Preliminary Remarks

Acceptance of the approach according to which constitutional rights may have a horizontal dimension raises a question of the extent of their influence upon relations between private entities. The essence of this type of relations lies in both the parties being the beneficiaries of constitutional rights; hence, both the parties may invoke these rights demanding respect and protection for them. In the event of a collision of constitutional rights, it is necessary to delineate the scope of the horizontal effect of each of those rights, so that they can be exercised by both the right holders to the greatest extent possible. The idea of the scope of the horizontal effect of constitutional rights under the Polish law is most generally expressed in Art. 31 para. 2 of the Constitution, which imposes upon everyone an obligation to respect the freedoms and rights of others. At the same time, the successive paragraph of this Article grants to the legislator the right to interfere into horizontal relations in order to restrain constitutional rights of one entity in order to protect constitutional rights of another entity. Eventually, it is therefore the legislator, and then the court, that determines the scope of the horizontal effect of constitutional rights. The former will do so in an abstract manner and the latter in a tangible manner, taking into account the merits of the examined case. The purpose of this chapter is to describe the most optimum mechanism that would allow distinguishing, on an abstract and concrete planes, the constitutional rights that remain in a collision in horizontal relations.

The Notion of Collision of Constitutional Rights

Collision of constitutional rights is a phenomenon which is inscribed in the very heart of their existence. Two constitutional rights vested in two different entities driven by the desire to pursue their own, oft en opposing, interests inevitably trigger a collision. The legislator is far from attempting to prevent a collision of constitutional rights; quite the contrary – it attempts to describe and regulate it as one of many circumstances that simply occur in social life.

Collision is defined as a concurrence of something that is incompatible or conflicting with something else, a clash of a moving object with another object, or simply a dispute, conflict or feud.