29 June 2021
The online conference was held as a dissemination event for the research project ‘Interpretation of fundamental rights in Europe’, carried out within the framework of the Central European Professors’ Network, coordinated by the Ferenc Mádl Institute of Comparative Law, the Hungarian Association for Comparative Law and the Central European Association for Comparative Law, in collaboration with the Károli Gáspár University of the Reformed Church, Faculty of Law, Hungary.
The aim of the online conference was to investigate how national ordinary courts, constitutional courts, supreme courts, or international courts, especially the European Court of Human Rights (ECtHR) and the European Union Court of Justice (ECJ), implement and interpret fundamental rights in civil cases.
PhD students, young researchers, and lecturers from several Central and Eastern European nations (the Czech Republic, Hungary, Poland, Serbia and Slovenia) presented their research findings on the topic.
Előd Bartis, a PhD student at the University of Debrecen, analysed two landmark judgements of the Romanian Constitutional Court, both dealing with the constitutionality of certain provisions of the Romanian Civil Code. Because one of the verdicts in an immigration case involved the application of EU law, the Romanian Constitutional Court referred the matter to the ECJ. The Romanian Constitutional Court declared that Article 277 (2) of the Civil Code (‘Marriages between persons of the same sex entered into or contracted abroad by Romanian citizens or by foreigners shall not be recognised in Romania’) is constitutional to the extent that it grants the right to reside in the territory of the Romanian state, under the conditions provided by EU law, to spouses—citizens of EU member states and/or citizens of third countries—of same-sex marriages, concluded or contracted in a member state of the European Union. In the other verdict, the Constitutional Court found the Civil Code provision [Article 164 (1)] on persons lacking the necessary capacity of judgment violating human dignity, equality of rights and the constitutional rule safeguarding people with disabilities.
David Sehnálek, lecturer at Masaryk University, presented his research on several Czech Constitutional Court judgements in the field of civil law, particularly family law and contract law. In contrast to other types of cases, he revealed that because each case concerning a child was unique, it would have been difficult to speak of a binding precedential effect of the Czech Constitutional Court’s case law in family matters. In terms of contract law, under certain circumstances, a specific level of default interest, the application of contractual penalties and a certain combination of contractual terms may violate the Constitution. This is true when the entire contract is either clearly unfair or morally reprehensible. In consumer cases, the Czech Constitutional Court, citing Article 38 of the EU Charter, undertook an activist role, which does not, however, correspond to the European Court of Justice’s guidelines for the application of EU law. The Constitutional Court was inspired by the doctrine elaborated by the German Federal Constitutional Court, and as a result, the indirect effect of fundamental rights was introduced into civil law matters. He emphasised that, as a special feature of Czech law, the Constitutional Court often employed pragmatic arguments in order to assist the individuals concerned, and that the rulings’ potential future consequences were often overlooked.
Rok Dakar, a teacher assistant at Maribor University, analysed the ways of interpretation used by the Slovenian Constitutional Court in commercial disputes. He concluded that the Court was especially keen to apply its own case law in interpreting constitutional provisions. In cases where the interpreted provisions were clear and concise, the Court also used the grammatical method of interpretation, although it never relied primarily on it. Other interpretation approaches were significantly less widespread and carried far less weight. The types of arguments and principles utilised in reasoning were very similar in both commercial and public law conflicts (criminal and administrative), with the exception of the considerable application of the ECHR’s case law in criminal disputes.
Stefan Radojčič, an assistant at the University of Novi Sad, provided an analysis of cases before the ECtHR, where the Court held the Republic of Serbia responsible for violation of fundamental rights in civil cases. The Law on Privatisation included a contentious provision regarding the enforcement of judgements, which temporarily prohibited enforcement against privatisation subjects (for more than a decade). In a number of cases, the ECtHR concluded that the abovementioned situation violated the right to a fair trial and the right to property. The cases involved the rights of former workers of the abovementioned companies who had been waiting a long time for their salaries to be paid.
Michał Derek (Jagellonian University) presented his findings on two medical law rulings from the Polish Constitutional Tribunal. The first ruling addressed a minor’s consent to medical treatment. The second involves the dilemma of the medical conscience clause. The speaker emphasised that while the issue might have appeared to be related to public law at first glance, a deeper investigation revealed the problem’s civil consequences.
Márta Benyusz, a PhD student at Pázmány Péter Catholic University, delivered a speech on the implementation of the ‘best interest of the child’ principle by the Hungarian Constitutional Court. She emphasised that, according to the Committee of the Rights of the Child, the best interest of the child in the threefold concept was a substantive right, a fundamental, interpretative principle and a rule of procedure governing decision-making processes. The obligation to consider the child’s best interests is quite significant in wrongful removal lawsuits and cases regarding visiting rights. These cases are typically discussed before the Constitutional Court. Citing five decisions of the Hungarian Constitutional Court, she presented what role the best interest of the child played in the cases before the Court.
Aida Bektasheva, a PhD student at the University of Miskolc, spoke about the relationship between contract law and fundamental rights. She presented legal theories on the direct and indirect consequences of fundamental rights based on German Constitutional Court judgements and Article II of the Draft Common Frame of Reference.
