BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

to obtain a loan if the customer was more than 70 years old. The obvious economic reason (short life expectancy and possible economic loss) was evaluated by the Czech Ombudsman who assessed this practice as discriminatory with the argument that the flat rejection of applications violates dignity of old persons. 29 During the Ombudsman’s investigation the bank abandoned this practice. The final example concerns the case of bank charges. 30 In years 2011 and 2012, tens of thousands of citizens joined initiatives leading to actions against banks 31 to have maintenance charges for loan accounts returned. The initiative was inspired by a German case of 2011 in which the German Federal Court of Justice (‘FCJ’) ruled against the provisions stipulated in the banks’ business terms and conditions which imposed maintenance charges on loan accounts. 32 The German FCJ interpreted the bank charges as a subsidiary term for which no reciprocal consideration was provided by the bank and thus rendered them illegal. In the Czech Republic, the case was finally decided by the Czech Constitutional Court (‘Czech CC’), which means that complainants had to argue, that the case has constitutional dimension. They tried to subordinate consumer protection to the constitutional principle of equality in the material sense, and to restrict the autonomy of will with the principle of equity or fairness. 33 At the very beginning of its reasoning, the Czech CC pointed out that, despite finding ourselves in an alleged human rights era in which the scope of fundamental rights is very broad, it is very important to identify the constitutional dimension of the case. In response to the arguments advanced by the petitioner, the Court noted that consumer protection, albeit an important principle of both national and European law, ‘does not belong to the fundamental rights and freedoms individually guaranteed by the Constitution, […] but rather is an objective of the state policy, set out in the Constitution and subject to specific consumer protection regulation under general law.’ 34 With this reasoning the Court finally dismissed the complaint as unfounded. All of the above-mentioned cases show that two issues on how to prevent the over- constitutionalisation of law may be identified. Firstly, it is the definition of the scope of fundamental rights, and secondly it is the finding of a proper balance between fundamental rights and countervailing principles of private law or public interests. There exist rational arguments that support that the cases should be regulated by private law, where the principle of autonomy plays an important role. According to the principles of private law, neither side of the contract should be forced to act in a certain way or refrain from some conduct. The broad reading of anti-discrimination law poses the problem of negating the very foundations of private law. 29 Available at: https://eso.ochrance.cz/Nalezene/Edit/1332 [accessed 24 November 2017]. 30 In more detail discussed in ONDŘEJEK, P.: A Structural Approach to the Effects of Fundamental Rights on Legal Transactions in Private Law. 13 European Constitutional Law Review , Nr. 2, 2017, pp. 284-305. 31 In the Czech Republic, there is not the possibility to file a class action similar to that according to the U.S. law. 32 Decision of the IXth panel of the German Federal Court of Justice (BGH) of 7 June 2011, ref. IX ZR 388/10. 33 Judgment of the Constitutional Court ref. III. ÚS 3725/13, para. 7 of the reasoning. However, the constitutional dimension of the case was not discussed in great detail. It was not possible to draw inspiration from Germany because the case was not heard before the Federal Constitutional Court. 34 Ibid., para. 42 of the reasoning.

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