The constitutional complaint thus represents a specific procedural means, the purpose of which is to ensure the respect of, alternatively afford protection to, the fundamental rights and freedoms guaranteed by the constitutional order. The complaint does not qualify as an ordinary or extraordinary remedial procedure relating to the subject of the specific proceeding before ordinary courts. The differentiation of the functions of ordinary and administrative courts, on the one hand, and the Constitutional Court on the other, is entirely within the competence of the national legislature. According to the provisions of the Treaties on the European Community and on the European Union relating to the division of competences, as well as the ECJ jurisprudence, it is in principle a matter for the Member States to lay down detailed procedural rules (cf. ECJ judgment of 13 March 2007, C-432/05, headnote, marginal number 39-42).
Although the referral of a preliminary question is a Community law matter, the failure, in conflict with Community law, to make a reference may, in certain circumstances, also entrain a violation of the constitutionally-guaranteed right to one’s statutory judge. After all, one must bear in mind the fact that the prerequisite for the entitlement to submit a constitutional complaint is the exhaustion of all procedures afforded him by law for the protection of rights. A violation of the right to one’s statutory judge comes about in the case where a Czech court (the decision of which may no longer be contested through further remedial procedures afforded by sub-constitutional law) applies Community law but fails, in an arbitrary manner, that is, in conflict with the principle of the law-based state (Art. 1 para. 1 of the Constitution of the Czech Republic), to refer a preliminary question to the ECJ.
The Constitutional Court asserts that it deems as arbitrary action such conduct by a court of last instance applying a norm of Community law where that court has entirely omitted to deal with the issue whether it should refer a preliminary question to the ECJ and has not duly substantiated its failure to refer, including the assessment of the exceptions which the ECJ has elaborated in its jurisprudence. In other words, it is a case where the court entirely fails to take into consideration the existence of the peremptory rule, which is binding on it, contained in Article 234 of the Treaty establishing the European Community.
On 8 January 2009, a panel of the Constitutional Court, composed of its Chairwoman, Dagmar Lastovecká, and Justices František Duchoň and Eliška Wagnerová (Justice Rapporteur), in the matter of the constitutional complaint of the commercial company, Pfizer, spol. s r. o., whose headquarters is at Stroupežnický 17, 150 00 Prague 5, represented by JUDr. Jan Matějka, an attorney of the law offices of Čermák, Hořejší, Matějka a spol., with its headquarters at Národní 32, 110 00, Prague 1, against the 6 October 2005 decision of the Ministry of Health of the Czech Republic, No. FAR - 165/1656, 32397/2005, the 28 March 2007 judgment of the Prague Municipal Court, No. 12 Ca 144/2005-137, and the 23 January 2008 judgment of the Supreme Administrative Court, No. 3 Ads 71/2007-183, decided as follows:
I. By proceeding in a manner violative of Art. 2 para. 3 of the Constitution of the Czech Republic in conjunction with Art. 4 para. 4 of the Charter of Fundamental Rights and Freedoms, the 23 January 2008 judgment of the Supreme Administrative Court, No. 3 Ads 71/2007-183, resulted in the violation of the complainant’s fundamental right guaranteed by Art. 38 para. 1 of the Charter of Fundamental Rights and Freedoms.
II. Accordingly, that decision is quashed.
III. In other respects, the constitutional complaint is rejected on preliminary grounds.