[INS: ECOLOGICAL FISCAL REFORM :INS] [DEL: Ecological :DEL] [DEL: fi :DEL] [DEL: scal :DEL] [DEL: r :DEL] [DEL: eform :DEL] [INS: DAVID LIŠKUTIN :INS] [INS: :INS] [INS: Právnická fakulta MU, Katedra práva životního prostředí :INS] [INS: Abstrakt :INS] [INS: Práce se zabývá koncepcí ekologické daňové reformy :INS] (EDR)[INS: . Představuje :INS] [INS: nedávný :INS] [INS: krok směrem k tomuto konceptu představ :INS] [INS: ovaný :INS] [INS: třemi :INS] [INS: [DEL: 3 :DEL] no :INS] [INS: vě zavedenými :INS] [INS: [DEL: vými :DEL] druhy daní[DEL: , :DEL] :INS] [INS: - :INS] [INS: daní ze zemního plynu, daní z pevných paliv a daní z :INS] [INS: elektrické energie. K zavedení těchto d :INS] [INS: a :INS] [INS: ní :INS] [INS: byla Česká republika vázána směrnicí evropské rady 2003/96/EC :INS] [INS: , p :INS] [INS: [DEL: . P :DEL] řičemž tento legis :INS] l[INS: ativní krok má být p :INS] [INS: rvním stupněm k celkové fiskální změně da :INS] [INS: ňové soustavy k tzv. ekologické daňové reformě :INS] [INS: . Text představuje základní myšlenku EDR a analyzuje :INS] [INS: zmíněné nové druhy daní. :INS] [INS: U :INS] [INS: [DEL: O :DEL] zavírá poukazem na současné :INS] [INS: jednání a formy návrhů EDR na půdě EU. :INS] [INS: Klíčová slova :INS] [INS: Ekologická daňová reforma, daň ze zemního plynu, daň z pevných paliv, daň z elektřiny, strategie 20/20/20 :INS] [INS: Abstract :INS] [INS: T :INS] [INS: he paper :INS] [INS: [DEL: ext :DEL] :INS] [INS: concerns ecological fiscal reform and its contemporary form presented by three new taxes recently adopted into Czech legal system. Those are tax on natural and other gases, tax on solid fuels :INS] and[INS: tax on electricity, which are based on the Council Directive 2003/96/EC. These taxes are shortly analysed regarding its content and form. Then is generally summarised the idea of complex ecological fiscal reform. :INS] [INS: Key words :INS] [INS: Ecological fiscal reform, tax on electricity, tax on solid fuels, tax on natural and other gases, strategy 20/20/20 :INS] Recently the Czech legal system was changed by the legislative act number 261/2007 Sb. This act is called “[INS: the act on :INS] stabilisation of [INS: the :INS] public [INS: budget :INS] ” and has changed many different acts and branches of law. I want to mention one of those that didn't change the existing legislation but constituted a new one. Those are the parts 45-47 of this act that [INS: concern :INS] the so called ecological fiscal reform. This change is closely connected [INS: to :INS] the European legislation, particularly [INS: the :INS] Council Directive 2003/96/EC of 27 October 2003[INS: , :INS] restructuring the Community framework for the taxation of energy products and electricity. This directive obligates member states to transform their fiscal system in[INS: to :INS] [INS: a :INS] form [INS: specified :INS] by this directive and entered into force on the day of its publication. For new member states[INS: , such :INS] as [INS: the :INS] Czech [DEL: republic :DEL] [INS: Republic, :INS] there was a transition period until the 31.12.2007. So [INS: the :INS] Czech legislation implemented this directive[DEL: , :DEL] and by 1[DEL: .1. :DEL] [INS: January :INS] 2008 provisions of this directive are forceable through the [INS: above :INS] mentioned act [DEL: of :DEL] [INS: on :INS] stabilisation of [INS: the :INS] public [DEL: budged :DEL] [INS: budget :INS] . This norm established three new forms of taxation: - Tax [DEL: from :DEL] [INS: on :INS] natural gas and other gases - Tax [DEL: from :DEL] [INS: on :INS] fossil fuels - Tax [DEL: from :DEL] [INS: on :INS] electricity Taxes [DEL: from :DEL] [INS: on :INS] fossil fuels and electricity were entirely new and [DEL: weren't :DEL] [INS: had not been :INS] in the Czech legal system before. On the other hand, the tax [DEL: from :DEL] [INS: on :INS] natural gas was a part of the former consumption tax and [INS: is :INS] now [DEL: is :DEL] established as a separate tax. All member states have to respect the full list of commodities (stated in the article 2[1] of the Directive) as well as the minimum rates of taxation applied on them. (The directive requires only a minimum compulsory rate of taxation and every particular state can afterwards set a higher level, [DEL: but :DEL] [INS: although :INS] e.g. [INS: the :INS] Czech [DEL: republic :DEL] [INS: Republic :INS] [INS: surprisingly :INS] stays [DEL: surprisingly :DEL] at the minimum level.) This [DEL: regards :DEL] especially[INS: relates to :INS] leaded and unleaded fuel, gas, oil, liquid gas, paraffin oil, brown and black coal and electricity. As stated above, the Act separated these commodities into three groups: 1) Tax [DEL: from :DEL] [INS: on :INS] natural gas and other gases Subject to this tax is consumption by [DEL: a :DEL] [INS: the :INS] final consumer, so reselling among traders is not affected by the tax. Aside [DEL: of :DEL] [INS: from :INS] this general obligation there are many important exceptions. The tax is not applied to the highly energetic[INS: ally :INS] demanding operations [INS: such :INS] as[DEL: are :DEL] : Ø Mineralogical processes Ø Metallurgical processes Ø Production of electricity etc. These industry processes are exempt from taxation. This can be understood from the point of view of [DEL: entrepreneurs :DEL] [INS: businesses :INS] for whom this would mean higher costs. But from the point of view of the object and purpose of the directive, [DEL: :DEL] the very purpose of the norm – that is the decrease [DEL: of :DEL] [INS: in :INS] the level of pollution – cannot be fully accomplished, because the[DEL: se :DEL] [DEL: biggest :DEL] [INS: largest :INS] producers of pollutants are exempt f[DEL: o :DEL] r[INS: o :INS] m the tax. On the other hand, we have to see this in the context of the global market where higher costs implied by the tax would create a disadvantage, compared to [DEL: entrepreneurs :DEL] [INS: businesses :INS] from [DEL: states :DEL] [INS: the countries :INS] with lower environmental standards. In this light, these European energetic companies might fail, the production itself would be delocalized and the level of pollution as a whole would increase. Still we can see it as an unfair persecution of ordinary citizens against the privilege of large [DEL: entrepreneurs :DEL] [INS: businesses :INS] . It might also seem that this instrument does not motivate [DEL: the entrepreneurs :DEL] [INS: businesses :INS] in these industries towards a more effective and environmentally harmless approach to energy resources. [DEL: It is a :DEL] [INS: The :INS] question[INS: is :INS] [INS: whether :INS] [DEL: if there shouldn't be used :DEL] different form of protection of these energetically demanding industries[INS: shouldn't be used :INS] . E.g. lower taxation, which won't be destructive for the industry but will be motivating [DEL: in :DEL] [INS: to :INS] develop[DEL: ing :DEL] new[INS: , :INS] less demanding and cleaner technologies and will be more equal towards ordinary citizens. In numbers this new tax should increase the price for consumers [DEL: of :DEL] [INS: by :INS] 4,2 % and should bring 1,8 billion of Czech crowns to the national treasury in 2008. The two other taxes have also a similar content and form. In short, the tax on solid fuels covers mainly black and brown coal and other hydrocarbons and its rate is calculated [DEL: on :DEL] [INS: per :INS] gigajoules of burned heat (currently 8,50 Czech crowns [DEL: for :DEL] [INS: per :INS] one gigajoule). The tax is also paid when the commodity is consumed and traders are not obliged to do so if they do not consume it. Exemptions f[DEL: o :DEL] r[INS: o :INS] m this general rule are again very important. Highly demanding processes (metallurgical and [DEL: :DEL] mineralogical industry) are excluded from taxation, and very important in its impact to the environment is an exclusion of electricity production[INS: , :INS] [DEL: . B :DEL] [INS: b :INS] ecause[INS: thermal power stations, which are also excluded fr :INS] [INS: o :INS] [INS: m this tax, :INS] [INS: have :INS] significant impact in[INS: terms of :INS] production of CO2[INS: (carbon dioxide) :INS] and other contaminants[DEL: have :DEL] [INS: . :INS] [DEL: thermal power stations which are also excluded form this tax :DEL] . We can object to this solid fuels tax [INS: in :INS] the same[INS: way :INS] as in the case of the gas tax: while small producers are [INS: taxed, :INS] [DEL: obliged to the tax and :DEL] the big ones are not. The fiscal effect of this tax is predicted as 9,1% increase [DEL: of :DEL] [INS: in :INS] the prise in [DEL: compare :DEL] [INS: comparison :INS] with the year 2005 and it should bring 1,7 billion of crowns to the national treasury in 2008. The last of [INS: the :INS] so called [DEL: ecological :DEL] [INS: environmental :INS] taxes is the electricity tax. [DEL: The :DEL] [INS: This :INS] tax has a similar structure to [DEL: the :DEL] other [DEL: ones :DEL] [INS: two :INS] . [DEL: The t :DEL] [INS: T :INS] axation is applied on consumption and not on traders. The exemptions are important because [DEL: here are excluded :DEL] all environmentally harmless forms of electricity production[INS: are excluded here :INS] . This covers[INS: the following :INS] : - electricity produced [INS: by the use :INS] of solar, wind or geothermal energy - electricity produced in hydraulic power plants - electricity produced [INS: by the use :INS] of biomass or [DEL: by :DEL] [INS: of biomass :INS] products[DEL: of biomass :DEL] - electricity produced [INS: by the use :INS] of met[INS: h :INS] an[INS: e :INS] in closed mines or by[INS: the use of :INS] fuel elements Also [DEL: some :DEL] [INS: certain :INS] kinds of [DEL: ecological :DEL] [INS: environmental :INS] consumption of electricity are excluded from taxation, [INS: such :INS] as the [DEL: :DEL] railway, [DEL: street railways :DEL] [INS: tram, :INS] and trolley-bus[DEL: es :DEL] [INS: transport :INS] . The predicted fiscal effect is [DEL: of :DEL] 1%[INS: increase :INS] [DEL: of :DEL] [INS: in :INS] electricity price and 1,1 billion of crowns to [INS: the :INS] national [DEL: treasure :DEL] [INS: treasury :INS] . The content of these new taxes as a whole is simply adopted from the [INS: EU :INS] directive and represents the consensus of EU countries [DEL: about :DEL] [INS: on :INS] this topic. The Czech [DEL: republic :DEL] [INS: Republic :INS] had to transpose them [INS: in such a way that would not lead :INS] [DEL: so there weren't to :DEL] [INS: to :INS] [DEL: many :DEL] [INS: too strong :INS] political tensions[DEL: about them :DEL] . Another question is the form in which [DEL: it :DEL] [INS: the new legislation was :INS] [DEL: passed :DEL] [INS: adopted :INS] and [DEL: was :DEL] publicised. Usually a new form of legislation is [DEL: done :DEL] [INS: carried out :INS] by a new separate normative act. This is a usual procedure based on the principle of a legally consistent state and on the certainty and transparency of the legal order. However, a different method was applied in this particular case. These three new taxes were incorporated into a huge conglomerate of other paragraphs, thematically very wide[DEL: in topic :DEL] [INS: – :INS] [DEL: - :DEL] [INS: :INS] from Value Added Tax, through [DEL: state :DEL] social insurance, payment of medical [DEL: treatment :DEL] [INS: care :INS] [INS: , :INS] [INS: :INS] to income tax[DEL: es :DEL] . This norm as a whole is [DEL: more :DEL] changing the existing [DEL: legislative :DEL] [INS: legislation, :INS] rather [DEL: then :DEL] [INS: than :INS] establishing a new one. So the question is whether it shouldn't have been [DEL: made :DEL] [INS: executed :INS] through thematically precise laws rather [DEL: then :DEL] [INS: than by :INS] [DEL: making :DEL] [INS: adopting :INS] [INS: :INS] one [DEL: big :DEL] [INS: extensive, :INS] summary act. The question is even less obvious regarding three new taxes. [DEL: Why it is :DEL] [INS: The fact these taxes are :INS] [DEL: :DEL] incorporated and not [DEL: publicised :DEL] [INS: adopted :INS] [INS: :INS] separately is [DEL: a :DEL] outrageous. [DEL: By the words of the :DEL] [INS: According to :INS] chief of the Czech [DEL: constitutional :DEL] [INS: Constitutional :INS] [DEL: court :DEL] [INS: Court :INS] : parts concerning [DEL: ecological :DEL] [INS: environmental :INS] taxes are separate [INS: tax :INS] laws [DEL: of taxes :DEL] and there is a doubt about the way [DEL: of publication :DEL] [INS: they were :INS] [INS: adopted :INS] – whether it is in accord with [DEL: the a :DEL] [INS: A :INS] rticle 52 of [INS: the :INS] Czech [DEL: constitution :DEL] [INS: Constitution :INS] and [INS: with the :INS] [DEL: act about c :DEL] [INS: C :INS] ode of [DEL: law :DEL] [INS: Law Act :INS] [INS: [INS: [2] :INS] :INS] . This new environmental tax legislation should be a part of a complex environmental fiscal reform intended by [DEL: a :DEL] [INS: the :INS] European Council. Next steps should concern income tax reform and transportation tax[INS: [INS: [3] :INS] :INS] . This intended project is a part of negotiation[INS: s :INS] [DEL: made :DEL] [INS: carried out :INS] by[INS: the :INS] European Council in March 2007 and [INS: of the :INS] [DEL: on this negotiation based :DEL] strategy 20/20/20[INS: , based on these negotiations and :INS] developed by[INS: the :INS] European Commission and published as Green Paper on market-based instruments for environment and related policy purposes[4]. The objective of this strategy is to decrease the emission[INS: s :INS] of greenhouse gases and especially CO2 [DEL: of :DEL] [INS: by :INS] 20% [DEL: of :DEL] [INS: c :INS] [INS: ompared to :INS] [INS: :INS] its [INS: 1990 :INS] level[DEL: in year 1990 :DEL] , to increase level of renewable[INS: energy :INS] resources[INS: :INS] [DEL: of energy of :DEL] to 20% and to increase the energetic efficiency in Europe [DEL: of :DEL] [INS: by :INS] 20%. This proposal was presented in March 2008 by the chairman of [INS: the :INS] European Commission[INS: , :INS] José Manuel Barrosa[INS: , :INS] and it is based on [INS: the :INS] European long[INS: - :INS] [DEL: :DEL] term strategy of decreasing environmental impacts in[INS: the :INS] EU. This ambitious plan has to have its impact [DEL: in :DEL] [INS: on the :INS] fiscal sphere, primary in form of taxes, charges and tradable permit systems . [DEL: One part of :DEL] [INS: Among :INS] the instruments leading towards the objective of this plan is also [INS: a :INS] complex environmental fiscal reform. This is supposed to be in its general form based on shifting taxation from taxation [DEL: of :DEL] [INS: on :INS] work to taxation [DEL: of :DEL] [INS: on :INS] consumption[DEL: . :DEL] [INS: , :INS] [DEL: Thereby :DEL] [INS: thereby :INS] changing[INS: the :INS] structure of taxation, which [DEL: is :DEL] [INS: would be :INS] focused not on income tax[DEL: es :DEL] of natural and legal persons[INS: , :INS] as [INS: it had been :INS] until now, but [INS: on :INS] [DEL: relocate :DEL] [INS: relocating :INS] taxation to indirect taxes[INS: , such :INS] [DEL: :DEL] as VAT[DEL: (value added tax) :DEL] , energy taxes and taxes and charges on environmentally harmful activities. This type of taxation would take[DEL: n :DEL] into account[INS: processes and products :INS] [INS: with :INS] [INS: high :INS] [INS: consumption of :INS] [DEL: :DEL] [DEL: energetic :DEL] [INS: energy :INS] and resource[INS: s :INS] [INS: and thus :INS] [DEL: demanding :DEL] [DEL: processes and products :DEL] with stronger impact [DEL: to :DEL] [INS: on :INS] the environment. [DEL: So that p :DEL] [INS: P :INS] roducers of [DEL: these :DEL] [INS: such :INS] commodities should be more motivated to use[INS: processes that are :INS] energetically more efficient [DEL: processes :DEL] and[INS: demand :INS] less resource[DEL: demanding techniques :DEL] [INS: s :INS] . [INS: Among :INS] [DEL: Other :DEL] [INS: other :INS] instruments which should [DEL: serve :DEL] [INS: help :INS] to[INS: reach :INS] the objective of the [DEL: plan :DEL] 20/20/20[INS: plan :INS] (or some other type of environmental change plan) are [DEL: t :DEL] [DEL: he :DEL] trading of CO2 emission permits and the extension of regulated polluters from stationary object to transport[DEL: ation :DEL] . Yet the negotiation and connivance of this [DEL: strategy :DEL] 20/20/20[INS: strategy :INS] is plan[INS: n :INS] ed to be [DEL: made :DEL] [INS: carried out :INS] during[INS: the Czech :INS] presidency [DEL: of Czech Republic :DEL] in 2009[5]. So the ability of the Czech government to lead discussions and negotiations [DEL: around :DEL] [INS: in relation to :INS] this topic could have a[DEL: :DEL] significant impact. Positions of [DEL: various :DEL] [INS: individual :INS] European [DEL: states :DEL] [INS: countries :INS] [DEL: are quite different :DEL] [INS: vary :INS] and also the opinion of[INS: the :INS] Czech [INS: gover :INS] [INS: n :INS] [INS: men :INS] [DEL: side :DEL] t is quite sceptic. Anyway, the [DEL: negotiation of :DEL] [INS: discussions on :INS] this topic ([DEL: away :DEL] [INS: apart :INS] from the Lisbon treaty) will be quite challenging and it could show the ability of [INS: the :INS] Czech politics [DEL:  n :DEL] [INS: to :INS] deal[DEL: ing :DEL] [DEL: things :DEL] [INS: with matters :INS] on[INS: the :INS] European level. [INS: Konta :INS] [INS: ktní údaje na autora – email: :INS] [INS: David Liškutin :INS] [INS: Elišky Machové 37 :INS] [INS: Brno 616 00 :INS] [INS: david.liskut :INS] [INS: in@gmail.com :INS] ________________________________ [1] Council Directive 2003/96/EC: Article 2 1. For the purposes of this Directive, the term "energy products" shall apply to products: (a) falling within CN codes 1507 to 1518, if these are intended for use as heating fuel or motor fuel; (b) falling within CN codes 2701, 2702 and 2704 to 2715; (c) falling within CN codes 2901 and 2902; (d) falling within CN code 2905 11 00, which are not of synthetic origin, if these are intended for use as heating fuel or motor fuel; (e) falling within CN code 3403; (f) falling within CN code 3811; (g) falling within CN code 3817; (h) falling within CN code 3824 90 99 if these are intended for use as heating fuel or motor fuel. 2. This Directive shall also apply to: Electricity falling within CN code 2716. [2][INS: Statement of the chief of C :INS] [INS: zech Constitutional Court :INS] [INS: Pavel Rychetský :INS] [INS: :INS] [INS: made in decision :INS] :[INS: :INS] [INS: Pl. ÚS 24/07 :INS] [INS: published :INS] [INS: as :INS] [INS: č. 88/2008 Sb. :INS] [3][INS: Cp. :INS] [INS: :INS] http://[INS: www.env.cz/AIS/web.nsf/pages/strategie :INS] [4] Cp. http://eur-lex.europa.eu/COMMonth.do?year=2007&month=03 [5] Cp. http://www.env.cz/AIS/web-pub.nsf/$pid/MZPMCFO1XFS6