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Important Legislative Changes as of 1 January 2013

Important Legislative Changes as of 1 January 2013

16.1.2013 14:55
Autor: KŠB, KSB


1 Civil Procedure and Distraint Proceedings

1.1 New Rules Applicable to Distraint and Judgment Enforcement Proceedings

(Act No. 396/2012 Coll., amending Act No. 99/1963 Coll., the Civil Procedure Code, as amended; Act No. 120/2001 Coll., the Distraint Procedure Code, as amended, 513/1991 Coll.; the Commercial Code, as amended; and other associated acts)

  • The rules for distraint and enforcement proceedings will change substantially. The existence of two alternatives allowing a creditor to choose at its own discretion whether to claim forced satisfaction of his/her/its right (court enforcement procedure available under the Civil Procedure Code and distraint proceedings conducted by a court-appointed distrainer) was abolished.
  • The courts will enforce judgments on a limited basis only, i.e. in matters explicitly listed in the Civil Procedure Code, such as the bringing up of minors, evictions and decisions made by foreign-country authorities, including EU authorities.
  • Therefore, distrainers will be in charge of most of the cases involving the forced discharge of a duty, including the collection of cash debt established in both private and commercial transactions.
  • Distrainers’ independence is to be boosted. Previously, the court was the party in charge of ordering distraint proceedings and appointing a particular distrainer to be responsible for it and an appeal could be filed against such an order. Now, however, the court will only authorize a distrainer to carry out distraint proceedings; the debtor will be notified thereafter that distraint proceedings have commenced. The debtor’s assets will typically be blocked and the debtor will receive a distraint notice with a list of particular assets to be seized, with both actions usually taking place simultaneously together with an announcement (notice) regarding the commencement of the distraint proceedings. Hence, appeals against distraint proceedings can no longer be filed. However, if the requirements for the pending distraint procedure are not complied with, the court shall give the distrainer a binding instruction to refuse to dismiss the distraint petition.
  • New individual methods of judgment enforcement:
    • Judgment enforcement by property management has been introduced – the beneficiary receives the management yield minus costs.
    • In judgment enforcement via a sale of movable and immovable assets, the rules applicable to making the list of assets and holding online auctions have been made more specific.
    • The method of seizing the obliged party’s shareholding in a company or cooperative has also changed. For instance, a member’s shareholding in a limited liability company can be sold at auction.
    • A judgment enforcement by seizing a business must take the form of either management of the business or its sale at auction.
  • The amendment to the Distraint Procedure Code includes the following changes:
    • distraint records that include enforcement consent have been cancelled;
    • distrainers will be required to join proceedings against the obliged party, subject to certain conditions;
    • the deadline for voluntary discharge has been extended from 15 to 30 days; and
    • a new distraint method – suspension of a driver’s licence – has been introduced for collecting overdue alimony.
  • To collect a debt that forms a part of joint matrimonial property, the assets of the obliged party’s spouse can be seized, especially by payroll deductions or by issuing an order to satisfy the debt from the spouse’s bank account.
  • Pets have been excluded from both the judgment enforcement and distraint proceedings.
  • The amendment to the Civil Code Procedure contains an important new feature besides judgment enforcement: pre-litigation notices to perform and discharge. Sending such notices to the defendant no later than 7 days before the lawsuit is filed constitutes a prerequisite for establishing the right to have litigation costs reimbursed in disputes over the discharge of a duty.

1.2 Restricted Application of Special Appeals in Civil Court Proceedings

(Act No. 404/2012 Coll., amending Act No. 99/1963 Coll., the Civil Procedure Code, as amended, and other regulations)

Another amendment to the Civil Procedure Code contains primarily new rules for special appeals: an extraordinary remedy decided by the Supreme Court. The former rules were recently abolished by the Constitutional Court.

  • Special appeals will now be admissible but only if the contested decision of the appellate court requires the resolution of a legal issue (of substantive or procedural law):
    • in which the appellate court deviated from Supreme Court decisions;
    • which has not yet been dealt with or resolved by the Supreme Court or which the Supreme Court previously resolved differently; and/or
    • if the issue has been resolved by the Supreme Court and the petitioner would like a different assessment.
  • The only reason for a special appeal is therefore the fact that the appellate court’s decision is based on an incorrect assessment of the matter.
  • The group of matters in which special appeals are not admissible has changed.
  • Formal requirements for special appeals have been set forth in greater detail.
  • The Supreme Court will have the right to postpone not only the enforceability but also the legal force of the contested judgment. The Supreme Court will also have the right to change the contested judgment.

In addition to special appeal issues, other changes include the following.

  • Certain document delivery issues associated with deliveries via data inboxes, such as the moment at which proceedings begin. Proceedings are now deemed to have begun at the moment when the motion is available in the information system developed for accepting the motion.
  • Substitute delivery via a data inbox will be available for resolutions imposing a duty to make a statement and for subpoenas to appear at a preliminary hearing.
  • Proceedings on whether an apartment lease termination notice is invalid and proceedings on unilateral increases will be indisputable proceedings.
  • Options for presenting evidence and exhibits have been expanded to include modern technical devices, such as video conferences and electronic document display systems.
  • The deadline for filing objections against promissory-note or cheque payment orders have been extended to 8 days.
  • Appeals can no longer be filed against adjudications that terminated a payment order.
  • The deadline for decisions on appeals against certain injunctions has been reduced to 7 days.
2 Energy Law

2.1 Renewable and Other Energy Sources

(Act No. 165/2012 Coll., on Supported Energy Sources and the Amendment of Certain Acts, and related implementation legislation)

  • Support for alternative energy sources is regulated by an entirely new act commencing in 2013 (some provisions have been in effect since the Act was issued in 2012). New implementation legislation was issued simultaneously.
  • The new rules also apply to support for heat generation from renewable sources, support for secondary energy sources and electricity and heat cogeneration, i.e. the new rules impose a unified support system on all of the foregoing types of generation. Support for bio-methane by means of green bonuses is an entirely new feature.
  • A new model has been introduced for purchasing electricity and paying the support, both of which shall be carried out via market operators (not the regional distribution grid operators as before).
  • The new rules favour green bonuses. The model of fixed purchase prices and payments through the mandatory purchaser shall continue to apply only to generation facilities with low installed output, i.e. up to 100 kW (inclusive).
  • Green bonuses shall be paid on an annual (for power plants up to 100 kW) or hourly basis (for other power plants).
  • The regulator shall set the amount of support to guarantee a 15-year simple return on the investment and, at the same time, to preserve the amount of revenue throughout the existence of a right to support with an annual increase of 2%. This does not apply to generation facilities burning biomass, biogas or bioliquids.
  • The purchase price determined for a particular calendar year must not be lower than 95% of the purchase price applicable in the prior year; this does not apply if the return drops below 12 years. At the same time, the purchase price imposed by the energy regulator for a particular calendar year must not be higher than 115% of the purchase price applicable in the prior year.
  • Electricity generation facilities using renewable sources will continue to enjoy the right to receive electricity support throughout the lifetime of the generation facility as set in the implementation legislation.
  • The solar levy introduced by the old act is preserved; it shall therefore apply to electricity generated from solar radiation in 2013 in facilities commissioned from 1 January 2009 to 31 December 2010.

2.2 Energy Labels for Buildings

(Act No. 318/2012 Coll., amending Act No. 406/2000 Coll., the Energy Management Act, as amended)

  • The amendment extends the duties of owners of apartments, homes and other buildings who are required to “attach” an energy label to their property (i.e. an energy consumption label indicating the anticipated annual energy consumption of household appliances using energy efficiency classes A through G). As of 1 January 2013, the label must be presented when the property or any part thereof, such as an apartment in an apartment house, is sold or leased. Not only should the label be presented to the prospective buyer or lessee before the sale or lease contract is concluded but the energy efficiency class should be included in the sale or lease information and advertising materials as well.
  • As of 2013, energy labels are required for any substantial modifications to completed buildings; previously, when a modification affected a building’s energy efficiency, the duty only applied to buildings with floorage exceeding 1,000 m2.
  • The amendment features a number of new long-term duties. In line with the European Directive on the energy performance of buildings, the amendment introduces requirements for “buildings with almost zero energy consumption”, which are defined as buildings with very low energy performance whose energy consumption is substantially covered from renewable sources.
  • All new buildings are required to comply with these requirements starting in 2021, with public authority buildings so required from 2019. Compliance with the prescribed parameters must be documented in advance upon filing the construction permit application; depending on the size of the building, this procedure must be applied starting in 2018, and 2016 for public authority buildings. Before that, however, the energy efficiency of any construction intentions – new buildings – will have to be proven on a cost-optimum basis (i.e. that the investment is beneficial to the owner throughout the lifetime of the building).
  • Energy audits and energy reports are subject to new rules.
  • Further changes also concern the rules applicable to energy efficiency and boiler and HVAC system inspections, a duty to equip central heating systems with a meter and, also, penalty rules.
3 Environment

Emission Allowance Trading

(Act No. 383/2012 Coll., the Greenhouse Gas Emission Allowance Trading Act)

This new act is a response to the gradual transformation of the free allowance allocation system to the sale thereof in auctions. 

  • This applies, inter alia, to the system for issuing greenhouse gas emission permits, the terms and conditions for enrolling in the allowance trading system, allowance auctions, free-of-charge allowance allocation, rules for new parties on the market, distribution of allowance revenues, metering, recording and verification of the amount of emissions and how the allowances, allocated quantity units, and other emissions rights are managed.
  • Pursuant to Directive 2009/29/ES, which is transposed by the Greenhouse Gas Emission Allowance Trading Act, at least half of the allowance-generated revenues must be spent on environmental measures. Also, energy companies which, by means of a governmental decision, receive approximately one third of all allowances allocated to the Czech Republic are required to invest the saved funds in approved measures to upgrade the electricity generation process.
4 Pension Reform

Pension system reform is governed by several acts:

Act No. 426/2011 Coll., the Pension Savings Act

  • The Pension Savings Act introduces the “second pillar pension plan” – a savings scheme through a pension fund established by a pension company.
  • Participation in the system is voluntary; however, the decision to participate is irreversible. Parties eligible to enrol in the second pillar are persons between the ages of 18 and 35 years of age; however, a person cannot enrol after the end of the year in which they turn 35. Persons older than 35 on the pension reform effective date have until the end of June 2013 to opt in.
  • The act sets forth 4 mandatory types of pension funds from which participants may choose at their own discretion depending on their desired saving strategy.
  • The funds in the pension savings system – the saved funds – can only be used to purchase a pension with a selected life insurance company, either in the form of life annuity or a 20-year pension; a one-off payment is admissible only if the saved amount falls below a certain threshold. The funds in the second pillar may be inherited.
  • The act further regulates the principles on which a pension company shall operate and invest, the requirements for its minimum capital, the maximum amount of remuneration to which the pension company is entitled (0.3-0.6% of the average annual value of the fund’s equity depending on the fund’s strategy as well as the amount of fees – such as the fee for changing the strategy (no more than CZK 500) or switching the pension company (no more than CZK 800)), reporting duties, supervision by the Czech National Bank, etc.
Act No. 427/2011 Coll., the Complementary Pension Savings Act

  • In addition to affecting the status and operations of the pension companies, the act primarily applies to and governs voluntary complementary pension savings plans with pension companies in its participation funds (“third pillar”).
  • The funds available in the savings scheme can be paid out as, inter alia, old-age and disability pensions for a predetermined amount of time, a one-off settlement, one-off compensation, a life pension or pension of a particular amount for a particular period of time.
  • The right to receive a state contribution depends on how much the participant him or herself contributes (e.g. CZK 90 if one contributes CZK 300 per month, CZK 230 if one contributes CZK 1,000 or more). The minimum amount of a participant’s contribution is CZK 100 per month.
  • The act further outlines the principles for transforming the existing complementary pension insurance in an effort to separate the pension fund’s assets from the participant’s assets. The transformation shall take place based on a plan which must describe in detail the assets to belong to the transformed fund and the assets to belong to the pension company. On the transformation date, the current pension funds transform into a pension company (provided a license is obtained by 1 January 2013) and the assets of the participants are to be transferred to the transformed participation fund administered by the pension company. The rights and obligations of the participants in the transformed fund shall survive, including the guarantee of a non-negative valuation of the funds. Participant claims will continue to be governed by the existing Complementary Pension Insurance Act.
Act No. 397/2012 Coll., the Pension Insurance Premiums Act

  • This act applies to pension insurance premiums and provides that pension insurance premiums form mandatory cash performance to be paid by participants in the second pillar.
  • The pension insurance premiums are to replace a portion of the premiums paid under the current pension insurance, i.e. insurance premiums removed from the state system in the amount of 3%; in addition to the 3%, the participant is required to save 2%.
  • Insurance premiums for individual payers are to be transferred to accounts of pension companies. The insurance premiums of employees are to be paid by their employers.
Act No. 403/2012 Coll., amending Act No. 427/2011 Coll., the Complementary Pension Savings Act, and other associated acts

  • The amendment introduces an “early pension” option – the opportunity to receive a pension from the complementary pension savings system 5 years before reaching retirement age (this does not apply to one-off settlements). Receiving early pension payments will be without prejudice to the amount of the pension available from the pay-as-you-go first pillar or the public health insurance of such individuals.

Governmental Order No. 361/2012 Coll., on disclosing information of key importance to the participants in complementary pension savings schemes and in the pension savings scheme

  • The order imposes the requirements, structure, form and updates of key information for participants of the second and third pillar pensions.
5 Construction and Expropriation of Real Property

5.1 Zoning and Construction Proceedings Made Simpler

(Act No. 350/2012 Coll., amending Act No. 183/2006 Coll., the Construction Act, as amended, and certain associated acts)

The aim of this substantial amendment to the Construction Act was twofold: to add detail to the existing rules and to simplify a number of procedures and doctrines; this applies to all zoning proceedings and intentions which do not require an environmental impact assessment.

The amendment:

  • details the procedures for simplified zoning proceedings;
  • modifies the rules for zoning approval;
  • regulates the procedures for entering into a public-law contract that replaces the zoning decision;
  • imposes deadlines for zoning decisions;
  • extends deregulation in both zoning and construction proceedings, i.e. extends the list of development intentions for which a zoning decision, zoning approval, construction permit, or notification is not required;
  • changes the procedural rules for authorized inspectors;
  • details default rules; and
  •  removes certain deviations or dual provisions in the procedural rules in comparison to the Code of Administrative Procedure, such as how documents are disclosed and published.
5.2 Amendment to the Expropriation Act

(Act No. 405/2012 Coll., amending Act No. 184/2006 Coll., the Expropriation Act; Act No. 357/1992 Coll., the Inheritance, Gift and Real Estate transfer Tax Act, as amended; and Act No. 416/2009 Coll., on Accelerating the Construction of Transportation, Water and Energy Infrastructure; as amended, which is to take force and effect on 1 February 2013)

  • The amendment partially softens up the conditions for admissibility of expropriation; it, among other things, reduces the deadline for negotiations from 6 months to 90 days; the property can therefore be expropriated if the expropriating party fails to enter into an agreement to transfer the land or building title within 90 days after the draft agreement is presented.
  • An expert report must be attached to the draft agreement; it should outline the grounds by which the expropriating party supports the compensation calculation.
  • When expropriation takes place, leaseholds will not terminate automatically. They can, however, be cancelled if they hinder the purpose of the expropriation.
  • The rules applicable to how compensation for the expropriation is calculated will change: the valuation or devaluation of real property as a result of the expropriation will no longer be taken into account.
  • Decisions in expropriation proceedings shall be broken down into the expropriation award and the compensation award and no appeal against the compensation award shall prevent the expropriation award from taking legal force.
  • In appellate proceedings, the compensation award cannot be changed to the detriment of the expropriated party or any third parties.
  • The jurisdiction concerning court reviews of expropriation decisions will change: while the expropriation awards fall under the jurisdiction of administrative courts, the compensation awards will fall under the jurisdiction of civil courts.
  • The court shall have the right to increase the compensation by fixed coefficients in special circumstances:
    • by up to 40%, in order to relieve the harshness of an expropriation in cases where the real property was owned for over 15 years; or
    • by up to 10% if an expropriated property is located within a municipality or is of special architectural or historic value.
6 Tax, Health Insurance, Financial and Customs Administration

6.1 Tax Increase

(Act No. 500/2012 Coll., on amendment to tax, insurance and other acts in connection with reducing the public budget deficit)

The government presented its consolidation package, also known as the deficit package, to increase revenue and optimize spending in the short term. Primarily, the package introduces higher value added tax and a solidarity tax on more affluent taxpayers, and reduces the flat-rate cost deductions for certain categories of sole traders:

INCOME TAX

  • Flat-rate costs and expenses will be restricted for the following groups of sole traders:
    • taxpayers applying a 40% flat-rate costs and expenses deduction, i.e. individuals who carry out business under special legislation (such as physicians, auditors, solar power plant owners, experts, attorneys-at-law, artists, etc.) will be subject to an overall cap of CZK 800,000; and
    • taxpayers applying a 30% flat-rate costs and expenses deduction, i.e. individuals generating income from leaseholds, will be subject to an overall cap of CZK 600,000.
  • At the same time, taxpayers who apply a percentage-based discount will no longer be able to apply a tax discount for a spouse and take advantage of child-related tax relief if the sum of their sectional tax bases to which the flat-rate costs and expenses were applied exceeds 50% of their total tax base.
  • Taxpayers whose income exceeds 48 times the average salary (i.e. CZK 1,242,432 in 2013) will be subject to a 7% solidarity tax surcharge. This measure shall apply for two years, from 2013 to 2015. Taxpayers subject to the solidarity tax surcharge will be required to file a tax return; this requirement shall also apply to employees whose single advance payment for employment income tax also increases. • Income from leaseholds, settlement shares, liquidation balances, control agreements and profit transfer agreements paid to parties (whether individual or legal entities) which are not tax residents of the EU, EEC, or other countries that have not entered into a double taxation treaty with the Czech Republic will be subject to a higher withholding tax of 35%.
  • The taxpayer tax discount for old-age pensioners is cancelled for two years, from 2013 to 2015.
VAT

  • From 2013 to 2015, the basic VAT rate shall amount to 21% and the reduced rate to 15%. The list of goods subject to the reduced rate has changed as well. For instance, the basic VAT rate will newly apply to baby diapers and certain health care products.
REAL ESTATE TRANSFER TAX

  • The real estate transfer tax has increased from 3 to 4%.
CONCISE DUTY

  • Agricultural businesses’ right to a refund of concise duty on biodiesel was reduced in 2013 and shall terminate entirely in 2014.
HEALTH INSURANCE PREMIUMS 

  • From 2013 to 2015, the maximum assessment base (approximately CZK 1,860,000) for general health insurance premiums will be abolished. The mandatory premiums will therefore be paid fully from income.
6.2 Amendment to the Anti-Tax Evasion VAT Act

Amendment to Act No. 235/2004 Coll., the Value Added Tax Act (Act No. 502/2012 Coll.)

The most important changes introduced by this amendment include:

  • More detailed definition of where certain services are deemed to be provided.
  • New rules apply to issuing and keeping tax documents (whether hard or electronic copies), including new requirements for tax documents. There are new requirements for the credibility of the origin of tax documents, integrity of contents and legibility; both hardcopy and electronic tax documents must comply with the requirements from the date of issue until the date on which they are no longer required to be kept.
  • The definition of payers and identified parties and the registration process thereof has changed.
  • There are adjustments to tax exemptions and tax refunds, including, without limitation, a decrease in the number of insurance services subject to tax exemption; in addition, the rules for exempting transfers of buildings, apartments and non-residential premises have changed. The existing deadline for claiming exemptions has been extended from 3 to 5 years.
  • There is a new definition of an establishment.

The amendment also features a number of measures designed to prevent tax evasion:

  • If a payer commits a gross breach, the tax authority shall report the payer as unreliable. The reported payer may appeal the decision with the appeal having suspensory effect; however, justly reported payers cannot file for a reverse verdict before they duly discharge their tax duty for one year.
  • Taxpayers are newly required to include the bank accounts they use for business purposes in their tax registration form. If they receive remuneration on any other account, the recipient of the performance may be required to guarantee the tax if it is not paid by the provider.
  • Recipients of taxable supplies are newly required to guarantee tax not paid by unreliable payers.
  • A calendar month shall be the general taxation period.
Some changes will also take place in subsequent years: 

  • Starting in 2014, VAT returns, including schedules and registration forms can be filed only electronically; this, however, shall not apply to individuals with revenue of up to CZK 6 mln for the previous year.
  • Starting in 2015, the threshold for mandatory registration is to reduce from CZK 1 mln to CZK 750,000.
6.3 Increase of Concise Duty on Tobacco Products

(Act amending Act No. 353/2003 Coll., the Concise Duty Act, as amended, and other associated legislated) 

  • The amendment increases the concise duty on tobacco products. The increase will take place in two stages: starting 1 January 2013 and 1 January 2014. As a result, the minimum amount of the duty prescribed by EU law will be achieved.
  • The terms and conditions will change for customers who apply to the relevant customs authority to reduce the payment for or secure the value of tobacco stamps upon the purchase thereof.
  • The amendment provides tax authorities with the opportunity to satisfy any unpaid tax by using goods held as security for the concise duty.
  • For liquor, tax documents must newly include the batch number and, where applicable, the date of production; also, any sale of liquor for a price lower than the concise duty and VAT on alcohol must be reported to the tax authority.
  • New rules apply for the concise duty related to administrative offences and penalties.
6.4 Reform of Financial and Customs Authorities

(Act No. 456/2011 Coll., the Czech Financial Authority Act)

Starting in January 2013, tax administration will undergo reform in terms of structure and responsibility. A new Appellate Financial Directorate will be established in Brno, and the current 8 financial directorates and 199 tax offices (local tax authorities) will be transformed into 14 tax offices (one per region) and 199 local branches.

(Act No. 17/2012 Coll., the Czech Customs Authority Act)

The Customs Authority is to undergo reform as well. The current three-tier structure will be transformed into a two-tier structure, whereby the customs directorates will be terminated. Customs authorities will have their seats in the regional capitals.

7 Anti-Money Laundering Measures

(Act No. 377/2012 Coll., amending Act No. 253/2008 Coll., the Anti Money Laundering Act, as amended)

The amendment introduces the uniform “EU” form for reporting cross-border transport of cash and bearer securities to and from the EU.

  • In addition to the legal tender of any currency, the reporting duty also applies to travellers’ cheques, money cheques convertible to cash, bearer securities and cashier’s cheques, and any other investment tools that do not indicate the recipient’s name if their value is EUR 10,000 or greater;
  • The restriction applies to sending and/or receiving post or any other consignments; and
  • The limit applies to 12 consecutive months; if there are several transports or consignments, the values shall be aggregated.
At the same time, the duty to declare the transport of valuable objects (such as precious metals or gems) across the EU border in their own value has been deleted from the act, since this type of declaration is not required by EU legislation and monitoring is arranged for by other means, especially customs means.

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