Legislative action or inaction of the executive branch as maladministration under Act No. 82/1998 Coll.

09. 04. 2026

Introduction
The previous parts of this series first addressed the general definition of legislative liability in the Czech legal environment,[1] then reflections on its possible future normative framework,[2] and subsequently a critical analysis of the case law concerning legislative action or inaction of Parliament.[3]

The exposition so far has therefore proceeded from theoretical foundations through de lege ferenda considerations to an analysis of judicial decision-making in relation to constitutional and statutory norm-making. It is thus a natural culmination of the entire series to now turn attention to the area of subordinate legislation, that is, to the legislative action or inaction of bodies of the executive branch.

It is precisely in this area that one can particularly clearly observe the tendency of the highest courts to adopt, without more detailed differentiation, conclusions originally formulated in relation to Parliament and apply them also to the normative activity of the Government, ministries, other administrative authorities, territorial self-governing units, or professional self-governing bodies. Such an approach, however, raises doubts. Subordinate norm-making differs from statutory norm-making not only by its constitutional basis, but also by its function, the degree to which it is bound by statute, the intensity of its discretion, and the nature of the liability of the bodies that exercise it. For that reason alone, it is by no means self-evident that an argument developed for the legislature must be equally persuasive in relation to bodies of the executive branch.

This concluding article therefore focuses on the question whether legislative action or inaction of bodies of the executive branch can truly be excluded, without further analysis, from the framework of maladministration within the meaning of Section 13 of Act No. 82/1998 Coll. Its aim is, first, to describe the various forms of subordinate norm-making encountered in the Czech legal order and, second, to test the strength of the arguments on the basis of which the current case law rejects liability for harm caused by such normative activity.

If it was already suggested in the previous part that even in relation to Parliament the judicial arguments are not entirely free of contradiction or fully persuasive, then in relation to subordinate norm-making their limits become even more apparent. Bodies of the executive branch typically do not exercise original norm-making power, but rather a derivative power conditioned by statute. Their normative activity is therefore usually much narrower, more tightly determined, and more closely connected with the exercise of public administration. It is precisely these specific features that make subordinate norm-making an area in which the blanket transplantation of conclusions relating to statutory norm-making appears particularly problematic.

The purpose of this article is therefore not to reopen the general theory of legislative liability or to repeat proposals for future legislative solutions, which were addressed in the previous articles. Its purpose is to complete the overall treatment by critically examining the last significant area of normative activity of public authority and to ask whether the existing case law sufficiently distinguishes between the different forms of legislative action or inaction, or whether, by means of argumentative shortcut, it extends conclusions reached for the legislature even to situations where there is no sufficiently firm basis for doing so.

This concluding article, so conceived, aspires to close the entire series not only by describing the current state of affairs, but also by critically evaluating whether Czech case law in the area of liability for the normative activity of public authorities offers a truly systematic, internally coherent, and constitutionally persuasive solution.

Legislative action or inaction of executive authorities
General remarks
The case law of the highest courts concerning liability for subordinate norm-making adopts an almost identical position to that taken with respect to liability for constitutional and statutory norm-making carried out by Parliament.[4] In this way, legal conclusions reached in the decisions discussed above, which related to liability for action or inaction in the enactment of constitutional acts and statutes, have been subsumed into this area as well.

In this regard, reference may be made to the analysis already offered in this article of the plenary opinion of the Constitutional Court of 28 April 2009, Case No. Pl. ÚS-st. 27/09 (hereinafter also the “Opinion”), the conclusions of which are fully adopted even for decision-making concerning liability for legislative action or inaction in subordinate norm-making.

I shall now attempt to explain why, in light of the introductory discussion, I do not consider the transplantation of conclusions reached in the Opinion for statutory norm-making to subordinate norm-making to be appropriate or desirable.

Individual forms of legislative action or inaction of the executive branch

In its judgment of 26 September 2007, Case No. 25 Cdo 2064/2005, the Supreme Court dealt with a case in which the appellant sought compensation for damage allegedly caused by a government regulation that had been annulled by the judgment of the Constitutional Court of 23 May 2000, published under No. 167/2000 Coll. In relation to that government regulation implementing Section 17(5) of Act No. 48/1997 Coll., “the court concluded that under that provision, which was lex specialis in relation to Act No. 526/1990 Coll., on Prices, the Government was authorized to determine the value of a point and the amount of lump-sum payments, but not additional values or limitations; it had exceeded its authority,” and for that reason the Government had acted ultra vires.

Specifically, in the aforementioned regulation the Government set, for operators of non-state medical facilities providing health care reimbursed from public health insurance, the value of points for individual services, which it limited in time (by the number of hours per calendar day) and in quantity (by the percentage of a comparative reimbursement volume), and it provided for a reduction of reimbursement for care provided once those limits were exceeded. The appellant was then alleged to have suffered damage because the General Health Insurance Company reduced reimbursement for the care provided in accordance with that government regulation.

The Supreme Court did not grant the claim, referring to the conclusions of the Constitutional Court, which had held in its judgment of 23 May 2000, published under No. 167/2000 Coll., that a government regulation is by its nature an abstract and general normative legal act, the issuance of which cannot be subsumed under the concept of maladministration under Section 13 of the State Liability Act.

It further concluded that: “The issuance of a normative legal act is not an official procedure of the Government, but rather the result of its norm-making activity. If the normative activity or inactivity of a public authority cannot be assessed as maladministration, neither can state liability for damage caused by maladministration within the meaning of Section 13 of Act No. 82/1998 Coll. or Section 18 of Act No. 58/1969 Coll. be inferred.”

This view of the Supreme Court was also confirmed by the Constitutional Court, which in its judgment of 8 July 2010, Case No. Pl. ÚS 36/08, fully agreed with the opinions of the Supreme Court and proceeded directly from that cited decision. In that case, the complainant sought, inter alia, the annulment of Section 13 of the State Liability Act on the ground that the provision was contrary to Article 2 of the Charter. This was said to be so because “maladministration” lacks a statutory definition, which, given the multiplicity of forms of activity in the exercise of public power, renders the concept highly vague, leading in practice to the result that all normative activity is beyond reach, including cases where the legislative body exceeds the authority granted to it in the relevant statutory framework. According to the complainant, this meant that such bodies could exceed their powers arbitrarily and without limit, without the state being liable for the damage caused by them, which is contrary to the principles of the rule of law.

The Senate and the Chamber of Deputies expressed the view that the definition of maladministration is sufficiently specific and is therefore not vague. During the discussion and adoption of the bill that became the State Liability Act, no objections were raised suggesting that Section 13 of that Act was vague. Moreover, the Senate added that any interpretation of the concept of maladministration and the assessment of any conflict with the constitutional order is a matter for the Constitutional Court rather than for the complainant.

The Constitutional Court did not agree with the complainant’s objection concerning the absence of a statutory definition of the concept of maladministration, stating that it is the task of the ordinary courts, using proper methods of legal interpretation, to clarify the content of that concept. I fully agree with this view, since the nature of the relationship between the creation of norms in general and their subsequent application means that it is impossible to specify unambiguously all the situations to which a given norm should apply; this is instead the task of the courts.[5] The opposite conclusion would be contrary to the separation of powers in the state.

Nor did the Constitutional Court agree with the complainant’s view that, by use of interpretive methods, the concept of maladministration could encompass almost any conduct contrary to legal rules, which is precisely what was said to create the conflict with Article 2(2) of the Charter. Melzer takes the view that, if interpretive methods are used correctly, there is always only one correct solution, with which I fully agree.[6] The proper use of legal methodology, on the contrary, prevents courts from deciding purely according to their own discretion.[7]

With respect to the interpretation and application of the concept of maladministration in those proceedings, the situation was that the complainant in the original proceedings before the ordinary courts sought damages allegedly incurred by him as an “operator of a non-state medical facility” due to maladministration by the Government in issuing a regulation setting limits on the value of provided medical care reimbursed from health insurance, as a result of which reimbursements for provided care were reduced. The difference between the full reimbursement and the reduced reimbursement was then said to constitute damage which the complainant sought before the ordinary courts, referring to the legislative error.

Reference may likewise be made to the judgment of the Supreme Court of 15 June 2019, Case No. 30 Cdo 5027/2014, which, with reference to the Opinion, held that: “Nor is the issuance of a normative legal act by the Government an official procedure; rather, it is the result of its norm-making activity […] and it is also necessary to distinguish consistently the state’s liability for maladministration under Section 13 of the State Liability Act from the state’s liability for breach of EU law.”

These conclusions show that, at present, judicial practice is not inclined to interpret the concept of maladministration under Section 13 of the State Liability Act in such a way as to cover normative activity of the Government, any more than it is in the case of norm-making by Parliament.

The judgment of the Supreme Court of 21 April 2009, Case No. 25 Cdo 1893/2008, then addressed a similar question concerning the applicability of Section 13 of the State Liability Act in connection with an annulled[8] decree of the Ministry of the Interior. In accordance with the above conclusion, the Supreme Court held that “decrees and pricing directives of ministries are normative legal acts of a central body of state administration, characterized by their abstract and general nature; they are not individually legal acts resulting from decision-making in specific cases. Decrees and pricing directives of ministries are manifestations of the so-called derivative norm-making of the ministry, that is, the result of its normative activity and not of its official procedure giving rise to state liability under Act No. 82/1998 Coll. The same, moreover, can be said of the normative legal acts of the Government,” thereby rejecting the possibility of treating as maladministration not only the process of issuing decrees of ministries and other central administrative authorities, but also the pricing directives issued by them.[9]

It is likewise likely that the highest courts would approach the same question in the same way in relation to regulations of administrative authorities and other forms of subordinate normative activity, although the case law has not expressly addressed those forms, nor are there any known circumstances justifying different judicial conclusions.

Given the legal opinion of the Constitutional Court expressed in the Opinion, whose leading argument for the impossibility of treating legislative action or inaction as maladministration is, inter alia, its “normative” nature, the Constitutional Court would likely reach the same conclusion in relation to the issuing or non-issuing of internal normative acts within the hierarchical structure of state administration. In relation to such cases, however, one can only hypothetically infer the legal opinion of the highest courts, since this issue has not yet been clarified in case law.

These internal normative acts are issued within the hierarchical structure of state administration, in relationships of subordination and superordination (for example, government resolutions).[10] In the case of internal normative acts issued within the hierarchical structure of state administration, possible liability for damage arising from normative action or inaction does not come into consideration, because such acts lack general binding force. By such internal normative acts, the state administration limits itself within the framework of hierarchical subordination and superordination, and for that reason damage arising from such normative action or inaction can theoretically be suffered only by the state administration itself. Natural and legal persons may be affected by this kind of normative action or inaction only indirectly, through forms of activity that may be described as individual acts, which already operate directly in relation to such persons. In such an individual act, typically a decision, the normative action or inaction of the hierarchically superior administrative authority is then directly reflected. It is characteristic of internal normative acts based on hierarchical relationships that the possibility of issuing them is not established in individual legal regulations, but follows from the hierarchical relationship itself, in which the superior body is authorized, in accordance with the law and other legal regulations, to direct the activity of subordinate administrative authorities.[11] Their issuance will typically be considered desirable where the decision-making practice of subordinate authorities, in situations allowing discretion, is inconsistent and there is a need to unify it.

Individual administrative acts affected in this way by the normative action or inaction of a superior body may then be defective. Such a defect cannot arise solely on the basis of the action or inaction of the superior body that did or did not issue the internal normative act. The defect must always be assessed with regard to the individual act itself. Defects of individual acts will be assessed in accordance with the principle of legality under Section 2(1) of Act No. 500/2006 Coll., the Administrative Procedure Code, as amended. For these reasons, one cannot contemplate compensation for damage on the basis of maladministration under Section 13 of the State Liability Act, but must instead refer to Section 7 of that Act, which concerns unlawful decisions.

It would certainly be an omission not to mention statutory regulations as abstract normative acts governing internal relations within territorial, professional, and interest-based self-government. In connection with professional norm-making, one speaks of professional regulations.

Professional regulations are issued by self-governing bodies that administer part of public affairs connected with the exercise of a particular liberal profession.[12] The State Liability Act says nothing about professional self-government, reflecting only territorial self-government. At present, however, the prevailing view is that the State Liability Act may also be applied by analogy to professional self-government. This is inferred above all by the Constitutional Court, which in its judgment of 28 February 2017, Case No. IV. ÚS 3638/15, held that: “It is indeed correct to conclude that disciplinary proceedings may be considered an exercise of public power; since, however, this is not an exercise of state administration but an exercise of decentralized public administration—professional self-government—liability for damage under Act No. 82/1998 Coll. cannot be asserted, because that Act does not regulate it (for unknown reasons). It regulates only liability of territorial self-governing corporations in the exercise of self-government. By analogy, it can be inferred that in the present case liability lies not with the state, but with the professional self-governing corporation itself—the Czech Bar Association.” Professional self-government may therefore, by analogy, be granted the regime of territorial self-governing units in the exercise of their autonomous powers as regulated by the State Liability Act. Legislative action or inaction of bodies of professional self-government would then also be regarded as normative legal acts in respect of which legislative liability is excluded, even though all case law of the highest courts has thus far dealt only with liability for individual administrative acts and has been unwilling to enter into the issue of normative activity of those public-law corporations.[13] Nevertheless, one must infer here as well the applicability of the Supreme Court’s judgment of 13 April 2011, Case No. 28 Cdo 542/2011, which I discuss in more detail in the context of the norm-making of territorial self-governing units, and I therefore refer to that discussion below.

I do not agree with Kopecký,[14] who argues that the state should be liable for the acts of professional self-government because it has limited its own scope of activity in favor of such self-government. He justifies this by stating that: “This solution would probably better reflect the constitutional character of the right to compensation for damage and would guarantee injured parties equal conditions for claims to compensation (e.g. absolute objective liability of the liable person, limitation periods, etc.).” There is no doubt that this prudent view would indeed ensure a more secure position for injured parties, whose damage would then be borne by the state. This solution is, however, clearly unsystematic within the Czech legal order, since by the same logic even the liability of territorial self-governing units exercising autonomous powers could be called into question. At the same time, such a solution significantly disrupts the accepted distinction in administrative law between holders and executors of public power, according to which holders are liable for the sphere of public power entrusted to them.

For completeness, it must be added that if legislative liability were to be inferred, it would not be liability of the state, but rather liability of the public-law corporation of professional self-government, which is regarded as a holder of public power[15] and at the same time as responsible for its exercise.[16] According to the Constitutional Court’s view expressed in its judgment of 28 February 2017, Case No. IV. ÚS 3638/15, it may therefore be concluded that analogous application of the State Liability Act is generally possible. The Constitutional Court, however, admitted such analogous applicability only obiter dictum, and the question still remains whether legislative liability can be inferred in the Czech legal order, a matter on which the Constitutional Court did not express itself in that judgment.

Territorial self-governing units exercise their legislative action or inaction by means of regulations and generally binding ordinances. A regulation is a normative act which is associated with the exercise of state power, the exercise of which has, in accordance with the principle of deconcentration, been entrusted to territorial self-governing units, as I have already concluded above. Legislative action or inaction in the issuance of generally binding ordinances may then be characterized as the exercise of self-government of territorial self-governing units within the principle of decentralization.

Given the fact that the characteristic feature of generally binding ordinances is precisely their generally binding nature, one may fully refer to the conclusions already reached with respect to legislative action or inaction of administrative authorities in relation to other generally binding normative acts. It may then be concluded that legislative liability will likewise not be inferred in relation to generally binding ordinances.

This follows indirectly also from the above-mentioned judgment of the Supreme Court of 13 April 2011, Case No. 28 Cdo 542/2011, in which the Supreme Court addressed compensation for damage caused by a generally binding ordinance in a case where that ordinance was so specific that, due to the lack of generality, it was more appropriately characterized as an individually legal act. In that case, a territorial self-governing unit issued a generally binding ordinance reducing opening hours at one address (one establishment), thereby allegedly causing the operator damage in the form of lost profit from business during that period. The Supreme Court stated that: “Since this was not a restriction affecting all such establishments in the territory or a certain part (for example, in the city center) of the municipality, the ordinance lacked a generally binding character and cannot therefore be regarded as a normative legal act. The purpose of generally binding ordinances is to regulate general matters and thus apply to all cases of the same kind. Since, however, the legal act in question imposed an obligation only in relation to the claimant’s specific establishment, the result of the activity of that authority may justifiably be characterized as an individually legal act, for it is precisely by this form of activity that specific rights and duties of specific persons are regulated, as also happened in the present case.” The Supreme Court thus regarded the generally binding ordinance in material terms as a decision, with the corresponding possibility of inferring liability of the territorial self-governing unit under Section 7 of the State Liability Act. At the same time, however, it also follows from the judgment that if the ordinance had not lacked general binding force, it would have been a normative act, in respect of which liability for damage is excluded and one cannot speak of maladministration under Section 13 of the State Liability Act.

From the foregoing, the position of the highest courts is clear: they manifestly do not infer legislative liability for legislative action or inaction of territorial and professional self-government. In relation to other forms of self-government, the highest courts have not addressed the question either directly or indirectly, but analogous conclusions may clearly be inferred.

At this point, for the sake of clarity, a partial conclusion may be drawn. It may be concluded that, even with respect to subordinate norm-making, the highest courts have not developed any deeper or more sophisticated reflections as to why normative action or inaction cannot be regarded as maladministration; all possible reflections on legislative liability for subordinate norm-making have ended almost before they began. In their reasoning, the courts refer to decisions concerning statutory norm-making and then simply adopt those conclusions for subordinate norm-making as well. For that reason, the position of the highest courts may, to some extent, be extended to other forms of subordinate normative action or inaction, such as regulations of regional administrative authorities or the norm-making of territorial self-governing units, as well as other forms of internal normative action or inaction.

Critical analysis of the plenary opinion of 28 April 2009, Case No. Pl. ÚS-st. 27/09, in relation to subordinate norm-making

As has already emerged above, the highest courts sometimes almost uncritically adopt the arguments in favor of the impossibility of applying the concept of maladministration to questions of subordinate norm-making from decisions concerning liability for legislative action or inaction in the statutory sphere.[17] For that reason, I return to the Opinion and attempt to analyze it more closely, this time with a focus on subordinate normative activity.

The argument based on political responsibility is highly inapt in relation to subordinate norm-making. The executive branch does not derive its legitimacy from democratic elections and is therefore not, as a rule, founded predominantly on a political basis. Some bodies are intentionally stripped of political influence, that is, they are depoliticized.[18]

The body of public administration most affected by political influence is undoubtedly the Government, which is authorized to issue regulations for the implementation of statutes and within their limits.[19] This conclusion follows from the Government’s dependence on the Chamber of Deputies.[20] The Government is derived from the Chamber of Deputies, and the Chamber exercises continuous oversight over the Government, above all through the possibility of a vote of no confidence,[21] interpellations,[22] and oversight carried out by bodies of the legislature.[23] Kysela[24] also mentions the Government’s responsibility to the Senate and to citizens in the form of ongoing accountability, which he describes by the term “accountability.”

A very similar situation exists in the case of ministries and other central administrative authorities, which are authorized to issue regulations that Act No. 309/1999 Coll., on the Collection of Laws and the Collection of International Treaties, as amended, refers to as decrees. They are empowered to do so by Article 79(3) of the Constitution, with the difference, as compared to government regulations, that an explicit statutory authorization is required for their issuance.

A ministry is always headed by a minister, who is a member of the Government, which, as already noted, has the strongest political basis within the organization of executive power. Another central administrative authority is headed by a chairperson or otherwise named director, who is typically appointed by a government resolution. It is, however, apparent that the further removed a norm-making body is from Parliament, or from the Government derived from it, the weaker the argument of political responsibility becomes. It is questionable whether political responsibility can be contemplated at all in the case of other administrative authorities. This is particularly clear in the case of territorially deconcentrated authorities vested with the power to issue subordinate normative acts. In their case, political responsibility can hardly be inferred, and the responsibility of individual employees of administrative authorities is governed by Act No. 234/2014 Coll., on the Civil Service.

On the other hand, some political responsibility may still be observed in the issuance of generally binding ordinances by territorial self-governing units in the exercise of their autonomous powers. These are issued by representative councils, which are elected to office by the citizens of those territorial units.

A different situation arises in the issuance of regulations by those territorial self-governing units in the exercise of delegated powers. Such regulations are issued by the councils of territorial self-governing units, which derive their position from the representative councils, and the situation is therefore seemingly analogous to the relationship between the Government and the Chamber of Deputies. It is, however, necessary to emphasize that the argument of political responsibility is significantly weakened in relation to regulations issued by the councils of municipalities with an authorized municipal office and municipalities with an office exercising extended powers. These councils do not issue regulations solely for the electoral districts from which the representative body, to which the council is accountable, emerged, but also for other addressees who do not fall within that electoral district, thereby regulating the legal position of persons to whom the representative body is not politically accountable. This phenomenon is often criticized in legal literature and regarded as a democratic deficit.[25]

If I have already questioned the aspect of political responsibility in statutory norm-making, it is obvious that even greater reservations are necessary here. Political responsibility weakens in proportion to the “systemic distance” of the administrative authority from the Chamber of Deputies. It is quite clear that political responsibility cannot be inferred, for example, in the case of regional public health authorities, which issue regulations under Act No. 258/2000 Coll., on the Protection of Public Health and on Amendments to Certain Related Acts, as amended.

Another argument according to the plenary opinion of 28 April 2009, Case No. Pl. ÚS-st. 27/09, is the protection of the autonomy of the norm-maker’s will. As with the previous argument, one may object that this too is of only limited relevance. Subordinate norm-making is by its nature derived from statutory norm-making, which it implements. It specifies rights and obligations laid down by statute and may not deviate from them.[26]

The nature of subordinate norm-making is therefore founded on the limited autonomy of the norm-maker, and the space for maneuver is significantly smaller than in the case of statutory norm-making. Not only must subordinate norm-making be consistent with the constitutional order, as is also the case with statutory norm-making, but it must additionally be consistent with statutes, and, moreover, the issuance of such norm-making typically requires explicit statutory authorization.

In this regard, Skulová states that: “The space for independent discretion as to whether to issue such a (author’s note: normative) act at all for the regulation of certain areas, and as to the choice of its specific content and method of regulation, is characteristic of the area of self-government represented by public-law corporations. In the issuance of normative acts in the exercise of state administration, whether directly by state bodies or by other approved entities […], the exercise of discretionary power is necessarily much more limited, with a more precise determination of the content of the regulation, and the issuance of some such acts is even directly laid down as a duty.”[27]

In my view, it is not entirely appropriate to consider, in connection with subordinate norm-making, that recognition of liability for legislative action or inaction would constitute an impermissible restriction on autonomy of will. The role of the executive power is not primarily to create legal regulation, but merely to elaborate upon it, and historical experience clearly shows that the consequences of the opposite approach may be serious.

Perhaps the only exception may be found in the issuance of generally binding ordinances by territorial self-governing units, which enjoy broader powers in this normative form. No special statutory delegation is required for their issuance; the authorization follows directly from Article 104(1) of the Constitution.

Until 2007, the Constitutional Court took the view that explicit statutory authorization was necessary for normative regulation of a given matter.[28] That position was later reconsidered,[29] with the result that territorial self-governing units no longer require any special statutory authorization to issue generally binding ordinances, even where such ordinances impose duties. The only condition is that the ordinance regulate a matter falling within the scope of Section 10 of Act No. 128/2000 Coll., on Municipalities, in the case of municipalities, and Section 6 of Act No. 129/2000 Coll., on Regions, in the case of regions. These provisions, however, are worded very generally and therefore provide municipalities and regions with a considerable degree of discretion.

The final argument pointed to the requirement of application of law as a precondition of maladministration under Section 13 of the State Liability Act. Nor here can one identify any clear exception allowing the application of this argument to subordinate norm-making. In discussing arguments concerning the autonomy of the norm-maker’s will, I have described subordinate norm-making as implementing statutory regulation. Its very nature is based on the application of law, i.e. of the statutory framework to which subordinate norm-making is subordinate and without which it could not exist.

One may ask whether there is any reason to proceed differently in a case where an administrative authority applies the law and thereby issues an individually legal act, and in a case where the same administrative authority issues a subordinate legal regulation, having been expressly empowered to do so by statute. I personally see no reason that would justify such a different approach based on the argumentation of the above-mentioned Opinion.

This problem becomes even more obvious in connection with the issuance of measures of a general nature. A measure of a general nature is by its nature a hybrid standing on the boundary between an individually legal act and a normative act. The question therefore arises whether, for the purposes of the State Liability Act, the concept of a decision should be interpreted more broadly so as to include measures of a general nature under that concept, and thus whether an extensive interpretation of the concept of a decision should be permitted. The current case law inclines toward that conclusion.[30] In this regard, it may be inferred that this form of activity is already treated as an act of application of law, which further undermines the conclusion that subordinate norm-making is not an act of application of law.

The Austrian constitutional provision[31] provides that: “The Federation, the Länder, districts or municipalities and other public-law corporations and institutions shall be liable for damage caused in the implementation of statutes.” In this way, Austrian law allows recovery of damage caused by the authorities listed above as a result of legislative action or inaction in the issuance of regulations. Although the issuance of a regulation is formally an act of norm-making, this normative activity is regarded as an act of “application of law.”[32]

The argument that maladministration is exclusively “application of law” therefore encounters the specific nature of subordinate norm-making, which, like individually legal acts, depends on a statutory basis; of all three arguments, this is the least persuasive. In some legal systems, subordinate norm-making is expressly regarded as an application of statutory regulation, and therefore this legal argument does not arise there at all.

If one reflects on the applicability of the arguments in the Opinion to subordinate norm-making and seeks to conclude the above discussion, it may be stated that the assumption of political responsibility can hardly withstand scrutiny in the normative activity of bodies that are by their nature depoliticized. In the case of other bodies, political influence is likewise considerably weaker than in the case of Parliament. The prohibition on limiting the autonomy of the will of the subordinate norm-maker is by its nature relative. This argument primarily collides with the subordination of the executive branch to the legislative branch and with the nature of subordinate norm-making, which is always dependent on constitutional and statutory norm-making. The least persuasive argument in relation to subordinate norm-making appears to be the requirement of application of law as a precondition of official procedure. Subordinate norm-making is existentially dependent on the application of statutory and constitutional norms, which enable administrative authorities to further specify rights and obligations in accordance with the statute.

What emerges most clearly from the foregoing is that the courts tend to apply conclusions reached in relation to statutory norm-making indiscriminately also to subordinate norm-making, without taking into account the specific features characteristic of the latter. For that reason, the reasoning set out in the decisions analyzed above cannot be considered sufficient, and the courts ought instead to deal more closely with the material nature of the normative activity of the individual bodies of the executive branch separately. One may thus detect a certain tendency on the part of the highest courts to make their decision-making easier in this subordinate sphere.

Conclusion

In this concluding article, I have sought to outline more closely for the reader the current case law of the highest courts in situations where a claimant asserts a claim for damages allegedly caused by legislative action or inaction of public authorities as maladministration within the meaning of Section 13 of the State Liability Act. Such a claim will in all probability—indeed, with near certainty—be rejected by reference to the Opinion, supplemented by the argument that the Czech legal order leaves no room for legislative liability for legislative action or inaction, and that any discussion of the applicability of the concept of maladministration therefore appears redundant.

For the Constitutional Court to express itself on the applicability of the concept of maladministration to legislative action or inaction, it was necessary that the complainant in proceedings Case No. Pl. ÚS 36/08 challenge the constitutionality of Section 13 of the State Liability Act. Although this at least imposed upon the Constitutional Court some duty to deal more closely with the concept in question, I do not regard that as an appropriate path for inferring legislative liability for legislative action or inaction, and I fully agree with the Constitutional Court’s reasoning rejecting the complainant’s position.

With respect to the argumentation advanced by the Constitutional Court in the Opinion, I have pointed out that it does not rest on particularly firm foundations, yet the ordinary courts together with the Constitutional Court accept that argumentation and adopt it in their reasoning without further critical reflection.

If the argumentation contained in the Opinion is open to my criticism already in relation to statutory norm-making, then it can be questioned all the more strongly in relation to subordinate norm-making. None of the arguments discussed above clearly legitimizes the courts’ approach when they consistently decide that the norm-making process cannot be subsumed under official procedure.

Citace:

[1] Šafář, J. Odpovědnost za legislativní (ne)činnost v českém právním prostředí. Právní rozhledy, 2025, č. 4, s. 116 a násl.

[2] Šafář, J. Odpovědnost za legislativní (ne) činnost v českém právním prostředí – úvahy de lega ferenda. Právní -rozhledy, 2025, č. 7-8, s. 234 a násl.

[3] Šafář, J. Legislativní (ne)činnost Parlamentu jako nesprávný úřední postup dle OdpŠk. Právní -rozhledy, 2026

[4] K tomuto srov. Šafář, J. Odpovědnost za legislativní (ne)činnost v českém právním prostředí. Právní rozhledy, 2025, č. 4, s. 116 a násl.

[5] MELZER, Filip. Metodologie nalézání práva: úvod do právní argumentace. 2. vyd. V Praze: C.H. Beck, 2011, s. 96.

[6] Tamtéž, s. 10.

[7] BYDLINSKI, Franz., Grundzüge der juristischen Methodenlehre. 3. vydání. Wien : UTB, 2018, s. 7 - 8.

[8] Nálezem Ústavního soudu ze dne 21. června 2000, publikovaný pod č. 231/2000 Sb.

[9] K právní povaze výměru se vyjadřoval i Ústavní soud v usnesení ze dne ze dne 8. 12. 1999 sp. zn. I.ÚS 422/99, ve kterém stanovil, že to: „Že se nejedná o právní předpis, jde zřejmě o akt vydaný na základě § 10 cenového zákona, který má ovšem specifickou, normativní povahu, neboť nesměřuje vůči konkrétnímu právnímu subjektu, ale zavazuje - obdobně jako právní předpis - blíže neurčený, resp. neurčitý okruh (počet subjektů)“. I přes skutečnost, že výměr nelze považovat za právní předpis, jeho „normativní povaha“ také dle názoru Nejvyššího soudu znemožňuje případně uvažovat o nesprávném úředním postupu při jeho vydávání a nejedná se o akt aplikace práva.

[10] SLÁDEČEK, Vladimír. Obecné správní právo. 4., aktualizované vydání. Praha: Wolters Kluwer, 2019, s. 77.

[11] PRŮCHA, Petr. Správní právo: obecná část. 8. dopl. a aktualiz. vydání. Brno: Doplněk, 2012, s. 274.

[12] SLÁDEČEK, Vladimír. Obecné správní právo. 4., aktualizované vydání. Praha: Wolters Kluwer, 2019, s. 69.

[13] Srov. např. rozsudku Vrchního soudu v Praze ze dne 22. 12. 1995, sp. zn. 7 A 83/94, rozsudek Městského soudu v Praze ze 7. 11.2003, sp. zn. 51 Co 304/2003, rozsudek Nejvyššího soudu ze dne 16. 11. 2015, sp. zn. 30 Cdo 1711/2015, nález Ústavního soudu ze dne 27. 11. 2011, sp. zn. IV. ÚS 415/11 nebo Nález Ústavního soudu z 28. 2.2017, sp. zn. IV. ÚS 3638/15.

[14] KOPECKÝ, Martin. Odpovědnost za škodu způsobenou profesní komorou při výkonu veřejné moci. Jurisprudence. Ročník 2017, číslo 4/2017, s. 32.

[15] SLÁDEČEK, Vladimír. Obecné správní právo. 4., aktualizované vydání. Praha: Wolters Kluwer, 2019, s. 255.

[16] Nález Ústavního soudu ze dne 28. 2. 2017, sp. zn. IV. ÚS 3638/15.

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

[18] POUPEROVÁ, Olga. „Nezávislé správní úřady“. Správní právo. 2014, roč. 47, číslo 4, s. 210.

[19] Ustanovení čl. 78 Ústavy.

[20] Ustanovení čl. 68 odst. 1 Ústavy.

[21] Ustanovení čl. 72 odst. 1 Ústavy.

[22] Ustanovení čl. 53 odst. 1 Ústavy.

[23] Ustanovení čl. 30 a 31 Ústavy.

[24] KYSELA, Jan. Zákonodárství bez parlamentů: delegace a substituce zákonodárné pravomoci. Praha – Beroun: Univerzita Karlova, 2010, s. 18.

[25] KADEČKA, Stanislav. Právo obcí a krajů v České republice. Praha: C. H. Beck, 2003, s. 145.

[26] Dle článku 4 odst. 1 Listiny platí, že: „Povinnosti mohou být ukládány toliko na základě zákona a v jeho mezích a jen při zachování základních práv a svobod.“

[27] SKULOVÁ, Soňa. Správní uvážení: základní charakteristika a souvislosti pojmu. Brno: Masarykova univerzita, 2003, s. 46–47.

[28] Nález Ústavního soudu ze dne 19.1.1994, sp. zn. Pl. ÚS 5/93.

[29] Nález Ústavního soudu ze dne 11.12.2007, sp. zn. Pl. ÚS 45/06.

[30] Např. rozsudek Nejvyššího soudu ze dne 27.10.2015, sp. zn. 25 Cdo 3444/2013, rozsudek Nejvyššího soudu ze dne 8.8.2017, sp. zn. 30 Cdo 3292/2015 nebo rozsudek Nejvyššího soudu ze dne 11.9.2018, sp. zn. 30 Cdo 3079/2016.

[31] Ustanovení čl. 23 Spolkový ústavní zákon č. 1/1930 BGBl.

[32] KLECATSKY, Hans Richard. Notwendige Entwicklungen des österr. Amtshaftungsrechts, JBI 1981, s. 114.

All articles