2007/03/01 - Pl. ÚS 8/06: Executor´s Commission

01 March 2007

HEADNOTES

According

to Art. 1 para. 1 of the Constitution, the Czech Republic is a

sovereign, unitary, and democratic state governed by the rule of law,

founded on respect for the rights and freedoms of man and of citizens,

one of the main pillars of which is legal certainty.  It is from this

point of view that the content of legally normative acts, including

implementing legislation, must be adjudicated (the unclear and

indefinite construction of which might also lead to the violation of the

right to fair process protected in Art. 36 para. 1 of the Charter of

Fundamental Rights and Basic Freedoms), as must the operation of legal

enactments upon past time periods, alternatively their influence upon

past legal facts, since even potential impermissible retroactivity is in

conflict with the postulate of the democratic, law-based state.

It is in accordance with the principle of legal certainty for new legal

rules to have such an impact on existing legal relations, if their

coming into existence, and the legal claims and the performance of legal

transactions related thereto, established prior to the new rule coming

into effect, are governed by the repealed norm.  The transitional

provisions of Government Regulations Nos. 233/2004 Coll. and 291/2006

Coll. constitute a violation of this principle, as they apply the new

principle for the formation of an enforcement official‘s base commission

even to proceedings commenced before the changes came into effect. 

There is no doubt at all that the selected construction has shaken

confidence in the legal order, because enforcement officials‘

commissions are governed by legal rules which did not come into effect

until after the enforcement officials had already performed all of the

legal acts directed at the satisfaction of collected claims.

According to the Constitutional Court’s constant jurisprudence, both in

proceedings on constitutional complaints and in abstract norm control

proceedings, the principle of proportionality provides the mechanism for

the resolution of a conflict between fundamental rights, or public

goods protected by the constitutional order.  Without calling into

question the right of enforcement officials to fair remuneration for

enforcement activities actually carried out, the Constitutional Court

considers the fact that an enforcement official‘s base commission also

includes an amount paid by the obliged person, even if the enforcement

official had not directly participated in levying execution, must be

considered as unjustified preferential treatment as against those

enforcement officials who actually levied execution (as such a

differentiation is not rationally justifiable).  Moreover, in the

Constitutional Court’s view the adopted construction lacks even an

„educational“ component, since no possibility is provided de jure to

acknowledge that the obliged debtor has himself satisfied his obligation

(without direct action to enforce it), even if only at the last

possible moment. Although the Regulation’s provisions indicate that

enforcement officials are entitled, in such a case, to a commission at a

50% rate, however, only in cases where the enforcement official waives

the levying of execution, whereas the Enforcement Code enables them to

do so only in the case that the costs of enforcement activities, which

includes also the enforcement official’s commission, are also paid.  It

follows therefrom that, in accordance with the literal wording of the

Act, if the obliged person fails to pay the enforcement official her

commission in the full amount, she cannot waive the levying of

execution, even if the claim sought has been paid; therefore,

enforcement officials have the right, against the sense of logic, to a

commission in the full amount (this is movement in a circle).  The

Constitutional Court considers this construction to be in conflict with

Art. 1 para. 1 of the Constitution, as the creation of unfulfillable

conditions for a reduced rate to apply is in conflict with the principle

of the law-based state.  In its ultimate consequences, such a legal

framework also constitutes an interference with the obliged person’s

fundamental right to the protection of property enshrined in Art. 11

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

The constitutional conformity of the rules governing enforcement

officials‘ commissions should not be based on a direct correlation

between the commission and the value of the exacted performance, rather

should reflect the complexity of the enforcement officials‘ activity

according to individual types and the manner of levying execution, as

well the enforcement official’s responsibility and the amount of work

required for it.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Constitutional Court in its Plenum, composed of its Chairman Pavel

Rychetský and judges Stanislav Balík, František Duchoň, Vlasta

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

Jiří Mucha, Jan Musil, Jiří Nykodým, Miloslav Výborný, Eliška Wagnerová

and Michaela Židlická, in the matter of the petition, submitted by the

Constitutional Court‘s Panel I, proposing the annulment of § 5 para. 1,

the second sentence, of Regulation. No. 330/2001 Coll., as subsequently

amended, and in the matter of the petition of P. s. b. d., represented

by Mgr. L. H., an advocate, proposing the annulment of Art. II., point

1. of Regulation No. 233/2004 Coll., which amends Regulation No.

330/2001 Coll., on the Commissions for and Reimbursement of Court

Enforcement Officials, on the Commissions for and Reimbursement of

Expenditures of the Administrator of an Enterprise, and on the

Conditions for Indemnity of Responsibility for Damage Caused by

Enforcement Officials, with the participation of the Ministry of Justice

and the Public Protector of Rights, decided as follows:

 

I.

The provisions of § 5 para. 1, the second sentence, of Regulation. No.

330/2001 Coll., on the Commissions for and Reimbursement of Court

Enforcement Officials, on the Commissions for and Reimbursement of

Expenditures of the Administrator of an Enterprise, and on the

Conditions for Indemnity of Responsibility for Damage Caused by

Enforcement Officials, as subsequently amended, is annulled as of the

day this Judgment is published in the Collection of Laws.

II. The provisions of Art. II., point 1. of Regulation No. 233/2004

Coll., which amends Regulation No. 330/2001 Coll., on the Commissions

for and Reimbursement of Court Enforcement Officials, on the Commissions

for and Reimbursement of Expenditures of the Administrator of an

Enterprise, and on the Conditions for Indemnity of Responsibility for

Damage Caused by Enforcement Officials, is annulled as of the day this

Judgment is published in the Collection of Laws.

III. The provisions of Art. II., point 1. of Regulation No. 291/2006

Coll., which amends Regulation No. 330/2001 Coll., on the Commissions

for and Reimbursement of Court Enforcement Officials, on the Commissions

for and Reimbursement of Expenditures of the Administrator of an

Enterprise, and on the Conditions for Indemnity of Responsibility for

Damage Caused by Enforcement Officials, as amended by Regulation No.

233/2004 Coll., is annulled as of the day this Judgment is published in

the Collection of Laws.



REASONING


A.
 

1.

In its constitutional complaint, delivered to the Constitutional Court

on 29 September 2004, the complainant, a commercial company, E.-S.,

s.r.o., represented by Mgr. M. Z., an attorney, sought the annulment of

the 20 July 2004 ruling of the District Court for Prague 3, No. E-Nc

1895/2002-52, which affirmed the order to pay the costs of enforcement

activities, issued in an enforcement proceeding in which it had the

status of an obliged person.  It asserted that, as a result of the

contested ruling, its right enshrined in Art. 36 of the Charter of

Fundamental Rights and Basic Freedoms (hereinafter „Charter“) had been

violated, which contention it substantiated by a description of the

course of the enforcement proceeding, especially its concluding phase

concerning the determination of the costs of enforcement activities and

their payment.  Above all, it reproved the court for failing to take

into consideration § 11 para. 2 of Regulation. No. 330/2001 Coll., on

the Commissions for and Reimbursement of Court Enforcement Officials, on

the Commissions for and Reimbursement of Expenditures of the

Administrator of an Enterprise, and on the Conditions for Indemnity of

Responsibility for Damage Caused by Enforcement Officials, as amended by

Regulation No. 233/2004 Coll., which amends Regulation No. 330/2001

Coll., on the Commissions for and Reimbursement of Court Enforcement

Officials, on the Commissions for and Reimbursement of Expenditures of

the Administrator of an Enterprise, and on the Conditions for Indemnity

of Responsibility for Damage Caused by Enforcement Officials.  The

complainant inferred that, if it voluntarily pays off the entire debt,

without any action in execution playing any part therein, then the

execution of the writ has been waived, hence the enforcement official’s

commission should be determined in accordance with § 11 para. 1 lit. a)

of the cited Regulation, that is only at a 50 % rate.  It adds thereto,

that in the case of a claim to a commission in the full amount in

accordance with § 11 para. 2 of the cited Regulation, the necessary

conditions were not satisfied, alternatively that the conditions laid

down in § 11 para. 2 lit. a) were not satisfied.  This proceeding is

being conducted as No. I. US 639/04.
 

2.

The Constitutional Court ascertained from the file of the District

Court for Prague 3, No. E-Nc 11895/2002, that a motion against the

complainant had been filed at that court to issue a writ pursuant to Act

No. 120/2001 Coll., on Judicial Enforcement Officials and Enforcement

Activities (Enforcement Code) and on Amendments to further Act

(hereinafter „the Enforcement Code“), to exact a claim in the amount of

2,303,588 Czech Crowns with ancillary rights.  By its 24 October 2002

ruling, No. E-Nc 11895/2002-9, a writ of execution was issued and a

judicial enforcement official, JUDr. D. K., from the Prague 4 Office of

Enforcement Officials, with its seat at Novodvorská 1010, Prague 4, was

charged with executing the writ.  As follows from the file, the

resulting warrant of distress was issued to the obliged person,

decreeing that enforcement be effected by enjoining two claims from an

account, by the sale of immovable property and the sale of movable

items.  On 1 December 2003 the judicial enforcement official issued an

order to pay the costs of enforcement activities, No. Ex 236/02-59, in

which he set 278,467 Czech Crowns as the total amount (of which

276,408.60 Czech Crowns was the enforcement official’s commission for

executing the writ, 1585.90 Czech Crowns was the reimbursement of cash

outlays, and 472.50 Czech Crowns the costs of delivery).  The

complainant filed an objection to this order, based on the assertion

that the amount of the payment collected by the enforcement official

served as the basis for the determination of the commission for

executing the writ, yet the enforcement official had merely issued

warrants of distress affecting the obliged person’s property interests

and the obliged person had performed the obligation entirely

voluntarily, in part directly to the entitled person and in part to the

enforcement official’s account.  The enforcement official referred the

objection to the court which, by its 16 February 2004 ruling, No. E-Nc

11895/2002, quashed the order at issue, as it concurred with the

complainant’s position that the amount of the collected debt had served

as the basis for determining the commission, so that it would be

necessary for the enforcement official to state, in its substantiation

of the order to pay the costs of enforcement activities, the amount that

was exacted thereby (and not merely collected) and in what manner the

resulting commission was subsequently calculated.  On 2 May 2004 the

judicial enforcement official issued a new order to pay the costs of

enforcement activities, No. E 236/02-89, which set, as the costs of

enforcement action, the total amount of 384,040 Czech Crowns (of which

382,796.50 Czech Crowns represented the enforcement official’s

commission, 708 Czech Crowns the reimbursement of cash outlays, 535.50

Czech Crowns the costs of delivery – Note: the enforcement official used

the amount of 2,144,517 Czech Crowns as the basis in his determination

of the amount of his commission), and the complainant once again filed

objections against this order.  After they had been referred to the

court, it affirmed the order to pay the costs of enforcement activities,

finding the objections to be unfounded.  The court based that decision

on the amended wording of § 5 para. 1 of Regulation No. 330/2001 Coll.,

which was applicable as well to enforcement proceedings initiated before

the day the amendment had come into effect (unless a decision on an

enforcement official’s commission had already become final).  As follows

therefrom, any performance which had been effected after the court’s

writ of execution has been delivered to the obliged person is deemed to

be an exacted performance, which serves as the basis for determining the

commission for executing the writ.  In view of the fact that the

obliged person paid the collected amount the day after the writ of

execution had been delivered to him, the court found that the

enforcement official’s commission, as well as further amounts demanded,

are in conformity with the amended wording of Regulation No. 330/2001

Coll.  The Constitutional Court further ascertained from the court file

that the entitled person, in response to the query of the District Court

for Prague 3, had informed it that the payment of the claims proceeded

as follows:  after the writ of execution had issued, 1,819,975 Czech

Crowns were paid by 21 January 2004, 324,542 Czech Crowns were paid on

13 February 2004 (that is, a total of 2,144,517 Czech Crowns, from which

the sum of 770,000 Czech Crowns were paid through the judicial

enforcement official), and on 16 February 2004 the fee for delay, in the

amount of 159,071 Czech Crowns, was waived.
 

3.

In the course of the proceeding on the constitutional complaint, Panel I

of the Constitutional Court found that the case under adjudication

concerned the application of § 5 para. 1, the second sentence, of

Regulation. No. 330/2001 Coll., on the Commissions for and Reimbursement

of Court Enforcement Officials, on the Commissions for and

Reimbursement of Expenditures of the Administrator of an Enterprise, and

on the Conditions for Indemnity of Responsibility for Damage Caused by

Enforcement Officials (hereinafter „the Regulation“).  The Regulation

was issued by the Ministry of Justice on the basis of the empowerment

inserted into § 131 lit. a) to c) of the Enforcement Code and came into

force on 18 September 2001.  The provisions of § 5 para. 1, the second

sentence, in their original wording, read as follows:  „Unless

hereinafter provided otherwise, the basis for the determination of the

commission for the enforcement of an obligation involving the payment of

a sum of money shall be the amount of the payment exacted by the

enforcement official.“  Regulation No. 233/2004 Coll., with effect from

30 April 2004, supplemented this provision such that it then read: 

„Unless hereinafter provided otherwise, the basis for the determination

of the commission for the enforcement of an obligation involving the

payment of a sum of money shall be the amount of the payment exacted by

the enforcement official. The exacted performance is deemed to be any

performance, effected after the obliged person has received delivery of

the court’s writ of execution, in satisfaction of the obligations stated

in the writ of execution, any performance in satisfaction of the

obligation to pay the costs of enforcement activities or to pay the

entitled person‘s costs.“  According to the algorithm inserted into § 6

of the Regulation, the enforcement official’s commission is calculated

on the basis of the tax base:
1) The commission for the enforcement

of an obligation involving the payment of a sum of money shall be

calculated at the rate of
     up to a 3,000,000 Czech Crowns of the base                               15 %
     from the remaining amount, up to 40,000,000 Czech Crowns of the base    10 %
     from the remaining amount, up to 50,000,000 Czech Crowns of the base     5 %
     from the remaining amount, up to 250,000,000 Czech Crowns of the base   1 %
2) Any amount over 250,000,000 Czech Crowns shall not be counted as part of the base.
3) Commissions under para. 1 shall amount to at least 3 000 Czech Crowns.

In Regulation No. 233/2004, the following rule was introduced into the transitional provisions:
 „1.

Enforcement officials are entitled to the commission provided for in

this Regulation even in enforcement proceeding which commenced prior to

the day this Regulation entered into effect, with the exception of

proceedings in which the judicial enforcement official’s commission has

already been finally decided.“
 

4.

In both versions, the Regulation takes into account the debtor’s

„voluntary“ performance of his obligation during the first phase of

enforcement activity, that is, even before the writ is executed.  In the

original wording, according to § 11 para. 1, lit. a), if the

enforcement official waives levying execution on the writ (in accordance

with § 46 para. 3 of the Execution Code), in the case of the

enforcement of an obligation requiring the debtor to pay a monetary sum,

he is entitled to a commission in the amount of 50 % of the commission

according to § 6, with the proviso that the amount of the claim which

should be exacted is considered the base for the commission.  According

to the amended wording, in the case of the enforcement of an obligation

requiring the debtor to pay a monetary sum, enforcement officials who

waive the execution of a writ are entitled to a commission in the amount

of 50 % of the commission in accordance with § 6.  The second paragraph

was also supplemented with the following text:
„The enforcement official is entitled to a commission in the full amount, if he waives the execution of the writ after having
a)

called upon the obliged person in writing to voluntarily perform the

obligation which the power of distress imposes upon her, and
b) the

obliged person voluntarily performs that which the power of distress

imposes upon her, and reimburses the costs of enforcement activities

after the expiration of a commensurate period of time laid down by the

enforcement official in accordance with lit. a).“
 

5.

According to § 46 para. 3 of the Enforcement Code, the enforcement

official can waive the execution of the writ only in the case that the

obliged person voluntarily performs that which is imposed upon him by

the power of distress, and covers the costs of enforcement activities;

pursuant to § 87 para. 1 of Enforcement Code, the costs of enforcement

activities comprise the enforcement official’s commission, the

reimbursement of cash expenditures, compensation for time lost in

executing the writ, compensation for the delivery of documents, the

commission and the payment of the costs of the administrator of an

enterprise, and, if the enforcement official or administrator of the

enterprise is a taxpayer of value-added tax, then the relevant

value-added tax is also a cost of enforcement activities.

6.

In adjudicating whether the constitutional complaint is well-founded,

the First Panel of the Constitutional Court made the finding that the

applied provision, § 5 para. 1, the second sentence, of Regulation. No.

330/2001 Coll., as amended by Regulation No. 233/2004 Coll., is in

conflict with constitutional acts; accordingly, in the sense of § 78

para. 2 of Act No. 182/1993 Coll., on the Constitutional Court, as

subsequently amended (hereinafter „Act on the Constitutional Court“), it

decided in its 8 February 2006 ruling, No. I.US 639/04-12, to suspend

the proceeding and to submit a petition to the Constitutional Court

Plenum for the adjudication of its constitutionality.
 

7.

By its petition delivered to the Constitutional Court on 30 November

2004, the complainant, P. s. b. d., represented by Mgr. L. H., an

attorney, sought the quashing of the 13 September 2004 ruling of the

District Court for Prague 5, No. Nc 733/2003-134, and the 29 January

2003 order to pay the costs incurred in enforcement activities, No. EX

1651/03-248, issued by JUDr. J. P., PhD., the judicial enforcement

official, as corrected by its 29 March 2004 rulings, No. 1651/03-264. 

The complainant simultaneously submitted a petition proposing the

annulment of Art. II., point 1. of Regulation No. 233/2004 Coll., which

amends Regulation No. 330/2001 Coll., on the Commissions for and

Reimbursement of Court Enforcement Officials, on the Commissions for and

Reimbursement of Expenditures of the Administrator of an Enterprise,

and on the Conditions for Indemnity of Responsibility for Damage Caused

by Enforcement Officials.  It is asserted in the petition that the

contested decisions violated the petitioner’s constitutionally protected

rights enshrined in Art. 1 of the Constitution and Art. 2 para. 2 and

Art. 40 para. 6 of the Charter; therefore, it proposed their annulment. 

The petition substantiates the proposal to annul Art. II, para. 1 of

the Regulation in view of its alleged prohibited retroactive effect. 

That proceeding is being conducted as No. I. US 752/04.
 

8.

The Constitutional Court ascertained from the file of the District

Court for Prague 5, No. Nc 733/2003, that a motion had been filed

seeking the issuance against the complainant of a warrant of execution,

in accordance with Act No. 120/2001 Sb, to exact a claim in the amount

of 5,261,822.42 Czech Crowns with ancillary rights.  By its 21 May 2003

ruling, No. Nc 733/2003-6, writ of execution was issue and a judicial

enforcement official, JUDr. J. P., from the Prague 5 Office of

Enforcement Officials, with its seat at U Šalamounky 41/769, was charged

with levying execution.  As further appears from the file, on 19 August

2003, the judicial enforcement official issued a warrant of distress

for the sale of joint property interests in immovable property and, on

23 November 2003, delivered to the obliged person the warrant of

distress enjoining claims upon the account and an order of the same day,

No. EX 1651/03-208, to pay the costs of enforcement activities in the

amount of 1,016,493 Czech Crowns (of which the enforcement official’s

commission was 926,550 Czech Crowns, the costs of enforcement activities

were 41,538 Czech Crowns, and 48,405 Czech Crowns represented

value-added tax).  The complainant filed an objection to this order in

which he drew attention to the fact that he had voluntarily paid the

debt.  By its ruling of 16 January 2004, No. Nc 733/2003-60, the

District Court quashed the order to pay the costs due to being

unverifiable and unintelligible.  In the meantime, on 19 December 2003,

the judicial enforcement official issued a further order to pay the

costs of enforcement activities, No. EX 1651/03-230, in which he

quantified further costs of enforcement activities in the amount of

2,496,784.50 Czech Crowns, which represent the costs connected with the

administration of the enterprise, that is, the expenses of the

administrator of the enterprise and his remuneration.  The complainant

also filed an objection to this order, in which he expressed the view

that the remuneration of the administrator of the enterprise lacks any

basis, as the warrant of distress to sell the enterprise was issued in

conflict with the Enforcement Code, because the previously elected

method of levying execution – the sale of the obliged person’s immovable

property – was entirely sufficient to cover the amount of the

outstanding debt.  By its 6 February 2004 ruling, No. Nc 733/2003-69,

the District Court quashed the order due to being unverifiable.  On 29

January 2004 (with the incorrect date, „29 January 2003“, which he

corrected, by giving the right date in his 29 March 2004 ruling, No. EX

1651/03-264) the judicial enforcement official issued an order to pay

the costs of enforcement activities, No. EX 1651/03-248, in the amount

of 1,173,775.40 Czech Crowns (of which 926,550 Czech Crowns represented

the enforcement official’s commission, 35,561 Czech Crowns the costs of

enforcement activities, 203,841 Czech Crowns of value-added tax on the

commission, at the 22 % rate, and 7823 Czech Crowns was the value-added

tax on the costs, at the 22 % rate).  The complainant filed an objection

against this order, as he considered the commission without basis and

the costs as undocumented and unproven.  Concurrently, by its 5 March

2004 ruling, NC 733/2003-102, the District Court for Prague 5 halted

execution of the writ, as regards the amount of 5,261,822.42 Czech

Crowns with interest due to delay and the expenses of the antecedent

proceeding, when it deemed as proven that the obliged person had settled

the claim voluntarily, without the need for enforcement, and the right

to performance thus ceased to exist; the execution of the costs of

enforcement activities was meant to continue.  By its subsequent 13

September 2004 ruling, No. Nc 733/2003-134, the District Court revised

the order to pay the costs of enforcement activities by determining the

amount of costs at 1,119,944.60 Czech Crowns, while it based its

decision on the amended wording of § 5 para. 1 of Regulation No.

330/2001 Coll., and in conformity therewith calculated the enforcement

official’s commission to be 917,830 Czech Crowns with 201,922.60 Czech

Crowns in value-added tax and cash outlays of 60 Czech Crowns with 132

Czech Crowns in value-added tax.
 

9.

In the course of the proceeding on the constitutional complaint,

Constitutional Court Panel I established that (just as in the proceeding

on the constitutional complaint in matter I. US 639/04) this case also

concerned the application of § 5 para. 1, the second sentence, of the

Regulation, including the transitional provision, the annulment of which

the complainant - P. s. b. d., - proposed in that case, and, by its 2

November 2006 ruling, No. I.US 752/04-26, on the identical grounds it

suspended the proceeding and submitted to the Constitutional Court

Plenum a petition proposing the adjudication of the constitutionality of

these provisions, as it was persuaded that they are in conflict with

constitutional acts.
 

10.

Both petitions proposing the annulment of a legal enactment concern the

legal arrangements for the commissions of enforcement officials, thus

the subjects of the proceeding are identical in content and factually

connected.  In view of this finding and in the interests of judicial

economy, the Constitutional Court decided, in its 14 November 2006

ruling No. Pl. US 8/06-18, in conformity with § 63 of the Act on the

Constitutional Court, with the application of § 112 of the Civil

Procedure Code, to join these matters for a common proceeding, with the

proviso that this proceeding will subsequently be conducted as No Pl. US

8/06.

 

B.
 

11.

In the course of the subsequent phase of the proceeding, the

Constitutional Court submitted the petition in the matter conducted as

No. I.US 639/04 to the Minister of Justice for his statement of views

and to the Public Protector of Rights (and, at the same time, asked him

to inform it whether he is intervening into the proceeding).  In view of

the fact that the matter being conducted as No. I. US 752/04 is a

matter with identical content and one that proceeds from the same line

of argument, on grounds of procedural economy, the Constitutional Court

did not consider it as indispensable to send this petition to the

interested persons.
 

12. In

its statement signed by the former Deputy Prime Minister of the Czech

Republic and the Minister of Justice, JUDr. P. N., the Ministry of

Justice first expressed doubt on whether it is appropriate, within the

framework of an enforcement proceeding, to reward the obliged person for

voluntary fulfillment otherwise than as is provided for in the valid

legal framework; in this connection, it emphasized that an enforcement

proceeding generally takes place due to the fact that the obliged person

had not fulfilled, duly and in time, his obligation from a mandatory

legal relation and not even, following the issuance of a court decision,

on the strength of that decision.  In a further part, it recapitulated

the content of § 46 para. 3, § 87 para. 1 and § 88 para. 1 of the

Enforcement Code and cited three model situations which may come about

in connection with the waiver of execution of the writ.  First of all,

the obliged person can voluntarily perform that which a power of

distress imposes upon him, on the basis of the enforcement official‘s

formal written requests that he voluntarily perform the obligation by a

deadline set by the enforcement official.  In such a case, the judicial

enforcement official can tie in the order to pay expenses with the

mentioned request, and he is entitled to a commission (if it is an

enforcement of an obligation involving the payment of a monetary sum) at

a 50 % rate.  In such a case, the judicial enforcement official can

deduce the amount of the commission based upon the presupposition that,

in reaction to the official’s request, the obliged person will

voluntarily fulfill his obligation within the set period.  A further

possibility is the voluntary performance of the duty without a prior

written request from the judicial enforcement agent; in that case the

enforcement official may, after the obligation has been satisfied, issue

an order to pay the costs of enforcement activities and, following

payment of these costs (the commission again at the rate of 50 %), waive

levying in execution of the writ.  Finally, if the situation

anticipated in § 11 para. 2 of the Regulation comes about, that is, if

the obliged person meets the obligation voluntarily only after the

deadline set in the written request has passed, the judicial enforcement

official is entitled to a commission in the full amount, an outcome

which the Ministry considers to be appropriate.
 

13.

As to the objection that there is a hidden increase in the base for the

calculation of commissions implemented by the Regulation, the Ministry

stated that it is necessary to take as the starting point the

empowerment to issue regulations, which is contained in § 131 lit. a) of

the Enforcement Code, and expressed the opinion that, in view of this

fact and taking into account Art. 4 para. 1 of the Charter, the

Regulation is in conflict neither with the constitutional order nor with

the statute for the implementation of which it was issued.
Note. The following is the relevant language of § 131 lit. a) of the Enforcement Code:
„The Ministry is empowered to set by regulation
a)

the amount of and the manner for determining the commissions of

enforcement officials, cash expenditures, the reimbursement for the

delivery of documents, and the loss of time, including a cash deposit in

an appropriate amount.“
 

14.

The Public Protector of Rights informed the Court that, in conformity

with § 69 para. 2 of the Act on the Constitutional Court, he is

intervening into the proceeding.  As to the petition itself, he stated

that could not but express his agreement with the view of the

Constitutional Court’s First Panel concerning the annulment of § 5 para.

1, the second sentence, of Regulation. No. 330/2001 Coll.; he considers

its arguments to be persuasive and exhaustive, and he agrees with the

petition proposing the annulment.
 

15.

In the course of the proceeding on the petition submitted by the

Constitutional Court’s Panel I, the Ministry of Justice proceeded to

further amend the provision in question, with effect from 1 August 2006

(see Regulation, . 291/2006 Coll., which amends Regulation of the

Ministry of Justice No. 330/2001 Coll., on the Commissions for and

Reimbursement of Court Enforcement Officials, on the Commissions for and

Reimbursement of Expenditures of the Administrator of an Enterprise,

and on the Conditions for Indemnity of Responsibility for Damage Caused

by Enforcement Officials, as amended by Regulation No. 233/2004 Coll.). 

As of that date, § 5 para. 1 reads as follows:  „Unless hereinafter

provided otherwise, the base for the determination of the commission for

the enforcement of an obligation involving the payment of a sum of

money shall be the amount of the payment exacted by the enforcement

official.  The exacted performance is deemed to be any performance

effected after the court has issued a decision pursuant to § 44 para. 2

of the Act.“  At the same time, the following rule was included among

the transitional provisions:
 „1. Enforcement officials are entitled

to the commission provided for in Regulation No. 330/2004 Coll. (note.,

the correct number is „No. 233/2004 Coll.“) and this Regulation even in

enforcement proceedings which commenced prior to the day this

Regulation entered into effect, with the exception of proceedings in

which the judicial enforcement official’s commission has already been

finally decided.“
In connection with this amendment, the Council of

Enforcement Officials submitted to the Constitutional Court an

initiative proposing that the proceeding be discontinued in the sense of

§ 67 para. 1 of the Act on the Constitutional Court.
 

16.

In this situation the Constitutional Court concerned itself with the

assessment of whether grounds have arisen for dismissing the proceeding

in accordance with § 67 para. 1 of the Act on the Constitutional Court. 

It is true that formally § 5 para. 1, the second sentence, has been

repealed; however, it was replaced by a provision which makes use of an

absolutely identical construction, the change consisting solely in the

designation of the start of the time period, from which the rendering of

performance is considered as exacted performance; in its essence, the

new determination of the start of this time period was even more in

favor of the enforcement official.  For this reason, the Constitutional

Court’s First Panel continued to adhere to its position that § 5 para.

1, second sentence of Regulation. No. 330/2001 Coll., as subsequently

amended, is in conflict with constitutional enactments, and adds that

the two above-mentioned transitional provisions also conflict with

constitutional principles.

17. Overview of relevant provisions of enforcement enactments:

The

rule waiving execution    § 46 para. 3, the first sentence of the

Enforcement Code    The enforcement official can waive levying in

execution of the writ only in the case that the obliged person

voluntarily performs that which is imposed upon him by the power of

distress, and covers the costs of enforcement activities.
 

The

rule on the costs of an enforcement action    § 87 para. 1 of the

Enforcement Code    The costs of enforcement activities comprise the

enforcement official’s commission, the reimbursement of cash

expenditures, compensation for time lost in levying execution of the

writ, compensation for the delivery of documents, the commission and the

payment of the costs of the administrator of an enterprise, and, if the

enforcement official or administrator of the enterprise is a taxpayer

of value-added tax, then the relevant value-added tax is also a cost of

enforcement action under separate legal enactments 20) (hereinafter

"costs of the enforcement activities").
Rules for the basis for

enforcement officials‘ commissions (in the case of monetary amounts)  

 § 5 para. 1 of Regulation No. 330/2001 Coll., in the version valid

until 29 April 2004    Unless hereinafter provided otherwise, the base

for the determination of the commission for the enforcement of an

obligation involving the payment of a sum of money shall be the amount

of the payment exacted by the enforcement official.
 

§

5 para. 1 of Regulation No. 330/2001 Coll., as amended by Regulation

No. 233/2004 Coll.    Unless hereinafter provided otherwise, the base

for the determination of the commission for the enforcement of an

obligation involving the payment of a sum of money shall be the amount

of the payment exacted by the enforcement official. The exacted

performance is deemed to be any performance, effected after the obliged

person has received delivery of the court’s writ of execution, in

satisfaction of the obligations stated in the writ of execution, any

performance in satisfaction of the obligation to pay the costs of

enforcement activities or to pay the entitled person‘s costs.
 

§

5 para. 1 of Regulation No. 330/2001 Coll., as amended by Regulations

No. 233/2004 Coll. and  No. 291/2006 Coll.    Unless hereinafter

provided otherwise, the base for the determination of the commission for

the enforcement of an obligation involving the payment of a sum of

money shall be the amount of the payment exacted by the enforcement

official.  The exacted performance is deemed to be any performance

effected after the court has issued a decision pursuant to § 44 para. 2

of the Act.
The rule for enforcement officials‘ commissions in the

case execution of the writ is waived     § 11 para. 1 of Reg. No.

330/2001 Coll., in the wording valid until 29 April 2004    If the

enforcement official waives levying in execution of the writ (§ 46 para.

3 of the Act), she is entitled to a commission:
a) in the case of

the enforcement of an obligation involving the payment of a sum of

money, in the amount of 50 % of the commission as calculated pursuant to

§ 6, where the basis for the commission is deemed to be the amount of

the claims that must be exacted,
b) in the case of the enforcement

of an obligation other than one involving the payment of a sum of money,

in the amount of 30 % of the commission as calculated pursuant §§ 7 to

10.

§ 11 paras. 1 and 2 of Reg.

No. 330/2001 Coll., as amended by Reg. No. 233/2004 Coll. (Reg. No.

291/2006 Coll. unaffected thereby)    (1) Unless hereinafter provided

otherwise, an enforcement official who has waived levying in execution

of a writ (§ 46 para. 3 of the Act), is entitled to a commission:
a)

in the amount of 50 % of the commission as calculated pursuant to § 6,

if it concerns the enforcement of an obligation involving the payment of

a sum of money;
b) in the amount of 30 % of the commission as

calculated pursuant §§ 7 to 10, it concerns the enforcement of some

obligation other than the payment of a sum of money.
(2) The enforcement official is entitled to a commission in the full amount, if he waives the execution of the writ after having
a)

called upon the obliged person in writing to voluntarily perform the

obligation which the power of distress imposes upon her, and
b) the

obliged person voluntarily performs that which the power of distress

imposes upon her, and reimburses the costs of enforcement activities

after the expiration of a commensurate period of time laid down by the

enforcement official in accordance with lit. a).
       


 

C.
 

18.

In norm control proceedings the Constitutional Court is obliged, in

accordance with § 68 para. 2 of the Act on the Constitutional Court, to

assess whether the contested legal enactment was adopted and issued

within the confines of the powers set down in the Constitution and in

the constitutionally prescribed manner.
 

19.

The competence of ministries to issue legal enactments for the

implementation of statutes is founded on Art. 79 para. 3 of the

Constitution, on the assumption that an express statutory empowerment

has been made.  The Constitutional Court has already expressed its view

in its judgments (for ex., No. Pl. US 45/2000) on the issue of the

constitutionality of a statutory empowerment, as well as the

interpretation of statutorily-prescribed limits to sub-statutory norm

creation.  Implementing legal enactment must, in the first place, be

issued by the authorized person.  The state body which is authorized to

issue sub-statutory legal enactment must proceed on the basis of the

statute and within its bounds (secundum et intra legem), not beyond the

statute (praeter legem).  Stated simply, if according to a statute, X

should be, the empowered state body is entitled to provide that X1, X2,

X3 should also be, but not that Y should be.  The barrier of matters

that are reserved to regulation solely by statute (the „reservation of a

statute“) then protects against the excesses of executive power; the

state body in question cannot lay down primary rules and obligations. 

From the theoretical perspective, a further requirement is placed upon

sub-statutory (implementing) enactments, namely, that they be general

and, thus, affect an uncertain group of addressees, as the Constitution

provides for empowerment to make legal rules, not to issue individual

legal acts.
 

20. In this

matter, § 131 lit. a) of the Enforcement Code is the empowerment to

issue regulations, according to which the Ministry of Justice is

empowered to lay down by regulation the amount and manner of determining

the commissions of enforcement officials, cash expenditures, the

reimbursement for the delivery of documents, and the loss of time,

including a cash deposit in an appropriate amount.
 

21.

Regulation No. 330/2001 Coll. was issued by the Ministry of Justice on 5

September 2001, promulgated on 18 September 2001 in Issue 128/2001 of

the Collection of Laws and, in accordance with its § 28, came into force

on the day of its promulgation.  The amending Regulation 233/2004 was

issued by the Ministry of Justice on 20 April 2004, promulgated on 30

April 2004 in Issue 77/2004 of the Collection of Laws and, in accordance

with its Art. III, came into force on the day of its promulgation. 

Regulation No. 291/2006 Coll., which amends Regulation of the Ministry

of Justice 330/2001 Coll., on the Commissions for and Reimbursement of

Court Enforcement Officials, on the Commissions for and Reimbursement of

Expenditures of the Administrator of an Enterprise, and on the

Conditions for Indemnity of Responsibility for Damage Caused by

Enforcement Officials, as amended by Regulation No. 233/2004 Coll., was

issued by the Ministry of Justice on 2 June 2006, promulgated on 19 June

2006 in Issue 92/2006 of the Collection of Laws, and Art. III thereof

designated 1 August 2006 as the day of its coming into force.
 

22.

The Constitutional Court has ascertained that the contested provisions

were issued by the Ministry of Justice, which is a state body that is

explicitly and specifically empowered by law (competent), and is related

in its content to the determination of the amount of compensation of

enforcement officials, so that it did not stray from the confines laid

down in the empowering provision, § 131 lit. a) of the Enforcement

Code.  In view of what has been stated, the Constitutional Court came to

the conclusion that the contested regulation was adopted and issued

within the confines of the powers set down in the Constitution.  It also

ascertained that it had been adopted in the constitutionally prescribed

manner.
 


D.
 

23.

After weighing the given arguments and positions, especially the

position of the Ministry of Justice formulated in its final petition,

the Constitutional Court came to the conclusion that it is imperative to

annul § 5 para. 1, the second sentence, of Regulation. No. 330/2001

Coll., as well as the transitional provisions to the amending rules.  In

reaching that conclusion, it was guided by the following

considerations.
 

24. The

Constitutional Court assessed (also in the sense of the first objection

put forward by the Ministry of Justice) whether grounds have arisen for

dismissing the proceeding in accordance with § 67 para. 1 of the Act on

the Constitutional Court.  It is true that § 5 para. 1, the second

sentence, has been repealed; however, it was replaced by a provision

which makes use of an absolutely identical construction.  In this

context, the Constitutional Court refers to its case law, in which it

reacted to similar situations (Judgment in the matter No. Pl. US 50/04,

especially Part VI., published as No. 154/2006 Coll.).
 

25.

As regards the Ministry of Justice‘s proposal, in eventum, to reject

the petition submitted by Panel I due to the loss of standing brought

about by the fact that the amendment to the contested provision resulted

in the subject of the constitutional complaint no longer having any

connection to the wording of § 5 para. 1, the second sentence, of

Regulation. No. 330/2001 Coll., the Constitutional Court does not concur

with this objection either, as the commencement of the proceeding is

the relevant time for determining the petitioner‘s standing.
 

26.

As to the Ministry of Justice‘s substantive objections, concentrated on

an emphasis on the status of the obliged person (there is no individual

right either to educational effects or to a reduction, so that it is

only a matter of appropriateness, not of constitutional law) and the

relation between enforcement officials (non-linear relation between the

commission and the work, no possibility to quantify it) the

Constitutional Court would add: According to Art. 1 para. 1 of the

Constitution, the Czech Republic is a sovereign, unitary, and democratic

state governed by the rule of law, founded on respect for the rights

and freedoms of man and of citizens.  Legal certainty is one of the main

pillars of the law-based state, and the content of legally normative

acts, including implementing legislation, must be adjudicated with this

in mind.  The unclear and indefinite construction of legal enactments

also represents the violation of the right to fair process protected in

Art. 36 para. 1 of the Charter.  The operation of legal enactments upon

past time periods, alternatively their influence upon past legal facts,

must also be adjudicated from the point of view of the principles of the

law-based state, and potential impermissible retroactivity may, from

this perspective, be in conflict with Art. 1 para. 1 of the

Constitution.
 

27. In its

jurisprudence, the Constitutional Court has constantly and repeatedly

recalled the connection between the principle of predictability of the

consequences of a legal enactment and the principle of the law-based

state.  Without doubt the predictability of legal enactments must be

assessed also from the dynamic perspective; that is, in amending legal

regulations, the legislature must take the existing legal situation into

account, including the situation of the course of legal relations, and

the changes must be carried out sensitively and only to the degree

essential to attain the object of regulation.  It is necessary to insist

the legislature conduct itself in such a manner, for the stability of

the sphere of free conduct is guaranteed thereby, as is the legal

certainty of parties to legal transactions (in details, Judgment in

matter No. Pl. US 38/04).  There is no doubt that these requirements

apply even in the field of derived norm creation; hence, their

satisfaction can be demanded of all subjects engaged in the issuance of

legal enactments.
 

28.

According to the Constitutional Court’s constant jurisprudence, the

principle of proportionality allows for the resolution of a conflict

between fundamental rights, or public goods protected by the

constitutional order.  This principle appears both in proceedings on

constitutional complaints and, as in the case currently under

adjudication, that is, in abstract norm control proceedings.  In the

cited 20 June 2006 Judgment, No. Pl. US 38/04 (published in the

Collection of Laws as No. 409/2006 Coll.), or in the 13 August 2002

Judgment, No. Pl. US 3/02 (published in the Collection of Laws as No.

405/2002 Coll.), the Constitutional Court declared the following

concerning cases where fundamental rights or freedoms are in conflict

with a public interest or with other fundament rights or freedoms: „ . .

. it is necessary to evaluate the objective (aim) of such interference

in relation to the means employed, and the measure for this evaluation

is the principle of proportionality (proportionality in the wider

sense), which can also be designated a ban on excessive interference

with rights and freedoms.  This general principle contains three

criteria for evaluating the permissibility of interference.  The first

of these is the principle of the capability to effectuate the objective

(or suitability), under which the relevant measure must be capable of

achieving the intended aim, which is the protection of another

fundamental right or public good.  Next is the principle of necessity,

according to which, of several possible means, it is permitted to employ

– in relation to the affected fundamental rights and freedoms – only

the least intrusive one.  The third principle is the principle of

proportionality (in the narrower sense), according to which the

detriment to a fundamental right may not be disproportionate in relation

to the intended aim, that is, in the event of a conflict between a

fundamental right or freedom with the public interest, the negative

consequences of measures restricting fundamental human rights and

freedoms may not exceed the positive elements represented by the public

interest in these measures."  The obligation to respect the principle of

proportionality does not apply only to administrative bodies in their

decision-making, but also to the legislature, in a broader perspective

to the norm-creator, which the Ministry of Justice doubtless is, so far

as concerns the creation of sub-statutory norms.
 

29.

Without denying the right of enforcement officials to fair remuneration

for enforcement activities actually carried out, the Constitutional

Court considers the fact that an enforcement official‘s base commission

also includes an amount paid by the obliged person, even if the

enforcement official had not directly participated in levying execution,

must be considered as unjustified preferential treatment as against

those enforcement officials who actually levied execution (as such a

differentiation is not rationally justifiable).  Moreover, in the

Constitutional Court’s view the adopted construction lacks even an

„educational“ component, since no possibility is provided de jure to

acknowledge that the obliged debtor has himself satisfied his obligation

(without direct action to enforce it), even if only at the last

possible moment.  Although the Regulation’s provisions indicate that

enforcement officials are entitled, in such a case, to a commission at a

50% rate, however, only in cases where the enforcement official waives

the levying of execution, whereas the Enforcement Code enables them to

do so only in the case that the costs of enforcement activities, which

includes also the enforcement official’s commission, are also paid.  It

follows therefrom that, in accordance with the literal wording of the

Act, if the obliged person fails to pay the enforcement official her

commission in the full amount, she cannot waive the levying of

execution, even if the claim being collected has been paid; therefore,

enforcement officials have the right to a commission in the full amount

(this is movement in a circle).  The Constitutional Court considers this

construction to be in conflict with Art. 1 para. 1 of the Constitution,

as the creation of unfulfillable conditions for a reduced rate to apply

is in conflict with the principle of the law-based state (see the

mentioned Judgment in the matter, Pl. US 38/04).  In its ultimate

consequences, such a legal framework also constitutes an interference

with the obliged person’s fundamental right to the protection of

property enshrined in Art. 11 para. 1 of the Charter (see also one of

the basic principles of execution – the principle of the legal

protection of the obliged person, the purpose of which consists in the

fact the execution can serve only to satisfy the entitled person’s right

and to reimburse the costs of the enforcement proceeding, including an

appropriate commission for the enforcement official; however, it may not

cause the obliged person disproportionate detriment due to the fact

that it does not properly take into account a certain measure of

„voluntariness“ in satisfying the enforced obligation, even if only

after a warrant of execution is issued, however, still prior to being

compelled to perform the obligation; the legal framework under

adjudication denies the preventive function of execution, that is, as a

mechanism, the purpose of which is not to liquidate the obliged person’s

property – see also the purpose of an insolvency proceeding).  A

reduced-rate commission can, therefore, be considered as an equivalent

corresponding to the effort expended by the enforcement official, an

option which is also in conformity with the principle of

proportionality, weighing the suitability of the interference with the

obliged person’s property against the objective of protecting the

property of the entitled person (collecting his claims).  The

Constitutional Court concludes that, in order to be constitutionally

conforming, the rules governing enforcement officials‘ commissions

should not be based on a direct correlation between the commission and

the value of the exacted performance, rather should reflect the

complexity of the enforcement officials‘ activity according to

individual types and the manner of levying execution, as well the

enforcement official’s responsibility and the amount of work required

for it.  Until such a legal arrangement is adopted, it will be up to the

ordinary courts, when deciding on enforcement officials‘ commissions,

to interpret „the extent of performance exacted by the enforcement

official“ in conformity with the indicated principles.
 

30.

The Ministry of Justice’s conviction (see para. 12) that an enforcement

official can make calculations with the presupposition that the

obligation will be satisfied, and charge a reduced commission, is based

on the „willingness“ of enforcement officials and does not correspond to

the statutory text (nor with the way enforcement officials proceed in

practice).  After all § 46 para. 3, the first sentence, of the Execution

Code enables enforcement officials to waive the levying of execution

only in the case that the obliged person voluntarily performs that which

the power of distress imposes upon him, and cover the costs of

enforcement activities (of which the enforcement official‘s commission

also constitutes a part) and the enforcement official is entitled to a

reduced commission only in the case that he or she waives the levying of

execution (§ 11 para. 1 of the Regulation).  It is also evident that

the enforcement official cannot, alternatively must not, waive the

levying of execution if the commission is not paid, and that the obliged

person cannot pay the commission until the time that he is billed for

it, since its amount is not yet known.
 

31.

In this connection and with reference to the fact that enforcement

officials cannot refuse to execute a writ, the Constitutional Court

would note that the existing rules concerning the amount of commissions

for enforcement officials cannot be justified and that the reimbursement

of the costs of the proceeding can be awarded them as against an

obliged person even in the case that the execution of the writ is halted

due to insufficient assets on the part of the obliged person (see

Position of the Constitutional Court, No. Pl. US – st. 23/06). 

Compensation in this sense of „disadvantaged“ enforcement officials must

be found in the advantages directly connected with his profession, for

ex., in his nearly exclusive status in exercising the power of distress,

in which respect only judicial enforcement officials can partially

compete with them.  It cannot be accepted that the commission charged

against one group of obligated persons can be markedly increased merely

due to the fact that, in the case of other obligated persons, which have

no functional relationship with the first group of obligated persons,

(hence, they can bear no responsibility for the first group’s debts and

lack of assets), execution of the writ had to be discontinued due to

insufficient assets.  Accordingly, the Constitutional Court has annulled

§ 5 para. 1, the second sentence, of Regulation. No. 330/2001 Coll., as

subsequently amended (the first statement of the judgment).
 

32.

The transitional provisions also violate the principle of legal

certainty, as the unconstitutional principle (i.e., that the base for an

enforcement official’s commission is established without taking into

account in any way the situation of the enforcement proceeding) applies

to proceedings initiated before the changes came into effect.  It is

generally known that legal science distinguishes „genuine

retroactivity“, which includes cases where the legal norm regulates the

creation of legal relations created prior to their coming into effect,

as well as the claims arising therefrom, from „non-genuine

retroactivity“, which consists in the fact that legal relations, which

came into being while the old law was in effect, are governed by that

law up until the time the new law takes effect, after which it is

governed by the new law.  However, the creation of legal relations,

existing prior to the entry into effect of the new legal arrangement,

legal claims which arise from these relations, and the legal

transactions already carried out are governed by the repealed legal

norm.  In both cases under adjudication, the claims being collected had

already been satisfied while the preceding legal rules were still in

effect, and the judicial enforcement officials also gave a statement of

account of the costs of enforcement activities (including the

commission); their orders were cancelled, however.  Their new orders

were assessed from the perspective of the amended rules, hence the

courts could view as unfounded any objection made with reference to the

preceding legal rules.  There is no doubt at all that such a

construction has shaken confidence in the legal order, because the

commissions are governed by legal rules which did not come into effect

until after the enforcement officials had already performed all of the

legal acts directed at the satisfaction of collected claims.  On these

grounds, the Constitutional Court has annulled the transitional

provisions (the second and third statements of judgment).
 

33.

In the spirit of these rules, the Constitutional Court appeals to the

Ministry of Justice to respect, when setting the amount of commissions

in the context of its statutory empowerment to issue implementing

legislation, the fundamental principles of justice and the law-based

state, including the principle of proportionality, which is a modern

constitutional principle (which, according to the Constitutional Court’s

constant jurisprudence, also applies – cf. Judgment in matter Pl. US

33/97, and calls upon the legislature to satisfy it when creating legal

enactments - cf. Judgment in matter, Pl. US 61/04).  Inspiration

therefor can be found in an overview of the course of determination by

the Ministry of the level of the commission of advocates and notaries.
 

34.

Nor is the inconsistent judicial practice in relation to „waiver of

levying in execution of the writ“ (§ 46 para. 3, the first sentence, of

Act No. 120/01 Coll.) conducive to legal certainty.  The wording of this

provision suggests that it is an informal transaction on the part of

the enforcement official, which cannot be considered permissible.  The

moment at which a proceeding in execution concludes must be

unequivocally determined (also in relation to third parties, for ex.,

for the expunging of entries from the land register).  Whereas in the

proceeding held before the District Court for Prague 5, by its 5 March

2004 ruling, No. Nc 733/2003-102, the court halted execution of the

writ, in the proceeding held before the District Court for Prague 3, no

such act was done.  The Constitutional Court considers it appropriate

for ordinary courts to conduct proceedings on the enforcement of

decisions consistently, in accordance with § 268 para. 1, lit. g) of the

Civil Procedure Code, and to dismiss proceedings even in the case that a

collected claim ceases to exist in the course of the enforcement

proceeding because it has been satisfied.
 

35.

For the reasons given, the Constitutional Court Plenum decided, on the

basis of § 70 para. 1 of the Act on the Constitutional Court, to annul §

5 para. 1, the second sentence, of Regulation. No. 330/2001 Coll., as

subsequently amended, Art. II., point 1. of Regulation No. 233/2004

Coll., and Art. II., point 1. of Regulation No. 291/2006 Coll., as of

the day this Judgment is published in the Collection of Laws.

Notice: Decisions of the Constitutional Court cannot be appealed.

 

Brno 1 March 2007

 



Dissenting  Opinion
of Justice Vladimír Kůrka

This

separate opinion is directed exclusively against the first statement of

the judgment and is based above all upon the conviction that the

majority opinion of the Constitutional Court Plenum grounded its

reservation in § 5 para. 1, the second sentence, of Regulation. No.

330/2001 Coll., as subsequently amended (hereinafter „Regulation No.

330/2001 Coll.“), inappositely, as this provision is, from the

perspective of the criticisms expressed in the Judgment, as well as the

aim pursued therein, of no consequence.  After all, it merely serves as

the basis for the (general) determination of the commission of

enforcement officials, whereas, in contrast thereto, in the decisive

connections, it was § 11 para. 1 which was determinative; it was

precisely the latter provision‘s purpose to react to the situation about

which the Constitutional Court was concerned in both matters („if the

obliged person voluntarily performs that which the power of distress

imposes upon her . . .“) and only on the basis of that provision was it

meant to be made clear that the cost burden on obliged persons, as far

as concerns the enforcement official’s commission, lowers such that

enforcement officials receive only 50 % of the amount they would be

entitled to, if they had actually (by enforcement instruments) exacted

the relevant performance.  For that matter, in matter No. I. US 639/04,

from which emerged the First Panel’s petition pursuant to § 64 para. 1

lit. c) of the Act on the Constitutional Court, the complainant sought

precisely that the boon of the provisions of § 11 para. 1, lit. a) of

Regulation No. 330/2001 Coll. not be denied her.
 

The

plenary Judgment does not in any sense call into doubt this objective

of the provisions of § 11 para. 1 of the Regulation; it is entirely

within its rights, however, to criticize it that, by conjoining it with

the obliged person‘s duty also „to pay the costs of enforcement

activities“ it is rendered effectively inapplicable, in consequence of

which it comes into conflict with Art. 1 para. 1 of the Constitution, as

„the creation of unfulfillable conditions for a reduced rate to apply

is in conflict with the principle of the law-based state“.
 

It

is therefore precisely the provisions of § 11 para. 1 of the Regulation

(and not § 5 para. 1, the second sentence) whose intention is, on the

one hand, to take into account the actual reduction of the enforcement

officials‘ „efforts“ in procuring the performance of the obligation

according to the power to act (which corresponds also to the reduction

of his fee) and, on the other hand, to have „educational“ effects on the

obliged person, due to the fact the he obtains a certain cost

„discount“, if he performs „at the last possible moment“ without being

obliged to do so by enforcement.
 

The

provisions of § 5 para. 1, the second sentence, of the Regulation is

directed at a dissimilar objective.  It is an attempt to eliminate the

problem connected with the first sentence of this provision, namely, to

explicate the term, „exacted performance“ in situations when, after an

enforcement proceeding has already commenced, the obliged person

performed the obligation „voluntarily“.  The need to supplement the

original (single) sentence of § 5 para. 1 came about due to the fact

that there was no unity in judicial practice on the issue of whether an

„exacted performance“ can be understood exclusively as that which was

effectuated within the framework of instruments of enforcement actually

carried out (on the basis of the execution orders issued by the

enforcement official) or, on the contrary, whether it also included

performances provided by the obliged person, although outside of that

framework, but under the pressure thereof and in an effort to avert it,

when an enforcement official has at the same time already, on the basis

of the charge to execute a specific writ, engaged in certain activity. 

Grounds, which could not be overlooked, existed for placing both on a

par with each other, thus, even in the second instance of provided

performance, for conceiving of it as „exacted“ (and as forming a part of

the „base for the determination of the commission for levying in

execution of the writ“ in the sense of § 5 para. 1, the first sentence,

of the Regulation).  Situations are known which are difficult to

distinguish, namely, if the obliged person performs within the framework

of the manner in which the execution is levied, or outside of that

framework, or „voluntarily“ (cf., for ex. § 325a of the Civil Procedure

Code, before the enforcement official resorts to a personal search).
 

In

place of the until then ambiguous interpretation, the second sentence

of § 5 para. 1 of the Regulation laid down (from the entry into effect

of Regulation No. 233/2004 Coll.) a statutory fiction, which is to

consider a performance as „exacted“; the amendment conveys a substantive

meaning that could also have been accomplished by interpretation, but

which judicial practice had not proved able (timely) to unify.
 

On

a general level, it applies that a legal fiction is permissible, even

in terms of the constitutional requirements, if it pursues a legitimate

aim, and if it is appropriate, necessary, and proportionate.
 

It

follows from the described difficulty in interpreting § 5 para. 1 in

its original wording, and it can also further be substantiated, that the

fictions expressed afterward in § 5 para. 1, the second sentence,

moreover, as amended by Regulation No. 291/2006 Coll., are tolerable

from those perspectives.  The concept of an exacted performance, as

amended in Regulation No. 233/2004 Coll., reflects first and foremost

the circumstance of „non-voluntariness“ of the obliged person’s

performance, if it occurred by the operation of the subjectively

intermediated fact of execution (by delivery of the court’s writ of

execution); a performance „exacted“ in the sense of Regulation No.

291/2006 Coll. then proceeds from the fact that at the moment the court

issues its writ of execution and charges an enforcement official with

executing it, certain „endeavor“ or activity by the enforcement official

is generally already tied up therewith (cf., for ex., § 35 para. 2, §

44 para. 1 of the Enforcement Code).  The acceptability of these

fictions is deepened by the observation that only the base of

enforcement officials‘ commissions is determined through them, whereas

the reduction thereof, in the case of satisfaction which the obliged

person provides in the framework of the Enforcement Code (however, apart

from the regime of compelled collection according to the issued

enforcement orders), is reserved for the instrument to which the

provisions of § 11 para. 1 of the Regulation is directed.
 

The

elimination of the second sentence of § 5 para. 1 of the Regulation can

only accomplish the result that the original interpretive problem,

namely, what constitutes an „exacted performance“, be reopened for

judicial practice.
 

Even if

objections can be raised against the specific form of the fiction under §

5 para. 1, the second sentence, of the Regulation (which can be

imagined especially in relation to those already established by

Regulation No. 291/2006 Coll.), one cannot even disregard the fact that

„purposefulness“, alternatively „appropriateness“ or „correctness“, are

not, in and of themselves, applicable considerations of

constitutionality, that is, of the constitutional review of legal norms.
 

A

constitutional law element can hardly be found in the consideration

that, „without the direct participation“ of the enforcement official in

the obliged person’s performance of her obligation, the enforcement

official would receive an unjustified preference as against those

enforcement officials who „actually“ levied execution (as in one case,

the latter will be made up of a particular group of people, but in

another case, they will be other people, and there is nothing suggesting

that they would feel themselves discriminated against), and the

prospective absence of any „educative“ component in relation to the

obliged person clearly does not rise to the level of constitutional law,

if, as was already stated, an effective room is reserved for that

interest in some other context (§ 11 para. 1 of the Regulation).
 

A

genuine constitutional law argument on the protection of property in

the sense of Art. 11 para. 1 of the Charter, bound up with the principle

of the protection of the obliged person (not to cause him detriment to a

greater extent than is indispensable, etc.), which was otherwise

justifiably asserted in the Judgment, has, however, a limit, which

cannot be overlooked and is constituted „by enforcement“; protection

which is provided to the obliged person is logically limited by the fact

that it attaches to a person who did not voluntarily meet his

obligation, so that it was necessary authoritatively to impose it upon

him by the power of distress (typically through judicial decision), and

which he, nevertheless, did not perform in favor of the entitled person,

not even by a further deadline set on the basis of the right.  If such a

person takes upon himself the risk that execution will be levied

against him, it is not unacceptably, even in constitutional law, to

connect therewith also the adverse consequences of a further judicial

(enforcement) proceeding, which consists in objectively anticipated

detriment in terms of costs, including the costs of enforcement

activities, as a part of the enforcement official’s commission (§ 87

para. 1 of the Enforcement Code).  Then it can only with difficulty be

deduced that the protection of the obliged persons under Art. 11 para. 1

of the Charter could find expression even in the assessment of which

performance, provided after the enforcement proceeding has already

commenced, should come within the concept of an „exacted“ performance

and which should not.
 

Finally

it is appropriate to remark that certain „flat rating“ of the costs of a

proceeding (whether it appears in the form of the State’s cost, which

the parties to a court proceeding help to defray by paying court fees,

or the costs of representation, which the parties are obliged to pay)

are, in relation to court proceedings, accepted by a general consensus,

as such „flat rating“ captures the objective inability – only for the

determination of those costs, that is apart from the actual focal point

of the relevant proceeding - satisfactorily (and „practically“) to lay

down the „actual“ or „appropriate“ costs, and those corresponding to the

effort or expert requirements, whether of the State or the

representatives of the parties.  Therefore, in these contexts, the

„value“ of the dispute is traditionally measured by the subject, chiefly

expressed monetarily, and not by an estimate of its „actual“ expert or

organizational demandingness (cf. § 6 of Act No. 549/1991 Coll., on

Court Fees; § 7, § 8 of Regulation No. 177/1996 Coll., on the

Remuneration of Attorneys and Substitute Attorneys for the Provision of

Legal Services; § 3 of Regulation No. 484/2000 Coll., which Lays Down a

Flat Rate Remuneration for an Attorney or Notary representing a Party in

Decision-Making on the Reimbursement of Costs in a Civil Court

Proceeding; § 4 of Regulation No. 196/2001 Coll., on the Remuneration

and Substitution of Notaries and Inheritance Administrators; and

others).  Where a situation arises that is genuinely of the type of

lower „demandingness“, the mentioned enactments do not look for a

„discount“ in the reduction of objects, „bases“, or „tariff values“,

etc. (cf. § 5 para. 1 of Regulation No. 330/2001 Coll.), rather in the

regime which the provisions of § 11 para. 1 of the same enactment (see §

10 para. 3 of Act No. 549/1991 Coll. or § 13 to § 15 of Regulation No.

484/2000 Coll.) is – in the context – meant to serve.
 

Stated

in summary, it leads to the conclusion that the Judgment’s line of

reasoning against the provisions of § 5 para. 1, the second sentence, of

Regulation No. 330/2001 Coll., is effective neither on the plane of

sub-constitutional law nor on the constitutional law plane, and that the

ambition to derogate should not have been directed against this

provision, rather against § 11 para. 1, to which a significant part of

the Judgment’s reasoning otherwise applies.
 

Brno, 1 March 2007