The Taming of the Czech Executive

On Wednesday, 2/2/2022, the Czech Supreme Administrative Court (‘the SAC’) quashed an executive measure imposing the so-called “2G rule” (geimpft/genesen, i.e. vaccinated/recovered) on selected service providers, most importantly restaurants and hotels. While the vocal opponents of vaccination celebrate the ruling and refer to the judiciary as ‘the last bastion of freedom’, there was some major misrepresentation of what the SAC has (not) established in this very viral judgment. Although the SAC did quash some of the measures challenged by the claimants, the narrative presented by most media – which also appeared in the news abroad – was largely misleading. The executive measure under review was not quashed because ‘the state must not force people into voluntary vaccination’, nor because ‘kicking the unvaccinated out of pubs is illegal and must stop’. Since the only legal argument for quashing the measure was the lack of competence of the Ministry of Health, it seems like there was much ado about nothing.

Battles lost and won

2/2/2022 was a busy day in the Czech legal world. A new President of the Supreme Administrative Court was appointed for a period of 10 years, although the (former) Minister of Justice had suggested a different candidate at the end of 2021 and she ‘has no idea where the new name came from’. Also on 2/2/2022, the Chamber of Deputies amended the infamous Pandemic Act, after long-lasting obstructions of the opposition which have been judged as ‘extremely sad and worrying’ by a leading constitutional expert. But the Czech Republic made headlines for its SAC’s decision on the 2G rule.

The measure reviewed by the SAC stipulates an obligation of every person to prove ‘non-infectivity’ when entering restaurants and hotels in the Czech Republic. Service providers thus have to check the certificates of vaccination or recovery from COVID-19 in the last 180 days of their guests upon entry. According to the claimants, the emergency measure should also allow unvaccinated persons access to services in restaurants or hotels after presenting a negative PCR test, otherwise the measure is both discriminatory and disproportionate.

Something is rotten in the Czech Pandemic legislation

As one of us has written in her previous blogpost, the Czech legal order offers the executive two possible legal bases for adopting restrictions outside a state of emergency. The Act on the Protection of Public Health (‘APPH’) is more general, aiming to protect public health in various situations. It applies mainly to local outbreaks and does not foresee large-scale restrictions, unless the entire country is declared the focus of infection. When the APPH was adopted in 2000, the legislator did not anticipate a global pandemic. The Pandemic Act, on the other hand, has been tailored specifically to combat COVID-19. Yet, it was adopted in a state of legislative emergency, with relatively little support from the legislators, and therefore has some ill-considered parts, which have already become apparent. For example, it is oblivious to some areas, including restaurants and hotels, as will be explained below.

The SAC was given the power to review measures adopted under the Pandemic Act – and it has used this power dozens of times to quash the Ministry’s emergency measures, usually on the grounds that they were insufficiently justified. (The Ministry has taken up a rather peculiar position to this inter-institutional dynamic last year when one of the many Ministers of Health issued emergency measures ‘knowing that they would get quashed by the courts anyway’.) And according to the most recent judgment of the SAC, the 2G emergency measure imposed on restaurants and hotels could not have been adopted under either the APPH or the Pandemic Act. In fact, outside of a declared state of emergency, the executive is stuck between a rock and a hard place.

The Pandemic Act, or the APPH, that is the question…

The APPH can only be used as a legal basis for measures aimed at ‘persons suspected of being infected’. It does not allow to regulate the behaviour of all persons on the territory unless the entire country is declared the focus of infection. That, however, is not the case, so the APPH cannot serve as the legal basis for executive measures such as those under review. The second option, then, is the Pandemic Act. Yet, one of its flaws is that many areas, most notably provision of services, fall outside of its scope. Admittedly, the Act allows to restrict ‘commercial and manufacturing services’ and the Ministry tried to fit restaurants and hotels under this definition, but the SAC had already ruled in May 2021 that such interpretation would be too extensive. Therefore, the Ministry cannot use the Pandemic Act as a legal basis for significant restrictions of services such as hotels or restaurants either, apart from regulating minor issues (e.g. duty to use protective, washing, cleaning or disinfecting equipment). Such minor measures adopted under the Pandemic Act must be preventive in their nature and low in their intensity, according to the SAC’s previous case-law.

Therefore, the Ministry of Health did not have at its disposal any legal basis for the introduction of a general 2G rule on the whole territory of Czechia. The SAC thus annulled the emergency measure for lack of legal basis and therefore lack of competence of the Ministry. For the future, the judgment gave the Ministry (or the Government/the Parliament) three options: (1) to justify that the Czech Republic as a whole represents the focus of infection; (2) to amend the Pandemic Act; or (3) to declare a state of emergency and impose measures in the emergency framework (par. 94).

How now? Even so quickly may one catch the plague?

As for substantive review, the SAC assessed the measure from two standpoints: firstly, whether it could be deemed as discriminatory, and secondly, whether it was proportionate.

As regards discrimination between vaccinated/recovered persons and unvaccinated persons able to present a negative PCR test, the SAC first raised the question whether these two groups are in a comparable position. At this point, the SAC introduced a crucial point which gets repeated again and again later in the judgment: legitimate aim matters!

According to the SAC, the reason not to provide access to accommodation and restaurant services to unvaccinated persons is threefold. Unvaccinated persons: (a) are more likely to get infected, (b) have a higher likelihood of severe disease when infected, and (c) are much more likely to spread the disease. They are both more vulnerable and more dangerous to the population. Their contact with an infected person is much more likely to affect not only their own health, but also (and maybe even more importantly?) the capacity of healthcare services. Therefore, an unvaccinated person with a negative PCR test may not be infected when entering a restaurant or a hotel, but is much more likely to become infected and impose a burden on the healthcare system.

As said above, the legitimate aim really makes a difference. The claimants’ argumentation focused only on the question how the service recipient can prove their non-infectivity upon entering the hotel/restaurant. However, the SAC goes further and explores what happens inside these venues: people meet and the virus does its work. When a vaccinated and an unvaccinated person enter a bar, they may be uninfected, and thus comparable, at the front door. Yet, a couple of minutes later they are no longer comparable.

It is quite clear from the argumentation of the Ministry (and of the SAC as well) that the emergency measure does not aim to only protect the very people who meet and mingle in restaurants and hotels. Rather, the aim is to protect public health at large and, most importantly, to avoid overwhelming the health care system. It is from that perspective that the two groups are not comparable. The SAC thus concludes that unvaccinated persons pose an increased risk to the fight against the epidemic, especially to the health care system. Where there are no comparable subjects, there cannot be discrimination (par. 77-78).

All that glitters is not gold

The last part of the SAC judgment dealt with proportionality, not in relation to any of the constitutionally guaranteed fundamental rights, but only in relation to the Pandemic Act’s requirement that all emergency measures be proportionate (sect. 3/2 of the Act; par. 79).

Before the SAC delved into the proportionality analysis, it included an unfortunate obiter dictum. We call it unfortunate not because of its content (which we fully subscribe to), but rather for the fact that the media overemphasized this part of the judgment at the expense of the remainder of the argumentation. According to the SAC,

‘citizens cannot be forced to be vaccinated against COVID-19 by means of excluding unvaccinated persons … from the possibility of carrying out certain activities and using services which in the normal course of things fall within the scope of ordinary life. This indirectly makes voluntary vaccination compulsory. (…) Until vaccination is mandatory, it is up to everyone to decide whether or not to be vaccinated. (…) Pressure to vaccinate through emergency measures would therefore not, in itself, constitute a legitimate aim which could justify the restrictions imposed on unvaccinated persons’ (par. 81-82).

Nevertheless, the argument continues as follows:

‘However, it does not appear from the justification of the emergency measure that its aim is to force unvaccinated persons to vaccinate’ (par. 84).

At this point, the SAC reiterated that the legitimate aim of the emergency measure is not only to protect the health of individuals, but above all to protect public health and to prevent the collapse of the healthcare system. In relation to this legitimate aim, the requirement of 2G is both suitable (par. 86) and necessary (par. 88) since the presenting of a negative PCR test by unvaccinated persons would not be equally efficient in the protection of public health. In assessing proportionality stricto sensu, the SAC weighed the emergency measure in question against the alternative of a complete closure of service providers and (unsurprisingly) concluded that the measure in question was much less burdensome (par. 89).

To sum up, the SAC declared it unacceptable to lay down emergency measures that amount to an indirect coercion to mandatory vaccination while at the same time pretending that vaccination remains voluntary. The pressure to vaccinate cannot be the only aim of the measures – but that was not the case here anyway. On the substance, the SAC endorsed the proportionality of the 2G requirement, but it quashed the measure for lack of competence. For these reasons, we regret that the obiter dictum quoted above has stood in the spotlight not only in the media, but sadly also in the SAC’s own press release.

Measure for Measure

The reaction of the Czech government was very quick. Instead of revising the annulled emergency measure, the Prime Minister announced later on the same day that the 2G rule will be cancelled as of next Wednesday (9/2), not only in restaurants and hotels but also at any cultural or sport events.

We conclude with just saying – well, that escalated quickly!

Disclaimer: None of the authors participated in the decision-making in the commented case.