CYIL vol. 12 (2021)

Tomáš Holčapek

CYIL 12 (2021)

2. Administrative Courts From the previous text it is clear that administrative courts had been allocated an important sphere of activity. Given that measures issued by the Ministry of Health under the Public Health Protection Act were “measures of general nature” and thus susceptible to judicial review, administrative courts had to deal with them. The first notable decision in this regard came already in April 2020. The Municipal Court in Prague handed down a judgment quashing four of the Ministry’s measures limiting free movement, retail shops and services. 30 The court did not discuss whether the restrictions were necessary or proportionate. Its decision was mainly based on an ultra vires argument. Given the extraordinary circumstances and scope of the restrictions, any such measures should have been issued by the Cabinet under the Crisis Management Act. According to the court, the declaration of state of emergency caused that the Ministry of Health could no longer act under the Public Health Protection Act; the Crisis Management Act took precedence under the principle lex specialis derogat legi generali . Interestingly, this approach was later held incorrect by the Supreme Administrative Court and the judgment of the Municipal Court was vacated. 31 The Supreme Administrative Court held that the state of emergency did not render application of the Public Health Protection Act impossible, and it remained possible for the Ministry to issue its own restrictions. 32 The case was returned to the Municipal Court for further consideration whether the specific measures complied with the Public Health Protection Act. However, during ten months which elapsed between the two judgments life did not stop. In times of a pandemic, the government could not reasonably wait for resolution of fine legal questions. Therefore, after the Municipal Court’s judgment in April 2020, the Cabinet again started to issue crisis measures under its own authority to cover the main areas of regulation, although the Ministry and local authorities continued to supplement the Cabinet’s measures with additional, more limited or localised restrictions. Unsurprisingly, another line of challenges to restrictions was directed against such decisions of local public health protection authorities. In October 2020, these attacks bore their first fruit when the Municipal Court in Prague quashed a decision issued under the Public Health Protection Act, prohibiting personal presence of university students in classes, thus forcing online teaching. 33 In this case, the judgment was based on lack of sufficient reasoning for such measure. The court did not question the legitimate aim in principle, but held that it was necessary to provide clear and specific reasons for the particular restrictions in order to allow their proper judicial review. 34 A similar outcome was reached in November 2020, when the Ministry of Health’s emergency measure broadening the duty to wear face masks was quashed. 35 The court emphasised that the Ministry did not properly reflect previous decisions which clearly stated the need to provide sufficient reasoning for emergency measures of such profound impact. While it could be accepted that in a novel situation such burden should not be made too heavy, after almost nine months since the start of the epidemic public authorities should have 30 Judgment of the Municipal Court in Prague of 23 April 2020, file no. 14 A 41/2020. 31 Judgment of the Supreme Administrative Court of 26 February 2021, file no. 6 As 114/2020. 32 Ibid., paragraphs 129 to 140. 33 Judgment of the Municipal Court in Prague of 20 October 2020, file no. 5 A 103/2020. 34 Ibid., paragraphs 11 to 13. 35 Judgment of the Municipal Court in Prague of 13 November 2020, file no. 18 A 59/2020.

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