BINDING OPINIONS: PART III

Authors: JUDr. Lukáš Duffek, Mgr. Petr Zábranský, JUDr. Martin Mezenský

In a decision on 15 December 2020, Ref. No. 2 As 8/2018-76, the Extended Chamber of the Supreme Administrative Court (“ECSAC”) dismissed a cassation appeal against the decision of the Prague Metropolitan Court, which dismissed as inadmissible a complaint against the decision of the Minister of Culture. The Decision of the Minister of Culture, in turn, had dismissed as inadmissible the appellant’s remonstrance against the decision of the Ministry of Culture to revoke an affirmative binding opinion in the sphere of historic preservation, which should have served as the basis for the issue of a building permit for the appellant. 

Upon preliminary assessment of the case, the Second Chamber of the Supreme Administrative Court (“SAC”) reached a legal opinion different from that expressed in the SAC’s case law by the Tenth Chamber of the SAC in the Office Park Šantovka case (the SAC’s decision of 8 July 2015, Ref. No. 10 As 97/2014-127 available here).

In the Office Park Šantovka case, the SAC, referring to an earlier decision of the ECSAC, Binding Opinions (decision of the ECSAC of 23 August 2011, Ref. No. 2 As 75/2009-113 available here), held that according to Sec. 70 let. a) of the Code of Administrative Justice (“CoAJ”), decisions excluded from judicial review include decisions rendered in review proceedings, whereby a binding opinion is revoked pursuant to Sec. 149 Par. 6, of the Code of Administrative Procedure (“CoAP”).

In our view, the Second Chamber of the SAC pointed out correctly that the Binding Opinions II decision does not comment on the possibility of reviewing revoking decisions of superior administrative bodies issued in respect of binding opinions in review proceedings, but only comments that a binding opinion may be reviewed at a trial over a complaint against the decision of the administrative body on an appeal against the decision in the case, which the contested binding opinion served as a basis for, for it was only then that the remedial measures against the binding opinion in proceedings before the administrative bodies were exhausted.

The Second Chamber of the SAC found the case different. The revocation of a binding opinion is decided upon in special administrative proceedings – review pursuant to Sec. 94 and following of the CoAP, which may result in a resolution revoking the binding opinion, and which can be contested by an appeal (or a remonstrance). These appellate proceedings (or remonstrance proceedings) result in an administrative decision, which of course is not a binding opinion by its content and form, but a separate type of revoking administrative act. It is an administrative decision dealing with the question of whether it is lawful and relevant to revoke a binding opinion, not whether it would be correct to do so.

The subject matter of these review proceedings is thus different from that of the administrative proceedings which the binding opinion serves as the basis of, and the subject of which is the assessment of the body concerned contained in the binding opinion.

The Second Chamber of the SAC also found that the material element of the decision to revoke a binding opinion in review proceedings was fulfilled, for a binding opinion may raise a legitimate expectation regarding the assessment of a particular sub-question, which defines the content of the decision of an administrative body on the merits, and if that binding opinion is revoked, such legitimate expectation of the party concerned is then rejected, which may cause interference with the legal rights of the party concerned (depending on the circumstances of the case).

The Second Chamber thus put a question to the ECSAC to decide whether a decision, whereby a binding opinion was revoked in review proceedings pursuant to Sec. 149 Par. 6, of the CoAP, could be considered a decision in the sense of Sec. 65 Par. 1 of the CoAJ, and if not, whether it was possible at least to claim protection by means of a complaint against the unlawful interference pursuant to Sec. 82 and following of the CoAJ.

By framing that question, the Second Chamber indeed aptly identified one of the “blank spots” of the Code of Administrative Procedure and the scope of judicial protection in administrative justice. In more complex cases especially, the parties to building permit procedures may face a situation where the procedure breaks down into a series of sub-disputes on the correctness and legality of the grounds of the decision on the merits, and the extent of the possible judicial review thus becomes the crucial factor that defines when and whether a certain building project will be realized at all.

We consider the argument that the administrative decision revoking the (unlawful) binding opinion and the binding opinion itself are different procedures, to be relevant, yet we would be more skeptical about the argument concerning the existence of legitimate expectations. We do not find that a binding opinion serving as the basis for an administrative decision on the merits would raise any more legitimate expectations on the part of a party to the proceedings than an unlawful first-instance administrative decision would. Of course, in both cases the procedure moves towards a particular result, but it is possible that some completely different, even very basic procedural acts or documents may reverse the expected result. Another (negative) binding opinion may frustrate the approval of the permit for construction, or an appeal submitted in time by another party to the proceedings may lead to the revocation of the unlawful first-instance decision.

In the end, the majority of the ECSAC did not agree with the arguments of the Second Chamber. Though the ECSAC recognized that the Binding Opinions II decision in fact does not resolve the issue of revoking decisions in review proceedings, it upheld the verdict of the Tenth Chamber from the Office Park Šantovka case.

The core of the ECSAC’s argumentation consisted primarily in the idea of “the last word” of the administrative bodies in the given case. The revocation of a binding opinion does not constitute a final verdict of (not) awarding a particular right or (not) imposing a particular obligation on individual parties to the proceedings; this is done only by a decision on the merits.

Regardless of when the decision revoking the binding opinion is issued after the initial administrative proceedings, the CoAP provides for sufficient ways of settling within the initial administrative proceedings. If the final decision has not yet been issued, the body concerned still has to issue a (new) binding opinion. For that reason, it should also be possible to seek defence by means of a complaint of protection against failure to act (a decision on the merits is not taken within a reasonable time) or a complaint against unlawful interference (a new binding opinion is not issued). If there has been a final administrative decision based on a subsequently revoked binding opinion, the parties to the proceedings are protected by the option to file a complaint against the administrative decision to suspend the proceedings, or to act in compliance with Sec. 149 Par. 7, of the CoAP (re-trial in case of a change or revocation of the binding opinion serving as the basis for the decision), taking into account all the legal conditions for re-trial. At the same time, a decision sanctioning or ordering a re-trial, which is based on an act revoking the binding opinion, is subject to review by the administrative judiciaries upon a complaint pursuant to Sec. 65, of the CoAJ.

Thus, the ECSAC clearly favored a holistic approach to the proceedings in which binding opinions are issued, resulting in a consistent verdict, which may subsequently be challenged. According to the ECSAC, the revocation of a binding opinion does not directly affect the legal rights of the bodies concerned; any impact will become evident only after the final decision on the merits. The SAC’s decision-making practice has also shown that this procedural act of an administrative body is one of those acts against which a complaint of unlawful interference is not admissible.

Taking into account the principle of efficient procedure, as well as the practical implications in the form of long-lasting trials at the ever overloaded and understaffed administrative courts, that verdict can be considered to at least establish a higher degree of legal certainty for the parties to the proceedings. In particular, what will be clearer for administrative bodies is the course of action to be taken in the procedure, and the number and extent of “subdivisions” in the case that may delay the issue of the final decision on the merits.

Thus, on a theoretical level, it is entirely possible to accept the opinion of the ECSAC’s judge Aleš Roztočil that the current Binding Opinions III decision in effect partially limits the supervisory competence of the bodies superior to the bodies concerned in administrative proceedings as well as the reviewing of the relatively separate decision to revoke an individual (unlawful) administrative act (the binding opinion). However, as was mentioned above, an appeal to protection of legitimate expectations based on a certain binding opinion is unconvincing in the context of administrative proceedings in which binding opinions are issued, so it is not entirely possible to infer such legitimate expectations of a favorable decision on the merits from one affirmative binding opinion.

Neither is it entirely possible to accept the objection that judicial protection against unlawful revocation of a binding opinion becomes only hypothetical at the stage of filing a complaint against the decision on the merits. A differing binding opinion presupposes that in an attempt to challenge an unlawful binding opinion, the participant to the proceedings will have to go through a lengthy administrative procedure and spend a considerable amount of time and resources in order to seek protection by bringing a complaint against the decision on the merits. Yet this objection neglects the option of bringing a complaint of unlawful interference or a complaint of failure to act in the earlier stages of the administrative proceedings (which may also effectively prevent administrative “ping-pong” with new and revoked binding opinions), as well as the fact that if a binding opinion is revoked, this does not exclude the possibility that the new binding opinion will still be an affirmative one, or that the case may be reviewed in detail by the appellate administrative court which will find the basis of the contested binding opinion incorrect or insufficient.

The current decision of the ECSAC goes on to develop the proposition to subsume the binding opinions and related constituent procedural acts of the administrative bodies under the decision on the merits, which the party to the proceedings will be exclusively expected to contest, both at the stages of administrative proceedings and the review by the administrative courts. At the same time, the ECSAC required the administrative bodies to conduct the proceedings correctly and effectively, so that no interference with the rights and legitimate interests of the parties to those proceedings would occur. However, the multiplicity and complexity of the cases handled by the administrative bodies indicate that the protection of the legitimate interests of individual parties to the proceedings requires careful preparation, comprehensive procedural strategy and the ability to flexibly deal with the acts of the particular bodies concerned. Without that, even the ECSAC’s Binding Opinion III decision will not facilitate the issue of the desired decision on the merits.

The ECSAC’s Binding Opinions III decision is available here.

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