The book analyses the phenomenon of ‘public interest’ in a comprehensive manner in different areas of law, both public and private. The term ‘public interest’ can be found in a wide range of legislation and it is used extensively in judicial practice and public administration. Yet, it has received surprisingly little attention from academia. As a result, it is used for various, often contradictory purposes. Justifications of its application are rarely convincing and the concept is often confused with similar legal institutions, which, however, serve quite different purposes. Sometimes, it is considered to be a common denominator of a number of different categories and consequently mixed up with terms like state interest, society's interest, public welfare, etc.

The book's objectives are therefore manifold. Above all, it aims to provide a definition of the notion of public interest, flesh out its structure and determine its main attributes, particularly against the background of the notion of private interest. Achieving this goal requires an analysis of the concept's philosophical underpinnings, historical developments and its application in different times and socio-economic conditions. Therefore, the book begins with theoretical contributions to the concept of public interest, stating their general positions and importance in law and in legal interpretation. However, the book's purpose is first and foremost to help practitioners to apply the concept of public interest with an understanding of its substance and normative function as well as its relationship to other relevant legal institutions. The individual contributions focus on the concept's application in a vast spectrum of legal disciplines, ranging from constitutional and administrative law to corporate and insolvency law, from criminal law to environmental law, and from competition law to labour law. To provide concrete examples of legislative and judicial practice, the book focuses on three jurisdictions – Austria, the Czech Republic and the European Union.

Even when analysing concrete areas of law, the individual contributions are guided by a common framework for analysis: Can public interest as a legal notion be understood as a unified concept, or does it have a relatively separate position and fulfils different functions in different legal disciplines?

INTRODUCTION

The purpose of this chapter is to briefly cover the category of public interest in its complexity. The task is to define it, especially its content, formation and implementation. The model, which this chapter arrives at in its theoretical part (section 2), is then applied in the practical part (section 3).

Emphasis is placed on methodology, especially assessment, which means evaluating the comparison of relevant factors (interests) and their balancing, i.e. reaching a compromise between these factors when using their quantification.

The public interest is widely used as a term in legislation and legal practice. For example, in the Czech legal system, its occurrence is 4,675, taking in account only the explicitly mentioned cases. However, this does not correspond to the attention which is paid to the topic by jurisprudence. Significant works dealing with this phenomenon, either in general or in a certain context, in a very limited number, typically come exclusively from the pen of authors concentrating on public law. Although the public interest is a certain, albeit specific, kind of the more general concept of the interest, this general category, and thus the basis of the public interest, is dealt by these authors only marginally. This is a certain paradox, because the concept of interest is the basis of one of the most important legal theories (schools) of jurisprudence of interest (Interessejurisprudenz), which together with jurisprudence of values (Wertungsjurisprudenz) and the school of legal realism, belongs to the family of sociological legal trends, which in a way follow the purposeful jurisprudence of Rudolf von Jhering. Representatives of these guidelines are limited mainly to the field of private law.

The task of this chapter also consists in combining the knowledge of both of these exclusive directions, of the public and private law, because this can be seen not only as a completely logical approach, but above all for the possibility of mutual enrichment, since the categories of interest and public interest permeate all branches of law.

INTRODUCTION

SCOPE OF APPLICATION OF THE CIVIL CODE

Czech civil law does not contain special provisions on prescription in tort law as it is part of prescription regulation as a whole. Despite this, the following text relates solely to prescription in tort law.

Prescription of claims for compensation of damage (tortious claims) is governed in principle exclusively by the new Civil Code (‘CC/2012‘). Only the Atomic Law and the Law on State Liability Act contain specific regulations.

ORIGIN AND REFORM OF CZECH PRESCRIPTION LAW

Until 1951, Austrian prescription law (§ 1451 ff AGBG) applied. Following a communist coup d ‘é tat, a new civil code (CC) was introduced including the new, very short and strict rules on prescription (§ § 87– 99), literally excluding an autonomy of parties (§ 99). Through the introduction of the civil code of 1964, some of the‘Austrian‘provisions appeared in Czech law. In 2012, a new civil code was introduced which entered into effect on 1 January 2014, and which also reformed prescription law in the Czech Republic.

While CC/1964 emphasised that courts shall not reaffirm a previous creditor's claim, the law currently in force (§ 609 of CC/2012) sees the fundamental consequence of prescription in the regulation as a debtor not being liable to perform its contract. BGB's influence (§ 214) is eminent not only here, but it is also reflected in the regulation of prescription by claims arising between spouses (§ 646 CC/2012) during the duration of marriage, and also in postponement of the commencement of the prescription period in case of damage of health (personal injury) of a minor (§ 622 CC/2012). The rule stipulated in § 203 BGB was transplanted in § 648 CC/201 which regards postponement of commencement of the prescription period in case of negotiation outside the court. Influenced by § 1502 ABGB and art 141 OR, § 610 CC/2012 governs the possibility to waive the right to invoke prescription in advance.

INTRODUCTION

Prevention in a broad sense is a part of existing tort law. As an economic analysis of the law, based on cost and revenue tests, quite persuasively proves, it is advantageous for an economically-thinking individual to respect a certain standard of behaviour (duty of care). It is better to take precautions to prevent damages rather than to be involved in such an incident – whether as an injured party or a perpetrator, and thus as a compensation recipient or, on the contrary, as a compensation payer. Such behaviour should be promoted as well by a general system of protection, including in particular the insurance system.

This chapter addresses prevention in tort law, but in a slightly different way than in which this phenomenon is conventionally addressed. It aims to prove that prevention has specific features and thus can constitute different aim and content than the prevention traditionally understood within tort law. This is, therefore, a case of the so-called prevention in a narrow sense, which concerns situations of emergency or peril to a third person, somebody else's property or general asset, lacking any relation to a potential rescuer.

This kind of prevention has its legal basis in § 2901 of the Czech Civil Code/2012. According to this provision, an individual is obliged to intervene in favour of somebody else if he/she ‘can, according to his potential and skills, easily avert harm of which he knows or must know that its impending gravity clearly exceeds what must be exerted for the intervention has the same duty.’

The Czech legislator codified – in harmony with the Czechoslovak tradition – a so-called ‘tortious preventive liability’, which represents a unique phenomenon. A legal (statutory) duty has been imposed on persons referred to as ‘Samaritans’, who are independent of the person who faces threatening harm. A violation of the duty to intervene can be considered a tort, establish a prerequisite of the preventive liability and, as consequence of it, of a sanction: a secondary duty in the sense of compensation of the damage which could have been avoided.

Hence, the prevention in the broad (traditional) sense is enriched by this specific prevention (prevention in the narrow sense). This preventive liability extends the mechanism (system) of tort law through a new paradigm.

QUESTIONS

TRACING THE BORDERLINES

A. DISTINCTION BETWEEN TORT AND CONTRACT

1) Liability Regime Until 2013

The regulation of compensation for damage was set forth in Act 40/1964 Coll, the Civil Code, until the end of 2013, based on §420, which stipulated a general clause defining the conditions for liability of legal and natural persons in delict. §420 of the Civil Code provided that every person is liable for damage which he causes by breaching a legal obligation. This means that, under this condition, the distinction between liability based on breach of contract and liability based on delicts could not be determined.

The civil law theory required the following elements for liability to be established: (i) breach of a legal duty or an event qualified by the law; (ii) damage; and (iii) causation between the breach and the harm consequently inflicted. In most cases of liability, fault was required, either in the form of negligence or intention. This was the case for matters which were not deemed cases of strict liability.

The provisions relating to strict liability are located in §§420a – 437 of the Civil Code (with the exception of §§422 – 424). These are cases which do not require fault to be established. For the fulfilment of the facts of a particular case, only three conditions must be met: a legally specified event causing damage; damage; and causation between the incident and the harm incurred. A number of such cases related directly to breach of contract as they comprised liability for worn items, protected or handed-over items, as well as liability for damage caused by used items.

2) Liability Regime Since 2014

Unlike the former Civil Code, which was based on a general clause on damages, Act no 89/2012 Coll, the new Civil Code (CC 2012), establishes a new basis for liability based on breached norms, ie it differentiates between contractual and non-contractual damages.

The basic difference between these two types of liability is that while tortious liability is based on fault, liability for breach of contract is qualified as strict liability, where the potential wrongdoer can exempt himself if he proves that he was temporarily or permanently prevented from the fulfilment of his obligation under the contract by an extraordinary, unpredictable burden that occurred independently of his will.

INTRODUCTION

OVERVIEW

The current regime of state liability for damage bears the imprint of its historical development in the Czech Republic.

Prior to 1951, the Austrian civil law regime, that is the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) of 1811, was applicable in the Czech countries. This codification, which entered into force at the beginning of the 18th century during the era of Enlightened Absolutism, did not attempt to regulate the state's liability for damage. The first socialist Civil Code of 1950 (Act no 140/1950 Coll) also did not contain any legal basis for state liability, as in accordance with contemporary development not only in the Czechoslovak Republic: even in the West, the time was not yet ripe for such a codification and for the introduction of state liability.

In fact, the opposite was true. In this period, the state enjoyed immunity from any kind of wrongs, especially if they resulted in damage. A second comprehensible and possibly also immediate reason for the lack of the concept was the regime which existed in the Czechoslovak Republic at that time. The state was an edifice of the communist party and, even if the party continued to claim that under its rule the state would wither away, it was nevertheless a highly appreciated tool of power at the disposal of the governing communist party. Because the party was considered infallible, it was impossible for the state to be liable for its failings.

Although we do not know the reasons, it was nevertheless at a relatively early time – in the second communist Civil Code of 1964 (Act no 40/1964 Coll) – that an indication of a regime regarding the liability of the state was evident. The provision of §426 of the Code, in its original wording, acknowledged state liability and promised the enactment of a special law. This law was finally passed in 1969 (Act no 58/1969 Coll) and was very progressive for its time. It followed the overall European trend and abolished the immunity of the state from liability.

SOURCES OF LAW AND THEIR DEVELOPMENT

Czech law did not provide for product liability prior to the adoption of an act implementing Directive 85/374/EEC. It was possible to claim product liability within the general liability regime governed by the Civil Code of 1964 (Act No 40/1964 Sb), under which everybody was liable for damage that occurred as a result of a breach of one's legal duty (see §420(1) Civil Code). I am not aware of any such claims nor of the existence of any relevant case law. Such claims would therefore be raised only exceptionally, if at all.

The Directive was firstly implemented by Act No 59/1998 Sb on Product Liability, which came into force on 1 June 1998 – six years prior to the accession of the Czech Republic to the EU in 2004. Act No 59/1998 Sb was amended by Act No 209/2000 Sb, with a date of effect of 1 September 2000, to reflect further amendments of the Directive itself.

Both the formal and material characteristics of Act No 59/1998 Sb strongly resembled the Directive. It was divided into 12 sections and elements of liability governed by Act No 59/1998 Sb constituted an autonomous regulation, which resembled a regulation contained in the Civil Code, yet remained separate and distinctive.

A major change was brought about by the adoption of the new Civil Code (Act No 89/2012 Coll) that repealed Act No 59/1998 Sb and provided for product liability in provisions governing non-contractual liability. Thus product liability was made equal to other material elements of delictual liability such as liability for damage caused by movables or immovables. The Civil Code contains only five sections, whereas basic elements of liability are provided for in general provisions. It follows the Directive only loosely and its implementation is partially inaccurate. It provides only for derogations from a general liability regime for product defects. This is a major difference from the previous regulation, which also stipulated basic elements of liability.