Czech Republic

In the Czech Republic, there have been no cases where citizens have brought a private actor to court for allegedly breaching the law by carrying out operations that contribute negatively to climate change, despite the fact that the Civil Code and Art. 35 of the Constitution explicitly recognise the right to a favourable environment.

Disputes between private actors in environmental matters are usually solved on the basis of the provisions protecting the rights of the neighbours (§ 1013 of the Civil Code). Under these provisions, the affected person may ask the court to order the owner to refrain from anything that would cause emissions which are disproportionate to the local circumstances and substantially restrict the normal use of the tract of land. However, this kind of protection is only available to owners and tenants, not the general public concerned. The claimant may also ask the civil court to issue a preliminary injunction in order to provisionally amend the conditions of the parties, or if there is a risk that the enforcement of the (subsequent) court decision could be threatened.

If emissions are the result of the operation of an enterprise or a similar entity which has been officially approved, a neighbour only has the right to financial compensation for the harm suffered as a result of the emissions, even where the harm was caused by circumstances which had not been taken into account during the first steps of the approval procedure. In the case of damages caused by hazardous operation, strict liability applies: a person who operates an enterprise or another facility which is particularly hazardous shall compensate the damage caused by the source of the increased danger (Act No. 89/2012 Sb., Civil Code).

It should be emphasized that under Czech civil law it is, however, difficult to substantiate the required causal nexus between droughts or floods and the operation of a particular facility.

In the Czech Republic, there have been no cases thus far where citizens have alleged that the state has breached the law because it has authorised a project that contributes to climate change or fails to adapt adequately to climate change.

The absence of specific climate cases could be explained by several reasons:

National climate laws concerning the emissions trading scheme and regulation of ozone layer depleting substances do not constitute a sound basis for judicial action, because they focus on very limited and mostly administrative issues. For example, the Air Protection Act (Act No. 86/2002 Coll.) does not provide a comprehensive regulation, since only a minor part on biofuels addresses the reduction of greenhouse gas emissions and promotion of renewable energy;
Decision-making process in the Czech Republic is overly complicated and involves several stages;
Restricted procedural remedies.

Potentially, an individual may bring a case against a public actor charged to authorise, for example, a major infrastructure project.

The procedural requirements for a legal action against public actors depend on the protection sought by an individual or NGO. There are four main types of judicial protection before administrative courts: 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).

In the case of legal action against an administrative decision, individuals may challenge the decision if they meet the requirements of access to justice set out in the Czech Administrative Justice Code (Act. No. 150/2002 Coll.). Individuals must be directly affected by the decision and must exhaust all appropriate remedial actions before the submission of a complaint. This represents an obstacle in climate change litigation as it is assumed that climate change issues are somewhat a vague concept which does not affect the individuals in particular cases concerning their rights or duties. NGOs do have standing in such cases if they are able to demonstrate a close relationship to the issue at question in order to claim a violation of the right to the favourable environment [Judgment of the Czech Constitutional Court (2014), No. I. ÚS 59/14]. The courts will only quash an administrative decision provided that: 1) it truly does not comply with obligations leading to a rise in greenhouse gas emissions and there is no other way to fulfil these obligations, and 2) this fact renders the authorisation illegal.
In the case of an action against an MGN, the only action possible is judicial review, and the action is restricted to the rights of the plaintiff. Judicial review can only by undertaken by regional courts at the first-degree level and the Supreme Administrative Court as Cassation. At the level of the first-degree, the regional court is competent to try actions against the decisions of the administrative authority, actions against inactivity, actions against unlawful intervention, and electoral matters. The Supreme Administrative Court is solely authorised to conduct proceedings regarding political parties and political movements, adopt decisions with regard to competence actions, and vacate the measures of a general nature.
In the case of unlawful interference, the court would have to agree that the inability or unwillingness of the state or public actor to comply with international climate change obligations would result in such interference.
In the case of protection against a failure to act, the court’s scope of review is restricted to the omission to adopt a decision in administrative proceedings and does not extend to the omission to adopt an MGN.

Legal actions may challenge the regional and municipality urban planning and environmental impact assessment (SEA and EIA), as well as most of the decisions in the subsequent authorisation procedures. Indeed, the most important arguments regarding negative impacts of a project on the environment can be found within the scope of the land use permitting procedure. Consequently, the EIA procedures are highly relevant to environmental actions, and potentially, to climate litigation. However, it is not possible to challenge the EIA independently, since it is not a decision and merely serves as a basis for the administrative decision on the project (i.e. land use permit). To be a potential avenue for a climate case, an EIA needs to include climate considerations; however, the consideration of climate change would then be only secondary, the validity of the EIA representing the main legal issue discussed by the courts.

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.