The Czech Republic: The Constitutional Court on the Lisbon treaty decision of 26 November 2008

European Constitutional Law Review

Volumn 5, Issue 1, 2009, Pages 143-164

  Bříza, Petr ^a  

^a CHARLES UNIVERSITY   (Czech Republic)

Author keywords

Czech Constitutional Court; Euroamendment; European Court of Justice; Fundamental Rights; Judicial review; Kompetez Kompetenz; Lisbon Treaty; National Courts; National sovereignty; Rights of the Member States; Solange II

Indexed keywords

EID: 71949102755     PISSN: 15740196     EISSN: 17445515     Source Type: Journal    
DOI: 10.1017/S1574019609001436     Document Type: Article

References (70)

1. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 Dec. 2007 (OJ C 306, 17.12.2007, p. 1-271).
2. Decision of 26 Nov. 2008, case No. Pl. ÚS 19/08 (published as No. 446/2008 Coll.) (herein after Judgment). The English translation (which I at times deliberately did not follow when provid ing quotations) is available at .
3. Constitutional Act No. 395/2001 Coll.
4. The provision reads: Prior to the ratification of a treaty under Art. 10a or Art. 49, the Consti tutional Court shall further have jurisdiction to decide concerning the treaty's conformity with the constitutional order. A treaty may not be ratified prior to the Constitutional Court giving judgment. An English version of the Czech constitution is available at .
5. The content of Senate's petition as well as of other participants' submission made in briefs or during oral hearing is described in paras. 2-64 of the Judgment.
6. Decision of 8 March 2006, case No. Pl. ÚS 50/04 Sugar Quotas (published as No. 156/2006 Coll.), the English translation is available at http://angl.concourt.cz/angl-verze/doc/p-50-04.php
7. Art. 10a para. 1 reads 'Certain powers of the Czech Republic authorities may be transferred by treaty to an international organization or institution.'
8. Decision of 3 May 2006, case No. Pl. ÚS 66/04 European Arrest Warrant (published as No. 434/2006 Coll.), the English translation is available at .
9. For a detailed account of these judgments from different perspectives see Jií Zemánek, 'The Emerging Czech Constitutional Doctrine of European Law', 3 European Constitutional Law Review (2007) p. 418
10. Wojciech Sadurski, 'Solange, chapter 3': Constitutional Courts in Central Europe - Democracy - European Union, 14 European Law Journal (2008) p. 1
11. Jan Komárek, 'European Constitutionalism and the European Arrest Warrant: In Search of the Limits of 'Contrapunctual Principles', 44 Common Market Law Review (2007) p. 9.
12. This provoked a harsh critique from the President who accused the Court that the judgment had been prepared well in advance and that the Court apparently attributed no attention to the oral hearing.
13. Quite different question is the actual chance of success for a new challenge, as the President of the Court Pavel Rychetský made it quite clear in his interviews for media that all the most contentious provisions had been challenged by the Senate and that in principle he did not see any other arguments which could be successfully raised. If such is the prevailing view among the Members of the Court, it would be indeed quite a surprise to succeed with a new petition.
14. Para. 86 of the Judgment.
15. And even this is said under the condition that the inclusion of the old (constitutional) provi sion has not changed its meaning in interaction with other norms of a new treaty.
16. Para. 90 of the Judgment.
17. The Court's English translation as available at the time of publication referred to this as a 'material core', but we prefer to avoid this non-standard usage of the term 'material' in English. - EuConst.
18. See Sugar Quotas (see supra n. 6). In EAW (see supra n. 8) the Court was rather willing to use as a point of reference the constitutional order as a whole, given the peculiar and not yet clarified char acter of the third pillar law.
19. 'The Czech Republic shall observe its obligations resulting from international law'.
20. See text accompanying n. 20.
21. See Art. 87 para. 2 of the Constitution.
22. Para. 94 of the Judgment.
23. See supra n. 7.
24. See paras. 104 and 109 of the Judgment.
25. See Chamber of Deputies document No.884 of the term 1998-2002, available (only in Czech) at .
26. As we will see, the Court used this ' withdrawal' argument on a couple more occasions in the judgment.
27. Decision of the Trybunal Konstytucyjny of 11 May 2005, case No. K 18/04 (Polish Acces sion Treaty case).
28. Para. 109 of the Judgment.
29. The judgment uses the Czech word 'určitelný' which in the English version on the Court's webpage is translated as 'determinable', however, in my opinion the real meaning is better reflected by word 'identifiable'.
30. This provision reads: 'The Czech Republic is a sovereign, unitary, and democratic rule-of-law-based state, founded on respect for the rights and freedoms of man and of citizens.'
31. 'Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.'
32. Para. 146 of the Judgment.
33. See, e.g., a very critical analysis of Robert Schutze: 'Lisbon and the federal order of competences: a prospective analysis', 33 European Law Review (2008), p. 709.
34. Para. 137 of the Judgment.
35. Para. 139 of the Judgment.
36. Para. 139 of the Judgment. Ibid.
37. The Court in this one paragraph makes also the comparison with the Polish Constitutional Tribunal (in Treaty of Accession case), whose position excluding the right of the ECJ to review the limits of competences conferred on EU approves to some extent but at the same time questions whether it is necessary to put it so bluntly.
38. Case C-376/98 Germany v . Parliament and Council [2000] ECR I-8419.
39. A symbolic example is a sequel case to the 'Tobacco advertisement case', the 'Tobacco adver tisement case II', which was decided in an ordinary way, i.e., against the member states' competence - see case C-380/03 Germany v. Parliament and Council [2006] ECR I-11573.
40. Out of many others one can certainly mention, e.g., the recent Lugano Convention case (see infra n. 56).
41. There are some who see the role of national parliaments under the Lisbon Treaty as mere 'window dressing'. Of course, not everybody is as critical as is, e.g., the Global Vision report, avail able at .
42. Those declarations are attached to the Final Act of the Intergovernmental Conference which adopted the Treaty. The first one makes it clear that the reference to 'the Union's objectives' con cerns the objectives in Art. 3 para. 2 and 3 of the Treaty on European Union and the objectives in Art. 3 para. 5 of that treaty related to external action on the basis of Part Five of the Treaty on the Functioning of the European Union. It is thus excluded that an action based on the flexibility clause would only pursue objectives set out in Art. 3(1) of the TEU. The second one primarily stresses that Art. 352 cannot be used as a basis for the adoption of provisions whose effect would, in substance, be to amend the Treaties without following the procedure which they provide for that purpose.
43. Para. 149 of the Judgment.
44. Para. 152 of the Judgment.
45. Para. 160 of the Judgment.
46. Para. 161 of the Judgment.
47. In probably the first comment of the decision, Zden?k Kühn suggested on Czech legal blog Jiné právo [Other Law] that the Court had drawn its inspiration in Otto Pfersman's article, 'The New Revision of the Old Constitution', 3/2 International Journal of Constitutional Law (2005) p. 383.
48. See .
49. Para. 167 of the Judgment.
50. On the other hand this term is translated as 'power' in the English version of the Constitution which in my opinion is with regard to the context a more suitable translation than 'competence'.
51. See Jan Kysela, 'K daľím důsledkům přijetǐ tzv. euronovely Ǔstavy ČR'[On other consequences of the adoption of Euroamendment of the CZ Constitution], Právnǐrozhledy [Legal Perspectives] no.11 (2002) p. 525, p. 529-530.
52. At least this is what I believe the rather convoluted language of para. 182 tries to say.
53. The English version of President's speech is available at .
54. See case 22/70 Commission v. Council [1971] ECR 263.
55. The critical 'AETR' passage of Art. 216 reads: 'The Union may conclude an agreement with one or more third countries or international organisations where [...] the conclusion of an agreement [...] is likely to affect common rules or alter their scope.'
56. It is not clear at all what the use of bracketed text suggests, as this way of expression is not a usual practice of the Court. One can only guess that the Court wanted to emphasize that those statements are obiter dicta, not directly relevant for its conclusion(s).
57. Para. 183 of the Judgment (emphasis added).
58. After all, it was a reference to my article (Evropský soudní dvůr: Posudek k nové Luganské úmluvě značně posiluje vnější pravomoci Společenství [The European Court of Justice: The Opinion on the New Lugano Convention Considerably Strengthens the Community's External Powers], Právní rozhledy [Legal Perspectives] no.10 (2006) p. 385-390, p. 389) on which the Court supported its conclusion.
59. Opinion 1/03 (Lugano Convention) [2006] ECR 1-1145.
60. It is interesting that the Court did so after having concluded in the preceding paragraph that Article 216 is consistent with the Czech constitutional order.
61. Para. 186 of the Judgment.
62. Para. 193 of the Judgment.
63. Para. 197 of the Judgment.
64. Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v . Ir eland [GC], No. 45036/98, judgment of 30 June 2005, ECHR 2005-VI.
65. Para. 197 of the Judgment. One may see this pronouncement as a prime example of Euro pean constitutional pluralism.
66. Para. 209.
67. Para. 209. Ibid.
68. Art. 269 of the Treaty on Functioning of the EU reads: 'The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 of the Treaty on European Union solely at the request of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Article.'
69. Para. 216.
70. The Court pertinently expressed its position when it said in the penultimate paragraph that it 'clearly subscribed to the idea of European responsibility and solidarity'.