The Constitutional Court decided on a request of the Supreme Court to review the constitutionality of a special statutory guarantee in the field of tax law as regulated by the second sentence of the first paragraph of Article 148 of the Tax Procedure Act. This Article determines that tax – if it cannot be recovered from the property of the debtor – can also be recovered from another person to whom the activity of the debtor was transferred outside the reorganisation of the status of the company with the intention that the debtor would avoid the payment of tax. In the assessment of the Supreme Court, the challenged regulation enacts direct tax enforcement, which enables the state to ensure that its monetary claims are repaid by a guarantor without the obligation of the guarantor being established prior to the enforcement by an appropriate instrument authorising enforcement and without the guarantor being given the possibility of the equal protection of rights in judicial proceedings against such a decision. According to the Supreme Court, the challenged regulation is inconsistent with the right to the equal protection of rights determined by Article 22 of the Constitution and the right to judicial protection determined by Article 23 of the Constitution.

The Constitutional Court partially concurred with the allegations of the Supreme Court. It assessed that by enabling the issuance of an enforcement order against a guarantor, without it following therefrom or from other provisions of the Tax Procedure Act or the General Administrative Procedure Act that a guarantor has the right to be heard, the challenged regulation interferes with the right determined by Article 22 of the Constitution. It established that it does not follow from the legislative file that by the challenged regulation the legislature intended to interfere with the right to be heard, which the new debtor (the guarantor) has to enjoy in relation to the transfer of the obligation thereto. In proceedings to decide on the request for a review of constitutionality, also the Government confirmed that that was not the intention of the legislature. In view thereof, the Constitutional Court concluded that it is excluded that the disputed legislative solution has any constitutionally admissible objective, which entails that in the case at issue already the first condition for limiting human rights in a constitutionally admissible manner is not fulfilled. Therefore, it established that the challenged regulation is inconsistent with Article 22 of the Constitution. However, the Constitutional Court did not establish its inconsistency with Article 23 of the Constitution. The mentioned article of the Constitution is not violated merely because a statutory guarantee is decided on in a tax procedure, provided that the procedures carried out by that authority are subject to ex post supervision carried out by a judicial body that has full jurisdiction, ensures constitutional procedural guarantees, and is effective. In the assessment of the Constitutional Court, the proceedings for the judicial review of administrative acts available to a guarantor against a decision on a statutory guarantee fulfil these criteria.

The Constitutional Court imposed on the legislature the obligation to remedy the established unconstitutionalities and, until then, determined the manner of the implementation of the Decision. It determined that before an enforcement procedure the tax authority must, on the basis of the challenged regulation, preliminarily issue an instrument authorising enforcement (i.e. a decision imposing the amount of tax to be paid), by which it decides on the guarantor’s obligation to pay someone else’s tax, and in the procedure for adopting such decision it must ensure the guarantor the right to be heard.