Czech Republic

To this date, there is only one case challenging Czech Republic’s national climate policy. This can be explained by several reasons:

• There is no specific national law dealing with climate change;
• Climate policy is mostly embodied by the air pollution legislation and emissions trading regulation;
• Procedural law requirements remain an obstacle to environmental action popularis, as an applicant has to show that their individual rights have been affected in order to bring a case to the court;
• Large parts of the Czech climate change regulation are legally non-binding.

In Klimatická žaloba ?R v. Czech Republic, an ongoing case submitted to the Prague Municipal Court in April 2021, plaintiffs claim the failure of the government to act has led to unlawful interference with their subjective rights which are guaranteed by the Czech Constitution.

In general, there are two potential avenues for climate cases under this scenario:

First, regarding constitutional rights and access to the Constitutional Court, a petition proposing the annulment of a statute, or individual provisions thereof, may be submitted by the President, a group of at least 41 Deputies or a group of at least 17 Senators, a Panel of the Court deciding a constitutional complaint, the government or anyone who submits a constitutional complaint. This means that for individuals and NGOs, the access to the Constitutional Court is restricted to a specific case and a violation of their constitutional rights listed in the Czech Charter of Fundamental Rights and Freedoms. The protection of ownership and privacy is often invoked in environmental cases. The Charter also grants the right to a favourable environment (Art. 35), but its significance is diminished by Art. 41 which stipulates that it is enforceable merely through and in the scope of regular laws implementation.

Second, regarding Administrative Courts, an individual or NGO can bring a case against a public actor that allegedly does not comply with its climate change obligations. Four main types of judicial protection are provided by the administrative courts: an action against a decision of an administrative authority, protection against a failure to act, protection against unlawful interference, and judicial review of Measures of a General Nature (MGN). However, not all of these judicial routes enable individuals to challenge an overall act or omission by the legislator or government. Indeed, only the last three options can apply to this scenario.

Regarding actions challenging a MGN – which is defined as neither a piece of legislation nor an administrative decision – there is no administrative appeal allowed and the only possible legal remedy against a MGN is via judicial review. According to § 101a of the Czech Administrative Justice Code, any person who claims infringement of their rights by an MGN, is entitled to file a legal action against it. The standing of NGOs has been established by Czech Constitutional Court in its Decision No. I.ÚS 59/14. The scope of the review encompasses both procedural and material issues, but is restricted to the rights of the plaintiff. In addition, in the case of unlawful interference, the court would have to agree that the inability or unwillingness of the state to comply with international climate change obligations would result in such interference.

Finally, in the case of protection against a failure to act, its scope is restricted to the omission to adopt a decision in administrative proceedings. As a consequence, it cannot be used against the lack of will to adopt a specific policy or a MGN.