Actualization as of 10 June 2020

As of 15 June 2020, a new regulation of the Czech Ministry of Health, dated 2 June 2020, removes restrictions for travelling the to the Czech Republic for all Czech citizens, EU-citizens and third country nationals, who are residing in EU-member state countries in a “green list” and Andorra, Iceland, Liechtenstein, Norway and Switzerland (as further Schengen-countries) – see as well the always actual and well informed website of the German Embassy in Prague: https://prag.diplo.de/cz-de/aktuelles - only in German and Czech). Residents in countries in the „orange list“ (currently nine EU-countries: Belgium, Denmark, France, Ireland, Italy, the Netherlands, Malta, Portugal and Spain) and those in countries in the „red list“ (currently only Sweden and the United Kingdom – see the table on the website of the Czech Ministries of the Interior and of Health:

https://www.mvcr.cz/docDetail.aspx?docid=22239079&doctype=ART&#Cestovani

and

https://koronavirus.mzcr.cz/seznam-evropskych-zemi-podle-miry-rizika-nakazy/)

do not profit from the liberalization: they have to provide tests and have to go into quarantine. Visitors from other European countries and countries beyond Europe are not allowed to enter the Czech Republic, there are only very limited exemptions from this travel ban. The classification in green, orange and red countries can change dependent from the epidemiological situation, the actual list can be accessed on the internet here: https://koronavirus.mzcr.cz/seznam-evropskych-zemi-podle-miry-rizika-nakazy/. The restrictions seem to be in line with what the EU-Commission has advised the EU-member states to do, and they seem to be more or less proportionate under national and European law.

The Polish border will be opened on 13 June 2020 (information on the website of the Polish border command: https://strazgraniczna.pl/pl/aktualnosci/8447,Koronawirus-przekraczanie-granicy.html – but only in Polish). The flight-, train- and bus-connections to the Czech Republic are still suspended, but they will be resumed completely as of 15 June 2020 (with the exemption of those connections to Poland). Tourists from EU- and Schengen-countries can travel to the Czech Republic, but those from countries beyond the EU and Schengen are still completely banned from entering. This raises legal issues, also with regard to the role of the Czech Ministry of Health.

Status by 25 May 2020

The closing of the Czech Republic starting from mid-March 2020 was very strict in European terms. The borders were completely closed, and passenger air, rail and bus transport were almost completely suspended. From mid-March 2020, Czech citizens and citizens of the EU and third countries with a residence permit were even forbidden to leave the country; however, this ban was gradually lifted. Tourists were completely excluded from entering the Czech Republic, and Czech citizens and citizens of the EU and third countries had to present, with some exceptions, a PCR test which could not be older than four days, and they had to submit a notice of the arrival electronically in advance. These rules applied till 15 June 2020; the test should be submitted on a form in Czech/English, and the test result must not be older than four (4) days. In addition, movement restrictions or a 14-day quarantine apply.

The actual restrictions on entering and leaving the country introduced by the government's task force under the Constitutional Act on the Security of the Czech Republic in mid-March have remained virtually unchanged until 5 June 2020, as they have applied since early April 2020(see our previous article "Again new Czech entry and exit rules during the emergency".

Until 15 June 2020, these restrictions applied under a Decree of the Ministry of Health of 15 May 2020, referred to as a "protective measure", issued by the Minister of Health pursuant to Section 68 and Section 80 of the Public Health Protection Act (Act No. 258/2000 Sb. (Collection of Laws)). However, after the end of the state of emergency, this "protective measure" raised questions, as only on 23 April 2020 the Metropolitan Court in Prague annulled, with effect as of 27 April 2020, by a very well-reasoned judgment (Ref. No. 14 A 41/2020), six (6) decisions of the Ministry of Health of March and April 2020 on restrictions on retail, provision of services and prohibition of movement within the Czech Republic (the decisions were immediately re-approved by the government task force) due to unconstitutionality. In these abstract proceedings on the review of the legal rules, the Metropolitan Court in Prague came to the conclusion that it has jurisdiction over these proceedings, although other courts are also dealing with the same proceedings, among others the Constitutional Court and the Supreme Administrative Court of the Czech Republic, and secondly, that the Ministry of Health has no authority to issue such measures at all. According to the Constitutional Act on the Security of the Czech Republic and the Crisis Management Act (Act No. 110/1998 Sb. (Collection of Laws) and Act No. 240/2000 Sb. (Collection of Laws)), only the government as a whole is authorized to issue measures, and not individual ministries. The reason for this is the principle of division of power, which is limited but not suspended at times of the state of emergency, and also the risk that the foundations of a democratic state governed by the rule of law will be weakened if legislative work is carried out not only by the government but also by individual ministries. This is explained in a detailed and comprehensible manner and justified. The Metropolitan Court also points out that, contrary to Article 15 of the European Convention on Human Rights, the Council of Europe was not notified of the restrictions on fundamental rights as a result of the emergency measures.

The new restrictions on entering and leaving the country contained almost literally the existing regulation, but they were issued by the Ministry of Health. Nevertheless, this is not a "protective measure", but rather an abstract regulation, i.e., it was a label fraud perpetrated by the Ministry of Health. If the authority of the Ministry of Health did not exist at the time of the state of emergency, its authority after the end of the state of emergency was even more disputable. Although the Ministry of Health provided justification of the "protective measure" on four pages, the justification is more a self-praise and makes absurd propositions (without the Czech government’s measures, "millions" would become infected in the Czech Republic, i.e., at least 20% of the population!!) rather than an answer to the question whether Section 68(1) and Section 80 actually allow for such far-reaching protective measures to be ordered by the ministry which suffered a severe defeat in court on 23 April 2020; the adequacy of restrictions on entering and leaving the country or the question of the need for a time limit for the measures are not justified either.

It should be noted that, according to the Schengen Borders Code, border checks have been extended by another month until 15 June 2020, and restrictions on entering and leaving the country continued to apply until 5 June 2020. In addition to the negative coronavirus test, quarantine or restriction on movement of individuals who arrived in the country were also envisaged, because the test was deemed as not reliable, according to the Ministry of Health. In particular for tourists and individuals who were not covered by exemptions relating to entering and leaving the country, i.e., those who had had no "serious reason" to enter the country but could produce a negative test, an absolute ban on entering the country seemed disproportionate, also due to the fact that the risk of infection outside the Czech Republic was not higher, it was comparable in Europe. In addition, Czech hotel keepers and restaurant owners have to do without foreign tourists from non-EU and non-Schengen countries until further notice, and they have to reckon with a significant reduction in turnover and losses in the coming months, which the Czech state does not intend to compensate.

Sources:
Regulation ("protective measure") of the Ministry of Health of 15 and 26 May 2020 -valid until 15 June 2020
Regulation ("protective measure") of the Ministry of Health of 2 June 2020 -valid as of 15 June 2020
Constitutional Act on the Security of the Czech Republic (Act No. 110/1998 Sb. (Collection of Laws))
Crisis Management Act (Act No. 240/2000 Sb. (Collection of Laws))

AUTHOR

• 

  Stephan Heidenhain

  Advokát, Rechtsanwalt
  Senior Associate

  T +420 222 929 301
  
  Czech Republic

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