The Constitutional Court does not question the existence of a legitimate aim pursued by the contested emergency measure which consists in prevention or at least mitigation of spread of novel coronavirus disease (Covid-19). However, the regulation of the rights and obligations of individuals and thus decision-making on which group of population will retain their rights and which will, on the contrary, bear the burdens associated with the restriction, must not be a mere expression of political will in a modern democratic state governed by the rule of law.
While public power may be exercised only in cases provided for by law, the state of freedom serves as the basic state of the individual. Although the state power is constitutionally empowered to interfere with this basic state, the nature of this interference must respect the wording and meaning of Art. 2 (3) of the Charter of Fundamental Rights and Freedoms.
Every emergency measure is a political decision which must be founded on expert evidence, yet it is the Government who assumes the responsibility, rather than its expert advisers. Therefore, the Government is required to consider not only the specific expert evidence at its disposal, but it must also take into account the overall context and impacts of its measures on other areas of social life, both in the short and long term.
Effective review by the Constitutional Court is not possible without the Government duly explaining the need to issue the emergency measure (including the evidence on which it was founded) and duly and appropriately substantiating the necessary extent of restrictions on fundamental rights and the clarification of the obligations imposed.
I. By means of the Judgment of 9 February 2021, the Plenum of the Constitutional Court in proceedings pursuant to Art. 87 (1) (b) of the Constitution partially granted the petition of a group of Senators of the Senate of the Parliament of the Czech Republic (hereinafter “Petitioners”) and annulled the provisions of Section I/1 of the Government Resolution of 28 January 2021, on adoption of some emergency measures, due to their inconsistency with Art. 1 (1) of the Constitution and Art. 1, Art. 2 (3), and Art. 4 (4) in conjunction with Art. 26 (1) of the Charter of Fundamental Rights and Freedoms. In the remainder, the proceedings were discontinued, since the contested provisions of other emergency measures had ceased to have effect in the course of the proceedings before the Constitutional Court.
II. The Government Resolution of 28 January 2021 on adoption of some emergency measures introduced a blanket ban on retail sales and provision of services due to the Covid-19 pandemic. At the same time, the Government Resolution introduced numerous exemptions from this ban with the objective of allowing sale of essential goods and services. However, the Government failed to explain why some goods or services were deemed to be essential (incl. not only grocery stores, drugstores and pharmacies, but also flower shops, dry cleaners, haberdasheries, hardware stores, garden centers and gun shops) while other goods and services were not (e.g. stores selling winter clothes and footwear).
The Petitioners sought an annulment of the Government Resolution. They argued that the blanket ban on retail sales and provision of services – although with numerous exemptions – was arbitrary, disproportionate and inconsistent with fundamental right of individuals to engage in enterprise pursuant to Art. 26 of the Charter. The Petitioners acknowledged that the Government Resolution pursued (was meant to pursue) legitimate aim, i.e. prevention or at least mitigation of the spread of Covid-19, but they argued that the means to achieve this aim were irrational, arbitrary and discriminatory. In particular, they asserted that the Government failed to explain which criteria, if any, were used to decide which goods and services were “essential” (i.e. qualified for exemption from the blanket ban on retail sale and provision of services and thus can be sold) and which were “non-essential” (i.e. could not be sold due to restrictions).
It should be noted that with regard to the relatively short “life span” of emergency measures adopted in response to Covid-19 pandemic, the Constitutional Court previously held that if an emergency measure ceased to have effect in the course of the proceedings before the Constitutional Court, yet a similar or essentially the same norm was subsequently adopted in the form of a new emergency measure, the petitioners might amend the petition accordingly (i.e. seek annulment of the new emergency measure without having to file a new petition). This was the case in the present matter. This allowed the Constitutional Court to address the merits of the petition, even though the Petitioners originally contested emergency measures, which (formally) ceased to have effect long time before the Constructional Court had a chance to decide the case on merits.
III. The Constitutional Court emphasized that it did not question the existence of a legitimate aim pursued by the concerned emergency measure. It noted that the Government introduced the blanket ban on retail sales and provision of services – although with numerous exemptions – in order to prevent or at least mitigate the spread of SARS-Cov-2 virus and to prevent associated collapse of health care system and extensive damage to the health and lives of the population.
Even though the Constitutional Court declared that the contested Government Resolution on adoption of certain emergency measures pursued legitimate aim, the question remained whether unequal treatment of the various groups of entrepreneurs introduced by it might be considered justifiable and proportionate. Since the Government Resolution touched upon constitutional interests (fundamental right of individuals to engage in enterprise pursuant to Art. 26 of the Charter), the Constitutional Court had to analyse whether the aim pursued by the Government could be achieved by less restrictive means and weather the Government properly considered them before adopting the contested emergency measure. However, the Government was either unable or unwilling to provide any justification for necessity and proportionality of the emergency measure (at least throughout the course of the proceedings before the Constitutional Court). In particular, it was unable or unwilling to provide any justification or explanation as to why the blanket ban on retail sales and provision of services was necessary, why some goods and services were deemed “essential” and thus obtained exemption from the blanket ban (even though their classification as “essential” might be prima facie dubious), while others did not, and why less restrictive measures would not be able to achieve the desired effect.
The Constitutional Court noted that it was fully aware that the Government had to face issues associated with the pandemic crisis, which are extremely difficult to address through legal regulation. It also noted that public authorities (in the Czech Republic and abroad) lacked experience in resolving a crisis of a similar magnitude. The epidemic situation was dynamic and there was no consensus among experts on how to correctly asses the risks and manage the pandemic. At the same time, it emphasized that even in the times of pandemic the fundamental rights of individuals cannot be dependent on whims of the Government. This holds true especially for decision-making process in which the Government decides which part of the population would be forced to bear the burden of pandemic restrictions and which part would remain essentially unaffected by them.
Furthermore, the Constitutional Court was mindful of the fact that any emergency measure was a political decision which had to be founded on expert evidence (even though it is the Government who assumes the responsibility for emergency measures, not its expert advisers). Therefore, the Government was required to consider not only the specific expert evidence at its disposal, but also to take into account the overall context and impact of its measures on fundamental rights of different parts of the population, both in the short and long term. For this reason, it was essential for the Government to be able to provide rational justification of any such decision, its necessity and the reasons that led to its adoption. The Constitutional Court thus observed that if the Government is unable to provide adequate justification of its measures, they would not only lack legitimacy in the eyes of the public, but would also fail the least restrictive means test.
The Constitutional Court also noticed that the Government had opted for a blanket ban on all retail sales and provision of services while providing for a large number of exemptions which were reminiscent of a “telephone directory” (36 exemptions in total). It opined that the key deficit of the Government Regulation lied in the fact that it was not cognizable what kind of (expert) evidence, if any, guided the decision-making process of the Government when adopting the contested emergency measures. Even in times when consensus among experts is lacking and the Government has to adopt emergency measures based on imperfect information and expert evidence, it can never be constitutionally acceptable for the Government to decide purely on its political instinct and to adopt any emergency measures it deems fit. On the contrary, even in the times of pandemic and informational uncertainty, the decisions of the Government must be based on expert recommendations and all available information about the disease and its spread.
In addition, the manner in which the Government prohibited and allowed the sale of goods and provisions of services in the contested Government Regulation is of importance. The Constitutional Court stressed that it is not constitutionally acceptable to adopt a blanket ban on certain human activities which are protected by the Charter (e.g. retail sale and provision of services) and then re-enable certain – prima facie arbitrarily selected – activities affected by the prohibition in the form of exemptions from the blanket ban, all without any justification. The requirement of a rational justification of a measure which interferes with fundamental rights of individuals and in effect treats comparable entities differently is an immanent part of the discrimination test, i.e. the assessment of whether the difference in treatment is justified and proportionate. Only under such circumstances may this difference in treatment be considered justifiable. In modern democratic state governed by the rule of law, it is inconceivable that any law interfering with fundamental rights would lack any justification, let alone reasonable and convincing one, and the justification would remain obscure even throughout its subsequent judicial review. All the more so, justification is required for any regulation resulting in an unequal interference with fundamental right of individuals to engage in enterprise within various types of enterprise in the field of retail and services. Since the Government on one hand prohibited all retail sales and provision of services and on the other hand arbitrarily and without any justification – as to their necessity and significance for controlling the spread of SARS-Cov-2 virus among people – provided for numerous exemptions from this blanket ban, which resulted in unequal treatment of different kinds of entrepreneurs, the Constitutional Court concluded that the Government Resolution violated the right of individuals to equal access to the right to engage in enterprise pursuant to Art. 26 (1) of the Charter in conjunction with Art. 1 (1) of the Charter.
Moreover, the Constitutional Court could not ignore the fact that the Government had enough time to consider and justify the contested emergency measure since at the time of its adoption the pandemic had been raging for almost a year. Thus the Government should have been prepared to provide rational, scientifically supported justification for the adopted emergency measures since it had enough time to gather all necessary expert evidence, assess impact of various emergency measures on controlling the spread of SARS-CoV-2 virus among people and adjust its pandemic preparedness plan accordingly. From the perspective of the passage of time, it is now necessary to place higher demands on the justification of the interference with fundamental rights than was the case of the immediate response at the beginning of the pandemic in March 2020. The reason for this stricter scrutiny requirement consists in both the fact that the Government had substantially more information, practical experience and time to rethink and systematically justify the contested regulation, and the circumstance that the long-term and repeated interference with the fundamental right to engage in enterprise is significantly more invasive and “painful” than short-term and temporary restrictions.
The Constitutional Court concluded that it was well aware that legal regulations issued at the time of a declared emergency could not be subject to the same scrutiny as in time of “plain sailing” and therefore, for example, it is not always necessary to insist on a formalized explanatory memorandum. At the same time, however, it is impossible to accept the opposite extreme, i.e. a situation where the Government, even in proceedings before the Constitutional Court when a specific emergency measure is already under review, is unable or unwilling to state any relevant and specific reasons why the blanket ban is necessary, why less robust interferences with the fundamental rights of individuals are insufficient, or the rationality of the individual exemptions. Although it is unambiguous from the nature of the case that some of these exemptions are actually necessary (e.g. the sale of food, medicine or fuel), a number of other exemptions require a convincing explanation demonstrating that this does not amount to inadmissible arbitrariness by the Government (e.g. flower shops or gun shops). At the same time, this reasoning serves not only as a necessary basis for the review carried out by the Constitutional Court, but also for social acceptance and thus also the legitimacy of the emergency measures.
IV. Vojtěch Šimíček served as the Justice Rapporteur in the case. A dissenting opinion was submitted by Justices Jaroslav Fenyk, Josef Fiala and Vladimír Sládeček.
 Note – The blanket ban on retail sales and provision of services was introduced in late autumn, temporarily lifted before Christmas and subsequently renewed at the end of December 2020. Since then, the Government has introduced a number of similar bans which
 Note - Many emergency measures adopted by the Czech Government in response to Covid-19 pandemic were in force or had effect only for couple of weeks or even days and were subsequently replaced by new emergency measures which, however, laid down essentially the same obligations.