Legislative Activity or Inactivity of Bodies of the Executive Branch as Maladministration under the State Liability Act

22. 08. 2026

1. Introduction

The previous parts of this series were devoted first to the general definition of legislative liability in the Czech legal environment, then to reflections on its possible future normative formulation, and subsequently to a critical analysis of the case law concerning legislative activity or inactivity of Parliament.

The discussion so far has therefore proceeded from theoretical foundations, through de lege ferenda considerations, to an analysis of decision-making practice in relation to constitutional and statutory law-making. The natural conclusion of the entire series is therefore now to focus attention on the area of subordinate law-making, that is, on the legislative activity or inactivity of bodies of the executive branch.

It is precisely in this area that the tendency of the highest courts becomes particularly apparent: they adopt, without more detailed differentiation, conclusions originally formulated in relation to Parliament and apply them also to the law-making activity of the Government, ministries, other administrative authorities, territorial self-governing units, or professional self-government. Such an approach, however, gives rise to doubts. Subordinate law-making differs from statutory law-making not only in its constitutional basis, but also in its function, the degree to which it is bound by statute, the intensity of discretion, and the nature of the liability of the entities exercising it. For this reason alone, it is not self-evident that arguments developed in relation to the legislature must be equally persuasive in relation to bodies of the executive branch.

This final article therefore focuses on the question of whether legislative activity or inactivity of bodies of the executive branch can truly be excluded, without further consideration, from the framework of maladministration within the meaning of Section 13 of Act No. 82/1998 Coll. Its aim is both to describe the individual forms of subordinate law-making encountered in the Czech legal order and to examine the strength of the arguments on the basis of which current case law rejects liability for harm caused by this law-making activity.

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

The purpose of this article is therefore not to reopen the general theory of legislative liability, nor to repeat proposals for future legislative solutions, which were addressed in the previous articles. Its purpose is to conclude the entire discussion with a critical view of the last significant area of the law-making activity of public authority and to ask whether existing decision-making practice sufficiently distinguishes between the individual forms of legislative activity or inactivity, or whether, on the contrary, out of the convenience of argumentative shorthand, it extends conclusions made in relation to the legislature even to situations where they lack a sufficiently firm basis.

Conceived in this way, the final article aims to conclude the entire series not only by describing the current state of affairs, but also by critically assessing whether Czech case law, in the matter of liability for the law-making activity of public authorities, offers a truly systematic, internally consistent, and constitutionally persuasive solution.

1. Legislative Activity or Inactivity of Bodies of the Executive Branch

2.1 General Discussion

The case law of the highest courts on liability for subordinate law-making takes an almost identical position to that adopted in relation to liability for constitutional and statutory law-making carried out by Parliament. This has led to the subsumption of the legal opinions expressed in the decisions analysed above, which relate to liability for activity or inactivity in the adoption of constitutional statutes and statutes.

In this context, reference may be made to the discussion provided in this article concerning the opinion of the Plenum of the Constitutional Court of 28 April 2009, file no. Pl. ÚS-st. 27/09 (hereinafter also the “opinion”), the conclusions of which are fully adopted also for decisions on liability arising from subordinate legislative activity or inactivity.

I will now attempt to explain why, in light of the introductory discussion, I do not consider the adoption of conclusions made in the opinion in relation to statutory law-making to be an appropriate or fortunate solution.

2.2 Individual Forms of Legislative Activity or Inactivity of the Executive Branch

In its judgment of 26 September 2007, file no. 25 Cdo 2064/2005, the Supreme Court dealt with a case in which the appellant claimed compensation for damage caused by a government regulation that had been annulled by a finding of the Constitutional Court of 23 May 2000, published under No. 167/2000 Coll. In relation to this government regulation implementing Section 17(5) of Act No. 48/1997 Coll., “the court concluded that, pursuant to this provision, which was lex specialis in relation to Act No. 526/1990 Coll., on Prices, the Government was authorised to determine the value of points and the amount of flat-rate payments, but not any further amounts or limitations, and therefore exceeded its authority”; for this reason, the Government acted ultra vires.

Specifically, in the aforementioned regulation, the Government set for operators of non-state healthcare facilities providing healthcare covered by public health insurance the value of points for individual services, which it limited by time (the number of hours per calendar day) and by quantity (a percentage of the comparative volume of reimbursement), and it also provided for a reduction of reimbursement for care provided if those limits were exceeded. The appellant was allegedly caused damage by the fact that the General Health Insurance Company reduced reimbursement for the care provided in accordance with the above-mentioned government regulation.

The Supreme Court did not award the claim, referring to the conclusions of the Constitutional Court, which in its finding of 23 May 2000, published under No. 167/2000 Coll., concluded 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 within the meaning of 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 law-making activity. If the law-making activity or inactivity of a public authority cannot be assessed as maladministration, it is also not possible to infer the liability of the State 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.”

This opinion of the Supreme Court was subsequently confirmed also by the Constitutional Court, which in its finding of 8 July 2010, file no. Pl. ÚS 36/08, fully agreed with the opinions of the Supreme Court and relied, without more, on the cited decision of the Supreme Court. In the case in question, the complainant sought, inter alia, the annulment of Section 13 of the State Liability Act, arguing that the provision was contrary to Article 2 of the Charter. This was allegedly because “maladministration” has no statutory definition, which, given the multitude of forms of activity in the exercise of public powers, causes considerable vagueness of the concept. In application practice, this leads to all law-making activity being immune from liability, even in cases where the legislative body exceeds its authorisation in the implementing legal regulation. According to the complainant, this causes such bodies to be able to exceed their authorisation without limitation and arbitrarily, without the State being liable for those bodies and the damage caused by them, which is contrary to the principles of the rule of law.

The Senate and the Chamber of Deputies submitted observations in the matter stating that the definition of maladministration is sufficiently specific and therefore not vague. During the discussion and approval of the draft State Liability Act, no objections were raised that would point to the vagueness of Section 13 of that Act. In addition, 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 and not 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 general courts, through proper methods of legal interpretation, to clarify the content of the concept in question. I fully agree with this view, since it follows from the nature of the relationship between the creation of norms generally and their subsequent application that it is not possible to specify unequivocally the situations to which the norm in question is to apply; this is a task for the courts. The opposite conclusion would be contrary to the separation of powers in the State.

Likewise, the Constitutional Court did not agree with the complainant’s view that, through the use of methods of interpretation, almost any procedure contrary to legal regulations could be subsumed under the concept of maladministration, which would establish the alleged conflict with Article 2(2) of the Charter. Melzer is of the opinion that, when methods of interpretation are used correctly, there is always only one solution, with which I fully agree. Proper use of legal methodology, on the contrary, prevents courts from deciding purely according to their own discretion.

The question of the interpretation and application of the concept of maladministration in the proceedings in question arose because, in the original proceedings before the general courts, the complainant sought compensation for damage allegedly caused to him as an “operator of a non-state healthcare facility” by maladministration on the part of the Government in issuing a regulation setting limits on the value of healthcare provided and covered by health insurance, as a result of which reimbursement for healthcare provided was reduced. The difference between full reimbursement and the reduced reimbursement was then alleged to constitute damage which the complainant, relying on legislative misconduct, sought before the general courts.

Reference may also be made to the judgment of the Supreme Court of 15 June 2019, file no. 30 Cdo 5027/2014, which, referring to the opinion, inferred that: “Nor is the issuance of a normative legal act by the Government an official procedure; rather, it is the result of its law-making activity […] and also that the liability of the State for maladministration under Section 13 of the State Liability Act must be strictly distinguished from the liability of the State for breach of EU law.”

It follows from these conclusions that current decision-making practice is not inclined to interpret maladministration under Section 13 of the State Liability Act as covering the normative activity of the Government, just as is the case with law-making carried out by Parliament.

The judgment of the Supreme Court of 21 April 2009, file no. 25 Cdo 1893/2008, addresses a similar question of the applicability of Section 13 of the State Liability Act in connection with an annulled decree of the Ministry of the Interior of the Czech Republic. The Supreme Court, consistently with the above conclusion, stated that: “Decrees and measures of ministries are normative legal acts of a central state administration authority, characterised by their abstract and general nature; they are not individual legal acts resulting from decision-making activity in specific matters. Decrees and measures of ministries are a manifestation of so-called derived law-making by the ministry, that is, the result of its normative activity and not its official procedure giving rise to State liability under Act No. 82/1998 Coll. The same may, after all, be said of normative legal acts of the Government.” In this way, it rejected the possibility of considering not only the procedure for issuing regulations of ministries and other central administrative authorities, but also the measures issued by them, to constitute maladministration.

The highest courts will probably take the same approach in this matter also to regulations of administrative authorities and other forms of subordinate normative activity, although the case law of these courts has not addressed these forms and no circumstances are known that would justify different decision-making conclusions.

Given the legal opinion of the Constitutional Court expressed in the opinion, whose principal argument for the impossibility of considering legislative activity or inactivity to be maladministration is, among other things, its “normative” nature, the Constitutional Court would probably reach the same conclusion in connection with the issuance or non-issuance of internal normative acts within the hierarchical structure of state administration. In these cases, however, the legal opinion of the highest courts can only be inferred hypothetically, as this question has not yet been clarified in case law.

These internal normative acts are issued within the hierarchical structure of state administration, within relationships of subordination and superiority (for example, government resolutions). In the case of internal normative acts issued within the hierarchical structure of state administration, possible liability for damage arising from normative activity or inactivity is not conceivable, in view of the absence of their general binding force. Through these internal normative acts, state administration limits itself within relationships of superiority and subordination; for this reason, damage resulting from such normative activity or inactivity can theoretically arise only to state administration itself. Natural and legal persons may be affected by this type of normative activity or inactivity only indirectly, through forms of activity that may be described as individual acts already directed towards such persons. In such an individual act, typically a decision, the normative activity or inactivity of the hierarchically superior administrative authority is then immediately reflected. It is typical of internal normative acts based on hierarchical relationships that the possibility of their issuance is not laid down in individual regulations, but follows from the hierarchical relationship itself, in which the superior entity is authorised, in accordance with the law and other legal regulations, to direct the activity of subordinate administrative authorities. Their issuance will typically be considered desirable where the decision-making practice of individual subordinate authorities is inconsistent in matters involving discretion and needs to be unified.

Individual administrative acts affected in this way by the law-making activity or inactivity of the superior authority may then be defective. Such a defect cannot arise purely on the basis of the activity or inactivity of the superior authority that issued or failed to 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, compensation for damage cannot be contemplated on the basis of maladministration under Section 13 of the State Liability Act; instead, reference must be made to Section 7 of the same Act, which applies to unlawful decisions.

It would certainly be a mistake not to mention statutory regulations as abstract normative acts governing internal relations within territorial, professional and interest-based self-government. In connection with professional law-making, reference is then made to professional rules or regulations.

Professional regulations are issued by self-government, which administers part of public affairs connected with the exercise of a particular liberal profession. The State Liability Act does not address professional self-government in any way, as it reflects only territorial self-government. At present, however, the prevailing view is that the State Liability Act may also be applied analogously to professional self-government. This is inferred above all by the Constitutional Court, which in its finding of 28 February 2017, file no. IV. ÚS 3638/15, held that: “Although the conclusion is correct that disciplinary proceedings may be considered an exercise of public authority, since it is not the exercise of state administration but the exercise of decentralised public administration – professional self-government – liability for damage under Act No. 82/1998 Coll. cannot be applied because, for an unknown reason, it does not regulate it. It regulates only the liability of territorial self-governing corporations in the exercise of self-government. By analogy, it may be inferred that in the case under review the liability is not that of the State, but that of the professional self-governing corporation itself – the Czech Bar Association.” Professional self-governments may therefore, by analogy, be granted the regime of territorial self-governing units in the exercise of independent competence regulated by the State Liability Act. Legislative activity or inactivity of bodies of professional self-government will therefore also be regarded as normative legal acts in respect of which legislative liability is excluded, although all case law of the highest courts has always addressed only liability for individual administrative acts and did not wish to interfere with the issue of normative activity of these public-law corporations. Nevertheless, it is necessary to infer here as well the applicability of the judgment of the Supreme Court of 13 April 2011, file no. 28 Cdo 542/2011, which I discuss in more detail in the context of law-making by higher territorial self-governing units, and I therefore refer to that discussion below.

I disagree with Kopecký’s view that the State should be liable for the conduct of professional self-government, since it restricted its own competence in favour of that self-government. He justifies this by stating that: “This solution would probably better reflect the constitutional nature of the right to compensation for damage and would guarantee injured parties the same conditions for a claim for compensation for damage, for example absolute objective liability of the liable person, limitation periods, and so on.” There is no doubt that this far-sighted opinion would certainly guarantee a more secure position for potential injured parties, whose damage would be covered by the liability of the State. However, this solution is evidently unsystematic in the legal order of the Czech Republic, as it could also call into question the liability of higher territorial self-governing units in the exercise of independent competence. At the same time, this solution significantly disrupts the distinction accepted in administrative law between holders and executors of public authority, according to which holders are responsible for the area of public authority entrusted to them.

For completeness, it must be added that if legislative liability were inferred, it would not be the liability of the State, but the liability of the public-law corporation of professional self-government, which is considered to be the holder of public authority and which is simultaneously responsible for its exercise. According to the view of the Constitutional Court expressed in its finding of 28 February 2017, file no. IV. ÚS 3638/15, it may therefore be concluded that the possible analogous applicability of the State Liability Act is generally possible. Although the Constitutional Court admitted obiter dictum the analogous applicability of the State Liability Act, the question nevertheless remains whether legislative liability can be inferred in the legal order of the Czech Republic; the Constitutional Court did not address this in the finding in question.

Higher territorial self-governing units exercise their legislative activity or inactivity in the form of regulations and generally binding ordinances. A regulation is a normative act associated with the exercise of state power, the exercise of which has, in accordance with the principle of deconcentration, been entrusted to higher territorial self-governing units, as I have already concluded above. Legislative activity or inactivity in the issuance of generally binding ordinances may then be described as the exercise of self-government by higher territorial self-governing units within the principle of decentralisation.

In view of the fact that what is characteristic of generally binding ordinances is precisely their general binding force, reference may be made in full to the conclusions already made in relation to the legislative activity or inactivity of administrative authorities regarding other generally binding normative acts. This may then be concluded by stating that possible legislative liability will also not be inferred in respect of generally binding ordinances.

This also follows indirectly from the above-mentioned judgment of the Supreme Court of 13 April 2011, file no. 28 Cdo 542/2011, in which the Supreme Court addressed compensation for damage caused by a generally binding ordinance in a case where the generally binding ordinance was so specific that, due to the absence of generality, this “generally binding” ordinance could rather be described as an individual legal act. In the case in question, the territorial self-governing unit issued a generally binding ordinance by which it shortened the opening hours at one address, that is, of one establishment, allegedly causing the operator harm in the form of lost business profit during the relevant period. The Supreme Court stated that: “Since this was not a restriction affecting all such establishments in the territory or in a certain part of the city, for example in the centre, this ordinance lacked a generally binding character and therefore cannot be regarded as a normative legal act. The purpose of generally binding ordinances is to regulate general matters and thus to apply to all cases of the same kind. Since, however, the legal act in question imposed an obligation only in relation to the specific establishment of the claimant, the result of the activity of this authority may reasonably be characterised as an individual legal act, as this form of activity regulates the specific rights and obligations of specific entities, which occurred in the present case as well.” The Supreme Court thus found the generally binding ordinance to be materially a decision, with the related possibility of inferring liability of the territorial self-governing unit under Section 7 of the State Liability Act. On the other hand, however, it also follows from the Supreme Court’s 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 it would not be possible to speak of maladministration under Section 13 of the State Liability Act.

The above clearly shows the position of the highest courts: they are evidently unwilling to infer legislative liability for legislative activity or inactivity of territorial and professional self-government. In relation to possible legislative activity or inactivity of other forms of self-government, the highest courts have not addressed this question even indirectly; however, similar conclusions can clearly be inferred.

At this point in the article, a partial conclusion may be made for the sake of clarity. It may be concluded that, even in relation to subordinate law-making, the highest courts have not provided deeper and more erudite considerations as to why normative activity or inactivity cannot be considered maladministration. All possible considerations concerning legislative liability for subordinate law-making have ended almost before they began. In the reasoning of decisions, reference is made to decisions relating to statutory law-making, and those conclusions are then adopted without more also for the purposes of decisions concerning subordinate law-making. For this reason, the position of the highest courts may, to a certain extent, also be applied to other forms of subordinate law-making activity or inactivity, such as regulations of regional administrative authorities or law-making by higher territorial self-governing units, as well as other internal normative activity or inactivity.

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

As has already emerged above, the highest courts sometimes adopt, almost blindly, the argumentation in favour of the impossibility of using maladministration in matters of subordinate law-making from the reasoning of decisions concerning liability arising from statutory legislative activity or inactivity. For this reason, I will return to the opinion and attempt to analyse it more closely, with a focus on subordinate normative activity.

The argument based on political responsibility is highly inapt for subordinate law-making. The executive branch does not derive its legitimacy from democratic elections and is therefore not predominantly based on a political foundation. Some bodies are deliberately stripped of political influence, that is, depoliticised.

The most politically influenced public administration body is undoubtedly the Government, which is authorised to issue regulations for the implementation of statutes and within their limits. This conclusion may be reached in view of the Government’s dependence on the Chamber of Deputies. The Government is derived from the Chamber of Deputies, and the Chamber of Deputies exercises continuous control over the Government, above all through the possibility of expressing no confidence, interpellations, or control carried out by bodies of the legislative assembly. Kysela also mentions the Government’s responsibility towards the Senate and citizens within the framework of ongoing accountability, as responsibility for conduct, which he terms “accountability”.

A very similar situation arises in the case of ministries and other central administrative authorities, which are authorised 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 authorised to do so by Article 79(3) of the Constitution, with the difference, compared with government regulations, that their issuance requires explicit statutory authorisation.

A ministry is always headed by a minister, who is part of the Government, which, as already stated, is founded on a political basis within the organisation of executive power to the greatest extent. Another central administrative authority is headed by a chairperson or a head bearing another title, who is typically appointed to office by a government resolution. It is clear, however, that the further the law-making body is removed 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 in relation to other administrative authorities. This is apparent in the case of so-called territorial deconcentrated authorities endowed with the power to issue subordinate normative acts. In their case, it will be difficult to infer political responsibility, and the responsibility of individual employees of administrative authorities will be regulated by Act No. 234/2014 Coll., on Civil Service.

On the other hand, a certain political responsibility may be seen in the issuance of generally binding ordinances by higher territorial self-governing units within their independent competence. These are issued by assemblies elected to office by the citizens of the respective territorial self-governing units.

A different situation arises when such territorial self-governing units issue regulations in delegated competence. Regulations are issued by councils of higher territorial self-governing units, which derive their function from the assemblies, and the situation is therefore seemingly similar to the relationship between the Government and the Chamber of Deputies. It must be emphasised, however, that the argument of political responsibility is considerably weakened in the issuance of regulations by councils of municipalities with an authorised municipal office, so-called “type II” municipalities, and municipalities with extended competence, so-called “type III” municipalities. These councils issue regulations not only for the electoral districts from which the assembly to which the council is responsible emerged, but also for other addressees who do not fall within the electoral district in question, thereby regulating the legal position of individuals to whom the assembly is not politically responsible. This phenomenon is often criticised in the specialist literature and is considered a democratic deficit.

If I questioned the aspect of political responsibility in statutory law-making, it is evident that even greater reservations must be raised here. Political responsibility weakens in proportion to the “systemic distance” of the administrative authority from the Chamber of Deputies. It is entirely evident that political responsibility cannot be inferred, for example, in relation to 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 opinion of the Plenum of 28 April 2009, file no. Pl. ÚS-st. 27/09, is the limitation of the autonomy of the will of the law-maker. As with the previous argument, a certain inaptitude may also be objected to here. Subordinate law-making is, by its nature, derived from statutory law-making, which it also implements. It specifies the rights and obligations laid down by statute, from which it must not depart.

The nature of subordinate law-making is based on the limited autonomy of the law-maker, and the room for manoeuvre is substantially smaller here than in statutory law-making. Not only must subordinate law-making comply with the constitutional order, as is the case with statutory law-making, but it must also comply with statutes, and explicit statutory authorisation for its issuance is typically required.

Skulová states in this context that: “The space for one’s own discretion as to whether such a normative act should be issued at all for the regulation of certain areas, and to choose its specific content and method of regulation, is typical for the sphere of self-government, represented by public-law corporations. In the issuance of normative acts within the exercise of state administration, whether directly by State bodies or by other approved entities […], the exercise of discretionary power is necessarily considerably more limited, with a more precise definition of the content of the regulation, while the issuance of some of these acts is directly imposed as an obligation.”

In my opinion, it is not entirely appropriate, in connection with subordinate law-making, to consider an impermissible limitation of autonomy of will in connection with the enforcement of liability for legislative activity or inactivity, since the primary task of the executive branch is not to create legal regulation, but merely to supplement it; historical experience clearly shows that otherwise the consequences may be fatal.

Perhaps the only exception may be found in the issuance of generally binding ordinances by higher territorial self-governing units, which have a freer power in this normative form. No special statutory delegation is required for their issuance; authorisation is granted directly by the Constitution in Article 104(1).

Until 2007, the Constitutional Court held the view that explicit statutory authorisation was necessary for the normative regulation of a particular issue. The Constitutional Court later reassessed this position, as a result of which higher territorial self-governing units no longer need any special statutory authorisation to issue generally binding ordinances, not even where obligations are imposed by such an ordinance. The only condition is that the generally binding ordinance regulate an area defined under 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 formulated very generally and for this reason provide municipalities and regions with considerable discretion.

The final argument pointed to the condition of the application of law for establishing an official procedure, or an incorrect official procedure, under Section 13 of the State Liability Act. Even here, it is not possible to infer a clear exception and to apply this argument to subordinate law-making. In relation to the arguments requiring the autonomy of the will of the law-maker to be permitted, I referred to subordinate law-making as law-making implementing statutory regulation. Its nature is based on the application of law, or statutory regulation, to which subordinate law-making is subject 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, as a result, issues an individual legal act, and in a case where the same administrative authority issues a subordinate legal regulation, to which it was explicitly called by statute. Personally, I see no reason that would justify this different approach based on the argumentation from the aforementioned opinion.

This problem is all the more apparent in connection with the issuance of measures of a general nature. A measure of a general nature is, by its nature, a hybrid on the boundary between an individual legal act and a normative act. The question therefore is whether the concept of a decision should be interpreted more broadly for the purposes of applying the State Liability Act, so that a measure of a general nature is included under the concept of a decision under that Act, thus allowing an extensive interpretation of the concept of decision. Current case law also inclines towards this conclusion. In this context, it may be inferred that this form of activity is already considered an act of application of law, which also undermines the conclusions that subordinate law-making is not an act of application of law.

The Austrian constitutional norm provides that: “The Federation, Länder, districts or municipalities, and other corporations and institutions under public law shall be liable for damage caused in the implementation of laws.” In this way, the Austrian legal order allows the recovery of damage caused by the above-listed bodies by reason of legislative activity or inactivity in the area of issuing regulations. Although a regulation is formally an act of law-making, this normative activity is considered an act of “application of law”.

The argument of maladministration as exclusively the “application of law” therefore runs into the specific nature of subordinate law-making, which, like individual legal acts, depends on a statutory basis; of all three arguments, this is the least apt. In some legal orders, subordinate law-making is considered an application of statutory regulation, and therefore this legal argument does not arise in those legal orders at all.

If I reflect on the applicability of the argumentation of the opinion to subordinate law-making and conclude the above discussion, it may be stated that the assumption of political responsibility can hardly withstand scrutiny in relation to the law-making activity of bodies that are, by their nature, depoliticised. In the case of the others, political influence is also considerably weaker than in the case of Parliament. The prohibition on limiting the autonomy of the will of the subordinate law-maker is, by its nature, relative. This argument primarily runs up against the binding of the executive branch by the legislative branch and the nature of subordinate law-making, which is always dependent on constitutional and statutory law-making. The least apt argument in relation to subordinate law-making appears to be the objection based on the application of law as a prerequisite for official procedure. Subordinate law-making is existentially dependent on the application of statutory and constitutional norms, which enable administrative authorities to supplement rights and obligations in accordance with the law.

What is particularly apparent from the above is that courts have a tendency to apply conclusions made in relation to statutory law-making also to subordinate law-making in a blanket manner, without taking into account the specific features characteristic of this type of law-making. For this reason, the reasoning provided in the decisions analysed above cannot be considered sufficient, and courts should examine more closely the material essence of normative activity in relation to individual bodies of the executive branch separately. It is therefore possible to identify a certain effort on the part of the highest courts to make their decision-making activity in this subordinate area easier.

Conclusion

In this final article, I have attempted to outline more closely for the reader the current decision-making practice of the highest courts in cases where a claimant asserts an alleged claim for compensation for damage allegedly caused to him or her by the legislative activity or inactivity of public authorities as maladministration under Section 13 of the State Liability Act. Such a claim will most likely, indeed almost certainly, be rejected with reference to the opinion, supplemented by the argument that legislative liability for legislative activity or inactivity has no place in the legal order of the Czech Republic and that any discussion of the applicability of the concept of maladministration will appear superfluous.

In order for the Constitutional Court to express itself on the applicability of the concept of maladministration to legislative activity or inactivity, it was necessary for the complainant in the proceedings file no. Pl. ÚS 36/08 to challenge the constitutionality of Section 13 of the State Liability Act. Although this at least imposed a certain degree of obligation on the Constitutional Court to address the concept in question more closely, I do not consider this to be an appropriate path for inferring legislative liability for legislative activity or inactivity, and I fully agree with the Constitutional Court’s argumentation opposing the complainant.

In relation to the argumentation made by the Constitutional Court in the opinion, I have pointed out that it does not rest on such firm foundations, despite what the general courts together with the Constitutional Court think and despite the fact that they adopt the argumentation of the opinion in their reasoning without further critical reflection.

If the argumentation made in the opinion is subject to criticism in relation to statutory law-making, then the argumentation is all the more open to challenge in relation to subordinate law-making. None of the above arguments evidently legitimises the approach of courts when they consistently decide that the law-making process cannot be subsumed under official procedure.

Sources

Czech Monographs:

• MELZER, Filip. Methodology of Finding Law: Introduction to Legal Argumentation. 2nd ed. Prague: C. H. Beck, 2011.

• SLÁDEČEK, Vladimír. General Administrative Law. 4th updated edition. Prague: Wolters Kluwer, 2019.

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

• KYSELA, Jan. Legislation without Parliaments: Delegation and Substitution of Legislative Power. Prague – Beroun: Charles University, 2010.

• KADEČKA, Stanislav. The Law of Municipalities and Regions in the Czech Republic. Prague: C. H. Beck, 2003.

• SKULOVÁ, Soňa. Administrative Discretion: Basic Characteristics and Context of the Concept. Brno: Masaryk University, 2003.

Foreign-Language Monographs:

• BYDLINSKI, Franz. Grundzüge der juristischen Methodenlehre. 3rd edition. Vienna: UTB, 2018.

• KLECATSKY, Hans Richard. Notwendige Entwicklungen des österr. Amtshaftungsrechts. JBl, 1981.

Articles in Scholarly Journals:

• KOPECKÝ, Martin. Liability for Damage Caused by a Professional Chamber in the Exercise of Public Authority. Jurisprudence, 2017, No. 4/2017.

• POUPEROVÁ, Olga. “Independent Administrative Authorities”. Správní právo, 2014, Vol. 47, No. 4, p. 210.

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

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

• ŠAFÁŘ, J. Legislative Activity or Inactivity of Parliament as Maladministration under the State Liability Act. Právní rozhledy, 2026, No. XXX.

Legal Regulations and Related Documents:

• Constitutional Act No. 1/1993 Coll.

• Resolution No. 2/1993 Coll.

• Act No. 58/1969 Coll.

• Act No. 526/1990 Coll.

• Act No. 48/1997 Coll.

• Act No. 82/1998 Coll.

• Act No. 309/1999 Coll.

• Act No. 128/2000 Coll.

• Act No. 129/2000 Coll.

• Act No. 258/2000 Coll.

• Act No. 500/2006 Coll.

• Act No. 234/2014 Coll.

• Federal Constitutional Act No. 1/1930 BGBl.

Decisions of Domestic Courts and Other State Authorities:

• Finding of the Constitutional Court of 19 January 1994, file no. Pl. ÚS 5/93.

• Finding of the Constitutional Court of 23 May 2000, published under No. 167/2000 Coll.

• Finding of the Constitutional Court of 21 July 2000, published under No. 231/2000 Coll.

• Finding of the Constitutional Court of 11 December 2007, file no. Pl. ÚS 45/06.

• 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 8 July 2010, file no. Pl. ÚS 36/08.

• Finding of the Constitutional Court of 27 November 2011, file no. IV. ÚS 415/11.

• Finding of the Constitutional Court of 28 February 2017, file no. IV. ÚS 3638/15.

• Resolution of the Supreme Court of 8 December 1999, file no. I. ÚS 422/99.

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

• Judgment of the Supreme Court of 21 April 2009, file no. 25 Cdo 1893/2008.

• Judgment of the Supreme Court of 13 April 2011, file no. 28 Cdo 542/2011.

• Judgment of the Supreme Court of 27 October 2015, file no. 25 Cdo 3444/2013.

• Judgment of the Supreme Court of 16 November 2015, file no. 30 Cdo 1711/2015.

• Judgment of the Supreme Court of 8 August 2017, file no. 30 Cdo 3292/2015.

• Judgment of the Supreme Court of 11 September 2018, file no. 30 Cdo 3079/2016.

• Judgment of the Supreme Court of 15 June 2019, file no. 30 Cdo 5027/2014.

• Judgment of the High Court in Prague of 22 December 1995, file no. 7 A 83/94.

• Judgment of the Municipal Court in Prague of 7 November 2003, file no. 51 Co 304/2003.

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