December 18, 2024
On December 18, 2024, the Second Senate of the Constitutional Court of Ukraine at its plenary session delivered the Decision in the case upon the constitutional complaint of Kyrylo Burma regarding the compliance of the provisions of Article 51 of the Civil Code of Ukraine (hereinafter, the “Code”) with the Constitution of Ukraine.
Under Article 51 of the Code, “the regulations applicable to the entrepreneurial activities of individuals shall be those regulating the entrepreneurial activities of legal entities, unless otherwise provided by law or arising from the nature of the relations.”
The subject of the constitutional complaint argued that the impugned provisions of the Code violated the constitutional principle of non-discrimination (Article 24 of the Constitution of Ukraine) and made it impossible to apply the principle of retroactive effect of laws and other regulations to an individual entrepreneur in terms of mitigating a person's liability (Article 58.1 of the Constitution of Ukraine).
The Court concluded that the provisions of Article 51 of the Code comply with the Constitution of Ukraine (are constitutional), however emphasised that the basis of the legal status of an individual is the human rights and freedoms guaranteed by the Constitution of Ukraine. If an individual exercises the constitutional right to entrepreneurial activity, his or her legal status additionally acquires the powers arising from the status of an entrepreneur. Therefore, the legal status of an entrepreneur does not limit the scope of human rights and freedoms of individual guaranteed by the Constitution of Ukraine.
The Constitutional Court of Ukraine also stressed that the observance of constitutional guarantees of free development of entrepreneurship is important not only for the effective development of a market economy, self-employment and filling the state budget, but also for strengthening such fundamental values of the constitutional order of Ukraine as democracy and the rule of law.
On the basis of the above, the Constitutional Court of Ukraine concluded that the interpretation and application of the provisions of Article 51 of the Code should be substantially consistent with the principles and norms of the Constitution of Ukraine (constitutionally conforming interpretation) so that the level of constitutional guarantees of human rights and freedoms in the context of exercising the right to entrepreneurial activity not prohibited by law (Article 42.1 of the Constitution of Ukraine) is not reduced.
The Judge-rapporteur in this case is Vasyl Lemak, a Judge of the Constitutional Court of Ukraine.
