2008/11/26 - Pl. ÚS 19/08: Treaty of Lisbon I

26 November 2008

Petition from the Senate of the Parliament of the Czech Republic, seeking review of whether the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community is consistent with the constitutional order of the Czech Republic.

ABSTRACT

  

Headnotes

 

The

transfer of powers of bodies of the Czech Republic to an international

organization under Art. 10a of the Constitution of the Czech Republic

(the “Constitution”) can not go so far as to violate the very essence of

the republic as a democratic state governed by the rule of law, founded

on respect for the rights and freedoms of human beings and of citizens,

and to establish a change of the essential requirements of a democratic

state governed by the rule of law (Art. 9 par. 2 in connection with

Art. 1 par. 1 of the Constitution).

 

If,

on the basis of a transfer of powers, an international organization

could continue to change its powers at will, and independently of its

members, i.e. if a constitutional competence (competence relating to

competence) were transferred to it, this would be a transfer

inconsistent with Art. 1 par. 1 and Art. 10a of the Constitution.

 

The

Treaty of Lisbon does not have such consequences in relation to the

European Union, and the reviewed provisions thereof are consistent with

the constitutional order of the Czech Republic.

 

In

proceedings concerning whether an international treaty is consistent

with the constitutional order, the Constitutional Court is bound by the

scope of a proper petition to open proceedings. Its review concentrates

only on those provisions of the international treaty whose consistency

with the constitutional order the petitioner questioned expressly, and

with justification.

 

 

The Judgment and Proceeding before the Constitutional Court

 

In

its judgment of 26 November 2008, in a proceeding under Art. 87 par. 2

of the Constitution on the consistency of an international treaty with

the constitutional order, opened upon a petition from the Senate of the

Parliament of the Czech Republic (the “Senate”), the plenum of the

Constitutional Court declared that the Treaty of Lisbon amending the

Treaty on European Union and the Treaty establishing the European

Community (the “Treaty of Lisbon”), specifically Art. 2 par. 1 (before

renumbering, Art. 2a par. 1), Art. 4 par. 2 (before renumbering, Art.

2c), Art. 352 par. 1 (before renumbering, Art. 308 par. 1), Art. 83

(before renumbering, Art. 69b par. 1) and Art. 216 (before renumbering,

Art. 188l) of the Treaty on the Functioning of the European Union and

Art. 2 (before renumbering, Art. 1a), Art. 7 and Art. 48 par. 6 and 7 of

the Treaty on European Union, as amended by the Treaty of Lisbon, and

the Charter of Fundamental Rights of the European Union are not

inconsistent with the constitutional order of the Czech Republic. (The

rest of the text refers to individual provisions in the consolidated

text of the primary treaties, that is, according to the renumbering

based on Art. 5 of the Treaty of Lisbon and the Tables of equivalences

annexed to the Treaty of Lisbon.)

 

The

Constitutional Court heard the arguments of the parties and their

attorneys at a hearing on 25 November 2008, which, after presentation of

closing arguments, it adjourned until 26 November 2008, when it decided

in a judgment that the cited provisions of the Treaty of Lisbon, or the

Treaty on European Union and the Treaty on the Functioning of the

European Union as amended by the Treaty of Lisbon, including the Charter

of Fundamental Rights and Freedoms of the EU, are not inconsistent with

the constitutional order of the Czech Republic.

 

 

The Senate’s Petition

 

The

Senate petitioned the Constitutional Court under § 71a par. 1 let. a)

of the Act on the Constitutional Court after the government of the Czech

Republic submitted the Treaty of Lisbon to the Senate, requesting the

Senate’s consent to its ratification. In its petition, the Senate stated

that the Treaty of Lisbon brings fundamental changes that affect

substantive elements of the statehood and constitutional characteristics

of the Czech Republic as a sovereign, unitary and democratic state

governed by the rule of law (Art. 1 par. 1 of the Constitution), or even

of essential requirements of a democratic state governed by the rule of

law, which, under Art. 9 par. 2 of the Constitution, may not be

changed.

 

(1.)

Specifically, the Senate stated that the new wording of the Treaty on

the Functioning of the European Union (previously the Treaty

Establishing the European Community; the “TFEU”) establishes a

classification of powers that is more characteristic of federal states,

by introducing a category of powers exclusive to the Union, which

includes entire comprehensive areas of legal regulation (Art. 2a par. 1

of the TFEU). It also stated that in the sphere of shared competences

(Art. 4 of the TFEU) there is, from the point of view of Art. 10a of the

Constitution, a transfer of competences to the Union in a scope that

can not be fully determined in advance.

 

(2.)

The Senate also asked for review of Art. 352 par. 1 of the TFEU, which

is not limited to regulation of the internal market, and is thus a

blanket norm that permits enacting measures beyond the scope of Union

competences, i.e. beyond the scope of transferred powers under Art. 10a

of the Constitution.

 

(3.)

The Senate also pointed to Art. 48 par. 6 and 7 of the Treaty on

European Union (the “TEU”); according to the Senate, application of a

general transitional clause (passerelle) for purposes of changing

unanimous decision making to decision making by a qualified majority in a

particular area or replacing a special legislative procedure by an

ordinary legislative procedure under Art. 48 par. 7 of the TEU is a

change of powers under Art. 10a of the Constitution, without that change

being accompanied by ratification of an international treaty or the

active consent of Parliament. As regards Art. 83 par. 1 of the TFEU,

there is no opportunity at all for Parliament to express lack of

consent; thus, this can de facto render Art. 15 par. 1 of the

Constitution meaningless.

 

(4.)

The Senate also objected that international treaties negotiated and

approved by a qualified majority in the Council (not unanimously) under

Art. 216 of the TFEU would also be binding on member states that did not

consent to them, even though the standard ratification process would

not take place in these states, and, in the case of the Czech Republic,

the opportunity for preliminary judicial review as to whether such

treaties are consistent with the constitutional order would also

disappear. Therefore, the Senate expressed doubts as to whether this

process is compatible with Art. 49 and Art. 63 par. 1 let. b) of the

Constitution, and whether there is room to apply these treaties based on

Art. 10 of the Constitution.

 

(5.)

According to the Senate, the indirect reference to the Charter of

Fundamental Rights of the EU, together with the future accession of the

EU to the European Convention for the Protection of Human Rights and

Fundamental Freedoms (Art. 6 par. 1 and 2 of the TEU) can lead to lack

of clarity about the status of the Charter of Fundamental Rights of the

EU (the “CFREU”), and it is not clear whether this construction will

strengthen or, on the contrary, lower the standard of domestic

protection of human rights enshrined in the Czech Charter of Fundamental

Rights and Freedoms (the “CFRF”).

 

(6.)

Finally, the Senate questioned whether Art. 2 of the TEU is consistent

with Art. 1 par. 1 and Art. 2 par. 1 of the Constitution (the principle

of the sovereignty of the people), in view of the fact that it expands

the values on which the Union is established, which could, through a

mechanism of suspending membership rights, be used to create political

pressure to change domestic legal orders concerning such fundamental

issues against the will of the sovereign, i.e. the people.

 

President

Václav Klaus, as a party to the proceeding, agreed with the Senate’s

petition, and added to its arguments, among other things, by emphasizing

the argument that the Treaty of Lisbon is inconsistent primarily with

the material core of the Constitution, and that this inconsistency can

not be removed even by a possible amendment to the Constitution. In

contrast, the government of Mirek Topolánek stated its belief that the

Treaty of Lisbon is not inconsistent with the constitutional order of

the Czech Republic.

 

 

Reasoning of the Constitutional Court’s Judgment

 

Being

faced with a petition for review of an international treaty for the

first time, the Constitutional Court first addressed the procedural

issues of this kind of proceeding. It rejected the arguments of the

parties that the nature of the proceeding was non-adversarial (implying

an obligation to review all provisions of an international treaty for

consistency with the entire constitutional order, stating that this is a

concept from civil trials, not transferable to this quite unique

proceeding. Analogously to proceedings on review of norms, the

Constitutional Court feels it is bound by the scope of the petition to

open proceedings, which means that it concentrates its review only on

those provisions of the international treaty whose consistency with the

constitutional order the petitioner expressly contested, and where, in

an effort to meet the burden of allegation, it supported its claims with

constitutional law arguments (i.e., in the scope of a proper petition).

The Constitutional Court peripherally indicated that it would take a

restrictive approach to addressing the issue of the impediment of rei

iudicatae, established for the future by this judgment of the

Constitutional Court in relation to possible other petitions from other

possible petitioners to open proceedings on review of whether the Treaty

of Lisbon is consistent with the constitutional order. The

Constitutional Court also stated more precisely that in this review it

did not intend, for a number of reasons, to distinguish between the

provisions of the Treaty of Lisbon described as “normatively” old or

new, i.e. it reviewed all those provisions of the Treaty of Lisbon that

the petitioner properly contested.

 

In

this regard, the Constitutional Court expressed the opinion that, even

after ratification of the Accession Treaty, the normatively supreme

position of the constitutional order was not rendered meaningless, and

that, in exceptional cases, one can conclude that a treaty is

inconsistent with the constitutional order even ex post, subsequently,

after it has been ratified, via an individual constitutional complaint

proceeding. It again subscribed to the principle of a Euro-conforming

interpretation of Czech constitutional law, but noted that in the event

of a clear conflict between the domestic constitution, especially its

material core (Art. 9 par. 2 and 3 of the Constitution) and European law

that can not be healed by a reasonable interpretation, the

constitutional order of the Czech Republic, especially its material

core, must take precedence. However, as regards the referential

viewpoint of a preventive review of whether an international treaty is

consistent with the constitutional order, then the constitutional order

as a whole can apply as a criterion of reference, although in that case

the material core of the constitution naturally plays a primary and key

role.

 

Given

this procedural definition, the Constitutional Court then considered

the individual objections from the Senate and other parties to the

proceeding.

 

To

begin with, the Constitutional Court stated that the limit for transfer

of powers to an international organization under Art. 10a of the

Constitution consists of the essential requirements of a sovereign,

democratic state governed by the rule of law under Art. 9 par. 2 a Art. 1

par. 1 of the Constitution. However, today sovereignty can no longer be

understood absolutely; sovereignty is more a practical matter. In this

sense, the transfer of certain competences of the state, which arises

from the free will of the sovereign and will continue to be exercised

with the sovereign’s participation, in a manner that is agreed on in

advance and is reviewable, is not a conceptual weakening of the

sovereignty of a state, but, on the contrary, can lead to strengthening

it within the joint actions of an integrated whole.

 

Therefore,

in this regard the Constitutional Court generally recognized the

functionality of the EU institutional framework for ensuring review of

the scope of the exercise of the transferred powers, although it

acknowledged that its position cold change in the future, if it appeared

that this framework was demonstrably non-functional. In addition, the

Constitutional Court can review whether an act by bodies of the Union

exceed the powers that the Czech Republic transferred to the European

Union under Art. 10a of the Constitution, although only in wholly

exceptional cases.

 

Specifically,

as regards the first group of objections from the Senate (Art. 2 par. 1

and Art. 4 par. 2 of the TFEU), the Constitutional Court stated that

the category of the EU’s exclusive powers is not new in any way. The

Treaty of Lisbon does not establish an unlimited competence clause even

in the area of shared competences, but only declares the main areas in

which shared competences occur. In the context of other provisions of

the Treaty of Lisbon (Art. 2 par. 6 of the TFEU, Art. 5 par. 2 of the

TEU, protocols on the application of the principles of subsidiarity and

proportionality and on on the exercise of shared competence) it is

evident that the Treaty of Lisbon provides a sufficiently certain

normative framework for determining the scope in which the CR will

transfer its powers to the EU.

 

As

regards Art. 352 par. 1 of the TFEU (the Senate’s second objection),

the Constitutional Court stated that the transfer of “constitutional”

competence to an international organization would be impermissible.

However, in the case of the Treaty of Lisbon this will not occur:

amendment of the primary treaties will continue to be possible only with

the consent of all EU states, which thus remain masters of the

treaties; moreover, the possibility of withdrawing from the EU is

expressly established (Art. 50 of the TEU). This is not in any way

changed by the so-called flexibility clause under Art. 352 par. 1 of the

TFEU; the possibility of adopting such a measure is limited to the

objectives defined in Art. 3 of the TEU and is also narrowed in view of

declarations no. 41 and no. 42 contained in the Final Act of the

Intergovernmental Conference on the Treaty of Lisbon. Thus, the

flexibility clause is not a blanket norm that would enable circumventing

Art. 10a of the Constitution; in this regard the Constitutional Court

also found adequate the institutional framework of review of transferred

powers, as it follows from the practice of bodies of the EU and from

the case law of the European Court of Justice. The Constitutional Court

observed that the Treaty of Lisbon leaves fully up to the constitutional

structures of member states how to ensure that the principle of

subsidiarity is respected in decision-making under the flexibility

clause. Thus, the Czech legislature has room to pass an appropriate

legal regulation that will be consistent with the constitutional order.

 

As

regards the Senate’s doubts about Art. 48 par. 6 and 7 of the TEU (the

third group of objections) the Constitutional Court pointed to Art. 48

par. 6 subparagraphs three of the TEU, which expressly eliminates any

doubts relating to Art. 10a of the Constitution consisting of the claim

that it would thus be possible to continue to increase the competences

conferred on the EU by the primary treaties. One can not even

conceptually think of amendments expanding Union powers, because a

possible amendment clearly applies only to voting. The primary treaties

will keep a higher legal force over any acts adopted in this manner;

moreover, the article establishes the possibility for national

parliaments to block such acts. However, the Constitutional Court,

obiter, criticized the lack of legal regulation that would permit

implementing decision-making procedures under Art. 48 of the TEU on a

domestic level, and de lege ferenda named certain criteria that such

procedures should meet.

 

As

regards Art. 83 par. 1 of the TFEU, especially regarding the third

subparagraph, the Constitutional Court stated that the Senate overlooked

Art. 83 par. 3 of the TFEU, which indicates that Art. 83 par. 1 of the

TFEU can not be applied to our legal order without the consent of the

Czech Republic.

 

The

Constitutional Court also noted, regarding these objections, that the

Treaty of Lisbon transfers powers to bodies whose regularly inspected

legitimacy comes from general elections in the individual member states.

Moreover, the Treaty of Lisbon makes possible several ways of involving

domestic parliaments. The Constitutional Court concluded from this that

the Treaty of Lisbon reserves an important role for domestic

parliaments, whose consequences are to strengthen the role of individual

member states; moreover, the regulation is one that makes the structure

of the whole system more understandable and more clear, compared to the

present condition. Therefore, voting by a qualified majority under Art.

48 par. 7 of the TEU is not inconsistent with Art. 1 par. 1 and Art. 15

par. 1 of the Constitution.

 

As

regards the fourth group of the Senate’s objections (regarding Art. 216

of the TFEU) the Constitutional Court stated that there is no question

of conflict with Art. 10, Art. 49 and Art. 63 par. 1 let. b) of the

Constitution, because these provisions do not apply to the negotiation

of such treaties concluded by the Union. Art. 216 of the TFEU is not a

norm of competence that expands the powers of the Union; it only expands

the catalog of instruments that the Union can use within the framework

of its competences. Thus, the EU can exercise the transferred powers

both internally and externally, and the text of Art. 49 and 63 of the

Constitution does not form an insurmountable obstacle to the transfer of

powers in the area of concluding international treaties. Nonetheless,

the Constitutional Court noted out that Art. 216 of the TFEU, due to its

vagueness, is on the borderline of compatibility with requirements that

the text of a legal norm be certain, or with requirements that the

transfer of powers to the EU be determinable; however, this vagueness

does not reach the intensity necessary to declare Art. 216 of the TFEU

inconsistent with the constitutional order.

 

As

regards the fifth group of the Senate’s objections, concerning the

CFREU and Art. 6 of the TEU, the Constitutional Court emphasized that

the CFREU would primarily bind Union bodies, and only bind Czech bodies

in the event of application of European law. The CFREU does not expand

the area of application of Union law beyond the framework of the Union’s

powers. In addition, as a result of the EU’s accession to the

Convention for the Protection of Human Rights and Fundamental Freedoms

the bodies of the Union, including the Court of Justice, will become

subject to review by the European Court of Human Rights, which will

strengthen the mutual conformity of both systems for the protection of

fundamental rights and freedoms. The Constitutional Court also noted

that the CFREU recognizes the fundamental rights arising from the

constitutional traditions common to the member states, and must

therefore be interpreted in accordance with these traditions (Art. 52

par. 4 of the CFREU). It also emphasized that protection of fundamental

rights and freedoms is part of the material core of the Constitution,

where it is beyond the reach of the legislature, and if the standard of

protection ensured in the EU were unacceptable, the bodies of the CR

would once again have to take over the transferred powers, in order to

ensure protection of the standard. However, it has not observed anything

like that at the present time.

 

The

Constitutional Court stated that it is difficult at an abstract level

to review the mutual harmony of individual rights and freedoms under the

CFREU and the CFRF. Prima vista there is no conflicting provision in

the CFREU; in contrast, the catalog of rights in the CFREU is fully

comparable to the set of fundamental rights and freedoms protection in

the CR on the basis of the CFRF; even the petitioner did not raise any

questions in this regard. The Constitutional Court found that in the

present situation the European institutional provision of the standard

of protection for human rights and fundamental freedoms is compatible

with the standard provided by the constitutional order of the CR. In the

event of a conflict of sources governing the rights and freedoms of

individuals under the CFREU and the CFRF the applying bodies will

naturally proceed according to the one that provides individuals the

higher standard of protection.

 

As

regards the sixth group of the Senate’s objections, the Constitutional

Court stated that the values mentioned in Art. 2 and 7 of the TEU are

fundamentally consistent with the values on which the material core of

the Czech constitution rests (cf. Art. 1 par. 1, Art. 5, Art. 6 of the

Constitution, Art. 1, Art. 2 par. 1, Art. 3, Chapter Four of the CFRF).

Therefore, in this regard as well the Treaty of Lisbon is consistent

with the untouchable principles protected by the Czech constitutional

order. Insofar as the Senate relies on state sovereignty in this regard,

the Constitutional Court stated that in a modern, democratic state,

governed by the rule of law, state sovereignty is not an aim in and of

itself, in isolation, but is a means for fulfilling the fundamental

values on which the construction of a constitutional state governed by

the rule of law, stands.

 

Therefore,

the Constitutional Court summarized that the Treaty of Lisbon changes

nothing on the fundamental concept of current European integration, and

that, even after the entry into force of the Treaty of Lisbon, the Union

would remain a unique organization of an international law character.

 

Finally,

the Constitutional Court addressed the arguments, or the initiative of

the president of the republic concerning the manner in which the Treaty

of Lisbon is to be approved (whether in a referendum or by parliament),

and stated that resolution of this issue lies outside the bounds of the

possible review of an international treaty under Art. 87 par. 2 of the

Constitution.

 

The

judge rapporteur was Vojen Güttler. No judge filed a dissenting opinion

either to the verdict or the justification of the judgment.

 

 

 

 

CZECH REPUBLIC
CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE REPUBLIC

 

The

Plenum of the Constitutional Court, consisting of Stanislav Balík,

František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer,

Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jiří Mucha, Jan Musil,

Jiří Nykodým, Pavel Rychetský, Miloslav Výborný, Eliška Wagnerová and

Michaela Židlická, decided, under Art. 87 par. 2 of the Constitution of

the Czech Republic, on a petition from the petitioner – the Senate of

the Parliament of the Czech Republic – seeking review of whether the

Treaty of Lisbon amending the Treaty on European Union and the Treaty

establishing the European Community is consistent with the

constitutional order, as follows:

 

The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, specifically

 

Articles 2 par. 1 (previously 2a par. 1), 4 par. 2 (previously 2c), 352

par. 1 (previously 308 par. 1), 83 (previously 69b par. 1) and 216

(previously 188 l), contained in the Treaty on the Functioning of he

European Union,

 

• Articles 2 (previously 1a), 7 and 48 par. 6 and 7 contained in the Treaty on European Union

 

• and the Charter of Fundamental Rights of the European Union

 

are not inconsistent with the constitutional order.

 

 

REASONING

 

I.

 

1.

The Senate of the Parliament of the Czech Republic (the “Senate” or the

“petitioner”), on the basis of § 117b par. 1 of Act no. 107/1999 Coll.,

on the Rules of Procedure of the Senate, as amended by later

regulations, and under § 71a par. 1 let. a) of Act no. 182/1993 Coll.,

on the Constitutional Court, as amended by later regulations, (the “Act

on the Constitutional Court”) submitted a petition asking that the

Constitutional Court, under Art. 87 par. 2 of the Constitution of the

Czech Republic (the “Constitution”) decide whether the Treaty of Lisbon

amending the Treaty on European Union and the Treaty establishing the

European Community is consistent with the constitutional order of the

Czech Republic.

 

2.

In the petition, the Senate stated that, on 25 January 2008, the

government of the Czech Republic presented to the Senate the Treaty of

Lisbon amending the Treaty on European Union and the Treaty establishing

the European Community (the “Treaty of Lisbon” or the “Treaty”), with a

request for consent to ratify it. The Senate, following on from its

resolution of 20 September 2007, in which it expressed its view on the

Czech Republic’s positions before the summit meeting of heads of state

and governments in Lisbon, taking into account the report of the Senate

Committee for European Integration of 30 September 2003 concerning the

proposed Treaty establishing a Constitution for Europe and the report of

the Senate Committee for European Union Matters of 3 November

2004concerning the proposed Treaty establishing a European Constitution,

and in view of the opinions of the Senate Standing Commission for the

Constitution and Parliamentary Procedure of 9 October 2003, 3 November

2004 and 27 March 2008, believes that certain provisions of the Treaty

apply directly to the norms of the constitutional order of the Czech

Republic. In view of the fundamental changes that the Treaty brings, and

that, in the Senate’s opinion, concern substantive elements of

statehood, it believes it is necessary to review whether the Treaty is

consistent with the constitutional characteristics of the Czech Republic

as a sovereign, unitary, and democratic state governed by the rule of

law (Art. 1 par. 1 of the Constitution) and whether it does not change

the essential requirements for a democratic state governed by the rule

of law, which, under Art. 9 par. 2 of the Constitution is impermissible.

 

3.

The Senate stated that it considers it necessary for the Constitutional

Court to also evaluate whether specific individual provisions of the

Treaty are consistent with the norms of the constitutional order,

especially in cases that it described in more detail in the points

below.

 

4.

a) In accordance with its belief that legislative competence-competence

belongs to the member states of the European Union, which delegate the

exercise of certain powers to international institutions, the Senate

considers a key provision to be Art. 10a par. 1 of the Constitution,

under which certain powers of bodies of the Czech Republic can be

transferred to an international organization or institution. In the

Senate’s opinion, the new version of the Treaty on the Functioning of

the European Union (previously the Treaty Establishing the European

Community) establishes a classification of powers that is more

characteristic of federal states, and it establishes, among other

things, a category of competences exclusive to the Union, which includes

entire, comprehensive areas of legal regulation in which, under Art. 2a

par. 1 of the Treaty on the Functioning of the European Union, the

member states may create and pass legally binding acts “only if so

empowered by the Union or for the implementation of Union acts.” The

related concept of shared competences (Article 2c of the Treaty), which

are to exist in addition to the exclusive competences, together with the

allegedly not completely clear limits for the creation of norms of the

secondary law of the Union, according to the Senate opens the door for a

wide sphere of Union norm-creation, difficult to identify in advance,

where, in accordance with declaration no. 17, attached to the Treaty,

the principle of primacy for Union law is implicitly applied. Thus, in

the Senate’s opinion, the scope of transfer of powers can be seen in the

sphere of shared competences, in terms of Art. 10a of the Constitution,

as not fully determinable in advance (cf. in general form, the

introduction to Art. 2c par. 2 of the proposed Treaty on the Functioning

of the European Union – “Shared competence between the Union and the

Member States applies in the following principal areas.”

 

5.

b) The Senate stated that the review of consistency with Art. 10a of

the Constitution should also include the nature of the proposed Art. 308

par. 1 of the Treaty on the Functioning of the European Union, under

which the Council, acting unanimously on a proposal from the Commission,

of the Commission shall adopt measures “to attain one of the objectives

set out in the Treaties,” in a situation where, within the framework of

Union policies, a particular action is necessary for which the Treaty

does not provide the necessary powers. In contrast to the existing

wording of the founding treaties, the proposed Treaty provision is not

limited to regulation of the domestic market, but is a blanket

provision. Thus, it allegedly permits passing measures beyond the

framework of Union competences, i.e. beyond the scope of the transfer of

powers under Art. 10a of the Constitution. According to the Senate,

such measures could subsequently also be passed in the area of sensitive

issues of cooperation in criminal matters, without adequate procedural

guarantees for protection of civil rights and freedoms, while preserving

the European Court of Justice’s monopoly on interpretation. According

to the Senate, the specific jurisdiction of the European Court of

Justice as the final arbiter in the event of a dispute arising, can – in

a situation where the relationship to the constitutional courts of

member states is not clear – raise question marks about the observance

of the principle of legal certainty. Also worthy of special attention is

the lack of a time limitation on the validity of a measure thus

adopted, and its executive nature, which can raise doubts about the

relevance of participation of national parliaments in weighing the

adoption of such a measure.

 

6.

c) According to the Senate’s proposal, the concept of powers used in

Art. 10a of the Constitution has not only a material dimension,

overlapping with the definition of an area of competence, but also an

institutional dimension, relating to the manner of making decisions. In

this regard, according to the Senate, it is necessary to review whether

the proposed Art. 48 of the Treaty on EUropean Union is consistent with

the cited provision of the Constitution. This is because Article 48 par.

6 and 7 introduce the possibility of a simplified procedure for passing

amendments to primary Union law by an executive act, which changes the

nature of the duly ratified founding treaties of the EU.

 

7.

In this regard, the general transitional clause (passerelle) is said to

be formulated unambiguously; although the principle of bilateral

flexibility is formally enshrined in Declaration no. 18, annexed to the

Treaty, this clause remains an instrument for a unilateral change of

competences. Applying this clause in order to change unanimous decision

making to decision making by a qualified majority in a particular area,

or replacing a special legislative procedure by a regular legislative

procedure under Art. 48 par. 7 clearly represents a change of powers

under Art. 10a of the Constitution, yet that change is not accompanied

by ratification of an international treaty or the active consent of

Parliament. According to the Senate, the loss of the right to veto can

be seen as a transfer of powers to an international organization; at the

same time, it de facto limits the importance of the parliamentary

mandate given to the government to make a decision, if, during

decision-making, after application of the transitional clause, the

representative of an individual member state’s government could be

outvoted.

 

8.

In the case of the proposed Art. 69b par. 1 of the Treaty on the

Functioning of the EU, when the sector Council decides to include

further areas of criminal activity in the sphere of Union regulation,

there is no room at all for Parliament to disagree, even though in

another case – the proposed wording of the general transitional clause

(Art. 48 par. 7 of the Treaty on European Union) and partial

transitional clause in the sphere of judicial cooperation in civil

matters (Art. 65 par. 3 of the Treaty on the Functioning of the European

Union) – that possibility is guaranteed. The limited involvement of

national parliaments in the decision to amend other relatively widely

defined competences of the Union is supplemented by expanding the voting

by a qualified majority, often related to the overall communitarization

of the existing third pillar of European law, where, in parallel with

the implicit weakening of the domestic parliament’s mandate and

annulment of the category of treaties approved by the Parliament of the

Czech Republic, responsibility for the parliamentary dimension of

decision making is assumed by the European Parliament. In this regard

the Senate posed the question whether, in view of the character of the

European Union as an association of states (not a federal state) this

dimension of parliamentary democracy is sufficient, and whether this

does not de facto render Art. 15 par. 1 of the Constitution meaningless.

(“The legislative power of the Czech Republic is vested in the

Parliament.”)

 

9.

d) The Senate continued that, in addition to the already cited

transitional clauses and the flexibility clause, the procedures set

forth by the Treaty also affect another aspect of the constitutional

order. That is the negotiation of international treaties under the

proposed Art. 188l of the Treaty on the Functioning of the European

Union. This expands the grounds for concluding international treaties in

the name of the EU (“where the Treaties so provide or where the

conclusion of an agreement is necessary in order to achieve, within the

framework of the Union's policies, one of the objectives referred to in

the Treaties, or is provided for in a legally binding Union act or is

likely to affect common rules or alter their scope”). Treaties are

binding on the EU and its member states, yet they are concluding by a

qualified majority decision of the Council. Thus, according to the

Senate, the Czech Republic need not express consent to a treaty, and yet

it is bound by it; the usual ratification process does not take place

at all, and thus the possibility of preliminary review of whether these

treaties are consistent with the constitutional order of the Czech

Republic falls away. The question remains whether this process is

compatible with the text of Art. 49 and Art. 63 par. 1 let. b) of the

Constitution, and whether there is scope to apply the treaties on the

basis of Art. 10 of the Constitution.

 

10.

e) The Senate also stated that strengthening the powers of European

Union bodies that represent the supranational level of decision making

is accompanied by introducing the single legal subject status of the

European Union. Thus, the functioning of the European Union acquires a

completely new legislative framework in the sphere of the existing

second and third pillar, in areas of primarily political cooperation. Of

course, in such a framework, which fundamentally tears away the

principle of unanimous decision making in the sphere of the existing

third pillar, conflict with domestic standards of protection of

fundamental rights can occur more frequently than it has until now.

Although, under the proposed Art. 6 par. 2 of the Treaty on EU, the

European Union is to accede to the European Convention on Protection of

Human Rights and Fundamental Freedoms, the same article states in

paragraph 1 that “the Union recognizes the rights, freedoms and

principles set out in the Charter of Fundamental Rights of the European

Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007,

which shall have the same legal value as the Treaties.” According to

the Senate, this indirect reference to the Charter of Fundamental Rights

of the European Union may make its status unclear, just like the fact

that this Charter contains not only directly enforceable rights, but

also principles and aspirations that are not clearly, systematically

organized. In a situation where the Union does not and can not have a

specialized body, a court handling “constitutional complaints,” that

would interpret the provisions of the Charter in particular cases of

violation of civil rights, the role of the Charter is allegedly not

clear. It is not clear to the Senate whether it protects the rights of

citizens, or is rather an interpretational tool, in light of which the

powers of Union bodies are interpreted or the interpretation of the aims

pursued by the Union is intensified, whether it strengthens or, on the

contrary, weakens the authority of domestic institutions that interpret

the national catalogs of human rights, in accordance with the individual

traditions of the political nations of Europe, what procedural

consequences (prolonging or, on the contrary, expediting the

enforceability of rights) this step has in relation to the case law of

the European Court of Human Rights, and whether, as a result of this

fact, the standard of domestic protection of human rights enshrined in

the Charter of Fundamental Rights and Freedoms can be strengthened or

leveled.

 

11.

f) Last but not least, according to the Senate’s petition, definition

of the status of the Charter, and possibilities for interpreting it is

also necessary in order to grasp the newly formulated Art. la of the

Treaty on EU, which expands the values on which the Union is

established, and also includes standards of the European social model

(“in a society in which pluralism, non-discrimination, tolerance,

justice, solidarity and equality between women and men prevail”).

According to the petitioner, the question of interpretation of this

provisions becomes all the more significant because serious violation of

these values can lead to suspending a particular member state’s rights

under the Treaty. A simple proposal filed by 1/3 of member states, the

European Parliament, or the European Commission against a member state

could allegedly create political pressure leading to changes of the

domestic legal order. Therefore, the Senate poses the question whether

the formulation of this provision is consistent with the fundamental

characteristic of the Czech Republic contained in Art. 1 par. 1 and also

with Art. 2 par. 1 of the Constitution (the principle of the

sovereignty of the people).

 

12.

In view of the foregoing, the Senate proposed that the Constitutional

Court, pursuant to Art. 87 par. 2 of the Constitution and § 71e of the

Act on the Constitutional Court, rule on whether the Treaty is

consistent with the constitutional order.

 

 

II.

 

13.

Under § 71c of the Act on the Constitutional Court, the parties to

proceedings on whether international treaties are consistent with

constitutional laws are, in addition to the petitioner, the Parliament,

the President of the Republic, and the government. Therefore, the

Constitutional Court sent the Senate’s petition to open proceedings to

the Chamber of Deputies of the Parliament of the Czech Republic, the

President of the Republic, and the Government of the Czech Republic (§

69 par. 1 the Act on the Constitutional Court, per analogiam), so that

they would have an opportunity to express their opinions on the Senate’s

petition.

 

 

III.

 

14.

On 5 June 2008 the Constitutional Court received a brief from the

President of the Republic. In the introduction, he emphasized that he

welcomed the Senate’s petition and agreed with it. The president stated

that the Treaty of Lisbon beyond any doubt significantly changes the

character of the European Union as such, and thereby also the position

of the Czech Republic within it. Therefore, in his opinion, it is

necessary to pay extraordinary attention to the evaluation of whether

all its provisions individually and as a whole are consistent with the

Constitution of the Czech Republic, the Charter of Fundamental Rights

and Freedoms, and the constitutional order of the Czech Republic. In

this regard the president pointed out that the Constitutional Court’s

decision in this matter will be one of the most important and most

responsible in the history of the Czech constitutional judiciary.

 

15.

The president’s brief is divided into three long sections marked points

A, B and C, and these parts are further divided into individual

sub-chapters.

 

16.

Point A is entitled “On the Proceeding Generally,” and the first

sub-chapter concerns the nature of the proceeding. In it the president

expresses the opinion that the Constitutional Court is authorized to

evaluate not only the provisions of the Treaty of Lisbon mentioned in

the Senate’s petition, but also whether it is consistent with the entire

constitutional order, in all aspects. That is precisely the purpose of

proceedings on whether international treaties under Art. 10a and 49 of

the Constitution are consistent with the constitutional order. In terms

of the proceeding, the reasoning of the petition, or the briefs of the

parties allegedly have only the legal significance that it is necessary

to deal with their claims, themes and doubts in the reasoning of the

judgment. The president also concludes that this type of proceeding is a

non-adversarial proceeding. If this were not so, then it would be

necessary to acknowledge that another possible petitioner under § 71a

par. 1 let. b), c) or d) of the Act (i.e. a group deputies, senators, or

the president of the republic) would be authorized, even after a

positive judgment by the Constitutional Court, to file a separate

petition, drawing the Constitutional Court’s attention to other

provisions of the relevant international treaty or the constitutional

order that the previous petitioner did not mentioned. The president

considers such an interpretation to be not only absurd, but also

exceptionally impractical.

 

17.

The next passage in the president’s brief is entitled “The Nature of

Treaties under Art. 10a of the Constitution.” Article 10 provides that

promulgated international treaties which Parliament has agreed to

ratify, and by which the Czech Republic is bound under international

law, are part of our legal order and take precedence before statutes.

According to the president, neither this nor any other provision of the

Constitution differentiates between treaties under Art. 10a, whose

ratification requires consent by both chambers of the Parliament by a

constitutional majority (Art. 39 par. 4 of the Constitution), and

treaties under Art. 49, whose ratification requires consented by both

chambers by a simple majority of votes (Art. 39 par. 2 of the

Constitution). It allegedly follows from this, that although the

conditions of ratification differ, the subsequent legal status in the

Czech legal order of treaties under Art. 10a and under Art. 49 of the

Constitution must be the same. However, the president considers it

impossible for ordinary international treaties under 49 of the

Constitution to have the force of a constitutional act, or even

precedence over one. As part of the legal order, they have precedence

over statutes, but the constitutional order is above the legal order.

However, that must then logically also apply to treaties under Art. 10a,

such as the Treaty of Lisbon and our Treaty of Accession. According to

the president, that interpretation is also confirmed by Art. 112 of the

Constitution. International treaties can not be unilaterally annulled,

and it is not always possible to withdraw from them immediately.

Therefore, review of the constitutionality of treaties after

ratification would be problematic, and for that reason it is necessary

to determine whether they are consistent with the constitutional order

in advance. However, such a proceeding would not make sense with an

international treaty that would itself have the force of a

constitutional act. A treaty that was part of the constitutional order

could not, by definition, be inconsistent with the constitutional order.

At the moment when the treaty becomes part of the constitutional order,

it implicitly changes that order to its own image, in accordance with

the fundamental legal principle lex posterior derogat legi priori. (At

this point the president referred to a passage from the decision of the

Permanent Court of International Justice in matters of the treatment of

Polish citizens in Gdansk from 1932 – “According to generally accepted

principles … a state can not object against another state even based on

its own constitution to avoid obligations that are imposed upon it by

international law or valid international treaties.”) The president

concluded this part of the brief by saying that, if the Constitutional

Court did not agree with this interpretation, and took the position that

international treaties under Art. 10a of the Constitution, or other

international treaties (reference to Constitutional Court judgment no.

403/2002 Coll.) are part of the constitutional order, then it would be

appropriate for preliminary review of constitutionality to become the

rule for all international treaties that are to become part of the

constitutional order, because that would avoid implicit, involuntary, or

undesirable changes to the constitutional order.

 

18.

The longest part of the president’s brief is part B, entitled “On the

Consistency of the Treat of Lisbon with the Constitutional Order.”

 

19.

In it, the president first addressed the question of sovereignty. He

stated that under Art. 1 of the Constitution the Czech Republic is a

sovereign state that observes its obligations resulting from

international law. According to the president, one can conclude that

this means sovereignty in the sense of international law. The Czech

Republic declares itself to be a full member of the international

community and a full subject of international law. International law is

consensual law; unlike domestic legal orders, its source is not an order

in the most general sense of the word (a statute, directive,

instruction, etc.), but consensually created or spontaneously arising

legal norms (international treaties and international custom). According

to the president, sovereignty means a quality where a subject is not

and can not be limited by a norm that arose without its consent,

expressed either explicitly, in the case of international treaties, or

implicitly, in the case of international custom. A subject that is bound

to follow the orders of another subject independently of its own will,

or even in conflict with it, is not sovereign under international law.

The Treaty of Lisbon, in a number of areas, replaces consensual decision

making by decision making based on voting (he refers to Art. 9c of the

Treaty on European Union, as amended by Art. 1 point 17 of the Treaty of

Lisbon, i.e. Art. 16 in the new consolidated version of the Treaty on

European Union, renumbered on the basis of Art. 5 of the Treaty of

Lisbon; and Art. 205 of the Treaty on the Functioning of the European

Union, as amended by Art. 2 point 191 of the Treaty of Lisbon, i.e. Art.

238 in the new consolidated version of the Treaty on the Functioning of

the European Union, heretofore called the Treaty on European

Communities, renumbered on the basis of Art. 5 of the Treaty of Lisbon).

Thus, it could allegedly happen that the Czech Republic would be bound

by a norm whose adoption it openly opposed. This even applies to the

conclusion of certain international treaties by the European Union, that

is, norms binding the Czech Republic vis-à-vis states that are not

members of the Union.

 

20.

The president also addressed the issue of the direct effect of EU legal

regulations. He pointed out that international law considers itself to

be an exclusive system above the legal orders of individual states, and

therefore, from its point of view, considers domestic legal orders to be

mere legal facts, not legal norms; therefore, also, it fundamentally

does not specify the manner in which states are to implement their

international law obligations. However, according to the president’s

brief, the Treaty of Lisbon explicitly confirms that selected legal acts

of the EU are to have direct effect in the legal orders of member

states (he points to Art. 249 of the Treaty on the Functioning of the

European Union, as amended by Art. 2 point 235 of the Treaty of Lisbon,

i.e., Art. 288 in the new consolidated version of the Treaty on the

Functioning of the European Union, renumbered on the basis of Art. 5 of

the Treaty of Lisbon; see also p. 6 of the submission report for the

Parliament of the Czech Republic in Chamber of Deputies publication no.

407 and Senate publication no. 181 in the current terms of office); in

contrast, the Constitution of the Czech Republic provides in Art. 10

that international treaties approved by Parliament and duly promulgated

are directly binding. Thus, according to the president, a contrario one

can conclude that no other foreign regulations other than the cited

international treaties may have direct effect in the Czech legal order.

 

21.

The president’s brief then discusses what he considers to be the

unclear nature of the EU Charter of Fundamental Rights. Under the Treaty

of Lisbon the European Union is required to accede to the European

Convention for the Protection of Human Rights and Fundamental Freedoms,

and is also required to recognize the rights, freedoms, and principles

contained in the Charter of Fundamental Rights of the European Union.

Moreover, that Charter is to have the same legal force as the treaties

establishing the EU (Art. 6 of the Treaty on EUropean Union, as amended

by Art. 1 point 8 of the Treaty of Lisbon, i.e., Article 6 in the new

consolidated version of the Treaty on EUropean Union, renumbered on the

basis of Art. 5 of the Treaty of Lisbon). According to the president, it

is essential to find an answer to the questions of: what is the

relationship between our Charter of Fundamental Rights and Freedoms,

which is part of the constitutional order, and the Charter of

Fundamental Rights of the EU, whether the Charter of Fundamental Rights

of the EU also has the legal status of an international treaty under

Art. 10a of the Constitution and on those grounds has precedence over

Czech statues, and, if the Charter of Fundamental Rights and Freedoms of

the EU is a treaty under Art. 10a of the Constitution, whether all its

provisions are consistent with our Charter of Fundamental Rights and

Freedoms. The president added that he considers it obvious that they do

not have the same force as our Charter, or even precedence over it,

which is already clear from the previous paragraph of his brief.

 

22.

As regards the transfer of powers to the EU, the president pointed to

Art. 10a of the Constitution, under which certain powers of bodies of

the Czech Republic can be transferred to an international organization

or institution. In this regard, he considers essential the word

“international,” which allegedly clearly indicates that the powers of

bodies of the Czech Republic can be transferred only to an entity

existing between states, not alongside them, or even above them. The

direct effect of legal regulations of the European Union allegedly

testifies to the fact that the legal order of the Union feels itself to

be above the legal orders of member states, and that it emancipated

itself vis-à-vis international law as an independent system existing

alongside international law. On the contrary, however, what would

correspond to international law would be for European law not to

routinely prescribe for its members how they are to fulfill the

obligations that it imposes on them (based on their joint will).

According to the president’s brief, by trying to permeate the legal

orders of member states, European law sees them as legal norms – in

contrast, international law fundamentally sees them as legal facts.

 

23.

According to the president’s brief, the EU Charter of Rights is itself

an unnecessary document. The member states have their own charters of

rights, allegedly as a rule much more thoroughly prepared. At the

international level, human rights and freedoms are guaranteed by the

Council of Europe’s European Convention for the Protection of Human

Rights and Fundamental Freedoms. It is time-tested and has a functioning

mechanism of judicial review, unlike the EU Charter of Rights, which,

according to the president, makes sense only if the Union feels itself

to be a state sui generis, or a federal state in the process of

formation, which is then itself bound by international law to observe

and protect human rights. However, according to the president, the fact

that the EU, after adopting the Treaty of Lisbon, will no longer be an

international organization, is also indicated by other circumstances;

European Union citizenship was already introduced by the Maastricht

Treaty of 1991, but at that time this was not citizenship as it is

understood in international law. It was a concept that had only the name

in common with citizenship in the legal sense of the word, that is, it

conferred only those “rights” that the citizens of member states would

have even without it. However, according to the president’s brief, the

treaty of Lisbon goes farther, and connects with citizenship of the

Union additional rights that citizens of the Union will have, and which

make sense only in the EU context; e.g., the Treaty of Lisbon gives the

right to initiate legislation to a certain number of EU citizens who

must however, as a whole, “come from a substantial number of member

states.” Thus, the Treaty of Lisbon here allegedly already anticipates a

European civil society, existing alongside the civil societies of the

individual member states, and thus a kind of European nation state is

being construed.

 

24.

According to the president’s brief, another example is the new

definition of competences, or their division between the Union and

member states, which is allegedly typical for the division of

competences in a federal state. In particular, the division into powers

belonging exclusively to the Union, remaining powers belonging to the

member states, and the ability of the Union to interfere in these powers

on the basis of the principles of proportionality and subsidiarity is

not very different from the division of powers between the federation

and the lands under the Basic Law of the Federal Republic of Germany.

The only difference is allegedly that the Basic Law also defines the

areas in which the Federation may not interfere, and which can be

governed exclusively by the legislation of the lands. Such a definition

of competences of member states, in which the EU could not interfere

under any circumstances, is lacking in the Treaty of Lisbon.

 

25.

The brief also states that until now all decisions of the European

Union were made by the EU Council, or the European Council, or were

derived from them, (the EU Commission creates secondary legislation, the

Parliament performs its legislative functions together with the

Council, and the European Court of Justice only interprets so-called

“European” law, but de jure does not create it, although its decisions

often have a fundamental influence); the members of the EU Council and

the European Council are the member states, and thus the result of their

activity is merely the sum of the wills of the member states. Now,

however, there would be a completely new function, the Chairman of the

European Council; according to the president it is not completely clear

from the Treaty of Lisbon, but it can be concluded, that he too would

have voting rights in the European Council. That would allegedly mean

that the will of the European Union will no longer be merely the sum of

the wills of the member states, but the sum of the wills of the member

states and the individual who will hold the position of chairman of the

European Council at a particular time. That person will de facto have a

veto power, if the European Council makes decisions by consensus.

Compared to the abovementioned facts, in contrast it is de iure

completely unimportant that the Treaty of Lisbon in the end does not

codify European symbols – a flag, anthem, or motto. Symbols are not

essential elements of a state under international law, nor do they

belong to the exclusive elements of states. Moreover, European symbols

have long functioned, and will surely continue to function, on the basis

of international custom, or so-called “secondary” Union law. Therefore,

according to the president’s brief, one can not claim that omitting

them fundamentally distinguishes the Treaty of Lisbon from the rejected

proposal for a European Constitution. The difference between them is

allegedly purely in form; while the EU Constitution replaced the

existing treaties, the Treaty of Lisbon is in the nature of an amendment

to them, and thus makes “primary” Union law even less clearly organized

than it is now.

 

26.

Therefore, in the conclusion of this part of his brief, the president

emphasized that all of this raises fundamental doubts as to whether,

even after the Treaty of Lisbon were to enter into force, the European

Union would remain an international organization, or institution, under

Art. 10a of the Constitution of the Czech Republic, or whether it would

then rather be an entity existing alongside its members, and in future

even aspiring to stand above them. The question then is, whether Article

10a even permits transferring any powers of bodies of the Czech

Republic on a subject that is undergoing such transformation.

 

27.

Part C of the president’s brief concerns the manner in which the Treaty

of Lisbon would be ratified. The president considers it useful for the

Constitutional Court to find a way to express an opinion on the manner

in which consent may be given to ratify the Treaty of Lisbon. Under Art.

10a of the Constitution, the consent of Parliament is necessary to

ratify an international treaty that transfers some powers to an

international organization or institution; a constitutional act may

provide that consent by a referendum is required in a particular case.

Under Art. 1 of constitutional Act no. 515/2002 Coll., on a Referendum

on the Accession of the Czech Republic to the European Union and

Amending Constitutional Act no. 1/1993 Coll., the Constitution of the

Czech Republic, as amended by later constitutional acts, the Czech

Republic’s accession to the Union could only be decided by a referendum.

The question for the referendum was directly tied to the Treaty of

Accession, and read: “Do you agree that the Czech Republic should become

a member state of the European Union, pursuant to a [a/the] treaty on

accession of the Czech Republic to the European Union?” In the

president’s opinion, the accession treaty is evidently meant in the

general sense, because it is not cited in the statute by its full

official name, including the date of signature; moreover, a lower-case

“t” is used in the word “treaty.” Allegedly this evidently has in mind

any treaty determining the conditions for our membership in the European

Union. As follows from the foregoing text, the Treaty of Lisbon in a

very fundamental manner changes the conditions of the Czech Republic’s

membership in the European Community agreed in the Treaty of Accession,

or amends the basic treaties governing the functioning of the European

Union, i.e., treaties to which the Treaty of Accession refers and which

are thus de iure part of it. thus, according to the president’s brief,

the Treaty of Lisbon actually also amends the Treaty of Accession, and

it is thus a legitimate question whether consent to ratification of the

Treaty of Lisbon should not also be subject to a referendum.

 

28.

In the conclusion of his brief, the president added that, in view of

the foregoing, he considers it necessary for the Constitutional Court,

before the Treaty of Lisbon is ratified, provide a clear answer to the

question of whether the Czech Republic will, even after the Treaty of

Lisbon enters into force, remain a sovereign state and a full subject of

the international community, with capacity to independently, without

anything further, fulfill its obligations resulting from international

law, whether the provision of the Treaty of Lisbon on direct domestic

effect of EU legal regulations is consistent with Art. 10 of the

Constitution of the Czech Republic, whether the EU Charter of

Fundamental Rights has the legal status of an international treaty under

Art. 10a, or Art. 10 of the Constitution, and, if so, whether all its

provisions are consistent with the Charter of Fundamental Rights and

Freedoms of the Czech Republic, or other components of the

constitutional order, whether, after the Treaty of Lisbon enters into

force, the European Union will remain an international organization or

institution to which powers of bodies of the Czech may be transferred

under Art. 10a of the Constitution, and, if the Treaty of Lisbon amends,

even indirectly, the Treaty of Accession, then whether constitutional

Act no. 515/2002 Coll., on a Referendum on the Accession of the Czech

Republic to the European Union (in which it would then be necessary to

amend the question for a referendum) implicitly also applies to the

Treaty of Lisbon – i.e. whether therefore consent to the ratification of

the Treaty of Lisbon should be subject to a referendum.

 

29.

The president’s brief also contains a summary, which states that, as a

statutory party to the proceeding before the Constitutional Court, he

considers fundamental and comprehensive evaluation of the content of the

Treaty of Lisbon to be an absolutely key prerequisite for its

ratification. According to the president, the reasoning of the Senate’s

petition and this brief give quite obvious indications, that the Treaty

of Lisbon represents a fundamental change to our constitutional order

and to the international position of the Czech Republic. The president

does not consider it possible for such fundamental changes in the

international position and the international functioning of the Czech

Republic as adoption of the Treaty of Lisbon will undoubtedly bring, to

occur as if involuntarily, without being clearly identified, understood,

and without political and social consensus. According to the president,

the Constitutional Court, as the highest legal authority in our state,

is obligated to give political representatives and the general public a

clear and comprehensive evaluation of the Treaty of Lisbon in all its

aspects, so that it will be possible to decide responsibly on its

ratification, unambiguously and with full awareness of the consequences.

The Treaty of Lisbon brings a fundamental change in the character of

the European Union and the legal position of the Czech Republic, not

only as a member state, but as a sovereign state generally, which it is

and has been until now. Therefore, in the president’s opinion, the

Constitutional Court bears enormous responsibility not only for the

present day, but for the future of our state, which this year marks the

90th anniversary of its founding.

 

 

IV.

 

30.

On 10 June 2008 the Constitutional Court received a brief from the

Chamber of Deputies of the Parliament of the Czech Republic. The brief

states that at present, when the Parliament of the Czech Republic

discusses international treaties, the procedure is for the government to

submit the international treaty to each chamber separately, and

discussions in the chambers are not in any way mutually procedurally

dependent or bound. Therefore, one can speak of the principle of

double-track discussion of international treaties. As the Chamber of

Deputies is not, in this case, bound by an obligation to suspend

discussion of the international treaty until the Constitutional Court

makes a decision, the Treaty is presently being discussion in the bodies

of the Chamber of Deputies. The treaty was submitted to the Chamber of

Deputies on 29 January 2008 as publication 407/0. The text of the treaty

was sent to the deputies on 5 February 2008, and the organization

committee recommended discussion of the treaty, appointed Jan Hamáček as

reporter, and proposed assigning it to the foreign relations committee

for discussion. The first reading took place at the 28th session of the

Chamber of Deputies on 19 and 20 March and 1 April 2008. During

discussion of publication 407 there was a motion to reject it, a motion

to postpone, a motion to assign it to all expert committees of the

Chamber of Deputies and a motion to extend the deadline for discussion

to 150 days if the sponsor agreed. There was also a motion to pass an

accompanying resolution that the Chamber of Deputies, pursuant to

Article 87 par. 2 of the Constitution, asks the Constitutional Court to

evaluate whether the Treaty is consistent with the constitutional order

of the Czech Republic. Of the foregoing motions, the Chamber of Deputies

voted on 1 April 2008 to assign publication 407 for discussion to the

constitutional law committee, the committee for European affairs, and

the foreign relations committee, and extend the deadline for discussion

in committees by 20 days, i.e. to 80 days. Out of the committees

assigned to discuss publication 407, so far the committee for European

affairs has placed it on its agenda; at its 35th meeting on 22 May 2008

it decided to suspend discussion of this publication. Publication 407

has not yet been placed on the agenda of the other two committees to

which the Treaty was assigned for discussion.

 

 

V.

 

31.

In the introduction to its brief of 2 July 2008, the government of the

Czech Republic stated for information purposes that on 23 July 2007, in a

meeting of the Council for General Matters and External Relations, an

inter-governmental conference was formally opened, during which, on the

basis of the submitted proposal, a final text of the “Reform Treaty” was

to be prepared, in accordance with the mandate approved at the meeting

of the European Council on 21-22 June 2007. In the following months the

draft text of the Reform Treaty was discussed and amended by a group of

legal experts from member states of the European Union, and finalized at

an informal meeting of the European Council in Lisbon on 18-19 October

2007. The Treaty of Lisbon consists of two basic parts; one part

contains amendments to the Treaty on EUropean Union, and the second

contains amendments to the Treaty establishing the European Community,

including renaming it as the Treaty on the Functioning of the European

Union. The government of the Czech Republic approved negotiation of the

Treaty of Lisbon by resolution no. 1367 of 4 December 2007, and the

Treaty was signed by authorized representatives of EU member states in

Lisbon on 13 December 2007; the Treaty of Lisbon was signed on behalf of

the government of the Czech Republic by Prime Minister Mirek Topolánek

and Minister of Foreign Affairs Karel Schwarzenberg. On 29 January 2008,

on the basis of the same resolution, the prime minister submitted the

Treaty of Lisbon to the Chamber of Deputies of the Parliament of the

Czech Republic and to the Senate, for their consent to ratification

under Art. 10a of the Constitution. For reasons of transparency, both

chambers of Parliament were given, together with the Treaty of Lisbon,

the Charter of Fundamental Rights of the European Union (the “EU

Charter”), solemnly proclaimed by the European Parliament, Council and

Commission on 12 December 2007 in Strasbourg, even though it is formally

not part of the Treaty of Lisbon.

 

32.

In its brief, the government also stated that the path from the Treaty

of Nice to the new treaty foundation embodied in the Treaty of Lisbon

was complicated, and many questions arose along the way concerning the

relation of primary EU law to the legal orders or constitutional orders

of member states. A number of problem points have already been discussed

in the Convention on the Future of Europe, which prepared the draft

Treaty on a Constitution for Europe; the government repeatedly

encountered some of these problems, also identified in the Senate’s

petition (in particular the “transitional” clause and the EU Charter),

during the course of discussions on the text of the Treaty of Lisbon. In

this regard the government considers it legitimate that the Senate

exercised its constitutional right and submitted a petition that will

make it possible to put to rest doubts on whether the Treaty of Lisbon

is consistent with the constitutional order of the Czech Republic before

the Treaty actual enters into force.

 

33.

Regarding the text of the Treaty of Lisbon, the government first –

generally – stated that it had already responsibly analyzed its

provisions, including the cited problem points, during the course of

negotiations, and that it signed the Treaty of Lisbon in the belief that

it was, in its entirety, consistent with the constitutional order of

the Czech Republic.

 

34.

From a procedural viewpoint, when formulating its brief, the government

began with the legal opinion that decision-making by the Constitutional

Court under Art. 87 par. 2 of the Constitution on whether an

international treaty under Art. 10a is consistent with the

constitutional order is a non-adversarial proceeding, not an adversarial

one. The government concludes this from analysis of relevant provisions

of the Constitution and the Act on the Constitutional Court, under

which this is a proceeding on whether an international treaty is

consistent with the constitutional order (§ 71a par. 1 and § 71d par. 3

of the Act on the Constitutional Court). A proceeding on the consistency

of an international treaty under Art. 10a is based on the principle of

preliminary review of constitutionality, and the non-adversarial nature

of the proceeding can allegedly also be derived from § 71e of the Act on

the Constitutional Court, which sets forth the requirements for a

verdict in a judgment of the Constitutional Court. Therefore, the

government believes that the review of constitutionality should not be

limited merely to the particular claims formulated by the petitioner,

but should also cover other issues related to the Treaty of Lisbon;

thus, in the government’s opinion, the petitioner should not bear the

burden of proof, just as the government should not be in the position of

an opponent, but that of a party with the same procedural rights and

obligations as the other parties to the proceeding, in particular, the

Chamber of Deputies and the President of the Republic.

 

35.

The brief further states that if the Treaty of Lisbon is reviewed in

relation to the formal attributes of a state enshrined in Art. 1 par. 1

of the Constitution (“The Czech Republic is a sovereign, unitary, and

democratic state governed by the rule of law”), the government finds no

inconsistency there. As a result of the Treaty of Lisbon entering into

force the European Union will be newly constituted with its own legal

subject status, and the member states will conditionally transfer

additional powers to the Union, but in the case of the Czech Republic

that will take place in a constitutionally consistent manner under Art.

10a of the Constitution; the Czech Republic will, of course, remain an

independent, sovereign state. The government believes that it is

nonetheless necessary to focus primarily on reviewing the treaty in

terms of the material core of the Constitution, i.e., the essential

requirements of a democratic, law-based state under Art. 9 par. 2. The

government is of the opinion that the theory of immanent limits

guaranteeing the identity of the Constitution, expressed in that

article, is sufficient to ensure that a complete transformation of

values in the constitutional system can not occur in the Czech Republic.

The government holds the opinion that there are unwritten limits for

amending the Constitution; amendments and expansion of the

constitutional order are consistent with the material core of the

Constitution if systematically consistent development of the Czech

Republic is guaranteed and if the value system on which the Constitution

as a whole rests is not overreached. In the government’s opinion, with

reference to Art. 2 of the Treaty on EU (“The Union is founded on the

values of respect for human dignity, freedom, democracy, equality, the

rule of law and respect for human rights, including the rights of

persons belonging to minorities.”) it is generally evident that both the

constitutional system of the Czech Republic, and the treaty system of

the European Union are based on and arise from the same principles that

are common to all member states of the European Union.

 

36. The brief goes on to discuss specific individual arguments and considerations raised in the Senate’s petition.

 

37.

In this regard the government first considers the question of

definition and classification of EU competences. It proceeds from the

belief that the legislative “competence - competence” belongs to the

member states of the European Union, which the Treaty of Lisbon only

confirms, in Art. 5 par. 2 of the Treaty on EU. The government considers

this principle key for defining the competences of the Union, and fully

agrees with it. It believes that the definition and classification of

competences introduced by the Treaty of Lisbon do not mean that the

European Union thereby acquires any attributes whatsoever of a federal

state.

 

38.

As regards the Union’s exclusive competences, the government states

that this is not a newly introduced category of Union competences,

because this kind of competence already existed, and is exercised by the

Community under the current version of the Treaty establishing the

European Community, even though the exclusive competences are not

explicitly enumerated in an individual provision. The existence of

exclusive comeptences already clearly arises from Art. 5 par. 2 of the

existing Treaty on the EC, which defines the principle of subsidiarity

in relation to shared competences; a definition of the term exclusive

competence can also be found in the settled case law of the European

Court of Justice. According to the government, the definition now

introduced by the Treaty of Lisbon does not in any way expand the

concept of exclusive competence; entire comprehensive areas of legal

regulation already fall into the exclusive competence of the Community

(as an example one can cite the common trade policy or rules for

ensuring protection of economic competition).

 

39.

As regards the category of shared competences of the Union, the

government again points to the principle of conferred competence, which

is enshrined as a general principle in Art. 5 par. 1 of the Treaty on

EU: “The limits of Union competences are governed by the principle of

conferral. The use of Union competences is governed by the principles of

subsidiarity and proportionality.” The exercise of the competences of

the Union will continue to be based on that principle, even after the

Treaty of Lisbon enters into force. Thus – according to the government –

all other provisions of the Treaty on EU and all other provisions of

the Treaty on EU and of the Treaty on the Functioning of the European

Union concerning the competences of the Union and the division of

competences between the Union and member states must be interpreted in

view of the principle of conferral. The government believes that the

petitioner’s concern about the sphere of Union norm-creation being

difficult to identify in advance is not justified. Of course, it is not

possible to enshrine individual powers in an exhaustive list in such a

detailed manner that they will always precisely correspond to the

particular legal act of the Union that implements them. However, it is

possible, and the Treaty of Lisbon clearly does this, to enshrined

precisely defined areas in which the Union may create norms. In this

regard, the government also pointed to the Protocol on the Exercise of

Shared Competence, annexed to the Treaty on EU and the Treaty on the

Functioning of the EU, which expressly states that when the Union has

taken action in a certain area, the scope of this exercise of its

competence only covers those elements governed by the Union act in

question and therefore does not cover the whole area. Regarding the

category of shared competence, the government again pointed out that in

addition to the principle of conferral, the principle of subsidiarity,

enshrined in Art. 5 par. 3 of the Treaty on EU also applies to setting

the limits on the exercise of the Union’s competence, and represents and

important instrument in balancing the division of shared competences

between the member states and the European Union.

 

40.

The next part of the government’s brief concerns the so-called

flexibility clause under Art. 352 of the Treaty on the Functioning of

the European Union; according to the government, it is evident from the

formulation of this provision that it is not a blanket norm. In order

for the Union, on the basis of the Treaty of Lisbon, to be able to apply

Art. 352 par. 1 of the Treaty on the Functioning of the European Union,

the conditions in it must have been met in relation to the proposed

legislative act. Two declarations annexed to the Final Act of the

Intergovernmental Conference which Adopted the Treaty of Lisbon also

apply to the use of the flexibility clause; they are said to set the

limits on an extensive interpretation and disproportionate use of the

clause. Other limits on expanding the application of the flexibility

clause are, again, the principle of subsidiarity, which functions as an

abstract limit on the expansion of Union powers, and whose observance is

supervised by domestic parliaments (Art. 352 par. 2 of the Treaty on

the Functioning of the European Union), as well as the fact that

application of the flexibility clause is ruled out in the area of common

foreign and security policy and the fact that harmonization of the

legal regulations of member states on the basis of the flexibility

clause is ruled out in cases where the Treaties rule out such

harmonization. According to the government, this rules out in advance

application of the flexibility clause for harmonization of legal

regulations in areas in which the Union has only supporting,

coordinating, or supplemental powers.

 

41.

As regards the simplified revision procedure for passing amendments to

the Treaties, the government sees a fundamental difference between Art.

48 par. 6 and Art. 48 par. 7 of the Treaty on EU. Under Art. 48 par. 6

of the Treaty on EU amendment of all or part of the provisions of Part

Three of the Treaty on the Functioning of the European Union, which

concern the internal policies and activities of the Union, are subject,

in addition to a unanimous decision by the European Council, to approval

by all member states in accordance with their constitutional

regulations. The government believes that in the constitutional system

of the Czech Republic such an amendment, if it were the basis for the

transfer of additional powers of bodies of the Czech Republic to the

European Union, would be subject to approval by the Parliament under

Art. 10a of the Constitution, and the government is therefore convinced

that Art. 48 par. 6 of the Treaty on EU is consistent with the

constitutional order of the Czech Republic. When proceeding under Art.

48 par. 7 of the Treaty on EU (the transitional clause), as part of the

powers already transferred to the level of the Union, there can be a

change in voting procedure (from unanimity to a qualified majority) or a

change in legislative procedure (from a special to a regular

legislative procedure). The European Council adopts the relevant

decision unanimously after obtaining the consent of the European

Parliament. Before such a decision can be adopted, the proposal must be

notified to the national parliaments. If any national parliament makes

known its opposition within six months of that notification, the

decision is not adopted. Although this procedure at the EU level is

subject to consent on the part of the European Parliament, at the

present time review at the level of member states, by national

parliaments, remains in effect, which the government considers to be

essential.

 

42.

In the government’s opinion, as regards the relationship of the

transitional clause under Art. 48 par. 7 of the Treaty on EU to Art. 10a

of the Constitution of the Czech Republic, one could argue from a

formal standpoint that when it is applied there is an indirect amendment

to the Treaties without that amendment being ratified in advance by the

member states in accordance with their constitutional regulations, as

is the standard with international treaties. However, the government

believes that, in relation to the transitional clause, consent with a

procedure under Art. 48 par. 7 of the Treaty on EU, which pro futuro

permits the European Council, with the consent of the European

Parliament, and under specified conditions, to decide in individual

cases or areas on a change in the voting procedure in the Council or a

change in legislative procedure, can be considered to meet Art. 10a of

the Constitution of the Czech Republic, within the transfer of powers to

the European Union as a result of ratification of the Treaty of Lisbon.

Thus, by an act of ratification, the Czech Republic, from the position

of a sovereign member state, gives consent to future modifications in

the exercise of transferred powers within the precisely specified bounds

of Art. 48 par. 7 of the Treaty on EU.

 

43.

Thus, the government believes that application of the transitional

clause does not violate the principle of the sovereignty of states in

adopting international law obligations. The principle of sovereignty of a

member state is reflected in the requirement for unanimous decisions by

the European Council and the right of every domestic parliament to

reject a proposal.

 

44.

The government also considered it necessary to state its opinion on

Art. 83 of the Treaty on the Functioning of the European Union (note: or

69b), which enshrines the possibility to establish minimum rules

concerning the definition of criminal offences and sanctions in the

areas of particularly serious crime with a cross-border dimension. Art.

83 par. 1, third subparagraph alinea of the Treaty on the Functioning of

the European Union permits the Council, based on developments in

criminal activity, after obtaining the consent of the European

Parliament, to unanimously adopt a decision that determines further

areas of criminal activity that fulfill the criteria set forth in Art.

83 par. 1 of the Treaty on the Functioning of the European Union, above

and beyond the areas explicitly set forth by that provision. In the

government’s opinion, a procedure under Art. 83 par. 1, third

subparagraph of the Treaty on the Functioning of the European Union does

not represent a simplified procedure for amending the treaty, analogous

to the mechanism under Art. 48 par. 7 of the Treaty on EU. The

government believes that the Treaty of Lisbon leads to transfer of

powers to Union bodies, so that, within the specified procedure (a

unanimously adopted decision by the Council after obtaining the consent

of the European Parliament), they will define, based on the development

of criminal activity, areas of especially serious criminal activity with

a trans-border dimension, and some such areas are directly set forth by

the Treaty on the Functioning of the European Union. According to the

government, it must be emphasized that this provision does not have an

immediate relationship to the transitional clause enshrined in Art. 48

par. 7 of the Treaty on EU.

 

45.

There government also addressed the issue raised by the petitioner,

whether there is not a de facto evisceration of Art. 15 par. 1 of the

Constitution. The government believes there is not, because the essence

of the integrating authorization contained in Art. 10a of the

Constitution of the Czech Republic is the principle of self-limitation

by bodies of the Czech Republic. When transferring powers to an

international organization or institution, it is unavoidable that the

body whose powers were transferred loses them in that scope. However, it

continues to exercise all other powers that belong to it in accordance

with the constitutionally defined separation of powers.

 

46.

In the question of negotiating international treaties, the government

considered it necessary to point out that in the first phases of the

European Economic Community the assumption was that, in accordance with

the theory of limited competence, the Community had the competence to

conclude international treaties only if expressly authorized thereto in

the founding treaties. In time, however, it became apparent that the

normative text of the founding treaties did not meet the actual needs of

the Community and its member states. Therefore, a third way had to be

found to make the activity of the Community more effective vis-à-vis

third-party states and to achieve greater harmony between the

competences that the Community had internally and those that it had in

external relations with third-party states. At the beginning of the

19790s, the decision of the European Court of Justice in the AETR matter

(decision of the European Court of Justice in the matter C-22/70 AETR,

1970, ECR 263) made it possible to go beyond the rule of express

authorization in the founding treaties; in it, the European Court of

Justice concluded that, if the Community has the internal authority to

regulate a particular area of law, then in the interests of promoting

the aims of the founding treaties that gives rise to the authority to

act in the name of the Community in matters that fall into that sphere

vis-à-vis third-party states as well (the theory of parallelism of

internal and external powers, implied powers [are these the same or 2

things?]). Thus, according to the government’s brief, in the present

legal situation authorization for the EU to conclude an international

treaty can be established both by the founding treaties and by lower

legal acts of community law that were issued in order to achieve the

aims of the EU defined in the present Art. 2 of the Treaty on the EC.

Therefore, the government does not find that Art. 216 et seq. of the

Treaty on the Functioning of the European Union expands the existing

range of legal grounds, based on which the EU will be authorized to

conclude international treaties after the Treaty of Lisbon enters into

force, and it states that the provision in question of the Treaty on the

Functioning of the European Union in fact only codifies something that

was already developed and settled in the case law of the European Court

of Justice as the result of long-term developments.

 

47.

As regards the voting procedure in the Council, the government

considers it necessary to state that Art. 216 et seq. of the Treaty on

the Functioning of the European Union affects only the negotiation of

international treaties for purposes of meeting the aims of

communitarized policies. The so-called second pillar, i.e., the area of

common foreign and security policy, will maintain its special status,

and international treaties negotiated by theEU in that sphere (Art. 37

of the Treaty on EU) will be concluded unanimously, even after the

Treaty of Lisbon enters into force (Art. 24 par. 1, second subparagraph

together with Art. 31 par. 1, first subparagraph of the Treaty on EU).

However, even in the area of Community-adopted policies, a qualified

majority is not applied in a blanket manner, without taking into account

the nature of the treaty being negotiated. Art. 218 par. 8 subparagraph

2 of the Treaty on the Functioning of the European Union lists the

cases where, in contrast, the EU Council decides unanimously.

 

48.

On the question of defining the scope of the space that the Treaty of

Lisbon leaves to member states to fulfill their constitutional

requirements in the process of negotiating international treaties with

third-party states, the government states that identifying the limits of

that space does not follow from Art. 216 et seq. of the Treaty on the

Functioning of the European Union, but from Part One of the Treaty on

the Functioning of the European Union, discussing the categories and

areas of EU competence (see above). It is evident from these provisions

that in the area of negotiating “external” treaties the existing concept

is preserved, which distinguishes two categories of international

treaties. The first consists of treaties concluded in the exclusive

competence of the EU, which are not subject to domestic approval

procedures and will not be so after the Treaty of Lisbon enters into

force. That is because the authority of the Czech Republic to conclude

this type of international treaty was already, under Art. 10a of the

Constitution transferred by bodies of the Czech Republic to EU bodies.

The second category is mixed treaties, which the European Community at

present concludes with a third-party state together with its member

states (the EC and its member states stand alongside each other and form

one party to the treaty). According to the government, this joint

process is unavoidable, because the European Community does not have

sufficient authority in the selected legal area to negotiate a treaty or

subsequently implement it, and therefore it needs the cooperation of

its member states. Member states can provide the requested cooperation

to the European Community only after they satisfy their constitutional

law regulations. If such a mixed international treaty were classified in

the Czech Republic, on the domestic level, as a treaty in the

presidential category under Art. 49 of the Constitution (which is most

often the case), then the Czech Republic could agree to negotiation of

the treaty only after the intent to do so was approved by the government

and both chambers of the Parliament of the Czech Republic, and the

treaty would then be ratified by the president. According to the

government’s brief, the fact that the EU will in future have its own

legal subject states can not change anything about that procedure and

material legal basis.

 

49.

The government also stated that, in the petition for evaluation of

whether the Treaty of Lisbon is consistent with the constitutional order

of the Czech Republic, the petitioner raises a number of questions

concerning the status and importance of the Charter of Fundamental

Rights of the EU, as well as its relationship to the national catalogs

of fundamental human rights and freedoms and to the European Convention

for the Protection of Human Rights and Fundamental Freedoms. From the

government’s point of view the EU Charter is, formally speaking, an

independent document of a non-consensual nature. At this point it

allegedly has the nature of a non-binding, purely political document,

containing a catalog of human rights and freedoms. Thanks to the

legislative reference in the new Art. 6 par. 1 of the Treaty on EU,

which provides that “The Union recognises the rights, freedoms and

principles set out in the Charter of Fundamental Rights of the European

Union of 7 December 2000, as adopted at Strasbourg, on 12 December 2007,

which shall have the same legal value as the Treaties,” when of the

Treaty of Lisbon enters into force the EU Charter will be de facto

incorporated into the treaty acquis. In the scope of its competence,

given the present maintenance of its individual legal character in the

EU legal system, it will have legal effects on the subjects of member

states without the need for its norms to be received by a domestic legal

act. However, according to the government, it should not have

precedence in application over the norms of the domestic law of member

states in relation to the “material core” of the constitutions of member

states, which was also said by the Czech Constitutional Court.

Moreover, the abovementioned features of the EU Charter will apply only

in the scope of competence set forth by the Treaty of Lisbon in Art. 6

subparagraph 2 and 3 of the Treaty on EU and by horizontal measures in

Title VII of the EU Charter itself. Under Art. 51 par. 1 of the EU

Charter, its provisions are intended first for the bodies, institutions,

and other subjects of the Union; in contrast, they are intended to the

member states only insofar as they apply Union law.

 

50.

According to the petitioner, in a situation where the Union does not

have a court to interpret the Charter’s provisions in particular cases

of violation of civil rights, the role of the Charter is not clear. The

government added that the EU Charter will be incorporated by reference

in the treaty acquis, and thus individuals will be able to directly rely

on some of its provisions, those of the nature of subjective,

enforceable rights, both before the courts of member states (if they

apply EU law), and before the European Court of Justice. Regarding the

question of whether the EU Charter protects citizens’ rights or is more a

tool for interpretation, used to interpret the powers of bodies or

intensify the interpretation of the aims that the Union pursues, the

government stated that the EU Charter is a modern catalog and is to

fulfill both of these roles in parallel, that is, protect individuals

and set limits for the exercise of the competences of EU bodies, or

bodies of member states when applying EU law. The government concludes

that the EU Charter will exist parallel to the catalog of fundamental

human rights and freedoms that are part of the constitutional law of

member states, without in any way changing the scope of purely domestic

material. The government believes that applying the EU Charter will not

lead to lowering the standard of domestic protection of fundamental

human rights and freedoms.

 

51.

In the next part the government addresses Art. 2 of the Treaty on EU,

which, according to the petitioner, should be reviewed as to whether it

is consistent with Art. 1 par. 1 and Art. 2 par. 1 of the Constitution.

The government is not of the petitioner’s opinions; it pointed out that

the values set forth in Art. 2 of the Treaty on EU have been immanent,

substantive components of the Czech legal order since the beginning of

the 1990s, when it was gradually democratized.

 

52.

As regards the possibility of suspending rights that arise to a member

state from the Treaties, the government noted in its brief that this

possibility can not violate the fundamental characteristics of the Czech

Republic as a sovereign, unitary, and democratic state governed by the

rule of law under Art. 1 par. 1 of the Constitution, or the principle of

the sovereignty of the people enshrined in Art. 2 par. 1 of the

Constitution, because this involves a sanction against a member state in

the event that it violates the values on which the EU is founded. These

values, as stated above, are among the fundamental principles that are

also protected by the Constitution of the Czech Republic. Therefore, the

government also does nto share the petitioner’s concerns about

interference in the sovereignty of the Czech Republic through political

pressure leading to changes in the domestic legal order in the event

that the Czech Republic violates these values. In the government’s

opinion, if the Czech Republic observes its own constitution, suspension

of rights arising to it from membership in the EU does not come into

consideration.

 

53.

In view of the foregoing arguments, the government believes that all

provisions of the Treaty of Lisbon to which the petitioner refers in its

submission, as well as the Treaty of Lisbon in its entirety, are

consistent with the constitutional order of the Czech Republic.

 

 

VI.

 

54.

In a hearing before the Constitutional Court, held on 25 November 2008,

the petitioner (the Senate of the Czech Republic) was represented by

the Senate Vice Chairman Jiří Šneberger and Senator Luděk Sefzig. Both

basically repeated the arguments contained in the original petition, and

did not make any motions to submit additional evidence in the matter.

 

55.

On behalf of the Chamber of Deputies of the Parliament of the Czech

Republic, its chairman, Miloslav Vlček, basically referred to the brief

previously sent to the Constitutional Court.

 

56.

On behalf of the government of the Czech Republic, Deputy Prime

Minister for European Affairs, Alexander Vondra, basically repeated the

opinions contained in the brief delivered to the Constitutional Court,

and again emphasized that the government believes that the Treaty of

Lisbon is consistent with the constitutional order of the Czech

Republic.

 

57.

President Václav Klaus, in the hearing, pointed in particular to the

wider context of the matter. In his opinion, if the Treaty of Lisbon

enters into force, the international position and internal situation of

our state will change, and the weight of the Czech Republic in the

decision-making of the European Union will be weakened.

 

58.

The president then again raised the questions already submitted to the

Constitutional Court in his brief that he considers the most important:

first, whether the Czech Republic – after the Treaty of Lisbon entered

ito force – would remain a sovereign, democratic and law-based state;

second, whether the Czech Republic would continue to be a full member of

the international community, capable of independently, without anything

further, fulfilling its obligations resulting from international law;

and third, whether the European Union would remain an international

organization, or whether it would become a federal state, and whether

our Constitution permits the Czech Republic to become a component of a

state of that kind.

 

59.

The president also pointed to the government’s brief and the arguments

in it, based on the legal doctrine of the so-called “material core” of

the Constitution. Unlike the government, the president believes that the

Treaty of Lisbon is inconsistent, not only with the constitutional

order as a whole, but also with fundamental constitutional principles

that are – precisely under the doctrine of the material core of the

constitution – untouchable and non-amendable (Article 9 of the

Constitution). In this regard, he also stated that the foundation of the

Constitution (and thus also its hypothetical material core) is the

principle of state sovereignty, which, the Czech Constitutional Court

allegedly stated two years ago in the sugar quota case, if it refused to

recognize the doctrine of the European Court of Justice on the absolute

priority of community law. According to the president, the issue is who

is to have the so-called “competence - competence.” The president does

not consider this theme to be new; the Constitution had to be changed

even before joining the European Union, but even the “Euro-amendment” at

that time had to observe Article 9 of the Constitution. Therefore, it

permitted “only” some specific powers of bodies of the Czech Republic to

be transferred to bodies of the European Union, but it did not permit a

transfer of sovereignty. This allegedly said that in any transfer of

powers the transferred powers must be explicitly and unambiguously

defined, and that there may not be a possibility for EU bodies

themselves to interpret the scope of the transfer of powers, or to even

be able to transfer additional powers to themselves.

 

60.

In the president’s opinion, the concept of shared competence under

Article 4 of the consolidated version of the Treaty on the Functioning

of the European Union is absolutely inconsistent with the principle of

state sovereignty, as is adopting measures beyond the framework of Union

competences if it “should prove necessary … to attain one of the

objectives set out in the Treaties” under Article 352 par. 1 of the

consolidated version of the Treaty on the Functioning of the European

Union (the so-called “authorization” clause, the flexibility clause) and

the simplified revision procedures for adopting amendments to primary

law under Art. 48 of the Treaty on European Union, the “passerelle.”

Also claimed to be exceptionally debatable is the so-called “doctrine of

implicit external powers” formulated by the European Court of Justice

in 2006, which permits negotiating international treaties above beyond

the framework of EU competences. Thus, according to the president, the

Treaty of Lisbon begins a process at the end of which the sovereign will

be the European Union, which will, by directives or some other

unilateral form, set norms and rules both for individual member states

and for the citizens of these states. Moreover, this fundamental

limitation on the sovereignty of the Czech Republic and other member

states of the European Union is not clearly and openly formulated in the

text of the Treaty of Lisbon and it is not expressly identified as an

intention and objective of the organization that this treaty is to

implement.

 

61.

According to the president, another important element of the material

core of the Constitution is the principle of the sovereignty of the

people. Therefore, it is appropriate to ask who is the source of legal

and political power in the European Union. In the president’s opinion,

it is not, in any event, the people, because a “European people” does

not exist. In the EU power is derived from institutions created on the

basis of inter-governmental agreements or treaties. If the Treaty of

Lisbon entered into force, it would be possible, through it, to

implement by executive act, “from above,” from Europe, things that no

national parliament would ever approve. This would strengthen the

opportunity to circumvent national legislative assemblies, which would

fundamentally weaken democracy in the member states, including the Czech

Republic. Thus, in the president’s opinion, the Treaty of Lisbon is

inconsistent with the constitutional principle of the sovereignty of the

Czech people.

 

62.

The president also criticized the lack of clear organization and

ambiguity of the competence provisions of the Treaty of Lisbon. These

provisions will be interpreted and implemented by bodies of the European

Union, allegedly known for their tendency to interpret Union

competences as broadly as possible. That is inconsistent with Art. 1 of

the Constitution, because the Czech Republic is also a law-based stated,

the essence of which is that the rules are given and known in advance.

 

63.

In the next part of his presentation, the president criticized the

government’s opinion that the Treaty of Lisbon, if adopted, de facto

indirectly amends the Constitution, because it will automatically become

a component of it. The president considers this approach erroneous,

because Article 112 of the Constitution exclusively enumerates as

components of the constitutional order only the Constitution of the

Czech Republic itself, the Charter of Fundamental Rights and Freedoms,

and constitutional acts, and does not mention any international

treaties; in fact, it does not even mention treaties cited in Article

10a of the Constitution. All this allegedly indicates that, even though

under Article 10 all international treaties approved by Parliament take

precedence over statutes, they do not have the force of constitutional

acts, i.e. they do not form the Constitution, and therefore can not be

components of it.

 

64. For all these reasons the president considers the Treaty of Lisbon to be inconsistent with the Czech constitutional order.

 

 

VII.

Basic facts

 

65.

On 25 January 2008 the government presented the Treaty of Lisbon (TL)

amending the Treaty on European Union (EU) and the Treaty Establishing

the European Community to the Parliament of the Czech Republic, with a

request to approve ratification. The government itself approved the

negotiation of the TL on 4 December 2007. The Treaty of Lisbon was

signed in Lisbon on 13 December 2004. It was signed on behalf of the

Czech Republic by Prime Minister Mirek Topolánek and Minister of Foreign

Affairs Karel Schwarzenberg.

 

66.

Under point no. IV of the government’s submission report, this is a

treaty under Art. 10a par. 1 of the Constitution of the Czech Republic,

as amended by later regulations, because on its basis the EU acquires

certain new powers, and in certain cases there is a change from

unanimity to voting by a qualified majority. This is also a treaty of

the “presidential” category, which requires ratification by the

President of the Republic.

 

67.

Under Art. 10a par. 2 of the Constitution, the consent of the

Parliament (or, alternately, in the event of a constitutional act,

consent in a referendum) is necessary to ratify such an international

treaty. Under Art. 39 par. 4 of the Constitution, a three-fifths

majority of all deputies and a three-fifths majority of all senators

present is necessary to consent to ratification of an international

treaty set forth in Art. 10a par. 1.

 

68.

In this matter, under Art. 87 par. 2 of the Constitution the

Constitutional Court has the authority to decide whether the TL is

consistent with the constitutional order. The statutory conditions for

this proceeding under § 71a et seq. of Act no. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations, have been met.

 

69.

The Treaty of Lisbon is published in the Official Journal of the EU, C

306, “Information and Notices”, Volume 50, 17 December 2007. The Charter

of Fundamental Rights of the EU, promulgated by the European

Parliament, the Council and the Commission, was published in the

Official Journal of the EU, C 303, Information and Notices of EU Bodies

and Institutions, on 14 December 2007.

 

 

VIII.

 

70.

Before the Constitutional Court turned to reviewing whether the content

of the Treaty of Lisbon was consistent with the constitutional order of

the Czech Republic, it had to answer several fundamental questions

relating to the nature of the proceedings and the criteria for the

review itself.

 

71.

The first question was to what extent the Constitutional Court, in

review proceedings under § 71a of the Act on the Constitutional Court,

is bound by the petition from the Senate (in the scope of specific

articles whose review the Senate provided grounds for), or whether it is

authorized or even obligated to review the Treaty of Lisbon as a whole,

i.e. also in relation to its other articles, regardless of the scope

and grounds of the petition. There was also the question of whether the

Constitutional Court is to review only those provisions of the Treaty of

Lisbon that are, in terms of their content, new norms, i.e. whether it

is to conduct its review without fundamentally differentiating between

the normatively old and new provisions of the Treaty of Lisbon. Finally,

in this context, it is necessary to consider what is to be the point of

reference for the Constitutional Court’s review, simply stated, whether

it is the constitutional order as a whole, or only the “material core”

of the Constitution.

 

72.

In the first phase the Constitutional Court thus focused on weighing

the procedural issue of the scope of review that it was – at least

theoretically – possible (according to the petitioner and some briefs)

necessary to focus either on the entire the Treaty of Lisbon or only the

provisions that were contested in the petition. The petition is

conceived so that it generally calls for review of the entire treaty,

but it argues specifically only against some provisions, as is evident

from the relevant passage mentioned above.

 

73.

First of all, the Constitutional Court points out that in this matter

it does not intend to distinguish whether this is an adversarial or

non-adversarial proceeding in the classic civil law sense. This is a

completely unique proceeding on review of the constitutionality of an

international treaty, which the Constitutional Court approached as set

out in the following text.

 

74.

Here the Constitutional Court inclined toward the conclusion (arising

by analogy from its settled case law in the area of reviewing legal

regulations) that focuses only on the provisions of the international

treaty that were formally contested and grounds therefor provided in the

petition. A proceeding to review the constitutionality of statutes

under § 64 par. 1 of the Act on the Constitutional Court has a similar

character; there the Constitutional Court has said, for example, that

even though it is bound only by the proposed verdict of the petition,

and not by its reasoning, when evaluating the constitutionality of a

regulation, that does not mean that a petitioner in a proceeding on the

review of norms, if arguing on the basis that the content of a legal

regulation is inconsistent with the constitutional order, does not have

the burden of allegation. If the petitioner objects that the content of a

statute is inconsistent with the constitutional order, for purposes of

constitutional review it is not enough to name the act or individual

provisions thereof whose annulment is sought; it is necessary to also

state the grounds for the alleged unconstitutionality. In a review, the

Constitutional Court is not bound by these grounds; it is bound only by

the proposed verdict, but not by the scope of review resulting from the

grounds contained in a petition for review of a norm (cf. judgment file

no. Pl. ÚS 7/03, Collection of Decisions of the Constitutional Court,

volume 34, judgment no. 113, pp. 180–181, promulgated as no. 512/2004

Coll.). Thus, the text of § 71e of the Act on the Constitutional Court,

which speaks of an international treaty in general, and not only of its

individual provisions, is not, in relation to the (petitioner’s) burden

of allegation – and in view of the abovementioned arguments contained in

the cited judgment – insurmountable, but it must be interpreted in the

manner thus explained.

 

75.

The Constitutional Court is bound by the scope of the petition to open

proceedings, understood as described above, i.e. by the specific

contested provisions as defined by an authorized petitioner, and is not

authorized to exceed its scope. Thus, a subject with active standing, in

a proceeding that is opened at its initiative (that is, optionally),

bears the burden of allegation, which it is required to meet. We can add

that an attempt at a complete constitutional review, nota bene with the

consequences of the impediment of rei iudicatae, especially with

lengthy normative texts, is barred by the epistemological argument

(epistemologically unfulfillable); the normative argument is based on

the fact that the constitutional framework and the statutory framework

conceive of the Constitutional Court with the status of a court, and not

a “place of interpretation.” The Constitutional Court of the Czech

Republic is a judicial body for the protection of constitutionality; it s

a decision-making body, and not an institution that provides all sorts

of positions or expert opinions. In any case, this concept is also

confirmed by the exclusion of the government from the circle of those

authorized to petition for a review. A review can be activated only at

the moment when an international treaty is presented to Parliament for

approval, and when one can thus assume that opposing views as to its

constitutionality will appear at that time. Until that time, the

government, in negotiating an international treaty, must be guided by

its own judgment as regards constitutionality, or itself seek to correct

individual provisions during the negotiations with the other parties.

 

76.

Another argument in favor of this opinion is the overall concept of

preliminary review of the constitutionality of international treaties

under § 71a et seq. of the Act on the Constitutional Court. The order of

individual petitioners, as set forth in § 71a par. 1, is guided by the

aim of enabling each of them to properly express its doubts about the

constitutionality of the international treaty under discussion. If the

Constitutional Court ruled on the consistency of the Treaty of Lisbon,

as a whole (in relation to all its individual provisions, as is

suggested not only by the Senate, but also by the president and the

government in their briefs), it would basically thereby make it

impossible to submit a petition for review by a group of deputies or

senators, who have independent standing to file a petition under § 71a

par. 1 let. b) of the Act. While this limitation can be cured to a

certain extent with the government or the president, by their

participation in the present proceeding (which is guaranteed to them by §

71c of the Act on the Constitutional Court), a group of deputies or

senators does not have that opportunity. Therefore, reviewing legal

regulations or international treaties in their entirety, in a rather

blanket manner, without presenting to the Constitutional Court specific

factual effects of their application or legal arguments due to which

specifically defined and identified provisions of these regulations are

alleged to be unconstitutional, can not be accepted.

 

77.

The Constitutional Court thus concludes that its review is concentrated

on those provisions of the Treaty of Lisbon whose consistency with the

Constitutional the petitioner expressly contested and for which it

presented arguments contained in its petition.

 

78.

Thus, we can consider prima vista that any new petition for review of

this same Treaty of Lisbon would evidently be blocked by the impediment

of rei iudicatae in relation to the provisions contested today. However,

the Constitutional Court must judge that only if a new petition is

actually submitted; we can point out in advance that in such a case it

is appropriate to intepret the question of rei iudicatae restrictively.

However, if a petition is submitted for review of a new (different)

treaty document (whose content is fully or partly identically with the

Treaty of Lisbon), then the issue will not be (or need not be) one of an

identical matter, but an identical problem. However, provisions in such

a new treaty document with the same content may also appear in the new

text with different functional connections, etc., than is the case now.

Evaluating such a situation, especially in terms of the possible

impediment of rei iudicatae – in view of the Constitutional Court’s

judgment in this proceeding – will be a matter for the Constitutional

Court in the future, if a petition for review of the constitutionality

of a new (different) treaty document is actually submitted.

 

 

IX.

 

79.

Another question that the Constitutional Court had to resolve

preliminarily was the circle of provisions of the Treaty of Lisbon that

were to be reviewed, in view of the Treaty on Accession of the Czech

Republic to the European Union, Announcement no. 44/2004 Coll. of

International Treaties (the Accession Treaty), already ratified and

fully applicable in the Czech Republic. This involves the scope of

review, whether the Constitutional Court is to decide only about those

provisions of the Treaty of Lisbon contested in the petition that can in

eventum be considered as normatively new, or about all the contested

and disputed provisions.

 

80.

Under Art. 87 par. 2 of the Constitution (as amended) the

Constitutional Court (also) decides on the consistency of an

international treaty under Art. 10a and Art. 49 with the constitutional

order, before it is ratified. Until the Constitutional Court makes a

decision, the treaty can not be ratified. Unlike the (draft) Treaty on a

Constitution for Europe, the Treaty of Lisbon is not a new, independent

treat that would replace the existing complex of founding treaties, but

is only an amendment to the existing treaties (the Treaty on European

Union and the Treaty establishing the European Community, which it

renames as the Treaty on the Functioning of the European Union), similar

to what was already done by previous amendments of the founding

treaties.

 

81.

From that point of view, it is possible to distinguish – although very

problematically and not consistently –in the Treaty of Lisbon the

following provisions:

 

a) provisions taken from interpretation of the existing treaties by the European Court of Justice;

b)

provisions taken from the existing treaties, but which were partly

modified (whether to expand the Union’s competences or to limit the

Union’s competences);

c) derogatory provisions that annul existing treaty provisions;

d) provisions that are completely new and have no equivalent in the existing treaties.

 

82.

Provisions of type b), c) and d) are certainly normatively new. With

provisions of type a) that is debatable. Although the consequences of

interpreting the existing treaties are implicitly contained in those

treaties, we can say that expressly including a certain provision which

has until now existed “only” in case law can, in certain circumstances,

change its normative meaning. In any case, the Senate’s petition does

not draw a clear dividing line between the normatively new and old

provisions of the Treaty of Lisbon, but its criticisms are generally

aimed against provisions that can be classified as normatively new.

 

83.

As was already stated above, mere identification of clearly new

provisions can hardly be completely unambiguous. Moreover, in this case

we can conclude from the constitutional principles of foreseeability,

understandability and certainty of law that, even if doubts arose, it is

necessary to assume that a particular case involves a normatively new

provision, and to subject it to review. This is not affected by the fact

that certain amended provisions are sometimes only the results of

interpretation in the present legal situation, based on the case law of

the Court of Justice.

 

84.

In the Constitutional Court’s opinion, even ratification of the

Accession Treaty does not completely render meaningless the normatively

supreme position of the constitutional order in the legal system in the

Czech Republic. The Constitutional Court has previously stated that, in

exceptional cases, one can conclude that an international treaty is

inconsistent with the constitutional order or with human rights treaties

through the means of a decision on a constitutional complaint eve ex

post. It did so in judgment file no. II. ÚS 405/02 (Collection of

Decisions of the Constitutional Court, volume 30, judgment no. 80). That

judgment rejected individual application of the Treaty between the

Czech Republic and the Slovak Republic on Social Security, which would

have unconstitutional effects, in view of the unusual strictness that

its application would cause in that instance. The judgment says that the

Constitutional Court must be guided by Article 88 par. 2 of the

Constitution, under which the judges of the Constitutional Court are

bound in their decision making only by the constitutional order and by

the Act on the Constitutional Court. The Constitutional Court concluded

that the Treaty between the Czech Republic and the Slovak Republic on

Social Security is not a treaty that could be considered part of the

constitutional order, and therefore the Constitutional Court can not

accept as constitutional any application of any of its provisions that

would result in a situation that is inconsistent with the Charter of

Fundamental Rights and Freedoms or with the Constitution, as components

of the constitutional order. The Constitutional Court is naturally aware

that the Treaty between the Czech Republic and the Slovak Republic on

Social Security is not a treaty under Art. 10a of the Constitution, but

it concludes that the abovementioned conclusion is applicable in the

area of international treaties in general. (Note: A similar conclusion,

i.e. that inconsistency of an international treaty with the

constitutional order can also be concluded ex post – through a

constitutional complaint – is also shared by some of the expert

literature; cf. Kysela, Kühn, Právní rozhledy [Legal Perspectives] 10,

2002, no. 7, pp. 301–312.)

 

85.

On the other hand, it is certain that after ratification of any

international treaty the Constitutional Court is required to exercise

considerable restraint and to regularly apply (in the case of European

treaties) the principle of Euro-conforming interpretation. However, this

principle can not have the character of a kind of “implicit

Euro-amendment” of the Constitution. In the event of a clear conflict

between the domestic Constitution and European law that can not be cured

by any reasonable interpretation, the constitutional order of the Czech

Republic, in particular its material core, must take precedence.

 

86.

The Constitutional Court is a judicial body for the protection of

constitutionality, the supreme interpreter of the constitutional law of

the Czech Republic, and not of primary European law; it is not its role,

nor is it the purpose of proceedings on the consistency of

international treaties with the constitutional order to sophistically

separate from each other today’s allegedly new and earlier old

provisions of previous treaties, because one can not even find a precise

and unambiguous criterion for such a self-limiting procedure.

 

87.

Therefore, the Constitutional Court included in its review all

provisions of the Treaty of Lisbon whose consistency with the

Constitution the petitioner contests in a reasoned manner, because (in

the context of the foregoing deliberations) it considers them to be

normatively new provisions, even though we can concede that they may,

although only in some aspects, only replicate existing norms of European

law.

 

 

X.

 

88.

A question closely tied to the issue of possibly distinguishing between

normatively new and old provisions of the Treaty of Lisbon, is

determining the appropriate point of reference for reviewing whether the

Treaty of Lisbon is consistent with the Constitution of the Czech

Republic. In this case the Constitutional Court applied, as a point of

reference, the constitutional order of the Czech Republic as a whole,

not only its so-called material core (but see below).

 

89.

The Constitutional Court thus gave priority to a comprehensive review.

Its basic standard was the entire constitutional order, although within

it the material core of the Constitution – i.e. the essential

requirements of a democratic, law-based state, which may not be amended –

played a central and key role.

 

90.

The Czech Republic’s accession to a supra-national organization like

the European Union led to an important revision of constitutional

regulations (cf. the “Euro-amendment” of the Constitution of the Czech

Republic – constitutional Act no. 395/2001 Coll., which amends the

constitutional Act of the Czech National Council, no. 1/1993 Coll.,

Constitution of the Czech Republic, as amended by later regulations),

and thus a fundamental change in the Czech legal order took place.

However, European Union law, which has since then been applied as an

autonomous legal order alongside the legal order of the Czech Republic,

based on Article 10a of the Constitution, bases its priority application

only on the existence of valid and effective norms, which the

provisions of the Treaty of Lisbon are not yet. The absence of a prior

review of the Accession Treaty by the Constitutional Court can not, in

and of itself, establish a presumption that it is constitutional (cf.

Chapter VIII., above). If we accepted the opinion that consent with the

ratification of an international treaty under Article 10a by the same

majority as is required to adopt a constitutional act reduces the

present review only to the area of the “material core” of the

Constitution, and otherwise rules it out, it would mean that the

institution of preliminary review of constitutionality would to a large

extent become meaningless. However, in this regard the Constitution does

not distinguish between “ordinary” international treaties under Art. 49

and international treaties under Article 10a, and sets forth the same

procedure for review of both by the Constitutional Court. Here we also

can not overlook the dominant role that the executive branch plays in

negotiating international treaties under Article 10a, in contrast to the

process of adopting constitutional acts, where the Parliament and its

individual members can actively participate and realistically influence

the final form of an adopted norm. Although, of course, one could debate

the individual provisions of an international treaty submitted for

approval to the Parliament of the Czech Republic, Parliament has only

the opportunity to approve or reject it as a whole. This also differs

from the process of adopting a constitutional act, where the

democratically authorized constitutional framer may directly affect its

final form. Review by the Constitutional Court, and a possible finding

of inconsistency between the constitutional order and an international

treaty under Article 10a of the Constitution, then makes it necessary to

state which provision of the constitutional order the international

treaty is inconsistent with; here a space opens up for the

constitutional framer to take active part in the creation of legal norms

of fundamental importance for the entire legal order of the Czech

Republic.

 

91.

As was already said, the Constitutional Court, as a judicial body for

protection of constitutionality, is the highest body interpreting the

constitutional regulations of the Czech Republic. This comprehensive

approach to reviewing the question of what the point of reference for

review of the Treaty of Lisbon must be corresponds to the express

wording of Art. 87 par. 2 of the Constitution, under which the

Constitutional Court shall rule on the consistency of an international

treaty under Art. 10a and Art. 49 with the constitutional order before

it is ratified, as well as the related passages of the Act on the

Constitutional Court, which also speak of the constitutional order as a

whole, and not only as a part of it, however important. In any case, the

text of the “Euro-amendment” to the Constitution (constitutional Act

no. 395/2001 Coll.) testifies to this; Art. 89 par. 3 provides that a

decision of the Constitutional Court under Art. 87 par. 2 finding an

international treaty inconsistent with the constitutional order prevents

ratification of the treaty until the inconsistency is removed. Such

inconsistency in international treaties can be removed by amending the

Constitution, which, of course, is out of the question with the material

core of the Constitution. Thus, the constitutional framer itself relies

on the entire constitutional order as a referential criterion for

review of the constitutionality of international treaties. A

Constitutional Court judge is then bound expressly only by the

constitutional order, by the Act on the Constitutional Court, and, in

particular, by the obligation to protect the inviolability of the

natural rights of a human being and the rights of the citizen (Art. 88

par. 2 in connection with Art. 85 par. 2 of the Constitution).

 

92.

Another substantial argument for the selected approach is the generally

recognized principle for interpretation of constitutional law, usually

called the principle of unity in the constitutional code, or of the

constitutional order. This means that it is always necessary to take all

provisions of the constitutional order and interpret their functioning

together, not to take them out of the context of the functioning of the

entire constitution; all the more so because the generally and often

briefly formulated constitutional texts are related in meaning and lean

on each other like individual building elements of a whole that creates a

new quality, sometimes different from its individual parts. The limit

is always the ban on abuse of an interpretation that would lead to

removing or endangering the foundations of a democratic, law-based

stated provided by Art. 9 par. 3 of the Constitution. It is the

obligation of all bodies interpreting the legal order of the Czech

Republic to use an interpretation that is based on material,

constitutionally constituted values that are fundamentally untouchable

and non-amendable. The usual method that helps overcome possible

contested places is the principle of a constitutional interpretation

under which, if the reviewed text permits several interpretations, it is

necessary to use the one that most corresponds to the Constitution or

to the constitutional order as a whole.

 

93.

As the Constitutional Court has already stated above, within the

applied point of reference, the constitutional order of the Czech

Republic, it is the essential requirements of a democratic, law-based

state – whose amendment is impermissible under Art. 9 par. 2 of the

Constitution – that represent the central criterion. A more detailed

description of the content of these essential requirements of a

democratic, law-based state, which usually have the character of general

principles, is the result, in specific cases, of interpretation by

bodies that apply the Constitution. The Constitutional Court of the

Czech Republic, in its historically first judgment, stated that our

Constitution is not based on a neutrality of values, it is not a mere

definition of institutions and processes (judgment file no. Pl. ÚS

19/93; Collection of Decisions of the Constitutional Court, volume 1,

judgment no. 1, promulgated as no. 14/1994 Coll.); thereby it joined the

modern concept of a law-based state, which is understood not as a

formal, legal state, but as a material legal state. The guiding

principle is undoubtedly the principle of inherent, inalienable,

non-prescriptible, and non-repealable fundamental rights and freedoms of

individuals, equal in dignity and rights; a system based on the

principles of democracy, the sovereignty of the people, and separation

of powers, respecting the cited material concept of a law-based state,

is built to protect them. These principles can not be touched even by an

amendment to the Constitution implemented formally in harmony with law,

because many of them are obviously of natural law origin, and thus the

state does not provide them, but may and must – as a constitutional

state – only guarantee and protect them. Although the Constitutional

Court has already many times – since its cited first judgment in this

area – pronounced the necessity of protecting the principles forming the

material core of the Constitution in a heightened degree, a detailed

list of them is not found in any constitutional provision or in the

Constitutional Court’s judgments. Even in this proceeding the

Constitutional Court has no ambition to make such a list in a case or

catalog; however, such an attempt would evidently be appropriate if the

Constitutional Court chose as the standard for review only the material

core, because what is being measured is not a particular limited

problem, but a considerable set of amended primary EU laws, and it would

be necessary to identify more precisely what exactly that set is being

measured by and what it is not (i.e. with the remaining components of

the constitutional order). Thus, for the foregoing reasons, for purposes

of this proceeding, the Constitutional Court took into consideration

the entire system of the Czech constitutional order, although primarily

its untouchable material core, specifically those articles or parts that

can apply to the provisions of the Treaty of Lisbon contested by the

petitioner.

 

94.

We can add the following. In the matter concerning sugar quotas

(judgment Pl. ÚS 50/04 of 8 March 2006 – cf. point 92, Collection of

Decisions of the Constitutional Court, volume 40, judgment no. 50,

promulgated as no. 154/2006 Coll.), the Constitutional Court stated that

lending part of the powers of the Czech Republic to EC bodies is a

conditional loan and can continue as long as those powers are exercised

by those bodies in a manner that is compatible with preserving the

foundations of the state sovereignty of the Czech Republic and in a

manner that does not endanger the foundations of a material, law-based

state; here, of course, we must emphasize that in that case (i.e. with

sugar quotas) the Constitutional Court evaluated an issue that fell

under “secondary” EU law. As regards secondary community law, that

judgment was based on a presumption of compatibility of that community

law, and especially the case law of the European Court of Justice, with

the relevant provisions of the Czech constitutional order, especially

with the guaranteed fundamental rights and freedoms. Therefore, any

potential review was to be limited to consistency with Art. 1 par. 1 and

Art. 9 par. 2 of the Constitution. However, in the presently

adjudicated matter – setting aside another type of proceeding – as

emphasized above, an extensive set of amended primary EU law is being

evaluated. That, too, is another argument why it is appropriate to use

the entire the constitutional order as a referential criterion.

 

(In

the matter of a “Euro-arrest warrant” – file no. Pl. ÚS 66/04,

Collection of Decisions of the Constitutional Court, volume 41, judgment

no. 93, promulgated as no. 434/2006 Coll. – the Constitutional Court

does not rule out fundamental priority application of EC law, which, as

it states, is limited only by the material core of the Constitution,

which is defined by, e.g. the judgment on sugar quotas. However, at the

same time it implicitly admits removing possible inconsistency not only

by priority application of European law norms, but also through

constitutional amendments. It is appropriate to ad here that, in order

for the constitution framers to be able to recognize the need for them,

it is necessary for the Constitutional Court to have an opportunity to

examine European law provisions in terms of their consistency with the

constitutional order as a whole, not only with the material core. In

such a review it can then define those provisions of the constitutional

order that can not be interpreted consistently with the requirements of

European law by using domestic methodology, and which it would be

necessary to amend. Preliminary review gives it a suitable opportunity

for this, because it does not raise problems on the application level.

Moreover, the Constitutional Court thereby acquires an opportunity to

evaluate to a certain extent the constitutionality of the interpretation

of already existing EU law norms by the Court of Justice, without

coming into direct conflict with it.

 

We

can also add that neither the Senate, as the petitioner, nor the

president, expressly addressed the point of reference for review of the

Treaty of Lisbon. However, in its filing the Senate argues on the basis

of provisions of the Constitution that could evidently not even be

considered as part of its material core.)

 

 

XI.

Review of Content – General Part (Basic Starting Points)

 

95.

The Constitutional Court – although it does not intend to abandon

evaluating the articles of the Treaty of Lisbon (TL) contested by the

Senate in terms of the constitutional order as a whole (cf. Art. 87 par.

2 of the Constitution, as amended) – focused, from a normative

perspective, primarily on Art. 10a par. 1, Art. 1 par. 1 and Art. 9 par.

2 and 3 of the Constitution.

 

96.

Article 10a par. 1 provides that certain powers of Czech Republic

bodies may be transferred by treaty to an international organization or

institution. Article 1 par. 1 provides that the Czech Republic is a

sovereign, unitary, and democratic state governed by the rule of law,

founded on respect for the rights and freedoms of the human being and of

citizens. Article 9 par. 2 provides that a change in the essential

requirements for a democratic state governed by the rule of law is

impermissible. Article 9 par. 3 provides that legal norms may not be

interpreted so as to authorize anyone to do away with or jeopardize the

democratic foundations of the state.

 

97.

Art. 10a par. 1 of the Constitution indicates that not all, but only

certain powers can be transferred by treaty to an international

organization. This Article must be interpreted in connection with Art. 1

par. 1 and Art. 9 par. 2 of the Constitution. Thus the transfer of

powers of Czech Republic bodies can not go so far as to violate the very

essence of the republic as a sovereign and democratic state governed by

the rule of law, founded on respect for the rights and freedoms of the

human being and of citizens or to establish a change in the essential

requirements for a democratic state governed by the rule of law.

 

98.

In this regard it is necessary for the Constitutional Court to at least

briefly address the term “sovereign state,” although it or course has

no aim to interpret that term in this judgment by an extensive analysis

(this would not even be possible; the term is not undisputed, and

difficult to define in the abstract). State sovereignty is traditionally

understood as the highest and exclusive power on a state’s territory,

and as the state’s independence in international relations. Thus, no

international law norm can arise without the will of the states

themselves, acting on the principle of equal sovereignty. However,

states are required to respect the norms to whose creation they

contributed in accordance with the principle pacta sunt servanda, and to

fulfill them in good faith, which protects the legal certainty of other

subjects.

 

99.

States have been recognized actors in the international legal system

for centuries, whereas individuals, until recently, had no direct access

to this area, except the opportunity to exercise their rights with the

help of the state to which they belonged. In classical theory states the

subjects of “inter-state” (international) law, which they create for

themselves and for their needs, whether by the acceptance of custom, or

specific agreements, most often expressed in international treaties.

Therefore, states traditionally had, and still have, an exclusive role

in the creation of the modern international legal system.

 

100.

Apart from the possibility of observing certain signs that are

generally accepted as the constitutive elements of a state (“a

territorial corporation equipped with original power to govern” per

Jellinek, J.: Všeobecná státověda [General Political Science]. Prague,

1906, p. 187) and evaluation of which indicates whether a state exists

or not, it is also possible to observe in a sovereign the freedom to

restrict itself by the legal order or by freely accepted international

obligations, in other words, the ability to regulate its competences

(Jellinek, J. op. cit., p. 524). We can conclude from this that the

possibility to create this free will that a state has to repeatedly

amend a particular competence is not a sign of a sovereign’s inadequacy,

but of its full sovereignty.

 

101.

International cooperation and coordination of national policies has

become an essential requirement for managing the globalization of the

world. For the first time in history, national security, which was

always the core of statehood, can be effectively ensured only by

sovereign states acting in concert, unifying resources, technologies,

communication and information flows, power, and authority. In the

globalized world the centers of power are regrouped according to factors

other than simply the power and will of individual sovereign states.

There is a spontaneous, undirected process of increasing intensive

integration of the world’s countries in a single economic system. This

process, with contributions from the key communication technologies of

the mass media, internet, and television, subsequently influences

relationships outside and inside individual states in the areas of

politics, culture, social psychology and others, including the area of

law.

 

102.

The character of integration, in this regard also in the case of the

European Union, can ultimately lead to protection and strengthening of

the sovereignty of member states vis-à-vis external, especially

geopolitical and economic factors; for example, also vis-à-vis newly

emerging world superpowers, where it is difficult to guess the future

priority of values to which they will be willing to subordinate the

building of a new order in the globalized world.

 

103.

At the core of European civilization are values that are common to all

developed world cultures. These values are human freedom and human

dignity, which are the foundation of a human being’s self-determination.

The functional forms of social cohabitation are based on an

individual’s conscious self-restriction and acceptance of order. The

same principles also lead to higher forms of effective human

organization, whether a municipality, state, or forms of integration of

states. This practical need also gave birth to the principle of

subsidiarity, which can be balanced and functional only insofar as the

organizational levels where transfer of competence takes place feel the

general benefit of such a step.

 

104.

The European Union has advanced by far the furthest in the concept of

pooled sovereignty, and today is creating an entity sui generis, which

is difficult to classify in classical political science categories. It

is more a linguistic question whether to describe the integration

process as a “loss” of part of sovereignty, or competences, or, somewhat

more fittingly, as, e.g., “lending, ceding” of part of the competence

of a sovereign. It may seem paradoxical that they key expression of

state sovereignty is the ability to dispose of one’s sovereignty (or

part of it), or to temporarily or even permanently cede certain

competences.

 

105.

The global scene can no longer be seen only as a world of isolated

states. It is generally accepted that the state and its sovereignty are

undergoing change, and that no state is such a unitary, separate

organization as classical theories assumed in the past. An international

political system is being created in the global scale that lacks

institutionalized rules of its own self-government, such as the

international system created by sovereign states had until now. It is an

existential interest of the integrating European civilization to appear

in global competition as an important and respected force. These

processes quite clearly demonstrate that the sovereign legitimate state

power must necessarily observe the ongoing developmental trends and

attempt to approach them, understand them, and gradually subject this

spontaneous globalization process, lacking hierarchical organization, to

the order of democratic legitimacy (Woodward, R. An ‚ation‘ not a

‚Nation‘: the Globalization of World Politics. In Michie, J. (ed.) The

Handbook of Globalization. Edward Elgar Publishing Limited, Cheltenham,

UK, 2003, pp. 311–316).

 

106.

However, it is important to point to the ability of a member state to

withdraw from the European Union by the process set forth in Art. 50 of

the Treaty on EU; the explicit articulation of this possibility in the

Treaty of Lisbon indisputably confirms the principle that “States are

the Masters of the Treaty” and the continuing sovereignty of member

states.

 

107.

Thus, from a modern constitutional law viewpoint, sovereignty need not

mean only “independence of the state power from any other power, both

externally (in foreign relations), and in internal matters” (Dušan

Hendrych and collective of authors, Právnický slovník [Legal

Dictionary], C. H. Beck, 2nd edition 2003, p. 1007). Sovereignty is

(probably) no longer understood like this in any traditional democratic

country, and stricto sensu no country, including the USA, would fulfill

the elements of sovereignty. For example, David P. Calleo points out

that if we understood sovereignty in the traditional concept, any

international obligation deprives the state of part of its sovereignty.

Therefore, in practice sovereignty should not be understood only as a

rigid legal concept, but “also as a concept with a practical, moral, and

existential dimension. In practice, national sovereignty is always

limited by objective conditions, including the reactions of neighboring

states. Under these conditions, national sovereignty means above all a

legitimate government that has at its disposal the formal power to

choose between available alternatives, and not to pursue an alternative

dictated by a foreign power. In other words, for a nation-state just as

for an individual within a society, practical freedom means being an

actor, not an object. For a state that is in a tightly mutually

interdependent system, practical sovereignty consists in being

understood as a player to whom neighboring states listen, with whom they

actively negotiate, and whose national interests are taken into

consideration.” (David P. Calleo, Rethinking Europe’s Future,

Princeton/Oxford, pp. 141, 2001).

 

108.

We can conclude from these deliberations that the transfer of certain

state competences, that arises from the free will of the sovereign, and

will continue to be exercised with the sovereign’s participation in a

manner that is agreed on in advance and that is reviewable, is not a

conceptual weakening of the sovereignty of a state, but, on the

contrary, can lead to strengthening it within the joint actions of an

integrated whole. The EU’s integration process is not taking place in a

radical manner that would generally mean the “loss” of national

sovereignty; rather, it is an evolutionary process and, among other

things, a reaction to the increasing globalization in the world.

 

109.

The Constitutional Court adds that – as regards the Czech Constitution –

one can choose a simple linguistic interpretation of Art. 10a par. 1 of

the Constitution that permits delegating only “certain powers of bodies

of the Czech Republic.” That indicates that the Constitution,

interpreted as a whole, is consistent as regards the relationship of

Article 10a and Art. 1 par. 1: Art. 10a clearly can not be used for an

unlimited transfer of sovereignty; in other words, based on Article 10a

on can not transfer – as already stated – powers, the transfer of which

would affect Art. 1 par. 1 of the Constitution to the effect that it

would no longer be possible to speak of the Czech Republic as a

sovereign state. Thus, the concept of sovereignty, interpreted in the

context of Art. 1 par. 1 of the Constitution and Art. 10a of the

Constitution, clearly shows that there are certain limits to the

transfer of sovereignty, and failure to observe them would affect both

Art. 1 par. 1 and Art. 10a of the Constitution. These limits should be

left primarily to the legislature to specify, because this is a priori a

political question, which provides the legislature wide discretion;

interference by the Constitutional Court should come into consideration

as ultima ratio, i.e., in a situation where the scope of discretion was

clearly exceeded, and Art. 1 par. 1 of the Constitution was affected,

because there was a transfer of powers beyond the scope of Art. 10a of

the Constitution. An analogous approach was taken by the Polish

Constitutional Tribunal in its decision on the constitutionality of

Poland’s accession to the EU, of 11 May 2005 (see judgment K 18/04, OTK

ZU (2005) ser. A, nr. 5, pol. 49).

 

110.

As the foregoing text indicates, the point of reference for

permissibility of a transfer of powers from the Czech Republic to an

international organization is, especially, respecting the material core

of the Constitution under Art. 9 par. 2. This means, in particular,

protection of fundamental human rights and freedoms, as they are

enshrined in the Charter of Fundamental Rights and Freedoms, in the

(European) Convention for the Protection of Human Rights and Fundamental

Freedoms, in other international treaties in this field, and in the

settled case law of the Constitutional Court of the Czech Republic and

the European Court of Human Rights. In this regard we can point out that

what will be important is application of the Treaty of Lisbon, or the

Charter of Fundamental Rights of the European Union, in specific cases

that can be contested before the Constitutional Court of the Czech

Republic by individual constitutional complaints, concerning possible

(exceptional) excesses by Union bodies and Union law into fundamental

rights and freedoms. This is also discussed at a different point in this

judgment.

 

111.

The Constitutional Court includes among the important starting points

for a review of the content of the Treaty of Lisbon and the basic case

law of the Constitutional Court, and – for inspiration – certain

important decisions of other constitutional courts. However, the

Constitutional Court does not take this case law as dogma; as already

stated, the Constitutional Court considers (and wishes to consider in

the future, in reviews of possible constitutional complaints) the

referential view point to be, in particular, the material (hard) core of

the Constitution, although this can not fully rule out the possibility

that it will take into account the entire constitutional order.

 

112.

Among the case law of the Constitutional Court, we can consider

fundamental judgments to be judgment file no. Pl. ÚS 50/04 (in the

matter of “sugar quotas”) and judgment file no. Pl. ÚS 66/04 (in the

matter of a “Euro-arrest warrant”) – see above, for both.

 

113.

In the matter of “sugar quotas” (Pl. ÚS 50/04 of 8 March 2006) the

Constitutional Court state, among other things, the following theses:

 

-

By the accession of the Czech Republic to the EU, on the basis of Art.

10a of the Constitution of the Czech Republic, there was a transfer of

powers of national bodies to supra-national bodies. At the moment when

the Treaty establishing the EC, as amended by revisions and the

accession treaty, became binding on the Czech Republic, the transfer of

the powers of national bodies that, under primary EU law are exercised

by EU bodies, to those bodies.

 

-

the Czech Republic lent these powers to EC bodies. This loan of partial

powers is a conditional loan; it can continue as long as these powers

are exercised by EC bodies in a manner compatible with the preservation

of the foundations of the Czech Republic’s state sovereignty, and in a

manner that does not jeopardize the foundation of a material law-based

state. (Note: Of course, this thesis does not rule out, as is stated

elsewhere /cf. point 84/, evaluation of the TL in view of the

constitutional order as a whole.)

 

-

Direct applicability in domestic law, and priority application of a

directive (note: this concerned a particular directive in the

adjudicated matter) arise from the very dogmatics of community law, as

it was presented in the past in the case law of the ECJ. Insofar as

membership in the EC carries a certain limitation of the powers of

domestic organs to the benefit of community bodies, one of the

expressions of that limitation must necessarily also be a limitation of

the freedom of member states to determine the domestic effects of

community law. Article 10a of the Constitution of the Czech Republic

thus actually functions in both directions: it forms the normative basis

for transfer of powers, and is simultaneously the provision of the

Constitution of the Czech Republic that opens the domestic legal order

for the functioning of community law, including rules concerning its

effects within the legal order.

(However,

it can not be ignored – cf. point 84 – that, in contrast to the Treaty

of Lisbon, the difference is that in the matter of “sugar quotas” the

Constitutional Court reviewed secondary community law, whereas the

Treaty of Lisbon involves primary law.)

 

114.

In the matter of the “Euro-arrest warrant” (Pl. ÚS 66/04 of 3 May 2006)

the Constitutional Court stated, among other things, the following

theses:

 

-

Article 1 par. 2 of the Constitution of the Czech Republic, in

connection with the principle of cooperation set forth in Art. 10 of the

Treaty establishing the EC gives rise to a constitutional principle

under which domestic legal regulations, including the Constitution, are

to be interpreted in accordance with the principles of European

integration and the cooperation of community bodies and the bodies of a

member state. Thus, if there are several interpretations of the

constitutional order, which includes the Charter of Fundamental Rights

and Freedoms, and only some of them lead to fulfilling the obligation

that the Czech Republic assumed in connection with its membership in the

EU, that interpretation must be selected which supports fulfillment of

that obligation, and not an interpretation that prevents such

fulfillment.

 

-

The constitutional principle of interpreting domestic law in accordance

with the Czech Republic’s obligations arising from its membership in

the European Union is limited by the possible meaning of the

constitutional text. Article 1 par. 2 of the Constitution is not a

provision that is capable of changing the meaning of any other express

constitutional provision at will. If domestic methodology for

interpreting constitutional law does not permit interpreting a

particular norm in accordance with European law, it is up to the

constitutional framer to amend the Constitution. Of course, the

constitutional framer can exercise this power only on condition of

preserving the essential requirements for a democratic state governed by

the rule of law (Art. 9 par. 2 of the Constitution), which are not at

the constitutional framer’s disposal, wherefore the power to amend these

requirements also can not be transferred by a treaty under Art. 10a of

the Constitution (cf. Holländer, P., Materiální ohnisko ústavy a

diskrece ústavodárce [The Material Core of the Constitution and the

Discretion of the Constitutional Framer], Právník [Lawyer] no. 5/2005).

 

-

This indicates that if several possible interpretations of the

Constitution exist under domestic interpretation methodology, and only

some of them lead to fulfilling the obligation that the Czech Republic

assumed with its membership in the European Union, it is necessary to

select the interpretation that supports implementation of this Article 1

par. 2 of the Constitution.

 

(Optical

there may seem to be a certain discord between the Constitutional

Court’s judgments in the matter of “sugar quotas” and the matter of the

“Euro-arrest warrant.” Judge Eliška Wagnerová pointed to this in her

dissenting opinion to the Constitutional Court’s judgments in the matter

of the “Euro-arrest warrant, saying that in this matter the

Constitutional Court shifted the doctrine of the Constitutional Court –

formulated in the matter of “sugar quotas” – by the assertion that there

was “to a certain extent a limitation on the powers of the

Constitutional Court” and that “where Czech law reflects a binding norm

of European law, the doctrine of priority of community law does not

permit the Constitutional Court to review that Czech norm in terms of

its conformity with the constitutional order of the Czech Republic.”

Nonetheless, the Constitutional Court believes that the dissonance

between these two judgments need not be seen as too sharp and clear-cut,

which can be concluded both from the headnotes introducing judgment Pl.

ÚS 66/04 /Euro-arrest warrant/, and from the wording of point 53 in it.

For purposes of the present judgment, in the matter of evaluating the

constitutionality of the TL, the Constitutional Court does not consider

certain differences between the two cited judgments to be decisive.)

 

115.

In another judgment, in the matter of review of the Act on Bankruptcy

and Settlement (Pl. ÚS 36/01 of 25 June 2002, Collection of Decisions of

the Constitutional Court, volume 26, judgment no. 80, promulgated as

no. 403/2002 Coll.) the Constitutional Court stated the following: The

constitutional maxim in Art. 9 par. 2 of the Constitution has

consequences not only for the framers of the constitution, but also for

the Constitutional Court. The impermissibility of changing the essential

requirements of a democratic state based on the rule of law also

contains an instruction to the Constitutional Court, that no amendment

to the Constitution can e interpreted in such a way that it would result

in limiting an already achieved procedural level of protection for

fundamental rights and freedoms.

 

116.

In the case law of other constitutional courts – which we can take as

inspiration – we can consider fundamental especially the decision of the

German Federal Constitutional Court (GCC), Solange II and the

Maastricht decision.

 

117.

In the matter of Solange II of 22 October 1986 The German Federal

Constitutional Court essentially stated that the level of protection of

human rights provided by European bodies is comparable to the protection

that could be provided by German bodies; the Federal Constitutional

Court concluded that it would no longer review the compatibility of

Community norms and acts if the European Community and especially its

Court of Justice generally ensure effective protection of fundamental

rights vis-à-vis acts of the Community; this protection must

fundamentally correspond to the protection of fundamental rights

provided by the Basic Law (the Constitution of the Federal Republic of

Germany).

 

118. In the matter of Maastricht of 12 October 1993 the GCC stated the following theses.

 

-

Every entry into an inter-state community has the consequence that a

member of that community is bound by its decisions. Of course, a member

state – as well as its citizens – acquires an influence by participating

in the creation of the Community’s will to pursue common – and also its

own – aims, the result of which is then binding for all member states,

and therefore also assumes recognition of one’s own obligations.

Readiness to accept the obligations of international law in a more

narrow legal union of an inter-state community is characteristic of a

democratic state that wants to share in the work of inter-state

institutions, and especially in the development of the European Union,

as an equal member.

 

-

Provision of sovereign authorizations has the consequence that

defending them no longer always depends on the will of the member state

alone. Seeing this as a violation of the constitutional principle of

democracy would be inconsistent not only with the openness of the

constitution towards integration, which the constitutional framers

wanted and express in 1949; it would also lay a foundation to the

concept of democracy that would make every democratic state incapable of

integration because of the principle of unanimity.

 

-

The principle of the majority, according to the imperative of mutual

regard, arising from loyalty to the Community (however) has a limit in

the constitutional principles and elementary interests of the member

states.

 

-

In the area of “competence - competence” the fundamental question is

who has the power to determine, with final effect, what is and is not a

power transferred to the Community.

 

-

The Federal Constitutional Court reserved to itself the power to

evaluate the question of whether a particular Community act crossed the

boundaries that German law gave to the Community (in the form of the

founding treaties and amendments to them).

 

-

The Federal Constitutional Court reserved to itself the final word in

determining which community acts are ultra vires, i.e. beyond the scope

of Community powers; if the Federal Constitutional Court concluded that

they were, that would make them inapplicable in Germany.

 

-

In other words, if European institutions or bodies handled the Treaty

on Union or otherwise developed it in a manner that was no longer

protected by the Treaty in the form that is the basis for the German act

of approval, then legal acts arising from that would not be binding in

the area of German sovereignty. German state bodies would not be

allowed, for constitutional law reasons, to apply these acts in Germany.

In accordance with this, the Federal Constitutional Court reviews

whether the legal acts of European institutions and bodies stay within

the bounds of sovereign rights that were provided to them, or whether

they exceed them.

 

119.

As was already stated, the cited provisions of the Constitution and the

fundamental case law of the Constitutional Court are important (thought

not completely exclusive) substantive starting points for review of the

content of the Treaty of Lisbon.

 

120. In view of the foregoing, the Constitutional Court states (and repeats)

 

-

The Constitutional Court generally recognizes the functionality of the

EU institutional framework for ensuring review of the scope of the

exercise of conferred competences; however, its position may change in

the future if it appears that this framework is demonstrably

non-functional.

 

-

In terms of the constitutional order of the Czech Republic – and within

it especially in view of the material core of the Constitution – what

is important is not only the actual text and content of the Treaty of

Lisbon, but also its future concrete application.

 

-

The Constitutional Court of the Czech Republic will (may) also –

although in view of the foregoing principles – function as an ultima

ratio and may review whether any act of Union bodies exceeded the powers

that the Czech Republic transferred to the European Union under Art.

10a of the Constitution. However, the Constitutional Court assumes that

such a situation can occur only in quite exceptional cases; these could

be, in particular, abandoning the identity of values and, as already

cited, exceeding the scope of conferred comeptences.

 

 

XII.

Special Part

 

121.

Before evaluating the constitutionality of individual points in the

Senate’s petition, the Constitutional Court considered – in view of the

unique nature of the matter – the formulation of its verdict, whether

positive or negative.

 

122.

The exact wording of § 71e par. 1 and 2 of Act no. 182/1993 Coll., on

the Constitutional Court, as amended by later regulations, provides that

(1) if the Constitutional Court concludes, after proceedings, that an

international treaty is inconsistent with the constitutional order, the

court shall state this in a judgment; the judgment shall state which

provision of the constitutional order the international treaty is

inconsistent with, (2) if the Constitutional Court concludes, after

proceedings, that an international treaty is not inconsistent with the

constitutional order, the court shall decide in a judgment that

ratification of the international treaty is not inconsistent with the

constitutional order.

 

123.

However, this formulation of the judgment verdict is difficult to

accept in this particular matter, because the Constitutional Court

reviewed (and decided on) the constitutionality of only the eight

articles of the Treaty of Lisbon contested (with grounds provided) by

the Senate, not of the entire treaty.

 

124.

Therefore, the Constitutional Court chose to formulate the judgment

verdict to say that it found the articles of the Treaty of Lisbon cited

in the verdict of this judgment are not inconsistent with the

constitutional order.

 

 

XIII.

 

125.

In the first point of its petition the Senate raises doubts regarding

Art. 2a par. 1 (now Art. 2 par. 1) and Art. 2c (now Art. 4) of the

Treaty on the Functioning of the EU.

 

126. Article 2a par. 1 (now Article 2 par. 1) reads:

 

1.

When the Treaties confer on the Union exclusive competence in a

specific area, only the Union may legislate and adopt legally binding

acts, the Member States being able to do so themselves only if so

empowered by the Union or for the implementation of Union acts.

 

127. Article 2c (now Article 4) reads:

 

1.

The Union shall share competence with the Member States where the

Treaties confer on it a competence which does not relate to the areas

referred to in Articles 2b and 2e.

 

2. Shared competence between the Union and the Member States applies in the following principal areas:

(a) internal market;

(b) social policy, for the aspects defined in this Treaty;

(c) economic, social and territorial cohesion;

(d) agriculture and fisheries, excluding the conservation of marine biological resources;

(e) environment;

(f) consumer protection;

(g) transport;

(h) trans-European networks;

(i) energy;

(j) area of freedom, security and justice;

(k) common safety concerns in public health matters, for the aspects defined in this Treaty.

 

3.

In the areas of research, technological development and space, the

Union shall have competence to carry out activities, in particular to

define and implement programmes; however, the exercise of that

competence shall not result in Member States being prevented from

exercising theirs.

 

4.

In the areas of development cooperation and humanitarian aid, the Union

shall have competence to carry out activities and conduct a common

policy; however, the exercise of that competence shall not result in

Member States being prevented from exercising theirs.

 

128.

In the first point of its petition the Senate asks the Constitutional

Court to consider the question of the character and classification of

powers transferred to the European Union. It stated that the new version

the Treaty on the Functioning of the European Union (previously the

Treaty establishing the European Community) establishes a classification

of powers that is more characteristic of federal states, by introducing

a category of powers exclusive to the Union, which includes entire

comprehensive areas of legal regulation , in which, under Art. 2a par. 1

of the Treaty on the Functioning of the European Union member states

may legislate and adopt legally binding acts only if so empowered by the

Union or for the implementation of Union acts. According to the

petitioner, the related concept of shared competences (Article 2c of the

Treaty), that are to exist alongside the cited exclusive competences,

opens space for a wide sphere of Union norm creation, difficult to

identify in advance, where, in accordance with Declaration no. 17 to the

Treaty, the principle of priority of Union law is implicitly applied.

Thus, in the sphere of shared competences, the scope of transferred

powers in terms of Art. 10a of the Constitution, can be seen as not

fully determinable in advance.

 

129.

The president adds, regarding the classification of powers more

characteristic of federal states, which is his opinion as well, that the

literal wording of Article 10a of the Constitution indicates that the

powers of bodies of the Czech Republic can be transferred only to an

entity existing between states, not alongside or even above them. In his

arguments he then states that the Union is not such an “entity.”

 

130.

Regarding the definition of European Union competences and their

character, the Constitutional Court states that the boundary for the

transfer of powers of the Czech Republic to international organizations

or institutions is primarily governed by Art. 10a of the Constitution,

which speaks of the transfer of “certain” powers; we can not overlook a

certain meaning that was given to Article 10a by the Constitutional

Court judgment concerning sugar quotas (judgment file no. Pl. ÚS 50/04 –

see above). Use of the word “certain” powers indicates that not all

powers can be transferred to an international organization or

institution; however, that does not mean an automatic conclusion that

transfer of powers is compatible if at least some powers are retained by

bodies of the Czech Republic. The meaning of the word “certain” must

logically be interpreted in view of other provisions of the

constitutional order, especially Article 1 par. 1 of the Constitution,

under which the Czech Republic is a sovereign and unitary state governed

by the rule of law, established on respect for the rights and freedoms

of the human being and citizens. In judgment Pl. ÚS 50/04 the

Constitutional Court stated that the transfer of powers is conditional

at two levels – the formal and the material. The formal level limits the

transfer of powers by compatibility with preserving the foundations of

state sovereignty of the Czech Republic. In this regard the formal level

is joined with Article 1 par. 1 of the Constitution. The material level

concerns the manner of exercising the transferred rights, which may not

jeopardize the essence of a material law-based state; this limitation

arises from Article 9 par. 2 of the Constitution, under which amending

the essential requirements of a democratic state governed by the rule of

law is impermissible. As the Constitutional Court emphasized, the

material limits for transfer of powers are even beyond the reach of the

constitutional framer itself. However, this does not in any way suggest

that a transfer of powers may not include “entire comprehensive areas of

legal regulation,” nor that the organization or institution to which

powers of bodies of the Czech Republic are transferred may not exercise

these powers exclusively, as the petitioner apparently believes.

Regarding this, of course, we must emphasize – in addition to the cited

reasons – that the present matter concerns review of the

constitutionality of amended primary EU law, the referential criterion

for which is not only Art. 1 par. 1 of the Constitution and Art. 9 par. 2

of the Constitution (although they are a central viewpoint), but the

constitutional order as a whole (cf. point 78 et seq.).

 

131.

Comprehensively we can say that, of course, only a sovereign state is

able to undertake to observe and effectively enforce, i.e. realistically

guarantee the most important constitutional rules and principles of a

material law-based state; preserving the essential attributes of

sovereignty is a condicio sine qua non, a prerequisite for principles of

natural law origin to be protected by the state at all.

 

132.

As the Senate, in any case, correctly emphasizes in its petition, the

Treaty of Lisbon itself confirms that the legislative competence -

comptence, i.e. the authorization to amend fundamental regulations,

remains with the member states. This is closely tied to the doubts of

the Senate and the president concerning the character of the EU as a

federal state, or the classification of powers that, according to the

Senate and the president, such a state is to point out; we can briefly

draw from this that if the Union does not have the competence

-competence, it can not be considered either a kind of federal state or

special entity, standing in every respect and always above the

individual states. The Union can act only within the scope of powers

expressly conferred on it by member states, which it can not exceed, nor

can it establish new powers for itself. Article 5 par. 2 of the Treaty

on EU provides: “Under the principle of conferral, the Union shall act

only within the limits of the competences conferred upon it by the

Member States in the Treaties to attain the objectives set out therein.

Competences not conferred upon the Union in the Treaties remain with the

Member States.”

 

(This

provision is basically taken from the existing Article 5 of the Treaty

establishing the EC, and the limitation of Union competences is even

more emphasized; cf. the first subparagraphs of Art. 5: “The Community

shall act only within the limits of the competences conferred upon it by

this Treaty to attain the objectives set out therein.”)

 

133.

In this situation the Constitutional Court – regarding the objection

that the Treaty of Lisbon newly introduces the category of exclusive

Union powers – concludes that this category (as such) is already know

today (although exclusive powers are not explicitly named in the

provision itself), in the interpretation of EU law by the Court of

Justice, and in the Treaty establishing the EC itself (cf. Art. 5 of the

Treaty establishing the EC). However, in comparison with the existing

Art. 5 of the Treaty establishing the EC, the new provisions on

competences are a step toward greater clarity and clear organization

which, from a domestic constitutional viewpoint can undoubtedly be seen

as an improvement. There are changes in the classification of individual

competences; with a number of competences the division is based on

division under the existing treaties, but some elements are different,

so in this regard they can be taken as new provisions.

 

134.

As regards the sphere of shared competences, the Senate’s arguments

basically ignore Art. 2 par. 6 of the Treaty on the Functioning of the

EU (2a par. 6), under which the scope and manner of exercising

competences are determined by provisions of treaties concerning the

individual areas. Thus, Art. 4 par. 2 of the Treaty on the Functioning

of the EU (2c), cited by the Senate, does not establish a kind of

unlimited competence clause in the area of shared competences, but only

declares the primary areas where shared competences appear; however,

each individual competence must be specified in each case in the

relevant part of the relevant treaty. Thus, we can say that the Treaty

on EU does not contain shared competences on the basis of Art. 4 par. 2

of the Treaty on the Functioning of the EU, but on the basis of

individual special treaty provisions. If some competence is not

expressly identified as a Union competence, whether exclusive or shared,

it remains fully within the power of the member state. This is

addressed – as already stated – by Art. 5 par. 2 of the Treaty on EU:

“Under the principle of conferral, the Union shall act only within the

limits of the competences conferred upon it by the Member States in the

Treaties to attain the objectives set out therein. Competences not

conferred upon the Union in the Treaties remain with the Member States.”

Thus, the transfer of powers under Art. 10a of the Constitution is not

unlimited, and this Article has not been violated in this regard. Thus,

we must emphasize again that the European Union may act only in those

areas in which certain powers of member states were conferred on it, on

the assumptions discussed above, based on the doctrine of

self-limitation of a sovereign (a unilateral, self-limiting act by a

sovereign state), in accordance with a particular domestic law.

 

135.

However, the constitutional law limits for the transfer of powers

contained in Article 10a of the Constitution also indicate the need for

clearer delimitation (and thus also definiteness and recognizability) of

the transferred powers, together with sufficient review, which the

Czech Republic, as a sovereign state, can exercise over the transfer of

powers.

 

136.

As regards this delimitation of transferred powers, it is necessary to

realize that Article 2c par. 2 (now Art. 4) of the Treaty on the

Functioning of the EU, cited by the Senate, by itself does not define

the powers of the Union. They are specified by individual provisions in

other parts of the Treaty on the Functioning of the EU, including

specific decision-making procedures and legal instruments that can be

used in implementing them, as the government points out in its brief.

The Constitutional Court here agrees with the government’s opinion that

the petitioner’s concern about the sphere of Union norm creation being

difficult to identify in advance is not appropriate in this situation,

and that (in any case) it is not even possible to make an exhaustive

list to enshrine individual powers in such detail that they would always

correspond to the particular legal act of the Union that implements

them. However, it is possible, and the Treaty of Lisbon clearly does so,

to specify precisely defined areas in which Union norm creation may

take place.

 

[In

its brief, the government cites only Part III of the Treaty on the

Functioning of the EU (Union Policies and Internal Actions), which, of

course, overlooks the competence provisions in other parts of the

treaty, e.g. Article 18, which is a component of Part II of the Treaty

on the Functioning of the EU, and under which the European Parliament

and the Council may, in a proper legislative procedure, adopt

regulations prohibiting discrimination based on nationality.]

 

137.

Article 5 of the Treaty on EU also governs the principles for defining

and exercising European Union competences. More precise specification is

governed by the principle of conferred competences (cf. point 124). The

exercise of powers other than the exclusive competences of the European

Union is limited by the principles of subsidiarity and proportionality.

Under the principle of subsidiarity “in areas which do not fall within

its exclusive competence, the Union shall act only if and in so far as

the objectives of the proposed action cannot be sufficiently achieved by

the Member States, either at central level or at regional and local

level, but can rather, by reason of the scale or effects of the proposed

action, be better achieved at Union level.” (Art. 5 par. 3). The

principle of proportionality requires that neither the content nor the

form of the Union’s activities exceed what is necessary to achieve the

objectives of the Treaties (Art. 5 par. 4). The content of these

principles is specified further by the Protocol on the application of

the principles of subsidiarity and proportionality, together with the

Protocol on the exercise of shared competence. Thus, these principles,

together with the specific provisions of the Treaty on EU and of the

Treaty on the Functioning of the EU, provide a sufficiently certain

normative framework for determining the scope in which the Czech

Republic transferred its powers to the European Union.

 

138.

The question of review of the transfer of powers from the Czech

Republic as a sovereign state must be understood especially in relation

to the provisions of treaties defining the competences of the Union,

with special attention to Article 5 of the Treaty on EU. As regards the

institutional framework for review of the exercise of powers, certainly

the basic body for review of the exercise of competence by the European

Union is the Court of Justice. It exercises this review on the basis of

Article 263 of the Treaty on the Functioning of the EU, as part of

direct review of the legality “of legislative acts, of acts of the

Council, of the Commission and of the European Central Bank, other than

recommendations and opinions, and of acts of the European Parliament and

of the European Council intended to produce legal effects vis-à-vis

third parties. It shall also review the legality of acts of bodies,

offices or agencies of the Union intended to produce legal effects

vis-à-vis third parties.” Its review function is also applied in rulings

on preliminary issues (concerning interpretation of the Treaties on the

validity and interpretation of acts of the institutions, bodies,

offices or agencies of the Union) brought by courts of member states

under Article 267 of the Treaty on the Functioning of the EU. In

addition to the Court of Justice, all bodies of the Union are required

to ensure constant respect for the principles of subsidiarity and

proportionality, as stated in Article 1 of the Protocol on the

Application of the Principles of Subsidiarity and Proportionality, for

which the Protocol sets forth specific procedures.

 

139.

In this regard the Constitutional Court again states that it generally

recognizes the functioning of this institutional framework for ensuring

review of the scope of exercise of conferred competences, although its

position may change in the future, if it appears that this framework is

demonstrably non-functional. Here the Constitutional Court refers to its

conclusions in part X. of this judgment (point no. 110), under which,

in exceptional cases, it can function as an ultima ratio and review

whether an act of the Union has exceeded the limits [of powers] which

the Czech Republic transferred to the EU under Art. 10a of the

Constitution.

 

(In

this regard, this would be an analog to the decision by the Federal

Constitutional Court in the matter “Solange II,” but applied to review

of powers, not to the level of protection of fundamental rights and

freedoms.

 

The

Polish Constitutional Tribunal, for example, expressly rules out the

jurisdiction of the Court of Justice to evaluate the limits of conferral

of competences on the EU, as, according to the Tribunal, that is a

question of interpretation of domestic constitutional law. Although, in

terms of the dogmatics of domestic constitutional law, we can agree with

that conclusion to a certain extent, it is questionable whether it is

necessary to formulate it as sharply as the Tribunal did.)

 

The

German Federal Constitutional court – as stated above (point 108) –

reserved to itself the final word on the question of whether a community

act exceeded the boundaries/limits that German law gave the Community,

and which Community acts are thus ultra vires, outside the competence of

the EU. Thus, from the perspective of German law, it is theoretically

possible that the Court of Justice itself will exceed its jurisdiction

(e.g. if its interpretation is no longer an interpretation of the

founding treaties, but, on the contrary, impermissible norm creation

[b]). If the Federal Constitutional Court concluded that these acts are

ultra vires, that would make them inapplicable (not invalid or null) in

Germany. Thus, the Maastricht decision meant a qualitative shift;

however, we can obviously agree with the opinion that the Federal

Constitutional Court’s Maastricht doctrine (kompetenz-kompetenz) is more

in the nature of a potential warning, but need not ever be used in

practice.

 

The

Court of Justice itself has already decided that in a particular case a

European act exceed the competence that the EU has on the basis of the

European treaties, specifically the Treaty establishing the EC. This

happened for the first time in 2000, when it annulled the Council

directive on the regulation of tobacco advertising, because in its

opinion this regulation was not within the competences that the EU has

on the basis of transfer of competences from member states (decision of 5

October 2000, Germany v. the Parliament and the Council, C-376/98,

Recueil, p. I-8419).

 

140.

The Constitutional Court also stresses that, moreover, the Treaty of

Lisbon expands the present framework– where the dominant body was the

Court of Justice of the EC (together with other bodies at the EU level) –

by including the parliaments of member states in the process of review

of the exercise of competences in accordance with the Protocol on the

role of National Parliaments in the European Union and the Protocol on

Application of the Principles of Subsidiarity and Proportionality. Thus,

the parliaments of member states can play an important role in

protecting the limits of competences which the member states conferred

on the Union. (Note: There is a question whether the heretofore central

role of constitutional courts will then no longer be as important as

under the previous regulation předchozí.) Review of observing the limits

of the conferral of competences is thus the joint role of all

participating bodies, both at the European level and at the domestic

level.

 

141.

For all the cited reasons the Constitutional Court did not find that

Art. 2 par. 1 (2a par. 1) and Art. 4 par. 2 (2c) of the Treaty on the

Functioning of the EU, contested by the petitioner in the first point of

its petitioner were inconsistent with the constitutional order of the

Czech Republic.

 

142.

In the second point of its petition, the Senate raises doubts

concerning Art. 308 par. 1 (now Art. 352) of the Treaty on the

Functioning of the EU (the flexibility clause).

 

143. Article 308 (now 352) reads, in its entirety:

1.

If action by the Union should prove necessary, within the framework of

the policies defined in the Treaties, to attain one of the objectives

set out in the Treaties, and the Treaties have not provided the

necessary powers, the Council, acting unanimously on a proposal from the

Commission and after obtaining the consent of the European Parliament,

shall adopt the appropriate measures. Where the measures in question are

adopted by the Council in accordance with a special legislative

procedure, it shall also act unanimously on a proposal from the

Commission and after obtaining the consent of the European Parliament.

2.

Using the procedure for monitoring the subsidiarity principle referred

to in Article 5(3) of the Treaty on European Union, the Commission shall

draw national Parliaments' attention to proposals based on this

Article.

3. Measures based on this

Article shall not entail harmonisation of Member States’ laws or

regulations in cases where the Treaties exclude such harmonisation.

4.

This Article cannot serve as a basis for attaining objectives

pertaining to the common foreign and security policy and any acts

adopted pursuant to this Article shall respect the limits set out in

Article 40, second paragraph, of the Treaty on European Union.

 

144.

The second point in the Senate’s petition states that we should also

review for consistency with Art. 10a of the Constitution the nature of

Art. 308 par. 1 of the Treaty on the Functioning of the European Union,

under which – according to the Senate– the Council, acting unanimously

on a proposal from the Commission shall adopt measures to attain one of

the objectives set out in the Treaties, when particular action is

necessary within the framework of Union policies and the Treaty has not

provided the necessary powers. In contrast to the existing version of

the founding treaties, the proposed Treaty provision is not limited to

regulation of the domestic market, but is allegedly a blanket norm. This

allegedly makes it possible to adopt measures beyond Union competences,

i.e. beyond the scope of powers transferred under Art. 10a of the

Constitution of the Czech Republic; measures may subsequently be

adopted, e.g. in the area of sensitive questions of cooperation in

criminal matters. According to the Senate, the specific competence

jurisdiction of the European Court of Justice, as a final arbiter of a

potential dispute, can raise – in view of the unclear relationship to

the constitutional courts of member states – questions concerning the

observance of the principle of legal certainty. Finally, the Senate

objects that the absence of a time limit for the validity of an adopted

measure and its (allegedly) executive nature raise doubt about the

relevance of participation by national parliaments in considering the

adoption of such a measure.

 

145.

Before specifically addressing this issue – because it relates closely

to it – the Constitutional Court considers it appropriate to point out

that in a wider context, the provisions on the entry into force of the

Treaty of Lisbon, on possible subsequent revisions of primary European

law, and on the possibility of a member state withdrawing from the EU

regime, are key for evaluating the actual legal nature of the EU under

the Treaty of Lisbon. This is again the question of who has the highest,

constitutional competence - competence in a particular area; if the

Union could change its competences at will, independently of the

signatory countries, then by ratifying the TL the Czech Republic would

violate Art. 1 par. 1 and Art. 10a of the Constitution. (This

consideration relates to the first point of the Senate’s petition, but

is also important for the second point – Art. 308, or 352 – of the

petition.)

 

146.

As regards the entry into force of the Treaty of Lisbon, the condition

that it be adopted unanimously by all the signatories is an important

feature of an organization of an international law nature, which

distinguishes the EU from a federation or another form of state.

However, it is necessary to consider not only in what form the Treaty of

Lisbon enters into force, but also in what manner treaties can be

amended in the framework of primary EU law (whether the Treaty on EU or

the Treaty on the Functioning of the EU). The system of amending primary

law, as enshrined by the Treaty of Lisbon, is proof that all the named

international treaties remain such treaties even as regards revision of

them, and therefore the European Union, even after the Treaty of Lisbon

enters into force, will be a unique organization of an international law

character. In a federative state, it is primarily up to the federal

bodies to adopt amendments of the constitution; the member states of a

multi-member federation, if they even take part in such a constitutional

amendment, need not all agree with a constitutional amendment, and yet

the amendment will enter into force. In contrast, amendment of the

Treaty on EU or of the Treaty on the Functioning of the EU will be

possible only with the consent of all states in the Union at an

intergovernmental conference, so the role of Union bodies would be only a

matter of order, not decisive; thus, Union bodies will not decide on

the proposed amendments, but only organize the revision of treaties, and

the amendments will enter into force after ratification by all member

states in accordance with their constitutional regulations (see Art. 48

par. 1 to 5 of the Treaty on EU). Thus, even after the Treaty of Lisbon

enters into force, the EU will not acquire the power to create its own

new competences, the member states will still be “masters of the

treaties.” Moreover, the Treaty of Lisbon newly introduces, in Art. 50

of the Treaty on EU, the possibility of withdrawing from the

organization. This can take place by agreement between the withdrawing

state and the Council as a representative of the member states (i.e.,

not with the Commission, as a representative of the interests of the

Union itself), and if an agreement is not reached, the Treaty itself

gives the withdrawing state a notice period. Thus, the manner of

termination membership is also typical for an international

organization, not a contemporary federative state, and this possibility,

on the contrary, strengthens the sovereignty of member states. These

arguments are further proof of the fact that the Treaty of Lisbon does

not markedly change the character of the EU and does not establish the

ability for the Union to adopt measures beyond Union competences, i.e.

beyond the scope of transfer of powers under Art. 10a par. 1 of the

Constitution.

 

147.

An issue mentioned by the Senate in the petition is closely tied to

this broad definition of the legal nature of the EU; this is the

flexibility clause (Art. 352 of the Treaty on the Functioning of the EU,

previously Art. 308 of the Treaty establishing the EC) and the

simplified revision procedure for revising primary Union law (the

“passerelle”) under Art. 48 par. 6 and 7 of the Treaty on EU. The

simplified revision procedure for amending primary Union law will be

discussed elsewhere (chapter XIV., points 146 et seq. of this judgment),

as the Senate includes it in its proposal as a special third point.

 

148.

The flexibility clause under of the Treaty of Lisbon is a modification

of the present Art. 308 of the Treaty establishing the EC (originally

Art. 235 of the Treaty on the European Economic Community). It enables

the Council to unanimously adopt appropriate measures if the Treaty on

the EC does not give the Community the necessary powers, but if those

powers are exercised to achieve the community’s objectives in the

internal market, if it is proposed by the Commission and if Parliament

is consulted; it can not be used in matters not involving achieving one

of the objectives of the common market. (Note.: An example of the use of

the competence by the Council is, e.g. Council Decision 87/327, which

adopted the Erasmus international student exchange program; cf. judgment

of the Court of Justice of 30 May 1989, Commission of the European

Communities v Council of the European Communities, 242/87, Recueil, p.

142.) In comparison with the existing situation, the Treaty of Lisbon

expands the applicability of the flexibility clause, because it can be

used for one of the objectives of any policy defined by the Treaties

(not only the internal market), except the common foreign and security

policy (Article 308, paragraph 4). In this regard, new competences are

conferred on the EU. This expansion corresponds to the strengthening of

the European Parliament: under Art. 352 par. 1 of the Treaty on the

Functioning of the EU use of this article is tied to the consent of the

Parliament (note: today only consultation is required); moreover,

however, domestic parliaments, which review observance of the principle

of subsidiarity, acquire important powers.

 

149.

However, we can not agree with the Senate’s claim that Article 352 of

the Treaty on the Functioning of the EU – as was already stated – opens

room for the Union to adopt measures beyond the scope of transfer of

powers under Art. 10a of the Constitution of the Czech Republic. The

ability to adopt such measures is limited to the objectives defined in

Article 3 of the Treaty on EU (previously Art. 2), which thus also

provides a sufficient guide for determining the limits of conferred

competences that Union bodies may not exceed. The third and fourth

paragraphs of Article 352 expressly narrow the field in which it can be

applied. In addition, as the government of the Czech Republic correctly

states in its brief, Declarations no. 41 and 42 on this article

(attached to the Final Act of the Intergovernmental Conference which

adopted the Treaty of Lisbon) further narrow the possibility for using

Article 352 of the Treaty on the Functioning of the EU as a means for

covert expansion of the competences of Union bodies. Although these

declarations are not binding from a legal point of view, they express

the beliefs of the parties – including the government of the Czech

Republic – concerning the appropriate interpretation of the relevant

provision, which is also confirmed by the existing case law of the Court

of Justice concerning interpretation of Article 308 of the Treaty

establishing the EC. Thus, these declarations can serve as an important

interpretational aid in interpreting the relevant provisions.

 

(The

first of these declarations states that the reference to the Union’s

objectives in Art. 352 par. 1 the Treaty on the Functioning of the

European Union concerns the objectives set out in Art. 3 par. 2 and 3 of

the Treaty on European Union and the objectives in Art. 3 par. 5 of

that treaty related to external action on the basis of Part Five of the

Treaty on the Functioning of the European Union. Therefore, it is ruled

out that activity based on Article 352 of the Treaty on the Functioning

of the European Union would pursue only objectives set out in Art. 3

par. 1 of the Treaty on European Union. In this regard the Conference

states that, in accordance with Art. 31 par. 1 of the Treaty on European

Union, legislative acts can not be adopted in the area of common

foreign and security policy. The second of the declarations emphasizes

that, in accordance with the settled case law of the European Court of

Justice, Article 352 the Treaty on the Functioning of the European

Union, as an integral component of the institutional system established

on the principle of conferred compentences, can not serve as the

foundation for expanding the scope of Union powers beyond the general

framework defined by provisions of the Treaties as a whole, and, in

particular, provisions that defined the role and activities of the

Union. Article 352 can not, under any circumstances, be used as a

foundation for adopting provisions whose effect would essentially be an

amendment to the Treaties, without using the procedure provided by the

Treaties for that purpose).

 

150.

The Constitutional Court agrees with the government’s opinion, stated

in its brief, that the flexibility clause is not a blanket norm; in

order for the Union to be able to use Art. 352 par. 1 of the Treaty on

the Functioning of the EU, the following conditions must be cumulatively

met for a proposed legislative act: the need to achieve one of the

objectives of the EU, adopting the act must be within the policies

defined by the primary law of the EU, it must be unanimously approved by

the Council, and the consent of the European Parliament must be

obtained. It is obvious that these conditions are quite strict, and

limiting, and they sufficiently close off the path to disproportionate

application (abuse) of Article 352 par. 1 of the Treaty on the

Functioning of the EU.

 

151.

However, in the Senate’s opinion, the specific competence jurisdiction

of the European Court of Justice – in a situation where the relationship

to the constitutional courts of member states is not clear – can raise

questions concerning the observance of the principle of legal certainty.

Here the Constitutional Court states that the effect of the Court of

Justice is, as regards the present issues, relatively clear. Under the

settled case law of the Court of Justice concerning Article 308 of the

Treaty establishing the EC it is clear from (just) the wording of the

article itself that applying it as a legal basis for an action is

justified only if no other provision of the Treaty confers on the

Community the powers necessary to take the action. In that situation

this article allows the bodies to act for the purpose of achieving one

of the objectives of the Community even despite the lack of a provision

that would confer the necessary power on them. However, in order for the

bodies of the Community (note: in the context of evaluating Article 352

of the Treaty on the Functioning of the EU, meaning the bodies of the

Union) to adopt such a legal act, its objective must be related to one

of the objects that the Treaty assigns to the Union . (cf. decision of

the Court of Justice of 26 March 1987, Commission of the European

Communities v Council of the European Communities, 45/86, Recueil, p.

1493, point 13). However, the fundamental opinion on the flexibility

clause must be seen to be the Opinion of the Court of Justice 2/94 of 28

March 1996, Recueil, p. 1759, on the Community’s ability to accede to

the European Convention for the Protection of Human Rights and

Fundamental Freedoms (the opinion also cites Art. 235, which, however,

was identical with today’s Art. 308 of the Treaty establishing the EC).

The Court of Justice first emphasized that Art. 235 can be applied only

in the absence of express or implied powers; it continued that this

article was “designed to fill the gap in cases where no specific

provisions of the Treaty confer on the Community institutions express or

implied powers to act, if such powers appear none the less to be

necessary to enable the Community to carry out its functions with a view

to attaining one of the objectives laid down by the Treaty.” The Court

expressly stated that this provision, “being an integral part of an

institutional system based on the principle of conferred powers, cannot

serve as a basis for widening the scope of Community powers beyond the

general framework created by provisions of the Treaty as a whole and, in

particular, those that define the tasks and the activities of the

Community. On any view, Article 235 cannot be used as a basis for the

adoption of provisions whose effect would, in substance, be to amend the

Treaty without following the procedure which it provides for that

purpose.”

 

152.

Because the provision on the flexibility clause (Article 352 par. 1),

as is obvious from the foregoing, represents a modified current Article

308 par. 1, even though its scope is expanded, we can undoubtedly take

the opinions of the Court of Justice as confirmation of the fact that

the flexibility clause can not serve as a means for amending the Treaty

on the Functioning of the EU. Thus, it is not, and will not be possible

to circumvent Art. 10a of the Constitution of the Czech Republic with

the help of this clause – and the practice of bodies of the EU and the

cited case law of the Court of Justice confirm this. In this situation

the Constitutional Court considers the institutional framework for

review of conferred competences – with regard to Article 352 of the

Treaty on the Functioning of the EU – to be adequate, in view of all the

reasons stated above; however, it emphasizes again that application of

this article can be considered quite exceptional (cf. the Court of

Justice, above).

 

153.

As already mentioned, Article 352 also expressly proclaims that a

decision within the flexibility clause must respect the principle of

subsidiarity, whose observance is reviewed by the domestic parliaments.

The Treaty of Lisbon itself does not in any way limit the space for

involving domestic parliaments and leaves it completely up to the

constitutional structures of the member states, how to provide it. On

the contrary, compared to Article 308 of the Treaty establishing the EC,

the second paragraphs of this article emphasizes the role that the

domestic parliaments are to play in the process of Union norm creation,

which, again, strengthens the position of the member states. Therefore,

in the opinion of the Constitutional Court, the Senate’s objections, as

regards the lack of a time limit on the validity of an adopted measure

and its allegedly executive nature, can not raise doubts about the

participation of national parliaments. However, it will be up to the

Czech legislature, if the Treaty of Lisbon enters into force, to adopt

an appropriate legal regulation in this regard, in accordance with the

constitutional order (cf. also Chapter XIV., points 155–157).

 

154.

The Senate’s other objections concerning adopting measures in the area

if sensitive questions of cooperation in criminal matters and on the

allegedly inadequate procedural guarantees for the protection of civil

rights and freedoms have more to do with the subsequent application

sphere, and with reference to the foregoing arguments they appear

unjustified; in any case, the petitioner did not provide more detail

about these doubts.

 

155.

For these reasons, the Constitutional Court did not find Art. 352 (Art.

308) of the Treaty on the Functioning of the EU to be inconsistent with

the constitutional order of the Czech Republic.

 

 

XV.

 

156.

In the third point of its petition the Senate stated that the concept

of powers with which Art. 10a of the Constitution of the Czech Republic

works, has not only a material dimension, overlapping with the

definition of an area of competence, but also an institutional

dimension, relating to the manner of decision making. In this regard, in

the Senate’s opinion, it is necessary to review whether Art. 48 par. 6

and 7 of the Treaty on European Union are consistent with the cited

provision of the Constitution of the Czech Republic (note: the numbering

has not changed). These articles introduce the possibility of

simplified revision procedures for passing amendments to primary Union

law through an executive act that changes the form of duly ratified

founding treaties of the EU. In this regard, the generally transitional

clause (the “passerelle”) is allegedly unambiguously formulated;

according to the petitioner, although the principle of bilateral

flexibility is enshrined in Declaration no. 18 annexed to the Treaty, it

remains an instrument of unilateral change of competences. In the

Senate’s opinion, applying this clause for the purpose of changing

unanimous decision making to decision making by a qualified majority in a

particular area, or replacing a special legislative procedure with an

ordinary one under Art. 48 par. 7 can be a change of powers under Art.

10a of the Constitution, without that change being accompanied by

ratification of an international treaty of the active consent of the

Parliament of the Czech Republic. The loss of a legal veto can be

understood as a transfer of powers to an international organization,

which, at the same time, de facto, means limiting the importance of the

parliamentary mandate given to the government to make a decision, in

adopting which, upon application of the transitional clause, the

representative of the government of an individual member state could be

outvoted.

 

157. Article 48 par. 6 reads:

 

The

Government of any Member State, the European Parliament or the

Commission may submit to the European Council proposals for revising all

or part of the provisions of Part Three of the Treaty on the

Functioning of the European Union relating to the internal policies and

action of the Union.

 

The

European Council may adopt a decision amending all or part of the

provisions of Part Three of the Treaty on the Functioning of the

European Union. The European Council shall act by unanimity after

consulting the European Parliament and the Commission, and the European

Central Bank in the case of institutional changes in the monetary area.

That decision shall not enter into force until it is approved by the

Member States in accordance with their respective constitutional

requirements.

 

The decision referred to in the second subparagraph shall not increase the competences conferred on the Union in the Treaties.

 

158. Article 48 par. 7 reads:

 

Where

the Treaty on the Functioning of the European Union or Title V of this

Treaty provides for the Council to act by unanimity in a given area or

case, the European Council may adopt a decision authorising the Council

to act by a qualified majority in that area or in that case. This

subparagraph shall not apply to decisions with military implications or

those in the area of defence.

 

Where

the Treaty on the Functioning of the European Union provides for

legislative acts to be adopted by the Council in accordance with a

special legislative procedure, the European Council may adopt a decision

allowing for the adoption of such acts in accordance with the ordinary

legislative procedure.

 

Any

initiative taken by the European Council on the basis of the first or

the second subparagraph shall be notified to the national Parliaments.

If a national Parliament makes known its opposition within six months of

the date of such notification, the decision referred to in the first or

the second subparagraph shall not be adopted. In the absence of

opposition, the European Council may adopt the decision.

 

For

the adoption of the decisions referred to in the first and second

subparagraphs, the European Council shall act by unanimity after

obtaining the consent of the European Parliament, which shall be given

by a majority of its component members.

 

159.

The articles contested by the petitioner regulate the simplified

revision procedure for amending primary Union law. We can point out that

contemporary European law already recognizes a similar procedure – with

certain not too important differences (cf. Art. 137 par. 2 and Art. 175

par. 2 of the Treaty establishing the EC).

 

160.

Art. 48 par. 6 of the Treaty on EU permits a simplified procedure for

adopting changes to Part Three of the Treaty on the Functioning of the

European Union, including the internal market, the free movement of

persons and services, the free movement of goods, capital and payments,

the rules of economic competition, economic and monetary policy, etc.,

which, of course, is subject to approval by the member states in

accordance with their constitutions and can not affect the conferral of

new competences on the Union. Paragraph six, third subparagraph of the

contested Article rules out changes under this regime that would affect

the competences of the Union; this expressly eliminates any doubt in

relation to Art. 10a of the Constitution of the Czech Republic. An

amendment made under Art. 48 par. 6 by the unanimous decision of the

European Council must be approved by the member states in accordance

with their constitutional regulations. However, the key factor from a

constitutional law viewpoint –as mentioned – is the fact that under the

literal wording of this article no other competences can be conferred on

the Union.

 

161.

Art. 48 par. 7 governs the simplified revision procedures for adopting

changes in a vote in the Council under the Treaty on the Functioning of

the EU or under Part Five of the Treaty on EU, from unanimous voting to

voting by a qualified majority, except for military and defense issues.

As regards this paragraph, conceptually we can not even think about

changes expanding Union competences, because it concerns – as is obvious

– only voting. However, a change in the method of voting under Art. 48

par. 7, requiring the consent of all heads of state at the European

Council, can be blocked by the lack of consent of any parliament of a

member state.

 

162.

In a general sense, paragraphs six and seven of Art. 48 of the Treaty

on EU are basically different only in the degree of autonomy that they

leave to the member states in approving a decision. While paragraph six

leaves the member states absolute discretion as regards the manner of

approving a decision, paragraph seven limits them to the opportunity to

express lack of consent by the domestic parliament. Decisions under

these articles are also reviewable by the Court of Justice as regards

their consistency with the treaty itself, which proves that they are not

amendments to the Treaties, but, on the contrary, the Treaties retain a

higher legal force over these acts (which amend a formally

de-classified norm).

 

163.

For completeness, we can say that, in addition to the two passerelles

set forth by Art. 48 par. 6 and 7 of the Treaty on EU, there are several

special provisions through which the European Council can unanimously

change the manner of voting from unanimous to majority voting (Art. 31

par. 3 of the Treaty on EU, Art. 312 par. 2 and Art. 333 of the Treaty

on the Functioning of the EU), or this can be done by the Council of

Ministers (Art. 81 par. 3 of the Treaty on the Functioning of the EU),

which adopts measures concerning family law with an international

element, which can be harmonized on the basis of majority voting; in

contrast with the present situation (see Art. 67 par. 2 of the Treaty

establishing the EC) there is a new ability for national parliaments to

veto such an act. What was stated in analyzing Art. 48 par. 6 and 7

basically applies to these provisions; that, is acts created on their

basis are not formally amendments of the Treaties, but the Treaties

retain a higher legal force over them, and so these acts must be

consistent with the conditions that the Treaties set out for them.

 

164.

For the foregoing reasons the Constitutional Court did not find Art. 48

par. 6 and 7 of the Treaty on EU to be inconsistent with the

constitutional order of the Czech Republic.

 

165.

However, in this regard we can not help but see that there are as yet

no related provisions in the legal order of the Czech Republic that

would allow implementation of the decision making procedures set forth

in paragraphs six and seven of Art. 48 on the domestic level. The

absence of these procedures, in and of itself, does not affect the

question of whether the Treaty of Lisbon is constitutional, but because

the Treaty of Lisbon presumes the intervention of domestic parliaments,

the government, as the sponsor of the Treaty of Lisbon (and the party

who negotiated it at the level of the EU) should reflect that in a

timely manner and adequately, by proposing relevant procedures on the

domestic level, and should ensure that the Treaty is compatible and

interconnected with the constitutional order of the Czech Republic, not

only in view of the participation of the parliament, but also in view of

the possibility of preliminary review of an amendment of the Treaties

by the Constitutional Court. It is evident that the requirement that the

transferred powers be certain relates not only to actions of the EU,

but also of bodies of the Czech Republic, if their cooperation is

necessary to adopting a decision of the EU that directly concerns the

transferred powers.

 

166.

In this situation it is necessary to clearly define the role that the

individual chambers of Parliament will play, and their relationship to

each other. This involves exercising the right of veto of national

parliaments to decisions of the European Council (Art. 48 par. 7); this

is a very important review power and responsibility that is one of the

fundamental postulates of the Treaty of Lisbon with regard to observing

the principle of subsidiarity. Lack of clarity in this regard is pointed

to by, for example, point 3 of resolution 7 of the Permanent Commission

for the Constitution of the Czech Republic and Parliamentary Procedure

from the 14th session, held on 27 March 2008, on its position on the

Treaty of Lisbon amending the Treaty on European Union and the Treaty

establishing the European Community and of the constitutional order of

the Czech Republic.

 

167.

Second, it is necessary to ensure review of a decision adopted on the

basis of Article 48 paragraph 6, subparagraph two, by the Constitutional

Court of the Czech Republic for that decision’s consistency with the

constitutional order. Unlike a decision under paragraph 7, where only

the manner of voting is changed (and thus the content of the change can

be evaluated at the moment when the powers are transferred), a decision

under paragraph 6 also changes the substantive provisions of the

Treaties. thus, it is also necessary to permit review of that change in

terms of provisions of the constitutional order of the Czech Republic by

the Constitutional Court, so that the limits of transfer of powers

under Article 10a of the Constitution will be observed. Only thus can it

be guaranteed that by the transfer of powers which takes place under

Article 48 paragraph 6 at the moment the Treaty of Lisbon is adopted,

does not give the Czech Republic the possibility to make a decision on

the basis of that provision that would be inconsistent with the

constitutional order of the Czech state.

 

168.

In the next objection (included in the same point as Art. 48 par. 6 and

7 of the Treaty on EU), the Senate stated that in the case of Art. 69b

par. 1 of the Treaty on the Functioning of the EU (now Art. 83 par. 1),

when the sector Council decides on including further areas of criminal

activity in the sphere of union regulation, space for Parliament to

express lack of consent is completely lacking, although in a different

case – with the proposed wording of the general transitional clause

(Art. 48 par. 7 of the Treaty on European Union) and the partial

transitional clause in the sphere of judicial cooperation in civil

matters (Art. 65 par. 3 of the Treaty on the Functioning of the EU) –

this possibility is guaranteed. The Senate added that the limited

involvement of national parliaments in the decision making on the change

of the relatively widely defined powers of the Union is supplemented by

expanding voting by a qualified majority, not infrequently related with

the overall communitarization of the current third pillar of European

law, where, in parallel with the implicit weakening of the domestic

parliamentary mandate and cancellation of the category of treaties

approved by the Parliament of the Czech Republic, the European

Parliament assumes responsibility for the parliamentary dimension of

decision making. In view of the nature of the European Union as a

society of states (not a federal state), the Senate questions – whether

this dimension of parliamentary democracy is sufficient, and whether

Art. 15 par. 1 of the Constitution of the Czech Republic is not de facto

rendered meaningless. In this regard the president, in his brief,

criticizes voting by a qualified majority even more emphatically,

although not in relation to doubts on the requisite involvement of the

Parliament of the Czech Republic in Union decision making, but in view

of concerns about preserving the sovereignty of the Czech Republic in

general.

 

169.

Article 69b par. 1 (now Art. 83 par. 1) of the Treaty on the

Functioning of the EU states that the European parliament and the

Council may, by ordinary legislative procedure, set forth by directive

the minimum rules for concerning the definition of crimes and penalties

in areas of exceptionally serious crime with a cross-border dimension

because of the nature or effect of these crimes or because of a special

need to suppress them on a common basis. It concerns these areas of

crime: terrorism, trafficking in human beings and sexual exploitation of

women and children, illicit drug trafficking, illicit arms trafficking,

money laundering, corruption, counterfeiting of means of payment,

computer crime and organized crime.

 

170.

However, the Senate basically disputes the third subparagraph,

according to which the Council may, on the basis of developments in

crime, adopt a decision identifying other areas of crime that meet the

criteria specified in this paragraph. However, it shall decide

unanimously after obtaining the consent of the European Parliament. The

Senate then also – in addition to the stated guarantee – basically

overlooked the protection provided to the Czech Republic by Art. 83 par.

3 of the Treaty on the Functioning of the EU; it indicates that if a

member of the Council believes that a draft directive would affect

“fundamental aspects of its criminal justice system,” it may ask the

European Council to handle the matter; the ordinary legislative

procedure is then suspended, and if a consensus is later reached … the

suspension of the ordinary legislative procedure is terminated. Thus, it

is basically not possible to apply Art. 83 par. 1, third subparagraph,

to the Czech Republic’s legal order without its consent. Here the

Constitutional Court agrees with the government’s opinion that, even

within the scope of competence of Art. 83 par. 1 of the Treaty on the

Functioning of the EU, domestic parliaments can fulfill their

preliminary review role under the relevant provisions of the Protocol on

Application of the Principles of Subsidiarity and Proportionality, and

that the purpose of this provision is not to arbitrarily expand the

Union’s competences, but to increase the ability to respond effectively

to threats of danger and to exceptionally dangerous crime, which can be

considered completely legitimate.

 

171.

For the foregoing reasons the Constitutional Court did not find Art. 83

par. 1 (69b par. 1) of the Treaty on the Functioning of the EU to be

inconsistent with the constitutional order of the Czech Republic.

 

172.

As regards the Senate’s doubts concerning expanding voting by a

qualified majority (Art. 48 par. 7) in relation to Art. 15 par. 1 of the

Constitution (“The legislative power … is vested in the Parliament”),

or the question of state sovereignty, we can refer to the conclusions

already expressed above (generally, point 87 of this judgment). Here it

is appropriate to again point out the ancient international law

principle of possible self-limitation by a sovereign, who alone is

authorized to consider the degree of limitation to which it exposes

itself in the international environment while respecting the principle

pacta sunt servanda. Thus, we can agree with the government that an

unavoidable consequence of transferring powers to an international

organization or institution is that the body whose powers were

transferred loses them in that extent, although it continues to exercise

all other powers that pertain to it in accordance with the

constitutionally defined separation of powers. Thus, the constitutional

requirement of Art. 15 par. 1 of the Constitution, that the legislative

power in the Czech Republic belongs to the Parliament, is not affected

in any way, nor is the sovereignty of the Czech Republic reduced below

an acceptable level.

 

173.

The Treaty of Lisbon transfers powers to bodies that have their own

regularly reviewed legitimacy, arising from general elections in the

individual member states. Moreover, the Treaty of Lisbon permits several

ways of involving domestic parliaments (the possibility for a

parliament, or one of its chambers, to directly express its lack of

consent, is one of the forms of participation by domestic parliaments).

Art. 12 of the Treaty on EU names them expressly as follows:

 

National Parliaments contribute actively to the good functioning of the Union:

 

(a)

through being informed by the institutions of the Union and having

draft legislative acts of the Union forwarded to them in accordance with

the Protocol on the role of national Parliaments in the European Union;

 

(b)

by seeing to it that the principle of subsidiarity is respected in

accordance with the procedures provided for in the Protocol on the

application of the principles of subsidiarity and proportionality;

 

(c)

by taking part, within the framework of the area of freedom, security

and justice, in the evaluation mechanisms for the implementation of the

Union policies in that area, in accordance with Article 70 of the Treaty

on the Functioning of the European Union, and through being involved in

the political monitoring of Europol and the evaluation of Eurojust's

activities in accordance with Articles 88 and 85 of that Treaty;

 

(d) by taking part in the revision procedures of the Treaties, in accordance with Article 48 of this Treaty;

 

(e) by being notified of applications for accession to the Union, in accordance with Article 49 of this Treaty;

 

(f)

by taking part in the inter-parliamentary cooperation between national

Parliaments and with the European Parliament, in accordance with the

Protocol on the role of national Parliaments in the European Union.

 

174.

The Constitutional Court thus concludes that the Treaty of Lisbon

reserves an important role to the domestic parliaments (including the

Parliament of the Czech Republic), the consequence of which is to

strengthen the role of individual member states; making the entire

system more understandable and clear is also not negligible. It is only

necessary to again point to the responsible role of relevant bodies of

the Czech Republic, especially the government, in the preparation and

adoption of a legal regulation that permits the full implementation of

these powers.

 

175.

For the foregoing reasons the Constitutional Court did not find that

expanding voting by a qualified majority under Art. 48 par. 7 in an

unconstitutional manner affected Art. 15 par. 1 of the Constitution or

the sovereignty of the Czech Republic under Art. 1 par. 1 of the

Constitution.

  

 

XVI.

 

176.

In the fourth point of the petition the Senate stated that, in addition

to the already cited transitional clauses and the flexibility clause,

the procedural steps set forth by the Treaty of Lisbon affect the

constitutional order in another respect. That is allegedly the

negotiation of international treaties under the proposed Art. 188l the

Treaty on the Functioning of the European Union (now Art. 216). Here –

in the Senates’ opinion – the grounds for concluding international

treaties in the name of the EU are expanded. Treaties are binding for

the EU and its member states, and are concluded by a decision of a

qualified majority in the Council. The Czech Republic thus need not

express consent with the treaty, and yet it is bound by it; the usual

ratification process does not take place at all, and thus also the

possibility for preliminary review of whether such treaties are

consistent with the constitutional order of the Czech Republic falls

away. According to the Senate, the question remains whether this

procedure is compatible with the text of Art. 49 and Art. 63 par. 1 let.

b) of the Constitution, and if there is room to apply these treaties

based on Art. 10 of the Constitution.

 

177. Article 216 (188l) of the Treaty on the Functioning of the EU reads:

 

1.

The Union may conclude an agreement with one or more third countries or

international organisations where the Treaties so provide or where the

conclusion of an agreement is necessary in order to achieve, within the

framework of the Union's policies, one of the objectives referred to in

the Treaties, or is provided for in a legally binding Union act or is

likely to affect common rules or alter their scope.

 

2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.

 

178.

Thus, in that point the Senate questions the negotiation of

international treaties under Art. 216 of the Treaty on the Functioning

of the EU (previously Art. 188l).

 

179.

Initially we must emphasize that the proposed Art. 216 (188l) of the

Treaty on the Functioning of the EU is a reaction to the fact that the

Treaty of Lisbon expressly assigns the Union legal subjectivity,

including the capacity to conclude international treaties (Art. 47 of

the Treaty on EU); the Union replaces the existing Community and

European Union (Art. 1 of the Treaty on EU as amended by the Treaty of

Lisbon). It is appropriate to point out that the contested provision

must also be read in connection with Article 3 par. 2 of the Treaty on

the Functioning of the EU, which the Senate does not expressly mention.

That article reads as follows: “The Union shall also have exclusive

competence for the conclusion of an international agreement when its

conclusion is provided for in a legislative act of the Union or is

necessary to enable the Union to exercise its internal competence, or in

so far as its conclusion may affect common rules or alter their scope.”

(Note: This provisions is evidently a response to the recent Opinion of

the Court of Justice – Opinion 1/03 of 7 February 2006, Lugano

Convention, European Court Reports p. I-1145 – which significantly

expanded the power of the EC to conclude international treaties in its

exclusive competence.)

 

180.

In its brief the government correctly pointed out, from a historical

viewpoint, that in the first phases of the European Economic Community

there was an assumption that, in accordance with the theory of limited

competence, the Communities have the competence to conclude

international treaties only if they are expressly authorized thereto in

the founding treaties. However, in time it became apparent that the

normative text of the founding treaties does not match the actual needs

of the Community and its member states; therefore, it was necessary to

find a way to make the Community’s activities more effective in relation

to third-party states, and to achieve greater harmony between the

competences that the Community has internally and those that it has in

external relations with third-party states.

 

181.

At present there is no doubt that the EC has international law subject

status and have entered into hundreds of international treaties. In the

present situation, European law expressly authorizes the Community (Art.

300 of the Treaty establishing the EC), and implicitly also the EU

(Art. 24 and 38 of the present Treaty on EU) to conclude treaties with

third-party states. These “external” treaties have a dual nature,

because they are components of international law, but – from the

viewpoint of the Union – they are also components of Community law (or

Union law), which they become through the European legal regulation to

which they are annexed; as regards the law of the Community, the rule is

that such international treaties are annexed to “directives.” In the

hierarchy of sources of EU law they have a status between primary and

secondary law, that is, they will take precedence before secondary law,

but not before primary law.

 

182.

The Constitutional Court believes that the Senate’s main arguments

basically rest on a not fully precise understanding of the existing

international law subjectivity of the EC and the EU, the legal position

of international treaties concluded in the competence of the Union, and

the transfer of individual competences of individual states to the EU.

Because international treaties within the competence of the Union will

be concluded on the basis of Art. 216 et seq. of the Treaty on the

Functioning of the EU (as amended by of the Treaty of Lisbon), or at

present are concluded on the basis of Art. 300 of the Treaty

establishing the EC, we can not speak of Art. 49 being in conflict with

Art. 63 par. 1 let. b) of the Constitution of the Czech Republic, or

with Art. 10 of the Constitution, as the Senate believes; these

provisions of the Czech constitutional order do not affect the

negotiation of such treaties concluded by the Union, nor on their

application in the Czech constitutional order. (This is also evident

from the arguments in the following paragraph of this judgment.) This

conclusion does not apply only to mixed treaties, which involve a

combination of the competences of the Union and member states (typically

a treaty that contains both matters in the competence of the Union and

matters in the competence of the member states); these, however, are

concluded either under the regime provided by the Treaty on the

Functioning of the EU, or by the regime assumed by the member states,

and thus in the Czech Republic requiring a ratification process

consistent with the Constitution.

 

183.

In this regard we can add that Art. 216 can not be interpreted as a

competence norm that would extend the competences of the Union; on the

contrary, Article 216 only states that the Union, as part of its

competences, simply concludes international treaties. The competences

are not defined by Art. 216, but by specific provisions, especially of

the Treaty on the Functioning of the EU. Thus, there is no significant

change compared to the existing legal state of affairs; the only more

substantial difference is that the Union will also acquire the ability

to conclude international treaties in the area of the “second” and

“third” pillar, introduced by the Maastricht Treaty.

 

(However,

this too has already basically happened, because the existing Treaty on

EU implicitly assumes it in Art. 24 and 38. Thus, we can share the

opinion of the expert opinion of the House of Lords that the express

assignment of legal subjectivity to the Union and the related Art. 216

are more of a declaratory than a normative character. Cf. House of

Lords: The Treaty of Lisbon: an impact assessment. Volume I, Report. 13

March 2008.pp. 30 et seq., available at

www.parliament.the-stationery-office.com. On the other hand, we

can grant that, in view of the abovementioned Opinion of the Court of

Justice 1/03 it is already clear that the EU can exercise more powers

externally than it has internally; for details, see, e.g., Bříza, P.:

Evropský soudní dvůr: Posudek k nové Luganské úmluvě značně posiluje

vnější pravomoci Společenství [The European Court of Justice: The

Opinion on the New Lugano Convention Strengthens the Community’s

External Powers], Právní rozhledy [Legal Perspectives] no. 10/2006, pp.

385–390, p. 389. In this regard – in the event of a more rigorous review

– this would involve evaluation of criteria for the limits of

competences entrusted to the EU in the area of external relationships

and review of the exercise thereof.)

 

184.

Thus, the European Union can exercise conferred competences both

internally and externally; the text of Article 49 or 63 of the

Constitution, on which the Senate relies, do not create an

insurmountable obstacle to the transfer of powers in the area of

concluding international treaties. Neither international law

subjectivity nor the expanded ability to conclude international treaties

makes the Union some sort of new, special subject, endowed with

disproportionate competences to the detriment of the member states;

anyway, other, much less significant international organizations also

have legal subjectivity and the right to conclude international

treaties, whether of the cooperative or integrative type. The border for

the transfer of powers in this area is set by limits that the

Constitutional Court has determined several times above; they are

preservation of the key attributes of state of sovereignty, which is not

fundamentally affected either by the given legal state, or after the

possible entry into force of the Treaty of Lisbon, of course, on the

assumption that the relevant bodies of the EU will responsibly observe

the framework defined by the treaty and will not exceed their

competences; that, however, is a question of the subsequent application

of the Treaty of Lisbon in practice. As the government also noticed, in

this regard the Treaty of Lisbon to a great extent provides more

specific detail and codifies what was already, as a result of long-term

development, previously developed and settled in the case law of the

European Court of Justice; like every codification, this one too is

supposed to contribute to the greater legal certainty of the parties

affected by legal norms, i.e. not only the bodies of the EU, but of the

individual member states. This must be viewed positively, from the

domestic viewpoint as well, specifically in view of the principles

contained in Art. 1 par. 1 of the Constitution.

 

185.

For the foregoing reasons the Constitutional Court did not find Art.

216 (188l) of the Treaty on the Functioning of the EU to be inconsistent

with the constitutional order of the Czech Republic.

 

186.

On the other hand, however, we must emphasize that Article 216, because

of its vagueness, is on the borderline of compatibility with the

requirements for normative expression of a legal text that arise from

the principles of a democratic, law-based state. The Constitutional

Court itself – considering, elsewhere, the content of transfer of powers

under Art. 10a of the Constitution – concluded that this transfer must

be delimited, recognizable, and sufficiently definite. It is precisely

the “definiteness” of a transfer of powers to an international

organization that is quite problematic in Article 216 of the Treaty on

the Functioning of the EU; it is obvious at first glance that its

formulations (… “or” … “either” … “or” … “or … “or” …) “vague”, and

difficult to predict. Here, for comparison, we can mention, for example,

the generally known settled case law of the European Court of Human

Rights, which – as regards the term “law” – requires that it be

accessible, precise, and with predictable consequences. Even though the

Constitutional Court recognizes that the requirements for precision in

an international treaty (obviously) can not be interpreted as strictly

as a in the case of a statute, it nevertheless concludes that an

international treaty must also meet the fundamental elements of

precision, definiteness and predictablility of a legal regulation.

However, with Article 216 of the Treaty on the Functioning of the EU is

quite disputable; nevertheless it does not go so far that the

Constitutional Court could and should declare – only as regards the

above-mentioned normative expression of the given text – that Article

216 is inconsistent with the constitutional order of the Czech Republic.

 

 

XVII.

 

187.

In the fifth point of the petition the Senate addressed the issue of

the Charter of Fundamental Rights of the European Union. It stated that

the strengthening of the powers of European Union bodies, which

represent the supra-national level of decision making, is accompanied by

the introduction of a unified legal subjectivity of the European Union,

and its functioning thus acquires a completely new legislative

framework in the sphere of the current second and third pillars,

primarily in the areas of political cooperation. Of course, within this

framework (which, in the sphere of the existing third pillar allegedly

fundamentally breaks down the principle of unanimous decision making)

there may be conflict with domestic standards of protection of

fundamental rights more frequently than heretofore. Although the

European Union, under the proposed Art. 6 par. 2 of the Treaty on EU, is

to accede to the European Convention for the Protection of Human Rights

and Fundamental Freedoms, the same article also states in paragraph 1

that “[t]he Union recognises the rights, freedoms and principles set out

in the Charter of Fundamental Rights of the European Union of 7

December 2000, as adapted at Strasbourg, on 12 December 2007, which

shall have the same legal value as the Treaties.” In the Senate’s

opinion, this indirect reference to the Charter of Fundamental Rights of

the European Union (the “Charter”) can result in lack of clarity about

its status, just like the fact that the Charter contains not only

directly enforceable rights, but also principles or aspirations, with a

clear systematic organization. In a situation where the Union does not

have, and can not have, a specialized body, a court that handles

“constitutional complaints,” that would interpret Charter provisions in

particular cases of violation of civil rights, its role is allegedly not

clear. The Senate is not sure whether the Charter is protection for

citizens’ rights, or more an interpretative tool, in light of which the

powers of Union bodies are interpreted or the interpretation of

objectives pursued by the Union is strengthened, whether it strengthens

or, on the contrary, weakens the authority of domestic institutions that

interpret the national catalogs of human rights, always in connection

with the individual tradition of the political nations of Europe, what

procedural consequences (extending or, on the contrary, speeding up the

enforceability of a right) this step has in relation to the jurisdiction

of the European Court of Human Rights, and whether, as a result of this

fact, the standard of domestic protection of human rights enshrined in

the Charter of Fundamental Rights and Freedoms can be strengthened or

leveled. In this regard the president stated in his brief that in his

opinion the EU Charter of Human Rights makes sense only if the Union

feels itself to be a state sui generis, or a nascent state of a federal

type, which is then itself bound by international law to observe and

protect human rights.

 

188.

Thus, the Senate basically questions the very existence and character

to the Charter of Fundamental Rights of the Union, as well as the issues

closely related to this topic.

 

189. Article 6 of the Treaty on European Union provides:

 

1.

The Union recognises the rights, freedoms and principles set out in the

Charter of Fundamental Rights of the European Union of 7 December 2000,

as adapted at Strasbourg, on 12 December 2007, which shall have the

same legal value as the Treaties.

 

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

 

The

rights, freedoms and principles in the Charter shall be interpreted in

accordance with the general provisions in Title VII of the Charter

governing its interpretation and application and with due regard to the

explanations referred to in the Charter, that set out the sources of

those provisions.

 

2.

The Union shall accede to the European Convention for the Protection of

Human Rights and Fundamental Freedoms. Such accession shall not affect

the Union's competences as defined in the Treaties.

 

3.

Fundamental rights, as guaranteed by the European Convention for the

Protection of Human Rights and Fundamental Freedoms and as they result

from the constitutional traditions common to the Member States, shall

constitute general principles of the Union's law.

 

190.

By way of introduction, it is appropriate to state that the purpose of

enshrining protection of human rights at the European level was the

effort to achieve better protection of individuals in relation to the

activities, which are supposed to be unified, more clearly organized and

not markedly different under the individual national constitution. We

must emphasize that the Charter in progress was already, on the basis of

its assignment, conceived not as a completely new document, but more as

a text that to a large extent codified and specified in more detail the

already existing legal situation. Thus, the reference to the presently

non-binding Charter of Fundamental Rights of the European Union of 7

December 2000 /as amended on 12 December 2007/ (Art. 6 par. 1 of the

Treaty on EU as amended by Art. 1 point 8 of the Treaty of Lisbon) is

thus not so revolutionary as it might seem at first glance. This catalog

of human rights is part of primary European law (Art. 6 par. 1); the

Charter is not directly part of the text of the Founding Treaties, but

is raised to the level of primary law by reference, as stated above.

There is nothing unusual about this, and certainly nothing inconsistent

with the constitutional order of the Czech Republic; it is a possible

legislative method, also used in domestic law, and so doubts in this

regard are not appropriate (cf. Article 112 par. 1 of the Constitution

of the Czech Republic).

 

191.

As regards the (future) status of the Charter itself, it is evident

from the foregoing text that the formulation in Article 6 par. 1 of the

Treaty on EU, that the Charter has the same legal force as the Treaties,

must undoubtedly be interpreted to mean that the Charters is an

integral part of them. If the Treaty of Lisbon enters into force, the

Charter would, in the first instance, bind Union bodies, and only then,

indirectly, in the application of Union law, whether direct or indirect,

also bind Czech bodies. The provisions of the Charter, observing the

principle of subsidiarity, are intended for the bodies, institutions and

other subjects of the Union, and for member states, of course only if

they apply Union law (Art. 51 par. 1 of the Charter). This principle

also corresponds to current case law, and the application of unwritten

human rights principles by the Court of Justice; states are bound by

this European standard of human rights when Community law is applied

(cf., e.g., Judgment of the Court of Justice of 13 April 2000, Karlsson

and others, C-292/97, Recueil, p. I-2737, par. 37, under which the

requirements flowing from the protection of fundamental rights in the

Community legal order are also binding on Member States when they

implement Community rules). It follows logically from this principle

that the Charter does not expand the area of competences of Union law

beyond the framework of Union competences (Art. 51 par. 2 of the

Charter, Art. 6 par. 1 of the Treaty on EU). This is also reflected by

recent case law, e.g. in the “Red Star case” (Order of the Court of

Justice of 6 October 2005, Vajnai, C-328/04, European Court Reports, p.

I-8577), which involved the preliminary question, whether a ban on

Communist symbols, enforced in Hungary with criminal penalties, is

inconsistent with European unwritten human rights principles, this

question was considered obviously inadmissible, not because today’s EU

law does not recognize freedom of speech, but because Community law does

not function in that area, and it is thus fully up to Hungary to

regulate the ban of symbols that are unacceptable to it. Analogously.

cf. the Judgment of 29 May 1997, Kremzow, C-299/95, Recueil, p. I-2629,

where a defendant accused of murder attempted to rely on the Community

level of protection of human rights, and argued that a sentence would

affect his “Community” freedom of movement. The Court of Justice also

rejected this argument on the preliminary issue from the Austrian court,

because European law was not applicable to the matter in any way. Even

if the Charter enters into force, this changes nothing on the

inadmissibility of such preliminary questions, because Art. 11 of the

Charter is not applicable to such cases.

 

192.

In this regard we can only point out that at the present time, given

the lack of a written (binding) catalog of human rights in the framework

of the EU, it is the Court of Justice that applies (protects), at the

Union level, human rights created or recognized by the Court in the form

of unwritten common constitutional principles of member states, that

is, in view of the domestic constitutional systems, and the system for

protecting human rights conceived by the European Court of Human Rights.

Note: The Court of Justice itself refers to the Charter – cf. e.g., the

judgment of 27 June 2006, Parliament v Council, C-540/03, European

Court Reports p. I-5769, point 38; decision of 3 May 2007, Advocaten

voor de Wereld, C-303/05, European Court Reports p. I-3633, point 46,

and others.

 

193.

The Charter itself contains a catalog of fundamental rights and

freedoms (concentrated in Title I to Title VI) and general provisions

governing the interpretation and application of them (Title VII). The

standard of protection of human rights and fundamental freedoms in the

European Union must be evaluated, along with the EU Charter, also in

view of other related provisions of European law. Article 6 par. 2 of

the Treaty on EU provides that the Union shall accede to the European

Convention for the Protection of Human Rights and Fundamental Freedoms.

Under the third paragraph of that article, fundamental rights, as

guaranteed by the European Convention for the Protection of Human Rights

and Fundamental Freedoms and as they result from the constitutional

traditions common to the Member States, shall constitute general

principles of the Union’s law. This second paragraph is important

primarily in view of the formal side of the standard of protection.

Materially, the fundamental rights guaranteed by the Treaty are

contained in the system of Union protection on the one hand by their

being declared to be general principles of Union law, and on the other

by their role in the case law of the Court of Justice. As a result of

acceding to the Treaty, the Union bodies – including the Court of

Justice – will become subject to review by the European Court of Human

Rights. In terms of the standard of protection based on the

constitutional order of the Czech Republic we can say that including the

European Court of Human Rights in the institutional framework for

protection of human rights and fundamental freedoms in the European

Union is a step which only strengthens the mutual conformity of these

systems.

 

194.

The third paragraph of Article Six concerns the material element of the

standard of protection of human rights and fundamental freedoms. In

this regard as well, we can say, within the framework of abstract

review, that this provision reflects the requirements of the domestic

standard, because they both come from the same framework of values. This

is also strengthened by the Charter of Fundamental Rights of the EU

itself, whose Article 52 par. 3 and 4 provides: “In so far as this

Charter contains rights which correspond to rights guaranteed by the

Convention for the Protection of Human Rights and Fundamental Freedoms,

the meaning and scope of those rights shall be the same as those laid

down by the said Convention. This provision shall not prevent Union law

providing more extensive protection. In so far as this Charter

recognises fundamental rights as they result from the constitutional

traditions common to the Member States, those rights shall be

interpreted in harmony with those traditions.” We must also take into

consideration Article 53 of the Charter of Fundamental Rights of the EU,

under which, “Nothing in this Charter shall be interpreted as

restricting or adversely affecting human rights and fundamental freedoms

as recognised, in their respective fields of application, by Union law

and international law and by international agreements to which the Union

or all the Member States are party, including the European Convention

for the Protection of Human Rights and Fundamental Freedoms, and by the

Member States' constitutions.” We can only comment that this principle

is key as regards limiting the reach of EU law, and thus also limiting

the transfer of state sovereignty to the EU.

 

195.

Thus, if the Charter – as already stated – recognizes fundamental

rights that result from the constitutional traditions common to the

member states, those rights must be interpreted in harmony with those

traditions (Art. 52 par. 4). Here there is a certain change compared to

the present, which reflects the fact that a written (binding) catalog of

human rights is being newly introduced. Whereas today the

constitutional traditions common to the member states are a material

source of unwritten human rights, after the Treaty of Lisbon enters into

force, that source will be the text of the Charter alone, and the oral

traditions will have the character of a source used to assist

interpretation, in an obligatory comparative method of interpretation.

 

196.

As regards possible conflict between the standard of protection of

human rights and fundamental freedoms ensured by the constitutional

order of the Czech Republic and the standard ensured in the European

Union, it is appropriate to point out that protection of fundamental

rights and freedoms falls in the area of the “material core” of the

Constitution, which is beyond the reach of the constitutional framers

(cf. Pl. ÚS 50/04). If, from this point of view, the standard of

protection ensured in the European Union were unsuitable, the bodies of

the Czech Republic would have to again take over the transferred powers,

in order to ensure that it was observed (cf. the abovementioned

judgment in the matter of sugar quotas, file no. Pl. ÚS 50/04).

 

197.

However, at the abstract level it is difficult to evaluate whether

individual rights and freedoms ensured in these systems are in harmony

with each other, if these rights are not formulated absolutely clearly

and in detail. Only ten is it possible to identify a possible lack of

harmony between them and possibilities for resolving it. However, the EU

Charter obviously contains no such provisions, nor does the Senate, as

the petitioner, express any doubts in that regard. On the contrary, the

content of the catalog of human rights expressed in the EU Charter is

fully comparable with the content protected in the Czech Republic on the

basis of the Czech Charter of Fundamental Rights and Freedoms, as well

as the Convention for the Protection of Human Rights and Fundamental

Freedoms. In this regard we can say that the EU Charter is in harmony

not only with the material core of the Constitution, but also with all

provisions of the constitutional order. In any case, the majority of

rights and freedoms ensured by the present systems of protection,

according to the dominant theories (cf., e.g., Alexy, R.: A Theory of

Constitutional Rights, Oxford University Press 2002; a comparison of

German, European and American methodology is found in Kumm, M.:

Constitutional Rights as Principles: On the Structure and Domain of

Constitutional Justice, 2 International Journal of Constitutional Law

574, 2004) and their practical application by the most important

constitutional courts are open to comparison based on analysis of the

proportionality of interference in one guaranteed right to the benefit

of another right. A key factor here is not only the formulation of the

affected right, but much more so the institutional system that ensures

protection of it. In this regard we can also point to the Constitutional

Court’s judgment in the matter of a decree on medicines (judgment file

no. Pl. ÚS 36/05, promulgated as no. 57/2007 Coll.), where the

Constitutional Court expressly stated that the manner in which the

European Court of Justice interprets the principles corresponding to the

fundamental rights and freedoms can not remain without a response in

the interpretation of domestic law and its consistency with

constitutionally guaranteed rights. The European Court of Human Rights

had a similar opinion recently in the Bosphorus matter (decision of the

European Court of Human Rights in the matter Bosphorus Hava Yollari

Turizm ve Ticaret Anonim Şirketi v. Ireland, no. 45036/98 of 30 June

2005). For these reasons, in the present situation, we can consider the

European institutional guarantee of the standard of protection of human

rights and fundamental freedoms to be compatible with the standard

ensured on the basis of the constitutional order of the Czech Republic.

In any case, we can also agree with the government’s opinion that, even

after the Treaty of Lisbon enters into force, the relationship between

the European Court of Justice and the constitutional courts of member

states will not be placed in a hierarchy in any way; it should continue

to be a dialog of equal partners, who will respect and supplement each

other’s activities, not compete with each other.

 

198.

In this regard the Constitutional Court states that the leading

principle in the area of human rights and fundamental freedoms is the

most effective possible protection of the individual, together with the

clear enforceability of the rights directly on the basis of catalogs of

human rights, usually without the intermediation of other legal texts of

lower legal force. Contemporary democratic Europe, in the period after

World War II and after the fall of totalitarian regimes in the 1990s,

reached an exception level of protection of human rights; The EU Charter

in no way adds problems to this system, but on the contrary – in the

area of its competence – suitably expands it, and the individual, for

whose benefit the entire structure was built, can only profit from it.

Potential future conflicts and disputes about interpretation, which can

arise in any area of human activity, are not fundamental from this point

of view; the important thing is the overall purpose, based on timeless

values that are of the same or similar nature, whether guaranteed on the

domestic, European, or international level.

 

199.

It is also relevant to note here that Article 51 of the Charter

expressly provides that it does not extend the field of application of

Union law beyond the powers of the Union or establish any new power or

task for the Union, modify powers and tasks as defined in the Treaties.

Its provisions are intended (while observing the principle of

subsidiarity) for the bodies, institutions and other subjects of the

Union, as well as for the member states, exclusively if they are

applying Union law. Therefore, they respect the rights, observe the

principles and support their application in accordance with their

powers, while preserving the limits of the powers that are conferred on

the Union in the treaties. In this regard, the Constitutional Court

notes that the EU Charter thus does not directly apply to the areas

where the bodies of the Czech Republic have not transferred their powers

to the European Union, and the standard of protection based on the

constitutional order of the Czech Republic is fully autonomous and

independent of the Union standard in this regard.

 

200.

As regards the Senate’s other objections, we can only note that it is

not the role of the Constitutional Court to evaluate the Charter in

terms of criteria other than those that were defined above; thus, it is

not possible to comment on the suitability of enshrining certain rights

and freedoms (which the Senate describes as “principles or aspirations,”

without specifying in more detail the relevant provisions of the EU

Charter) or to address their allegedly not fully systematic

organization. We can respond similarly to the brief from the president,

according to which the EU Charter makes sense only if the Union feels

itself to be a nascent state of a federal type, which is then bound by

international law to observe and protect human rights. The

Constitutional Court has already addressed the issue of the federal

character of the European Union in other points of this judgment; we can

only add that there is nothing unusual about the fact that other

international organizations also exist, with their own catalogs of

fundamental rights and freedoms. The most prominent of them is the one

to which the president himself refers; that is the Council of Europe,

with its European Convention for the Protection of Human Rights and

Fundamental Freedoms, which, however, unquestionably does not make it a

federal-type state sui generis.

 

201.

The Senate also raises the question whether the Charter is protection

for citizens’ rights, or more an interpretative tool, in light of which

the powers of Union bodies are interpreted or the interpretation of

objectives pursued by the Union is strengthened. Here the Constitutional

Court agrees with the opinion in the government’s brief, that it is

obvious that these two functions are not mutually exclusive; the EU

Charter is supposed to fulfill both functions in parallel, protect the

individual and set limits for the exercise of the powers of EU bodies,

or the bodies of a member state when applying EU law.

 

202.

Finally, the Senate considers whether the existence of the Charter

means a strengthening of “leveling” of the standard of domestic

protection of human rights under the Charter of Fundamental Rights and

Freedoms. However, such a concern is not appropriate. Constitutional

courts traditionally take a pragmatic approach in the question of

conflict between various sources of fundamental human rights and

freedoms, based on the meaning and purpose of a particular legal

institution, which, in the area of human rights, is, in particular,

protection of an individual against unconstitutional interference by the

state. Therefore, in a case of conflict of sources regulating an

individual’s rights and freedoms, they proceed according to the source

that gives the individual a higher standard of protection.

 

203.

In this regard, the Constitutional Court considers it appropriate to

point out that most modern constitutions in European democratic states

are based more or less on natural law theory, and therefore recognize

that the state is not entitled to unilaterally withdraw rights that have

already been recognized (cf. also point 105). Here the Constitutional

Court only adds that the state is also not the provider (donor) of

rights based on natural law that it might “recognize.” Every individual

has these rights regardless of an act of the state, which can only

subscribe to observing and guaranteeing these rights; however, it

acquires thereby the most important quality of a democratic, law-based,

constitutional state, which bows down before values that are inherent,

inalienable, non-prescriptible, and not subject to repeal.

 

204.

For all the foregoing reasons the Constitutional Court did not find

incorporation of the Charter of Fundamental Rights of the EU into the

area of European primary law to in any way cast doubt upon or

problematize the standard of domestic protection of human rights and to

thereby be inconsistent with the constitutional order of the Czech

Republic.

 

 

XVIII.

 

205.

In the sixth point of the petition the Senate stated that, last but not

least, there are the definition of the status of the Charter and the

possibilities for interpretation necessary for grasping the newly

formulated Art. 1a of the Treaty on EU, which expands the values on

which the Union is founded, and at the same time inclusion of standards

of the European social model (“in a society in which pluralism,

non-discrimination, tolerance, justice, solidarity and equality between

women and men prevail”). According to the Senate, the question of

interpretation of this provision is the more significant because serious

violation of the cited values can lead to suspending the rights arising

to a particular member state from the Treaty. A proposal submitted by a

mere 1/3 of member states, the European Parliament, or the European

Commission against a member state cold allegedly create political

pressure leading to changes in the domestic legal order. Therefore the

Senate submits for evaluation whether the formulation of this provision

is consistent with the fundamental characteristic of the Czech Republic,

contained in Art. 1 par. 1 and with Art. 2 par. 1 of the Constitution

(the principle of the sovereignty of the people).

 

206. Article 1a (now Article 2) of the Treaty on EU reads:

 

The

Union is founded on the values of respect for human dignity, freedom,

democracy, equality, the rule of law and respect for human rights,

including the rights of persons belonging to minorities. These values

are common to the Member States in a society in which pluralism,

non-discrimination, tolerance, justice, solidarity and equality between

women and men prevail.

 

207. Article 7, to whose content the Senate refers, although it does not refer to it expressly, reads:

 

1.

On a reasoned proposal by one third of the Member States, by the

European Parliament or by the European Commission, the Council, acting

by a majority of four fifths of its members after obtaining the consent

of the European Parliament, may determine that there is a clear risk of a

serious breach by a Member State of the values referred to in Article

2. Before making such a determination, the Council shall hear the Member

State in question and may address recommendations to it, acting in

accordance with the same procedure.

 

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

 

2.

The European Council, acting by unanimity on a proposal by one third of

the Member States or by the Commission and after obtaining the consent

of the European Parliament, may determine the existence of a serious and

persistent breach by a Member State of the values referred to in

Article 2, after inviting the Member State in question to submit its

observations.

 

3.

Where a determination under paragraph 2 has been made, the Council,

acting by a qualified majority, may decide to suspend certain of the

rights deriving from the application of the Treaties to the Member State

in question, including the voting rights of the representative of the

government of that Member State in the Council. In doing so, the Council

shall take into account the possible consequences of such a suspension

on the rights and obligations of natural and legal persons.

 

The obligations of the Member State in question under this Treaty shall in any case continue to be binding on that State.

 

4.

The Council, acting by a qualified majority, may decide subsequently to

vary or revoke measures taken under paragraph 3 in response to changes

in the situation which led to their being imposed.

 

5.

The voting arrangements applying to the European Parliament, the

European Council and the Council for the purposes of this Article are

laid down in Article 354 of the Treaty on the Functioning of the

European Union.

 

208.

The Constitutional Court states that these values are fundamentally in

harmony on which the material core of the Czech Republic’s

constitutional order is built; these are basically the most important

rules and principles, largely of a natural law original, whose

protection is the most central role of a state which has committed

itself to being a democratic and law-based state. In the preambles to

the Charter of Fundamental Rights and Freedoms and to the Constitution

the constitutional framers expressed an unreserved commitment to these

values, on which our constitutionalism rests; among other things, they

recognized the inviolability of the natural rights of a human being,

relating to generally shared values of humanity and a resolve to protect

and develop the Czech Republic in the spirit of the inviolable values

of human dignity and freedom, together with the will to join the states

that honor these values, expressly as a member of the family of European

and world democracies. In terms of the actual text of the Constitution

and of the Charter of Fundamental Rights and Freedoms, key provisions

are Art. 1 par. 1 of the Constitution and Art. 1 of the Charter of

Fundamental Rights and Freedoms, which indicate that the Czech Republic

is a sovereign, democratic state governed by the rule of law, founded on

respect for inherent, inalienable, non-prescriptible, and

non-repealable rights of human beings who are free and equal in dignity

and rights. The rights and freedoms of minorities, generally or from a

national or ethnic point of view, are covered in Art. 6 of the

Constitution (which provides the obligation to take them into

consideration), as well as in Chapter Three of the Charter of

Fundamental Rights and Freedoms. The prohibition of discrimination is

guaranteed in Art. 3 of the Charter of Fundamental Rights and Freedoms,

the principle of a pluralistic democracy in Art. 2 par. 1, the principle

of solidarity primarily in the passage on economic and social rights in

the Charter of Fundamental Rights and Freedoms; under Art. 5 of the

Constitution the political system itself is founded on the free

competition of political parties that renounce force as a means of

promoting their interests and respect fundamental democratic principles.

For completeness we can add that virtually the same provision as the

newly-formulated Art. 2 of the Treaty on EU exists in the current Art. 7

of the Treaty on EU, which refers to the principles contained in Art. 6

par. 1, under which the Union is founded on the values of freedom,

democracy, respect for human rights, the fundamental rights, and a

law-based state, principles that are common to the member states. This

is only further evidence of the fact that these values have had a

constitutive character for the EU for a long time.

 

209.

Thus, the Constitutional Court believes it is completely evident that

in this regard the Treaty of Lisbon is consistent with the untouchable

principles protected by the Czech constitutional order and that European

law is based on fundamental human and democratic values, common to and

shared by all EU states. In this regard it is appropriate to point out

that, beginning 1 May 2004, i.e. after the Treaty on Access of the Czech

Republic to the EU, Art. 1 par. 2 of the Constitution also acquired new

meaning in relation to observing the obligations that arise for the

Czech Republic from its membership in the EU. Thus, if the Senate points

to the opportunity to use the regime of the Treaty of Lisbon if the

Czech Republic seriously violates the values defined in Article 2 of the

Treaty on EU, we can only state that such violation would

simultaneously mean violation of the values on which the materially

understood constitutionality of the Czech Republic rests; the

Constitutional Court itself, as well as domestic general courts, within

their jurisdiction, would, in the first place, have to provide the

maximum possible protection to that. We must also see that the term “the

people” as a source of all state power (Art. 2 par. 1 of the

Constitution) can not replace or be replaced by the sovereignty of the

Czech Republic as a state, of which Article 1 par. 1 of the Constitution

speaks, on which the petitioner especially relies. In a modern,

democratic, law-based state, state sovereignty is not an aim in and of

itself, in isolation, but is a means to fulfilling the abovementioned

fundamental values, on which the construction of a constitutional,

law-based sate stands. Therefore, we can agree with the government of

the Czech Republic that the opportunity to suspend the rights that arise

to a member state from the Treaties can not mean a violation of the

fundamental characteristic of the Czech Republic as a sovereign, unitary

and democratic state governed by the rule of law under Art. 1 par. 1 of

the Constitution, or the principle of the sovereignty of the people

enshrined in Art. 2 par. 1 of the Constitution, because this is a

penalty only vis-à-vis a member state that violates the values on which

the European Union is founded; these values, as stated above, are also

among the fundamental principles protected by the Constitution of the

Czech Republic. If the Czech Republic observes its own constitutional

order, suspension of the rights arising to it from membership in the EU

does not come into consideration. Therefore, we can conclude that the

existence of these values at the EU level, as well as measures to

protect them, are, on the contrary, evidence that reinforces the

arguments that the two systems, domestic and Union, are mutually

compatible and support each other in the most important area, concerning

the very essence of law and justice.

 

210.

For the foregoing reasons the Constitutional Court did not find Art. 2

and Art. 7 of the Treaty on EU to be inconsistent with the

constitutional order of the Czech Republic.

 

 

XIX.

 

211.

With the foregoing interpretation, the Constitutional Court responded

to the most essential objections and doubts that the Senate of the

Parliament of the Czech Republic, as an authorized petitioner, stated

against specifically named articles of the Treaty of Lisbon in view of

the Czech constitutional order. However, the Constitutional Court also

reflected the arguments of the president contained in his brief, cited

in detail above, even though he is not a petitioner in the proceeding.

These arguments are of two kinds. Some of them agree or overlap with the

Senate’s petition, and therefore the Constitutional Court responded to

them within the analysis of the individual points of the Senate’s

petition. Others of the president’s arguments are either supplemental to

or deviations from the Senate’s petition; as regards these, the

Constitutional Court mentioned them and discussed them briefly. All this

is, in any case, given by the fact that both the Senate and the

president relatively precisely identified those provisions of the Treaty

of Lisbon that could in eventum actually be disputed or problematic in

terms of the Czech constitutional order.

 

212.

The president’s brief takes a stronger position – beyond the framework

of the Senate’s petition – insofar as it asks that the Constitutional

Court evaluate the very manner of approving the Treaty of Lisbon; the

president inclines to the opinion that a referendum should be held, as

with the accession treaty. Although the president is not the petitioner

in this proceeding – as was already stated – in the Constitutional

Court’s opinion it would not be appropriate to ignore this request.

However, the president’s request goes beyond the limits of possible

review of an international treaty as foreseen by Article 87 par. 2 of

the Constitution. The Constitutional Court could review the manner of

approving the Treaty of Lisbon only if that were expressly provided by a

provision of the Constitution, which the constitutional framers would

have to add, similarly as they did in the case of the review of the

referendum on the Czech Republic’s accession to the European Union by

adding Article 87 par. 1 let. l), m). Otherwise, such a referendum could

be held ad hoc – which was a question of an entirely political nature –

which, however, the Czech Republic did not do in the case of ratifying

the Treaty of Lisbon. Therefore, we can not consider that, if the Treaty

of Lisbon changed (indirectly amended) the Treaty on Accession of the

Czech Republic to the European Union, constitutional Act no. 515/2002

Coll., on a Referendum on the Accession of the Czech Republic to the

European Union should also implicitly apply to this (Lisbon) treaty. In

this regard a referendum was not obligatory, and the possible review of

the process itself of approving the Treaty of Lisbon is not within the

Constitutional Court’s competence.

 

213.

During the Constitutional Court’s hearing on 25 November 2008 the

president orally added to his brief (points 57-64). The Constitutional

Court states that – in terms of content – it has basically responded to

the president’s arguments in the foregoing parts of this judgment.

 

214.

For completeness, the Constitutional Court states that it was not

necessary to respond in more detail to the brief from the government of

the Czech Republic, because the government largely argued in favor of

the Treaty of Lisbon being consistent with the constitutional order,

which was also the Constitutional Court’s conclusion; however, as is

obvious from the foregoing, in some places in the judgment the

Constitutional Court nevertheless – or perhaps precisely because of that

– considered it appropriate to point out an opinion where it either

completely agreed with the government, or which the government expressed

but in slightly different words.

 

 

XX.

 

215.

Thus, the Constitutional Court summarizes that the review it conducted

in this matter concentrated on those provisions of the Treaty of Lisbon,

where the petitioner expressly contested their consistency with the

Constitution, and presented arguments contained in its petition, to

which the Constitutional Court responded as stated above. The

Constitutional Court included in its review all provisions of the Treaty

of Lisbon, whose consistency with the constitutional order the

petitioner contested in a reasoned manner – and which the Constitutional

Court considers to be normatively new – although we can admit that in

some aspects they might only replicate already existing norms of

European law, in view of the Treaty on Accession of the Czech Republic

to the European Union, already ratified and fully applicable in the

Czech Republic. A related issue then was determining the appropriate

point of reference for review of whether the Treaty of Lisbon is

consistent with the Constitution. In this case the Constitutional Court

used as the point of reference the constitutional order of the Czech

Republic as a whole, not only its so-called material core, for reasons

that it also explained in detail above; it gave priority to a

comprehensive review, although in the framework of the constitutional

order the material core of the Constitution – i.e. the essential

requirements of a democratic, law-based state, amendment of which is

impermissible – still played a key role.

 

216.

The Constitutional Court interpreted the principles of the

constitutional order, including the material core of the Constitution,

in the context of the Constitution as a whole. It thus clearly

subscribed to the idea of European responsibility and appurtenances,

which the framers of the Czech constitution expressed. (The government

of the Czech Republic also did this.) It reached the conclusion that the

Treaty of Lisbon changes nothing on the fundamental conception of

existing European integration, and that even if the Treaty of Lisbon

enters into force, the Union will remain a unique organization of an

international law nature. In terms of our constitutional law, the

Constitution (and the Czech constitutional order generally) remains the

fundamental law of the state; as regards the Czech legal order and

European law, they are relatively independent and autonomous systems.

The Constitutional Court remains the supreme protector of Czech

constitutionality, including against possible excesses by Union bodies

or European law, which also clearly answers the contested issue of the

sovereignty of the Czech Republic; if the Constitutional Court is the

supreme interpreter of the constitutional regulations of the Czech

Republic, which have the highest legal force on Czech territory, it is

obvious that Art. 1 par. 1 of the Constitution can not be violated. if

European bodies interpreted or developed EU law in a manner that would

jeopardize the foundations of materially understood constitutionality

and the essential requirements of a democratic, law-based state that

are, under the Constitution of the Czech Republic, seen as inviolable

(Art. 9 par. 2 of the Constitution), such legal acts could not be

binding in the Czech Republic. In accordance with this, the Czech

Constitutional Court also intends to review, as ultima ratio, whether

the legal acts of European bodies remain within the bounds of the powers

that were provided to them. In this regard the Constitutional Court

basically agreed with certain conclusions of the German Federal

Constitutional Court, stated in its Maastricht decision (see above),

under which the majority principle, per the imperative of mutual regard,

arising from loyalty to the Community, has its limits in the

constitutional principles and elementary interests of the member states;

the exercise of sovereign power by an association of states, the

European Union, is based on authorization from the states, which remain

sovereign, and which, through their governments, regularly act in the

inter-state area, and thus guide the integration process.

 

217.

However, the most important finding for the Constitutional Court’s

review was that the Union continues to be founded on the values of

respect for human dignity, freedom, democracy, a materially understood

law-based state, and the observance of human rights, and that it

therefore emphasizes that which historically, spiritually and

conceptually joins the nations of Europe in finding justice in

individual cases and to the benefit of the whole. In this regard the

aims and the integration role of the EU are formulated clearly, and the

Constitutional Court, as a guarantor to the people of the Czech Republic

of the constitutionality of a democratic, law-based state, entrusted

with protection of inherent, inalienable, non-prescriptible and

non-repealable fundamental rights and freedoms of individuals equal in

dignity and in rights, found nothing in this regard that would make it

necessary for it to interfere.

 

 

XXI.

 

218.

For all the foregoing reasons, the Constitutional Court concluded that

the Treaty of Lisbon amending the Treaty on European Union and the

Treaty establishing the European Community, specifically

articles 2 par. 1 (previously 2a par. 1), 4 par. 2 (previously 2c), 352

par. 1 (previously 308 par. 1), 83 (previously 69b par. 1) and 216

(previously 188 l), contained in the Treaty on the Functioning of he

European Union,

• articles 2 (previously 1a), 7 and 48 par. 6 and 7 contained in the Treaty on European Union

• and the Charter of Fundamental Rights of the European Union

are not inconsistent with the constitutional order.

 

Instruction: Decisions of the Constitutional Court can not be appealed.

 

Brno, 26 November 2008