Denial of service in the light of the constitutional principle of equal treatment and prohibition of discrimination.
Some remarks against the background of legal doctrine and constitutional jurisprudence in Poland and the Federal Republic of Germany
Keywords
horizontal interaction of constitutional freedoms and rights, right to equal treatment, Polish Constitution, German Basic Law, prohibition of discrimination, freedom of contractAbstract
The subject of this article is the question of the impact of the constitutional principle of equal treatment and the prohibition of discrimination on relationships of a contractual nature. Contracts are the basic tool regulating the rights and obligations of individuals in the sphere of their social and economic life. The title issue is therefore an aspect of a broader issue related to the impact of constitutional freedoms and rights on private law relations. As is well known, the model feature characterising the formation of relations between private subjects is the principle of will autonomy. One of its manifestations is freedom of contract, according to which the parties may - within the limits set by the law - arrange the legal relationship according to their own will. Among the specific elements shaping the content of contractual freedom, the freedom as to the conclusion of the contract, the choice of the counterparty, the shaping of the content of the contract and the choice of form are traditionally mentioned. In the following remarks, we will be primarily interested in that aspect of contractual freedom which relates to the choice of counterparty. We will try to determine what restrictions on the refusal to conclude a contract with a particular entity result for participants in civil law transactions from the constitutional principle of equal treatment and prohibition of discrimination. This issue will be presented in a comparative legal context showing the experience of the Polish and German constitutional courts. The aim of the article will be an attempt to reconstruct - on the basis of the jurisprudential theses developed within the framework of the interpretation of Article 32 of the Polish Constitution and Article 3 of the Basic Law of the Federal Republic of Germany - a model for resolving cases in which it is necessary to resolve a conflict between the freedom to choose a party and the right to equal treatment and the prohibition of discrimination.
References
Ciszewski, W. (2017). Does freedom entitle to discriminate? Theoretical and legal considerations on the case of a printer from Łódź, Legal Forum 2017 (5), pp. 36-53.
Epping, V. (2015). Grundrechte. Berlin Heidelberg: Springer.
Erichsen, H.-U. (1996). Die Drittwirkung der Grundrechte, Jura 1996 (18), pp. 527-533.
Falenta P. (2020). Constitutionality of the provision on refusal to provide a service without a justified reason - gloss to the judgment of the Constitutional Tribunal of 26.06.2019. (K 16/17), Palestra, 2020 (7-8), pp. 224-230.
Florczak-Wątor, M. (2014). The horizontal dimension of constitutional rights. Kraków: Jagiellonian University Publishing House.
Helios, J. (2013). Publicization of private law - privatization of public law in the context of European law considerations. Law and Administration Review, 2013 (92), pp. 11-36.
Jablonska, P. (2020) Control of constitutionality of provisions typifying prohibited acts. Glosa to the judgment of the Constitutional Court of 26.06.2019, K 16/17. Constitutional Law Review, 2020 (1), pp. 345-351.
Jarass, H.D., Pieroth, B. (2004). Grundgesetz für die Bundesrepublik Deutschland. Kommentar. München: C.H. Beck.
Michael, L., Morlok, M. (2008). Grundrechte. Baden Baden: Nomos.
Münch, von I., Kunig, Ph. (2010). Grundgesetz - Kommentar. Band I, München : C.H. Beck.
Paprocka, A. (2015). Protection against discrimination by private actors as a positive obligation of the state - remarks against the background of the jurisprudence of the European Court of Human Rights. In A. Młynarska-Sobaczewska, P. Radziewicz (eds.) Horizontal impact of the Constitution of the Republic of Poland and the Convention for the Protection of Human Rights and Fundamental Freedoms (209-225). Warsaw: Office of the Constitutional Tribunal.
Podkowik, J. (2016). The constitutional principle of equality and the prohibition of discrimination in civil law. Private Law Quarterly, 2016 (2), pp. 229-279.
Wróblewska, I. (2019). Gloss on the Decision of the Federal Constitutional Court of Germany of April 11, 2018, 1 BvR 3080/09, Stadionverbot. Constitutional Law Review, 2019 (6), pp. 475-485.
Wróblewska, I. (2022). Drittwirkung. The problem of the impact of fundamental rights on relations between private parties in the Federal Republic of Germany. Torun: TNOiK
Zubik, M. (2020). Constitutional law of contemporary Poland. Warsaw: C.H. Beck
Downloads
Published
How to Cite
Issue
Section
License
This work is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.
Stats
Number of views and downloads: 200
Number of citations: 0
