Czech Legal Order Research Articles

Implementation of EU Regulations in Czechia

Abstract Implementation of EU regulations requires many changes in the Czech legal order. It is often necessary to repeal incompatible national provisions, provide for new penalties and provisions on competence of national institutions, or set up a new system only sketched by the EU regulations. Further, the implementation in Czechia has to match with the other parts of the Czech legal order to be effective. And it must comply with the Czech constitutional imperatives and legal drafting rules which follow from the principle of legal certainty and a rule of law. The main problem appears with European Parliament and Council regulations which establish only very general rules. Also, too many delegated and implementing regulations of the Commission are causing problems, specially when they have short implementation deadlines and change quickly. The article therefore contains examples of loopholes, presents methods to deal with them and sketches paths to be taken in the future.

How can legal interpretation change the legal order into legal disorder? (Lessons from the Czech Republic)

Abstract An opinion long prevailed in the Czech Republic that a judge is bound, in his decision-making, only by statutory law and by international treaties which, according to the Constitution of the Czech Republic, have priority over statutory law. The fact that a judge is bound by statutory law was mostly understood in that the judge is bound by the “word of the statutes”. A judge thus could not be formally bound by someone else’s interpretation of the statutes, i.e. by case law. However, both these basic assumptions began to change radically in the Czech Republic, especially following the adoption of the new Civil Code in 2012. This article therefore aims to present the transformations in the binding effect of case law in the Czech Republic at the beginning of the 21st century and, in doing so, it will concentrate on the yet insufficiently examined question of limits to judicial law-making in the sense of constructive interpretation of statutory law by courts. When a judge applies the law, and thus necessarily also interprets it, he must ask two fundamental questions: (i) Whether he/she is bound by interpretation of the statutory law which has already been provided by someone else, and the judge is thus obliged to adhere to this line of interpretation. (ii) How should he/she proceed in the interpretation, which comprises the question of what methods of interpretation he/she should use, in what order and what significance should be attached to these methods? The ambition of this article is to show why a “discursive” or “conditional binding effect of case law”, on the one hand, and a judge’s competence to interpret the law, on the other hand, can lead to fragmentation of the Czech legal order and contribute to transformation of the law from an order to a disorder, and how these unfavourable tendencies can be eliminated, or at least mitigated.

Anatocism in the Czech Tax Law

The paper examines legal disputes regarding the possibility of taking interest of interest (anatocism) payed by the tax administrators in the Czech legal order. The aim of this paper is to assess the outcome of the above-mentioned disputes and to determine whether the current legislation still allows taking interest on interest in tax law. Author draws conclusions mainly from case law of the Czech Supreme Administrative Court and uses analysis, synthesis and descriptive method.

The Rights of the Child at Risk

Mainly thanks to the United Nations Convention on the Rights of the Child, its philosophy, ideas and principles, the Czech legal order was changed in early ´90 and later on, in connection with the Civil Code in 2012. The child is no longer conceived as a passive object of his or her parents´ activities, their parental responsibility, but as an active subject with legally guaranteed rights. However, not only ‘law in books’ is relevant. There is still ‘bad practice’ connected with anonymous or hidden child delivery, abandoning new born children in ‘baby-boxes’ and older children in institutional care, although the state has attempted remedies. Besides, the number of divorces has increased in the Czech Republic over the last couple of decades, while in the last few years there are more marriages, and the divorce rate is no longer so alarming. However, the statistics reveal that minor children have not been an ‘obstacle’ to a ‘radical termination’ of the matrimonial bond.
 The article aims at finding an answer to the question whether abandoning an unregistered child or applying for hidden identity by his or her mother makes the ‘way’ of the child to a substitute family by adoption easier. Further, an attention is paid to surrogate motherhood. These topics are linked to the right of the child to know his or her origin. As the harmony between biological, social and legal parentage and the model of ‘continuing’ parenting are values, the well-balanced rights and duties of both the child parents and the best interest of the child are stressed. The final words are focused on alternative measures and interdisciplinary collaboration, besides public law instruments.

Special case of temporary suspension of criminal prosecution (§ 159C and § 159D of the Criminal Procedure Code): an effective legal instrument in the fight against corruption or covert introduction of the institution of crown witness?

Corruption is one of the most dangerous phenomena of contemporary society. So it is no wonder that the legislator and the whole society are always looking for new ways to effectively combat such negative phenomena. However, corruption has one specific feature, which is high latency, compared to other forms of crime. Given that corruption is characterized by a high degree of latency, it is understandable that traditional means of criminal law are unable to ensure effective detection and prosecution of this type of crime. There is a relatively new procedural legal instrument in the fight against corruption in Section 159c and 159d of the Criminal Procedure Code. However, the question is whether this new provision is not merely a covert introduction of the institution of the crown witness into the Czech legal order.

Guarantee for the value added tax

The paper examines legal disputes arising from the questionable implementation of article 205 of the Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax into the Czech legal order. The main aim of the paper is to find out whether the provisions resulting from that implementation are applicable, and if so under what conditions. Author draws conclusions mainly from case law of the Court of Justice of the European Union and Czech Supreme Administrative Court and uses analysis, synthesis and descriptive method.

The Concept of Locus Standi in Collective Protection of Consumer Rights – the Pitfalls of Transposition of European Model into the Czech Legal Order

Summary The paper deals with collective protection of consumer rights from the European and Czech point of view. The attention is focused on the question of the concept of legal standing to bring a collective actions (i.e. locus standi) The article compares the legal regulation of legal standing to bring a collective action in the Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union law (2013/396/EU), in the proposal a new Directive of the European Parliament and of the Council on representative actions for the protection of the collective interests of consumers [COM/2018/184 final-2018/0089 (COD)] and the Czech bill for the Collective Redress Act.

Evropské energetické právo: vybrané novinky zimního energetického balíčku

The aim of this article is to briefly introduce the latest results of the European legislative process, the so-called winter package, in particular focusing on active consumers and capacity mechanisms, and put everything in context. At the end of the article there is a brief reflection on the appropriate way of incorporating changes into the Czech legal order and the attitude towards the energy union being built.

OPERATION AND ACTION OF A TRADE UNION (IN TERMS OF CZECH REPUBLIC LABOUR LAW)

Social dialogue constitutes an important part in the process of shaping of social relationships. The importance of social dialogue comes to attention particularly in connection with working conditions for employees. They also have the right to establish different forms of employee representatives so that their economic, social and cultural interests can be promoted and protected with a higher level of dignity and with greater force. A trade union represents one of the fundamental employees’ representatives recognized by law and it also has the right to bargain collectively. Collective bargaining leads to the conclusion of collective agreements that guarantee better working conditions for employees. The prerequisites for operation and action of a trade union within an undertaking differ according to national legislation. The presented article points out the terms and prerequisites of operation and action of a trade union within an undertaking in the scope of the Czech legal order. It brings to attention several application impacts of a trade union’s fulfillment prerequisites of its operation and action, as well as the yet unresolved issue of plurality of trade unions.

Challenges of the Implementation of the European Charter of Local Self-Government in Czech Legislation

In their recent rigorous analysis of the European Charter of Local Self-Government (Radvan, Mrkývka, Schweigl 2018), the authors elaborated the manner in which the Charter has been implemented into the Czech legal order. In this paper, the authors extended the previous analysis by focusing on the challenges connected with the incorporation of the Charta´s principles into the Czech legal order. They outlined the areas, in which the incorporation seems to be properly done, and pointed to a few areas which might be viewed as problematic, as for incorporating of the Charta´s principles. One of the most significant problems is that the distinction between the state-administration and self-administration was not carried out in a strict manner and this improper distinction may lead to enhanced conflicts of interest. Some problems might also be detected in the area of how a smaller municipality´s citizens may influence the policy of a larger municipality which provides state-administration for the residents of smaller municipalities.

Quo Vadis Open data?

New technologies have irreversibly changed the nature of the traditional way of exercising the right to free access to information. In the current information society, the information available to public authorities is not just a tool for controlling the public administration and increasing its transparency. Information has become an asset that individuals and legal entities also seek to use for business purposes. PSI particularly in form of open data create new opportunities for developing and improving the performance of public administration.In that regard, authors analyze the term open data and its legal framework from the perspective of European Union law, Slovak legal order and Czech legal order. Furthermore, authors focus is on the relation between open data regime, public sector information re-use regime and free access to information regime.New data protection regime represented by General Data Protection Regulation poses several challenges when it comes to processing of public sector information in form of open data. The article highlights the most important challenges of new regime being compliance with purpose specification, selection of legal ground and other important issues.

Proč nepotřebujeme člověka při legislativním vymezení pojmu fyzické osoby?

The aim of this article is to answer the question why we do not need “a man” in the legislative definition of a physical person. The author shows that in the Czech legal order we can identify two different possible approaches how to define according to the law what should be understood as a physical person. The first concept is based on a man to whom belong obligations and rights, while the latter concept is based on the ability to be a bearer of rights and obligations which belong not to a man, but to a physical or juristic person. The author believes that the second construction of a person is based on the pure legal science, which influenced precisely the construction of a person contained in the Civil Code of 1964 – this definition did not need “a man” to define the concept of a person.

Position of Judicial Officers in the Czech Republic in Comparison with other European Countries

Summary Main topic of this article is the comparison of the position of a judicial officer in the Czech Republic and in other European countries. First, it briefly presents the reasons why the institution of judicial officers has been (re)introduced to the Czech legal order. Further, it sums up the conception of the position of judicial officer in the Czech legal order, and with respect to actual critical reviews, it compares selected aspects of the conception of judicial officers in other European countries, with a special attention to so-called secondary activities of judicial officers and the issue of remuneration of judicial officers.

Rethinking emergencies and constitutional rights in a time of terror threat in the Czech Republic: a need for recalibration of emergency law?

Nowadays, governments are facing several security issues endangering directly security of state and individual freedoms; one of them is terrorism. Accordingly, terrorism endangers not only national security but also a paradigm of modern constitutionality by pushing governments to meet the terrorist threat on its own playground. Ensuring security and ability to defend state and citizens is one of the essential functions of modern democratic state based on the rule of law and it is also presupposition of every state's sovereignty. One of the instruments serving to ensure and preserve security of state and individuals are emergencies. When facing terrorist threat, governments usually stand before a difficult question: Should constitutional safeguards be ignored, suspend or even removed in time of terrorist threat? Should we activate 'emergency powers' which enable governments to overcome crisis and restore state of normalcy? More recently, another interesting question closely linked with relationship between terrorism and emergency follows the surface: Should governments adopt special state of emergency law to combat terrorism or can they operate sufficiently with existing regimes of emergency? This dilemma will be addressed in the context of Czech legal order.

9th Amendment to the Czech Competition Act

On 9 October 2012, the President of the Czech Republic signed Act No. 360/2012 Coll., amending Act No. 143/2011 Coll., on the Protection of Competition, as amended (the ‘Competition Act’), and Act No. 40/2009 Coll., the Criminal Code, as amended (the ‘Criminal Code’). The Amendment became effective on 1 December 2012.The main objective of the Amendment Act is to improve the effectiveness of detecting cartel arrangements by the Czech Office for the Protection of Competition (the ‘Office’). Many of the legal tools covered by the Amendment were already in use before its promulgation – either on the basis of existing soft laws of the Office or in fact, without any legal backing. Their introduction directly into the Competition Act is expected to increase legal certainty and thus make their use more effective. They include, most of all, the leniency programme and the settlement procedure. Seen as novel is the introduction of certain material consequences of both instruments particularly with respect to the range of potential penalties and criminal law consequences associated with them.The Amendment also expressly regulates the Office’s right to refrain from taking action against anti-competitive practices because of their minor harmful effects. The purpose of such ‘prioritisation’, which is a manifestation of the opportunity principle, is to free up the Office’s sparse resources in order to enable it to investigate more serious violations. Although this should be seen as a legitimate goal, it also entails risks which are addressed in this paper.Last but not least, the Amendment introduces a new power into the Competition Act which allows the Office to supervise public administration bodies in order to determine whether their activities restrict competition. This is quite a controversial step which could ultimately create the impression that the principles of competition protection take priority in the Czech legal order over all other national interests. This impression is strengthened by the general wording of the relevant provision.Each of these major amendments is described and thoroughly commented on in a separate section of this paper. The final part presents other changes introduced by the aforementioned Amendment Act relating mainly to jurisdictional and technical issues that might also be of interest.

International Documents on Landscape Restoration

In the theory and practice of cultural monuments protection, including garden art monuments and landscape protection, it has been often referred to international conventions and other international documents relating to this protection. Necessary condition for these documents to be adequately used in the practice is the precise understanding of their legal nature and a question arising therefrom, if and to what extent and to whom are those documents binding.The aim of this paper is to provide an analysis of the international documents relating to the landscape restoration. Following the analysis, the authors explore the scope and way of transposition of these documents and obligation arising therefrom into the Czech legal order. In the general part the authors analyse knowledge of the current jurisprudence on treaties and other international documents. They focus on the issue of the legal force of such documents, both on the international and national level. In the following part the authors deal with international documents on landscape restoration, explain legal nature of those documents and explicate whether the documents are formally legally binding or whether they may have other practical effects. The legally binding international treaties on the landscape protection include in particular the Convention on the Protection of the World Cultural and Natural Heritage (Paris, 1972) and the European Landscape Convention (Florence, 2000). As regard legally non-binding acts of international non-governmental organizations, the paper discusses the charters of the International Council on Monuments and Sites (ICOMOS), the Venice Charter of 1964 and the Florence Charter of 1981. Mentioned is also the Athens Charter (1933), respectively the New Athens Charter of 1998 dealing with the landscape in terms of the principles of urban planning.

OCHRANNÉ ZNÁMKY, OCHRANA SPOTŘEBITELE A DOMÉNOVÁ JMÉNA NA INTERNETU

The article deals with current problems of the conflict of domain names on the Internet with trade marks in relation to the consumer protection. The aim of the article is to refer to ways and means of protection against of the speculative registration of a domain name. In the Czech legal order these means represent legal regulation of the unfair competition in Commercial Code, regulation of liability for damage together with the Trademarks Act.

The Wild Arbitration Blows Retreat? On Implementation of the Unfair Contract Terms Directive in the Czech Republic

The EU Directive on unfair contract terms in consumer contracts (97/13/EEC) as a minimum harmonisation directive left Member States free to set up more intensive measures to protect consumers. However, the Czech Republic, stopping at the minimum level, allowed aggressive traders to incorporate in their form contracts arbitration clauses, which have led to a massive abuse of weak judicial control to the disadvantage of consumers. This paper focuses on the case-law of European Court of Justice on arbitration clauses in consumer contracts and its problematic implementation within Czech legal order as well as a welcomed recent shift in practice of lower Czech municipal courts.

Civil Law in the Czech Republic: The Draft Version of the Civil Code and Consumer Protection

Abstract: For a long time, work has been in progress in the Czech Republic on a new draft of the Civil Code, which is meant to be a modern codification of private law. The current Civil Code is from 1964, and, despite its 1991 amendments that brought it into harmony with democratic legal principles (the original code was a product of a socialist legislature that, among other things, subdued such institutes as private ownership, autonomy of will, and so forth), it is not up to date. Not only does it still preserve its socialist past, but also, its frequent amendments also turned it into a non-systematic codification of highly disparate elements. In addition, numerous obligations are regulated by the Commercial Code, which causes serious problems with its legal interpretation and brings uncertainty into civil law relations. The drafters of the new Civil Code have reverted back to the original tradition Allgemeines Bürgerliches Gesetzbuch (ABGB), Code Civil, and the 1937 Civil Code draft), without, however, taking into consideration some modern trends in civil law, namely, consumer protection and tendencies towards the unification of law. The article focuses on the issue of consumer protection in the draft proposal of the Civil Code, reflecting on the most contested issues of the legal regulation of consumer protection. In particular, it reacts to the change in the concept of the consumer, the lowering of the standard of consumer protection in the case of the sale of goods in shops, and the insensitive appropriation of terminology from EC law into the Czech legal order, which often happens without regard to the institutes of Czech private law, mainly the law of obligations. Résumé: En République Tchèque, on travaille depuis un certain temps sur l’élaboration d’un nouveau Code civi,l qui devra être un code moderne de droit privé. Le Code civil actuellement en vigueur date de 1964 et bien qu’il ait été amendé en 1991 afin de répondre aux principes juridiques démocratiques (le code primitif était le fruit de la législation communiste qui par exemple supprimait la propriété privée ou l’autonomie de la volonté etc.), il n’a pas su se débarrasser de son passé totalitaire et vu le nombre élevé d’amendements partiels, l’ensemble est peu systématique et hétérogène. Beaucoup d’obligations sont en plus réglées par le Code du commerce ce qui engendre maints problèmes d’interprétation, tout en jetant une insécurité juridique dans les rapports de droit privé. Les auteurs du nouveau projet du Code civil renouent avec la tradition première (ABGB, Code civil et projet du Code civil de 1937), mais ils se montrent négligents vis-àvis des trendances modernes de la théorie actuelle de droit civil, surtout de la protection du consommateur et des tendances d’unification. Or le présent article étudie les droits des consommateurs dans le projet du Code civil et cherche à réagir aux questions les plus délicates concernant la législation liée à la protection du consommateur dans le code préparé. Il réflète surtout le changement de la conception du consommateur, la baisse des standards de la protection du consommateur lors de la vente dans le magasin, aussi bien qu’une adoption peu a