February 2021 – On 22 February 2021, the Czech Constitutional Court overturned a government-decreed general ban on retail sales and the provision of services in certain brick and mortar shops introduced in response to the COVID-19 pandemic. Governmental Decree No. 31/2021 Coll., adopted on 28 January 2021, implemented a general prohibition on all on-premise sales and services outside of 36 expressly specified categories of essential goods and services.

In response to a constitutional complaint submitted by more than two-thirds of Czech Senators, the Court assessed the measures from the perspective of a right to engage in business or to pursue other economic activities, a prohibition on discrimination, and the principles of the rule of law pursuant to the country's Charter of Fundamental Rights and Freedoms.

In its ruling, the Court re-affirmed the authority of the Czech government to restrict certain fundamental rights during a declared state of emergency. It also acknowledged the legitimate purpose and extraordinary nature of the anti-pandemic measures, coupled with pressure on the government to take decisive action – even with a lack of clear scientific findings to support the adoption of such measures.

Nonetheless, even crisis measures must be based on objective and reasonable rationale, said the Court. Accordingly, the government failed to provide a convincing justification for the necessity and suitability of such highly disruptive blanket measures. The Court also cast doubt on the constitutionality of a blanket restriction of fundamental rights which only offers limited exceptions.

Finally, the Court also condemned as arbitrary the government's selection of what it deemed to be essential goods and services. As the crisis measures lacked a clear explanation as to why certain goods and services (for example flowers or arms and ammunition) were considered essential – and therefore not subject to restriction – the government's emergency measures were found to be at odds with non-discrimination principles.

The judgment does not in fact abolish the relevant restrictions, as the decree under which they were announced expired on 14 February 2021. However, the ruling has nonetheless created a crucial framework for the legality of future restrictions on trade and services. It also opens the door for claims against the Czech state by those impacted by the overturned government decree.

Originally Published by Kinstellar, February 2021

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