This is the second time that the Constitutional Court has ruled on the Treaty of Lisbon. A petition to review the treaty was first filed last year by the Senate, and the Constitutional Court ruled on it in judgment file no. Pl. ÚS 19/08 dated 28 November 2008, wherein it stated that the parts of the Treaty of Lisbon that the Senate had expressly contested were consistent with the constitutional order. In the present proceeding, file no. Pl. ÚS 29/09, the Constitutional Court ruled on a petition from a group of senators filed after the Parliament of the Czech Republic had already consented to ratification of the Treaty of Lisbon (see the press release).

 

The Constitutional court maintained the opinion it expressed last year, and reviewed those parts of the Treaty of Lisbon that the petitioner had expressly contested on grounds that it stated. However, because this time the petitioner also contested the Treaty of Lisbon as a whole, on the grounds that it was not comprehensible, the Constitutional Court also considered that objection, which, however, it found to be unjustified, similarly to the objections raised by the petitioner against the possibility of making linguistic corrections in the Czech language version after the treaty was submitted to EU member states for ratification. In addition, the Constitutional Court rejected as inadmissible (due to the impediment of rei iudicatae) the part of the petition that contested that part of the Treaty of Lisbon that was already reviewed last year. It also rejected an objection aimed at review of the so-called “Irish guarantees.” Finally, the Constitutional Court rejected, due to inadmissibility, objections aimed at review of the Treaty of Rome and Treaty of Maastricht as a whole, because those parts of these treaties that are not affected by the Treaty of Lisbon have already been ratified, so the Constitutional Court did not have jurisdiction to review them.

 

With reference to its previous judgment, the Constitutional Court emphasized that the ranking of individual petitioners, as provided by § 71a par. 1 of the Act on the Constitutional Court (i.e. a Chamber of Parliament, a group of deputies, a group of senators, the president of the republic) is guided by the intent to provide each of them an opportunity to duly express their doubts concerning the constitutionality of an international treaty under discussion. The judge rapporteur stated in the reasoning of the judgment: “However, that does not mean that potential subsequent petitioners (or potential parties to other proceedings) may contest, over and over again, conclusions concerning an international treaty’s conformity with the constitutional order that the Constitutional Court has already stated in a judgment,” The Constitutional Court emphasized that it is a court, not a place for endless debates.

 

The Constitutional Court also considered, in light of the procedural steps taken by the petitioner, whether the “broadly conceived participation in proceedings on the constitutionality of international treaties, which gives procedural opportunities to raise doubts about an as yet unratified international treaty progressively to individual potential petitioners does not, on the other hand, create an intolerable risk of abuse of procedural mechanisms before the Constitutional Court, abuse that would contravene the very purpose of the proceeding.” The Constitutional Court proceeded on the basis, that doubts on the constitutionality of a negotiated international treaty need to be removed without unnecessary delay, in view of the rule of good faith in international relations, and in view of the obligation of the president of the republic to ratify, without unnecessary delay, an international treaty that was duly negotiated by the president of the republic or based on his authorization, and whose ratification has been consented to by a democratically elected legislative assembly. Based on its analysis, the Constitutional Court stated that “the opening of proceedings on the constitutionality of international treaties by groups of senators, groups of deputies, and the president of the republic must be subject to the same deadline by which it is necessary to ratify an international treaty, i.e. a deadline without unnecessary delay.”

 

According to the Constitutional Court, that does not mean immediately. Appropriate postponement of ratification in order for a group of senators or deputies to be able to submit its petition to open proceedings before the Constitutional Court, or for the president of the republic to be able to submit such a petition, is not unnecessary delay. However, the postponement cannot be on the order of several months, but “only weeks.” In this case the petition was submitted more than five months after Parliament consented to ratification, so it was not filed without unnecessary delay. However, this time the Constitutional Court did not, for that reason, reject the petition to open proceedings, “because it does not want to retroactively burden the petitioner with the analysis of procedural rules governing access to the Constitutional Court and deadlines that the Constitutional Court found in this judgment.”

 

Regarding the request that it define the substantive limits of transferred competence and define “the essential requirements of a democratic state governed by the rule of law,” the Constitutional Court stated that “it does not consider it possible, in view of the role that it plays in the constitutional system of the Czech Republic, that it should create such a catalog of non-transferrable competences and authoritatively define ‘the substantive limits for the transfer of competence’ as the petitioner requests.” It emphasized that “responsibility for these political decisions cannot be transferred to the Constitutional Court; it can review them only at the point when they are actually made on the political level.”

 

Regarding the objection of a democratic deficit in the European Union, the Constitutional Court referred to the conclusions in its first Lisbon judgment. In the Constitutional Court’s opinion, the contested article of the TEU, which provides that “the functioning of the Union shall be founded on representative democracy” is directed at processes both at the European and domestic level, not only at the European Parliament. The European parliament is not an exclusive source of democratic legitimacy for decisions adopted on the European Union level. That legitimacy derives from a combination of structures existing both on the domestic and European level, and it is not possible to demand absolute equality among voters in individual member states. That would be possible only if decisions in the European Union were adopted together with ruling out legitimating connections to governments, and above all to legislative assemblies in the individual members states.

 

As regards objections concerning the loss of the Czech Republic’s sovereignty, or objections on the non-existence of a concept of shared sovereignty, which the president of the republic raised, the Constitutional Court stated that the concept of shared sovereignty was already know to the government of Václav Klaus in 1995, when the Czech Republic applied to join the European Union. According to the Constitutional Court, “in a modern democratic state governed by the rule of law, state sovereignty is not an aim in and of itself, i.e. in isolation, but is a means to fulfilling the fundamental values on which the construction of a democratic state governed by the rule of law stands [...] The transfer of certain competences tot he state, which arises from the free will of the sovereign and will continue to be exercised with its participation in a pre-agreed, controlled manner, is not a sign of the weakening of sovereignty, but, on the contrary, can lead to strengthening it in the joint process of an integrated whole.”

 

The Constitutional Court also found unjustified the other reasons for the alleged inconsistency of the Treaty of Lisbon with the constitutional order, and, in the conclusion of its judgment, stated that “this judgment refutes the doubts concerning the consistency of the Treaty of Lisbon with the Czech constitutional order, and removes the formal obstacles to its ratification.”

 

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