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ABSTRACT
Headnotes
The
transfer of powers of bodies of the Czech Republic to an international
organization under Art. 10a of the Constitution of the Czech Republic
(the “Constitution”) can not go so far as to violate the very essence of
the republic as a democratic state governed by the rule of law, founded
on respect for the rights and freedoms of human beings and of citizens,
and to establish a change of the essential requirements of a democratic
state governed by the rule of law (Art. 9 par. 2 in connection with
Art. 1 par. 1 of the Constitution).
If,
on the basis of a transfer of powers, an international organization
could continue to change its powers at will, and independently of its
members, i.e. if a constitutional competence (competence relating to
competence) were transferred to it, this would be a transfer
inconsistent with Art. 1 par. 1 and Art. 10a of the Constitution.
The
Treaty of Lisbon does not have such consequences in relation to the
European Union, and the reviewed provisions thereof are consistent with
the constitutional order of the Czech Republic.
In
proceedings concerning whether an international treaty is consistent
with the constitutional order, the Constitutional Court is bound by the
scope of a proper petition to open proceedings. Its review concentrates
only on those provisions of the international treaty whose consistency
with the constitutional order the petitioner questioned expressly, and
with justification.
The Judgment and Proceeding before the Constitutional Court
In
its judgment of 26 November 2008, in a proceeding under Art. 87 par. 2
of the Constitution on the consistency of an international treaty with
the constitutional order, opened upon a petition from the Senate of the
Parliament of the Czech Republic (the “Senate”), the plenum of the
Constitutional Court declared that the Treaty of Lisbon amending the
Treaty on European Union and the Treaty establishing the European
Community (the “Treaty of Lisbon”), specifically Art. 2 par. 1 (before
renumbering, Art. 2a par. 1), Art. 4 par. 2 (before renumbering, Art.
2c), Art. 352 par. 1 (before renumbering, Art. 308 par. 1), Art. 83
(before renumbering, Art. 69b par. 1) and Art. 216 (before renumbering,
Art. 188l) of the Treaty on the Functioning of the European Union and
Art. 2 (before renumbering, Art. 1a), Art. 7 and Art. 48 par. 6 and 7 of
the Treaty on European Union, as amended by the Treaty of Lisbon, and
the Charter of Fundamental Rights of the European Union are not
inconsistent with the constitutional order of the Czech Republic. (The
rest of the text refers to individual provisions in the consolidated
text of the primary treaties, that is, according to the renumbering
based on Art. 5 of the Treaty of Lisbon and the Tables of equivalences
annexed to the Treaty of Lisbon.)
The
Constitutional Court heard the arguments of the parties and their
attorneys at a hearing on 25 November 2008, which, after presentation of
closing arguments, it adjourned until 26 November 2008, when it decided
in a judgment that the cited provisions of the Treaty of Lisbon, or the
Treaty on European Union and the Treaty on the Functioning of the
European Union as amended by the Treaty of Lisbon, including the Charter
of Fundamental Rights and Freedoms of the EU, are not inconsistent with
the constitutional order of the Czech Republic.
The Senate’s Petition
The
Senate petitioned the Constitutional Court under § 71a par. 1 let. a)
of the Act on the Constitutional Court after the government of the Czech
Republic submitted the Treaty of Lisbon to the Senate, requesting the
Senate’s consent to its ratification. In its petition, the Senate stated
that the Treaty of Lisbon brings fundamental changes that affect
substantive elements of the statehood and constitutional characteristics
of the Czech Republic as a sovereign, unitary and democratic state
governed by the rule of law (Art. 1 par. 1 of the Constitution), or even
of essential requirements of a democratic state governed by the rule of
law, which, under Art. 9 par. 2 of the Constitution, may not be
changed.
(1.)
Specifically, the Senate stated that the new wording of the Treaty on
the Functioning of the European Union (previously the Treaty
Establishing the European Community; the “TFEU”) establishes a
classification of powers that is more characteristic of federal states,
by introducing a category of powers exclusive to the Union, which
includes entire comprehensive areas of legal regulation (Art. 2a par. 1
of the TFEU). It also stated that in the sphere of shared competences
(Art. 4 of the TFEU) there is, from the point of view of Art. 10a of the
Constitution, a transfer of competences to the Union in a scope that
can not be fully determined in advance.
(2.)
The Senate also asked for review of Art. 352 par. 1 of the TFEU, which
is not limited to regulation of the internal market, and is thus a
blanket norm that permits enacting measures beyond the scope of Union
competences, i.e. beyond the scope of transferred powers under Art. 10a
of the Constitution.
(3.)
The Senate also pointed to Art. 48 par. 6 and 7 of the Treaty on
European Union (the “TEU”); according to the Senate, application of a
general transitional clause (passerelle) for purposes of changing
unanimous decision making to decision making by a qualified majority in a
particular area or replacing a special legislative procedure by an
ordinary legislative procedure under Art. 48 par. 7 of the TEU is a
change of powers under Art. 10a of the Constitution, without that change
being accompanied by ratification of an international treaty or the
active consent of Parliament. As regards Art. 83 par. 1 of the TFEU,
there is no opportunity at all for Parliament to express lack of
consent; thus, this can de facto render Art. 15 par. 1 of the
Constitution meaningless.
(4.)
The Senate also objected that international treaties negotiated and
approved by a qualified majority in the Council (not unanimously) under
Art. 216 of the TFEU would also be binding on member states that did not
consent to them, even though the standard ratification process would
not take place in these states, and, in the case of the Czech Republic,
the opportunity for preliminary judicial review as to whether such
treaties are consistent with the constitutional order would also
disappear. Therefore, the Senate expressed doubts as to whether this
process is compatible with Art. 49 and Art. 63 par. 1 let. b) of the
Constitution, and whether there is room to apply these treaties based on
Art. 10 of the Constitution.
(5.)
According to the Senate, the indirect reference to the Charter of
Fundamental Rights of the EU, together with the future accession of the
EU to the European Convention for the Protection of Human Rights and
Fundamental Freedoms (Art. 6 par. 1 and 2 of the TEU) can lead to lack
of clarity about the status of the Charter of Fundamental Rights of the
EU (the “CFREU”), and it is not clear whether this construction will
strengthen or, on the contrary, lower the standard of domestic
protection of human rights enshrined in the Czech Charter of Fundamental
Rights and Freedoms (the “CFRF”).
(6.)
Finally, the Senate questioned whether Art. 2 of the TEU is consistent
with Art. 1 par. 1 and Art. 2 par. 1 of the Constitution (the principle
of the sovereignty of the people), in view of the fact that it expands
the values on which the Union is established, which could, through a
mechanism of suspending membership rights, be used to create political
pressure to change domestic legal orders concerning such fundamental
issues against the will of the sovereign, i.e. the people.
President
Václav Klaus, as a party to the proceeding, agreed with the Senate’s
petition, and added to its arguments, among other things, by emphasizing
the argument that the Treaty of Lisbon is inconsistent primarily with
the material core of the Constitution, and that this inconsistency can
not be removed even by a possible amendment to the Constitution. In
contrast, the government of Mirek Topolánek stated its belief that the
Treaty of Lisbon is not inconsistent with the constitutional order of
the Czech Republic.
Reasoning of the Constitutional Court’s Judgment
Being
faced with a petition for review of an international treaty for the
first time, the Constitutional Court first addressed the procedural
issues of this kind of proceeding. It rejected the arguments of the
parties that the nature of the proceeding was non-adversarial (implying
an obligation to review all provisions of an international treaty for
consistency with the entire constitutional order, stating that this is a
concept from civil trials, not transferable to this quite unique
proceeding. Analogously to proceedings on review of norms, the
Constitutional Court feels it is bound by the scope of the petition to
open proceedings, which means that it concentrates its review only on
those provisions of the international treaty whose consistency with the
constitutional order the petitioner expressly contested, and where, in
an effort to meet the burden of allegation, it supported its claims with
constitutional law arguments (i.e., in the scope of a proper petition).
The Constitutional Court peripherally indicated that it would take a
restrictive approach to addressing the issue of the impediment of rei
iudicatae, established for the future by this judgment of the
Constitutional Court in relation to possible other petitions from other
possible petitioners to open proceedings on review of whether the Treaty
of Lisbon is consistent with the constitutional order. The
Constitutional Court also stated more precisely that in this review it
did not intend, for a number of reasons, to distinguish between the
provisions of the Treaty of Lisbon described as “normatively” old or
new, i.e. it reviewed all those provisions of the Treaty of Lisbon that
the petitioner properly contested.
In
this regard, the Constitutional Court expressed the opinion that, even
after ratification of the Accession Treaty, the normatively supreme
position of the constitutional order was not rendered meaningless, and
that, in exceptional cases, one can conclude that a treaty is
inconsistent with the constitutional order even ex post, subsequently,
after it has been ratified, via an individual constitutional complaint
proceeding. It again subscribed to the principle of a Euro-conforming
interpretation of Czech constitutional law, but noted that in the event
of a clear conflict between the domestic constitution, especially its
material core (Art. 9 par. 2 and 3 of the Constitution) and European law
that can not be healed by a reasonable interpretation, the
constitutional order of the Czech Republic, especially its material
core, must take precedence. However, as regards the referential
viewpoint of a preventive review of whether an international treaty is
consistent with the constitutional order, then the constitutional order
as a whole can apply as a criterion of reference, although in that case
the material core of the constitution naturally plays a primary and key
role.
Given
this procedural definition, the Constitutional Court then considered
the individual objections from the Senate and other parties to the
proceeding.
To
begin with, the Constitutional Court stated that the limit for transfer
of powers to an international organization under Art. 10a of the
Constitution consists of the essential requirements of a sovereign,
democratic state governed by the rule of law under Art. 9 par. 2 a Art. 1
par. 1 of the Constitution. However, today sovereignty can no longer be
understood absolutely; sovereignty is more a practical matter. In this
sense, the transfer of certain competences of the state, which arises
from the free will of the sovereign and will continue to be exercised
with the sovereign’s participation, in a manner that is agreed on in
advance and is reviewable, is not a conceptual weakening of the
sovereignty of a state, but, on the contrary, can lead to strengthening
it within the joint actions of an integrated whole.
Therefore,
in this regard the Constitutional Court generally recognized the
functionality of the EU institutional framework for ensuring review of
the scope of the exercise of the transferred powers, although it
acknowledged that its position cold change in the future, if it appeared
that this framework was demonstrably non-functional. In addition, the
Constitutional Court can review whether an act by bodies of the Union
exceed the powers that the Czech Republic transferred to the European
Union under Art. 10a of the Constitution, although only in wholly
exceptional cases.
Specifically,
as regards the first group of objections from the Senate (Art. 2 par. 1
and Art. 4 par. 2 of the TFEU), the Constitutional Court stated that
the category of the EU’s exclusive powers is not new in any way. The
Treaty of Lisbon does not establish an unlimited competence clause even
in the area of shared competences, but only declares the main areas in
which shared competences occur. In the context of other provisions of
the Treaty of Lisbon (Art. 2 par. 6 of the TFEU, Art. 5 par. 2 of the
TEU, protocols on the application of the principles of subsidiarity and
proportionality and on on the exercise of shared competence) it is
evident that the Treaty of Lisbon provides a sufficiently certain
normative framework for determining the scope in which the CR will
transfer its powers to the EU.
As
regards Art. 352 par. 1 of the TFEU (the Senate’s second objection),
the Constitutional Court stated that the transfer of “constitutional”
competence to an international organization would be impermissible.
However, in the case of the Treaty of Lisbon this will not occur:
amendment of the primary treaties will continue to be possible only with
the consent of all EU states, which thus remain masters of the
treaties; moreover, the possibility of withdrawing from the EU is
expressly established (Art. 50 of the TEU). This is not in any way
changed by the so-called flexibility clause under Art. 352 par. 1 of the
TFEU; the possibility of adopting such a measure is limited to the
objectives defined in Art. 3 of the TEU and is also narrowed in view of
declarations no. 41 and no. 42 contained in the Final Act of the
Intergovernmental Conference on the Treaty of Lisbon. Thus, the
flexibility clause is not a blanket norm that would enable circumventing
Art. 10a of the Constitution; in this regard the Constitutional Court
also found adequate the institutional framework of review of transferred
powers, as it follows from the practice of bodies of the EU and from
the case law of the European Court of Justice. The Constitutional Court
observed that the Treaty of Lisbon leaves fully up to the constitutional
structures of member states how to ensure that the principle of
subsidiarity is respected in decision-making under the flexibility
clause. Thus, the Czech legislature has room to pass an appropriate
legal regulation that will be consistent with the constitutional order.
As
regards the Senate’s doubts about Art. 48 par. 6 and 7 of the TEU (the
third group of objections) the Constitutional Court pointed to Art. 48
par. 6 subparagraphs three of the TEU, which expressly eliminates any
doubts relating to Art. 10a of the Constitution consisting of the claim
that it would thus be possible to continue to increase the competences
conferred on the EU by the primary treaties. One can not even
conceptually think of amendments expanding Union powers, because a
possible amendment clearly applies only to voting. The primary treaties
will keep a higher legal force over any acts adopted in this manner;
moreover, the article establishes the possibility for national
parliaments to block such acts. However, the Constitutional Court,
obiter, criticized the lack of legal regulation that would permit
implementing decision-making procedures under Art. 48 of the TEU on a
domestic level, and de lege ferenda named certain criteria that such
procedures should meet.
As
regards Art. 83 par. 1 of the TFEU, especially regarding the third
subparagraph, the Constitutional Court stated that the Senate overlooked
Art. 83 par. 3 of the TFEU, which indicates that Art. 83 par. 1 of the
TFEU can not be applied to our legal order without the consent of the
Czech Republic.
The
Constitutional Court also noted, regarding these objections, that the
Treaty of Lisbon transfers powers to bodies whose regularly inspected
legitimacy comes from general elections in the individual member states.
Moreover, the Treaty of Lisbon makes possible several ways of involving
domestic parliaments. The Constitutional Court concluded from this that
the Treaty of Lisbon reserves an important role for domestic
parliaments, whose consequences are to strengthen the role of individual
member states; moreover, the regulation is one that makes the structure
of the whole system more understandable and more clear, compared to the
present condition. Therefore, voting by a qualified majority under Art.
48 par. 7 of the TEU is not inconsistent with Art. 1 par. 1 and Art. 15
par. 1 of the Constitution.
As
regards the fourth group of the Senate’s objections (regarding Art. 216
of the TFEU) the Constitutional Court stated that there is no question
of conflict with Art. 10, Art. 49 and Art. 63 par. 1 let. b) of the
Constitution, because these provisions do not apply to the negotiation
of such treaties concluded by the Union. Art. 216 of the TFEU is not a
norm of competence that expands the powers of the Union; it only expands
the catalog of instruments that the Union can use within the framework
of its competences. Thus, the EU can exercise the transferred powers
both internally and externally, and the text of Art. 49 and 63 of the
Constitution does not form an insurmountable obstacle to the transfer of
powers in the area of concluding international treaties. Nonetheless,
the Constitutional Court noted out that Art. 216 of the TFEU, due to its
vagueness, is on the borderline of compatibility with requirements that
the text of a legal norm be certain, or with requirements that the
transfer of powers to the EU be determinable; however, this vagueness
does not reach the intensity necessary to declare Art. 216 of the TFEU
inconsistent with the constitutional order.
As
regards the fifth group of the Senate’s objections, concerning the
CFREU and Art. 6 of the TEU, the Constitutional Court emphasized that
the CFREU would primarily bind Union bodies, and only bind Czech bodies
in the event of application of European law. The CFREU does not expand
the area of application of Union law beyond the framework of the Union’s
powers. In addition, as a result of the EU’s accession to the
Convention for the Protection of Human Rights and Fundamental Freedoms
the bodies of the Union, including the Court of Justice, will become
subject to review by the European Court of Human Rights, which will
strengthen the mutual conformity of both systems for the protection of
fundamental rights and freedoms. The Constitutional Court also noted
that the CFREU recognizes the fundamental rights arising from the
constitutional traditions common to the member states, and must
therefore be interpreted in accordance with these traditions (Art. 52
par. 4 of the CFREU). It also emphasized that protection of fundamental
rights and freedoms is part of the material core of the Constitution,
where it is beyond the reach of the legislature, and if the standard of
protection ensured in the EU were unacceptable, the bodies of the CR
would once again have to take over the transferred powers, in order to
ensure protection of the standard. However, it has not observed anything
like that at the present time.
The
Constitutional Court stated that it is difficult at an abstract level
to review the mutual harmony of individual rights and freedoms under the
CFREU and the CFRF. Prima vista there is no conflicting provision in
the CFREU; in contrast, the catalog of rights in the CFREU is fully
comparable to the set of fundamental rights and freedoms protection in
the CR on the basis of the CFRF; even the petitioner did not raise any
questions in this regard. The Constitutional Court found that in the
present situation the European institutional provision of the standard
of protection for human rights and fundamental freedoms is compatible
with the standard provided by the constitutional order of the CR. In the
event of a conflict of sources governing the rights and freedoms of
individuals under the CFREU and the CFRF the applying bodies will
naturally proceed according to the one that provides individuals the
higher standard of protection.
As
regards the sixth group of the Senate’s objections, the Constitutional
Court stated that the values mentioned in Art. 2 and 7 of the TEU are
fundamentally consistent with the values on which the material core of
the Czech constitution rests (cf. Art. 1 par. 1, Art. 5, Art. 6 of the
Constitution, Art. 1, Art. 2 par. 1, Art. 3, Chapter Four of the CFRF).
Therefore, in this regard as well the Treaty of Lisbon is consistent
with the untouchable principles protected by the Czech constitutional
order. Insofar as the Senate relies on state sovereignty in this regard,
the Constitutional Court stated that in a modern, democratic state,
governed by the rule of law, state sovereignty is not an aim in and of
itself, in isolation, but is a means for fulfilling the fundamental
values on which the construction of a constitutional state governed by
the rule of law, stands.
Therefore,
the Constitutional Court summarized that the Treaty of Lisbon changes
nothing on the fundamental concept of current European integration, and
that, even after the entry into force of the Treaty of Lisbon, the Union
would remain a unique organization of an international law character.
Finally,
the Constitutional Court addressed the arguments, or the initiative of
the president of the republic concerning the manner in which the Treaty
of Lisbon is to be approved (whether in a referendum or by parliament),
and stated that resolution of this issue lies outside the bounds of the
possible review of an international treaty under Art. 87 par. 2 of the
Constitution.
The
judge rapporteur was Vojen Güttler. No judge filed a dissenting opinion
either to the verdict or the justification of the judgment.
CZECH REPUBLIC
CONSTITUTIONAL COURT
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE REPUBLIC
The
Plenum of the Constitutional Court, consisting of Stanislav Balík,
František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer,
Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jiří Mucha, Jan Musil,
Jiří Nykodým, Pavel Rychetský, Miloslav Výborný, Eliška Wagnerová and
Michaela Židlická, decided, under Art. 87 par. 2 of the Constitution of
the Czech Republic, on a petition from the petitioner – the Senate of
the Parliament of the Czech Republic – seeking review of whether the
Treaty of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Community is consistent with the
constitutional order, as follows:
The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, specifically
•
Articles 2 par. 1 (previously 2a par. 1), 4 par. 2 (previously 2c), 352
par. 1 (previously 308 par. 1), 83 (previously 69b par. 1) and 216
(previously 188 l), contained in the Treaty on the Functioning of he
European Union,
• Articles 2 (previously 1a), 7 and 48 par. 6 and 7 contained in the Treaty on European Union
• and the Charter of Fundamental Rights of the European Union
are not inconsistent with the constitutional order.
REASONING
I.
1.
The Senate of the Parliament of the Czech Republic (the “Senate” or the
“petitioner”), on the basis of § 117b par. 1 of Act no. 107/1999 Coll.,
on the Rules of Procedure of the Senate, as amended by later
regulations, and under § 71a par. 1 let. a) of Act no. 182/1993 Coll.,
on the Constitutional Court, as amended by later regulations, (the “Act
on the Constitutional Court”) submitted a petition asking that the
Constitutional Court, under Art. 87 par. 2 of the Constitution of the
Czech Republic (the “Constitution”) decide whether the Treaty of Lisbon
amending the Treaty on European Union and the Treaty establishing the
European Community is consistent with the constitutional order of the
Czech Republic.
2.
In the petition, the Senate stated that, on 25 January 2008, the
government of the Czech Republic presented to the Senate the Treaty of
Lisbon amending the Treaty on European Union and the Treaty establishing
the European Community (the “Treaty of Lisbon” or the “Treaty”), with a
request for consent to ratify it. The Senate, following on from its
resolution of 20 September 2007, in which it expressed its view on the
Czech Republic’s positions before the summit meeting of heads of state
and governments in Lisbon, taking into account the report of the Senate
Committee for European Integration of 30 September 2003 concerning the
proposed Treaty establishing a Constitution for Europe and the report of
the Senate Committee for European Union Matters of 3 November
2004concerning the proposed Treaty establishing a European Constitution,
and in view of the opinions of the Senate Standing Commission for the
Constitution and Parliamentary Procedure of 9 October 2003, 3 November
2004 and 27 March 2008, believes that certain provisions of the Treaty
apply directly to the norms of the constitutional order of the Czech
Republic. In view of the fundamental changes that the Treaty brings, and
that, in the Senate’s opinion, concern substantive elements of
statehood, it believes it is necessary to review whether the Treaty is
consistent with the constitutional characteristics of the Czech Republic
as a sovereign, unitary, and democratic state governed by the rule of
law (Art. 1 par. 1 of the Constitution) and whether it does not change
the essential requirements for a democratic state governed by the rule
of law, which, under Art. 9 par. 2 of the Constitution is impermissible.
3.
The Senate stated that it considers it necessary for the Constitutional
Court to also evaluate whether specific individual provisions of the
Treaty are consistent with the norms of the constitutional order,
especially in cases that it described in more detail in the points
below.
4.
a) In accordance with its belief that legislative competence-competence
belongs to the member states of the European Union, which delegate the
exercise of certain powers to international institutions, the Senate
considers a key provision to be Art. 10a par. 1 of the Constitution,
under which certain powers of bodies of the Czech Republic can be
transferred to an international organization or institution. In the
Senate’s opinion, the new version of the Treaty on the Functioning of
the European Union (previously the Treaty Establishing the European
Community) establishes a classification of powers that is more
characteristic of federal states, and it establishes, among other
things, a category of competences exclusive to the Union, which includes
entire, comprehensive areas of legal regulation in which, under Art. 2a
par. 1 of the Treaty on the Functioning of the European Union, the
member states may create and pass legally binding acts “only if so
empowered by the Union or for the implementation of Union acts.” The
related concept of shared competences (Article 2c of the Treaty), which
are to exist in addition to the exclusive competences, together with the
allegedly not completely clear limits for the creation of norms of the
secondary law of the Union, according to the Senate opens the door for a
wide sphere of Union norm-creation, difficult to identify in advance,
where, in accordance with declaration no. 17, attached to the Treaty,
the principle of primacy for Union law is implicitly applied. Thus, in
the Senate’s opinion, the scope of transfer of powers can be seen in the
sphere of shared competences, in terms of Art. 10a of the Constitution,
as not fully determinable in advance (cf. in general form, the
introduction to Art. 2c par. 2 of the proposed Treaty on the Functioning
of the European Union – “Shared competence between the Union and the
Member States applies in the following principal areas.”
5.
b) The Senate stated that the review of consistency with Art. 10a of
the Constitution should also include the nature of the proposed Art. 308
par. 1 of the Treaty on the Functioning of the European Union, under
which the Council, acting unanimously on a proposal from the Commission,
of the Commission shall adopt measures “to attain one of the objectives
set out in the Treaties,” in a situation where, within the framework of
Union policies, a particular action is necessary for which the Treaty
does not provide the necessary powers. In contrast to the existing
wording of the founding treaties, the proposed Treaty provision is not
limited to regulation of the domestic market, but is a blanket
provision. Thus, it allegedly permits passing measures beyond the
framework of Union competences, i.e. beyond the scope of the transfer of
powers under Art. 10a of the Constitution. According to the Senate,
such measures could subsequently also be passed in the area of sensitive
issues of cooperation in criminal matters, without adequate procedural
guarantees for protection of civil rights and freedoms, while preserving
the European Court of Justice’s monopoly on interpretation. According
to the Senate, the specific jurisdiction of the European Court of
Justice as the final arbiter in the event of a dispute arising, can – in
a situation where the relationship to the constitutional courts of
member states is not clear – raise question marks about the observance
of the principle of legal certainty. Also worthy of special attention is
the lack of a time limitation on the validity of a measure thus
adopted, and its executive nature, which can raise doubts about the
relevance of participation of national parliaments in weighing the
adoption of such a measure.
6.
c) According to the Senate’s proposal, the concept of powers used in
Art. 10a of the Constitution has not only a material dimension,
overlapping with the definition of an area of competence, but also an
institutional dimension, relating to the manner of making decisions. In
this regard, according to the Senate, it is necessary to review whether
the proposed Art. 48 of the Treaty on EUropean Union is consistent with
the cited provision of the Constitution. This is because Article 48 par.
6 and 7 introduce the possibility of a simplified procedure for passing
amendments to primary Union law by an executive act, which changes the
nature of the duly ratified founding treaties of the EU.
7.
In this regard, the general transitional clause (passerelle) is said to
be formulated unambiguously; although the principle of bilateral
flexibility is formally enshrined in Declaration no. 18, annexed to the
Treaty, this clause remains an instrument for a unilateral change of
competences. Applying this clause in order to change unanimous decision
making to decision making by a qualified majority in a particular area,
or replacing a special legislative procedure by a regular legislative
procedure under Art. 48 par. 7 clearly represents a change of powers
under Art. 10a of the Constitution, yet that change is not accompanied
by ratification of an international treaty or the active consent of
Parliament. According to the Senate, the loss of the right to veto can
be seen as a transfer of powers to an international organization; at the
same time, it de facto limits the importance of the parliamentary
mandate given to the government to make a decision, if, during
decision-making, after application of the transitional clause, the
representative of an individual member state’s government could be
outvoted.
8.
In the case of the proposed Art. 69b par. 1 of the Treaty on the
Functioning of the EU, when the sector Council decides to include
further areas of criminal activity in the sphere of Union regulation,
there is no room at all for Parliament to disagree, even though in
another case – the proposed wording of the general transitional clause
(Art. 48 par. 7 of the Treaty on European Union) and partial
transitional clause in the sphere of judicial cooperation in civil
matters (Art. 65 par. 3 of the Treaty on the Functioning of the European
Union) – that possibility is guaranteed. The limited involvement of
national parliaments in the decision to amend other relatively widely
defined competences of the Union is supplemented by expanding the voting
by a qualified majority, often related to the overall communitarization
of the existing third pillar of European law, where, in parallel with
the implicit weakening of the domestic parliament’s mandate and
annulment of the category of treaties approved by the Parliament of the
Czech Republic, responsibility for the parliamentary dimension of
decision making is assumed by the European Parliament. In this regard
the Senate posed the question whether, in view of the character of the
European Union as an association of states (not a federal state) this
dimension of parliamentary democracy is sufficient, and whether this
does not de facto render Art. 15 par. 1 of the Constitution meaningless.
(“The legislative power of the Czech Republic is vested in the
Parliament.”)
9.
d) The Senate continued that, in addition to the already cited
transitional clauses and the flexibility clause, the procedures set
forth by the Treaty also affect another aspect of the constitutional
order. That is the negotiation of international treaties under the
proposed Art. 188l of the Treaty on the Functioning of the European
Union. This expands the grounds for concluding international treaties in
the name of the EU (“where the Treaties so provide or where the
conclusion of an agreement is necessary in order to achieve, within the
framework of the Union's policies, one of the objectives referred to in
the Treaties, or is provided for in a legally binding Union act or is
likely to affect common rules or alter their scope”). Treaties are
binding on the EU and its member states, yet they are concluding by a
qualified majority decision of the Council. Thus, according to the
Senate, the Czech Republic need not express consent to a treaty, and yet
it is bound by it; the usual ratification process does not take place
at all, and thus the possibility of preliminary review of whether these
treaties are consistent with the constitutional order of the Czech
Republic falls away. The question remains whether this process is
compatible with the text of Art. 49 and Art. 63 par. 1 let. b) of the
Constitution, and whether there is scope to apply the treaties on the
basis of Art. 10 of the Constitution.
10.
e) The Senate also stated that strengthening the powers of European
Union bodies that represent the supranational level of decision making
is accompanied by introducing the single legal subject status of the
European Union. Thus, the functioning of the European Union acquires a
completely new legislative framework in the sphere of the existing
second and third pillar, in areas of primarily political cooperation. Of
course, in such a framework, which fundamentally tears away the
principle of unanimous decision making in the sphere of the existing
third pillar, conflict with domestic standards of protection of
fundamental rights can occur more frequently than it has until now.
Although, under the proposed Art. 6 par. 2 of the Treaty on EU, the
European Union is to accede to the European Convention on Protection of
Human Rights and Fundamental Freedoms, the same article states in
paragraph 1 that “the Union recognizes the rights, freedoms and
principles set out in the Charter of Fundamental Rights of the European
Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007,
which shall have the same legal value as the Treaties.” According to
the Senate, this indirect reference to the Charter of Fundamental Rights
of the European Union may make its status unclear, just like the fact
that this Charter contains not only directly enforceable rights, but
also principles and aspirations that are not clearly, systematically
organized. In a situation where the Union does not and can not have a
specialized body, a court handling “constitutional complaints,” that
would interpret the provisions of the Charter in particular cases of
violation of civil rights, the role of the Charter is allegedly not
clear. It is not clear to the Senate whether it protects the rights of
citizens, or is rather an interpretational tool, in light of which the
powers of Union bodies are interpreted or the interpretation of the aims
pursued by the Union is intensified, whether it strengthens or, on the
contrary, weakens the authority of domestic institutions that interpret
the national catalogs of human rights, in accordance with the individual
traditions of the political nations of Europe, what procedural
consequences (prolonging or, on the contrary, expediting the
enforceability of rights) this step has in relation to the case law of
the European Court of Human Rights, and whether, as a result of this
fact, the standard of domestic protection of human rights enshrined in
the Charter of Fundamental Rights and Freedoms can be strengthened or
leveled.
11.
f) Last but not least, according to the Senate’s petition, definition
of the status of the Charter, and possibilities for interpreting it is
also necessary in order to grasp the newly formulated Art. la of the
Treaty on EU, which expands the values on which the Union is
established, and also includes standards of the European social model
(“in a society in which pluralism, non-discrimination, tolerance,
justice, solidarity and equality between women and men prevail”).
According to the petitioner, the question of interpretation of this
provisions becomes all the more significant because serious violation of
these values can lead to suspending a particular member state’s rights
under the Treaty. A simple proposal filed by 1/3 of member states, the
European Parliament, or the European Commission against a member state
could allegedly create political pressure leading to changes of the
domestic legal order. Therefore, the Senate poses the question whether
the formulation of this provision is consistent with the fundamental
characteristic of the Czech Republic contained in Art. 1 par. 1 and also
with Art. 2 par. 1 of the Constitution (the principle of the
sovereignty of the people).
12.
In view of the foregoing, the Senate proposed that the Constitutional
Court, pursuant to Art. 87 par. 2 of the Constitution and § 71e of the
Act on the Constitutional Court, rule on whether the Treaty is
consistent with the constitutional order.
II.
13.
Under § 71c of the Act on the Constitutional Court, the parties to
proceedings on whether international treaties are consistent with
constitutional laws are, in addition to the petitioner, the Parliament,
the President of the Republic, and the government. Therefore, the
Constitutional Court sent the Senate’s petition to open proceedings to
the Chamber of Deputies of the Parliament of the Czech Republic, the
President of the Republic, and the Government of the Czech Republic (§
69 par. 1 the Act on the Constitutional Court, per analogiam), so that
they would have an opportunity to express their opinions on the Senate’s
petition.
III.
14.
On 5 June 2008 the Constitutional Court received a brief from the
President of the Republic. In the introduction, he emphasized that he
welcomed the Senate’s petition and agreed with it. The president stated
that the Treaty of Lisbon beyond any doubt significantly changes the
character of the European Union as such, and thereby also the position
of the Czech Republic within it. Therefore, in his opinion, it is
necessary to pay extraordinary attention to the evaluation of whether
all its provisions individually and as a whole are consistent with the
Constitution of the Czech Republic, the Charter of Fundamental Rights
and Freedoms, and the constitutional order of the Czech Republic. In
this regard the president pointed out that the Constitutional Court’s
decision in this matter will be one of the most important and most
responsible in the history of the Czech constitutional judiciary.
15.
The president’s brief is divided into three long sections marked points
A, B and C, and these parts are further divided into individual
sub-chapters.
16.
Point A is entitled “On the Proceeding Generally,” and the first
sub-chapter concerns the nature of the proceeding. In it the president
expresses the opinion that the Constitutional Court is authorized to
evaluate not only the provisions of the Treaty of Lisbon mentioned in
the Senate’s petition, but also whether it is consistent with the entire
constitutional order, in all aspects. That is precisely the purpose of
proceedings on whether international treaties under Art. 10a and 49 of
the Constitution are consistent with the constitutional order. In terms
of the proceeding, the reasoning of the petition, or the briefs of the
parties allegedly have only the legal significance that it is necessary
to deal with their claims, themes and doubts in the reasoning of the
judgment. The president also concludes that this type of proceeding is a
non-adversarial proceeding. If this were not so, then it would be
necessary to acknowledge that another possible petitioner under § 71a
par. 1 let. b), c) or d) of the Act (i.e. a group deputies, senators, or
the president of the republic) would be authorized, even after a
positive judgment by the Constitutional Court, to file a separate
petition, drawing the Constitutional Court’s attention to other
provisions of the relevant international treaty or the constitutional
order that the previous petitioner did not mentioned. The president
considers such an interpretation to be not only absurd, but also
exceptionally impractical.
17.
The next passage in the president’s brief is entitled “The Nature of
Treaties under Art. 10a of the Constitution.” Article 10 provides that
promulgated international treaties which Parliament has agreed to
ratify, and by which the Czech Republic is bound under international
law, are part of our legal order and take precedence before statutes.
According to the president, neither this nor any other provision of the
Constitution differentiates between treaties under Art. 10a, whose
ratification requires consent by both chambers of the Parliament by a
constitutional majority (Art. 39 par. 4 of the Constitution), and
treaties under Art. 49, whose ratification requires consented by both
chambers by a simple majority of votes (Art. 39 par. 2 of the
Constitution). It allegedly follows from this, that although the
conditions of ratification differ, the subsequent legal status in the
Czech legal order of treaties under Art. 10a and under Art. 49 of the
Constitution must be the same. However, the president considers it
impossible for ordinary international treaties under 49 of the
Constitution to have the force of a constitutional act, or even
precedence over one. As part of the legal order, they have precedence
over statutes, but the constitutional order is above the legal order.
However, that must then logically also apply to treaties under Art. 10a,
such as the Treaty of Lisbon and our Treaty of Accession. According to
the president, that interpretation is also confirmed by Art. 112 of the
Constitution. International treaties can not be unilaterally annulled,
and it is not always possible to withdraw from them immediately.
Therefore, review of the constitutionality of treaties after
ratification would be problematic, and for that reason it is necessary
to determine whether they are consistent with the constitutional order
in advance. However, such a proceeding would not make sense with an
international treaty that would itself have the force of a
constitutional act. A treaty that was part of the constitutional order
could not, by definition, be inconsistent with the constitutional order.
At the moment when the treaty becomes part of the constitutional order,
it implicitly changes that order to its own image, in accordance with
the fundamental legal principle lex posterior derogat legi priori. (At
this point the president referred to a passage from the decision of the
Permanent Court of International Justice in matters of the treatment of
Polish citizens in Gdansk from 1932 – “According to generally accepted
principles … a state can not object against another state even based on
its own constitution to avoid obligations that are imposed upon it by
international law or valid international treaties.”) The president
concluded this part of the brief by saying that, if the Constitutional
Court did not agree with this interpretation, and took the position that
international treaties under Art. 10a of the Constitution, or other
international treaties (reference to Constitutional Court judgment no.
403/2002 Coll.) are part of the constitutional order, then it would be
appropriate for preliminary review of constitutionality to become the
rule for all international treaties that are to become part of the
constitutional order, because that would avoid implicit, involuntary, or
undesirable changes to the constitutional order.
18.
The longest part of the president’s brief is part B, entitled “On the
Consistency of the Treat of Lisbon with the Constitutional Order.”
19.
In it, the president first addressed the question of sovereignty. He
stated that under Art. 1 of the Constitution the Czech Republic is a
sovereign state that observes its obligations resulting from
international law. According to the president, one can conclude that
this means sovereignty in the sense of international law. The Czech
Republic declares itself to be a full member of the international
community and a full subject of international law. International law is
consensual law; unlike domestic legal orders, its source is not an order
in the most general sense of the word (a statute, directive,
instruction, etc.), but consensually created or spontaneously arising
legal norms (international treaties and international custom). According
to the president, sovereignty means a quality where a subject is not
and can not be limited by a norm that arose without its consent,
expressed either explicitly, in the case of international treaties, or
implicitly, in the case of international custom. A subject that is bound
to follow the orders of another subject independently of its own will,
or even in conflict with it, is not sovereign under international law.
The Treaty of Lisbon, in a number of areas, replaces consensual decision
making by decision making based on voting (he refers to Art. 9c of the
Treaty on European Union, as amended by Art. 1 point 17 of the Treaty of
Lisbon, i.e. Art. 16 in the new consolidated version of the Treaty on
European Union, renumbered on the basis of Art. 5 of the Treaty of
Lisbon; and Art. 205 of the Treaty on the Functioning of the European
Union, as amended by Art. 2 point 191 of the Treaty of Lisbon, i.e. Art.
238 in the new consolidated version of the Treaty on the Functioning of
the European Union, heretofore called the Treaty on European
Communities, renumbered on the basis of Art. 5 of the Treaty of Lisbon).
Thus, it could allegedly happen that the Czech Republic would be bound
by a norm whose adoption it openly opposed. This even applies to the
conclusion of certain international treaties by the European Union, that
is, norms binding the Czech Republic vis-à-vis states that are not
members of the Union.
20.
The president also addressed the issue of the direct effect of EU legal
regulations. He pointed out that international law considers itself to
be an exclusive system above the legal orders of individual states, and
therefore, from its point of view, considers domestic legal orders to be
mere legal facts, not legal norms; therefore, also, it fundamentally
does not specify the manner in which states are to implement their
international law obligations. However, according to the president’s
brief, the Treaty of Lisbon explicitly confirms that selected legal acts
of the EU are to have direct effect in the legal orders of member
states (he points to Art. 249 of the Treaty on the Functioning of the
European Union, as amended by Art. 2 point 235 of the Treaty of Lisbon,
i.e., Art. 288 in the new consolidated version of the Treaty on the
Functioning of the European Union, renumbered on the basis of Art. 5 of
the Treaty of Lisbon; see also p. 6 of the submission report for the
Parliament of the Czech Republic in Chamber of Deputies publication no.
407 and Senate publication no. 181 in the current terms of office); in
contrast, the Constitution of the Czech Republic provides in Art. 10
that international treaties approved by Parliament and duly promulgated
are directly binding. Thus, according to the president, a contrario one
can conclude that no other foreign regulations other than the cited
international treaties may have direct effect in the Czech legal order.
21.
The president’s brief then discusses what he considers to be the
unclear nature of the EU Charter of Fundamental Rights. Under the Treaty
of Lisbon the European Union is required to accede to the European
Convention for the Protection of Human Rights and Fundamental Freedoms,
and is also required to recognize the rights, freedoms, and principles
contained in the Charter of Fundamental Rights of the European Union.
Moreover, that Charter is to have the same legal force as the treaties
establishing the EU (Art. 6 of the Treaty on EUropean Union, as amended
by Art. 1 point 8 of the Treaty of Lisbon, i.e., Article 6 in the new
consolidated version of the Treaty on EUropean Union, renumbered on the
basis of Art. 5 of the Treaty of Lisbon). According to the president, it
is essential to find an answer to the questions of: what is the
relationship between our Charter of Fundamental Rights and Freedoms,
which is part of the constitutional order, and the Charter of
Fundamental Rights of the EU, whether the Charter of Fundamental Rights
of the EU also has the legal status of an international treaty under
Art. 10a of the Constitution and on those grounds has precedence over
Czech statues, and, if the Charter of Fundamental Rights and Freedoms of
the EU is a treaty under Art. 10a of the Constitution, whether all its
provisions are consistent with our Charter of Fundamental Rights and
Freedoms. The president added that he considers it obvious that they do
not have the same force as our Charter, or even precedence over it,
which is already clear from the previous paragraph of his brief.
22.
As regards the transfer of powers to the EU, the president pointed to
Art. 10a of the Constitution, under which certain powers of bodies of
the Czech Republic can be transferred to an international organization
or institution. In this regard, he considers essential the word
“international,” which allegedly clearly indicates that the powers of
bodies of the Czech Republic can be transferred only to an entity
existing between states, not alongside them, or even above them. The
direct effect of legal regulations of the European Union allegedly
testifies to the fact that the legal order of the Union feels itself to
be above the legal orders of member states, and that it emancipated
itself vis-à-vis international law as an independent system existing
alongside international law. On the contrary, however, what would
correspond to international law would be for European law not to
routinely prescribe for its members how they are to fulfill the
obligations that it imposes on them (based on their joint will).
According to the president’s brief, by trying to permeate the legal
orders of member states, European law sees them as legal norms – in
contrast, international law fundamentally sees them as legal facts.
23.
According to the president’s brief, the EU Charter of Rights is itself
an unnecessary document. The member states have their own charters of
rights, allegedly as a rule much more thoroughly prepared. At the
international level, human rights and freedoms are guaranteed by the
Council of Europe’s European Convention for the Protection of Human
Rights and Fundamental Freedoms. It is time-tested and has a functioning
mechanism of judicial review, unlike the EU Charter of Rights, which,
according to the president, makes sense only if the Union feels itself
to be a state sui generis, or a federal state in the process of
formation, which is then itself bound by international law to observe
and protect human rights. However, according to the president, the fact
that the EU, after adopting the Treaty of Lisbon, will no longer be an
international organization, is also indicated by other circumstances;
European Union citizenship was already introduced by the Maastricht
Treaty of 1991, but at that time this was not citizenship as it is
understood in international law. It was a concept that had only the name
in common with citizenship in the legal sense of the word, that is, it
conferred only those “rights” that the citizens of member states would
have even without it. However, according to the president’s brief, the
treaty of Lisbon goes farther, and connects with citizenship of the
Union additional rights that citizens of the Union will have, and which
make sense only in the EU context; e.g., the Treaty of Lisbon gives the
right to initiate legislation to a certain number of EU citizens who
must however, as a whole, “come from a substantial number of member
states.” Thus, the Treaty of Lisbon here allegedly already anticipates a
European civil society, existing alongside the civil societies of the
individual member states, and thus a kind of European nation state is
being construed.
24.
According to the president’s brief, another example is the new
definition of competences, or their division between the Union and
member states, which is allegedly typical for the division of
competences in a federal state. In particular, the division into powers
belonging exclusively to the Union, remaining powers belonging to the
member states, and the ability of the Union to interfere in these powers
on the basis of the principles of proportionality and subsidiarity is
not very different from the division of powers between the federation
and the lands under the Basic Law of the Federal Republic of Germany.
The only difference is allegedly that the Basic Law also defines the
areas in which the Federation may not interfere, and which can be
governed exclusively by the legislation of the lands. Such a definition
of competences of member states, in which the EU could not interfere
under any circumstances, is lacking in the Treaty of Lisbon.
25.
The brief also states that until now all decisions of the European
Union were made by the EU Council, or the European Council, or were
derived from them, (the EU Commission creates secondary legislation, the
Parliament performs its legislative functions together with the
Council, and the European Court of Justice only interprets so-called
“European” law, but de jure does not create it, although its decisions
often have a fundamental influence); the members of the EU Council and
the European Council are the member states, and thus the result of their
activity is merely the sum of the wills of the member states. Now,
however, there would be a completely new function, the Chairman of the
European Council; according to the president it is not completely clear
from the Treaty of Lisbon, but it can be concluded, that he too would
have voting rights in the European Council. That would allegedly mean
that the will of the European Union will no longer be merely the sum of
the wills of the member states, but the sum of the wills of the member
states and the individual who will hold the position of chairman of the
European Council at a particular time. That person will de facto have a
veto power, if the European Council makes decisions by consensus.
Compared to the abovementioned facts, in contrast it is de iure
completely unimportant that the Treaty of Lisbon in the end does not
codify European symbols – a flag, anthem, or motto. Symbols are not
essential elements of a state under international law, nor do they
belong to the exclusive elements of states. Moreover, European symbols
have long functioned, and will surely continue to function, on the basis
of international custom, or so-called “secondary” Union law. Therefore,
according to the president’s brief, one can not claim that omitting
them fundamentally distinguishes the Treaty of Lisbon from the rejected
proposal for a European Constitution. The difference between them is
allegedly purely in form; while the EU Constitution replaced the
existing treaties, the Treaty of Lisbon is in the nature of an amendment
to them, and thus makes “primary” Union law even less clearly organized
than it is now.
26.
Therefore, in the conclusion of this part of his brief, the president
emphasized that all of this raises fundamental doubts as to whether,
even after the Treaty of Lisbon were to enter into force, the European
Union would remain an international organization, or institution, under
Art. 10a of the Constitution of the Czech Republic, or whether it would
then rather be an entity existing alongside its members, and in future
even aspiring to stand above them. The question then is, whether Article
10a even permits transferring any powers of bodies of the Czech
Republic on a subject that is undergoing such transformation.
27.
Part C of the president’s brief concerns the manner in which the Treaty
of Lisbon would be ratified. The president considers it useful for the
Constitutional Court to find a way to express an opinion on the manner
in which consent may be given to ratify the Treaty of Lisbon. Under Art.
10a of the Constitution, the consent of Parliament is necessary to
ratify an international treaty that transfers some powers to an
international organization or institution; a constitutional act may
provide that consent by a referendum is required in a particular case.
Under Art. 1 of constitutional Act no. 515/2002 Coll., on a Referendum
on the Accession of the Czech Republic to the European Union and
Amending Constitutional Act no. 1/1993 Coll., the Constitution of the
Czech Republic, as amended by later constitutional acts, the Czech
Republic’s accession to the Union could only be decided by a referendum.
The question for the referendum was directly tied to the Treaty of
Accession, and read: “Do you agree that the Czech Republic should become
a member state of the European Union, pursuant to a [a/the] treaty on
accession of the Czech Republic to the European Union?” In the
president’s opinion, the accession treaty is evidently meant in the
general sense, because it is not cited in the statute by its full
official name, including the date of signature; moreover, a lower-case
“t” is used in the word “treaty.” Allegedly this evidently has in mind
any treaty determining the conditions for our membership in the European
Union. As follows from the foregoing text, the Treaty of Lisbon in a
very fundamental manner changes the conditions of the Czech Republic’s
membership in the European Community agreed in the Treaty of Accession,
or amends the basic treaties governing the functioning of the European
Union, i.e., treaties to which the Treaty of Accession refers and which
are thus de iure part of it. thus, according to the president’s brief,
the Treaty of Lisbon actually also amends the Treaty of Accession, and
it is thus a legitimate question whether consent to ratification of the
Treaty of Lisbon should not also be subject to a referendum.
28.
In the conclusion of his brief, the president added that, in view of
the foregoing, he considers it necessary for the Constitutional Court,
before the Treaty of Lisbon is ratified, provide a clear answer to the
question of whether the Czech Republic will, even after the Treaty of
Lisbon enters into force, remain a sovereign state and a full subject of
the international community, with capacity to independently, without
anything further, fulfill its obligations resulting from international
law, whether the provision of the Treaty of Lisbon on direct domestic
effect of EU legal regulations is consistent with Art. 10 of the
Constitution of the Czech Republic, whether the EU Charter of
Fundamental Rights has the legal status of an international treaty under
Art. 10a, or Art. 10 of the Constitution, and, if so, whether all its
provisions are consistent with the Charter of Fundamental Rights and
Freedoms of the Czech Republic, or other components of the
constitutional order, whether, after the Treaty of Lisbon enters into
force, the European Union will remain an international organization or
institution to which powers of bodies of the Czech may be transferred
under Art. 10a of the Constitution, and, if the Treaty of Lisbon amends,
even indirectly, the Treaty of Accession, then whether constitutional
Act no. 515/2002 Coll., on a Referendum on the Accession of the Czech
Republic to the European Union (in which it would then be necessary to
amend the question for a referendum) implicitly also applies to the
Treaty of Lisbon – i.e. whether therefore consent to the ratification of
the Treaty of Lisbon should be subject to a referendum.
29.
The president’s brief also contains a summary, which states that, as a
statutory party to the proceeding before the Constitutional Court, he
considers fundamental and comprehensive evaluation of the content of the
Treaty of Lisbon to be an absolutely key prerequisite for its
ratification. According to the president, the reasoning of the Senate’s
petition and this brief give quite obvious indications, that the Treaty
of Lisbon represents a fundamental change to our constitutional order
and to the international position of the Czech Republic. The president
does not consider it possible for such fundamental changes in the
international position and the international functioning of the Czech
Republic as adoption of the Treaty of Lisbon will undoubtedly bring, to
occur as if involuntarily, without being clearly identified, understood,
and without political and social consensus. According to the president,
the Constitutional Court, as the highest legal authority in our state,
is obligated to give political representatives and the general public a
clear and comprehensive evaluation of the Treaty of Lisbon in all its
aspects, so that it will be possible to decide responsibly on its
ratification, unambiguously and with full awareness of the consequences.
The Treaty of Lisbon brings a fundamental change in the character of
the European Union and the legal position of the Czech Republic, not
only as a member state, but as a sovereign state generally, which it is
and has been until now. Therefore, in the president’s opinion, the
Constitutional Court bears enormous responsibility not only for the
present day, but for the future of our state, which this year marks the
90th anniversary of its founding.
IV.
30.
On 10 June 2008 the Constitutional Court received a brief from the
Chamber of Deputies of the Parliament of the Czech Republic. The brief
states that at present, when the Parliament of the Czech Republic
discusses international treaties, the procedure is for the government to
submit the international treaty to each chamber separately, and
discussions in the chambers are not in any way mutually procedurally
dependent or bound. Therefore, one can speak of the principle of
double-track discussion of international treaties. As the Chamber of
Deputies is not, in this case, bound by an obligation to suspend
discussion of the international treaty until the Constitutional Court
makes a decision, the Treaty is presently being discussion in the bodies
of the Chamber of Deputies. The treaty was submitted to the Chamber of
Deputies on 29 January 2008 as publication 407/0. The text of the treaty
was sent to the deputies on 5 February 2008, and the organization
committee recommended discussion of the treaty, appointed Jan Hamáček as
reporter, and proposed assigning it to the foreign relations committee
for discussion. The first reading took place at the 28th session of the
Chamber of Deputies on 19 and 20 March and 1 April 2008. During
discussion of publication 407 there was a motion to reject it, a motion
to postpone, a motion to assign it to all expert committees of the
Chamber of Deputies and a motion to extend the deadline for discussion
to 150 days if the sponsor agreed. There was also a motion to pass an
accompanying resolution that the Chamber of Deputies, pursuant to
Article 87 par. 2 of the Constitution, asks the Constitutional Court to
evaluate whether the Treaty is consistent with the constitutional order
of the Czech Republic. Of the foregoing motions, the Chamber of Deputies
voted on 1 April 2008 to assign publication 407 for discussion to the
constitutional law committee, the committee for European affairs, and
the foreign relations committee, and extend the deadline for discussion
in committees by 20 days, i.e. to 80 days. Out of the committees
assigned to discuss publication 407, so far the committee for European
affairs has placed it on its agenda; at its 35th meeting on 22 May 2008
it decided to suspend discussion of this publication. Publication 407
has not yet been placed on the agenda of the other two committees to
which the Treaty was assigned for discussion.
V.
31.
In the introduction to its brief of 2 July 2008, the government of the
Czech Republic stated for information purposes that on 23 July 2007, in a
meeting of the Council for General Matters and External Relations, an
inter-governmental conference was formally opened, during which, on the
basis of the submitted proposal, a final text of the “Reform Treaty” was
to be prepared, in accordance with the mandate approved at the meeting
of the European Council on 21-22 June 2007. In the following months the
draft text of the Reform Treaty was discussed and amended by a group of
legal experts from member states of the European Union, and finalized at
an informal meeting of the European Council in Lisbon on 18-19 October
2007. The Treaty of Lisbon consists of two basic parts; one part
contains amendments to the Treaty on EUropean Union, and the second
contains amendments to the Treaty establishing the European Community,
including renaming it as the Treaty on the Functioning of the European
Union. The government of the Czech Republic approved negotiation of the
Treaty of Lisbon by resolution no. 1367 of 4 December 2007, and the
Treaty was signed by authorized representatives of EU member states in
Lisbon on 13 December 2007; the Treaty of Lisbon was signed on behalf of
the government of the Czech Republic by Prime Minister Mirek Topolánek
and Minister of Foreign Affairs Karel Schwarzenberg. On 29 January 2008,
on the basis of the same resolution, the prime minister submitted the
Treaty of Lisbon to the Chamber of Deputies of the Parliament of the
Czech Republic and to the Senate, for their consent to ratification
under Art. 10a of the Constitution. For reasons of transparency, both
chambers of Parliament were given, together with the Treaty of Lisbon,
the Charter of Fundamental Rights of the European Union (the “EU
Charter”), solemnly proclaimed by the European Parliament, Council and
Commission on 12 December 2007 in Strasbourg, even though it is formally
not part of the Treaty of Lisbon.
32.
In its brief, the government also stated that the path from the Treaty
of Nice to the new treaty foundation embodied in the Treaty of Lisbon
was complicated, and many questions arose along the way concerning the
relation of primary EU law to the legal orders or constitutional orders
of member states. A number of problem points have already been discussed
in the Convention on the Future of Europe, which prepared the draft
Treaty on a Constitution for Europe; the government repeatedly
encountered some of these problems, also identified in the Senate’s
petition (in particular the “transitional” clause and the EU Charter),
during the course of discussions on the text of the Treaty of Lisbon. In
this regard the government considers it legitimate that the Senate
exercised its constitutional right and submitted a petition that will
make it possible to put to rest doubts on whether the Treaty of Lisbon
is consistent with the constitutional order of the Czech Republic before
the Treaty actual enters into force.
33.
Regarding the text of the Treaty of Lisbon, the government first –
generally – stated that it had already responsibly analyzed its
provisions, including the cited problem points, during the course of
negotiations, and that it signed the Treaty of Lisbon in the belief that
it was, in its entirety, consistent with the constitutional order of
the Czech Republic.
34.
From a procedural viewpoint, when formulating its brief, the government
began with the legal opinion that decision-making by the Constitutional
Court under Art. 87 par. 2 of the Constitution on whether an
international treaty under Art. 10a is consistent with the
constitutional order is a non-adversarial proceeding, not an adversarial
one. The government concludes this from analysis of relevant provisions
of the Constitution and the Act on the Constitutional Court, under
which this is a proceeding on whether an international treaty is
consistent with the constitutional order (§ 71a par. 1 and § 71d par. 3
of the Act on the Constitutional Court). A proceeding on the consistency
of an international treaty under Art. 10a is based on the principle of
preliminary review of constitutionality, and the non-adversarial nature
of the proceeding can allegedly also be derived from § 71e of the Act on
the Constitutional Court, which sets forth the requirements for a
verdict in a judgment of the Constitutional Court. Therefore, the
government believes that the review of constitutionality should not be
limited merely to the particular claims formulated by the petitioner,
but should also cover other issues related to the Treaty of Lisbon;
thus, in the government’s opinion, the petitioner should not bear the
burden of proof, just as the government should not be in the position of
an opponent, but that of a party with the same procedural rights and
obligations as the other parties to the proceeding, in particular, the
Chamber of Deputies and the President of the Republic.
35.
The brief further states that if the Treaty of Lisbon is reviewed in
relation to the formal attributes of a state enshrined in Art. 1 par. 1
of the Constitution (“The Czech Republic is a sovereign, unitary, and
democratic state governed by the rule of law”), the government finds no
inconsistency there. As a result of the Treaty of Lisbon entering into
force the European Union will be newly constituted with its own legal
subject status, and the member states will conditionally transfer
additional powers to the Union, but in the case of the Czech Republic
that will take place in a constitutionally consistent manner under Art.
10a of the Constitution; the Czech Republic will, of course, remain an
independent, sovereign state. The government believes that it is
nonetheless necessary to focus primarily on reviewing the treaty in
terms of the material core of the Constitution, i.e., the essential
requirements of a democratic, law-based state under Art. 9 par. 2. The
government is of the opinion that the theory of immanent limits
guaranteeing the identity of the Constitution, expressed in that
article, is sufficient to ensure that a complete transformation of
values in the constitutional system can not occur in the Czech Republic.
The government holds the opinion that there are unwritten limits for
amending the Constitution; amendments and expansion of the
constitutional order are consistent with the material core of the
Constitution if systematically consistent development of the Czech
Republic is guaranteed and if the value system on which the Constitution
as a whole rests is not overreached. In the government’s opinion, with
reference to Art. 2 of the Treaty on EU (“The Union is founded on the
values of respect for human dignity, freedom, democracy, equality, the
rule of law and respect for human rights, including the rights of
persons belonging to minorities.”) it is generally evident that both the
constitutional system of the Czech Republic, and the treaty system of
the European Union are based on and arise from the same principles that
are common to all member states of the European Union.
36. The brief goes on to discuss specific individual arguments and considerations raised in the Senate’s petition.
37.
In this regard the government first considers the question of
definition and classification of EU competences. It proceeds from the
belief that the legislative “competence - competence” belongs to the
member states of the European Union, which the Treaty of Lisbon only
confirms, in Art. 5 par. 2 of the Treaty on EU. The government considers
this principle key for defining the competences of the Union, and fully
agrees with it. It believes that the definition and classification of
competences introduced by the Treaty of Lisbon do not mean that the
European Union thereby acquires any attributes whatsoever of a federal
state.
38.
As regards the Union’s exclusive competences, the government states
that this is not a newly introduced category of Union competences,
because this kind of competence already existed, and is exercised by the
Community under the current version of the Treaty establishing the
European Community, even though the exclusive competences are not
explicitly enumerated in an individual provision. The existence of
exclusive comeptences already clearly arises from Art. 5 par. 2 of the
existing Treaty on the EC, which defines the principle of subsidiarity
in relation to shared competences; a definition of the term exclusive
competence can also be found in the settled case law of the European
Court of Justice. According to the government, the definition now
introduced by the Treaty of Lisbon does not in any way expand the
concept of exclusive competence; entire comprehensive areas of legal
regulation already fall into the exclusive competence of the Community
(as an example one can cite the common trade policy or rules for
ensuring protection of economic competition).
39.
As regards the category of shared competences of the Union, the
government again points to the principle of conferred competence, which
is enshrined as a general principle in Art. 5 par. 1 of the Treaty on
EU: “The limits of Union competences are governed by the principle of
conferral. The use of Union competences is governed by the principles of
subsidiarity and proportionality.” The exercise of the competences of
the Union will continue to be based on that principle, even after the
Treaty of Lisbon enters into force. Thus – according to the government –
all other provisions of the Treaty on EU and all other provisions of
the Treaty on EU and of the Treaty on the Functioning of the European
Union concerning the competences of the Union and the division of
competences between the Union and member states must be interpreted in
view of the principle of conferral. The government believes that the
petitioner’s concern about the sphere of Union norm-creation being
difficult to identify in advance is not justified. Of course, it is not
possible to enshrine individual powers in an exhaustive list in such a
detailed manner that they will always precisely correspond to the
particular legal act of the Union that implements them. However, it is
possible, and the Treaty of Lisbon clearly does this, to enshrined
precisely defined areas in which the Union may create norms. In this
regard, the government also pointed to the Protocol on the Exercise of
Shared Competence, annexed to the Treaty on EU and the Treaty on the
Functioning of the EU, which expressly states that when the Union has
taken action in a certain area, the scope of this exercise of its
competence only covers those elements governed by the Union act in
question and therefore does not cover the whole area. Regarding the
category of shared competence, the government again pointed out that in
addition to the principle of conferral, the principle of subsidiarity,
enshrined in Art. 5 par. 3 of the Treaty on EU also applies to setting
the limits on the exercise of the Union’s competence, and represents and
important instrument in balancing the division of shared competences
between the member states and the European Union.
40.
The next part of the government’s brief concerns the so-called
flexibility clause under Art. 352 of the Treaty on the Functioning of
the European Union; according to the government, it is evident from the
formulation of this provision that it is not a blanket norm. In order
for the Union, on the basis of the Treaty of Lisbon, to be able to apply
Art. 352 par. 1 of the Treaty on the Functioning of the European Union,
the conditions in it must have been met in relation to the proposed
legislative act. Two declarations annexed to the Final Act of the
Intergovernmental Conference which Adopted the Treaty of Lisbon also
apply to the use of the flexibility clause; they are said to set the
limits on an extensive interpretation and disproportionate use of the
clause. Other limits on expanding the application of the flexibility
clause are, again, the principle of subsidiarity, which functions as an
abstract limit on the expansion of Union powers, and whose observance is
supervised by domestic parliaments (Art. 352 par. 2 of the Treaty on
the Functioning of the European Union), as well as the fact that
application of the flexibility clause is ruled out in the area of common
foreign and security policy and the fact that harmonization of the
legal regulations of member states on the basis of the flexibility
clause is ruled out in cases where the Treaties rule out such
harmonization. According to the government, this rules out in advance
application of the flexibility clause for harmonization of legal
regulations in areas in which the Union has only supporting,
coordinating, or supplemental powers.
41.
As regards the simplified revision procedure for passing amendments to
the Treaties, the government sees a fundamental difference between Art.
48 par. 6 and Art. 48 par. 7 of the Treaty on EU. Under Art. 48 par. 6
of the Treaty on EU amendment of all or part of the provisions of Part
Three of the Treaty on the Functioning of the European Union, which
concern the internal policies and activities of the Union, are subject,
in addition to a unanimous decision by the European Council, to approval
by all member states in accordance with their constitutional
regulations. The government believes that in the constitutional system
of the Czech Republic such an amendment, if it were the basis for the
transfer of additional powers of bodies of the Czech Republic to the
European Union, would be subject to approval by the Parliament under
Art. 10a of the Constitution, and the government is therefore convinced
that Art. 48 par. 6 of the Treaty on EU is consistent with the
constitutional order of the Czech Republic. When proceeding under Art.
48 par. 7 of the Treaty on EU (the transitional clause), as part of the
powers already transferred to the level of the Union, there can be a
change in voting procedure (from unanimity to a qualified majority) or a
change in legislative procedure (from a special to a regular
legislative procedure). The European Council adopts the relevant
decision unanimously after obtaining the consent of the European
Parliament. Before such a decision can be adopted, the proposal must be
notified to the national parliaments. If any national parliament makes
known its opposition within six months of that notification, the
decision is not adopted. Although this procedure at the EU level is
subject to consent on the part of the European Parliament, at the
present time review at the level of member states, by national
parliaments, remains in effect, which the government considers to be
essential.
42.
In the government’s opinion, as regards the relationship of the
transitional clause under Art. 48 par. 7 of the Treaty on EU to Art. 10a
of the Constitution of the Czech Republic, one could argue from a
formal standpoint that when it is applied there is an indirect amendment
to the Treaties without that amendment being ratified in advance by the
member states in accordance with their constitutional regulations, as
is the standard with international treaties. However, the government
believes that, in relation to the transitional clause, consent with a
procedure under Art. 48 par. 7 of the Treaty on EU, which pro futuro
permits the European Council, with the consent of the European
Parliament, and under specified conditions, to decide in individual
cases or areas on a change in the voting procedure in the Council or a
change in legislative procedure, can be considered to meet Art. 10a of
the Constitution of the Czech Republic, within the transfer of powers to
the European Union as a result of ratification of the Treaty of Lisbon.
Thus, by an act of ratification, the Czech Republic, from the position
of a sovereign member state, gives consent to future modifications in
the exercise of transferred powers within the precisely specified bounds
of Art. 48 par. 7 of the Treaty on EU.
43.
Thus, the government believes that application of the transitional
clause does not violate the principle of the sovereignty of states in
adopting international law obligations. The principle of sovereignty of a
member state is reflected in the requirement for unanimous decisions by
the European Council and the right of every domestic parliament to
reject a proposal.
44.
The government also considered it necessary to state its opinion on
Art. 83 of the Treaty on the Functioning of the European Union (note: or
69b), which enshrines the possibility to establish minimum rules
concerning the definition of criminal offences and sanctions in the
areas of particularly serious crime with a cross-border dimension. Art.
83 par. 1, third subparagraph alinea of the Treaty on the Functioning of
the European Union permits the Council, based on developments in
criminal activity, after obtaining the consent of the European
Parliament, to unanimously adopt a decision that determines further
areas of criminal activity that fulfill the criteria set forth in Art.
83 par. 1 of the Treaty on the Functioning of the European Union, above
and beyond the areas explicitly set forth by that provision. In the
government’s opinion, a procedure under Art. 83 par. 1, third
subparagraph of the Treaty on the Functioning of the European Union does
not represent a simplified procedure for amending the treaty, analogous
to the mechanism under Art. 48 par. 7 of the Treaty on EU. The
government believes that the Treaty of Lisbon leads to transfer of
powers to Union bodies, so that, within the specified procedure (a
unanimously adopted decision by the Council after obtaining the consent
of the European Parliament), they will define, based on the development
of criminal activity, areas of especially serious criminal activity with
a trans-border dimension, and some such areas are directly set forth by
the Treaty on the Functioning of the European Union. According to the
government, it must be emphasized that this provision does not have an
immediate relationship to the transitional clause enshrined in Art. 48
par. 7 of the Treaty on EU.
45.
There government also addressed the issue raised by the petitioner,
whether there is not a de facto evisceration of Art. 15 par. 1 of the
Constitution. The government believes there is not, because the essence
of the integrating authorization contained in Art. 10a of the
Constitution of the Czech Republic is the principle of self-limitation
by bodies of the Czech Republic. When transferring powers to an
international organization or institution, it is unavoidable that the
body whose powers were transferred loses them in that scope. However, it
continues to exercise all other powers that belong to it in accordance
with the constitutionally defined separation of powers.
46.
In the question of negotiating international treaties, the government
considered it necessary to point out that in the first phases of the
European Economic Community the assumption was that, in accordance with
the theory of limited competence, the Community had the competence to
conclude international treaties only if expressly authorized thereto in
the founding treaties. In time, however, it became apparent that the
normative text of the founding treaties did not meet the actual needs of
the Community and its member states. Therefore, a third way had to be
found to make the activity of the Community more effective vis-à-vis
third-party states and to achieve greater harmony between the
competences that the Community had internally and those that it had in
external relations with third-party states. At the beginning of the
19790s, the decision of the European Court of Justice in the AETR matter
(decision of the European Court of Justice in the matter C-22/70 AETR,
1970, ECR 263) made it possible to go beyond the rule of express
authorization in the founding treaties; in it, the European Court of
Justice concluded that, if the Community has the internal authority to
regulate a particular area of law, then in the interests of promoting
the aims of the founding treaties that gives rise to the authority to
act in the name of the Community in matters that fall into that sphere
vis-à-vis third-party states as well (the theory of parallelism of
internal and external powers, implied powers [are these the same or 2
things?]). Thus, according to the government’s brief, in the present
legal situation authorization for the EU to conclude an international
treaty can be established both by the founding treaties and by lower
legal acts of community law that were issued in order to achieve the
aims of the EU defined in the present Art. 2 of the Treaty on the EC.
Therefore, the government does not find that Art. 216 et seq. of the
Treaty on the Functioning of the European Union expands the existing
range of legal grounds, based on which the EU will be authorized to
conclude international treaties after the Treaty of Lisbon enters into
force, and it states that the provision in question of the Treaty on the
Functioning of the European Union in fact only codifies something that
was already developed and settled in the case law of the European Court
of Justice as the result of long-term developments.
47.
As regards the voting procedure in the Council, the government
considers it necessary to state that Art. 216 et seq. of the Treaty on
the Functioning of the European Union affects only the negotiation of
international treaties for purposes of meeting the aims of
communitarized policies. The so-called second pillar, i.e., the area of
common foreign and security policy, will maintain its special status,
and international treaties negotiated by theEU in that sphere (Art. 37
of the Treaty on EU) will be concluded unanimously, even after the
Treaty of Lisbon enters into force (Art. 24 par. 1, second subparagraph
together with Art. 31 par. 1, first subparagraph of the Treaty on EU).
However, even in the area of Community-adopted policies, a qualified
majority is not applied in a blanket manner, without taking into account
the nature of the treaty being negotiated. Art. 218 par. 8 subparagraph
2 of the Treaty on the Functioning of the European Union lists the
cases where, in contrast, the EU Council decides unanimously.
48.
On the question of defining the scope of the space that the Treaty of
Lisbon leaves to member states to fulfill their constitutional
requirements in the process of negotiating international treaties with
third-party states, the government states that identifying the limits of
that space does not follow from Art. 216 et seq. of the Treaty on the
Functioning of the European Union, but from Part One of the Treaty on
the Functioning of the European Union, discussing the categories and
areas of EU competence (see above). It is evident from these provisions
that in the area of negotiating “external” treaties the existing concept
is preserved, which distinguishes two categories of international
treaties. The first consists of treaties concluded in the exclusive
competence of the EU, which are not subject to domestic approval
procedures and will not be so after the Treaty of Lisbon enters into
force. That is because the authority of the Czech Republic to conclude
this type of international treaty was already, under Art. 10a of the
Constitution transferred by bodies of the Czech Republic to EU bodies.
The second category is mixed treaties, which the European Community at
present concludes with a third-party state together with its member
states (the EC and its member states stand alongside each other and form
one party to the treaty). According to the government, this joint
process is unavoidable, because the European Community does not have
sufficient authority in the selected legal area to negotiate a treaty or
subsequently implement it, and therefore it needs the cooperation of
its member states. Member states can provide the requested cooperation
to the European Community only after they satisfy their constitutional
law regulations. If such a mixed international treaty were classified in
the Czech Republic, on the domestic level, as a treaty in the
presidential category under Art. 49 of the Constitution (which is most
often the case), then the Czech Republic could agree to negotiation of
the treaty only after the intent to do so was approved by the government
and both chambers of the Parliament of the Czech Republic, and the
treaty would then be ratified by the president. According to the
government’s brief, the fact that the EU will in future have its own
legal subject states can not change anything about that procedure and
material legal basis.
49.
The government also stated that, in the petition for evaluation of
whether the Treaty of Lisbon is consistent with the constitutional order
of the Czech Republic, the petitioner raises a number of questions
concerning the status and importance of the Charter of Fundamental
Rights of the EU, as well as its relationship to the national catalogs
of fundamental human rights and freedoms and to the European Convention
for the Protection of Human Rights and Fundamental Freedoms. From the
government’s point of view the EU Charter is, formally speaking, an
independent document of a non-consensual nature. At this point it
allegedly has the nature of a non-binding, purely political document,
containing a catalog of human rights and freedoms. Thanks to the
legislative reference in the new Art. 6 par. 1 of the Treaty on EU,
which provides that “The Union recognises the rights, freedoms and
principles set out in the Charter of Fundamental Rights of the European
Union of 7 December 2000, as adopted at Strasbourg, on 12 December 2007,
which shall have the same legal value as the Treaties,” when of the
Treaty of Lisbon enters into force the EU Charter will be de facto
incorporated into the treaty acquis. In the scope of its competence,
given the present maintenance of its individual legal character in the
EU legal system, it will have legal effects on the subjects of member
states without the need for its norms to be received by a domestic legal
act. However, according to the government, it should not have
precedence in application over the norms of the domestic law of member
states in relation to the “material core” of the constitutions of member
states, which was also said by the Czech Constitutional Court.
Moreover, the abovementioned features of the EU Charter will apply only
in the scope of competence set forth by the Treaty of Lisbon in Art. 6
subparagraph 2 and 3 of the Treaty on EU and by horizontal measures in
Title VII of the EU Charter itself. Under Art. 51 par. 1 of the EU
Charter, its provisions are intended first for the bodies, institutions,
and other subjects of the Union; in contrast, they are intended to the
member states only insofar as they apply Union law.
50.
According to the petitioner, in a situation where the Union does not
have a court to interpret the Charter’s provisions in particular cases
of violation of civil rights, the role of the Charter is not clear. The
government added that the EU Charter will be incorporated by reference
in the treaty acquis, and thus individuals will be able to directly rely
on some of its provisions, those of the nature of subjective,
enforceable rights, both before the courts of member states (if they
apply EU law), and before the European Court of Justice. Regarding the
question of whether the EU Charter protects citizens’ rights or is more a
tool for interpretation, used to interpret the powers of bodies or
intensify the interpretation of the aims that the Union pursues, the
government stated that the EU Charter is a modern catalog and is to
fulfill both of these roles in parallel, that is, protect individuals
and set limits for the exercise of the competences of EU bodies, or
bodies of member states when applying EU law. The government concludes
that the EU Charter will exist parallel to the catalog of fundamental
human rights and freedoms that are part of the constitutional law of
member states, without in any way changing the scope of purely domestic
material. The government believes that applying the EU Charter will not
lead to lowering the standard of domestic protection of fundamental
human rights and freedoms.
51.
In the next part the government addresses Art. 2 of the Treaty on EU,
which, according to the petitioner, should be reviewed as to whether it
is consistent with Art. 1 par. 1 and Art. 2 par. 1 of the Constitution.
The government is not of the petitioner’s opinions; it pointed out that
the values set forth in Art. 2 of the Treaty on EU have been immanent,
substantive components of the Czech legal order since the beginning of
the 1990s, when it was gradually democratized.
52.
As regards the possibility of suspending rights that arise to a member
state from the Treaties, the government noted in its brief that this
possibility can not violate the fundamental characteristics of the Czech
Republic as a sovereign, unitary, and democratic state governed by the
rule of law under Art. 1 par. 1 of the Constitution, or the principle of
the sovereignty of the people enshrined in Art. 2 par. 1 of the
Constitution, because this involves a sanction against a member state in
the event that it violates the values on which the EU is founded. These
values, as stated above, are among the fundamental principles that are
also protected by the Constitution of the Czech Republic. Therefore, the
government also does nto share the petitioner’s concerns about
interference in the sovereignty of the Czech Republic through political
pressure leading to changes in the domestic legal order in the event
that the Czech Republic violates these values. In the government’s
opinion, if the Czech Republic observes its own constitution, suspension
of rights arising to it from membership in the EU does not come into
consideration.
53.
In view of the foregoing arguments, the government believes that all
provisions of the Treaty of Lisbon to which the petitioner refers in its
submission, as well as the Treaty of Lisbon in its entirety, are
consistent with the constitutional order of the Czech Republic.
VI.
54.
In a hearing before the Constitutional Court, held on 25 November 2008,
the petitioner (the Senate of the Czech Republic) was represented by
the Senate Vice Chairman Jiří Šneberger and Senator Luděk Sefzig. Both
basically repeated the arguments contained in the original petition, and
did not make any motions to submit additional evidence in the matter.
55.
On behalf of the Chamber of Deputies of the Parliament of the Czech
Republic, its chairman, Miloslav Vlček, basically referred to the brief
previously sent to the Constitutional Court.
56.
On behalf of the government of the Czech Republic, Deputy Prime
Minister for European Affairs, Alexander Vondra, basically repeated the
opinions contained in the brief delivered to the Constitutional Court,
and again emphasized that the government believes that the Treaty of
Lisbon is consistent with the constitutional order of the Czech
Republic.
57.
President Václav Klaus, in the hearing, pointed in particular to the
wider context of the matter. In his opinion, if the Treaty of Lisbon
enters into force, the international position and internal situation of
our state will change, and the weight of the Czech Republic in the
decision-making of the European Union will be weakened.
58.
The president then again raised the questions already submitted to the
Constitutional Court in his brief that he considers the most important:
first, whether the Czech Republic – after the Treaty of Lisbon entered
ito force – would remain a sovereign, democratic and law-based state;
second, whether the Czech Republic would continue to be a full member of
the international community, capable of independently, without anything
further, fulfilling its obligations resulting from international law;
and third, whether the European Union would remain an international
organization, or whether it would become a federal state, and whether
our Constitution permits the Czech Republic to become a component of a
state of that kind.
59.
The president also pointed to the government’s brief and the arguments
in it, based on the legal doctrine of the so-called “material core” of
the Constitution. Unlike the government, the president believes that the
Treaty of Lisbon is inconsistent, not only with the constitutional
order as a whole, but also with fundamental constitutional principles
that are – precisely under the doctrine of the material core of the
constitution – untouchable and non-amendable (Article 9 of the
Constitution). In this regard, he also stated that the foundation of the
Constitution (and thus also its hypothetical material core) is the
principle of state sovereignty, which, the Czech Constitutional Court
allegedly stated two years ago in the sugar quota case, if it refused to
recognize the doctrine of the European Court of Justice on the absolute
priority of community law. According to the president, the issue is who
is to have the so-called “competence - competence.” The president does
not consider this theme to be new; the Constitution had to be changed
even before joining the European Union, but even the “Euro-amendment” at
that time had to observe Article 9 of the Constitution. Therefore, it
permitted “only” some specific powers of bodies of the Czech Republic to
be transferred to bodies of the European Union, but it did not permit a
transfer of sovereignty. This allegedly said that in any transfer of
powers the transferred powers must be explicitly and unambiguously
defined, and that there may not be a possibility for EU bodies
themselves to interpret the scope of the transfer of powers, or to even
be able to transfer additional powers to themselves.
60.
In the president’s opinion, the concept of shared competence under
Article 4 of the consolidated version of the Treaty on the Functioning
of the European Union is absolutely inconsistent with the principle of
state sovereignty, as is adopting measures beyond the framework of Union
competences if it “should prove necessary … to attain one of the
objectives set out in the Treaties” under Article 352 par. 1 of the
consolidated version of the Treaty on the Functioning of the European
Union (the so-called “authorization” clause, the flexibility clause) and
the simplified revision procedures for adopting amendments to primary
law under Art. 48 of the Treaty on European Union, the “passerelle.”
Also claimed to be exceptionally debatable is the so-called “doctrine of
implicit external powers” formulated by the European Court of Justice
in 2006, which permits negotiating international treaties above beyond
the framework of EU competences. Thus, according to the president, the
Treaty of Lisbon begins a process at the end of which the sovereign will
be the European Union, which will, by directives or some other
unilateral form, set norms and rules both for individual member states
and for the citizens of these states. Moreover, this fundamental
limitation on the sovereignty of the Czech Republic and other member
states of the European Union is not clearly and openly formulated in the
text of the Treaty of Lisbon and it is not expressly identified as an
intention and objective of the organization that this treaty is to
implement.
61.
According to the president, another important element of the material
core of the Constitution is the principle of the sovereignty of the
people. Therefore, it is appropriate to ask who is the source of legal
and political power in the European Union. In the president’s opinion,
it is not, in any event, the people, because a “European people” does
not exist. In the EU power is derived from institutions created on the
basis of inter-governmental agreements or treaties. If the Treaty of
Lisbon entered into force, it would be possible, through it, to
implement by executive act, “from above,” from Europe, things that no
national parliament would ever approve. This would strengthen the
opportunity to circumvent national legislative assemblies, which would
fundamentally weaken democracy in the member states, including the Czech
Republic. Thus, in the president’s opinion, the Treaty of Lisbon is
inconsistent with the constitutional principle of the sovereignty of the
Czech people.
62.
The president also criticized the lack of clear organization and
ambiguity of the competence provisions of the Treaty of Lisbon. These
provisions will be interpreted and implemented by bodies of the European
Union, allegedly known for their tendency to interpret Union
competences as broadly as possible. That is inconsistent with Art. 1 of
the Constitution, because the Czech Republic is also a law-based stated,
the essence of which is that the rules are given and known in advance.
63.
In the next part of his presentation, the president criticized the
government’s opinion that the Treaty of Lisbon, if adopted, de facto
indirectly amends the Constitution, because it will automatically become
a component of it. The president considers this approach erroneous,
because Article 112 of the Constitution exclusively enumerates as
components of the constitutional order only the Constitution of the
Czech Republic itself, the Charter of Fundamental Rights and Freedoms,
and constitutional acts, and does not mention any international
treaties; in fact, it does not even mention treaties cited in Article
10a of the Constitution. All this allegedly indicates that, even though
under Article 10 all international treaties approved by Parliament take
precedence over statutes, they do not have the force of constitutional
acts, i.e. they do not form the Constitution, and therefore can not be
components of it.
64. For all these reasons the president considers the Treaty of Lisbon to be inconsistent with the Czech constitutional order.
VII.
Basic facts
65.
On 25 January 2008 the government presented the Treaty of Lisbon (TL)
amending the Treaty on European Union (EU) and the Treaty Establishing
the European Community to the Parliament of the Czech Republic, with a
request to approve ratification. The government itself approved the
negotiation of the TL on 4 December 2007. The Treaty of Lisbon was
signed in Lisbon on 13 December 2004. It was signed on behalf of the
Czech Republic by Prime Minister Mirek Topolánek and Minister of Foreign
Affairs Karel Schwarzenberg.
66.
Under point no. IV of the government’s submission report, this is a
treaty under Art. 10a par. 1 of the Constitution of the Czech Republic,
as amended by later regulations, because on its basis the EU acquires
certain new powers, and in certain cases there is a change from
unanimity to voting by a qualified majority. This is also a treaty of
the “presidential” category, which requires ratification by the
President of the Republic.
67.
Under Art. 10a par. 2 of the Constitution, the consent of the
Parliament (or, alternately, in the event of a constitutional act,
consent in a referendum) is necessary to ratify such an international
treaty. Under Art. 39 par. 4 of the Constitution, a three-fifths
majority of all deputies and a three-fifths majority of all senators
present is necessary to consent to ratification of an international
treaty set forth in Art. 10a par. 1.
68.
In this matter, under Art. 87 par. 2 of the Constitution the
Constitutional Court has the authority to decide whether the TL is
consistent with the constitutional order. The statutory conditions for
this proceeding under § 71a et seq. of Act no. 182/1993 Coll., on the
Constitutional Court, as amended by later regulations, have been met.
69.
The Treaty of Lisbon is published in the Official Journal of the EU, C
306, “Information and Notices”, Volume 50, 17 December 2007. The Charter
of Fundamental Rights of the EU, promulgated by the European
Parliament, the Council and the Commission, was published in the
Official Journal of the EU, C 303, Information and Notices of EU Bodies
and Institutions, on 14 December 2007.
VIII.
70.
Before the Constitutional Court turned to reviewing whether the content
of the Treaty of Lisbon was consistent with the constitutional order of
the Czech Republic, it had to answer several fundamental questions
relating to the nature of the proceedings and the criteria for the
review itself.
71.
The first question was to what extent the Constitutional Court, in
review proceedings under § 71a of the Act on the Constitutional Court,
is bound by the petition from the Senate (in the scope of specific
articles whose review the Senate provided grounds for), or whether it is
authorized or even obligated to review the Treaty of Lisbon as a whole,
i.e. also in relation to its other articles, regardless of the scope
and grounds of the petition. There was also the question of whether the
Constitutional Court is to review only those provisions of the Treaty of
Lisbon that are, in terms of their content, new norms, i.e. whether it
is to conduct its review without fundamentally differentiating between
the normatively old and new provisions of the Treaty of Lisbon. Finally,
in this context, it is necessary to consider what is to be the point of
reference for the Constitutional Court’s review, simply stated, whether
it is the constitutional order as a whole, or only the “material core”
of the Constitution.
72.
In the first phase the Constitutional Court thus focused on weighing
the procedural issue of the scope of review that it was – at least
theoretically – possible (according to the petitioner and some briefs)
necessary to focus either on the entire the Treaty of Lisbon or only the
provisions that were contested in the petition. The petition is
conceived so that it generally calls for review of the entire treaty,
but it argues specifically only against some provisions, as is evident
from the relevant passage mentioned above.
73.
First of all, the Constitutional Court points out that in this matter
it does not intend to distinguish whether this is an adversarial or
non-adversarial proceeding in the classic civil law sense. This is a
completely unique proceeding on review of the constitutionality of an
international treaty, which the Constitutional Court approached as set
out in the following text.
74.
Here the Constitutional Court inclined toward the conclusion (arising
by analogy from its settled case law in the area of reviewing legal
regulations) that focuses only on the provisions of the international
treaty that were formally contested and grounds therefor provided in the
petition. A proceeding to review the constitutionality of statutes
under § 64 par. 1 of the Act on the Constitutional Court has a similar
character; there the Constitutional Court has said, for example, that
even though it is bound only by the proposed verdict of the petition,
and not by its reasoning, when evaluating the constitutionality of a
regulation, that does not mean that a petitioner in a proceeding on the
review of norms, if arguing on the basis that the content of a legal
regulation is inconsistent with the constitutional order, does not have
the burden of allegation. If the petitioner objects that the content of a
statute is inconsistent with the constitutional order, for purposes of
constitutional review it is not enough to name the act or individual
provisions thereof whose annulment is sought; it is necessary to also
state the grounds for the alleged unconstitutionality. In a review, the
Constitutional Court is not bound by these grounds; it is bound only by
the proposed verdict, but not by the scope of review resulting from the
grounds contained in a petition for review of a norm (cf. judgment file
no. Pl. ÚS 7/03, Collection of Decisions of the Constitutional Court,
volume 34, judgment no. 113, pp. 180–181, promulgated as no. 512/2004
Coll.). Thus, the text of § 71e of the Act on the Constitutional Court,
which speaks of an international treaty in general, and not only of its
individual provisions, is not, in relation to the (petitioner’s) burden
of allegation – and in view of the abovementioned arguments contained in
the cited judgment – insurmountable, but it must be interpreted in the
manner thus explained.
75.
The Constitutional Court is bound by the scope of the petition to open
proceedings, understood as described above, i.e. by the specific
contested provisions as defined by an authorized petitioner, and is not
authorized to exceed its scope. Thus, a subject with active standing, in
a proceeding that is opened at its initiative (that is, optionally),
bears the burden of allegation, which it is required to meet. We can add
that an attempt at a complete constitutional review, nota bene with the
consequences of the impediment of rei iudicatae, especially with
lengthy normative texts, is barred by the epistemological argument
(epistemologically unfulfillable); the normative argument is based on
the fact that the constitutional framework and the statutory framework
conceive of the Constitutional Court with the status of a court, and not
a “place of interpretation.” The Constitutional Court of the Czech
Republic is a judicial body for the protection of constitutionality; it s
a decision-making body, and not an institution that provides all sorts
of positions or expert opinions. In any case, this concept is also
confirmed by the exclusion of the government from the circle of those
authorized to petition for a review. A review can be activated only at
the moment when an international treaty is presented to Parliament for
approval, and when one can thus assume that opposing views as to its
constitutionality will appear at that time. Until that time, the
government, in negotiating an international treaty, must be guided by
its own judgment as regards constitutionality, or itself seek to correct
individual provisions during the negotiations with the other parties.
76.
Another argument in favor of this opinion is the overall concept of
preliminary review of the constitutionality of international treaties
under § 71a et seq. of the Act on the Constitutional Court. The order of
individual petitioners, as set forth in § 71a par. 1, is guided by the
aim of enabling each of them to properly express its doubts about the
constitutionality of the international treaty under discussion. If the
Constitutional Court ruled on the consistency of the Treaty of Lisbon,
as a whole (in relation to all its individual provisions, as is
suggested not only by the Senate, but also by the president and the
government in their briefs), it would basically thereby make it
impossible to submit a petition for review by a group of deputies or
senators, who have independent standing to file a petition under § 71a
par. 1 let. b) of the Act. While this limitation can be cured to a
certain extent with the government or the president, by their
participation in the present proceeding (which is guaranteed to them by §
71c of the Act on the Constitutional Court), a group of deputies or
senators does not have that opportunity. Therefore, reviewing legal
regulations or international treaties in their entirety, in a rather
blanket manner, without presenting to the Constitutional Court specific
factual effects of their application or legal arguments due to which
specifically defined and identified provisions of these regulations are
alleged to be unconstitutional, can not be accepted.
77.
The Constitutional Court thus concludes that its review is concentrated
on those provisions of the Treaty of Lisbon whose consistency with the
Constitutional the petitioner expressly contested and for which it
presented arguments contained in its petition.
78.
Thus, we can consider prima vista that any new petition for review of
this same Treaty of Lisbon would evidently be blocked by the impediment
of rei iudicatae in relation to the provisions contested today. However,
the Constitutional Court must judge that only if a new petition is
actually submitted; we can point out in advance that in such a case it
is appropriate to intepret the question of rei iudicatae restrictively.
However, if a petition is submitted for review of a new (different)
treaty document (whose content is fully or partly identically with the
Treaty of Lisbon), then the issue will not be (or need not be) one of an
identical matter, but an identical problem. However, provisions in such
a new treaty document with the same content may also appear in the new
text with different functional connections, etc., than is the case now.
Evaluating such a situation, especially in terms of the possible
impediment of rei iudicatae – in view of the Constitutional Court’s
judgment in this proceeding – will be a matter for the Constitutional
Court in the future, if a petition for review of the constitutionality
of a new (different) treaty document is actually submitted.
IX.
79.
Another question that the Constitutional Court had to resolve
preliminarily was the circle of provisions of the Treaty of Lisbon that
were to be reviewed, in view of the Treaty on Accession of the Czech
Republic to the European Union, Announcement no. 44/2004 Coll. of
International Treaties (the Accession Treaty), already ratified and
fully applicable in the Czech Republic. This involves the scope of
review, whether the Constitutional Court is to decide only about those
provisions of the Treaty of Lisbon contested in the petition that can in
eventum be considered as normatively new, or about all the contested
and disputed provisions.
80.
Under Art. 87 par. 2 of the Constitution (as amended) the
Constitutional Court (also) decides on the consistency of an
international treaty under Art. 10a and Art. 49 with the constitutional
order, before it is ratified. Until the Constitutional Court makes a
decision, the treaty can not be ratified. Unlike the (draft) Treaty on a
Constitution for Europe, the Treaty of Lisbon is not a new, independent
treat that would replace the existing complex of founding treaties, but
is only an amendment to the existing treaties (the Treaty on European
Union and the Treaty establishing the European Community, which it
renames as the Treaty on the Functioning of the European Union), similar
to what was already done by previous amendments of the founding
treaties.
81.
From that point of view, it is possible to distinguish – although very
problematically and not consistently –in the Treaty of Lisbon the
following provisions:
a) provisions taken from interpretation of the existing treaties by the European Court of Justice;
b)
provisions taken from the existing treaties, but which were partly
modified (whether to expand the Union’s competences or to limit the
Union’s competences);
c) derogatory provisions that annul existing treaty provisions;
d) provisions that are completely new and have no equivalent in the existing treaties.
82.
Provisions of type b), c) and d) are certainly normatively new. With
provisions of type a) that is debatable. Although the consequences of
interpreting the existing treaties are implicitly contained in those
treaties, we can say that expressly including a certain provision which
has until now existed “only” in case law can, in certain circumstances,
change its normative meaning. In any case, the Senate’s petition does
not draw a clear dividing line between the normatively new and old
provisions of the Treaty of Lisbon, but its criticisms are generally
aimed against provisions that can be classified as normatively new.
83.
As was already stated above, mere identification of clearly new
provisions can hardly be completely unambiguous. Moreover, in this case
we can conclude from the constitutional principles of foreseeability,
understandability and certainty of law that, even if doubts arose, it is
necessary to assume that a particular case involves a normatively new
provision, and to subject it to review. This is not affected by the fact
that certain amended provisions are sometimes only the results of
interpretation in the present legal situation, based on the case law of
the Court of Justice.
84.
In the Constitutional Court’s opinion, even ratification of the
Accession Treaty does not completely render meaningless the normatively
supreme position of the constitutional order in the legal system in the
Czech Republic. The Constitutional Court has previously stated that, in
exceptional cases, one can conclude that an international treaty is
inconsistent with the constitutional order or with human rights treaties
through the means of a decision on a constitutional complaint eve ex
post. It did so in judgment file no. II. ÚS 405/02 (Collection of
Decisions of the Constitutional Court, volume 30, judgment no. 80). That
judgment rejected individual application of the Treaty between the
Czech Republic and the Slovak Republic on Social Security, which would
have unconstitutional effects, in view of the unusual strictness that
its application would cause in that instance. The judgment says that the
Constitutional Court must be guided by Article 88 par. 2 of the
Constitution, under which the judges of the Constitutional Court are
bound in their decision making only by the constitutional order and by
the Act on the Constitutional Court. The Constitutional Court concluded
that the Treaty between the Czech Republic and the Slovak Republic on
Social Security is not a treaty that could be considered part of the
constitutional order, and therefore the Constitutional Court can not
accept as constitutional any application of any of its provisions that
would result in a situation that is inconsistent with the Charter of
Fundamental Rights and Freedoms or with the Constitution, as components
of the constitutional order. The Constitutional Court is naturally aware
that the Treaty between the Czech Republic and the Slovak Republic on
Social Security is not a treaty under Art. 10a of the Constitution, but
it concludes that the abovementioned conclusion is applicable in the
area of international treaties in general. (Note: A similar conclusion,
i.e. that inconsistency of an international treaty with the
constitutional order can also be concluded ex post – through a
constitutional complaint – is also shared by some of the expert
literature; cf. Kysela, Kühn, Právní rozhledy [Legal Perspectives] 10,
2002, no. 7, pp. 301–312.)
85.
On the other hand, it is certain that after ratification of any
international treaty the Constitutional Court is required to exercise
considerable restraint and to regularly apply (in the case of European
treaties) the principle of Euro-conforming interpretation. However, this
principle can not have the character of a kind of “implicit
Euro-amendment” of the Constitution. In the event of a clear conflict
between the domestic Constitution and European law that can not be cured
by any reasonable interpretation, the constitutional order of the Czech
Republic, in particular its material core, must take precedence.
86.
The Constitutional Court is a judicial body for the protection of
constitutionality, the supreme interpreter of the constitutional law of
the Czech Republic, and not of primary European law; it is not its role,
nor is it the purpose of proceedings on the consistency of
international treaties with the constitutional order to sophistically
separate from each other today’s allegedly new and earlier old
provisions of previous treaties, because one can not even find a precise
and unambiguous criterion for such a self-limiting procedure.
87.
Therefore, the Constitutional Court included in its review all
provisions of the Treaty of Lisbon whose consistency with the
Constitution the petitioner contests in a reasoned manner, because (in
the context of the foregoing deliberations) it considers them to be
normatively new provisions, even though we can concede that they may,
although only in some aspects, only replicate existing norms of European
law.
X.
88.
A question closely tied to the issue of possibly distinguishing between
normatively new and old provisions of the Treaty of Lisbon, is
determining the appropriate point of reference for reviewing whether the
Treaty of Lisbon is consistent with the Constitution of the Czech
Republic. In this case the Constitutional Court applied, as a point of
reference, the constitutional order of the Czech Republic as a whole,
not only its so-called material core (but see below).
89.
The Constitutional Court thus gave priority to a comprehensive review.
Its basic standard was the entire constitutional order, although within
it the material core of the Constitution – i.e. the essential
requirements of a democratic, law-based state, which may not be amended –
played a central and key role.
90.
The Czech Republic’s accession to a supra-national organization like
the European Union led to an important revision of constitutional
regulations (cf. the “Euro-amendment” of the Constitution of the Czech
Republic – constitutional Act no. 395/2001 Coll., which amends the
constitutional Act of the Czech National Council, no. 1/1993 Coll.,
Constitution of the Czech Republic, as amended by later regulations),
and thus a fundamental change in the Czech legal order took place.
However, European Union law, which has since then been applied as an
autonomous legal order alongside the legal order of the Czech Republic,
based on Article 10a of the Constitution, bases its priority application
only on the existence of valid and effective norms, which the
provisions of the Treaty of Lisbon are not yet. The absence of a prior
review of the Accession Treaty by the Constitutional Court can not, in
and of itself, establish a presumption that it is constitutional (cf.
Chapter VIII., above). If we accepted the opinion that consent with the
ratification of an international treaty under Article 10a by the same
majority as is required to adopt a constitutional act reduces the
present review only to the area of the “material core” of the
Constitution, and otherwise rules it out, it would mean that the
institution of preliminary review of constitutionality would to a large
extent become meaningless. However, in this regard the Constitution does
not distinguish between “ordinary” international treaties under Art. 49
and international treaties under Article 10a, and sets forth the same
procedure for review of both by the Constitutional Court. Here we also
can not overlook the dominant role that the executive branch plays in
negotiating international treaties under Article 10a, in contrast to the
process of adopting constitutional acts, where the Parliament and its
individual members can actively participate and realistically influence
the final form of an adopted norm. Although, of course, one could debate
the individual provisions of an international treaty submitted for
approval to the Parliament of the Czech Republic, Parliament has only
the opportunity to approve or reject it as a whole. This also differs
from the process of adopting a constitutional act, where the
democratically authorized constitutional framer may directly affect its
final form. Review by the Constitutional Court, and a possible finding
of inconsistency between the constitutional order and an international
treaty under Article 10a of the Constitution, then makes it necessary to
state which provision of the constitutional order the international
treaty is inconsistent with; here a space opens up for the
constitutional framer to take active part in the creation of legal norms
of fundamental importance for the entire legal order of the Czech
Republic.
91.
As was already said, the Constitutional Court, as a judicial body for
protection of constitutionality, is the highest body interpreting the
constitutional regulations of the Czech Republic. This comprehensive
approach to reviewing the question of what the point of reference for
review of the Treaty of Lisbon must be corresponds to the express
wording of Art. 87 par. 2 of the Constitution, under which the
Constitutional Court shall rule on the consistency of an international
treaty under Art. 10a and Art. 49 with the constitutional order before
it is ratified, as well as the related passages of the Act on the
Constitutional Court, which also speak of the constitutional order as a
whole, and not only as a part of it, however important. In any case, the
text of the “Euro-amendment” to the Constitution (constitutional Act
no. 395/2001 Coll.) testifies to this; Art. 89 par. 3 provides that a
decision of the Constitutional Court under Art. 87 par. 2 finding an
international treaty inconsistent with the constitutional order prevents
ratification of the treaty until the inconsistency is removed. Such
inconsistency in international treaties can be removed by amending the
Constitution, which, of course, is out of the question with the material
core of the Constitution. Thus, the constitutional framer itself relies
on the entire constitutional order as a referential criterion for
review of the constitutionality of international treaties. A
Constitutional Court judge is then bound expressly only by the
constitutional order, by the Act on the Constitutional Court, and, in
particular, by the obligation to protect the inviolability of the
natural rights of a human being and the rights of the citizen (Art. 88
par. 2 in connection with Art. 85 par. 2 of the Constitution).
92.
Another substantial argument for the selected approach is the generally
recognized principle for interpretation of constitutional law, usually
called the principle of unity in the constitutional code, or of the
constitutional order. This means that it is always necessary to take all
provisions of the constitutional order and interpret their functioning
together, not to take them out of the context of the functioning of the
entire constitution; all the more so because the generally and often
briefly formulated constitutional texts are related in meaning and lean
on each other like individual building elements of a whole that creates a
new quality, sometimes different from its individual parts. The limit
is always the ban on abuse of an interpretation that would lead to
removing or endangering the foundations of a democratic, law-based
stated provided by Art. 9 par. 3 of the Constitution. It is the
obligation of all bodies interpreting the legal order of the Czech
Republic to use an interpretation that is based on material,
constitutionally constituted values that are fundamentally untouchable
and non-amendable. The usual method that helps overcome possible
contested places is the principle of a constitutional interpretation
under which, if the reviewed text permits several interpretations, it is
necessary to use the one that most corresponds to the Constitution or
to the constitutional order as a whole.
93.
As the Constitutional Court has already stated above, within the
applied point of reference, the constitutional order of the Czech
Republic, it is the essential requirements of a democratic, law-based
state – whose amendment is impermissible under Art. 9 par. 2 of the
Constitution – that represent the central criterion. A more detailed
description of the content of these essential requirements of a
democratic, law-based state, which usually have the character of general
principles, is the result, in specific cases, of interpretation by
bodies that apply the Constitution. The Constitutional Court of the
Czech Republic, in its historically first judgment, stated that our
Constitution is not based on a neutrality of values, it is not a mere
definition of institutions and processes (judgment file no. Pl. ÚS
19/93; Collection of Decisions of the Constitutional Court, volume 1,
judgment no. 1, promulgated as no. 14/1994 Coll.); thereby it joined the
modern concept of a law-based state, which is understood not as a
formal, legal state, but as a material legal state. The guiding
principle is undoubtedly the principle of inherent, inalienable,
non-prescriptible, and non-repealable fundamental rights and freedoms of
individuals, equal in dignity and rights; a system based on the
principles of democracy, the sovereignty of the people, and separation
of powers, respecting the cited material concept of a law-based state,
is built to protect them. These principles can not be touched even by an
amendment to the Constitution implemented formally in harmony with law,
because many of them are obviously of natural law origin, and thus the
state does not provide them, but may and must – as a constitutional
state – only guarantee and protect them. Although the Constitutional
Court has already many times – since its cited first judgment in this
area – pronounced the necessity of protecting the principles forming the
material core of the Constitution in a heightened degree, a detailed
list of them is not found in any constitutional provision or in the
Constitutional Court’s judgments. Even in this proceeding the
Constitutional Court has no ambition to make such a list in a case or
catalog; however, such an attempt would evidently be appropriate if the
Constitutional Court chose as the standard for review only the material
core, because what is being measured is not a particular limited
problem, but a considerable set of amended primary EU laws, and it would
be necessary to identify more precisely what exactly that set is being
measured by and what it is not (i.e. with the remaining components of
the constitutional order). Thus, for the foregoing reasons, for purposes
of this proceeding, the Constitutional Court took into consideration
the entire system of the Czech constitutional order, although primarily
its untouchable material core, specifically those articles or parts that
can apply to the provisions of the Treaty of Lisbon contested by the
petitioner.
94.
We can add the following. In the matter concerning sugar quotas
(judgment Pl. ÚS 50/04 of 8 March 2006 – cf. point 92, Collection of
Decisions of the Constitutional Court, volume 40, judgment no. 50,
promulgated as no. 154/2006 Coll.), the Constitutional Court stated that
lending part of the powers of the Czech Republic to EC bodies is a
conditional loan and can continue as long as those powers are exercised
by those bodies in a manner that is compatible with preserving the
foundations of the state sovereignty of the Czech Republic and in a
manner that does not endanger the foundations of a material, law-based
state; here, of course, we must emphasize that in that case (i.e. with
sugar quotas) the Constitutional Court evaluated an issue that fell
under “secondary” EU law. As regards secondary community law, that
judgment was based on a presumption of compatibility of that community
law, and especially the case law of the European Court of Justice, with
the relevant provisions of the Czech constitutional order, especially
with the guaranteed fundamental rights and freedoms. Therefore, any
potential review was to be limited to consistency with Art. 1 par. 1 and
Art. 9 par. 2 of the Constitution. However, in the presently
adjudicated matter – setting aside another type of proceeding – as
emphasized above, an extensive set of amended primary EU law is being
evaluated. That, too, is another argument why it is appropriate to use
the entire the constitutional order as a referential criterion.
(In
the matter of a “Euro-arrest warrant” – file no. Pl. ÚS 66/04,
Collection of Decisions of the Constitutional Court, volume 41, judgment
no. 93, promulgated as no. 434/2006 Coll. – the Constitutional Court
does not rule out fundamental priority application of EC law, which, as
it states, is limited only by the material core of the Constitution,
which is defined by, e.g. the judgment on sugar quotas. However, at the
same time it implicitly admits removing possible inconsistency not only
by priority application of European law norms, but also through
constitutional amendments. It is appropriate to ad here that, in order
for the constitution framers to be able to recognize the need for them,
it is necessary for the Constitutional Court to have an opportunity to
examine European law provisions in terms of their consistency with the
constitutional order as a whole, not only with the material core. In
such a review it can then define those provisions of the constitutional
order that can not be interpreted consistently with the requirements of
European law by using domestic methodology, and which it would be
necessary to amend. Preliminary review gives it a suitable opportunity
for this, because it does not raise problems on the application level.
Moreover, the Constitutional Court thereby acquires an opportunity to
evaluate to a certain extent the constitutionality of the interpretation
of already existing EU law norms by the Court of Justice, without
coming into direct conflict with it.
We
can also add that neither the Senate, as the petitioner, nor the
president, expressly addressed the point of reference for review of the
Treaty of Lisbon. However, in its filing the Senate argues on the basis
of provisions of the Constitution that could evidently not even be
considered as part of its material core.)
XI.
Review of Content – General Part (Basic Starting Points)
95.
The Constitutional Court – although it does not intend to abandon
evaluating the articles of the Treaty of Lisbon (TL) contested by the
Senate in terms of the constitutional order as a whole (cf. Art. 87 par.
2 of the Constitution, as amended) – focused, from a normative
perspective, primarily on Art. 10a par. 1, Art. 1 par. 1 and Art. 9 par.
2 and 3 of the Constitution.
96.
Article 10a par. 1 provides that certain powers of Czech Republic
bodies may be transferred by treaty to an international organization or
institution. Article 1 par. 1 provides that the Czech Republic is a
sovereign, unitary, and democratic state governed by the rule of law,
founded on respect for the rights and freedoms of the human being and of
citizens. Article 9 par. 2 provides that a change in the essential
requirements for a democratic state governed by the rule of law is
impermissible. Article 9 par. 3 provides that legal norms may not be
interpreted so as to authorize anyone to do away with or jeopardize the
democratic foundations of the state.
97.
Art. 10a par. 1 of the Constitution indicates that not all, but only
certain powers can be transferred by treaty to an international
organization. This Article must be interpreted in connection with Art. 1
par. 1 and Art. 9 par. 2 of the Constitution. Thus the transfer of
powers of Czech Republic bodies can not go so far as to violate the very
essence of the republic as a sovereign and democratic state governed by
the rule of law, founded on respect for the rights and freedoms of the
human being and of citizens or to establish a change in the essential
requirements for a democratic state governed by the rule of law.
98.
In this regard it is necessary for the Constitutional Court to at least
briefly address the term “sovereign state,” although it or course has
no aim to interpret that term in this judgment by an extensive analysis
(this would not even be possible; the term is not undisputed, and
difficult to define in the abstract). State sovereignty is traditionally
understood as the highest and exclusive power on a state’s territory,
and as the state’s independence in international relations. Thus, no
international law norm can arise without the will of the states
themselves, acting on the principle of equal sovereignty. However,
states are required to respect the norms to whose creation they
contributed in accordance with the principle pacta sunt servanda, and to
fulfill them in good faith, which protects the legal certainty of other
subjects.
99.
States have been recognized actors in the international legal system
for centuries, whereas individuals, until recently, had no direct access
to this area, except the opportunity to exercise their rights with the
help of the state to which they belonged. In classical theory states the
subjects of “inter-state” (international) law, which they create for
themselves and for their needs, whether by the acceptance of custom, or
specific agreements, most often expressed in international treaties.
Therefore, states traditionally had, and still have, an exclusive role
in the creation of the modern international legal system.
100.
Apart from the possibility of observing certain signs that are
generally accepted as the constitutive elements of a state (“a
territorial corporation equipped with original power to govern” per
Jellinek, J.: Všeobecná státověda [General Political Science]. Prague,
1906, p. 187) and evaluation of which indicates whether a state exists
or not, it is also possible to observe in a sovereign the freedom to
restrict itself by the legal order or by freely accepted international
obligations, in other words, the ability to regulate its competences
(Jellinek, J. op. cit., p. 524). We can conclude from this that the
possibility to create this free will that a state has to repeatedly
amend a particular competence is not a sign of a sovereign’s inadequacy,
but of its full sovereignty.
101.
International cooperation and coordination of national policies has
become an essential requirement for managing the globalization of the
world. For the first time in history, national security, which was
always the core of statehood, can be effectively ensured only by
sovereign states acting in concert, unifying resources, technologies,
communication and information flows, power, and authority. In the
globalized world the centers of power are regrouped according to factors
other than simply the power and will of individual sovereign states.
There is a spontaneous, undirected process of increasing intensive
integration of the world’s countries in a single economic system. This
process, with contributions from the key communication technologies of
the mass media, internet, and television, subsequently influences
relationships outside and inside individual states in the areas of
politics, culture, social psychology and others, including the area of
law.
102.
The character of integration, in this regard also in the case of the
European Union, can ultimately lead to protection and strengthening of
the sovereignty of member states vis-à-vis external, especially
geopolitical and economic factors; for example, also vis-à-vis newly
emerging world superpowers, where it is difficult to guess the future
priority of values to which they will be willing to subordinate the
building of a new order in the globalized world.
103.
At the core of European civilization are values that are common to all
developed world cultures. These values are human freedom and human
dignity, which are the foundation of a human being’s self-determination.
The functional forms of social cohabitation are based on an
individual’s conscious self-restriction and acceptance of order. The
same principles also lead to higher forms of effective human
organization, whether a municipality, state, or forms of integration of
states. This practical need also gave birth to the principle of
subsidiarity, which can be balanced and functional only insofar as the
organizational levels where transfer of competence takes place feel the
general benefit of such a step.
104.
The European Union has advanced by far the furthest in the concept of
pooled sovereignty, and today is creating an entity sui generis, which
is difficult to classify in classical political science categories. It
is more a linguistic question whether to describe the integration
process as a “loss” of part of sovereignty, or competences, or, somewhat
more fittingly, as, e.g., “lending, ceding” of part of the competence
of a sovereign. It may seem paradoxical that they key expression of
state sovereignty is the ability to dispose of one’s sovereignty (or
part of it), or to temporarily or even permanently cede certain
competences.
105.
The global scene can no longer be seen only as a world of isolated
states. It is generally accepted that the state and its sovereignty are
undergoing change, and that no state is such a unitary, separate
organization as classical theories assumed in the past. An international
political system is being created in the global scale that lacks
institutionalized rules of its own self-government, such as the
international system created by sovereign states had until now. It is an
existential interest of the integrating European civilization to appear
in global competition as an important and respected force. These
processes quite clearly demonstrate that the sovereign legitimate state
power must necessarily observe the ongoing developmental trends and
attempt to approach them, understand them, and gradually subject this
spontaneous globalization process, lacking hierarchical organization, to
the order of democratic legitimacy (Woodward, R. An ‚ation‘ not a
‚Nation‘: the Globalization of World Politics. In Michie, J. (ed.) The
Handbook of Globalization. Edward Elgar Publishing Limited, Cheltenham,
UK, 2003, pp. 311–316).
106.
However, it is important to point to the ability of a member state to
withdraw from the European Union by the process set forth in Art. 50 of
the Treaty on EU; the explicit articulation of this possibility in the
Treaty of Lisbon indisputably confirms the principle that “States are
the Masters of the Treaty” and the continuing sovereignty of member
states.
107.
Thus, from a modern constitutional law viewpoint, sovereignty need not
mean only “independence of the state power from any other power, both
externally (in foreign relations), and in internal matters” (Dušan
Hendrych and collective of authors, Právnický slovník [Legal
Dictionary], C. H. Beck, 2nd edition 2003, p. 1007). Sovereignty is
(probably) no longer understood like this in any traditional democratic
country, and stricto sensu no country, including the USA, would fulfill
the elements of sovereignty. For example, David P. Calleo points out
that if we understood sovereignty in the traditional concept, any
international obligation deprives the state of part of its sovereignty.
Therefore, in practice sovereignty should not be understood only as a
rigid legal concept, but “also as a concept with a practical, moral, and
existential dimension. In practice, national sovereignty is always
limited by objective conditions, including the reactions of neighboring
states. Under these conditions, national sovereignty means above all a
legitimate government that has at its disposal the formal power to
choose between available alternatives, and not to pursue an alternative
dictated by a foreign power. In other words, for a nation-state just as
for an individual within a society, practical freedom means being an
actor, not an object. For a state that is in a tightly mutually
interdependent system, practical sovereignty consists in being
understood as a player to whom neighboring states listen, with whom they
actively negotiate, and whose national interests are taken into
consideration.” (David P. Calleo, Rethinking Europe’s Future,
Princeton/Oxford, pp. 141, 2001).
108.
We can conclude from these deliberations that the transfer of certain
state competences, that arises from the free will of the sovereign, and
will continue to be exercised with the sovereign’s participation in a
manner that is agreed on in advance and that is reviewable, is not a
conceptual weakening of the sovereignty of a state, but, on the
contrary, can lead to strengthening it within the joint actions of an
integrated whole. The EU’s integration process is not taking place in a
radical manner that would generally mean the “loss” of national
sovereignty; rather, it is an evolutionary process and, among other
things, a reaction to the increasing globalization in the world.
109.
The Constitutional Court adds that – as regards the Czech Constitution –
one can choose a simple linguistic interpretation of Art. 10a par. 1 of
the Constitution that permits delegating only “certain powers of bodies
of the Czech Republic.” That indicates that the Constitution,
interpreted as a whole, is consistent as regards the relationship of
Article 10a and Art. 1 par. 1: Art. 10a clearly can not be used for an
unlimited transfer of sovereignty; in other words, based on Article 10a
on can not transfer – as already stated – powers, the transfer of which
would affect Art. 1 par. 1 of the Constitution to the effect that it
would no longer be possible to speak of the Czech Republic as a
sovereign state. Thus, the concept of sovereignty, interpreted in the
context of Art. 1 par. 1 of the Constitution and Art. 10a of the
Constitution, clearly shows that there are certain limits to the
transfer of sovereignty, and failure to observe them would affect both
Art. 1 par. 1 and Art. 10a of the Constitution. These limits should be
left primarily to the legislature to specify, because this is a priori a
political question, which provides the legislature wide discretion;
interference by the Constitutional Court should come into consideration
as ultima ratio, i.e., in a situation where the scope of discretion was
clearly exceeded, and Art. 1 par. 1 of the Constitution was affected,
because there was a transfer of powers beyond the scope of Art. 10a of
the Constitution. An analogous approach was taken by the Polish
Constitutional Tribunal in its decision on the constitutionality of
Poland’s accession to the EU, of 11 May 2005 (see judgment K 18/04, OTK
ZU (2005) ser. A, nr. 5, pol. 49).
110.
As the foregoing text indicates, the point of reference for
permissibility of a transfer of powers from the Czech Republic to an
international organization is, especially, respecting the material core
of the Constitution under Art. 9 par. 2. This means, in particular,
protection of fundamental human rights and freedoms, as they are
enshrined in the Charter of Fundamental Rights and Freedoms, in the
(European) Convention for the Protection of Human Rights and Fundamental
Freedoms, in other international treaties in this field, and in the
settled case law of the Constitutional Court of the Czech Republic and
the European Court of Human Rights. In this regard we can point out that
what will be important is application of the Treaty of Lisbon, or the
Charter of Fundamental Rights of the European Union, in specific cases
that can be contested before the Constitutional Court of the Czech
Republic by individual constitutional complaints, concerning possible
(exceptional) excesses by Union bodies and Union law into fundamental
rights and freedoms. This is also discussed at a different point in this
judgment.
111.
The Constitutional Court includes among the important starting points
for a review of the content of the Treaty of Lisbon and the basic case
law of the Constitutional Court, and – for inspiration – certain
important decisions of other constitutional courts. However, the
Constitutional Court does not take this case law as dogma; as already
stated, the Constitutional Court considers (and wishes to consider in
the future, in reviews of possible constitutional complaints) the
referential view point to be, in particular, the material (hard) core of
the Constitution, although this can not fully rule out the possibility
that it will take into account the entire constitutional order.
112.
Among the case law of the Constitutional Court, we can consider
fundamental judgments to be judgment file no. Pl. ÚS 50/04 (in the
matter of “sugar quotas”) and judgment file no. Pl. ÚS 66/04 (in the
matter of a “Euro-arrest warrant”) – see above, for both.
113.
In the matter of “sugar quotas” (Pl. ÚS 50/04 of 8 March 2006) the
Constitutional Court state, among other things, the following theses:
-
By the accession of the Czech Republic to the EU, on the basis of Art.
10a of the Constitution of the Czech Republic, there was a transfer of
powers of national bodies to supra-national bodies. At the moment when
the Treaty establishing the EC, as amended by revisions and the
accession treaty, became binding on the Czech Republic, the transfer of
the powers of national bodies that, under primary EU law are exercised
by EU bodies, to those bodies.
-
the Czech Republic lent these powers to EC bodies. This loan of partial
powers is a conditional loan; it can continue as long as these powers
are exercised by EC bodies in a manner compatible with the preservation
of the foundations of the Czech Republic’s state sovereignty, and in a
manner that does not jeopardize the foundation of a material law-based
state. (Note: Of course, this thesis does not rule out, as is stated
elsewhere /cf. point 84/, evaluation of the TL in view of the
constitutional order as a whole.)
-
Direct applicability in domestic law, and priority application of a
directive (note: this concerned a particular directive in the
adjudicated matter) arise from the very dogmatics of community law, as
it was presented in the past in the case law of the ECJ. Insofar as
membership in the EC carries a certain limitation of the powers of
domestic organs to the benefit of community bodies, one of the
expressions of that limitation must necessarily also be a limitation of
the freedom of member states to determine the domestic effects of
community law. Article 10a of the Constitution of the Czech Republic
thus actually functions in both directions: it forms the normative basis
for transfer of powers, and is simultaneously the provision of the
Constitution of the Czech Republic that opens the domestic legal order
for the functioning of community law, including rules concerning its
effects within the legal order.
(However,
it can not be ignored – cf. point 84 – that, in contrast to the Treaty
of Lisbon, the difference is that in the matter of “sugar quotas” the
Constitutional Court reviewed secondary community law, whereas the
Treaty of Lisbon involves primary law.)
114.
In the matter of the “Euro-arrest warrant” (Pl. ÚS 66/04 of 3 May 2006)
the Constitutional Court stated, among other things, the following
theses:
-
Article 1 par. 2 of the Constitution of the Czech Republic, in
connection with the principle of cooperation set forth in Art. 10 of the
Treaty establishing the EC gives rise to a constitutional principle
under which domestic legal regulations, including the Constitution, are
to be interpreted in accordance with the principles of European
integration and the cooperation of community bodies and the bodies of a
member state. Thus, if there are several interpretations of the
constitutional order, which includes the Charter of Fundamental Rights
and Freedoms, and only some of them lead to fulfilling the obligation
that the Czech Republic assumed in connection with its membership in the
EU, that interpretation must be selected which supports fulfillment of
that obligation, and not an interpretation that prevents such
fulfillment.
-
The constitutional principle of interpreting domestic law in accordance
with the Czech Republic’s obligations arising from its membership in
the European Union is limited by the possible meaning of the
constitutional text. Article 1 par. 2 of the Constitution is not a
provision that is capable of changing the meaning of any other express
constitutional provision at will. If domestic methodology for
interpreting constitutional law does not permit interpreting a
particular norm in accordance with European law, it is up to the
constitutional framer to amend the Constitution. Of course, the
constitutional framer can exercise this power only on condition of
preserving the essential requirements for a democratic state governed by
the rule of law (Art. 9 par. 2 of the Constitution), which are not at
the constitutional framer’s disposal, wherefore the power to amend these
requirements also can not be transferred by a treaty under Art. 10a of
the Constitution (cf. Holländer, P., Materiální ohnisko ústavy a
diskrece ústavodárce [The Material Core of the Constitution and the
Discretion of the Constitutional Framer], Právník [Lawyer] no. 5/2005).
-
This indicates that if several possible interpretations of the
Constitution exist under domestic interpretation methodology, and only
some of them lead to fulfilling the obligation that the Czech Republic
assumed with its membership in the European Union, it is necessary to
select the interpretation that supports implementation of this Article 1
par. 2 of the Constitution.
(Optical
there may seem to be a certain discord between the Constitutional
Court’s judgments in the matter of “sugar quotas” and the matter of the
“Euro-arrest warrant.” Judge Eliška Wagnerová pointed to this in her
dissenting opinion to the Constitutional Court’s judgments in the matter
of the “Euro-arrest warrant, saying that in this matter the
Constitutional Court shifted the doctrine of the Constitutional Court –
formulated in the matter of “sugar quotas” – by the assertion that there
was “to a certain extent a limitation on the powers of the
Constitutional Court” and that “where Czech law reflects a binding norm
of European law, the doctrine of priority of community law does not
permit the Constitutional Court to review that Czech norm in terms of
its conformity with the constitutional order of the Czech Republic.”
Nonetheless, the Constitutional Court believes that the dissonance
between these two judgments need not be seen as too sharp and clear-cut,
which can be concluded both from the headnotes introducing judgment Pl.
ÚS 66/04 /Euro-arrest warrant/, and from the wording of point 53 in it.
For purposes of the present judgment, in the matter of evaluating the
constitutionality of the TL, the Constitutional Court does not consider
certain differences between the two cited judgments to be decisive.)
115.
In another judgment, in the matter of review of the Act on Bankruptcy
and Settlement (Pl. ÚS 36/01 of 25 June 2002, Collection of Decisions of
the Constitutional Court, volume 26, judgment no. 80, promulgated as
no. 403/2002 Coll.) the Constitutional Court stated the following: The
constitutional maxim in Art. 9 par. 2 of the Constitution has
consequences not only for the framers of the constitution, but also for
the Constitutional Court. The impermissibility of changing the essential
requirements of a democratic state based on the rule of law also
contains an instruction to the Constitutional Court, that no amendment
to the Constitution can e interpreted in such a way that it would result
in limiting an already achieved procedural level of protection for
fundamental rights and freedoms.
116.
In the case law of other constitutional courts – which we can take as
inspiration – we can consider fundamental especially the decision of the
German Federal Constitutional Court (GCC), Solange II and the
Maastricht decision.
117.
In the matter of Solange II of 22 October 1986 The German Federal
Constitutional Court essentially stated that the level of protection of
human rights provided by European bodies is comparable to the protection
that could be provided by German bodies; the Federal Constitutional
Court concluded that it would no longer review the compatibility of
Community norms and acts if the European Community and especially its
Court of Justice generally ensure effective protection of fundamental
rights vis-à-vis acts of the Community; this protection must
fundamentally correspond to the protection of fundamental rights
provided by the Basic Law (the Constitution of the Federal Republic of
Germany).
118. In the matter of Maastricht of 12 October 1993 the GCC stated the following theses.
-
Every entry into an inter-state community has the consequence that a
member of that community is bound by its decisions. Of course, a member
state – as well as its citizens – acquires an influence by participating
in the creation of the Community’s will to pursue common – and also its
own – aims, the result of which is then binding for all member states,
and therefore also assumes recognition of one’s own obligations.
Readiness to accept the obligations of international law in a more
narrow legal union of an inter-state community is characteristic of a
democratic state that wants to share in the work of inter-state
institutions, and especially in the development of the European Union,
as an equal member.
-
Provision of sovereign authorizations has the consequence that
defending them no longer always depends on the will of the member state
alone. Seeing this as a violation of the constitutional principle of
democracy would be inconsistent not only with the openness of the
constitution towards integration, which the constitutional framers
wanted and express in 1949; it would also lay a foundation to the
concept of democracy that would make every democratic state incapable of
integration because of the principle of unanimity.
-
The principle of the majority, according to the imperative of mutual
regard, arising from loyalty to the Community (however) has a limit in
the constitutional principles and elementary interests of the member
states.
-
In the area of “competence - competence” the fundamental question is
who has the power to determine, with final effect, what is and is not a
power transferred to the Community.
-
The Federal Constitutional Court reserved to itself the power to
evaluate the question of whether a particular Community act crossed the
boundaries that German law gave to the Community (in the form of the
founding treaties and amendments to them).
-
The Federal Constitutional Court reserved to itself the final word in
determining which community acts are ultra vires, i.e. beyond the scope
of Community powers; if the Federal Constitutional Court concluded that
they were, that would make them inapplicable in Germany.
-
In other words, if European institutions or bodies handled the Treaty
on Union or otherwise developed it in a manner that was no longer
protected by the Treaty in the form that is the basis for the German act
of approval, then legal acts arising from that would not be binding in
the area of German sovereignty. German state bodies would not be
allowed, for constitutional law reasons, to apply these acts in Germany.
In accordance with this, the Federal Constitutional Court reviews
whether the legal acts of European institutions and bodies stay within
the bounds of sovereign rights that were provided to them, or whether
they exceed them.
119.
As was already stated, the cited provisions of the Constitution and the
fundamental case law of the Constitutional Court are important (thought
not completely exclusive) substantive starting points for review of the
content of the Treaty of Lisbon.
120. In view of the foregoing, the Constitutional Court states (and repeats)
-
The Constitutional Court generally recognizes the functionality of the
EU institutional framework for ensuring review of the scope of the
exercise of conferred competences; however, its position may change in
the future if it appears that this framework is demonstrably
non-functional.
-
In terms of the constitutional order of the Czech Republic – and within
it especially in view of the material core of the Constitution – what
is important is not only the actual text and content of the Treaty of
Lisbon, but also its future concrete application.
-
The Constitutional Court of the Czech Republic will (may) also –
although in view of the foregoing principles – function as an ultima
ratio and may review whether any act of Union bodies exceeded the powers
that the Czech Republic transferred to the European Union under Art.
10a of the Constitution. However, the Constitutional Court assumes that
such a situation can occur only in quite exceptional cases; these could
be, in particular, abandoning the identity of values and, as already
cited, exceeding the scope of conferred comeptences.
XII.
Special Part
121.
Before evaluating the constitutionality of individual points in the
Senate’s petition, the Constitutional Court considered – in view of the
unique nature of the matter – the formulation of its verdict, whether
positive or negative.
122.
The exact wording of § 71e par. 1 and 2 of Act no. 182/1993 Coll., on
the Constitutional Court, as amended by later regulations, provides that
(1) if the Constitutional Court concludes, after proceedings, that an
international treaty is inconsistent with the constitutional order, the
court shall state this in a judgment; the judgment shall state which
provision of the constitutional order the international treaty is
inconsistent with, (2) if the Constitutional Court concludes, after
proceedings, that an international treaty is not inconsistent with the
constitutional order, the court shall decide in a judgment that
ratification of the international treaty is not inconsistent with the
constitutional order.
123.
However, this formulation of the judgment verdict is difficult to
accept in this particular matter, because the Constitutional Court
reviewed (and decided on) the constitutionality of only the eight
articles of the Treaty of Lisbon contested (with grounds provided) by
the Senate, not of the entire treaty.
124.
Therefore, the Constitutional Court chose to formulate the judgment
verdict to say that it found the articles of the Treaty of Lisbon cited
in the verdict of this judgment are not inconsistent with the
constitutional order.
XIII.
125.
In the first point of its petition the Senate raises doubts regarding
Art. 2a par. 1 (now Art. 2 par. 1) and Art. 2c (now Art. 4) of the
Treaty on the Functioning of the EU.
126. Article 2a par. 1 (now Article 2 par. 1) reads:
1.
When the Treaties confer on the Union exclusive competence in a
specific area, only the Union may legislate and adopt legally binding
acts, the Member States being able to do so themselves only if so
empowered by the Union or for the implementation of Union acts.
127. Article 2c (now Article 4) reads:
1.
The Union shall share competence with the Member States where the
Treaties confer on it a competence which does not relate to the areas
referred to in Articles 2b and 2e.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3.
In the areas of research, technological development and space, the
Union shall have competence to carry out activities, in particular to
define and implement programmes; however, the exercise of that
competence shall not result in Member States being prevented from
exercising theirs.
4.
In the areas of development cooperation and humanitarian aid, the Union
shall have competence to carry out activities and conduct a common
policy; however, the exercise of that competence shall not result in
Member States being prevented from exercising theirs.
128.
In the first point of its petition the Senate asks the Constitutional
Court to consider the question of the character and classification of
powers transferred to the European Union. It stated that the new version
the Treaty on the Functioning of the European Union (previously the
Treaty establishing the European Community) establishes a classification
of powers that is more characteristic of federal states, by introducing
a category of powers exclusive to the Union, which includes entire
comprehensive areas of legal regulation , in which, under Art. 2a par. 1
of the Treaty on the Functioning of the European Union member states
may legislate and adopt legally binding acts only if so empowered by the
Union or for the implementation of Union acts. According to the
petitioner, the related concept of shared competences (Article 2c of the
Treaty), that are to exist alongside the cited exclusive competences,
opens space for a wide sphere of Union norm creation, difficult to
identify in advance, where, in accordance with Declaration no. 17 to the
Treaty, the principle of priority of Union law is implicitly applied.
Thus, in the sphere of shared competences, the scope of transferred
powers in terms of Art. 10a of the Constitution, can be seen as not
fully determinable in advance.
129.
The president adds, regarding the classification of powers more
characteristic of federal states, which is his opinion as well, that the
literal wording of Article 10a of the Constitution indicates that the
powers of bodies of the Czech Republic can be transferred only to an
entity existing between states, not alongside or even above them. In his
arguments he then states that the Union is not such an “entity.”
130.
Regarding the definition of European Union competences and their
character, the Constitutional Court states that the boundary for the
transfer of powers of the Czech Republic to international organizations
or institutions is primarily governed by Art. 10a of the Constitution,
which speaks of the transfer of “certain” powers; we can not overlook a
certain meaning that was given to Article 10a by the Constitutional
Court judgment concerning sugar quotas (judgment file no. Pl. ÚS 50/04 –
see above). Use of the word “certain” powers indicates that not all
powers can be transferred to an international organization or
institution; however, that does not mean an automatic conclusion that
transfer of powers is compatible if at least some powers are retained by
bodies of the Czech Republic. The meaning of the word “certain” must
logically be interpreted in view of other provisions of the
constitutional order, especially Article 1 par. 1 of the Constitution,
under which the Czech Republic is a sovereign and unitary state governed
by the rule of law, established on respect for the rights and freedoms
of the human being and citizens. In judgment Pl. ÚS 50/04 the
Constitutional Court stated that the transfer of powers is conditional
at two levels – the formal and the material. The formal level limits the
transfer of powers by compatibility with preserving the foundations of
state sovereignty of the Czech Republic. In this regard the formal level
is joined with Article 1 par. 1 of the Constitution. The material level
concerns the manner of exercising the transferred rights, which may not
jeopardize the essence of a material law-based state; this limitation
arises from Article 9 par. 2 of the Constitution, under which amending
the essential requirements of a democratic state governed by the rule of
law is impermissible. As the Constitutional Court emphasized, the
material limits for transfer of powers are even beyond the reach of the
constitutional framer itself. However, this does not in any way suggest
that a transfer of powers may not include “entire comprehensive areas of
legal regulation,” nor that the organization or institution to which
powers of bodies of the Czech Republic are transferred may not exercise
these powers exclusively, as the petitioner apparently believes.
Regarding this, of course, we must emphasize – in addition to the cited
reasons – that the present matter concerns review of the
constitutionality of amended primary EU law, the referential criterion
for which is not only Art. 1 par. 1 of the Constitution and Art. 9 par. 2
of the Constitution (although they are a central viewpoint), but the
constitutional order as a whole (cf. point 78 et seq.).
131.
Comprehensively we can say that, of course, only a sovereign state is
able to undertake to observe and effectively enforce, i.e. realistically
guarantee the most important constitutional rules and principles of a
material law-based state; preserving the essential attributes of
sovereignty is a condicio sine qua non, a prerequisite for principles of
natural law origin to be protected by the state at all.
132.
As the Senate, in any case, correctly emphasizes in its petition, the
Treaty of Lisbon itself confirms that the legislative competence -
comptence, i.e. the authorization to amend fundamental regulations,
remains with the member states. This is closely tied to the doubts of
the Senate and the president concerning the character of the EU as a
federal state, or the classification of powers that, according to the
Senate and the president, such a state is to point out; we can briefly
draw from this that if the Union does not have the competence
-competence, it can not be considered either a kind of federal state or
special entity, standing in every respect and always above the
individual states. The Union can act only within the scope of powers
expressly conferred on it by member states, which it can not exceed, nor
can it establish new powers for itself. Article 5 par. 2 of the Treaty
on EU provides: “Under the principle of conferral, the Union shall act
only within the limits of the competences conferred upon it by the
Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the
Member States.”
(This
provision is basically taken from the existing Article 5 of the Treaty
establishing the EC, and the limitation of Union competences is even
more emphasized; cf. the first subparagraphs of Art. 5: “The Community
shall act only within the limits of the competences conferred upon it by
this Treaty to attain the objectives set out therein.”)
133.
In this situation the Constitutional Court – regarding the objection
that the Treaty of Lisbon newly introduces the category of exclusive
Union powers – concludes that this category (as such) is already know
today (although exclusive powers are not explicitly named in the
provision itself), in the interpretation of EU law by the Court of
Justice, and in the Treaty establishing the EC itself (cf. Art. 5 of the
Treaty establishing the EC). However, in comparison with the existing
Art. 5 of the Treaty establishing the EC, the new provisions on
competences are a step toward greater clarity and clear organization
which, from a domestic constitutional viewpoint can undoubtedly be seen
as an improvement. There are changes in the classification of individual
competences; with a number of competences the division is based on
division under the existing treaties, but some elements are different,
so in this regard they can be taken as new provisions.
134.
As regards the sphere of shared competences, the Senate’s arguments
basically ignore Art. 2 par. 6 of the Treaty on the Functioning of the
EU (2a par. 6), under which the scope and manner of exercising
competences are determined by provisions of treaties concerning the
individual areas. Thus, Art. 4 par. 2 of the Treaty on the Functioning
of the EU (2c), cited by the Senate, does not establish a kind of
unlimited competence clause in the area of shared competences, but only
declares the primary areas where shared competences appear; however,
each individual competence must be specified in each case in the
relevant part of the relevant treaty. Thus, we can say that the Treaty
on EU does not contain shared competences on the basis of Art. 4 par. 2
of the Treaty on the Functioning of the EU, but on the basis of
individual special treaty provisions. If some competence is not
expressly identified as a Union competence, whether exclusive or shared,
it remains fully within the power of the member state. This is
addressed – as already stated – by Art. 5 par. 2 of the Treaty on EU:
“Under the principle of conferral, the Union shall act only within the
limits of the competences conferred upon it by the Member States in the
Treaties to attain the objectives set out therein. Competences not
conferred upon the Union in the Treaties remain with the Member States.”
Thus, the transfer of powers under Art. 10a of the Constitution is not
unlimited, and this Article has not been violated in this regard. Thus,
we must emphasize again that the European Union may act only in those
areas in which certain powers of member states were conferred on it, on
the assumptions discussed above, based on the doctrine of
self-limitation of a sovereign (a unilateral, self-limiting act by a
sovereign state), in accordance with a particular domestic law.
135.
However, the constitutional law limits for the transfer of powers
contained in Article 10a of the Constitution also indicate the need for
clearer delimitation (and thus also definiteness and recognizability) of
the transferred powers, together with sufficient review, which the
Czech Republic, as a sovereign state, can exercise over the transfer of
powers.
136.
As regards this delimitation of transferred powers, it is necessary to
realize that Article 2c par. 2 (now Art. 4) of the Treaty on the
Functioning of the EU, cited by the Senate, by itself does not define
the powers of the Union. They are specified by individual provisions in
other parts of the Treaty on the Functioning of the EU, including
specific decision-making procedures and legal instruments that can be
used in implementing them, as the government points out in its brief.
The Constitutional Court here agrees with the government’s opinion that
the petitioner’s concern about the sphere of Union norm creation being
difficult to identify in advance is not appropriate in this situation,
and that (in any case) it is not even possible to make an exhaustive
list to enshrine individual powers in such detail that they would always
correspond to the particular legal act of the Union that implements
them. However, it is possible, and the Treaty of Lisbon clearly does so,
to specify precisely defined areas in which Union norm creation may
take place.
[In
its brief, the government cites only Part III of the Treaty on the
Functioning of the EU (Union Policies and Internal Actions), which, of
course, overlooks the competence provisions in other parts of the
treaty, e.g. Article 18, which is a component of Part II of the Treaty
on the Functioning of the EU, and under which the European Parliament
and the Council may, in a proper legislative procedure, adopt
regulations prohibiting discrimination based on nationality.]
137.
Article 5 of the Treaty on EU also governs the principles for defining
and exercising European Union competences. More precise specification is
governed by the principle of conferred competences (cf. point 124). The
exercise of powers other than the exclusive competences of the European
Union is limited by the principles of subsidiarity and proportionality.
Under the principle of subsidiarity “in areas which do not fall within
its exclusive competence, the Union shall act only if and in so far as
the objectives of the proposed action cannot be sufficiently achieved by
the Member States, either at central level or at regional and local
level, but can rather, by reason of the scale or effects of the proposed
action, be better achieved at Union level.” (Art. 5 par. 3). The
principle of proportionality requires that neither the content nor the
form of the Union’s activities exceed what is necessary to achieve the
objectives of the Treaties (Art. 5 par. 4). The content of these
principles is specified further by the Protocol on the application of
the principles of subsidiarity and proportionality, together with the
Protocol on the exercise of shared competence. Thus, these principles,
together with the specific provisions of the Treaty on EU and of the
Treaty on the Functioning of the EU, provide a sufficiently certain
normative framework for determining the scope in which the Czech
Republic transferred its powers to the European Union.
138.
The question of review of the transfer of powers from the Czech
Republic as a sovereign state must be understood especially in relation
to the provisions of treaties defining the competences of the Union,
with special attention to Article 5 of the Treaty on EU. As regards the
institutional framework for review of the exercise of powers, certainly
the basic body for review of the exercise of competence by the European
Union is the Court of Justice. It exercises this review on the basis of
Article 263 of the Treaty on the Functioning of the EU, as part of
direct review of the legality “of legislative acts, of acts of the
Council, of the Commission and of the European Central Bank, other than
recommendations and opinions, and of acts of the European Parliament and
of the European Council intended to produce legal effects vis-à-vis
third parties. It shall also review the legality of acts of bodies,
offices or agencies of the Union intended to produce legal effects
vis-à-vis third parties.” Its review function is also applied in rulings
on preliminary issues (concerning interpretation of the Treaties on the
validity and interpretation of acts of the institutions, bodies,
offices or agencies of the Union) brought by courts of member states
under Article 267 of the Treaty on the Functioning of the EU. In
addition to the Court of Justice, all bodies of the Union are required
to ensure constant respect for the principles of subsidiarity and
proportionality, as stated in Article 1 of the Protocol on the
Application of the Principles of Subsidiarity and Proportionality, for
which the Protocol sets forth specific procedures.
139.
In this regard the Constitutional Court again states that it generally
recognizes the functioning of this institutional framework for ensuring
review of the scope of exercise of conferred competences, although its
position may change in the future, if it appears that this framework is
demonstrably non-functional. Here the Constitutional Court refers to its
conclusions in part X. of this judgment (point no. 110), under which,
in exceptional cases, it can function as an ultima ratio and review
whether an act of the Union has exceeded the limits [of powers] which
the Czech Republic transferred to the EU under Art. 10a of the
Constitution.
(In
this regard, this would be an analog to the decision by the Federal
Constitutional Court in the matter “Solange II,” but applied to review
of powers, not to the level of protection of fundamental rights and
freedoms.
The
Polish Constitutional Tribunal, for example, expressly rules out the
jurisdiction of the Court of Justice to evaluate the limits of conferral
of competences on the EU, as, according to the Tribunal, that is a
question of interpretation of domestic constitutional law. Although, in
terms of the dogmatics of domestic constitutional law, we can agree with
that conclusion to a certain extent, it is questionable whether it is
necessary to formulate it as sharply as the Tribunal did.)
The
German Federal Constitutional court – as stated above (point 108) –
reserved to itself the final word on the question of whether a community
act exceeded the boundaries/limits that German law gave the Community,
and which Community acts are thus ultra vires, outside the competence of
the EU. Thus, from the perspective of German law, it is theoretically
possible that the Court of Justice itself will exceed its jurisdiction
(e.g. if its interpretation is no longer an interpretation of the
founding treaties, but, on the contrary, impermissible norm creation
[b]). If the Federal Constitutional Court concluded that these acts are
ultra vires, that would make them inapplicable (not invalid or null) in
Germany. Thus, the Maastricht decision meant a qualitative shift;
however, we can obviously agree with the opinion that the Federal
Constitutional Court’s Maastricht doctrine (kompetenz-kompetenz) is more
in the nature of a potential warning, but need not ever be used in
practice.
The
Court of Justice itself has already decided that in a particular case a
European act exceed the competence that the EU has on the basis of the
European treaties, specifically the Treaty establishing the EC. This
happened for the first time in 2000, when it annulled the Council
directive on the regulation of tobacco advertising, because in its
opinion this regulation was not within the competences that the EU has
on the basis of transfer of competences from member states (decision of 5
October 2000, Germany v. the Parliament and the Council, C-376/98,
Recueil, p. I-8419).
140.
The Constitutional Court also stresses that, moreover, the Treaty of
Lisbon expands the present framework– where the dominant body was the
Court of Justice of the EC (together with other bodies at the EU level) –
by including the parliaments of member states in the process of review
of the exercise of competences in accordance with the Protocol on the
role of National Parliaments in the European Union and the Protocol on
Application of the Principles of Subsidiarity and Proportionality. Thus,
the parliaments of member states can play an important role in
protecting the limits of competences which the member states conferred
on the Union. (Note: There is a question whether the heretofore central
role of constitutional courts will then no longer be as important as
under the previous regulation předchozí.) Review of observing the limits
of the conferral of competences is thus the joint role of all
participating bodies, both at the European level and at the domestic
level.
141.
For all the cited reasons the Constitutional Court did not find that
Art. 2 par. 1 (2a par. 1) and Art. 4 par. 2 (2c) of the Treaty on the
Functioning of the EU, contested by the petitioner in the first point of
its petitioner were inconsistent with the constitutional order of the
Czech Republic.
142.
In the second point of its petition, the Senate raises doubts
concerning Art. 308 par. 1 (now Art. 352) of the Treaty on the
Functioning of the EU (the flexibility clause).
143. Article 308 (now 352) reads, in its entirety:
1.
If action by the Union should prove necessary, within the framework of
the policies defined in the Treaties, to attain one of the objectives
set out in the Treaties, and the Treaties have not provided the
necessary powers, the Council, acting unanimously on a proposal from the
Commission and after obtaining the consent of the European Parliament,
shall adopt the appropriate measures. Where the measures in question are
adopted by the Council in accordance with a special legislative
procedure, it shall also act unanimously on a proposal from the
Commission and after obtaining the consent of the European Parliament.
2.
Using the procedure for monitoring the subsidiarity principle referred
to in Article 5(3) of the Treaty on European Union, the Commission shall
draw national Parliaments' attention to proposals based on this
Article.
3. Measures based on this
Article shall not entail harmonisation of Member States’ laws or
regulations in cases where the Treaties exclude such harmonisation.
4.
This Article cannot serve as a basis for attaining objectives
pertaining to the common foreign and security policy and any acts
adopted pursuant to this Article shall respect the limits set out in
Article 40, second paragraph, of the Treaty on European Union.
144.
The second point in the Senate’s petition states that we should also
review for consistency with Art. 10a of the Constitution the nature of
Art. 308 par. 1 of the Treaty on the Functioning of the European Union,
under which – according to the Senate– the Council, acting unanimously
on a proposal from the Commission shall adopt measures to attain one of
the objectives set out in the Treaties, when particular action is
necessary within the framework of Union policies and the Treaty has not
provided the necessary powers. In contrast to the existing version of
the founding treaties, the proposed Treaty provision is not limited to
regulation of the domestic market, but is allegedly a blanket norm. This
allegedly makes it possible to adopt measures beyond Union competences,
i.e. beyond the scope of powers transferred under Art. 10a of the
Constitution of the Czech Republic; measures may subsequently be
adopted, e.g. in the area of sensitive questions of cooperation in
criminal matters. According to the Senate, the specific competence
jurisdiction of the European Court of Justice, as a final arbiter of a
potential dispute, can raise – in view of the unclear relationship to
the constitutional courts of member states – questions concerning the
observance of the principle of legal certainty. Finally, the Senate
objects that the absence of a time limit for the validity of an adopted
measure and its (allegedly) executive nature raise doubt about the
relevance of participation by national parliaments in considering the
adoption of such a measure.
145.
Before specifically addressing this issue – because it relates closely
to it – the Constitutional Court considers it appropriate to point out
that in a wider context, the provisions on the entry into force of the
Treaty of Lisbon, on possible subsequent revisions of primary European
law, and on the possibility of a member state withdrawing from the EU
regime, are key for evaluating the actual legal nature of the EU under
the Treaty of Lisbon. This is again the question of who has the highest,
constitutional competence - competence in a particular area; if the
Union could change its competences at will, independently of the
signatory countries, then by ratifying the TL the Czech Republic would
violate Art. 1 par. 1 and Art. 10a of the Constitution. (This
consideration relates to the first point of the Senate’s petition, but
is also important for the second point – Art. 308, or 352 – of the
petition.)
146.
As regards the entry into force of the Treaty of Lisbon, the condition
that it be adopted unanimously by all the signatories is an important
feature of an organization of an international law nature, which
distinguishes the EU from a federation or another form of state.
However, it is necessary to consider not only in what form the Treaty of
Lisbon enters into force, but also in what manner treaties can be
amended in the framework of primary EU law (whether the Treaty on EU or
the Treaty on the Functioning of the EU). The system of amending primary
law, as enshrined by the Treaty of Lisbon, is proof that all the named
international treaties remain such treaties even as regards revision of
them, and therefore the European Union, even after the Treaty of Lisbon
enters into force, will be a unique organization of an international law
character. In a federative state, it is primarily up to the federal
bodies to adopt amendments of the constitution; the member states of a
multi-member federation, if they even take part in such a constitutional
amendment, need not all agree with a constitutional amendment, and yet
the amendment will enter into force. In contrast, amendment of the
Treaty on EU or of the Treaty on the Functioning of the EU will be
possible only with the consent of all states in the Union at an
intergovernmental conference, so the role of Union bodies would be only a
matter of order, not decisive; thus, Union bodies will not decide on
the proposed amendments, but only organize the revision of treaties, and
the amendments will enter into force after ratification by all member
states in accordance with their constitutional regulations (see Art. 48
par. 1 to 5 of the Treaty on EU). Thus, even after the Treaty of Lisbon
enters into force, the EU will not acquire the power to create its own
new competences, the member states will still be “masters of the
treaties.” Moreover, the Treaty of Lisbon newly introduces, in Art. 50
of the Treaty on EU, the possibility of withdrawing from the
organization. This can take place by agreement between the withdrawing
state and the Council as a representative of the member states (i.e.,
not with the Commission, as a representative of the interests of the
Union itself), and if an agreement is not reached, the Treaty itself
gives the withdrawing state a notice period. Thus, the manner of
termination membership is also typical for an international
organization, not a contemporary federative state, and this possibility,
on the contrary, strengthens the sovereignty of member states. These
arguments are further proof of the fact that the Treaty of Lisbon does
not markedly change the character of the EU and does not establish the
ability for the Union to adopt measures beyond Union competences, i.e.
beyond the scope of transfer of powers under Art. 10a par. 1 of the
Constitution.
147.
An issue mentioned by the Senate in the petition is closely tied to
this broad definition of the legal nature of the EU; this is the
flexibility clause (Art. 352 of the Treaty on the Functioning of the EU,
previously Art. 308 of the Treaty establishing the EC) and the
simplified revision procedure for revising primary Union law (the
“passerelle”) under Art. 48 par. 6 and 7 of the Treaty on EU. The
simplified revision procedure for amending primary Union law will be
discussed elsewhere (chapter XIV., points 146 et seq. of this judgment),
as the Senate includes it in its proposal as a special third point.
148.
The flexibility clause under of the Treaty of Lisbon is a modification
of the present Art. 308 of the Treaty establishing the EC (originally
Art. 235 of the Treaty on the European Economic Community). It enables
the Council to unanimously adopt appropriate measures if the Treaty on
the EC does not give the Community the necessary powers, but if those
powers are exercised to achieve the community’s objectives in the
internal market, if it is proposed by the Commission and if Parliament
is consulted; it can not be used in matters not involving achieving one
of the objectives of the common market. (Note.: An example of the use of
the competence by the Council is, e.g. Council Decision 87/327, which
adopted the Erasmus international student exchange program; cf. judgment
of the Court of Justice of 30 May 1989, Commission of the European
Communities v Council of the European Communities, 242/87, Recueil, p.
142.) In comparison with the existing situation, the Treaty of Lisbon
expands the applicability of the flexibility clause, because it can be
used for one of the objectives of any policy defined by the Treaties
(not only the internal market), except the common foreign and security
policy (Article 308, paragraph 4). In this regard, new competences are
conferred on the EU. This expansion corresponds to the strengthening of
the European Parliament: under Art. 352 par. 1 of the Treaty on the
Functioning of the EU use of this article is tied to the consent of the
Parliament (note: today only consultation is required); moreover,
however, domestic parliaments, which review observance of the principle
of subsidiarity, acquire important powers.
149.
However, we can not agree with the Senate’s claim that Article 352 of
the Treaty on the Functioning of the EU – as was already stated – opens
room for the Union to adopt measures beyond the scope of transfer of
powers under Art. 10a of the Constitution of the Czech Republic. The
ability to adopt such measures is limited to the objectives defined in
Article 3 of the Treaty on EU (previously Art. 2), which thus also
provides a sufficient guide for determining the limits of conferred
competences that Union bodies may not exceed. The third and fourth
paragraphs of Article 352 expressly narrow the field in which it can be
applied. In addition, as the government of the Czech Republic correctly
states in its brief, Declarations no. 41 and 42 on this article
(attached to the Final Act of the Intergovernmental Conference which
adopted the Treaty of Lisbon) further narrow the possibility for using
Article 352 of the Treaty on the Functioning of the EU as a means for
covert expansion of the competences of Union bodies. Although these
declarations are not binding from a legal point of view, they express
the beliefs of the parties – including the government of the Czech
Republic – concerning the appropriate interpretation of the relevant
provision, which is also confirmed by the existing case law of the Court
of Justice concerning interpretation of Article 308 of the Treaty
establishing the EC. Thus, these declarations can serve as an important
interpretational aid in interpreting the relevant provisions.
(The
first of these declarations states that the reference to the Union’s
objectives in Art. 352 par. 1 the Treaty on the Functioning of the
European Union concerns the objectives set out in Art. 3 par. 2 and 3 of
the Treaty on European Union and the objectives in Art. 3 par. 5 of
that treaty related to external action on the basis of Part Five of the
Treaty on the Functioning of the European Union. Therefore, it is ruled
out that activity based on Article 352 of the Treaty on the Functioning
of the European Union would pursue only objectives set out in Art. 3
par. 1 of the Treaty on European Union. In this regard the Conference
states that, in accordance with Art. 31 par. 1 of the Treaty on European
Union, legislative acts can not be adopted in the area of common
foreign and security policy. The second of the declarations emphasizes
that, in accordance with the settled case law of the European Court of
Justice, Article 352 the Treaty on the Functioning of the European
Union, as an integral component of the institutional system established
on the principle of conferred compentences, can not serve as the
foundation for expanding the scope of Union powers beyond the general
framework defined by provisions of the Treaties as a whole, and, in
particular, provisions that defined the role and activities of the
Union. Article 352 can not, under any circumstances, be used as a
foundation for adopting provisions whose effect would essentially be an
amendment to the Treaties, without using the procedure provided by the
Treaties for that purpose).
150.
The Constitutional Court agrees with the government’s opinion, stated
in its brief, that the flexibility clause is not a blanket norm; in
order for the Union to be able to use Art. 352 par. 1 of the Treaty on
the Functioning of the EU, the following conditions must be cumulatively
met for a proposed legislative act: the need to achieve one of the
objectives of the EU, adopting the act must be within the policies
defined by the primary law of the EU, it must be unanimously approved by
the Council, and the consent of the European Parliament must be
obtained. It is obvious that these conditions are quite strict, and
limiting, and they sufficiently close off the path to disproportionate
application (abuse) of Article 352 par. 1 of the Treaty on the
Functioning of the EU.
151.
However, in the Senate’s opinion, the specific competence jurisdiction
of the European Court of Justice – in a situation where the relationship
to the constitutional courts of member states is not clear – can raise
questions concerning the observance of the principle of legal certainty.
Here the Constitutional Court states that the effect of the Court of
Justice is, as regards the present issues, relatively clear. Under the
settled case law of the Court of Justice concerning Article 308 of the
Treaty establishing the EC it is clear from (just) the wording of the
article itself that applying it as a legal basis for an action is
justified only if no other provision of the Treaty confers on the
Community the powers necessary to take the action. In that situation
this article allows the bodies to act for the purpose of achieving one
of the objectives of the Community even despite the lack of a provision
that would confer the necessary power on them. However, in order for the
bodies of the Community (note: in the context of evaluating Article 352
of the Treaty on the Functioning of the EU, meaning the bodies of the
Union) to adopt such a legal act, its objective must be related to one
of the objects that the Treaty assigns to the Union . (cf. decision of
the Court of Justice of 26 March 1987, Commission of the European
Communities v Council of the European Communities, 45/86, Recueil, p.
1493, point 13). However, the fundamental opinion on the flexibility
clause must be seen to be the Opinion of the Court of Justice 2/94 of 28
March 1996, Recueil, p. 1759, on the Community’s ability to accede to
the European Convention for the Protection of Human Rights and
Fundamental Freedoms (the opinion also cites Art. 235, which, however,
was identical with today’s Art. 308 of the Treaty establishing the EC).
The Court of Justice first emphasized that Art. 235 can be applied only
in the absence of express or implied powers; it continued that this
article was “designed to fill the gap in cases where no specific
provisions of the Treaty confer on the Community institutions express or
implied powers to act, if such powers appear none the less to be
necessary to enable the Community to carry out its functions with a view
to attaining one of the objectives laid down by the Treaty.” The Court
expressly stated that this provision, “being an integral part of an
institutional system based on the principle of conferred powers, cannot
serve as a basis for widening the scope of Community powers beyond the
general framework created by provisions of the Treaty as a whole and, in
particular, those that define the tasks and the activities of the
Community. On any view, Article 235 cannot be used as a basis for the
adoption of provisions whose effect would, in substance, be to amend the
Treaty without following the procedure which it provides for that
purpose.”
152.
Because the provision on the flexibility clause (Article 352 par. 1),
as is obvious from the foregoing, represents a modified current Article
308 par. 1, even though its scope is expanded, we can undoubtedly take
the opinions of the Court of Justice as confirmation of the fact that
the flexibility clause can not serve as a means for amending the Treaty
on the Functioning of the EU. Thus, it is not, and will not be possible
to circumvent Art. 10a of the Constitution of the Czech Republic with
the help of this clause – and the practice of bodies of the EU and the
cited case law of the Court of Justice confirm this. In this situation
the Constitutional Court considers the institutional framework for
review of conferred competences – with regard to Article 352 of the
Treaty on the Functioning of the EU – to be adequate, in view of all the
reasons stated above; however, it emphasizes again that application of
this article can be considered quite exceptional (cf. the Court of
Justice, above).
153.
As already mentioned, Article 352 also expressly proclaims that a
decision within the flexibility clause must respect the principle of
subsidiarity, whose observance is reviewed by the domestic parliaments.
The Treaty of Lisbon itself does not in any way limit the space for
involving domestic parliaments and leaves it completely up to the
constitutional structures of the member states, how to provide it. On
the contrary, compared to Article 308 of the Treaty establishing the EC,
the second paragraphs of this article emphasizes the role that the
domestic parliaments are to play in the process of Union norm creation,
which, again, strengthens the position of the member states. Therefore,
in the opinion of the Constitutional Court, the Senate’s objections, as
regards the lack of a time limit on the validity of an adopted measure
and its allegedly executive nature, can not raise doubts about the
participation of national parliaments. However, it will be up to the
Czech legislature, if the Treaty of Lisbon enters into force, to adopt
an appropriate legal regulation in this regard, in accordance with the
constitutional order (cf. also Chapter XIV., points 155–157).
154.
The Senate’s other objections concerning adopting measures in the area
if sensitive questions of cooperation in criminal matters and on the
allegedly inadequate procedural guarantees for the protection of civil
rights and freedoms have more to do with the subsequent application
sphere, and with reference to the foregoing arguments they appear
unjustified; in any case, the petitioner did not provide more detail
about these doubts.
155.
For these reasons, the Constitutional Court did not find Art. 352 (Art.
308) of the Treaty on the Functioning of the EU to be inconsistent with
the constitutional order of the Czech Republic.
XV.
156.
In the third point of its petition the Senate stated that the concept
of powers with which Art. 10a of the Constitution of the Czech Republic
works, has not only a material dimension, overlapping with the
definition of an area of competence, but also an institutional
dimension, relating to the manner of decision making. In this regard, in
the Senate’s opinion, it is necessary to review whether Art. 48 par. 6
and 7 of the Treaty on European Union are consistent with the cited
provision of the Constitution of the Czech Republic (note: the numbering
has not changed). These articles introduce the possibility of
simplified revision procedures for passing amendments to primary Union
law through an executive act that changes the form of duly ratified
founding treaties of the EU. In this regard, the generally transitional
clause (the “passerelle”) is allegedly unambiguously formulated;
according to the petitioner, although the principle of bilateral
flexibility is enshrined in Declaration no. 18 annexed to the Treaty, it
remains an instrument of unilateral change of competences. In the
Senate’s opinion, applying this clause for the purpose of changing
unanimous decision making to decision making by a qualified majority in a
particular area, or replacing a special legislative procedure with an
ordinary one under Art. 48 par. 7 can be a change of powers under Art.
10a of the Constitution, without that change being accompanied by
ratification of an international treaty of the active consent of the
Parliament of the Czech Republic. The loss of a legal veto can be
understood as a transfer of powers to an international organization,
which, at the same time, de facto, means limiting the importance of the
parliamentary mandate given to the government to make a decision, in
adopting which, upon application of the transitional clause, the
representative of the government of an individual member state could be
outvoted.
157. Article 48 par. 6 reads:
The
Government of any Member State, the European Parliament or the
Commission may submit to the European Council proposals for revising all
or part of the provisions of Part Three of the Treaty on the
Functioning of the European Union relating to the internal policies and
action of the Union.
The
European Council may adopt a decision amending all or part of the
provisions of Part Three of the Treaty on the Functioning of the
European Union. The European Council shall act by unanimity after
consulting the European Parliament and the Commission, and the European
Central Bank in the case of institutional changes in the monetary area.
That decision shall not enter into force until it is approved by the
Member States in accordance with their respective constitutional
requirements.
The decision referred to in the second subparagraph shall not increase the competences conferred on the Union in the Treaties.
158. Article 48 par. 7 reads:
Where
the Treaty on the Functioning of the European Union or Title V of this
Treaty provides for the Council to act by unanimity in a given area or
case, the European Council may adopt a decision authorising the Council
to act by a qualified majority in that area or in that case. This
subparagraph shall not apply to decisions with military implications or
those in the area of defence.
Where
the Treaty on the Functioning of the European Union provides for
legislative acts to be adopted by the Council in accordance with a
special legislative procedure, the European Council may adopt a decision
allowing for the adoption of such acts in accordance with the ordinary
legislative procedure.
Any
initiative taken by the European Council on the basis of the first or
the second subparagraph shall be notified to the national Parliaments.
If a national Parliament makes known its opposition within six months of
the date of such notification, the decision referred to in the first or
the second subparagraph shall not be adopted. In the absence of
opposition, the European Council may adopt the decision.
For
the adoption of the decisions referred to in the first and second
subparagraphs, the European Council shall act by unanimity after
obtaining the consent of the European Parliament, which shall be given
by a majority of its component members.
159.
The articles contested by the petitioner regulate the simplified
revision procedure for amending primary Union law. We can point out that
contemporary European law already recognizes a similar procedure – with
certain not too important differences (cf. Art. 137 par. 2 and Art. 175
par. 2 of the Treaty establishing the EC).
160.
Art. 48 par. 6 of the Treaty on EU permits a simplified procedure for
adopting changes to Part Three of the Treaty on the Functioning of the
European Union, including the internal market, the free movement of
persons and services, the free movement of goods, capital and payments,
the rules of economic competition, economic and monetary policy, etc.,
which, of course, is subject to approval by the member states in
accordance with their constitutions and can not affect the conferral of
new competences on the Union. Paragraph six, third subparagraph of the
contested Article rules out changes under this regime that would affect
the competences of the Union; this expressly eliminates any doubt in
relation to Art. 10a of the Constitution of the Czech Republic. An
amendment made under Art. 48 par. 6 by the unanimous decision of the
European Council must be approved by the member states in accordance
with their constitutional regulations. However, the key factor from a
constitutional law viewpoint –as mentioned – is the fact that under the
literal wording of this article no other competences can be conferred on
the Union.
161.
Art. 48 par. 7 governs the simplified revision procedures for adopting
changes in a vote in the Council under the Treaty on the Functioning of
the EU or under Part Five of the Treaty on EU, from unanimous voting to
voting by a qualified majority, except for military and defense issues.
As regards this paragraph, conceptually we can not even think about
changes expanding Union competences, because it concerns – as is obvious
– only voting. However, a change in the method of voting under Art. 48
par. 7, requiring the consent of all heads of state at the European
Council, can be blocked by the lack of consent of any parliament of a
member state.
162.
In a general sense, paragraphs six and seven of Art. 48 of the Treaty
on EU are basically different only in the degree of autonomy that they
leave to the member states in approving a decision. While paragraph six
leaves the member states absolute discretion as regards the manner of
approving a decision, paragraph seven limits them to the opportunity to
express lack of consent by the domestic parliament. Decisions under
these articles are also reviewable by the Court of Justice as regards
their consistency with the treaty itself, which proves that they are not
amendments to the Treaties, but, on the contrary, the Treaties retain a
higher legal force over these acts (which amend a formally
de-classified norm).
163.
For completeness, we can say that, in addition to the two passerelles
set forth by Art. 48 par. 6 and 7 of the Treaty on EU, there are several
special provisions through which the European Council can unanimously
change the manner of voting from unanimous to majority voting (Art. 31
par. 3 of the Treaty on EU, Art. 312 par. 2 and Art. 333 of the Treaty
on the Functioning of the EU), or this can be done by the Council of
Ministers (Art. 81 par. 3 of the Treaty on the Functioning of the EU),
which adopts measures concerning family law with an international
element, which can be harmonized on the basis of majority voting; in
contrast with the present situation (see Art. 67 par. 2 of the Treaty
establishing the EC) there is a new ability for national parliaments to
veto such an act. What was stated in analyzing Art. 48 par. 6 and 7
basically applies to these provisions; that, is acts created on their
basis are not formally amendments of the Treaties, but the Treaties
retain a higher legal force over them, and so these acts must be
consistent with the conditions that the Treaties set out for them.
164.
For the foregoing reasons the Constitutional Court did not find Art. 48
par. 6 and 7 of the Treaty on EU to be inconsistent with the
constitutional order of the Czech Republic.
165.
However, in this regard we can not help but see that there are as yet
no related provisions in the legal order of the Czech Republic that
would allow implementation of the decision making procedures set forth
in paragraphs six and seven of Art. 48 on the domestic level. The
absence of these procedures, in and of itself, does not affect the
question of whether the Treaty of Lisbon is constitutional, but because
the Treaty of Lisbon presumes the intervention of domestic parliaments,
the government, as the sponsor of the Treaty of Lisbon (and the party
who negotiated it at the level of the EU) should reflect that in a
timely manner and adequately, by proposing relevant procedures on the
domestic level, and should ensure that the Treaty is compatible and
interconnected with the constitutional order of the Czech Republic, not
only in view of the participation of the parliament, but also in view of
the possibility of preliminary review of an amendment of the Treaties
by the Constitutional Court. It is evident that the requirement that the
transferred powers be certain relates not only to actions of the EU,
but also of bodies of the Czech Republic, if their cooperation is
necessary to adopting a decision of the EU that directly concerns the
transferred powers.
166.
In this situation it is necessary to clearly define the role that the
individual chambers of Parliament will play, and their relationship to
each other. This involves exercising the right of veto of national
parliaments to decisions of the European Council (Art. 48 par. 7); this
is a very important review power and responsibility that is one of the
fundamental postulates of the Treaty of Lisbon with regard to observing
the principle of subsidiarity. Lack of clarity in this regard is pointed
to by, for example, point 3 of resolution 7 of the Permanent Commission
for the Constitution of the Czech Republic and Parliamentary Procedure
from the 14th session, held on 27 March 2008, on its position on the
Treaty of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Community and of the constitutional order of
the Czech Republic.
167.
Second, it is necessary to ensure review of a decision adopted on the
basis of Article 48 paragraph 6, subparagraph two, by the Constitutional
Court of the Czech Republic for that decision’s consistency with the
constitutional order. Unlike a decision under paragraph 7, where only
the manner of voting is changed (and thus the content of the change can
be evaluated at the moment when the powers are transferred), a decision
under paragraph 6 also changes the substantive provisions of the
Treaties. thus, it is also necessary to permit review of that change in
terms of provisions of the constitutional order of the Czech Republic by
the Constitutional Court, so that the limits of transfer of powers
under Article 10a of the Constitution will be observed. Only thus can it
be guaranteed that by the transfer of powers which takes place under
Article 48 paragraph 6 at the moment the Treaty of Lisbon is adopted,
does not give the Czech Republic the possibility to make a decision on
the basis of that provision that would be inconsistent with the
constitutional order of the Czech state.
168.
In the next objection (included in the same point as Art. 48 par. 6 and
7 of the Treaty on EU), the Senate stated that in the case of Art. 69b
par. 1 of the Treaty on the Functioning of the EU (now Art. 83 par. 1),
when the sector Council decides on including further areas of criminal
activity in the sphere of union regulation, space for Parliament to
express lack of consent is completely lacking, although in a different
case – with the proposed wording of the general transitional clause
(Art. 48 par. 7 of the Treaty on European Union) and the partial
transitional clause in the sphere of judicial cooperation in civil
matters (Art. 65 par. 3 of the Treaty on the Functioning of the EU) –
this possibility is guaranteed. The Senate added that the limited
involvement of national parliaments in the decision making on the change
of the relatively widely defined powers of the Union is supplemented by
expanding voting by a qualified majority, not infrequently related with
the overall communitarization of the current third pillar of European
law, where, in parallel with the implicit weakening of the domestic
parliamentary mandate and cancellation of the category of treaties
approved by the Parliament of the Czech Republic, the European
Parliament assumes responsibility for the parliamentary dimension of
decision making. In view of the nature of the European Union as a
society of states (not a federal state), the Senate questions – whether
this dimension of parliamentary democracy is sufficient, and whether
Art. 15 par. 1 of the Constitution of the Czech Republic is not de facto
rendered meaningless. In this regard the president, in his brief,
criticizes voting by a qualified majority even more emphatically,
although not in relation to doubts on the requisite involvement of the
Parliament of the Czech Republic in Union decision making, but in view
of concerns about preserving the sovereignty of the Czech Republic in
general.
169.
Article 69b par. 1 (now Art. 83 par. 1) of the Treaty on the
Functioning of the EU states that the European parliament and the
Council may, by ordinary legislative procedure, set forth by directive
the minimum rules for concerning the definition of crimes and penalties
in areas of exceptionally serious crime with a cross-border dimension
because of the nature or effect of these crimes or because of a special
need to suppress them on a common basis. It concerns these areas of
crime: terrorism, trafficking in human beings and sexual exploitation of
women and children, illicit drug trafficking, illicit arms trafficking,
money laundering, corruption, counterfeiting of means of payment,
computer crime and organized crime.
170.
However, the Senate basically disputes the third subparagraph,
according to which the Council may, on the basis of developments in
crime, adopt a decision identifying other areas of crime that meet the
criteria specified in this paragraph. However, it shall decide
unanimously after obtaining the consent of the European Parliament. The
Senate then also – in addition to the stated guarantee – basically
overlooked the protection provided to the Czech Republic by Art. 83 par.
3 of the Treaty on the Functioning of the EU; it indicates that if a
member of the Council believes that a draft directive would affect
“fundamental aspects of its criminal justice system,” it may ask the
European Council to handle the matter; the ordinary legislative
procedure is then suspended, and if a consensus is later reached … the
suspension of the ordinary legislative procedure is terminated. Thus, it
is basically not possible to apply Art. 83 par. 1, third subparagraph,
to the Czech Republic’s legal order without its consent. Here the
Constitutional Court agrees with the government’s opinion that, even
within the scope of competence of Art. 83 par. 1 of the Treaty on the
Functioning of the EU, domestic parliaments can fulfill their
preliminary review role under the relevant provisions of the Protocol on
Application of the Principles of Subsidiarity and Proportionality, and
that the purpose of this provision is not to arbitrarily expand the
Union’s competences, but to increase the ability to respond effectively
to threats of danger and to exceptionally dangerous crime, which can be
considered completely legitimate.
171.
For the foregoing reasons the Constitutional Court did not find Art. 83
par. 1 (69b par. 1) of the Treaty on the Functioning of the EU to be
inconsistent with the constitutional order of the Czech Republic.
172.
As regards the Senate’s doubts concerning expanding voting by a
qualified majority (Art. 48 par. 7) in relation to Art. 15 par. 1 of the
Constitution (“The legislative power … is vested in the Parliament”),
or the question of state sovereignty, we can refer to the conclusions
already expressed above (generally, point 87 of this judgment). Here it
is appropriate to again point out the ancient international law
principle of possible self-limitation by a sovereign, who alone is
authorized to consider the degree of limitation to which it exposes
itself in the international environment while respecting the principle
pacta sunt servanda. Thus, we can agree with the government that an
unavoidable consequence of transferring powers to an international
organization or institution is that the body whose powers were
transferred loses them in that extent, although it continues to exercise
all other powers that pertain to it in accordance with the
constitutionally defined separation of powers. Thus, the constitutional
requirement of Art. 15 par. 1 of the Constitution, that the legislative
power in the Czech Republic belongs to the Parliament, is not affected
in any way, nor is the sovereignty of the Czech Republic reduced below
an acceptable level.
173.
The Treaty of Lisbon transfers powers to bodies that have their own
regularly reviewed legitimacy, arising from general elections in the
individual member states. Moreover, the Treaty of Lisbon permits several
ways of involving domestic parliaments (the possibility for a
parliament, or one of its chambers, to directly express its lack of
consent, is one of the forms of participation by domestic parliaments).
Art. 12 of the Treaty on EU names them expressly as follows:
National Parliaments contribute actively to the good functioning of the Union:
(a)
through being informed by the institutions of the Union and having
draft legislative acts of the Union forwarded to them in accordance with
the Protocol on the role of national Parliaments in the European Union;
(b)
by seeing to it that the principle of subsidiarity is respected in
accordance with the procedures provided for in the Protocol on the
application of the principles of subsidiarity and proportionality;
(c)
by taking part, within the framework of the area of freedom, security
and justice, in the evaluation mechanisms for the implementation of the
Union policies in that area, in accordance with Article 70 of the Treaty
on the Functioning of the European Union, and through being involved in
the political monitoring of Europol and the evaluation of Eurojust's
activities in accordance with Articles 88 and 85 of that Treaty;
(d) by taking part in the revision procedures of the Treaties, in accordance with Article 48 of this Treaty;
(e) by being notified of applications for accession to the Union, in accordance with Article 49 of this Treaty;
(f)
by taking part in the inter-parliamentary cooperation between national
Parliaments and with the European Parliament, in accordance with the
Protocol on the role of national Parliaments in the European Union.
174.
The Constitutional Court thus concludes that the Treaty of Lisbon
reserves an important role to the domestic parliaments (including the
Parliament of the Czech Republic), the consequence of which is to
strengthen the role of individual member states; making the entire
system more understandable and clear is also not negligible. It is only
necessary to again point to the responsible role of relevant bodies of
the Czech Republic, especially the government, in the preparation and
adoption of a legal regulation that permits the full implementation of
these powers.
175.
For the foregoing reasons the Constitutional Court did not find that
expanding voting by a qualified majority under Art. 48 par. 7 in an
unconstitutional manner affected Art. 15 par. 1 of the Constitution or
the sovereignty of the Czech Republic under Art. 1 par. 1 of the
Constitution.
XVI.
176.
In the fourth point of the petition the Senate stated that, in addition
to the already cited transitional clauses and the flexibility clause,
the procedural steps set forth by the Treaty of Lisbon affect the
constitutional order in another respect. That is allegedly the
negotiation of international treaties under the proposed Art. 188l the
Treaty on the Functioning of the European Union (now Art. 216). Here –
in the Senates’ opinion – the grounds for concluding international
treaties in the name of the EU are expanded. Treaties are binding for
the EU and its member states, and are concluded by a decision of a
qualified majority in the Council. The Czech Republic thus need not
express consent with the treaty, and yet it is bound by it; the usual
ratification process does not take place at all, and thus also the
possibility for preliminary review of whether such treaties are
consistent with the constitutional order of the Czech Republic falls
away. According to the Senate, the question remains whether this
procedure is compatible with the text of Art. 49 and Art. 63 par. 1 let.
b) of the Constitution, and if there is room to apply these treaties
based on Art. 10 of the Constitution.
177. Article 216 (188l) of the Treaty on the Functioning of the EU reads:
1.
The Union may conclude an agreement with one or more third countries or
international organisations where the Treaties so provide or where the
conclusion of an agreement is necessary in order to achieve, within the
framework of the Union's policies, one of the objectives referred to in
the Treaties, or is provided for in a legally binding Union act or is
likely to affect common rules or alter their scope.
2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.
178.
Thus, in that point the Senate questions the negotiation of
international treaties under Art. 216 of the Treaty on the Functioning
of the EU (previously Art. 188l).
179.
Initially we must emphasize that the proposed Art. 216 (188l) of the
Treaty on the Functioning of the EU is a reaction to the fact that the
Treaty of Lisbon expressly assigns the Union legal subjectivity,
including the capacity to conclude international treaties (Art. 47 of
the Treaty on EU); the Union replaces the existing Community and
European Union (Art. 1 of the Treaty on EU as amended by the Treaty of
Lisbon). It is appropriate to point out that the contested provision
must also be read in connection with Article 3 par. 2 of the Treaty on
the Functioning of the EU, which the Senate does not expressly mention.
That article reads as follows: “The Union shall also have exclusive
competence for the conclusion of an international agreement when its
conclusion is provided for in a legislative act of the Union or is
necessary to enable the Union to exercise its internal competence, or in
so far as its conclusion may affect common rules or alter their scope.”
(Note: This provisions is evidently a response to the recent Opinion of
the Court of Justice – Opinion 1/03 of 7 February 2006, Lugano
Convention, European Court Reports p. I-1145 – which significantly
expanded the power of the EC to conclude international treaties in its
exclusive competence.)
180.
In its brief the government correctly pointed out, from a historical
viewpoint, that in the first phases of the European Economic Community
there was an assumption that, in accordance with the theory of limited
competence, the Communities have the competence to conclude
international treaties only if they are expressly authorized thereto in
the founding treaties. However, in time it became apparent that the
normative text of the founding treaties does not match the actual needs
of the Community and its member states; therefore, it was necessary to
find a way to make the Community’s activities more effective in relation
to third-party states, and to achieve greater harmony between the
competences that the Community has internally and those that it has in
external relations with third-party states.
181.
At present there is no doubt that the EC has international law subject
status and have entered into hundreds of international treaties. In the
present situation, European law expressly authorizes the Community (Art.
300 of the Treaty establishing the EC), and implicitly also the EU
(Art. 24 and 38 of the present Treaty on EU) to conclude treaties with
third-party states. These “external” treaties have a dual nature,
because they are components of international law, but – from the
viewpoint of the Union – they are also components of Community law (or
Union law), which they become through the European legal regulation to
which they are annexed; as regards the law of the Community, the rule is
that such international treaties are annexed to “directives.” In the
hierarchy of sources of EU law they have a status between primary and
secondary law, that is, they will take precedence before secondary law,
but not before primary law.
182.
The Constitutional Court believes that the Senate’s main arguments
basically rest on a not fully precise understanding of the existing
international law subjectivity of the EC and the EU, the legal position
of international treaties concluded in the competence of the Union, and
the transfer of individual competences of individual states to the EU.
Because international treaties within the competence of the Union will
be concluded on the basis of Art. 216 et seq. of the Treaty on the
Functioning of the EU (as amended by of the Treaty of Lisbon), or at
present are concluded on the basis of Art. 300 of the Treaty
establishing the EC, we can not speak of Art. 49 being in conflict with
Art. 63 par. 1 let. b) of the Constitution of the Czech Republic, or
with Art. 10 of the Constitution, as the Senate believes; these
provisions of the Czech constitutional order do not affect the
negotiation of such treaties concluded by the Union, nor on their
application in the Czech constitutional order. (This is also evident
from the arguments in the following paragraph of this judgment.) This
conclusion does not apply only to mixed treaties, which involve a
combination of the competences of the Union and member states (typically
a treaty that contains both matters in the competence of the Union and
matters in the competence of the member states); these, however, are
concluded either under the regime provided by the Treaty on the
Functioning of the EU, or by the regime assumed by the member states,
and thus in the Czech Republic requiring a ratification process
consistent with the Constitution.
183.
In this regard we can add that Art. 216 can not be interpreted as a
competence norm that would extend the competences of the Union; on the
contrary, Article 216 only states that the Union, as part of its
competences, simply concludes international treaties. The competences
are not defined by Art. 216, but by specific provisions, especially of
the Treaty on the Functioning of the EU. Thus, there is no significant
change compared to the existing legal state of affairs; the only more
substantial difference is that the Union will also acquire the ability
to conclude international treaties in the area of the “second” and
“third” pillar, introduced by the Maastricht Treaty.
(However,
this too has already basically happened, because the existing Treaty on
EU implicitly assumes it in Art. 24 and 38. Thus, we can share the
opinion of the expert opinion of the House of Lords that the express
assignment of legal subjectivity to the Union and the related Art. 216
are more of a declaratory than a normative character. Cf. House of
Lords: The Treaty of Lisbon: an impact assessment. Volume I, Report. 13
March 2008.pp. 30 et seq., available at
www.parliament.the-stationery-office.com. On the other hand, we
can grant that, in view of the abovementioned Opinion of the Court of
Justice 1/03 it is already clear that the EU can exercise more powers
externally than it has internally; for details, see, e.g., Bříza, P.:
Evropský soudní dvůr: Posudek k nové Luganské úmluvě značně posiluje
vnější pravomoci Společenství [The European Court of Justice: The
Opinion on the New Lugano Convention Strengthens the Community’s
External Powers], Právní rozhledy [Legal Perspectives] no. 10/2006, pp.
385–390, p. 389. In this regard – in the event of a more rigorous review
– this would involve evaluation of criteria for the limits of
competences entrusted to the EU in the area of external relationships
and review of the exercise thereof.)
184.
Thus, the European Union can exercise conferred competences both
internally and externally; the text of Article 49 or 63 of the
Constitution, on which the Senate relies, do not create an
insurmountable obstacle to the transfer of powers in the area of
concluding international treaties. Neither international law
subjectivity nor the expanded ability to conclude international treaties
makes the Union some sort of new, special subject, endowed with
disproportionate competences to the detriment of the member states;
anyway, other, much less significant international organizations also
have legal subjectivity and the right to conclude international
treaties, whether of the cooperative or integrative type. The border for
the transfer of powers in this area is set by limits that the
Constitutional Court has determined several times above; they are
preservation of the key attributes of state of sovereignty, which is not
fundamentally affected either by the given legal state, or after the
possible entry into force of the Treaty of Lisbon, of course, on the
assumption that the relevant bodies of the EU will responsibly observe
the framework defined by the treaty and will not exceed their
competences; that, however, is a question of the subsequent application
of the Treaty of Lisbon in practice. As the government also noticed, in
this regard the Treaty of Lisbon to a great extent provides more
specific detail and codifies what was already, as a result of long-term
development, previously developed and settled in the case law of the
European Court of Justice; like every codification, this one too is
supposed to contribute to the greater legal certainty of the parties
affected by legal norms, i.e. not only the bodies of the EU, but of the
individual member states. This must be viewed positively, from the
domestic viewpoint as well, specifically in view of the principles
contained in Art. 1 par. 1 of the Constitution.
185.
For the foregoing reasons the Constitutional Court did not find Art.
216 (188l) of the Treaty on the Functioning of the EU to be inconsistent
with the constitutional order of the Czech Republic.
186.
On the other hand, however, we must emphasize that Article 216, because
of its vagueness, is on the borderline of compatibility with the
requirements for normative expression of a legal text that arise from
the principles of a democratic, law-based state. The Constitutional
Court itself – considering, elsewhere, the content of transfer of powers
under Art. 10a of the Constitution – concluded that this transfer must
be delimited, recognizable, and sufficiently definite. It is precisely
the “definiteness” of a transfer of powers to an international
organization that is quite problematic in Article 216 of the Treaty on
the Functioning of the EU; it is obvious at first glance that its
formulations (… “or” … “either” … “or” … “or … “or” …) “vague”, and
difficult to predict. Here, for comparison, we can mention, for example,
the generally known settled case law of the European Court of Human
Rights, which – as regards the term “law” – requires that it be
accessible, precise, and with predictable consequences. Even though the
Constitutional Court recognizes that the requirements for precision in
an international treaty (obviously) can not be interpreted as strictly
as a in the case of a statute, it nevertheless concludes that an
international treaty must also meet the fundamental elements of
precision, definiteness and predictablility of a legal regulation.
However, with Article 216 of the Treaty on the Functioning of the EU is
quite disputable; nevertheless it does not go so far that the
Constitutional Court could and should declare – only as regards the
above-mentioned normative expression of the given text – that Article
216 is inconsistent with the constitutional order of the Czech Republic.
XVII.
187.
In the fifth point of the petition the Senate addressed the issue of
the Charter of Fundamental Rights of the European Union. It stated that
the strengthening of the powers of European Union bodies, which
represent the supra-national level of decision making, is accompanied by
the introduction of a unified legal subjectivity of the European Union,
and its functioning thus acquires a completely new legislative
framework in the sphere of the current second and third pillars,
primarily in the areas of political cooperation. Of course, within this
framework (which, in the sphere of the existing third pillar allegedly
fundamentally breaks down the principle of unanimous decision making)
there may be conflict with domestic standards of protection of
fundamental rights more frequently than heretofore. Although the
European Union, under the proposed Art. 6 par. 2 of the Treaty on EU, is
to accede to the European Convention for the Protection of Human Rights
and Fundamental Freedoms, the same article also states in paragraph 1
that “[t]he Union recognises the rights, freedoms and principles set out
in the Charter of Fundamental Rights of the European Union of 7
December 2000, as adapted at Strasbourg, on 12 December 2007, which
shall have the same legal value as the Treaties.” In the Senate’s
opinion, this indirect reference to the Charter of Fundamental Rights of
the European Union (the “Charter”) can result in lack of clarity about
its status, just like the fact that the Charter contains not only
directly enforceable rights, but also principles or aspirations, with a
clear systematic organization. In a situation where the Union does not
have, and can not have, a specialized body, a court that handles
“constitutional complaints,” that would interpret Charter provisions in
particular cases of violation of civil rights, its role is allegedly not
clear. The Senate is not sure whether the Charter is protection for
citizens’ rights, or more an interpretative tool, in light of which the
powers of Union bodies are interpreted or the interpretation of
objectives pursued by the Union is strengthened, whether it strengthens
or, on the contrary, weakens the authority of domestic institutions that
interpret the national catalogs of human rights, always in connection
with the individual tradition of the political nations of Europe, what
procedural consequences (extending or, on the contrary, speeding up the
enforceability of a right) this step has in relation to the jurisdiction
of the European Court of Human Rights, and whether, as a result of this
fact, the standard of domestic protection of human rights enshrined in
the Charter of Fundamental Rights and Freedoms can be strengthened or
leveled. In this regard the president stated in his brief that in his
opinion the EU Charter of Human Rights makes sense only if the Union
feels itself to be a state sui generis, or a nascent state of a federal
type, which is then itself bound by international law to observe and
protect human rights.
188.
Thus, the Senate basically questions the very existence and character
to the Charter of Fundamental Rights of the Union, as well as the issues
closely related to this topic.
189. Article 6 of the Treaty on European Union provides:
1.
The Union recognises the rights, freedoms and principles set out in the
Charter of Fundamental Rights of the European Union of 7 December 2000,
as adapted at Strasbourg, on 12 December 2007, which shall have the
same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The
rights, freedoms and principles in the Charter shall be interpreted in
accordance with the general provisions in Title VII of the Charter
governing its interpretation and application and with due regard to the
explanations referred to in the Charter, that set out the sources of
those provisions.
2.
The Union shall accede to the European Convention for the Protection of
Human Rights and Fundamental Freedoms. Such accession shall not affect
the Union's competences as defined in the Treaties.
3.
Fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms and as they result
from the constitutional traditions common to the Member States, shall
constitute general principles of the Union's law.
190.
By way of introduction, it is appropriate to state that the purpose of
enshrining protection of human rights at the European level was the
effort to achieve better protection of individuals in relation to the
activities, which are supposed to be unified, more clearly organized and
not markedly different under the individual national constitution. We
must emphasize that the Charter in progress was already, on the basis of
its assignment, conceived not as a completely new document, but more as
a text that to a large extent codified and specified in more detail the
already existing legal situation. Thus, the reference to the presently
non-binding Charter of Fundamental Rights of the European Union of 7
December 2000 /as amended on 12 December 2007/ (Art. 6 par. 1 of the
Treaty on EU as amended by Art. 1 point 8 of the Treaty of Lisbon) is
thus not so revolutionary as it might seem at first glance. This catalog
of human rights is part of primary European law (Art. 6 par. 1); the
Charter is not directly part of the text of the Founding Treaties, but
is raised to the level of primary law by reference, as stated above.
There is nothing unusual about this, and certainly nothing inconsistent
with the constitutional order of the Czech Republic; it is a possible
legislative method, also used in domestic law, and so doubts in this
regard are not appropriate (cf. Article 112 par. 1 of the Constitution
of the Czech Republic).
191.
As regards the (future) status of the Charter itself, it is evident
from the foregoing text that the formulation in Article 6 par. 1 of the
Treaty on EU, that the Charter has the same legal force as the Treaties,
must undoubtedly be interpreted to mean that the Charters is an
integral part of them. If the Treaty of Lisbon enters into force, the
Charter would, in the first instance, bind Union bodies, and only then,
indirectly, in the application of Union law, whether direct or indirect,
also bind Czech bodies. The provisions of the Charter, observing the
principle of subsidiarity, are intended for the bodies, institutions and
other subjects of the Union, and for member states, of course only if
they apply Union law (Art. 51 par. 1 of the Charter). This principle
also corresponds to current case law, and the application of unwritten
human rights principles by the Court of Justice; states are bound by
this European standard of human rights when Community law is applied
(cf., e.g., Judgment of the Court of Justice of 13 April 2000, Karlsson
and others, C-292/97, Recueil, p. I-2737, par. 37, under which the
requirements flowing from the protection of fundamental rights in the
Community legal order are also binding on Member States when they
implement Community rules). It follows logically from this principle
that the Charter does not expand the area of competences of Union law
beyond the framework of Union competences (Art. 51 par. 2 of the
Charter, Art. 6 par. 1 of the Treaty on EU). This is also reflected by
recent case law, e.g. in the “Red Star case” (Order of the Court of
Justice of 6 October 2005, Vajnai, C-328/04, European Court Reports, p.
I-8577), which involved the preliminary question, whether a ban on
Communist symbols, enforced in Hungary with criminal penalties, is
inconsistent with European unwritten human rights principles, this
question was considered obviously inadmissible, not because today’s EU
law does not recognize freedom of speech, but because Community law does
not function in that area, and it is thus fully up to Hungary to
regulate the ban of symbols that are unacceptable to it. Analogously.
cf. the Judgment of 29 May 1997, Kremzow, C-299/95, Recueil, p. I-2629,
where a defendant accused of murder attempted to rely on the Community
level of protection of human rights, and argued that a sentence would
affect his “Community” freedom of movement. The Court of Justice also
rejected this argument on the preliminary issue from the Austrian court,
because European law was not applicable to the matter in any way. Even
if the Charter enters into force, this changes nothing on the
inadmissibility of such preliminary questions, because Art. 11 of the
Charter is not applicable to such cases.
192.
In this regard we can only point out that at the present time, given
the lack of a written (binding) catalog of human rights in the framework
of the EU, it is the Court of Justice that applies (protects), at the
Union level, human rights created or recognized by the Court in the form
of unwritten common constitutional principles of member states, that
is, in view of the domestic constitutional systems, and the system for
protecting human rights conceived by the European Court of Human Rights.
Note: The Court of Justice itself refers to the Charter – cf. e.g., the
judgment of 27 June 2006, Parliament v Council, C-540/03, European
Court Reports p. I-5769, point 38; decision of 3 May 2007, Advocaten
voor de Wereld, C-303/05, European Court Reports p. I-3633, point 46,
and others.
193.
The Charter itself contains a catalog of fundamental rights and
freedoms (concentrated in Title I to Title VI) and general provisions
governing the interpretation and application of them (Title VII). The
standard of protection of human rights and fundamental freedoms in the
European Union must be evaluated, along with the EU Charter, also in
view of other related provisions of European law. Article 6 par. 2 of
the Treaty on EU provides that the Union shall accede to the European
Convention for the Protection of Human Rights and Fundamental Freedoms.
Under the third paragraph of that article, fundamental rights, as
guaranteed by the European Convention for the Protection of Human Rights
and Fundamental Freedoms and as they result from the constitutional
traditions common to the Member States, shall constitute general
principles of the Union’s law. This second paragraph is important
primarily in view of the formal side of the standard of protection.
Materially, the fundamental rights guaranteed by the Treaty are
contained in the system of Union protection on the one hand by their
being declared to be general principles of Union law, and on the other
by their role in the case law of the Court of Justice. As a result of
acceding to the Treaty, the Union bodies – including the Court of
Justice – will become subject to review by the European Court of Human
Rights. In terms of the standard of protection based on the
constitutional order of the Czech Republic we can say that including the
European Court of Human Rights in the institutional framework for
protection of human rights and fundamental freedoms in the European
Union is a step which only strengthens the mutual conformity of these
systems.
194.
The third paragraph of Article Six concerns the material element of the
standard of protection of human rights and fundamental freedoms. In
this regard as well, we can say, within the framework of abstract
review, that this provision reflects the requirements of the domestic
standard, because they both come from the same framework of values. This
is also strengthened by the Charter of Fundamental Rights of the EU
itself, whose Article 52 par. 3 and 4 provides: “In so far as this
Charter contains rights which correspond to rights guaranteed by the
Convention for the Protection of Human Rights and Fundamental Freedoms,
the meaning and scope of those rights shall be the same as those laid
down by the said Convention. This provision shall not prevent Union law
providing more extensive protection. In so far as this Charter
recognises fundamental rights as they result from the constitutional
traditions common to the Member States, those rights shall be
interpreted in harmony with those traditions.” We must also take into
consideration Article 53 of the Charter of Fundamental Rights of the EU,
under which, “Nothing in this Charter shall be interpreted as
restricting or adversely affecting human rights and fundamental freedoms
as recognised, in their respective fields of application, by Union law
and international law and by international agreements to which the Union
or all the Member States are party, including the European Convention
for the Protection of Human Rights and Fundamental Freedoms, and by the
Member States' constitutions.” We can only comment that this principle
is key as regards limiting the reach of EU law, and thus also limiting
the transfer of state sovereignty to the EU.
195.
Thus, if the Charter – as already stated – recognizes fundamental
rights that result from the constitutional traditions common to the
member states, those rights must be interpreted in harmony with those
traditions (Art. 52 par. 4). Here there is a certain change compared to
the present, which reflects the fact that a written (binding) catalog of
human rights is being newly introduced. Whereas today the
constitutional traditions common to the member states are a material
source of unwritten human rights, after the Treaty of Lisbon enters into
force, that source will be the text of the Charter alone, and the oral
traditions will have the character of a source used to assist
interpretation, in an obligatory comparative method of interpretation.
196.
As regards possible conflict between the standard of protection of
human rights and fundamental freedoms ensured by the constitutional
order of the Czech Republic and the standard ensured in the European
Union, it is appropriate to point out that protection of fundamental
rights and freedoms falls in the area of the “material core” of the
Constitution, which is beyond the reach of the constitutional framers
(cf. Pl. ÚS 50/04). If, from this point of view, the standard of
protection ensured in the European Union were unsuitable, the bodies of
the Czech Republic would have to again take over the transferred powers,
in order to ensure that it was observed (cf. the abovementioned
judgment in the matter of sugar quotas, file no. Pl. ÚS 50/04).
197.
However, at the abstract level it is difficult to evaluate whether
individual rights and freedoms ensured in these systems are in harmony
with each other, if these rights are not formulated absolutely clearly
and in detail. Only ten is it possible to identify a possible lack of
harmony between them and possibilities for resolving it. However, the EU
Charter obviously contains no such provisions, nor does the Senate, as
the petitioner, express any doubts in that regard. On the contrary, the
content of the catalog of human rights expressed in the EU Charter is
fully comparable with the content protected in the Czech Republic on the
basis of the Czech Charter of Fundamental Rights and Freedoms, as well
as the Convention for the Protection of Human Rights and Fundamental
Freedoms. In this regard we can say that the EU Charter is in harmony
not only with the material core of the Constitution, but also with all
provisions of the constitutional order. In any case, the majority of
rights and freedoms ensured by the present systems of protection,
according to the dominant theories (cf., e.g., Alexy, R.: A Theory of
Constitutional Rights, Oxford University Press 2002; a comparison of
German, European and American methodology is found in Kumm, M.:
Constitutional Rights as Principles: On the Structure and Domain of
Constitutional Justice, 2 International Journal of Constitutional Law
574, 2004) and their practical application by the most important
constitutional courts are open to comparison based on analysis of the
proportionality of interference in one guaranteed right to the benefit
of another right. A key factor here is not only the formulation of the
affected right, but much more so the institutional system that ensures
protection of it. In this regard we can also point to the Constitutional
Court’s judgment in the matter of a decree on medicines (judgment file
no. Pl. ÚS 36/05, promulgated as no. 57/2007 Coll.), where the
Constitutional Court expressly stated that the manner in which the
European Court of Justice interprets the principles corresponding to the
fundamental rights and freedoms can not remain without a response in
the interpretation of domestic law and its consistency with
constitutionally guaranteed rights. The European Court of Human Rights
had a similar opinion recently in the Bosphorus matter (decision of the
European Court of Human Rights in the matter Bosphorus Hava Yollari
Turizm ve Ticaret Anonim Şirketi v. Ireland, no. 45036/98 of 30 June
2005). For these reasons, in the present situation, we can consider the
European institutional guarantee of the standard of protection of human
rights and fundamental freedoms to be compatible with the standard
ensured on the basis of the constitutional order of the Czech Republic.
In any case, we can also agree with the government’s opinion that, even
after the Treaty of Lisbon enters into force, the relationship between
the European Court of Justice and the constitutional courts of member
states will not be placed in a hierarchy in any way; it should continue
to be a dialog of equal partners, who will respect and supplement each
other’s activities, not compete with each other.
198.
In this regard the Constitutional Court states that the leading
principle in the area of human rights and fundamental freedoms is the
most effective possible protection of the individual, together with the
clear enforceability of the rights directly on the basis of catalogs of
human rights, usually without the intermediation of other legal texts of
lower legal force. Contemporary democratic Europe, in the period after
World War II and after the fall of totalitarian regimes in the 1990s,
reached an exception level of protection of human rights; The EU Charter
in no way adds problems to this system, but on the contrary – in the
area of its competence – suitably expands it, and the individual, for
whose benefit the entire structure was built, can only profit from it.
Potential future conflicts and disputes about interpretation, which can
arise in any area of human activity, are not fundamental from this point
of view; the important thing is the overall purpose, based on timeless
values that are of the same or similar nature, whether guaranteed on the
domestic, European, or international level.
199.
It is also relevant to note here that Article 51 of the Charter
expressly provides that it does not extend the field of application of
Union law beyond the powers of the Union or establish any new power or
task for the Union, modify powers and tasks as defined in the Treaties.
Its provisions are intended (while observing the principle of
subsidiarity) for the bodies, institutions and other subjects of the
Union, as well as for the member states, exclusively if they are
applying Union law. Therefore, they respect the rights, observe the
principles and support their application in accordance with their
powers, while preserving the limits of the powers that are conferred on
the Union in the treaties. In this regard, the Constitutional Court
notes that the EU Charter thus does not directly apply to the areas
where the bodies of the Czech Republic have not transferred their powers
to the European Union, and the standard of protection based on the
constitutional order of the Czech Republic is fully autonomous and
independent of the Union standard in this regard.
200.
As regards the Senate’s other objections, we can only note that it is
not the role of the Constitutional Court to evaluate the Charter in
terms of criteria other than those that were defined above; thus, it is
not possible to comment on the suitability of enshrining certain rights
and freedoms (which the Senate describes as “principles or aspirations,”
without specifying in more detail the relevant provisions of the EU
Charter) or to address their allegedly not fully systematic
organization. We can respond similarly to the brief from the president,
according to which the EU Charter makes sense only if the Union feels
itself to be a nascent state of a federal type, which is then bound by
international law to observe and protect human rights. The
Constitutional Court has already addressed the issue of the federal
character of the European Union in other points of this judgment; we can
only add that there is nothing unusual about the fact that other
international organizations also exist, with their own catalogs of
fundamental rights and freedoms. The most prominent of them is the one
to which the president himself refers; that is the Council of Europe,
with its European Convention for the Protection of Human Rights and
Fundamental Freedoms, which, however, unquestionably does not make it a
federal-type state sui generis.
201.
The Senate also raises the question whether the Charter is protection
for citizens’ rights, or more an interpretative tool, in light of which
the powers of Union bodies are interpreted or the interpretation of
objectives pursued by the Union is strengthened. Here the Constitutional
Court agrees with the opinion in the government’s brief, that it is
obvious that these two functions are not mutually exclusive; the EU
Charter is supposed to fulfill both functions in parallel, protect the
individual and set limits for the exercise of the powers of EU bodies,
or the bodies of a member state when applying EU law.
202.
Finally, the Senate considers whether the existence of the Charter
means a strengthening of “leveling” of the standard of domestic
protection of human rights under the Charter of Fundamental Rights and
Freedoms. However, such a concern is not appropriate. Constitutional
courts traditionally take a pragmatic approach in the question of
conflict between various sources of fundamental human rights and
freedoms, based on the meaning and purpose of a particular legal
institution, which, in the area of human rights, is, in particular,
protection of an individual against unconstitutional interference by the
state. Therefore, in a case of conflict of sources regulating an
individual’s rights and freedoms, they proceed according to the source
that gives the individual a higher standard of protection.
203.
In this regard, the Constitutional Court considers it appropriate to
point out that most modern constitutions in European democratic states
are based more or less on natural law theory, and therefore recognize
that the state is not entitled to unilaterally withdraw rights that have
already been recognized (cf. also point 105). Here the Constitutional
Court only adds that the state is also not the provider (donor) of
rights based on natural law that it might “recognize.” Every individual
has these rights regardless of an act of the state, which can only
subscribe to observing and guaranteeing these rights; however, it
acquires thereby the most important quality of a democratic, law-based,
constitutional state, which bows down before values that are inherent,
inalienable, non-prescriptible, and not subject to repeal.
204.
For all the foregoing reasons the Constitutional Court did not find
incorporation of the Charter of Fundamental Rights of the EU into the
area of European primary law to in any way cast doubt upon or
problematize the standard of domestic protection of human rights and to
thereby be inconsistent with the constitutional order of the Czech
Republic.
XVIII.
205.
In the sixth point of the petition the Senate stated that, last but not
least, there are the definition of the status of the Charter and the
possibilities for interpretation necessary for grasping the newly
formulated Art. 1a of the Treaty on EU, which expands the values on
which the Union is founded, and at the same time inclusion of standards
of the European social model (“in a society in which pluralism,
non-discrimination, tolerance, justice, solidarity and equality between
women and men prevail”). According to the Senate, the question of
interpretation of this provision is the more significant because serious
violation of the cited values can lead to suspending the rights arising
to a particular member state from the Treaty. A proposal submitted by a
mere 1/3 of member states, the European Parliament, or the European
Commission against a member state cold allegedly create political
pressure leading to changes in the domestic legal order. Therefore the
Senate submits for evaluation whether the formulation of this provision
is consistent with the fundamental characteristic of the Czech Republic,
contained in Art. 1 par. 1 and with Art. 2 par. 1 of the Constitution
(the principle of the sovereignty of the people).
206. Article 1a (now Article 2) of the Treaty on EU reads:
The
Union is founded on the values of respect for human dignity, freedom,
democracy, equality, the rule of law and respect for human rights,
including the rights of persons belonging to minorities. These values
are common to the Member States in a society in which pluralism,
non-discrimination, tolerance, justice, solidarity and equality between
women and men prevail.
207. Article 7, to whose content the Senate refers, although it does not refer to it expressly, reads:
1.
On a reasoned proposal by one third of the Member States, by the
European Parliament or by the European Commission, the Council, acting
by a majority of four fifths of its members after obtaining the consent
of the European Parliament, may determine that there is a clear risk of a
serious breach by a Member State of the values referred to in Article
2. Before making such a determination, the Council shall hear the Member
State in question and may address recommendations to it, acting in
accordance with the same procedure.
The Council shall regularly verify that the grounds on which such a determination was made continue to apply.
2.
The European Council, acting by unanimity on a proposal by one third of
the Member States or by the Commission and after obtaining the consent
of the European Parliament, may determine the existence of a serious and
persistent breach by a Member State of the values referred to in
Article 2, after inviting the Member State in question to submit its
observations.
3.
Where a determination under paragraph 2 has been made, the Council,
acting by a qualified majority, may decide to suspend certain of the
rights deriving from the application of the Treaties to the Member State
in question, including the voting rights of the representative of the
government of that Member State in the Council. In doing so, the Council
shall take into account the possible consequences of such a suspension
on the rights and obligations of natural and legal persons.
The obligations of the Member State in question under this Treaty shall in any case continue to be binding on that State.
4.
The Council, acting by a qualified majority, may decide subsequently to
vary or revoke measures taken under paragraph 3 in response to changes
in the situation which led to their being imposed.
5.
The voting arrangements applying to the European Parliament, the
European Council and the Council for the purposes of this Article are
laid down in Article 354 of the Treaty on the Functioning of the
European Union.
208.
The Constitutional Court states that these values are fundamentally in
harmony on which the material core of the Czech Republic’s
constitutional order is built; these are basically the most important
rules and principles, largely of a natural law original, whose
protection is the most central role of a state which has committed
itself to being a democratic and law-based state. In the preambles to
the Charter of Fundamental Rights and Freedoms and to the Constitution
the constitutional framers expressed an unreserved commitment to these
values, on which our constitutionalism rests; among other things, they
recognized the inviolability of the natural rights of a human being,
relating to generally shared values of humanity and a resolve to protect
and develop the Czech Republic in the spirit of the inviolable values
of human dignity and freedom, together with the will to join the states
that honor these values, expressly as a member of the family of European
and world democracies. In terms of the actual text of the Constitution
and of the Charter of Fundamental Rights and Freedoms, key provisions
are Art. 1 par. 1 of the Constitution and Art. 1 of the Charter of
Fundamental Rights and Freedoms, which indicate that the Czech Republic
is a sovereign, democratic state governed by the rule of law, founded on
respect for inherent, inalienable, non-prescriptible, and
non-repealable rights of human beings who are free and equal in dignity
and rights. The rights and freedoms of minorities, generally or from a
national or ethnic point of view, are covered in Art. 6 of the
Constitution (which provides the obligation to take them into
consideration), as well as in Chapter Three of the Charter of
Fundamental Rights and Freedoms. The prohibition of discrimination is
guaranteed in Art. 3 of the Charter of Fundamental Rights and Freedoms,
the principle of a pluralistic democracy in Art. 2 par. 1, the principle
of solidarity primarily in the passage on economic and social rights in
the Charter of Fundamental Rights and Freedoms; under Art. 5 of the
Constitution the political system itself is founded on the free
competition of political parties that renounce force as a means of
promoting their interests and respect fundamental democratic principles.
For completeness we can add that virtually the same provision as the
newly-formulated Art. 2 of the Treaty on EU exists in the current Art. 7
of the Treaty on EU, which refers to the principles contained in Art. 6
par. 1, under which the Union is founded on the values of freedom,
democracy, respect for human rights, the fundamental rights, and a
law-based state, principles that are common to the member states. This
is only further evidence of the fact that these values have had a
constitutive character for the EU for a long time.
209.
Thus, the Constitutional Court believes it is completely evident that
in this regard the Treaty of Lisbon is consistent with the untouchable
principles protected by the Czech constitutional order and that European
law is based on fundamental human and democratic values, common to and
shared by all EU states. In this regard it is appropriate to point out
that, beginning 1 May 2004, i.e. after the Treaty on Access of the Czech
Republic to the EU, Art. 1 par. 2 of the Constitution also acquired new
meaning in relation to observing the obligations that arise for the
Czech Republic from its membership in the EU. Thus, if the Senate points
to the opportunity to use the regime of the Treaty of Lisbon if the
Czech Republic seriously violates the values defined in Article 2 of the
Treaty on EU, we can only state that such violation would
simultaneously mean violation of the values on which the materially
understood constitutionality of the Czech Republic rests; the
Constitutional Court itself, as well as domestic general courts, within
their jurisdiction, would, in the first place, have to provide the
maximum possible protection to that. We must also see that the term “the
people” as a source of all state power (Art. 2 par. 1 of the
Constitution) can not replace or be replaced by the sovereignty of the
Czech Republic as a state, of which Article 1 par. 1 of the Constitution
speaks, on which the petitioner especially relies. In a modern,
democratic, law-based state, state sovereignty is not an aim in and of
itself, in isolation, but is a means to fulfilling the abovementioned
fundamental values, on which the construction of a constitutional,
law-based sate stands. Therefore, we can agree with the government of
the Czech Republic that the opportunity to suspend the rights that arise
to a member state from the Treaties can not mean a violation of the
fundamental characteristic of the Czech Republic as a sovereign, unitary
and democratic state governed by the rule of law under Art. 1 par. 1 of
the Constitution, or the principle of the sovereignty of the people
enshrined in Art. 2 par. 1 of the Constitution, because this is a
penalty only vis-à-vis a member state that violates the values on which
the European Union is founded; these values, as stated above, are also
among the fundamental principles protected by the Constitution of the
Czech Republic. If the Czech Republic observes its own constitutional
order, suspension of the rights arising to it from membership in the EU
does not come into consideration. Therefore, we can conclude that the
existence of these values at the EU level, as well as measures to
protect them, are, on the contrary, evidence that reinforces the
arguments that the two systems, domestic and Union, are mutually
compatible and support each other in the most important area, concerning
the very essence of law and justice.
210.
For the foregoing reasons the Constitutional Court did not find Art. 2
and Art. 7 of the Treaty on EU to be inconsistent with the
constitutional order of the Czech Republic.
XIX.
211.
With the foregoing interpretation, the Constitutional Court responded
to the most essential objections and doubts that the Senate of the
Parliament of the Czech Republic, as an authorized petitioner, stated
against specifically named articles of the Treaty of Lisbon in view of
the Czech constitutional order. However, the Constitutional Court also
reflected the arguments of the president contained in his brief, cited
in detail above, even though he is not a petitioner in the proceeding.
These arguments are of two kinds. Some of them agree or overlap with the
Senate’s petition, and therefore the Constitutional Court responded to
them within the analysis of the individual points of the Senate’s
petition. Others of the president’s arguments are either supplemental to
or deviations from the Senate’s petition; as regards these, the
Constitutional Court mentioned them and discussed them briefly. All this
is, in any case, given by the fact that both the Senate and the
president relatively precisely identified those provisions of the Treaty
of Lisbon that could in eventum actually be disputed or problematic in
terms of the Czech constitutional order.
212.
The president’s brief takes a stronger position – beyond the framework
of the Senate’s petition – insofar as it asks that the Constitutional
Court evaluate the very manner of approving the Treaty of Lisbon; the
president inclines to the opinion that a referendum should be held, as
with the accession treaty. Although the president is not the petitioner
in this proceeding – as was already stated – in the Constitutional
Court’s opinion it would not be appropriate to ignore this request.
However, the president’s request goes beyond the limits of possible
review of an international treaty as foreseen by Article 87 par. 2 of
the Constitution. The Constitutional Court could review the manner of
approving the Treaty of Lisbon only if that were expressly provided by a
provision of the Constitution, which the constitutional framers would
have to add, similarly as they did in the case of the review of the
referendum on the Czech Republic’s accession to the European Union by
adding Article 87 par. 1 let. l), m). Otherwise, such a referendum could
be held ad hoc – which was a question of an entirely political nature –
which, however, the Czech Republic did not do in the case of ratifying
the Treaty of Lisbon. Therefore, we can not consider that, if the Treaty
of Lisbon changed (indirectly amended) the Treaty on Accession of the
Czech Republic to the European Union, constitutional Act no. 515/2002
Coll., on a Referendum on the Accession of the Czech Republic to the
European Union should also implicitly apply to this (Lisbon) treaty. In
this regard a referendum was not obligatory, and the possible review of
the process itself of approving the Treaty of Lisbon is not within the
Constitutional Court’s competence.
213.
During the Constitutional Court’s hearing on 25 November 2008 the
president orally added to his brief (points 57-64). The Constitutional
Court states that – in terms of content – it has basically responded to
the president’s arguments in the foregoing parts of this judgment.
214.
For completeness, the Constitutional Court states that it was not
necessary to respond in more detail to the brief from the government of
the Czech Republic, because the government largely argued in favor of
the Treaty of Lisbon being consistent with the constitutional order,
which was also the Constitutional Court’s conclusion; however, as is
obvious from the foregoing, in some places in the judgment the
Constitutional Court nevertheless – or perhaps precisely because of that
– considered it appropriate to point out an opinion where it either
completely agreed with the government, or which the government expressed
but in slightly different words.
XX.
215.
Thus, the Constitutional Court summarizes that the review it conducted
in this matter concentrated on those provisions of the Treaty of Lisbon,
where the petitioner expressly contested their consistency with the
Constitution, and presented arguments contained in its petition, to
which the Constitutional Court responded as stated above. The
Constitutional Court included in its review all provisions of the Treaty
of Lisbon, whose consistency with the constitutional order the
petitioner contested in a reasoned manner – and which the Constitutional
Court considers to be normatively new – although we can admit that in
some aspects they might only replicate already existing norms of
European law, in view of the Treaty on Accession of the Czech Republic
to the European Union, already ratified and fully applicable in the
Czech Republic. A related issue then was determining the appropriate
point of reference for review of whether the Treaty of Lisbon is
consistent with the Constitution. In this case the Constitutional Court
used as the point of reference the constitutional order of the Czech
Republic as a whole, not only its so-called material core, for reasons
that it also explained in detail above; it gave priority to a
comprehensive review, although in the framework of the constitutional
order the material core of the Constitution – i.e. the essential
requirements of a democratic, law-based state, amendment of which is
impermissible – still played a key role.
216.
The Constitutional Court interpreted the principles of the
constitutional order, including the material core of the Constitution,
in the context of the Constitution as a whole. It thus clearly
subscribed to the idea of European responsibility and appurtenances,
which the framers of the Czech constitution expressed. (The government
of the Czech Republic also did this.) It reached the conclusion that the
Treaty of Lisbon changes nothing on the fundamental conception of
existing European integration, and that even if the Treaty of Lisbon
enters into force, the Union will remain a unique organization of an
international law nature. In terms of our constitutional law, the
Constitution (and the Czech constitutional order generally) remains the
fundamental law of the state; as regards the Czech legal order and
European law, they are relatively independent and autonomous systems.
The Constitutional Court remains the supreme protector of Czech
constitutionality, including against possible excesses by Union bodies
or European law, which also clearly answers the contested issue of the
sovereignty of the Czech Republic; if the Constitutional Court is the
supreme interpreter of the constitutional regulations of the Czech
Republic, which have the highest legal force on Czech territory, it is
obvious that Art. 1 par. 1 of the Constitution can not be violated. if
European bodies interpreted or developed EU law in a manner that would
jeopardize the foundations of materially understood constitutionality
and the essential requirements of a democratic, law-based state that
are, under the Constitution of the Czech Republic, seen as inviolable
(Art. 9 par. 2 of the Constitution), such legal acts could not be
binding in the Czech Republic. In accordance with this, the Czech
Constitutional Court also intends to review, as ultima ratio, whether
the legal acts of European bodies remain within the bounds of the powers
that were provided to them. In this regard the Constitutional Court
basically agreed with certain conclusions of the German Federal
Constitutional Court, stated in its Maastricht decision (see above),
under which the majority principle, per the imperative of mutual regard,
arising from loyalty to the Community, has its limits in the
constitutional principles and elementary interests of the member states;
the exercise of sovereign power by an association of states, the
European Union, is based on authorization from the states, which remain
sovereign, and which, through their governments, regularly act in the
inter-state area, and thus guide the integration process.
217.
However, the most important finding for the Constitutional Court’s
review was that the Union continues to be founded on the values of
respect for human dignity, freedom, democracy, a materially understood
law-based state, and the observance of human rights, and that it
therefore emphasizes that which historically, spiritually and
conceptually joins the nations of Europe in finding justice in
individual cases and to the benefit of the whole. In this regard the
aims and the integration role of the EU are formulated clearly, and the
Constitutional Court, as a guarantor to the people of the Czech Republic
of the constitutionality of a democratic, law-based state, entrusted
with protection of inherent, inalienable, non-prescriptible and
non-repealable fundamental rights and freedoms of individuals equal in
dignity and in rights, found nothing in this regard that would make it
necessary for it to interfere.
XXI.
218.
For all the foregoing reasons, the Constitutional Court concluded that
the Treaty of Lisbon amending the Treaty on European Union and the
Treaty establishing the European Community, specifically
•
articles 2 par. 1 (previously 2a par. 1), 4 par. 2 (previously 2c), 352
par. 1 (previously 308 par. 1), 83 (previously 69b par. 1) and 216
(previously 188 l), contained in the Treaty on the Functioning of he
European Union,
• articles 2 (previously 1a), 7 and 48 par. 6 and 7 contained in the Treaty on European Union
• and the Charter of Fundamental Rights of the European Union
are not inconsistent with the constitutional order.
Instruction: Decisions of the Constitutional Court can not be appealed.
Brno, 26 November 2008