Private International Law in the Czech Republic: Tradition, New Experience and Prohibition of Discrimination on Grounds of Nationality

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The paper is devoted to the new Czech Civil Code, thanks to which the Czech private law has experienced its greatest legislative change in the last fifty years representing its ultimate diversion from the socialist law principle. The author discusses briefly the development of Czech private law in general, as well as the recodification process. However, the focus of the paper lies mainly in the presentation of the new Czech Civil Code to the public of Visegrad Group countries. The aim of the presented paper is to provide a complex and unbiased view on the new Czech Civil Code, which in some respects may serve as an inspiration for the drafters of the new Slovak and Polish Civil Code.

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The Lawyer Quarterly

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ANALELE ŞTIINŢIFICE ALE UNIVERSITĂŢII „AL.I.CUZA” IAŞI Tomul LVIII,Ştiinţe Juridice, 2012, Nr. II

Abstract: The Romanian Private International Law has acquired new choice-of-law rules on the effects of marriage by Articles 2589 to 2596 of the Romanian Civil Code 2009 (which will be enforced until July 24, 2010). These rules represent an original adaptation of Articles 48 to 54 of the Belgian Code on Private International Law 2004, of Article 3089 paragraph 2 of the Civil Code of Quebec and of Article 20 paragraph 2 of Law no. 105 of 1992 on the Settlement of the Private International Law Relations. The new Romanian choice-of-law rules were drafted following the answers given to The Green Paper on the Conflict of Laws in Matters Concerning Matrimonial Property Regimes, Including the Questions of Jurisdiction and Mutual Recognition. As a novelty, these choice-of-law rules introduce into Romanian Law the concepts of habitual residence (instead of domicile) and of general effects of the marriage.

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The Lawyer Quarterly

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The rule of law principle is an essential basis of European administrative law as an interpretative concept of the exercise of public powers in the EU and its member states. It is a broad principle encompassing substantial number of sub-principles impacting both the legislator and also the administrative bodies. The later ones must act only within their powers and only for proper purposes. Administrative bodies are subject to control as to whether their acts are in conformity with the applicable laws as the prerequisite for the rule of law proper operation is a system of independent judiciary review. The paper focuses mainly on the principle of legality and proportionality as the key elements of rule of law and their interpretation by the Czech administrative courts. Relevant case law is analysed and compared to the interpretation provided by the Court of Justice of the EU and the European Court of Human Rights. The paper summarizes how the recent developments on the European level .

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Unlike many of its Eastern European neighbors, the Czech Republic originates from a healthy constitutional tradition. Upon the creation of Czechoslovakia and through the modern day, the Czech Republic has had four constitutions, with major amendments to the documents of the Communist era. Three constitutions, from 1920, 1948, and 1960, served as guidelines for the creation of the 1992 constitution. Because the Czech Republic had not foreseen the Velvet Divorce from Slovakia, government officials found themselves in a rush to create a constitution for the new Czech state. The new document responded to the many injustices of the Communist era and adopted most of the precedents set in the 1920 constitution. The Czech Republic’s democratic and constitutional past sets it apart from other Eastern European countries, especially in terms of contemporary political and economic liberty.

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Before the Czech Republic joined the European Union in 2004, its constitution has been amended with objective to guarantee constitutional conformity of the EU accession. The Czech legal system has been opened to external legal provisions and a constitutional mechanism has been established for transfer of competencies to an external entity, all framed by the explicitly formulated constitutional principle of loyalty to the international obligations of the Czech Republic. However, the ‘European amendment’ of the Czech Constitution has left several important issues unanswered, such as the principle of supremacy of the EU law or relations between the Czech Constitutional Court and the Court of Justice of the EU. This article analyses how the Czech Constitutional Court tackled with EU-related constitutional issues that emerged during the first decade of Czech membership in the EU. Focused on four key cases decided by the Czech Constitutional Court (sugar quotas, European Arrest Warrant, .

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