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Judicial Review of Restrictions on the Right to Conduct Business in the Czech Republic During the COVID-19 Pandemic: Lessons for Future Crises

Published online by Cambridge University Press:  15 October 2025

Pavel Ondřejek Open the ORCID record for Pavel Ondřejek [Opens in a new window]
Pavel Ondřejek*
Affiliation:
Department of Legal Theory and Jurisprudence, Faculty of Law, Charles University, Prague, Czechia
*
Email: ondrejek@prf.cuni.cz
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Abstract

The article examines how the Czech courts addressed restrictions on the right to conduct business during the COVID-19 pandemic. Although grounded in the Czech authorities’ response to the health crisis, the analysis extends to broader conclusions about the necessity of upholding rule-of-law principles. The article therefore highlights how constitutional imperatives of proportionality, equality and the justification of government actions must be preserved in judicial review, even in times of crises.

Keywords

equalityjudicial reviewproportionalitypublic health crisisright to conduct business

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Articles
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European Journal of Risk Regulation , First View , pp. 1 - 13
Creative Commons
Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright
© The Author(s), 2025. Published by Cambridge University Press

I. Introduction

The article first analyses the evolving approach of Czech courts to the restrictions on the right to conduct business imposed in 2020 and 2021 in response to the COVID-19 pandemic. Although the Czech model of emergency governance during the pandemic differed in some respects from neighbouring countries,Footnote 1 it revealed significant shortcomings, including technocratic decision-making with limited oversight and inadequate enforcement of individual rights.Footnote 2 Although the analysis is grounded in the Czech experience, it aims to draw broader conclusions about the importance of upholding rule-of-law principles. These include the obligation to justify the legitimate aims of rights restrictions, to ensure the legality and proportionality of decisions and extraordinary measures adopted by public authorities, and to uphold the constitutional guarantee of equality before the law.

At the outbreak of the COVID-19 pandemic in spring 2020, the primary motivation for imposing restrictions, both in the Czech Republic and elsewhere, was the urgent need to protect public health and maintain a functioning healthcare system.Footnote 3 These measures included, for example, the closure of shops and service establishments, with exceptions made for the sale of essential goods and the provision of essential services.Footnote 4 A typical example of adapted business activity during the pandemic was the delivery or sale of takeaway food from restaurants, where consumption on premises was prohibited. Other common measures included the delivery of goods ordered through e-commerce platforms, the closure of sports, recreational and cultural facilities, and the suspension of services considered high-risk for epidemiological transmission (e.g., hairdressing and beauty salons). These restrictions on the right to conduct business, alongside other limitations not addressed in this article, affected the core of this fundamental right.

In the Czech Republic, the right to conduct business is a fundamental right guaranteed by the Czech Charter of Fundamental Rights and Freedoms.Footnote 5 In a state governed by the rule of law, any limitation of fundamental rights must remain subject to judicial review; a state of emergency does not justify exempting such restrictions from judicial scrutiny.Footnote 6

The first part of the article compares the judicial review of interferences with the right to conduct business, an economic right, during normal circumstances with the review of interference during a state of emergency. The aim is to demonstrate that although the Czech legal system applies a less stringent standard of review to economic rights, even this lower level of scrutiny was not effectively applied at the outbreak of the COVID-19 pandemic. Until February 2021, individuals whose right to conduct business had been restricted were left in a legal vacuum, unable to seek judicial review of measures that interfered with the core of their constitutional rights. The second part of the article examines the legal changes introduced by the Pandemic Act and the evolving case law of the Czech Supreme Administrative Court. Although the proportionality test was intended as a universal standard for constitutional review during an emergency, the courts adopted a different approach. Instead of applying the proportionality test and reviewing the substantive criteria of suitability, necessity, and balancing, the case law emphasised formal requirements: a sufficient legal basis for restricting a fundamental right and proper justification for the interference these rights resulting from emergency measures.

The article concludes with an overall assessment of the Czech courts’ approach to restrictions on the right to conduct business during times of crisis. It argues that a focus on procedural or semi-procedural judicial review may be appropriate in certain cases but not where the interference with a fundamental right, particularly social or economic right, is clearly disproportionate. In such situations, a substantive review is necessary, taking into account the specific context of the crisis and applying the precautionary principle. The case law concerning restrictions on the right to conduct business also demonstrates the importance of equal treatment, particularly among entrepreneurs, and highlights the corresponding obligation of public authorities to provide a clear and reasoned justification when legislation imposes differentiated restrictions on comparable groups.

II. Constitutional basis of the right to conduct business in the Czech Republic and its limitation during the COVID-19 pandemic

The right to conduct business is recognised as a fundamental right within the category of economic, social and cultural rights in the Charter of Fundamental Rights and Freedoms of the Czech Republic.Footnote 7 Its inclusion in the Charter reflects a clear break with the pre-1989 political regime, which prohibited free entrepreneurial activity. This right is therefore not only a right belonging to individuals (both natural and legal persons) but also an objective constitutional principle supporting the preservation of a market economy and individual economic freedom.Footnote 8 Article 26(1) of the Charter of Fundamental Rights and Freedoms states: ‘Everyone has … the right to engage in business and other economic activity.’ Paragraph 2 allows the law to ‘establish conditions and restrictions for the exercise of certain activities’, and paragraph 4 permits the law to ‘provide for derogations for foreigners.’

A distinctive feature of most economic, social and cultural rights in the Czech Republic (hereinafter collectively referred to as social rights) is that individuals may invoke them only within the framework of laws enacted to implement these rights, as stipulated in Article 41 of the Charter of Fundamental Rights and Freedoms. For example, an individual cannot successfully file a constitutional complaint seeking the annulment of a law solely on the grounds that it violates a social right.

The distinct legal construction of social rights, as opposed to civil and political rights, has led the Czech Constitutional Court to apply a more lenient standard of review when assessing limitations on these rights.Footnote 9 Instead of employing the proportionality test, established in the 1990s as a relatively strict standard, the Court has opted for a more deferential rational basis test. Under this approach, a restriction on a social right, including the right to conduct business, will be upheld if the legislature demonstrates a rational connection between the aim pursued and the means chosen, even if the measures are not optimal or particularly well-designed, as the Court has repeatedly noted in its case law.Footnote 10 This results in broader legislative discretion, reflecting the understanding that social rights, including the right to conduct business, are subject to varying interpretations and may be shaped or limited through political processes in a democratic system.Footnote 11

Although some Czech legal scholars, even before the COVID-19 pandemic, criticised the vague intensity of judicial review in cases involving social rights and the insufficient articulation of the individual components of the rational basis test,Footnote 12 the distinction between the standards of review for civil and political rights, on the one hand, and social rights, on the other, was undisputed.Footnote 13 Both legal theory and practice accepted that the primary rationale for applying a more deferential standard to social rights was the need to avoid the stricter proportionality test, which the Czech Constitutional Court has consistently applied in reviewing interferences with civil and political rights.Footnote 14

At the outbreak of the COVID-19 pandemic in spring 2020, the Czech legal system lacked specific legislation tailored to managing a global pandemic.Footnote 15 Two statutes empowered executive authorities to adopt crisis measures: the Public Health Protection Act (PHPA)Footnote 16 and the Crisis Management Act (CMA).Footnote 17 The main distinction between them lies in the conditions under which they apply. Measures under the CMA may be adopted only after the Government declares a state of emergency in the strict sense, defined in the Czech Constitution as the least severe type of crisis situation.Footnote 18 According to the Constitution, a state of emergency may be declared in response to natural disasters, ecological or industrial accidents, catastrophes, or other threats that endanger life, health, property, or internal order and security to a significant degree.Footnote 19 The Government may declare a state of emergency in the strict sense for a maximum period of 30 days, with any extension requiring the approval of the Chamber of Deputies (the lower house of the Czech bicameral Parliament).Footnote 20

Both the PHPA and the CMA authorised the executive to impose measures restricting the freedom to conduct business during the COVID-19 pandemic. Specifically, the CMA permits, during a declared state of emergency, the restriction of business activities “to the extent necessary,” where such activities would “jeopardize the extraordinary measures being implemented or interfere with or impede their implementation.”Footnote 21 The PHPA allows, in order to avert an epidemic or the risk thereof, the restriction of contact between potentially infected individuals and the general population. These measures may include restricting movement between specific areas, limiting or prohibiting ceremonies, performances, sports events, public gatherings, markets and the operation of care facilities, schools, recreational activities, and accommodation and catering services.Footnote 22 A residual clause in the same provision authorises the Ministry of Health to “prohibit or order certain other activities to eradicate an epidemic or threat thereof.’Footnote 23 This clause has been criticised for its vagueness.Footnote 24 However, in a crisis marked by uncertainty, the legislature sought to avoid rigid constraints and instead granted public health authorities the flexibility deemed necessary to manage the situation. The central legal question, however, concerned the extent to which such a broadly worded clause could legitimately serve as a basis for restricting fundamental rights.Footnote 25 Interestingly, although the PHPA contains provisions specific to epidemics, these were intended to address local outbreaks, not a global pandemic.Footnote 26

III. Limited possibility to seek protection of the right to conduct business before the adoption of the special Pandemic Act

Following the outbreak of the COVID-19 pandemic in the Czech Republic, a range of extraordinary measures were adopted to restrict social contact, affecting the right to conduct business. However, the possibility of judicial review of these measures was limited.Footnote 27 In one of its initial rulings after the declaration of a state of emergency, the Constitutional Court declined to assess the legality of the declaration itself, reasoning that it constituted a political decision excluded from constitutional review.Footnote 28 As for the restrictions imposed on the right to conduct business under the measures under the CMA or the PHPA, challenging these measures in court proved difficult because of procedural barriers.

The Czech Constitutional Court has classified Government crisis measures issued under the CMA as sub-legislative regulations, meaning they have legal force lower than statutes. As a result, individuals subject to these measures cannot directly seek their annulment before administrative courts, as Czech administrative judiciary lacks the jurisdiction to review the conformity of sub-legislative regulations with primary legislation. This authority is reserved for the Czech Constitutional Court. However, individuals may not file a direct petition to the Constitutional Court to annul such a regulation, as only designated petitioners (such as specific public officials or institutions) have standing for direct review.Footnote 29 Affected individuals may challenge such measures only indirectly: if an obligation is imposed based on the regulation and a subsequent decision (e.g., of a punitive nature) is issued against them, they must first exhaust all available remedies. Only then can they request the Constitutional Court to annul both the decision and the underlying regulation on which it was based.Footnote 30

In a specific case concerning the right to conduct business, a restaurant owner filed a constitutional complaint against an extraordinary measure issued in October 2020, which, among other restrictions, ordered the closure of restaurants. In its decision of 26 January 2021, the Constitutional Court dismissed the complaint on the grounds that the complainant had not exhausted the available remedies in the administrative judiciary.Footnote 31 In this exceptional ruling, the Court referenced the jurisprudence of the European Court of Human Rights, acknowledging that actionable interference may arise not only from the imposition of a sanction for non-compliance but also from a legal provision that effectively compels an individual to violate the law in order to gain access to judicial review.Footnote 32 However, because the complainant had not first challenged the relevant crisis measure before the administrative courts, the constitutional complaint was dismissed. In subsequent proceedings, however, the Constitutional Court rejected the possibility of challenging such a crisis measure directly, even if non-compliance would have led to sanctions. According to the Court, this would constitute a circumvention of the rule that individuals lack standing to seek the annulment of sub-legislative regulations, a classification the Court has consistently applied to extraordinary Government measures.Footnote 33

It should also be noted that extraordinary measures are subject to the same review framework as other implementing regulations in proceedings before the Czech Constitutional Court. In addition to the absence of a special procedure with shortened time limits, the practice of replacing crisis measures with new, nearly identical measures has proved a significant obstacle to constitutional review. Because the original measures were no longer in force by the time a case reached the Court, it was often unable to adjudicate them.Footnote 34 According to its established case law, the Court does not review the constitutionality of legal regulations no longer in effect.

The only decision in which the Constitutional Court ruled on the merits of a case involving COVID-19 measures was issued on 9 February 2021. This decision was possible because the Court accepted an amended petition without granting the Government the standard 30-day period to respond. As in earlier cases, the original extraordinary measure had already been replaced with a new one. However, the Court found that the new measure was nearly identical to the previous one. It reasoned that allowing the Government to comment on the amended petition would likely have led to another replacement of the measure, resulting in what the Court described as “an absurd situation in which the case could not be decided because the Government was repeatedly given room to react to the regularly changing form of crisis measures at short intervals.”Footnote 35

The case concerned restrictions on the retail sale of goods. At the height of the pandemic, shops selling essential items, such as food, medicine and fuel, were permitted to remain open, while shops selling non-essential goods, such as clothes and toys, were ordered to close. The Government justified these measures by citing the need to reduce mobility and thereby limit social contact to contain the spread of the virus.Footnote 36 Until December 2020, the rule applied uniformly to entire stores: whether a shop could remain open dependent on whether essential goods predominated in its inventory. This policy allowed large supermarkets to remain open, including the sale of non-essential goods on their premises, while smaller specialised retailers, such as toy or clothing shops, were required to close. The resulting disparity illustrates that in the context of economic rights, the burden of restrictions tends to fall disproportionately on smaller, more vulnerable businesses.Footnote 37

As of 27 December 2020, retail sales became subject to regulation based on the nature of the goods sold, rather than the overall classification of the retail establishment. For example, the sale of non-essential items such as clothing or toys was prohibited in all retail outlets, including supermarkets that sold essential goods but also offered non-essential products. Consequently, the sale of non-essential goods had to cease, regardless of the type of store in which they were available.Footnote 38

At first glance, the revised regulation appeared to address concerns about discrimination against small businesses. However, in its review of the Government’s measure, the Constitutional Court identified a different problem: the excessive breadth and arbitrariness of the exemptions defining essential goods and services. The list included items such as arms and ammunition and cut flowers, with no justification provided for their inclusion. This absence of rationale for categorising certain goods as essential was the primary reason the Constitutional Court annulled the retail sales ban.

In its reasoning, the Constitutional Court stated:

Legal regulation, especially when it restricts fundamental rights, must also meet the requirement of rationality, i.e., it must be based on reasonable, generally acceptable reasons, and these reasons must also be apparent to the public. This requirement is one of the fundamental cornerstones of the rule of law, as the Constitutional Court has formulated it in its earlier case law on the prohibition of arbitrariness…. However, this concept is fundamentally alien to the practice whereby an executive authority adopts measures that substantially interfere with the fundamental rights of these individuals, without these measures being properly and rationally justified. In such a case, their legitimacy and the willingness of citizens to accept them will naturally diminish.Footnote 39

The reason this ruling remained the only decision of the Constitutional Court on the merits was that, less than a month after its issue, the Pandemic Act entered into force. This legislation changed the framework for reviewing extraordinary measures, introducing a centralised system of review by the Supreme Administrative Court (discussed in Section IV The Pandemic Act and its Interpretation by the Supreme Administrative Court in Relation to the Right to Conduct Business). Although this was the Court’s sole substantive decision concerning COVID-19 measures, it proved significant, becoming the basis for the Supreme Administrative Court’s subsequent case law requiring that extraordinary measures adopted by the Ministry of Health under the Pandemic Act be properly justified.

Before the adoption of the Pandemic Act, businesses were subject not only to Government crisis measures but also to obligations imposed under the PHPA in the form of “measures of a general nature.”Footnote 40 Unlike Government-issued crisis measures, these measures could be challenged by affected parties before the administrative courts. However, no specific procedural framework existed to account for the urgency of reaching a prompt final decision. Given the two-tier structure of the administrative judiciary and the substantial length of proceedings, it was impossible for individuals to obtain a final judgment in less than several months. This has been criticised by Czech scholars as an inadequate procedural mechanism, particularly in circumstances where a quick decision is required not only to ensure legal certainty regarding the legitimacy of rights restrictions but also to enable a quick public response during a crisis.Footnote 41

An examination of the courts’ early decision making during the initial months of the pandemic reveals a deferential and lenient approach.Footnote 42 Courts, particularly in relation to the right to conduct business, criticised the poor quality of many extraordinary measures, citing problems such as incoherence, discrepancies between announced and published versions and an absence of justification by the issuing authorities.Footnote 43 However, these deficiencies did not lead to the annulment of the measures, primarily because of procedural obstacles. The most significant was the inability to review measures that had expired during the course of the proceedings. Other obstacles included the limited avenues available for individuals to challenge such measures directly. Because the administrative courts were unable to overcome these procedural limitations through constitutional interpretation, the public experienced growing frustration with the inability to obtain effective legal protection against measures that substantially restricted fundamental rights. A shift occurred only after the legislature enacted a special law, the Pandemic Act, designed to address the shortcomings in judicial review.

V. The Pandemic Act and its interpretation by the Supreme Administrative Court in relation to the right to conduct business

In February 2021, growing distrust in the actions of the then-ruling minority Government in the Chamber of Deputies (the lower house of the Czech Parliament) led opposition MPs to push through the adoption of a special law aimed at addressing the ongoing public health crisis. The Pandemic ActFootnote 44 was intended as a lex specialis in relation to the general crisis legislation, its primary purpose being to address the legal shortcomings previously identified by the courts under the existing legal framework.Footnote 45

One of the core changes introduced by the Pandemic Act was the establishment of centralised, single-instance judicial review of extraordinary measures by the Supreme Administrative Court. The Act also explicitly imposed an obligation on the relevant authorities to provide justification for such measures. Another change was that the termination of an extraordinary measure no longer rendered judicial review moot, enabling the court to issue a declaratory judgment affirming the measure’s unlawfulness even after it had ceased to be in effect.

The new regulation introduced by the Pandemic Act addressed two of the most significant shortcomings in the previous system of judicial review. First it established a special procedure enabling relatively rapid, single-instance review of extraordinary measures affecting fundamental rights. Second, it closed the loophole that had allowed the Government to evade substantive judicial review by repeatedly replacing challenged measures with nearly identical ones.

The Pandemic Act achieved the intended unification of judicial review in a single instance and under a uniform procedural framework. Paradoxically, this led to a stricter approach towards social rights, including the right to conduct business. Under the new framework, authorities were required to justify the proportionality of any interference with individual rights, regardless of the type of right involved.Footnote 46 By contrast, outside crisis situations, the standard of review for social rights is more deferential, as noted in the introduction to this article. The Constitutional Court refers to this standard as the rationality test, under which a measure will be upheld if it has a rational connection to a legitimate aim, even if it is not necessary or stricto sensu proportionate.Footnote 47 It is unclear whether this stricter standard under the Pandemic Act was the deliberate intent of the legislature or an unintended consequence, particularly since the established, more lenient test for reviewing restrictions on social rights had not been the subject of significant criticism.Footnote 48

Because the obligation to justify extraordinary measures was tied to the requirement of proportionality, the Supreme Administrative Court initially did not assess the proportionality of the measures on their merits and instead focused on the absence of adequate justification for their proportionality.Footnote 49

One of the first decisions concerning the right to conduct business after the adoption of the Pandemic Act concerned the closure of convenience stores.Footnote 50 The owners challenged the ban on night-time sales, arguing that they suffered financial losses, as their customer base visited primarily during the night, when other retail shops were closed. In its detailed reasoning, the Supreme Administrative Court emphasised the importance of justifying extraordinary measures and concluded that the sales ban lacked sufficient justification. This decision proved crucial for the review of subsequent extraordinary measures. The Supreme Administrative Court drew on the Constitutional Court’s earlier retail sales ban ruling, which likewise emphasised the necessity of justification. The distinction, however, was that the Pandemic Act specifies the obligation to justify extraordinary measures, Previously, the courts had derived this requirement from rule-of-law principles. Interestingly, the Supreme Administrative Court has not confined itself to statutory interpretation but has also appealed to the legislature with broader reflections on the link between justification of restrictive measures and their legitimacy in the eyes of the public. In its decision of 1 July 2021, concerning restrictions on the operation of restaurants and hotels, the Supreme Administrative Court observed:

Extraordinary measures are an exceptional legal instrument of public authority, applicable only in specific situations characterised by the risk of danger or even disturbance affecting larger groups of the population, territories or areas of human life. […] Precisely because of their nature, they can be adopted only for the necessary period and to the necessary (personal, territorial, sectoral) extent. They must not become the “new normal,” precisely because they recall (with some exaggeration) a time of lack of freedom, when unjustified orders, prohibitions or restrictions were the order of the day. Their reasonableness, clarity, unambiguity, permanence, coherence, systemicity and, of course, their persuasiveness should, in an ideal situation, not even lead the addressees of the regulation to doubt not only its necessity but also its appropriateness, effectiveness and proportionality.Footnote 51

Extraordinary measures restricting the right to conduct business were typically broad in scope and defined specific categories of business activity to be limited or prohibited. The obligation to justify such restrictions can be interpreted with varying degrees of precision. In this context, the Supreme Administrative Court has adopted a balanced approach regarding the required scope and depth of justification. Where a wide range of activities is restricted, a detailed analysis of each right is unnecessary; a standard justification that the restricted activities pose a higher epidemiological risk is sufficient.Footnote 52 However, the Court refuses to accept formalistic justifications that contradict common experience and are therefore not rational.Footnote 53

In relation to the practice of replacing measures restricting the right to conduct business with new measures in quick succession, the Supreme Administrative Court criticised the failure to provide updated justifications for newly issued measures. Although the new measures differed only slightly from the originals, the accompanying justifications remained unchanged. The Court further noted that the evolving circumstances under which these measures were adopted were also not reflected in the reasoning.Footnote 54

Another problem that arose following the adoption of the Pandemic Act was the absence of a clear legal basis for certain restrictions on the right to conduct business. With respect to this right, the Act permitted, among other things, ‘restrictions on the operation of a commercial or manufacturing establishment or the operation of a commercial centre or the imposition of conditions for their operation.’Footnote 55 Based on this provision, the Ministry of Health issued measures prohibiting the consumption of food and drink in restaurants by banning public presence in such establishments. However, the Supreme Administrative Court adopted a restrictive interpretation of the statutory language, holding that the cited provision “applies, according to a literal interpretation of the language, only to commercial or manufacturing establishments, not to establishments where services are provided,”Footnote 56 such as restaurants.

A related issue concerned the Pandemic Act’s distinction between the concepts of prohibiting, restricting and imposing conditions on certain activities. The provision governing business operations permitted restrictions or the imposition of conditions only, not outright prohibitions. However, the ban on public presence in restaurants, as imposed by the Ministry of Health, did not constitute a restriction or condition on business activity; rather, it amounted to a prohibition. In doing so, the drafters of the measure exceeded the scope of authority granted by the Pandemic Act.Footnote 57 The Supreme Administrative Court later applied the same reasoning involving measures that restricted the operation of swimming pools, gyms and fitness centres.Footnote 58 In those cases, too, the prohibition on public entry was found to amount to a de facto ban on operation, rather than a permissible restriction or condition.Footnote 59

The case law discussed above indirectly addresses the broader question of legality in states of emergency.Footnote 60 In the debate often framed in academic literature as a conflict between legal and extralegal approaches to emergency governance,Footnote 61 Czech courts have aligned themselves with the legalist position. This is evident not only in the insistence that Governmental powers be explicitly grounded in law but also in the broader rejection of interpretations that deviate from the plain meaning of legal texts, i.e., interpretations contra verba legis. However, this legalist approach was not fully applied until after the adoption of the Pandemic Act, suggesting that the courts deferred to the legislature, as expressed in a special law adopted almost a year after the outbreak of the pandemic.

Another group of decisions concerning the right to conduct business focused on the justification for differential treatment of different groups of entrepreneurs. In the decision of 28 January 2022, the Supreme Administrative Court examined the disparity in infection control requirements between restaurants and cinemas. Under an extraordinary measure, cinemas were obliged to verify whether patrons were free of infection, specifically whether they had recovered from COVID-19 or had been vaccinated, before entry. The appellant, the largest chain of multiplex cinemas in the Czech Republic, argued that this obligation was discriminatory, as restaurant owners were not subject to the same requirement, despite no clear evidence of a difference in the epidemiological risk associated with visiting the two types of venue. The Supreme Administrative Court agreed with the appellant, holding that the distinction lacked a rational justification. Consistent with its earlier case law emphasising the necessity of reasoned justification, the Court found that the different treatment of businesses facing comparable epidemiological risks was not supported by any substantive rationale.

According to the Supreme Administrative Court, discriminatory regulation of business activity may arise not only from the unequal treatment of similarly risky situations, but also from the identical regulation of objectively different situations (in terms of the risk of contracting COVID-19). In its decision of 22 June 2022, the Court found that a measure restricting the organisation of mass events was unlawful.Footnote 62 The central flaw, in the Court’s view, was the Ministry of Health’s failure to distinguish between indoor and outdoor events, despite the clear difference in epidemiological risk. This equal treatment conflicted with the stated rationale of the measure itself, which acknowledged that “the risks associated with … the organisation of [mass events] … are to a large extent controllable by the organisers of the events through certain measures (e.g., ventilation).”Footnote 63

V. Conclusions

During the COVID-19 pandemic, the core of the right to conduct business was restricted, rendering business activity in many sectors impossible. However, a state of emergency does not relieve a State of its obligation to protect fundamental rights within its jurisdiction.Footnote 64 As the case law demonstrates, small businesses and service providers are particularly vulnerable to restrictive measures and often bear a disproportionate burden during crises.

In 2021, the Czech legislature adopted a regulatory framework that, at least formally, imposed a stricter standard for limiting the right to conduct business. Instead of applying a more deferential rationality test, the new approach required a full proportionality analysis, demanding justification for the necessity of adopted measures. However, in practice, the case law took a different path. Courts did not engage in a substantive assessment of suitability, necessity, and proportionality stricto sensu. Instead, they focused on formal criteria: whether the measure had a sufficient legal basis and whether the interference with individual rights was justified. In this context, two problems emerged: the absence of justification for differential treatment for various business activities, and the failure to account for varying levels of epidemiological risk across activities. This method of review, referred to in academic literature as semi-procedural,Footnote 65 rests on evaluating the procedural quality and transparency of the decision-making process, rather than its substantive merits. The limited substantive review was largely a consequence of insufficient factual information.Footnote 66 Faced with uncertainty, courts were reluctant to reach speculative conclusions unsupported by evidence. Similar results, such as the annulment of unlawful measures, could have been achieved by emphasising the absence of sufficient documentation and justification provided by the Government. However, proportionality analysis, as a legal standard for reviewing restrictions on fundamental rights, is a question of law, not fact, and thus falls within the court’s responsibility to assess under the principle of iura novit curia. A complete substitution of substantive review with procedural or semi-procedural scrutiny risks lowering the level of human rights protection. For example, the ban on the sale of non-essential goods disproportionately affected small businesses, while large department stores remained open and continued selling all goods (both essential and non-essential). If courts limit their inquiry to procedural sufficiency without addressing the substantive inequality of such measures, the danger arises that formally correct but materially unjust regulations may be upheld.

In addition to reviewing the justification of extraordinary measures, the case law in this area has been characterised by scrutiny of the legal basis for adopted regulations or the attention to distinctions drawn by the legislature in permitting certain activities while prohibiting others. The Supreme Administrative Court, for example, held that the legislature cannot characterise as a mere restriction those prohibitions that, in practice, amount to a complete ban on a business activity. This was evident in cases where restaurants were permitted to sell food only for consumption outside their premises, or where swimming pools, saunas and fitness centres were formally allowed to remain open but effectively prevented from operating because of prohibitions on customer entry. Following the adoption of the Pandemic Act, the courts appeared to adopt a legalist approach that was not unduly strict on the executive. Rather, it rested on the premise that the purpose of the special legislation was to establish a clear legal framework and to delineate the limits of executive authority. Where those limits were exceeded, the relevant measures were to be annulled. This judicial approach did not call for legislative amendment but instead reaffirmed core rule-of-law principles, particularly the separation of powers, which must remain operative even in states of emergency.

The Czech experience demonstrates that a strict proportionality test is not always a suitable tool for reviewing restrictions on social rights. A certain margin of democratic discretion must be preserved, particularly in crisis situations characterised by uncertainty. In such contexts, imposing a strict proportionality test would place a high burden on the government to justify its interventions with precision and certainty. When a fundamental right, such as the right to conduct business, is restricted, the impact is immediate and concrete: the right cannot be exercised. By contrast, the anticipated benefits to the public interest or to competing rights remain uncertain and speculative because of the evolving nature of the crisis. This uncertainty explains why governments often act on the basis of the precautionary principle, which supports pre-emptive action even in the absence of definitive evidence about the effectiveness of the measures. Under this principle, it is legitimate to impose restrictions to prevent potential harm, even if the outcomes are uncertain. The absence of scientific consensus on the efficacy of specific interventions should not, in itself, preclude government action aimed at averting crisis.Footnote 67

Funding statement

This research was supported by the Center for Inequality and Open Society, funded by the European Regional Development Fund (project no. CZ.02.01.01/00/23_025/0008690).

Competing interests

The author has no conflicts of interest to declare.

References

1 Monika Florczak-Wątor, “Constitutional Challenges in Emergency Governance: An Analysis of Poland’s Reluctance and Regulatory Ambiguities in States of Emergency” (2025) 16 European Journal of Risk Regulation 433–45. Fruzsina Gárdos-Orosz and Evelin Burján, “From Constitutional Risk Management to Constitutional Risk Management (Emergency Law Misuse) in Hungary” (2025) 16 European Journal of Risk Regulation 421–32. Tomáš Gábriš and Max Steuer, “The Consequences of COVID-19 Emergency Risk Mismanagement: The Rise of Anti-Evidence Decision Making in Slovakia” (2025) 16 European Journal of Risk Regulation 446–59.

2 For the criticism of the technocratic governance relying predominantly on the expertise of epidemiology and virology, see Joelle Grogan, “COVID-19, The Rule of Law and Democracy. Analysis of Legal Responses to a Global Health Crisis” (2022) 14 Hague Journal on the Rule of Law 349, 353.

3 Tom Ginsburg and Mila Versteeg, “The Bound Executive: Emergency Powers During the Pandemic” (2021) 19 International Journal of Constitutional Law 1498–535, Patrycja Dąbrowska-Kłosińska, “The Protection of Human Rights in Pandemics – Reflections on the Past, Present, and Future” (2021) 22 German Law Journal 1028–38. Antonios Kouroutakis, “Abuse of Power and Self-entrenchment as a State Response to the COVID-19 Outbreak: The Role of Parliaments, Courts and the People” in Matthias C. Kettemann and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart Publishing 2022) pp. 33–46.

4 Chiara Angiolini, “Right to Health and Freedom to Conduct a Business: The Role of the Principle of Proportionality” in Paola Iamiceli, Fabrizio Cafaggi and Chiara Angiolini (eds), Judicial Protection of Health as a Fundamental Right (Scuola Superiore della Magistratura, Rome 2022) pp. 235–43. This chapter presents court rulings from various European Union Member States concerning restrictions on the right to conduct business. These rulings show different approaches to this issue across jurisdictions.

5 For a more detailed examination of how this right is enshrined within the Czech constitutional framework, see the next section of this article. In this article, I will not discuss the application of this right in European Union law. For details on the right to conduct business in EU law, see Niall O’Connor, Business Freedoms and Fundamental Rights in European Union Law (Oxford University Press 2024).

6 Respect for Democracy, Human Rights and the Rule of Law during States of Emergency – Reflections. Venice Commission [online] (authors of the report: Nikos Alivizatos, Veronika Bílková, Iain Cameron, Oliver Kask and Kaarlo Tuori). CDP-PI(2020)005rev of 26 May 2020, [5.7.2020], pp. 4–5 (para 11). Available at: https://www.venice.coe.int/webforms/documents/?pdf=CDL-PI(2020)005rev-e. Zoltán Szente, “How to Assess Rule-of-Law Violations in a State of Emergency? Towards a General Analytical Framework” (2025) 17 Hague Journal on the Rule of Law 117, 131, Grogan (n 2) 360.

7 For the English text of the Czech Charter of Fundamental Rights and Freedoms, see https://www.psp.cz/en/docs/laws/listina.html.

8 Jan Wintr, “Článek 26” [“Article 26”] in Eliška Wagnerová et al. Listina základních práv a svobod. Komentář [Charter of Fundamental Rights and Freedoms. A Commentary] (Wolters Kluwer 2012) pp. 573, 576.

9 Pavel Ondřejek, “Limitations of Fundamental Rights in the Czech Republic and the Role of the Principle of Proportionality” (2014) 20 European Public Law 451, 461.

10 Zdeněk Červínek, “Proportionality or Rationality in Socio-Economic Rights Adjudication? Case Study of the Czech Constitutional Court’s Judgment in Compulsory Vaccination Case” (2018) 1 UCL Journal of Law and Jurisprudence – Special Issue 86, 95 referring to Czech Constitutional Court judgments of 20 May 2008 (File No. Pl. ÚS 1/08) and of 24 April 2012 (File No. Pl. US 54/10).

11 Ondřejek (n 9) 461.

12 The most comprehensive criticism in English can be found in: Marek Antoš, “The Czech Constitutional Court and Social Rights: Analysis of Case Law” in Pavel Šturma and Narciso Leandro Xavier Baez (eds.), International and Internal Mechanisms of Fundamental Rights Effectiveness (rw&w science and new media 2015) pp. 187, 189–195.

13 Červínek (n 10) 95, Ondřejek (n 9) 461.

14 Červínek (n 10) 95, Antoš (n 12) 188.

15 Zdenek Kühn, “Emergencies Under Czech Law” (2025) 16 European Journal of Risk Regulation 405, 418.

16 Act No. 258/2000 Coll., Public Health Protection Act, as amended.

17 Act No. 240/2000 Coll., Crisis Management Act, as amended.

18 Jan Malíř and Jan Grinc, “States of emergency and COVID-19. Czech Republic” in Monika Florczak-Wątor, Fruzsina Gárdos-Orosz, Jan Malíř and Max Steuer (eds), States of Emergency and Human Rights Protection. The Theory and Practice of the Visegrad Countries (Routledge 2024) pp. 17, 20, 30. However, Malíř and Grinc point out that the first few months of the covid pandemic were marked by great uncertainty about the legal basis for the extraordinary measures taken (Ibid., 32).

19 Art 5 para. 1 of the Constitutional Act No. 110/1998 Coll., on the Security of the Czech Republic, as amended.

20 Art 6 para. 2 of the Constitutional Act No. 110/1998 Coll., on the Security of the Czech Republic, as amended.

21 Section 5 lit. e) of the Crisis Management Act, as amended.

22 Section 69 para. 1 lit. b) of the Public Health Protection Act, as amended.

23 Section 69 para. 1 lit. j) of the Public Health Protection Act, as amended.

24 Malíř and Grinc (n 18) 31. Šimon Chvojka and Jan Kovalčík, “Judicial Review of COVID-19 Restrictive Measures in the Czech Republic” (2022) 2 Institutiones Administrationis – Journal of Administrative Sciences 112, 124. For the detailed criticism published in Czech, see Jan Wintr, “K ústavnosti a zákonnosti protiepidemických opatření na jaře 2020” [“On the constitutionality and legality of anti-epidemic measures in spring 2020”] (2020) 53 Správní právo 282, 293.

25 For a criticism, see Wintr (n 24) 293, Chvojka and Kovalčík (n 24) 124.

26 Jan Kudrna and Karel Řepa, “Právní úprava mimořádných situací a orgány veřejné moci a postupy určené k jejich zvládání před a během pandemie” [“Emergency legislation and public authorities and procedures designed to deal with emergencies before and during the pandemic”] in Jan Kysela, Karel Řepa et al. Reakce právního systému České republiky na covidovou pandemii [Response of the Czech legal system to the covid pandemic] (Leges 2022) pp. 31, 38.

27 Kühn (n 15) 413.

28 Resolution of the Czech Constitutional Court of 22 April 2020, Ref. No. Pl. ÚS 8/20. The only circumstance where the Constitutional Court could annul the declaration of a state of emergency was identified in paragraph 27 of this resolution, amounting to interference with the essential elements of a democratic state governed by the rule of law (so called “eternity clause” contained in Art. 9 paragraph 2 of the Czech Constitution).

29 See also Kühn (n 15) 413.

30 Miluše Kindlová, “The Constitutional Court” in Miluše Kindlová, Helena Petrův, Jan Kudrna and Marek Antoš, The Introduction to Czech Constitutional Law. (Charles University in Prague, Faculty of Law 2009) pp. 75, 84. David Kosař, “Conflicts between Fundamental Rights in the Jurisprudence of the Constitutional Court of the Czech Republic” in Eva Brems (ed), Conflicts Between Fundamental Rights (Intersentia 2008) pp. 347, 349–50.

31 Resolution of the Czech Constitutional Court of 26 January 2021, Ref. No. Pl. ÚS 1/21.

32 Ibid, paras 15–20.

33 Resolution of the Czech Constitutional Court of 13 April 2021, Ref. No. Pl. ÚS 103/20.

34 The procedural obstacle consisted in the fact that, before a decision could be taken, the Government had to submit its opinion on the question of constitutionality or unconstitutionality within 30 days, but the Government could also adopt a new measure within the same period, thus undermining the purpose of the whole procedure. In practice, this was the case, as the average duration of extraordinary measures was about 26 days: Chvojka and Kovalčík (n 24) 119. For more elaboration on this procedural obstacle, see also Malíř and Grinc (n 18) 37.

35 Judgment of the Czech Constitutional Court from 9 February 2021, Ref. No. Pl. ÚS 106/20 (unconstitutionality of the retail ban adopted in the context of the fight against the COVID-19 disease pandemic), para. 39.

36 Ibid, para. 30. It is not without interest that these grounds were regularly raised ex post, typically in the context of judicial proceedings reviewing the legality of the relevant measures. As previously noted, the absence of adequate justification in the drafting of emergency legislation has been a recurring problem in the Czech Republic since the outbreak of the COVID-19 pandemic. For more on this issue, see also Pavel Ondřejek, “Threshold of Justification of Emergency Regulations. On Coherentism Requirement for the Justification of Measures Adopted in the Czech Republic during the COVID-19 Pandemic.” (2021) 12 Archiwum Filozofii Prawa i Filozofii Społecznej. Journal of the Polish Section of the IVR 41–53.

37 Grogan (n 2) 364.

38 Government Resolution No. 1376 of 23 December 2020 on the adoption of a crisis measure (available at: https://www.vlada.cz/assets/media-centrum/aktualne/maloobchod-1376.pdf).

39 Judgment of the Czech Constitutional Court from 9 February 2021, Ref. No. Pl. ÚS 106/20 (unconstitutionality of the retail ban adopted in the context of the fight against the COVID-19 disease pandemic), paras 68 and 94.

40 A “measure of a general nature” possesses characteristics of both generally binding legal regulations and individual administrative decisions. It is a common form of administrative act in German-speaking countries. Such a measure is defined as “an administrative act addressed to a group of persons defined or identifiable by virtue of general characteristics or concerning the public nature of an object or its use by the general public.” – Art 35 para. 2 of the German Code of Administrative Procedure (Verwaltungsverfahrensgesetz – BGBl I of 29 May 1976, p 1253). For further explanation of this legal institution, see Ulrich Ramsauer et al. Verwaltungsverfahrensgesetz. Kommentar. (20th ed., C. H. Beck 2019) pp. 776–84, Paul Stelkens et al. Verwaltungsverfahrensgesetz. Kommentar. (6th ed., C. H. Beck 2001) pp. 1000–30. Measures of a general nature possess the same meaning in Czech law, as explained by Chvojka and Kovalčík (n 24) 120, Malíř and Grinc (n 18) 25.

41 Petr Mikeš, “Hledání cest soudní ochrany práv jednotlivců v době pandemie” [“Finding ways of judicial protection of individual rights in times of pandemic”] in Vojtěch Šimíček (ed), Dělba moci [Separation of Powers] (Leges 2022) pp. 139, 146.

42 Jan Petrov, “The COVID-19 Emergency in the Age of Executive Aggrandizement: What Role for Legislative and Judicial Checks?” (2020) 8 The Theory and Practice of Legislation 71, 92, Chvojka and Kovalčík (n 24) 122, 128, Malíř and Grinc (n 18) 36–7.

43 Malíř and Grinc (n 18) 33.

44 Act No. 94/2021 Coll. On Extraordinary Measures during the COVID-19 Epidemy.

45 Chvojka and Kovalčík (n 24) 113.

46 Section 3, para. 2, of the Pandemic Act requires justification of, among other things, “the proportionality of the interference with the rights and legitimate interests of juristic and natural persons.”

47 This is illustrated by the judgment of the Supreme Administrative Court of 29 July 2021, File No. 1 Ao 9/2021, in which ski lift operators challenged an extraordinary measure prohibiting their operation. The Court annulled the measure on the grounds that the requirement of necessity, specifically “whether less restrictive means was available to achieve the stated objective,” had not been justified. However, the necessity requirement forms part of the proportionality test, not the rationality test applied to economic, social and cultural rights outside states of emergency.

48 Červínek (n 10) 95.

49 Pavel Ondřejek, “Analýza judikatury Nejvyššího správního soudu týkající se požadavků na odůvodnění opatření podle tzv. pandemického zákona” [“Analysis of the Case Law of the Czech Supreme Administrative Court Concerning the Requirements for the Explanatory Memoranda of Measures Adopted under the So-called Pandemic Act”] (2024) 70 Acta Universitatis Carolinae – Iuridica 9, 13.

50 Judgment of the Supreme Administrative Court of 20 May 2021, File No. 8 Ao 4/2021.

51 Judgment of the Supreme Administrative Court of 1 July 2021, File No. 1 Ao 5/2021, para. 56. In the next paragraph, the court linked the requirement of justification to public compliance with extraordinary measures: “A regulation that is both practically universal and highly felt by many must have these characteristics simply in order to be accepted and obeyed by the majority of its addressees. A regulation of this type and scope can neither be controlled nor enforced on a wide scale. However, the resignation to enforce regulation by the public authorities leads to a further decline in trust in the law and the institutions that enforce it, because people, aware of this fact and doubting the meaning of regulation due to incomprehensibility and unreasonableness, do not respect the rules laid down. This may lead to a renewed deterioration of the situation and the need to adopt new regulation… Therefore, the court emphasizes the proper justification of extraordinary measures, so that it is understood not only by those who create them or legal professionals, but above all by all addressees.” (Ibid, para. 57).

52 Judgment of the Supreme Administrative Court of 16 June 2021, File No. 9 Ao 7/2021.

53 An illustrative example is the judgment of the Supreme Administrative Court of 15 June 2023, File No. 3 Ao 22/2021, which annulled part of an extraordinary measure imposing restrictions on the operation of solariums. The Court noted that in many cases solarium services involve minimal contact between individuals and therefore present a very low risk of epidemiological transmission.

54 Judgment of the Supreme Administrative Court of 28 June 2021, File No. 6 Ao 7/2021.

55 Section 2 para. 2 lit. b) § 2 odst. 2 písm. b) of the Act No. 94/2021 Coll. On Extraordinary Measures during the COVID-19 Epidemy.

56 Judgment of the Supreme Administrative Court of 21 May 2021, File No. 6 Ao 22/2021, para. 29.

57 Ibid, para. 34–5.

58 Extraordinary measure of the Ministry of Health of 23 April 2021, Ref. MZDR 14601/2021-6/MIN/KAN.

59 Judgment of the Supreme Administrative Court of 9 June 2021, File No. 8 Ao 15/2021.

60 Legality as an important mechanism for reinforcing individuals’ legitimate expectations regarding lawful behaviour in society has been extensively examined in legal theory. On this function of legality, see Scott Shapiro, Legality (Belknapp Press of Harvard University Press 2013) pp. 395–6.

61 Kim Lane Scheppele, “Legal and Extralegal Emergencies” in Keith E. Whittington, R. Daniel Kelemen and Gregory A. Caldeira (eds), The Oxford Handbook of Law and Politics (Oxford University Press 2008) pp. 165, 165–6, Szente (n 6) 122.

62 Judgment of the Supreme Administrative Court of 22 June 2021, File No. 8 Ao 13/2021.

63 Ibid, para. 67.

64 An exception arises in cases where fundamental rights are lawfully derogated, such as through the procedure specified in Art 15 of the European Convention on Human Rights.

65 Ladislav Vyhnánek et al., “The Dynamics of Proportionality: Constitutional Courts and the Review of COVID-19 Regulations” (2024) 25 German Law Journal 386, 395. The concept of semi-procedural judicial review originates from Ittai Bar-Siman-Tov, “Semiprocedural Judicial Review” (2012) 6 Legisprudence 271–300.

66 Borja Sanchéz Barroso, “Beyond the Principle of Proportionality: Controlling the Restriction of Rights under Factual Uncertainty” (2022) 9 Oslo Law Review 74, 76.

67 For a more detailed discussion of the role of this principle, see Pavel Ondřejek and Filip Horák, “Proportionality during Times of Crisis: Precautionary Application of Proportionality Analysis in the Judicial Review of Emergency Measures” (2024) 20 European Constitutional Law Review 27–51.