Press Release: The Treaty of Lisbon is in conformity with the constitutional order of the Czech Republic and there is nothing to prevent its ratification

03 November 2009

Brno, the Constitutional Court, 3 November 2009, 10:00 a.m.


at 9:00 a.m. the Constitutional Court, speaking through its chairman and

judge rapporteur, announced a judgment in which it declared that the Treaty of Lisbon, and ratification of it, does not contravene the constitutional order.



is the second time that the Constitutional Court has ruled on the

Treaty of Lisbon. A petition to review the treaty was first filed last

year by the Senate, and the Constitutional Court ruled on it in judgment

file no. Pl. ÚS 19/08 dated 28 November 2008 ,

wherein it stated that the parts of the Treaty of Lisbon that the

Senate had expressly contested were consistent with the constitutional

order. In the present proceeding, file no. Pl. ÚS 29/09, the

Constitutional Court ruled on a petition from a group of senators filed after the Parliament of the Czech Republic had already consented to ratification of the Treaty of Lisbon (see the press release ).


The Constitutional court maintained the opinion it expressed last year, and reviewed those parts of the Treaty of Lisbon that the petitioner had expressly contested on grounds that it stated.

However, because this time the petitioner also contested the Treaty of

Lisbon as a whole, on the grounds that it was not comprehensible, the

Constitutional Court also considered that objection, which, however, it

found to be unjustified, similarly to the objections raised by the

petitioner against the possibility of making linguistic corrections in

the Czech language version after the treaty was submitted to EU member

states for ratification. In addition, the Constitutional Court rejected as inadmissible

(due to the impediment of rei iudicatae) the part of the petition that

contested that part of the Treaty of Lisbon that was already reviewed

last year. It also rejected an objection aimed at review of the

so-called “Irish guarantees.” Finally, the Constitutional Court rejected, due to inadmissibility, objections aimed at review of the Treaty of Rome and Treaty of Maastricht

as a whole, because those parts of these treaties that are not affected

by the Treaty of Lisbon have already been ratified, so the

Constitutional Court did not have jurisdiction to review them.



reference to its previous judgment, the Constitutional Court emphasized

that the ranking of individual petitioners, as provided by § 71a par. 1

of the Act on the Constitutional Court (i.e. a Chamber of Parliament, a

group of deputies, a group of senators, the president of the republic)

is guided by the intent to provide each of them an opportunity to duly

express their doubts concerning the constitutionality of an

international treaty under discussion. The judge rapporteur stated in

the reasoning of the judgment: “However, that does not mean that

potential subsequent petitioners (or potential parties to other

proceedings) may contest, over and over again, conclusions concerning an

international treaty’s conformity with the constitutional order that

the Constitutional Court has already stated in a judgment,” The Constitutional Court emphasized that it is a court, not a place for endless debates.


The Constitutional Court also considered, in light of the procedural steps taken by the petitioner, whether the “broadly

conceived participation in proceedings on the constitutionality of

international treaties, which gives procedural opportunities to raise

doubts about an as yet unratified international treaty progressively to

individual potential petitioners does not, on the other hand, create an

intolerable risk of abuse of procedural mechanisms before the

Constitutional Court, abuse that would contravene the very purpose of

the proceeding.” The Constitutional Court proceeded on the basis,

that doubts on the constitutionality of a negotiated international

treaty need to be removed without unnecessary delay, in view of the rule of good faith in international relations, and in view of the obligation of the president of the republic to ratify, without unnecessary delay, an international treaty

that was duly negotiated by the president of the republic or based on

his authorization, and whose ratification has been consented to by a

democratically elected legislative assembly. Based on its analysis, the

Constitutional Court stated that “the opening of proceedings on the

constitutionality of international treaties by groups of senators,

groups of deputies, and the president of the republic must be subject to

the same deadline by which it is necessary to ratify an international

treaty, i.e. a deadline without unnecessary delay.


According to the Constitutional Court, that does not mean immediately.

Appropriate postponement of ratification in order for a group of

senators or deputies to be able to submit its petition to open

proceedings before the Constitutional Court, or for the president of

the republic to be able to submit such a petition, is not unnecessary

delay. However, the postponement cannot be on the order of several

months, but “only weeks.” In this case the petition was submitted more than five months after Parliament consented to ratification, so it was not filed without unnecessary delay. However, this time the Constitutional Court did not, for that reason, reject the petition to open proceedings, “because

it does not want to retroactively burden the petitioner with the

analysis of procedural rules governing access to the Constitutional

Court and deadlines that the Constitutional Court found in this




the request that it define the substantive limits of transferred

competence and define “the essential requirements of a democratic state

governed by the rule of law,” the Constitutional Court stated that “it

does not consider it possible, in view of the role that it plays in the

constitutional system of the Czech Republic, that it should create such

a catalog of non-transferrable competences and authoritatively define

‘the substantive limits for the transfer of competence’ as the

petitioner requests.” It emphasized that “responsibility for

these political decisions cannot be transferred to the Constitutional

Court; it can review them only at the point when they are actually made

on the political level.


Regarding the objection of a democratic deficit in the European Union,

the Constitutional Court referred to the conclusions in its first

Lisbon judgment. In the Constitutional Court’s opinion, the contested

article of the TEU, which provides that “the functioning of the Union

shall be founded on representative democracy” is directed at processes

both at the European and domestic level, not only at the European

Parliament. The European parliament is not an exclusive source of

democratic legitimacy for decisions adopted on the European Union level.

That legitimacy derives from a combination of structures existing both

on the domestic and European level, and it is not possible to demand

absolute equality among voters in individual member states. That would

be possible only if decisions in the European Union were adopted

together with ruling out legitimating connections to governments, and

above all to legislative assemblies in the individual members states.


As regards objections concerning the loss of the Czech Republic’s sovereignty,

or objections on the non-existence of a concept of shared sovereignty,

which the president of the republic raised, the Constitutional Court

stated that the concept of shared sovereignty was already know to the

government of Václav Klaus in 1995, when the Czech Republic applied to

join the European Union. According to the Constitutional Court, “in a

modern democratic state governed by the rule of law, state sovereignty

is not an aim in and of itself, i.e. in isolation, but is a means to

fulfilling the fundamental values on which the construction of a

democratic state governed by the rule of law stands [...] The transfer

of certain competences tot he state, which arises from the free will of

the sovereign and will continue to be exercised with its participation

in a pre-agreed, controlled manner, is not a sign of the weakening of

sovereignty, but, on the contrary, can lead to strengthening it in the

joint process of an integrated whole.”



Constitutional Court also found unjustified the other reasons for the

alleged inconsistency of the Treaty of Lisbon with the constitutional

order, and, in the conclusion of its judgment, stated that “this

judgment refutes the doubts concerning the consistency of the Treaty of

Lisbon with the Czech constitutional order, and removes the formal

obstacles to its ratification.


The judge rapporteur in this matter was the chairman of the Constitutional Court, Pavel Rychetský. The judgment was unanimous; none of the judges filed a dissenting opinion to either the judgment or its reasoning.