The inconsistent decision-making practice of the individual senates at the Supreme Administrative Court regarding the character of certain binding opinions (issued by authorities-as-stakeholders for the purposes of fast-track proceedings under the Building Act) means additional uncertainty for those who plan to erect a building.
Sec. 149 of the Code of Administrative Procedure defines the „binding opinion“ as an administrative act performed on a legal basis which does not qualify as a separate decision within administrative proceedings, and the contents of which are binding for the operative part of the ultimate decision by the administrative authority. Even so, we find that binding opinions are regularly issued under Czech law which are actually based on special laws dealing with only an individual aspect of environmental protection (such as the Nature and Landscape Protection Act or the State Monument Protection Act) and which for all intents and purposes do qualify as administrative decisions.
At the same time, it is of key importance to differentiate in what form a specific binding opinion was issued, in terms of whether it may be subject to a review and in terms of the possible defense available against such a binding opinion. A binding opinion issued in the form of an administrative decision within administrative proceedings may standardly be fought by bringing an appeal within administrative proceedings; such an opinion may also be independently reviewed by the administrative courts.
By contrast, a binding opinion within the meaning of Sec. 149 of the Code of Administrative Procedure qualifies as an administrative act performed under Part IV of the Code of Administrative Procedure, and thus is not a „decision“ and cannot be separately appealed or be subjected to a separate review by the administrative courts. In other words, binding opinions of this kind can only be fought later, within the context of appellate proceedings against (or a court review of) such a decision that was based on the said binding opinion. In this manner, the stage of review of binding opinions of this kind is being postponed until later.
According to the Supreme Administrative Court, the formal differentiation of what kind of binding opinion is to be issued crucially depends on whether the binding opinion in the given matter represents the definite (or only, final, etc.) decision or whether it serves merely as a basis for the issuance of the eventual final decision.
Going beyond the framework of this general rule, the form of binding opinions is usually determined by individual laws, each of which is concerned with one particular aspect of conservation and environmental protection. For instance, Sec.90 (1) of the Nature and Landscape Protection Act expressly stipulates that binding opinions which are issued on the basis of that act as material for a decision within the meaning of special law qualify as a binding opinion within the meaning of the Code of Civil Procedure (as opposed to a decision). A similar rule is e.g. contained in Sec. 44a (3) of the State Monument Protection Act.
However, the above differentiation can give (indeed, has given) rise to problems in connection with binding opinions which are issued for the purposes of fast-track proceedings under the Building Act – e.g. for the purpose of obtaining a land-use approval or of an approval of the construction of an announced building project. The outcome of these fast-track procedures usually isn’t a proper administrative decision (as e.g. the zoning decision would be) but a different administrative act (such as the above-mentioned land-use approval). In its decision 2 As 163/2016-29 of May 2017, the Supreme Administrative Court had this to say with respect to the problem: the criterion for differentiating between various forms of binding opinions (as to whether they represent material underlying the final decision) must be interpreted broadly so as to encompass cases in which the binding opinion serves as the underlying material for a procedure under special law irrespective of whether such procedure ultimately leads to an administrative decision or to another administrative act.
If one followed this decision by the Supreme Administrative Court, then binding opinions issued by the relevant bodies for the purposes of a fast-track procedure under Building Law would have to be deemed issued pursuant to Sec. 149 of the Code of Administrative Procedure (i.e., not as a decision), and therefore would not be separately subject to review. Unfortunately, shortly afterwards, a different senate of the Supreme Administrative Court handed down a diametrically opposed ruling (in January 2018, case reference 8 As 241/2017-36) stating that – since the zoning approval is not an administrative decision but „another administrative act“ under Part IV of the Code of Administrative Procedure – binding opinions issued by the state monument protection services represent a separate administrative decision: they don’t serve as the basis for any decision by the building office (because none is being issued).
The inconsistent decision-making practice of the individual senates at the Supreme Administrative Court regarding the character of certain binding opinions, issued for the purpose of fast-track proceedings under the Building Act, means additional uncertainty for those who plan to erect a building, as it is currently unclear whether or not such binding opinions can be separately challenged or reviewed. Let us hope that the Supreme Administrative Court will soon unify its case law in this respect, preferably in the form of a ruling by the extended senate.
Code of Civil Procedure (Act No. 500/2004 Coll.) Building Act (Act No. 183/2006 Coll.) Nature and Landscape Protection Act (Act No. 114/1992 Coll.) State Monument Protection Act (Act No. 20/1987 Coll.) case law of the Supreme Administrative Court (2 As 75/2009-121, 2 As 163/2016-27, 8 As 241/2017-33 and others)