Tuesday May 24, 2022

the state court rejected the petition for annulment of the photovoltaic tax

The state court today announced a ruling that rejected the sentor group’s proposal to repeal the first tax law on photovoltaics, which introduced levies for electricity from solar energy produced from 1 January 2011 to 31 December 2013 in the plant put into operation in the period from 1 January 2011. .

According to the petitioner, the right was challenged in violation of the guaranteed first ownership of property according to Article 11 of the Charter of Fundamental Rights and Freedoms, resp. the first to protect against interference with peaceful inside property according to Article 1 of the Additional Protocol to the Speech (in connection with the violation of the principle of legitimate law), activity. According to the press of the Constitutional Court at first, the Constitutional Court took as a starting point the situation that led to the adoption of these rights. This was a situation where the rapid development of energy production from renewable energy sources, which was caused mainly by a jump in the price of photovoltaic panels, caused an increase in the cost of its financing, which led to a reassessment of the current position on public support for energy production from renewable sources.

This is not so-called true retroactivity

the Constitutional Court found that this measure had the character of the so-called false retroactivity; there was no real retroactivity, or in the present case it is especially clear that the tax period, resp. similarly, in which electricity is produced by the subject of the levy with the activity of the first regulation only after (the subject of the levy is not electricity produced at all by the activity of the end). the Constitutional Court stated that true retroactivity is permissible only in exceptional cases, while false law is generally permissible; is in accordance with the principle of protection of the yard in the first place, if it is suitable and necessary to achieve the end of the monitored goal and in the overall relatively “disappointed” yard and the nature and urgency of the first change will be maintained. Even with regard to the extent of the comparison with foreign first laws and case law, the state court did not find on the part of the affected photovoltaic power plant operator a relevant interest in maintaining the current prices for electricity from renewable sources and the green bonus without further deduction.

Economic reasons were relevant for taxation

The current state court found, in connection with maintaining the return on investment in a given type of power plant (15 years), relevant economic reasons for the measure and the possibility for the contractor to evaluate the aid in the light of the development of the situation. The Constitutional Court thus did not find a violation of the constitutional principle of equality in the case of the affected power plant operator (as opposed to two electric ones put into operation), or the provision of the contract was rational, reasonable and free of arbitrariness.

The donor tax on allowances is thus in the horseshoe

With regard to the introduction of a donation tax, the subject of which is the free acquisition of glass gas emission allowances in 2011 and 2012 for electricity generation, the state court concluded that it was only a reduction of the support provided for by two, which cannot be attributed to the petitioners. would be set out in this way in future support to exclude any new set of rules (tax). In the case of abolition of the exemption from income tax from the operation of solar installations, the state court stated that the first law is intended, among other things, to fulfill a significant public interest (maintaining stability of energy prices, unusual public debt, etc.), which would be in the spirit of case law drain even the potential impact on the legitimate effect of the fee.

The first certainty is not immutability

According to the Constitutional Court, the principle of first security cannot be confused with the requirement that the first law be absolutely immutable; This is due, among other things, to social economic changes and a year on the stability of the central budget. On the other hand, the state court did not rule out that in individual cases it could provide protection to individual power plant operators, if it turned out that even in their specific case the effects of the assessed funds would be liquidated. A detailed summary of the decision of the Constitutional Court can be found here.

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