CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ CONSTITUTIONAL REVIEW AND THE PRELIMINARY RULING PROCEDURE … Freedoms. 10 Thus, the CCC approved the CIFLIT conditions and confirmed their relevance in the Czech constitutional construction. An open question was the intensity of scrutiny by the CCC of the use of CIFLIT conditions, in other words, how strictly supreme courts would be obliged to adhere to CIFLIT conditions. This issue was addressed very openly in a recent decision in CCB case. 11 The paper will first shorty cover the facts and procedure until the case reached the CCC as well as the very decision of the CCC. Afterwards, further comments and observations will be added. 2.1 Facts of the case and procedure before ordinary courts The case concerned a dispute between the Czechoslovak Commercial Bank 12 (further referred as “CCB”), a banking company settled in the Czech Republic, and the Guarantee System of the Financial Market (“GSFM”) on the insurance of money deposits of the CCB in its subsidiary in the Slovak Republic (in the period of 2002–2006 13 ). The CCB paid insurance for its subsidiary which was active in Slovakia and operated on the basis of the Slovak licence. However, it was asserted that according to the Czech law it was bound to pay it in the Czech Republic as the Czech banks were obliged to pay the insurance for deposits in the country where they had their seat, not in the host Member States where they had their subsidies. This obligation was classified as an implementation of the EU law on the deposit- guarantee schemes 14 and was not touched by payments done in Slovakia. 15 The CCB claimed that the purpose of the legislation was reached as the deposits in Slovakia were covered by the insurance. According to the CCB neither the EU legislation nor the Czech law set up the obligation to pay insurance for the deposits in Slovakia. 16 The CCB’s interpretation was shared by the court of first instance, as well as the appellate court. However, the Supreme Court was of a different opinion and confirmed that the Czech legislation covers all deposits in banks settled in the Czech Republic including their subsidiaries abroad. Payments for deposits in the Slovak subsidiary were classified as voluntary contributions. 17 The Supreme Court annulled decisions of lower courts which had to decide the case again being bound by the interpretations of the Supreme Court. Consequently, the lower courts decided in favour of the GSFM. During the procedure the CCB asked the courts to initiate the preliminary ruling procedure. This was refused by lower courts as well as the Supreme 11 Judgment of the Czech Constitutional Court, II. ÚS 3432/17 delivered on September 11, 2018, in case Československá obchodní banka v. Garanční systém finančního trhu, available in Czech here: https://www. usoud.cz/vyhledavani-rozhodnuti-us/. 12 In the Czech language “ Československá obchodní banka ”. 13 Thus partly covering also the period after the Czech accession to the EU in May 2004. 14 Namely Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit- guarantee schemes, OJ L 135, 31.5.1994, p. 5-14. 15 Cf. II. ÚS 3432/17, para 3. 16 Cf. ibid, para 4. 17 Cf. ibid, paras 5-6. 2. The CCB case 10 For more on this decision see STEHLÍK, Václav. The obligatory preliminary ruling procedure and its enforcement in the Czech and Slovak legal order, op. cit., p. 6-25.

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