2021/08/26 – 25 Cdo 2479/2020 (summary)

In the present case, the claimant sought compensation for non-material damage to his health caused by compulsory vaccination. The claimant was compulsorily vaccinated with the Infanrix vaccine at the age of 4 months. One week after the vaccination, he suffered severe left-sided facial nerve palsy with permanent consequences. Both the court of first instance and the appellate court concluded that no legal provision established the State's (hereinafter “defendant”) liability for the non-material damage caused, and therefore, both courts dismissed the action. The claimant lodged an extraordinary appeal to the Supreme Court against the lower instance court decisions. First, the claimant argued that, by dismissing his claim for compensation, the courts had infringed his constitutionally guaranteed right to the protection of his health and integrity. Second, the claimant argued that his right to compensation for non-material damage to his health could be assessed, using legal analogy, as a right to compensation under Section 2925 of the Act No 89/2012 Coll., Civil Code (hereinafter “Civil Code”), since the administration of vaccines could be considered as particularly hazardous operation. Although the vaccine is administered by a medical facility, the claimant argued that it could be regarded as an accessory of the defendant within the meaning of Section 2914 of the Civil Code. The defendant, on the other hand, submitted that the extraordinary appeal should be dismissed on the grounds that in the period from 1 January 2014 to 7 April 2020, there was no legal regulation on liability for non-material damage caused by compulsory vaccination and that the defendant's liability could not be inferred from Act No 82/1998 Coll., on the Liability for Damage Caused In the Exercise of Public Authority by a Decision or Maladministration, nor from any other legal regulation in the relevant period.

The Supreme Court was addressed with a question that had not yet been resolved, namely the question of the State's liability for non-material damage to health caused by compulsory vaccination from 1 January 2014. The Supreme Court first examined whether and on what basis the defendant could be held liable for the non-material damage caused by the compulsory vaccination. At the material time, there was no legislation expressly establishing liability of any entity for non-material damage to health caused by compulsory vaccination. The adoption of Act No 116/2020 Coll., on Compensation for Damage Caused by Compulsory Vaccination (hereinafter “Act No 116/2020 Coll.”), establishing the State's liability for such non-material damage, was a response to the Constitutional Court's ruling (27 January 2015, Pl. ÚS 19/14) which called on the legislator to adopt the necessary legislation. In the present case, the Supreme Court stated that it was unacceptable, unfair, and discriminatory that victims who had suffered damage until 31 December 2013 and then from 8 April 2020 onwards should receive compensation for non-material damage, while damage suffered between those dates would not be compensated simply because the legislator had failed to regulate their claims.

The Supreme Court proceeded from the premise that only in exceptional situations when a certain legal issue is not regulated because of an unintended omission of the legislator and this lack of legal regulation appears unacceptable, the court has no choice but to try to bridge the gap in the legal regulation (ruling of the Constitutional Court, 27 March 2014, III. ÚS 2264/13). In the present case, the absence of legal regulation on liability for non-material damage resulting from compulsory vaccination in the relevant period, caused by the repeal of the previous Civil Code in force until 31 December 2013, was clearly an unintentional gap in the legal order. The explanatory report to both the Civil Code and Act No 116/2020 Coll. does not indicate that the legislator directly intended to exclude regulation on compensation for damage caused by vaccination. However, the above-mentioned legal gap and the remedy for the undesirable situation have not been resolved by the enactment of Act No 116/2020 Coll. as this act does not contain any transitional provision governing cases of damage arising from 1 January 2014 until its entry into effect. The transitional provision in Section 9 does not address claims arising before its entry into effect. In view of this provision, the Act No 116/2020 Coll. generally applies only to claims arising after its entry into effect. Nevertheless, the Supreme Court was convinced that the most acceptable way to fill the gap in the legislation is to apply Act No 116/2020 Coll. to the assessment of claims arising between 1 January 2014 and 7 April 2020, notwithstanding the lack of a transitional provision in this respect. 

In relation to the above-mentioned solution to the legal gap for the settlement of claims for compensation for non-material damage caused by compulsory vaccination, the Supreme Court in its reasoning addressed the question of true retroactivity of the Act No 116/2020 Coll., effective from 8 April 2020, also for cases of damage caused before that date. According to the Constitutional Court, the prohibition of true retroactivity stems from the principle of the rule of law, which includes the principle of legal certainty and the protection of citizens' confidence in the law (ruling of the Constitutional Court, 8 June 1995, IV. ÚS 215/94). However, any retroactive effect of a legal rule is not automatically excluded. Only retroactivity which at the same time constitutes an interference with the principles of protection of confidence in the law, legal certainty or acquired rights is excluded (ruling of the Constitutional Court, 4 February 1997, Pl. ÚS 21/96; ruling of the Constitutional Court, 13 March 2001, Pl. ÚS 51/2000 etc.). The principle of the protection of acquired rights would be violated only if the change reached such a point that it would retroactively worsen the legal position of the subject of the right (ruling of the Constitutional Court, 13 March 2001, Pl. ÚS 51/2000). In conclusion, the Supreme Court stated that the true retroactivity of Act No 116/2020 Coll. is justified because it enables victims, who would not otherwise have such a right without reasonable grounds, to obtain fair compensation because it will improve the legal position of these subjects. Last but not least, by establishing true retroactivity of the State's liability for the damage caused by compulsory vaccination under the Act No 116/2020 Coll. for the period from 1 January 2014 to 7 April 2020, the obligation to protect the rights of persons in the application of compulsory vaccination, imposed on the Czech Republic by Articles 23 and 24 of the Convention on Human Rights and Biomedicine, can also be considered to have been fulfilled for the relevant period. 

As to the second argument of the defendant, the Supreme Court held that the claim cannot be assessed under Section 2925 and 2914 of the Civil Code. This is primarily because compulsory vaccination of the population cannot be regarded as an operation (much less a particularly hazardous operation) since it is an activity lacking in operational and technical character.

In view of the foregoing, the Supreme Court concluded that the extraordinary appeal was justified, annulled the decisions of the lower courts and referred the case back for further proceedings.