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47
FIND
The Constitutional Court
of 15 January 2025
sp. zn. Pl. ÚS 26 / 24 concerning the application for annulment of Sections 135 and 2894 (2) of Act No. 89 / 2012 Coll., Civil Code
On behalf of the Republic
On 15 January 2025, the Constitutional Court decided, under sp. zn. Pl. ÚS 26 / 24, on 15 January 2025, in plenary composed of the President of the Court of Josef Baxy and the judges and judges of Lucie Dolanská Bányai, Josef Fiala, Milan Hulmák, Jaromír Jirsa (Judge of the Rapporteur), Zdeněk Kühn, Veronica Christian, Tomáš Langášek, Jiří Píbán, Kateřina Ronovskaya, Dita Řepková, Jan Světona, Pavel Šámal, Jan Winter and Daniela Zemanova on the motion for annulment of § 135 and § 2894 (2) of Law No 89 / 2012 Coll., Civil Code, with the Parliament of the Czech Republic, acting on behalf of the Chamber of the Parliament of the Republic, as a party to the proceedings,
as follows:
I. Motion denied.
II. Effective protection of the reputation of legal persons constitutionally guaranteed by Article 10 (1) of the Charter of Fundamental Rights and Freedoms requires an analogous use of the same means as for protection against unfair competition under Article 2988 of the Civil Code, including the possibility of requiring adequate satisfaction.
Reasons
Definition of the case
1. The Constitutional Court, in this finding, dealt with the constitutionality of § 135 and § 2894 (2) of the Civil Code, according to which a legal person, in the framework of the protection against unauthorised interference in his reputation, cannot successfully seek atonement for the damage caused by non-property damage.
Recital of procedural circumstances
2. The complainant Milion Momenek, p., ("the complainant") seeks the annulment of the order of the Supreme Court No 23 Cdo 2494 / 2022- 87 of 28.7.2023 and the judgment of the Supreme Court in Prague No 3 Cmo 14 / 2021- 67 of 28.3.2022; submits that they have infringed its constitutionally guaranteed rights pursuant to Articles 10 (1), 36 (1) of the Charter of Fundamental Rights and Freedoms ("the Charter ') and Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention'). The complainant considers it an unconstitutional conclusion of the courts that, as a legal entity, it does not have the right to atone for the non-property damage caused by (itself) unlawful interference with its reputation.
3. In the case in which the contested decisions were issued, the General Court expressly came out of the conclusions of Case No 23 Cdo 327 / 2021 of 30 November 2021, in which the Supreme Court was concerned about whether a legal person could (successfully) seek (in the context of the protection against unauthorised interference in his reputation under Paragraph 135 (2) of the Civil Code, with effect from 1 January 2014, compensation for this non-property damage. Since the legislature did not include undue interference in the reputation of a legal person in a separate set of cases involving the right to atone for non-property damage within the meaning of Article 2894 (2) of the Civil Code, the Supreme Court concluded that, after the effectiveness of the "new 'Civil Code, the legal person did not have that right.
4. Proceedings on a constitutional complaint were originally conducted under point II.I. ÚS 2926 / 23. The first Chamber of the Constitutional Court, by order of sp. zn. I. ÚS 2926 / 23 of 26.6.2024 (decision of the Constitutional Court available at https: / / nalus.ujud.cz), referred the matter to the plenary. In the hearing of a constitutional complaint, the plenary of the Constitutional Court subsequently concluded that the legal arrangements applied by the general courts in the case at hand - namely Sections 135 and 2894 (2) of the Civil Code (jointly "the provisions under review ') could be contrary to constitutional rules, in particular Article 10 (1) of the Charter. Therefore, plenary of the Constitutional Court by resolution sp. zn. Pl. ÚS 20 / 24 of 4.9.2024, as amended by amending order sp. zn. Pl. ÚS 20 / 24 of 20.11.2024, suspended the procedure for a constitutional complaint and initiated the procedure for the annulment of the provisions under review.
The revised provisions
5. Paragraph 135 of the Civil Code reads:
(1) A legal person who has been affected by a challenge of his right to a name or who has suffered damage to an unauthorised interference with that right or who is at risk of such damage, in particular the unauthorised use of the name, may request that the unauthorised action be waived or that its effect be removed.
(2) The same protection shall belong to a legal person who, without legal justification, interferes with his reputation or privacy, unless it is for purposes of scientific or artistic or press, radio, television or similar intelligence; However, such intervention shall not be contrary to the legitimate interests of a legal person. ';
6. Paragraph 2894 (2) of the Civil Code reads:
[...]
(2) If the obligation to compensate for any other non-property damage has not been explicitly agreed, it affects pests, only if the law specifically provides for it. In such cases, the obligation to compensate for non-property damage by granting satisfaction shall be assessed mutatis mutandis in accordance with the provisions on compensation. ';
Proceedings before the Constitutional Court
7. The Constitutional Court, pursuant to Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, called on the Chamber of Deputies and the Senate, acting as a party to the proceedings, the Government and the Ombudsman as potential interveners. The Ombudsman and the Government informed the Constitutional Court that they did not intervene. The Constitutional Court also requested the comments of several selected institutions as amicii curiae.
Observations of the Chamber of Deputies and the Senate
8. In its observations, the Chamber of Deputies took note of the progress of the legislative process: the draft Civil Code containing the revised provisions was presented by the Government to the Chamber of Deputies in May 2011 (6th Election) as the House Press 362. The proposal was discussed at first reading and ordered to be discussed by the constitutional legal committee, which adopted a resolution with amendments (House Press 362 / 2). The second reading took place in October 2011 and all the amendments tabled were processed as press 362 / 3. At the third reading on 9 / 11 / 2011, 92 Members voted in favour of the Act of 154, against 35. The revised provisions of the Chamber of Deputies have been approved by the Government. The Chamber of Deputies leaves the Constitutional Court to examine the constitutionality of the provisions under review.
9. The Senate also described the legislative process in its observations: The draft Civil Code was delivered to the Senate on 3 January 2012 and was assigned the number 259 in the Senate Registry of the 8th term of office. The proposal was addressed as a guarantee constitutional legal committee, as well as the Committee on Health and Social Policy and the Committee on Economy, Agriculture and Transport. The Senate discussed the draft on 25 January 2012. Given the scope of the entire code and the limited time it takes to discuss it, the Senate has decided not to change its individual parts. The question of the protection of a legal person in the event of interference with its reputation, or the question of compensation for non-property damage, was in no way subject to discussion by the Upper Chamber. After the debate, neither the draft proposal was accepted nor the motion to reject it in plenary, and the Senate also rejected the proposed amendment for a further two years by voting. The Senate followed the constitutional procedure when discussing the bill. It is for the Constitutional Court to assess the compliance of the provisions under review with the constitutional order.
Expression of the Supreme Court
10. The Supreme Court referred first of all to its previous observations on the constitutional complaint concerning which the proceedings were brought under Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 64 (3) of Law No 182 / 1993 Coll., on the Constitutional Court, as amended. According to the Supreme Court, the existence of a fundamental right to atone for the non-material harm suffered by a legal person when intervening in its private repute cannot be inferred, even in the context of Article 10 (1) of the Charter. A distinction should be made between the fundamental right to the protection of good repute itself, which is protected as an absolute private right through the so-called" negative' and the removal (restitution) claim. This conclusion is supported by the case law of the Constitutional Court relating rather to the property concept of the protection of the reputation of a legal person within the meaning of the internationally recognised term "goodwill '[cf. The contested law does not result from the case law of the European Court of Human Rights (" ECHR') or the Court of Justice of the European Union ("SDEU '); is not recognised in a substantial part of the legal order of the European States, in the framework of European academic unification projects of private law, in domestic and foreign professional literature, and there is no support for them even in the historical context. Furthermore, the Supreme Court refers to the fact that the Code of Conduct of the Common Framework of Reference (DCFR) does not provide for legal provisions for the atonement of non-property damage to a legal person in the context of interference with its reputation as of legal significance.
11. The Supreme Court points out that the Civil Code explicitly rejects the so-called anthropology of legal persons, that is to say, the assignment of natural human rights to them, because legal persons are not carriers of natural rights as humans, but are artificial (fictitious) entities serving the needs of man. Compensation for non-property damage to legal persons, including damage to reputation, is therefore regulated by the Civil Code by a limited tax calculation of the facts in accordance with the legislature's decision, not by natural law. It is in the areas of private law that the sub-constitutional arrangements do so deliberately, which are characteristic of the activities of legal persons for their purpose.
12. The argument on the equality of private law bodies within the meaning of Article 1 of the Charter cannot be applied in this case by the Supreme Court, since the difference between natural persons (people) - living beings with a gifted sense and feeling over legal persons as legal entities of non-real-world property law is obvious. Therefore, the different approach to atoning the non-property effects of natural and legal persons is not a violation of equality or discrimination. In view of the possible immaterial damage under effective legislation, it is irrelevant whether the damage is related to a breach of the absolute right of the person or the absolute right of the property. Even in the case of absolute property rights, which also have a constitutional basis in Article 11 of the Charter, under effective legislation, the non-property damage caused by their infringement is not entirely compensated, even in the case of non-property injury of people (e.g. as a result of the killing of a pet) - even here, the non-property damage caused is rectified only if the "special 'law provides for it (e.g. § 2971 of the Civil Code).
13. The relevant European jurisdiction addresses the issue very differently, which, according to the Supreme Court, calls into question the existence of a fundamental right to atone for the non-property damage suffered by a legal person in its reputation. In Germany, for example, there is a right to protect reputation but without a direct right of legal persons to atone for non-property damage. In France, legal persons may claim such compensation only in the context of unfair competition, intellectual property infringement or other specially regulated criminal situations, whereas in the Netherlands and Belgium, the damage to reputation is considered property damage, not property damage.
14. The Supreme Court summarises that, in its view, the provisions under review do not conflict with constitutional order, even with Article 10 (1) of the Charter.
Statement of the Supreme Court
15. The Supreme Court in Olomouc stated in its observations that the opinion of its individual chambers was not uniform. The majority coincides with the Chamber specialised in decisions on the protection of the reputation of legal persons, which respects the legal opinion of the Supreme Court expressed in the judgment in Case C-327 / 2021, according to which there are no grounds for the annulment of the provisions under review for contradiction with Article 10 (1) of the Charter. Effective legislation clearly distinguishes the legal status of natural persons as living beings and legal persons as organisational bodies. The right to atone for non-property damage caused by unauthorised interference in the reputation of a legal person under Section 135 of the Civil Code was not committed intentionally by the legislator, taking into account historical developments and foreign legislation on which the concept of the new Civil Code is based. Therefore, there is no question of so-called legitimate expectations.
16. Contrary to the majority of the judges of the Supreme Court in Olomouc, the opinion of a minority of judges from the Chamber of Corporate Affairs is that, pursuant to Article 10 (1) of the Charter, a legal person is also entitled to the protection of reputation. The current legislation protects the good reputation of a legal person from the point of view of non-property damage only in the framework of protection against unfair competition. Intervention in the reputation of a legal person is most often having an asset effect, but it should be taken into account that it may also have other consequences which cannot be remedied (or mitigated) in the context of compensation for property damage. These interventions may have fatal consequences (loss of member base or paralysis of competition capacity). Intermediate damage to the reputation of a legal person may lead to damage to the reputation of its members or statutory bodies.
17. The Supreme Court in Prague, in its observations, takes the view that the conclusion of the Supreme Court in the judgment in Case C-327 / 2021 unfounded disproportion in the position of natural and legal persons. Taking into account that legal persons are entitled to adequate satisfaction in the case of non-qualms (in fact, in the same way) and in the context of the protection of companies, this is an unsustainable inequality in private relations. According to the Supreme Court in Prague, the right to eliminate the consequences within the meaning of Section 135 of the Civil Code creates an obligation for the pest to atone for the non-property damage suffered. A typical and logical consequence of undue interference in the reputation of a legal person is the creation of an intangible injury which cannot be remedied other than by the provision of satisfaction. However, the provisions under review may be considered to be consistent with the constitutional order.
Observations of the Czech Bar Association
18. According to the Czech Bar Chamber, the Supreme Court is correct in the view of the current text of the legislation that any conclusion on the possibility of providing adequate satisfaction "by means of a" removal claim would lead to the circumvention of the legal regulation of the undertaking for compensation under the Civil Code. In relation to Article 135 of the Civil Code, it is agreed that there are no legitimate grounds for its annulment, since legal persons would lose their essential means of protecting their personal rights. The same can also be said in the case of § 2894 (2) of the Civil Code, which would cause many new problems by abolishing it; Compensation for non-property damage should not be granted whenever someone feels hurt, but only where it is predictable.
19. According to the Czech Bar Association, Article 10 (1) of the Charter is also applicable to legal persons, since they can be directly touched if they are disseminated by anyone false, offensive or otherwise degrading information. It is not possible to agree with the view of the Supreme Court in Case No 23 Cdo 327 / 2021 that only damage to property can be caused to a legal person as a result of a breach of reputation and that only compensation may be a means of redress. Such protection of legal persons and their reputation is completely inadequate and causes unacceptable and unconceptual differences in the solutions to essentially the same malpractice. It is therefore appropriate to protect the property of a legal person referred to in § 135 of the Civil Code with the same catalogue of rights as in the protection of a commercial firm or in the protection against non-financial competitive conduct, i.e. through the right to reasonable satisfaction in the context of the atonement of property damage.
Observation of the parties to the proceedings on a constitutional complaint
20. JUDr. Vojtěch Filip (intervener in proceedings concerning a constitutional complaint) stated that the protection provided for in Paragraph 135 of the Civil Code does not in principle apply to all aspects of the legal person, but only to the affected areas. The intervener considers the deletion of the right to reasonable satisfaction to be the intention of the legislator, which established a coherent concept of assessing the intervention in the reputation of a legal person, which should not be completed by analogy, which also results from the use of the clutch "or ', which means the choice between the two events currently laid down. According to the intervener, it is right to distinguish in certain areas the rules on the rights and obligations of natural and legal persons. The intervener is of the opinion, with reference to the arguments of the Supreme Court in Case C-327 / 2021, that § 135 of the Civil Code is in line with the constitutional order. It follows from the language interpretation of Paragraph 2894 (2) of the Civil Code that, in order to grant the right to compensation for non-property damage, another premise must be fulfilled, which is the basis for the validity of that right. Interventions in the reputation of a legal person do not fall under the circumstances of this provision. In view of the neutral nature of Paragraph 2894 (2) of the Civil Code, the intervener does not find any grounds for its annulment.
21. In its comments, the complainant recalls in its comments its complaint argument that, on the basis of logical, systematic and historical interpretation, a legal person has the right to atone for the non-property damage caused by undue interference in its reputation under Article 135 (2) of the Civil Code. In the present case, however, it is necessary to apply the analogy of the law in accordance with § 10 (1) in conjunction with § 2 (3) of the Civil Code.
Expression of the Faculty of Law of Charles University
22. The Faculty of Law of the University of Charles sent a statement from the Department of Civil Law and the Head of the Department of Commercial Law. The Department of Civil Law takes the view that the present text of the law allows interpretation which is constitutionally conformal and confers on legal persons the right to compensation for non-property damage for interference with their reputation; There is therefore no reason to repeal the provisions under review. The explicit denial of this right could lead to an increase in the risk of legal persons entering the Czech market, which would unduly harm Czech economic and social interests. The impossibility of compensating for non-property damage suffered by a legal person would also be problematic in terms of the preventive effect of criminal law. In certain cases, intervention in the reputation of a legal person may undermine or threaten the trust of society in the whole field of human activity.
23. Furthermore, the Department of Civil Law points out that the legislation prior to the "new" civil code of atonement for non-property damage to a legal entity without further authorisation. If the historic legislator did not express the will to deviate from previous legislation, then the teleological gap in the law must be seen as an unintended legislator. The will of the historical legislator to leave the appropriate level of protection of the reputation of legal persons cannot be imported from the anthropocentric concept of the Civil Code, since it does not distinguish between natural and legal persons in other places (e.g. in unfair competition).
24. According to the Department of Civil Law, legal persons may, under effective law, suffer non-property damage which can be rectified by reasonable satisfaction. The legal person is a truly existing social organism, which does not change the theory of fiction on which the regulation is based; to allow another conclusion would be overly formalistic. The rightholders of the right to the protection of personality are persons both natural and legal, and the content of that right is very similar. Paragraph 135 of the Civil Code explicitly protects the reputation and privacy as defined by the personality of a legal person, which corresponds to similar sub-components of a person's personality. The exclusion of compensation for the non-property damage of legal persons not only constitutes an unjustified disadvantage for legal persons compared to natural persons, but also discrimination between different types of legal persons - property damage cannot be explained by non-profit-making legal persons. The reputation of legal persons does not differ significantly from that of people, and there is no legitimate reason for different protection. Intervention in the sphere of a legal person may negatively affect the experience, social status and economic situation as well as a large number of natural persons who will generally not be able to exercise legal defence resources on their behalf due to the indirect nature of the intervention. If the law allows non-property damage to be repented in the event of minor interventions, the consequences of interference in reputation as a major intervention should also be repented. According to the Department of Civil Law, it is possible and desirable to bridge the gap in the law using analogy within the meaning of Section 10 of the Civil Code.
25. The Head of the Department of Commercial Law of the Faculty of Law of the Charles University points out the current concept of legal persons, for whom the protection of certain values may not be considered as legal constructions, or may have a different content from that of natural persons. A person has a legal personality independently of the law, because he has inalienable natural rights (§ 19 of the Civil Code), while a legal person has a legal personality because he provides for a law (§ 20 of the Civil Code). The current concept is the result of a legal-political decision by the legislator, which was conscious and explicit, which implies the limits of its (re) interpretation or finalisation of the law. Paragraph 135 of the Civil Code provides for retention and removal claims which may lead to the required correction. At the same time, a legal person may seek the issue of unjustified enrichment and compensation for damage to property, including not only damage to tangible property, but also to intangible values, which include its reputation. It also draws attention to the anthropocentric concept of the Civil Code and the inanimate nature of the legal person, which is manifested by the fact that intervention in its reputation cannot take on the same intensity as in the case of a human being - therefore there is also Article 2971 of the Civil Code. At the conclusion of the non-constitutionality of the provisions under review, it is not only necessary to consider which "fundamental 'rights a legal person could have, but in particular it is important to distinguish the types of legal persons by form and purpose.
Comparative analysis and international context
26. From the comparison of legislation and practice in selected countries, the Constitutional Court found that, in the constitutional order of most of the comparable countries, the protection of the reputation of a legal person is not explicitly regulated and the subject of protection is defined - like in the Charter - as any "person." The laws of the majority of the countries of comparison agree that a legal person enjoys the same right of personality, which also belongs to natural persons, except those relating to the biological nature of man. (c) action for compensation for property damage; Some countries make an explicit distinction in protecting the reputation of legal persons whether they are a legal person governed by private or public law (e.g. Germany or Spain).
27. Not all the countries concerned make a clear distinction between non-property and property injury, which must be borne in mind. The right of a legal person to adequate satisfaction in respect of all forms of injury (both property and non-property), or in connection with unjustified enrichment, is granted in most countries. The forms of satisfaction provided shall be cash satisfaction, public apology, publication of a court order and the right to rectify or refute factual claims. For example, legal persons can make excuses in Germany, Poland, Québec, Switzerland, Croatia, Turkey or Armenia. Cash satisfaction is granted in Poland, Slovenia, Croatia, Lithuania, Bosnia and Herzegovina, Turkey, Armenia or North Macedonia. The refutation of published information (so-called revocation) is possible in Austria, Germany, Lithuania or Armenia. In some countries, or in recent cases, the decision-making practice of the Supreme Courts has led to a tendency to strengthen the possibility of legal persons seeking compensation for non-property damage, such as Croatia, Turkey, Bosnia and Herzegovina or Bulgaria. France, the Netherlands or Belgium may be included among the countries with limited protection in which cash compensation prevails (with emphasis on property damage). Countries with a very limited reputation for protecting legal persons include Sweden, Finland, Denmark, Norway or Moldova.
28. The ECHR has so far expressly left open the question whether the aspect of private life under Article 8 of the Convention protects the good reputation of legal persons (see, for example, the ECHR judgment of 2 September 2014 in EDV für Sie, EfS Elektronische Datenverarbeitung Dienstleistungs GmbH v Germany, Case No 32783 / 08, paragraph 23; or the ECHR judgment of 30 June 2020 in Petro Carbo Chem S.E. v Romania, complaint No 21768 / 12). On the other hand, it follows from the ECHR case-law that the protection of the reputation of a legal person is the limit and correct application of Article 10 of the Convention guaranteeing freedom of expression (see the ECHR judgment of 15.2.2005 in Steel and Morris v United Kingdom, complaint No 68416 / 01; or ECHR judgment of 21.7.2011 in Heinisch v Germany, complaint No 28274 / 08). In the context of the interpretation of Article 10 of the ECHR Convention, it stresses that the nature of the right of legal persons to good repute and its scope is questionable (cf. ECHR judgment of 5 December 2017 in Frisk and Jensen v Denmark, complaint No 19657 / 12). The ECHR also considers that the protection of the reputation of a legal person is not as strong as the protection of the reputation or rights of a person (see the ECHR judgment of 11.1.2022 in Freitas Rangel v Portugal, Case 78873 / 13, paragraph 53; or the ECHR judgment of 15.3.2022 in OO Memo v Russia, Case No 2840 / 10, paragraph 39). According to the ECHR, a distinction should also be made between the interests of the protection of the reputation of legal persons of private law and closely linked to the public authorities (see the ECHR judgment of 29.8.2024 in Lefebvre v France, Case No 12767 / 21, § 31).
29. The ECHR grants expressly adequate satisfaction to legal persons in connection with their interference with the infringement of the rights guaranteed by the Convention (see, for example, the judgment of the Grand Chamber of the ECHR of 6.4.2000 in the Comingersoll S. A. v Portugal, complaint No 35382 / 97, § 31-36; or the ECHR of 1.6.2021 in the Association ACEPT and Others v Romania, complaint No 19237 / 16, § 167). However, it does so in the context of its exclusive competence to provide successful complainants with fair satisfaction against the State beyond what allows compensation for national law (Article 41 of the Convention); Therefore, it is not possible to draw conclusions from those decisions for the interpretation of the substantive right of good repute under Article 10 (1) of the Charter or for the protection of privacy under Article 8 of the Convention.
30. Similarly, in his decision-making activity, the SDEU has granted compensation for the non-property damage caused by damage to the reputation or reputation of legal persons. In particular, in the context of the protection of competition, the protection of personal data or the excessive duration of proceedings (see, for example, SDEU judgment of 9.7.1999 in Case T-231 / 97 New Europe Consulting and Michael P. Brown v Commission, paragraphs 53-69). The right to compensation for non-property damage caused by interference in the reputation of a legal person is not generally unified or harmonised in Union law.
Proceedings before the Constitutional Court
31. The procedure for the annulment of the provisions under review was initiated by plenary of the Constitutional Court in accordance with the last sentence of the Law on the Constitutional Court, as amended by Act No. 320 / 2002 Coll. The Constitutional Court concludes that the provisions under review have been applied in the resolution of the case and are partly an obstacle to the achievement of a (possible) constitutional consensus outcome.
32. Since the Constitutional Court did not find any other grounds to prevent a substantive assessment, it evaluated the provisions under review in terms of their compliance with the constitutional order, namely: (a) whether they were adopted and issued within the limits of the constitutional jurisdiction laid down, (b) whether the constitutional procedure for their adoption and extradition was complied with, finally (c) whether the provisions under review are in accordance with the constitutional order in terms of content (§ 68 (2) of the Constitutional Court Act, as amended by Act No 48 / 2002 Coll.).
Progress of the legislative process and assessment of its constitutional conformity
33. The Constitutional Court has concluded that the information provided in the statements of the Chamber of Deputies and the Senate (see paragraphs 8 and 9) is sufficient to conclude that the Civil Code, which includes the provisions under review, has been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner; the Constitutional Court has in the past found no constitutional deficits in the adoption of the Civil Code [cf., e.g. the finding of sp. zn. Pl. ÚS 52 / 23 of 24.4.2024 (144 / 2024 Coll.), paragraph 59; or the finding of sp. zn. Pl. ÚS 27 / 23 of 13.3.2024 (101 / 2024 Coll.), paragraph 21].
Substantial review of the Constitutional Court
34. The Constitutional Court has concluded, on the basis of the considerations set out below, that the legislation preventing legal persons from seeking adequate satisfaction for non-property damage caused by interference with their reputation is unconstitutional. However, the most appropriate means of bridging the unconstitutional state, according to the Constitutional Court, is not to abolish the revised provisions or parts thereof, but (at least for now) to complete the law on the basis of analogy.
35. In its assessment, the Constitutional Court will proceed as follows:
- first, it shall interpret the constitutional framework for the status of legal persons and the protection of their reputation, in which it presupposes that legal persons are entitled to the protection of reputation under Article 10 (1) of the Charter and that they may suffer both property and non-property damage in the event of unauthorised interference (VII (1));
- then justify that the inability of legal persons to seek adequate satisfaction constitutes a legal restriction on their fundamental right to the protection of good repute pursuant to Article 10 (1) of the Charter as it denies them from a sufficiently effective (effective) protection instrument (VII. 2) and is not proportionate (VII. 3); will also briefly comment on equality (VII. 4);
- then explain that effective protection of the reputation of legal persons can be ensured in the framework of a constitutionally consistent interpretation by means of an analogy for which the necessary assumptions are met without the need to repeal the revised provisions or parts thereof (VII. 5).
Protection of the reputation of legal persons and the nature of the intervention
36. The Constitutional Court is based on the assumption that the constitutionally guaranteed fundamental rights and freedoms enshrined in the Charter and the Convention also apply to legal persons, if the nature of the case so permits (see page I. ÚS 201 / 01 of 10.10.2001 (N 147 / 24 SbNU 59)). In the context of certain fundamental rights, there is no doubt that it also belongs to legal persons - for example, the right to judicial protection under Article 36 (1) of the Charter or the protection of property under Article 11 of the Charter. Further fundamental rights must be granted to legal persons according to their nature.
37. In order to assess which constitutionally guaranteed rights also bear witness to legal persons, it is necessary to deal with their nature, purpose and purpose within the framework of an effective legal order. It is without doubt that a legal person is not a person of the nature of a matter of law and of freedom exclusively linked to a person, such as personal freedom or the right to life; full equality (within the meaning of the same catalogue of protected rights) is unattainable between living individuals and existing legal persons. This approach is reflected in its anthropocentric concept in the Civil Code, namely that only a person has innate, already self-evident natural rights by reason and feeling, and is therefore considered to be a person (§ 19 of the Civil Code), whereas a legal person is "only" an organised body, which the law provides for having a legal personality or whose legal personality the law recognises (§ 20 of the Civil Code).
38. A legal person is not just a self-employed legal fiction. It cannot be seen, first of all, that the creation of a legal person is the result of people who, by their will, "inhale their legal life," are pursuing a purpose (to realise a certain interest - private or public), and without it, their existence would lack meaning. In all cases, the connection between specific people and a legal person is not equally obvious or intense. For smaller legal entities such as certain family businesses or associations, the merger is often very close and is often a life work of founders or members. On the other hand, for large-scale structures such as multinational corporations or large equity companies, a similar connection at first sight is less obvious and dispersed between larger numbers of people. There are also legal entities (fundations) which have the character of separate assets for a specific purpose for which membership is excluded for corporations; However, the human element may also be present (e.g. when establishing, managing, naming or in the way in which they fulfil their purpose).
39. The legal person thus represents a legal structure that reflects the human will - whether it be the will of an individual, a small group of people, or a collective will mediated by complex organisational structures. The variability of the relationship between a legal person and a human element underlines that even in cases where the link is less obvious or direct, a legal person of its kind remains an instrument in the "hands' of the people serving to meet their objectives and values; Therefore, its existence is never completely detached from the human factor.
40. Legal persons are mainly an instrument through which people can fulfil their interests, which must be granted rights at both constitutional and sub-constitutional level which are directly linked to their existence and their purpose. In addition to the above-mentioned rights of judicial protection (Article 36 (1) of the Charter) or the protection of property (Article 11 of the Charter), according to the Constitutional Court, protection of their reputation is also one of the fundamental pillars of the proper functioning of legal persons.
41. The good reputation of a legal person is crucial for its representation in legal relations and the fulfilment of the rights of individuals associated with it. In the end, interference with the reputation of a legal person may have a negative impact on its activities and thus on the possibility of individuals and the transfer of the entire company together to promote its interests. If the reputation of a legal person is damaged, the negative perception caused by this on the natural person (s) associated with the legal person shall be transferred. Infringement of people's rights is their own business, but a close link between them and a legal person is causing the indirect effects of illegal interference on them. People often do not have the opportunity (legitimacy) to defend themselves against interference with a legal person, which is why it is important to protect them from the effects of such interference indirectly through the protection of legal persons. The opposite approach can lead to negative consequences not only for legal persons, but also for a wider company that benefits from their activities.
42. Article 10 (1) The Charter has every right to preserve its human dignity, personal honor, reputation and protection of its name. Although some of these rights, such as human dignity and personal honour, belong exclusively to natural persons, this does not mean that the protection of good repute (and names) cannot be constitutional in relation to legal persons as well. The designated rights, which are interconnected and form part of a wider framework of the right to privacy, each have their own meaning, content and scope. Although they may intersect and their distinction is not always sharp, the Constitutional Court has repeatedly, in its decision-making practice, specified and applied the individual components of Article 10 (1) of the Charter separately or explicitly associated with other aspects of the right to privacy (see Kratočník, J. In: Kühn, Z., Kratočník, J., Kmec, J., Košák, D. and Kol. Charter of Fundamental Rights and Freedoms. Big comment. Praha: Leges, 2022, p. 540 to 550, marg. No 11 to 22, and the decisions cited there).
43. The right to privacy in the wider sense includes not only Article 10 of the Charter governing a set of individual rights constituting a right to privacy in the narrower sense, but also other partial rights or freedoms, such as the right to the protection of dwellings (Article 12 of the Charter), which the Constitutional Court has already granted to legal persons (see page (i) of the OJ 201 / 01). Similarly, the ECHR takes into account that Article 8 of the Convention guaranteeing the right to respect for family and private life (which also protects human dignity) protects certain aspects of the privacy of legal persons (see, for example, the ECHR judgment of 14.3.2013 in the Bernh Larsen Holding AS case and the others against Norway, complaint No 24117 / 08; or ECHR judgment of 2.10.2014 in the Delta Bakárny case, a.s., against the Czech Republic, complaint No 97 / 11). Thus, it would be inconsistent with both the Constitutional Court and the ECHR's case law to exclude legal persons from the protection of privacy in the wider sense. It is therefore necessary to assess the individual components of the right to privacy and to consider whether and to what extent they can be extended to legal persons.
44. In view of this, the Constitutional Court concluded that even legal persons have a constitutional right to the protection of good repute as a partial right protected by Article 10 (1) of the Charter, as this allows their nature (capacity to have a reputation) and corresponds to the current concept of legal persons. The application of other components of the wider right to privacy (or the protection of a name) to legal persons was not addressed by the Constitutional Court in this finding, since this was neither necessary nor appropriate, inter alia, since the general courts did not have to address this issue in the case on the basis of which the proceedings for the annulment of the provisions under review were initiated. However, in view of the similarity of the bases, a similar conclusion to that of protecting reputation and priori cannot be excluded.
45. If, in general, there is a right of legal persons to protect reputation, it is necessary to further explain the consequences of interference with the reputation. In general, interference with the reputation may be both property and non-property damage and may also be a cause of unfounded enrichment.
46. Property damage (damage) is manifested in the property sphere of the damaged and is objectively expressed in general equivalent - money [cf. Bezouška, P. In: Hulmák, M. and kol. Civil Code VI, Obligation Law. Special section (§ 2055-3014). Praha: C. H. Beck, 2014, p. 1498, marg. No 7 and 8; Pashek, M. In: Petrov, J., Prítik, M., Beran, V. a kol. Civil Code. 2nd edition (3rd update). Praha: C. H. Beck, 2024, § 2894, marg. No 7]. When intervening in the reputation of a legal person, the damage caused primarily lies in the economic consequences of its damage. As a rule, it will be represented by lost profit, caused for example by loss of customers, business partners, declining sales, weakening business relations, loss of supporters and contributors, etc. Therefore, the protection of the reputation of a legal person is often seen as protecting its property interest, which is indirectly protected by Article 1 of the Additional Protocol to the Convention and Article 11 (1) of the Charter. In that sense, the Constitutional Court has already granted to the commercial corporations the constitutional protection of their reputation, which it compared to the concept of goodwill and, in accordance with the case law of the ECHR, classified it as property rights (see sp. zn. I. ÚS 3819 / 14).
47. In addition to property damage, non-property damage, which is equally significant, may also be caused by interference in the reputation of a legal person (although the distinction between injury and injury may not be easy). In general, non-property damage does not lead to direct money quantifiable by the intervention in property (see e.g. Melzer. F. In: Melzer, F., Tegl, P. et al. Civil Code - big comment. Volume IX. § 2894-3081. Praha: Leges, 2018, p. 23-25, marg. No. 10-17). The reputation is a complex built intangible property whose value is not easily measurable or quantifiable and which cannot be separated from the legal entity (its sphere). The intervention is detrimental to it independently of direct or subsequent property effects, and may specifically result in a weakening of credibility and seriousness in the public sector, loss of competitiveness, loss of prestige, disruption of relations between associated persons, the need to make efforts to restore it, the threat to the ability to achieve the stated objectives, etc.
48. In particular, legal persons, whether private or public law, which are not set up for the purposes of business ("non-profit legal persons'), are not, in principle, entitled to harm caused by interference with their reputation, but only to harm (only) non-property. But, in addition to the damage to property, it also arises for legal persons set up for business purposes. In both cases, they need a reputation.
49. It is common ground that the nature of the non-property injury suffered differs between natural and legal persons. Natural persons feel harm directly in their personal sphere, their reputation is linked to personal life, social relations, professional careers, and closely related to personal honor rights and the name with which they form a set of personality rights that protects a person in a social context. On the other hand, the injury to a legal person must be seen differently in view of their nature. Legal persons do not suffer subjectively, but this does not mean that they do not, but rather it is linked to the specific effects on their activities and functioning - as outlined above - on the basis of imputability. The injury and its nature will also vary according to the form and type of legal person (business / non-business, public / private interest, etc.). However, a good reputation is the value of both natural and legal persons.
50. The fact that non-property damage is different for legal and natural persons does not mean that it cannot be caused at all. The view that legal persons cannot suffer non-property damage (not only) by intervening in their reputation does not correspond to the reality or to the current concept of civil law, which explicitly provides for the possibility of non-property damage and replacement of a legal person, even in less intensive cases (see paragraphs 82 to 87).
51. Argument of inadmissible anthropology of legal entities mentioned The Supreme Court does not rule out the creation and replacement of non-property damage, it can only mean greater emphasis on property damage than that of humans. The acceptance of the protection of reputation for legal persons and the possibility of compensation for non-property damage in the intervention does not result in anthropology, but rather outweighs their legal needs with regard to status in society and in legal relations, not on the basis of the ascription of human characteristics. Nor does the argument by the fictitious nature of legal entities mean that there is no possibility of non-property injury and compensation.
52. According to the Constitutional Court, it can therefore generally be concluded at that point that legal persons have the right to good repute pursuant to Article 10 (1) of the Charter and that they may have both property and non-property damage in the event of undue interference.
Limitation of the right to effective protection of the reputation of legal persons
53. The protection of constitutionally guaranteed rights cannot only be theoretical and illusory, but also practical and effective [finding sp. zn. II. ÚS 3112 / 17 of 20.2.2018 (N 30 / 88 CollNU 431), paragraph 15]. Otherwise, citizens' trust in law is weakened, which in consequence threatens the stability of the rule of law [cf. sp. zn. II. ÚS 1413 / 21 of 25.10.2021 (N 184 / 108 SbNU 241), paragraphs 12 to 14].
54. The State is obliged, through its institutions (in particular the courts), to ensure effective protection of constitutional values and goods also in relations between persons under private law, resulting from Article 1 (1) of the Constitution and Article 36 (1) of the Charter [cf. The equal protection of the rights and legitimate interests of individuals can only be achieved if the party to the proceedings has the necessary procedural instruments [finding sp. zn. Pl. ÚS 33 / 15 of 7.11.2017 (N 201 / 87 CollNU 269; 422 / 2017 Coll.), paragraphs 71 and 72]. In relation to the law of association (Article 20 of the Charter), the Constitutional Court, in the judgment in Sp. zn. II. ÚS 1969 / 10 of 27 December 2011 (N 219 / 63 CollNU 515) concluded (although political parties) that "[z] material fundamental rights in their protection dimension are required by the State to provide and ensure effective protection of fundamental rights, which also requires their material content corresponding to legal (in particular procedural) arrangements and guarantees against possible interference '(point 33 of the reference finding).
55. Protection of reputation pursuant to Article 10 (1) The Charter therefore includes the obligation of the State to ensure effective protection against unlawful interference by public authorities (vertical) and other private law persons (horizontal).
56. Paragraph 135 (2), in conjunction with Paragraph 135 (1) of the Civil Code, allows a legal person, in the event of an undue interference with his reputation, to seek the first waiver of him (retention claim) or the second removal of his consequences (removal claim). In addition, a legal person may request the third compensation of property damage (damage) and the fourth issue of unjustified enrichment if the legal conditions are fulfilled (the Constitutional Court leaves its own assistance under Paragraph 14 (1) of the Civil Code and the means of protection provided by special laws, such as the so-called media regulations).
57. Non-property damage is generally offset by reasonable satisfaction (§ 2951 (2) of the Civil Code). Contrary to the previous arrangements (§ 19b of Act No. 40 / 1964 Coll., Civil Code, as effective by 31.12.2013), the law does not expressly regulate the right to provide adequate satisfaction to a legal person. Although the damage caused by interference in the reputation of legal persons may be of both property and non-property nature, the law generally provides them with the possibility of compensation only for the first of them; the protection is thus limited to the asset level only.
58. For the protection of rights to be effective, the legal person concerned must have adequate legal instruments and means available to that end. The Constitutional Court has therefore examined whether, in the absence of a right to provide adequate satisfaction, the effective (effective) protection of their reputation guaranteed by Article 10 (1) of the Charter is denied to legal persons - in which case that fundamental right would be restricted.
59. According to the Constitutional Court, primary means of protection, i.e. retention and removal claims, are not sufficiently effective for the following reasons:
60. We live in a digital age, in a "fast and shared" period in which information can be distributed freely immediately and on a mass scale via the Internet and social networks [appropriately compared to the find sp. zn. I. ÚS 1029 / 21 of 13.1.2022 (N 4 / 110 CollNU 33), paragraph 36] with minimum costs (rather free of charge). The risk of damage to the reputation (not only) of legal persons is higher than ever. The media space is full of messages, comments and reviews that can be true, but also distorted or completely false. Legal persons, both gainful and non-gainful, often become the target of this information, both intentionally and inadvertently, which may have serious consequences for them (see section VII (1)). The speed at which information is disseminated makes it difficult for everyone, including legal persons, to respond effectively and to avert or correct the damage caused. Especially at present, "post-factual," when emotional appeals often spread faster than facts, effective protection is crucial to the long-term prosperity of and public confidence in legal entities.
61. There may be a considerable period of time (even several years) from unauthorised interference into the legal power of the decision imposing a decision to waive or remove the effect of the action, when such a form of protection may no longer be of practical importance to the injured legal person. If justice comes too late, it is the same as if it was rejected (justice delayed is justice denied) [see for example the finds sp. zn. IV ÚS 3892 / 18 of 29.1.2019 (N 18 / 92 SbNU 199), point 24; or sp. zn. IV ÚS 1784 / 17 of 13.9.2017 (N 172 / 86 SbNU 773), point 13]. The duration of legal proceedings is then calculated for months, rather than years. Although procedural rules regulate "rapid" institutions of the type of interim measures, such arrangements cannot be considered an effective instrument.
62. The removal or retention claim cannot provide effective protection if diffusing information has already been published in the public space, captured and uncontrollably disseminated (whether by the originator or by different persons). At the same time the protection is limited by applying to specific events and to a specific time point [cf. sp. zn. II. ÚS 171 / 12 of 15.5.2012 (N 105 / 65 CollNU 439)]; does not prevent continuous and successive attacks if they are carried out by different persons whose number may in principle be unlimited as long as diffusing information exists in the public space.
63. Even if a legal person obtains a judicial decision (including a relatively quickly ordered interim measure), which orders the abandonment or removal of its consequences, its reputation may be irrevocably damaged. Information that has been published and disseminated has a tendency to persist in public awareness, people who have encountered it can continue to believe it or consider it relevant, regardless of whether it was subsequently refuted or withdrawn (negative information captures everyone and immediately, while complying with a judgment issued after years by few). Initial perceptions and opinions may persist and influence future actions and attitudes towards the legal person concerned (cf. Socio-psychological phenomena known as errors in social perception - see the buyer. Issue 2. Plzen: Aleš Čenek, 2007, p. 215 et seq.), which makes it difficult to fully rehabilitate her name and her well-known reputation, because in the public mind, mistrust or negative images may persist despite any corrective action taken [cf. Adequate finding sp. zn. I. ÚS 453 / 03 of 11.11.2005 (N 209 / 39 SbNU 215)].
64. The right to compensation cannot be considered as a sufficiently effective protection instrument for at least two reasons:
65. First, to quantify the loss of profit or loss of assets due to interference in reputation is very difficult, more often impossible, although these difficulties can be partly overcome by § 2955 of the Civil Code or § 136 ° S.) Major complications arise for the claimants already in demonstrating the causal link between the damage to reputation and the occurrence of damage (as in the case of unfair competition, see Kindl, J. In: Melzer, F., Tegl, P. et al., 2018, requoted, p. 1216 and 1217, marg. 32- 34). To establish a causal link, that certain diffusing information directly led to asset losses, requires a detailed analysis of market conditions, customer behaviour and other effects, which may be extremely complicated for the injured legal person. For example, if damaged legal persons experience a decrease in sales after disclosure of the diffusing information, they must demonstrate convincingly that it is directly caused by this information, not by other factors such as the general economic downturn, seasonal fluctuations or changes in the competitive environment. In this context, the person concerned is placed in a complex evidentiary situation which, in certain cases, is impossible to overcome.
66. It is particularly difficult to claim compensation for non-profit-making legal persons, as their activities are generally not aimed at making profits, building a brand or building up assets. In addition, even if direct damage to property was caused, for example by reducing donations from sponsors or by declining volunteering, the evidence of a causal link between this decline and the damage to reputation may be even more difficult than in the case of legal persons who are profitable. In Czech judicial practice, it is difficult to find a final decision that attaches to the injured in the form of lost profit - precisely because of the complicated evidence of the injured.
67. Secondly, although the damage caused by undue interference in the reputation of a legal person may have specific property effects, it is regarded as typically non-property damage, which is offset by adequate satisfaction, for which standards are set for the determination of the form and level of law enforcement and effective protection (see also below).
68. For similar reasons as in the case of damages, neither an effective means nor an entitlement to an unjustified enrichment, which is otherwise theoretically considered.
69. It can therefore be concluded that the current legislation (in the sense of the interpretation of the Supreme Court) does not provide effective instruments to legal persons. The Constitutional Court does not dispute that the claims described above may be effective means of protection in specific situations, but are neither universal nor typical. As a rule, unlawful interference in the reputation of a legal person will cause non-property damage which is offset by reasonable satisfaction.
70. The right to atone for non-property damage by providing adequate satisfaction may be considered an effective means of protecting reputation under Article 10 (1) of the Charter where other means are not effective. In the circumstances of previous legislation, the right to provide adequate satisfaction was an instrument for overcoming the established shortcomings of other means. Nor did the legislature, for the protection of reputation, choose the subsidiary form of atoning for damages in the broadest sense of the word, by means of flat-rate compensation, as allowed in the intervention of intellectual property rights. The Institute of Adequate Satisfaction made it possible for the courts to grant compensation to the injured legal person on the basis of the judicial reasoning and specific circumstances of the case, without the need to prove precisely the amount of damage suffered and its causal link with the diffuse conduct. This approach ensured that the injured legal persons could obtain reasonable satisfaction even if direct evidence was not available. The same can also be argued now and in the same way it is justified in effective legislation to require adequate satisfaction in the infringement of the rules of unfair competition (see Kindl, J. In: Melzer, F., Tegl, P. a kol, 2018, requoted, p. 1218, 1219 and 1232), which also compensates for damage which has material consequences (cf. Judgment of the Supreme Court in sp. zn. 29 Odo 652 / 2001 of 18.9.2002).
71. According to Article 2951 (2) of the Civil Code, adequate satisfaction may take the form of an immaterial (moral) or material (monetary) satisfaction which can be considered if there is no other means of attaining the actual and sufficient atonement of the injury suffered. Even a "mere" apology as an immaterial satisfaction that a legal person cannot demand in the light of effective legislation may not only be a symbolic gesture, but may be of real and substantial importance to it, thereby mitigating the non-property damage caused (see Pilík, V. The concept and regulation of the protection of legal personality of legal persons in civil law. Legal perspective, 2016, No 13-14, p. 457- 467; cf. also, mutatis mutandis, Case C-2925 / 2006 Supreme Court v Council of 29 January 2009). With some exaggeration, no lie is too small to deserve an apology.
72. The protection of reputation in the framework of the regulation of the protection against unfair competition (which, pursuant to Article 2988 of the Civil Code, gives the right to provide reasonable satisfaction) cannot be considered an effective instrument because all unauthorised interventions cannot be linked to the general clause of unfair competition under Article 2976 of the Civil Code or any special facts, regardless of the scope of its concept.
73. In addition, in the absence of a right to atone for non-property damage, the preventive penalty functions of the protection of the reputation of a legal entity are limited. If a legal person disposes only of the removal and stalling claim, taking into account that the right to compensation and the issue of unjustified enrichment is not always (in fact) considered, nothing would sufficiently deter the agent of intervention from its execution or recurrence. Adequate satisfaction is a tool that allows not only correction and compensation for the damage suffered but also acts as a deterrent to the intended future undue action [cf. Sf. Sf. Sf. Sf. I. ÚS 1586 / 09 of 6.3.2012 (N 43 / 64 SbNU 491), sp. zn. I. ÚS 2844 / 14 of 22.12.2015 (N 221 / 79 SbNU 545) or Sr. ÚS 668 / 21 of 2.11.2021 (N 192 / 109 SbNU 58)]. The absence of this right may lead to unjustified interference in the reputation of legal persons being more frequent and legal protection would be insufficient both from the point of view of redress and prevention.
74. It can therefore be concluded that the right to reasonable satisfaction provides the injured person with the possibility to atleast partially atone for the non-property damage caused by the damage to his reputation in a situation where the retention and removal claims cannot respond to the uncontrollable dissemination of diffusing information in the public space. At the same time, it allows compensation without the need to precisely demonstrate the level of damage and its direct link with the action, which is often virtually impossible. In addition, the absence of the right to atone for non-property damage in reputations is significantly weakened by the legal protection of non-profit-making and non-participating competitors exposed to interference in their reputation without adequate means of defence. If the non-property damage is not avoided in a situation where the damage to the reputation of a legal person in the Czech legal environment is seen as a typical non-property damage, the general protection of the reputation of a legal person without such a right is ineffective; it is not systematic to regard the same damage in one case as non-property and in another as property.
75. The Constitutional Court has therefore come to the partial conclusion that the inability of legal persons to seek atonement for non-material damage proportionate to the satisfaction constitutes a legal restriction on their fundamental right to the protection of reputation pursuant to Article 10 (1) of the Charter, as it defies them from the possibility of atonement for damage caused by non-property nature and other means cannot be considered as sufficiently effective protection instruments.
Proportionality of limiting access to effective protection
76. If, according to the Constitutional Court of a legal person, it is limited in its approach to effective legal protection of good repute, it had to further examine whether the restriction could be considered appropriate.
77. In particular, the assessment of the limitation of fundamental rights must be in line with the requirements of the rule of law and meet the requirements based on the proportionality test (in the wider sense), which includes three criteria: the first is the assessment of the eligibility of the purpose (or suitability) in which it is established whether a specific measure is capable at all of achieving the intended objective of protecting another fundamental right or public good. In addition, the need is assessed in the second step, and it is examined whether the most respectful of basic law has been used in the selection of funds. Finally, the proportionality (in the narrower sense) is assessed, i.e. whether the injury to the fundamental right is disproportionate in relation to the intended objective [cf. e.g. the finding of sp. zn. Pl. ÚS 27 / 16 of 18.12.2018 (N 200 / 91 SbNU 485; 51 / 2019 Sb.), paragraphs 93 and 94]. The Constitutional Court applied the test as follows:
78. In the first step, it examined whether legislation which does not allow legal persons to claim compensation for non-property damage was capable of achieving its objective. First, the Constitutional Court had to identify the objective of the adjustment under consideration. This is not apparent from the explanatory memorandum, so the position of the historical legislator is unknown; in that regard, only the fulfilment of the "anthropocentric" concept of civil code, consisting of strengthening the protection of natural persons compared to legal persons who cannot, in principle, suffer non-property damage, unless the law provides for it as a fiction. However, the legitimacy of this objective is doubtful, given that subconstitutional regulation not only allows legal persons to claim compensation for non-property damage in other cases (which may not even be as serious as interference with a constitutional guarantee), but directly in the event of interference with reputation (e.g. unfair competition or maladministration). Even if the Constitutional Court considered this objective to be legitimate and legal, it could not stand for proportionality (see below).
79. The eligible objective is seen by the Constitutional Court in the interest of a restrictive approach to the atonement of property damage for legal persons, which may serve to prevent excessive and frequent application of claims for adequate satisfaction; (a) prevent the deterrent effect of the freedom of expression guaranteed by Article 17 (1) of the Charter; (b) limit the risk of abuse of the right to atone for non-property damage; (c) to prevent an increased burden on the courts which may be caused by excessive actions; and (d) to protect the property interests of entities which might otherwise face high costs of defence in court proceedings and any compensation for damage. The limitation of the possibility of legal persons seeking adequate satisfaction is capable of achieving this objective (and its sub-components).
80. Part of the second step is to assess whether the stated objectives could be achieved by other less restrictive means. According to the Constitutional Court, it is possible to imagine an adjustment that would be capable of achieving the identified and other objectives. In particular, it would be possible to respond to individual negative externalities through an interpretation defining specific limits or conditions for the atonement of property damage and ensuring effective protection of reputation without the need for a complete denial of one of the rights for a selectively identified set of cases. In the context of case-law practice, it would be possible to distinguish between different types of interference in reputation (e.g. public criticism versus false information disseminated in order to damage the reputation) and to apply general bases on diffamination disputes and conflicts of individual constitutionally guaranteed rights in order to balance them fairly. It would also be possible to consider flat-rate compensation, as is known for interference with intellectual property rights. The Constitutional Court therefore has reasonable doubts as to whether the legislator's choice of solution can be found necessary; However, it also carried out a third step of the review in the interests of completeness of the assessment.
81. The last (third) step is to examine whether the negative consequences of the revised adjustment are disproportionate in view of the identified objectives. The Constitutional Court concluded that the complete withdrawal of the right of a legal person to atone for non-property damage is disproportionate for several reasons:
82. In assessing the compliance (part) of the Act with the constitutional order, the part of the Act in question cannot be assessed in isolation, but in the context of the related legislation and in the broader context [cf. sp. zn. Pl. ÚS 10 / 17 of 3.11.2020 (N 16 / 104 SbNU 135; 124 / 2021 Coll.), paragraph 46; or the sp. zn. Pl. ÚS 33 / 16 of 10.11.2020 (N 207 / 103 SbNU 85; 6 / 2021 Coll.), paragraph 156]. The current legislation not only admits that legal persons may be subject to both property damage and non-property damage, but also expressly provides for the possibility of seeking atonement in the following cases (subject to a non-full list), as identified, inter alia, by the Supreme Court in paragraph 64 of Case C-237 / 2021:
(a) intervention in the fundamental rights of a member of the association (Section 261 of the Civil Code),
(b) infringement of rights to a commercial firm (§ 423 (2) of the Civil Code),
(c) bringing another person to legal action by threat or deceit (Section 587 (2) of the Civil Code);
(d) claims for protection against unfair competition (Section 2988 of the Civil Code);
(e) claims for protection against restrictions on competition (§ 2990 in conjunction with § 2988 of the Civil Code),
(f) infringement of rights under the Commercial Corporations Act [§ 3 paragraph 2 of Act No. 90 / 2012 Coll., on Companies and Cooperatives (Commercial Corporations Act)],
(g) infringement of industrial property rights (Section 5 of Act No. 221 / 2006 Coll., on the Enforcement of Industrial Property Rights and the Protection of Commercial Secrets),
(h) infringement of the breeding rights to plant varieties [Paragraph 27 of Act No. 408 / 2000 Coll., on the Protection of Plant Variety Rights and amending Act No. 92 / 1996 Coll., on Varieties, Seeds and Propagating Plants, as amended (Act on the Protection of Variety Rights), as amended, Act No. 554 / 2005 Coll.],
(i) damage caused by an unlawful decision or maladministration (Sections 13 and 31a of Act No. 82 / 1998 Coll., on liability for damage caused in the exercise of public authority by decision or by maladministration and amending Act No. 358 / 1992 Coll., on notaries and their activities (notarial order), as amended),
(j) the damage caused by the interim measure (§ 77a (1) of Act No. 99 / 1963 Coll., Civil Code, as amended),
(k) the damage caused by interference with copyright rights [Sections 74, 78, 82, 86 and 94 in conjunction with Sections 41 and 40 (1) (e) of Act 121 / 2000 Coll., on copyright law, on copyright rights and on the amendment of certain laws (Copyright Act), as amended],
(l) the damage caused by the bullying insolvency proposal [§ 147 (1) of Act No. 182 / 2006 Coll., on bankruptcy and its methods of resolution (insolvency law), as amended by Act No. 334 / 2012 Coll.].
83. A number of cases can therefore be found in the sub-constitutional context in which the damage caused by non-property damage to legal persons (even in the case of less intensive interventions) is rectified, and some of them consist of interference in reputation - for example, in non-qualms [paragraph 82 (d)], in an illegal decision or in an incorrect official procedure [paragraph 82 (i)] or in a bullying insolvency proposal [paragraph 82 (l)]; indirectly, the reputation is also protected in the framework of the protection of a commercial firm [point 82 (b)].
84. The current legislation leads to an unsystematic distinction in the protection of the reputation of legal persons. Illustrate to say that if the reputation of a legal person is damaged, for example, by the false statement of the Minister or his competitor, the non-property damage is atoned for; But if anyone else makes such a false claim, there shall be no atonement for the loss of property. Similarly, if the reputation of a legal person is damaged by a bullying insolvency proposal, the non-property damage is compensated, but not in other comparable cases. This distinction is problematic because the damage to the reputation of legal persons is generally seen as non-property damage to be rectified according to its impact, not the status of the agent of the intervention. The absence of a single approach weakens the systemic consistency of legal protection, which may lead to injustice and to similar interventions being corrected differently without a rational reason for doing so. Selective regulatory settings also undermine the consistent application of the principle of anthropocentrism.
85. The Constitutional Court respects that the range of cases for which the legislator has provided the possibility of attaining compensation for non-property damage is the result of its legal political reasoning, which cannot, however, be arbitrary if it is a way of protecting a constitutionally guaranteed right and limiting its effectiveness. If it was a valuable decision by the legislature to protect the reputation of legal entities with the help of a fundamentally effective right to adequate accomplishment, it is not clear why it did so only in some cases, but in comparable cases not, although their teleological and factual background is identical or at least similar.
86. The restriction of the right of legal persons to be satisfied only to certain cases of damage to reputation is arbitrary, since there are no objective reasons for certain legal persons to have the right to protect their reputation (including the right to adequate satisfaction) and others not, although their reputation is of comparable value and they all have an interest in protecting it. Any legal person is exposed to a risk of damage to his reputation, which may have a negative impact not only on his business but also on the overall position in the company, even if the action is outside the field of unfair competition or outside other cases where the non-property damage to the reputation is offset. The Constitutional Court therefore considers it disproportionate and unconceptual for a legal person to have the right to adequate satisfaction for interference in reputation in one context (e.g. in the context of competition or in the context of an official procedure), but not in another (e.g. outside competition or in the context of private law), although the intervention caused by injury and the nature of the proceedings will be similar.
87. Moreover, cases in which the non-property damage is rectified are mainly related to the participation of a legal person in trade relations (such as those resulting from interference with the rights of a commercial firm or infringements of rights under the Commercial Corporations Act) and, where appropriate, to interference with protected interests of a primarily property nature (e.g. those resulting from breeders' rights to plant varieties or industrial property rights violations) and which are more likely to be remedied in the context of damages. According to the Constitutional Court, it is illogical that certain manifestations of the activity of a legal person (mental, industrial or general property) are protected, inter alia, by the right to atone for non-property damage, whereas the reputation - related to the very existence of a legal person - is not protected in this way.
88. An adjustment, according to which there is no general justification for non-property damage to reputation, places non-profit-making legal persons at a disadvantage who will suffer damage, mainly (sometimes exclusively) of a non-property nature. The law does not provide them with sufficient protection of their reputation without atoning for the loss of property damage, even though interference with them may be affected to a similar extent to legal persons of a gainful nature, for whom, on the contrary, the damage will be mainly property damage. As a result, they are not granted full protection, including the right of satisfaction, which creates an unduly weaker position than legal persons who may claim compensation.
89. According to the Constitutional Court, from the point of view of access to the protection of legal persons's rights and situations in which non-property damage can be atoned for, the legislation is inconsistent and non-discriminatory. It is a sign of the rule of law that legal protection should be comparable in similar cases.
90. In support of the proportionality of the restriction, it is not possible to argue with historical tradition: in the circumstances of previous legislation of a legal person, they were explicitly available to the contested law, and it is not clear why this means of protection was withdrawn from them and, at the same time, preserved in other - similar, sometimes less serious - cases. This is therefore a reduction in the standard of protection of fundamental rights, for which there are no legitimate reasons. Also, judicial practice was not problematic or arbitrary or excessive before 1 January 2014.
91. Nor can international comparisons be argued. The analysis carried out shows (see section IV.7) that approaches to the protection of the reputation of legal persons vary across the legal systems of the compared countries. Most countries provide adequate satisfaction for non-property or other damage (in different forms) or focus only on financial compensation for damage caused. A group of countries with limited reputation protection for legal persons includes in particular the Nordic States in which the protection of the reputation of legal persons is not significantly protected. However, it cannot be concluded that the right to atone for non-property damage (or, more generally, to provide adequate satisfaction) to legal persons in countries based on a continental legal tradition is granted only occasionally - on the contrary, even a trend towards strengthening the status of legal persons can be observed in the decision-making practice of the courts of certain countries.
92. The right to the protection of reputation under Article 10 (1) of the Charter is opposed to the freedom of expression guaranteed by Article 17 (1) of the Charter, which requires that both rights be carefully balanced. The restriction of freedom of expression is not dependent on the creation of damage, but on crossing its borders, and the question arises as to why the protection of the reputation that corrects freedom of expression should be given to certain - selectively selected - entities only limited. The complete denial of the right to atone for non-property damage to legal persons in untypical situations leads to an unequivocal deflection of the balance between the protection of their reputation and the freedom of expression of third parties. Freedom of expression is preferred at the expense of the reputation of legal persons who do not have sufficient effective means of legal protection - also from this point of view, the legislation under assessment cannot be considered adequate.
93. The Constitutional Court is aware that the right to protect reputation may also be misused. In specific cases, therefore, it is necessary to insist on its consistent comparison with the right to freedom of expression and on the information provided for in Article 17 of the Charter. In its case-law, the Constitutional Court consistently considers freedom of expression and the derived right to information to be one of the cornerstones of the democratic rule of law, since only free information and their exchange and free debate make a person a citizen of a democratic country; On the contrary, the absence of this freedom precludes democracy (cf. sp. zn. I. ÚS 2956 / 23 of 10.1.2024). Therefore, the right to protect reputation cannot be used, for example, to conduct so-called strategic disputes against public participation. However, this can be avoided in any particular case without the need to limit the right to protect the reputation of all legal persons in a preventive manner.
94. The strategic actions against public participation (strategic lawsuits against public participation, in short "SLAPP ') aim to limit or penalise the exercise of freedom of expression in matters of public interest and the exercise of related political rights - typically journalists, trade unions, academics, civil society activists, whistleblowers, etc. [cf. Recommendation of the Council of Europe's Ministers CM / Rec (2024) 2 on the defence against strategic actions against public participation]. They may result in the weakening of free public debate and civil society, to which the preamble of the Constitution is directly claimed and which is an important insurance policy for democracy and the rule of law. A recent entry into force of Directive (EU) 2024 / 1069 of the European Parliament and of the Council on the protection of persons involved in public participation against manifestly unfounded actions or abusive judicial proceedings (strategic judicial proceedings against public participation), which ensures protection in civil disputes with a cross-border impact. Articles 10 (1) and 17 The Charter should therefore be interpreted in particular in the light of this problem and taking into account the documents cited as a minimum standard.
95. It is particularly up to the courts to distinguish, on a case-by-case basis, the exercise of a right of protection from bullying and abuse of a right which does not enjoy protection. Individual interests, rights and freedoms can be balanced in decision-making practice without the need to exclude any of the protection instruments. Concerns about abuse of the right to provide adequate satisfaction can be mitigated by experience and, above all, by a restrictive interpretation, as outlined above, and by assessing the specific circumstances of each case. This finding is also without prejudice to the case law relating to diffamation disputes and the conflict between constitutional rights.
(96) The conclusion of a (hypothetical) disproportionate burden on the judicial system cannot justify the proportionality of the current legal situation, as a significant increase in the number of disputes beyond the existing regulation cannot be expected. Moreover, it would not be a new situation for the courts - legal persons could also have had this type of dispute under previous legislation (effective from 1.1.1992 to 31.12.2013) without creating disproportionate difficulties in practice.
97. The Constitutional Court therefore concludes, in the context of the proportionality test, that the restriction of the access of legal persons to the compensation of non-property damage as an effective instrument for protecting reputation cannot be considered appropriate.
The question of equality
98. According to some opinions (see the observations of the complainant, the Supreme Court in Prague or the Department of Civil Law of the Faculty of Law of Charles University), the impossibility of legal persons to demand adequate satisfaction in intervening in their reputation is created by inequality between natural and legal persons. The Constitutional Court will therefore briefly address this issue.
99. The Constitutional Court takes the view in its decision-making practice that equality is a category of relative, conceptually requiring the removal of unjustified differences. A breach of the principle of equality needs to be treated differently with different entities in the same or comparable situation, without, however, having objective and reasonable grounds for such an approach. It is normally based on a breach of other fundamental rights [cf.
100. The Constitutional Court, in relation to Article 1 of the Charter, which regulates the so-called non-acesoric inequality, concluded that only individuals, as human beings gifted by human dignity, could rely on this provision [the Pl. ÚS 30 / 15 of 15.3.2016 (N 42 / 80 of SbNU 517; 239 / 2016 Coll.), paragraph 29]. Therefore, in the present review only the so-called Accesorial Inequality under Article 3 (1) of the Charter (or Article 14 of the Convention) is considered, which ensures equality in the implementation of another fundamental right or freedom - in this case, the right of legal persons to protect their reputation under Article 10 (1) of the Charter.
101. Although natural and legal persons enjoy a constitutional right to the protection of reputation (Article 10 (1) of the Charter), their content is of a different nature and is also of a different nature to the damage caused by interference with the protected good. If the Constitutional Court admits constitutionally guaranteed rights and freedoms to legal persons only to a (limited) extent, which corresponds to their nature, no equality can be established between natural persons, as living beings, and legal persons, as legal constructs, both from the point of view of the catalogue of fundamental rights, the level and methods of their protection. In other words, people and legal persons are not - and cannot be - equal from the nature of the matter. Therefore, a breach of the principle of equality between natural and legal persons cannot be considered.
102. However, according to the Constitutional Court, inequality between legal persons and situations in which legal persons have the right to atone for non-property damage in the event of undue interference with reputation may be considered. It is necessary for the application of Article 3 (1) of the Charter (or Article 14 of the Convention) to distinguish between entities on the basis of the reasons set out therein, where appropriate on the basis of "other status'. The term" other position 'covers only criteria which are similar to or close to those expressly stated - not that they represent any conceivable difference. Those reasons should be the characteristics associated with the individual's personal choice, which reflect its personal characteristics (e.g. faith, religion, political views) or characteristics that an individual cannot choose (e.g. gender, race, colour, nationality, origin, age or disability) [cf.
103. The distinction between legal persons according to the nature of the harmful event or the context of the legal action under the Constitutional Court does not constitute a qualified ground which could be placed under a demonstration list of the characteristics defined in Article 3 (1) of the Charter or Article 14 of the Convention. Those provisions are not applicable to the case under examination and therefore the Constitutional Court has not considered the provisions under review in respect of infringements of equality or non-discrimination.
Context
104. In the present case, the Constitutional Court has identified a disproportionate restriction on the fundamental right of legal persons to protect their reputation by not being able to successfully demand adequate satisfaction in its intervention. He therefore considered whether the unconstitutional state could be overcome by a constitutionally consistent interpretation, which concluded that the most appropriate means was the use of an analogy for which the necessary assumptions were met.
105. According to the case-law of the Constitutional Court, a constitutional conformal interpretation generally takes precedence over the derogation of a legal provision [cf. The Constitutional Court has therefore also examined whether there is a procedure within the framework of a constitutionally consistent interpretation whereby the non-constitutional state can be bridged without the need to repeal the provisions under review or parts thereof.
106. The interpretation of the provisions under review has already been dealt with in detail by the Supreme Court in the judgment in Case C-327 / 2021, in which, on the basis of the traditional interpretation methods, it concluded that, under effective legislation, a legal person does not have the right to atone for the loss of property caused by the (itself) unlawful interference in its reputation under § 135 (2) of the Civil Code, unless expressly agreed otherwise, given § 2894 (2) of the Civil Code. The Constitutional Court agrees with its conclusions that the provisions under review, within the limits of their broad linguistic importance, do not allow legal persons to successfully apply the legal instrument.
107. In view of the complainant's arguments in the proceedings concerning the constitutional complaint and the Supreme Court in Prague, the Constitutional Court concludes at this point that the possibility of seeking reasonable satisfaction cannot be derived from the right to remedy the consequences of undue action (§ 135 (2) of the Civil Code). As the Supreme Court pointed out in the judgment in Case 327 / 2021, it is important to distinguish consistently between these two instruments, as this is of practical importance, inter alia, in determining whether responsibility is objective or subjective.
108. According to the Constitutional Court, it cannot be considered as a possibility or argument that, in the event of damage to a legal person, non-property compensation may be claimed by persons associated with it - thus denying the autonomous nature of legal persons as entities different from those associated with them. Similarly, the provision of Paragraph 83 (1) of the Civil Code is not applicable to the cases provided for, since its purpose is to enable a legal person to represent a person involved in it, on his behalf, not to deal with the damage caused to the legal person itself. Although it is not excluded that one act may affect both human rights and legal persons, it is necessary to distinguish on whose side the injury was caused (see for example Thoma, P. In: Lavický, P et al. Civil Code I. General section (§ 1-654). Issue 2. Praha: C. H. Beck, 2022, p. 349].
109. Paragraph 29.71 of the Civil Code, although theoretically applicable, does not appear to be a permanent solution to the unconstitutional situation, since its primary area of application (compensation for the so-called secondary victims) is different and is conditional on specific assumptions which may not always be met, which limits its applicability in a broader context. A solution based on this provision could not ensure uniform and effective protection of fundamental rights of legal persons in all relevant situations. Finally, in view of the current concept of private law, which consistently distinguishes between property and non-property damage (as opposed to some foreign adjustments), the Constitutional Court considers that the intervention in the reputation of a legal person should be regarded only as material damage which could be compensated as damage.
110. Furthermore, the Constitutional Court will state that the absence of legislation allowing legal persons to seek adequate satisfaction for the unauthorised interference in their reputation constitutes a loophole in the law which can be overcome by analogy as one of the instruments of law-building.
111. The limits and general bases on the legal loopholes and its judicial completion were dealt with by the Constitutional Court in its findings sp. zn. II. ÚS 1578 / 21 of 7.2.2024 and sp. zn. This approach is justified in cases where there is a "gap 'in legislation - a situation which the law does not remember and which cannot be resolved by an extensive interpretation of language importance. If the gap is conscious of the law, it is based on the legislator's decision, the courts must not intervene in principle, as it would infringe the democratic principle and the division of power [cf. also the finding of the sp. zn. III. ÚS 2264 / 13 of 27.3.2014 (N 47 / 72 SbNU 531)]. The overriding grounds were applied by the Constitutional Court in the present case.
112. According to the Constitutional Court, if legal persons cannot ask for adequate satisfaction for intervening in their reputation, while in other, less serious cases, yes, this means denying effective protection of their constitutionally guaranteed right. This situation represents a teleological loophole in the law, namely the so-called open loophole, because there is no positive provision that would grant them the contested law.
113. In order to bridge the identified gap through analogy, the Constitutional Court had to first determine whether the so-called "gap" was a conscious one to rule out the process. According to the Constitutional Court, the solution to this issue is not as clear as the Supreme Court in Case C-327 / 2021. As has already been explained, the declared anthropocentric concept of the Civil Code, from which the Supreme Court considers the legislator's intention, is not consistently reflected in the legislation, which manifests itself in an unsystematic approach to the atonement of various non-property interests for legal persons. Nor can it be concluded that the cross-border comparison would indicate an exceptional allocation of the right of a legal person to atone for non-property damage.
114. Even from the historical context, it cannot be seen that the legislature's legitimate intention: Although the right of a legal person to atone for non-property damage caused by undue interference in reputation cannot be regarded as a traditional institute of domestic private law, as developed until 1948, it is not possible to relativize that that right was granted (only) to legal persons between 1.1.1992 and 31.12.2013, as it is an immediate period prior to the effectiveness of the "new" civil code.
115. In the explanatory memorandum (for its meaning see point 37 of the judgment in point Pl. ÚS 23 / 24), the legislator did not express its willingness to depart from the previous regulation in this respect. in relation to § 132 to 135 of the Civil Code, it states that "[s] dreamy intends to continue to protect the name (s) of the legal entity. The protection of other rights associated with the legal personality of a legal person is extended in line with the substantive intention, leaving the current term, a good reputation, because it necessarily raises the question of which reputation is, good 'and, for example, the publisher of certain printed matter (e.g. tabloid or erotic character) at all, a good reputation'. What reputation of a legal person deserves protection must come from the specific circumstances of the case and from the logical content of the law." There is no mention of a reduction in the level or extent of protection; on the contrary, the extension of protection of other rights is emphasised. It can be reasonably assumed that, if the legislator intended to reduce the scope of protection so significantly, it would at least point out this in the explanatory memorandum.
116. The argument based on the selectivity of the legislation in this respect also fails. One of the main programme objectives of the Civil Code was to interrupt continuity with the "socialist" Civil Code of 1950 and 1964. However, it cannot be concluded that the discount should also apply to legislation adopted after 1989, against which the Civil Code is not defined. In the framework of the Socialist Civil Code (from 1.1.1951 to 31.12.1991), legal persons did not have the right to atone for non-property damage in their reputation.
117. Moreover, the liability of legal persons is gradually highlighted by the legislator also in areas of law that have so far been typically associated with natural persons, for example in the field of criminal law, as evidenced by the adoption of Act No. 418 / 2011 Coll., on the criminal liability of legal persons and proceedings against them. The legislator's tendency to strengthen the liability of legal persons and their functional autonomy and independence from the personnel substrate should be balanced by similar efforts to strengthen their rights.
118. Nor does the unambiguous intention of the legislator prove that Paragraph 135 (2) of the Civil Code contains a link "or ', which, in the view of the intervener, suggests that the legislator intended to limit the possibilities of protection to only two options - the removal and retention claim. In fact, similar wording is also found in the provision of § 2988 of the Civil Code, which also uses a clutch" or "between the removal and stalling claim. However, this link is followed by an additional list of rights protection means in that section, which implies that the use of the clutch itself" or' cannot be interpreted as a restriction of protection to only two specific claims.
119. On the other hand, according to the Constitutional Court, it is not possible to omit some arguments that suggest that this is a conscious gap. The Civil Code is based on the concept of the fundamental irreparability of non-property damage, which means that the obligation to atone for non-property damage only prosecutes a pest if it is agreed or provided for by law. In other words, the law provides for the possibility of seeking reasonable satisfaction only in specific, legally determined cases, and not automatically at any time of interference with the rights or interests of the injured party. The chosen approach corresponds to the solution already chosen in Act No. 40 / 1964 Coll. (see Melzer, F. In: Melzer, F., Tegl, P. a kol, 2018, requoted, p. 44, marg. 129 to 134).
120. If the legislature did not include expressly unauthorised interference in the reputation of legal persons in § 135 of the Civil Code, although it did so in other cases, it can also be justified to conclude that it was a deliberate legal decision. This conclusion is also supported by the so-called fiction of a rational legislator, according to which it must be assumed that the legislator wanted to achieve exactly the solution he had formulated; However, the importance of this fiction cannot be overestimated for these purposes [see Hlach, L. and Melzer, F. In: Sobek, T., Kotásek, J. and Hapla, M. (eds.). Legal argument. Praha: C. H. Beck, 2024, p. 500]. The Constitutional Court also took into account the historical and conceptual arguments of the Supreme Court set out in the judgment in Case C-327 / 2021 (see paragraphs 102 to 126).
121. The Constitutional Court concluded that the intention of the legislature to deny legal persons the possibility of seeking adequate satisfaction in intervening in their reputation was not clearly demonstrated; in particular, it has not been established clearly meant and at least in the explanatory report expressed by the legislator's will to derogate from previous legislation and to reduce the standard of protection of the reputation of legal persons. If it has not been demonstrated that a rational legislator has created a conscious gap in the law, it must be assumed that it is an unconscious gap. This fulfills the basic premise for the completion of the law. The Constitutional Court further assessed the legal principles in question, which led to the conclusion that the reasons for closing the gap were prevailing through the analogy that is permissible in this case.
122. In particular, the gap is contrary to the value and teleological background of the rule of law and its systems. The value inconsistency is also one of the reasons why the restriction of the fundamental right of legal persons to protect reputation is disproportionate. The value-free legal order is a fundamental principle that protects the trust of the recipients of the law [see Hlach, L. and Melzer, F. In: Sobek, T., Kotásek, J. and Hapla, M. (eds.), requoted, p. 485]. The inconsistent regulation that protects some legal persons, while others do not, weakens trust and distorts the stability of the rule of law. The legal system grants legal persons effective protection of their reputation in a number of other situations (e.g. in the context of unfair competition, bullying insolvency proposals or maladministration), or generally allows them to seek atonement of the damage caused by non-property damage (see section VII (3)). Therefore, the absence of the possibility of seeking reasonable satisfaction for interference with reputation outside these explicitly modified cases seems inconsistent and illogical. In this respect, the principle of ubi eadem ratio, ibi eadem dispositio (where there is the same purpose, there is the same rule), which ensures consistency, predictability and fairness of the legal system (cf. Wintr, J. Methods and principles of incorporation of law. Praha: Auditorium, 2013, p. 161).
123. The value contradiction is enhanced by the fact that cases where the non-property damage caused by interference in the reputation and other assets of a legal person is offset are mainly commercial or property in nature, which include other protection instruments. The Constitutional Court found no compelling teleological or constitutional reasons that should justify the existence of the law at issue, or to intervene in the reputation of unfair competition, but not outside. The lack of legislation is therefore irrational and incoherent in terms of the purpose of this protection.
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Regulation Information
| Citation | The Constitutional Court found No 47 / 2025 Coll., sp. zn. Pl. ÚS 26 / 24 on the application for annulment of Sections 135 and 2894 (2) of Act No. 89 / 2012 Coll., Civil Code |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 26.02.2025 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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