Konflikt med državo in gospodarskimi subjekti - kdaj državne intervencije presegajo ustavne omejitve

slovenian

2025

volume 51, issue 6/7

EU Charter of Fundamental Rights   freedom to conduct a business   overriding reasons in the public interest   public interest   reasonableness test   restrictive state measures   tailored proportionality test

Narodna in univerzitetna knjižnica
(Obvezni izvod spletne publikacije)

The article examines the assessment of restrictions on freedom to conduct business. This freedom is guaranteed by Article 74 of the Slovenian Constitution, as well as by Article 16 of the Charter of Fundamental Rights of the European Union. It is also safeguarded by the four fundamental freedoms of the EU internal market and by competition rules. However, this fundamental freedom is not absolute. Where grounds for restriction are identified-grounds which may fall under the concept of public interest, or under EU law, under the notion of overriding reasons relating to the public interest or mandatory requirements- a freedom to conduct business may be restricted, provided that the steps of the justification test are met. The Constitutional Court has developed a tailored proportionality test, which is not entirely identical to the justification test required under EU law. The article clarifies that the latter demands greater judicial engagement. Such a test narrows the legislature’s margin of discretion while, conversely, placing greater demands on judicial review, which should seek to delineate the boundary between the legislature’s broad discretion and less restrained judicial scrutiny.

08.12.2025