Legislative Activity or Inactivity of Parliament as Maladministration under the State Liability Act

09. 07. 2026

1. Introduction

I already drew attention to the fundamental premises of the issue of legislative liability of public authorities for harm caused by legislative activity or inactivity in the first part of this series of articles, in which I defined the very nature of legislative liability, its place within the system of State liability, and also the absence of its express normative basis in the Czech legal order.

In the second part, I followed up on these conclusions with de lege ferenda reflections, both in relation to possible models of future legal regulation and in relation to inspiration from foreign legal systems, in particular the German, Austrian and French legal systems.

The present third part follows on from the two previous parts and addresses the issue from the perspective of the law currently in force. Its aim is to subject to critical analysis the decision-making practice of the Constitutional Court and the Supreme Court, on which the currently prevailing conclusion is based, namely that legislative activity or inactivity of public authorities generally cannot be subsumed under the concept of maladministration within the meaning of Section 13 of Act No. 82/1998 Coll., on liability for damage caused in the exercise of public authority. Attention will be focused in particular on the finding of the Constitutional Court of 22 September 1998, file no. I. ÚS 245/98, and on the opinion of the Plenum of the Constitutional Court of 28 April 2009, file no. Pl. ÚS-st. 27/09, which represent key points of case law for the current understanding of this issue.

This article aims to verify whether the arguments by which the highest courts justify the impossibility of establishing liability for legislative activity or inactivity truly withstand scrutiny from the perspective of the constitutional order, the systematics of the State Liability Act, and the more general principles of the separation of powers and the rule of law. Following on from this, it will examine whether the restrictive concept of maladministration as activity connected solely with the application of law is convincing, and whether the a priori exclusion of law-making activity, both at the statutory and constitutional law-making levels, from the framework of the legal liability of the State is justified.

The purpose of this third part is therefore not to reopen the question of theoretical definition or the question of possible future legislative solutions, to which the previous parts were devoted, but rather to deepen the dogmatic and jurisprudential foundations of the whole issue de lege lata, specifically in relation to legislative power, or also constituent power, exercised by the Parliament of the Czech Republic. The core of the discussion will therefore be a critical analysis of the internal consistency of existing case law, its argumentative foundations and its limits, precisely in relation to the question of whether legislative activity or inactivity can still be excluded, without further consideration, from the framework of liability for the exercise of public authority in the Czech legal environment.

The discussion of this topic in relation to the legislative activity of the executive branch will be devoted to the final part of this series of articles, which I also plan to publish.

1. Legislative Activity or Inactivity of Parliament

2.1 General Discussion

More than twenty years have passed since the Constitutional Court issued its finding of 22 September 1998, file no. I. ÚS 245/98, from which we may symbolically date the existence of the issue of liability for the activity or inactivity of legislative bodies within the domestic legal environment. This important milestone for the first time revealed the position of the Constitutional Court on the issue of liability for damage arising in causal connection with the activity or inactivity of legislative bodies, above all Parliament, in relation to which this question is most frequently discussed.

In the case in question, the complainant sought compensation for damage caused by the defective publication of Act No. 267/1992 Coll., amending and supplementing Act No. 87/1991 Coll., on Extrajudicial Rehabilitation, in the Collection of Laws. That Act was intended to establish rights to compensation for participants in military forced labour camps. During publication, two paragraphs of the provision governing the right to compensation for participants in military forced labour camps were mistakenly omitted from the text of the Act; had the full text of the approved Act been published in the Collection of Laws, those paragraphs would have established the complainant’s entitlement to compensation.

Act No. 107/1995 Coll. subsequently inserted the missing paragraphs into the originally published text of the Act. Although the purpose of Act No. 107/1995 Coll. was evidently to correct the defective publication of the Act promulgated in the Collection of Laws, no mechanism of retroactive effect for the period from the entry into force of Act No. 267/1992 Coll. until the entry into force of the “corrective” amendment was included. For this reason, the legal consequences occurred ex nunc and not ex tunc, that is, retroactively, as could have been expected in view of the sense and purpose of Act No. 107/1995 Coll. As a result, the complainant could not assert his claim within the relevant period.

According to the Constitutional Court, the maladministration in this case consisted in the conduct of employees of the former Federal Assembly, who submitted for publication an Act in a wording different from that unanimously approved by the deputies at the time. In the case in question, the Senate of the Constitutional Court stated, inter alia, that: “The provision in question (author’s note: Section 18(1) of Act No. 59/1969 Coll.) expressly limits the application of that Act only to maladministration by certain State authorities, among which the legislative assembly cannot be included, whereas Article 36(3) of the Charter of Fundamental Rights and Freedoms, effective from 8 February 1991, is of a general nature and is conceived as the fundamental right of everyone to seek compensation for damage caused to them not only by a court, but also by a public administration authority or any other State authority, by its decision or maladministration. The cited article therefore does not exclude liability for damage caused by maladministration in the promulgation of an Act. […] From the nature of the matter, the Constitutional Court inferred that the error did not occur directly through the legislative activity of the Federal Assembly, but primarily through the misconduct of the auxiliary administrative apparatus of the Federal Assembly, which submitted to constitutional officials for signature an incomplete text of the approved Act.”

It was above all from the text of the last sentence of the above-cited legal opinion of the Constitutional Court that it was inferred a contrario that if the error had occurred “directly through the legislative activity of the Federal Assembly”, whether in the adoption of statutes or constitutional statutes, it would not have been possible to speak of maladministration.

Although the Ministry of Justice attempted in its observations to persuade the Constitutional Court that Parliament was excluded from the scope of Act No. 59/1969 Coll., the Constitutional Court did not adopt this view. Nor did it accept the systematic interpretation of the Charter asserted by the Ministry of Justice, according to which official procedure may be understood as the activity of those State authorities to which Chapter Five of the Charter relates, Chapter Five also systematically containing the very provision on compensation for damage caused by maladministration. Chapter Five concerns the activity of public authorities which, according to the Ministry of Justice, is connected with the “implementation of law”, that is, with the bodies of executive and judicial power.

The Constitutional Court therefore did not a priori exclude Parliament from the scope of Act No. 59/1969 Coll.; on the other hand, it pointed to the specific features of legislative activity, by reason of which such activity cannot be considered official procedure.

These conclusions of the Constitutional Court were used as building blocks for the subsequent decision-making activity of the Constitutional Court and the Supreme Court, and they are still referred to, often rather automatically, even today. This is, however, done without more erudite legal argumentation.

A certain success may nevertheless be seen in the Constitutional Court’s subsequent effort, in later decisions, to justify and legitimise the above conclusions on which the highest courts rely, whereas in the above-mentioned finding of 22 September 1998, file no. I. ÚS 245/98, the Constitutional Court contented itself merely with the assertion that the concept of maladministration was inapplicable to legislative bodies in the exercise of “direct legislative activity”.

On the other hand, it would be fair to say that the prevailing doctrinal opinion, not only among Czech authors, agrees with the Constitutional Court that, in the case of legislative activity or inactivity as such, State liability cannot be inferred. The discussion on the applicability of the concept of maladministration under Section 13 of the State Liability Act then appears superfluous. But is this truly the case?

2.2 Critical Analysis of the Opinion of the Plenum of 28 April 2009, File No. Pl. ÚS-st. 27/09, in Relation to Constitutional and Statutory Law-Making

In order to answer the question whether maladministration under Section 13 of the State Liability Act may also be applied to situations of legislative activity or inactivity, it will first be necessary to resolve the question of the existence of legislative liability of Parliament for legislative activity or inactivity. In this respect, it will be most appropriate to continue with a discussion of the case law of the highest courts, which, given the absence of specialist literature, constitutes the fundamental source with which this article may work.

In this respect, the opinion of the Plenum of the Constitutional Court of 28 April 2009, file no. Pl. ÚS-st. 27/09 (hereinafter also the “opinion”), is of central importance. In that opinion, individual arguments were formulated which more closely analyse the impossibility of considering legislative activity or inactivity to be maladministration and of establishing liability for legislative activity or inactivity as a whole. These arguments are then used by courts both for statutory law-making and subordinate law-making, although this is not entirely appropriate.

In the case in question, Parliament was alleged, by its legislative inactivity, which the Constitutional Court had already described as unconstitutional in an earlier finding, to have caused damage by failing to adopt legislation on the unilateral increase of rent envisaged by Section 696(1) of Act No. 40/1964 Coll., the Civil Code, thereby causing landlords to be unable to increase rent even where the rent received under the lease did not even cover the costs associated with maintaining the property. In this opinion, compensation was awarded which the Constitutional Court, apparently out of fear of possible precedential effects, did not describe as damages, but as compensation for unconstitutional limitation of the right to property. I leave it to each reader to consider whether they perceive a difference between compensation for “damage caused by legislative activity or inactivity” and “unconstitutional limitation of a right under Article 11(4) of the Charter”, on the basis of which “compensation for unconstitutional limitation of the right to property” is awarded in the opinion. I am of the view that compensation for damage in the Czech legal order has its constitutional basis precisely in the aforementioned Article 11 of the Charter, and that all further statutory regulation of compensation for damage implements this constitutional right. If Parliament, through its legislative activity or inactivity, breaches rules relating to the legislative process and damage arises as a consequence, it may then be inferred that Article 11 of the Charter has always been interfered with.

The Constitutional Court also used the constitutional complaint to express three basic arguments justifying its previously expressed view that liability cannot be inferred from legislative activity or inactivity and, consequently, that legislative activity or inactivity cannot be subsumed under official procedure within the meaning of Section 13 of the State Liability Act.

I will now attempt to outline the individual arguments to the reader and address them in such a way as to make apparent the shortcomings that the argumentation in question entails.

The arguments on the basis of which the Constitutional Court infers in the opinion the impossibility of deriving liability for legislative bodies are: 1) the inference of political responsibility from the activity of legislative bodies; 2) the prohibition on limiting the autonomy of such legislative bodies; and 3) the liability of public authorities only for the application of law.

The first argument is based on deriving political responsibility of the members of the legislative body and the related exclusion of legal liability. I addressed this argument sufficiently in the first article, and I will now attempt to focus on certain specific features arising for the legal order of the Czech Republic and to build on the argumentation used by the Constitutional Court in the opinion.

The Constitutional Court inferred that: “Parliament cannot be regarded as a public administration authority, a court or another comparable State body. This is particularly so where Parliament exercises its legislative power. Responsibility for the exercise of that power is primarily political.” The central idea of this argument is based on the fact that deputies and senators exercise their mandate personally in accordance with their oath and are not bound by any instructions (Article 26 of the Constitution). In this part, I shall merely refer to the discussion of the rules relating to the legislative process made in the first article of this series.

The position of the Constitutional Court is also worth considering in that it connects political responsibility only with Article 36(3) of the Charter. However, when applying Article 11(4) of the Charter, on which the aforementioned opinion of the Plenum is built, it no longer takes this argument into account at all, even though the discussion concerns the same State body.

I must admit that I cannot find the Constitutional Court’s motive for distinguishing in this way between de facto analogous situations which, however, apply on the basis of different provisions of legal regulations. Both situations may be described as misconduct of a legislative body. If, therefore, Parliament is described as a body based on a political foundation, this must be applied to all of its legislative activity or inactivity regardless of the norms that Parliament breaches by its legislative activity or inactivity. The Constitutional Court, however, completely overlooks this in its argumentation. At the same time, it does not point to any reason for a different approach in individual cases.

It may be concluded that the sphere of political responsibility is, according to the Constitutional Court, a kind of switch enabling legislative liability not to apply. The Constitutional Court is not, however, the only body to argue by reference to political responsibility, as is already apparent from the first article, in which it was shown that argumentation based on political responsibility is known to many legal environments of individual civil law States. It would certainly be appropriate, however, for the Constitutional Court to elaborate on this argument in greater detail.

The mere fact that Parliament derives its legitimacy from democratic elections cannot be a reason for Parliament not to perform its activity properly. I therefore cannot be satisfied with this conclusion of the Constitutional Court alone. On the other hand, it is evident that legislative power is, by its nature, a specific area. This, however, cannot without more lead to the rejection of liability for this area of the exercise of public authority. I emphasise that the specific nature of legislative power is certainly a reason for a very cautious approach to individual errors, and for less serious misconduct to be approached with restraint, limiting liability to the most serious cases within the framework of a qualified breach, as discussed in the first article. However, it is not possible, a priori and for these reasons, to deprive Parliament of liability for legislative activity or inactivity. This would introduce an unjustified inequality between public authorities exercising legislative power and all other public authorities, which are generally liable for the exercise of the powers entrusted to them. This applies all the more in cases where defective conduct of a legislative body in legislative activity or inactivity may have fatal consequences for a relatively unlimited number of addressees of the legal norms in question. This conclusion was, after all, also inferred by the Constitutional Court in the aforementioned finding of 22 September 1998, file no. I. ÚS 245/98, where it based its argumentation on the fact that: “The opposite interpretation would, in the opinion of the Constitutional Court, lead to a disruption of the balance between legislative, executive and judicial power,” to which no objection can be made, and with which passage I fully agree.

It therefore clearly cannot be concluded that legislative bodies are not liable for their activity or inactivity and that injured parties should be referred to political responsibility, which evidently will not compensate them for the damage incurred.

The second argument on which the rejecting view of the Constitutional Court’s opinion is built, namely the view rejecting the inference of legislative liability of Parliament and the assessment of legislative activity or inactivity as maladministration under Section 13 of the State Liability Act, is based on a fear of limiting the autonomy of the law-maker. The Constitutional Court infers that the establishment of liability for legislative activity or inactivity would lead to an impermissible limitation of the “room for manoeuvre of the legislator.”

One may fully agree with the view, considered purely as such, that liability for legislative activity or inactivity will typically be associated with the consequence of influencing that legislative activity or inactivity, which it must necessarily affect. If we leave aside legislative liability and the related obligation to compensate damage, the very system of checks and balances, to which the Constitutional Court itself refers in the opinion, presupposes the possibility of interfering in the activity of the legislative power by annulling legal regulations if they are contrary to a constitutional regulation.

The paradox is that the Constitutional Court is well aware of this when it points out that: “Although the limits of the legislator’s discretion are set by the constitutional order, the consequence of exceeding them is the possibility of annulment of the statute or a declaration of its unconstitutionality by the Constitutional Court,” thereby acknowledging the existence of rules regulating legislative activity or inactivity, by which such activity is influenced.

The Constitutional Court further adds in the opinion that not even the annulment of a legal regulation for conflict with the above-mentioned rules establishes an individual’s right to compensation for damage. Specifically, it states that: “Such an intervention by the Constitutional Court may, under certain circumstances, have an effect on the rights of an individual into which such a statute or gap in the statute has interfered (for example, the inapplicability of the statute in a particular case), but it does not establish an individual’s right to compensation for damage.”

The Constitutional Court again fails to state why liability for legislative activity or inactivity and the award of compensation for damage by a general court cannot be established in such cases. The conflict of a statute with the constitutional order is a typical example which I mentioned when constructing the rules relating to the legislative process, on the basis of which I inferred legislative liability. For the reasons set out so far, I cannot agree with this view.

In a situation where the Constitutional Court is competent to decide on the conformity of a statute with the constitutional order and, for this reason, to declare the statute unconstitutional, the question arises why these conclusions could not also be applied in favour of individuals who would subsequently turn to the general courts with a claim for compensation for damage arising in connection with an unconstitutional statute.

Moreover, the annulment of a statute itself on the ground of its conflict with a constitutional regulation is a much more intensive interference by judicial power in the activity of legislative power than an interference consisting in the subsequent award of compensation for damage caused by defective legislative activity or inactivity, which has merely a reparatory purpose. I make these conclusions not only in connection with the annulment of a statute for conflict with the constitutional order, because I am of the view that a breach of the rules relating to the legislative process is an objective state that can be assessed, and that the Constitutional Court need not interfere with the statute itself at all. However, given the fact that the assessment of the constitutionality of statutes in the Czech Republic belongs to the Constitutional Court, any claim for damage would probably necessarily be preceded by this legal opinion of the Constitutional Court concerning the unconstitutionality of the statute.

Such possible compensation for damage would not even be paid from the budgetary chapter of Parliament, which would influence the possible activity of this legislative body to a much greater extent. It is therefore questionable to what extent the award of damages caused by legislative activity or inactivity is capable of interfering with the autonomy of the will of the legislative body.

The conclusions of the judgment of the Supreme Court of 31 January 2007, file no. 25 Cdo 1124/2005, which point to the impossibility of regulating legislative activity or inactivity by rules relating to the legislative process, were refuted already in the first article. It can therefore only be repeated that it is not true that: “There is no and cannot be any rule or regulation as to how any deputy, senator, or parliamentary or senatorial club is to vote when adopting statutes.” It may thus be concluded that there may be more possible breaches of rules within legislative activity or inactivity than the highest courts are prepared to admit.

Only the third argument of the Constitutional Court’s opinion deals with the very nature of the concept of maladministration. The Constitutional Court infers that maladministration can be understood only as the exercise of public authority by individual public authorities in the “application of law”. It then follows this with the assertion that: “The liability of the State, or of the Parliament of the Czech Republic as a public authority, for the very exercise of legislative power, the result of which is not application, or an act of application of law, but a statute, is not expressly regulated in the constitutional system of the Czech Republic at either the constitutional or statutory level.” According to the Constitutional Court, the exercise of public authority by individual public authorities in the creation of law is therefore excluded from the concept of official procedure.

A similar view was subsequently adopted by the Supreme Court in its judgment of 26 September 2007, file no. 25 Cdo 2064/2005, in which it held that, where legislative activity is concerned, “these are not individual legal acts resulting from decision-making activity in specific matters,” and for this reason it rejected legislative liability.

Berka also draws attention to this within the Austrian legal order, stating that “liability exists (author’s note: only) for the conduct of an authority in the implementation of statutes,” and that, for this reason, “liability for legislative acts is excluded.” Likewise, Kerner does not consider “legislation to be the implementation of statutes.”

It is certainly useful for the application of Section 13 of the State Liability Act that the Constitutional Court provides a certain interpretation of the concept of maladministration. This interpretation is then restrictively limited to individual acts of application of law. At this point, however, the highest courts stop and no longer justify their restrictive approach towards legislative acts.

I will now attempt to summarise the above opinion and discuss it as a whole. From a critical perspective, the opinion in question may above all be described as unpersuasive in its argumentation. I also draw attention to a contradiction between points 13 and 18 of the opinion. According to the first of these points, the Constitutional Court infers that long-term unconstitutional inactivity of the legislator does not establish liability of the legislative body under Article 36(3) of the Charter. In point 18 of the opinion, however, it contradicts this view by stating that legislative liability in such cases is established under Article 36(3) of the Charter, but only where the fundamental right under Article 11(4) of the Charter is affected. This makes the reasoning of the opinion even less convincing. What the situation will be if other fundamental rights are affected by long-term unconstitutional inactivity is not stated in the opinion. By analogy, however, the same conclusion can probably be inferred, and a similar approach may be taken, for example, in cases of interference with the fundamental right to life and health, human dignity, freedom of expression, and others.

Höllander, although he agrees with the criticism made by the Constitutional Court in the opinion against Parliament concerning its failure to respect the legal opinion previously expressed by the Constitutional Court and the related long-term unconstitutional legislative inactivity, considers the remedy chosen by the Constitutional Court, which inferred compensation for damage directly from Article 11(4) of the Charter and not from Article 36(3) of the Charter, to be inconsistent both with the constitutional order and with Act No. 182/1993 Coll., on the Constitutional Court. According to him, liability for legislative inactivity cannot be inferred in this way purely on the basis of Article 11(4) of the Charter. He believes that: “The introduction of legal liability to compensate damage (harm) arising as a consequence of legislative inactivity, the unconstitutionality of which is stated in a decision of the Constitutional Court, represents a step having a constitutional dimension. It represents a step that changes the proportion of the relationship between the categories of democracy and the rule of law, parliamentary sovereignty and the separation of powers.”

The decision-making practice of the Constitutional Court confirmed that the view expressed in point 18 of the opinion was not considered by the Constitutional Court to be merely a theoretical concept, as the Constitutional Court subsequently decided in accordance with that view, with reference to Article 11(1) of the Charter, in its finding of 6 September 2011, file no. IV. ÚS 423/08.

1. Conclusion

One may therefore agree with Smutná and Svoboda when they state that the current case law of the Supreme Court and the Constitutional Court on the issue of legislative liability within the legal order of the Czech Republic, and the related legal research question consisting in the applicability of legislative activity or inactivity to maladministration under Section 13 of the State Liability Act, is very brief.

The approach of the highest courts may be described as disappointing if, in relation to such a significant issue, in which explicit statutory regulation is absent, they content themselves merely with the statement that legislative activity or inactivity cannot be described as maladministration, mostly only by reference to the fact that legislative liability cannot be inferred for the legal order of the Czech Republic and that the question in issue is therefore already superfluous. The highest courts, however, reach this conclusion without carrying out a deeper legal analysis, while the arguments of the Constitutional Court in the opinion are, as I have shown above, unconvincing.

To confirm these conclusions, I also refer to the reasoning of the judgment of the Supreme Court of 26 September 2007, file no. 25 Cdo 2064/2005, which was delivered before the opinion of the Constitutional Court, and in which the Supreme Court condensed its argumentation on this issue into a single sentence, stating only that: “The issuance of a normative legal act is not an official procedure of the Government, but rather the result of its law-making activity.”

It may therefore be concluded that the current “decision-making mood” of the highest courts does not consider legislative activity or inactivity of Parliament to constitute maladministration under Section 13 of the State Liability Act. For these courts, the decisive issue is not so much the application of the concept in question to legislative activity or inactivity of Parliament, but rather the issue of legislative liability as such. However, especially in view of the argumentation set out in the opinion, it may be inferred that the Constitutional Court does not consider legislative activity or inactivity to be acts of application of law and, for this reason, it may be concluded that if legislative liability were subsequently inferred in the legal order of the Czech Republic, the Constitutional Court would maintain its view and hold that legislative activity or inactivity does not constitute maladministration under Section 13 of the State Liability Act.

It is certainly possible to imagine, however, that these conclusions will be overcome and that a more extensive interpretation of the concept of maladministration will be adopted, together with the related inference of legislative liability for legislative activity or inactivity not only of Parliament.

Sources

Czech Monograph:

• PRŮCHA, Petr. Administrative Law: General Part. 8th supplemented and updated edition. Brno: Doplněk, 2012.

Foreign-Language Monographs:

• LEWINSKI, von Kai. Öffentliche Insolvenz und Staatsbankrott. Tübingen, 2011, p. 236.

• BERKA, Walter. Lehrbuch Verfassungsrecht. Vienna, 2006, p. 223.

Articles in Scholarly Journals:

• SVOBODA, Tomáš, SMUTNÁ, Veronika. On Liability for Harm Caused by Subordinate Law-Making. Právník, 10/2016.

• SVOBODA, Tomáš. On the Nature of “Crisis Measures”, Liability for Damage and Protection of Subjective Rights (Part 2). Právní rozhledy, 2021, No. 10.

• ŠAFÁŘ, J. Liability for Legislative Activity or Inactivity in the Czech Legal Environment. Právní rozhledy, 2025, No. 4, p. 116 et seq.

• ŠAFÁŘ, J. Liability for Legislative Activity or Inactivity in the Czech Legal Environment – De Lege Ferenda Reflections. Právní rozhledy, 2025, No. 7–8, p. 234 et seq.

Contribution in a Collective Volume:

• TICHÝ, Luboš, HRÁDEK, Jiří. State Liability for Legislative Activity. Prague: Centre for Comparative Law, Faculty of Law, Charles University in Prague, 2012.

Domestic Legal Regulations and Related Documents:

• Act No. 267/1992 Coll.

• Act No. 87/1991 Coll.

• Act No. 107/1995 Coll.

• Act No. 59/1969 Coll.

• Act No. 40/1964 Coll.

• Constitutional Act No. 1/1993 Coll.

• Resolution No. 2/1993 Coll.

• Act No. 82/1998 Coll.

Decisions of Domestic Courts and Other State Authorities:

• Finding of the Constitutional Court of 22 September 1999, file no. I. ÚS 245/98.

• Opinion of the Plenum of the Constitutional Court of 28 April 2009, file no. Pl. ÚS-st. 27/09.

• Finding of the Constitutional Court of 28 February 2006, file no. Pl. ÚS 20/05.

• Judgment of the Supreme Court of 31 January 2007, file no. 25 Cdo 1124/2005.

• Judgment of the Supreme Court of 26 September 2007, file no. 25 Cdo 2064/2005.

• Judgment of the Supreme Court of 27 May 2015, file no. 30 Cdo 2547/2013.

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