Publications & articles
Would Miriam Lexmann also suffer because of the gap in law?
The article in the case of Miriam Lexmann pointed out the lack of the Slovak legal system, which does not allow individuals to challenge in the Constitutional Court the incompatibility of national Slovak legislation with the Constitution, resp. international treaties (this also applies in cases where the application of national law violates the fundamental rights or freedoms of the individual). In the 2019 elections to the European Parliament, Miriam Lexmann won the mandate of a Member of the European Parliament, with which she had to wait until the end of Brexit. This happened despite the fact that its political party (Christian Democratic Movement) received more votes in the elections than the political party Sloboda s Solidarita. It won the same number of seats as the Christian Democratic Movement, but without one of its deputies having such a conditional term. It was an electoral paradox caused by the application of an incorrect mathematical formula for determining mandates, which was incorporated into the so-called Brexit amendment to electoral legislation. In this situation, the Christian Democratic Movement could only challenge the Constitutional Court’s procedure in determining the election result (which was bound by the applicable law), not the unconstitutionality of the Brexit amendment itself.
(published on www.epravo.sk on 16.7.2019)
The end of the “battle” for Slovak metal restorers?
The article focused on the poor practice of public contracting institutions who, in the context of awarding public works contracts (for example, in the reconstruction of cultural monuments), conditioned the performance of necessary restoration work on metal elements only by restorers registered with the Chamber of Restorers. Not only did this exclude the participation of restorers from European Union countries, but they also explicitly restricted competition due to the minimal number of restorers with such specialization. In the article, we then pointed to the decision of the Public Procurement Office, which evaluated such a practice as illegal, which was in favor of competition when awarding public contracts for the construction of reconstruction works (often financed from EU resources).
(published in Public Procurement – Law and Practice 3/2015)
Analysis of the effects of the Court’s ruling in Haas on current case law, together with an outline of possible solutions de lege ferenda
Controversy persists in Slovak legal and insurance practice. Is it covered by compulsory contractual insurance for damage caused by operation of a motor vehicle also the right of relatives of the victims of traffic accidents to compensate for non-pecuniary damage in money? With regard to the judgment of the Court of Justice of the EU in case C-22/12 – Katarína Haasová v Rastislav Petrík and Blanka Holingová, of 24 October 2013, we discussed in its article its possible effects on legal practice as well as proposals for changes in legislation.
(published in Biatec No. 10/2015)
Will politicians pay for a mistake?
The article deals with the possible legal consequences associated with the provision of the Health Insurance Companies Act, which made it impossible for health insurance companies to decide autonomously on the use of profits reported from public health insurance. It points to domestic constitutional law as well as existing international standards (including intergovernmental agreements on investment promotion and protection). The purpose of the article was not to resolve the legal issues raised; rather to point out the risks associated with this legislation. In conclusion, we asked whether the politicians responsible for such legislation accept responsibility for any damage that may occur to the state.
(published in the SME daily, October 2007)
Contribution to the publication European Restructuring and Insolvency Guide 2005/2006
The contribution is written in the form of answers to questions concerning bankruptcy and composition legislation (Law No. 328/1991 Coll.). The first part presents general information about the purpose of bankruptcy proceedings (i.e. whether the proceeding preferably seeks to rescue and recover the debtor or to sell and liquidate the debtor), about potential prioritisation of creditors or debtors under existing legislation, and about the most frequently applied type of the proceeding, etc.. The contribution follows with the authors’ answers to questions concerning legal framework and effectiveness of court proceedings in the area of bankruptcy law, advantages and disadvantages of launching a formal bankruptcy procedure, practical options for extrajudicial informal restructuring, effects of formal and informal proceedings on the management of a company, options of gaining capital, ranking of claims, cancellation of preceding transactions, and creditor protection. The contribution contains also accounting information which was prepared by the authors Todd Bradshaw and Zuzana Valérová from PricewaterhouseCoopers Tax, k.s.
Is seven per cent in compliance with the Constitution?
The article gives a complex assessment of the proposal of Robert Fico to increase the quorum required for the election of a political party to the National Council of the Slovak Republic from five to seven per cent. In the analysis, the authors refer to the legislation governing this matter in European countries, the judicature of constitutional courts in the Czech and the Slovak Republics, and the stability condition of parliamentarianism in Slovakia during the period from 1994 to 2002. Having evaluated the constitutional and the factual aspects, the authors arrive at the conclusion that there is no urgent societal need to increase the threshold required for the entry of a political party in the Slovak Parliament to 7% and that, therefore, such change to the election rules would, in the authors’ opinion, result in a breach of art. 30(3) of the Constitution of the Slovak Republic and art. 21(3) of the Charter of Fundamental Rights and Freedoms guaranteeing the principle of equality of the right to vote.
(published in the daily SME, October 2002)
Telephone tapping and recording and related questions
The article presents a thorough analysis of the legislation which allows tapping and recording of telephone conversations in criminal proceedings as well as for intelligence purposes, pointing out its shortcomings. It also discusses the judicial powers in this area. The article follows with a look into the options of legal protection of persons affected by telephone tapping and recording by means of instruments that are available under civil, criminal and constitutional law. In its conclusion, the authors emphasise the need to make sure that the relevant legislation allows these practices to be only applied when absolutely necessary and on the basis of strictly defined grounds that must be specified so as to prevent the risk of their extensive interpretation.
(published in the magazine Justičná revue No. 5/2002)
Judicial reform from an attorney’s perspective
The lecture on the reform of the judicial system starts with a historical digest of the development of the judicial system with main focus on the last century. Further, it summarises the intentions of the Government of the Slovak Republic in this field which also reflected in The Manifesto of the Government of the Slovak Republic in 1998. The authors highlight the legislative changes that lead to an increase in the quality of the judicial performance, specifically referring to the measures aimed at expediting and simplifying judicial proceedings, reinforcing the independence and objectivity of judges, as well as at extending statutory guarantees of the fundamental right of the parties to a proceeding to have the case judged by a judge assigned by law. On the other hand, they also present critical comments concerning certain lack of concept in adopting the reform laws and the unfavourable personnel situation at some courts.
(published in the Bulletin Judicial Reform Forum, 2002)
Acceptability of judicial intervention in the position of joint stock companies and their shareholders and related questions
The authors present a detailed enumeration of the areas of possible courts’ interventions in the position of joint stock companies. Difference is made between interventions in internal affairs of joint stock companies and interventions in their external relations. As regards the judicial interventions in the internal affairs of joint stock companies, the authors distinguish between the courts’ jurisdiction given at the establishment and incorporation of such companies, the general judicial authority in respect of all types of commercial companies as well as the powers existing exclusively in relation to joint stock companies. They also highlight the difference between the powers that are available to courts on the basis of their official authority (ex offo) and the powers that can only be exercised by the courts on the basis of a motion filed by an applicant who has a cause of action. The final part of the article discusses the legal effects of a general meeting the agenda of which contained points that had been prohibited to be resolved by the general meeting under a court’s interlocutory order which was later cancelled by a superior court due to conflict with law.
(published in the annex to the collection of articles from “XI. Karlove Vary Juridical Days”)