According to the press release published today on the website of the Constitutional Court of the Czech Republic, the plenum of the Constitutional Court partially complied with the ruling issued on 22/2/2021 under file no. stamp Pl. ÚS 106/20 (rapporteur judge Vojtěch Šimíček) proposal of a group of senators a canceled on the date of publication of this award in the Collection of Laws provisions of point I./1. Government Resolution No. 28 of January 2021, 78, on the adoption of a crisis measure, announced under No. 31/2021 Coll. In the rest, the proceedings were stopped because the challenged provisions became invalid during the proceedings before the Constitutional Court (except for exceptions, only the applicable law, which is still part of the legal order, can be reviewed).
A group of 63 senators challenged at the Constitutional Court part of the government's resolution on the adoption of crisis measures, which (with exceptions) prohibits retail sales and the provision of services. An interference with the fundamental right to freely conduct business according to Article 26 of the Charter of Fundamental Rights and Freedoms was objected to, in particular unequal access to entrepreneurs according to the type of goods sold. According to the petitioners, the government did not explain the reasons for this unequal access in the contested resolutions or when they were adopted.
The Constitutional Court had to deal with the fact that the challenged government regulation (as well as most adopted crisis measures) has a relatively short period of effectiveness (in short periods of time new regulations are issued that change or cancel the original crisis measures and replace them with other rules). The Constitutional Court has already stated in the past that if a crisis measure is canceled during the proceedings before the Constitutional Court, but a norm similar in content will be incorporated into a new crisis measure, the proposer can supplement the proposal accordingly. According to the press release of the Constitutional Court, this situation also occurred in this matter, which enabled the Constitutional Court to deal with the proposal substantively.
It was an order effective until February 14, 2. It was not realistic for the decision of the Constitutional Court to become enforceable while it was still in effect. It is therefore at the same time obvious that the effect of the finding will not be the opening of retail stores and services. During the deliberations, the Constitutional Court was aware that it was primarily an interpretation of constitutional limits:
"Although it is therefore clear that as a result of this finding, there will not be an immediate "opening of retail sales", the Constitutional Court nevertheless considers the conclusions contained in the justification of this finding to be very fundamental, as they represent a kind of "memento" for any further restrictive measures of the government." (point 98 of the finding)
The Constitutional Court emphasized that it does not question the existence of a legitimate goal pursued by the challenged measure. According to the government, this goal is to prevent or at least mitigate the spread of the disease COVID-19, the related collapse of the healthcare system and extensive damage to the health and lives of residents.
However, according to the Constitutional Court, the key question is whether the different treatment of individual groups of entrepreneurs is sufficiently justifiable and reasonable, which the contested measure introduces. Specifically, whether there are sufficiently strong reasons for this different treatment, including whether the objective could not be achieved using less invasive means interfering with the basic rights of the subjects concerned. However, the government does not comment on this fundamental question of measuring the introduced complete ban on retail sales and provision of services while simultaneously establishing exemptions, and it is not even clear whether it even considered the use of less invasive restrictive measures.
The Constitutional Court further states in the press release that it is fully aware that the government was faced with problems in connection with the pandemic crisis, the solution of which is extremely difficult through legal regulation. There is a lack of experience in dealing with a crisis of a similar scale, the epidemic situation is very dynamic and even among experts there is no complete agreement on how to evaluate it and how to best regulate it. However, it is also necessary to emphasize that the regulation of the rights and obligations of individuals, i.e. the decision on which group of the population will retain their rights and which, on the contrary, will bear the burdens associated with their restriction, must not be only a manifestation of political will in a modern constitutional state. According to the Constitutional Court, it is therefore necessary for the government to be able to rationally justify each such decision and for the reasons for these measures to be visible from the outside. Otherwise, they lack the appropriate legitimacy.
The flat-rate ban on all retail sales and provision of services in establishments with the simultaneous establishment of a large number of exceptions, resembling, according to the Constitutional Court, as much as a "telephone directory" (a total of 36) lacks the necessary information (justification), according to the Constitutional Court, on the basis of which the government arrived at this solution. Even in this complex situation, the government cannot do "anything" and rely only on instinct or political compromise. The government's decision must be based on expert recommendations based on the maximum amount of knowledge available about the disease in question and its spread. The Constitutional Court is referred to as a so-called negative legislator, i.e. it cannot give the government specific instructions on what the government should do better so that its regulations stand up from the point of view of constitutionality. Therefore, the finding only establishes the guardrails from which the government should proceed in the future.
The Constitutional Court also criticized the way in which the prohibitions and restrictions were established. In fact, a legal regulation cannot ban "everything" in general and completely without justification, and then, in the form of exceptions, certain areas affected by the ban can be "allowed back" (again without any justification). With regard to the time that has passed since the beginning of the epidemic, the government must place greater emphasis on proper justification, even with the knowledge that the same demands cannot be placed on legal regulations issued during a declared state of emergency as in normal situations. At the same time, however, the opposite extreme cannot be accepted either: a situation where the government, even in the proceedings before the Constitutional Court, when a specific crisis measure is already being reviewed, is unable or unwilling to state any relevant and specific reasons why the given ban is necessary, why it is not possible to do with less robust interference with fundamental rights and what is the rationality of the mentioned exceptions. Although it is clear from the nature of the matter that some of these exceptions are really necessary (e.g. the sale of food, medicine or fuel), a number of other exceptions require a convincing explanation, from which it would be clear that this is not an inadmissible act on the part of the government arbitrarily (e.g. florists or arms and ammunition stores mentioned by the petitioner). At the same time, this justification is not only a necessary basis for the review carried out by the Constitutional Court, but also for social acceptance and thus also the legitimacy of crisis measures.
This update is partially taken from the press release of the Constitutional Court, the full text of which can be found here: https://www.usoud.cz/aktualne/ustavni-soud-zrusil-cast-usneseni-vlady-zakazujici-maloobchodni-prodej-a-poskytovani-sluzeb
Judges Jaroslav Fenyk, Josef Fiala and Vladimír Sládeček expressed a different opinion on the award.
The finding of the Constitutional Court no. stamp Pl. ÚS 106/20 including different opinions in PDF, announced on February 22, 2021 at 9:00 a.m., can also be found here: https://www.usoud.cz/aktualne/ustavni-soud-zrusil-cast-usneseni-vlady-zakazujici-maloobchodni-prodej-a-poskytovani-sluzeb
What the public will be most interested in in connection with this finding is the possibility of the businessmen affected by the annulled order to turn to the court with a claim for damages. Logically, the Constitutional Court could not comment on this issue, and considerations on this topic also go beyond the scope of this article (however, it can be assumed that legal practice will have to deal with questions on this topic in the near future).
As for the existing (practically identical) government regulation, it should be emphasized that the so-called presumption of correctness of legal regulations applies, i.e. it is not possible to conclude that there is no need to comply with the existing prohibitions just by referring to the fact that the same reasons apply to them (apparently) unconstitutionality, as with the just repealed part of the government regulation.
