Pátek 29. března 2024, svátek má Taťána
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A ‘ploy’ to send solar suits quickly to Brno

  15:36

Apart from the retroactive solar tax’s repeal or a Constitutional Court ruling, investors could find a quicker solution via the financial office

Domácí solární investoři hledají cesty, kudy se svými stížnostmi na stát nejrychleji dojdou k Ústavnímu soudu. foto: © ČESKÁ POZICEČeská pozice

Czech Position recently analyzed how domestic solar investors may prepare to arbitrate against the Czech state over the imposition last year of a retroactive 26-percent tax on profits from plants of 30 kilowatts or larger, established in 2009 or 2010 using government incentives.

Domestic investors have at their disposal more than just the two parallel alternatives for finding a solution we’ve already examined — namely, to pressure politicians to repeal the legislation and file constitutional complaint over the decision of the financial office. But there is another.

David Krofta, a partner in the law firm Pelikán Krofta Kohoutek, has alerted Czech Position to the “third way” he is pursuing with his own clients, the advantage of which — above all — should be in a relatively quick journey to the desired Constitutional Court.Paradoxically, solar investors must lose their cases before the administrative and lower courts as quickly as possible — so as to get to Brno faster.

However paradoxical it may sound, solar investors’ lawyers need to get their cases before the administrative bodies and lower courts as soon as possible — and lose — so as to get to Brno, where the real decision will be taken, faster.

At the very end of Krofta’s third path, as is the case with the second option, would be a classic constitutional complaint relating to the proposal to repeal the law that imposed the 26-percent tax. But this particular road to Brno takes a detour not at the financial office but at the Energy Regulatory Office (ERÚ). There, investors could file disputes about higher purchase prices for electricity, or about whether the solar levy was lawful or not.

Not administrative, but civil courts

The office would likely decide against those submitting the complaint, and this so-called resolution would end in the hands of ERÚ chief Josef Fiřt. In all likelihood, even he wouldn’t side with the solar investors, and the whole thing would go to court — that’s the promised “ploy.”

Judgments in civil courts, not in administrative ones, will be relevant in this case. In practical terms, it means legal proceedings will be heard in the Děčín and České Budějovice district courts, according to the seats of key distribution companies ČEZ Distribuce and E.ON Distribuce, against which the solar investors will formally file their claims.

Both district courts have more free capacity than the country’s overburdened administrative courts, especially those in Prague. While in the administrative courts such a process could take many years, according to Krofta, in the smaller district courts in North and South Bohemia there’s a real chance for a much quicker decision. The first cases could be on the district judges’ dockets already by the end of this year. If many more are filed, it cannot be ruled out that the courts of first instance would themselves refer the matter to the Constitutional Court.

All previous articles on the solar arbitration issue are available here.