2008/12/02 - Pl. ÚS 12/08: Non-Applicability of Contested Provision

02 December 2008

HEADNOTES

If

the ordinary court submitting the petition to annul the statute or

individual provision thereof states unambiguously that it believes that

the contested provision is not only in coflict with constitutional order

but also with European Community law, then the petitioner should have

decided in the first place on the basis of the requirements laid down in

the judgment Simmenthal II concerning the non-applicability of a

contested provision due to its conflict with European Community law. The

Constitutional Court leaves it entirely to the discretion of the

ordinary court whether it will concern itself with reviewing the

conflict with European Community law of the statutory provision which it

should apply or will focus on the review of its conflict with the

constitutional order of the Czech Republic. If it primarily focuses on

the review of the conflict with European Community law and asserts, as

in this case, that the statutory provision under review is in conflict

therewith, it must draw from its conviction the consequences in accord

with the Court of Justice’s jurisprudence, that is, that the contested

provision not be applied.



CZECH REPUBLIC

CONSTITUTIONAL COURT

RESOLUTION

IN THE NAME OF THE CZECH REPUBLIC

 

The

Constitutional Court’s Panel IV, composed of its Chairman, Miloslav

Výborný and Justices Vlasta Formánková and Pavel Rychetský (the Justice

Rapporteur), on the petition of the Prague Municipal Court, on whose

behalf is acting JUDr. Eva Pechová, Panel Chairwoman at the Prague

Municipal Court, proposing the annulment of § 17 para. 4 of Act No.

231/2001 Sb., on the Operation of Radio and Television Broadcasting and

on Amendments to further Statutes, as subsequently amended, with the

participartion of the Assembly of Deputies and Senate of the Parliament

of the Czech Republic, decided as follows:


The petition is rejected on preliminary grounds.



REASONING


I.
Summary of the Petition
 

1.

With its petition, submitted pursuant to Art. 95 para. 2 of the

Constitution of the Czech Republic (hereinafter “Constitution”) and § 64

para. 3 of Act No. 182/1993 Sb., on the Constitutional Court, as

subsequently amended, and delivered to the Constitutional Court on 20

March 2008, the Prague Municipal Court (hereinafter also “petitioner”)

sought the issuance of a judgment annulling, on the day which the

Constitutional Court sets in its judgment, § 17 para. 4 of Act No.

231/2001 Sb., on the the Operation of Radio and Television Broadcasts

and on Amendments to further Statutes, as subsequently amended.

2.

The petitioner considers that the contested provision conflicts with

Art. 26 para. 1 of the Charter of Fundamental Rights and Basic Freedoms

(hereinafter “Charter”), as well as with provisions of European

Community law not specified in more detail.

3. The petitioner

stated that it is conducting a proceeding, file no. 5 Ca 168/2007, in

the matter of the company, T-Mobile Czech Republic, a. s., (hereinafter

"T-Mobile"), in which the plaintiff seeks the quashing of the decision

of the Council for Radio and Television Broadcasting (hereinafter

“Council”). In the contested decision, the Council rejected on the

merits T-Mobile’s request to be granted a license to broadcast programs

to mobil handsets in the DVB-H standard.

4. The contested Council

decision is based on § 17 para. 4 of Act No. 231/2001 Sb. (hereinafter

“the contested provision”). This provision precludes the grant of a

license to broadcast radio and television programs to an entrepreneur

responsible for a network of electronic communications. Since T-Mobile

is just such an entrepreneur, the Council rejected its application to be

granted a license, even though, according to the reasoning of its

decision, it had positively assessed T-Mobile’s project in respect of

all significant criteria.

5. According to the petitioner, such a

restriction is in conflict with Art. 26 para. 1 of the Charter, which

enshrines the freedom to engage in commercial or other economic activity

in a chosen field. The cited provision of the Charter envisages the

possibility to restrict by law the right to engage in certain

professions or activities, without specifying the aim of the

restriction; however, such restriction must pass the test of

proportionality (proportionality in the broader sense). The petitioner

based its conclusions on the criteria specified by the Constitutional

Court in its decisions. It expressly referred to Judgment No. Pl. ÚS

38/04 of 20 June 2006 (N 125/41 SbNU 551; 409/2006 Sb.).

6.

According to the petitioner, it can be presumed that the aim of the

contested provision is to prevent unequal economic competition. The

contested provision is said to prevent an entrepreneur providing an

electronic communications network from advantaging itself when diffusing

radio and television broadcasts, if it became the holder of a license

or registration for digital broadcasting. According to the petitioner,

however, this aim can be achieved in a less intrusive manner than by

means of a total prohibition of entrepreneurial activity in the given

domain for all subjects specified in this provision. It also refers to

T-Mobile’s arguments. According to it: “[T]he existing enactments

regulating economic competition and laying down contractual obligations

of entrepreneurs providing electronic communications networks constitute

a sufficient guarantee that entrepreneurial activity in this domain

ensures the equal status of individual broadcasters. For this reason,

the prescribed prohibition violates, in the petitioner’s view, the

principle of necessity.”

7. In addition to this, the contested

provision also violates the principle of proportionality in the narrow

sense, as it prevents admittance to commercial activity of a large

number of subjects, without such a restriction being necessary and

sufficiently justified by the public interest. As the petitioner states,

the term “provision of an electronic communications network” and

“electronic communications network” which are crucial for the

determination of the group of subjects whom the restrictions laid down

in the contested provision affect, are defined in Act No. 127/2005 Sb.,

on Electronic Communications, as subsequently amended. As follows from

the statutory definition of this term, this restriction relates to all

entrepreneurs providing an electronic communications network, regardless

of the type of information transmitted, thus even to entrepreneurs

providing a network which cannot even be used for television or radio

broadcasting. It also applies to the very case of the plaintiff in the

proceeding before the petitioner, T-Mobile, which operates an electronic

communications network for a mobile telephone network on frequencies

outside of the band of television broadcasting. Thus, in the

petitioner’s view, the contested provision “also affects subjects who

cannot even potentially advantage themselves when diffusing radio and

television broadcasts, since it could not even diffuse its programs

through its own electronics communications network, but only through an

electronics communications network owned by another subject.

8.

The petitioner further states that the contested provision is “in

conflict with Community law, as it excessively restricts one of the

fundamental freedoms of the internal market, namely the freedom of

admittance of certain subjects to commercial activity in a given

domain.” In its petition, however, it did not further elaborate upon

this line of argument.
 


II.
Procedural History and Summary of Statements of Parties to the Proceeding
 

9.

At the Constitutional Court’s invitation, the Assembly of Deputies of

the Parliament of the Czech Republic submitted, pursuant to § 69 of the

Act on the Constitutional Court, its statement through its Chairman,

Ing. Miloslav Vlček. The Senate of the Parliament of the Czech Republic

did the same through its Chairman, MUDr. Přemysl Sobotka.

10. In

its statement, the Assembly of Deputies summarizes the legislative

history of the contested provisions. It states that they were

incorporated into Act No. 231/2001 Sb. by Act No. 235/2006 Sb., which

Amends Act No. 231/2001 Sb., on the Operation of Radio and Television

Broadcasting and on Amendments to further Statutes, as subsequently

amended, and certain additional Statutes, and was subsequently amended

in part by Act No. 304/2007 Sb., which Amends certain Acts in connection

with the Completion of the Transition from Terrestrial Analogue

Television Broadcasting to Terrestrial Digital Video Broadcasting. After

exhaustively summarizing the individual steps in the legislative

process resulting in the adoption of both statutes (which the

Constitutional Court summarizes below in Part IV), the Assembly of

Deputies asserted that “both statutes were approved by the necessary

majority of Deputies of the Assembly of Deputies, were signed by the

competent constitutional officials, and were duly promulgated.”

11.

Just as had the Assembly of Deputies, in its statement, the Senate also

confined itself to summarizing the legislative history of both affected

statutes. In the conclusion of its statement, the Senate then asserted

that it “sends the statement in the awareness that it is entirely up to

the Constitutional Court to assess the constitutionality of the

contested provisions.”
 


III.
Summary of other Subjects’ Statements under § 49 of the Act on the Constitutional Court
 

12.

According to § 49 of the Act on the Constitutional Court, the

Constitutional Court also addressed the parties to the proceeding before

the Municipal Court. A statement was submitted both by the plaintiff,

T-Mobile, through its legal representative, Mgr. P.J., and by the

defendant, the Council, through its Chairman, Ing. Václav Žák.

13.

In its statement, T-Mobile “expressed its full agreement with the

Prague Municipal Court’s petition, . . . because [the contested

provision] is in conflict with the constitutional order of the Czech

Republic and with Community law, by which the Czech Republic is bound.”

It refers in detail to the complaint which the company submitted in the

proceeding before the petitioner.

14. In its statement T-Mobile

focuses on two lines of argument, the first relating to the contested

provision’s alleged conflict with the constitutional order, the second

with respect to its conflict with European Community law.

15. As

far as concerns conflict with Art. 26 para. 1 of the Charter, the

petitioner adopts the major part of T-Mobile’s line of argument. Over

and above the petitioner’s line of argument, which is summarized above

in points 5 to 7 of this Resolution, T-Mobile sees as a disproportionate

restriction, prescribed by the contested provision (see above, point

7), also the fact that it affects a broad group of subjects who are

personally and economically tied to a subject which provides any sort of

electronic communications network. According to T-Mobile, such a

restriction is in no sense justified, and no other legal provision of

such breadth is currently in effect. T-Mobile draws attention to the

ambiguous formulation of the contested provision; moreover it does not,

for example, define the degree of economic and personal connectedness of

subjects to whom the restriction relates. The contested provision thus

“causes legal uncertainty of subjects who wish to do business in the

given domain and burdens regulators with disproportionate demands

relating to the checking of property and personal structures of the

companies applying for registration or licenses.”

16. T-Mobile

also calls into doubt the contested provision’s conformity with the

freedom of expression and the right to disseminate information;

moreover, the restriction laid down in the contested provision is

manifestly unjustified and disproportionate, thus in conflict with Art.

17 para. 4 of the Charter.

17.As regards the conflict of the

contested provision with European Community law, T-Mobile states that

this law “creates for entrepreneurship in the field a free area and

directly requires free competition between individual service providers

with reference to ensuring the free movement of goods and services and

the formation of opinion ,” whereas, according to the company, the Czech

legal rule simply controverts these principles. At the same time,

T-Mobile refers to Directive 2002/20/EC on the authorisation of

electronic communications networks and services (Authorisation

Directive, Official Journal L 108, p. 21; Special Edition 13/29, p.

337), adopted with the aim of liberalizing the provision of services in

the field of electronic communications, which, according to T-Mobile,

“directly presupposes that the relevant subject providing an electronic

communications network can also be a subject which diffuses a prepared

content (that is, is the holder of a content license).” The broadly

conceived restriction laid down by the contested provision [which also

results from the breadth of the term, “electronic communications

network”, as defined in Art. 2, lit. m) of the Directive cited here and

as it also was transposed into the legal order of the Czech Republic –

on this, see above, point 7 of this Resolution] violates the principle

of proportionality, which, by contrast according to T-Mobile, the legal

rules of the European Communities always respected.

18. According

to T-Mobile the contested provision also restricts the free movement of

services, since, according to it, television broadcasting must be

considered as a service in the sense of the Treaty Establishing the EC,

such as is laid down, for example, by Council Directive 89/552/EEC of 3

October 1989 on the coordination of certain provisions laid down by law,

regulation or administrative action in Member States concerning the

pursuit of television broadcasting activities (Official Journal L 298,

p. 23; Special Edition 06/01, p. 224). In addition, that service is,

according to the Twelfth Recital of the above-cited Directive “a

specific manifestation . . . of a more general principle, namely the

freedom of expression as enshrined in Article 10 (1) of the Convention

for the Protection of Human Rights and Fundamental Freedoms”.

19.

In its statement the Council recapitulated the proceeding which

resulted in the issuance of the decision which T-Mobile contested before

the Prague Municipal Court. It also explicitly confirmed therein that

“the sole grounds, in the case under assessment, for refusing the grant

of a license . . . was the real obstacle formed [by the contested

provision].” It added that “in the given licensing proceeding, there

were even more free spaces for the operation of broadcasting in the

DVB-H standard than applications submitted in the licensing proceeding.”

According to the Council, “under the condition that the statutory

criteria were fulfilled, it would have thus been possible to decide

favorably for all parties to the licensing proceeding.”

20. The

Council believes that it “is not competent to assess whether a statute

conforms to the constitutional order of the Czech Republic or with

Community law.” However, it draws attention to Directive 2002/21/EC of

the European Parliament and of the Council of 7 March 2002 on a common

regulatory framework for electronic communications networks and services

(Framework Directive) [Official Journal L 108, p. 33; Special Edition

13/29, p. 349], specifically to its Art. 8 para. 1 and para. 2, lit. b).

The Council cites these provisions in the following manner. According

to the first of them, in the Council’s view, “the Member States [must]

ensure that, in carrying out their regulatory tasks (in particular,

those whose aim is to ensure effective economic competition), national

regulatory bodies shall, to the utmost degree, take into account to the

need to create enactments that are neutral in terms of technology.” The

Council paraphrased the second cited provision of the Directive as

follows: “national regulatory bodies [must] support economic competition

in providing networks and providing services by the fact, among others,

that they will ensure that no impairment or restriction of economic

competition occurs in the branch of electronic communications.”

21.

As the conclusion of its statement, the Council asserts that the

“[a]ssessment of the contested national legal rules’ congruity with the

Framework Directive is, of course, entirely within the Constitutional

Court’s competence.”



IV.
The Wording of the Contested Provision of the Legal Enactment and its Legislative History
 

22.

The contested provision of Act No. 231/2001 Sb., at the time the

petition was submitted, as well as on the day of the decision on the

petition, reads as follows:

"§17
Facts Significant for Decision on the Application for the Grant of a License.
[…]
“(4)

A license to engage in a radio or television broadcasting diffused by

means of a transmitter solely digitally cannot be granted to an

entrepreneur providing an electronic communications network (hereinafter

“entrepreneur of an electronic communications network”), to a group of

entrepreneurs of an electronic communications network, or to a person

who is economically or personally tied to an entrepreneur or group of

entrepreneurs of an electronic communications network; this does not

apply in cases where the license to operate the radio or television

broadcast diffused by means of a transmitter only digitally is granted

directly ex lege. The phrase, “persons economically or personally tied”,

is understood to mean a person who shares directly or indirectly in the

management, control or stock of a second person or if an equivalent

legal or natural persons directly or indirectly shares in the

management, control or stock of both persons. Participation in the

control or stock is understood to mean ownership of more than 20 % of

the shares of authorized capital or a shares with voting rights; share

in the authorized capital or a share with voting rights in the tax

period is laid down as the share of the sum of holdings on the final day

of each month and the number of months in the tax period.
__________________
    

1) Act No. 127/2005 Sb., on Electronic Communications and on the

Amendment to certain related Acts (Act on Electronic Communications), as

subsequently amended."

23. In the period from 31 May 2006 (the

entry into force of the first amendment to Act No. 231/2001 Sb., that is

Act No. 235/2006 Sb., which Amends Act No. 231/2001 Sb., on the

Operation of Radio and Television Broadcasting and on Amendments to

further Statutes, as subsequently amended, and certain additional

Statutes) until 31 December 2007 (the entry into effect of the second

amendment to Act No. 231/2001 Sb., that is Act No. 304/2007 Sb., which

Amends certain Acts in connection with the Completion of the Transition

from Terrestrial Analogue Television Broadcasting to Terrestrial Digital

Video Broadcasting) the restriction laid down in the contested

provision was even broader (compare the highlighted passage of the

provision):

“(4) A license to engage in a radio or television

broadcasting diffused by means of a transmitter solely digitally or by

registration [§ 2 para. 1, lit. g), § 26 and foll.] to engage in solely

digital retransmitting cannot be granted to an entrepreneur providing an

electronic communications network (hereinafter “entrepreneur of an

electronic communications network”), to a group of entrepreneurs of an

electronic communications network, or to a person who is economically or

personally tied to an entrepreneur or group of entrepreneurs of an

electronic communications network; this does not apply in cases where

the license to operate the radio or television broadcast diffused by

means of a transmitter only digitally is granted directly ex lege. The

phrase, “persons economically or personally tied”, is understood to mean

a person who shares directly or indirectly in the management, control

or stock of a second person or if an equivalent legal or natural persons

directly or indirectly shares in the management, control or stock of

both persons. Participation in the control or stock is understood to

mean ownership of more than 20 % of the shares of authorized capital or a

shares with voting rights; share in the authorized capital or a share

with voting rights in the tax period is laid down as the share of the

sum of holdings on the final day of each month and the number of months

in the tax period.
__________________
     1) Act No. 127/2005

Sb., on Electronic Communications and on the Amendment to certain

related Acts (Act on Electronic Communications), as subsequently

amended."

24. As follows from the Assembly of Deputies’ statement

(cf. point 10 of this Ruling), the contested provision was incorporated

into Act No. 231/2001 Sb. by Act No. 235/2006 Sb. Initially the

amending bill did not contain the contested provision. That was not

added to the amending bill until it was in the Senate, which returned

the bill to the Assembly of Deputies with proposed amendments. According

to the Senate’s statement, this provision was proposed by Senator

Václav Jehlička, the Rapporteur of the Committee on Education, Science,

Culture, Human Rights, and Petitions. According to the stenographic

minutes from the deliberations on the amending bill, at the 10th Session

in the Senate’s 5th Electoral Term, Senator Jehlička said the following

concerning the contested provision: “[T]he final point to which I feel

the need to refer, is the ‘cross ownership’. This relates also to the

issue of economic competition. If the license-holder had ownership ties

to the owner of a multiplex, then, in my opinion, it gains advantages in

economic competition over the other licensed broadcasters in the given

multiplex. It obtains more favorable conditions, has better access to

information of a commercial character. I think the this would be a case

of unfair competition. And that is the third area in which the guarantee

committee submits proposed amendments.” The Assembly of Deputies

finally adopted the amending act in the wording proposed by the Senate,

the President of the Republic signed the amending bill, and it came into

effect on 31 Mary 2006.

25. The contested provision was

subsequently revised by a further amendment to Act No. 231/2001 Sb., by

Act No. 304/2007 Sb. The impermissibility to grant, in addition to a

license to operate radio or television broadcasts transmitted by means

solely of a digital transmitter, also registration to operate was

omitted from the contested provision, whereas the provision formulated

in this fashion was already contained in the bill itself and was not the

subject of debate in either of the chambers of Parliament. However, the

changes to the contested provision effected by Act No. 304/2007 Sb. in

no way affected the essence of this provision and the reasons for which

the petitioner objected that it conflicts with the constitutional order.



V.
The Petitioner’s Standing
 

26.

The petitioner derives its standing to submit the petition under

adjudication from Art. 95 para. 2 of the Constitution, which provides

that, in the case a court comes to the conclusion that a statute which

should be applied in the resolution of a matter is in conflict with the

constitutional order, it should submit the matter to the Constitutional

Court. This power of a court is concretized in § 64 para. 3 of the Act

on the Constitutional Court as the power to submit a petition proposing

the annulment of a statute or the individual provisions thereof. That

means that a court’s standing to submit a petition proposing the

annulment of a statute or individual provisions thereof derives from the

subject of the dispute and its legal classification. In other words, a

court may submit a petition proposing the annulment only of such a

statute, or individual provisions thereof, which should be applied in

resolving the dispute before that ordinary court. The consideration

about its application must be substantiated, must be derived from the

fulfillment of the prerequisites for a proceeding, including the

parties’ factual standing and, if a substantive legal enactment is at

issue, then from an unambiguous ascertainment that such enactment should

be applied [see Judgment No. Pl. ÚS 50/05 of 16 October 2007 (2/2008

Sb.), point 11].

27. As unambiguously follows from the petition

of the Prague Municipal Court, the contested provision should be applied

in the proceeding, thus providing the basis for its decisional grounds;

the amendment to the contested provision effected by Act No. 304/2007

Sb. in no way affected the essence of this provision and the legal issue

which the Municipal Court is faced with resolving. However, the

petitioner asserts that, in addition to being unconstitutional, the

contested provision is also in conflict with European Community law (see

point 8 of this Ruling). It did not elaborate in detail on its line of

argument in this respect, in contrast to the complainant in the

proceeding which it was hearing (see above, points 17 and 18 of this

Ruling). The petitioner does not at the same time assert that the fact

that the contested provision is in conflict with European Community law

should be seen as a grounds for a finding that it is unconstitutional.

28.

According to the jurisprudence of the Court of Justice of the European

Communities (hereinafter “Court of Justice”) “a national court which is

called upon, within the exercise of its jurisdiction, to apply

provisions of Community law is under a duty to give full effect to those

provisions, if necessary refusing of its own motion to apply any

conflicting provision of national legislation” [see, e.g,., Judgment

Amministrazione delle Finanze dello Stato v Simmenthal SpA of 9 March

1978 (“Simmenthal II”), 106/77, Recueil, p. 629, points 21-24, cited

from the Judgment of 18 July 2007, Lucchini Siderurgica, C-119/05, coll.

of decisions, p. I-6199, point 61].

29. In its decisions, the

Constitutional Court has expressly approved this jurisprudence of the

Court of Justice. For example, in its 21 February 2006 Ruling, No. Pl.

ÚS 19/04 (accessible at nalus.usoud.cz), it declined to continue a

proceeding on a petition proposing the annulment of a statute which

had, in the meantime, been repealed, although the doctrine defined in

its 10 January 2001 Judgment, No. Pl. ÚS 33/2000 (N 5/21 SbNU 29;

78/2001 Sb.) would otherwise have enabled it to do so. According to this

doctrine, Art. 95 para. 2 of the Constitution contains an implicit

obligation for the Constitutional Court to provide ordinary courts with

assistance by its decision on the constitutionality or

unconstitutionality of the statute which should be applied, regardless

of whether the statute was subsequently amended or repealed. However,

according to the proposition of law declared in the cited Ruling, No.

Pl. ÚS 19/04, this doctrine must take into account the Czech Republic’s

membership in the European Union, and the fact that, starting with 1 May

2004, each public authority is obliged to apply European Community law

in preference to Czech law in the case that Czech law is in conflict

with it. Since the petitioner in the proceeding which was being heard

before the Constitutional Court (the Regional Court in Hradec Králové)

had argued in its petition that the already repealed provisions were in

the first place in conflict with European Community law and only in the

second place in conflict with the Czech constitutional order, the

Constitutional Court came to the conclusion that, if it were perhaps

necessary, according to the regional court’s legal opinion, to apply

already repealed statutes in the matter before it, then it must itself

resolve the issue of the conformity of those enactments with European

Community law, without the Constitutional Court playing any role,

alternatively, where such would be necessary, under the conditions laid

down in European Community law, even by means of a preliminary reference

to the Court of Justice. The Constitutional Court concluded that it is

in principle not competent to involve itself in the adjudication of such

issues.

30. In its 27 March 2008 Judgment, No. Pl. ÚS 56/05

(257/2008 Sb.), the Constitutional Court declared that, within the

confines of the constitutional review of statutes pursuant to Art. 87

para. 1, lit a) and Art. 88 para. 2 of the Constitution, it is not

competent to review the conformity of European Community law with

national law. In the Constitutional Court’s opinion, the application of

European Community law, as directly applicable law, is within the

competence of the ordinary courts which, in the case of doubt as to the

application of this law, have the possibility, alternatively the

obligation, to refer a preliminary question to the Court of Justice

pursuant to Art. 234 EC Treaty. The Constitutional Court again referred

to the Court of Justice’s judgment in Simmenthal II.

31. Although

the conclusions expressed in the last-cited judgment relate first and

foremost to the determination of the framework of referential norms for

the review of the constitutionality of laws, the conclusion can be

derived therefrom that the Constitutional Court emphasized the

responsibility of ordinary courts for the due application of European

Community law. Thus, if an issue arises before an ordinary court that a

national legal provision conflicts with European Community law, the

ordinary court is not authorized to refer the matter to the

Constitutional Court with a petition proposing the annulment of such

provision due to its conflict with European Community law in the sense

of Art. 95 para. 2 of the Constitution and, instead of that, it must

itself, on the basis of the above cited jurisprudence of the Court of

Justice, decide on the non-application thereof. In this respect, a

proceeding initiated on the petition of a court in the sense of Art. 95

para. 2 of the Constitution, in conjunction with § 64 para. 3 of the Act

on the Constitutional Court, differs from a proceeding pursuant to Art.

87 para. 1, lit. a), mentioned above in point 30 and initiated pursuant

to § 64 paras. 1 and 2 on the proposal of the subjects mentioned there,

whose standing is not bound to the necessity to apply the contested

provision – which follows, among other things, also from the character

of the petitioners listed there.

32. The case under consideration

concerns a somewhat different situation. The crux of the grounds upon

which the Prague Municipal Court proposed the annulment of the contested

provision lies in its conflict with the constitutional order,

specifically with Art. 26 para. 1 of the Charter, and not with European

Community law. In this respect the case differs from the above-cited

case, which the Constitutional Court decided by its Ruling No. Pl. ÚS

19/04 (cited above, in point 29 of this Ruling), where the petitioner in

its petition made the argument that the already-repealed enactments

were in the first place in conflict with European Community law and only

in the second place with the Czech constitutional order.

33. On

the other hand, however, it is also true that the petitioner itself

unambiguously stated that it believes the contested provision is also in

conflict with European Community law, even though it has not advanced

any arguments in favor of that conclusion.

34. The Constitutional

Court is of the view that, in such a situation, the petitioner should

have decided in the first place on the basis of the requirements laid

down in the judgment Simmenthal II concerning the non-applicability,

where appropriate, of a contested provision due to its conflict with

European Community law. The Constitutional Court leaves it entirely to

the discretion of the ordinary court whether it will concern itself with

reviewing the conflict with European Community law of the statutory

provision which it should apply or will focus on the review of its

conflict with the constitutional order of the Czech Republic. If it

primarily focuses on the review of the conflict with European Community

law and asserts, as in this case, that the statutory provision under

review is in conflict therewith, it must draw from its conviction the

consequences in accord with the Court of Justice’s jurisprudence, that

is, that the contested provision not be applied (on this point, cf. the

similar approach of the German Federal Constitutional Court in its 11

July 2006 Judgment in the matter 1 BvL 4/00, BVerfGE 116, 202 at p. 214,

points 51 to 53). In principle it is not within the Constitutional

Court’s competence to interfere with an ordinary court’s considerations

as to whether its conclusion on the conflict of the contested provision

with European Community law is well-founded or not; it does, however,

draw attention to the fact that such conclusion must be duly reasoned,

otherwise it could become the subject of review on the part of the

Constitutional Court, in the context of a proceeding on a constitutional

complaint, as to whether the court’s interpretation of the decisive

legal norms is foreseeable and reasonable, whether it corresponds to the

settled reasoning of judicial practice, or whether, on the contrary, it

is an arbitrary (wilful) interpretation which lacks meaningful

reasoning, whether it diverges from the bounds of the generally

(consensually) accepted understanding of the affected legal institutes,

alternatively whether it does not represent an extreme or excessive

interpretation (see Judgment No. III. ÚS 346/06 of 19 December 2007, the

thirteenth paragraph of the reasoning).

35. This conclusion is

not called into doubt even by the requirement 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 freedoms would be limited [see Judgment No. Pl. ÚS 36/01 ze

dne 25. 6. 2002 (N 80/26 SbNU 317, 329-330; 403/2002 Sb.) and related

jurisprudence], which requirement also projects into the limits to the

transfer of powers to the European Union on the basis of Art. 10a of the

Constitution [see Judgment No. Pl. ÚS 50/04 of 8 March 2006 (N 50/40

SbNU 443, 492-493; 154/2006 Sb.)]. A part of the doctrinal opinion has

deduced from Judgment Pl. ÚS 36/01 (cited above, in the preceding point

of this Ruling) that it is incompatible with the above-stated

requirement of the Court of Justice, expressed in the judgment

Simmenthal II. According to that view, it is necessary to consider the

centralized review of the compatibility of statutes with human rights as

that procedural level which is unamendable (Kühn, Z.: Derogation and

Applicational Primacy in Relation of Municipal, International, and

Community law, Judicial Views [Soudní rozhledy], 2004, No. 1, p. 1-9, at

p. 7). From this perspective, the non-application of a provision which

is in conflict both with European Community law and with the

constitutional order of the Czech Republic would impede the

Constitutional Court in considering the issue of its constitutionality.

After all, the ordinary court would not meet the standing requirements

for submitting a petition to the Constitutional Court since, in

consequence of the application of the contested provision being ruled

out on the basis of the preferential operation of European Community

law, it would not be a provision which should be applied in the

resolution of the matter in the sense of Art. 95 para. 2 of the

Constitution.

36. The already achieved procedural level of

protection must, however, be understood first and foremost as the

retention of the referential criteria for the adjudication of

constitutionality, both in norm control proceedings and within the

framework of decision-making on constitutional complaints. In its

Judgment Pl. ÚS 36/01 (cited above), the Constitutional Court above all

established that the amendment to the Constitution effected by

Constitutional Act No. 395/2001 Sb., which Amends Constitutional Act of

the Czech National Council No. 1/1993 Sb., The Constitution of the Czech

Republic, as subsequently amended, “cannot be interpreted in the sense

that it eliminated the referential norms provided by ratified and

promulgated treaties on human rights and fundamental freedoms for the

Constitutional Court‘s assessment, with derogational effects on domestic

law” (N 80/26 SbNU 317, 330). The Constitutional Court did not place so

much emphasis on the retention of its centralized status in the review

of constitutionality, rather on the retention of the referential norms

in its review. That was otherwise confirmed by further decisions, in

which, in interpretating the term, “constitutional order”, so as also to

include international human rights conventions, the Constitutional

Court substantiated, for example, its authority to assess the

constitutionality of a statute in the light of international human

rights conventions, even though the petitioner invoked solely the

provisions of the Charter [Judgment No. Pl. ÚS 44/02 of 24 June 2003 (N

98/30 SbNU 417; 210/2003 Sb.)], as well as its authority to assess also

individual constitutional complaints in the light of international human

rights conventions [for ex., Judgment No. II. ÚS 142/03 of 2 October

2003 (N 116/31 SbNU 45) or Judgment No. II. ÚS 321/04 of 24 February

2005 (N 33/36 SbNU 367)].

37. Nothing is changed, in this regard,

by the fact that, in its Judgment Pl. ÚS 36/01 (cited above, in point

35 of this Resolution), the Constitutional Court gave reasons for the

necessity of including within the compass of the constitutional order

ratified and published international conventions on human rights and

fundamental freedoms as follows: whereas in the case of a statute’s

conflict with a constitutional act, an ordinary court judge is not

competent to adjudicate the matter and is obliged to submit the matter

to the Constitutional Court, in the case of a statute’s conflict with a

human rights convention, which constitutionally is of the same nature

and quality, pursuant to Art. 10 of the Constitution, she is obliged to

proceed in accordance with the international convention. According to

the proposition of law expressed by the Constitutional Court in that

Judgment, such a decision, without regard to the judicial instance which

decided it, could never, in a legal system that does not contain

judicial precedents having the quality and binding nature of a source of

law, also acquire actual derogational consequences. The Constitution

would thereby create for two situations of identical constitutional

character a procedural disparity that is in no way justified. In the

case of the contested provision’s conflict with European Community law,

however, it is not a situation indentical with conflict with the

constitutional order. In the case the Prague Municipal Court does not

apply the contested provision, it would not be due to its conflict with a

human rights convention, that is, due to a conflict which

constitutionally is of the same character and quality as its conflict

with municipal provisions of the constitutionl order, rather due to its

conflict with provisions of European Community law, which has an

entirely distinguishable character. Moreover, that law operates in the

Czech Republic legal order on the basis of Art. 10a of the Constitution

(see Judgment No. Pl. ÚS 50/04, N 50/40 SbNU 443, 494), and not Art. 10,

as do human rights conventions, to which the above-cited judgment

relates. Thus, one cannot state that according applicational primacy to

European Community law, on the basis of the Court of Justice’s

jurisprudence, would create a procedural disparity that is in no way

justified and which would thereby impinge upon the substantive core of

the Constitution.

38. Thus, since compliance with the

requirements of the Court of Justice’s jurisprudence resulting from its

judgment in Simmenthall II does not impede the essential attributes of

the democratic law-based state, such as the Constitutional Court has

interpreted them in the above-cited decisions, and since the petitioner

states that it believes the contested provision is in conflict with

European Community law, it is obliged itself to ensure full effect to

this law, even by setting the contested provision aside on its own

authority. In such a case, however, the petitioner does not meet the

requirements for standing to submit a petition, as defined above in

point 26 of this Resolution. The Constitutional Court has no option but,

pursuant to § 43 para. 2, lit. b) in conjunction with § 43 para. 1,

lit. c), to reject the petition on preliminary grounds.

Notice: A Constitutional Court ruling may not be appealed.