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CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE REPUBLIC
On
3 November 2009, the plenum of the Constitutional Court, consisting of
the Chairman of the Court, Pavel Rychetský and judges Stanislav Balík,
František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer,
Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jiří Mucha, Jan Musil,
Jiří Nykodým, Miloslav Výborný, Eliška Wagnerová and Michaela Židlická,
ruled, pursuant to Article 87(2) of the Constitution of the Czech
Republic, on a petition from a group of senators of the Senate of the
Parliament of the Czech Republic, jointly represented by Senator Jiří
Oberfalzer, legally represented by Jaroslav Kuba, attorney, for review
of the Treaty of Lisbon amending the Treaty on European Union and the
Treaty establishing the European Community for conformity with the
constitutional order, with the participation of the Chamber of Deputies
and the Senate of the Parliament of the Czech Republic, the government
of the Czech Republic, and the president of the Czech Republic,
represented by Aleš Pejchal, attorney, as follows:
I. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community
- as a whole,
-
Article 7, Article 8, Article 9, Article 10(1), Article 13(1),
Article 14(2), Article 17(1) and (3), Article 19(1), Article 20, Article
21(2)(h), Article 42(2), Article 47 and Article 50(2) to (4) of the
Treaty on European Union,
- Article 3, Article 78(3), Article 79(1) and Article 83 of the Treaty on the Functioning of the European Union
and ratification thereof are not in conflict with the constitutional order of the Czech Republic.
II.
The petition that the Constitutional Court review the Treaty on
European Union (called the “Treaty of Maastricht” by the petitioners”)
as a whole and the Treaty establishing the European Community (called
the “Treaty of Rome” by the petitioners) as a whole for conformity with
the constitutional order is denied.
III.
The petition that the Constitutional Court review Article 2, Article 4
and Article 216 of the Treaty on the Functioning of the European Union
for conformity with the constitutional order is denied.
IV.
The petition that the Constitutional Court find that “the Decision of
the Heads of State or Government meeting within the European Council on
the concerns of the Irish people on the Treaty of Lisbon, which on 18
and 19 June 2009 added certain provisions to the Treaty of Lisbon, is an
international agreement pursuant to Article 10a of the Constitution and
as such requires the approval of both Chambers of Parliament obtained
by a constitutional majority, without which it is not applicable in
relation to the Czech Republic” is denied.
V.
The petition that the Constitutional Court join, to this petition to
open proceedings to review the Treaty of Lisbon amending the Treaty on
European Union and the Treaty establishing the European Community for
conformity with the constitutional order, the petition from a group of
senators seeking the annulment of certain provisions of the rules of
procedure of both chambers of Parliament, file no. Pl. ÚS 26/09, is
denied.
REASONING
I.
Recapitulation of the Petition
A.
Petition of 28 September 2009
1.
On 29 September 2009 the Constitutional Court received a petition
from a group of senators jointly represented by Senator Jiří Oberfalzer
(the “petitioners”) to review the Treaty of Lisbon amending the Treaty
on European Union and the Treaty establishing the European Community for
conformity with the constitutional order pursuant to Article 87(2) of
the Constitution of the Czech Republic, as amended (the “Constitution”).
2.
The statement of claim of the petition is divided into four points,
which correspond to the following sections of the Statement of grounds
of the petition.
3.
In point I of the statement of claim of the petition, the
petitioners contest the conformity of “the Treaty of Lisbon as a whole”,
“the Treaty of Maastricht as a whole”, and “the Treaty of Rome as a
whole” with Article 1(1) of the Constitution and Article 2(1) of the
Charter; the petitioners in fact mean the Treaty of Lisbon amending the
Treaty on European Union and the Treaty establishing the European
Community (the “Treaty of Lisbon”), or the Treaty on European Union (the
“TEU”), sometimes referred to as the “Treaty of Maastricht”, as amended
by the Treaty of Lisbon, or the Treaty on the Functioning of the
European Union (the “TFEU”), i.e. the Treaty establishing the European
Community, which was amended and renamed by the Treaty of Lisbon and is
sometimes referred to as the “Treaty of Rome”.
4.
This point of the statement of claim in the petition is supported by
extensive arguments contained in points 11 to 100. First, in points 11
to 59 of the petition, the petitioners present the starting points for
their arguments, contesting the conformity of the Treaty of Lisbon with
the constitutional order of the Czech Republic. They present their own
definition and description of the essential requirements of a “state
governed by the rule of law” (points 14 to 26 of the petition), a
“democratic state governed by the rule of law” (points 27 and 28 of the
petition), a “democratic state” (points 29 to 38 of the petition), and
finally, a “sovereign democratic state governed by the rule of law”
(points 39 to 59 of the petition).
5.
The petitioners then, in points 60 to 96, set forth the arguments why,
in their opinion, the Treaty of Lisbon contravenes the characteristics
set forth above, and summarize them in points 97 to 100 of the petition.
6.
First, in the petitioners’ opinion, the Treaty of Lisbon as a whole is
inconsistent with Article 1(1) of the Constitution, or with the
characteristics of the Czech Republic as a state governed by the rule of
law. The reason is supposed to be that it does not meet the
requirements that a legal regulation must be sufficiently comprehensible
and lucid (especially in view of the lack of an “authentic consolidated
version” of the TEU and the TFEU, and in view of the scope of changes
that the Treaty of Lisbon introduces – see points 61 to 70 of the
petition), and potentially also the principle of non-retroactivity (in
view of “the capacity of the EU authorities responsible for the
publication of the Official Journal of the EU to make further additional
changes to the Treaty of Lisbon during the process of its approval in
order to correct errors ‘which may come to light in the Treaty of Lisbon
or in the prior Treaties’”, which the petitioners point out in point 71
of the petition). In the petitioners’ opinion, these principles
generally are among the fundamental elements of a state governed by the
rule of law (point 97 of the petition summarizes this argument and
refers to other points of the petition, which, in the petitioners’
opinion, support it).
7.
The petitioners add that all voting that overlaps with the powers
of the Parliament on a domestic level must be subject to a “special
mandate”, i.e. the prior consent of Parliament to the vote of the Czech
Republic’s representative in the EU Council. The petitioners believe
that a special mandate should be subject to review by the Constitutional
Court to a similar extent as domestic decision making. According to the
petitioners, “until the time of adoption of the special mandate in the
abovementioned area, ratification of the Treaty of Lisbon would be
inadmissible, because its implementation would conflict with the
principle of separation of powers which is one of the essential
prerequisites of a democratic state governed by the rule of law” (point
82 of the petition; point 100 of the petition summarizes this argument
and refers to other points of the petition, which, in the petitioners’
opinion, support it).
8.
Second, the petitioners believe that the TEU as a whole conflicts with
Article 1(1) of the Constitution (the characteristics of the Czech
Republic as a democratic state), or with Article 2(1) of the Charter of
Fundamental Rights and Freedoms (the “Charter”). The petitioners point
to Article 3 of the TFEU, which defines the objectives of the European
Union, and claim that “the objectives thus defined are contrary to the
principle of political neutrality, because they restrict in advance the
possible decisions of the majority, i.e. the government of the people”
(point 87 of the petition). At the same time, according to the
petitioners, of the TEU as a whole does not meet the requirement of
political neutrality, which is one of the fundamental features of a
democratic state (point 98 of the petition summarizes this argument and
refers to other points of the petition, which, in the petitioners’
opinion, support it).
9.
Third, the petitioners believe, that both the TEU as a whole, and the
TFEU as a whole conflict with Article 1(1) of the Constitution (the
characteristics of the Czech Republic as a sovereign state). According
to the petitioners, the reason is that these treaties allow the
possibility, as a particular goal of European integration, of the
appearance of a common European defence, whereas a sovereign state must
always retain the power to have its own defence if it is to remain
sovereign. Another reason presented by the petitioners is that these
treaties have as an ultimate objective a European integration that does
not exclude the appearance of a common European federal state (point 99
of the petition summarizes this argument and refers to other points of
the petition, which, in the petitioners’ opinion, support it).
10.
In point II of the statement of claim of the petition, the
petitioners contest the conformity of selected provisions of the TEU
with selected provisions of the Constitution, or of the Charter, set
forth in the statement of claim.
11.
First, the petitioners focus on Article 7 of the TEU, which inter alia
regulates the ability to suspend certain rights deriving from the
application of the Treaties to a member state in the event of a serious
and persistent breach of the values referred to in Article 2 of the TEU.
The petitioners contest the conformity of that provision as a whole,
and particularly of the words “clear risk”, “serious breach”, and
“certain rights”, and the phrase “shall take into account the possible
consequences of such a suspension on the rights and obligations of
natural and legal persons” with Article 1(1) of the Constitution,
particularly with the principles of appropriate generality and adequate
comprehensibility of legislation, which the petitioners consider to be
among the essential components of a state governed by the rule of law.
According to the petitioners, Article 7 of the TEU also contravenes
Article 2(3) of the Constitution. They state that, “If rights of Member
States are suspended, with probable consequences for private persons as
well, then Czech state authority will not in fact serve its citizens,
because it will be temporarily deprived of certain rights without which
the citizens cannot be served” (point 105 of the petition). The
petitioners discuss their arguments in more detail in points 102 to 106
of the petition.
12.
Second, the petitioners focus on Article 8 of the TEU. It states
in paragraph 1 that “The Union shall develop a special relationship with
neighbouring countries, aiming to establish an area of prosperity and
good neighbourliness, founded on the values of the Union and
characterised by close and peaceful relations based on cooperation”.
Similarly as with the previous provision of the TEU, the petitioners
contest its conformity as a whole, and in particular that of the terms
“special relationship” and “close relationships” with Article 1(1) of
the Constitution, specifically with the principles of appropriate
generality and adequate comprehensibility of legislation, which the
petitioners consider to be among the essential components of a state
governed by the rule of law. The petitioners discuss their arguments in
more detail in points 107 to 109 of the petition.
13.
Third, the petitioners focus on Article 10(1) of the TEU, which
states that “The functioning of the Union shall be founded on
representative democracy”. In the petitioner’s opinion, “the European
Union, if it is to remain an international organization, cannot be based
on representative democracy. It must be based, now and in the future,
on the sovereign equality of its Member States, and representative
democracy must remain merely its essential and at the same time
privileged adjunct”. (point 111 of the petition). The petitioners state
that “if representative democracy were the basis of the EU, that would
mean that the EU was a state itself and this would contravene the
principle that the Czech Republic may transfer to international
organizations or institutions only certain powers of its authorities,
but absolutely not its sovereignty itself”. (point 113 of the petition).
Thus, in the petitioners’ opinion, Article 10(1) of the TEU contravenes
Article 1(1) of the Constitution and Article 10a of the Constitution.
The petitioners discuss their arguments in more detail in points 110 to
113 of the petition.
14.
Fourth, the petitioners focus on Article 17(1) and(3) of the TEU,
concerning the competences of the Commission. According to the
petitioners, the first paragraph “conflicts, through its unclear
formulations, with the requirements of appropriate generality and of
adequate comprehensibility of legislation, and as such conflicts with
the principle of legal certainty, which is a condition of the existence
of a state governed by the rule of law”. Therefore, in the petitioners’
opinion, it contravenes Article 1(1) of the Constitution. The third
paragraph of that article provides that “the members of the Commission
shall be chosen on the ground of their general competence and European
commitment from persons whose independence is beyond doubt”. According
to the petitioners, “This provision effectively bars anyone who is of a
dissenting opinion with regard to European integration from becoming a
member of the Commission”. (point 118 of the petition). Therefore, in
points 120 and 121 the petitioners state that this provision is “not
only vague, but also ideologically coloured – and discriminatory – in
the extreme”. Therefore, according to the petitioners, it “conflicts not
only with the principle that a legal provision should be appropriately
universal in nature and sufficiently comprehensible, but also with the
principle of political neutrality” (point 120 of the petition). For
these reasons, Article 17(3) of the TEU is claimed to conflict with
Article 1(1) of the Constitution as well as Article 2(1) of the Charter,
which provides that the State may not be bound by an exclusive
ideology. The petitioners also believe that this provision contravenes
Article 1(1) of the Charter, pursuant to which all people are equal in
rights, and Article 21(4) of the Charter, pursuant to which citizens
shall have access, on an equal basis, to any elective and other public
office. According to the petitioners, the stipulation of a requirement
for sufficient European commitment gives rise to unconstitutional
inequality. The petitioners discuss their arguments in more detail in
points 114 to 121 of the petition.
15.
Fifth, the petitioners focus on Article 20 of the TEU, which
provides for enhanced cooperation among EU Members States. According to
the petitioners, making enhanced cooperation conditional on approval by
EU institutions has the effect of impeding the exercise of certain
powers both at European level and at Member States’ level, and as such,
in their opinion, it conflicts with the principle of government of the
people enshrined in Article 1(1) of the Constitution. Further, in the
petitioners’ opinion, “the restriction of Member State cooperation in
areas in which the Union has not yet exercised its powers also conflicts
with the principle of the sovereignty of the Czech Republic” (point 127
of the petition), and thus with Article 10a of the Constitution. The
petitioners discuss their arguments in more detail in points 122 to 128
of the petition.
16.
Sixth, the petitioners focus on Article 21(2)(h) of the TEU. That
article provides that “The Union shall define and pursue common policies
and actions, and shall work for a high degree of cooperation in all
fields of international relations, in order to […] promote an
international system based on stronger multilateral cooperation and good
global governance”. According to the petitioners, this provision
“contravenes the principle that legal provisions should be sufficiently
comprehensible and consequently contravenes the principle of legal
certainty, on which the existence of the rule of law depends [and] …
also contravenes the principle of the political neutrality of the
Constitution” (point 130 of the petition). Therefore, the petitioners
believe that this provision contravenes Article 1(1) of the Constitution
and Article 2(1) of the Charter, which provides that the state may not
be bound by an exclusive ideology. The petitioners discuss their
arguments in more detail in points 129 and 130 of the petition.
17.
Seventh, the petitioners focus on Article 42(2) of the TEU. That
article provides that “The common security and defence policy shall
include the progressive framing of a common Union defence policy. This
will lead to a common defence, when the European Council, acting
unanimously, so decides. It shall in that case recommend to the Member
States the adoption of such a decision in accordance with their
respective constitutional requirements”. In the petitioners’ opinion,
the Czech Republic “by no means … may aim at a common European defence –
to do so would be to violate its own Constitution as of now” (point 135
of the petition). According to the petitioners, “even merely providing
for the possibility of establishing a European federation with the Czech
Republic as one of its constituent parts contravenes the principle that
the Czech Republic is a sovereign state. The same applies to the
obligation to aim at a common European defence, since without its own
defence the Czech Republic would cease to be a sovereign state”. (point
135 of the petition). Therefore, this article is said to contravene
Article 1(1) and Article 10a of the Constitution. The petitioners
discuss their arguments in more detail in points 131 to 136 of the
petition.
18.
Finally, eighth, the petitioners focus on Article 50(2) to (4)
of the TEU. These provisions govern the possibility of a Member State
withdrawing from the EU. According to the petitioners, this article
“contravenes the principle of ... sovereignty” enshrined in Article 1(1)
of the Constitution, and also contravenes “the principle of
retroactivity and legitimate expectations and consequently the
fundamental principle of the rule of law that all rules must be known in
advance” (point 143 of the petition). According to the petitioners, the
indeterminacy of the future arrangements for withdrawal from the EU
also contravenes Article 10a of the Constitution, because “The transfer
of powers must be defined, and the manner in which the powers
transferred are to be withdrawn and returned to the national level must
also be defined. Nor may the withdrawal of powers be made subject, de
facto, to the requirement of approval by the EU” (point 144 of the
petition). The petitioners discuss their arguments in more detail in
points 137 to 145 of the petition.
19.
In point III of the statement of claim of the petition the
petitioners contest the conformity [with the constitutional order] of
certain provisions of the “Treaty of Rome” (i.e. of the TFEU),
specifically Article 78(3) and Article 79(1). In the statement of claim
of the petition the petitioners do not state which provisions of the
constitutional order these articles of the TFEU are alleged to
contravene, but this is recognizable from the following text of the
petition, specifically from points 147 to 150.
20.
Article 78(3) of the TFEU provides: “In the event of one or more
Member States being confronted by an emergency situation characterised
by a sudden inflow of nationals of third countries, the Council, on a
proposal from the Commission, may adopt provisional measures for the
benefit of the Member State(s) concerned. It shall act after consulting
the European Parliament”. Article 79(1) of the TFEU states that “The
Union shall develop a common immigration policy aimed at ensuring, at
all stages, the efficient management of migration flows, fair treatment
of third-country nationals residing legally in Member States, and the
prevention of, and enhanced measures to combat, illegal immigration and
trafficking in human beings”. According to the petitioners, these
provisions mean that “the Czech Republic alone will not always decide on
the composition and number of the refugees on its territory. The
European Union is thus acquiring the power to participate in decisions
which may have a comparatively significant impact on the composition of
the population of the Czech Republic and on its cultural and social
character” (point 148 of the petition). According to the petitioners,
this contravenes the principle in Article 1(1) and Article 10a of the
Constitution that “powers relating to decisions in matters of
exceptional cultural or social impact are not transferred and must
always remain entirely within the competence of the institutions of the
Czech Republic. Their transfer to an international organization or
institution would contravene the Czech Republic’s character as a
sovereign State” (point 148 of the petition). In addition, the
petitioners state that these articles of the TFEU only vaguely define
conditions “on which the Council of the EU may begin to act and what
exactly it may do” (point 149 of the petition). Therefore, in the
petitioners’ opinion, Article 78(3 of the TFEU “also contravenes the
principle that a legal provision should be appropriately general in
nature and sufficiently comprehensible, and therefore conflicts with the
principle of legal certainty as an indispensable precondition for the
existence of the rule of law” (point 149 of the petition). The
petitioners discuss their arguments in more detail in points 147 to 150
of the petition.
21.
In point III of the statement of claim of the petition the
petitioners “reserve the right to supplement the petition with an
application for other selected articles of the Treaty of Rome to be
reviewed”; in point 146 of the petition they state that, “Owing to time
constraints, only two provisions are cited for the time being; the
petitioners are prepared, however, to complete this section”. According
to the petitioners, the reason is that they “do not wish to prevent the
Constitutional Court from considering this submission as of now”.
22.
In point IV of the statement of claim of the petition the
petitioners first “ask the Court to find that the Decision of the Heads
of State or Government meeting within the European Council on the
concerns of the Irish people on the Treaty of Lisbon, which on 18 and 19
June 2009 added certain provisions to the Treaty of Lisbon, is an
international agreement pursuant to Article 10a of the Constitution and
as such requires the approval of both Chambers of Parliament obtained by
a constitutional majority, without which it is not applicable in
relation to the Czech Republic”. The petitioners discuss the statement
of claim, thus formulated, in more detail in points 151 to 165 of the
petition.
23.
Finally, the petitioners refer to their previous petition seeking
the annulment of certain provisions of the rules of procedure of both
chambers of Parliament (file no. Pl. ÚS 26/09), quote from that
statement of claim, and with reference to § 63 of Act no. 182/1993
Coll., on the Constitutional Court, as amended, in conjunction with §
112 of Act no. 99/1963 Coll., the Civil Procedure Code, as amended by
later regulations, “the petitioners call upon the Constitutional Court
to hear both their petitions in joined proceedings”.
B.
Supplement to the Petition, dated 15 October 2009
24.
On 15 October 2009 the Constitutional Court received a document
entitled “Supplement to the petition of the group of senators for the
Treaty of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Community, or selected provisions thereof, to
be reviewed for conformity with the constitutional order” (the
“supplement”), submitted by Senator Jiří Oberfalzer as the
representative of the group of senators. The supplement petitions “the
Constitutional Court to also review the following articles of the Treaty
on the Functioning of the European Union, as amended by the Treaty of
Lisbon [...]: Articles 2, 3 and 4; Article 83; and Article 216 for
conformity with Article 1(1) and with Article 10a of the Constitution”.
25.
The arguments section of the supplement, which relates to the
abovementioned contested articles of the TFEU, first reviews the
starting points for review of the Treaty of Lisbon, as they are
presented in the original petition (“Excursion: The essential
requirements of a sovereign state based on the rule of law”, points 3 to
6 of the supplement).
26.
The supplement then states in point 7, that “the petitioners
consider shared competences to be very widely and too generally defined –
as a result, they can be expanded further by expansive analysis”.
According to the petitioners “the scope of transferred, or potentially
transferred competences cannot be precisely determined”, and therefore,
in their opinion, it is in conflict with “the principle of appropriate
generality of legislation […] and with the principle that the Czech
Republic may, pursuant to Article 10a of its Constitution, transfer only
part of the competences of its authorities, but not all of them (and
not even potentially)”. The supplement concludes in this regard that the
definition of shared competences in Article 4 of the TFEU is in
conflict with Article 1(1) and with Article 10a of the Constitution.
27.
Point 8 of the supplement states that Article 2(4) of the TFEU
“moreover states that foreign and security policy is to lead to defining
a common defence policy. That too, in and of itself, is [according to
the opinion stated in the supplement] in conflict” with Article 1(1) and
Article 10a of the Constitution – according to the petitioners, “the
same arguments that apply to Article 42 of the TEU (as amended by the
Treaty of Lisbon) apply here”. The supplement refers to points 131 to
136 of the petition.
28.
Point 9 of the supplement contests the conformity of Article 3 of the
TFEU with Article 1(1) and Article 10a of the Constitution. It states:
“The
exclusive competence of the Union is also problematic. The petitioners
do not contest the transfer of competences listed [in Article 3 of the
TFEU] to the EU. They see a problem in the fact that the EU has these
competences, or acquires them, but is not necessarily required to
exercise them, or it may not agree on suitable legislation; at the same
time, the Member States lose these competences, i.e. they may not
exercise them, precisely in the situation where the Union is unable to
agree what rules are to apply in a particular area. Therefore, a
situation can arise where no rules at all apply in areas of the Union’s
exclusive competence. That is in sharp conflict with the very essence of
a state governed by the rule of law, which is the existence of rules,
i.e. giving individuals and various groups of them at least relative
certainty regarding the consequences of their conduct, and thus making
decision making and mutual coexistence easier for them”.
29.
According to the opinion in point 10 of the supplement, “the
exclusive competence of the EU generally contravenes Article 1(1) and
Article 10a of the Constitution. Pursuant to these articles, the only
possible transfer of competence is one where the result is shared
competence, i.e. a situation where there is no danger that a certain
area would remain without substantive legislation. Transfer of
competences pursuant to Article 3 and 4 of the TFEU is not delimited,
distinguishable, or sufficiently definite”.
30.
Points 11 to 14 contest the conformity of Article 83 of the TFEU with
Article 1(1) and Article 10a of the Constitution. According to the
opinion expressed in the supplement, “deciding what is a crime and what
punishments are to be imposed for crimes is among the competences
belonging to state authorities that cannot be transferred pursuant to
Article 10a of the Constitution“ (point 11 of the supplement; it refers
to point 54 of the petition, or point 6 of the supplement); “it is
evident from the text [of the contested article] that the European union
is to acquire its own criminal law competence”, which “in and of
itself” contravenes the cited articles of the Constitution (point 13 of
the supplement). Finally, the supplement states that “the contours of
this competence are not clear, the Council, together with the European
Parliament can further expand the area of its criminal jurisdiction.
Therefore, transfer of competences pursuant to [Article 83 of the TFEU]
is also not delimited, distinguishable, and sufficiently definite (point
14 of the supplement).
31.
Points 15 to 20 of the supplement contest the conformity of Article
216 of the TFEU with Article 1(1) and Article 10a of the Constitution.
The supplement states that “despite the fact that this article was
already contested by the Senate petition, the petitioners believe that
there are additional circumstances to which the Senate did not expressly
refer in 2008, and therefore the Constitutional Court did not address
them, even though it touched on them itself” (point 16). These points
recapitulate the arguments stated by the Senate and the relevant part of
judgment file no. Pl. ÚS 19/08 dated 26 November 2008 (446/2008 Coll.) –
point 182; points 183 and 186 of the judgment are expressly cited.
32. In conclusion, point 21 of the supplement states:
“The
petitioners cannot rid themselves of the impression that the
Constitutional Court, in reviewing the conformity of the Treaty of
Lisbon with the constitutional order, was always heretofore, in the case
of any doubts, more on the side of the Treaty of Lisbon than on the
side of the constitutional order. The Constitutional Court has a
considerable degree of discretion in interpretation, and unfortunately
the Constitutional Court’s efforts to proceed intentionally so that the
Treaty of Lisbon could be declared not to contravene the constitutional
order cannot be denied. That, as well as certain public statements by
Constitutional Court judges, gives the impression that the matter has
been decided in advance”.
33.
The supplement quotes from the testimony of the president of the
republic in the proceedings in the matter Pl. ÚS 19/08 and “calls on”
the Constitutional Court to “either explain why the principle that
decision making in the case of international treaties is, in the event
of any doubts, always to give priority to the constitutional order over
an international treaty does not apply, because it was guided by it when
reviewing the petition and this supplement” (point 23 of the
supplement).
34.
At the very end, the supplement summarizes “the petition for review of
the constitutionality of the Treaty of Lisbon, as it arises from this
supplement”.
35.
At the hearing on 27 October 2009 the petitioners submitted a further
supplement to the petition, which is recapitulated in points 78 to 90 of
this judgment.
II.
The Proceeding and Recapitulation of the Briefs of the Parties
36.
Pursuant to § 71c of the Act on the Constitutional Court, the
parties to proceedings on the consistency of international treaties with
constitutional acts are, in addition to the petitioners, the
Parliament, the president of the republic, and the government.
Therefore, the Constitutional Court, pursuant to § 42(4) of the Act on
the Constitutional Court, sent the petition to open proceedings to the
Chamber of Deputies and the Senate of the Parliament of the Czech
Republic, the president of the republic, and the government of the Czech
Republic, stating that they could submit briefs regarding the petition
by the deadline specified.
A.
Brief from the Chamber of Deputies
37.
On 8 October 2009 the Constitutional Court received a brief from
the Chamber of Deputies of the Parliament of the Czech Republic, signed
by its chairman, Miloslav Vlček. The brief summarizes the process of
approval of the Treaty of Lisbon by the Chamber of Deputies. However,
the chairman of the Chamber of Deputies also adds his “personal opinion
concerning the relationship of the previous proceeding before the
Constitutional Court [in which the Constitutional Court ruled in
judgment file no. Pl. ÚS 19/08 dated 26 November 2008 (446/2008 Coll.)]
to the petition submitted by the group of senators”. He believes that in
that judgment the Constitutional Court “implicitly concluded that
ratification of the Treaty will not affect the Czech Republic as a
sovereign state governed by the rule of law pursuant to the Constitution
and the Charter of Fundamental Rights and Freedoms. A contrary
conclusion would [according to the chairman of the Chamber of Deputies]
necessarily lead to lack of clarity concerning the conclusions contained
in the verdict and in the reasoning of Constitutional Court judgment
Pl. ÚS 19/08”. In the conclusion of the brief the chairman of the
Chamber of Deputies states that the proposal concerning decisions by
heads of state or prime ministers of governments sitting in the European
Council in relation to the concerns of the Irish people regarding the
Treaty of Lisbon cannot be considered, in form or content, an
international treaty, and therefore one must consider the proposal “for
the Constitutional Court to pronounce an evidently interpretive verdict
to be groundless”.
B.
Brief from the Senate
38.
On 14 October 2009 the Constitutional Court received a brief from the
Senate of the Parliament of the Czech Republic, signed by its chairman,
Přemysl Sobotka. Parts I. and II. first summarize the content of the
petition, and part III. continues with information from the process of
approving ratification of the Treaty of Lisbon by the Senate. The brief
states that “after a year and a quarter of discussing the Treaty of
Lisbon in the upper chamber of Parliament, on 6 May 2009 the Senate
approved its ratification”. Part IV. of the brief then addresses the
question of conformity of the Treaty of Lisbon with the constitutional
order. As the brief says, during the course of Senate debate on the
Treaty, considerable attention was paid to this, both before the Senate
petition for review of the treaty was submitted (proceedings Pl. ÚS
10/08), and afterwards, when the senators “focused in particular on
analysis of this decision, both from a formal and substantive point of
view”. The brief then lucidly presents the individual objections against
the conformity of the Treaty of Lisbon with the constitutional order,
which the petitioners now raise, the subject matter of debate in the
Senate with their active participation (the brief presents questions of
the degree of transfer of competences and preservation of sovereignty,
the democratic deficit in the European Union, the question of “allowing
the creation of a kind of European federation with the Czech Republic as
a member”, definition of the objectives of the European Union, the
question of a Member State’s withdrawal from the European Union, and
finally objections against the “extreme lack of lucidity and
incomprehensibility” of the Treaty of Lisbon). Part IV. concludes that
the Senate “considered the Treaty of Lisbon in detail and thoroughly,
not only three times at its meetings, but also in all bodies that
discussed the document, and although various opinion were heard stating
both positive and negative positions regarding this international
treaty, the majority opinion was expressed on 6 May 2009 in a resolution
whereby the Senate consented to ratification of the Treaty”. At the
very end of the brief the chairman of the Senate states that he is
“sending it with the knowledge that it is fully up to the Constitutional
Court, pursuant to Article 87(2) of the Constitution and part two of
Act no. 182/1993 Coll., on the Constitutional Court, to rule on the
petition from the group of senators”.
C.
Brief from the Government
39.
On 15 October 2009 the Constitutional Court received a brief from the
government of the Czech Republic (adopted that day by government
resolution no. 1295). It addresses the individual points of the petition
from the group of senators in detail.
40.
In the introduction to its brief, the government considers it
“necessary to emphasize that the Constitutional Court has already
reviewed the conformity of the Treaty of Lisbon with the constitutional
order [in judgment Pl. ÚS 19/08,] wherein it found that the specific
articles of the Treaty of Lisbon contested [by the Senate] and the
Charter of Fundamental Rights of the European Union do not contravene
the constitutional order”. According to the government, “although the
verdict of the Lisbon judgment includes only certain articles of the
Treaty of Lisbon, the government believes that the Constitutional Court
did not review those articles in isolation, but in conjunction with
other parts of the Treaty of Lisbon and in the context of its overall
conception. [...] In the government’s opinion, this fact must be duly
considered, in particular when reviewing part I. of the petition“ (point
2 of the government’s brief). The government states the “the
permissibility of another petition for review of the Treaty of Lisbon
should be an exception” (point 3 of the government’s brief). The
government also believes that “this question will have to be clarified
further in relation to the petition from the group of senators, because
some parts of the petition clearly contest articles of the Treaty of
Lisbon that have already been reviewed, or arguments are presented that
the Constitutional Court already rejected in its Lisbon judgment” (point
3 of the government’s brief).
41.
Regarding the petitioner’s reservation of the right to expand its
submission by a petition for review of additional articles of the TFEU
(see point 21 of this judgment) the government states:
“The
Constitutional Court should review, above all, whether such a
reservation, which de facto has the character of a blanket petition to
open proceedings, does not contravene the significance and purpose of a
proceeding on the review of an international treaty’s conformity with
the constitutional order of the CR. If the Constitutional Court does not
reach this conclusion, the government believes that such a procedure
could be reviewed in light of § 118b of the Civil Procedure Code, which,
in view of the lack of an express regulation in § 71d of the Act on the
Constitutional Court, could be subsidiarily used on the basis of § 63
of that Act [here the government refers to resolution file no. I. ÚS
288/2000 dated 23 January 2001 (U 4/21 SbNU 471)]. The government
believes that the Constitutional Court should weigh whether, on the
basis of appropriate application of the cited § 118b of the Civil
Procedure Code, the petitioner’s opportunity to expand the original
petition is not limited by the principle of procedural efficiency, and
if so, at what moment in time that limitation applies” (point 5 of the
government’s brief).
42.
Regarding the petition to join the proceeding in this matter with
the proceedings file no. Pl. ÚS 26/09, the government refers to the
reasoning in resolution file no. Pl. ÚS 26/09 dated 6 October 2009,
available at nalus.usoud.cz, denying the petition in this matter.
43.
Regarding point I. of the statement of claim of the petition, the
government first states that, in its opinion, it is incorrectly
formulated, as it contests “the constitutional conformity not only of
the Treaty of Lisbon as a whole, but also [of the TEU] and [of the TFEU]
as a whole. The Treaty of Lisbon [in the government’s opinion]
undoubtedly represents a fundamental amendment of the existing founding
treaties, and yet some articles of the wording in effect of both
Treaties remain unaffected by the amendment, and therefore should not be
subject to review by the Constitutional Court in proceedings on the
conformity of the Treaty of Lisbon with the constitutional order. The
government believes that already effective norms of primary law cannot
be reviewed within the scope of that review” (point 4 of the
government’s brief; cf. also point 8). The government also states that
this part of the petition “lacks arguments of relevance to
constitutional law, and some points tend to give the impression that the
petitioners are merely trying to persuade the Constitutional Court of
their own legal-political opinions” (point 8 of the government’s brief).
If that were really so, then, in the government’s opinion, the
Constitutional Court would not have competence to review these parts of
the petition (point 9 of the government’s brief).
44.
Substantively, regarding point I. of the statement of claim of the
petition, the government states that “there can be not doubt whatsoever
that the Parliament of the CR gave valid consent to ratification of the
Treaty of Lisbon, in accordance with all the rules arising from the
Constitution and the legal order of the CR” (point 11 of the
government’s brief). According to the government, the Treaty of Lisbon
is “an amendment of the founding treaties and thus the amending points
are subject to ratification. This is also the procedure applied in
amending statutory norms in the Czech legislative process” (point 11 of
the government’s brief). In addition, according to the government, “the
lack of an official consolidated version of the founding treaties
reflecting the changes pursuant to the Treaty of Lisbon does not support
the petitioners’ conclusion, but, on the contrary, appears quite
logical, because the subject matter of ratification in Member States is
precise the Treaty of Lisbon, which amends the founding treaties. If an
official consolidated version existed, it would, on the contrary, create
uncertainty as to what is to be the subject matter of ratification in
all the Member States, and which of the two texts has precedence in the
(hypothetical) event that they are inconsistent. The government states
that an unofficial consolidated version of the founding treaties,
reflecting changes pursuant to the Treaty of Lisbon, which serves for
better orientation in the text, does exist, and was published in the
Official Journal of the EU, including in the Czech language” (point 12
of the government’s brief, with reference to the Official Journal C 115,
9 May2008, p. 1). Regarding the violation of the principle of
non-retroactivity, alleged by the petitioners (see point 6 of this
judgment) the government states that “this possibility of subsequent
corrections, [...], is fully in accordance with international law. These
are “errata”, or corrections of errors that arose during translation of
a text from the original language or languages to the other official
languages of the Union, and are not changes of a substantive nature.
This procedure is subject to the rules set forth in Article 79 of the
Vienna Convention on the Law of Treaties [promulgated as no. 15/1988
Coll., the “Vienna Convention”]” (point 13 of the government’s brief,
references omitted). The government also disagrees with the petitioners’
claim that the Treaty of Lisbon contravenes the fundamental
characteristics of the Czech Republic as a sovereign and democratic
state governed by the rule of law, enshrined in Article 1(1) of the
Constitution of the CR, and in Article 2(1) of the Charter of
Fundamental Rights and Freedoms, in view of other grounds presented,
summarized in points 6 and 7 of this judgment.
45.
The government then addresses individual reasons wherein the
petitioner’s find certain provisions of the Treaty of Lisbon to be
inconsistent with the constitutional order and which the petitioner
presents in point II. of the statement of claim of the petition.
46.
In points 18 to 23 of its brief the government argues that Article 7 of
the TEU is not in conflict with Article 1(1) or with Article 2(3) of
the Constitution (regarding this alleged ground for the Treaty of
Lisbon’s conflict with the constitutional order see point 11 of the
judgment). It points out that this article was already reviewed by the
Constitutional Court, which, in judgment Pl. ÚS 19/08 did not find it
inconsistent with the constitutional order. The government adds, inter
alia, that the phrases which the petitioners claim to be inappropriately
general “are not outside the bounds of appropriate generality, not only
according to the standards of norms of international treaty law, but
also according to the standards of domestic law, which are evidently
higher in comparison with the former” (point 20 of the government’s
brief, which refers to point 186 of judgment Pl. ÚS 19/08).
47.
In points 24 to 31 of its brief the government argues that
Article 8 of the TEU is not, in its opinion, inconsistent with Article
1(1) of the Constitution (regarding this alleged ground for the Treaty
of Lisbon’s conflict with the constitutional order see point 12 of the
judgment). Here the government points out, for example, that “the
meaning of disputed terms can be derived through routine means of
interpretation, which are set forth for the interpretation of
international treaties in Article 31 of the Vienna Convention. Pursuant
to that article, the terms in an international treaty cannot be
interpreted in isolation, but in conjunction with each other, they must
be interpreted in good faith, and accorded their usual meaning, and,
finally, the subject matter and purpose of the treaty must be taken into
consideration so that the interpretation contributes to effective
implementation of the treaty” (point 25 of the government’s brief). The
government then performs such an interpretation in the following points
of its brief.
48.
In points 32 and 33 the government considers the petitioners’
doubts expressed in connection with Article 10(1) of the TEU and also
states that it is not in conflict with Article 1(1), or with Article 10a
of the Constitution (regarding this alleged ground for the Treaty of
Lisbon’s conflict with the constitutional order see point 13 of the
judgment). In point 32 of its brief the government states that this
article of the TEU is
“above
all a statement of the fact that representative democracy belongs to
the common constitutional traditions shared by the Member States. It is
precisely through representative democracy on the national level that
powers, whose original holders remain the Member States, are transferred
to the Union and its bodies. This fundamental line of representative
democracy is accentuated by the Treaty of Lisbon by acknowledging the
special role of domestic parliaments in reviewing the exercise of these
transferred powers. The fact that the European Parliament, elected
directly by citizens of Member States on the basis of the principle of
degressive proportionality, at the Union level performs some, though not
all, functions that are immanent to national representative assemblies,
primarily the review and legislative functions, testifies to the fact
that this body plays a supplementary role in strengthening the
transparency and democratic structure of the decision-making process,
and not that the Union itself thereby becomes a state, or that the
rights of domestic parliaments were transferred to it. The European
Union is thus a system sui generis, in which the element of democratic
representation is based on a chain of legitimacy between national
parliaments and the Council, and supplemented by the horizontal element
of representation in the European Parliament”.
49.
In points 34 to 41 of its brief the government argues in favour
of the conclusion formulated in point 41 that Article 17 of the TEU “is
not, in its opinion, in conflict with Article 1(1) of the Constitution
or with the Charter of Fundamental Rights and Freedoms” (regarding this
alleged ground for the Treaty of Lisbon’s conflict with the
constitutional order see point 14 of the judgment). Regarding the
question of the alleged vagueness of the term “European commitment” the
government points to the wording of that concept in other language
versions. The government states that “in the Czech translation the
perhaps somewhat inappropriately chosen term European commitment must be
understood in this context more as ‘European engagement’, or, loosely
speaking, a basic loyalty to the values and common objectives of
integration” (point 39 of the government’s brief). The government argues
similarly with regard to the alleged conflict between the requirement
of “European commitment” and the principle of political neutrality.
50.
In points 42 to 44 of its brief the government argues in favour of the
conclusion formulated in point 44, that “it does not share the
petitioners’ opinion that the institution of ‘enhanced cooperation’” set
forth in Article 20 of the TEU “contravenes the principle of the
sovereignty of the Czech Republic, and, in view of the foregoing, is
convinced that Article 20 of the TEU is not in conflict with Article
1(1) or with Article 10a of the Constitution of the CR” (regarding this
alleged ground for the Treaty of Lisbon’s conflict with the
constitutional order see point 15 of the judgment). In point 42 of its
brief the government states that
“the
purpose of enhanced cooperation is to permit certain Member States to
integrate into the Union faster, and at the same time ensure that, if
they later show interest in it, this cooperation will be open to other
Member States at any time under conditions specified clearly in advance.
For these reasons it is quite logical that the Treaty of Lisbon,
similarly to the Treaty on the EU already in effect, conditions enhanced
cooperation between groups of Member States on the fulfilment of
specified conditions and approval by the Council. If some Member States
of the EU wish to enter into cooperation outside the area of competence
of the Union, and without using its institutional structures, and that
cooperation is not in conflict with the obligations of those states
arising from them membership in the Union, the Treaty of Lisbon does not
impose any limitation on them. In contrast to the enhanced cooperation
pursuant to Article 20 of the TEU, however, in that case the Union
cannot guarantee to other Member States that the Member States involved
will permit them to join in such cooperation outside the framework of
the EU”.
51.
The government adds in this regard that “shared competences are
subject to the principle that, to the extent that the Union did not
exercise a particular competence or decided to stop exercising it, the
exercise of that competence belongs to the Member States” (government
brief point 43). In the government’s opinion, Member States may exercise
these competences not exercised by the Union individually, or jointly,
provided that the exercise of these competences does not come into
conflict with the obligations of these Member States arising from their
membership in the EU. However, as the government explains further,
“the
case of enhanced cooperation pursuant to Article 20 of the TEU is a
qualitatively different situation, because that cooperation takes place
within the objectives and competences of the Union and within the Union
integration process, which can thus be intensified and strengthened
within a smaller group (at least nine) of Member States. Member States
involved in enhanced cooperation exercise the non-exclusive competences
of the Union, not their own competences, as is expressly and clearly
stated in Article 20(1) of the TEU. If legislative acts are adopted in
this qualified enhanced cooperation, they will have the character of
Union law with all the appurtenant attributes” (point 43 of the
government’s brief).
52.
In points 45 to 51 of its brief, the government argues in favour
of the conclusion formulated in point 51, that “Article 21(2)(h) of the
TEU is not in conflict with Article 1(1) of the Constitution of the CR
or with Article 2(1) of the Charter of Fundamental Rights and Freedoms”
(regarding this alleged ground for the Treaty of Lisbon’s conflict with
the constitutional order see point 16 of the judgment), and it refers to
the arguments applied regarding similar arguments from the petitioners,
and adds a comparative linguistic interpretation, through which the
government reaches the conclusion that “in negotiating the Treaty of
Lisbon, the Member States did not have in mind proper administration of
public matters in the sense of responsible exercise of public power
vis-à-vis subordinate subjects, which is effectively exercised only
within a state, as the petitioners erroneously believe, as much as
responsible adoption of political decisions vis-à-vis equal partners,
which is intended to lead to creating and maintaining worldwide order”
(point 48 of the government’s brief).
53.
In points 52 to 58 of its brief, the government argues in favour
of the conclusion formulated in point 58, that the possibility of the
creation of a common defence of the EU, enshrined in Article 42(2)(1) of
the TEU, is not in conflict with Article 1(1) or with Article 10a of
the Constitution (regarding this alleged ground for the Treaty of
Lisbon’s conflict with the constitutional order see point 17 of the
judgment). The government primarily considers it essential to oppose the
petitioners’ claim (in point 131 of the petition) that “the new text of
the Treaty of Maastricht does not permit of any alternative to the
establishment of a common defence”. According to the government, this
claim is “in direct conflict with Article 42 of the TEU”. According to
the government, it is “evident, that from a legal point of view there is
a possibility to decide unanimously on common defence, but it is left
to the political consideration of representatives of Member States in
the European Council whether to adopt that decision. This is not, under
any circumstances, a legal obligation, the failure to fulfil which would
be violation of a treaty obligation. In other words, a common defence
will be created if the European Council so decides at an as yet
undetermined future time, solely on the basis of its political
consideration, without being legally bound to do so” (both quotations
from point 53 of the government’s brief). The government also points to
the need for all Member States to approve such a decision in accordance
with their legislation (point 54 of the government’s brief). The
government is also convinced that
“the
petitioners claim regarding the impossibility of transferring any
competences concerning defence to an international organization is
unsustainable. If defence matters were truly a fundamental attribute of
the sovereignty of the CR, whose preservation would not permit making
defence a subject of international obligations, the entire Article 43 of
the Constitution of the CR would cease to make sense. It is evident
that both the fulfilment of international treaty obligations on common
defence against attack (Article 43(1) of the Constitution of the CR),
and the CR’s participation in defence systems of international
organizations of which the CR is a member (Article 43(2) of the
Constitution of the CR), as well as the presence of the armed forces of
other states in the territory of the CR (Article 43(3) of the
Constitution of the CR), clearly represent a sharing of competences in
defence, based, of course, on valid international treaty obligations
accepted by the CR as a sovereign state, and meeting the procedures set
forth by the Constitution of the CR. Accepting such treaty obligations
is expressly permitted by Article 49(b) of the Constitution of the CR,
which defines ‘treaties of alliance, peace, or other political nature’
as one of the categories of ‘presidential treaties’” (point 55 of the
government’s brief).
54.
In this regard the government points out the Czech Republic’s
membership in the North Atlantic Treaty Organization – NATO (the North
Atlantic Treaty [Washington, D. C., 4 April 1949], which entered into
force for the Czech Republic in accordance with Article 10 of the Treaty
on 12 March 1999 and was promulgated as no. 66/1999 Coll.) and the
consequences arising from it, with regard to Article 42(7)(2) of the
TEU.
55.
In points 59 to 61 of its brief, the government argues in favour of
the conclusion formulated in point 61, that Article 50(2) to (4) of the
TEU “governing the process of withdrawal of a Member State from the
Union is not in conflict with Article (1) or with Article 10a of the
Constitution” (regarding this alleged ground for the Treaty of Lisbon’s
conflict with the constitutional order see point 18 of the judgment). In
this regard the government points out the Constitutional Court’s
conclusions stated in point 106 of judgment Pl. ÚS 19/08, that “the
explicit articulation [of the possibility of withdrawal from the Union]
in the Treaty of Lisbon is an undisputed confirmation of the principle
that States are the Masters of the Treaty and the continuing sovereignty
of Member States”. According to the government, “the regulation of the
withdrawal process is an expression of the common will of the Member
States to address their future relationships by agreement, consensually,
and comprehensively (which, in the case of such an integrated whole, is
undoubtedly desirable)” (point 59 of the government’s brief).
56.
Regarding the alleged grounds for the non-conformity of the Treaty
of Lisbon with the constitutional order that the petitioners set forth
in point III of the statement of claim of the petition (regarding this
point of the statement of claim of the petition see point 19 of the
judgment), the government points out that the petitioners are contesting
Article 78(3) of the TFEU and Article 79(1) of the TFEU, “without
paying attention to the systematic interpretation of these provisions,
whether the concept itself of an area of freedom, security and justice,
international obligations in asylum policy, free crossing of internal
borders, protection of external borders and related visa policy, or the
efforts to achieve a comprehensive solution for legal and illegal
migration. They ignore those articles of the TFEU that refute their
arguments, as well as the literal text of the cited articles” (point 62
of the government’s brief). Regarding Article 78(3) of the TFEU, the
government states that it must be remembered “that it is precise the
Member States who decide on such measures in the Council, to the benefit
of the affected Member State(s). This provision must also be
interpreted in the context of the principle of solidarity and a just
distribution of responsibility among the Member States, including on a
financial level” (point 63 of the government’s brief). Regarding Article
79(1) of the TFEU, the government “considers it necessary to point out
paragraph 5 of that article, which the petitioners completely ignored”..
According to the government “that provision guarantees Member States
the right to set the number of entries of citizens of third countries
coming to their territory in order to seek work or do business as an
independent entrepreneur. This is an especially important regulatory
mechanism that should remain to protect the domestic labour market from
an undesirable (unmanageable) influx of foreign citizens who can now
move freely in search of work within the Union’s common labour market”
(point 64 of the government’s brief). Based on this, “the government
believes that the petitioners’ claims stated in part III of the petition
are obviously unjustified. In the government’s opinion Article 78(3)
and Article 79(1) of the TFEU are not in conflict with Article 1(1) of
the Constitution” (point 65 of the government’s brief).
57.
Regarding point IV of the statement of claim of the petition, the
government states that “the Constitutional Court does not have
substantive jurisdiction to review this petition, for the reason that
the Decision is not the kind of international treaty that is subject to
preliminary review of constitutionality [...], and also because here the
Constitutional Court is only asked to authoritative state that a
particular legal opinion is true” (point 66 of the government’s brief).
D.
Brief from the President of the Republic
58.
On 16 October 2009 the Constitutional Court received a brief from the
president of the republic. It is divided into five parts, marked A to
E.
59.
In part A, entitled “Preamble”, the president points out the
social-political context for the approval of the Treaty of Lisbon,
welcomes the petition from the group of senators, and states that
“although the Constitutional Court has already spoken on the matter of
the Treaty of Lisbon, that was only about individual components, and not
on the Treaty as a whole”. In the president’s opinion, the previous
review of sections of the Treaty of Lisbon is not a guarantee that could
refute doubts about the compatibility of the Treaty of Lisbon with our
constitutional order. The task before the Constitutional Court today is
completely different, and therefore not comparable to the one that it
had in the autumn of last year”. The president returns to the previous
review of the Treaty of Lisbon in the last paragraph of the first part
of his brief:
“In
view of the fact that the previous review of the conformity of the
Treaty of Lisbon with the constitutional order of the CR was based on a
specific approach where the Constitutional Court reviewed only those
provisions that the Senate then contested, and did not review the Treaty
of Lisbon comprehensively and in its entirety, my arguments, presented
in my brief of June 2008 were not seriously reviewed and weighed. At
that time the Constitutional Court responded to my extensive brief in a
single sentence. The present submission from the senators, which is much
wider in the scope of contested provisions, provides an opportunity to
consider the issues of the Treaty of Lisbon more comprehensively, and
thus also opens an opportunity to return to my previous arguments”.
60.
In part B the president recapitulates his brief of June 2008
(presented in the proceedings in the matter file no. Pl. ÚS 19/08). The
president believes that he “did not get complete and convincing answers,
either in the proceedings or later” to five questions that he raised in
that brief. He repeats those questions in the submitted brief.
61.
The first question raised by the president was: “Will the Czech
Republic remain, after the entry into force of the Treaty of Lisbon, a
sovereign state and full subject in the international community, with
capacity to independently, without anything further, to fulfil the
obligations arising to it under international law?” In the president’s
opinion the Constitutional Court “avoided answering directly, and raised
a new theory of sovereignty shared jointly by the European Union and
the Czech Republic (and other Member States)”. The president states:
“The
term shared competence has been used relatively frequently recently,
but only in non-rigorous debate. It is a contradiction in terms. Not
only does our legal order not know the term ‘shared sovereignty’, but
neither does the law of the European Union. It was used only in the
decision of the European Parliament and the Council that established the
2007-2013 programme Citizens for Europe to support active European
citizenship; that decision states that ‘the culture of shared
sovereignty – and not giving up sovereignty – that is the culture and
identity of today’s European citizen, and all the more so the citizen of
the future’. That, of course, cannot be the basis for any legal
arguments”.
62.
In the following paragraph the president presents his concept of
sovereignty: “The essence of sovereignty is the unrestricted exercise of
power. Sovereignty rejects the sharing of power”. According to the
president, “the consequences of this opinion of the Constitutional Court
[the president evidently means the concept of sovereignty expressed by
the Constitutional Court in judgment Pl. ÚS 19/08] indicate that in the
European Union there will be no sovereign in the classic sense of the
word. That is a very dangerous social arrangement”. The president
concludes:
“I
do not think that this is the kind of sovereignty that the Czech
constitutional framers had in mind when they formulated Article 1 of the
Constitution in 1992. The Constitutional Court’s answer also indicates
the answer to the second part of this question: The Czech Republic, as a
subject in the international community, does not have full rights, and
it can fulfil its international obligations only together with the
European Union. To me that was not, and is not, an acceptable answer”.
63.
The second question to which the president sought an answer in the
proceedings before the Constitutional Court was: “Is the provision of
the Treaty of Lisbon on direct domestic effect of European Union
legislation consistent with Article 10 of the Constitution of the Czech
Republic?” In the president’s opinion “the Constitutional Court did not
provide any answer at all to this question. It touched on the issue
[according to the president] only by reference to the ‘sugar quota’
case”.
64.
According to his brief, in his third question the president asked:
“Does the Charter of Fundamental Rights of the European Union have the
legal status of an international treaty pursuant to Article 10a of the
Constitution, and if so, are all its provisions consistent with the
Charter of Fundamental Rights and Freedoms of the Czech Republic, or
other components of the constitutional order?” In the president’s
opinion “the Constitutional Court did not provide a direct answer to the
first part of the question. One can only indirectly conclude from the
judgment that the Constitutional Court considers the Charter of
Fundamental Rights of the European Union to be an international treaty
and that the Charter is not in conflict with the Constitution. However,
an express answer was not provided”.
65.
In his fourth question the president asked whether the European
Union will remain “after the entry into force of the Treaty of Lisbon an
international organization, or institution, to which Article 10a of the
Constitution permits transferring the powers of the authorities of the
Czech Republic”. According to the president, “the Constitutional Court
did not provide an answer”.
66.
Finally, the fifth question posed by the president: “If the Treaty
of Lisbon indirectly amends the Accession treaty, does not
constitutional Act no. 515/2002 Coll., on a Referendum on the Accession
of the Czech Republic to the European Union then implicitly also apply
to the Treaty of Lisbon (the question for the referendum in that Act
would then have to be amended)? Should not consent to ratification of
the Treaty of Lisbon also be subject to a referendum?” Here the
president states that “this was the only question that the
Constitutional court answered, although it apparently did not understand
my question”. As the president understands it:
“The
Constitutional Court stated that a referendum is possible, but that the
decision is not up to the Constitutional Court, but to political
bodies. However, I asked whether the already adopted constitutional act
on a referendum on the accession of the Czech Republic to the European
Union does or does not also apply to the Treaty of Lisbon. That treaty
changes the conditions of our accession, in a substantial manner”.
67.
The president points out the background report to constitutional
Act no. 515/2002 Coll. (in his opinion “approved by the government and
the Parliament of the Czech Republic”) and quotes the following passage
from it:
“the
formulation of Article 10a of the Constitution presupposes alternative
conditions for the ratification of an international treaty that
transfers certain powers of authorities of the Czech Republic to an
international organization or institution either the consent of a
three-fifths majority of all deputies and a three-fifths majority of
senators present, or consent given in a referendum. The draft act makes
this general formulation specific to the effect that ratification of the
Treaty on the Accession of the Czech Republic to the European Union
requires prior consent in a referendum, because only by referendum can
the decision to accede to the European Union be made; thus, it selects
one of the alternatives set forth in Article 10a. The act does not
concern the ratification process for other defined kinds of
international treaties; that will be subject to future decisions by
Parliament”.
The
president concludes from this that “in 2002 Parliament already assumed
that, pursuant to Article 10a of the Constitution, if in the future any
of the powers of authorities of the Czech Republic were to be
transferred to an international organization or institution, that should
take place by referendum”. In the president’s opinion the
Constitutional Court
“did
not at all consider the question of whether the Treaty of Lisbon, which
is to be ratified more than five years after 1 May 2004, i.e. from the
date of the Czech Republic’s accession to the European Union, changes
the conditions under which the citizens voted on the referendum on the
Czech Republic’s accession to the European Union, and whether it is
therefore necessary to adopt a new act on a referendum in which the
citizens would answer the question of consent to the changes adopted by
the Treaty of Lisbon”.
68.
In the conclusion of part B the president proclaims: “The
Constitutional Court must give a direct answer to all these questions”.
69.
In part C the president recapitulates the petition from the group of
senators and agrees with their objections. In the conclusion of this
part the president welcomes their attempt “to define in a final list the
elements of the ‘essential core’ of the constitutional order, or more
precisely of a sovereign democratic state governed by the rule of law”.
The president believes that “if the Constitutional Court accepts this
definition as its own, or defines it in a different, similar manner,
this could limit future self-serving definition of these elements based
on cases being adjudicated at the time”. In the president’s opinion this
would significantly strengthen the degree of legal certainty for the
citizens and state authorities.
70.
In part D the president returns to the petition of the group of
senators seeking the annulment of certain provisions of the rules of
procedure of both chambers of Parliament (file no. Pl. ÚS 26/09) and
states that the Constitutional Court denied it “without examining it in
detail”. The president has “no choice but to express regret over this
hasty step by the Constitutional Court, because these serious questions
of Czech statehood thus remain unanswered, and can be subject to further
disputes in the future”.
71. In the concluding part E the president proposes,
“that
the Constitutional Court decide, clearly, specifically, and with
detailed reasons on the conformity of the Treaty of Lisbon as a whole
with Article 1(1) of the Constitution, or with Article 2(1) of the
Charter of Fundamental Rights and Freedoms, and that it state whether
the Czech Republic will remain, after the ratification of the Treaty of
Lisbon, a sovereign, unitary and democratic state governed by the rule
of law, founded on respect for the rights and freedoms of the man and of
citizens”.
72.
On 23 October 2009 the Constitutional Court received, through the
president’s attorney, Aleš Pejchal, a supplement to the president’s
brief. In it the president agrees with the supplement to the petition
from the group of senators, and then urges the Constitutional Court not
to overlook review of the compatibility of the Treaty of Lisbon with the
Constitution also with regard to whether “abandoning the principle of
consensuality in the field including the area of freedom, security and
justice, and introducing in that field the principle of majority voting
by representatives of the executive branch of individual Member states
of the European Union violates Article 10a of the Constitution, because
in fact this is not a transfer of the powers of authorities of the Czech
Republic to an international organization, but to a group of states,
which will outvote the Czech Republic in promoting their own interests”.
In the president’s opinion, “Article10a of the Constitution does not
permit the transfer of powers of authorities of the Czech Republic to
another state or group of states”.
III.
Hearing
73.
In the hearing before the Constitutional Court, held on 27 October
2009, the petitioners were represented by senator Jiří Oberfalzer and
the attorney appointed by him, Jaroslav Kuba, the Chamber of Deputies fo
the Parliament of the Czech republic was represented by its chairman,
Miloslav Vlček, the senate of the Czech Republic was represented by its
chairman, Přemysl Sobotka, the president of the republic was represented
by his appointed attorney, Aleš Pejchal, and the government of the
Czech Republic was represented by the Minister for European Affairs,
Štefan Füle.
74.
The petitioners’ attorney, with reference to § 37(1) of the Act
on the Constitutional Court, raised the objection that the judge
rapporteur, Pavel Rychetský, was biased, and based doubts concerning his
lack of bias on the fact that the text of an article published in the
internet edition of Lidové noviny of 30 September 2009, entitled “German
Ambassador Asks Rychetský about Fate of Lisbon Treaty”, states, among
other things, that “two weeks ago the German ambassador made an
appointment with the chairman of the court, Pavel Rychetský, and
discussed the Treaty of Lisbon with him. Judge Rychetský confirmed this
to Lidové noviny. According to Rychetský, ambassador Johannes Haindl was
curious about how long it would take the court to issue a judgment
(sic!). As the article correctly (sic!) further states, the meeting ...
came as a surprise to the senators who filed the constitutional
complaint (sic!)”.
75.
The Constitutional Court suspended the hearing, and then ruled on the
objection by resolution as follows: “Judge Pavel Rychetský is not barred
from deliberating and deciding in the matter file no. Pl. ÚS 29/09”.
For details, we refer to that resolution, available at
nalus.usoud.cz.
76.
When the hearing resumed, the chairman of the Constitutional Court
briefly recapitulated the contents of the petition, together with the
supplement submitted by the petitioners, and the briefs from the parties
to the proceedings, and called on the government’s representative to
submit, in accordance with the request made by the judge rapporteur on
26 October 2009, a copy of the resolution of the government of the Czech
Republic of 13 December 1995 no. 732 on the application of the Czech
Republic for admission to the European Union, together with the
application and memorandum attached to that application. The government
representative did so and during the recess in the hearing copies of
these documents were also delivered to the other parties to the
proceeding.
77.
The petitioners, through their legal representatives, submitted a
document entitled “Supplement and Further Detail to the Statement of
Claim of the Petition, with Grounds” (the “second supplement”) and
briefly summarized its contents. The chairman of the Constitutional
Court delivered copies of the second supplement to the other parties
expediently directly during the hearing.
78.
In the second supplement the petitioners, in their words,
“supplement and make more precise the statement of claim of the
petition” dated 29 September 2009 and the supplement to it dated 15
October 2009 as follows: Point I of the statement of claim of the
petition, as it is formulated in the second supplement, reads: “The
Treaty of Lisbon (the consolidated version) as a whole, (the treaty of
Maastricht as a whole and the Treaty of Rome) contravenes Article 1(1)
of the Constitution, and Article 2(1) [of the Charter]”. The petitioners
make the following changes in point II of the statement of claim of the
petition:
-
Article 7(3) of the TEU already contested in the original petition
(see point 11 of this judgment; of course, in the original petition and
the supplement the petitioners contested Article 7 of the TEU as a whole
and then also the specific wording), according to the petitioners also
contravenes Article 2(3) of the Constitution,
-
- Article 9 of the TEU, according to the petitioners, contravenes Article 1(1) of the Constitution,
-
-
Article 13(1) of the TEU and Article 47 of the TEU, according to the
petitioners, contravene Article 10a(1) of the Constitution,
-
- Article 14(2) of the TEU, according to the petitioners, contravenes Article 1 of the Charter,
-
-
Article 17(1) and (3) of the TEU, already contested in the original
petition (see point 14 of this judgment; of course, in the supplement
the petitioners contested only the second paragraph of Article 17(3) of
the TEU), according to the petitioners, also contravene Article 21(4) of
the Charter,
-
- Article 19(1) of the TEU, according to the petitioners, contravenes Article 87(2) of the Constitution
-
-
Article 50(2) and (4) of the TEU, already contested in the original
petition (see point 18 of this judgment), according to the petitioners,
contravene Article 2(3) of the Constitution.
79.
In connection with Article 8 of the TEU, already contested in the
original petition, (see point 12 of this judgment), in the second
supplement the petitioners do not set forth conflict by specific phrases
as they did in the original petition; regarding Article 7 of the TEU,
in this second supplement the petitioners cite only paragraph (3);
regarding Article 50 of the TEU, in this second supplement the
petitioners cite only (2) and (4), not paragraphs (2) to (4), as they
did in the original petition and in the supplement (see point 18).
However, these differences can evidently be ascribed more to careless
preparation of these submissions (just like the express questioning of
only the second paragraph of Article 17(3) of the TEU in the supplement
to the petition), than to the petitioners’ intent, and the
Constitutional Court thus does not consider them relevant.
80.
The petitioner justified the abovementioned supplement, or
modification of the wording of the statement of claim of the petition as
summarized in the following points of this judgment (typographical
errors in the quotations have been corrected, but not the syntax).
81. Regarding the alleged conflict of Article 7(3) of the TEU with Article 2(3) of the Constitution:
“In
applying this power the Council, acting by qualified majority, may
decide to suspend the rights of a Member State, including the voting
rights of the representative of the government of that Member State in
the Council. That will consequently limit the powers of that Member
State, with effects on its citizens. The legal norm containing this
rule, enshrined in [Article 7(3) of the TEU], and permitting the
reduction of the power of a Member State, which is primarily established
as service to its citizens, is thus in direct conflict with a legal
norm in the Czech constitutional order. Specifically, the norm enshrined
in [Article 2(3) of the Constitution], pursuant to which state
authority is to serve all citizens”.
82.
Here the Constitutional Court notes that the petitioners used
the same grounds to contest the conformity of Article 7 of the TEU with
Article 2(3) of the Constitution in their original petition (cf. point
11 of this judgment).
83. Regarding the alleged conflict of Article 9 of the TEU with Article 1(1) of the Constitution:
“Application
of this legal norm, involves applying the institution of so-called
‘European citizenship’, which is not derived from the Constitution, or
the constitutional order of a Member State. In view of the fact that the
institution of citizenship is not a defining element of an
international organization, but of a state, introduction of so-called
‘European citizenship’ also proves that, in the meaning of this
regulation, the legal subject status of the EU bears the signs of a
state. (A designation like ‘citizens of the Member States of the
European Union’ would correspond to the legal subject status of an
international organization.)
This
will subsequently limit the sovereignty of a Member State. The
Constitution of the CR mentions citizenship that carries legal
consequences only in relation to the state, in Articles 1, 2, 12 and
100.
Thus,
from the legal norm containing that institution, and enshrined in
[Article 9 of the TEU], one cannot rule out that contradictory
responsibilities will arise fro a citizen of a Member state.
Responsibilities arising from the state-citizenship relationship, and
responsibilities arising from ‘European commitment’. Thus, the creation
of citizenship with legal consequences pursuant to [Article 9 of the
TEU] for a citizen of the CR is in conflict with the constitutional
principle of the sovereignty of the CR, enshrined in [Article 1(1) of
the Constitution]: ‘The Czech Republic is a sovereign, unitary and
democratic state governed by the rule of law”.
Because
thus, its citizens, as a result of the creation of a ‘European
citizenship’ may face, e.g. a dilemma in deciding between responsibility
to the state or to the EU, in the event of a conflict between them”.
84.
Regarding the alleged conflict of Article 13(1) of the TEU and
Article 47 of the TEU with Article 10a(1) of the Constitution, the
petitioners state that “in applying the cited articles, the legal
subject status of the European Union will function as the legal subject
status of a state”. The petitioners develop this claim in the following
passages and conclude that application of these articles of the TEU
“indicates
that the transfer of certain powers to the EU and its authorities will
cause the Member state to lose the sovereign ability to defend its
nationals from the effects of external limitations on their fundamental
rights. Because the subject to which these powers are transferred has
the legal subject status of a state, and not the legal subject status of
an international organization or institution. Therefore [these articles
are] in conflict with [Article 10a(1) of the Constitution]. Which
provides that ‘Certain powers of Czech Republic authorities may be
transferred by treaty to an international organization or institution’,
and thus not to another state”.
85.
Regarding the alleged conflict of Article 14(2) of the TEU with
Article 1 of the Charter, the petitioners point out that as a
consequence of application of this article “citizens of the most
populous state will have up to 12.6 % of representatives in the maximum
750-member [European Parliament], while the least populous only 0.8 %”.
The petitioners conclude that this violates the principle of equality
enshrined in the cited provision of the Charter.
86. Regarding the alleged conflict of Article 17(1) and (3) of the TEU with Article 21(4) of the Charter:
“[Article
17(3) of the TEU] states: ‘...The members of the Commission shall be
chosen on the ground of their general competence and European
commitment’. The content of ‘European commitment’ is not defined, may be
used for discrimination, etc. Primarily, however, it is not ruled out
that it may be transferred into an exclusive EU ideology that deforms
the pluralism and democratic values on which it was established.
This conflict thus is no longer only the ‘problem; of the CR.
The
cited article of the TEU thus contravenes [Article 21(4) of the
Charter]: ‘The state ... may not be bound ... by an exclusive ideology.’
And, likewise, [Article 21(4) of the Charter]: ‘Citizens shall have
access, on an equal basis, to any elective and other public office’”.
87.
Similarly as in relation to the arguments raised concerning the
conflict of Article 7 of the TEU with Article 2(3) of the Constitution
(see point 82 of this judgment) the Constitutional Court points out that
this supplement in fact reproduces the original petition (see point 14
of this judgment).
88.
Regarding the alleged conflict of Article 19(1) of the TEU with
Article 87(2) of the Constitution, the petitioners state that
“interpretation of the law by the European Union Court of Justice is one
of the sources of so-called ‘Union law”, which, pursuant to the
‘Declaration’ attached to the Concluding Act of the Intergovernmental
Conference under point ‘A’ as the ‘Declaration to Treaty Provisions’ no.
17: ‘Declaration of the Priority of law’, has priority before the laws
of a Member state”. Thus according to the petitioners
“interpretation
of any supplements or amendments to the Treaty of Lisbon by the
European Union Court of Justice will have priority over interpretation
of them by the constitutional court of an EU Member State. This applies
in the event of the court’s decision-making on consistency of an
international treaty with the constitution or the constitutional order.
This
will consequently limit the power of the constitutional court in
question, which, in the case of [the Constitutional Court of the CR] is
enshrined in [Article 87(2) of the Constitution] and within which it
decides on the consistency of an international treaty pursuant to
Article 10a and Article 49 with the constitutional order, before it is
ratified.
The
legal norm containing this rule [ Article 19(1) of the TEU] thus makes
the European Union Court of Justice superior in interpretation of the
‘Treaties’ (meaning the Treaty of Lisbon), including in cases of their
interpretation by the constitutional court of an EU Member State. This
applies to its decision-making on the conformity of the Treaty of Lisbon
as amended by any amendments and additions to the international treaty
with the constitution or the constitutional order of the Member State.
It
is thereby in direct conflict with the legal norm of the Czech
constitutional order enshrined in [Article 87(2) of the Constitution].
That permits [the Constitutional Court] to reach an independent judgment
concerning the interpretation of an international treaty pursuant to
Article 10a and Article 49, if it is to decide on its consistency with
the constitutional order of the CR. At the same time, this makes
interpretation of the Constitution dependent on a norm contained in
another legal document”.
89.
Finally, regarding the alleged conflict of Article 50(20 and (4)
of the TEU with Article 2(3) of the Constitution, the petitioners state
that “withdrawal [is] bound to conditions that are unilaterally
determined by instructions of the European Council. Because, pursuant to
(4) a Council member, representing the withdrawing state, may not take
part in its discussions”. Therefore, according to the petitioners, “it
cannot be ruled out that conditions contained in an accession treaty can
be even economically destructive for the withdrawing state, and force
it to reverse its decision. In other words – and again this does not
involve only the CR – that if the right of a Member State to withdraw
from the EU is to be limited, then at least under conditions that are
known before its accession”. Directly regarding the alleged conflict the
petitioners state that
“if,
pursuant to (4) a member of the European Council or the Council that
represents the withdrawing state may not take part in discussions
concerning his state, then the ‘Treaty of Lisbon’ thereby, during that
process, also limits the potential of the withdrawing state to serve its
citizens, and at the same time, their right in this regard. Thereby it
contravenes [Article 2(3) of the Constitution], pursuant to which ‘state
authority is to serve all citizens’”.
90.
After a question from the chairman of the Constitutional Court, the
petitioners’ attorney confirmed that the petitioners maintain the
further points of the statement of claim that were not stated again in
the second supplement. He also confirmed that the petitioners understand
points II and III as alternatives to point I of the statement of claim.
91.
In the closing statement senator Jiří Oberfalzer, representing
the petitioners, returned to the contents of the previous petitions and
the supplement presented by the petitioners, and extensively
recapitulated the contents of the brief in the matter file no. Pl. ÚS
26/09. The petitioners’ attorney then in his statement argued against
points 70 to 76 of judgment Pl. ÚS 19/08. The Constitutional Court notes
here, for completeness, that after presentation of evidence was
concluded, closing statements were made, and the Constitutional Court
retired for its final deliberations, on 30 October 2009 it received
another submission from the petitioners through their attorney. In view
of the timing of this submission, and in view of the fact that, based on
its content, it was evidently not a petition to open proceedings, that
submission was set aside [§ 41(a) of the Act on the Constitutional
Court].
92.
The attorney for the president of the republic primarily repeated
the questions raised by the president in his brief (see points 60 to 68
of this judgment) and then quoted extensively from the abovementioned
memorandum attached to the Czech Republic’s application for admission to
the European Union (see point 76 of this judgment). He pointed to the
fact that, in the president’s opinion, the character of the European
Union is fundamentally changed in comparison with its present character.
93.
The representatives of both chambers of the Parliament of the
Czech Republic recapitulated the contents of their written briefs and
again pointed out that the Constitutional Court already considered the
conformity of the Treaty of Lisbon with the constitutional order in
detail in the proceeding file no. 19/08, with a positive result.
94.
The government’s representative first recapitulated the contents
of the government’s written brief and then presented a separate brief
regarding the supplement to the petition, in the conclusion of which he
stated that the government believes that the individual articles of the
TFEU contested in the supplement are not in conflict with the
constitutional order. He also responded to the president’s written
brief. At the conclusion of his presentation he stated that “the
government of the Czech Republic performed a thorough legal analysis on
the Treaty of Lisbon, the petition from the group of senators, including
the later supplement to it, and the brief from the president, and based
on that, concluded that the individual contested articles of the Treaty
of Lisbon, and the Treaty as a whole, are not in conflict with the
constitutional order of the Czech Republic”.
IV.
Definition of the Scope of Review
95.
Before the Constitutional Court turns to review of the Treaty of
Lisbon, it must define the scope in which it is authorized to review the
treaty, especially in view of its previous judgment, Pl. ÚS 19/08. In
that regard, three questions arose before the Constitutional Court.
First, to what extent does the Constitutional Court’s previous judgment
prevent it from further review of the Treaty of Lisbon (the impediment
of rei iudicatae, part A below). Second, the question of the ability to
review the Treaty of Lisbon, or the treaties which it amends (i.e. the
TEU and the TFEU), as a whole, and the related substantive limits of the
review of international treaties (part B below). Finally, third, the
Constitutional Court considers it necessary to point out the fundamental
principles of proceedings on the constitutional conformity of
international treaties pursuant to Article 87(2) of the Constitution and
related provisions of the Act on the Constitutional Court, especially
with regard to the possibility of misuse of this proceeding for
unconstitutional obstructive practices (part C below).
A.
The Impediment of Rei Iudicatae in Relation to Judgment Pl. ÚS 19/08
96.
In point 78 of judgment Pl. ÚS 19/08 the Constitutional Court stated
that any new petition for review of this same Treaty of Lisbon would
evidently be barred, as regards the now-contested provisions, by the
impediment of rei iudicatae. Even then, however, the Constitutional
Court pointed out that it would make that evaluation only if a new
petition were really submitted; at the same time, it indicated that it
is appropriate to interpret the issue of rei iudicatae restrictively in
such a case. The Constitutional Court thus left evaluation of the
impediment of rei iudicatae open. A key point in this regard is the
definition of when the “same matter” is involved.
97.
A restrictive understanding of the impediment of rei iudicatae
corresponds to a double unity: an identical provision of the
international treaty that is contested by the petition, and at the same
time the identical grounds claimed for its conflict with the
constitutional order, in light of which the provision of the
international treaty was reviewed in the previous decision and which is
to establish the impediment of rei iudicatae. The impediment of rei
iudicatae, thus defined, is restrictive in the sense that it imposes
stricter requirements on the unity of the matter.
98.
On the other hand, the impediment of rei iudicatae, thus defined,
provides a wider opportunity to potential subsequent petitioners to
contest the constitutionality of an international treaty than if the
unity of the matter had occurred, e.g. through merely one unity of the
contested provision of the international treaty. This also corresponds
to the concept of proceedings pursuant to Article 87(2) of the
Constitution, on which the Constitutional Court spoke in the already
cited judgment Pl. ÚS 19/08 (point 76) as follows: “The order of
individual petitioners, as set forth in § 71a(1) [of the Act on the
Constitutional Court], is guided by the aim of enabling each of them to
properly express its doubts about the constitutionality of the
international treaty under discussion”. If the first petition for review
of a provision of an international treaty could effectively bar further
petitions for review of that same provision, raised in view of possible
conflict with provisions of the constitutional order, which the
Constitutional Court did not consider in the previous decision, the
possibility for each potential petitioner to express his doubts on the
constitutionality of the international treaty being discussed would lose
meaning to a considerable degree.
99.
However, the Constitutional Court emphasizes that this order of
petitioners and the consequences that the Constitutional Court draws
from it in the previous point, do not mean that potential subsequent
petitioners (or potential parties to other proceedings) may contest,
over and over again, conclusions that the Constitutional Court has
already stated in a judgment concerning the conformity with the
constitutional order of an international treaty (or of those provisions
that the Court reviewed) (see also part C of this part of the judgment,
below). The finality, non-changeability, and binding nature of an
enforceable decision by the Constitutional Court, which follow from
Article 89 of the Constitution and related provisions of the Act on the
Constitutional Court, play important roles, that reflect the status of
the Constitutional Court as a body of a judicial nature, not a place for
comments or a place for discussions of a primarily academic or
political nature (in this regard, cf. judgment Pl. ÚS 19/08, point 75).
100.
The Constitutional Court is a constitutional body endowed, pursuant
to Article 89(2) of the Constitution, with the power to authoritatively
and with final effect interpret provisions of the constitutional order,
not a place for endless debate, which some parties seek. An enforceable
judgment of the Constitutional Court is binding on all authorities and
persons (Article 89(2) of constitutional Act no. 1/1993 Coll.), and thus
– as is obvious in itself – is also binding on the Constitutional Court
itself. In that sense, the consequence of this for any other
proceedings before the Court in which a decision is to be made again
(even if in a different manner), is the unavoidable procedural
impediment of rei iudicatae (§ 35(1) of Act no. 182/1993 Coll.), which
natural bars any further review of the matter on the merits [judgment
file no. III. ÚS 425/97 dated 2 April 1998 (N 42/10 SbNU 285), p.
287–288].
101.
The Constitutional Court considered in detail the arguments
raised by the petitioners in their supplement relating to the alleged
conflict of Article 2 and 4 of the TFEU (defining the competences of the
Union) with Article 1(1) and Article 10a of the Constitution (regarding
this alleged ground cf. points 26 to 29 of this judgment) in points 125
to 141 of its judgment Pl. ÚS 19/08; the same applies to the arguments
raised concerning the alleged conflict of Article 216 of the TFEU with
those same provisions of the Constitution (regarding this alleged ground
cf. point 31 of this judgment); in this regard the petitioners do not
in any way disguise the fact that they are asking the Constitutional
Court to reevaluate its conclusion stated in judgment Pl. ÚS 19/08, in
points 176 to 186. Therefore, the Constitutional Court must deny these
petitions on the basis of § 35(2) of the Act on the Constitutional
Court, as impermissible. The related petition for review of Article 3 of
the TFEU cannot be denied on that basis, because the Constitutional
Court did not explicitly consider it in its judgment Pl. ÚS 19/08.
However, at this point the Constitutional Court refers to the same
points of judgment Pl. ÚS 19/08, which also apply to review of the
conformity of Article 2 and 4 of the TFEU with the constitutional order,
and which also apply fully to Article 3 of the TFEU.
102.
On the other hand, although Article 7 of the TEU was already
subject to review in the proceedings file no. Pl. ÚS 19/08, the
Constitutional Court did not consider the ground for its possible
conflict with Article 1(1) and Article 2(3) of the Constitution, raised
by the petitioners in the present proceeding (regarding these alleged
grounds, cf. points 11 and 81 of this judgment and points 205 to 210 of
judgment Pl. ÚS 19/08). Therefore, the impediment of rei iudicatae does
not prevent further review of it in this proceeding.
103.
The impediment of rei iudicatae also applies to the president’s
brief, in which he formulates “five questions”, and states that he “did
not get a complete and convincing answer to them in the proceeding or
later”. As the Constitutional Court already stated above in point 99 of
this judgment, it is not the role of the Constitutional Court to answer
questions, but to make authoritative rulings; in this case on the
conformity of an international treaty with the constitutional order. The
Constitutional Court has already made an enforceable decision regarding
the doubts that the president returns to in his brief, in judgment Pl.
ÚS 19/08, and can only refer to that judgment (see points 104 and 105
below).
104.
This applies to the first question, concerning the sovereignty of
the Czech Republic (where the Constitutional Court also refers to part
of the reasoning of this judgment, points 146 to 150, which concerns
those petitioners arguments that overlap with the question posed by the
president). Regarding the second question, concerning the effects of
norms of European Union law on the domestic level, where the president
himself, in his brief, mentions judgment file no. Pl. ÚS 50/04 dated 8
March 2006 (N 50/40 SbNU 443; 154/2006 Coll.), which provides the
requested answer, the Constitutional Court only adds a reference to
point 113 of its judgment Pl. ÚS 19/08, and points out that the direct
domestic effects of community law were established for the Czech
Republic at the moment when it joined the EU, and they cannot, under any
circumstances, be derived from the Treaty of Lisbon. Regarding the
third question, concerning the Charter of Fundamental Rights of the
European Union (where the Constitutional Court refers to points 190 to
204 of judgment Pl. ÚS 19/08, and especially point 204, where the
Constitutional Court explicitly states that it “ did not find
incorporation of the Charter of Fundamental Rights of the EU into the
area of European primary law to in any way cast doubt upon or
problematise the standard of domestic protection of human rights and to
thereby be inconsistent with the constitutional order of the Czech
Republic”), the Constitutional Court thus now adds that the question
posed by the president in his brief is, in terms of reviewing conformity
of the Charter of Fundamental Rights of the European Union with the
constitutional order, completely irrelevant. Regarding the fourth
question, concerning the character of the European Union (which the
president also addressed in the supplement to his brief, recapitulated
in point 72 of this judgment, and to which the president’s attorney
returned in the hearing – cf. point 92 of this judgment), we can refer
to point 104 of judgment Pl. ÚS 19/08. Finally, regarding the fifth
question, whether consent to ratification of the Treaty of Lisbon must
be given in a referendum pursuant to constitutional Act no. 515/2002
Coll., the Constitutional Court refers to point 212 of judgment Pl. ÚS
19/08 and adds that a general constitutional act was not adopted for the
process of ratifying international treaties pursuant to Article 10a of
the Constitution, and the choice of the manner of consent (by referendum
or by consent of both chambers of Parliament) remains, for all future
cases, in the hands of the legislative assembly. In conclusion, the
Constitutional Court points out that answers to the president’s
questions, which he interprets as supporting arguments for complete
review of the Treaty of Lisbon, can be derived with the help of standard
methods of interpretation, from those parts of the judgment to which it
referred above, and it does not believe that it is necessary to analyse
them more widely (even if this were not barred in many aspects by the
impediment of rei iudicatae described above).
B.
Petition for Review of the Treaty of Lisbon and the Treaties that It Amends, as a Whole
105.
In addition to the individual articles of the Treaty of Lisbon,
the petitioners contest the constitutionality of the Treaty of Lisbon,
but also of the TEU and of the TFEU, “as a whole” (see points 6 to 9 of
this judgment). Yet, in judgment Pl. ÚS 19/08 the Constitutional Court
refused to review the entire Treaty of Lisbon (also supported by the
government and the president in their briefs). Instead, the
Constitutional Court, in point 74, of the judgment, inclined to the
conclusion (arising by analogy from its settled case law in the area of
review of legislation, especially from judgment file no. Pl. ÚS 7/03,
Collection of Decisions of the Constitutional Court, volume 34, judgment
no. 113, p. 180–181, promulgated as no. 512/2004 Coll.), that it
focuses only on the provisions of the international treaty that were
formally contested and grounds therefor provided in the petition. A
proceedings to review the constitutionality of statutes pursuant to §
64(1) of the Act on the Constitutional Court is of a similar nature;
there the Constitutional Court has said, for example, that even though
it is bound only by the proposed verdict of the petition, and not by its
reasoning, when evaluating the constitutionality of a regulation, that
does not mean that a petitioner in a proceeding on the review of norms,
if arguing on the basis that the content of a legal regulation is
inconsistent with the constitutional order, does not have the burden of
allegation. If the petitioners object that the content of a statute is
inconsistent with the constitutional order, for purposes of
constitutional review it is not enough to name the act or individual
provisions thereof whose annulment is sought; it is necessary to also
state the grounds for the alleged unconstitutionality. In a review, the
Constitutional Court is not bound by these grounds; it is bound only by
the proposed verdict, but not by the scope of review resulting from the
grounds contained in a petition for review of a norm.
106.
However, in contrast to the petition submitted by the Senate in
the proceeding file no. Pl. ÚS 19/08, in this present proceedings the
petitioners have submitted specific grounds why both the Treaty of
Lisbon and the TEU and the TFEU should be reviewed as a whole for lack
of conformity with the constitutional order of the Czech Republic.
Insofar as an “epistemological” argument was also supporting argument
for denying the first petition for overall review of the Treaty of
Lisbon [see point 75 of judgment Pl. ÚS 19/08: “an attempt at a complete
constitutional review, nota bene with the consequences of the
impediment of rei iudicatae, especially with lengthy normative texts, is
barred by the epistemological argument (epistemologically
unfulfillable)”], here the a requirement to make specific the petition
for review of treaties as a whole has been met.
107.
The possible review of the treaties as a whole is also supported by
the fact that the normative significance of an international treaty
cannot be derived only from its individual provisions, but also (among
other things) from its overall system. The normative significance of an
international treaty is not a mere sum of the significance of its
individual provisions. Also, the Constitutional Court itself confirmed
the importance of the system of an international treaty for review of
its constitutional in judgment Pl. ÚS 19/08, point 78, when it stated
(regarding the possible definition of the impediment of rei iudicatae):
“if a petition is submitted for review of a new (different) treaty
document (whose content is fully or partly identically with the Treaty
of Lisbon), then the issue will not be (or need not be) one of an
identical matter, but an identical problem. However, provisions in such a
new treaty document with the same content may also appear in the new
text with different functional connections, etc., than is the case now
…”.
108.
However, as regards the petitions for overall review of the TEU and
of the TFEU, the Constitutional Court is authorised to perform such a
review only to the extent to which the Treaty of Lisbon as a whole
amends them. On the contrary, in view of the fact that both the Treaty
on European Union and the Treaty establishing the European community, in
their present versions, based on the Treaty between the Kingdom of
Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the
Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland,
the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the
Netherlands, the Republic of Austria, the Portuguese Republic, the
Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great
Britain and Northern Ireland (Member States of the European Union) and
the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the
Republic of Latvia, the Republic of Lithuania, the Republic of Hungary,
the Republic of Malta, the Republic of Poland, the Republic of
Slovenia, the Republic of Slovakia concerning the Accession of the Czech
Republic, the Republic of Estonia, the Republic of Cyprus, the Republic
of Latvia, the Republic of Lithuania, the Republic of Hungary, the
Republic of Malta, the Republic of Poland, the Republic of Slovenia, and
the Republic of Slovakia to the European Union, which was signed in
Athens on 16 April 2003 (published as no. 44/2004 Coll. of International
Treaties, the “Accession Treaty”), must be considered ratified
international treaties pursuant to Article 87(2) of the Constitution,
their review is at this point ruled out ( cf. judgment Pl. ÚS 19/08,
points 79 to 87).
109.
Thus, the Constitutional Court did not find grounds to a priori deny
review of the Treaty of Lisbon as a whole, if relevant constitutional
law arguments in that regard are raised by the petitioners. However, in
that regard the Constitutional Court must point out the substantive
limits of its review, which arise from its position in the
constitutional system of the Czech Republic.
110.
In the introductory part of their petition, the petitioners
state that “Unfortunately, the Constitution does not precisely define
the essential requirements for a democratic state governed by the rule
of law” (point 13 of the petition). According to the petitioners, the
Constitutional Court “has already addressed that principle several times
[here the petitioners refer to judgment file no. Pl. ÚS 19/93 dated 21
December 1993 (N 1/1 SbNU 1; 14/1994 Coll.), judgment file no. III. ÚS
31/97 dated 29 May 1997 (N 66/8 SbNU 149) and judgment file no. Pl. ÚS
42/2000 dated 24 January 2001 (N 16/21 SbNU 113; 64/2001 Coll.)], it too
has not given a complete, comprehensive, and conclusive interpretation,
that would in the future be resistant to immediate political pressure
and ad hoc interpretations influenced by cases at issue at a particular
time” (point 13 of the petition). In point 49 of the petition the
petitioners ask the Constitutional Court to set “substantive limits to
the transfer of powers”, and in point 51 to 56 they attempt to formulate
these themselves, evidently inspired by the decision of the German
Constitutional Court dated 30 June 2009, 2 BvE 2/08, available at
www.bverfg.de/entscheidungen/es20090630_2bve000208.html), which
provides such a catalogue in point 252 (cf. especially points 51 to 56
of the petition).
111.
However, the Constitutional Court does not consider it possible,
in view of the position that it holds in the constitutional system of
the Czech Republic, to create such a catalogue of non-transferrable
powers and authoritatively determine “substantive limits to the transfer
of powers”, as the petitioners request. It points out that it already
stated, in judgment Pl. ÚS 19/08, that “These limits should be left
primarily to the legislature to specify, because this is a priori a
political question, which provides the legislature wide discretion”
(point 109). Responsibility for these political decisions cannot be
transferred to the Constitutional Court; it can review them only at the
point when they have actually been made on the political level.
112.
For the same reasons, the Constitutional Court does not feel
authorised to formulate in advance, in an abstract context, what is the
precise content of Article 1(1) of the Constitution, as requested by the
petitioners, supported by the president, who welcomes the attempt “in a
final list to define the elements of the ‘material core’ of the
constitutional order, or more precisely, of a sovereign democratic state
governed by the rule of law”, and states (in agreement with the
petitioners) that this could “limit future self-serving definition of
these elements based on cases being adjudicated at the time” (point 69
of this judgment).
113.
The Constitutional Court believes that it is specific cases that can
provide it a relevant framework in which it is possible, case by case,
to interpret more precisely the meaning of the term “sovereign, unitary
and democratic state governed by the rule of law, founded on respect for
the rights and freedoms of the man and of citizens”. The Constitutional
Court has already done so in the decisions cited by the petitioners
themselves (see above, point 110 of this judgment), or, e.g. in judgment
file no. Pl. ÚS 36/01 dated 25 June 2002 (N 80/26 SbNU 317; 403/2002
Coll.), and most recently in judgment file no. Pl. ÚS 27/09 dated 10
September 2009 (318/2009 Coll.). This does not involve arbitrariness,
but, on the contrary, restraint and judicial minimalism, which is
perceived as a means of limiting the judicial power in favour of
political processes, and which outweighs the requirement of absolute
legal certainty (cf. especially Sunstein, C. R.: One Case at a Time:
Judicial Minimalism on the Supreme Court, Cambridge, Harvard University
Press, 1999, pp. 209–243, directly concerning the relationship between
judicial minimalism and the requirement of legal certainty). The attempt
to define the term “sovereign, unitary and democratic state governed by
the rule of law, founded on respect for the rights and freedoms of the
man and of citizens” once and for all (as the petitioners, supported by
the president, request) would, in contrast, be seen as an expression of
judicial activism, which is, incidentally, consistently criticized by
certain other political figures.
114.
However, as is also evident from the further reasoning, many of the
petitioners’ arguments are in fact directed against selected articles of
the Treaty of Lisbon (or the treaties that it amends). The
Constitutional Court dealt with them accordingly.
C.
Limiting
the Possibility of Unconstitutional Abuse of the Proceeding pursuant to
Article 87(2) of the Constitution and Permissibility of Supplementing
the Petition
115.
Regarding the governments’ objection (points 40 and 41 of this
judgment), the Constitutional Court was also forced to consider the
question of whether a widely conceived participation in proceedings on
the constitutionality of international treaties, opening procedural
space to raise the parties doubts concerning an as yet ungratified
international treaty progressively for individual potential petitioners
(cf. point 98 of this judgment), does not, on the other hand, create an
intolerable risk of abuse of procedural mechanisms before the
Constitutional Court, abuse that would conflict with the very purpose of
this proceeding. The fact that this is not a hypothetical consideration
is also supported by the public, generally known statements from some
of the senators who are petitioners in this proceedings, indicating that
they joined the group with an obstructionist motivation, in an attempt
to prevent ratification of the international treaty for reasons other
than constitutional law ones. Submitting frivolous or fraudulent
petitions to open proceedings and abusing the judicial procedure for
protecting constitutionality can undoubtedly also be penalized by
denying such petitions due to their being obviously unjustified, or for
abuse of the right to submit a petition to open proceedings, or also
through other disciplinary measures (§ 61 of the Act on the
Constitutional Court), but this solution need not always be usable.
116.
The purpose of a proceedings on the conformity of an international
treaty with the constitutional order is to preventively eliminate the
risk that the Czech Republic will assume an international obligation
that would be in conflict with the constitutional order, or to remove
doubts on the conformity of the international treaty with the
constitutional order before the treaty becomes binding on the Czech
Republic in international law, and legally binding domestically within
the Czech Republic, because after that the possibilities for resolving a
conflict between the treaty and the constitutional order are
significantly limited (cf. Wagnerová E., Dostál M., Langášek T.,
Pospíšil I.: Zákon o Ústavním soudu s komentářem [The Act on the
Constitutional Court, with Commentary], Prague, ASPI a. s., 2007, pp.
298, 309–310). Given the nature of the matter, it is necessary to remove
such doubts without undue delay. At the level of international law,
just by negotiating an international treaty the parties assume an
obligation that they will not disproportionately draw out their
definitive decision to accept or not accept the treaty, which follows
from the principle of good faith (cf. Potočný, M. Mezinárodní právo
veřejné. Zvláštní část [Public International Law, Special Section] 1st
ed. Prague, C. H. Beck, 1996, p. 161). Connected to this at the level of
domestic, or constitutional law, this is the president’s obligation,
without undue delay to ratify an international treaty (i.e. formally
confirm externally the proper conduct of the domestic approval
procedure) that was duly negotiated by the president, or by the
government, based on his authorisation, and whose ratification has been
consented to by a democratically elected legislative assembly, in
particular in the case of an international treaty pursuant to Article
10a of the Constitution approved by a qualified constitutional majority
of deputies and senators. It is only a proceeding before the
Constitutional Court pursuant to Article 87(2) of the Constitution,
which, in view of the appropriately raised doubts on the conformity of
an international treaty with the constitutional order ex constitutione
that postpones the moment of ratification until the time after these
doubts are removed by an authoritative decision of the Constitutional
Court, or, if conflict is found, after the conflict is removed by an
amendment to the constitutional order (§ 71e(3) of the Act on the
Constitutional Court).
117.
The requirement to remove without undue delay doubts on the
conformity of an international treaty with the constitutional order is
procedurally reflected in § 71d(1) of the Act on the Constitutional
Court, pursuant to which the Constitutional Court is required to treat a
petition as urgent, i.e. address it without undue delay, and out of the
order in which it was received, if any of the parties to the proceeding
so requests, and also in strengthening the principle of the procedural
efficiency, which arises from § 71d(2) of the Act on the Constitutional
Court, pursuant to which the Constitutional Court is required to address
a petition and decide on it without further petitions. Of course, this
does not affect the authorisation of the plenum of the Constitutional
Court to conclude that it is necessary to address a matter as urgent
based on its own discretion, pursuant to § 39 of the Act on the
Constitutional Court, which also happened in this case by resolution of
the Constitutional Court dated 29 September 2009.
118.
As regards periods for submitting a petition to open proceedings
on the conformity of an international treaty with the constitutional
order, the Act on the Constitutional Court explicitly regulates only
when they start for individual potential petitioners [cf. § 71a(1)(a)
and (d) of the Act on the Constitutional Court, arg. “… from the moment
when …”]; the ending of these periods is then defined, given the nature
of the matter, by the moment when an international treaty is ratified
[resolution file no. Pl. ÚS 1/04 dated 4 March 2004 (U 11/32 SbNU 519)],
because this is a matter of preventive review, before ratification (cf.
Article 87(2) of the Constitution); in that sense an explicit statement
of the ending of a period in the text of the Act on the Constitutional
Court would be a superfluous statement of the obvious [cf. § 71a(1) (d)
of the Act on the Constitutional Court, compared to § 71a(1)(b) and
(c)]. Thus, this period definitively limits the time in which the
Constitutional Court has authority to preventively consider an
international treaty, and thus also the time in which it can receive a
petition to open proceedings from any of the possible petitioners.
119.
The interpretation that a petition to open proceedings pursuant to §
71a(b), (c) and (d) of the Act on the Constitutional Court is not
limited by any deadline, that these petitioners can postpone submitting a
petition as they wish, would come into an insoluble conflict with the
requirement that the president ratify an international treaty without
undue delay – as soon as all impediments have been removed. In view of
the purpose of the proceeding defined above, the Constitutional Court
necessarily had to conclude that opening proceedings on the conformity
of international treaties by a group of senators, a group of deputies,
and the president, must be limited by the same deadline by which an
international treaty must be ratified, i.e. the deadline of “without
undue delay”.
120.
The deadline of “without undue delay” naturally does not mean
immediately; otherwise it would never be possible to effectively open
proceedings before the Constitutional Court and the entire preventive
review of constitutionality would be limited to cases when a chamber of
Parliament turns to the Constitutional Court even before it itself
consents to ratification of a treaty. Such an interpretation would quite
obviously go against the purpose of defining party status in § 71a(1)
of the Act on the Constitutional Court, and ultimately also against a
broad understanding of it, which the Constitutional Court itself reached
in its previous judgment, Pl. ÚS 19/08. Therefore, appropriately
postponing ratification, i.e. postponing the moment when it is no longer
possible to turn to the Constitutional Court, cannot be described as
undue delay. Thus, from the point of view of the Constitution, it is
completely correct if the president postpones delaying ratification of
an international treaty for an appropriate time so that, during that
time, deputies or senators with a minority opinion can effectively
exercise their rights before the Constitutional Court, with the aim of
eliminating doubts about the constitutionality of the international
treaty. The same applies if the president himself has doubts about the
constitutionality of an international treaty and postponed ratification
by an appropriate period so that he himself could, in that time, contest
the international treaty before the Constitutional Court. However,
evaluation of the appropriateness of that delay must reflect the fact
that the text of an international treaty is already fixed at the time
when it is submitted to Parliament for it to consent to ratification, so
that all deputies and all senators can become familiar with it in
detail; from that moment one can also presume that opposing views as to
its constitutionality will appear (cf. judgment Pl. ÚS 19/08, point 75).
As regards the president, we must be added that he knows the contents
of an international treaty even earlier, because he negotiated it, or
the government negotiated it based on his authorisation, as his alter
ego.
121.
In this case, the Treaty of Lisbon was negotiated by the government of
the Czech Republic on 13 December 2007 in Lisbon. It was presented to
the Chamber of Deputies and to the Senate, with a request that they
consent to its ratification, on 29 January 2008. The Chamber of Deputies
consented to ratification of the Treaty of Lisbon on 18 February 2009,
and the Senate on 6 May 2009. Thus, from that day groups of deputies and
senators (and the president from the moment when the Treaty of Lisbon
was presented to him for ratification) authorised to petition the
Constitutional Court to review the conformity of the Treaty of Lisbon
with the constitutional order. The petitioner – a group of senators –
did not submit its petition until 29 September 2009, i.e. more than one
and a half years after the Treaty of Lisbon was presented to the
senators, and almost five months after the group acquired active
procedural standing. Such a period of time – a matter of months, and not
merely weeks – undoubtedly is not appropriate, and therefore the
petition to open this proceeding was not filed without undue delay.
However, the Constitutional Court did not deny the petition to open
proceedings on those grounds, this time, because it does not wish to
retroactively burden the petitioners with an interpretation of
procedural rules that regulate access to the Constitutional Court and
the deadlines on which the Constitutional Court made a finding in this
decision.
122.
The Constitutional Court also considers it appropriate to emphasize
that a proceeding on the conformity of an international treaty with the
constitutional order is, as regards the method of review and the
procedural regime, analogous to a proceeding on annulment of a statute
or other legal regulation due to conflict (inconsistency) with the
constitutional order, or with a statute. Therefore, analogous procedural
rules apply. In this proceeding, the principle of procedural
efficiency, as described above [see point 117 of this judgment and
judgment file no. Pl. ÚS 7/03 dated 18 August 2004 (N 113/34 SbNU 165,
s. 185–186; 512/2004 Coll.)] applies. The Constitutional Court is
required to review the petition and complete proceedings on it without
regard to other petitions. After submitting the petition to open
proceedings the petitioners no longer control the petition. For that
reason, withdrawing the petition to open proceedings, just as in
proceedings to annul a statute, is not possible, any perceived or actual
changes in the group of senators, termination of a mandate of some of
them, or a change of opinion or subsequently announced support and
“joining” of others have no effect on the proceeding that has been
properly opened. For that reason, a change of the petition is also
impermissible, whether in the form of expanding or narrowing the
petition request (the statement of claim). Expanding the petition would
have to be classified as another new petition, which must meet all the
requirements and conditions as the petition itself. Where a new petition
to open proceedings overlaps with the original petition, on which a
proceeding is already in progress, proceeding pursuant to [§ ] 35(2) of
the Act on the Constitutional Court would be appropriate, i.e. denying
that part as impermissible due to the impediment of lis pendens, where
the denied petitioner then has a right to take part in the previously
opened proceeding as a secondary party.
123.
The supplement to the petition, which the group of senators
submitted subsequently, after another two weeks, and also the second
supplement, not submitted until the hearing before the Constitutional
Court, are, in their content, expansions of the petition, because the
petitioners seek review of other articles of the international treaty
(thus, this is not merely developing or elaborating arguments, which may
take place during the entire course of the proceeding, including the
closing arguments). However, in this case the Constitutional Court
procedurally accepted the supplement to the petition for reasons
analogous to those for which it accepted the original petition, although
it was submitted a long time after the deadline for submitting had
passed. In this situation, partial denial of this supplement (in the
scope of the original petition) as impermissible due to the impediment
of lis pendens (§ 35(2) of the Act on the Constitutional Court) and
reviewing the new expanding statement of claim as a completely new
petition, which in the end would have to be – due to the connected
content – joined to the original proceedings, would not be procedurally
efficient. In the future, however, such a supplement would necessarily
be penalized by a conclusion that it was late, and the Constitutional
Court would deny such a petition.
124.
In this regard the Constitutional Court emphasizes that the
petitioners’ repeated statements about the time pressure in which the
petition was prepared, which are supposed to justify the two supplements
to the petition, cannot be accepted. As the Constitutional Court
already stated above, the Treaty of Lisbon was presented to the Chamber
of Deputies and to the Senate with a request for its ratification on 29
January 2008. As is clear from the briefs of the representatives of both
chambers of Parliament (points 37 and 38 of this judgment), questions
of the possible conflict of the Treaty of Lisbon with the constitutional
order were intensively discussed at the meetings of both chambers, and
in the case of the Senate they even led to submission of a petition for
review of the treaty by the Constitutional Court (Senate resolution 379
from its 13th session, on 24 April 2008; the Constitutional Court rule
by judgment Pl. ÚS 19/08 on 26 November 2008). The Constitutional Court
considers it obvious that the senators who later, as a group, submitted
this petition, in accordance with their constitutional obligations, did
not begin to consider possible grounds for conflict of the Treaty of
Lisbon with the constitutional order (supported by relevant
constitutional law arguments that would stand up in proceedings before
the Constitutional Court) only at the moment when the Senate consented
to ratification of the Treaty of Lisbon, but long before that, from the
moment when the treaty was presented to the Senate. Otherwise they could
not conduct proper debate and later vote on the treaty. In this
context, the Constitutional Court points out that in proceedings before
it, although they may touch on political questions, it is necessary to
apply arguments that are relevant to constitutional law, and not mere
impressions, as the petitioners do, e.g. in evaluating the previous
judgment, Pl. ÚS 19/08, and the standard of review that the
Constitutional Court applied in it (see point 32 of this judgment). The
petitioners “impression”, in no way substantiated, that it has been
“decided in advance” (ibid.), must be described as completely
unacceptable and bordering on a grossly insulting submission pursuant to
§ 61(1) of the Act on the Constitutional Court.
V.
The Review
A.
Prohibition of Retroactivity
125.
The petitioners claim that the Treaty of Lisbon as a whole is in
conflict with Article 1(1) of the Constitution, specifically with the
prohibition of retroactivity (the petitioners develop their
understanding of it in point 18 of their petition), because the
authorities of the European Union, responsible for publishing the
Official Journal of the EU, will be able to make changes, supplementally
and during the approval of the Treaty of Lisbon for purposes of
correcting errors that are found in it or in the existing treaties
(further regarding this alleged ground see point 6 of this judgment).
126.
The Constitutional Court first points out that the only version
of the Treaty of Lisbon that will be, if it enters into force, binding
in the Czech Republic, will be published, in accordance with Article 10,
in conjunction with Article 52(2) of the Constitution and Act no.
309/1999 Coll., on the Collection of Laws and the Collection of
International Treaties, in the Collection of International Treaties, not
in the Official Journal of the EU. This is supported by the fact that
both the Treaty of Lisbon as well as the consolidated versions of the
TEU and of the TFEU were published in Series C of the Official Journal
of the EU, where only information and announcements are published, not
binding legislation (cf. Bobek, M.: K absenci řádného vyhlášení
komunitární legislativy v jazycích nových členských států [Regarding the
Absence of Publication of Community Legislation in the Languages of New
Member States], Soudní rozhledy [Judicial Perspectives], yr. 2006, no.
12, pp. 449–462, p. 450).
127.
Any changes made in the version of the Treaty of Lisbon published in
the Official Journal of the EU cannot directly (without anything
further) affect the version published in the Collection of International
Treaties. If, at a time when the Treaty of Lisbon is in force,
linguistic changes are actually made in it, they would have to be
published in the Collection of International Treaties in order to be
effective in the Czech Republic. Moreover, such changes are implemented
by a protocol, to which all signatory states must consent, and they are
governed by a procedure presupposed by Article 79 of the Vienna
Convention. This has happened several times in the case of linguistic
changes made in the text of the Accession Treaty – cf. e.g.,
notification of the Ministry of Foreign Affairs no. 64/2009 Coll. of
International Treaties. The Constitutional Court would have to review
the question of the chronological effects of any such changes in
relation to the nature of the changes made and in view of the nature of
the addressees of the norms that would be affected by the changes to the
relevant article of the treaty.
128.
Likewise, conflict with the prohibition of retroactivity (if one
can even speak of such conflict with an international treaty that is
not even binding yet) if linguistic changes are made during the course
of approving treaties. In such a case too the signatory states are
informed about the proposed changes, and must consent to them. It is the
government’s obligation to inform Parliament about these changes. The
petitioners nowhere state that any changes actually occurred about which
Parliament was not be informed.
129. Thus, the Treaty of Lisbon as a whole is not in conflict with the prohibition of retroactivity.
B.
Formal Requirements on Treaty Articles
130.
According to the petitioners, the Treaty of Lisbon as a whole is in
conflict with Article 1(1) of the Constitution also because “it does not
comply with the requirements of adequate comprehensibility and clarity
of a legal act” The petitioners especially object to the absence of an
“authentic consolidated version” of the TEU and of the TFEU during the
process of approval of the Treaty of Lisbon by Parliament, and also
point to the extent of changes that the treaty introduces (further to
this alleged ground see point 6 of this judgment). The petitioners also
raise objections concerning conflict with the requirements of “adequate
comprehensibility and lucidity of legislation”, based on Article 1(1) of
the Constitution, regarding Article 7, 8, Article 17(1) and 3 and
Article 21(2)(h) of the TEU as well as Article 78(3) of the TFEU
(further to these alleged grounds see points 11, 12, 14, 16, and 19 of
this judgment).
131.
In points 14 to 26 of their petition the petitioners present their
understanding of the principles of a state governed by the rule of law,
contained in Article 1(1) of the Constitution, from which they derive
the lack of conformity of the Treaty of Lisbon as a whole, as well as
the abovementioned provisions, with Article 1(1) of the Constitution.
They also refer to judgment file no. Pl. ÚS 77/06 dated 15 February 2007
(N 30/44 SbNU 349; 37/2007 Coll.), in which the Constitutional Court
annulled certain provisions of Act no. 443/2006 Coll., because they were
impermissible “legislative riders”, i.e. amending proposals that are
not related to the proposed legislation (it was the lack of related
content of the amending proposal and the proposed legislation that was
the ground for derogation of the contested provisions of Act no.
443/2006 Coll.).
132.
However, one cannot derive from that judgment a requirement that
Parliament have an “authentic consolidated version” at its disposal
during the approval process of an international treaty (if one can even
speak of such a thing in relation to a treaty that has not yet entered
into force), or even a version with the changes marked, as the
petitioners ask in point 69 of their petition. In that judgment the
Constitutional Court stated certain principles that the legislative
process must meet from a constitutional point of view (especially in
points 36 to 48). However, in that regard it did not find that they were
violated in the approval process of approval of the Treaty of Lisbon by
Parliament. Moreover, as is evident from Chamber of Deputies
Publication no. 407 (available at
www.psp.cz/sqw/historie.sqw, the government
presented to Parliament not only the text of the Treaty of Lisbon
itself, but also a consolidated version of the treaties that the Treaty
of Lisbon amends. In this regard, the process of approval of the treaty
by parliament could not be affected by defects that would cast doubt on
the conformity of the treaty’s ratification with the constitutional
order of the Czech Republic. Moreover, as the government states in point
12 of its brief (cf. point 44 of this judgment), “the lack of an
official consolidated version of the founding treaties reflecting the
changes pursuant to the Treaty of Lisbon does not support the
petitioners’ conclusion, but, on the contrary, appears quite logical,
because the subject matter of ratification in Member States is precise
the Treaty of Lisbon, which amends the founding treaties”. The
Constitutional Court agrees with the government on the conclusion that
“if an official consolidated version existed, it would, on the contrary,
create uncertainty as to what is to be the subject matter of
ratification in all the Member States, and which of the two texts has
precedence in the (hypothetical) event that they are inconsistent”.
133.
Likewise, one cannot derive from the cited judgment a requirement for
“appropriate generality and comprehensibility” of legislation, as the
petitioners formulate it in relation to the contested articles of the
Treaty of Lisbon. The contested articles of the TEU are components of
treaties that form the very foundations of the European Union, and
express its values and objectives. Thus, by the nature of the matter,
they are stated at a higher level of generality – similarly to, e.g.
provisions of the constitutional order of the Czech Republic, which are
given a specific content in particular situations by authorities
applying the law, and to which particular procedures and methods of
interpretation react (cf. e.g. Holländer, P. Ústavněprávní argumentace
[Constitutional Law Arguments]. Prague, Linde, 2003, pp. 24–61). In this
regard we must also emphasize that the subject of review is an
international treaty to which one cannot apply requirements that the
Constitutional Court applies to domestic legislation in accordance with
constitutional principles. On the contrary, a greater degree of
generality, declaration, and indefiniteness is typical of international
treaties, as the Constitutional Court already stated in point 186 of
judgment Pl. ÚS 19/08. Thus, the Constitutional Court did not find that
the contested articles violate provisions of the constitutional order,
to which the petitioners refer.
C.
Democracy in the European Union
134.
Regarding the question of a “democratic deficit” in the
decision-making process in the European Union, and its conflict with the
principles of a democratic state and the separation of powers, which
the petitioners seek in Article 1(1) of the Constitution, and the
possibility of removing it through a “special mandate” (regarding this
alleged ground see point 7 of this judgment), we must first point out
that the Treaty of Lisbon in no way prevents Member states from
regulating these institutions on a domestic level, which is also proved
by the practices of individual Member states in questions of inspection
of government conduct in the European Union by domestic legislative
assemblies (cf. e.g. Kiiver, P. The National Parliaments in the European
Union: A Critical View on EU Constitution-Building. Kluwer Law
International, Haag, 2006). just as the Constitutional Court did not
condition the constitutionality of ratifying the Treaty of Lisbon on the
adoption of domestic procedures on decisions that may be adopted on the
basis of Article 48(6) and (7) of the TEU (although it expressly
formulated its concerns about the absence of them), the absence of
control mechanisms that the Treaty of Lisbon does not limit in any way
cannot be grounds from conflict of the Treaty of Lisbon itself with the
constitutional order of the Czech Republic.
135.
At the same time, the Constitutional Court does not overlook the
tendency toward a strengthening of the position of the parliaments of
Member States in decision-making processes at the European Union level,
of which the Treaty of Lisbon is an example (cf. e.g., the background
report to the bill adopted as Act no. 162/2009 Coll., amending Act no.
90/1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as
amended by later regulations, and Act no. 107/1999 Coll., on the Rules
of Procedure of the Senate, as amended by later regulations, Chamber of
Deputies Publication no. 742, available at
www.psp.cz/sqw/historie.sqw and its own judgment
Pl. ÚS 19/08, points 153 and 173–175).
136.
Finally, the Constitutional Court adds that it is precisely the
essence of transfer of powers of the authorities of the Czech Republic
that, rather than Parliament (or other authorities of the Czech
Republic), it is the international organisation to which these powers
were transferred that exercises tem. The Constitutional Court
comprehensively defined the conditions fro conformity of such a transfer
with the constitutional order in points 88 to 120 of judgment Pl. ÚS
19/08, where it also did not find that these conditions were violated in
the case of the Treaty of Lisbon. It has also emphasised at several
points in that judgment that it is prepared to intervene in the extreme
case that these conditions are violated (cf. especially points 120, 139,
196 and 197 of the cited judgment).
137.
The petitioners’ argument regarding conflict of Article 10(1) of the
TEU with Article 1(1) and Article 10a of the Constitution (see point 13
of this judgment) can also be tied to the abovementioned criticism of
the Treaty of Lisbon. Insofar as that article of the TEU provides that
“The functioning of the Union shall be founded on representative
democracy”, that does not mean that only processes at the European level
should ensure fulfilment of that principle. That article is directed at
processes both on the European and the domestic level, not only at the
European Parliament, as stated by the German Constitutional Court in
point 280 of its decision cited above, to which the petitioners refer in
point 112 of their petition (although they themselves refer to point
271 of that decision).
138.
The Advocate General of the European Court of Justice, Poiares
Maduro, recently stated a similar opinion in his brief dated 26 March
2009 in the matter Commission v Parliament and Council, C-411/06, as yet
unpublished in the European Court Reports, note no. 5:
“Democracy
… has a number of forms, especially in the Community. At the level of
the Community, democratic legitimacy has two main sources: it is either
ensured in the Council, where it comes from the European nations through
the positions taken by their governments, under the control of the
national parliaments, or it is ensured by the Parliament, which is a
European body with direct representation, and the Commission, which is
directly answerable to the Parliament. Direct democratic representation
is indisputably a relevant measure of European democracy, but it is not
the only one. European democracy also involves a delicate balance
between national and European dimensions of democracy, without one
necessarily outweighing the other. Therefore, the Parliament does not
have the same authority in the legislative process as national
parliaments, and although one could defend increasing its powers, it is
left up to the European nations to decide themselves, by amending
treaties. Over time a balance has evolved between the powers entrusted
to the Parliament and other authorities, which is expressed according to
the will of the European nations through various normative procedures,
and reflects the balance between national and European instruments
authorising the exercise of power on the European level”.
139.
In other words, the democratic process on the Union and domestic
levels mutually supplement and are dependent on each other. The
petitioners are mistaken when they claim that “representative democracy
can exist only within states, within sovereign subjects”. The principle
of representative democracy is one of the standard principles for the
organisation of larger entities, both inter-state and non-state
organisations. The existence of elements of representative democracy on
the Union level does not rule out implementation of those same elements
presupposed by the constitutional order of the Czech Republic, nor does
it mean exceeding the limits of the transfer of powers established by
Article 10a of the Constitution.
140.
For similar reasons, one cannot see conflict of Article 14(2) of
the TEU, which governs the number of members of the European Parliament,
with the principle of equality set forth in Article 1 of the Charter,
as the petitioners claim (regarding this alleged ground, see point 85 of
this judgment). As pointed out above, the European Parliament is not
the exclusive source of democratic legitimacy for decisions adopted on
the level of the European Union. That is derived from a combination fo
structures existing both on the domestic and on the European level, and
one cannot insist on a requirement of absolute equality among voters in
the individual Member States. That would exist only if decisions in the
European Union were adopted with the exclusion of legitimating ties to
governments, and especially to legislative assemblies in the individual
Member States. Of course, as the Constitutional Court pointed out in
this section of the judgment, above, the opposite is true.
D.
“Political Neturality”
141.
The petitioners point to Article 3 of the TEU, which defines the
objectives of the European Union, and claim that they contravene the
“principle of political neutrality”, which the petitioners seek in
Article 1(1) of the Constitution as well as in Article 2(1) of the
Charter (further to this alleged ground see point 8 of this judgment).
Although the petitioners rely on these norms of the constitutional order
as grounds for conflict of the TEU as a whole with the constitutional
order, it is obvious from their arguments that they are contesting only
Article 3 of the TEU, not the TEU as a whole. The petitioners present
analogous arguments in relation to Article 17(3) of the TEU (which sets
“European commitment” as one of the requirements for members of the
Commission; further to this argument cf. point 14 of this judgment) and
in relation to Article 21(2)(h) of the TEU (which sets promoting an
international system based on stronger multilateral cooperation good
global governance as an objective of European Union policy in the area
of international relations; further to this argument see point 16 of
this judgment).
142.
However, the Constitutional Court does not agree with that
understanding of the cited articles. The prohibition of tying the state
to an ideology or religion does not mean an absence of values and ideas
in the Constitution and the entire constitutional order, or norms that
are applied on their basis – such as, for example, the legal order of
the European Union. The Constitutional Court has already stated, at the
very beginnings of its functioning, that “the Constitution is not
founded on neutrality with regard to values, it is not simply a mere
demarcation of institutions and processes, rather it incorporates into
its text also certain governing ideas, expressing the fundamental,
inviolable values of a democratic society” [judgment file no. Pl. ÚS
19/93 dated 21 December 1993 (N 1/1 SbNU 1, 5; 14/1994 Coll.)]. Thus,
insofar as Article 3 of the TEU defines regulatory ideas expressed
through the objectives of the European Union, the Constitutional Court
sees nothing in that to conflict with the constitutional order of the
Czech Republic.
143.
Similarly, the Constitutional Court does not see a substantive
conflict between the value orientation of the constitutional order and
the values that are expressed as the objectives of the EU. In that
regard it refers to its previous judgment Pl. ÚS 19/08, points 208 and
209, where the Constitutional Court declared a fundamental consistency
between the values expressed in Article 2 of the TEU and the values on
which the substantive core of the constitutional order of the Czech
Republic is built.
144.
Finally, the Constitutional Court points out the importance of
the explicit formulation of the Union’s objectives for defining
transferred powers, especially in relation to Article 352 of the TFEU.
Here too it refers to its previous judgment in the matter of the Treaty
of Lisbon, point 149. As it showed in that point of its judgment, it is
precisely the objectives defined in the relevant articles of the TEU and
of the TFEU that serve for control of the exercise of transferred
powers by EU authorities, not as an expression of a particular
ideological doctrine (which cannot be seen in them anyway).
E.
Sovereignty of the Czech Republic and State Authority
145.
The petitioners also believe that both the TEU as a whole, and the
TFEU as a whole are in conflict with Article 1(1) of the Constitution,
specifically the characteristics of the Czech Republic as a sovereign
state. According to the petitioners, the ground is that these treaties
permit, as a component objective of European integration, the creation
of a common European defence, but a state’s own defence is a power that
must always remain with a sovereign state, if it is to remain sovereign.
Another reason presented by the petitioners is that these treaties do
not rule out a common European federal state as an ultimate objective of
European integration (further to this alleged ground see point 9 of
this judgment). The petitioners also state that Article 42(2) of the TEU
is in conflict with Article 1(1) as well as Article 10a of the
Constitution (further to this alleged ground see point 17 of this
judgment) as are Article 78(3) and Article 79(1) of the TFEU, where the
petitioners claim that these articles mean that “the Czech Republic
alone will not always decide on the composition and number of the
refugees on its territory. The European Union is thus acquiring the
power to participate in decisions that may have a comparatively
significant impact on the composition of the population of the Czech
Republic and on its cultural and social character” (point 148 of the
petition; further to this alleged claim see points 19 and 20 of the
judgment). Finally, with regard to Article 83 of the TFEU, which governs
measures adopted at the Union level in the area of judicial cooperation
in criminal matters, the petitioners believe that “decision making
about what is a crime and what punishments are to be imposed for crimes
are among those powers of state authorities that cannot be transferred
pursuant to Article 10a of the Constitution“ (point 11 of the
supplement, referring to point 54 of the petition, or point 6 of the
supplement); “It is obvious from the text [of the contested article]
that the European Union is to have its own criminal law powers”, which
is said, “in and of itself” to contravene the cited provisions of the
Constitution (point 13 of the supplement). Finally, the petitioners
state that “this power does not have clear contours; the Council,
together with the European Parliament, can continue to expand its
criminal jurisdiction. Therefore, even the transfer of powers pursuant
to [Article 83 of the TFEU] is not delimited, distinguishable, and
sufficiently definite” (point 14 of the supplement; regarding this
alleged ground see point 30 of this judgment).
146.
First of all, the Constitutional Court refers to the conclusions stated
in its previous judgment Pl. ÚS 19/08, regarding the character of the
European Union, conditions for preserving the foundations of the
sovereignty of the Czech Republic, and the control that Member States
maintain over the development of European integration.
147.
The Court points out (as it stated in point 209 of judgment Pl.
ÚS 19/08) that, in a modern democratic state governed by the rule of
law, the sovereignty of the state is not an aim in and of itself, that
is, in isolation, but is a means for fulfilling the fundamental values
on which the construction of a democratic state governed by the rule of
law stands. In point 107 it then concluded (with reference to the
considerations stated in points 98 to 107 of the same judgment), that
the transfer of certain state competences, that arises from the free
will of the sovereign, and will continue to be exercised with the
sovereign’s participation in a manner that is agreed upon in advance and
is subject to review, is not a conceptual weakening of sovereignty,
but, on the contrary, can lead to strengthening it within the joint
actions of an integrated whole. The Constitutional Court also stated in
point 104 of that judgment that the European Union has advanced by far
the furthest in the concept of shared – “pooled” – sovereignty, and
today already forms an entity sui generis, which is difficult to
classify in classical political science categories. A key manifestation
of a state’s sovereignty is the ability to continue to manage its
sovereignty (or part of it), or to cede certain powers temporarily or
permanently.
148.
Insofar as the president argues with this definition of sovereignty
by claiming that “the concept of shared sovereignty has been used
relatively frequently recently, but only in non-rigorous debate” and,
according to the president, this concept is “a contradiction in terms”
because, as the president believes, “not only does our legal order not
know the term ‘shared sovereignty’, but neither does the law of the
European Union”, (see point 61 of this judgment), the Constitutional
Court considers it appropriate to point out the text of the memorandum
attached to the Czech Republic’s application to join the European Union
(available at
www.mzv.cz/jnp/cz/zahranicni_vztahy/neverejne/205891-memorandum.html):
“The
Czech nation has only recently reacquired full state sovereignty.
However, the government of the Czech Republic has irrevocably reached
the same conclusion as that reached in the past by today’s Member
states, that in modern European evolution, the exchange of part of one’s
own state sovereignty for a share in a supra-state sovereignty and
shared responsibility is unavoidable, both for the prosperity of one’s
own country, and for all of Europe”.
149.
Resolution of the government of the Czech Republic dated 13 December
1995, no. 732 regarding the Czech Republic’s application to join the
European Union authorised the then- prime minister (and today’s
president) Václav Klaus, to deliver the application and memorandum
(which was an inseparable part of the application, in accordance with
the government resolution) in January 1996 to the government of the
Republic of Italy, as the state holding the presidency of the European
Union for the first six months of 1996. Thus, there is no doubt that the
concept of shared sovereignty had to be familiar, not only to the
president, but also to other political representatives responsible for
adopting the cited memorandum, at a time when the Czech Republic was not
yet a member of the European Union. This fact was proved by the
president’s attorney, who quoted extensively from the memorandum at the
hearing to support the claim that the Treaty of Lisbon will
fundamentally change the character of the European Union.
150. The Constitutional Court also stated in point 120 of judgment Pl. ÚS 19/08 that
-
it generally recognizes the functionality of the EU institutional
framework to ensure review of the scope of exercise of transferred
powers; however, its position may change in the future if it appears
that this framework is demonstrably non-functional;
-
in terms of the constitutional order of the Czech Republic – and within
it especially in view of the essential core of the Constitution – what
is important is not only the actual text and content of the Treaty of
Lisbon, but also its future concrete application;
and finally, that
-
the Constitutional Court of the Czech Republic too will (may) –
although in view of the foregoing principles – function as an ultima
ratio and may review whether any act by Union bodies exceeded the powers
that the Czech Republic transferred to the European Union pursuant to
Article 10a of the Constitution. However, the Constitutional Court
assumes that such a situation can occur only in quite exceptional cases;
these could include, in particular, abandoning the identity of values
and, as already cited, exceeding of the scope of conferred competences.
151. Over and above that, [the Court] adds the following regarding the specific arguments presented by the petitioners.
152.
The petitioners’ arguments on the unconstitutionality of the
European Union objective of a “common European defence”, according to
which only “a state’s own defence is a power that must always remain
with a sovereign state”, is quite inappropriate. The creation of
inter-state systems of collective defence in no way violates the
sovereignty of the states that share in these systems. The petitioners’
idea that the Czech Republic would lose sovereignty as the result of a
treaty obligation concerning common defence would have been fulfilled on
12 March 1999, when the Czech Republic joined the North Atlantic Treaty
Organisation (NATO), founded on Article 5 of the North Atlantic Treaty
(promulgated as no. 66/1999 Coll.): “The parties agree that an armed
against one or more of them in Europe or North America shall be
considered an attack against them all and consequently they agree that,
if such an armed attack occurs, each of them, in exercise of the right
of individual or collective self-defence recognised by Article 51 of the
Charter of the United Nations, will assist the Party or Parties so
attacked by taking forthwith, individually and in concert with the other
Parties, such action as it deems necessary, including the use of armed
force, to restore and maintain the security of the North Atlantic area”.
153.
Likewise, according to the petitioners’ claims, the alleged
unconstitutionality of the changes implemented by the Treaty of Lisbon
in the TEU and in the TFEU “as a whole”, consist of the fact that these
treaties “do not rule out as an ultimate objective the appearance of a
common federal state”, will not stand. Both parties contain a listing of
common objectives only in a positive sense, which cannot, in and of
itself, create conflict with the Czech constitutional order. The
Constitutional Court further refers to point 132 of judgment Pl. ÚS
19/08. A this point the Constitutional Court considers it important to
specify that in that point it did not review the TEU and the TFEU
themselves (which it could not do – see point 108 of this judgment), but
rather how the Treaty of Lisbon amends these treaties – in this regard
the review performed here must also be applied to verdict I of this
judgment, i.e. as applicable to review of the Treaty of Lisbon as a
whole (and not the TEU and the TFEU as a whole).
154.
The petitioners also contest Article 78(3) and Article 79(1) of
the TFEU, concerning policies for border control, immigration and
asylum. They interpret that part of the treaty as “a legal basis for
future decision-making by EU institutions as to which Member State is to
accept refugees, and how many and what refugees it is to accept”.. The
Constitutional Court, like the government’s brief (points 62 to 65 of
the brief) points out that this is basically transference of the
existing Article 64(2) of the Treaty establishing the European
Community, and that the change made by the Treaty of Lisbon consists of
strengthening the European Parliament’s participation in Union
decisions. Moreover, Article 79(5) of the TFEU explicitly guarantees
Member States the right to set the number of entries by citizens of
third countries on their territory in order to look for work or to do
business, so that the contested treaty, on the contrary, leaves the
regulatory mechanism for the movement of persons from third countries in
the competence of the Member States. Thus, the contested provisions are
a special form of social regulation through temporary measures in the
case of a sudden influx of asylum applicants. The Constitutional Court
considers the specification to be a predominantly political question,
which is primarily up to the government, which negotiated the treaty,
and the chambers of Parliament, which consented to its ratification. The
Constitutional Court considers such an agreement to be permissible
within Article 10a of the Constitution, and not in conflict with the
constitutional order (in this regard, see also point 111 of this
judgment).
155.
Finally, regarding the petitioners’ objection concerning the alleged
conflict of Article 83 of the TFEU with Article 1(1) and Article 10a of
the Constitution, the Constitutional Court points out the conclusions
stated in its judgment file no. Pl. ÚS 66/04 dated 3 May 2006 (N 93/41
SbNU 195; 434/2006 Coll.), in points 70 and 71. According to these
points, we cannot overlook the fact that the present time brings with it
exceptionally high mobility among people, increasing international
cooperation, and growing trust among the democratic states of the
European Union. The citizens of the Member States have, in addition to
the civil rights of their states, the rights of citizens of the Union,
which guarantee them, among other things, freedom of movement within the
entire Union. Investigation and suppression of crime within the
European area cannot be conducted successfully within a single Member
State, but requires wide international cooperation. In the
Constitutional Court’s opinion, the present standard for protection of
fundamental rights within the European Union does not give any cause to
believe that this standard for protection of fundamental rights, through
the implementation of principles arising from them, is of a lower
quality than the protection provided in the Czech Republic. The powers
transferred to the Union by Article 83 of the TFEU in the sphere of
cooperation in the criminal justice system reflect this development.
156.
We cannot overlook the fact that Article 83(1) of the TFEU makes it
possible to adopt these measures only if the criminal activity to which
they pertain has a cross-border dimension, and it is also required by
its nature or effects of the criminal activity, or the need to suppress
it jointly. The following subparagraph explicitly lists the criminal
activity that is of that nature (terrorism, trafficking in human beings
and sexual exploitation of women and children, illicit drug trafficking,
illicit arms trafficking, money laundering, corruption, counterfeiting
of means of payment, computer crime and organised crime). Thus, this is
not a blanket norm that would give the Union general powers in the area
of criminal law, but a power whose exercise at the European Union level
is, in accordance with the conclusions stated in the previous point of
this judgment, in the interest of the Czech Republic and its citizens.
157.
Similarly, measures adopted on the basis of the second paragraph of
Article 83 of the TFEU must be “essential to ensure the effective
implementation of a Union policy in an area which has been subject to
harmonisation measures” and are thus limited to areas where, given the
nature of the matter, individual states must act jointly in order to
ensure effective implementation of the jointly adopted rules.
158.
This provision must also be understood in the context of the case
law of the Court of Justice of the European Communities. In its decision
dated 23 October 2007, Commission v. Council (“Pollution of Seas”),
C-440/05, European Court Reports p. I-9097 [in which it made more
precise the conclusions formulated by the Court of Justice in the
decision dated 13 September 2005, Commission v Council, (“Environmental
Criminal Law”), C-176/03, European Court Reports p. I-7879] it stated
that “while it is true that, as a general rule, neither criminal law nor
the rules of criminal procedure fall within the Community’s competence,
this does not, however, prevent the Community legislature, when the
application of effective, proportionate and dissuasive criminal
penalties by the competent national authorities is an essential measure
for combating serious environmental offences, from taking measures which
relate to the criminal law of the Member States which it considers
necessary in order to ensure that the rules which it lays down on
environmental protection are fully effective”. Article 83(2) of the TFEU
modifies this case law to the effect that it provides a special legal
basis (lex specialis) for adopting measures in criminal law and narrows
the application of the cited decision. If the Treaty of Lisbon enters
into force, it will no longer be possible to use this case law as a
basis for applying the provisions of treaties that permit adopting
harmonisation measures in order to adopt measures in the field of
criminal law [this conclusion was reached by, e.g. report of the House
of Lords, European Union Committee, 10th Report of Session 2007–08, “The
Treaty of Lisbon: an impact assessment”, in point 6.188]. This is
important especially with regard to the safeguard provided in Article
83(3) of the TFEU. Thus, in this regard this provision of the TFEU
contested by the petitioners is more a step toward stronger protection
of the constitutional principles on which it relies than toward
violation of them.
159.
These objections can also be connected to the petitioners’ claim
that Article 7 of the TEU is in conflict with Article 2(3) of the
Constitution (regarding this alleged ground see points 11 and 81 of this
judgment). The petitioners state that “If rights of Member States are
suspended, with probable consequences for private persons as well, then
Czech state authority will not in fact serve its citizens, because it
will be temporarily deprived of certain rights without which the
citizens cannot be served” (point 105 of the petition). In this regard,
the Constitutional Court points to the conclusions that it stated in
judgment Pl. ÚS 19/08. In point 209 it stated that violation of the
fundamental values of the European Union, at which Article 7 of the TEU
is directed, “would simultaneously mean violation of the values on which
the materially understood constitutionality of the Czech Republic
rests; the Constitutional Court itself, as well as domestic general
courts, within their jurisdiction, would, in the first place, have to
provide the maximum possible protection to that”. Any exercise of state
authority that would violate these values could hardly serve the
citizens. Thus, Article 7 must be understood as a supplement to the
mechanism of the protection of principles on which the constitutionality
of the Czech Republic stands, and not as a means for violating them.
160.
Likewise, in this part of judgment we can respond to the
petitioners’ claims that Article 9 of the TEU is in conflict with
Article 1(1) of the Constitution (regarding this alleged ground see
point 83 of this judgment), because it is primarily related to the
claimed conflict between the institution of citizenship of the European
Union and the principle of sovereignty contained in Article 1(1) of the
Constitution. Here the Constitutional Court points out that the
institution of citizenship of the European Union was already introduced
by the Treaty of Maastricht in 1993 (when that treaty entered into
force), and not just now by the Treaty of Lisbon, and citizenship of the
European Union adds only a minimum or new normative content to the
rights of citizens of Member States that the European Court of Justice
derived from the existing provisions of Community law (cf. esp. Weiler,
J. H. H. The Constitution of Europe. “Do the new clothes have an
emperor?” and other essays on European integration. Cambridge, Cambridge
University Press, 1999, pp. 324–357). Citizenship of the European Union
in no way denies membership of a Member State, but on the contrary
enriches it with a European dimension (cf. judgment Pl. ÚS 66/04, point
70). Moreover, the Constitutional Court already stated in its judgment
Pl. ÚS 66/04, point 71, that if Czech citizens enjoy the advantages
connected with citizenship of the European Union, in that context it is
natural that a certain degree of responsibility must be accepted with
these advantages. Thus, in this regard the Constitutional Court did not
find any conflict between Article 9 of the TEU and Article 1(1) of the
Constitution.
161.
Finally, we must reject the petitioners’ claim that Article 13(1)
of the TEU and Article 47 of the TEU are in conflict with Article 10a of
the Constitution (regarding this alleged ground see point 84 of this
judgment), with reference to the ground stated in point 147 of this
judgment.
F.
The Requirement of “European Commitment for Commission Members
162.
In addition to the objections raised by the petitioners against the
constitutionality of Article 17(3) of the TEU, which provides that
members of the Commission are to be chosen “on the ground of their
general competence and European commitment from persons whose
independence is beyond doubt”, which the Constitutional Court considered
above in sections B and D of this part of the judgment, the petitioners
also claim that this provision contravenes Article 1(1) of the Charter
(sic!), pursuant to which people enjoy equality of rights, and Article
21(4) of the Charter, pursuant to which citizens shall have access, on
an equal basis, to any elective and other public offices. According to
the petitioners, the unconstitutionality consists of setting the
condition of sufficient European commitment (regarding this alleged
ground see points 14 and 86 of this judgment).
163.
A determination whether the requirement of “European commitment”,
imposed on Commission members by Article 17(3) of the TEU, establishes
unconstitutional inequality is necessarily based on a value and
political evaluation of whether this a relevant distinguishing criterion
kritérium (cf. e.g. Bobek, M., Boučková, P., Kühn, Z. Rovnost a
diskriminace. [Equality and Discrimination] Prague, C. H. Beck, 2007,
pp. 12 to 14). As the Constitutional Court recently stated in its
judgment file no. II. ÚS 1609/08 dated 30 April 2009 (available at
nalus.usoud.cz), “In law it is […]quite normal that there is a
differentiation between various subjects of rights, and therefore not
every differentiation is automatically discrimination within the meaning
that contemporary law assigns to that term. If […] the constitutional
principle of equality cannot be understood absolutely as an abstract
category, but as relative equality, then not every difference in rights
and obligations of various subjects of law can be considered
discrimination, but only those differences that are unjustified”. Thus,
the Constitutional Court must evaluate whether this request is
justified.
164.
In this regard, we must also begin with the objectives that the
European Union sets for itself, and from the fact that, from a
constitutional point of view, these objectives are fully consistent with
the value orientation of the constitutional order of the Czech Republic
(see section D of this part of the judgment). A member of the
Commission, as an institution that is to support the general interest of
the European Union pursuant to Article 17(1), must be dedicated to the
interests of the Union and to its objectives – this corresponds to the
formulation of this requirement contained in the various language
versions of the Treaty of Lisbon, e.g. as a requirement for “európskej
angažovanosti” in the Slovak version, “European commitment” in the
English version, “engagement européen” in the French version “Einsatzes
für Europa” in the German version, or „zaangażowanie w sprawy
europejskie“ in the Polish version (the government argues similarly in
point 39 of its brief – cf. point 49 of this judgment). Thus, in this
regard, this requirement is legitimate and fully compatible with the
requirement of equality set forth by the cited provisions of the Czech
constitutional order.
G.
Enhanced Cooperation
165.
According to the petitioners, Article 20 of the TEU contravenes
Article 1(1) and Article 10a of the Constitution because conditioning
enhanced cooperation on the consent of EU authorities prevents the
exercise of certain powers both on the European level and on the level
of Member States, and thus contravenes the principle of government by
the people and the principle of the sovereignty of the Czech Republic
(further to this alleged ground, see point 15 of this judgment).
166.
In the Constitutional Court’s opinion, this provision of the Treaty of
Lisbon does not contravene the cited provisions of the constitutional
order. From an international law point of view, the possibility for
European Union Member States to cooperate beyond the framework of
existing integration is, of course, a fully legitimate form for the
exercise of each state’s sovereignty as a subject of international law.
The condition of approval by the Council has the fundamental purpose of
observing the rules of subsidiarity and differentiation of exclusive and
shared competences so as to preserve the obligations arising from
membership in the Union. Essential for evaluation of this institution,
which may appear to be the basis for a “multi-speed Europe”, is the
presently enshrined principle of being open to all Member States
(Article 20(1) of the TEU) and the condition that all members of the
Council shall act unanimously on a decision to proceed with enhanced
cooperation (Article 329(2 of the TFEU). The Czech Republic’s consent
with enshrining the institution of enhanced cooperation – without it
being in any way implemented at this phase – does not affect the
principle of government by the people and the sovereignty of the Czech
Republic, because it leaves pro futuro up to the will of its
constitutional authorities, including both chambers of Parliament,
whether and in what form the Czech Republic will join in enhanced
cooperation, or whether, on the contrary, it will use its rights and
prevent that form of different tempos for integration processes within
the Union. When the petitioners claim that Article 20 of the TEU “can be
said to circumvent and completely invalidate the meaning of one of the
fundamental principles governing relations between states – namely that
whatever is not forbidden in international law, or on the basis thereof –
for instance in European law – remains permissible” and that as a
result “the principle would apply that states may only cooperate when
the EU authorises them to do so” they completely overlook the fact that
it is precisely without a special regulation of international
integration processes in the Union that they could completely avoid
control by the sovereign Member States.
H.
Withdrawal of a Member State from the European Union
167.
Likewise, we can refute the petitioners’ doubts concerning Article
50(2) to 4 of the TEU, which regulate the process of a Member State
withdrawing from the European Union. The petitioners claim that this
regulation “conflicts with the principle of sovereignty” enshrined in
Article 1(1) of the Constitution, and also contravenes “the principle of
retroactivity and legitimate expectations and consequently the
fundamental principle of the rule of law that all rules must be known in
advance” (point 143 of the petition). According to the petitioners the
indeterminacy of the future arrangements for withdrawal from the EU also
contravenes Article 10a of the Constitution, because, according to the
petitioners, “The transfer of powers must be defined, and the manner in
which the powers transferred are to be withdrawn and returned to the
national level must also be defined. Nor may the withdrawal of powers be
made subject, de facto, to the requirement of approval by the EU“
(point 144 of the petition; further to this alleged ground see point 18
of this judgment).
168.
However, sovereignty does not mean arbitrariness, or an opportunity
to freely violate obligations from international treaties, such as the
treaties on the basis of which the Czech Republic is a member of the
European Union. Based on these treaties, the Czech Republic has not only
rights, but also obligations vis-à-vis the other Member states. It
would contravene the principle of pacta sunt servanda, codified in
Article 26 of the Vienna Convention, if the Czech Republic could at any
time begin to ignore these obligations, claiming that it is again
assuming its powers. If it were to withdraw from the European Union,
even in the present state of the law, the Czech Republic would have to
observe the requirements imposed by international law on withdrawal from
the treaty with other Member States. This follows from Article 1(2) of
the Constitution, pursuant to which “The Czech Republic shall observe
its obligations resulting from international law”. Thus, it is fully in
accordance with this constitutional law requirement that the Czech
Republic would have to, if withdrawing from the European Union, observe
the pre-determined procedures (regarding limitations arising from
international law and the law of the European Union, cf. Zbíral, R.
Vystoupení z Evropské unie ve světle evropského a mezinárodního práva.
[Withdrawal from the European Union in View of European and
International Law] Právník [The Lawyer], year 2008, no. 7, pp. 752–773).
169.
Moreover, paragraph 3 of the contested provision provides that “The
Treaties shall cease to apply to the State in question from the date of
entry into force of the withdrawal agreement or, failing that, two years
after the notification [the Member State’s intention to withdraw from
the European Union], unless the European Council, in agreement with the
Member State concerned, unanimously decides to extend this period”.
Thus, it is not true that “withdrawal of powers” (as the petitioners
describe withdrawal from the European Union) is necessarily subject to
consent by the EU. On the contrary, this provision expresses a balance
between the requirement of the sovereignty of the Czech Republic and the
requirement to observe obligations that the Czech Republic assumed
together with the other Member States. The Constitutional Court of the
Republic of Latvia evaluated the contested provision similarly in its
decision dated 7 April 2009 no. 2008-35-01 (English translation of the
decision available at
www.satv.tiesa.gov.lv/upload/judg_2008_35.htm), in part 16.2.
170.
The alleged conflict of that provision with Article 2(3) of the
Constitution (regarding this alleged ground, see point 89 of this
judgment) then follows from a misunderstanding of the process of
withdrawal of a member [State] from the European Union. The petitioners
claim that “if, pursuant to (4) [Article 50 of the TEU] the member of
the European Council or the Council who represents the withdrawing state
may not take part in negotiations concerning his state, then during the
time of that process ‘the Treaty of Lisbon’ limits the potential of the
withdrawing state to serve its citizens, and at the same time, their
rights in this regard. Thus it contravenes [Article 2(3) of the
Constitution], pursuant to which: ‘State authority is to serve all
citizens’”. The petitioners completely overlook the fact that within
these negotiations the determination of the content of an agreement on
the withdrawal of a member State takes place with the European Council
(or the Council) as one of the parties, and the withdrawing Member State
is to be the other party. Thus, it is quite natural that it will not
take part in the decisions made by the other party to the agreement that
is to be concluded with it. Moreover, the withdrawing Member State
always has the option of not entering into the agreement and proceeding
in accordance with Article 50(3) of the TEU.
I.
Powers
of the Court of Justice of the European Communities and Proceedings on
the Conformity of International treaties with the Constitutional Order
171.
The essence of the alleged inconsistency between Article 19(1) of
the TEU and Article 87(2) of the Constitution, as indicated by the
provision of the Constitution that the petitioners cite, is claimed to
be that it makes it impossible for the Constitutional Court to form “an
independent judgment concerning interpretation of an international
treaty pursuant to Article 10a and Article 49, if it is to rule on its
consistency with the constitutional order of the CR”. In the
petitioners’ opinion, the legal norm containing this rule in Article
19(1) of the TEU (the petitioners have in mind the priority of Community
law) sets the Court of Justice above the constitutional court of an EU
Member State in interpretation of the ‘Treaties” (meaning the Treaty of
Lisbon). This also applies in the event of its decision-making on
conformity of the Treaty of Lisbon, as amended by any amendments or
additions to the international treaty, with the constitution or the
constitutional order of a Member State” (regarding this alleged ground,
see point 88 of this judgment).
172.
However, this claim directly contravenes the conclusion that the
Constitutional Court stated in its judgment Pl. ÚS 19/08, in point 94,
when it concluded that it was necessary to use the entire constitutional
order as a point of reference for review of the Treaty of Lisbon, and
not only its essential core. The Constitutional Court first pointed out
that in judgment Pl. ÚS 66/04 it did not rule out the fundamental
priority of application of community law, whose limits, as it stated,
are only in the essential core of the Constitution, which is stated in
judgment Pl. ÚS 50/04. At the same time, however, the Constitutional
Court implicitly admitted the possibility of removing any potential
inconsistency not only through priority application of the norms of
Community law, but also through constitutional amendments. From the
point of view of the grounds alleged by the petitioner for conflict
between Article 19(1) of the TEU and Article 87(2) of the Constitution
the following is a key passage: “It is appropriate to ad here that, in
order for the constitution framers to be able to recognize the need for
them, it is necessary for the Constitutional Court to have an
opportunity to examine European law provisions in terms of their
conformity with the constitutional order as a whole, not only with the
essential core. In such a review it can then define those provisions of
the constitutional order that can not be interpreted consistently with
the requirements of European law by using domestic methodology, and
which it would be necessary to amend. Preliminary review gives it a
suitable opportunity for this, because it does not raise problems on the
application level. Moreover, the Constitutional Court thereby acquires
an opportunity to evaluate to a certain extent the constitutionality of
the interpretation of already existing EU law norms by the Court of
Justice, without coming into direct conflict with it”.
173.
In other words, priority of Community law will not be applied in the
event of review of treaties that are not yet in force (and thus cannot
even be applied, or, on the level of application, be inconsistent with
provisions of domestic law).
VI.
Proposal to Join the Proceedings with the Matter file no. Pl. ÚS 26/09
174.
In point IV of the statement of claim of the petition the
petitioners ask that the Constitutional Court join both petitions for
joined proceedings.
175.
However, in the cited proceeding the Constitutional Court already
decided, by resolution file no. Pl. ÚS 26/09 dated 6 October 2009
(available at nalus.usoud.cz) to deny the petition in this matter
and thus the proposal to join both proceedings has become irrelevant,
regardless of the fact that it was impermissible from the beginning (see
resolution file no. Pl. ÚS 26/09, points 14 and 27).
VII.
Decisions
by Heads of State or Prime Ministers of Governments sitting in the
European Council in Relation to Concerns of the Irish People Concerning
the Treaty of Lisbon
176.
In point IV of the statement of claim of the petition the
petitioners first “ask the Court to find that the Decision of the Heads
of State or Government meeting within the European Council on the
concerns of the Irish people on the Treaty of Lisbon, which on 18 and 19
June 2009 added certain provisions to the Treaty of Lisbon, is an
international agreement pursuant to Article 10a of the Constitution and
as such requires the approval of both Chambers of Parliament obtained by
a constitutional majority, without which it is not applicable in
relation to the Czech Republic“. They then develop this statement of
claim in points 151 to 165 of the petition.
177.
Only international treaties can be subject to proceedings on the
conformity of international treaties pursuant to Article 10a and Article
49 of the Constitution; § 71a of the Act on the Constitutional Court
sets the conditions for opening a proceeding, concerning the subject
matter, the circle of parties with active standing, and the time when
they can submit a petition. The Act on the Constitutional Court, in §
71b(1), classifies failure to meet any of these procedural requirements
as a special case of impermissibility of the petition to open
proceedings on the conformity of international treaties with the
constitutional order. The subject matter of this proceeding is the
Treaty of Lisbon, not an act adopted in connection with it at the
European Union level. Though not considering the nature of the decision
in question, the Constitutional Court had to state that this part of the
petition is impermissible pursuant to § 71b(1) of the Act on the
Constitutional Court, because the petitioner does not have standing for
such a petition, and the Constitutional Court does not have jurisdiction
for such a decision.
VIII.
Conclusion
178.
In view of the foregoing, the Constitutional Court ruled on the
petition of the group of senators to review the conformity of the Treaty
of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Community with the constitutional order, in a
proceeding pursuant to Article 87(2) of the Constitution, as follows:
-
the request that the Constitutional Court review the conformity of
the Treaty on European Union as a whole and the Treaty establishing the
European Community as a whole, with the constitutional order the
Constitutional Court – denied by verdict II of this judgment due to
impermissibility pursuant § 71b(1), in conjunction with § 43(1)(e) of
the Act on the Constitutional Court (for reasoning, see point 108 of
this judgment),
-
the request that the Constitutional Court review the conformity of
Article 2, Article 3, Article 4 and Article 216 of the Treaty on the
Functioning of the European Union with the constitutional order – denied
by verdict III of this judgment due to impermissibility as a matter
already decided by judgment of the Constitutional Court pursuant to §
35(1), in conjunction with § 43(1)(e) of the Act on the Constitutional
Court (for reasoning, see point 101 of this judgment),
-
the request that the Constitutional Court state that “the Decision
of the Heads of State or Government meeting within the European Council
on the concerns of the Irish people on the Treaty of Lisbon, which on 18
and 19 June 2009 added certain provisions to the Treaty of Lisbon, is
an international agreement pursuant to Article 10a of the Constitution
and as such requires the approval of both Chambers of Parliament
obtained by a constitutional majority, without which it is not
applicable in relation to the Czech Republic” – denied by verdict IV of
this judgment, pursuant to § 71b(1) in conjunction with § 43(1)( e) of
the Act on the Constitutional Court, due to impermissibility (for
reasoning, see point 177 of this judgment),
-
the request that the Constitutional Court join to this petition to
open proceedings on the conformity with the constitutional order of the
Treaty of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Community the petition from a group of
senators seeking annulment of selected provisions of the rules of
procedure of both chambers of Parliament, conducted as file no. Pl. ÚS
26/09 – denied by verdict V of this judgment, pursuant to § 71b(1) in
conjunction with § 43(1)(e) of the Act on the Constitutional Court, due
to impermissibility (for reasoning, see point 175 of this judgment),
-
finally, in verdict I of this judgment, pursuant to § 71e(2) of the
Act on the Constitutional Court, the Constitutional Court stated that
the Treaty of Lisbon amending the Treaty on European Union and the
Treaty establishing the European Community
- as a whole (for reasoning, see points 125 to 129 together with points 130 to 133 of this judgment),
- its Article 7 (for reasoning, see points 130 to 133 together with point 159 of this judgment),
- Article 8 (for reasoning, see points 130 to 133 of this judgment),
- Article 9 (for reasoning, see point 160 of this judgment),
- Article 10(1) (for reasoning, see points 137 to 139 of this judgment),
- Article 13(1) (for reasoning, see point 161 of this judgment),
- Article 14(2) (for reasoning, see point 140 of this judgment),
-
Article 17(1) and (3) (for reasoning, see points 130 to 133 together
with points 141 to 144 and points 162 to 164 of this judgment),
- Article 19(1) (for reasoning, see points 171 to 173 of this judgment),
- Article 20 (for reasoning, see points 165 and 166 of this judgment),
- Article 21(2)(h) (for reasoning, see points 130 to 133 together with points 141 to 144 of this judgment),
- Article 42(2) (for reasoning, see points 145 to 150 together with point 152 of this judgment),
- Article 47 (for reasoning, see point 161 of this judgment)
- and Article 50(2) to (4) (for reasoning, see points 167 to 170 of this judgment)
contained in the Treaty on European Union,
- Article 3 (for reasoning, see points point 101 of this judgment),
- Article 78(3) (for reasoning, see points 130 to 133 together with points 145 to 150 and point 154 of this judgment),
- Article 79(1) (for reasoning, see points 145 to 150 together with point 154 of this judgment)
- and Article 83 (for reasoning, see points 145 to 150 together with points 155 to 158 of this judgment)
contained in the Treaty on the Functioning of the European Union
and ratification thereof are not in conflict with the constitutional order of the Czech Republic.
179.
The Constitutional Court states that this judgment refutes doubts
about the conformity of the Treaty of Lisbon with the Czech
constitutional order and removes formal obstacles to its ratification.
Instruction: This decision cannot be appealed.
Brno, 3 November 2009
Pavel Rychetský
Chairman of the Constitutional Court