Legal forms (Czech republic)

The tasks pursued by public administrations are very varied and are therefore also carried out in many ways. These ways have different legal nature and significance. Legal theory defines categories that distinguish the most common ways of performing public administration (forms of administrative activity) on the basis of common characteristics. However, such categories also exist in the legal system - statutory forms of public administration activity. Legal (statutory) forms of public administration activity predetermine all procedural aspects related to the implementation of this activity, the elements of an administrative act, possible review within the public administration and the possibility of judicial review.

Public administration may be exercised only in the cases, within the limits and in the manner provided by law. Therefore, I will focus on the role of the legislator and the Constitutional Court as a negative legislator in determining the legal form of public administration. In the text, I examine how the legislature's work is imperfect and the nature of the imperfections in the law, as regards the proper designation of the legal form of administrative activity.

The theoretical and statutory established categories of public administration activity - legal forms - operate through their formal and material concepts. The formal and material conceptions focus on the relationship between the form of administrative activity and its content; they are the means of recognizing legal form. The formal concept emphasizes the determination of the form of the activity by law, or the explicit legal authorization (designation) and the recognition of the legal form on the basis of its wording. The material concept focuses on the content of the provision that regulates a specific administrative activity, or the content of the administrative activity itself.

Formal and material concepts are institutes of application of law. Interpretation and application of legal norms cannot be separated from law-making. That is why I am now dealing with law-making in the field of legal forms of administrative activity. The bureaucratic function of legislation means that legislation determines the framework and rules for the subsequent activities of pu-blic administration bound by law.

The paper focuses on specific forms of public administration activities occurring in particular in the context of the "digital world" regulation, by which public administration warns, urges or recommends. Specifically, the paper will focus on two categories of activities.

The first category are activities that do not have an explicit legal basis, or more precisely, their legal basis varies between the general public law principles of public administration and the fundamentally private law behaviour of the public administration (typical for legal relations it property management of the public administration). From a traditional perspective, these acts can be seen as legally non-binding. However, even these acts can interfere with subjective rights, albeit not in the traditional, explicitly authoritative way. In this section, the paper will answer the question of what possibilities there should be for public administration in the implementation of these acts, whether these acts can be subject to (in particular) judicial review and what are their risks. Especially the risk of bypassing the legal limits of the public administration, which in this way can do (through a certain recommendation) what it could not otherwise do itself, will be considered.

The second category of acts examined will be acts of public administration that are issued for a similar purpose (influencing social behaviour), but this time they have an explicit legal basis - they are formalised and anticipated by public law. However, this basis is often legally unclear, both in terms of the requirements for these acts and in terms of their review (especially judicial review). Again, attention will be paid to the advantages and disadvantages (risks) of these acts.

Both of these categories can be observed in the legal system of the Czech Republic (on which the paper will be primarily focused), but they also appear in foreign practice. Such acts can be observed, for example, in the context of the so-called combating of disinformation. Alternatively, such acts may be the basis for cooperation between state and digital platforms (mainly social media networks) or similar, atypical forms of "shadow cooperation" of public administration and other persons in the digital environment.

The paper is based on the underlying thesis that "new forms" of public administration are typical for the digital environment, however, the traditionally conservative administrative law usually cannot keep up with needs in this area, which potentially poses risks in terms of the protection of individual rights (but also in terms of the protection of the public interest in case of non-functioning or inefficient regulation).

Recent years have brought major social changes, including growing dissatisfaction with democratic institutions and the emergence of so-called “illiberal democracies”. Globalisation, economic crisis, political conflicts, and security threats also contribute to malfunctioning of modern societies. Many countries experience backsliding from the rule of law, as well as growing populist and authoritarian tendencies.

Poland is one of the few countries that, by the outcome of the elections in October 2023, started to reverse this trend and return to the democratic path. As a pioneer country to dismantle the changes to the political and legal system which were questionable from the perspective of the rule of law, it serves as an interesting case-study on

In Polish case, the additional obstacle is the situation of cohabitation and reluctance of the President to support the programme of reversing the changes that he was advocating together with the previous government, which means unwillingness to sign the relevant acts of Parliament. In this case, the government needs to look for the legal instruments outside of the regular legislative path. What is also important is that one should not use illegal tools that are inconsistent with the rule of law to remove the effects caused by the law questioned from the perspective of the rule of law.

This paper examines the challenges, possibilities, and effectiveness of legal action in the situation of restoration the rule of law and dismantling “illiberal democracy”. The focus is on the instruments involving direct application of the Constitution, removing, or ignoring unlawful provisions of the acts, “dynamic interpretation” of the legal provisions in the context of hierarchy of legal acts and democratic principles, using “effet utile” principle, thorough implementation of the judgments of European courts (CJEU, ECHR), as well as using resolutions of the Parliament and administrative measures like internal acts.

This case study should be helpful in understanding the legal challenges and consequences in restoring the rule of law after the period of backsliding. These lessons can be valuable for many countries that might find themselves in a similar situation.