De lege ferenda considerations on liability for legislative (in)action in the Czech legal environment

30. 01. 2026

1. Introduction
In the previous installment of this article published in Právní rozhledy, I drew attention to the main aspects of legislative liability connected with the legislative action or inaction of public authorities under the current approach of the highest courts of the Czech Republic, as well as to the absence of explicit legal regulation of the liability of public authorities for pecuniary damage arising from legislative action or inaction in the Czech legal environment. What follows now are reflections on the possible regulation of this legal issue de lege ferenda.

It bears repeating that there is currently no explicit statutory basis for the liability of public authorities for damage caused by their legislative action or inaction, which makes the area of compensation for damage resulting from legislative action or inaction problematic not only from the perspective of legal theory, but above all in terms of the practical enforcement of claims by injured parties.

This second part of the article aims to contribute to the professional discussion on the possible incorporation into the Czech legal order of legislative liability of public authorities for legislative action or inaction, as defined in the previous article. It is based on an analysis of existing Czech case law, in particular the jurisprudence of the Constitutional Court and the Supreme Court, and compares it with the approaches adopted in other European countries.

The research questions addressed in this part of the article are therefore whether the approach of the Czech legal order to legislative liability deviates from that of other European countries, and what future development may be predicted in the area of legislative liability within the Czech legal order—that is, what regulation de lege ferenda may be envisaged.

For the above de lege ferenda reflections, the author also draws inspiration from the approaches of foreign legal systems, such as Germany, Austria, and France.

2. Regulation de lege ferenda
2.1. General remarks
The most problematic aspect of liability arising from legislative action or inaction in the Czech legal order is the absence of statutory regulation establishing such liability. According to the current decision-making practice of the Supreme Court and, above all, the Constitutional Court, legislative action or inaction—whether on the part of the legislative or executive branch—cannot be subsumed under the concept of maladministration or an incorrect official procedure within the meaning of the State Liability Act.

However, the Constitutional Court has purposefully subsumed the absence of legal regulation governing state liability for legislative action or inaction in the implementation of secondary EU law under the scope of the State Liability Act. It stated that: “In this situation, where the Czech Republic is a democratic state governed by the rule of law, respecting obligations arising from international law (cf. Article 1(2) of the Constitution of the Czech Republic), it cannot resign itself to fulfilling obligations arising from international law (i.e. also European law) merely because, at the national level, there is no explicit legal regulation allowing persons to invoke against the Czech Republic liability for damage caused by breaches of obligations to which it itself openly adheres. […] It is the duty of the ordinary courts, and in particular of the Supreme Court, to interpret the State Liability Act and to construct its relationship to the system of liability under European Union law. In doing so, however, they may not act arbitrarily, and arbitrariness will also consist in the absence of a proper explanation of how and why the chosen solution corresponds to the purpose of the EU legal norm (see, in this regard, point 22 of judgment No. II. ÚS 1009/08).”

This can hardly be reproached to the Constitutional Court, which was confronted with the problem of determining under which legal regulation the case law of the Court of Justice of the European Union—binding on the Czech Republic—was to be implemented. At the same time, this approach is fully consistent with the case law of the Court of Justice of the European Union, which states that, in the absence of Community rules, it is for the Member States to determine the relevant procedural rules for claims concerning state liability.

Nevertheless, this leads de iure to a different approach to liability for legislative action or inaction in cases of failure to implement a secondary EU legal act into the domestic legal order, as opposed to legislative action or inaction in all other cases.

Pospíšil is also critical of this approach of the highest courts. He wrote: “We are of the opinion that these conclusions do not correspond to contemporary European trends in the tort liability of the state; above all, however, they create a dual concept of liability with regard to liability for breaches of European law. […] In the field of Community, or European Union, law, the state naturally bears liability for the actions of all its authorities regardless of the nature of the powers they exercise, whether normative or individually decision-making […]. This schizophrenia, confirmed by the case law of the Constitutional Court, means that in the case of normative activity the state will be liable only in the event of incorrect implementation, or failure to implement, European law, but not in other cases of legislative inactivity. The question therefore arises whether the values protected by European law deserve stronger protection, including through state liability for damage, than constitutional values. From the perspective of the infringement of protected values, as well as the occurrence of damage to individuals, it is not decisive whether this took place in the sphere of European law or domestic law. We therefore consider this situation to be unsustainable in the long term and to require either a change in the approach of the Constitutional Court or an amendment to Act No. 82/1998 Coll. allowing liability also in the exercise of normative powers of state authorities.”

However, the explanatory memorandum to Act No. 160/2006 Coll., which amended the State Liability Act, makes it clear that the Government was aware of a certain legislative deficiency in this area. The explanatory memorandum specifically states that, although the matter concerned legislation of fundamental importance, since it constitutes (or should constitute) state liability for damage in indispensable areas of the exercise of public power, legal regulation governing damage arising from legislative action or inaction was knowingly not incorporated into Act No. 160/2006 Coll. by that amendment. This was justified by reference to an ongoing analysis of the scope of such liability, on the grounds that the issue was highly ambiguous.

Although, in light of the extensive case law of the Court of Justice of the European Union in the field of legislative liability, it may appear natural that EU Member States would regulate liability arising from legislative action or inaction within their domestic legal orders, this is far from universally the case, and the Czech Republic is by no means an exceptional outlier in this regard.

Likewise, apart from the exceptions mentioned above, the judiciary in the Czech Republic is by no means favorably inclined toward such liability. In addition to the arguments generally voiced against legislative liability arising from the action or inaction of legislative bodies (cf. the first part of the article in the previous issue of Právní rozhledy), further arguments also appear in the reasoning of decisions of the highest courts. In particular, judges object that it is unclear which authority should be sued under Section 6 of the State Liability Act. They further state that it is unknown whether the claim in question is public-law or private-law in nature.

In this regard, the Supreme Court expressed itself in its resolution of 21 April 2009, Case No. 25 Cdo 1893/2008, in which it held that the provisions of Sections 420 et seq. of Act No. 40/1964 Coll. (the former Civil Code) cannot be used for the purpose of claiming damages against the state, because claims arising to individuals in the exercise of public authority must be assessed under the legislation governing state liability for damage caused by unlawful decisions or maladministration. “The fact that the state is at the same time a sovereign organization endowed with significant powers, in the exercise of which it may interfere very substantially with the personal sphere of various subjects, is relevant in the sphere of public law and does not extend into the sphere of private law. The most important feature of state authorities, insofar as they do not act as participants in civil-law relations with rights and obligations, is their authority. This constitutes the ‘actual sovereign content’ of their activity, characterized by the range of means entrusted to the competence of the particular state authority, typically including the issuance of legal acts of both normative and individual nature. It is thus clear that, in the legislative process, the state occupies a position of authority, and its possible liability for the conduct of the legislative body in proposing and adopting legal regulations is public-law in nature.”

A substantial group of authors, however, disagrees with this opinion and considers the liability relationship in question to be one of private law.

Pospíšil, on the other hand, like the Supreme Court, concludes that it is a public-law relationship. Specifically, he writes that: “The separate inclusion of the institution of liability in the Charter indicates that this is more than a ‘mere’ private-law claim of an individual against the state, and that, in the absence of a public-law conception of tort liability in the Czech Republic, the legislature merely resorts to existing private-law institutions. It cannot be otherwise, because the very inclusion of this claim in the Charter, as an instrument of public (constitutional) law, makes it a public subjective right.”

In its judgment of 23 February 2010, Case No. II. ÚS 1612/09, the Constitutional Court considered the liability relationship between the state and the injured party to be one of public law. This view of the Constitutional Court may, however, be disputed. In my opinion, where there exists an isolated right of the injured party to claim damages against the state, the state no longer occupies a sovereign position. It does not exercise imperium. Nor is this altered by the fact that the damage arose in connection with the authoritative exercise or non-exercise of public power. “This is a special case of liability for damage arising from a public-law relationship—namely, the exercise of public power. The corresponding liability relationship, however, is already one of private law.” I therefore incline toward the view that the claim in question is private-law in nature.

The Special Senate established under Act No. 131/2002 Coll. has not yet expressed itself on this issue.

It is therefore evident from the foregoing that the highest courts have thus far strictly refused to infer from the current Czech legal order any liability of legislative authorities for their legislative action or inaction. In this context, they present various arguments as to why legislative liability cannot be inferred in the Czech legal order, primarily with reference to the absence of legal regulation in this area.

2.2. De lege ferenda reflections
I shall now attempt to outline for the reader the possible future development of this legal field and, in conclusion, try to identify the solution which, in my opinion, would be the most appropriate. I shall first attempt to outline possible approaches without interfering with the current legal order of the Czech Republic, which does not regulate the matter in question. I shall then follow this with a discussion of possible changes to the legal order which, in light of the findings made thus far, appear appropriate, though not indispensable.

The first de lege ferenda approach, without any present amendment to the Czech legal order, would be to maintain the position of the highest courts concerning the absence of legislative liability. I consider this position of the highest courts to be an extreme solution, though one that is unsustainable in the long term. This is primarily because legislative liability for legislative action or inaction has long been inferred in the case of breaches of Community law, and legislative liability for legislative action or inaction is increasingly being inferred in individual legal systems even for the most serious forms of legislative failure outside the context of Community law. The restrained approach of the Czech legal order to legislative liability is not unique on a European scale. Slowly, however, regulations are beginning to appear across European legal systems which establish legislative liability at least for specific cases, and a gradual development in favor of legislative liability can be observed.

For example, in Germany, legislative liability for statutory legislation is excluded on the grounds that Parliament owes no official duties to individuals in the legislative sphere. In this argument one may observe significant parallels with the argument of political responsibility invoked by the Constitutional Court in its opinion. At the same time, however, legislative liability is not excluded in the case of subordinate legislation. Austria adopts a similar approach to Germany, where subordinate legislation is regarded as an act of application of law for which the state is liable. In this manner, legislative liability is also inferred in respect of subordinate legislation. In relation to statutory and constitutional legislation, the approach is identical to that of the German legal order. In France, legislative liability is inferred only in connection with the fundamental right to equal treatment and the prohibition of discrimination. In other respects, legislative liability is excluded even with respect to subordinate legislation. In the United Kingdom, legislative liability is connected with authorities issuing subordinate legislation where they abuse their powers. Parliament is expressly excluded from legislative liability.

For these reasons, I consider the current approach of the highest courts to absolute non-liability for legislative action or inaction to be unsustainable, and it is only a matter of time before either the highest courts alter their legal opinions and infer at least a partial degree of legislative liability for legislative action or inaction from the current legal framework, or Parliament adopts explicit constitutional or statutory regulation.

It follows from the above that European countries tend gradually to associate legislative liability at least with implementing or subordinate legislation. Although the Supreme Court probably does not realize this, the reason likely lies in the fact that, in the case of normative activity of executive authorities, political responsibility is substantially weakened, whereas political responsibility is often the foremost argument used against the introduction of legislative liability.

A second possible de lege ferenda approach, again without amending the current Czech legal order, is to attempt to infer legislative liability from the State Liability Act.

Vojtek points out that where state liability is regulated by a special statute—namely, the State Liability Act—it is difficult to imagine legal reasoning that would entirely ignore that statute and fail to attempt to formulate its relevance to the problem at hand.

From this I infer that Vojtek is of the view that it is at least desirable to consider the applicability of the State Liability Act for the possible future inference of legislative liability.

The State Liability Act links state liability either to an unlawful decision under Section 7 or, as frequently mentioned in this work, to maladministration or an incorrect official procedure under Section 13.

The application of the concept of an unlawful decision under Section 7 involves two preconditions. First, it must be a decision, i.e. an act of application of law whereby a state authority applies the general rule of a legal norm to a particular case and thereby decides on the rights and obligations of individual subjects. Secondly, it must be an unlawful decision, and such unlawfulness may not be independently assessed by the court deciding on damages; rather, the decision must first have been altered or annulled on grounds of unlawfulness. It is thus apparent that any attempt to infer legislative liability by reference to unlawful decisions would be quite inapt. Legislative activity is intended to regulate legal relations among an indeterminate number of addressees, which stands in direct contrast to a decision that regulates the legal position of specifically determined subjects. A decision involves the application of a legal norm in connection with regulating the rights and obligations of a specific subject, which is incompatible with the nature of normative activity. Existing case law has not had to confront claims for damages arising from legislative action or inaction based on the argument of an unlawful decision under Section 7 of the Act, and for that reason I conclude that this question is not disputed in practice.

A different situation arises where a claim for damages is asserted as one based on maladministration or an incorrect official procedure under Section 13, which is the situation currently encountered within the Czech legal order. As follows from the above, the highest courts do not regard legislative action or inaction as maladministration. It is therefore appropriate to consider whether there is room for an extensive interpretation of this concept and for viewing legislative action or inaction as an incorrect official procedure. In this respect, Vojtek inclined toward such an approach in connection with legislative liability for legislative action or inaction.

Although this approach would undoubtedly solve many problems in the area concerned, I do not consider it an appropriate solution either. From the current applicability of the State Liability Act it follows that liability for maladministration arises, if the individual conditions are met, in cases where damages cannot be claimed on the basis of an unlawful decision that addresses the merits of the matter, and is therefore of a subsidiary nature. Maladministration can thus be invoked in cases where the official procedure leading to the issuance of an authoritative act, whether a decision or a normative regulation, was not carried out in accordance with the legal framework governing that procedure. It must, however, be added that maladministration does not automatically imply the defectiveness of the content of the authoritative act. It follows that the applicability of maladministration comes into consideration only where the process preceding the issuance of the authoritative act itself was defective, whereas the content of the authoritative act will be relevant only if it was directly affected by the defective procedure. In all other cases, the matter will always concern an unlawful decision under Section 7. The opposite conclusion would mean inferring legislative liability only in cases where the process of adopting normative regulations was defective, and not where the content of the normative regulations themselves was defective, whereas it is precisely the latter that is the subject of legislative liability. This view is reflected in the judgment of the Constitutional Court of 22 September 1998, Case No. I. ÚS 245/98, which inferred state liability for damage arising in the publication of an act of Parliament on the basis of maladministration under Section 13 of the State Liability Act, where the damage was caused by shortcomings in the process of publication of the act, and not by the content of the act itself.

As I indicated already in the first part of this article in the previous issue of Právní rozhledy, normative action or inaction capable of causing damage is such action or inaction that violates rules relating to the legislative process which serve to regulate the content of legal regulations, and not rules regulating the process of their adoption. It is always necessary to ascertain the content of the hypothetical norm, from which the defectiveness of the current legal framework may possibly be inferred, rather than the defectiveness of the process of adopting normative regulations. For these reasons, I am of the opinion that legislative liability cannot be inferred from the current wording of the State Liability Act, because maladministration under Section 13 does not extend to situations of legislative action or inaction.

It must not, however, be overlooked that the current jurisprudence of the highest courts already recognizes legislative liability inferred directly from norms of constitutional law, which may be regarded as a further possible de lege ferenda approach inferred from the present Czech legal order.

This occurred in the Plenary Opinion of 28 April 2009, Case No. Pl. ÚS-st. 27/09 (hereinafter the “Opinion”), where the Constitutional Court found the state legislatively liable for the unconstitutional inaction of Parliament, which, by an unconstitutional restriction of the right under Article 11(4) of the Charter, caused damage. The Constitutional Court awarded the complainant “compensation for the unconstitutional restriction of the right to property,” which, in my view, is nothing other than compensation for pecuniary damage caused by legislative action or inaction, with the Constitutional Court evidently seeking, under the pressure of the precedential consequences, to avoid referring to such “compensation” as “damages caused by legislative action or inaction.”

Personally, I consider damages regulated at the statutory level in the Czech legal order to constitute an implementation of Article 11 of the Charter, which protects an individual’s property and which is interfered with by the occurrence of damage.

I am of the opinion that where a legislative body acts contrary to Article 2(3) of the Constitution and Article 2(2) of the Charter by failing to respect the rules relating to the legislative process, and thereby causes damage to individuals, a claim for legislative action or inaction may, in the absence of explicit statutory regulation, be inferred directly from Article 11 of the Charter.

Related to this is another possible de lege ferenda approach arising from the current Czech legal order, namely inferring legislative liability on the basis of Article 36(3) of the Charter. This gives rise to the question whether Article 36(3) of the Charter may be regarded as a directly applicable legal norm upon which individuals may rely in the absence of implementing legislation, or whether such implementing legislation is indispensable with reference to Article 36(4) of the Charter. I consider the view that the fundamental right enshrined in Article 36(3) of the Charter requires legislative implementation to be outdated, and I regard the provision in question as a directly applicable norm which expressly permits statutory regulation and the associated limitation of that fundamental right under paragraph 4 of the same article of the Charter.

The Constitutional Court also inclined toward this view in its Opinion, although in my opinion it was not itself fully aware of this. By inferring state liability for damage on the basis of Article 11 of the Charter, it thereby denied the privileged position of the State Liability Act as the sole legal regulation under which damages may be claimed from the state.

The Constitutional Court stated this explicitly in its judgment of 14 December 2011, Case No. Pl. ÚS 35/09, where it held that: “The legal basis of an individual’s claim for compensation for damage in the event of criminal prosecution ending in acquittal must be sought not only in Article 36(3) of the Charter, but, more generally, above all in Article 1(1) of the Constitution of the Czech Republic, that is, in the principles of a substantive rule-of-law state,” thereby denying the exclusivity of the State Liability Act for the enforcement of claims for damages against the state, which thus does not enjoy such a supreme position. Pospíšil takes the same view.

For completeness, however, it is appropriate to add that there are still views according to which Article 36(3) of the Charter is not a directly applicable legal norm. This view is presented by Kolba and Šuláková in their scholarly publication Nemajetková újma způsobená protiprávním výkonem veřejné moci (Non-Pecuniary Damage Caused by Unlawful Exercise of Public Authority). In that publication, they consider it necessary either to amend the wording of Article 36(3) and (4) of the Charter, or to amend the State Liability Act, or to adopt a new statute. In their view, such legislative action is a precondition for inferring legislative liability in the Czech legal order.

In this connection, one may look to the Austrian legal order and refer to Article 137 of the Federal Constitutional Law as a directly applicable constitutional norm guaranteeing the possibility of claiming damages due to legislative defects resulting in conflict with Community law. The case law of the highest Austrian courts regards that constitutional provision as a directly applicable legal norm.

The difficulty, however, may lie in the very wording of Article 36(3) of the Charter, which links compensation for damage to an unlawful decision of a court, another state authority, or an authority of public administration, or to maladministration, thereby creating a situation analogous to that addressed in connection with the State Liability Act; and I take the view that there is no reason to interpret the concepts of maladministration and unlawful decision differently.

2.3. Partial conclusion on the de lege ferenda reflections
The discussion of the possible inference of legislative liability from the current Czech legal order may therefore be concluded by stating that, under the current wording of the State Liability Act, legislative liability cannot be inferred, not even on the basis of maladministration under Section 13 of that Act, whose regulation is inapt for cases of legislative action or inaction.

This does not, however, prevent legislative liability from being inferred directly on the basis of constitutional norms, since the above-mentioned Act does not enjoy a monopoly over the regulation of compensation for damage caused by the state or by another holder of public power. It will, however, certainly be necessary for the highest courts to adopt in their case law a view similar to my own and to infer legislative liability solely on the basis of the fundamental rights of individuals guaranteed by the Charter, even in the absence of implementing legislation.

It is, however, evident that, at present, the highest courts, in light of the absence of explicit legal regulation, are not compelled to infer legislative liability in this manner. Given the reasoning used to justify this approach, I consider the view of the highest courts to be more political than legal, in that they fear the consequences that legislative liability would entail.

This brings me to what is probably the cleaner way of introducing legislative liability de lege ferenda, namely through its incorporation into the Czech legal order.

From the foregoing, there emerges the possibility of explicitly incorporating liability for legislative action or inaction into the Czech legal order through legal regulations, which would oblige the highest courts to reconsider their current position denying legislative liability. In this regard, I may fully refer to the proposed solutions of Kolba and Šuláková, who advocate an amendment of the wording of Article 36(3) and (4) of the Charter.

At the same time, I do not reject the possibility of regulating legislative liability at the constitutional level, as is the case in Austria, whose Constitution in Article 23 provides for such liability in relation to subordinate legislative activity. Another possible solution is undoubtedly the adoption of a statute specifically regulating legislative liability, or the amendment of the current State Liability Act.

All of this would, of course, have to be in line with the general preconditions set out in the first part of this article in the previous issue of Právní rozhledy.

3. Conclusion to both articles
The purpose of both articles was to present to the reader the current legal state of the regulation of legislative liability in the Czech Republic, as well as to outline the possible future development of this legal field. From the conclusions reached in the articles, it is apparent that currently no provision of Czech law works with the concept of legislative liability.

In the articles, however, I have argued that the right to compensation for damage may be inferred directly from Article 11 of the Charter, which guarantees the right to property, regardless of Article 36(3) of the Charter (and its direct applicability) and the State Liability Act following therefrom, since I regard legal regulations governing damages as implementing instruments of this fundamental right under Article 11 of the Charter.

If I am to assess the present position of legislative liability in the Czech legal order, I am of the view that the problem does not lie in the absence of explicit constitutional or statutory regulation; rather, I see the main deficiency in the decisions of the highest courts, and I consider the above-mentioned decisions in the field of legislative liability to be more political than legal.

I am aware that legislative liability, if regulated inappropriately, may impose a considerable burden on the public budget. Nevertheless, I take the view that the preconditions for legislative liability set out in the first article are capable of ensuring that legislative liability is applied only in the most serious cases, where refusal by the state or other holders of public power to provide compensation would cause substantial injustice to injured parties contrary to the requirements of justice. In this respect, it would be desirable to regulate this matter at the statutory level, either through explicit incorporation into the State Liability Act or in a separate statute.

This article is written according to the legal framework as of 1 January 2025.

Citace:

¹ Např. rozsudek Nejvyššího soudu ze dne 26.9.2007, sp. zn 25 Cdo 2064/2005, rozsudek Nejvyššího soudu ze dne 22.4.2008, sp. zn 25 Cdo 215/2006 nebo rozsudek Nejvyššího soudu ze dne 13.7.2011, sp. zn 25 Cdo 1210/2009.

² Nález Ústavního soudu ze dne 8.7.2010, sp. zn. Pl. ÚS 36/08, Nález Ústavního soudu ze dne 9.2.2011, sp. zn. IV. ÚS 1521/10.

³ Nález Ústavního soudu ze dne 9.2.2011, sp. zn IV. ÚS 1521/10.

⁴ Rozsudek Soudního dvora EU ze dne 24. března 2009, ve věci C-445/06, Danske Slagterier proti Bundesrepublik Deutschland

⁵ POSPÍŠIL, Ivo. In: Wagnerová a kol. Listina základních práv a svobod : komentář. Praha : Wolters Kluwer ČR. 2012, s. 750.

⁶ Sněmovní tisk 1117/0, s. 10.

⁷ HRÁDEK, Jiří. Vztah mezi právní ochranou dle primárního práva a národní úpravou odpovědnosti státu za porušení komunitárního práva. Jurisprudence. Ročník XX, číslo 5/11, s. 31.

⁸ POSPÍŠIL, Ivo. In: Wagnerová a kol. Listina základních práv a svobod : komentář. Praha : Wolters Kluwer ČR. 2012, s. 746

⁹ „[…] právní vztah, který za podmínek stanovených zákonem č. 82/1998 Sb. mezi poškozeným a státem či územní samosprávným celkem vzniká, je občanskoprávním vztahem odpovědnosti za škodu“ (VOJTEK, Petr, BIČÁK, Vít, Odpovědnost za škodu při výkonu veřejné moci : komentář. 4. vydání. Praha : C.H. Back, 2017, xv, 2017, s. 223).

¹⁰ POSPÍŠIL, Ivo. In: Wagnerová a kol. Listina základních práv a svobod : komentář. Praha : Wolters Kluwer ČR. 2012, s. 748.

¹¹ FIALA, Josef, ADÁMKOVÁ Kateřina a kol. Občanské právo hmotné. 3., opravené a doplněné vydání. Brno: Masarykova univerzita, Doplněk, 2002, s. 378.

¹² UERPAMNN, Robert. Das öffentlische Interesse, 1999, s. 105.

¹³ HAJTE, Armin. Odpovědnost státu v Německu pod vlivem evropského práva. Jurisprudence. Ročník XX, číslo 5/11, s. 24.

¹⁴ K tomuto viz. níže.

¹⁵ VOJTEK, Petr, BIČÁK, Vít, Odpovědnost za škodu při výkonu veřejné moci: komentář. 4. vydání. Praha: C.H. Back, 2017, xv, 2017, s. 174.

¹⁶ Tamtéž, s. 175.

¹⁷ Rozsudek nejvyššího soudu ze dne 15.6.2019, sp. zn. 30 Cdo 5027/2014.

¹⁸ Tamtéž, s. 159.

¹⁹ Nález Ústavního soudu ze dne 9. 8. 2016 sp. zn. III. ÚS 157/16.

²⁰ TICHÝ, Luboš; HRÁDEK, Jiří. Odpovědnost státu za legislativní činnost. Praha: Centrum právní komparatistiky Právnické fakulty Univerzity Karlovy v Praze, 2012, s. 162.

²¹ Ke stanovisku viz. výše.

²² Na tuto možnost poukazuje i VOJTEK, Petr, In: VOJTEK, Petr, BIČÁK, Vít, Odpovědnost za škodu při výkonu veřejné moci : komentář. 4. vydání. Praha : C.H. Back, 2017, xv, 2017, s. 159 - 160.

²³ POSPÍŠIL, Ivo. In: Wagnerová a kol. Listina základních práv a svobod : komentář. Praha : Wolters Kluwer ČR. 2012, s. 755.

²⁴ KOLBA, Jan, ŠULÁKOVÁ, Martina. Nemajetková újma způsobená protiprávním výkonem veřejné moci. Praha: Leges, 2014, s. 31 – 32.

²⁵ POTACS, Michal. Změna v rakouském právu odpovědnosti státu pod vlivem evropského práva. Jurisprudence. Ročník XX, číslo 5/11, s. 21.

²⁶ Viz. nález Ústavního soudu ze dne 9.2.2011, sp. zn. IV. ÚS 1521/10.

²⁷ KLECATSKY, Hans Richard. Notwendige Entwicklungen des österr. Amtshaftungsrechts, JBI 1981, s. 114.

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