subsequently made permanent (Case C-22/94 -

The Irish Farmers Association and others v Minister for Agriculture,

Food and Forestry, Ireland and Attorney General, [1997] ECR I-1809,

paras. 17-25).  In other words, in the situation where EU institutions

or the Member States may need to change the agricultural policy at any

time in reaction to changes in the economic situation or due to the need

to reform agriculture in general, producers simply have to expect such

changes and have no legitimate expectations to the maintenance of the

status quo (see The Irish Farmers Association and others v Minister for

Agriculture, Food and Forestry, Ireland and Attorney General, par. 25:

“if a prudent and discriminating trader could have foreseen the adoption

of a Community measure likely to affect his interests, he cannot plead

[legitimate expectations] if the measure is adopted”; see also Case

C-459/02, Willy Gerekens and Association agricole pour la promotion de

la commercialisation laitière Procola v État du grand-duché de

Luxembourg, par. 29).
 

On the

other hand, the principle of legitimate expectations may be affected by

Community rules only in the case that the Community itself has

previously created a situation which can give rise to a legitimate

expectation (Case C-63/93 - Fintan Duff et al v Minister for Agriculture

and Food and Attorney General, [1996] ECR I-569, par. 20; Case C-177/90

- Ralf-Herbert Kühn v Landwirtschaftskammer Weser-Ems [1992] ECR I- 35,

par. 14; Case C-459/02, Willy Gerekens and Association agricole pour la

promotion de la commercialisation laitière Procola v État du

grand-duché de Luxembourg, par. 29).  Such a situation arose, for

example, when the EC induced producers to suspend their production in

exchange for specific payments, then introduced a system of quotas tied

to the amount of production in the year during which such producers had

temporarily suspended productions, which led to the consequence that

those producers who had taken advantage of the possibility to suspend

production lost entitlement to any quota at all.
 

The

ECJ found that since it was the Community authorities themselves which

had induced the producers to suspend production only for a limited time,

these producers had a legitimate expectation that they would be able to

continue in the production after the expiration of that term (Case

120/86 - J. Mulder v Minister van Landbouw en Visserij, [1988] ECR

2321).  On the other hand, where a producer limits or entirely suspends

activities in consequence of a freely-taken decision, that is, without

being encouraged to do so by a Community measure, during a period which

is subsequently designated as reference period, that does not violate

legitimate expectations (Case C-177/90 - Ralf-Herbert Kühn v

Landwirtschaftskammer Weser-Ems [1992] ECR I- 35, par. 15).  In that

case, the production was limited due to the transfer of the agricultural

holding from a lessee back to the owner, and the ECJ concluded that the

fact that the producer operating the holding has changed during the

reference year chosen by the Member State concerned, in consequence of

which production was curtailed, this does not constitute a violation of

legitimate expectations.
 

As

of yet the Constitutional Court has adjudicated on the principle of

legitimate expectation in conformity with the case-law of the European

Court of Human Rights, from which has clearly emerged the conception of

the protection of legitimate expectations as a property claim, which has

already been individualized by an individual legal act, or is

individualizable directly on the basis of legal rules (cf. the judgment

in case No. Pl. US 2/02, published as No. 278/2004 Sb.).  Proceeding on

the basis of this principle, the Constitutional Court stated that the

principle of legitimate expectations has not been violated by the

contested enactment, when an individualizable claim decidedly cannot be

inferred from the judgment in case No. Pl. US 39/01.  On the contrary,

that judgment left open the possibility for the executive power to adopt

new rules on the allotment of production quotas.  Thus, it cannot be

asserted that the contested legal rules violated the principle of

legitimate expectation to which the preceding Constitutional Court

judgment could have given rise.

b)    The Principle of Legal Certainty and the Prohibition of Retroactivity

In the ECJ case-law, the principle of legal certainty and the

prohibition of retroactivity has been interpreted so as to generally

preclude retroactive legislation, either by the EU or a Member State,

unless such legislation is adopted in exceptional circumstances “when

the purpose to be attained so demands and when the legitimate

expectations of the persons concerned are duly respected” (Case

C-459/02, Willy Gerekens and Association agricole pour la promotion de

la commercialisation laitière Procola v État du grand-duché de

Luxembourg, paras. 23-24). One such exceptional situation is that where a

MS has implemented Community legislation that is of limited temporal

application, and that legislation was later found to violate Community

law, so that the Member State was obliged to adopt new legislation that

applies to that already concluded time period. If such legislation could

not apply retroactively, that “would compromise that objective” and

“jeopardize the effectiveness of the arrangements” for agricultural

quotas (C-459/02, at paras. 25-26).
 

The

contested legal provision did not violate this principle since, even

though the rules on the allotment of production quotas were modified in

consequence of Constitutional Court case-law, these rules always applied

prospectively, not retrospectively, and they were always duly published

in the Collection of Laws.

c)    The Non-Discrimination Principle, or the Prohibition of Discrimination

In the area of agriculture, the principle of equal treatment is

required not just by the general principles of Community law, but also

by Art. 34 par. 2 (formerly Art. 40 par. 3 ) of the EEC Treaty, which is

a “specific enunciation of the general principle of equality” (joined

cases 201 and 202/85, Marthe Klensch and others v Secrétaire d'État à

l'Agriculture et à la Viticulture, [1986] ECR 3477, par. 9).  The

establishment of the common organization of agricultural markets in the

context of the implementation of the Common Agricultural Policy must

„exclude any discrimination between producers or consumers within the

Community“. That provision covers all measures relating to the common

organization of agricultural markets, irrespective of the authority

which lays them down.  In other words, according to the ECJ, it is also

binding on the Member States when they are implementing the common

organization of the markets (joined cases 201 and 202/85, Marthe Klensch

and others v Secrétaire d'État à l'Agriculture et à la Viticulture,

[1986] ECR 3477, p. 8).
 

In

determining whether the principle of equality has been respected, the

ECJ considers two aspects of the situation – comparability and objective

justification.  As regards the criterion of comparability, the ECJ has

held that “[d]iscrimination within the meaning of Article 40 of the

Treaty cannot occur if inequality in the treatment of undertakings

corresponds to an inequality in the situations of such undertakings.”

(Case 230/78 - SpA Eridania-Zuccherifici nazionali v Minister of

Agriculture and Forestry, [1979] ECR 2749, par. 18).  In that case the

ECJ found that the principle of equality was not violated by a Community

measure calling for a Community wide 5% reduction in sugar quotas, but

allowing for deeper cuts for Italian producers.  According to the ECJ

reasoning, since it is “commonly accepted that the situation in the beet

and sugar sectors in Italy differs appreciably from that in the other

Member States . . . such differences in treatment are . . . based on

objective differences arising from the underlying economic

situations”(Case 230/78 at paras. 18-19).
 

In

certain situations, even discrimination or differential treatment as

between individual producers can be justified, especially where it is

directed toward accomplishing the aims of the Common Agricultural

Policy.  Accordingly, the ECJ has found various forms of differential

treatment justified to the extent that they facilitated sound and

effective administration of the agricultural policy.  For example, in

allocating quotas the Member States may discriminate in favor of certain

forms of business association, excluding those the form of which, due

to their organization and structure would more easily allow for

violation of Community requirements (see Case C-15/95 - EARL de Kerlast v

Union régionale de coopératives agricoles (Unicopa) and Coopérative du

Trieux, [1997] ECR I-1961, at par. 39:  “Member State must be in a

position to exclude certain forms of company which facilitate operation

in a manner not in compliance with the Community rules”).
 

The

ECJ has also found that, although the reference year chosen by the

Member State may not be ideal for some producers, the resulting

differential treatment of them can be justified in the interest of sound

administration and the corresponding restriction of the length of the

reference period, or the number of reference years provided for.  In

reaction to a particular producer’s claim that he had been discriminated

against as against other producers because in the year chosen as the

reference period for the reference quantity that producer did not have a

production yield representative of his capacity, the ECJ concluded that

“[s]uch an effect is justified by the need to limit to the greatest

extent possible, in the interests of both legal certainty and the

effectiveness of the additional levy scheme, the situations which may

justify the reference to another reference year.” (Case C-177/90 -

Ralf-Herbert Kühn v Landwirtschaftskammer Weser-Ems [1992] ECR I- 0035,

p. 18).  A similar problem arose in the case of producers who carried

out a development plan (and expanded their production capacity), but

whose reference quantity did not reflect that expansion due to the fact

that the selected reference year came before the completion of the

development plan.  The ECJ stated that it did not consider such

producer’s situations objectively different from those of producers who

had not carried out such a plan, because “it is the reference year which

is decisive for comparing the situation of the two categories of

producers” (Case C-63/93 - Fintan Duff et al v Minister for Agriculture

and Food and Attorney General, [1996] ECR I-569, par. 26).  In other

words, the selection of reference period, in and of itself, was not

capable of establishing a violation, as between producers, of the

principle of equality.
 

On

the other hand, under ECJ case-law Member States are not allowed total

discretion in selecting the reference year.  The ECJ has declared that

certain choices could result in the violation of the principle of

equality.  For example, the ECJ decided that the selection of a

reference period can result in discrimination forbidden by the principle

of equality “[i]f, owing to the particular conditions on the market of

that state, the implementation of that option in its territory leads to

discrimination between producers within the Community” (joined cases 201

and 202/85, Marthe Klensch and others v Secrétaire d'État à

l'Agriculture et à la Viticulture, [1986] ECR 3477, par. 12).  It was

claimed in that case that the specific selection of the reference period

favored big producers to the detriment of smaller ones.
 

The

ECJ also dealt with the issue of equality in relation to the transfer

of reference quantities from one producer to another.  The ECJ has

found, for example, that Community law should not be construed in a

manner which would allow producers who cease production to transfer

their quotas to the persons who had been purchasers of their production,

as such a transfer would lead to inequality in favor of those persons

to the detriment of other purchasers of production in the given field of

production.  The reference quantity should rather be returned to the

national reserve and then reallocated in a fairer manner (joined cases

196/88, 197/88 and 198/88, Daniel Cornée and others v Coopérative

agricole laitière de Loudéac (Copall) and Laiterie coopérative du

Trieux, [1989] ECR-2309, par. 21-23).
 

Finally,

reference can be made to the ECJ’s position that it cannot assess a

merely hypothetical assertion to the effect that the national measure

discriminated against certain producers, unless some evidence is

actually presented to show that any of the producers whom the measure

had allegedly harmed had in fact been negatively impacted by that

measure (joined cases 196/88, 197/88 and 198/88, Daniel Cornée and

others v Coopérative agricole laitière de Loudéac (Copall) and Laiterie

coopérative du Trieux, [1989] ECR-2309, par. 19).
 

The

Constitutional Court has not found an inroad into the principle of the

prohibition of discrimination, as interpreted in light of the ECJ

case-law.  As will be explained at length, the Constitutional Court is

revising its existing construction of the principle of equality arising

from Art. 1 of the Charter of Fundamental Rights and Basic Freedoms made

in its judgment No. Pl. US 39/01, in particular for the field of law

which is related to Community law (see below).

d)    The Principle of the Protection of the Right of Entrepreneurship and to Engage in some other Economic Activity

In

its decisions the ECJ has ruled that, in relation to the system of

quotas, the right to engage in economic activity cannot be interpreted

as guaranteeing the right to obtain a particular level of quota. 

According to the ECJ, quotas “do not restrict the economic activity of

the undertakings in question but fix the quantities of production which

may be marketed in accordance with the special arrangements established

by the common organization of the market . . .”  (Case 230/78 - SpA

Eridania-Zuccherifici nazionali v Minister of Agriculture and Forestry,

[1979] ECR 2749, paras. 20-21).  Further, due to the variability of the

common organization of the market, quotas are the subject of change (cf.

the discussion above on legitimate expectations).
 

Such

restrictions on the right of entrepreneurship and to engage in other

economic activity even meet the general standard for limiting

fundamental rights, in that they “in fact correspond to objectives of

general interest pursued by the Community and do not constitute, with

regard to the aim pursued, a disproportionate and intolerable

interference, impairing the very substance of those rights” (Case 5/88 -

Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft, [1989]

ECR 2609, par. 18).  The first criteria (conformity with the objective

pursued) is observed if the restriction is part of a legislative scheme

to remedy surpluses in a market of agricultural commodities by limiting

excess production. The second criteria (proportionality) is met if the

very substance of the right of entrepreneurship and to engage in other

economic activity is not impaired.  In other words, to the extent that

the system of quotas does not restrict the right to make other uses of

the land in question, to engage in business in other economic fields, or

to market other agricultural products, then it is compatible with the

protection of the right of entrepreneurship and to engage in other

economic activity (Case C-177/90 - Ralf-Herbert Kühn v

Landwirtschaftskammer Weser-Ems [1992] ECR I- 0035, par. 17, or Case

C-63/93 - Fintan Duff et al v Minister for Agriculture and Food and

Attorney General, [1996] ECR I-569, par. 30, where the ECJ held that

such right is not infringed even if a producer obtains a reference

quantity that does not take into account a development plan, that is a

quota which does not correspond to the objective level of production

which that producer would be capable of after executing the plan).  In

other words, according to the ECJ case-law, the grant of a particular

level of quota, in and of itself, cannot be considered an infringement

of the fundamental right to engage in entrepreneurship or other economic

activity.
 

The principle of

the protection of the right to engage in economic activity is approved

in the constitutional order of the Czech Republic as an economic right

which can be asserted only within the confines of the statutory

provisions implementing them (Art. 41 of the Charter of Fundamental

Rights and Basic Freedoms) and the existing jurisprudence of the

Constitutional Court resting on the principle of „self-restraint“

[trans. note:  the Czech original employs the English term] entirely

corresponds with the ECJ’s approach.  Accordingly, the Constitutional

Court has not found that this principle has been violated.


 

  A-2)

The

Assessment of the Contested Legal Rules from the Perspective of the

Criteria following from the Constitutional Order of the Czech Republic

in light of the Constitutional Court‘s Existing Jurisprudence
 

As

stated above, the setting of the key for the calculation of individual

production quotas represents the national implementation of the

objective of the Common Agricultural Policy arising from the norms of

Community law, that is, a field in which Community law has left Member

States discretion as to what specific instrument it chooses for the

attainment of the objective (restriction of the production of sugar). 

Although the setting of the key for the allocation of the production

quota is a matter of national law, it cannot be overlooked that it

pursues an objective resulting from Community law.
 

As

was stated above, the Constitutional Court is persuaded that, after the

Czech Republic became a full Member State of the EC, or EU, the

constitutional law review of issues relating to this field cannot be

carried out in total isolation, without regard to the criteria and

bounds of the rules laid down in Community law and existing ECJ

case-law.  In other words, in adjudicating the conformity of the chosen

key with the constitutional order of the Czech Republic, therefore the

manner in which European law and the ECJ approach the issues of

production quotas and the method for their allocation cannot be entirely

disregarded.  In contrast to the Constitutional Court’s preceding

decision, Community law cannot be approached merely as a subject of

comparison from which would follow indirect arguments in relation to

national rules, rather at the present time Community law radiates into

the Czech Republic constitutional order, if it applies in a field of law

related to Community law.
 

On

the other hand, due to the principle of legal continuity of its own

jurisprudence, in the contemporary period the previous case-law of the

Constitutional Court cannot be disregarded (see below).
 

In

its judgment No. Pl. US 45/2000 (published as No. 96/2001 Sb.), the

Constitutional Court annulled Government Regulation No. 51/2000 Sb.,

which Lays Down Measures and the State’s Participation in the Creation

of Conditions for Ensuring and Maintaining the Production of Sugar Beets

and Sugar and the Stabilization of the Market in Sugar.  This was the

legal enactment which, for the first time, introduced into the Czech

Republic regulation of the market in sugar, for the period running from 1

August 2000 until 30 September 2001.  In that judgment the

Constitutional Court decided that, with this regulation, the Government

had failed to heed the constitutional limits provided for in Art. 78 of

the Czech Constitution.  In that judgment the Constitutional Court did

not concern itself with the actual content of the regulation, nor with

its conformity with the constitutional order.  According to the

regulation, the amount of the quotas was defined such that the reference

period was set as the five preceding years, that is the years 1995 -

1999.
 

In its judgment No.

Pl. US 5/01 (published as No. 410/2001 Sb.), the Constitutional Court

addressed the constitutional conformity of Regulation No. 445/2000 Sb.,

on Setting Production Quotas for Milk for the years 2001 to 2005.  The

Constitutional Court granted that petition in part, as it annulled § 4

par. 2 and § 14 par. 2 of the regulation, once again due to defects in

the statutory empowerment for the restriction of the allocation of

production quotas from the reserve for farmers in the system of

ecological cattle breeding and the unconstitutionality and illegality of

the delegation to the Ministry of Agriculture of decision-making on the

amount of reserves.  Nonetheless, in this judgment the Constitutional

Court also spoke to the substantive conformity with the constitutional

order of milk production quotas (as one of the methods for regulating

the state’s agricultural policy), in the process of which it did not

find this system to be unconstitutional as such.  At the same time it

formulated the basic constitutional limits both for placing restrictions

upon agricultural by introducing production quotas and for the system

of allocation of production quotas to individual producers.  Above all

the Constitutional Court concluded that (within the bounds provided by

the constitutionally guaranteed basic principles, human rights and

fundamental freedoms) the legislature may, as it considers appropriate,

introduce price or quantitative regulation of the production in certain

branches of the economy, circumscribe or influence the type and number

of subjects operating in it, or restrict contractual freedom when

production is brought to the market or when raw materials and production

equipment are purchased.  The Constitutional Court also denied that

every restriction upon the entrepreneurial freedom can be introduced

solely by statute.  On the contrary it stated that, for practical

reasons, the Czech Constitution allows statutes to be implemented by

means of sub-statutory enactments, if the rules laid-down in that way

remain within the bounds of statutory law.  The Constitutional Court

also rejected the argument that placing limits on production constitutes

expropriation that is not justified in the public interest and effected

without compensation.  The ownership in production in excess of the

production quota is not divested, rather, the marketing of it is merely

made more difficult.  The system of production quotas represent a form

of control on the use of property which pursues the public interest,

namely the stabilization of the market in commodities.  It then found

the instruments employed, that is the allocation of individual

production quotas, to be proportionate.
 

As

concerns the system for the allocation of individual production quotas,

the Constitutional Court has denied that the dissimilar legal position

of all producers who obtain quotas and those who request them would

represent unconstitutional discrimination.  Likewise it did not consider

as unconstitutional the natural differentiation between existing and

new producers, as it stated that the handicap for new entrepreneurs

(which obtain quotas solely through the transfer of quotas from current

producers who have already been allocated quotas) is an integral part of

any sort of limitation on production.  Of course, one cannot exclude

the possibility of discrimination between producers who request quotas

and obtain them in the full amount and producers who are denied quotas

or receive them only in part.  For this reason, already in § 12 par. 6

of Act No. 256/2000 Sb., on the State Agricultural Intervention Fund,

was introduced the requirement that the method of initial allocation of

production quotas among applicants be governed by the principle of

equality and of an objective method of calculation.  The Constitutional

Court observed on this point that this general instruction, which is

nothing other than a derivation of the principle of equality found in

Art. 1 of the Charter and Art. 1 of the Constitution of the Czech

Republic, must be borne in mind by the Government when it designates the

method of allocation of quotas within the framework of the individual

systems of production quotas with respect to the attributes and

particular features of the production of commodities whose production is

subject to limitation.  The Constitutional Court may, therefore, assess

the key employed for the original allocation of quotas, whereas in the

case of the allocation of production quotas for milk it recognized a

one-year reference period as proportionate.  At the same time, however,

the Constitutional Court acknowledged that not even a minutely

elaborated key, which takes into account regular causes of the

fluctuation in production volume, cannot take all circumstances into

account.  Thus, in particular cases this can result in injustices which,

however, are not of constitutional dimension.
 

Finally

in its judgment No. Pl. US 39/01 (published as No. 499/2002 Sb.) the

Constitutional Court once again concerned itself with the rules for the

production quotas on sugar, adopted in the form of Regulation No.

114/2001 Sb., on the Setting of Production Quotas for Sugar for the

Quota Years 2001/2002 through 2004/2005.  In this judgment the

Constitutional Court annulled § 4 par. 3, § 5 par. 3, § 7 and § 13 of

the regulation and rejected on the merits the proposal to annul § 13 of

Act No. 256/2000 Sb., on the State Agricultural Intervention Fund.  The

Constitutional Court assessed the key chosen at that time for the

allocation of individual production quotas (on the basis of the volume

of production in the three most successful, in terms of quantity, of the

preceding five production years) as in conflict with the statutory

requirement of the objective method of calculation and the requirement

of equality.  This assessment was grounded on reflections concerning

whether the position of individual operators of sugar refineries was

influenced by the legal rules under Regulation No. 51/2000 Sb., which

was applied before its annulment by the Constitutional Court, that is,

in the period from 30 March 2001 until 29 November 2002.  Although this

regulation was annulled on formal grounds, that is, for inadequate basis

in law, the Constitutional Court additionally stated that the

differentiation made at that time between sugar refineries as strategic

and non-strategic can legitimately be considered as a suspect

classification which represents an arbitrary, scarcely justifiable

distinction between individual producers.  The Constitutional Court

further observed that the key chosen in Government Regulation No.

114/2001 Sb. was not unconstitutional per se; nonetheless, the

undesirable repercussions of the preceding method of calculation, which

was both formally defective and substantively discriminatory, had not

been cured.  Rather, it had merely tempered them by the fact that the

quantity of the decisive average annual quota was not calculated based

on the volume of production for all five seasons, as it took into

account the fact that certain sugar refineries were not in operation in

each year and took into account the three seasons when they produced the

most, alternatively the years in which they produced, if they produced

for three years or less.  The Constitutional Court found a failure to

cure the inequality in the fact that, on the basis of a measure which

was formally unconstitutional and substantively discriminatory, certain

producers might have increased their production, as they were protected

from competitors who did not have a production quota and, thus, could

not produce without being burdened by a punitive levy.  The

Constitutional Court then concluded that the Government had, in a rule

that was formally proper, retained into the future the undesirable state

of affairs which was called forth by its earlier regulation, both

formally and substantively unconstitutional.
 

In

its 22 June 2004 ruling, No. Pl. US 48/03, the Constitutional Court

dismissed the proceeding on the petition of a group of Deputies

proposing the annulment of the relevant part of Regulation No. 114/2001

Sb., as amended by Regulation No. 97/2003 Sb., which the Goverment had

adopted, in reaction to the preceding Constitutional Court judgment, to

newly regulate the allocation of individual production quotas.  The

Constitutional Court had dismissed the proceeding pursuant to § 67 of

the Act on the Constitutional Court, since the contested regulation had,

during the course of the proceeding, been repealed and replaced by

Regulation No. 364/2004 Sb., §§ 3 and 16 of which are contested by the

petition now before the Court.  Regulation No. 114/2001 Sb., as amended

by Regulation No. 97/2003 Sb., provided a new key to the allocation of

quotas such that the allocation was effected on the basis of capacity

for sugar production defined as the highest average quantity of sugar

that a sugar refinery, which produced sugar during the month of November

2001 or October 2002, produced during a 24 hour period, assuming sugar

had been produced in that refinery in the quota year 2002/2003, however

no more than the verifiable quantity corresponding to the maximum daily

technical capacity of the sugar refinery’s equipment.
 


A-3)

The

Constitutional Court is thus deciding on the constitutional conformity

of the key for the calculation of individual production quotas in a

situation where its previous case-law has laid down certain limits, both

for the actual permissibility of the legal regulation of production

quotas as such, and for the allocation of individual production quotas

to individual producers.  Thus, among other things, the adjudication of

the current legal rules must be carried out from the perspective of the

Constitutional Court’s existing case-law, by which the Constitutional

Court is bound, unless the conditions are met for departing therefrom.
 

As

concerns a system of quotas as such, the Constitutional Court has

stated that this judgment is bound up to its current case-law in the

area of quotas.  It is a different matter, however, to adjudge the

actual allocation of quotas in terms of the constitutional principles,

such as they were formulated in the Court’s preceding judgment, No. Pl.

US 39/01.
 

In its judgment

No. Pl. US 11/02 (published as No. 198/2003 Sb.), the Constitutional

Court formulated the doctrine of the continuity of its own case-law,

which it deduced from the attributes of the democratic law-based state;

in other words, it concluded that the Constitutional Court is bound by

its own decisions, from which it can depart in its case-law solely under

certain conditions.  The first circumstance in which the Constitutional

Court may depart from its own case-law is a change of the social and

economic relations in the country, a change in their structure, or a

change in the society’s cultural conceptions.  A further circumstance is

a change or shift in the legal environment formed by sub-constitutional

legal norms, which in their entirety influence the examination of

constitutional principles and maxims without, of course, deviating from

them and, above all, without restricting the principle of the democratic

state governed by the rule of law (Art. 1 par. 1 of the Constitution of

the Czech Republic).  An additional circumstance allowing for changes

in the Constitutional Court’s jurisprudence is a change in, or an

addition to, those legal norms and principles which form the

Constitutional Court’s binding frame of reference, that is, those which

are contained in the Czech Republic’s constitutional order, assuming, of

course, that it is not such a change as would conflict with the limits

laid down by Art. 9 par. 2 of the Constitution of the Czech Republic,

that is, they are not changes in the essential attributes of a

democratic state governed by the rule of law.
 

After

full consideration of the constant jurisprudence of the ECJ and the

Constitutional Court’s own current jurispruence, the Constitutional

Court weighed whether this case does not present facts which would

justify a departure from the Constitutional Court’s existing holdings. 

As was already mentioned above, there is no doubt that, as a result of

the Czech Republic’s accession to the EC, or EU, a fundamental change

occurred within the Czech legal order, as at that moment the Czech

Republic took over into its national law the entire mass of European

law.  Without doubt, then, just such a shift occurred in the legal

environment formed by sub-constitutional legal norms, which necessarily

must influence the examination of the entire existing legal order,

constitutional principles and maxims included, naturally on the

condition that the factors which influence the national legal

environment are not, in and of themselves, in conflict with the

principle of the democratic law-based state or that the interpretation

of these factors may not lead to a threat to the democratic law-based

state.  Such a shift would come into conflict with Art. 9 par. 2, or

Art. 9 par. 3 of the Constitution of the Czech Republic.
 

There

is not doubt that the standard within the Community for the protection

of fundamental rights and basic freedoms by means of the observance of

the principles arising therefrom has undergone a dynamic development

since the early reluctance to accord protection by means of Community

law, also expressed in the ECJ case-law (among others, in judgment No.

1/58, Stork v. High Authority of the ECSC [1959]), through the

implementation of the protection of these principles in the ECJ case-law

up to the effort to form a binding catalogue of fundamental rights,

which would form a part of primary law.  In the same way, the reaction

to this problem in the case-law of the constitutional courts of

particular Member States also experienced a dynamic development; the

most representative examples of this are the changes in position of the

Federal Constitutional Court of the FRG (cf. its decision of 29 May

1974, No. 2 BvL 52/71, „Solange I“, its decision of 22 October 1986, No.

2 BvR 197/83, „Solange II“, and its decision of 12 October 1993, No. 2

BvR 2134 and 2159/92 on the European Union Treaty).
 

In

the Constitutional Court’s view, the current standard within the

Community for the protection of fundamental rights cannot give rise to

the assumption that this standard for the protection of fundamental

rights through the assertion of principles arising therefrom, such as

otherwise follows from the above-cited case-law of the ECJ, is of a

lower quality than the protection accorded in the Czech Republic, or

that the standard of protection markedly diverges from the standard up

till now provided in the domestic setting by the Constitutional Court. 

Moreover, this follows as well from a comparison of the above-mentioned

ECJ rulings concerning the permissibility of quantitative restrictions

upon production by means of laying down production quotas and the

findings which the Constitutional Court has made in the past on the same

issue.  In the Constitutional Court’s view, the sole exception is the

ruling in judgment No. Pl. US 39/01, in which the Constitutional Court

adjudged the key laid down by the Government for the allocation of

production quotations as infringing the principle of equality.
 

If

this conclusion is compared with the above-cited case-law of the ECJ,

it can be considered as excessive in the respect that the Constitutional

Court ventured out onto the relatively „thin ice“ of assessing economic

quantities, which it afterward projected into the constitutional law

assessment.  As follows from the cited ECJ case-law, that court does not

consider itself authorized to assess measures which form a part of the

Common Agricultural Policy in terms of their substance.  For example, to

the extent that the ECJ assessed the reference criteria with respect to

the asserted inequality among producers, it referred to the fact that

this inequality cannot be merely hypothetical, rather it must be based

on concrete facts, which would be established in relation to specific

producers.  For that matter, the conclusion flowing from judgment No.

Pl. US 39/01 can, to a certain degree, be considered as excessive even

in relation to the case-law of the Constitutional Court itself, which in

the judgment preceding it, in which it adjudicated on the system of

milk quotas, unequivocally stated that „not even a key that is

elaborated in detail, which takes into account the regular causes of

fluctuation in the volume of production, could pay heed to all

circumstances.  Therefore, this can in particular cases result in

injustices which do not, however, attain constitutional dimensions.“ 

Thus, in the case currently before it, the Constitutional Court does not

feel itself called upon, within the bounds of constitutional review, to

examine in the abstract the actual key for the allocation of quotas.
 

In

other words, in the case currently before the it, as far as concerns

measures of an economic nature pursuing an aim that flows directly from

the Community policy of the EC, the Constitutional Court cannot avoid

the conclusions which flows directly from the case-law of the ECJ and

from which a definite principle of constitutional self-restraint can be

inferred.  For that matter, the Constitutional Court was also aware of

this point when it adopted judgment No. Pl. US 39/01, since it stated in

its reasoning that, as concerns the extent of its review powers, such a

conclusion may not be reached which would afterwards present an

obstacle to the Czech Republic’s membership in the European Union,

albeit by its holding it traversed that self-restraint to a certain

extent.
 

The Constitutional

Court therefore came to the conclusion that in this case there are

grounds for departing from its judgment in matter No. Pl. US 39/01. 

This modification does not, however, relate to the substantive

assessment itself of the key selected by the Government, rather to the

fact that the Constitutional Court no longer deems itself to be called

upon to subject such a key to abstract constitutional review in the

manner in which it did in its judgment No. Pl. US 39/01.  Naturally,

that does not rule out the possibility that the ordinary courts address,

in specific cases of individual producers, the fairness of this key,

assuming that specific facts will be established on the basis of which

such inequality is alleged.
 

On

the contrary, inspired by the holding of the ECJ, which since 1 May

2004 it has, in the area under consideration, taken into account to the

extent delineated above, and bound by the holdings which it handed down

prior to its judgment No. Pl. US 39/01, the Constitutional Court did not

assess whether the key selected by the Government in Regulation No.

97/2003 Sb. (the results of which were projected into the originally

contested provision, § 3 of Regulation No. 364/2004 Sb., and following

the repeal of that regulation into § 3 of Regulation No. 548/2005 Sb.)

is capable, in terms of its content, of constituting inequality among

producers in the abstract.  Thus, it will not assess the issue of

whether the criterium selected by the Government is capable of

reflecting the fluctuations in the production of individual producers,

as the Constitutional Court considers that issue to involve such a high

degree of economic expertise that it does not feel called upon to answer

it.
 

Merely as obiter

dictum, that is, outside the actual confines of constitutional review,

the Constitutional Court further states on this point that it does not

directly follow from its judgment Pl. US 39/01, as the petitioners have

submitted to the Constitutional Court, that the Government was obliged

to select, as the reference period, a period prior to the moment in

which it began to regulate the production of sugar by means of

production quotas, that is, the period prior to 2000.
 

It

appears from the comparative survey which the Constitutional Court

requested for the purpose of this proceeding, that the majority of

Central and East European states which joined the EC in 2004 in practice

selected the time interval 1994 – 1999 as their reference period;

however, the situation in the Czech Republic is quite unusual in that

the key for the allocation of quotas had been repeatedly annulled by the

Constitutional Court (the first time on formal grounds, for the second

on substantive grounds).  Although the Constitutional Court does not

feel called upon to adjudicate such questions, nonetheless, it appears

to the Court that to set, in the year 2004, a reference period from a

time before 2000 would be technically unfeasible, perhaps even

unreasonable, and constituting further grounds for asserting that even

such a reference period is capable of establishing inequality between

producers.  On the contrary, in the Constitutional Court’s view what can

be inferred from the chosen key, now contested by the petitioner, is

the effort on the part of the Government to select such a period as

could be viable as a reference period and, on the other hand, be capable

of eliminating market distortion that had arisen in consequence of the

previous regulation as, in its judgment No. Pl. US 39/01, the

Constitutional Court called to its attention.
 

The

Constitutional Court also considers it necessary to emphasize that the

holding it now adopts in no way signifies that the Constitutional Court

would abdicate its powers of constitutional review of national legal

enactments which are complementary to Community law, as has been done by

several courts of EC Member States (cf. the decision of the Irish

Supreme Court in the case of Lawror v. Minister for Agriculture 1 [1990]

IR 356 cited by Kühn, Z.: The Expansion of the European Union and the

Relations among Twenty-Six Constitutional Systems, Právník 8/2004, p.

765).  The shift in its conclusions derives from the shift in the entire

national legal order which occurred on 1 May 2004 and relates solely to

the issue of the limits of constitutional review in this particular

case.
 

It can be concluded

that the key to the allocation of individual production quotas has been

found to be constitutionally conforming, from which follows that it

would have been necessary to reject the petitioners‘ original petition

on the merits.


B) The Constitutional Court could not,

however, overlook and accept the fact that, by its adoption of the

contested provisions (§ 3 of Regulation No. 548/2005 Sb.), which merely

paraphrases Art. 1 par. 3 of Commission Regulation (EC) No. 1609/2005,

the Government failed to respect the fact that, as a result of the Czech

Republic’s accession to the EU, a transfer of powers of national organs

to supra-national organs has taken place on the basis of Art. 10a of

the Constitution of the Czech Republic.
 

Art.

10a, which was added to the Constitution of the Czech Republic by

Constitutional Act No. 395/2001 Sb. (the „Euro-Amendment“ to the

Constitution), constitutes a provision that makes possible the transfer

of certain powers of Czech state organs to international organizations

or institutions, thus primarily to the European Community and its

organs.  In the moment when the Treaty Establishing the European

Community, as amended by all revisions to it and by the Treaty of

Accession, became binding on the Czech Republic, a transfer was effected

of those powers of national state organs which, according to EC primary

law, are exercised by organs of the EC, upon those organs.
 

In

other words, at the moment of the Czech Republic’s accession to the

European Community, the transfer of these powers was accomplished such

that the Czech Republic conferred these powers upon EC organs.  Thus,

the powers of all relevant national organs are restricted to the extent

of the powers that are being exercised by EC organs, regardless of

whether they are powers of norm creation or powers of individual

decision-making.
 

In the

Constitutional Court’s view, this conferral of a part of its powers is

naturally a conditional conferral, as the original bearer of

sovereignty, as well as the powers flowing therefrom, still remains the

Czech Republic, whose sovereignty is still founded upon Art. 1 par. 1 of

the Constitution of the Czech Republic.  It states that the Czech

Republic is a sovereign, unitary, and democratic state governed by the

rule of law, founded on respect for the rights and freedoms of man and

of citizens.  In the Constitutional Court’s view, the conditional nature

of the delegation of these powers is manifested on two planes:  the

formal and the substantive plane.  The first of these planes concerns

the power attributes of state sovereignty itself, the second plane

concerns the substantive component of the exercise of state power.  In

other words, the delegation of a part of the powers of national organs

may persist only so long as these powers are exercised in a manner that

is compatible with the preservation of the foundations of state

sovereignty of the Czech Republic, and in a manner which does not

threaten the very essence of the substantive law-based state.  Should

one of these conditions for the transfer of powers cease to be

fulfilled, that is, should developments in the EC, or the EU, threaten

the very essence of state sovereignty of the Czech Republic or the

essential attributes of a democratic state governed by the rule of law,

it will be necessary to insist that these powers be once again taken up

by the Czech Republic’s state bodies; in such determination the

Constitutional Court is called upon to protect constitutionalism (Art.

83 of the Constitution of the Czech Republic).  That is the case in the

formal dimension within the confines of the current constitutional

rules.  As concerns the essential attributes of a democratic state

governed by the rule of law, according to Art. 9 par. 2 of the

Constitution of the Czech Republic, these remain beyond the reach of the

Constituent Assembly itself.  In its very first judgment, Pl. US 19/93,

concerning the Act on the Lawlessness of the Communist Regime and

Resistance to It, the Constitutional Court declared that in the

framework of this Constitution, the constitutive principles of a

democratic society are placed beyond the legislative power and are thus

ultra vires the Parliament.  In a further judgment, Pl. US 36/01, the

Constitutional Court stated that no amendment to the Constitution may be

interpreted in a sense, in consequence of which the already achieved

procedural level for the protection of fundamental rights and basic

freedoms would be restricted.
 

Should,

therefore, these delegated powers be carried out by the EC organs in a

manner that is regressive in relation to the existing conception of the

essential attributes of a democratic law-based state, then such exercise

of powers would be in conflict with the Czech Republic’s constitutional

order, which would require that these powers once again be assumed by

the Czech Republic’s national organs.
 

In

the specific case before the Court, however, such a situation was not

generally present, so that, in the Constitutional Court’s opinion, the

Government had no reason to exercise its power of norm creation in the

manner it did, that is, by the adoption of the constested provision, § 3

of Regulation No. 548/2005 Sb.
 

After

assessing the content of the contested provision, § 3 of Regulation No.

548/2005 Sb., the Constitutional Court came to the conclusion that, in

adopting it, the Government exceeded its authority; that is, it asserted

its power of norm-creation in a field which, on the basis of Art. 10a

of the Constitution of the Czech Republic, had already been transferred

to EC organs, namely by Art. 37 par. 2 and 3 of the EC Treaty and Art. 1

par. 3 of the Treaty of Accession of the Czech Republic to the European

Union.  If then § 3 of Regulation No. 548/2005 Sb. is meant to be the

implementation of Commission Regulation (EC) No. 1609/2005, its adoption

constitutes action ultra vires in relation to Art. 78 of the

Constitution of the Czech Republic, as the Government was not empowered

to adopt such legal rules.
 

Commission

Regulation (EC) No. 1609/2005 is the Community law enactment by which

the Commission, on the basis of Art. 10 paras. 3 and 4 of Council

Regulation (EC) No. 1260/2001 reduced, for the year 2005/2006, the

quotas for the production of sugar pertaining to individual Member

States.  This Regulation takes precedence over national legal

(statutory) rules and is directly applicable in the national legal

order.
 

Direct applicability

in national law and applicational precedence of a regulation follows

from Community law doctrine itself, as it has emerged from the case-law

of the ECJ (cf., for ex., decision 26/62 NV Algemene Transport- en

Expeditie Orderneming Van Gend en Loos v. Nederlandse Administratie der

Belastingen [1963] ECR 1; 6/64 Costa v. ENEL [1964] ECR 585).  In

contrast to international law, Community law itself determines and

specifies the effects it has in the national law of the Member States.
 

If

membership in the EC brings with it a certain limitation on the powers

of the national organs in favor of Community organs, one of the

manifestations of such limitation must necessarily also be a restriction

on Member States‘ freedom to determine the effect of Community law in

their national legal orders (cf. Král, R.: Once Again on the Foundation

in the Constitution of the Czech Republic of the Effects in National Law

of Community Law. Legal Horizons [Právní rozhledy], 2004, No. 3, p.

111).  In other words, the transfer of certain powers to the EC entails

also the loss of the Czech Republic’s freedom to designate the effects

Community law has in national law, which effects are derived directly

from Community law in fields in which such transfer occurred.  Art. 10a

of the Constitution of the Czech Republic thus operates in both

directions:  it forms the normative basis for the transfer of powers and

is simultaneously that provision of the Czech Constitution which opens

up the national legal order to the operation of Community law, including

rules relating to its effects within the legal order of the Czech

Republic (cf. Kühn, Z. – Kysela, J.: On which Basis will Community Law

Operate in the Czech Legal Order? Legal Horizons [Právní rozhledy],

2004, No. 1, pp. 23 – 27; or Kühn, Z.: Once More concerning the

Constitutional Basis for the Operation of Community Law in the Czech

Legal Order. Legal Horizons [Právní rozhledy],  2004, No. 10, pp. 395 -

397).
 

The Constitutional

Court is of the view that – as concerns the operation of Community law

in the national law – such approach must be adopted as would not

permanently fix doctrine as to the effects of Community law in the

national legal order.  A different approach would, after all, not

correspond to the fact that the very doctrine of the effects that

Community acts call forth in national law has gone through and is still

undergoing a dynamic development.  This conception also best ensures

that which was already mentioned, that is, the conditionality of the

transfer of certain powers.
 

According

to Art. 1 par. 3 of the Regulation, Member States were obliged, by 1

November 2005 at the latest, to set for each production undertaking

which had been allocated a production quota, the amount by which that

quota was to be reduced.  As the Constitutional Court ascertained by an

inquiry to the State Agricultural Intervention Fund, the reduction in

the quota were notified to all holders of quotas by means of individual

acts on the basis of the direct application of this provision of

Commission Regulation (EC) No. 1609/2005.
 

In

other words, at the time when the Government adopted § 3 of Government

Regulation No. 548/2005 Sb., the individual production quota of each

particular producer had already long since been reduced, moreover on the

basis of the direct application of Community law by the organ competent

to do so, that is, the State Agricultural Intervention Fund.  On the

one hand, such a provision cannot in practice give rise to any legal

consequences, on the other, the Government was not even authorized to

adopt it, as this was a field in which such empowerment had been

transferred to the Community organs, which exercised it in the given

case by adopting Regulation No. 1609/2005, which, as was already noted

above, is directly applicable in the law of the Member States, so that

no further implementation in the national law is contemplated.
 

Moreover

ECJ case-law has developed a rule, according to which Member States may

not, by means of legal enactments under national law, reproduce the

provisions of directly applicable Community law, or that any sort of

national measure implementing a regulation is in conflict with the

directly applicability of the regulation (cf. Cases 93/71, Orsolina

Leonesio v. Ministero dell’agricoltura e Oreste, [1972] ECR 287; 39/72

Commission of the European Communities v. Italian Republic, [1973] ECR

101; and 34/73 Fratelli Variola S.p.A. v. Amministrazione italiana delle

Finance, [1973] ECR 981)
 

As

the Constitutional Court further ascertained, the examples of other

Member States (the FRG and Slovakia) demonstrate that these states

applied the Commission Regulation (EC) directly, without resorting to

the normative transformation of this regulation into some form of

national law.
 

By adopting

the contested provisions, the Government therefore acted ultra vires and

violated Art. 78 in conjunction with Art. 10a and Art. 1 par. 2 of the

Constitution of the Czech Republic, as it thereby exercised an authority

which had already been transfered to Community organs and which the

Government, as a result, no longer held.
 

In

the Constitutional Court’s view, the annulment of the contested

provision as unconstitutional in no way affects either the actual system

of regulation of the market in sugar, or the chosen key for the

allocation of individual production quotas.  The current level of the

quotas for the economic year 2005/2006 was itself reduced on the basis

of the directly applicable Commission Regulation (EC) No. 1609/2005, in

the form of individual acts, the effects of which have been maintained

and, as both parties were in agreement in confirming, the national sugar

quota for the following economic year, 2006-2007 has already been set.
 

In

view of these grounds alone, the Constitutional Court has therefore

decided, pursuant to § 70 par. 1 of the Act on the Constitutional Court,

to annul § 3 of Government Regulation No. 548/2005 Sb., on Laying Down

certain Conditions for the Implementation of Measures of the Common

Organization of the Markets in the Sugar Sector, due to its conflict

with Art. 1 par. 2, Art. 10a and Art. 78 of the Constitution of the

Czech Republic, as of the day this judgment is published in the

Collection of Laws.

Notice:  A decision of the Constitutional Court cannot be appealed.

 

Brno, 8 March 2006