Amendment to the Czech Code of Administrative Procedure introduces the legal fiction of approval via affirmative binding opinion

Amendment to the Czech Code of Administrative Procedure introduces the legal fiction of approval via affirmative binding opinion TEASER On 1 January 2021, an amendment to the Code of Administrative Procedure and the Building Act came into force which introduces important changes regarding the issuance of what is known as “binding opinions by affected government bodies”, and introduces the fiction of an affirmative binding opinion with respect to binding opinions which were issued to form the basis for decisions under the Building Act.

Delays are common when it comes to the issuance of binding opinions by public authorities who are involved in a given matter; in fact, this is one of the key factors why permitting procedures for building projects are so protracted in the Czech Republic. An amendment bill is responding to this dire fact by introducing binding time periods for the issuance of such binding opinions. Administrative authorities are newly required to issue the binding opinion “without unnecessary delay”, and in any case no later than within 30 days from the date of filing of the request for the opinion. This time period may be extended by up to an additional 30 days if the binding opinion presupposes an on-site inspection, or if the case is particularly complex.

However, the time period for issuance of the binding opinion is stayed if the request for the opinion is found to fall short of the mandatory requirements under the law in terms of content and form or if it otherwise suffers from defects, and the administrative authority has called upon the requesting party to remove these defects. Once this has been done, the time period for the issuance of the binding opinion begins anew.

As for binding opinions which are supposed to serve as the basis for a decision under the Building Act, the above-mentioned amendment goes even further, by introducing the legal fiction of an accommodating binding opinion. In other words, if the administrative authority fails to render the binding opinion needed for the decision under the Building Act in due time, then it shall be assumed that a binding opinion was rendered which approves the building project without any conditions.

Having said all that, the purpose of binding opinions is to defend certain public interests which are protected by special law, and this protection obviously may not be entirely neglected. With this in mind, the amendment empowers the superior administrative authorities to issue a new binding opinion with which to quash the fictitious accommodating opinion, if the requirements for issuing a binding opinion on approval without conditions were not in actual fact met. This is the case, in particular, if the first-instance administrative authority should have issued a dismissive binding opinion because the project under scrutiny violates a public interest protected by special law, but failed to do so within the statutory time period. The higher-instance administrative authority may issue the new binding opinion within six months from the day on which the decision that relied on the erstwhile opinion attained final force. The issuance of such a new binding opinion would give grounds for a reopening of proceedings, which in turn would lead to a new decision (that takes into account the new binding opinion).

According to the relevant methodology issued by the Ministry for Regional Development, if a fictitious binding opinion were to be challenged in an administrative appeal, the procedure would be the same as in the case of a “real” accommodating opinion which included no conditions. Consequently, the appellate authority would have to ask the administrative body which is superior to the authority that “issued” the fictitious binding opinion to either uphold that fictitious opinion or to modify it.

It remains to be seen whether the new rules for the issuance of binding opinions will stand the test of time, and will actually expedite permitting procedures for building projects in practice, and also whether petitioners will increasingly be confronted with calls by the authorities to remedy their “defective” requests for a binding opinion. The legal fiction of the accommodating binding opinion is in fact itself a double-edged sword – on the one hand, it may well speed up permitting procedures, but on the other hand, it brings a greater risk that opinions will be contested in the appeal, followed by the issuance of a new binding opinion by the superior authority even after the desired permit was issued and has attained legal force.

Act No. 403/2020 Coll., amending Act No. 416/2009 Coll., on the acceleration of construction projects in transportation, water, and energy infrastructure and electronic communications infrastructure, as amended, and certain related laws

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