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Legal Newsletter Ocotber 2022

When is it permissible to change the contract due to an unexpected increase in energy prices?

Contracts for the supply of goods are usually concluded for a certain period of time. Prices are often fixed for a number of years at a time when energy surges cannot be predicted. The Civil Code contains a provision according to which, if there is a change in circumstances so substantial that the change creates a particularly gross disproportion in the rights and obligations of the parties, the party concerned has the right to have the other party renegotiate the contract with it. In doing so, all of the following conditions must be met: i. the existence of a change in circumstances that is neither foreseeable nor within the control of the party; ii. the creation of a particularly gross disproportion in the rights and obligations of the parties; and iii. a causal link between the change in circumstances and the disproportion. If the parties do not agree to modify the contract within a reasonable time, the court may, on application by the parties, modify or even annul the contract.

The case of a leap in energy prices of hundreds of percent is clearly such a situation. The problem in this situation will very often be the contractual exclusion of the application of this provision, i.e. the agreement between the supplier and the customer that the above-mentioned customer protection does not apply in the given relationship. However, even in these cases, the exclusion of the application of this provision may itself be a disputed contractual provision and as such be challenged by the supplier for invalidity.


Conditions for the creation of a purpose road

Property access disputes are common. In many cases, purchasers acquire land with the assurance that the access road, although on someone else's property, is used by "everyone" and has "always been used." However, not every road is a public purpose road.

A dedicated road is one that connects those properties to other roads for the use of the property owners and is created by the actual use of the road. Its owner may then be a private person. The road authority does not establish it, but can only certify its existence.

For a public purpose road to be created, it must exist as a necessary and irreplaceable connection, with the consent of the owner (once consent has been given, it is irrevocable).

It is the question of the owner's consent that is often the subject of litigation. The courts distinguish between so-called general use, i.e. the owner of the land agrees that the road may be used by an unlimited number of persons, and so-called exclusive use, where the owner allows only a limited number of persons to use the road (e.g. family, neighbour and his guests, etc.). Consent can result from either an express act or from the passivity of the owner. As a rule, fencing off the land or erecting a no trespassing sign is considered as non-consent. Marking the land as "private" need not itself be consent.

In situations where the existence of a public purpose road is not clear, the highway authority may be approached for a certificate. If such a certificate is not issued, the access road will need to be dealt with by agreement with the landowner, for example by the creation of an easement.

If you end up in such a difficult situation, do not hesitate to contact us. Therefore, as part of the legal due diligence we carry out for our clients in connection with land acquisitions, we always focus on checking the legal access to the land.


The right of employees to be offline

In particular, the separation of rest periods from on-call time, i.e., time during which the employee is not performing work but must be ready to start work at the employer's instruction, is problematic.

Since on-call time is not a full-fledged rest period, the employee is entitled to at least 10% of his average earnings for on-call time. If work is actually performed during this period, the employee is entitled to full pay, including any additional payments. In this context, the CJEU has ruled that if the employee is required to respond to the employer's instructions within a very short period of time (in this case, up to eight minutes), such on-call time is considered working time (and therefore counts towards overtime worked, etc.).

In this context, some European countries have introduced the so-called right to be off-line. That is, the right to switch off the means of communication used for work during rest periods and, above all, not to respond to any requests from the employer without any negative consequences. The Czech Labour Code does not yet expressly provide for the right to be off-line, but it does, however, strictly separate working and rest periods, with the proviso that, in principle, it is not possible to require an employee to be available outside working hours - in such a case, this would constitute on-call work for which the employee is entitled to remuneration.