Although the original government proposal envisioned a more extensive amendment to the CAJ, only a portion of the proposed changes were included in the current version. Nevertheless, it is an intervention with significant potential. In this article, we focus on selected changes that we believe may have a fundamental impact on, among other things, judicial reviews of decisions in construction permitting proceedings.

The overall character of the approved amendment is intended to fulfill the idea of a long-term, gradual change to the Code of Administrative Justice. The goal of the amendment is to gradually streamline the CAJ while preserving proven mechanisms, simplifying unnecessarily complex procedures, and improving access to the courts for a wider range of entities.

With this amendment, the legislature is seeking not only to reflect case law but also to increase the efficiency of judicial proceedings, paradoxically even through the expansion of the powers of administrative courts and the equalization of the procedural rights of persons participating in the proceedings—which, as we explain below, may lead to unburdening both administrative bodies and courts, and ultimately accelerating processes for, among others, builders, and thus developers. The amendment will also allow for the participation of persons with professional knowledge and practical experience whose contributions could not previously be fully utilized in practice.

New procedural rights for a person participating in the proceedings

Section 34(1) of the CAJ describes a participating person as "a person who has been directly affected in their rights by the issuance of the contested decision." Although this wording suggests that all avenues of defense will be open to such an affected person, the current CAJ unfortunately does not fully guarantee such options. Thanks to the amendment, however, we are facing a potentially significant shift.

Newly, Section 34(3) of the CAJ is to state: "Unless the law provides otherwise or the nature of the procedural right precludes it, a person participating in the proceedings has the same procedural rights and obligations as a party to the proceedings." What could be the practical consequences of this change?

The amendment may have significant impacts, for example, in the review of decisions in construction proceedings. A person participating in the proceedings is typically the builder, while the parties to the proceedings are generally the petitioner (the one who disagrees with the construction permit) and the respondent—the building authority that issued the contested decision. The builder has a direct interest in the outcome of the dispute and detailed knowledge of the project, yet the current regulation placed them more in the role of a passive observer—even though it is primarily the rights and obligations of the builder that are the subject of such judicial proceedings. The amendment removes this deficit and better reflects the practical experience of the courts.

Under the current regulation, a person participating in the proceedings had only a limited scope of rights, primarily to submit written statements, inspect the file, be notified of a scheduled hearing, and request to be given the floor during the hearing (though they have no guaranteed space to speak), as well as to receive the petition, the resolution on granting a suspensory effect, the resolution on a preliminary injunction, and the decision terminating the court proceedings. In practice, however, courts often did not send them the submissions of other parties or provide them with deadlines to respond, which significantly weakened their opportunities for response and procedural defense.

What, then, should primarily improve for a person participating in the proceedings?

Under the current regulation, parties to the proceedings have equal status; the court provides them with equal opportunities to exercise their rights and instructs them on their procedural rights and obligations to the extent necessary to ensure they do not suffer harm in the proceedings.

The amendment can be interpreted to mean that if a participating person is to have a truly equal status with the parties, the court will have to serve them with all submissions from other parties, invite them to respond, and provide them with a reasonable deadline to do so. In other words, the court should treat a participating person equally to the parties to the proceedings, which should simultaneously establish their entitlement to the reimbursement of reasonably incurred costs.

Under the current regulation, the right to reimbursement of costs for persons participating in the proceedings is very limited—it arises only after an obligation is imposed by the court, provided that costs were incurred by the participating person in connection with it, and only upon request to the court and after consideration of financial circumstances, the reasons for the filing, and the person's stance toward the proceedings. The only significant hope for cost reimbursement currently available to a participating person is if they file a cassation complaint, thereby becoming a party to those proceedings, where the reimbursement of costs is assessed based on procedural success.

The right to reimbursement of legal costs for an interested party is linked to the acquisition of a higher degree of procedural rights, which the new regulation now explicitly grants. An interested party to the proceedings will therefore now have the same right to reimbursement of legal costs as a participant. for effective actions necessary to defend their rights – at the very least, those for which they are summoned by the court.

This raises the question of whether interested parties will be consistently summoned to provide statements in the same situations as participants in the proceedings, so that such a practice is reflected in the court's willingness to grant reimbursement to a "successful" interested party. However, if courts were to actually begin granting reimbursement of costs to interested parties, such a change could have a significant positive effect – it could primarily discourage petitioners from filing requests for review of decisions where the goal is not so much to seek legal protection, but rather a harassing attempt to delay the implementation of a construction project or keep the developer in uncertainty. Especially in construction, any delay can mean a significant financial loss. Until now, such harassing petitions were associated with essentially zero risk in the event of failure; therefore, we welcome this form of "rectification" and see in it the potential to reduce the burden on the courts.

Binding opinion as a decision under Section 65 of the Code of Administrative Justice

According to Section 65 of the Code of Administrative Justice, anyone who claims that their rights have been curtailed by an act of an administrative authority that establishes, modifies, cancels, or bindingly determines their rights or obligations (a decision) may file a lawsuit seeking the cancellation of such a decision or, if applicable, a declaration of its nullity.

For an act to be considered a decision, previous case law considered a certain degree of formalization, the necessity of the decision interfering with the complainant's public subjective rights, the maintenance of file documentation, or the notification of the decision to participants to be important. Gradually, however, the interpretation shifted. The Supreme Administrative Court admitted in several decisions that even less formal acts can be decisions if they have an addressee and bindingly interfere with their

According to more recent case law, it is sufficient for the decision to have, for example, an addressee whose rights are bindingly modified or cancelled by this act, a binding procedure preceding the issuance of this act, and a prescribed written form. Ultimately, the Supreme Administrative Court concluded that in cases of doubt, preference should be given to review, because a lawsuit against a decision best corresponds to the principles of administrative justice.

This amendment follows up on the development of case law by adding an important addendum: "A binding opinion that prevents the issuance of a permit or consent is also considered a decision." The legislator has finally spoken in favor of removing an overly formal perception of administrative authority decisions eligible for judicial review.

A change in the overall definition of a binding opinion in Section 149 of Act 500/2004 Coll., the Code of Administrative Procedure, will not take place, however, since even according to established case law, "decision" is a specific term of the Code of Administrative Justice for the purposes of judicial review, independent of what other legal regulations, such as the Code of Administrative Procedure, mean by "decision."

The change primarily opens up possibilities for more effective defense against specific opinions even before a negative decision on an application for a permit or consent is issued. In construction proceedings, these are typically binding opinions of the concerned state administration authorities (so-called DOSS), which are a necessary condition for a positive decision by the building authority. According to existing theory, these were merely a basis for an administrative decision, and therefore it was not possible to have these opinions independently reviewed by a court. Review was only possible indirectly – through a lawsuit against the final decision that was based on the binding opinion.

We expect a significant change precisely in the area of construction law, where until now it was only possible to challenge a binding opinion together with the final decision of the appellate body regarding the entire project. Even if a developer now has a negative binding opinion from a superior concerned authority, they must first wait for the issuance of a negative decision before they can turn to the court. Starting in 2026, however, the situation will change, and it will be possible to file a lawsuit directly against a binding opinion.

Binding opinions can also be obtained before submitting the actual application for a project permit. This opens up a completely new possibility to seek judicial protection against the procedure of a concerned authority without the developer having to go through the entire process of submitting a complete application in advance (and thus burdening the building authority, which cannot decide otherwise than negatively due to the negative opinion).

The stumbling block, however, may be the wording "opinion that prevents the issuance of a permit or consent". We will therefore monitor the development of case law and legal doctrine to see how they approach the interpretation – whether it will be possible to challenge a negative opinion issued before an application for a permit was even filed, or only one that was requested within the scope of the permit proceedings.

However, we believe that courts should, in light of current judicial trends, lean toward the broadest possible review of binding opinions—including those issued before the actual commencement of the permitting process. In our view, such an approach best aligns with the meaning and purpose of the amendment, which is to provide participants with effective procedural protection as soon as an obstacle to the realization of a clearly defined project arises. Filing an application in such a situation could otherwise be a mere formality—if not an entirely "self-serving" step—that unnecessarily burdens all involved and prolongs the entire process. At the same time, it is necessary to ensure that an overly broad interpretation does not lead to the overloading of the judicial system.

Possibility of reviewing other underlying administrative acts

The previous version of the Code of Administrative Justice also allowed the court to review only the contested decision.

Section 75(2) stipulates that the contested decision is reviewed within the scope of the points of contention raised in the lawsuit.

The amendment, however, stipulates that upon a plea in the lawsuit, the court shall also review another act of an administrative authority if it served as a binding basis for the contested decision and cannot be challenged independently by a lawsuit. The problem was that the law did not address how the court should proceed if it concludes that this underlying act is unlawful. Therefore, the amendment added the following sentence to Section 75(2): "If the court finds the plea in the lawsuit to be well-founded, it shall annul the reviewed act in a separate ruling due to its illegality." We consider this change significant because it opens the way to challenging underlying acts issued by the same administrative authority.

The original proposal also included an amendment to Section 75(3), which would have explicitly stated that the court must consider, even without a motion, those procedural defects that prevent review within the scope of the points of contention. However, this provision has not yet been approved.

Conclusion

The amendment, effective from January 1, 2026, strengthens the position of persons involved in proceedings and allows for binding opinions to be challenged independently. We expect the amendment to have a major impact on construction law, where these changes may save time (and resources) for developers, building authorities, and administrative courts. Only time will tell whether the amendment will achieve this effect in practice.

Other planned changes to the major amendment of the Code of Administrative Justice currently remain only in the legislative phase.

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