Publications
Our publications in English and German
SIMON, R, Enhancing Environmental Sustainability through Reforming Czech Contract Law. In Tilak Ginige, Iain Green, Patrick Van Calster, Alain Simons, Joseph McMullen (eds.). Social and Scientific Uncertainties in Environmental Law, Intersentia, 2024, s. 384–416.
The book is available in open access here.
Abstract: Originally, European consumer law was framed as being for boosting the internal market and welfare. However, with the growing awareness of planetary boundaries and climate change, the negative impacts of consumerism have created an issue which European lawmaking is supposed to tackle. To ensure the European Union´s commitments towards the United Nations (UN) Sustainable Development Goals, a more sustainable single market for businesses and consumers was to be achieved. Thus, the first legislative packages on sustainable consumption and production solely targeted production, but sustainable policies slowly arrived in the field of consumer legislation.
The Sale of Goods Directive, which should redraft and modernise consumer sales law, was the first step towards enhancing environmental sustainability in consumption. This chapter investigates how far the Czech implementation has contributed to these aims. After a brief explanation of why promoting sustainability is a binding target for the European and national legislators, national best practices, designed to improve sustainability through contract law, in other European countries, are presented; and, finally, it is analysed how far the Czech transposition of the 2019/770/EU Directive ensures sustainability.
FEIGERLOVÁ, M. Contribution of a National Human Rights Body to Uncovering Climate-Related Corporate Responsibility: Extraterritoriality and Human Rights Due Diligence. In Elena D'Alessandro (ed.) e Davide Castagno (ed.). Reports & Essays on Climate Change Litigation, Università degli Studi di Torino, 2024, s. 133–158, ISBN: 9788875902940.
The book is available in open access here.
Abstract: The non-judicial inquiry conducted by the Philippine Commission on Human Rights regarding the so-called Carbon Majors (In re Greenpeace Southeast Asia and Others) stands as an early example of the assertion of human rights jurisdiction with respect to foreign companies in the context of climate change. The chapter discusses in detail the issue of corporate responsibility to respect human rights in the context of climate change and the related concept of corporate climate due diligence. Based on the Commission's findings, it analyses the different substantive elements of the climate-related human rights duty, the gaps in domestic legal frameworks, and the directions for future regulatory developments. While the Commission's final report was brief on the issue of extraterritoriality in the context of human rights and business, it offers inspiration for other national human rights institutions in examining corporate responsibility, including those operating outside their territories.
BALOUNOVÁ, E. The First Czech Strategic Climate Lawsuit with the Focus on the Cross-fertilisation of Court Decisions. In Elena D'Alessandro (ed.) e Davide Castagno (ed.). Reports & Essays on Climate Change Litigation, Università degli Studi di Torino, 2024, p. 65–78, ISBN: 9788875902940.
The book is available in open access here.
Abstract: It is the case Klimatická žaloba, z.s. and Others v. Government of the Czech Republic and Others, the first Czech strategic climate lawsuit, which is presented in this chapter. In June 2022, the Prague Municipal Court, serving as the first-instance court, surprisingly ruled in favour of the plaintiffs. However, in February 2023, the appellate court, the Czech Supreme Administrative Court, overturned this decision. The chapter delves into these two rulings, emphasizing the cross-fertilization of court decisions in climate litigation. The Prague Municipal Court primarily referred to the Urgenda and Family Farmers climate cases. On the other hand, the Supreme Administrative Court asserted the non-binding nature of the climate judgments from other jurisdictions while citing some selected cases. The author contends that this selection lacks a systematic approach. At the same time, the court's stance underscores the significance of international climate litigation.
BALOUNOVÁ, E. Climate Litigation: Targeting the Aviation Sector. Chinese Journal of Environmental Law, 2023, Vol. 7, Issue 2, p. 288–300, https://doi.org/10.1163/24686042-12340111. Special Issue: Climate Litigation, edited by Maria Antonia Tigre and Otto Spijkers.
The article is available here, the access to the fulltext may depend on your library subscriptions.
Abstract: With climate litigation growing in importance, the aviation industry, as one of the most energy-intensive forms of consumption, has been also challenged. This article identifies five types of climate litigation concerning the aviation sector, and analyses two main arguments that have led to the dismissal of several types of cases.
First, the courts have concluded that the Paris Agreement does not apply to international aviation and thus does not commit the parties to the Agreement to reduce emissions from this sector. The second argument for dismissal was the lack of the Paris Agreement’s direct effect, an argument that is raised mainly in the airport expansion cases, as these plans for expansions were often approved by the local authority. To date, only the so-called ‘climate-washing’ claims and the ‘climate-necessity’ defence cases have resulted in favourable outcomes with respect to climate action. The article notes that the climate-washing cases, including claims over carbon offsetting and fuel sustainability, are on the rise, thus drawing attention to the adequacy of the relevant regulatory instruments to ensure the decoupling of the industry from its CO2 emissions.
MÜLLEROVÁ, H. – BALOUNOVÁ, E. – RUPPEL. O. – HOUSTON, L. Building the Concept of Just Transition in Law: Reflections on its Conceptual Framing, Structure and Content, Environmental Policy and Law, 2023, Vol. 53, Issue 4, p. 275–288, DOI: 10.3233/EPL-230012.
The article is available here.
Abstract: This article focuses on the concept of just transition, which has recently greatly expanded in the climate debate, expressing the demand to adopt and implement climate policies leading to decarbonisation in a way that maintains equity and justice. Building on previous research on the concept of just transition in other disciplines of social sciences, and on the concept’s appearance in international climate law instruments and law literature, we analyse the just transition in the field of law. We seek to clarify its conceptual framing, to define its meaning, and to determine its position and limits in law. We then examine it vertically (for each level of law) and horizontally, addressing the main criteria that define its content, i.e., human rights and legal principles.
MÜLLEROVÁ, H. – SNOPKOVÁ, T. – ZICHA, J. Water policy and legislative responses to climate change in the Czech Republic. International Journal of Water Resources Development (2023), published online on 21 August 2023, https://doi.org/10.1080/07900627.2023.2238085.
The article is available here, the access to the fulltext may depend on your library subscriptions.
Abstract: The recurring floods and droughts in the Czech Republic show that climate change requires far-reaching changes in water management. We analyse the responses already reflected in Czech water policy and legislation at three levels: strategic, statutory and constitutional. We first describe the substantial changes that have been satisfactorily introduced into the Czech government's policies. We then trace the far less successful developments in the law, which have so far essentially been limited to drought plans and restrictions on water extraction during droughts. At the core, we concentrate on the political attempts to constitutionalize water protection.
MÜLLEROVÁ, H. – BALOUNOVÁ, K. Erste tschechische Klimaklage: Schwierigkeiten bei der Ableitung der Klimaschutzverpflichtungen der Tschechischen Republik und die Klimadimension des Menschenrechts auf eine günstige Umwelt. Nachhaltigkeits Recht, 2023, Vol. 3, Issue 2, (July 2023), p. 215–218, https://doi.org/10.33196/nr202302021501.
The article (in German) is available here, the access to the fulltext may depend on your library subscriptions.
Abstract: Vor kurzem wurde das erste Klimaverfahren in der Tschechischen Republik entschieden, in dem ein Verband den Staat wegen mangelnder Maßnahmen zur Minderung der Treibhausgasemissionen (Mitigation) geklagt hat. Das erstinstanzliche Gericht gab den Kläger*innen in der Klimaschutzsache Recht. Das Oberste Verwaltungsgericht lehnte dies jedoch ab und verwies die Sache zur erneuten Verhandlung und Entscheidung zurück. Dieser Artikel fasst den Inhalt der Klage zusammen und erläutert die Argumentation des erstinstanzlichen Gerichts und des Obersten Verwaltungsgerichts.
Abstract in English: In the Czech Republic, the first climate case has been recently decided, in which an association sued the state for failing to take measures to reduce greenhouse gas emissions (mitigation). The court of first instance ruled in favour of the plaintiffs in the climate protection case. However, the Supreme Administrative Court rejected this and remanded the case for a new hearing and decision. This article summarises in German the content of the lawsuit and explains the reasoning of the court of first instance and the Supreme Administrative Court.
FEIGERLOVÁ, M., Renewables under the scrutiny of international investment law: the feed-in-tariff. In Weishaar, S. E., & de Graaf, K. J. (eds). In The Future of Environmental Law. Ambition and Reality. Edward Elgar Publishing, 2023, s. 141-157, ISBN: 978 1 03531 463 8. You can buy the book here.
Abstract: Environmental law is evolving from negotiating and prescribing environmental policies to enforcing time-bound, measurable and achievable goals in order to secure a sustainable future. The book analyses the legal instruments that have been (un)successful in working towards requisite targets for ecological sustainability. As an essential prerequisite to successfully addressing the climate change crisis is to make progress in the area of energy transitions, this chapter focuses on renewable energy support in the form of feed-in-tariffs that offer investors payment schemes for a determined period of time. Renewable energy incentives and their termination or alteration, even if compliant with national law, can contravene state commitments arising from international investment agreements. The chapter examines the international investment tribunal awards rejecting claims challenging the introduction of a Czech solar levy and tracks the development in modern investment treaty drafting which seeks to limit investors’ rights arising from the fair and equitable treatment standard being the basis of these investment claims. This should provide more clarity on the scope of protection and limit states’ exposure to investment claims.
SIMON, R. Ambitious Air Quality Plans, Disappointing Reality. České právo životního prostředí, 3/2022 (65) s. 81–99. The fulltext of the whole issue will be soon available on the website of the Czech Environmental Law Society here. The article is in English.
Abstract: According to the WHO, air pollution is the biggest environmental risk to public health, although most Member States show a profound lack of ambition to implement European law and comply with their own National Air Quality Programmes. The CJEU has already stated that 13 countries have failed to fulfil their obligations according to Directive 2008/50/EC on ambient air quality and cleaner air for Europe. Nevertheless, no enhanced activities are visible among the Member States. This article argues, that the low level of enforcement of national air quality agendas is caused, on one hand by the lack of strong and deterrent sanctions for infringement at the European level; and on the other hand, because of allocating policy competencies across competing institutions at national level. This article proposes - after analysing the main European and national gaps, based on the Czech case study – the legislative amendments which seem to be necessary to achieve cleaner air for Europe.
SIMON, R. Case C-145/20 Porsche Inter Auto and Volkswagen – Manipulated software as a minor lack of conformity? Journal of European Consumer and Market Law, Vol. 12/2023 Issue 2, p. 71–75. The journal is available here.
Abstract: The Dieselgate scandal is permanently enriching our national and European case law. This mass harm is extensive, testing the effectiveness of the enforceability of consumer sales law, but it also deeply questions the adequacy of the European vehicle type approval framework and the market surveillance performed based on it. This summer, the CJEU published the second wave of judgments, based on the preliminary ruling references from the Austrian Supreme Court, the Eisenstadt Regional Court and the Klagenfurt Regional Court, challenging the permissibility of the follow-on software replacing the inadmissible “switch software”. Two of these follow in the wake of the earlier French ruling on defeat devices on diesel engines, interpreting Regulation (EC) No 715/2007 on type approval and the third case, the judgment C-145/20 answers essential legal questions regarding the sales guarantee, especially on the conformity of goods, which will be the focus of this article. After a short summary of the C-145/20 case and the applicable Austrian law (para. II), this article will answer whether the consumer can reasonably expect that an approved vehicle filters harmful emissions from its engine; and whether fitting a prohibited defeat system should be seen as a minor lack of conformity, as understood by the Directive on Sale of Consumer Goods (afterwards SCG), if the purchaser acquired the vehicle even though he was aware of the presence of such a device (para. III) Furthermore, it will claim that the judicature cannot replace the omitted market surveillance, and predicts a third wave of claims brought by NGOs against vehicle manufacturers and market authorities for causing environmental harm (para. IV).
SIMON, R. – HRÁDEK, J. The Impact of the EU Directives 2019/770 and 2019/771 – Czech Republic. IN Alberto De Franceschi and Reiner Schulze (eds.) Harmonizing Digital Contract Law. The Impact of the EU Directives 2019/770 and 2019/771 and the Regulation of Online Platforms. Nomos, 2023, p. 179 – 203. You can buy the book here.
Abstract: The Twin Directives on Digital Content and Services (hereafterDCD) and on the Sale of Goods (SGD) were expected to be implemented by the European Member States to reshape their national Sales Law regulations by the end of 2021, so they could better tackle the challenges of our Digital Age. However, the Czech legislator was unable to comply with the implementation period; but, from the perspective of the legislator’s technique, the Czech Republic follows the path of those countries (e.g. Germany and the Netherlands), which included their substantive consumer legislation in their Civil Code, despite the risk of making them a constant construction site caused by the ever-changing EU consumer law. This transposition approach on one hand undoubtedly raises the gravity of the codification, expecting a smooth creation of further building blocks; however, on the other hand, it enables the Code to solve future challenges, and should be prized for its easier usability by practitioners. In this chapter the impacts of European legislation on the development of private law in the Czech Republic has been analyzed in great detail.
MÜLLEROVÁ, H. Building Collective Redress in Europe: Seeking Solutions for the Environment and Climate. European Law Review 1/2023 (48), p. 84–102.
The pdf offprint of the article is available here, with the following obligatory statement: "This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in European Law Journal as ‘Building Collective Redress in Europe: Seeking Solutions for the Environment and Climate’, Issue 1/2023 (Vol. 48), p. 84-102, and is reproduced by agreement with the publishers."
Abstract: Collective redress mechanisms have been part of EU law for several decades. They focus on strengthening the position of the “weaker party” in litigation, especially in the consumer and competition fields. More recently, the EU has also tried to introduce collective redress mechanisms to the environmental protection sector, where they are known under the term “access to justice in environmental matters”. However, neither the legislative nor the interpretative attempts have so far proved successful. This article aims to uncover possible reasons for this failure, and to examine whether and on what conditions environmental law and emerging climate law are fitting sectors for collective redress mechanisms. To that end, the paper analyses the main functions and objectives of environmental and climate harm cases, from the perspective of collective redress patterns. As a result, it suggests that when environmental collective redress is addressed, a distinction should be drawn between harms to persons and harms to the environment.
MÜLLEROVÁ, H. – AČ, A. The First Czech Climate Judgment: A Novel Perspective on the State’s Duty to Mitigate and on the Right to a Favourable Environment. Climate Law. 3–4/2022 (12), s. 273–284. ISSN: 1878-6561. Fulltext available here.
Abstract: In June 2022, a Czech climate lawsuit, Klimatická žaloba ČR, z. s. and Others v. Government of the Czech Republic and Others was decided by a first-instance court.
The litigation was led against the Czech state for insufficient climate mitigation and adaptation effort. The Municipal Court in Prague largely upheld the plaintiffs’ claim that the Czech mitigation measures adopted to date were contrary to the Paris Agreement; and it found that the country must substantially strengthen its reduction rate of greenhouse gas emissions. This result—the first of its kind in the Czech Republic—was a surprise to many in a country whose courts have been conservative in environmental matters. The judgment fits in well with current trends in climate litigation and follows the arguments of landmark climate cases such as Urgenda. This article provides a summary of the lawsuit and analyses two of the most important parts of the judgment: the court’s reasoning on the state’s obligation to reduce greenhouse gas emissions and its ‘climatic’ interpretation of the fundamental right to a favourable environment, as guaranteed by the Czech Constitution.
FEIGERLOVÁ, M. Human Rights Responsibilities of Corporations and Climate Change: Carbon Majors Inquiry. 70th anniversary of the European Convention on Human Rights. Praha: Univerzita Karlova, 2021 - (Šturma, P.; Tymofeyeva, A.), s. 86-94. ISBN 978-3-946915-66-9. You can buy the book here.
Abstract: The celebration of the 70th anniversary of the ECHR provides an opportunity to reflect on the business and human rights debate which has been slowly progressing over the last decade and appears to be aspiring at new dimensions, not only in the context of climate change. A draft treaty on responsibility of transnational corporations with respect to human rights is being debated under the auspices of the UN Human Rights Council. At the same time, the Philippines Commission on Human Rights, after a four year inquiry on the impact of climate change on the human rights of the Filipino people, concluded that the biggest oil companies (Carbon Majors) could be found legally and morally liable for human rights violations arising from the impacts associated with climate change. The report of the Commission is yet to be published but based on pleadings of the petitioners and amici curiae briefs submitted in support of the petition it can be already analysed what arguments alleging corporations’ accountability for the human rights harms caused to Filipino citizens as a result of climate change were applied. The article reflects on the inquiry and considers the use of human rights in lawsuits against fossil fuel corporations raised in the context of climate change.
FEIGERLOVÁ, M. The Modernizartion of the Energy Charter Treaty to Enable Climate Action. Czech Yearbook of Public & Private International Law, 2021, Vol. 12, pp. 383-397, ISSN 1805-0565. Available here.
Abstract: Negotiations on the modernization of the Energy Charter Treaty are currently undergoing at the initiative of the EU, all the while some EU member states are being sued for violation of this treaty arising from measures adopoted by their governments to meet climate change objectives. The alignment of the treaty with the Paris Agreement is one of the main points of the reform. The article discusses the proposed amendments aimed at turning the Energy Charter Treaty into a climate-friendly agreement and evaluates the suitability of the reform elements for achieving climate goals and how the EU proposal impacts both carbon intensive and clean energy investments.
FEIGERLOVÁ, M. Responsibility of Transnational Corporations under the Draft International Treaty on Business and Human Rights in General and in the Face of Climate Change. In Czech Yearbook of Public & Private International Law, 2020, Vol. 11, pp. 475-490, ISSN 1805-0565, ISBN 978-80-87488-38-6. The article is accessible here.
Abstract: The article addresses a draft legally binding instrument on business and human rights. It analyses the main principles of the proposed treaty (scope of its application, binding nature of the instrument, and liability of companies), the draft’s reflection on climate protection, and obstacles that have accompanied its elaboration (in the wording of 16 July 2019). Transnational corporations have been named as being largely responsible for causing world’s emissions and environmental degradation. The proposed treaty has been expected to bring enhanced protection of human rights in the context of business activities and prospectively to articulate obligations for businesses with a transnational character. However, the revised draft of 2019 has many shortcomings and falls short of considering issues of climate change and sustainable development.