2008/01/29 - Pl. ÚS 69/06: Judicial Fees

29 January 2008

HEADNOTES

The

Constitutional Court comprehensively considered the question of

constitutional interpretation of letter a) point 2. of item 14a of the

price list of fees in judgment file no. I. ÚS 664/03. In the

introduction it referred to its previous case law on the duty to pay

fees (file no. IV. ÚS 162/99), where it emphasized that “the regulation

of the duty to pay fees, or exemption from it, implemented by Act no.

549/1991 Coll., on Court Fees, as amended by later regulations, is one

of the fundamental instances that creates conditions for the right to

judicial protection under Art. 36 par. 1 of the Charter.” In judgment

file no. I. ÚS 664/03 it then concluded from that thesis that “a general

court’s excess in deciding on the amount of a fee under Act no.

549/1991 Coll. can become so great that it also interferes in the

fundamental right under Art. 36 par. 1 or 2 of the Charter.” Therefore,

it ruled out as unconstitutional the alternative interpretation

permitting cumulation of court fees when applying letter a) point 2. of

item 14a of the price list of fees: “The interpretation of Act no.

549/1991 Coll., under which a party to a proceedings is required to pay a

court fee for all administrative decisions that are factually and

legally completely identical, concern the same parties, and are issued

the same day, by the same administrative body, is not only

disproportional, but also unconstitutional. In Art. 36 par. 2, the

Charter of Fundamental Rights and Freedoms provides the principle that

anyone who claims that his rights were infringed by a public

administration body can turn to a court to review the legality of that

decision. In view of that article of the Charter, the steps taken by the

municipal court substantially limited the complainant’s access to the

court.”

In

the cited decisions 1 Afs 127/2005-105 a 2 As 53/2004-76, in accordance

with tradition, doctrine, and the constitutional principle of

protecting freedom, the Supreme Administrative Court stressed the

importance of the dispositive principle in administrative court

proceedings, and within that the plaintiff’s right to define the subject

matter of the proceeding, i.e. including by the cumulation of contested

administrative decisions. In this regard, in addition to the protection

of freedom and autonomy of will, it pointed to the rationality of that

procedure, to the principle of procedural efficiency. The Constitutional

Court fully agrees with the understanding of both principles, the

dispositive principle and the principle of procedural efficiency, as

thus analyzed.

The

permissibility of objective cumulation in the statement of claim of a

petition also corresponds to the purpose of the legal institutions of

joining or separating matters (§ 39 of the Administrative Procedure

Code). Thus, if on the one hand the petitioner’s autonomy of will,

reflected in application of the dispositive principle, is protected, on

the other hand the homogeneity of court proceedings is also protected,

by the institution of separating matters under § 39 par. 2 of the

Administrative Procedure Code, under which, if one complaint is directed

against several decisions, the panel chairman may, by resolution,

separate out each such decision for separate handling, if a joint

proceeding is not possible or suitable. A joint proceeding is possible

and suitable in the case of matters that are factually and legally

either identical or analogous and that concern the same parties. In this

regard, the Supreme Administrative Court’s reasoning in decision ref.

no. 1 Afs 24/2005-70 is not aimed at the non-acceptability of procedure

under § 39 par. 2 of the Administrative Procedure Code, but at the

failure to observe the safeguards that that provision establishes.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Constitutional Court, consisting of Stanislav Balík, František Duchoň,

Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimír

Kůrka, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel

Rychetský, Miloslav Výborný and Eliška Wagnerová, ruled on 29 January

2008 on a petition from the Municipal Court in Prague seeking the

annulment of item 14a point 2. let. a) of the appendix to Act no.

549/1991 Coll., on Court Fees, as amended by later regulations,

expressed by the words: “For a complaint, or other petition to open

proceedings in matters of the administrative judiciary a) against a

decision by an administrative body, CZK 2,000,” as follows:


The petition is denied.


REASONING


I.
Definition of the Matter and Recapitulation of the Petition
 

On

21 September 2006 the Constitutional Court received a petition from the

Municipal Court in Prague, seeking the annulment of item 14a point 2.

let. a) of the appendix to Act no. 549/1991 Coll., on Court Fees, as

amended by later regulations, expressed by the words: “For a complaint,

or other petition to open proceedings in matters of the administrative

judiciary a) against a decision by an administrative body, CZK 2,000.”
 

The

petitioner filed the petition under § 64 par. 3 Act no. 182/1993 Coll.,

as amended by later regulations, after it concluded, in connection with

its decision-making activity in accordance with Art. 95 par. 2 of the

Constitution and § 48 par. 1 let. a) of the Administrative Procedure

Code, that item 14a point 2. let. a) of the appendix to the Act on Court

Fees, which is to be applied in resolving the matters file no. 9 Ca

52/2006, 9 Ca 53/2006, 9 Ca 54/2006, 9 Ca 55/2006 and 9 Ca 56/2006, is

inconsistent with Art. 36 par. 1 of the Charter of Fundamental Rights

and Freedoms (the “Charter”) and Art. 1 of the Constitution.
 

In

the matters file no. 9 Ca 52-56/2006 the Municipal Court in Prague is

ruling on five complaints by the company FAD, a. s., with its registered

address at Václavské nám. 1/846, Prague 1, against the Financial

Directorate for the Capital City of Prague, whereby it seeks the

annulment of 162 decisions by the defendant, which denied appeals

against assessment of real estate transfer tax issued by the Financial

Office for Prague 5. These decisions did not give the plaintiff in tax

proceedings the right to exemption from real estate transfer tax under §

20 par. 7 let. a), b) of Act no. 357/1992 Coll., on Inheritance and

Gift Tax and on Real Estate Transfer Tax, which it applied on the

transfer of residential and non-residential units in precisely

identified real estate, where the purchase contracts with the relevant

buyers – individuals and legal entities – are from various dates, and

the legal effects of the registration of ownership arising from these

contracts also always arose at different moments (dates). The

administrative decisions on tax assessment, as well as the appeal

decisions in the administrative proceedings, were issued by the

financial authorities as independent decisions, factually and legally

evaluating the particular transfers. Within its discretion the plaintiff

contested 162 administrative decisions in 5 complaints aimed against

those administrative decisions that correspond to a particular

transferred item (e.g., a flat with non-residential premises) or only

non-residential premises of a particular kind (e.g. a cellar, or a

garage).
 

At the beginning of

the reasoning in the petition to annul the statutory provision in

question, the Municipal Court in Prague refers to one of the conditions

for filing complaints before an administrative court, fulfilling the

duty to pay fees under Act no. 564/1991 Coll., on Court Fees, as amended

by later regulations. Under § 1 let. a) of the Act, court fees are

charged for proceedings before the courts of the Czech Republic, for

services listed in the price list of court fees, and in matters for the

administrative judiciary, under item 14a point 2. let. a) of the price

list of court fees, which is an appendix to the Act on Court Fees, a

court fee of CZK 2,000 is set for a complaint against a decision by an

administrative body. According to the petitioner, in matters where the

plaintiff contests more than one administrative decision, it is an open

question what service actually is a complaint under item 14a point 2.

let. a) of the price list of court fees. In other words, whether this

service is, purely formally, without regard to the content and

circumstances leading to the issuance of an administrative act, a

written filing entitled “complaint,” or whether a complaint is every

complaint item made in such a written filing, because that, if it is

directed against another decision, must also be a complaint. Here the

petitioner points out that in the administrative courts a proceeding

before an administrative court is defined not only by the group or

parties to the proceedings, the plaintiff and the administrative body

that made a decision at the 2nd level of an administrative proceeding,

but also by the subject matter of the proceedings, which is always

autonomously the individual, independent administrative decision,

because the issue is the evaluation of whether the decision was legal,

substantively and procedurally.
 

As

part of the grounds for its active standing in a proceeding on the

review of norms, the Municipal Court points out that the statutory

provision of item 14a point 2. let. a) of the price list of court fees

is supposed to be applied in these legal matters as a prerequisite for

processing complaints.
 

However,

determination of the amount of a court fee in these proceedings depends

on the choice of one of two alternative interpretations of item 14a

point 2. let. a) of the price list of court fees. In weighing them, the

petitioner states that the fee amount set according to the number of

written filings would not correspond to the actual number and scope

according to the content of the complaint and proceedings conducted

under § 65 et seq. of the Administrative Procedure Code, and would

depend purely on the plaintiff’s decision how many complaints – written

filings – to use to exercise his right to judicial protection against a

certain number of administrative decisions, so the fees for the

proceedings would be based on the plaintiff’s decision, regardless of

the subject matter of the proceedings. By separating the petitions into

individual complaints within his discretion regarding petitions the

plaintiff would himself set the amount of court fees. The petitioner

considers this consequence of the plaintiff’s dispositive authority to

violate the constitutional principle of equality (with reference to Art.

4 par. 1 of the Charter), because, in its opinion, this would create

inequality in the right to access to courts. For that reason, in

analogous cases the Municipal Court in Prague considered that it is not

decisive for the duty to pay fees how a complaint is filed, whether

matters are related, whether they relate to the same parties, whether

the court will review and decide them on the basis of the same factual

and legal analysis, or whether the contested decisions by administrative

bodies were or were not issued on the same date, but, under item 14a

point 2. let. a) of the price list of court fees, in connection with § 1

let. a) of the Act on Court Fees, it charged court fees for each

complaint item directed against one independent administrative decision.
 

However,

this procedure followed by the court was not found constitutional by

Constitutional Court judgment file no. I. ÚS 664/03. After restating the

content of that judgment, as well as corresponding decisions by the

Supreme Administrative Court, ref. no. 2 As 53/2004-76 a ref. no. 1 Afs

127/2005-105, the Municipal Court in Prague states that, because the

procedural steps on the issue of the duty to pay fees and the

substantive essence of the dispute are absolutely comparable, in these

matters cited above, with regard to which it is filing this petition to

annul item 14a point 2. let. a) of the appendix to the Act on Court

Fees, it feels bound by the opinion of the Constitutional Court, which

rejects the interpretation that a party to a proceeding is required to

pay a court fee for a complaint against each individual administrative

decision.
 

Thus, if the

Constitutional Court does not consider it constitutional, in the

administrative courts, to charge a court fee of CZK 2,000 for a

complaint against every administrative decision, and the law provides no

other arrangement for charging court fees in administrative court

matters, then, according to the Municipal Court, there is no choice but

to conclude that item 14a point 2. let. a) of the price list of court

fees, which must be applied only in connection with § 1 let. a) of the

Act on Court Fees, is unconstitutional. According to the petitioner,

this conclusion also follows from the Constitutional Court’s arguments

in judgment file no. I. ÚS 664/03, according to which, the procedure

applied by the Municipal Court led to a disproportionate fee in relation

to the amount of tax assessed (40% of the total tax assessed). However,

in comparison to the adjudicated matter, the petitioner disputes that

argument, because here the total amount of the court fee (CZK 324,000)

appears very proportionate in relation to the total amount of taxes

assessed, determined by the sum of the individual assessed taxes (each

individual tax in the amount of tens of thousands, or thousands, or a

million crowns). According to the petitioner, the criterion of

disproportion between the amount of a court fee and the possible result

of a proceeding cannot be applied, for example, in a proceeding on

review of administrative decisions in matters of misdemeanors, because,

in view of the amount of a fine under Act no. 200/1990 Coll., on

Misdemeanors, this amount is lower than a court fee. Peripherally to the

merits of the compared matters, the Municipal Court in Prague points to

the Constitutional Court’s different view of the subject matter in an

administrative proceeding, insofar as judgment file no. I. ÚS 664/03

argues on the basis of a “commercial case,” and further states that it

originally considered it clear that under the current wording of item

14a point 2. let. a) of the price list of court fees, only an

administrative decision can be considered to be a measure of payment of a

court fee, because that price list item concerns the administrative

courts, where the subject matter of a review proceeding is an individual

administrative act, and the court reviews not only substantive

legality, but also the formal elements of the administrative act that

was issued. For that reason, it handles individual tax decisions

procedurally in independent proceedings as an administrative case, or a

case of issuing an individual administrative act, which is why, in terms

of a court fee, it does not consider a complaint against several

decisions to be one commercial case, based on the factual and legal

issues in the relationships that were the basis for issuing the tax

decisions. Tax administrators issue tax assessments independently, and

the assessments are independent grounds for execution of decisions.
 

However,

according to the petitioner, in terms of the legal opinion in judgment

file no. I. ÚS 664/03, the text of the statutory regulation in question

does not express the viewpoints raised by the Constitutional Court. The

Municipal Court in Prague believes that the situation that arose after

the Court adopted judgment file no. I. ÚS 664/03 does not permit

assessing a court fee for a complaint against each administrative

decision in this matter of five complaints against 162 administrative

decisions, because that would be unconstitutional. However, the

Municipal Court believes that it does not have the ability to assess the

plaintiff a court fee, even from a formal standpoint, according to the

number of complaints, because it is responsible for charging a court fee

in the correct amount, and that amount cannot be determined by the will

of the plaintiff and the way in which the plaintiff chooses to file

complaints, and Act no. 549/1991 Coll., as amended by later regulations,

does not provide other criteria for charging court fees. At the same

time, the Court states that it is bound by the legal opinion of the

Constitutional Court as regards reviewing the connection between the

amount of the court fee and the subject matter of the proceeding, i.e.

as regards the need to decide on the amount of the fee case by case,

which, however, could mean conflict with the principle of equality and

predictability of law, as well as the principle of efficient proceedings

(given the need, in such a case, to be familiar with the adjudicated

matter in great detail at the point when a proceeding is opened).
In

view of these reasons, the petitioner takes the position that the

statutory regulation of court fees in the administrative courts should

precisely set the rules, for which service, or what proceeding, and in

what amount a plaintiff can be charged a court fee, so that a court,

when applying the relevant provision of the law, would not be exposed to

various alternative interpretations. As the Municipal Court in Prague,

based on its belief on the basis of the cited Constitutional Court

judgment, found itself in a procedural situation where it is not certain

what amount of court fees it is to charge the plaintiff for the

complaints filed so that it will fulfill its statutory obligation to

charge court fees under item 14a point 2. let. a) of the price list of

court fees in connection with § 1 let. a) Act no. 549/1991 Coll., and if

it is, under Art. 95 par. 2 of the Constitution, bound by the law, and

at the same time by the imperative to act in a constitutional manner, it

therefore concluded that the legal regulation of item 14a point 2. let.

a) of the price list of court fees is unclear, because it permits

various interpretations of the amount of a court fee for a complaint

against a decision by an administrative body, and, as a result, makes

the parties to a proceeding unequal in their constitutionally guaranteed

right to access to the court under Art. 36 par. 1 of the Charter, and

at the same time violates one of the fundamental principles of a

law-based state, the principle of legal certainty and confidence in the

law under Art. 1 par. 1 of the Constitution, which is guaranteed by the

principle of predictability of the law, its understandability, and the

principle of the internal consistency of the law.
 

For

these reasons, the Municipal Court in Prague proposes that the

Constitutional Court, after conducting proceedings, decide in a judgment

that item 14a point 2. let. a) of the appendix to Act no. 549/1991

Coll., on Court Fees, as amended by later regulations, expressed by the

words: “For a complaint, or other petition to open proceedings in

matters of the administrative judiciary a) against a decision by an

administrative body, CZK 2,000,” be annulled as of the date that the

Constitutional Court specifies in the judgment.
 


II.
Recapitulation of the Essential Parts of the Briefs from the Party to the Proceeding, and the Petitioner’s Response
 

Pursuant

to § 42 par. 4 and § 69 Act no. 182/1993 Coll., on the Constitutional

Court, as amended by later regulations, the Constitutional Court sent

the petition to the Chamber of Deputies. In the opening of his brief of 1

November 2006, the Chairman of the Chamber of Deputies of the

Parliament of the Czech Republic, Ing. Miloslav Vlček, states that item

14a, including the contested point 2. let. a), was inserted into the

price list of court fees by an accompanying statute to the

Administrative Procedure Code, which was published as no. 151/2002

Coll., and the bill was presented to the Chamber of Deputies by the

government on 4 October 2001, and discussed as publication 1081. As

regards the question of whether the contested statutory provision is

consistent with the constitutional order, the brief refers to the

explanatory report to the bill, according to which “the proposed

regulation is consistent with the constitutional order of the Czech

Republic and international treaties by which the Czech Republic is

bound.” The first reading, as the brief states, was held on 25 October

2001 at the 39th session of the Chamber of Deputies; in vote no. 234 the

bill was assigned to the constitutional law committee, and of the 117

deputies present 109 voted in favor, and none against. The

constitutional law committee discussed publication 1081 at its 97th

meeting, on 18 January 2002; in contrast to the original wording of the

government bill, containing an amount of CZK 5,000, in its resolution

the constitutional law committee proposed lowering the amount to CZK

2,000 (committee resolution no. 235 was subsequently discussed as

publication 1091/1). The second reading took place at the 46th session

of the Chamber of Deputies; general debate of the bill took place on 30

January and 8 February 2002, and detailed debate followed on 8 February.

The amending proposals arising from it were combined in publication

1081/2. The third reading took place at the same, i.e. 46th session of

the Chamber of Deputies, on 15 February 2002; the final resolution,

whereby the Chamber of Deputies accepted the bill, based on publication

1081, as amended by the amending proposals, was adopted when, out of 159

deputies present, 149 voted in favor, and none against. The bill was

then passed to the Senate, which did not discuss it. The President of

the Republic signed the Act on 28 March 2002.
 

Based

on the foregoing, the Chairman of the Chamber of Deputies states that

the Act was approved by the required majority of deputies in the Chamber

of Deputies, was signed by the appropriate constitutional authorities,

and was duly promulgated.
 

In

view of the amending proposals adopted by the Chamber of Deputies,

which affected the contested provision only as regards the proposed

amount, and in view of the explanatory report, the brief states that the

legislative assembly acted in the belief that the adopted Act was

consistent with the Constitution and the legal order, and that it is up

to the Constitutional Court, in accordance with “the constitutional

complaint from the Municipal Court in Prague” (sic!) and its petition to

annul item 14a point 2. let. a) of the price list of court fees of Act

no. 549/1991 Coll., on Court Fees, as amended by Act no. 151/2002 Coll.,

the part expressed by the words: “For a complaint, or other petition to

open proceedings in matters of the administrative judiciary a) against a

decision by an administrative body, CZK 2,000,” to review the

constitutionality of the Act and issue the appropriate decision.
 

In

conclusion the Chairman of the Chamber of Deputies points to the less

than precisely formulated petition from the Municipal Court in Prague,

which proposes annulment of the words “For a complaint, or other

petition to open proceedings in matters of the administrative judiciary

a) against a decision by an administrative body, CZK 2,000,” but in Item

14a point 2. the phrase is: “For a complaint, or other petition to open

proceedings in matters of the administrative judiciary,” and the text

is then divided into letters a) to d). According to the party to the

proceeding, deleting the words cited above would leave in this phrase in

Item 14a point 2. only the words “or other petition,” and the text of

letters b) to d), which, in practice, would lead to confusion and make

the provision inapplicable.
 

Pursuant

to § 42 par. 4 a § 69 Act no. 182/1993 Coll., as amended by later

regulations, the Constitutional Court also sent the petition to the

Senate of the Parliament of the Czech Republic.
 

In

the introduction of his brief of 7 November 2006, Senate Chairman MUDr.

Přemysl Sobotka, in agreement with the brief from the chairman of the

Chamber of Deputies, points to the incorrect formulation of the

statement of claim in the petition, and points out that what would

remain after derogation would be ungrammatical (e.g., the remaining

words “or other” would obviously be out of place), and technical

legislative inconsistencies [it is proposed to annul letter a) of item

14a point 2. including the words “For a complaint, or other petition to

open proceedings in matters of the administrative judiciary,” although

letter a) does not contain those words at all], and finally

inconsistencies in content [if the word “complaint” were deleted, then

for further interpretation letter d) point 2. of item 14a, would not be

fully covered, i.e. “other cases” which now includes, eg.. a complaint

about inactivity]. The Senate then adds that its brief will cover an

alternative to the petition to annul letter a) point 2. of item 14a of

the price list of fees.
 

Regarding

the genesis of the contested statutory provision, the brief states that

item 14a of the price list of fees was adopted during a period of

legislative discussion of reform of the administrative judiciary in 2002

[with the exception of the newly inserted point 2. let. d), which was

inserted in that point by Act no. 159/2006 Coll., on Conflict of

Interest]. It was implemented by Act no. 151/2002 Coll. The bill of this

Act was passed to the Senate on 25 February 2002, the Senate

organization committee passed the bill, as no. 224, to the

constitutional law committee, as the guarantee committee, and to the

committee for local development, public administration, and the

environment. Both committees, in resolutions no. 83 of 6 March 2002, and

no. 94 of 12 March 2002, respectively, recommended that the Senate

approve the version of the bill passed to it by the Chamber of Deputies.

On 21 March 2002 the Senate addressed the bill in a plenary session at

the 14th session of its third term of office, and in resolution no. 327

it expressed its intent not to discuss it. In vote no. 95, 38 of the 43

senators present were in favor of the bill, and one against.
According

to the brief, as regards the content of the contested provision, no

problems were raised during the legislative process in the Senate, which

is also shown by the form in which the bill was adopted, which is de

facto adopting a bill by the Senate in a plenary session without debate.

The Senate concludes from this that it discussed the bill within the

bounds of its constitutional power, and decided as stated above.
 

As

regards the matter itself, the Senate’s brief is based on

interpretation of § 1 of the Act on Court Fees. It states that the text

prima facie permits a thorough distinction between a proceeding fee, a

court service fee, and a court administration service fee, and that, in

response to non-uniform application in practice, the Supreme Court

considered this distinction in its opinion of 4 July 1996. file no. Cpjn

68/95 and Opjn 1/95. It then summarizes the developments in regulation

of court fees, beginning with Imperial Order no. 279/1915 Imperial Laws,

through Act no. 173/1950 Coll., Minister of Finance Directive no.

3/1951 Coll., and no. 22/1959 Coll., Act no. 116/1966 Coll., Act no.

147/1984 Coll. up to Act no. 549/1991 Coll., and its amendment by Act

no. 255/2000 Coll. According to the party, as much as the first of these

regulations can be described as well organized and relatively highly

specific, regulations from the period after 1948 were typically more

generally, unclear, and combined various legal institutions (e.g. the

legal framework from 1951 and 1959 mixed fees for a complaint or

petition with fees for various extracts, certifications, etc.).
In

connection with § 1 of Act no. 549/1991 Coll., as amended by Act no.

255/2000 Coll., the brief from the Senate chairman states that item 14a,

which includes the affected provision, is placed in the fee list among

fees charged for a proceeding, though neither the wording of § 1 let.

a), under which fees for proceedings are charged “for services listed in

the price list of fees,” not the introductory sentence of point 2. of

item 14a of the price list of fees, stating “for a complaint or another

petition to open proceedings in matters of the administrative

judiciary,” nor the two taken together, can be read to mean that the

proceeding as a whole should not be subject to fees. The Senate believes

that it specified the rate of the fee based on the requirement of

making judicial protection available, the nature of the adjudicated

matter, and the demands on the deciding body – the court. In view of the

fact that in its petition the petitioner weights the terms

“proceeding,” “complaint” and “administrative decision contested by a

complaint,” the Senate is of the opinion that the legal construction of

the fee law remains essentially unchanged despite the different terms

used over time, and its basis is separation into fees for a proceeding

and a fee for service items, taking into account the difference between

services performed by a court and those performed by the judicial

administration. For that reason, it formulates the following

interpretation of the provision in question: in a court proceeding

before an administrative court, against a decision by an administrative

body, a fee is charged the performance of the judicial function in one

matter, a fee of CZK 2,000 payable when filing a complaint.
 

The

Senate emphasizes the freedom of expression of a subject of law,

wherefore it considers it correct to tie the court fee to the complaint

(an act performed at the discretion of the plaintiff), and not to

conceive of it as an economic contribution to the state’s expenses for

its official activities. The plaintiff’s discretion includes his right

to define the subject matter of proceedings in his filing (e.g., to file

one complaint with an administrative court, requesting the review of

several administrative decisions). On the other hand, the Senate (with

reference to decisions of the Supreme Administrative Court, ref. no. 2

As 53/2004-76 and ref. no. 1 Afs 127/2005-105) points out that the court

is entitled to join matters to be handled jointly, or separate out for

individual proceedings several administrative decisions contested in one

complaint, if a joint proceeding is not possible or suitable (§ 39 par.

2 of the Administrative Procedure Code). The brief concludes from this

analysis that in a matter where several decisions by administrative

bodies are contested in a single complaint, the decisions are factually

and legally identical, and they concern the same parties, one proceeding

must be conducted, for which one rate is charged – one proceedings fee,

per the price list. In this regard, it emphasizes the relationship

between fulfilling the duty to pay fees and the guarantee of access to

the court.
 

Based on the

analogous elements between a civil court proceeding and the

administrative courts, the Senate agrees with the doctrinaire position

on the purpose of court fees (V. Hora, Československé civilní právo

procesní. Díl II. [Czechoslovak Civil Procedure Law. Part II.], Prague

1923, p. 71), that on the one hand the judiciary “may not be a

profit-making enterprise,” and on the other hand there should not be

“litigiousness, abuse of the court and court proceedings, and thus

damage to the whole.” In other words, a court fee should function as

motivation for a potential plaintiff (to not abuse the judiciary), and

in terms of the society, the fee plays the role of a partial economic

equivalent for the activities of the court (the performance of the

judiciary). According to the Senate, this legal conclusion also follows

from the case law of the European Court of Human Rights (Buffalo, S.r.l.

in liquidation v. Italy). Based on the proportionality of the

relationship of these purposes, the Chairman of the Senate also

considers the amount of the court fee (i.e. CZK 2,000) to be

appropriate.
 

Regarding the

objection that the petitioner is not clear, the Senate states that, in

its opinion, the statutory rules in this matter are sufficiently clear,

understandable, and sufficiently general that they permit the court to

apply the norm case by case, yet leave sufficient room for discretion.

It also believes that Constitutional Court judgment file no. I. ÚS

664/03, according to which “interpretation of Act no. 549/1991 Coll.,

under which a party to a proceeding is required to pay a court fee for

each administrative decision that is factually and legally completely

identical, concerning the same parties, and are issued on the same day

by the same administrative body, is not only disproportional, but also

unconstitutional,” is a clear and understandable starting point for

resolving any doubts in interpretation. Based on this, it points to the

principle of constitutional interpretation of simple law, which should

be the starting point for the petitioner’s actions in this matter.
In

conclusion, the brief states that it is fully up to the Constitutional

Court to “evaluate the constitutionality of the petition to annul the

contested provisions.”
 

In

its response to the brief from the Chamber of Deputies, delivered to the

Constitutional Court on 17 January 2008, the petitioner emphasizes that

its petition is based on Art. 11 par. 5 of the Charter, under which

fees can be imposed only on the basis of law, and on Art. 37 par. 3 of

the Charter, under which all parties in a proceeding are equal, from

which it concludes that even in the case of a complaint against more

than one decision, the level of financial expense for the dispute must

be determined independently of the judgment of the judge, derived from

studying the elements of the matter. In the response, the Municipal

Court in Prague illustrates the argument based on equality of parties to

a proceeding with examples from its own practice. It also poses the

question whether, if setting the amount of the court fee depends on the

court’s deliberation, the Ministry of Finance, as a person participating

in the proceeding, should not have, under § 34 par. 1 of the

Administrative Procedure Code, an opportunity to express its opinion on

each amount of a court fee. Regarding the formulation of the statement

of claim, the petitioner emphasizes that it is within the powers of the

Constitutional Court, under § 70 par. 1 Act no. 182/1993 Coll., to

decide that a statute or other legal regulation, or the individual

provisions thereof, are annulled as of the date that it sets in a

judgment, which is an instrument for preventing undesirable

disproportion. In the conclusion of the response it states that it

maintains its petition, and does so with reference to the newer case law

of the Constitutional Court (file no. III. ÚS 464/06).
 


III.
Waiver of a Hearing
 

Under

§ 44 par. 2 Act no. 182/1993 Coll., as amended by later regulations,

the Constitutional Court may, with the consent of the parties, waive a

hearing, if it cannot be expected to clarify the matter further. In view

of the fact that both the petitioner, in its filing of 22 January 2008,

and the parties to the proceeding, in letters from the Chairman of the

Chamber of Deputies of the Parliament of the Czech Republic, of 8

January 2008, and from the Chairman of the Senate fo the Parliament of

the Czech Republic, of 7 January 2008, agreed to waive a hearing, and in

view of the fact that the Constitutional Court believes that a hearing

cannot be expected to clarify the matter further, a hearing was not held

in this matter.
 


IV.
Statement of Claim in the Petition, and the Wording of the Contested Legal Regulation
 

In

its decision making, the Constitutional Court is bound by the scope of

the filed petition, and cannot step outside its bounds (ultra petitum)

in its decision (see, e.g. decisions in the matters file no. Pl. ÚS

16/94, Pl. ÚS 8/95, Pl. ÚS 5/01, Pl. ÚS 7/03, and Pl. ÚS 10/03). Insofar

as the Municipal Court in Prague proposes annulling item 14a point 2.

let. a) of the appendix to Act no. 549/1991 Coll., on Court Fees, as

amended by later regulations, expressed by the words: “For a complaint,

or other petition to open proceedings in matters of the administrative

judiciary a) against a decision by an administrative body, CZK 2,000,”

although the entire content of the petition is directed against letter

a) point 2. of item 14a of the price list of fees, the Constitutional

Court considers the definition of the statement of claim to be an

obvious error, and if it went outside that in its deliberations, that

was not action ultra petitum, but the removal of obvious inconsistency

between the content and citation of the legal regulation identifying the

statement of claim in the petition (similarly, see judgment file no.

Pl. ÚS 38/06). Otherwise, if the statutory provision identified by the

petitioner were annulled, the remaining part of item 14a point 2. of the

price list of fees would cease to make sense.
 

Letter

a) point 2. of item 14a of the price list of fees, which is an appendix

to Act no. 549/1991 Coll., on Court Fees, as amended by later statutes,

reads: “a) against a decision by an administrative body, CZK 2,000.”
 


V.
Conditions for Petitioner’s Active Standing
 

The

petition to annul letter a) point 2. of item 14a of the price list of

fees, which is an appendix to Act no. 549/1991 Coll., on Court Fees, as

amended by later statutes, was filed by the Municipal Court in Prague

under § 64 par. 3 Act no. 182/1993 Coll., as amended by later

regulations.
As already stated in the narration, in the matters file

no. 9 Ca 52-56/2006 the Municipal Court in Prague is ruling on five

complaints by the company FAD, a. s., with its registered address at

Václavské nám. 1/846, Prague 1, against the Financial Directorate for

the Capital city of Prague, whereby it seeks the annulment of 162

decisions by the defendant, which denied appeals against assessment of

real estate transfer tax, issued by the Financial Office for Prague 5.

These decisions did not give the plaintiff in tax proceedings the right

to exemption from real estate transfer tax under § 20 par. 7 let. a), b)

Act no. 357/1992 Coll., on Inheritance and Gift Tax and on Real Estate

Transfer Tax, which it applied on the transfer of residential and

non-residential units in precisely identified real estate.
 

The

Municipal Court in Prague did so under § 64 par. 3 Act no. 182/1993

Coll., as amended by later regulations, in connection with its

decision-making activity, in accordance with Art. 95 par. 2 of the

Constitution and § 48 par. 1 let. a) of the Administrative Procedure

Code, after concluding that letter a) point 2. of item 14a of the price

list of fees, which is an appendix to Act no. 549/1991 Coll., on Court

Fees, as amended by later statutes, which is to be applied in resolving

the matter file no. 9 Ca 52-56/2006, is inconsistent with Art. 36 par. 1

of the Charter and Art. 1 of the Constitution.
 

The

procedural condition for the active standing of a general court under §

64 par. 3 Act no. 182/1993 Coll., on the Constitutional Court, as

amended by later regulations, is a relationship between the law, or the

individual provision, that is proposed to be annulled, and the subject

matter of the core proceeding, such as establishes decision-making

grounds for a general court to evaluate the matter.
As paying the

court fee is a condition for handling a matter (§ 9 of the Act on Court

Fees), we can state that the conditions for the petitioner’s active

standing in a proceeding on review of norms have been met.
 


VI.
Constitutionality of Competence and the Legislative Process
 

In

accordance with § 68 par. 2 Act no. 182/1993 Coll., as amended by later

regulations, in proceedings on review of norms the Constitutional Court

is required to review whether the contested act, its individual

provision, or another legal regulation or its individual provision, was

adopted and issued within the bounds of constitutionally provided

competence and in a constitutionally prescribed manner.
It was

determined from Chamber of Deputies publications and stenographic

records, as well as the brief from the party to the proceedings, that

the Chamber of Deputies approved the bill of the contested Act, i.e. Act

no. 151/2002 Coll., in the 3rd reading, at its 46th session, on 15

February 2002, in resolution no. 2106, when, out of 159 deputies, 149

voted in favor and none were against.
The Senate addressed the bill

in a plenary session on 21 March 2002, at its 15th session of its third

term of office, and in resolution no. 327 it expressed its intent not to

discuss it. In vote no. 95, out of 43 senators present, 38 were in

favor and one was against.
The Act was signed by the appropriate

constitutional officials, and was duly promulgated as no. 151/2002 Coll.

in part 61 of the Collection of Laws, which was distributed on 17 April

2002, and, under Art. XXVII, the provision relevant for the

Constitutional Court’s decision, Art. X point 18. went into effect on 1

January 2003.
 


VII.
Consistency of the Contested Statutory Provisions with the Constitutional Order
 

The

most general expression of the purpose and meaning of court fees is

contained in the explanatory report to the government draft of the Act

on Court Fees (publication 476), adopted by the Czech National Council

on 5 December 1991, and promulgated as no. 549/1991 Coll.: “The task of

legal regulations that govern the assessment and collection of court

fees is also, through appropriate levels of fees, to party cover the

expenses that the state incurs by operating the judiciary, and, at the

same time, to limit the filing of certain incompletely formulated

petitions to open court proceedings. It is also their role to provide

incentives for obligated parties to voluntarily fulfill their

obligations vis-à-vis their fellow citizens and other subjects.”
 

From

a comparative law aspect, the German Federal Constitutional Court

emphasizes the first of these purposes of court fees (BVerfGE 50, 217

[226]). It states that “a fee is a public law financial performance that

is unilaterally imposed on the fee payer on the grounds of public law

performance vis-à-vis an individual (by a public law norm or a similar

sovereign act) and is intended to fully or partly cover the expenses in

connection with that performance.”
 

The

meaning and purpose of letter a) point 2. of item 14a of the price list

of fees, which is an appendix to Act no. 549/1991 Coll., on Court Fees,

as amended by Act no. 151/2002 Coll., is to project the adoption of the

Administrative Procedure Code into the regulation of court fees.
 

The

petitioner’s basic objection that the contested legal provision is

unconstitutional is the existence of several alternative interpretations

of it, and the lack of clear and definite criteria for choosing among

them. Moreover, the petitioner does not accept the arguments contained

in Constitutional Court judgment file no. I. ÚS 664/03, that setting the

amount of a court fee under letter a) point 2. of item 14a of the price

list of fees by imposing a fee for a complaint for each contested

administrative decision led to a disproportionate fee in relation to the

tax assessed, and the petitioner cites examples where such a

disproportion does not occur.
 

The

Constitutional Court comprehensively considered the question of

constitutional interpretation of letter a) point 2. of item 14a of the

price list of fees in judgment file no. I. ÚS 664/03. In the

introduction it referred to its previous case law on the duty to pay

fees (file no. IV. ÚS 162/99), where it emphasized that “the regulation

of the duty to pay fees, or exemption from it, implemented by Act no.

549/1991 Coll., on Court Fees, as amended by later regulations, is one

of the fundamental instances that creates conditions for the right to

judicial protection under Art. 36 par. 1 of the Charter.” In judgment

file no. I. ÚS 664/03 it then concluded from that thesis that “a general

court’s excess in deciding on the amount of a fee under Act no.

549/1991 Coll. can become so great that it also interferes in the

fundamental right under Art. 36 par. 1 or 2 of the Charter.” Therefore,

it ruled out as unconstitutional the alternative interpretation

permitting cumulation of court fees when applying letter a) point 2. of

item 14a of the price list of fees: “The interpretation of Act no.

549/1991 Coll., under which a party to a proceedings is required to pay a

court fee for all administrative decisions that are factually and

legally completely identical, concern the same parties, and are issued

the same day, by the same administrative body, is not only

disproportional, but also unconstitutional. In Art. 36 par. 2, the

Charter of Fundamental Rights and Freedoms provides the principle that

anyone who claims that his rights were infringed by a public

administration body can turn to a court to review the legality of that

decision. In view of that article of the Charter, the steps taken by the

municipal court substantially limited the complainant’s access to the

court.”
 

The Constitutional

Court also confirmed that position in its other case law. In judgment

file no. II. ÚS 745/06 it stated that “a constitutional result of

interpretation of Act no. 549/1991 Coll. cannot be an interpretation

that a party to a proceeding is required to pay a court fee for all

administrative decisions, if these are decisions that are factually and

legally completely identical, concern the same parties, and are issued

on the same day by the same administrative body." In another judgment

about this issue, file no. I. ÚS 43/07 it stated the following: “If the

municipal court, in the contested decision, based on interpretation of

the relevant provisions of Act no. 549/1991 Coll., assessed the

plaintiff a court fee of CZK 2,000 for each individual administrative

decision contested by the administrative complaint, although all these

decisions concerned one case (an appeal against an assessment of

penalties), addressed the same legal issue, concerned only the

plaintiff, were issued on the same day by one and the same

administrative body, and contained the same legal reasoning, according

to the Constitutional Court that substantially limited the plaintiff in

access to the court, or, in light of Art. 36 par. 2 of the Charter of

Fundamental Rights and Freedoms, limited the plaintiff’s right to

judicial review of a decision by a public administration body.” Insofar

as the petitioner argues on the basis of judgment file no. III. ÚS

464/06, we can only state that, under § 23 Act no. 182/1993 Coll., that

decision was not sufficient to justify a change in the Constitutional

Court’s legal opinion on the adjudicated issue.
 

The

Supreme Administrative Court also considered the question of

interpretation of letter a) point 2. of item 14a of the price list of

fees in its case law. From the nature of a complaint as a dispositive

act, whereby the plaintiff turns to a court with a request for judicial

protection and defines the subject matter of the court proceedings, it

concluded in its decision ref. no. 1 Afs 127/2005-105 that the court has

an obligation to respect the circumstance whether the plaintiff, in the

complaint, contested one decision or several decisions, unless the

plaintiff’s procedural conduct is inconsistent with procedural

regulations. In other words, if objective cumulation is permissible, a

court is not entitled to mar the effects of the dispositive act by

separating matters out for independent treatment (in conflict with the

conditions in § 39 par. 2 of the Administrative Procedure Code) and thus

to violate the dispositive principle (on which the administrative

judiciary is built), an individual’s subjective right to have the

autonomy of his will respected, as well as the principle of procedural

efficiency. Based on this analysis of grounds for impermissible

procedure by a court, the Supreme Administrative Court, in decision ref.

no. 2 As 53/2004-76 concluded, among other things, the following

consequence, relevant for the adjudicated issue: “Where this procedure

is not justified, it burdens … the parties to a judicial dispute (for

example, by unjustified multiplication of court fees).”
 

In

proceedings on the review of whether letter a) point 2. of item 14a of

the price list of fees is consistent with the constitutional order, the

Constitutional Court found no reason to deviate from is previous case

law on this issue. It only adds the following:
 

The

Constitutional Court’s basic reasoning methods in proceedings on review

of a norm include the principle of giving priority to a constitutional

interpretation over derogation, under which, in a situation where a

certain provision of a legal regulation permits two different

interpretations, one consistent with the constitutional order and the

other inconsistent with it, grounds to annul the provision do not exist.

It is then the task of all state bodies, when applying that legal

regulation, to interpret it in a constitutional manner. This method is

based on the principle of separation of powers and the related principle

of restraint, i.e. the principle that if a constitutional situation can

be achieved by different means, the Constitutional Court chooses the

means that limits the legislative branch least.
 

The

Constitutional Court has subscribed to this principle in a number of

its decisions. It first did so in judgment file no. Pl. ÚS 48/95. It

then applied the principle of giving priority to a constitution

interpretation over annulment in a number of other decisions in

proceedings on review of norms (e.g. file no. Pl. ÚS 5/96, Pl. ÚS 19/98,

Pl. ÚS 15/98, Pl. ÚS 4/99, Pl. ÚS 10/99, Pl. ÚS 41/02, and Pl. ÚS

92/06).
 

In the cited

decisions, in accordance with tradition, doctrine, and the

constitutional principle of protecting freedom, the Supreme

Administrative Court stressed the importance of the dispositive

principle in administrative court proceedings, and within that the

plaintiff’s right to define the subject matter of the proceeding, i.e.

including by the cumulation of contested administrative decisions. In

this regard, in addition to the protection of freedom and autonomy of

will, it pointed to the rationality of that procedure, to the principle

of procedural efficiency. The Constitutional Court fully agrees with the

understanding of both principles, the dispositive principle and the

principle of procedural efficiency, as thus analyzed.
The

permissibility of objective cumulation in the statement of claim of a

petition also corresponds to the purpose of the legal institutions of

joining or separating matters (§ 39 of the Administrative Procedure

Code). Thus, if on the one hand the petitioner’s autonomy of will,

reflected in application of the dispositive principle, is protected, on

the other hand the homogeneity of court proceedings is also protected,

by the institution of separating matters under § 39 par. 2 of the

Administrative Procedure Code, under which, if one complaint is directed

against several decisions, the panel chairman may, by resolution,

separate out each such decision for separate handling, if a joint

proceeding is not possible or suitable. A joint proceeding is possible

and suitable in the case of matters that are factually and legally

either identical or analogous and that concern the same parties. In this

regard, the Supreme Administrative Court’s reasoning in decision ref.

no. 1 Afs 24/2005-70 is not aimed at the non-acceptability of procedure

under § 39 par. 2 of the Administrative Procedure Code, but at the

failure to observe the safeguards that that provision establishes.
 

Insofar

as the petitioner objects to judgment file no. I. ÚS 664/03 on the

basis of an example where the cumulate calculation of court fees does

not reach a disproportionate level, the Constitutional Court only

comments that in that judgment it only pointed out the possible negative

consequences of interpretation of letter a) point 2. of item 14a of the

price list of fees, as presented by the Municipal Court in Prague.
Thus,

the Constitutional Court considers the analysis of letter a) point 2.

of item 14a of the price list of fees, which is an appendix to Act no.

549/1991 Coll., on Court Fees, as amended by Act no. 151/2002 Coll.,

contained in the cited case law of the Constitutional Court and the

Supreme Administrative Court, to be constitutional, i.e. compatible both

with Art. 36 of the Charter, and with Art. 1 of the Constitution. This

fact establishes the grounds for applying the principle of priority for a

constitutional interpretation over derogation in the adjudicated

matter.
Based on the foregoing, the petition from the Municipal Court

in Prague, seeking the annulment of letter a) point 2. of item 14a of

the price list of fees, which is an appendix to Act no. 549/1991 Coll.,

on Court Fees, as amended by Act no. 151/2002 Coll., was denied [§ 70

par. 2 Act no. 182/1993 Coll.].

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


Brno, 29 January 2008