2009/11/03 - Pl. ÚS 29/09: Treaty of Lisbon II

03 November 2009

Petition from a group of senators of the Senate of the Parliament of the Czech Republic for review of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community for conformity with the constitutional order.

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE REPUBLIC

 

On

3 November 2009, the plenum of the Constitutional Court, consisting of

the Chairman of the Court, Pavel Rychetský and judges Stanislav Balík,

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

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

Jiří Nykodým, Miloslav Výborný, Eliška Wagnerová and Michaela Židlická,

ruled, pursuant to Article 87(2) of the Constitution of the Czech

Republic, on a petition from a group of senators of the Senate of the

Parliament of the Czech Republic, jointly represented by Senator Jiří

Oberfalzer, legally represented by Jaroslav Kuba, attorney, for review

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

Treaty establishing the European Community for conformity with the

constitutional order, with the participation of the Chamber of Deputies

and the Senate of the Parliament of the Czech Republic, the government

of the Czech Republic, and the president of the Czech Republic,

represented by Aleš Pejchal, attorney, as follows:

  

I. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community

 

- as a whole,

 

-

Article 7, Article 8, Article 9, Article 10(1), Article 13(1),

Article 14(2), Article 17(1) and (3), Article 19(1), Article 20, Article

21(2)(h), Article 42(2), Article 47 and Article 50(2) to (4) of the

Treaty on European Union,

 

- Article 3, Article 78(3), Article 79(1) and Article 83 of the Treaty on the Functioning of the European Union

 

and ratification thereof are not in conflict with the constitutional order of the Czech Republic.

 

II.

The petition that the Constitutional Court review the Treaty on

European Union (called the “Treaty of Maastricht” by the petitioners”)

as a whole and the Treaty establishing the European Community (called

the “Treaty of Rome” by the petitioners) as a whole for conformity with

the constitutional order is denied.

 

III.

The petition that the Constitutional Court review Article 2, Article 4

and Article 216 of the Treaty on the Functioning of the European Union

for conformity with the constitutional order is denied.

 

IV.

The petition that the Constitutional Court find that “the Decision of

the Heads of State or Government meeting within the European Council on

the concerns of the Irish people on the Treaty of Lisbon, which on 18

and 19 June 2009 added certain provisions to the Treaty of Lisbon, is an

international agreement pursuant to Article 10a of the Constitution and

as such requires the approval of both Chambers of Parliament obtained

by a constitutional majority, without which it is not applicable in

relation to the Czech Republic” is denied.

 

V.

The petition that the Constitutional Court join, to this petition to

open proceedings to review the Treaty of Lisbon amending the Treaty on

European Union and the Treaty establishing the European Community for

conformity with the constitutional order, the petition from a group of

senators seeking the annulment of certain provisions of the rules of

procedure of both chambers of Parliament, file no. Pl. ÚS 26/09, is

denied.

 

 

 

REASONING

 

I.

Recapitulation of the Petition

 

A.

Petition of 28 September 2009

 

1.

On 29 September 2009 the Constitutional Court received a petition

from a group of senators jointly represented by Senator Jiří Oberfalzer

(the “petitioners”) to review the Treaty of Lisbon amending the Treaty

on European Union and the Treaty establishing the European Community for

conformity with the constitutional order pursuant to Article 87(2) of

the Constitution of the Czech Republic, as amended (the “Constitution”).

 

2.

The statement of claim of the petition is divided into four points,

which correspond to the following sections of the Statement of grounds

of the petition.

 

3.

In point I of the statement of claim of the petition, the

petitioners contest the conformity of “the Treaty of Lisbon as a whole”,

“the Treaty of Maastricht as a whole”, and “the Treaty of Rome as a

whole” with Article 1(1) of the Constitution and Article 2(1) of the

Charter; the petitioners in fact mean the Treaty of Lisbon amending the

Treaty on European Union and the Treaty establishing the European

Community (the “Treaty of Lisbon”), or the Treaty on European Union (the

“TEU”), sometimes referred to as the “Treaty of Maastricht”, as amended

by the Treaty of Lisbon, or the Treaty on the Functioning of the

European Union (the “TFEU”), i.e. the Treaty establishing the European

Community, which was amended and renamed by the Treaty of Lisbon and is

sometimes referred to as the “Treaty of Rome”.

 

4.

This point of the statement of claim in the petition is supported by

extensive arguments contained in points 11 to 100. First, in points 11

to 59 of the petition, the petitioners present the starting points for

their arguments, contesting the conformity of the Treaty of Lisbon with

the constitutional order of the Czech Republic. They present their own

definition and description of the essential requirements of a “state

governed by the rule of law” (points 14 to 26 of the petition), a

“democratic state governed by the rule of law” (points 27 and 28 of the

petition), a “democratic state” (points 29 to 38 of the petition), and

finally, a “sovereign democratic state governed by the rule of law”

(points 39 to 59 of the petition).

 

5.

The petitioners then, in points 60 to 96, set forth the arguments why,

in their opinion, the Treaty of Lisbon contravenes the characteristics

set forth above, and summarize them in points 97 to 100 of the petition.

 

6.

First, in the petitioners’ opinion, the Treaty of Lisbon as a whole is

inconsistent with Article 1(1) of the Constitution, or with the

characteristics of the Czech Republic as a state governed by the rule of

law. The reason is supposed to be that it does not meet the

requirements that a legal regulation must be sufficiently comprehensible

and lucid (especially in view of the lack of an “authentic consolidated

version” of the TEU and the TFEU, and in view of the scope of changes

that the Treaty of Lisbon introduces – see points 61 to 70 of the

petition), and potentially also the principle of non-retroactivity (in

view of “the capacity of the EU authorities responsible for the

publication of the Official Journal of the EU to make further additional

changes to the Treaty of Lisbon during the process of its approval in

order to correct errors ‘which may come to light in the Treaty of Lisbon

or in the prior Treaties’”, which the petitioners point out in point 71

of the petition). In the petitioners’ opinion, these principles

generally are among the fundamental elements of a state governed by the

rule of law (point 97 of the petition summarizes this argument and

refers to other points of the petition, which, in the petitioners’

opinion, support it).

 

7.

The petitioners add that all voting that overlaps with the powers

of the Parliament on a domestic level must be subject to a “special

mandate”, i.e. the prior consent of Parliament to the vote of the Czech

Republic’s representative in the EU Council. The petitioners believe

that a special mandate should be subject to review by the Constitutional

Court to a similar extent as domestic decision making. According to the

petitioners, “until the time of adoption of the special mandate in the

abovementioned area, ratification of the Treaty of Lisbon would be

inadmissible, because its implementation would conflict with the

principle of separation of powers which is one of the essential

prerequisites of a democratic state governed by the rule of law” (point

82 of the petition; point 100 of the petition summarizes this argument

and refers to other points of the petition, which, in the petitioners’

opinion, support it).

 

8.

Second, the petitioners believe that the TEU as a whole conflicts with

Article 1(1) of the Constitution (the characteristics of the Czech

Republic as a democratic state), or with Article 2(1) of the Charter of

Fundamental Rights and Freedoms (the “Charter”). The petitioners point

to Article 3 of the TFEU, which defines the objectives of the European

Union, and claim that “the objectives thus defined are contrary to the

principle of political neutrality, because they restrict in advance the

possible decisions of the majority, i.e. the government of the people”

(point 87 of the petition). At the same time, according to the

petitioners, of the TEU as a whole does not meet the requirement of

political neutrality, which is one of the fundamental features of a

democratic state (point 98 of the petition summarizes this argument and

refers to other points of the petition, which, in the petitioners’

opinion, support it).

 

9.

Third, the petitioners believe, that both the TEU as a whole, and the

TFEU as a whole conflict with Article 1(1) of the Constitution (the

characteristics of the Czech Republic as a sovereign state). According

to the petitioners, the reason is that these treaties allow the

possibility, as a particular goal of European integration, of the

appearance of a common European defence, whereas a sovereign state must

always retain the power to have its own defence if it is to remain

sovereign. Another reason presented by the petitioners is that these

treaties have as an ultimate objective a European integration that does

not exclude the appearance of a common European federal state (point 99

of the petition summarizes this argument and refers to other points of

the petition, which, in the petitioners’ opinion, support it).

 

10.

In point II of the statement of claim of the petition, the

petitioners contest the conformity of selected provisions of the TEU

with selected provisions of the Constitution, or of the Charter, set

forth in the statement of claim.

 

11.

First, the petitioners focus on Article 7 of the TEU, which inter alia

regulates the ability to suspend certain rights deriving from the

application of the Treaties to a member state in the event of a serious

and persistent breach of the values referred to in Article 2 of the TEU.

The petitioners contest the conformity of that provision as a whole,

and particularly of the words “clear risk”, “serious breach”, and

“certain rights”, and the phrase “shall take into account the possible

consequences of such a suspension on the rights and obligations of

natural and legal persons” with Article 1(1) of the Constitution,

particularly with the principles of appropriate generality and adequate

comprehensibility of legislation, which the petitioners consider to be

among the essential components of a state governed by the rule of law.

According to the petitioners, Article 7 of the TEU also contravenes

Article 2(3) of the Constitution. They state that, “If rights of Member

States are suspended, with probable consequences for private persons as

well, then Czech state authority will not in fact serve its citizens,

because it will be temporarily deprived of certain rights without which

the citizens cannot be served” (point 105 of the petition). The

petitioners discuss their arguments in more detail in points 102 to 106

of the petition.

 

12.

Second, the petitioners focus on Article 8 of the TEU. It states

in paragraph 1 that “The Union shall develop a special relationship with

neighbouring countries, aiming to establish an area of prosperity and

good neighbourliness, founded on the values of the Union and

characterised by close and peaceful relations based on cooperation”.

Similarly as with the previous provision of the TEU, the petitioners

contest its conformity as a whole, and in particular that of the terms

“special relationship” and “close relationships” with Article 1(1) of

the Constitution, specifically with the principles of appropriate

generality and adequate comprehensibility of legislation, which the

petitioners consider to be among the essential components of a state

governed by the rule of law. The petitioners discuss their arguments in

more detail in points 107 to 109 of the petition.

 

13.

Third, the petitioners focus on Article 10(1) of the TEU, which

states that “The functioning of the Union shall be founded on

representative democracy”. In the petitioner’s opinion, “the European

Union, if it is to remain an international organization, cannot be based

on representative democracy. It must be based, now and in the future,

on the sovereign equality of its Member States, and representative

democracy must remain merely its essential and at the same time

privileged adjunct”. (point 111 of the petition). The petitioners state

that “if representative democracy were the basis of the EU, that would

mean that the EU was a state itself and this would contravene the

principle that the Czech Republic may transfer to international

organizations or institutions only certain powers of its authorities,

but absolutely not its sovereignty itself”. (point 113 of the petition).

Thus, in the petitioners’ opinion, Article 10(1) of the TEU contravenes

Article 1(1) of the Constitution and Article 10a of the Constitution.

The petitioners discuss their arguments in more detail in points 110 to

113 of the petition.

 

14.

Fourth, the petitioners focus on Article 17(1) and(3) of the TEU,

concerning the competences of the Commission. According to the

petitioners, the first paragraph “conflicts, through its unclear

formulations, with the requirements of appropriate generality and of

adequate comprehensibility of legislation, and as such conflicts with

the principle of legal certainty, which is a condition of the existence

of a state governed by the rule of law”. Therefore, in the petitioners’

opinion, it contravenes Article 1(1) of the Constitution. The third

paragraph of that article provides that “the members of the Commission

shall be chosen on the ground of their general competence and European

commitment from persons whose independence is beyond doubt”. According

to the petitioners, “This provision effectively bars anyone who is of a

dissenting opinion with regard to European integration from becoming a

member of the Commission”. (point 118 of the petition). Therefore, in

points 120 and 121 the petitioners state that this provision is “not

only vague, but also ideologically coloured – and discriminatory – in

the extreme”. Therefore, according to the petitioners, it “conflicts not

only with the principle that a legal provision should be appropriately

universal in nature and sufficiently comprehensible, but also with the

principle of political neutrality” (point 120 of the petition). For

these reasons, Article 17(3) of the TEU is claimed to conflict with

Article 1(1) of the Constitution as well as Article 2(1) of the Charter,

which provides that the State may not be bound by an exclusive

ideology. The petitioners also believe that this provision contravenes

Article 1(1) of the Charter, pursuant to which all people are equal in

rights, and Article 21(4) of the Charter, pursuant to which citizens

shall have access, on an equal basis, to any elective and other public

office. According to the petitioners, the stipulation of a requirement

for sufficient European commitment gives rise to unconstitutional

inequality. The petitioners discuss their arguments in more detail in

points 114 to 121 of the petition.

 

15.

Fifth, the petitioners focus on Article 20 of the TEU, which

provides for enhanced cooperation among EU Members States. According to

the petitioners, making enhanced cooperation conditional on approval by

EU institutions has the effect of impeding the exercise of certain

powers both at European level and at Member States’ level, and as such,

in their opinion, it conflicts with the principle of government of the

people enshrined in Article 1(1) of the Constitution. Further, in the

petitioners’ opinion, “the restriction of Member State cooperation in

areas in which the Union has not yet exercised its powers also conflicts

with the principle of the sovereignty of the Czech Republic” (point 127

of the petition), and thus with Article 10a of the Constitution. The

petitioners discuss their arguments in more detail in points 122 to 128

of the petition.

 

16.

Sixth, the petitioners focus on Article 21(2)(h) of the TEU. That

article provides that “The Union shall define and pursue common policies

and actions, and shall work for a high degree of cooperation in all

fields of international relations, in order to […] promote an

international system based on stronger multilateral cooperation and good

global governance”. According to the petitioners, this provision

“contravenes the principle that legal provisions should be sufficiently

comprehensible and consequently contravenes the principle of legal

certainty, on which the existence of the rule of law depends [and] …

also contravenes the principle of the political neutrality of the

Constitution” (point 130 of the petition). Therefore, the petitioners

believe that this provision contravenes Article 1(1) of the Constitution

and Article 2(1) of the Charter, which provides that the state may not

be bound by an exclusive ideology. The petitioners discuss their

arguments in more detail in points 129 and 130 of the petition.

 

17.

Seventh, the petitioners focus on Article 42(2) of the TEU. That

article provides that “The common security and defence policy shall

include the progressive framing of a common Union defence policy. This

will lead to a common defence, when the European Council, acting

unanimously, so decides. It shall in that case recommend to the Member

States the adoption of such a decision in accordance with their

respective constitutional requirements”. In the petitioners’ opinion,

the Czech Republic “by no means … may aim at a common European defence –

to do so would be to violate its own Constitution as of now” (point 135

of the petition). According to the petitioners, “even merely providing

for the possibility of establishing a European federation with the Czech

Republic as one of its constituent parts contravenes the principle that

the Czech Republic is a sovereign state. The same applies to the

obligation to aim at a common European defence, since without its own

defence the Czech Republic would cease to be a sovereign state”. (point

135 of the petition). Therefore, this article is said to contravene

Article 1(1) and Article 10a of the Constitution. The petitioners

discuss their arguments in more detail in points 131 to 136 of the

petition.

 

18.

Finally, eighth, the petitioners focus on Article 50(2) to (4)

of the TEU. These provisions govern the possibility of a Member State

withdrawing from the EU. According to the petitioners, this article

“contravenes the principle of ... sovereignty” enshrined in Article 1(1)

of the Constitution, and also contravenes “the principle of

retroactivity and legitimate expectations and consequently the

fundamental principle of the rule of law that all rules must be known in

advance” (point 143 of the petition). According to the petitioners, the

indeterminacy of the future arrangements for withdrawal from the EU

also contravenes Article 10a of the Constitution, because “The transfer

of powers must be defined, and the manner in which the powers

transferred are to be withdrawn and returned to the national level must

also be defined. Nor may the withdrawal of powers be made subject, de

facto, to the requirement of approval by the EU” (point 144 of the

petition). The petitioners discuss their arguments in more detail in

points 137 to 145 of the petition.

 

19.

In point III of the statement of claim of the petition the

petitioners contest the conformity [with the constitutional order] of

certain provisions of the “Treaty of Rome” (i.e. of the TFEU),

specifically Article 78(3) and Article 79(1). In the statement of claim

of the petition the petitioners do not state which provisions of the

constitutional order these articles of the TFEU are alleged to

contravene, but this is recognizable from the following text of the

petition, specifically from points 147 to 150.

 

20.

Article 78(3) of the TFEU provides: “In the event of one or more

Member States being confronted by an emergency situation characterised

by a sudden inflow of nationals of third countries, the Council, on a

proposal from the Commission, may adopt provisional measures for the

benefit of the Member State(s) concerned. It shall act after consulting

the European Parliament”. Article 79(1) of the TFEU states that “The

Union shall develop a common immigration policy aimed at ensuring, at

all stages, the efficient management of migration flows, fair treatment

of third-country nationals residing legally in Member States, and the

prevention of, and enhanced measures to combat, illegal immigration and

trafficking in human beings”. According to the petitioners, these

provisions mean that “the Czech Republic alone will not always decide on

the composition and number of the refugees on its territory. The

European Union is thus acquiring the power to participate in decisions

which may have a comparatively significant impact on the composition of

the population of the Czech Republic and on its cultural and social

character” (point 148 of the petition). According to the petitioners,

this contravenes the principle in Article 1(1) and Article 10a of the

Constitution that “powers relating to decisions in matters of

exceptional cultural or social impact are not transferred and must

always remain entirely within the competence of the institutions of the

Czech Republic. Their transfer to an international organization or

institution would contravene the Czech Republic’s character as a

sovereign State” (point 148 of the petition). In addition, the

petitioners state that these articles of the TFEU only vaguely define

conditions “on which the Council of the EU may begin to act and what

exactly it may do” (point 149 of the petition). Therefore, in the

petitioners’ opinion, Article 78(3 of the TFEU “also contravenes the

principle that a legal provision should be appropriately general in

nature and sufficiently comprehensible, and therefore conflicts with the

principle of legal certainty as an indispensable precondition for the

existence of the rule of law” (point 149 of the petition). The

petitioners discuss their arguments in more detail in points 147 to 150

of the petition.

 

21.

In point III of the statement of claim of the petition the

petitioners “reserve the right to supplement the petition with an

application for other selected articles of the Treaty of Rome to be

reviewed”; in point 146 of the petition they state that, “Owing to time

constraints, only two provisions are cited for the time being; the

petitioners are prepared, however, to complete this section”. According

to the petitioners, the reason is that they “do not wish to prevent the

Constitutional Court from considering this submission as of now”.

 

22.

In point IV of the statement of claim of the petition the

petitioners first “ask the Court to find that the Decision of the Heads

of State or Government meeting within the European Council on the

concerns of the Irish people on the Treaty of Lisbon, which on 18 and 19

June 2009 added certain provisions to the Treaty of Lisbon, is an

international agreement pursuant to Article 10a of the Constitution and

as such requires the approval of both Chambers of Parliament obtained by

a constitutional majority, without which it is not applicable in

relation to the Czech Republic”. The petitioners discuss the statement

of claim, thus formulated, in more detail in points 151 to 165 of the

petition.

 

23.

Finally, the petitioners refer to their previous petition seeking

the annulment of certain provisions of the rules of procedure of both

chambers of Parliament (file no. Pl. ÚS 26/09), quote from that

statement of claim, and with reference to § 63 of Act no. 182/1993

Coll., on the Constitutional Court, as amended, in conjunction with §

112 of Act no. 99/1963 Coll., the Civil Procedure Code, as amended by

later regulations, “the petitioners call upon the Constitutional Court

to hear both their petitions in joined proceedings”.

 

 

 

B.

Supplement to the Petition, dated 15 October 2009

 

24.

On 15 October 2009 the Constitutional Court received a document

entitled “Supplement to the petition of the group of senators for the

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

establishing the European Community, or selected provisions thereof, to

be reviewed for conformity with the constitutional order” (the

“supplement”), submitted by Senator Jiří Oberfalzer as the

representative of the group of senators. The supplement petitions “the

Constitutional Court to also review the following articles of the Treaty

on the Functioning of the European Union, as amended by the Treaty of

Lisbon [...]: Articles 2, 3 and 4; Article 83; and Article 216 for

conformity with Article 1(1) and with Article 10a of the Constitution”.

 

25.

The arguments section of the supplement, which relates to the

abovementioned contested articles of the TFEU, first reviews the

starting points for review of the Treaty of Lisbon, as they are

presented in the original petition (“Excursion: The essential

requirements of a sovereign state based on the rule of law”, points 3 to

6 of the supplement).

 

26.

The supplement then states in point 7, that “the petitioners

consider shared competences to be very widely and too generally defined –

as a result, they can be expanded further by expansive analysis”.

According to the petitioners “the scope of transferred, or potentially

transferred competences cannot be precisely determined”, and therefore,

in their opinion, it is in conflict with “the principle of appropriate

generality of legislation […] and with the principle that the Czech

Republic may, pursuant to Article 10a of its Constitution, transfer only

part of the competences of its authorities, but not all of them (and

not even potentially)”. The supplement concludes in this regard that the

definition of shared competences in Article 4 of the TFEU is in

conflict with Article 1(1) and with Article 10a of the Constitution.

 

27.

Point 8 of the supplement states that Article 2(4) of the TFEU

“moreover states that foreign and security policy is to lead to defining

a common defence policy. That too, in and of itself, is [according to

the opinion stated in the supplement] in conflict” with Article 1(1) and

Article 10a of the Constitution – according to the petitioners, “the

same arguments that apply to Article 42 of the TEU (as amended by the

Treaty of Lisbon) apply here”. The supplement refers to points 131 to

136 of the petition.

 

28.

Point 9 of the supplement contests the conformity of Article 3 of the

TFEU with Article 1(1) and Article 10a of the Constitution. It states:

 

“The

exclusive competence of the Union is also problematic. The petitioners

do not contest the transfer of competences listed [in Article 3 of the

TFEU] to the EU. They see a problem in the fact that the EU has these

competences, or acquires them, but is not necessarily required to

exercise them, or it may not agree on suitable legislation; at the same

time, the Member States lose these competences, i.e. they may not

exercise them, precisely in the situation where the Union is unable to

agree what rules are to apply in a particular area. Therefore, a

situation can arise where no rules at all apply in areas of the Union’s

exclusive competence. That is in sharp conflict with the very essence of

a state governed by the rule of law, which is the existence of rules,

i.e. giving individuals and various groups of them at least relative

certainty regarding the consequences of their conduct, and thus making

decision making and mutual coexistence easier for them”.

 

29.

According to the opinion in point 10 of the supplement, “the

exclusive competence of the EU generally contravenes Article 1(1) and

Article 10a of the Constitution. Pursuant to these articles, the only

possible transfer of competence is one where the result is shared

competence, i.e. a situation where there is no danger that a certain

area would remain without substantive legislation. Transfer of

competences pursuant to Article 3 and 4 of the TFEU is not delimited,

distinguishable, or sufficiently definite”.

 

30.

Points 11 to 14 contest the conformity of Article 83 of the TFEU with

Article 1(1) and Article 10a of the Constitution. According to the

opinion expressed in the supplement, “deciding what is a crime and what

punishments are to be imposed for crimes is among the competences

belonging to state authorities that cannot be transferred pursuant to

Article 10a of the Constitution“ (point 11 of the supplement; it refers

to point 54 of the petition, or point 6 of the supplement); “it is

evident from the text [of the contested article] that the European union

is to acquire its own criminal law competence”, which “in and of

itself” contravenes the cited articles of the Constitution (point 13 of

the supplement). Finally, the supplement states that “the contours of

this competence are not clear, the Council, together with the European

Parliament can further expand the area of its criminal jurisdiction.

Therefore, transfer of competences pursuant to [Article 83 of the TFEU]

is also not delimited, distinguishable, and sufficiently definite (point

14 of the supplement).

 

31.

Points 15 to 20 of the supplement contest the conformity of Article

216 of the TFEU with Article 1(1) and Article 10a of the Constitution.

The supplement states that “despite the fact that this article was

already contested by the Senate petition, the petitioners believe that

there are additional circumstances to which the Senate did not expressly

refer in 2008, and therefore the Constitutional Court did not address

them, even though it touched on them itself” (point 16). These points

recapitulate the arguments stated by the Senate and the relevant part of

judgment file no. Pl. ÚS 19/08 dated 26 November 2008 (446/2008 Coll.) –

point 182; points 183 and 186 of the judgment are expressly cited.

 

32. In conclusion, point 21 of the supplement states:

 

“The

petitioners cannot rid themselves of the impression that the

Constitutional Court, in reviewing the conformity of the Treaty of

Lisbon with the constitutional order, was always heretofore, in the case

of any doubts, more on the side of the Treaty of Lisbon than on the

side of the constitutional order. The Constitutional Court has a

considerable degree of discretion in interpretation, and unfortunately

the Constitutional Court’s efforts to proceed intentionally so that the

Treaty of Lisbon could be declared not to contravene the constitutional

order cannot be denied. That, as well as certain public statements by

Constitutional Court judges, gives the impression that the matter has

been decided in advance”.

 

33.

The supplement quotes from the testimony of the president of the

republic in the proceedings in the matter Pl. ÚS 19/08 and “calls on”

the Constitutional Court to “either explain why the principle that

decision making in the case of international treaties is, in the event

of any doubts, always to give priority to the constitutional order over

an international treaty does not apply, because it was guided by it when

reviewing the petition and this supplement” (point 23 of the

supplement).

 

34.

At the very end, the supplement summarizes “the petition for review of

the constitutionality of the Treaty of Lisbon, as it arises from this

supplement”.

 

35.

At the hearing on 27 October 2009 the petitioners submitted a further

supplement to the petition, which is recapitulated in points 78 to 90 of

this judgment.

 

II.

The Proceeding and Recapitulation of the Briefs of the Parties

 

36.

Pursuant to § 71c of the Act on the Constitutional Court, the

parties to proceedings on the consistency of international treaties with

constitutional acts are, in addition to the petitioners, the

Parliament, the president of the republic, and the government.

Therefore, the Constitutional Court, pursuant to § 42(4) of the Act on

the Constitutional Court, sent the petition to open proceedings to the

Chamber of Deputies and the Senate of the Parliament of the Czech

Republic, the president of the republic, and the government of the Czech

Republic, stating that they could submit briefs regarding the petition

by the deadline specified.

 

A.

Brief from the Chamber of Deputies

 

37.

On 8 October 2009 the Constitutional Court received a brief from

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

by its chairman, Miloslav Vlček. The brief summarizes the process of

approval of the Treaty of Lisbon by the Chamber of Deputies. However,

the chairman of the Chamber of Deputies also adds his “personal opinion

concerning the relationship of the previous proceeding before the

Constitutional Court [in which the Constitutional Court ruled in

judgment file no. Pl. ÚS 19/08 dated 26 November 2008 (446/2008 Coll.)]

to the petition submitted by the group of senators”. He believes that in

that judgment the Constitutional Court “implicitly concluded that

ratification of the Treaty will not affect the Czech Republic as a

sovereign state governed by the rule of law pursuant to the Constitution

and the Charter of Fundamental Rights and Freedoms. A contrary

conclusion would [according to the chairman of the Chamber of Deputies]

necessarily lead to lack of clarity concerning the conclusions contained

in the verdict and in the reasoning of Constitutional Court judgment

Pl. ÚS 19/08”. In the conclusion of the brief the chairman of the

Chamber of Deputies states that the proposal concerning decisions by

heads of state or prime ministers of governments sitting in the European

Council in relation to the concerns of the Irish people regarding the

Treaty of Lisbon cannot be considered, in form or content, an

international treaty, and therefore one must consider the proposal “for

the Constitutional Court to pronounce an evidently interpretive verdict

to be groundless”.

 

B.

Brief from the Senate

 

38.

On 14 October 2009 the Constitutional Court received a brief from the

Senate of the Parliament of the Czech Republic, signed by its chairman,

Přemysl Sobotka. Parts I. and II. first summarize the content of the

petition, and part III. continues with information from the process of

approving ratification of the Treaty of Lisbon by the Senate. The brief

states that “after a year and a quarter of discussing the Treaty of

Lisbon in the upper chamber of Parliament, on 6 May 2009 the Senate

approved its ratification”. Part IV. of the brief then addresses the

question of conformity of the Treaty of Lisbon with the constitutional

order. As the brief says, during the course of Senate debate on the

Treaty, considerable attention was paid to this, both before the Senate

petition for review of the treaty was submitted (proceedings Pl. ÚS

10/08), and afterwards, when the senators “focused in particular on

analysis of this decision, both from a formal and substantive point of

view”. The brief then lucidly presents the individual objections against

the conformity of the Treaty of Lisbon with the constitutional order,

which the petitioners now raise, the subject matter of debate in the

Senate with their active participation (the brief presents questions of

the degree of transfer of competences and preservation of sovereignty,

the democratic deficit in the European Union, the question of “allowing

the creation of a kind of European federation with the Czech Republic as

a member”, definition of the objectives of the European Union, the

question of a Member State’s withdrawal from the European Union, and

finally objections against the “extreme lack of lucidity and

incomprehensibility” of the Treaty of Lisbon). Part IV. concludes that

the Senate “considered the Treaty of Lisbon in detail and thoroughly,

not only three times at its meetings, but also in all bodies that

discussed the document, and although various opinion were heard stating

both positive and negative positions regarding this international

treaty, the majority opinion was expressed on 6 May 2009 in a resolution

whereby the Senate consented to ratification of the Treaty”. At the

very end of the brief the chairman of the Senate states that he is

“sending it with the knowledge that it is fully up to the Constitutional

Court, pursuant to Article 87(2) of the Constitution and part two of

Act no. 182/1993 Coll., on the Constitutional Court, to rule on the

petition from the group of senators”.

 

C.

Brief from the Government

 

39.

On 15 October 2009 the Constitutional Court received a brief from the

government of the Czech Republic (adopted that day by government

resolution no. 1295). It addresses the individual points of the petition

from the group of senators in detail.

 

40.

In the introduction to its brief, the government considers it

“necessary to emphasize that the Constitutional Court has already

reviewed the conformity of the Treaty of Lisbon with the constitutional

order [in judgment Pl. ÚS 19/08,] wherein it found that the specific

articles of the Treaty of Lisbon contested [by the Senate] and the

Charter of Fundamental Rights of the European Union do not contravene

the constitutional order”. According to the government, “although the

verdict of the Lisbon judgment includes only certain articles of the

Treaty of Lisbon, the government believes that the Constitutional Court

did not review those articles in isolation, but in conjunction with

other parts of the Treaty of Lisbon and in the context of its overall

conception. [...] In the government’s opinion, this fact must be duly

considered, in particular when reviewing part I. of the petition“ (point

2 of the government’s brief). The government states the “the

permissibility of another petition for review of the Treaty of Lisbon

should be an exception” (point 3 of the government’s brief). The

government also believes that “this question will have to be clarified

further in relation to the petition from the group of senators, because

some parts of the petition clearly contest articles of the Treaty of

Lisbon that have already been reviewed, or arguments are presented that

the Constitutional Court already rejected in its Lisbon judgment” (point

3 of the government’s brief).

 

41.

Regarding the petitioner’s reservation of the right to expand its

submission by a petition for review of additional articles of the TFEU

(see point 21 of this judgment) the government states:

 

“The

Constitutional Court should review, above all, whether such a

reservation, which de facto has the character of a blanket petition to

open proceedings, does not contravene the significance and purpose of a

proceeding on the review of an international treaty’s conformity with

the constitutional order of the CR. If the Constitutional Court does not

reach this conclusion, the government believes that such a procedure

could be reviewed in light of § 118b of the Civil Procedure Code, which,

in view of the lack of an express regulation in § 71d of the Act on the

Constitutional Court, could be subsidiarily used on the basis of § 63

of that Act [here the government refers to resolution file no. I. ÚS

288/2000 dated 23 January 2001 (U 4/21 SbNU 471)]. The government

believes that the Constitutional Court should weigh whether, on the

basis of appropriate application of the cited § 118b of the Civil

Procedure Code, the petitioner’s opportunity to expand the original

petition is not limited by the principle of procedural efficiency, and

if so, at what moment in time that limitation applies” (point 5 of the

government’s brief).

 

42.

Regarding the petition to join the proceeding in this matter with

the proceedings file no. Pl. ÚS 26/09, the government refers to the

reasoning in resolution file no. Pl. ÚS 26/09 dated 6 October 2009,

available at nalus.usoud.cz, denying the petition in this matter.

 

43.

Regarding point I. of the statement of claim of the petition, the

government first states that, in its opinion, it is incorrectly

formulated, as it contests “the constitutional conformity not only of

the Treaty of Lisbon as a whole, but also [of the TEU] and [of the TFEU]

as a whole. The Treaty of Lisbon [in the government’s opinion]

undoubtedly represents a fundamental amendment of the existing founding

treaties, and yet some articles of the wording in effect of both

Treaties remain unaffected by the amendment, and therefore should not be

subject to review by the Constitutional Court in proceedings on the

conformity of the Treaty of Lisbon with the constitutional order. The

government believes that already effective norms of primary law cannot

be reviewed within the scope of that review” (point 4 of the

government’s brief; cf. also point 8). The government also states that

this part of the petition “lacks arguments of relevance to

constitutional law, and some points tend to give the impression that the

petitioners are merely trying to persuade the Constitutional Court of

their own legal-political opinions” (point 8 of the government’s brief).

If that were really so, then, in the government’s opinion, the

Constitutional Court would not have competence to review these parts of

the petition (point 9 of the government’s brief).

 

44.

Substantively, regarding point I. of the statement of claim of the

petition, the government states that “there can be not doubt whatsoever

that the Parliament of the CR gave valid consent to ratification of the

Treaty of Lisbon, in accordance with all the rules arising from the

Constitution and the legal order of the CR” (point 11 of the

government’s brief). According to the government, the Treaty of Lisbon

is “an amendment of the founding treaties and thus the amending points

are subject to ratification. This is also the procedure applied in

amending statutory norms in the Czech legislative process” (point 11 of

the government’s brief). In addition, according to the government, “the

lack of an official consolidated version of the founding treaties

reflecting the changes pursuant to the Treaty of Lisbon does not support

the petitioners’ conclusion, but, on the contrary, appears quite

logical, because the subject matter of ratification in Member States is

precise the Treaty of Lisbon, which amends the founding treaties. If an

official consolidated version existed, it would, on the contrary, create

uncertainty as to what is to be the subject matter of ratification in

all the Member States, and which of the two texts has precedence in the

(hypothetical) event that they are inconsistent. The government states

that an unofficial consolidated version of the founding treaties,

reflecting changes pursuant to the Treaty of Lisbon, which serves for

better orientation in the text, does exist, and was published in the

Official Journal of the EU, including in the Czech language” (point 12

of the government’s brief, with reference to the Official Journal C 115,

9 May2008, p. 1). Regarding the violation of the principle of

non-retroactivity, alleged by the petitioners (see point 6 of this

judgment) the government states that “this possibility of subsequent

corrections, [...], is fully in accordance with international law. These

are “errata”, or corrections of errors that arose during translation of

a text from the original language or languages to the other official

languages of the Union, and are not changes of a substantive nature.

This procedure is subject to the rules set forth in Article 79 of the

Vienna Convention on the Law of Treaties [promulgated as no. 15/1988

Coll., the “Vienna Convention”]” (point 13 of the government’s brief,

references omitted). The government also disagrees with the petitioners’

claim that the Treaty of Lisbon contravenes the fundamental

characteristics of the Czech Republic as a sovereign and democratic

state governed by the rule of law, enshrined in Article 1(1) of the

Constitution of the CR, and in Article 2(1) of the Charter of

Fundamental Rights and Freedoms, in view of other grounds presented,

summarized in points 6 and 7 of this judgment.

 

45.

The government then addresses individual reasons wherein the

petitioner’s find certain provisions of the Treaty of Lisbon to be

inconsistent with the constitutional order and which the petitioner

presents in point II. of the statement of claim of the petition.

 

46.

In points 18 to 23 of its brief the government argues that Article 7 of

the TEU is not in conflict with Article 1(1) or with Article 2(3) of

the Constitution (regarding this alleged ground for the Treaty of

Lisbon’s conflict with the constitutional order see point 11 of the

judgment). It points out that this article was already reviewed by the

Constitutional Court, which, in judgment Pl. ÚS 19/08 did not find it

inconsistent with the constitutional order. The government adds, inter

alia, that the phrases which the petitioners claim to be inappropriately

general “are not outside the bounds of appropriate generality, not only

according to the standards of norms of international treaty law, but

also according to the standards of domestic law, which are evidently

higher in comparison with the former” (point 20 of the government’s

brief, which refers to point 186 of judgment Pl. ÚS 19/08).

 

47.

In points 24 to 31 of its brief the government argues that

Article 8 of the TEU is not, in its opinion, inconsistent with Article

1(1) of the Constitution (regarding this alleged ground for the Treaty

of Lisbon’s conflict with the constitutional order see point 12 of the

judgment). Here the government points out, for example, that “the

meaning of disputed terms can be derived through routine means of

interpretation, which are set forth for the interpretation of

international treaties in Article 31 of the Vienna Convention. Pursuant

to that article, the terms in an international treaty cannot be

interpreted in isolation, but in conjunction with each other, they must

be interpreted in good faith, and accorded their usual meaning, and,

finally, the subject matter and purpose of the treaty must be taken into

consideration so that the interpretation contributes to effective

implementation of the treaty” (point 25 of the government’s brief). The

government then performs such an interpretation in the following points

of its brief.

 

48.

In points 32 and 33 the government considers the petitioners’

doubts expressed in connection with Article 10(1) of the TEU and also

states that it is not in conflict with Article 1(1), or with Article 10a

of the Constitution (regarding this alleged ground for the Treaty of

Lisbon’s conflict with the constitutional order see point 13 of the

judgment). In point 32 of its brief the government states that this

article of the TEU is

 

“above

all a statement of the fact that representative democracy belongs to

the common constitutional traditions shared by the Member States. It is

precisely through representative democracy on the national level that

powers, whose original holders remain the Member States, are transferred

to the Union and its bodies. This fundamental line of representative

democracy is accentuated by the Treaty of Lisbon by acknowledging the

special role of domestic parliaments in reviewing the exercise of these

transferred powers. The fact that the European Parliament, elected

directly by citizens of Member States on the basis of the principle of

degressive proportionality, at the Union level performs some, though not

all, functions that are immanent to national representative assemblies,

primarily the review and legislative functions, testifies to the fact

that this body plays a supplementary role in strengthening the

transparency and democratic structure of the decision-making process,

and not that the Union itself thereby becomes a state, or that the

rights of domestic parliaments were transferred to it. The European

Union is thus a system sui generis, in which the element of democratic

representation is based on a chain of legitimacy between national

parliaments and the Council, and supplemented by the horizontal element

of representation in the European Parliament”.

 

49.

In points 34 to 41 of its brief the government argues in favour

of the conclusion formulated in point 41 that Article 17 of the TEU “is

not, in its opinion, in conflict with Article 1(1) of the Constitution

or with the Charter of Fundamental Rights and Freedoms” (regarding this

alleged ground for the Treaty of Lisbon’s conflict with the

constitutional order see point 14 of the judgment). Regarding the

question of the alleged vagueness of the term “European commitment” the

government points to the wording of that concept in other language

versions. The government states that “in the Czech translation the

perhaps somewhat inappropriately chosen term European commitment must be

understood in this context more as ‘European engagement’, or, loosely

speaking, a basic loyalty to the values and common objectives of

integration” (point 39 of the government’s brief). The government argues

similarly with regard to the alleged conflict between the requirement

of “European commitment” and the principle of political neutrality.

 

50.

In points 42 to 44 of its brief the government argues in favour of the

conclusion formulated in point 44, that “it does not share the

petitioners’ opinion that the institution of ‘enhanced cooperation’” set

forth in Article 20 of the TEU “contravenes the principle of the

sovereignty of the Czech Republic, and, in view of the foregoing, is

convinced that Article 20 of the TEU is not in conflict with Article

1(1) or with Article 10a of the Constitution of the CR” (regarding this

alleged ground for the Treaty of Lisbon’s conflict with the

constitutional order see point 15 of the judgment). In point 42 of its

brief the government states that

 

“the

purpose of enhanced cooperation is to permit certain Member States to

integrate into the Union faster, and at the same time ensure that, if

they later show interest in it, this cooperation will be open to other

Member States at any time under conditions specified clearly in advance.

For these reasons it is quite logical that the Treaty of Lisbon,

similarly to the Treaty on the EU already in effect, conditions enhanced

cooperation between groups of Member States on the fulfilment of

specified conditions and approval by the Council. If some Member States

of the EU wish to enter into cooperation outside the area of competence

of the Union, and without using its institutional structures, and that

cooperation is not in conflict with the obligations of those states

arising from them membership in the Union, the Treaty of Lisbon does not

impose any limitation on them. In contrast to the enhanced cooperation

pursuant to Article 20 of the TEU, however, in that case the Union

cannot guarantee to other Member States that the Member States involved

will permit them to join in such cooperation outside the framework of

the EU”.

 

51.

The government adds in this regard that “shared competences are

subject to the principle that, to the extent that the Union did not

exercise a particular competence or decided to stop exercising it, the

exercise of that competence belongs to the Member States” (government

brief point 43). In the government’s opinion, Member States may exercise

these competences not exercised by the Union individually, or jointly,

provided that the exercise of these competences does not come into

conflict with the obligations of these Member States arising from their

membership in the EU. However, as the government explains further,

 

“the

case of enhanced cooperation pursuant to Article 20 of the TEU is a

qualitatively different situation, because that cooperation takes place

within the objectives and competences of the Union and within the Union

integration process, which can thus be intensified and strengthened

within a smaller group (at least nine) of Member States. Member States

involved in enhanced cooperation exercise the non-exclusive competences

of the Union, not their own competences, as is expressly and clearly

stated in Article 20(1) of the TEU. If legislative acts are adopted in

this qualified enhanced cooperation, they will have the character of

Union law with all the appurtenant attributes” (point 43 of the

government’s brief).

 

52.

In points 45 to 51 of its brief, the government argues in favour

of the conclusion formulated in point 51, that “Article 21(2)(h) of the

TEU is not in conflict with Article 1(1) of the Constitution of the CR

or with Article 2(1) of the Charter of Fundamental Rights and Freedoms”

(regarding this alleged ground for the Treaty of Lisbon’s conflict with

the constitutional order see point 16 of the judgment), and it refers to

the arguments applied regarding similar arguments from the petitioners,

and adds a comparative linguistic interpretation, through which the

government reaches the conclusion that “in negotiating the Treaty of

Lisbon, the Member States did not have in mind proper administration of

public matters in the sense of responsible exercise of public power

vis-à-vis subordinate subjects, which is effectively exercised only

within a state, as the petitioners erroneously believe, as much as

responsible adoption of political decisions vis-à-vis equal partners,

which is intended to lead to creating and maintaining worldwide order”

(point 48 of the government’s brief).

 

53.

In points 52 to 58 of its brief, the government argues in favour

of the conclusion formulated in point 58, that the possibility of the

creation of a common defence of the EU, enshrined in Article 42(2)(1) of

the TEU, is not in conflict with Article 1(1) or with Article 10a of

the Constitution (regarding this alleged ground for the Treaty of

Lisbon’s conflict with the constitutional order see point 17 of the

judgment). The government primarily considers it essential to oppose the

petitioners’ claim (in point 131 of the petition) that “the new text of

the Treaty of Maastricht does not permit of any alternative to the

establishment of a common defence”. According to the government, this

claim is “in direct conflict with Article 42 of the TEU”. According to

the government, it is “evident, that from a legal point of view there is

a possibility to decide unanimously on common defence, but it is left

to the political consideration of representatives of Member States in

the European Council whether to adopt that decision. This is not, under

any circumstances, a legal obligation, the failure to fulfil which would

be violation of a treaty obligation. In other words, a common defence

will be created if the European Council so decides at an as yet

undetermined future time, solely on the basis of its political

consideration, without being legally bound to do so” (both quotations

from point 53 of the government’s brief). The government also points to

the need for all Member States to approve such a decision in accordance

with their legislation (point 54 of the government’s brief). The

government is also convinced that

 

“the

petitioners claim regarding the impossibility of transferring any

competences concerning defence to an international organization is

unsustainable. If defence matters were truly a fundamental attribute of

the sovereignty of the CR, whose preservation would not permit making

defence a subject of international obligations, the entire Article 43 of

the Constitution of the CR would cease to make sense. It is evident

that both the fulfilment of international treaty obligations on common

defence against attack (Article 43(1) of the Constitution of the CR),

and the CR’s participation in defence systems of international

organizations of which the CR is a member (Article 43(2) of the

Constitution of the CR), as well as the presence of the armed forces of

other states in the territory of the CR (Article 43(3) of the

Constitution of the CR), clearly represent a sharing of competences in

defence, based, of course, on valid international treaty obligations

accepted by the CR as a sovereign state, and meeting the procedures set

forth by the Constitution of the CR. Accepting such treaty obligations

is expressly permitted by Article 49(b) of the Constitution of the CR,

which defines ‘treaties of alliance, peace, or other political nature’

as one of the categories of ‘presidential treaties’” (point 55 of the

government’s brief).

 

54.

In this regard the government points out the Czech Republic’s

membership in the North Atlantic Treaty Organization – NATO (the North

Atlantic Treaty [Washington, D. C., 4 April 1949], which entered into

force for the Czech Republic in accordance with Article 10 of the Treaty

on 12 March 1999 and was promulgated as no. 66/1999 Coll.) and the

consequences arising from it, with regard to Article 42(7)(2) of the

TEU.

 

55.

In points 59 to 61 of its brief, the government argues in favour of

the conclusion formulated in point 61, that Article 50(2) to (4) of the

TEU “governing the process of withdrawal of a Member State from the

Union is not in conflict with Article (1) or with Article 10a of the

Constitution” (regarding this alleged ground for the Treaty of Lisbon’s

conflict with the constitutional order see point 18 of the judgment). In

this regard the government points out the Constitutional Court’s

conclusions stated in point 106 of judgment Pl. ÚS 19/08, that “the

explicit articulation [of the possibility of withdrawal from the Union]

in the Treaty of Lisbon is an undisputed confirmation of the principle

that States are the Masters of the Treaty and the continuing sovereignty

of Member States”. According to the government, “the regulation of the

withdrawal process is an expression of the common will of the Member

States to address their future relationships by agreement, consensually,

and comprehensively (which, in the case of such an integrated whole, is

undoubtedly desirable)” (point 59 of the government’s brief).

 

56.

Regarding the alleged grounds for the non-conformity of the Treaty

of Lisbon with the constitutional order that the petitioners set forth

in point III of the statement of claim of the petition (regarding this

point of the statement of claim of the petition see point 19 of the

judgment), the government points out that the petitioners are contesting

Article 78(3) of the TFEU and Article 79(1) of the TFEU, “without

paying attention to the systematic interpretation of these provisions,

whether the concept itself of an area of freedom, security and justice,

international obligations in asylum policy, free crossing of internal

borders, protection of external borders and related visa policy, or the

efforts to achieve a comprehensive solution for legal and illegal

migration. They ignore those articles of the TFEU that refute their

arguments, as well as the literal text of the cited articles” (point 62

of the government’s brief). Regarding Article 78(3) of the TFEU, the

government states that it must be remembered “that it is precise the

Member States who decide on such measures in the Council, to the benefit

of the affected Member State(s). This provision must also be

interpreted in the context of the principle of solidarity and a just

distribution of responsibility among the Member States, including on a

financial level” (point 63 of the government’s brief). Regarding Article

79(1) of the TFEU, the government “considers it necessary to point out

paragraph 5 of that article, which the petitioners completely ignored”..

According to the government “that provision guarantees Member States

the right to set the number of entries of citizens of third countries

coming to their territory in order to seek work or do business as an

independent entrepreneur. This is an especially important regulatory

mechanism that should remain to protect the domestic labour market from

an undesirable (unmanageable) influx of foreign citizens who can now

move freely in search of work within the Union’s common labour market”

(point 64 of the government’s brief). Based on this, “the government

believes that the petitioners’ claims stated in part III of the petition

are obviously unjustified. In the government’s opinion Article 78(3)

and Article 79(1) of the TFEU are not in conflict with Article 1(1) of

the Constitution” (point 65 of the government’s brief).

 

57.

Regarding point IV of the statement of claim of the petition, the

government states that “the Constitutional Court does not have

substantive jurisdiction to review this petition, for the reason that

the Decision is not the kind of international treaty that is subject to

preliminary review of constitutionality [...], and also because here the

Constitutional Court is only asked to authoritative state that a

particular legal opinion is true” (point 66 of the government’s brief).

 

D.

Brief from the President of the Republic

 

58.

On 16 October 2009 the Constitutional Court received a brief from the

president of the republic. It is divided into five parts, marked A to

E.

 

59.

In part A, entitled “Preamble”, the president points out the

social-political context for the approval of the Treaty of Lisbon,

welcomes the petition from the group of senators, and states that

“although the Constitutional Court has already spoken on the matter of

the Treaty of Lisbon, that was only about individual components, and not

on the Treaty as a whole”. In the president’s opinion, the previous

review of sections of the Treaty of Lisbon is not a guarantee that could

refute doubts about the compatibility of the Treaty of Lisbon with our

constitutional order. The task before the Constitutional Court today is

completely different, and therefore not comparable to the one that it

had in the autumn of last year”. The president returns to the previous

review of the Treaty of Lisbon in the last paragraph of the first part

of his brief:

 

“In

view of the fact that the previous review of the conformity of the

Treaty of Lisbon with the constitutional order of the CR was based on a

specific approach where the Constitutional Court reviewed only those

provisions that the Senate then contested, and did not review the Treaty

of Lisbon comprehensively and in its entirety, my arguments, presented

in my brief of June 2008 were not seriously reviewed and weighed. At

that time the Constitutional Court responded to my extensive brief in a

single sentence. The present submission from the senators, which is much

wider in the scope of contested provisions, provides an opportunity to

consider the issues of the Treaty of Lisbon more comprehensively, and

thus also opens an opportunity to return to my previous arguments”.

 

60.

In part B the president recapitulates his brief of June 2008

(presented in the proceedings in the matter file no. Pl. ÚS 19/08). The

president believes that he “did not get complete and convincing answers,

either in the proceedings or later” to five questions that he raised in

that brief. He repeats those questions in the submitted brief.

 

61.

The first question raised by the president was: “Will the Czech

Republic remain, after the entry into force of the Treaty of Lisbon, a

sovereign state and full subject in the international community, with

capacity to independently, without anything further, to fulfil the

obligations arising to it under international law?” In the president’s

opinion the Constitutional Court “avoided answering directly, and raised

a new theory of sovereignty shared jointly by the European Union and

the Czech Republic (and other Member States)”. The president states:

 

“The

term shared competence has been used relatively frequently recently,

but only in non-rigorous debate. It is a contradiction in terms. Not

only does our legal order not know the term ‘shared sovereignty’, but

neither does the law of the European Union. It was used only in the

decision of the European Parliament and the Council that established the

2007-2013 programme Citizens for Europe to support active European

citizenship; that decision states that ‘the culture of shared

sovereignty – and not giving up sovereignty – that is the culture and

identity of today’s European citizen, and all the more so the citizen of

the future’. That, of course, cannot be the basis for any legal

arguments”.

 

62.

In the following paragraph the president presents his concept of

sovereignty: “The essence of sovereignty is the unrestricted exercise of

power. Sovereignty rejects the sharing of power”. According to the

president, “the consequences of this opinion of the Constitutional Court

[the president evidently means the concept of sovereignty expressed by

the Constitutional Court in judgment Pl. ÚS 19/08] indicate that in the

European Union there will be no sovereign in the classic sense of the

word. That is a very dangerous social arrangement”. The president

concludes:

 

“I

do not think that this is the kind of sovereignty that the Czech

constitutional framers had in mind when they formulated Article 1 of the

Constitution in 1992. The Constitutional Court’s answer also indicates

the answer to the second part of this question: The Czech Republic, as a

subject in the international community, does not have full rights, and

it can fulfil its international obligations only together with the

European Union. To me that was not, and is not, an acceptable answer”.

 

63.

The second question to which the president sought an answer in the

proceedings before the Constitutional Court was: “Is the provision of

the Treaty of Lisbon on direct domestic effect of European Union

legislation consistent with Article 10 of the Constitution of the Czech

Republic?” In the president’s opinion “the Constitutional Court did not

provide any answer at all to this question. It touched on the issue

[according to the president] only by reference to the ‘sugar quota’

case”.

 

64.

According to his brief, in his third question the president asked:

“Does the Charter of Fundamental Rights of the European Union have the

legal status of an international treaty pursuant to Article 10a of the

Constitution, and if so, are all its provisions consistent with the

Charter of Fundamental Rights and Freedoms of the Czech Republic, or

other components of the constitutional order?” In the president’s

opinion “the Constitutional Court did not provide a direct answer to the

first part of the question. One can only indirectly conclude from the

judgment that the Constitutional Court considers the Charter of

Fundamental Rights of the European Union to be an international treaty

and that the Charter is not in conflict with the Constitution. However,

an express answer was not provided”.

 

65.

In his fourth question the president asked whether the European

Union will remain “after the entry into force of the Treaty of Lisbon an

international organization, or institution, to which Article 10a of the

Constitution permits transferring the powers of the authorities of the

Czech Republic”. According to the president, “the Constitutional Court

did not provide an answer”.

 

66.

Finally, the fifth question posed by the president: “If the Treaty

of Lisbon indirectly amends the Accession treaty, does not

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

of the Czech Republic to the European Union then implicitly also apply

to the Treaty of Lisbon (the question for the referendum in that Act

would then have to be amended)? Should not consent to ratification of

the Treaty of Lisbon also be subject to a referendum?” Here the

president states that “this was the only question that the

Constitutional court answered, although it apparently did not understand

my question”. As the president understands it:

 

“The

Constitutional Court stated that a referendum is possible, but that the

decision is not up to the Constitutional Court, but to political

bodies. However, I asked whether the already adopted constitutional act

on a referendum on the accession of the Czech Republic to the European

Union does or does not also apply to the Treaty of Lisbon. That treaty

changes the conditions of our accession, in a substantial manner”.

 

67.

The president points out the background report to constitutional

Act no. 515/2002 Coll. (in his opinion “approved by the government and

the Parliament of the Czech Republic”) and quotes the following passage

from it:

 

“the

formulation of Article 10a of the Constitution presupposes alternative

conditions for the ratification of an international treaty that

transfers certain powers of authorities of the Czech Republic to an

international organization or institution either the consent of a

three-fifths majority of all deputies and a three-fifths majority of

senators present, or consent given in a referendum. The draft act makes

this general formulation specific to the effect that ratification of the

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

requires prior consent in a referendum, because only by referendum can

the decision to accede to the European Union be made; thus, it selects

one of the alternatives set forth in Article 10a. The act does not

concern the ratification process for other defined kinds of

international treaties; that will be subject to future decisions by

Parliament”.

 

The

president concludes from this that “in 2002 Parliament already assumed

that, pursuant to Article 10a of the Constitution, if in the future any

of the powers of authorities of the Czech Republic were to be

transferred to an international organization or institution, that should

take place by referendum”. In the president’s opinion the

Constitutional Court

 

“did

not at all consider the question of whether the Treaty of Lisbon, which

is to be ratified more than five years after 1 May 2004, i.e. from the

date of the Czech Republic’s accession to the European Union, changes

the conditions under which the citizens voted on the referendum on the

Czech Republic’s accession to the European Union, and whether it is

therefore necessary to adopt a new act on a referendum in which the

citizens would answer the question of consent to the changes adopted by

the Treaty of Lisbon”.

 

68.

In the conclusion of part B the president proclaims: “The

Constitutional Court must give a direct answer to all these questions”.

 

69.

In part C the president recapitulates the petition from the group of

senators and agrees with their objections. In the conclusion of this

part the president welcomes their attempt “to define in a final list the

elements of the ‘essential core’ of the constitutional order, or more

precisely of a sovereign democratic state governed by the rule of law”.

The president believes that “if the Constitutional Court accepts this

definition as its own, or defines it in a different, similar manner,

this could limit future self-serving definition of these elements based

on cases being adjudicated at the time”. In the president’s opinion this

would significantly strengthen the degree of legal certainty for the

citizens and state authorities.

 

70.

In part D the president returns to the petition of the group of

senators seeking the annulment of certain provisions of the rules of

procedure of both chambers of Parliament (file no. Pl. ÚS 26/09) and

states that the Constitutional Court denied it “without examining it in

detail”. The president has “no choice but to express regret over this

hasty step by the Constitutional Court, because these serious questions

of Czech statehood thus remain unanswered, and can be subject to further

disputes in the future”.

 

71. In the concluding part E the president proposes,

 

“that

the Constitutional Court decide, clearly, specifically, and with

detailed reasons on the conformity of the Treaty of Lisbon as a whole

with Article 1(1) of the Constitution, or with Article 2(1) of the

Charter of Fundamental Rights and Freedoms, and that it state whether

the Czech Republic will remain, after the ratification of the Treaty of

Lisbon, a sovereign, unitary and democratic state governed by the rule

of law, founded on respect for the rights and freedoms of the man and of

citizens”.

 

72.

On 23 October 2009 the Constitutional Court received, through the

president’s attorney, Aleš Pejchal, a supplement to the president’s

brief. In it the president agrees with the supplement to the petition

from the group of senators, and then urges the Constitutional Court not

to overlook review of the compatibility of the Treaty of Lisbon with the

Constitution also with regard to whether “abandoning the principle of

consensuality in the field including the area of freedom, security and

justice, and introducing in that field the principle of majority voting

by representatives of the executive branch of individual Member states

of the European Union violates Article 10a of the Constitution, because

in fact this is not a transfer of the powers of authorities of the Czech

Republic to an international organization, but to a group of states,

which will outvote the Czech Republic in promoting their own interests”.

In the president’s opinion, “Article10a of the Constitution does not

permit the transfer of powers of authorities of the Czech Republic to

another state or group of states”.

 

III.

Hearing

 

73.

In the hearing before the Constitutional Court, held on 27 October

2009, the petitioners were represented by senator Jiří Oberfalzer and

the attorney appointed by him, Jaroslav Kuba, the Chamber of Deputies fo

the Parliament of the Czech republic was represented by its chairman,

Miloslav Vlček, the senate of the Czech Republic was represented by its

chairman, Přemysl Sobotka, the president of the republic was represented

by his appointed attorney, Aleš Pejchal, and the government of the

Czech Republic was represented by the Minister for European Affairs,

Štefan Füle.

 

74.

The petitioners’ attorney, with reference to § 37(1) of the Act

on the Constitutional Court, raised the objection that the judge

rapporteur, Pavel Rychetský, was biased, and based doubts concerning his

lack of bias on the fact that the text of an article published in the

internet edition of Lidové noviny of 30 September 2009, entitled “German

Ambassador Asks Rychetský about Fate of Lisbon Treaty”, states, among

other things, that “two weeks ago the German ambassador made an

appointment with the chairman of the court, Pavel Rychetský, and

discussed the Treaty of Lisbon with him. Judge Rychetský confirmed this

to Lidové noviny. According to Rychetský, ambassador Johannes Haindl was

curious about how long it would take the court to issue a judgment

(sic!). As the article correctly (sic!) further states, the meeting ...

came as a surprise to the senators who filed the constitutional

complaint (sic!)”.

 

75.

The Constitutional Court suspended the hearing, and then ruled on the

objection by resolution as follows: “Judge Pavel Rychetský is not barred

from deliberating and deciding in the matter file no. Pl. ÚS 29/09”.

For details, we refer to that resolution, available at

nalus.usoud.cz.

 

76.

When the hearing resumed, the chairman of the Constitutional Court

briefly recapitulated the contents of the petition, together with the

supplement submitted by the petitioners, and the briefs from the parties

to the proceedings, and called on the government’s representative to

submit, in accordance with the request made by the judge rapporteur on

26 October 2009, a copy of the resolution of the government of the Czech

Republic of 13 December 1995 no. 732 on the application of the Czech

Republic for admission to the European Union, together with the

application and memorandum attached to that application. The government

representative did so and during the recess in the hearing copies of

these documents were also delivered to the other parties to the

proceeding.

 

77.

The petitioners, through their legal representatives, submitted a

document entitled “Supplement and Further Detail to the Statement of

Claim of the Petition, with Grounds” (the “second supplement”) and

briefly summarized its contents. The chairman of the Constitutional

Court delivered copies of the second supplement to the other parties

expediently directly during the hearing.

 

78.

In the second supplement the petitioners, in their words,

“supplement and make more precise the statement of claim of the

petition” dated 29 September 2009 and the supplement to it dated 15

October 2009 as follows: Point I of the statement of claim of the

petition, as it is formulated in the second supplement, reads: “The

Treaty of Lisbon (the consolidated version) as a whole, (the treaty of

Maastricht as a whole and the Treaty of Rome) contravenes Article 1(1)

of the Constitution, and Article 2(1) [of the Charter]”. The petitioners

make the following changes in point II of the statement of claim of the

petition:

 

-

Article 7(3) of the TEU already contested in the original petition

(see point 11 of this judgment; of course, in the original petition and

the supplement the petitioners contested Article 7 of the TEU as a whole

and then also the specific wording), according to the petitioners also

contravenes Article 2(3) of the Constitution,

-

- Article 9 of the TEU, according to the petitioners, contravenes Article 1(1) of the Constitution,

-

-

Article 13(1) of the TEU and Article 47 of the TEU, according to the

petitioners, contravene Article 10a(1) of the Constitution,

-

- Article 14(2) of the TEU, according to the petitioners, contravenes Article 1 of the Charter,

-

-

Article 17(1) and (3) of the TEU, already contested in the original

petition (see point 14 of this judgment; of course, in the supplement

the petitioners contested only the second paragraph of Article 17(3) of

the TEU), according to the petitioners, also contravene Article 21(4) of

the Charter,

-

- Article 19(1) of the TEU, according to the petitioners, contravenes Article 87(2) of the Constitution

-

-

Article 50(2) and (4) of the TEU, already contested in the original

petition (see point 18 of this judgment), according to the petitioners,

contravene Article 2(3) of the Constitution.

 

79.

In connection with Article 8 of the TEU, already contested in the

original petition, (see point 12 of this judgment), in the second

supplement the petitioners do not set forth conflict by specific phrases

as they did in the original petition; regarding Article 7 of the TEU,

in this second supplement the petitioners cite only paragraph (3);

regarding Article 50 of the TEU, in this second supplement the

petitioners cite only (2) and (4), not paragraphs (2) to (4), as they

did in the original petition and in the supplement (see point 18).

However, these differences can evidently be ascribed more to careless

preparation of these submissions (just like the express questioning of

only the second paragraph of Article 17(3) of the TEU in the supplement

to the petition), than to the petitioners’ intent, and the

Constitutional Court thus does not consider them relevant.

 

80.

The petitioner justified the abovementioned supplement, or

modification of the wording of the statement of claim of the petition as

summarized in the following points of this judgment (typographical

errors in the quotations have been corrected, but not the syntax).

 

81. Regarding the alleged conflict of Article 7(3) of the TEU with Article 2(3) of the Constitution:

 

“In

applying this power the Council, acting by qualified majority, may

decide to suspend the rights of a Member State, including the voting

rights of the representative of the government of that Member State in

the Council. That will consequently limit the powers of that Member

State, with effects on its citizens. The legal norm containing this

rule, enshrined in [Article 7(3) of the TEU], and permitting the

reduction of the power of a Member State, which is primarily established

as service to its citizens, is thus in direct conflict with a legal

norm in the Czech constitutional order. Specifically, the norm enshrined

in [Article 2(3) of the Constitution], pursuant to which state

authority is to serve all citizens”.

 

82.

Here the Constitutional Court notes that the petitioners used

the same grounds to contest the conformity of Article 7 of the TEU with

Article 2(3) of the Constitution in their original petition (cf. point

11 of this judgment).

 

83. Regarding the alleged conflict of Article 9 of the TEU with Article 1(1) of the Constitution:

 

“Application

of this legal norm, involves applying the institution of so-called

‘European citizenship’, which is not derived from the Constitution, or

the constitutional order of a Member State. In view of the fact that the

institution of citizenship is not a defining element of an

international organization, but of a state, introduction of so-called

‘European citizenship’ also proves that, in the meaning of this

regulation, the legal subject status of the EU bears the signs of a

state. (A designation like ‘citizens of the Member States of the

European Union’ would correspond to the legal subject status of an

international organization.)

 

This

will subsequently limit the sovereignty of a Member State. The

Constitution of the CR mentions citizenship that carries legal

consequences only in relation to the state, in Articles 1, 2, 12 and

100.

 

Thus,

from the legal norm containing that institution, and enshrined in

[Article 9 of the TEU], one cannot rule out that contradictory

responsibilities will arise fro a citizen of a Member state.

Responsibilities arising from the state-citizenship relationship, and

responsibilities arising from ‘European commitment’. Thus, the creation

of citizenship with legal consequences pursuant to [Article 9 of the

TEU] for a citizen of the CR is in conflict with the constitutional

principle of the sovereignty of the CR, enshrined in [Article 1(1) of

the Constitution]: ‘The Czech Republic is a sovereign, unitary and

democratic state governed by the rule of law”.

 

Because

thus, its citizens, as a result of the creation of a ‘European

citizenship’ may face, e.g. a dilemma in deciding between responsibility

to the state or to the EU, in the event of a conflict between them”.

 

84.

Regarding the alleged conflict of Article 13(1) of the TEU and

Article 47 of the TEU with Article 10a(1) of the Constitution, the

petitioners state that “in applying the cited articles, the legal

subject status of the European Union will function as the legal subject

status of a state”. The petitioners develop this claim in the following

passages and conclude that application of these articles of the TEU

 

“indicates

that the transfer of certain powers to the EU and its authorities will

cause the Member state to lose the sovereign ability to defend its

nationals from the effects of external limitations on their fundamental

rights. Because the subject to which these powers are transferred has

the legal subject status of a state, and not the legal subject status of

an international organization or institution. Therefore [these articles

are] in conflict with [Article 10a(1) of the Constitution]. Which

provides that ‘Certain powers of Czech Republic authorities may be

transferred by treaty to an international organization or institution’,

and thus not to another state”.

 

85.

Regarding the alleged conflict of Article 14(2) of the TEU with

Article 1 of the Charter, the petitioners point out that as a

consequence of application of this article “citizens of the most

populous state will have up to 12.6 % of representatives in the maximum

750-member [European Parliament], while the least populous only 0.8 %”.

The petitioners conclude that this violates the principle of equality

enshrined in the cited provision of the Charter.

 

86. Regarding the alleged conflict of Article 17(1) and (3) of the TEU with Article 21(4) of the Charter:

 

“[Article

17(3) of the TEU] states: ‘...The members of the Commission shall be

chosen on the ground of their general competence and European

commitment’. The content of ‘European commitment’ is not defined, may be

used for discrimination, etc. Primarily, however, it is not ruled out

that it may be transferred into an exclusive EU ideology that deforms

the pluralism and democratic values on which it was established.

 

This conflict thus is no longer only the ‘problem; of the CR.

 

The

cited article of the TEU thus contravenes [Article 21(4) of the

Charter]: ‘The state ... may not be bound ... by an exclusive ideology.’

And, likewise, [Article 21(4) of the Charter]: ‘Citizens shall have

access, on an equal basis, to any elective and other public office’”.

 

87.

Similarly as in relation to the arguments raised concerning the

conflict of Article 7 of the TEU with Article 2(3) of the Constitution

(see point 82 of this judgment) the Constitutional Court points out that

this supplement in fact reproduces the original petition (see point 14

of this judgment).

 

88.

Regarding the alleged conflict of Article 19(1) of the TEU with

Article 87(2) of the Constitution, the petitioners state that

“interpretation of the law by the European Union Court of Justice is one

of the sources of so-called ‘Union law”, which, pursuant to the

‘Declaration’ attached to the Concluding Act of the Intergovernmental

Conference under point ‘A’ as the ‘Declaration to Treaty Provisions’ no.

17: ‘Declaration of the Priority of law’, has priority before the laws

of a Member state”. Thus according to the petitioners

 

“interpretation

of any supplements or amendments to the Treaty of Lisbon by the

European Union Court of Justice will have priority over interpretation

of them by the constitutional court of an EU Member State. This applies

in the event of the court’s decision-making on consistency of an

international treaty with the constitution or the constitutional order.

 

This

will consequently limit the power of the constitutional court in

question, which, in the case of [the Constitutional Court of the CR] is

enshrined in [Article 87(2) of the Constitution] and within which it

decides on the consistency of an international treaty pursuant to

Article 10a and Article 49 with the constitutional order, before it is

ratified.

 

The

legal norm containing this rule [ Article 19(1) of the TEU] thus makes

the European Union Court of Justice superior in interpretation of the

‘Treaties’ (meaning the Treaty of Lisbon), including in cases of their

interpretation by the constitutional court of an EU Member State. This

applies to its decision-making on the conformity of the Treaty of Lisbon

as amended by any amendments and additions to the international treaty

with the constitution or the constitutional order of the Member State.

 

It

is thereby in direct conflict with the legal norm of the Czech

constitutional order enshrined in [Article 87(2) of the Constitution].

That permits [the Constitutional Court] to reach an independent judgment

concerning the interpretation of an international treaty pursuant to

Article 10a and Article 49, if it is to decide on its consistency with

the constitutional order of the CR. At the same time, this makes

interpretation of the Constitution dependent on a norm contained in

another legal document”.

 

89.

Finally, regarding the alleged conflict of Article 50(20 and (4)

of the TEU with Article 2(3) of the Constitution, the petitioners state

that “withdrawal [is] bound to conditions that are unilaterally

determined by instructions of the European Council. Because, pursuant to

(4) a Council member, representing the withdrawing state, may not take

part in its discussions”. Therefore, according to the petitioners, “it

cannot be ruled out that conditions contained in an accession treaty can

be even economically destructive for the withdrawing state, and force

it to reverse its decision. In other words – and again this does not

involve only the CR – that if the right of a Member State to withdraw

from the EU is to be limited, then at least under conditions that are

known before its accession”. Directly regarding the alleged conflict the

petitioners state that

 

“if,

pursuant to (4) a member of the European Council or the Council that

represents the withdrawing state may not take part in discussions

concerning his state, then the ‘Treaty of Lisbon’ thereby, during that

process, also limits the potential of the withdrawing state to serve its

citizens, and at the same time, their right in this regard. Thereby it

contravenes [Article 2(3) of the Constitution], pursuant to which ‘state

authority is to serve all citizens’”.

 

90.

After a question from the chairman of the Constitutional Court, the

petitioners’ attorney confirmed that the petitioners maintain the

further points of the statement of claim that were not stated again in

the second supplement. He also confirmed that the petitioners understand

points II and III as alternatives to point I of the statement of claim.

 

91.

In the closing statement senator Jiří Oberfalzer, representing

the petitioners, returned to the contents of the previous petitions and

the supplement presented by the petitioners, and extensively

recapitulated the contents of the brief in the matter file no. Pl. ÚS

26/09. The petitioners’ attorney then in his statement argued against

points 70 to 76 of judgment Pl. ÚS 19/08. The Constitutional Court notes

here, for completeness, that after presentation of evidence was

concluded, closing statements were made, and the Constitutional Court

retired for its final deliberations, on 30 October 2009 it received

another submission from the petitioners through their attorney. In view

of the timing of this submission, and in view of the fact that, based on

its content, it was evidently not a petition to open proceedings, that

submission was set aside [§ 41(a) of the Act on the Constitutional

Court].

 

92.

The attorney for the president of the republic primarily repeated

the questions raised by the president in his brief (see points 60 to 68

of this judgment) and then quoted extensively from the abovementioned

memorandum attached to the Czech Republic’s application for admission to

the European Union (see point 76 of this judgment). He pointed to the

fact that, in the president’s opinion, the character of the European

Union is fundamentally changed in comparison with its present character.

 

93.

The representatives of both chambers of the Parliament of the

Czech Republic recapitulated the contents of their written briefs and

again pointed out that the Constitutional Court already considered the

conformity of the Treaty of Lisbon with the constitutional order in

detail in the proceeding file no. 19/08, with a positive result.

 

94.

The government’s representative first recapitulated the contents

of the government’s written brief and then presented a separate brief

regarding the supplement to the petition, in the conclusion of which he

stated that the government believes that the individual articles of the

TFEU contested in the supplement are not in conflict with the

constitutional order. He also responded to the president’s written

brief. At the conclusion of his presentation he stated that “the

government of the Czech Republic performed a thorough legal analysis on

the Treaty of Lisbon, the petition from the group of senators, including

the later supplement to it, and the brief from the president, and based

on that, concluded that the individual contested articles of the Treaty

of Lisbon, and the Treaty as a whole, are not in conflict with the

constitutional order of the Czech Republic”.

 

IV.

Definition of the Scope of Review

 

95.

Before the Constitutional Court turns to review of the Treaty of

Lisbon, it must define the scope in which it is authorized to review the

treaty, especially in view of its previous judgment, Pl. ÚS 19/08. In

that regard, three questions arose before the Constitutional Court.

First, to what extent does the Constitutional Court’s previous judgment

prevent it from further review of the Treaty of Lisbon (the impediment

of rei iudicatae, part A below). Second, the question of the ability to

review the Treaty of Lisbon, or the treaties which it amends (i.e. the

TEU and the TFEU), as a whole, and the related substantive limits of the

review of international treaties (part B below). Finally, third, the

Constitutional Court considers it necessary to point out the fundamental

principles of proceedings on the constitutional conformity of

international treaties pursuant to Article 87(2) of the Constitution and

related provisions of the Act on the Constitutional Court, especially

with regard to the possibility of misuse of this proceeding for

unconstitutional obstructive practices (part C below).

 

A.

The Impediment of Rei Iudicatae in Relation to Judgment Pl. ÚS 19/08

 

96.

In point 78 of judgment Pl. ÚS 19/08 the Constitutional Court stated

that any new petition for review of this same Treaty of Lisbon would

evidently be barred, as regards the now-contested provisions, by the

impediment of rei iudicatae. Even then, however, the Constitutional

Court pointed out that it would make that evaluation only if a new

petition were really submitted; at the same time, it indicated that it

is appropriate to interpret the issue of rei iudicatae restrictively in

such a case. The Constitutional Court thus left evaluation of the

impediment of rei iudicatae open. A key point in this regard is the

definition of when the “same matter” is involved.

 

97.

A restrictive understanding of the impediment of rei iudicatae

corresponds to a double unity: an identical provision of the

international treaty that is contested by the petition, and at the same

time the identical grounds claimed for its conflict with the

constitutional order, in light of which the provision of the

international treaty was reviewed in the previous decision and which is

to establish the impediment of rei iudicatae. The impediment of rei

iudicatae, thus defined, is restrictive in the sense that it imposes

stricter requirements on the unity of the matter.

 

98.

On the other hand, the impediment of rei iudicatae, thus defined,

provides a wider opportunity to potential subsequent petitioners to

contest the constitutionality of an international treaty than if the

unity of the matter had occurred, e.g. through merely one unity of the

contested provision of the international treaty. This also corresponds

to the concept of proceedings pursuant to Article 87(2) of the

Constitution, on which the Constitutional Court spoke in the already

cited judgment Pl. ÚS 19/08 (point 76) as follows: “The order of

individual petitioners, as set forth in § 71a(1) [of the Act on the

Constitutional Court], 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 first petition for review

of a provision of an international treaty could effectively bar further

petitions for review of that same provision, raised in view of possible

conflict with provisions of the constitutional order, which the

Constitutional Court did not consider in the previous decision, the

possibility for each potential petitioner to express his doubts on the

constitutionality of the international treaty being discussed would lose

meaning to a considerable degree.

 

99.

However, the Constitutional Court emphasizes that this order of

petitioners and the consequences that the Constitutional Court draws

from it in the previous point, do not mean that potential subsequent

petitioners (or potential parties to other proceedings) may contest,

over and over again, conclusions that the Constitutional Court has

already stated in a judgment concerning the conformity with the

constitutional order of an international treaty (or of those provisions

that the Court reviewed) (see also part C of this part of the judgment,

below). The finality, non-changeability, and binding nature of an

enforceable decision by the Constitutional Court, which follow from

Article 89 of the Constitution and related provisions of the Act on the

Constitutional Court, play important roles, that reflect the status of

the Constitutional Court as a body of a judicial nature, not a place for

comments or a place for discussions of a primarily academic or

political nature (in this regard, cf. judgment Pl. ÚS 19/08, point 75).

 

100.

The Constitutional Court is a constitutional body endowed, pursuant

to Article 89(2) of the Constitution, with the power to authoritatively

and with final effect interpret provisions of the constitutional order,

not a place for endless debate, which some parties seek. An enforceable

judgment of the Constitutional Court is binding on all authorities and

persons (Article 89(2) of constitutional Act no. 1/1993 Coll.), and thus

– as is obvious in itself – is also binding on the Constitutional Court

itself. In that sense, the consequence of this for any other

proceedings before the Court in which a decision is to be made again

(even if in a different manner), is the unavoidable procedural

impediment of rei iudicatae (§ 35(1) of Act no. 182/1993 Coll.), which

natural bars any further review of the matter on the merits [judgment

file no. III. ÚS 425/97 dated 2 April 1998 (N 42/10 SbNU 285), p.

287–288].

 

101.

The Constitutional Court considered in detail the arguments

raised by the petitioners in their supplement relating to the alleged

conflict of Article 2 and 4 of the TFEU (defining the competences of the

Union) with Article 1(1) and Article 10a of the Constitution (regarding

this alleged ground cf. points 26 to 29 of this judgment) in points 125

to 141 of its judgment Pl. ÚS 19/08; the same applies to the arguments

raised concerning the alleged conflict of Article 216 of the TFEU with

those same provisions of the Constitution (regarding this alleged ground

cf. point 31 of this judgment); in this regard the petitioners do not

in any way disguise the fact that they are asking the Constitutional

Court to reevaluate its conclusion stated in judgment Pl. ÚS 19/08, in

points 176 to 186. Therefore, the Constitutional Court must deny these

petitions on the basis of § 35(2) of the Act on the Constitutional

Court, as impermissible. The related petition for review of Article 3 of

the TFEU cannot be denied on that basis, because the Constitutional

Court did not explicitly consider it in its judgment Pl. ÚS 19/08.

However, at this point the Constitutional Court refers to the same

points of judgment Pl. ÚS 19/08, which also apply to review of the

conformity of Article 2 and 4 of the TFEU with the constitutional order,

and which also apply fully to Article 3 of the TFEU.

 

102.

On the other hand, although Article 7 of the TEU was already

subject to review in the proceedings file no. Pl. ÚS 19/08, the

Constitutional Court did not consider the ground for its possible

conflict with Article 1(1) and Article 2(3) of the Constitution, raised

by the petitioners in the present proceeding (regarding these alleged

grounds, cf. points 11 and 81 of this judgment and points 205 to 210 of

judgment Pl. ÚS 19/08). Therefore, the impediment of rei iudicatae does

not prevent further review of it in this proceeding.

 

103.

The impediment of rei iudicatae also applies to the president’s

brief, in which he formulates “five questions”, and states that he “did

not get a complete and convincing answer to them in the proceeding or

later”. As the Constitutional Court already stated above in point 99 of

this judgment, it is not the role of the Constitutional Court to answer

questions, but to make authoritative rulings; in this case on the

conformity of an international treaty with the constitutional order. The

Constitutional Court has already made an enforceable decision regarding

the doubts that the president returns to in his brief, in judgment Pl.

ÚS 19/08, and can only refer to that judgment (see points 104 and 105

below).

 

104.

This applies to the first question, concerning the sovereignty of

the Czech Republic (where the Constitutional Court also refers to part

of the reasoning of this judgment, points 146 to 150, which concerns

those petitioners arguments that overlap with the question posed by the

president). Regarding the second question, concerning the effects of

norms of European Union law on the domestic level, where the president

himself, in his brief, mentions judgment file no. Pl. ÚS 50/04 dated 8

March 2006 (N 50/40 SbNU 443; 154/2006 Coll.), which provides the

requested answer, the Constitutional Court only adds a reference to

point 113 of its judgment Pl. ÚS 19/08, and points out that the direct

domestic effects of community law were established for the Czech

Republic at the moment when it joined the EU, and they cannot, under any

circumstances, be derived from the Treaty of Lisbon. Regarding the

third question, concerning the Charter of Fundamental Rights of the

European Union (where the Constitutional Court refers to points 190 to

204 of judgment Pl. ÚS 19/08, and especially point 204, where the

Constitutional Court explicitly states that it “ 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

problematise the standard of domestic protection of human rights and to

thereby be inconsistent with the constitutional order of the Czech

Republic”), the Constitutional Court thus now adds that the question

posed by the president in his brief is, in terms of reviewing conformity

of the Charter of Fundamental Rights of the European Union with the

constitutional order, completely irrelevant. Regarding the fourth

question, concerning the character of the European Union (which the

president also addressed in the supplement to his brief, recapitulated

in point 72 of this judgment, and to which the president’s attorney

returned in the hearing – cf. point 92 of this judgment), we can refer

to point 104 of judgment Pl. ÚS 19/08. Finally, regarding the fifth

question, whether consent to ratification of the Treaty of Lisbon must

be given in a referendum pursuant to constitutional Act no. 515/2002

Coll., the Constitutional Court refers to point 212 of judgment Pl. ÚS

19/08 and adds that a general constitutional act was not adopted for the

process of ratifying international treaties pursuant to Article 10a of

the Constitution, and the choice of the manner of consent (by referendum

or by consent of both chambers of Parliament) remains, for all future

cases, in the hands of the legislative assembly. In conclusion, the

Constitutional Court points out that answers to the president’s

questions, which he interprets as supporting arguments for complete

review of the Treaty of Lisbon, can be derived with the help of standard

methods of interpretation, from those parts of the judgment to which it

referred above, and it does not believe that it is necessary to analyse

them more widely (even if this were not barred in many aspects by the

impediment of rei iudicatae described above).

 

B.

Petition for Review of the Treaty of Lisbon and the Treaties that It Amends, as a Whole

 

105.

In addition to the individual articles of the Treaty of Lisbon,

the petitioners contest the constitutionality of the Treaty of Lisbon,

but also of the TEU and of the TFEU, “as a whole” (see points 6 to 9 of

this judgment). Yet, in judgment Pl. ÚS 19/08 the Constitutional Court

refused to review the entire Treaty of Lisbon (also supported by the

government and the president in their briefs). Instead, the

Constitutional Court, in point 74, of the judgment, inclined to the

conclusion (arising by analogy from its settled case law in the area of

review of legislation, especially from judgment file no. Pl. ÚS 7/03,

Collection of Decisions of the Constitutional Court, volume 34, judgment

no. 113, p. 180–181, promulgated as no. 512/2004 Coll.), that it

focuses only on the provisions of the international treaty that were

formally contested and grounds therefor provided in the petition. A

proceedings to review the constitutionality of statutes pursuant to §

64(1) of the Act on the Constitutional Court is of a similar nature;

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 petitioners object 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.

 

106.

However, in contrast to the petition submitted by the Senate in

the proceeding file no. Pl. ÚS 19/08, in this present proceedings the

petitioners have submitted specific grounds why both the Treaty of

Lisbon and the TEU and the TFEU should be reviewed as a whole for lack

of conformity with the constitutional order of the Czech Republic.

Insofar as an “epistemological” argument was also supporting argument

for denying the first petition for overall review of the Treaty of

Lisbon [see point 75 of judgment Pl. ÚS 19/08: “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)”], here the a requirement to make specific the petition

for review of treaties as a whole has been met.

 

107.

The possible review of the treaties as a whole is also supported by

the fact that the normative significance of an international treaty

cannot be derived only from its individual provisions, but also (among

other things) from its overall system. The normative significance of an

international treaty is not a mere sum of the significance of its

individual provisions. Also, the Constitutional Court itself confirmed

the importance of the system of an international treaty for review of

its constitutional in judgment Pl. ÚS 19/08, point 78, when it stated

(regarding the possible definition of the impediment of rei iudicatae):

“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

…”.

 

108.

However, as regards the petitions for overall review of the TEU and

of the TFEU, the Constitutional Court is authorised to perform such a

review only to the extent to which the Treaty of Lisbon as a whole

amends them. On the contrary, in view of the fact that both the Treaty

on European Union and the Treaty establishing the European community, in

their present versions, based on the Treaty between the Kingdom of

Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the

Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland,

the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the

Netherlands, the Republic of Austria, the Portuguese Republic, the

Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great

Britain and Northern Ireland (Member States of the European Union) and

the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the

Republic of Latvia, the Republic of Lithuania, the Republic of Hungary,

the Republic of Malta, the Republic of Poland, the Republic of

Slovenia, the Republic of Slovakia concerning the Accession of the Czech

Republic, the Republic of Estonia, the Republic of Cyprus, the Republic

of Latvia, the Republic of Lithuania, the Republic of Hungary, the

Republic of Malta, the Republic of Poland, the Republic of Slovenia, and

the Republic of Slovakia to the European Union, which was signed in

Athens on 16 April 2003 (published as no. 44/2004 Coll. of International

Treaties, the “Accession Treaty”), must be considered ratified

international treaties pursuant to Article 87(2) of the Constitution,

their review is at this point ruled out ( cf. judgment Pl. ÚS 19/08,

points 79 to 87).

 

109.

Thus, the Constitutional Court did not find grounds to a priori deny

review of the Treaty of Lisbon as a whole, if relevant constitutional

law arguments in that regard are raised by the petitioners. However, in

that regard the Constitutional Court must point out the substantive

limits of its review, which arise from its position in the

constitutional system of the Czech Republic.

 

110.

In the introductory part of their petition, the petitioners

state that “Unfortunately, the Constitution does not precisely define

the essential requirements for a democratic state governed by the rule

of law” (point 13 of the petition). According to the petitioners, the

Constitutional Court “has already addressed that principle several times

[here the petitioners refer to judgment file no. Pl. ÚS 19/93 dated 21

December 1993 (N 1/1 SbNU 1; 14/1994 Coll.), judgment file no. III. ÚS

31/97 dated 29 May 1997 (N 66/8 SbNU 149) and judgment file no. Pl. ÚS

42/2000 dated 24 January 2001 (N 16/21 SbNU 113; 64/2001 Coll.)], it too

has not given a complete, comprehensive, and conclusive interpretation,

that would in the future be resistant to immediate political pressure

and ad hoc interpretations influenced by cases at issue at a particular

time” (point 13 of the petition). In point 49 of the petition the

petitioners ask the Constitutional Court to set “substantive limits to

the transfer of powers”, and in point 51 to 56 they attempt to formulate

these themselves, evidently inspired by the decision of the German

Constitutional Court dated 30 June 2009, 2 BvE 2/08, available at

www.bverfg.de/entscheidungen/es20090630_2bve000208.html), which

provides such a catalogue in point 252 (cf. especially points 51 to 56

of the petition).

 

111.

However, the Constitutional Court does not consider it possible,

in view of the position that it holds in the constitutional system of

the Czech Republic, to create such a catalogue of non-transferrable

powers and authoritatively determine “substantive limits to the transfer

of powers”, as the petitioners request. It points out that it already

stated, in judgment Pl. ÚS 19/08, that “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”

(point 109). Responsibility for these political decisions cannot be

transferred to the Constitutional Court; it can review them only at the

point when they have actually been made on the political level.

 

112.

For the same reasons, the Constitutional Court does not feel

authorised to formulate in advance, in an abstract context, what is the

precise content of Article 1(1) of the Constitution, as requested by the

petitioners, supported by the president, who welcomes the attempt “in a

final list to define the elements of the ‘material core’ of the

constitutional order, or more precisely, of a sovereign democratic state

governed by the rule of law”, and states (in agreement with the

petitioners) that this could “limit future self-serving definition of

these elements based on cases being adjudicated at the time” (point 69

of this judgment).

 

113.

The Constitutional Court believes that it is specific cases that can

provide it a relevant framework in which it is possible, case by case,

to interpret more precisely the meaning of the term “sovereign, unitary

and democratic state governed by the rule of law, founded on respect for

the rights and freedoms of the man and of citizens”. The Constitutional

Court has already done so in the decisions cited by the petitioners

themselves (see above, point 110 of this judgment), or, e.g. in judgment

file no. Pl. ÚS 36/01 dated 25 June 2002 (N 80/26 SbNU 317; 403/2002

Coll.), and most recently in judgment file no. Pl. ÚS 27/09 dated 10

September 2009 (318/2009 Coll.). This does not involve arbitrariness,

but, on the contrary, restraint and judicial minimalism, which is

perceived as a means of limiting the judicial power in favour of

political processes, and which outweighs the requirement of absolute

legal certainty (cf. especially Sunstein, C. R.: One Case at a Time:

Judicial Minimalism on the Supreme Court, Cambridge, Harvard University

Press, 1999, pp. 209–243, directly concerning the relationship between

judicial minimalism and the requirement of legal certainty). The attempt

to define the term “sovereign, unitary and democratic state governed by

the rule of law, founded on respect for the rights and freedoms of the

man and of citizens” once and for all (as the petitioners, supported by

the president, request) would, in contrast, be seen as an expression of

judicial activism, which is, incidentally, consistently criticized by

certain other political figures.

 

114.

However, as is also evident from the further reasoning, many of the

petitioners’ arguments are in fact directed against selected articles of

the Treaty of Lisbon (or the treaties that it amends). The

Constitutional Court dealt with them accordingly.

 

C.

Limiting

the Possibility of Unconstitutional Abuse of the Proceeding pursuant to

Article 87(2) of the Constitution and Permissibility of Supplementing

the Petition

 

115.

Regarding the governments’ objection (points 40 and 41 of this

judgment), the Constitutional Court was also forced to consider the

question of whether a widely conceived participation in proceedings on

the constitutionality of international treaties, opening procedural

space to raise the parties doubts concerning an as yet ungratified

international treaty progressively for individual potential petitioners

(cf. point 98 of this judgment), does not, on the other hand, create an

intolerable risk of abuse of procedural mechanisms before the

Constitutional Court, abuse that would conflict with the very purpose of

this proceeding. The fact that this is not a hypothetical consideration

is also supported by the public, generally known statements from some

of the senators who are petitioners in this proceedings, indicating that

they joined the group with an obstructionist motivation, in an attempt

to prevent ratification of the international treaty for reasons other

than constitutional law ones. Submitting frivolous or fraudulent

petitions to open proceedings and abusing the judicial procedure for

protecting constitutionality can undoubtedly also be penalized by

denying such petitions due to their being obviously unjustified, or for

abuse of the right to submit a petition to open proceedings, or also

through other disciplinary measures (§ 61 of the Act on the

Constitutional Court), but this solution need not always be usable.

 

116.

The purpose of a proceedings on the conformity of an international

treaty with the constitutional order is to preventively eliminate the

risk that the Czech Republic will assume an international obligation

that would be in conflict with the constitutional order, or to remove

doubts on the conformity of the international treaty with the

constitutional order before the treaty becomes binding on the Czech

Republic in international law, and legally binding domestically within

the Czech Republic, because after that the possibilities for resolving a

conflict between the treaty and the constitutional order are

significantly limited (cf. Wagnerová E., Dostál M., Langášek T.,

Pospíšil I.: Zákon o Ústavním soudu s komentářem [The Act on the

Constitutional Court, with Commentary], Prague, ASPI a. s., 2007, pp.

298, 309–310). Given the nature of the matter, it is necessary to remove

such doubts without undue delay. At the level of international law,

just by negotiating an international treaty the parties assume an

obligation that they will not disproportionately draw out their

definitive decision to accept or not accept the treaty, which follows

from the principle of good faith (cf. Potočný, M. Mezinárodní právo

veřejné. Zvláštní část [Public International Law, Special Section] 1st

ed. Prague, C. H. Beck, 1996, p. 161). Connected to this at the level of

domestic, or constitutional law, this is the president’s obligation,

without undue delay to ratify an international treaty (i.e. formally

confirm externally the proper conduct of the domestic approval

procedure) that was duly negotiated by the president, or by the

government, based on his authorisation, and whose ratification has been

consented to by a democratically elected legislative assembly, in

particular in the case of an international treaty pursuant to Article

10a of the Constitution approved by a qualified constitutional majority

of deputies and senators. It is only a proceeding before the

Constitutional Court pursuant to Article 87(2) of the Constitution,

which, in view of the appropriately raised doubts on the conformity of

an international treaty with the constitutional order ex constitutione

that postpones the moment of ratification until the time after these

doubts are removed by an authoritative decision of the Constitutional

Court, or, if conflict is found, after the conflict is removed by an

amendment to the constitutional order (§ 71e(3) of the Act on the

Constitutional Court).

 

117.

The requirement to remove without undue delay doubts on the

conformity of an international treaty with the constitutional order is

procedurally reflected in § 71d(1) of the Act on the Constitutional

Court, pursuant to which the Constitutional Court is required to treat a

petition as urgent, i.e. address it without undue delay, and out of the

order in which it was received, if any of the parties to the proceeding

so requests, and also in strengthening the principle of the procedural

efficiency, which arises from § 71d(2) of the Act on the Constitutional

Court, pursuant to which the Constitutional Court is required to address

a petition and decide on it without further petitions. Of course, this

does not affect the authorisation of the plenum of the Constitutional

Court to conclude that it is necessary to address a matter as urgent

based on its own discretion, pursuant to § 39 of the Act on the

Constitutional Court, which also happened in this case by resolution of

the Constitutional Court dated 29 September 2009.

 

118.

As regards periods for submitting a petition to open proceedings

on the conformity of an international treaty with the constitutional

order, the Act on the Constitutional Court explicitly regulates only

when they start for individual potential petitioners [cf. § 71a(1)(a)

and (d) of the Act on the Constitutional Court, arg. “… from the moment

when …”]; the ending of these periods is then defined, given the nature

of the matter, by the moment when an international treaty is ratified

[resolution file no. Pl. ÚS 1/04 dated 4 March 2004 (U 11/32 SbNU 519)],

because this is a matter of preventive review, before ratification (cf.

Article 87(2) of the Constitution); in that sense an explicit statement

of the ending of a period in the text of the Act on the Constitutional

Court would be a superfluous statement of the obvious [cf. § 71a(1) (d)

of the Act on the Constitutional Court, compared to § 71a(1)(b) and

(c)]. Thus, this period definitively limits the time in which the

Constitutional Court has authority to preventively consider an

international treaty, and thus also the time in which it can receive a

petition to open proceedings from any of the possible petitioners.

 

119.

The interpretation that a petition to open proceedings pursuant to §

71a(b), (c) and (d) of the Act on the Constitutional Court is not

limited by any deadline, that these petitioners can postpone submitting a

petition as they wish, would come into an insoluble conflict with the

requirement that the president ratify an international treaty without

undue delay – as soon as all impediments have been removed. In view of

the purpose of the proceeding defined above, the Constitutional Court

necessarily had to conclude that opening proceedings on the conformity

of international treaties by a group of senators, a group of deputies,

and the president, must be limited by the same deadline by which an

international treaty must be ratified, i.e. the deadline of “without

undue delay”.

 

120.

The deadline of “without undue delay” naturally does not mean

immediately; otherwise it would never be possible to effectively open

proceedings before the Constitutional Court and the entire preventive

review of constitutionality would be limited to cases when a chamber of

Parliament turns to the Constitutional Court even before it itself

consents to ratification of a treaty. Such an interpretation would quite

obviously go against the purpose of defining party status in § 71a(1)

of the Act on the Constitutional Court, and ultimately also against a

broad understanding of it, which the Constitutional Court itself reached

in its previous judgment, Pl. ÚS 19/08. Therefore, appropriately

postponing ratification, i.e. postponing the moment when it is no longer

possible to turn to the Constitutional Court, cannot be described as

undue delay. Thus, from the point of view of the Constitution, it is

completely correct if the president postpones delaying ratification of

an international treaty for an appropriate time so that, during that

time, deputies or senators with a minority opinion can effectively

exercise their rights before the Constitutional Court, with the aim of

eliminating doubts about the constitutionality of the international

treaty. The same applies if the president himself has doubts about the

constitutionality of an international treaty and postponed ratification

by an appropriate period so that he himself could, in that time, contest

the international treaty before the Constitutional Court. However,

evaluation of the appropriateness of that delay must reflect the fact

that the text of an international treaty is already fixed at the time

when it is submitted to Parliament for it to consent to ratification, so

that all deputies and all senators can become familiar with it in

detail; from that moment one can also presume that opposing views as to

its constitutionality will appear (cf. judgment Pl. ÚS 19/08, point 75).

As regards the president, we must be added that he knows the contents

of an international treaty even earlier, because he negotiated it, or

the government negotiated it based on his authorisation, as his alter

ego.

 

121.

In this case, the Treaty of Lisbon was negotiated by the government of

the Czech Republic on 13 December 2007 in Lisbon. It was presented to

the Chamber of Deputies and to the Senate, with a request that they

consent to its ratification, on 29 January 2008. The Chamber of Deputies

consented to ratification of the Treaty of Lisbon on 18 February 2009,

and the Senate on 6 May 2009. Thus, from that day groups of deputies and

senators (and the president from the moment when the Treaty of Lisbon

was presented to him for ratification) authorised to petition the

Constitutional Court to review the conformity of the Treaty of Lisbon

with the constitutional order. The petitioner – a group of senators –

did not submit its petition until 29 September 2009, i.e. more than one

and a half years after the Treaty of Lisbon was presented to the

senators, and almost five months after the group acquired active

procedural standing. Such a period of time – a matter of months, and not

merely weeks – undoubtedly is not appropriate, and therefore the

petition to open this proceeding was not filed without undue delay.

However, the Constitutional Court did not deny the petition to open

proceedings on those grounds, this time, because it does not wish to

retroactively burden the petitioners with an interpretation of

procedural rules that regulate access to the Constitutional Court and

the deadlines on which the Constitutional Court made a finding in this

decision.

 

122.

The Constitutional Court also considers it appropriate to emphasize

that a proceeding on the conformity of an international treaty with the

constitutional order is, as regards the method of review and the

procedural regime, analogous to a proceeding on annulment of a statute

or other legal regulation due to conflict (inconsistency) with the

constitutional order, or with a statute. Therefore, analogous procedural

rules apply. In this proceeding, the principle of procedural

efficiency, as described above [see point 117 of this judgment and

judgment file no. Pl. ÚS 7/03 dated 18 August 2004 (N 113/34 SbNU 165,

s. 185–186; 512/2004 Coll.)] applies. The Constitutional Court is

required to review the petition and complete proceedings on it without

regard to other petitions. After submitting the petition to open

proceedings the petitioners no longer control the petition. For that

reason, withdrawing the petition to open proceedings, just as in

proceedings to annul a statute, is not possible, any perceived or actual

changes in the group of senators, termination of a mandate of some of

them, or a change of opinion or subsequently announced support and

“joining” of others have no effect on the proceeding that has been

properly opened. For that reason, a change of the petition is also

impermissible, whether in the form of expanding or narrowing the

petition request (the statement of claim). Expanding the petition would

have to be classified as another new petition, which must meet all the

requirements and conditions as the petition itself. Where a new petition

to open proceedings overlaps with the original petition, on which a

proceeding is already in progress, proceeding pursuant to [§ ] 35(2) of

the Act on the Constitutional Court would be appropriate, i.e. denying

that part as impermissible due to the impediment of lis pendens, where

the denied petitioner then has a right to take part in the previously

opened proceeding as a secondary party.

 

123.

The supplement to the petition, which the group of senators

submitted subsequently, after another two weeks, and also the second

supplement, not submitted until the hearing before the Constitutional

Court, are, in their content, expansions of the petition, because the

petitioners seek review of other articles of the international treaty

(thus, this is not merely developing or elaborating arguments, which may

take place during the entire course of the proceeding, including the

closing arguments). However, in this case the Constitutional Court

procedurally accepted the supplement to the petition for reasons

analogous to those for which it accepted the original petition, although

it was submitted a long time after the deadline for submitting had

passed. In this situation, partial denial of this supplement (in the

scope of the original petition) as impermissible due to the impediment

of lis pendens (§ 35(2) of the Act on the Constitutional Court) and

reviewing the new expanding statement of claim as a completely new

petition, which in the end would have to be – due to the connected

content – joined to the original proceedings, would not be procedurally

efficient. In the future, however, such a supplement would necessarily

be penalized by a conclusion that it was late, and the Constitutional

Court would deny such a petition.

 

124.

In this regard the Constitutional Court emphasizes that the

petitioners’ repeated statements about the time pressure in which the

petition was prepared, which are supposed to justify the two supplements

to the petition, cannot be accepted. As the Constitutional Court

already stated above, the Treaty of Lisbon was presented to the Chamber

of Deputies and to the Senate with a request for its ratification on 29

January 2008. As is clear from the briefs of the representatives of both

chambers of Parliament (points 37 and 38 of this judgment), questions

of the possible conflict of the Treaty of Lisbon with the constitutional

order were intensively discussed at the meetings of both chambers, and

in the case of the Senate they even led to submission of a petition for

review of the treaty by the Constitutional Court (Senate resolution 379

from its 13th session, on 24 April 2008; the Constitutional Court rule

by judgment Pl. ÚS 19/08 on 26 November 2008). The Constitutional Court

considers it obvious that the senators who later, as a group, submitted

this petition, in accordance with their constitutional obligations, did

not begin to consider possible grounds for conflict of the Treaty of

Lisbon with the constitutional order (supported by relevant

constitutional law arguments that would stand up in proceedings before

the Constitutional Court) only at the moment when the Senate consented

to ratification of the Treaty of Lisbon, but long before that, from the

moment when the treaty was presented to the Senate. Otherwise they could

not conduct proper debate and later vote on the treaty. In this

context, the Constitutional Court points out that in proceedings before

it, although they may touch on political questions, it is necessary to

apply arguments that are relevant to constitutional law, and not mere

impressions, as the petitioners do, e.g. in evaluating the previous

judgment, Pl. ÚS 19/08, and the standard of review that the

Constitutional Court applied in it (see point 32 of this judgment). The

petitioners “impression”, in no way substantiated, that it has been

“decided in advance” (ibid.), must be described as completely

unacceptable and bordering on a grossly insulting submission pursuant to

§ 61(1) of the Act on the Constitutional Court.

 

V.

The Review

 

A.

Prohibition of Retroactivity

 

125.

The petitioners claim that the Treaty of Lisbon as a whole is in

conflict with Article 1(1) of the Constitution, specifically with the

prohibition of retroactivity (the petitioners develop their

understanding of it in point 18 of their petition), because the

authorities of the European Union, responsible for publishing the

Official Journal of the EU, will be able to make changes, supplementally

and during the approval of the Treaty of Lisbon for purposes of

correcting errors that are found in it or in the existing treaties

(further regarding this alleged ground see point 6 of this judgment).

 

126.

The Constitutional Court first points out that the only version

of the Treaty of Lisbon that will be, if it enters into force, binding

in the Czech Republic, will be published, in accordance with Article 10,

in conjunction with Article 52(2) of the Constitution and Act no.

309/1999 Coll., on the Collection of Laws and the Collection of

International Treaties, in the Collection of International Treaties, not

in the Official Journal of the EU. This is supported by the fact that

both the Treaty of Lisbon as well as the consolidated versions of the

TEU and of the TFEU were published in Series C of the Official Journal

of the EU, where only information and announcements are published, not

binding legislation (cf. Bobek, M.: K absenci řádného vyhlášení

komunitární legislativy v jazycích nových členských států [Regarding the

Absence of Publication of Community Legislation in the Languages of New

Member States], Soudní rozhledy [Judicial Perspectives], yr. 2006, no.

12, pp. 449–462, p. 450).

 

127.

Any changes made in the version of the Treaty of Lisbon published in

the Official Journal of the EU cannot directly (without anything

further) affect the version published in the Collection of International

Treaties. If, at a time when the Treaty of Lisbon is in force,

linguistic changes are actually made in it, they would have to be

published in the Collection of International Treaties in order to be

effective in the Czech Republic. Moreover, such changes are implemented

by a protocol, to which all signatory states must consent, and they are

governed by a procedure presupposed by Article 79 of the Vienna

Convention. This has happened several times in the case of linguistic

changes made in the text of the Accession Treaty – cf. e.g.,

notification of the Ministry of Foreign Affairs no. 64/2009 Coll. of

International Treaties. The Constitutional Court would have to review

the question of the chronological effects of any such changes in

relation to the nature of the changes made and in view of the nature of

the addressees of the norms that would be affected by the changes to the

relevant article of the treaty.

 

128.

Likewise, conflict with the prohibition of retroactivity (if one

can even speak of such conflict with an international treaty that is

not even binding yet) if linguistic changes are made during the course

of approving treaties. In such a case too the signatory states are

informed about the proposed changes, and must consent to them. It is the

government’s obligation to inform Parliament about these changes. The

petitioners nowhere state that any changes actually occurred about which

Parliament was not be informed.

 

129. Thus, the Treaty of Lisbon as a whole is not in conflict with the prohibition of retroactivity.

 

B.

Formal Requirements on Treaty Articles

 

130.

According to the petitioners, the Treaty of Lisbon as a whole is in

conflict with Article 1(1) of the Constitution also because “it does not

comply with the requirements of adequate comprehensibility and clarity

of a legal act” The petitioners especially object to the absence of an

“authentic consolidated version” of the TEU and of the TFEU during the

process of approval of the Treaty of Lisbon by Parliament, and also

point to the extent of changes that the treaty introduces (further to

this alleged ground see point 6 of this judgment). The petitioners also

raise objections concerning conflict with the requirements of “adequate

comprehensibility and lucidity of legislation”, based on Article 1(1) of

the Constitution, regarding Article 7, 8, Article 17(1) and 3 and

Article 21(2)(h) of the TEU as well as Article 78(3) of the TFEU

(further to these alleged grounds see points 11, 12, 14, 16, and 19 of

this judgment).

 

131.

In points 14 to 26 of their petition the petitioners present their

understanding of the principles of a state governed by the rule of law,

contained in Article 1(1) of the Constitution, from which they derive

the lack of conformity of the Treaty of Lisbon as a whole, as well as

the abovementioned provisions, with Article 1(1) of the Constitution.

They also refer to judgment file no. Pl. ÚS 77/06 dated 15 February 2007

(N 30/44 SbNU 349; 37/2007 Coll.), in which the Constitutional Court

annulled certain provisions of Act no. 443/2006 Coll., because they were

impermissible “legislative riders”, i.e. amending proposals that are

not related to the proposed legislation (it was the lack of related

content of the amending proposal and the proposed legislation that was

the ground for derogation of the contested provisions of Act no.

443/2006 Coll.).

 

132.

However, one cannot derive from that judgment a requirement that

Parliament have an “authentic consolidated version” at its disposal

during the approval process of an international treaty (if one can even

speak of such a thing in relation to a treaty that has not yet entered

into force), or even a version with the changes marked, as the

petitioners ask in point 69 of their petition. In that judgment the

Constitutional Court stated certain principles that the legislative

process must meet from a constitutional point of view (especially in

points 36 to 48). However, in that regard it did not find that they were

violated in the approval process of approval of the Treaty of Lisbon by

Parliament. Moreover, as is evident from Chamber of Deputies

Publication no. 407 (available at

www.psp.cz/sqw/historie.sqw, the government

presented to Parliament not only the text of the Treaty of Lisbon

itself, but also a consolidated version of the treaties that the Treaty

of Lisbon amends. In this regard, the process of approval of the treaty

by parliament could not be affected by defects that would cast doubt on

the conformity of the treaty’s ratification with the constitutional

order of the Czech Republic. Moreover, as the government states in point

12 of its brief (cf. point 44 of this judgment), “the lack of an

official consolidated version of the founding treaties reflecting the

changes pursuant to the Treaty of Lisbon does not support the

petitioners’ conclusion, but, on the contrary, appears quite logical,

because the subject matter of ratification in Member States is precise

the Treaty of Lisbon, which amends the founding treaties”. The

Constitutional Court agrees with the government on the conclusion that

“if an official consolidated version existed, it would, on the contrary,

create uncertainty as to what is to be the subject matter of

ratification in all the Member States, and which of the two texts has

precedence in the (hypothetical) event that they are inconsistent”.

 

133.

Likewise, one cannot derive from the cited judgment a requirement for

“appropriate generality and comprehensibility” of legislation, as the

petitioners formulate it in relation to the contested articles of the

Treaty of Lisbon. The contested articles of the TEU are components of

treaties that form the very foundations of the European Union, and

express its values and objectives. Thus, by the nature of the matter,

they are stated at a higher level of generality – similarly to, e.g.

provisions of the constitutional order of the Czech Republic, which are

given a specific content in particular situations by authorities

applying the law, and to which particular procedures and methods of

interpretation react (cf. e.g. Holländer, P. Ústavněprávní argumentace

[Constitutional Law Arguments]. Prague, Linde, 2003, pp. 24–61). In this

regard we must also emphasize that the subject of review is an

international treaty to which one cannot apply requirements that the

Constitutional Court applies to domestic legislation in accordance with

constitutional principles. On the contrary, a greater degree of

generality, declaration, and indefiniteness is typical of international

treaties, as the Constitutional Court already stated in point 186 of

judgment Pl. ÚS 19/08. Thus, the Constitutional Court did not find that

the contested articles violate provisions of the constitutional order,

to which the petitioners refer.

 

C.

Democracy in the European Union

 

134.

Regarding the question of a “democratic deficit” in the

decision-making process in the European Union, and its conflict with the

principles of a democratic state and the separation of powers, which

the petitioners seek in Article 1(1) of the Constitution, and the

possibility of removing it through a “special mandate” (regarding this

alleged ground see point 7 of this judgment), we must first point out

that the Treaty of Lisbon in no way prevents Member states from

regulating these institutions on a domestic level, which is also proved

by the practices of individual Member states in questions of inspection

of government conduct in the European Union by domestic legislative

assemblies (cf. e.g. Kiiver, P. The National Parliaments in the European

Union: A Critical View on EU Constitution-Building. Kluwer Law

International, Haag, 2006). just as the Constitutional Court did not

condition the constitutionality of ratifying the Treaty of Lisbon on the

adoption of domestic procedures on decisions that may be adopted on the

basis of Article 48(6) and (7) of the TEU (although it expressly

formulated its concerns about the absence of them), the absence of

control mechanisms that the Treaty of Lisbon does not limit in any way

cannot be grounds from conflict of the Treaty of Lisbon itself with the

constitutional order of the Czech Republic.

 

135.

At the same time, the Constitutional Court does not overlook the

tendency toward a strengthening of the position of the parliaments of

Member States in decision-making processes at the European Union level,

of which the Treaty of Lisbon is an example (cf. e.g., the background

report to the bill adopted as Act no. 162/2009 Coll., amending Act no.

90/1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as

amended by later regulations, and Act no. 107/1999 Coll., on the Rules

of Procedure of the Senate, as amended by later regulations, Chamber of

Deputies Publication no. 742, available at

www.psp.cz/sqw/historie.sqw and its own judgment

Pl. ÚS 19/08, points 153 and 173–175).

 

136.

Finally, the Constitutional Court adds that it is precisely the

essence of transfer of powers of the authorities of the Czech Republic

that, rather than Parliament (or other authorities of the Czech

Republic), it is the international organisation to which these powers

were transferred that exercises tem. The Constitutional Court

comprehensively defined the conditions fro conformity of such a transfer

with the constitutional order in points 88 to 120 of judgment Pl. ÚS

19/08, where it also did not find that these conditions were violated in

the case of the Treaty of Lisbon. It has also emphasised at several

points in that judgment that it is prepared to intervene in the extreme

case that these conditions are violated (cf. especially points 120, 139,

196 and 197 of the cited judgment).

 

137.

The petitioners’ argument regarding conflict of Article 10(1) of the

TEU with Article 1(1) and Article 10a of the Constitution (see point 13

of this judgment) can also be tied to the abovementioned criticism of

the Treaty of Lisbon. Insofar as that article of the TEU provides that

“The functioning of the Union shall be founded on representative

democracy”, that does not mean that only processes at the European level

should ensure fulfilment of that principle. That article is directed at

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

European Parliament, as stated by the German Constitutional Court in

point 280 of its decision cited above, to which the petitioners refer in

point 112 of their petition (although they themselves refer to point

271 of that decision).

 

138.

The Advocate General of the European Court of Justice, Poiares

Maduro, recently stated a similar opinion in his brief dated 26 March

2009 in the matter Commission v Parliament and Council, C-411/06, as yet

unpublished in the European Court Reports, note no. 5:

 

“Democracy

… has a number of forms, especially in the Community. At the level of

the Community, democratic legitimacy has two main sources: it is either

ensured in the Council, where it comes from the European nations through

the positions taken by their governments, under the control of the

national parliaments, or it is ensured by the Parliament, which is a

European body with direct representation, and the Commission, which is

directly answerable to the Parliament. Direct democratic representation

is indisputably a relevant measure of European democracy, but it is not

the only one. European democracy also involves a delicate balance

between national and European dimensions of democracy, without one

necessarily outweighing the other. Therefore, the Parliament does not

have the same authority in the legislative process as national

parliaments, and although one could defend increasing its powers, it is

left up to the European nations to decide themselves, by amending

treaties. Over time a balance has evolved between the powers entrusted

to the Parliament and other authorities, which is expressed according to

the will of the European nations through various normative procedures,

and reflects the balance between national and European instruments

authorising the exercise of power on the European level”.

 

139.

In other words, the democratic process on the Union and domestic

levels mutually supplement and are dependent on each other. The

petitioners are mistaken when they claim that “representative democracy

can exist only within states, within sovereign subjects”. The principle

of representative democracy is one of the standard principles for the

organisation of larger entities, both inter-state and non-state

organisations. The existence of elements of representative democracy on

the Union level does not rule out implementation of those same elements

presupposed by the constitutional order of the Czech Republic, nor does

it mean exceeding the limits of the transfer of powers established by

Article 10a of the Constitution.

 

140.

For similar reasons, one cannot see conflict of Article 14(2) of

the TEU, which governs the number of members of the European Parliament,

with the principle of equality set forth in Article 1 of the Charter,

as the petitioners claim (regarding this alleged ground, see point 85 of

this judgment). As pointed out above, the European Parliament is not

the exclusive source of democratic legitimacy for decisions adopted on

the level of the European Union. That is derived from a combination fo

structures existing both on the domestic and on the European level, and

one cannot insist on a requirement of absolute equality among voters in

the individual Member States. That would exist only if decisions in the

European Union were adopted with the exclusion of legitimating ties to

governments, and especially to legislative assemblies in the individual

Member States. Of course, as the Constitutional Court pointed out in

this section of the judgment, above, the opposite is true.

 

D.

“Political Neturality”

 

141.

The petitioners point to Article 3 of the TEU, which defines the

objectives of the European Union, and claim that they contravene the

“principle of political neutrality”, which the petitioners seek in

Article 1(1) of the Constitution as well as in Article 2(1) of the

Charter (further to this alleged ground see point 8 of this judgment).

Although the petitioners rely on these norms of the constitutional order

as grounds for conflict of the TEU as a whole with the constitutional

order, it is obvious from their arguments that they are contesting only

Article 3 of the TEU, not the TEU as a whole. The petitioners present

analogous arguments in relation to Article 17(3) of the TEU (which sets

“European commitment” as one of the requirements for members of the

Commission; further to this argument cf. point 14 of this judgment) and

in relation to Article 21(2)(h) of the TEU (which sets promoting an

international system based on stronger multilateral cooperation good

global governance as an objective of European Union policy in the area

of international relations; further to this argument see point 16 of

this judgment).

 

142.

However, the Constitutional Court does not agree with that

understanding of the cited articles. The prohibition of tying the state

to an ideology or religion does not mean an absence of values and ideas

in the Constitution and the entire constitutional order, or norms that

are applied on their basis – such as, for example, the legal order of

the European Union. The Constitutional Court has already stated, at the

very beginnings of its functioning, that “the Constitution is not

founded on neutrality with regard to values, it is not simply a mere

demarcation of institutions and processes, rather it incorporates into

its text also certain governing ideas, expressing the fundamental,

inviolable values of a democratic society” [judgment file no. Pl. ÚS

19/93 dated 21 December 1993 (N 1/1 SbNU 1, 5; 14/1994 Coll.)]. Thus,

insofar as Article 3 of the TEU defines regulatory ideas expressed

through the objectives of the European Union, the Constitutional Court

sees nothing in that to conflict with the constitutional order of the

Czech Republic.

 

143.

Similarly, the Constitutional Court does not see a substantive

conflict between the value orientation of the constitutional order and

the values that are expressed as the objectives of the EU. In that

regard it refers to its previous judgment Pl. ÚS 19/08, points 208 and

209, where the Constitutional Court declared a fundamental consistency

between the values expressed in Article 2 of the TEU and the values on

which the substantive core of the constitutional order of the Czech

Republic is built.

 

144.

Finally, the Constitutional Court points out the importance of

the explicit formulation of the Union’s objectives for defining

transferred powers, especially in relation to Article 352 of the TFEU.

Here too it refers to its previous judgment in the matter of the Treaty

of Lisbon, point 149. As it showed in that point of its judgment, it is

precisely the objectives defined in the relevant articles of the TEU and

of the TFEU that serve for control of the exercise of transferred

powers by EU authorities, not as an expression of a particular

ideological doctrine (which cannot be seen in them anyway).

 

E.

Sovereignty of the Czech Republic and State Authority

 

145.

The petitioners also believe that both the TEU as a whole, and the

TFEU as a whole are in conflict with Article 1(1) of the Constitution,

specifically the characteristics of the Czech Republic as a sovereign

state. According to the petitioners, the ground is that these treaties

permit, as a component objective of European integration, the creation

of a common European defence, but a state’s own defence is a power that

must always remain with a sovereign state, if it is to remain sovereign.

Another reason presented by the petitioners is that these treaties do

not rule out a common European federal state as an ultimate objective of

European integration (further to this alleged ground see point 9 of

this judgment). The petitioners also state that Article 42(2) of the TEU

is in conflict with Article 1(1) as well as Article 10a of the

Constitution (further to this alleged ground see point 17 of this

judgment) as are Article 78(3) and Article 79(1) of the TFEU, where the

petitioners claim that these articles mean that “the Czech Republic

alone will not always decide on the composition and number of the

refugees on its territory. The European Union is thus acquiring the

power to participate in decisions that may have a comparatively

significant impact on the composition of the population of the Czech

Republic and on its cultural and social character” (point 148 of the

petition; further to this alleged claim see points 19 and 20 of the

judgment). Finally, with regard to Article 83 of the TFEU, which governs

measures adopted at the Union level in the area of judicial cooperation

in criminal matters, the petitioners believe that “decision making

about what is a crime and what punishments are to be imposed for crimes

are among those powers of state authorities that cannot be transferred

pursuant to Article 10a of the Constitution“ (point 11 of the

supplement, referring to point 54 of the petition, or point 6 of the

supplement); “It is obvious from the text [of the contested article]

that the European Union is to have its own criminal law powers”, which

is said, “in and of itself” to contravene the cited provisions of the

Constitution (point 13 of the supplement). Finally, the petitioners

state that “this power does not have clear contours; the Council,

together with the European Parliament, can continue to expand its

criminal jurisdiction. Therefore, even the transfer of powers pursuant

to [Article 83 of the TFEU] is not delimited, distinguishable, and

sufficiently definite” (point 14 of the supplement; regarding this

alleged ground see point 30 of this judgment).

 

146.

First of all, the Constitutional Court refers to the conclusions stated

in its previous judgment Pl. ÚS 19/08, regarding the character of the

European Union, conditions for preserving the foundations of the

sovereignty of the Czech Republic, and the control that Member States

maintain over the development of European integration.

 

147.

The Court points out (as it stated in point 209 of judgment Pl.

ÚS 19/08) that, in a modern democratic state governed by the rule of

law, the sovereignty of the state is not an aim in and of itself, that

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

on which the construction of a democratic state governed by the rule of

law stands. In point 107 it then concluded (with reference to the

considerations stated in points 98 to 107 of the same judgment), 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 upon in advance and

is subject to review, is not a conceptual weakening of sovereignty,

but, on the contrary, can lead to strengthening it within the joint

actions of an integrated whole. The Constitutional Court also stated in

point 104 of that judgment that the European Union has advanced by far

the furthest in the concept of shared – “pooled” – sovereignty, and

today already forms an entity sui generis, which is difficult to

classify in classical political science categories. A key manifestation

of a state’s sovereignty is the ability to continue to manage its

sovereignty (or part of it), or to cede certain powers temporarily or

permanently.

 

148.

Insofar as the president argues with this definition of sovereignty

by claiming that “the concept of shared sovereignty has been used

relatively frequently recently, but only in non-rigorous debate” and,

according to the president, this concept is “a contradiction in terms”

because, as the president believes, “not only does our legal order not

know the term ‘shared sovereignty’, but neither does the law of the

European Union”, (see point 61 of this judgment), the Constitutional

Court considers it appropriate to point out the text of the memorandum

attached to the Czech Republic’s application to join the European Union

(available at

www.mzv.cz/jnp/cz/zahranicni_vztahy/neverejne/205891-memorandum.html):

 

“The

Czech nation has only recently reacquired full state sovereignty.

However, the government of the Czech Republic has irrevocably reached

the same conclusion as that reached in the past by today’s Member

states, that in modern European evolution, the exchange of part of one’s

own state sovereignty for a share in a supra-state sovereignty and

shared responsibility is unavoidable, both for the prosperity of one’s

own country, and for all of Europe”.

 

149.

Resolution of the government of the Czech Republic dated 13 December

1995, no. 732 regarding the Czech Republic’s application to join the

European Union authorised the then- prime minister (and today’s

president) Václav Klaus, to deliver the application and memorandum

(which was an inseparable part of the application, in accordance with

the government resolution) in January 1996 to the government of the

Republic of Italy, as the state holding the presidency of the European

Union for the first six months of 1996. Thus, there is no doubt that the

concept of shared sovereignty had to be familiar, not only to the

president, but also to other political representatives responsible for

adopting the cited memorandum, at a time when the Czech Republic was not

yet a member of the European Union. This fact was proved by the

president’s attorney, who quoted extensively from the memorandum at the

hearing to support the claim that the Treaty of Lisbon will

fundamentally change the character of the European Union.

 

150. The Constitutional Court also stated in point 120 of judgment Pl. ÚS 19/08 that

 

-

it generally recognizes the functionality of the EU institutional

framework to ensure review of the scope of exercise of transferred

powers; 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 essential 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;

 

and finally, that

 

-

the Constitutional Court of the Czech Republic too will (may) –

although in view of the foregoing principles – function as an ultima

ratio and may review whether any act by Union bodies exceeded the powers

that the Czech Republic transferred to the European Union pursuant to

Article 10a of the Constitution. However, the Constitutional Court

assumes that such a situation can occur only in quite exceptional cases;

these could include, in particular, abandoning the identity of values

and, as already cited, exceeding of the scope of conferred competences.

 

151. Over and above that, [the Court] adds the following regarding the specific arguments presented by the petitioners.

 

152.

The petitioners’ arguments on the unconstitutionality of the

European Union objective of a “common European defence”, according to

which only “a state’s own defence is a power that must always remain

with a sovereign state”, is quite inappropriate. The creation of

inter-state systems of collective defence in no way violates the

sovereignty of the states that share in these systems. The petitioners’

idea that the Czech Republic would lose sovereignty as the result of a

treaty obligation concerning common defence would have been fulfilled on

12 March 1999, when the Czech Republic joined the North Atlantic Treaty

Organisation (NATO), founded on Article 5 of the North Atlantic Treaty

(promulgated as no. 66/1999 Coll.): “The parties agree that an armed

against one or more of them in Europe or North America shall be

considered an attack against them all and consequently they agree that,

if such an armed attack occurs, each of them, in exercise of the right

of individual or collective self-defence recognised by Article 51 of the

Charter of the United Nations, will assist the Party or Parties so

attacked by taking forthwith, individually and in concert with the other

Parties, such action as it deems necessary, including the use of armed

force, to restore and maintain the security of the North Atlantic area”.

 

153.

Likewise, according to the petitioners’ claims, the alleged

unconstitutionality of the changes implemented by the Treaty of Lisbon

in the TEU and in the TFEU “as a whole”, consist of the fact that these

treaties “do not rule out as an ultimate objective the appearance of a

common federal state”, will not stand. Both parties contain a listing of

common objectives only in a positive sense, which cannot, in and of

itself, create conflict with the Czech constitutional order. The

Constitutional Court further refers to point 132 of judgment Pl. ÚS

19/08. A this point the Constitutional Court considers it important to

specify that in that point it did not review the TEU and the TFEU

themselves (which it could not do – see point 108 of this judgment), but

rather how the Treaty of Lisbon amends these treaties – in this regard

the review performed here must also be applied to verdict I of this

judgment, i.e. as applicable to review of the Treaty of Lisbon as a

whole (and not the TEU and the TFEU as a whole).

 

154.

The petitioners also contest Article 78(3) and Article 79(1) of

the TFEU, concerning policies for border control, immigration and

asylum. They interpret that part of the treaty as “a legal basis for

future decision-making by EU institutions as to which Member State is to

accept refugees, and how many and what refugees it is to accept”.. The

Constitutional Court, like the government’s brief (points 62 to 65 of

the brief) points out that this is basically transference of the

existing Article 64(2) of the Treaty establishing the European

Community, and that the change made by the Treaty of Lisbon consists of

strengthening the European Parliament’s participation in Union

decisions. Moreover, Article 79(5) of the TFEU explicitly guarantees

Member States the right to set the number of entries by citizens of

third countries on their territory in order to look for work or to do

business, so that the contested treaty, on the contrary, leaves the

regulatory mechanism for the movement of persons from third countries in

the competence of the Member States. Thus, the contested provisions are

a special form of social regulation through temporary measures in the

case of a sudden influx of asylum applicants. The Constitutional Court

considers the specification to be a predominantly political question,

which is primarily up to the government, which negotiated the treaty,

and the chambers of Parliament, which consented to its ratification. The

Constitutional Court considers such an agreement to be permissible

within Article 10a of the Constitution, and not in conflict with the

constitutional order (in this regard, see also point 111 of this

judgment).

 

155.

Finally, regarding the petitioners’ objection concerning the alleged

conflict of Article 83 of the TFEU with Article 1(1) and Article 10a of

the Constitution, the Constitutional Court points out the conclusions

stated in its judgment file no. Pl. ÚS 66/04 dated 3 May 2006 (N 93/41

SbNU 195; 434/2006 Coll.), in points 70 and 71. According to these

points, we cannot overlook the fact that the present time brings with it

exceptionally high mobility among people, increasing international

cooperation, and growing trust among the democratic states of the

European Union. The citizens of the Member States have, in addition to

the civil rights of their states, the rights of citizens of the Union,

which guarantee them, among other things, freedom of movement within the

entire Union. Investigation and suppression of crime within the

European area cannot be conducted successfully within a single Member

State, but requires wide international cooperation. In the

Constitutional Court’s opinion, the present standard for protection of

fundamental rights within the European Union does not give any cause to

believe that this standard for protection of fundamental rights, through

the implementation of principles arising from them, is of a lower

quality than the protection provided in the Czech Republic. The powers

transferred to the Union by Article 83 of the TFEU in the sphere of

cooperation in the criminal justice system reflect this development.

 

156.

We cannot overlook the fact that Article 83(1) of the TFEU makes it

possible to adopt these measures only if the criminal activity to which

they pertain has a cross-border dimension, and it is also required by

its nature or effects of the criminal activity, or the need to suppress

it jointly. The following subparagraph explicitly lists the criminal

activity that is of that nature (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 organised crime). Thus, this is

not a blanket norm that would give the Union general powers in the area

of criminal law, but a power whose exercise at the European Union level

is, in accordance with the conclusions stated in the previous point of

this judgment, in the interest of the Czech Republic and its citizens.

 

157.

Similarly, measures adopted on the basis of the second paragraph of

Article 83 of the TFEU must be “essential to ensure the effective

implementation of a Union policy in an area which has been subject to

harmonisation measures” and are thus limited to areas where, given the

nature of the matter, individual states must act jointly in order to

ensure effective implementation of the jointly adopted rules.

 

158.

This provision must also be understood in the context of the case

law of the Court of Justice of the European Communities. In its decision

dated 23 October 2007, Commission v. Council (“Pollution of Seas”),

C-440/05, European Court Reports p. I-9097 [in which it made more

precise the conclusions formulated by the Court of Justice in the

decision dated 13 September 2005, Commission v Council, (“Environmental

Criminal Law”), C-176/03, European Court Reports p. I-7879] it stated

that “while it is true that, as a general rule, neither criminal law nor

the rules of criminal procedure fall within the Community’s competence,

this does not, however, prevent the Community legislature, when the

application of effective, proportionate and dissuasive criminal

penalties by the competent national authorities is an essential measure

for combating serious environmental offences, from taking measures which

relate to the criminal law of the Member States which it considers

necessary in order to ensure that the rules which it lays down on

environmental protection are fully effective”. Article 83(2) of the TFEU

modifies this case law to the effect that it provides a special legal

basis (lex specialis) for adopting measures in criminal law and narrows

the application of the cited decision. If the Treaty of Lisbon enters

into force, it will no longer be possible to use this case law as a

basis for applying the provisions of treaties that permit adopting

harmonisation measures in order to adopt measures in the field of

criminal law [this conclusion was reached by, e.g. report of the House

of Lords, European Union Committee, 10th Report of Session 2007–08, “The

Treaty of Lisbon: an impact assessment”, in point 6.188]. This is

important especially with regard to the safeguard provided in Article

83(3) of the TFEU. Thus, in this regard this provision of the TFEU

contested by the petitioners is more a step toward stronger protection

of the constitutional principles on which it relies than toward

violation of them.

 

159.

These objections can also be connected to the petitioners’ claim

that Article 7 of the TEU is in conflict with Article 2(3) of the

Constitution (regarding this alleged ground see points 11 and 81 of this

judgment). The petitioners state that “If rights of Member States are

suspended, with probable consequences for private persons as well, then

Czech state authority will not in fact serve its citizens, because it

will be temporarily deprived of certain rights without which the

citizens cannot be served” (point 105 of the petition). In this regard,

the Constitutional Court points to the conclusions that it stated in

judgment Pl. ÚS 19/08. In point 209 it stated that violation of the

fundamental values of the European Union, at which Article 7 of the TEU

is directed, “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”. Any exercise of state

authority that would violate these values could hardly serve the

citizens. Thus, Article 7 must be understood as a supplement to the

mechanism of the protection of principles on which the constitutionality

of the Czech Republic stands, and not as a means for violating them.

 

160.

Likewise, in this part of judgment we can respond to the

petitioners’ claims that Article 9 of the TEU is in conflict with

Article 1(1) of the Constitution (regarding this alleged ground see

point 83 of this judgment), because it is primarily related to the

claimed conflict between the institution of citizenship of the European

Union and the principle of sovereignty contained in Article 1(1) of the

Constitution. Here the Constitutional Court points out that the

institution of citizenship of the European Union was already introduced

by the Treaty of Maastricht in 1993 (when that treaty entered into

force), and not just now by the Treaty of Lisbon, and citizenship of the

European Union adds only a minimum or new normative content to the

rights of citizens of Member States that the European Court of Justice

derived from the existing provisions of Community law (cf. esp. Weiler,

J. H. H. The Constitution of Europe. “Do the new clothes have an

emperor?” and other essays on European integration. Cambridge, Cambridge

University Press, 1999, pp. 324–357). Citizenship of the European Union

in no way denies membership of a Member State, but on the contrary

enriches it with a European dimension (cf. judgment Pl. ÚS 66/04, point

70). Moreover, the Constitutional Court already stated in its judgment

Pl. ÚS 66/04, point 71, that if Czech citizens enjoy the advantages

connected with citizenship of the European Union, in that context it is

natural that a certain degree of responsibility must be accepted with

these advantages. Thus, in this regard the Constitutional Court did not

find any conflict between Article 9 of the TEU and Article 1(1) of the

Constitution.

 

161.

Finally, we must reject the petitioners’ claim that Article 13(1)

of the TEU and Article 47 of the TEU are in conflict with Article 10a of

the Constitution (regarding this alleged ground see point 84 of this

judgment), with reference to the ground stated in point 147 of this

judgment.

 

F.

The Requirement of “European Commitment for Commission Members

 

162.

In addition to the objections raised by the petitioners against the

constitutionality of Article 17(3) of the TEU, which provides that

members of the Commission are to be chosen “on the ground of their

general competence and European commitment from persons whose

independence is beyond doubt”, which the Constitutional Court considered

above in sections B and D of this part of the judgment, the petitioners

also claim that this provision contravenes Article 1(1) of the Charter

(sic!), pursuant to which people enjoy equality of rights, and Article

21(4) of the Charter, pursuant to which citizens shall have access, on

an equal basis, to any elective and other public offices. According to

the petitioners, the unconstitutionality consists of setting the

condition of sufficient European commitment (regarding this alleged

ground see points 14 and 86 of this judgment).

 

163.

A determination whether the requirement of “European commitment”,

imposed on Commission members by Article 17(3) of the TEU, establishes

unconstitutional inequality is necessarily based on a value and

political evaluation of whether this a relevant distinguishing criterion

kritérium (cf. e.g. Bobek, M., Boučková, P., Kühn, Z. Rovnost a

diskriminace. [Equality and Discrimination] Prague, C. H. Beck, 2007,

pp. 12 to 14). As the Constitutional Court recently stated in its

judgment file no. II. ÚS 1609/08 dated 30 April 2009 (available at

nalus.usoud.cz), “In law it is […]quite normal that there is a

differentiation between various subjects of rights, and therefore not

every differentiation is automatically discrimination within the meaning

that contemporary law assigns to that term. If […] the constitutional

principle of equality cannot be understood absolutely as an abstract

category, but as relative equality, then not every difference in rights

and obligations of various subjects of law can be considered

discrimination, but only those differences that are unjustified”. Thus,

the Constitutional Court must evaluate whether this request is

justified.

 

164.

In this regard, we must also begin with the objectives that the

European Union sets for itself, and from the fact that, from a

constitutional point of view, these objectives are fully consistent with

the value orientation of the constitutional order of the Czech Republic

(see section D of this part of the judgment). A member of the

Commission, as an institution that is to support the general interest of

the European Union pursuant to Article 17(1), must be dedicated to the

interests of the Union and to its objectives – this corresponds to the

formulation of this requirement contained in the various language

versions of the Treaty of Lisbon, e.g. as a requirement for “európskej

angažovanosti” in the Slovak version, “European commitment” in the

English version, “engagement européen” in the French version “Einsatzes

für Europa” in the German version, or „zaangażowanie w sprawy

europejskie“ in the Polish version (the government argues similarly in

point 39 of its brief – cf. point 49 of this judgment). Thus, in this

regard, this requirement is legitimate and fully compatible with the

requirement of equality set forth by the cited provisions of the Czech

constitutional order.

 

G.

Enhanced Cooperation

 

165.

According to the petitioners, Article 20 of the TEU contravenes

Article 1(1) and Article 10a of the Constitution because conditioning

enhanced cooperation on the consent of EU authorities prevents the

exercise of certain powers both on the European level and on the level

of Member States, and thus contravenes the principle of government by

the people and the principle of the sovereignty of the Czech Republic

(further to this alleged ground, see point 15 of this judgment).

 

166.

In the Constitutional Court’s opinion, this provision of the Treaty of

Lisbon does not contravene the cited provisions of the constitutional

order. From an international law point of view, the possibility for

European Union Member States to cooperate beyond the framework of

existing integration is, of course, a fully legitimate form for the

exercise of each state’s sovereignty as a subject of international law.

The condition of approval by the Council has the fundamental purpose of

observing the rules of subsidiarity and differentiation of exclusive and

shared competences so as to preserve the obligations arising from

membership in the Union. Essential for evaluation of this institution,

which may appear to be the basis for a “multi-speed Europe”, is the

presently enshrined principle of being open to all Member States

(Article 20(1) of the TEU) and the condition that all members of the

Council shall act unanimously on a decision to proceed with enhanced

cooperation (Article 329(2 of the TFEU). The Czech Republic’s consent

with enshrining the institution of enhanced cooperation – without it

being in any way implemented at this phase – does not affect the

principle of government by the people and the sovereignty of the Czech

Republic, because it leaves pro futuro up to the will of its

constitutional authorities, including both chambers of Parliament,

whether and in what form the Czech Republic will join in enhanced

cooperation, or whether, on the contrary, it will use its rights and

prevent that form of different tempos for integration processes within

the Union. When the petitioners claim that Article 20 of the TEU “can be

said to circumvent and completely invalidate the meaning of one of the

fundamental principles governing relations between states – namely that

whatever is not forbidden in international law, or on the basis thereof –

for instance in European law – remains permissible” and that as a

result “the principle would apply that states may only cooperate when

the EU authorises them to do so” they completely overlook the fact that

it is precisely without a special regulation of international

integration processes in the Union that they could completely avoid

control by the sovereign Member States.

 

H.

Withdrawal of a Member State from the European Union

 

167.

Likewise, we can refute the petitioners’ doubts concerning Article

50(2) to 4 of the TEU, which regulate the process of a Member State

withdrawing from the European Union. The petitioners claim that this

regulation “conflicts with the principle of sovereignty” enshrined in

Article 1(1) of the Constitution, and also contravenes “the principle of

retroactivity and legitimate expectations and consequently the

fundamental principle of the rule of law that all rules must be known in

advance” (point 143 of the petition). According to the petitioners the

indeterminacy of the future arrangements for withdrawal from the EU also

contravenes Article 10a of the Constitution, because, according to the

petitioners, “The transfer of powers must be defined, and the manner in

which the powers transferred are to be withdrawn and returned to the

national level must also be defined. Nor may the withdrawal of powers be

made subject, de facto, to the requirement of approval by the EU“

(point 144 of the petition; further to this alleged ground see point 18

of this judgment).

 

168.

However, sovereignty does not mean arbitrariness, or an opportunity

to freely violate obligations from international treaties, such as the

treaties on the basis of which the Czech Republic is a member of the

European Union. Based on these treaties, the Czech Republic has not only

rights, but also obligations vis-à-vis the other Member states. It

would contravene the principle of pacta sunt servanda, codified in

Article 26 of the Vienna Convention, if the Czech Republic could at any

time begin to ignore these obligations, claiming that it is again

assuming its powers. If it were to withdraw from the European Union,

even in the present state of the law, the Czech Republic would have to

observe the requirements imposed by international law on withdrawal from

the treaty with other Member States. This follows from Article 1(2) of

the Constitution, pursuant to which “The Czech Republic shall observe

its obligations resulting from international law”. Thus, it is fully in

accordance with this constitutional law requirement that the Czech

Republic would have to, if withdrawing from the European Union, observe

the pre-determined procedures (regarding limitations arising from

international law and the law of the European Union, cf. Zbíral, R.

Vystoupení z Evropské unie ve světle evropského a mezinárodního práva.

[Withdrawal from the European Union in View of European and

International Law] Právník [The Lawyer], year 2008, no. 7, pp. 752–773).

 

169.

Moreover, paragraph 3 of the contested provision provides that “The

Treaties shall cease to apply to the State in question from the date of

entry into force of the withdrawal agreement or, failing that, two years

after the notification [the Member State’s intention to withdraw from

the European Union], unless the European Council, in agreement with the

Member State concerned, unanimously decides to extend this period”.

Thus, it is not true that “withdrawal of powers” (as the petitioners

describe withdrawal from the European Union) is necessarily subject to

consent by the EU. On the contrary, this provision expresses a balance

between the requirement of the sovereignty of the Czech Republic and the

requirement to observe obligations that the Czech Republic assumed

together with the other Member States. The Constitutional Court of the

Republic of Latvia evaluated the contested provision similarly in its

decision dated 7 April 2009 no. 2008-35-01 (English translation of the

decision available at

www.satv.tiesa.gov.lv/upload/judg_2008_35.htm), in part 16.2.

 

170.

The alleged conflict of that provision with Article 2(3) of the

Constitution (regarding this alleged ground, see point 89 of this

judgment) then follows from a misunderstanding of the process of

withdrawal of a member [State] from the European Union. The petitioners

claim that “if, pursuant to (4) [Article 50 of the TEU] the member of

the European Council or the Council who represents the withdrawing state

may not take part in negotiations concerning his state, then during the

time of that process ‘the Treaty of Lisbon’ limits the potential of the

withdrawing state to serve its citizens, and at the same time, their

rights in this regard. Thus it contravenes [Article 2(3) of the

Constitution], pursuant to which: ‘State authority is to serve all

citizens’”. The petitioners completely overlook the fact that within

these negotiations the determination of the content of an agreement on

the withdrawal of a member State takes place with the European Council

(or the Council) as one of the parties, and the withdrawing Member State

is to be the other party. Thus, it is quite natural that it will not

take part in the decisions made by the other party to the agreement that

is to be concluded with it. Moreover, the withdrawing Member State

always has the option of not entering into the agreement and proceeding

in accordance with Article 50(3) of the TEU.

 

I.

Powers

of the Court of Justice of the European Communities and Proceedings on

the Conformity of International treaties with the Constitutional Order

 

171.

The essence of the alleged inconsistency between Article 19(1) of

the TEU and Article 87(2) of the Constitution, as indicated by the

provision of the Constitution that the petitioners cite, is claimed to

be that it makes it impossible for the Constitutional Court to form “an

independent judgment concerning interpretation of an international

treaty pursuant to Article 10a and Article 49, if it is to rule on its

consistency with the constitutional order of the CR”. In the

petitioners’ opinion, the legal norm containing this rule in Article

19(1) of the TEU (the petitioners have in mind the priority of Community

law) sets the Court of Justice above the constitutional court of an EU

Member State in interpretation of the ‘Treaties” (meaning the Treaty of

Lisbon). This also applies in the event of its decision-making on

conformity of the Treaty of Lisbon, as amended by any amendments or

additions to the international treaty, with the constitution or the

constitutional order of a Member State” (regarding this alleged ground,

see point 88 of this judgment).

 

172.

However, this claim directly contravenes the conclusion that the

Constitutional Court stated in its judgment Pl. ÚS 19/08, in point 94,

when it concluded that it was necessary to use the entire constitutional

order as a point of reference for review of the Treaty of Lisbon, and

not only its essential core. The Constitutional Court first pointed out

that in judgment Pl. ÚS 66/04 it did not rule out the fundamental

priority of application of community law, whose limits, as it stated,

are only in the essential core of the Constitution, which is stated in

judgment Pl. ÚS 50/04. At the same time, however, the Constitutional

Court implicitly admitted the possibility of removing any potential

inconsistency not only through priority application of the norms of

Community law, but also through constitutional amendments. From the

point of view of the grounds alleged by the petitioner for conflict

between Article 19(1) of the TEU and Article 87(2) of the Constitution

the following is a key passage: “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

conformity with the constitutional order as a whole, not only with the

essential 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”.

 

173.

In other words, priority of Community law will not be applied in the

event of review of treaties that are not yet in force (and thus cannot

even be applied, or, on the level of application, be inconsistent with

provisions of domestic law).

 

VI.

Proposal to Join the Proceedings with the Matter file no. Pl. ÚS 26/09

 

174.

In point IV of the statement of claim of the petition the

petitioners ask that the Constitutional Court join both petitions for

joined proceedings.

 

175.

However, in the cited proceeding the Constitutional Court already

decided, by resolution file no. Pl. ÚS 26/09 dated 6 October 2009

(available at nalus.usoud.cz) to deny the petition in this matter

and thus the proposal to join both proceedings has become irrelevant,

regardless of the fact that it was impermissible from the beginning (see

resolution file no. Pl. ÚS 26/09, points 14 and 27).

 

VII.

Decisions

by Heads of State or Prime Ministers of Governments sitting in the

European Council in Relation to Concerns of the Irish People Concerning

the Treaty of Lisbon

 

176.

In point IV of the statement of claim of the petition the

petitioners first “ask the Court to find that the Decision of the Heads

of State or Government meeting within the European Council on the

concerns of the Irish people on the Treaty of Lisbon, which on 18 and 19

June 2009 added certain provisions to the Treaty of Lisbon, is an

international agreement pursuant to Article 10a of the Constitution and

as such requires the approval of both Chambers of Parliament obtained by

a constitutional majority, without which it is not applicable in

relation to the Czech Republic“. They then develop this statement of

claim in points 151 to 165 of the petition.

 

177.

Only international treaties can be subject to proceedings on the

conformity of international treaties pursuant to Article 10a and Article

49 of the Constitution; § 71a of the Act on the Constitutional Court

sets the conditions for opening a proceeding, concerning the subject

matter, the circle of parties with active standing, and the time when

they can submit a petition. The Act on the Constitutional Court, in §

71b(1), classifies failure to meet any of these procedural requirements

as a special case of impermissibility of the petition to open

proceedings on the conformity of international treaties with the

constitutional order. The subject matter of this proceeding is the

Treaty of Lisbon, not an act adopted in connection with it at the

European Union level. Though not considering the nature of the decision

in question, the Constitutional Court had to state that this part of the

petition is impermissible pursuant to § 71b(1) of the Act on the

Constitutional Court, because the petitioner does not have standing for

such a petition, and the Constitutional Court does not have jurisdiction

for such a decision.

 

VIII.

Conclusion

 

178.

In view of the foregoing, the Constitutional Court ruled on the

petition of the group of senators to review the conformity of the Treaty

of Lisbon amending the Treaty on European Union and the Treaty

establishing the European Community with the constitutional order, in a

proceeding pursuant to Article 87(2) of the Constitution, as follows:

 

-

the request that the Constitutional Court review the conformity of

the Treaty on European Union as a whole and the Treaty establishing the

European Community as a whole, with the constitutional order the

Constitutional Court – denied by verdict II of this judgment due to

impermissibility pursuant § 71b(1), in conjunction with § 43(1)(e) of

the Act on the Constitutional Court (for reasoning, see point 108 of

this judgment),

 

-

the request that the Constitutional Court review the conformity of

Article 2, Article 3, Article 4 and Article 216 of the Treaty on the

Functioning of the European Union with the constitutional order – denied

by verdict III of this judgment due to impermissibility as a matter

already decided by judgment of the Constitutional Court pursuant to §

35(1), in conjunction with § 43(1)(e) of the Act on the Constitutional

Court (for reasoning, see point 101 of this judgment),

 

-

the request that the Constitutional Court state that “the Decision

of the Heads of State or Government meeting within the European Council

on the concerns of the Irish people on the Treaty of Lisbon, which on 18

and 19 June 2009 added certain provisions to the Treaty of Lisbon, is

an international agreement pursuant to Article 10a of the Constitution

and as such requires the approval of both Chambers of Parliament

obtained by a constitutional majority, without which it is not

applicable in relation to the Czech Republic” – denied by verdict IV of

this judgment, pursuant to § 71b(1) in conjunction with § 43(1)( e) of

the Act on the Constitutional Court, due to impermissibility (for

reasoning, see point 177 of this judgment),

 

-

the request that the Constitutional Court join to this petition to

open proceedings on the conformity with the constitutional order of the

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

establishing the European Community the petition from a group of

senators seeking annulment of selected provisions of the rules of

procedure of both chambers of Parliament, conducted as file no. Pl. ÚS

26/09 – denied by verdict V of this judgment, pursuant to § 71b(1) in

conjunction with § 43(1)(e) of the Act on the Constitutional Court, due

to impermissibility (for reasoning, see point 175 of this judgment),

 

-

finally, in verdict I of this judgment, pursuant to § 71e(2) of the

Act on the Constitutional Court, the Constitutional Court stated that

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

Treaty establishing the European Community

 

- as a whole (for reasoning, see points 125 to 129 together with points 130 to 133 of this judgment),

 

- its Article 7 (for reasoning, see points 130 to 133 together with point 159 of this judgment),

 

- Article 8 (for reasoning, see points 130 to 133 of this judgment),

 

- Article 9 (for reasoning, see point 160 of this judgment),

 

- Article 10(1) (for reasoning, see points 137 to 139 of this judgment),

 

- Article 13(1) (for reasoning, see point 161 of this judgment),

 

- Article 14(2) (for reasoning, see point 140 of this judgment),

 

-

Article 17(1) and (3) (for reasoning, see points 130 to 133 together

with points 141 to 144 and points 162 to 164 of this judgment),

 

- Article 19(1) (for reasoning, see points 171 to 173 of this judgment),

 

- Article 20 (for reasoning, see points 165 and 166 of this judgment),

 

- Article 21(2)(h) (for reasoning, see points 130 to 133 together with points 141 to 144 of this judgment),

 

- Article 42(2) (for reasoning, see points 145 to 150 together with point 152 of this judgment),

 

- Article 47 (for reasoning, see point 161 of this judgment)

 

- and Article 50(2) to (4) (for reasoning, see points 167 to 170 of this judgment)

 

contained in the Treaty on European Union,

 

- Article 3 (for reasoning, see points point 101 of this judgment),

 

- Article 78(3) (for reasoning, see points 130 to 133 together with points 145 to 150 and point 154 of this judgment),

 

- Article 79(1) (for reasoning, see points 145 to 150 together with point 154 of this judgment)

 

- and Article 83 (for reasoning, see points 145 to 150 together with points 155 to 158 of this judgment)

 

contained in the Treaty on the Functioning of the European Union

 

and ratification thereof are not in conflict with the constitutional order of the Czech Republic.

 

179.

The Constitutional Court states that this judgment refutes doubts

about the conformity of the Treaty of Lisbon with the Czech

constitutional order and removes formal obstacles to its ratification.

 

 

Instruction: This decision cannot be appealed.

 

Brno, 3 November 2009

 

Pavel Rychetský 

Chairman of the Constitutional Court