Dominik Zidek
Environmental protection in the
Constitution of the Czech Republic
Journal of Agricultural and
Environmental Law
31/2021
Dominik ZlDEK*
Environmental protection in the Constitution of the Czech Republic,**
Abstract
This article aims to analyse the constitutional order of Chechia and the decision-makingpractice of the courts
define the legal means of environmentalprotection at the constitutional level. The aim is also to proiide the read
with an essential insight into environmental protection in Chechia at the constitutional level so that the leg
regulation and decision-makingpractice can be compared with other countries.
Keywords: environmental protection, constitution, Czechia, the right to a favourable
environment, environmental information, restrictions.
1. Introduction
Vaclav Havel, the first Czechoslovak post-communist and then the first Czech
president, believed that the modern Constitution of the newly built democratic State
should not lack an ecological article.1
This was also the ethos of constitutional adoption
in other post-communist states. Thus, in the 1990s, the greening of constitutions in
post-communist countries was well underway, involving environmental protection
among constitutionally protected values and the adoption of progressive environmental
legislation.2
This effort resulted, among other things, in incorporating specific
provisions protecting the environment into the constitutional order of Czechia.
This article aims to analyse the constitutional order of Czechia and the decisionmaking
practice of the Constitutional Court in particular, but also of the Supreme
Administrative Court and other administrative courts, to define the legal means of
environmental protection at the constitutional level. The aim is also to provide the
reader with an essential insight into environmental protection in Czechia at the
constitutional level so that, among other things, the legal regulation and decisionmaking
practice can be compared with other countries.
The first chapter will set out the constitutional background and context for
environmental protection. In the following chapters (second, third and fourth), the
individual institutes of environmental protection in the Czech constitutional order will
Dominik Zidek: Environmental protection in the Constitution of the Czech Republic. Journal of
Agricultural and Environmental Taw ISSN 1788-6171, 2021 Vol. XVI No. 31 pp. 145-160,
https://doi.org/10.21029/JAEL.2021.31.145
Assistant Professor, JUDr., PhD, Faculty of Law, Masaryk University in Brno, the Czech
Republic; Constitutional Court of the Czech Republic, e-mail: dominik.zidek@law.muni.cz.
** This study has been written as part of the Ministry ofJustice programme aiming to raise the standard oflaw
education.
1
Chrastilova & Mikes 2003, 114.
2
Hanak 2016, 147.
https://doi.org/10.21029/JAEL.2021.31.145
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Dominik Zidek
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be analysed, namely the right to a favourable environment, the right to timely and
complete information on the State of the environment and natural resources and the
limitation of the exercise of other rights in favour of environmental protection. Finally,
an assessment of the analysed legislation and case law will be made. It should be noted
that a newly published commentary written by leading experts in environmental law
from the Faculty of Law of Masaryk University in Bmo and the Faculty of Law of
Palacky University in Olomouc served as a key source for the writing of this article,
especially in terms of a thorough review of the case-law mentioned therein.3
2. Constitutional background and context of environmental protection
The Czechia's constitutional order has reflected environmental protection in
several elements that are balanced against each other. This was due to the change of the
political regime after 1989 (the fall of the socialist establishment as a result of the Velvet
Revolution). The significant factors that contributed to its entrenchment were, in
addition to the above, also severe environmental pollution, the priorities of the
country's political leadership at the time, as well as the desire to be inspired by good
examples and to become a member of the European Union as soon as possible.4
The Constitution of the Czech Republic (hereinafter referred to as the
Constitution), as the highest law of the country, not only contains a reference to
environmental protection in its preamble ("We, the citizens of the C^ech Republic in Bohemia,
Moravia and Silesia [...] determined tojointly protect and develop the inherited natural and cultural,
material and spiritual wealth [...]") but also directly sets out the constitutional obligation of
the State to protect the environment, in Art 7 ('The State shall take care to use natural
resources sparingly and toprotect natural wealth.').
In this context, the Constitutional Court ruled in 1993 that the Constitution
"is not based on value neutrality. It is not a mere definition of institutions and processes but
incorporates into its text certain regulative ideas expressing the fundamental inviolable values of a
democratic society."5
One of the values on which the Constitution is based is the
environment. This has been confirmed by the Constitutional Court in its subsequent
decision-making practice, according to which in a democratic state governed by the rule
of law, "the environment is a value whoseprotection is to be implemented with the activeparticipation
of all components of civil society, including civil associations and non-governmental organisations which
have the status of legalpersons. Discourse within an open society, where appropriate by legal means and
in proceedings before the courts, is then an effective guarantee of the protection of the natural wealth of
the State. ' h
The Constitutional Court has referred to a 'healthy' environment as a public
good (public value), concluding that "it is typical ofpublic goods that the benefitsfrom them are
inseparable and people cannot be excludedfrom enjoying them. Examples ofpublic goods are national
3
Vomacka, Tomoszkova & Tomoszek 2020, 974-1031.
4
Ibid.
5
Judgment of the Constitutional Court of 21 December 1993, No. PI. US 19/93 (N 1/1 SbNU
1; 14/1994 Coll.).
6
Judgment of the Constitutional Court of 6 January 1998, No. I. US 282/97 (U 2/10 SbNU
339).
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security, public order, and a healthy environment. Therefore, apublic good becomes aparticular aspect
of human existence on condition that it cannot be conceptually, substantively or legally broken down
into parts and assigned to individuals as shares. ' 7
At this point, it should be emphasised that
the Constitutional Court referred to the public good not only as of the environment
itself, but as an environment of a certain quality ('healthy'), and added that it is a public
value protected by the constitutional order in Czechia, which is reflected in particular in
the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the
"Charter"), as the essential human rights catalogue of the Czech constitutional order.
The Charter also states in its preamble that the citizens of Czechia are aware of
their share of "responsibility towards future generations for the fate of all life on Earth" and
enshrines both the substantive subjective right to a favourable environment (in Article
35(1)) and the procedural right to timely and complete information about the State of
the environment and natural resources (in Article 35(2)), as well as the individual's duty
to protect the environment (in Article 35(3)). A detailed discussion of these three
individual environmental protection components will be made in chapters 2, 3 and 4 of
this article.
However, other provisions of the constitutional order are also related to the right
to a favourable environment. O n the one hand, an unfavourable environment can have
an immediate negative effect on a person's health, thereby interfering with the right to
health under Article 31 of the Charter or even leading to a restriction of the right to life
under Article 6 of the Charter.
In practice, however, the most frequent conflict arises between the right to a
favourable environment and the property right, not least because Article 11(3) of the
Charter provides that the exercise of the property right "shall not harm human health,
nature or the environment beyond the extentprescribed by law. "Thus, it is possible to identify
three specific purposes that the constitution maker pursued in enshrining this
legislation. Firstly, regulating the conflict between environmental protection and other
rights is thus specified in limits or the degree of permissible damage to the
environment. Secondly, the obligation to set the level of allowable environmental
damage is thus enshrined, even in those parts of the environment where the rights and
freedoms of individuals are not restricted. Finally, the third consequence is the explicit
enshrinement of the principle of the participation of all in the protection of the
environment (the principle of shared responsibility), which implies that, although the
protection of the environment is a constitutionally enshrined task of the State,
individuals must inevitably participate in its implementation and are also subject to
certain obligations or restrictions.8
Another related provision is Article 14 of the Charter, which regulates freedom
of movement and residence, closely linked to the right to a favourable environment.
This is manifested, for example, by the right to free passage through the countryside,
which is specified in sub-legislation, and this movement cannot be limited to recreation,
as is evident, for example, from the regulation of the general use of forests without
7
Judgment of the Constitutional Court of 9 October 1996, No. PI. US 15/96 (N 99/6 SbNU
213; 280/1996 Coll.)
8
Drobnik 2010,51.
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reference to their categorisation. Article 14(3) of the Charter provides for the possibility
of restricting freedom of movement on the grounds of nature protection.
Article 17 of the Charter enshrines the right to information in a general form and
thus constitutes a general provision to Article 35(2) of the Charter, which regulates the
right to timely and complete information on the State of the environment and natural
resources (see Chapter 3 of this Article for details). It is crucial for the relationship
between Article 17 and Article 35(2) of the Charter that the two provisions pursue
different purposes - in the case of Article 17 of the Charter, the basis for the control of
public authority, the exercise of political rights and the power of the management of
public funds. In contrast, in the case of Article 35(2) of the Charter, the main objective
is protecting the environment and the right to information on the State of the
environment.
Article 20(1) of the Charter, which guarantees the right to freedom of
association, is also significant to the right to a favourable environment, as
environmental associations play an essential role in protecting the environment.
An essential part of the right to a favourable environment is its procedural
component based on Article 36(2) of the Charter. According to the Charter, judicial
review of decisions relating to fundamental rights and freedoms under the Charter,
including all the components of the right to a favourable environment enshrined in the
Charter, must be provided for and cannot be excluded. In addition to access to judicial
protection itself, the effectiveness of judicial review is also crucial, particularly the
length of the judicial procedure and the use of the institution of the suspensive effect of
administrative action to avoid already irreversible damage to the environment.
It is therefore settled case-law that "the applicants from among the public concerned must be
granted their applicationsfor the grant of suspensive effect to administrative action in such a way that
situations cannot arise where, at the time the administrative action is decided, the authorisedproject has
already been irreversibly implemented. "J
Article 41(1) of the Charter is very relevant to the definition of the intensity of
environmental protection, according to which, among other things, the rights enshrined
in Article 35 of the Charter (see Chapters 2, 3 and 4 of this Article) may be invoked
only within the limits of the laws implementing them. The right to a favourable
environment thus belongs in the Czech constitutional order to the category of so-called
social rights, the limitations of which are examined by the test of rationality, not
proportionality, as is the case with other rights enshrined in the Charter. The rationality
test and the formulation of its steps have been repeatedly formulated by the
Constitutional Court in a somewhat different manner, taking into account the aspects
used10
, but their essence is identical. The rationality test consists of the following four
steps: 1. defining the essential content of the right; 2. assessing whether the claimed
9
Judgment of the Constitutional Court of 6 May 2015, No. II. US 3831/14 (U 7/77 SbNU 943),
judgment of the Constitutional Court of 15 May 2018, No. III. US 3114/17, judgment of the
Supreme Administrative Court of 14 June 2007, No. 1 As 39/2006-55, or judgment of the
Supreme Administrative Court of 29 August 2007, No. 1 As 13/2007-63 (No. 461/2008 Coll.).
1 0
See e.g. Judgment of the Constitutional Court of 27 January 2015, No. PI. US 16/14 (N 15/76
SbNU 197; 99/2015 Coll.), paragraph 85 vs. judgment of the Constitutional Court of 24 April
2012, No. PI. US 54/10 (N 84/65 SbNU 121; 186/2012 Coll.), paragraph 48.
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claim affects the core of the right (its actual content); 3. assessing whether the interests
opposing the claimed claim are legitimate (acceptable from a constitutional point of
view); and 4. consider whether the legislation relating to the claim is reasonable
(rational), though not necessarily the best, most appropriate, most influential or wisest,
in light of the legitimate competing interests. This test of rationality is then used to
assess, in individual cases, whether there has been an interference with the rights
protected by Article 35 of the Charter.
3. The right to a favourable environment
Article 35(1) of the Charter provides that "Everyone has the right to a favourable
environment.''The Constitutional Court observes11
that "The core of the right to a favourable
environment underArticle 35(1) is, in particular, the possibilityfor everyone to claim, in the manner
prescribed by law, the protection of the natural environmental conditions of his or her existence and
sustainable development, which corresponds to the positive obligation of the State to safeguard the
inherited natural wealth, to ensure the prudent use of natural resources and to protect natural wealth
(preamble and Article 7 of the Constitution). The positive obligation of the State thus consists, inter
alia, in protecting against interference with the environment to such an extent as to prevent the
realisation of the basic needs of human life." However, according to some authors12
, such a
definition is entirely inadequate, as it omits the substantive component of the right and
states as its core the possibility for everyone to claim this right in the manner prescribed
by law, without specifying what constitutional requirements for the procedural aspect
of the right belong to the critical content. However, the Constitutional Court was a
little more specific in its last key ruling on environmental protection, stating that
'The obligation of the State toprotect against interference with the environment can be considered as the
essence of thisrightif the interference reaches such a level that it makes it impossible to realise the basic
needs of human life. "I3
3.1. Substantive content
The right to a favourable environment is anthropocentric in the Czech
conception,14
corresponding to the obligation to ensure healthy living conditions for
man and the favourable development of the environment where man is located or
whose protection he has a sufficient interest. Thus, the content of the right to a
favourable environment is not protecting the environment without more; there must
therefore be a particular link between the interest at stake and the specific persons
concerned.
1 1
Judgment of the Constitutional Court of 17 July 2019, No. PI. US 44/18 (N 134/95 SbNU
124; 225/2019 Coll.).
1 2
Tomoszek & Tomoszkova 2016, 156.
1 3
Judgment of the Constitutional Court of 26 January 2021. No. PI. US 22/17 (124/2021 Coll.).
1 4
For the ecocentric concept, cf. e.g. Vomacka 2015, 26—31.
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The Constitutional Court refers to the right to a favourable environment as a
right with a relative content, which must be "interpretedfrom many aspects and always in the
light of the specific case"15
while finding that the choice of individual instruments for the
protection of the right to a favourable environment and their mutual balance are
primarily a task of political decision-making, which is not for the courts to assess.16
Still, the setting of specific instruments and their enforcement are subject to judicial
review.
In concreto, the implementation of the right to a favourable environment has so far
been identified by the courts as the implementation of public environmental standards
in the field of air1 7
and noise protection,18
where quantitative standards of pollution
levels are set. The Constitutional Court also includes special territorial protection of
nature among the components of the right to a favourable environment.19
Public law
standards thus indicate (not set binding) environmental friendliness. Through them, it is
possible to define even a condition that is not favourable. For example, the Supreme
Administrative Court2 0
has identified a non-favourable condition as one in which, due
to the high accumulation of a large number of sources (industrial, local and transport),
both short-term and annual immission and target limits for the number of pollutants
are consistently exceeded.21
What matters in terms of potential interference with the
right to a favourable environment is "not how the individual technical standards are conceived
andformulated, but the overall impact of the regulation. ' 5 2
The right to a favourable environment applies even where the exact level of
protection is not specified by law, for example, in the context of housing amenity.23
In particular, the courts have held that the administrative authorities are obliged to
reflect all the influences that may affect the home's well-being in an interrelated
manner2 4
It follows from the case-law of the Supreme Administrative Court that the
requirements for the well-being of housing cannot be absolutised since every building
causes a specific burden on its surroundings, and it is fair to require the owners of
surrounding buildings to bear such a burden if it is proportionate to the
1 5
Judgment of the Constitutional Court of 25 October 1995, No. PI. 17/95 (N 67/4 SbNU 157;
271/1995 Coll.).
1 6
Judgment of the Constitutional Court of 18 December 2018, No. PI. US 4/18 (N 201/91
SbNU 535; 30/2019 Coll.).
1 7
E.g. Judgment of the Supreme Administrative Court of 23 March 2017, No. 10 As 299/2016-
29.
1 8
E.g. Judgment of the Regional Court in Prague of 6 December 2018, No. 50 A 25/2017-125.
1 9
Judgment of the Constitutional Court of 25 September 2018, No. PI. 18/17 (N 156/90 SbNU
525; 261/2018 Coll.).
2 0
Judgment of the Supreme Administrative Court of 14 November 2014, No. 6 As 1/2014-30,
3170/2015 Coll.
2 1
For details, cf. e.g. Jancarova 2015, 15-19, 155-169.
2 2
Judgment of the Constitutional Court of 18 December 2018, No. PI. US 4/18 (N 201/91
SbNU 535; 30/2019 Coll.).
2 3
Ibid.
2 4
Judgment of the Supreme Administrative Court of 4 March 2009, No. 6 As 38/2008-123.
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circumstances.25
It is then within the power of the law only to prevent an extreme
imbalance in the rights of neighbouring landowners.26
Therefore, the existence of
specific standards is a guide to assessing the interference with the legal sphere of
individuals and the allocation of the burden of proof.
3.2. Holders of the right to a favourable environment
Under Article 35(1) of the Charter, everyone has the right to a favourable
environment. The Charter, therefore, does not exclude anyone a priori from the
enjoyment and protection of this right. The Charter and the laws governing the exercise
of fundamental rights by legal persons are based on the assumption, not explicitly
stated in the Constitution, that fundamental rights also belong to legal persons to the
extent that their nature permits27
. Therefore, the holder of the right to a favourable
environment should be every natural and legal person existing in the environment and
affected by environmental interventions.
However, for a long time, the Constitutional Court assumed that only procedural
rights belonged to legal persons, later admitting that they could protect their members'
right to a favourable environment28
.
First, the Constitutional Court held2 9
that "rights relating to the environment belong only
to naturalpersons since they are biological organisms which — unlike legalpersons — are subject to
possible negative environmental influences." Second, the Constitutional Court held that only
procedural rights "related to therightto the environment"be\ong to legal persons, particularly
civil associations whose primary mission, according to their statutes, is the protection of
nature and the countryside.30
Third, however, the Constitutional Court considered such
constitutional complaints filed by legal persons to be filed "in favour of a third party,
possibly in the interest of protecting public interests." At the same time, the so-called actio
popularis is not admissible.31
However, the approach of the Constitutional Court has not always been shared
by the general courts. Thus, for example, the Supreme Administrative Court has held3 2
that the bearers of this constitutional right are also "those legal persons, typically civil
associations, for whom the protection of environmental interests is the main or essentialpart of their
activities and which can thus be seen not only as a group of naturalpersons for whom such a legal
person represents a kind of medium through which these natural persons defend their right to a
2 5
E.g. Judgment of the Supreme Administrative Court of 2 February 2006, No. 2 As 44/2005,
No. 850/2006 Coll.
2 6
Judgment of the Constitutional Court of 28 June 2017, No. I. US 3610/16.
2 7
See also judgment of the Constitutional Court of 19 January 1994, No. PI. US 15/93 (N 3/1
SbNU 23; 34/1994 Coll.).
2 8
Judgment of the Constitutional Court of 30 May 2014, No. I. US 59/14 (N 111/73 SbNU
757).
2 9
Judgment of the Constitutional Court of 6 January 1998, No. I. US 282/97 (U 2/10 SbNU
339).
3 0
Judgment of the Constitutional Court of 10 July 1997, No. III. US 70/97 (N 96/8 SbNU
375).
3 1
Judgment of the Constitutional Court of 11 May 1999, No. I. US 74/99 (U 34/14 SbNU 329).
3 2
Judgment of the Supreme Administrative Court of 29 March 2007, No. 2 As 12/2006-111.
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favourable environment but also as an advocate of this right in favour of other people."
The Constitutional Court, however, rejected these conclusions, finding that
"Theproceedingsfor the authorisation of the operation of Unit 2 of the Temelin Nuclear Power Plant
did not and could not have involved any of the complainant's substantive fundamental rights, such as
the right to life underArticle 6, the right to the right to theprotection of hisprivacy underArticle 7 of
the Constitution, the right to protection ofprivate andfamily life under Article 10, and the right to a
favourable environment under Article 35(1) in conjunction with Article 41(1), on the ground that
thesefundamental rights, 'asserted' by the complainant, belong only to naturalpersons. ' 5 3
In 2014, however, the Constitutional Court reconsidered its conclusions when it
concluded34
that environmental associations could be actively legitimated to file an
action for the annulment of a measure of a general nature, in concreto a zoning plan,
because it would be "already absurd at first sight if a person meeting the defined conditions, for
example, the owner of land directly adjacent to the regulated area, would not have the standing to bring
an actionfor the annulment of the zoningplan simply because they and otherpersons (residents of the
same municipality or neighbouring municipalities) havejoined together and are seeking the annulment
of the %oning plan or part of it on behalf of the association." However, the environmental
association must first claim interference with its subjective rights and demonstrate a
local relationship to the area regulated by the zoning plan or a focus on an activity with
local justification. The administrative courts later concluded that the fulfilment of these
conditions must also be assessed in proceedings against a decision of the administrative
authority35
and proceedings against unlawful interference36
.
According to the conclusions of the Constitutional Court, an interference with
the rights of associations other than environmental associations is also conceivable.
However, these associations must be at least marginally focused on environmental
protection37
, or the alleged interference must have consequences for the achievement of
the objectives pursued by the association in question, and "in addition to associationsfor the
protection of nature and the countryside, one can imagine, for example, gardening associations,
associations organising recreational use of aparticular locality, etc.
Municipalities are also actively legitimated to protect the right to a favourable
environment. The Supreme Administrative Court3 9
has held that a city (in this particular
case Ostrava) is a public person, which, according to the Constitution, is already a
territorial community of citizens and is directed by its nature called upon to represent
and protect the rights and interests of its citizens, who "through their council and the general
binding ordinance adopted by it, implement and enforce their idea of theform and quality of the living
space that immediately surrounds them and has a direct impact on theirphysical and mental health and
3 3
Judgment of the Constitutional Court of 10 July 2008, No. III. US 3118/07.
3 4
Judgment of the Constitutional Court of 30 May 2014, No. I. US 59/14 (N 111/73 SbNU
757).
3 5
Judgment of the Supreme Administrative Court of 25 June 2015, No. 1 As 13/2015-295 and
judgment of the Supreme Administrative Court of 15 July 2015, No. 2 As 30/2015-38.
3 6
Judgment of the Regional Court in Prague of 9 March 2017, No. 45 A 31/2016-19.
3 7
Judgment of the Supreme Administrative Court of 8 February 2018, No. 10 As 145/2017-62.
3 8
Judgment of the Supreme Administrative Court of 26 April 2017, No. 3 As 126/2016-38.
3 9
Judgment of the Supreme Administrative Court of 26 June 2013, No. 6 Aps 1/2013-51.
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the well-being of their living environment." The courts40
have also concluded that a
municipality's authority is not limited to its territory; it may also be affected by plans
implemented in the territory of a neighbouring municipality. Thus, cities protect the
rights and interests of their citizens, particularly in the exercise of the right to selfgovernment,
which, according to the Constitutional Court4 1
, is also a manifestation of
environmental protection.42
It follows from the above that the conditions for access to the right to a
favourable environment (and access to judicial protection) for affected individuals,
environmental associations and municipalities are now gradually being unified, where it
is the "affectedness" - not the type of subject - that will be the decisive criterion as to
whether or not the right to a favourable environment has interfered within each case
and whether the subject can claim this right. According to the Supreme Administrative
Court, "in environmental matters, the standing of the public concerned is based on the unlawful
interference with the subjective public right to a favourable environment under Article 35(1) of the
Charter. [...] Municipalities or individuals whose legal sphere is adversely affected by the contested act of
an administrative authority, as so-calledpersons of the public concerned, should not have a different
(inferior) position than associations concerned with the protection of the environment, which are also
granted standing under national law. ' n 3
3.2.1. Conditions for the rights of natural persons
Even in the case of the right to a favourable environment for natural persons,
the case law has evolved considerably. At first, it expected individuals to prove an
intense interference with property rights (ignoring, for example, the rights of tenants44
),
while, in addition, the courts required a relatively close relationship between the natural
person and the potential environmental damage already when assessing the conditions
for active standing to bring an action. However, the above-mentioned recent case law
shows a specific shift in judicial practice, as now at least conceivable, even indirect,
interference with the plaintiffs rights is sufficient to satisfy the conditions for active
standing.45
In addition, account must be taken of the case law, which recognises that
the individuals concerned may also defend the public interest through their rights.46
Therefore, the courts have referred to the public or general interest not only in the
environment itself but also in its protection.
Furthermore, it is understood that environmental protection proceedings are not
intended to resolve individual disputes between the investor and the owners of the
affected or intervening properties.47
Still, environmental protection cannot simply be
4 0
See also Judgment of the Constitutional Court of 11 December 2007, No. PI. US 45/06 (N
218/47 SbNU 871; 20/2008 Coll.).
4 1
Judgment of the Constitutional Court of 25 September 2018, No. PI. 18/17 (N 156/90 SbNU
525; 261/2018 Coll.).
4 2
Cf. Damohorsky & Snopkova et. al. 2015. Or Svarcova 2019.
4 3
Judgment of the Supreme Administrative Court of 29 May 2019, No. 2 As 187/2017-264.
4 4
Cf. Zidek 2015, 394-106.
4 5
Judgment of the Supreme Administrative Court of 29 May 2019, No. 2 As 187/2017-264.
4 6
Judgment of the Supreme Administrative Court of 17 October 2018, No. 8 As 21/2018-66.
4 7
Judgment of the Supreme Administrative Court of 27 June 2012, No. 3 As 1/2012-21.
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described as die subject of a personal disagreement. In other words, even in the case of
the individuals concerned, the interference with (the very) right to a favourable
environment should be regarded as an interference with their legal sphere.
In summary, therefore, it can be stated48
that sufficient interest may be
determined, for example, by the fact that the person concerned lives in the area in
question, has been recreating there for a long time, or is linked to it by some other firm
and objectively recognisable relationship. It will also be given whenever the interference
under consideration will lead to a noticeable deterioration in the quality of life, which
applies to assessing the interference under the public law regime and any private law
claims. The impairment of the quality of life may thus also consist of an interference
with privacy, family life or other personality rights which are linked to the right to
a favourable environment, or which are difficult to distinguish from each other in
practice if the interference with different personality rights consists of interference with
the environment. However, it is not a condition of the interference with the right to a
favourable environment that affects health, which is also true of other personality
rights.
3.2.2. Conditions for the rights of environmental associations to be affected
In the case of legal persons (in particular environmental associations),
the assessment of the right to a favourable environment was established by the
Constitutional Court in 2014,49
according to which natural persons, through
associations, promote their interests and cannot be "denied the right to participatejointly in
decisions concerning their environment simply because, because they have set up a legalperson to whic
they have delegated their rights of directparticipation in the protection of nature and the countryside ",
while the Supreme Administrative Court5 0
further specified the conditions of concern
(in particular) to environmental associations by stating the following criteria:
(a) prejudice to the subjective rights of the association; (b) the local relationship of the
association to the site affected by the general nature measure (c) or the focus of the
association on an activity that has local relevance.
The courts infer the fulfilment of the individual conditions mainly from the
statements of the association itself or the statutes51
. The Supreme Administrative Court
then establishes a rebuttable presumption that the association focuses on the entire area
defined in its statutes, which does not necessarily correspond to its name52
. The courts
also infer the association's commitment and relationship to the locality from facts
known to them on an official basis, i.e. that the association in question is involved in
judicial and administrative proceedings in environmental protection matters53
4 8
Vomacka, Tomoszkova & Tomoszek 2020, 974-1031.
4 9
Judgment of the Constitutional Court of 30 May 2014, No. I. US 59/14 (N 111/73 SbNU
757).
5 0
Judgment of the Supreme Administrative Court of 26 June 2014, No. 5 Aos 3/2012-70.
5 1
Judgment of the Regional Court in Ostrava of 16 August 2017, No. 79 A 1/2016-82 or
judgment of the Regional Court in Brno of 29 January 2018, No. 64 A 4/2017-205.
5 2
Judgment of the Supreme Administrative Court of 28 March 2018, No. 2 As 149/2017-164.
5 3
Judgment of the Supreme Administrative Court of 24 May 2016, No. 4 As 217/2015-197.
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or submitted comments in previous proceedings.54
The association was established to
support a political group does not preclude it from being concerned.55
The relationship to the locality may also be due to the members' activities, for
example, by participating in administrative or judicial proceedings.56
The association
doesn't need to be consistently involved in environmental protection. In some cases,
the situation is relatively clear to assess: for example, when an association based in a
neighbouring street opposes a decision on the location of a school5 7
, an association
focusing on nature and environmental protection in the same municipality and its
surroundings58
, or an association of residents opposes a land-use plan5 9
. For example,
associations of citizens in other municipalities may also be affected by the regulation of
road traffic in one urban area since large cities are interconnected settlements.60
A broader authorisation may also be justified by the importance of the disputed
project or the importance of the interests concerned. Thus, for example, an association
with a national scope of activity61
may be affected in its substantive sphere by a decision
concerning a project if its operation "undoubtedly extends beyond the boundaries of the region
concerned.'^2
O n the other hand, projects with a more negligible but still supra-local
impact may affect associations based in the same region (e.g., bypassing the district
town of Břeclav6 3
). Similarly, an association based outside the area concerned may
defend interests in protecting a nationally or even transnational^ unique site (e.g. the
Slavíkovy Islands64
; the Šumava National Park and N A T U R A 2000 Area6 5
; the Jeseníky
Protected Landscape Area and the Praděd National Nature Reserve66
).
The "interference with the right of the members of the association to afavourable environment
(without deriving itfrom an existingpropertyrightin the regulated area) is sufficient to conferprejudice
if the alleged interference has consequencesfor achieving the objectivespursued by the association. ' h l
Therefore, the environmental association's involvement will always need to be
assessed on a case-by-case basis, and logically in some cases, this will be a complex
assessment.68
However, an overemphasis on the prejudice of the association members
may also conflict with the conception of the role of environmental associations that
emerges from the Aarhus Convention and European Union law. However, it should be
5 4
Judgment of the Supreme Administrative Court of 28 February 2017, No. 4 As 220/2016-198.
5 5
Judgment of the Municipal Court in Prague of 7 February 2018, No. 10 A 173/2016-119.
5 6
Judgment of the Regional Court in Brno of 9 October 2018, No. 63 A 2/2018-105.
5 7
Judgment of the Regional Court in Prague of 24 January 2018, No. 45 A 25/2016-66.
5 8
Judgment of the Supreme Administrative Court of 31 October 2017, No. 8 As 178/2016-69.
5 9
Judgment of the Regional Court in Ústí nad Labem of 9 January 2017, No. 40 A 5/2016-96.
6 0
Judgment of the Supreme Administrative Court of 23 May 2018, No. 10 As 336/2017-46.
6 1
Judgment of the Supreme Administrative Court of 6 January 2016, No. 3 As 13/2015-200.
6 2
Judgment of the Regional Court in Ostrava - Olomouc Branch of 28 February 2018, No. 65 A
95/2017-96.
6 3
Judgment of the Supreme Administrative Court of 28 March 2018, No. 2 As 149/2017-164.
6 4
Judgment of the Supreme Administrative Court of 30 September 2015, No. 6 As 73/2015-40
(No. 3343/2016 Coll.)
6 5
Judgment of the Supreme Administrative Court of 27 July 2017, No. 1 As 15/2016-85.
6 6
Judgment of the Supreme Administrative Court of 26 April 2017, No. 3 As 126/2016-38.
6 7
Ibid.
6 8
In more details cf. also Vomáčka & Zidek 2017, 36—54.
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noted in conclusion that, in addition to the 'European concept', which is more
supportive of the professionalisation of environmental associations, the Czech courts
also take into account the interests of small associations established on an ad hoc basis
and the conditions of prejudice will be assessed based on the case law mentioned
above.
4. The right to timely and complete information on the State of the environment
and natural resources
Article 35(2) of the Charter provides that "Everyone has the right to timely and complete
information on the State of the environment and natural resources." The Constitutional Court
points out that "this right, as well as the right to a favourable environment (Article 35(1)), may,
however, because of the wording of theprovisions of Article 4-1(1), be invoked only within the limits of
the laws implementing theprovisions of Article 35. ' h 9
This law is the Act No. 123/1998 Coll.
on the right to information on the environment, as amended, and in addition to it,
several unique component and other laws, mainly in the field of regulation of the
management of specific sources of endangerment. The implementation of Article 35(2)
of the Charter is based on the fact that the provision of information on the
environment is not so much to control the management of public funds and to satisfy
the interest of individuals in the running of public affairs, but rather to portray the State
of the environment which may directly and substantially affect those individuals.
"Only based on detailed information about the environment is the public able to know its condition,
to be aware of its changes over time, to take responsibilityfor its quality and to make informed decisions
to protect it. By its very nature, full weather information, or the resulting environmental information,
must be available on requestfree of charge, if only because access to its content cannot be dependent on
an individual'sfinancialincome and social status. ' v o
Although the right to environmental
information is often classified as a typical procedural right, it "constitutes a kind of
guaranteefor environmentalprotection", which also has a substantive quality.
According to the Constitutional Court7 1
, the constitutionally guaranteed right to
information on the State of the environment and natural resources is exclusively held
by natural persons. This is because they are the only ones who can be affected by
changes in the environment. The Constitutional Court later72
confirmed this
conclusion, stating that "at the level of simple law, the right of a legalperson to request information
on the environment is not limited or even excluded." However, according to some authors, it
seems most appropriate for the Constitutional Court to change its legal opinion.
As the current development of the Constitutional Court's case law indicates, "this
negative attitude is gradually being reconsidered. "73
6 9
Judgment of the Constitutional Court of 19 January 1996, No. PI. US 26/95.
7 0
Judgment of the Municipal Court in Prague of 27 June 2018, No. 5 A 128/2015-49.
7 1
Judgment of the Constitutional Court of 6 January 1998, No. I. US 282/97 (U 2/10 SbNU
339).
7 2
Judgment of the Constitutional Court of 27 September 2005, No. II. US 42/05.
7 3
Vicha 2018, 91.
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It should also be stressed that the regime for providing environmental
information in Czechia does not allow for financial remuneration for particularly
extensive searches, which means that a significant part of the information is provided
free of charge. Regarding the grounds for refusing to provide information, there is a
particular public interest in providing information on emissions emitted or emitted into
the environment, which overcomes the interest in protecting personal or individual
data, the protection of personality and commercial secrecy. In summary, it should be
stated that obtaining information on the State of the environment in Czechia does not
pose any significant problems in practice, and the legal regulation can be assessed as
more than sufficient.
5. Restrictions on the exercise of other rights in favour of environmental
protection
Article 35(3) of the Charter provides that "In the exercise of his or her rights, no one
may endanger or damage the environment, natural resources, the species richness of nature or cultural
monuments beyond the extentprescribed by law. "The purpose and intent of this provision are
not to prohibit across the board all potentially hazardous activities to the environment
but rather to legitimise legal measures that restrict or impose conditions on the exercise
of various rights on the grounds of environmental protection. Without such
restrictions, it would be left entirely to the discretion of the individual to determine how
far he or she would take the environment into account in exercising his or her rights.
However, according to the Constitutional Court7 4
, such a situation leaves "no space for
possible simultaneous consideration of other constitutionally protected values, including a favourable
environment."
Specific restrictions can be identified in many Acts. They may take the form of
an express prohibition or an obligation, the fulfilment of which results in a restriction
of one of the rights of the obliged person. The consequence of a breach of the
prohibition or failure to comply with the obligation is usually creating a liability
relationship and the possibility of being sanctioned for the infringement. However, it
should be noted that the legislation does not always associate the possibility of a
sanction with a breach of a specified obligation in the field of environmental
protection. The restrictive measure may take the form of a duty to act or an obligation
to refrain from a particular action. It may arise directly from the law, but it may also
stem from various protective or corrective measures adopted by public authorities,
from partial conditions for the enforcement of decisions, and from control and
sanction measures to fulfil the right to a favourable environment.75
However, the
restrictions must always be proportionate, respecting a fair balance between the
imperatives of the general interest and the protection of the individual's fundamental
rights.
7 4
Judgment of the Constitutional Court of 25 April 2017, No. III. US 3997/16.
7 5
Judgment of the Constitutional Court of 22 September 2003, No. IV. US 707/02.
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In assessing the proportionality of a measure, it always depends on the
circumstances of the particular case, its subject matter and the area of social life
affected by the measure adopted by the public authority and concerning the subject's
rights.76
In concreto, for example, the owner of a cultural monument is obliged to take care
of its preservation at his own expense, maintain it in good condition, and protect it
from threat, damage, deterioration, or theft. According to the Constitutional Court,7 7
this general obligation is a manifestation of Article 35(3) of the Charter, balanced by the
various compensations provided by the State to owners of monuments for their
preservation and restoration. The Constitutional Court was also successful in regulating
the possibility of taking individual measures to protect the environment78
or inspecting
solid fuel boilers in households. The Constitutional Court7 9
also concluded that the
right to a favourable environment justified the possibility of interfering with the
inviolability of the home. For example, the Constitutional Court has also supported
restrictions on logging in protected areas, which "pursues a legitimate objective, namely the
protection of forests in national nature reserves as specially protected areas, which, because of their
biological uniqueness and diversity, are worthy of strict protection by the state power. ' m
Similarly,
it found constitutionally consistent the restriction of the right of ownership in favour of
the protection of game in the exercise of hunting because "the State has a direct obligation
to ensure the legalprerequisites for the possibility of protecting game as a natural wealth "81
or the
restriction of the owner as a result of the declaration of a thing as a cultural monument,
since "theprotection of cultural monuments is associated in all cultural states with a certain restriction
on the free disposition of one's property."82
From the point of view of balancing
constitutionally guaranteed rights and protected interests, the general conditions for
felling trees, which "reflect the needforproportionateprotection of both the right to life and health of
the people and the right to a favourable environment; one is not a priori mutually exclusive with the
other in the present case'83
, or the obligation of owners of waterworks to allow access to
their land to other persons for a specified purpose, since the operation and
maintenance of waterworks is "an integral component of environmental protection. ' m
7 6
Judgment of the Constitutional Court of 26 April 2012, No. IV. US 2005/09 (N 91/65 SbNU
221).
7 7
Judgment of the Constitutional Court of 9 October 2018, No. III. US 3147/18.
7 8
Judgment of the Constitutional Court of 8 July 2010, No. PI. US 8/08 (N 137/58 SbNU 115;
256/2010 Coll.).
7 9
Judgment of the Constitutional Court of 18 July 2017, No. PI. US 2/17 (N 125/86 SbNU 131;
313/2017 Coll.).
8 0
Judgment of the Constitutional Court of 26 April 2012, No. IV. US 2005/09 (N 91/65 SbNU
221).
8 1
Judgment of the Constitutional Court of 13 December 2006, No. PI. US 34/03 (N 226/43
SbNU 541; 49/2007 Coll.) or judgment of the Constitutional Court of 6 March 2007, No. PI.
US 3/06 (N 41/44 SbNU 517; 149/2007 Coll.).
8 2
Judgment of the Constitutional Court of 23 June 1994, No. I. US 35/94 (N 36/1 SbNU 259)
or judgment of the Constitutional Court of 4 October 2016, No. III. US 3244/15.
8 3
Judgment of the Constitutional Court of 25 April 2017, No. III. US 3997/16.
8 4
Judgment of the Constitutional Court of 21 November 2007, No. IV. US 652/06 (N 202/47
SbNU 613).
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The reasonableness of legal obligations and various legislative or individual restrictions
must then be assessed on a case-by-case basis.
6. Conclusion
This article aimed to define the legal means of environmental protection at the
constitutional level based on an analysis of the constitutional order of Czechia and
court case law. To this end, the constitutional background and context of
environmental protection were first defined. Then the individual institutes of
environmental protection in the Czech constitutional order were analysed in turn,
namely the right to a favourable environment, the right to timely and complete
information on the State of the environment and natural resources and the limitation of
the exercise of other rights in favour of environmental protection. I have already
outlined my partial conclusions and legal opinions on the legislation and the courts'
decision-making practice in the individual chapters, so I refer to them in detail.
However, the unifying conclusion, in my opinion, is that with the ever-advancing
climate change85
and the resulting social changes, environmental protection and its legal
anchoring in the constitutional order of not only Czechia but also other European
countries will be an increasingly topical issue. It is up to the legislator, political
representation and legal and judicial practice to deal with it in the future.
8 5
Cf. e.g. Vomacka & Jancarova 2021, 472-188.
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