The Czech Republic

Environmental collective redress in the Czech Republic

In the Czech Republic, a special legislation introducing a collective redress has not yet been adopted. A Draft Proposal of the Act on Collective Redress is now under preparation; however, there seems to be a serious resistance against establishing the class action among several groups of stakeholders in the Czech Republic, so the future prospect of this Draft are not at all certain. The core of the Draft proposal lays in the collective action in the consumer area. The environmental harms are also covered but rather as a supplementary minor agenda. Only a narrow concept of “environmental damage” has been projected in the Draft, conceived exclusively as a consequence of an industrial accident. Moreover, only the damage caused to individuals (not to the environment as such) are planned to be covered, as subject to compensation within the framework of civil liability.

The existing ways how to apply certain kind of a collective redress in the Czech Republic in favour of the environment lay in:

Administrative procedures and administrative judicial review procedures with a privileged position of environmental NGOs

Based on the relevant EU Directives and the Aarhus Convention, the Czech law provides the environmental NGOs with a special status in various procedures in environmental matters, both as regards the right to participate in proceedings and the right of access to court. The examples are the environmental impact assessment area, the territorial planning area, and most areas of environmental permitting (however not all of them, e.g. the nuclear power plant permitting or the noise area are excluded, and unfortunately, there have been successful efforts recently to restrict the participation of the public in certain types of permitting procedures, esp. in the area of territorial permitting). Where the laws normally make the access to the relevant proceeding dependent on an infringement of the person’s own rights or interests, the provisions favouring the environmental NGOs stipulate that this condition is assumed to be fulfilled for them. Similarly, the Czech environmental liability regime provides the environmental NGOs with certain additional entitlements in solving the environmental mass harm cases: they may bring requests, complaints or comments to the competent authorities, which they must deal with.

Civil procedures in form of joint litigation

In civil procedures concerning damages before the civil courts, there are in principle no limitations in the number of actors or defendants in one case. However, when there are more actors on one side of the litigation, each of them shall act in the proceedings only for himself. Only if the case concerns such joint rights or duties where the judgment has to apply to all participants acting on one side, acts of one of them shall also apply to the others. A change of the petition, a withdrawal thereof, admission of the claim and conclusion of the settlement requires the consent of all participants acting on one side. Nevertheless, the law on joint participation in court proceedings does not serve as a collective redress mechanism. Only at first sight, the rules on joint participation seem to be applicable to the proceedings of administrative judiciary. The administrative courts concluded that the joint participation is in principle excluded in administrative matters since the administrative justice protects the individual public-law rights of both natural persons and legal entities.

Neighbourhood litigation (imission disputes)

Law disputes between the private actors regarding environmental matters have often been based on the provisions protecting the rights of neighbours (or protection against imissions, as stipulated under § 1013 of the Civil Code). Here, 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 regular use of the tract of land. This provision can be theoretically used against a private operator of an industrial facility or against a noise from a highway but the success is not very likely, all the more that the new Czech Civil Code of 2012 introduced (if compared to the previous Civil Code of 1964) an additional rule stipulating that if the emissions result from an operation of an enterprise or a similar facility which has been officially approved (permitted by an authority), a neighbour only has the right to compensation for harm in money, even where the harm was caused by circumstances which had not been taken into account during the official proceedings. This does not apply if the operation exceeds  the extent to which it has been officially approved. This means that due to the new Civil Code, there is in fact no more injunction redress against approved facilities.

Personality rights

The new Civil Code explicitly introduced the protection of the right to live in a favourable environment within the scope of personality rights. However, there has been no case law on that yet. Moreover, the personality rights are predominantly rights of individuals; thus their collective application is disputable.

Civil liability

A specific strict liability is established for the damage resulting from operating activities under § 2924 of the Civil Code: a person who operates an enterprise or another facility intended for gainful activities shall provide compensation for the damage resulting from the operations, whether it was caused by the actual operating activities, by a thing used in these activities or by the impact of the activities on the environment. A person may be released from this duty only if they prove that they have exercised all care that can be reasonably requested to prevent the damage.

In practice, the main obstacle to apply the existing rules efficiently in favour of the environment lays in establishing and proving the causal link between the activity and the damage, which may be even impossible for both individual claimants and associations especially if an expert knowledge or scientific expertise is needed and must be paid for. The other obstacle are high costs of proceedings (e.g. in civil proceedings, usually the losing party has to pay the costs; the Draft Proposal of the Act on Collective Redress suggests that the plaintiffs (their representative) have to pay a court fee of CZK 25.000 (approx. EUR 1.000) for any type of the class action).

Hana Müllerová, May 2019