U-I-243/96

Reference no.:
U-I-243/96
Objavljeno:
Official Gazette RS, No. 39/96, Official Gazette of RS, No. 70/98 and OdlUS VII, 159 | 17.09.1998
ECLI:
ECLI:SI:USRS:1998:U.I.243.96
Act:
Act on the Amendments to the Act on Guaranty by the Republic of Slovenia for the Obligations of Companies that Originate from Debt Consolidation (Official Gazette RS, No. 35/96) (ZPOGD-B), Arts. 7, 12 a, 12 b and 12 c
Operative provisions:
Art. 7 of the Act on the Amendments to the Act on Guaranty by the Republic of Slovenia for the Obligations of Companies that Originate from Debt Consolidation is not unconstitutional in the part that refers to Arts. 12 a (except its first paragraph), 12 b and 12 c of this Act.
Abstract:
The principle of equality is not violated if the legislature has regulated the claims of banks differently than the claims of other creditors. The activities of banks are only financial transactions, and banks have a special significance for the national economy in the period of transition. Banks are also a majority creditor and cannot be compared to the so-called "grey market" or the suppliers whose share is minimal compared to that of banks. The principle of equality before the law cannot be viewed as the general equality of everyone but only as the equal treatment of equal factual situations. Normative diversity corresponds to the diversity of fact questions.

The mandatory write-off concerning bank creditors' claims represents an interference with private property under Art. 33 of the Constitution, however such an interference is not unallowed if it is: (1) appropriate for reaching a desired objective permitted by the Constitution, (2) necessary in the sense that the objective cannot be reached by any other milder interference with the constitutional right or even without it, (3) proportionate to the mentioned objective. Mandatory write- off is thus the mildest measure of the State for reaching a legitimate objective, i.e. the social security of citizens and general welfare in the State.

The constitutional principle of free enterprise (Art. 74 of the Constitution) ensures business subjects a lot of freedom, and simultaneously imposes on the State the duty to follow ever changing market conditions, and the duty to ensure the balance between freedom of enterprise and social principles. The Constitution imposes on the legislature the duty to mould business policy, and authorizes them to adopt measures in order to ensure the realization of the objectives of this policy.

An arbitration commission is neither a judicial nor an administrative body. The proceedings and decision of the arbitration commission are considered a preliminary to subsequent judicial proceedings.
Password:
Principle of equality.
Right to private property.
Principle of free enterprise.
Principle of a State governed by the rule of law.
Arbitration.
Principle of the separation of powers.
Principle of equality before the law.
Protection of private property.
Right to private property and inheritance.
Principle of the independence of judges.
Courts, organization and jurisdiction.
Courts, judges, the permanence of judicial office.
Firms, the manner and process of debt consolidation.
Republic of Slovenia, guaranty with the debt consolidation of firms.
Concurring opinion and a partially dissenting opinion of a Constitutional Court justice.
Legal basis:
Constitution, Arts. 2, 3, 14, 33, 67, 74, 125, 126, 129
European Convention on the Protection of Human Rights and Fundamental Freedoms (EKČP), Art. 6
Civil Procedure Act (ZPP), Art. 485
Constitutional Court Act (ZUstS), Art. 21
Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Bank of Celje, Inc., Celje, and other banks
Date of application:
08.07.1996
Date of decision:
17.09.1998
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute
Document:
AN01644