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2020. January 3.

Decision 3/2020 on purchasing electronic cigarette

Decision number: Decision 3/2020 (I. 3.)
Subject of the case:

Posterior norm control aimed at establishing the lack of conformity with the Fundamental Law and annulling Section 11 (1) of the Fdtv. incorporated in Section 65 of the Act CCXXIV of 2015 on the amendment of certain Acts in the field of healthcare and health insurance – entering into force on 20 May 2016 and amending the Act CXXXIV of 2012 on repelling smoking among young people and on the retail trade of tobacco products (Fdtv.) – (restriction of the rules on purchasing tobacco products, purchase of electronic cigarette)

Acting ex officio, the Constitutional Court stated that the omission by the National Assembly had resulted in a situation in conflict with the Fundamental Law, because together with restricting the retail trade of electronic cigarettes and the connected products to the tobacco shops with mandatory concession, it failed to provide appropriate compensation for those affected by the restriction of the right to enterprise, therefore, the Constitutional Court called upon the National Assembly to meet its obligation of legislation. The decision is based on the initiative of MPs for posterior norm control and the constitutional complaint submitted by a company trading with electronic cigarettes and its accessories, who challenged the provision in the Act on repelling smoking among young people and on the retail trade of tobacco products, restricting to tobacco shops the retail trade of certain products, such as electronic cigarette, refill cans and electronic devices imitating smoking. Since 2011, the petitioner company has been specialised on the retail trade of electronic cigarette and its accessories through its webshop and its shops, however, due to the amendment of the law in 2016, it had to terminate its commercial activity related to the relevant products, it had to close its shops and to dismiss two thirds of its employees, and it could not sell the remaining stock of products. Due to the prohibition of online sales, the business activity of the petitioner company has become impossible, and the law-maker failed to provide for compensation, failed to provide for an opportunity to continue its operation by announcing new concessions. According to the petitioner, the regulation violated its right to property and the right to enterprise, and it is also against the prohibition of discrimination. In the context of the right to enterprise, the Constitutional Court pointed out in the decision that the scope of protection of this fundamental right covers both the market entry and the continuation of a commenced activity, although it underlined that the relevant fundamental right does not guarantee that no changes may take place in the legal environment. In enacting a limitation, the legislator is bound to employ the most moderate means suitable for reaching the specified purpose, i.e. the limitation should not exceed the level absolutely necessary for achieving the constitutionally justifiable objective. In the context of the restriction of the right to enterprise, the subject matter of the explicit concern is the manner of its practical realisation: the position of the enterprises engaged in the retail trade of electronic cigarettes already operating at the time of the entry into force of the amendment of the law was made less advantageous due to the fact that the law-maker did not pay any attention to their fundamental right to maintain their business activity, or to the actual damage incurred in the particular case, resulting from the statute under review. Based on the above, for the purpose of eliminating the situation being contrary to the Fundamental Law – also with due regard to the need to proceed by saving the law in force – the Constitutional Court stated that there has been a situation contrary to the Fundamental Law caused by an omission, as the provisions of the Act and of the fundamental Law may be harmonised by way of establishing a legislative omission and by making a call upon the law-maker.