In The Case Of A Proposal To Assess Compliance With The Constitution, The Treaty Of Lisbon

Original Language Title: ve věci návrhu na posouzení souladu Lisabonské smlouvy s ústavou

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=67610&nr=446~2F2008~20Sb.&ft=txt

446/2008 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court decided on 26 April. November in plenary in the composition of Stanislav

Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel

Holländer, Ivana Janů, Vladimir Crust, Dagmar Lastovecká, Jiří Mucha,

Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný, Eliška

Wagner and Michael April according to art. 87 para. 2 of the Constitution of the United

the Republic on the proposal of the applicant-Senate of the Parliament of the Czech Republic

on the assessment of the conformity of the Lisbon Treaty amending the Treaty on European

Union and the Treaty establishing the European Community with the constitutional order



as follows:



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

establishing the European Community



in articles 2 (2). 1 (formerly 2a (1)), 4 (4). 2 (formerly 2 c), 352

paragraph. 1 (formerly 308 (1)), 83 (previously 69 b (1)) and 216 (formerly 188

l), contained in the Treaty on the functioning of the European Union,



in articles 2 (formerly 1a), 7 and 48 para. 6 and 7 contained in the contract of

The European Union,



* and the Charter of fundamental rights of the European Union



do not conflict with the constitutional order.



Justification



(I).



1. the Senate of the Parliament of the Czech Republic (hereinafter referred to as the "Senate" or

"the petitioner") filed on the basis of section 117b of paragraph 1. 1 of Act No. 106/1999 Coll.

the Senate's rules of procedure, as amended, and pursuant to section 71a

paragraph. 1 (b). a) Act No. 182/1993 Coll., on the Constitutional Court, as amended by

amended, (hereinafter referred to as the "law on the Constitutional Court") proposal to

The Constitutional Court referred to in article. 87 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution") decided about the accordance of the Lisbon Treaty amending the Treaty

The European Union and the Treaty establishing the European Community with the constitutional

policy in the United States.



2. In the design of the Senate said that the Government of the United Kingdom on 25 April. January 2008

presented to the Senate the Treaty of Lisbon amending the Treaty on European

Union and to the Treaty establishing the European Community (hereinafter referred to as "the Lisbon

the contract "or" agreement ") with a request for consent to its ratification. The Senate

in a follow-up to its resolution of 20. September 2007 comment on the

positions the United States before the Summit of Heads of State and Government in

Lisbon, taking into account the report of the Committee for European integration of the Chamber

the draft Treaty establishing a Constitution for Europe. September 2003 and report of the

Committee for European Union Affairs of the Senate on the draft Treaty

establishing a Constitution for Europe from 3. November 2004 and taking into account the

the opinion of the Standing Committee of the Senate for the Constitution and parliamentary procedure from 9.

October 2003, from 3. November 2004 and from 27. in March 2008, believes that the

some of the provisions of the Treaty shall immediately apply to the standards of the constitutional

order of the Czech Republic. Due to the major changes that the contract

and that, in the opinion of the Senate concern of noun elements

statehood, it appears necessary to examine whether the contract is in accordance with the

constitutional characteristic of the United States as a sovereign, unified

and the democratic rule of law (article 1, paragraph 1, of the Constitution) and that there are no

to change the essential formalities democratic State that

According to the article. 9. 2 of the Constitution inadmissible.



3. The Senate has said that it considers necessary to the Constitutional Court to determine

as well as consistency between the partial specific provisions of the Treaty and the standards

the constitutional order, in particular in cases in which closer defined under

the points listed below.



4. a) in accordance with the belief that legislative competence competence

It belongs to the Member States of the European Union, under which the exercise of certain powers

delegate to an international institution, it is considered as the key provisions of the Senate

article. Article 10A(1). 1 of the Constitution, according to which it is possible to transfer some of the powers of the

the authorities of the Czech Republic on the international organization or institution. New

the text of the Treaty on the functioning of the European Union (formerly of the EC Treaty)

in the opinion of the Senate based the classification of competences characteristic

rather for the Federal States, the mj. introduces the category of exclusive

the powers of the Union, in which case they are a complex area of legal regulation, in

which according to the article. 2A paragraph 2. 1 of the Treaty on the functioning of the European Union may

Member cost legislate and adopt legally binding acts "only

If they are authorized or carried out the acts of the Union ". Follow-up

the concept of shared competence (article 2 c of the Treaty) that have to be

In addition to the above-mentioned exclusive competence, along with supposedly not quite clear

the borders of the making of EU secondary legislation opens up from the Senate

the space wide, previously difficult-to-identifiable realm Union

standardisation, where he implicitly, in accordance with Declaration No 17

annexed to the Treaty, the principle of primacy of EU law.

The extent of delegation of powers as in the opinion of the Senate can be seen in

the sphere of shared competence from the perspective of article. 10A of the Constitution as a not entirely

to be determined (cf. also the General introduction article 2 c, paragraph 2, of the draft Treaty

on the functioning of the European Union-"shared competence of the Union and the Member States shall

in the following main areas: ").



5. b) the Senate said that, subject to a review pursuant to article 11(2). 10A Constitution

should be and the nature of the proposed provisions of article. paragraph 308. And the Treaty on the

the functioning of the European Union, according to which the Council shall, on a proposal from the Commission,

unanimously the measures to "attain one of the objectives set out

"In a situation where it is in the context of the EU's policies prove necessary

activity to which the Treaty has not provided the necessary powers. Unlike

the existing text of the founding treaties, the proposed provisions of the Treaty

It does not limit to the area of the regulation of the internal market, but represents

blanketní standard. So apparently the adoption of measures allows you to go beyond EU

competencies, i.e.. outside the scope of delegation of powers under art. 10A of the Constitution.

Such measures may be taken by the Senate subsequently also in

the area of sensitive issues of cooperation in criminal matters without sufficient

the procedural guarantees of protection of civil rights and freedoms while maintaining

interpretative monopoly of the European Court of Justice. Specific competence

the jurisdiction of the European Court of Justice as the final arbiter in the

Alternatively, vzniknuvším can give rise to a dispute, according to the Senate-in a situation

following the constitutional relationship to the courts of the Member States-question marks over

the respect of the principle of legal certainty. Special attention deserves also the

the absence of a time-limit of the validity of the measures thus adopted and its

Executive nature, which may arouse doubts over the relevance of the participation of

national parliaments, when considering the adoption of such a measure.



6. c) concept of the powers with which the works article. 10A of the Constitution, has by design

The Senate only the material dimension of overlapping with the definition in the field

scope of application, but also the institutional dimension relating to the method of

decision making. In this context, it is necessary to examine, according to the Senate

consistency of the proposed article. 48 of the EU Treaty with that provision

Of the Constitution. Articles 48 para. 6 and 7, namely to introduce a so-called "option.

the simplified procedure for the adoption of amendments of EU primary law

through the Executive Act amending the form properly

ratified by the founding treaties of the EU.



7. Clearly is said in this regard, formulated a general gradient

clause (passerelle), which in spite of formal entrenchment of the principle

double-sided flexibility in Declaration No 17, annexed to the Treaty,

remains a one-way tool changes. The application of this clause

in order to change the decision unanimous by a qualified

the majority in a particular area or replacing special legislative

procedure to the ordinary legislative procedure pursuant to art. 48 para. 7 probably

represents a change of powers in the meaning of art. 10A of the Constitution, without the

the change has been accompanied by the ratification of international treaties or active

the consent of the Parliament. Loss of the right of veto can be understood, according to Senate

as the transfer of powers to an international organization, which also effectively

the importance of the parliamentary mandate limits means granted by the Government to

the decision, which would receive after application of the transition clause could

be representative of the Government of an individual Member State the swing vote.



8. in the case of the proposed article. 69 b of paragraph 1. 1 of the TFEU, when

sectoral Council shall decide on the inclusion of other areas of crime to

realm of the EU regulation, the scope for opposition to Parliament

missing, however, is in another case-in general the proposed text

the transit clause (article 48 para. 7 of the Treaty on European Union) and the partial

transition clauses in the field of judicial cooperation in civil matters

(article 65, paragraph 3, TFEU)-this option is guaranteed.

Limited involvement of national parliaments in the decision-making about the change, moreover,

quite widely defined competences of the EU and is complemented by the enlargement of the

qualified majority voting, not infrequently associated with total

komunitarizací of the current third pillar of European law, where

in parallel with the implicit weakening a national parliamentary mandate and the

by the conventions to be adopted by the Parliament of the Czech Republic

assumes responsibility for the parliamentary dimension of the European decision-making

Parliament. In this context, the Senate asked the question, whether it is due to the


the nature of the European Union as a community of States (not Federal

the State) this dimension of parliamentary democracy and that there is sufficient

to perform the actual flush article. 15 paragraph 1. 1 of the Constitution ("the legislative power in

The Czech Republic belongs to the Parliament. ").



9. (d)) the Senate continued that in addition to the already mentioned clauses of transition and

the flexibility clause to the procedures provided for by the Treaty concern process

the constitutional order even in another way. This is a negotiation

international treaties according to the proposed article. 188l the Treaty on the functioning of

Of the European Union. Here, namely the titles to the conclusion of international agreements

on behalf of the EU extend ("... If provided for by the Treaty or if it is locked

the agreement necessary to achieve the objectives set by the treaties in the framework of the

policies of the Union, or is provided for in a legally binding Union Act, or

may adversely affect common rules or alter their area

scope. "). Contracts are binding on the EU and its Member States,

and are concluded by a decision by a qualified majority in the Council.

The Senate of the Czech Republic does not have the Treaty consistently

Express, and yet it is bound; the normal ratification process at all

It does not occur, or mj. possibility of a preliminary review of the conformity

such contracts with the constitutional order of the Czech Republic. The question remains,

whether it is a procedure compatible with the diction article. 49 and article. 63 para. 1 (b).

(b)) of the Constitution, and if there is room for application of these contracts on the basis of the article.

10 of the Constitution.



10. e) the Board also stated that the strengthening of the powers of the institutions of the European Union,

they represent supranacionální level of decision making, is accompanied by a

the introduction of the single legal personality of the European Union. The functioning of the

The European Union said in the second of the earlier gains and the third

pillar, primarily in the areas of political cooperation, a completely new

the legislative framework. In this context, the principle in the realm of odbourávajícím

the existing third pillar principle of unanimous, however, may

more often than ever to occur collisions with national standards

protection of fundamental rights. Although the European Union according to the proposed article. 6

paragraph. 2 of the EU Treaty to accede to the European Convention for the protection of human

rights and fundamental freedoms, the same article also notes in paragraph 1,

that ' the Union recognises the rights, freedoms and principles contained in the Charter of fundamental

rights of the European Union of 7 December 2004. December 2000, as adapted on 12 June 2006.

December 2007 in Strasbourg, which has the same legal value as the treaties. '.

This indirect reference to the Charter of fundamental rights of the European Union may

The Senate give rise to confusion about its status, as well as

the fact that this Charter contains not only the directly enforceable rights, but

also, understanding or aspiration without a clear scheme of arrangement. In a situation

When the Union does not have and cannot have a specialised body,

Court řešícím "constitutional complaint", that provision of the Charter in

specific cases of violation of civil rights, he said, is not said to the job

Of the Charter. It is not clear whether the Senate represents the protection of the rights of citizens,

or rather an interpretative instrument, in which the angle of vision are interpreted

the powers of the EU institutions whose prohlubován interpretation of the objectives the Union shall pursue,

whether it is a strengthening of the national authority on the back or vice versa

institutions that interpret the national catalogues of human rights always at the

with regard to the peculiar political tradition, the peoples of Europe, what

procedural consequences (extension or acceleration of the instrument permitting enforcement

rights) has this step in relation to the jurisdiction of the European Court of human

rights and whether it can be strengthened as a result of this fact or

nivelizován national standard of human rights protection embodied in the

The Charter of fundamental rights and freedoms.



11. f) last but not least is by design of the Senate definition of the status of

Of the Charter and its interpretation options also needed to grab the newly

the formulated article. La of the EU Treaty, which occur to the expansion values

on which the Union is based, and at the same time to incorporate the standards of the European

social model ("in a society characterised by pluralism,

nepřípustností discrimination, tolerance, justice, solidarity and

equality between women and men "). The question of the interpretation of this provision will stand out

According to the appellant, that a serious breach of the aforementioned values may

lead to suspension of the rights provided for by the Member State from the Treaty.

No longer just a design made by 1/3 of the Member countries, the European Parliament or

The European Commission against a Member State would have

create political pressure leading to changes in the domestic legal order.

The Senate, therefore, raises the question of whether the wording of this provision is in accordance

the basic characteristic of the United States contained in the article. 1 (1). 1

and also with the article. 2 (2). 1 (the principle of the sovereignty of the people) of the Constitution.



12. in the light of the above, the Senate proposed to the Constitutional Court within the meaning of

article. 87 para. 2 of the Constitution and section 71e law on the Constitutional Court ruled on compliance

The Treaty with constitutional order.



II.



13. Under section 71 c of the law on the Constitutional Court are parties on compliance

international treaties with constitutional laws in addition to the petitioner also

The Parliament, the President of the Republic and the Government. The Constitutional Court therefore, posted by

the present proposal of the Senate proceedings the Chamber of Deputies

Parliament of the Czech Republic, the President of the Republic and the Government of the United

States (article 69, paragraph 1, of the law on the Constitutional Court, by analogy) with

to have the opportunity to comment on the draft of the Senate.



III.



14. On 5 July 2004. 6.2008, Constitutional Court President

of the Republic. In his introduction he pointed out that the proposal of the Chamber welcomes and

agrees with him. The President said that the Lisbon Treaty outside the

any doubt significantly changes the nature of the European Union as such,

and thus the legal status of the Czech Republic. Therefore, it is referred to in

his opinion, the need to assess compliance of all its provisions, individually

even in whole with the Constitution of the United States, the Charter of fundamental rights and

freedoms, and with the constitutional order of the Czech Republic to pay special

attention. In this connection, the President noted that the decision of the

The Constitutional Court on this matter will be one of the most important and

nejodpovědnějších in the history of the Czech Constitutional judiciary.



15. the statement of the President is divided into three parts, more

marked as points A, B and C, and these sections are further divided

on each subkapitoly.



16. Point and is called "General management" and the first subkapitola is engaged in the

the nature of the proceedings. In it the President expresses the view that the Constitutional Court is

summoned to assess not only the provisions of the Lisbon Treaty, referred to in the draft

The Senate, as well as its compliance with the constitutional order, and that in all

context. This is the purpose of the control of compliance of international agreements

According to the article. 10A, and 49 of the Constitution with the constitutional order. The preamble to the draft, respectively.

observations of the parties have apparently only in terms of managing the legal meaning,

It is to be with their allegations, suggestions and doubts deal in

justification for the award. President of further concludes that this kind of control

has the character driven undeniable. When would such an interpretation,

then you would have to admit that another possible claimant under section 71a

paragraph. 1 (b). b), c) or (d)) of the Act (i.e., a group of Deputies, senators

or the President of the Republic) would be even after the positive finding of the Constitutional Court

to submit another proposal, warning them of the Constitutional Court on the other,

the previous applicant nezmiňovaná the provisions of the relevant international

of the Treaty, or of the constitutional order. Such an interpretation of the President while

It considers not only absurd, but also extremely impractical.



17. Another expression of the President's name "nature of the contracts referred to in

article. 10A of the Constitution ". Article 10 provides that the renowned international contract to

whose ratification Parliament has given consent and which is Czech Republic

bound under international law, are part of our legal order and

take precedence over the law. This, but nor any other provision of the Constitution

According to the President, made no distinction between the contracts referred to in article. 10A,

the ratification of both houses of Parliament give their approval to the constitutional

the majority (article 39, paragraph 4, of the Constitution), and by the treaties referred to in article. 49, to whose

give both Chambers consent to ratification by a simple majority vote (article 39

paragraph. 2 of the Constitution). It supposedly implies that, although the conditions for their

the ratification of the different legal status, the subsequent contracts referred to in article 14(2). 10A and according to

article. 49 of the Constitution must be the same in the Czech legal order. The President, however,

considers it impossible to have a common international agreements in accordance with article 49

The Constitution, the power of the constitutional law or even take precedence over it. As part of the

the rule of law take precedence over the law, but they do is an ancestor of

the constitutional order. But then it logically must apply to the contract referred to in article 14(2).

10A, as the Treaty of Lisbon and our Access Agreement. Such

According to the President's interpretation is also confirmed by the wording of article. 112 of the Constitution. International

You cannot unilaterally cancel the contract and withdrawal may not always be

feasible immediately. To follow-up their constitutionality should therefore

was problematic, and for this reason it is necessary to determine their compliance with the


the constitutional order in advance. Such a procedure, however, would not make sense for

the international treaty, which should have the force of constitutional law.

The contract, which would have been part of the constitutional order, with the same

the essence of things in conflict with the constitutional order cannot get. At the time,

When she herself becomes a part of it, it changes the implicite his image in

accordance with the basic legal principle of lex posterior derogat legi

priori. (At this point, the President referred to a passage from the opinion of the Standing

the Court of international justice in the Affairs of the treatment of Polish citizens in the

Gdansk from 1932-"according to generally accepted policy ... cannot become

against another State or its own Constitution in order to avoid

commitments under international law or applicable international

contract. ".) The President concluded this part of the observations so that if

The Constitutional Court agreed with this interpretation and has given the opinion that

the international treaty under art. 10A of the Constitution, or other international

the Treaty (a reference to the finding of the Constitutional Court No 403/2002 Coll.) are part of the

the constitutional order, then it would be appropriate to make interim review

constitutionality became the rule for all international treaties that should

be part of the constitutional order, as this would prevent the implicit,

unwitting or unwanted changes to the constitutional order.



18. The most comprehensive part of the observations of the President of the Republic is part B,

entitled "the accordance of the Lisbon Treaty with the constitutional order".



19. in it, the President devoted the issue of sovereignty.

The Court held that pursuant to article. 1 the Constitution of the Czech Republic is a sovereign State,

that adheres to the commitments resulting from international law for it. According to the

the President can be inferred, that means the sovereignty in the sense of

of international law. Czech Republic declaring full

Member of the international community and for the full body of the international

rights. International law is the law of the grounds of the type; Unlike

national laws, its source is in the most general words

the meaning of the statement (the law, regulations, instructions, etc.), but consensually

created or spontaneously arising from legal standards (international treaties and

international usage). The sovereignty is then according to the observations of the President

means the property when the subject is not and cannot be limited by the standard that would

was established without his consent, either explicitly in the case of

international treaties, or implicitly in the case of international conventions.

Such a body, which is obliged to follow the instructions of another entity

independent of their will, or even in conflict with it, not according to the

international law, the sovereign. The Treaty of Lisbon in a number of areas

replaces the decision making consensual decision making based on vote

(points to the article 9 c of the TEU, as amended by article 1, point 17

The Lisbon Treaty, i.e.. article. 16 under a new consolidated version of

Treaty on European Union, on the basis of article přečíslovaného. 5 Lisbon

of the Treaty; and article. 205 of the Treaty on the functioning of the European Union, as amended by article. 2

section 191 of the Lisbon Treaty, i.e.. article. 238 according to the new consolidated

zněni of the Treaty on the functioning of the European Union, has until now called the Treaty on the

The European communities, pursuant to article přečíslovaného. 5 Lisbon

of the Treaty). I can therefore state that the Czech Republic will be required to

the norm against which the adoption of openly stood up. This applies even

even the conclusion of certain international agreements by the European Union, that is, the standards

binding upon the Czech Republic against the States that are not members of the Union.



20. Furthermore, the President expressed himself on the issue of the direct effect of the laws,

EU legislation. He recalled that international law considers itself

exclusive system of parent to the laws of individual States, and therefore

national legal systems considered from their point of view is just a legal

fact, not of law; Therefore, in principle, does not provide for

How have States should make its international obligations.

The Lisbon Treaty, however, according to the observations of the President explicitly

confirms that the selected legal acts of the EU should have in the legal order of the Member

States have direct effect (article 249 points out of the Treaty on the functioning of the European

the Union, in the text of the article. 2 section 235, i.e. the Lisbon Treaty. article. 288 according

a new consolidated version of the Treaty on the functioning of the European Union,

přečíslovaného on the basis of the article. 5 the Lisbon Treaty; See also page 6

the order report to Parliament of the Czech Republic in the printing house No.

407 and Senate printing # 181 in the ongoing electoral periods);

In contrast, the Constitution of the United States in the article. 10 provides that immediately

binding are approved by Parliament and properly declared the international

of the Treaty. And on the other hand can be inferred, therefore, according to the President, that no other

Foreign provisions than the mentioned international treaties shall have within the

the Czech legal order direct effect.



21. The President's observations are then devoted to it;

the nature of the Charter of fundamental rights of the EU. The European Union is based on

The Lisbon Treaty is obliged to accede to the European Convention for the protection

human rights and fundamental freedoms, and at the same time is required to recognize the rights,

freedom and the principles contained in the Charter of fundamental rights of the European Union. This

The Charter has in addition (article 6 of the Treaty on European Union, in the zněni article 1

point 8, i.e. the Lisbon Treaty. Article 6 under the new consolidated

the text of the Treaty on European Union, on the basis of article přečíslovaného. 5

The Lisbon Treaty) has the same legal value as the treaties establishing the European Union.

According to the President, it is necessary to find the answer to the question, what is the relationship

our Charter of fundamental rights and freedoms, which is part of the constitutional

Okay, and the EU Charter of fundamental rights, whether the Charter of fundamental rights

The EU is also the legal status of international treaties under article. 10A of the Constitution and of the

This title takes precedence over the Czech law, and if the Charter of fundamental

the rights and freedoms of the EU Treaty, according to the article. 10A of the Constitution, that all her

in accordance with the provisions of our Charter of fundamental rights and freedoms.

The President added that for granted, they don't have the same strength

like her or even take precedence over it, which follows already from the previous

paragraph of its observations.



22. with regard to the transfer of powers to the EU, the President pointed out the article. 10A

The Constitution, under which they can be some of the powers of the authorities of the Czech Republic

transferred to an international organization or institution. Shall be deemed to be substantial

in this context, the word "international", from which they said clearly follows

that the powers of the authorities of the Czech Republic can be transferred only to an entity

existing between States, not next to them or even above them. Direct

the effect of the legislation of the European Union apparently suggests that the

the legal order of the Union feels dominated to the laws of the Member States and that

emancipoval against international law as a separate, next to the

the existing system of international law. International law, however,

on the contrary, if European law programmatically to its members

nepředepisovalo ways to fulfil the commitments made to them (from their

common desire) stores. According to the observations of the President of the European

the right already engulfing the law seeks to Member States, as

the legal standards-on the contrary, international law is in principle regarded as legal

fact.



23. The EU's Charter of rights according to the observations of the President itself unnecessary

the document. Member cost have their own, usually said to be much

more elaborate Charter of rights. On the international level, human rights and

freedoms guaranteed by the European Convention for the protection of human rights and fundamental

freedoms of the Council of Europe. This is historically proven and, in particular, has

functional mechanism of judicial control, unlike the Charter of rights of the EU,

According to the President who has sense only if the Union itself feeling

be the State of sui generis, or emerging state federal type,

who then is the international law itself obliged to respect and protect the human

rights. The EU after the adoption of the Lisbon Treaty will no longer be an international

organizations, but-according to President-suggest additional fact;

citizenship of the European Union, though introduced. The Maastricht Treaty of

in 1991, but at the time there was no citizenship in accordance with international

rights. It was a concept that had with citizenship in the legal sense of the word

the common name only, or were associated with it, only those "rights", that

citizens of the Member States had even without him. However, the Treaty of Lisbon

According to the observations of the President goes on and connects with Union citizenship rights,

that citizens of the Union will be and which are meaningful only in the context of the

The EU; for example. right of legislative initiative acknowledges the Treaty of Lisbon

a number of EU citizens, who must, however, as a whole, "come from

a significant number of Member States ". The Treaty of Lisbon so here already

calculated with the European civil society, existing next to the civil

by the individual Member States, and therefore there had to be

a European nation State.



24. Another example is the President of the new definition of the

competencies, and their division between the Union and the Member States, which is said to be

typical for the Division of competences within the Federal State. In particular, the


the Division of the powers belonging exclusively to the Union, on residual jurisdiction

belonging to the Member States and of the Union as well as to those powers

to intervene on the basis of the principles of proportionality and subsidiarity, too

different from the distribution of competence between the Federal Government and the country as a basic

the law, the Federal Republic of Germany. The difference apparently lies only in the fact that

In addition, the Basic Law sets out the areas in which the Association to interfere

not and which may only be edited exclusively by the legislation of the countries. Such a definition

scope, to which the EU could not in any case, its Member

States to intervene, in the Lisbon Treaty are missing.



25. In its observations, it is stated that until now has been all decisions

The European Union made by the Council of the EU, and the European Council, or from the

derived form the EU Commission (secondary legislation, the European Parliament shall exercise

their legislative functions jointly with the Council, the European Court of Justice has called.

European law only interpreted, but de jure is not created, however its

decisions often have major impact); the members of the Council of the EU and the European Council

the Member States and the outcome of their activities accordingly is simply

the sum of the will of the Member States. Now, however, has created a completely new feature

President of the European Council; According to the President of the Lisbon Treaty is not

entirely clear, but it can be inferred that he will have the right to vote in

To the European Council. It said will mean that the will of the European Union have

not just the sum of the will of the Member States, but the sum of the will of the Member

States and individuals that will be the moment to hold the Office of President

The European Council. This person will have a de facto right of veto, if

The European Council to take decisions by consensus. Compared to the above

on the contrary, is the de jure completely meaningless that the Lisbon Treaty finally

nekodifikuje the European symbolism-the flag, anthem and motto. The symbolism of the

does not belong to constituent state according to international law and does not belong

nor to the exclusive characteristics of States. In addition, the symbolism of the long European works and i

still sure will work on the basis of the international conventions, or the so-called.

the secondary Union law. You cannot, therefore, according to the observations of the President claim

that its deletion from the Lisbon Treaty fundamentally rejected

the draft European Constitution. The difference between them is said to be only in the form;

While the EU Constitution replacing the existing treaties, the Treaty of Lisbon has

the character of their amendment and does so called. the primary Union law even

the most scalable, than it is now.



26. In conclusion, the President of this part of their observations emphasized that it

all raises substantial doubts as to whether the European Union even after possible

the entry into force of the Lisbon Treaty remains an international organisation,

button is clicked. institutions within the meaning of article 87(1). 10A of the Constitution of the Czech Republic, or whether it has already

rather, the entity will not be existing next to its members and the future

aspiring to stand even above them. It is then said to the question of whether the

the transforming body Article 10a still allows transfer

any powers of the authorities of the Czech Republic.



27. Part C of the observations of the President of the Republic shall apply to the method of

ratification of the Lisbon Treaty. The President considers it useful to

The Constitutional Court has found a way to express themselves and to the way in which may be

given a consent to the ratification of the Lisbon Treaty. According to the article. 10A of the Constitution is

need to ratify international treaties, to transfer some of the

the competence of the international organization or institution, the consent of the Parliament;

constitutional law may provide that, in a particular case requires the consent of

given in a referendum. According to the article. 1 of Constitutional Act No. 515/2002 Coll., on

the referendum on the accession of the Czech Republic to the European Union and amending

Constitutional Act No. 1/1993 Coll., Constitution of the Czech Republic, as amended by

the later constitutional laws, it was possible to decide on the accession of the Czech

Republic to the Union only by a referendum. The question for the referendum is directly between the

to so. The accession treaty was: "do you agree that the United

Republic became, under the Treaty of accession of the Czech Republic to the European

Union Member State of the European Union? ". The access contract is-according to the

the opinion of the President clearly understood in the general-sense of the word, as it is not in the

the Act mentioned with all my official name including the date of the signing;

In addition, it is used a small "s" in the word contract. Apparently, they say they

any contract specifying the terms and conditions of our membership in the European Union. How

It follows from the preceding text, the Lisbon Treaty very substantial

changes in the conditions of the Czech Republic's membership in the European Union

the agreed Access Agreement or amended the basic agreement governing the

the functioning of the European Union, i.e.. the Treaty, to which the accession treaty

refers and which are de jure a part of it. The Treaty of Lisbon

Therefore, according to the observations of the President actually changes the access contract, and

It is therefore legitimate to question whether consent to the ratification of the Lisbon

the contract does not have to be the subject of a referendum.



28. In conclusion, his observations of the President of the Republic added that with regard to the

the above considers it necessary, to the Constitutional Court before the

the ratification of the Lisbon Treaty has provided a clear answer to whether the Czech

Republic will remain even after the entry into force of the Lisbon Treaty, the Supreme

the State and the full body of the international community, are eligible

separately and fully comply with the obligations arising out of the

international law, whether the provisions of the Lisbon Treaty on direct

the national impact of EU legislation in accordance with article 6(1). 10 of the Constitution

The United States, that the EU Charter of fundamental rights has the legal status of

the international treaty under art. 10A, or article. 10 of the Constitution and, if so,

that all its provisions in accordance with the Charter of fundamental rights and

the freedoms of the United States, or other part of the constitutional order, whether

The European Union will remain after the entry into force of the Treaty of Lisbon

international organisations or institutions to which article. 10A of the Constitution

allows to transfer the powers of the authorities of the Czech Republic, and if the

The Treaty of Lisbon amends, albeit indirectly, the accession treaty, whether

then apply implicitly and the Lisbon Treaty Constitutional Act No.

515/2002 Coll., on the referendum on the accession of the Czech Republic to the European Union

(in which it would then be necessary to amend, in particular, the question for the referendum)

-i.e. whether it has to be therefore consent to the ratification of the Lisbon Treaty

the subject of the referendum.



29. the observations of the President of the Republic also contains summaries in which the

as a legal party to the proceedings before the Constitutional Court considers the

substantial and comprehensive assessment of the content of the Lisbon Treaty to be absolutely

a key assumption of its ratification. From the preamble to the proposal of the Senate and of the

the contents of this representation according to the President of the result completely self-explanatory

evidence that the Lisbon Treaty represents a fundamental change in our

the constitutional order and the international position of the Czech Republic. The President of the

does not consider it possible to make such fundamental changes in the international

the position and the inner workings of the United States, that the adoption of the

The Lisbon Treaty will undoubtedly bring, occurred as if involuntarily, without their

clear naming, understanding and political and social consensus.

The Constitutional Court, as the highest legal authority of our State is, according to

the President is obliged to give political representation and the general public a clear

and a comprehensive assessment of the Lisbon Treaty in all its contexts

so, to make it possible for its ratification clearly and with full knowledge

its consequences responsibly. The Lisbon Treaty brings

a fundamental change in the nature of the European Union, and the legal status of the United

States not only as its Member State, but as a

sovereign and sovereign State at all, which until now has been, and is. Before

The Constitutional Court therefore, in the opinion of the President is an immense

liability against not only today, but also to the future of our State,

the 90. just this year's anniversary as a reminder.



IV.



30. June 10. 6.2008, the Constitutional Court received the observations of the

the Chamber of deputies of the Parliament of the Czech Republic. In the comments, it is stated that when

the hearing by the Parliament of the Czech Republic to international treaties is in

Today, the Government is presented to the international

the contract of each Chamber individually and discussing in the Chambers is not mutually

No process-conditional on or subject. Is said to be possible to talk about the so-called.

the principle of dvoukolejnosti consideration of international treaties. Due to the

the Chamber of deputies are not obliged in this case to

break discussing an international treaty until the constitutional shall decide

the Court, at the same time, the Treaty is being discussed in the bodies of the Chamber of Deputies.

The contract was submitted to the Chamber of Deputies, 29. January 2008 as a print

407/0. The text of the agreement was circulated to members on 5 December. February 2008 and

the Organizing Committee consideration of the Treaty, the Rapporteur recommended John

Hamáček and suggested her to order to discuss foreign Committee. The first

the reading took place on 28. a meeting of the Chamber of Deputies on 19 and 20 June. and 20.

March and 1. April 2008. During the hearing there was a proposal to 407 printing

the rejection, a proposal for an adjournment, the proposal on the commandments all expert committees

The Chamber of Deputies, and the proposal to extend the deadline for projednáni to 150


days if the applicant will agree. It was also suggested

the adoption of the accompanying a resolution that asks the Constitutional Court of the Chamber of Deputies

pursuant to article 87 paragraph 1. 2 of the Constitution about the conformity of the Agreement with the constitutional

policy in the United States. Of the above proposals, the Chamber of Deputies

April 1, 2008, the Council directs the press to discuss 407

ústavněprávnímu Committee, the Committee for European Affairs and foreign

of the Committee and extended a deadline for comitology, i.e. about 20 days.

to 80 days. Of the committees, which have been allocated to the discussion of printing, 407

It is on the agenda included the Committee for European Affairs for the time being,

that is its resolution on 35. meeting on 22 November. May 2008 held

discussion of break. On the agenda of the meeting the other two above

referred to committees, which have been discussing the Treaty, has not been ordered to

According to the observations so far, 407 print included.



In the.



31. the Government of the United States in its statement of 2 July. 7.2008 at home

part of the informatively stated that 23. July 2007 in the framework of the meetings of the

The Council for General Affairs and external relations Council formally launched

the Intergovernmental Conference, during which it should be drawn up on the basis of

the so-called final text of the proposal. The reform Treaty, in accordance with

the mandate approved by the European Council of 21 and 22 June. -22. June

2007. The draft text of the reform treaty in the coming months was

discussed and modified by a group of legal experts from the Member States

The European Union and finalized at the informal European Council meeting in

Lisbon in days 18. -19. October 2007. The Treaty of Lisbon consists of two

basic parts; one part contains the amended Treaty on European Union,

the second contains the text of the amendments of the Treaty establishing the European Community,

including its renaming to the Treaty on the functioning of the European Union. The Government of the

The United States approved the negotiation of the Treaty of Lisbon resolution No. 1367

from day 4. in December 2007, and the contract was signed by the authorized representatives of the

the EU Member States in Lisbon on 13. December 2007; for the Government of the United

States have signed the Lisbon Treaty, the Prime Minister m. Topolánek and

Minister for Foreign Affairs k. Schwarzenberg. On the basis of the same resolutions

the Lisbon Treaty was on 29. January 2008 presented to the Prime Minister

The Chamber of deputies of the Czech Parliament and the Senate to vote

consent to its ratification within the meaning of article 87(1). 10A of the Constitution. Both houses of

Parliament was due to transparency, together with the Lisbon

the Treaty also submitted to the Charter of fundamental rights of the European Union (hereinafter referred to

"the EU Charter"), solemnly proclaimed by the European Parliament,

The Council and the Commission on 12 April. December 2007 in Strasbourg, although formally

It is not a part of the Lisbon Treaty.



32. in its observations, the Government further stated that the path from the contract of

Nice to the new contractual base wine in the Lisbon Treaty was

complex and in the process raised a number of questions related to the

the primary EU law-session laws, respectively. the constitutional order of the Member

States. A number of bottlenecks was discussed already in the Convention on the

the future of Europe, which prepared the draft Treaty establishing a Constitution for Europe;

the Government again on one of them, identified also in the design of the Chamber

(in particular, the so-called transition clause and the Charter of the EU), and in the course of

negotiations on the text of the Lisbon Treaty. In this sense, the Government considers the

as legitimate, that the Senate took advantage of their constitutionally guaranteed rights, and handed

the proposal, which will allow to dispel doubts about the accordance of the Lisbon Treaty

with the constitutional order of the Czech Republic before the entry of the Treaty in

force.



33. For the text of the Lisbon Treaty the Government first-in General-has stated that

responsibly analyzed its provisions, including those of problematic

points already in the course of the negotiation and signed the Lisbon Treaty in

the belief that it is in its entirety in accordance with the constitutional order

Of the Czech Republic.



34. From a procedural point of view, the Government in formulating their observations

based on a legal opinion that the decision of the Constitutional Court pursuant to art. 87

paragraph. 2 of the Constitution concerning the compliance of international agreements referred to in article. 10A with constitutional

policy management is undisputed, not contradictory. The Government has so

in particular, the interpretation of the relevant provisions of the policy framework of the Constitution and the law on

The Constitutional Court, according to which it is a procedure for international

the Treaty with constitutional order (ESP. section 71a (1) and section 71 d, paragraph 3, of the law

on the Constitutional Court). Control of compliance of international agreements referred to in article. 10A

It is based on the principle of prior control of constitutionality and decided

the character of the proceedings can be said to be inferred from section 71e law on the Constitutional Court,

that details of the operative part of the award by the Constitutional Court. The Government, therefore,

considers that the review of the constitutionality of should not be limited only to specific

the claims formulated by the applicant, but also on other questions related

with the Lisbon Treaty; the applicant would, in the opinion of the Government should not be

burdened with the burden, as well as the Government should not be in the

the position of the respondent, but the participant shall have the same procedural rights and

obligations as the other parties to the proceedings, in particular, the Chamber of Deputies

and the President of the Republic.



35. In its observations, it is further stated that, in particular, if the Lisbon

the Treaty considered in relation to the formal attributes of the State enshrined in the

article. 1 (1). 1 of the Constitution ("the Czech Republic is a sovereign, unified and

a democratic legal State "), the Government does not find it here. As a result of

the entry into force of the Treaty of Lisbon will be newly konstituována

The European Union with legal personality and the Member States to the Union

conditionally transferred additional powers, but in the case of the Czech Republic

so constitutionally Conformal manner pursuant to art. 10A of the Constitution; Czech

the Republic, however, it will remain a separate, sovereign State.

According to the belief of the Government is, however, necessary to focus primarily on the

the assessment of the Treaty in terms of the so-called. the core of the Constitution, i.e. the material.

the essential formalities democratic State pursuant to article 4(2). 9.

2. the Government is of the view that the theory of imanentních the limits of the guarantee

the identity of the Constitution, expressed in this article, by itself, is sufficient to

in the Czech Republic to avoid the full value conversion

the constitutional system. The Government is of the opinion that there are unwritten bounds for

Amendment of the Constitution; changes and expansion of the constitutional order are in accordance with the

the material at the core of the Constitution if it is guaranteed by the system-

Conformal development Czech Republic and there is no overcoming the

value system in which the Constitution as a whole rests. With reference to the

article. 2 of the EU Treaty (' the Union is founded on the values of respect for human

dignity, freedom, democracy, equality, the rule of law and respect for

human rights, including minority rights ") is considered by the Government in General

obvious that both the constitutional system of the Czech Republic, as well as the contracting system

The European Union is based, and are based on the same principles and principles,

that are common to all Member States of the European Union.



36. Representation is further dedicated to each of the specific arguments and considerations

raised in the draft of the Senate.



37. First, in this way the Government deals with the question of the definition and

classification of the powers of the EU. In this respect, is based on the belief that

legislative competences competences "belongs to the Member States of the European

the Union, which said the Treaty of Lisbon confirms, in the article. 5 (3). 2

Of the EU Treaty. The Government considers that this principle in relation to the definition of

the powers of the Union for the core and fully identifies with him. She is convinced

the definition and classification of powers introduced by the Lisbon Treaty

do not imply that the European Union has gained any attributes

Federal State.



38. in relation to the exclusive competence of the European Union, the Government states that this is not a new

loading category of EU competences, as this kind of powers already

exists and is applied by the community according to the valid version of the Treaty

establishing the European Community, though not the exclusive competence of

explicitly listed in a separate provision. The existence of the exclusive

the powers already according to the existing EC Treaty, it is clear from her

article. 5 (3). 2, which establishes the principle of subsidiarity in relation to shared

powers; the definition of exclusive competence can be found even in the established

case law of the European Court of Justice. Definition of downloadable now

The Lisbon Treaty, the concept of exclusive competences according to the Government in no way

does not expand; comprehensive legal regulation of fall between the exclusive

competence of the community as of now (as an example common

trade policy or rules to ensure undistorted economic

competition).



39. with regard to the category of shared competence of the Union, the Government again

recalls the principle of conferral of powers, which is a general principle of

enshrined in article. 5 (3). 1 of the EU Treaty: "the limits of Union competences are

governed by the principle of conferral of powers. The exercise of these powers shall be governed by the principles of

of subsidiarity and proportionality ". From these principles will depend on

exercise of the powers of the Union to continue after the entry into force of the Treaty of Lisbon.

In the light of the principle of conferral is therefore-according to the Government-should be

to interpret all other provisions of the EU Treaty and the Treaty on the functioning of the


The EU, which relate to the powers of the Union and the delimitation of competences between the Union and

by the Member States. The Government is of the opinion that the fear of the applicant relating to the

difficult to advance the EU standardisation is not identifiable, the realm

justified. You can, of course, is not exhaustive to anchor each

powers so detailed way to always accurately reflect

a particular legal act of the Union, which are realized. However, it is possible, and

The Treaty of Lisbon so clearly is, to anchor a well-defined

the areas in which the Union can normotvorba take place. The Government later in this

context, drew attention to the Protocol on the exercise of shared competence,

annexed to the Treaty on European Union and to the Treaty on the functioning of the EU, which expressly

States that if the Union has taken in some of the areas of shared competence

measures, the scope of the exercise of its powers only on the

elements that are regulated by the Act of the Union, and not to the entire

area. To the category of shared competences, to further the Government again pointed to the

This, in addition to the principles commit acts to set limits to the exercise of the powers

The Union is also the principle of subsidiarity enshrined in article. 5 (3). 3 of the EU Treaty

that represents a significant tool to the balanced distribution of shared

of competences between the Member States and the European Union.



40. The next part of the observations of the Government refers to the so-called. flexibility clause under article 5(2).

352 TFEU; from the wording of this provision is referred to in

Obviously, the Government is not a blanketní standard. In order to enable the Union to

the basis of the Treaty of Lisbon article. 352 para. 1 of the Treaty on the functioning of the EU

use must be in relation to a proposed legislative act

satisfied the conditions contained therein. To use clauses

flexibility is also subject to the two declarations annexed to the final

Act of the Intergovernmental Conference in preparation for the Treaty of Lisbon, which apparently

put the extensive interpretation and limit excessive use of this clause.

Further extension of the limits of flexibility clauses are again

the principle of subsidiarity, which acts as an abstract limit the expansion of

the Union's powers, and its observance is checked by the national

parliaments (article 352 (2) of the Treaty on the functioning of the EU), and the exclusion of

the application of the flexibility clause in the area of the common foreign and

security policy, and the exclusion of harmonisation of legislation

the Member States on the basis of the flexibility clause in cases where the Treaty

exclude such harmonisation. This is according to the Government in advance of use

the flexibility clause to the harmonisation of legislation in the areas in

where the Union has only supporting, coordinating or complementary competences.



41. With regard to the simplified procedure for the adoption of amendments to the treaties,

the Government has a fundamental difference in the article. 48 para. 6 and article. 48 para. 7 of the EU Treaty.

According to the article. 48 para. 6 of the EU Treaty namely the change all or part of the

the provisions of part three of the Treaty on the functioning of the EU, which relate to the

internal Union policies and activities, in addition, be subject to a unanimous

decision of the European Council approval of all Member States in accordance with

their respective constitutional requirements. The Government is of the opinion that, in terms of

the constitutional system of the Czech Republic would be such a change, if its

the basis of transmission existed other powers of the authorities of the Czech Republic

The European Union, subject to the approval of Parliament, according to the article. 10A of the Constitution, and

the Government is therefore convinced of the line article. 48 para. 6 of the EU Treaty with

the constitutional order of the Czech Republic. When the procedure under article 5(2). 48 para. 7

Of the EU Treaty (the so-called "transition clause) may occur in the context of the powers

already transferred to the level of the Union to change the voting procedure (from the

unanimity to a qualified majority) or change of the legislative

procedure (from special to ordinary legislative procedure). The relevant

decisions shall be taken by the European Council, acting unanimously after obtaining the consent of

Of the European Parliament. Before such a decision may be taken,

the proposal shall be notified to the national parliaments. If one makes

the national Parliament within six months from such notification, your

disagreement, the decision shall not be adopted. However, this procedure is subject to the

the EU level of consent by the European Parliament, at the same time

remains in force control at Member State level by the

of national parliaments, which the Government considers essential.



42. In the opinion of the Government with regard to the relationship of the so-called. the transition clause in

meaning of article 87(1). 48 para. 7 of the EU Treaty to article. 10A of the Constitution of the Czech Republic,

would it be possible, from a formal point of view argue that in its application

indirect change Contracts without would be such a change

subject to ratification by the Member States in accordance with their respective constitutional

the legislation, as is the standard for international treaties. The Government, however, is

considers that, in relation to the so-called. transition clause can be considered

populate the article. 10A of the Constitution of the Czech Republic in the context of the transfer of powers to the

The European Union as a result of ratification of the Lisbon Treaty vote

consent to the procedure under article 5(2). 48 para. 7 of the EU Treaty, which



Pro futuro

It allows the European Council with the agreement of the European Parliament and

the specified conditions to opt for individual cases or areas of

change the procedure, voting in the Council or a change in the legislative procedure.

So the act ratifying the Czech Republic gives the position of the sovereign

Member State to consent to future modifications in performance of the delegated

powers in clearly defined the limits of the article. 48 para. 7 of the EU Treaty.



43. The application of the so-called. transition clause does not, therefore, in the opinion of the Government of

violation of the principle of sovereignty of States, when adopting

international legal obligations. The principle of the sovereignty of a Member State,

reflected in the requirement of unanimity decisions of the European Council and the law

each national Parliament to reject the proposal.



44. the Government also considered it necessary to comment on the article. 83 of the Treaty on

functioning of the EU (Note: 69b, respectively), the possibility of fixing zakotvujícímu

minimum rules concerning the definition of criminal offences and sanctions in

the areas of particularly serious crime with a cross-border dimension.

Article. 83 para. 1 the third alinea of the Treaty enables the Council

to adopt, on the basis of developments in crime unanimously after obtaining the

the consent of the European Parliament decision identifying other areas of

crime, which fulfil the criteria referred to in article. 83 para. 1

The Treaty on the functioning of the EU, beyond the areas explicitly specified by this

provision. In the opinion of the Government of the procedure referred to in article. 83 para. 1 the third alinea

Treaty on the functioning of the EU does not constitute an amendment to the contract, the simplified procedure

a similar mechanism under article. 48 para. 7 of the EU Treaty. The Government takes the

the view that the Treaty of Lisbon delegation occurs on the authorities

The Union, in the framework of the established procedures (unanimously adopted the decision

The Council after obtaining the consent of the European Parliament) to define on the basis of

development of crime areas of particularly serious crime with

cross-border dimension, and some such areas is already provided for

directly to the Treaty on the functioning of the EU. According to the Government, it should be noted that the

that provision does not have the immediate relationship to the transition clause

enshrined in article. 48 para. 7 of the EU Treaty.



45. The Government further expressed to the issue raised by the claimant, whether the

does not perform the actual flush article. 15 paragraph 1. 1 of the Constitution. The Government is

convinced that not since the essence of the integration mandate

contained in article 81(1). 10A of the Constitution of the Czech Republic is the principle of self-limitation

the authorities of the Czech Republic. When the delegation at the international

organization or institution is an inevitable consequence of the fact that

body, whose powers have been transferred, shall cease to be in this range.

However, all other powers shall be exercised by him in accordance with the

constitutionally defined division of power.



46. On the question of the negotiation of international agreements, the Government considered it necessary to

recall that in the early stages of the development of the European economic

the community was based on the assumption that, in accordance with the theory of

limited powers, it is for the community the power to conclude

international agreements only if they are expressly authorised, in

the founding treaties. With the passage of time, however, it became clear that the operative

the text of the founding treaties does not match the real needs of the community and

its Member States. It was therefore necessary to find a way to streamline

Community action in the session to third States and how to achieve greater

accordance between the powers at its disposal, the community, and those

at its disposal in its external relations with third States. Go beyond

express authorisation by the rules in the founding treaties allowed at the beginning

the 1970s, 20. century, the judgment of the European Court of Justice in

the legal matter of the AETR (judgment of the European Court of Justice in the legal stuff

C-22/70, 1970, ECR 263); in the European Court of Justice deduced that

If there are internal competence of the community to edit the appropriate legal

area, it shows in order to promote the objectives of the founding

Treaties of the power to act on behalf of the community on matters falling within the

this sphere also in relation to third countries (theory of parallelism

internal and external powers, Pur powers). The mandate of the EU to the conclusion


international treaty-based representation of Government-can in the present

legal status be based as the founding treaties, so the lower

legal instruments of Community law, which were released to achieve EU objectives,

as defined in the present article. 2 of the EC Treaty. The Government, therefore, does not find it, that

should the article. 216 et seq.. Treaty on the functioning of the EU widened existing circuit

legal titles, on the basis of the EU after Lisbon

Treaty enters into force shall be entitled to enter into international agreements, and

notes that the provisions of the Treaty on the functioning of the EU in fact

only codified what was already as a result of long-term development

previously developed and steady in case law of the European Court of Justice.



47. as regards the voting procedure in the Council, the Government considers it necessary to

noted that article. 216 et seq.. Treaty on the functioning of the EU turns out only on

the negotiation of international agreements for the purpose of meeting the objectives

communitarised policies. The area of the so-called. the second pillar, i.e.. the area of the

common foreign and security policy, continue to retain their

specific status and international agreements negotiated by the EU in this sphere (article.

37 of the EU Treaty) will be after the entry into force of the Treaty of Lisbon

concluded unanimously (article 24, paragraph 1, second alinea in conjunction with article 31

paragraph. 1 first alinea of the EU Treaty). Even in the area of communitarised

the policies, however, apparently is not a qualified majority being taken as a lump sum without

taking into account the nature of the subject of negotiated agreements. Article. paragraph 218. 8 alinea 2

Treaty on the functioning of the EU lists the cases where the EU Council decides

on the contrary, by unanimity.



48. On the question of defining the extent of the area that the Treaty of Lisbon

leaves the Member States to fulfil their constitutional requirements in

the process of the negotiation of international agreements with third countries, the Government provides,

that the identification of the boundaries of this area did not result from the provisions of article. 216 and

subs. Treaty on the functioning of the EU but of the provisions in title of the first treaty

the functioning of the TEU on the types and areas of the EU (see

above). It is clear from those provisions that, in respect of the arrangement of the so-called.

external contracts is, in principle, retained the existing concept that distinguishes

two categories of international treaties. The first of these are contracts concluded

the exclusive competence of the EU, which are not subject to and even after the Lisbon

Treaty enters into force are not subject to national type-approval

procedures. That's because the jurisdiction of the United States to enter into this type of

international treaties have already been referred to in article. 10A of the Constitution the Czech authorities

the Republic transmitted to the EU institutions. The second category consists of the so-called. mixed

the Treaty, which is currently the European Community concludes with the third

States, together with its Member States (the EC and its Member States is

next to each other and together form one Contracting Party). This common

the process is inevitable, because according to the Government, the European Community is not in the

the chosen law sufficient power to negotiate the contract or subsequently

perform, and therefore urgently needs the synergy of its Member States.

Member States may allow the European Community to the

interaction only when its regulations shall give justice to ústavněprávním.

If it was such a mixed international agreement at national level in

The Czech Republic is evaluated as presidential category in

meaning of article 87(1). 49 of the Constitution (which is the most common case), then it would

Czech Republic could agree to the negotiation of the Treaty only after

This intention will be approved by the Government and both chambers of the Parliament of the United Kingdom and

Subsequently, the President of the Republic to ratify the contract. The described procedure, and

material legal basis according to the observations of the Government cannot change anything even

the fact that the EU will henceforth be endowed with its own legal personality.



49. the Government further stated that, in the assessment of the conformity of the Lisbon

the Treaty with the constitutional order of the Czech Republic puts forward the applicant a

a number of questions relating to the status and importance of the EU Charter of fundamental rights,

as well as its relationship to the national catalog of fundamental human rights and

freedoms and the European Convention for the protection of human rights and fundamental freedoms.

From the perspective of the Government, the EU Charter is technically a separate

nekonsensuální the nature of the document. At this point, has said the nature of the legally

non-binding, by its nature, a purely political document containing

the catalogue of human rights and freedoms. Thanks to the legislative reference contained in the

the new article. 6 (1). 1 of the EU Treaty, which provides that: "the Union recognises the

the rights, freedoms and principles in the Charter of fundamental rights of 7 December 2004.

December 2000, as adopted on 12 April. December 2007 in Strasbourg

which has the same legal value as the treaties. ', the Charter of the EU entry

Into force of the Lisbon Treaty, in fact inkorporována into a contractual

the acquis. The extent of their jurisdiction, while keeping your

a special legal system in EU law, developing legal effects

the bodies of the Member States without the need for the reception of its standards

national legal act. The application advantages before the standards

the national law of the Member States, however, according to the Government there should be

in relation to the so-called. material the core Institute of the Member States, which expressed

the Czech Constitutional Court. The above properties of the Charter of the EU, in addition

shall apply solely in the scope laid down in the Treaty of Lisbon

article. 6, and alinea 2 of the Treaty on EU and the horizontal provisions in title

VII of the Charter of the EU itself. According to the article. 51 para. 1 of the Charter of the EU are its

the provisions of the first and foremost addressed to the institutions, bodies, offices and agencies of the

The Union; on the contrary, the Member States only in so far as they apply the law of the

Union.



50. According to the applicant, if the Union does not have the Court which

its provisions in specific cases of violation of civil rights

He said, it is not the role of the Charter. To do this, the Government, in particular, stated that

The Charter of the EU will be inkorporována via the link to the contractual

the acquis and, therefore, will be able to some of its provisions to

the nature of subjective rights, enforceable directly invoked by individuals

how, before the courts of the Member States (if they apply EU law), as well as before

European Court of Justice. The question of whether the Charter is the protection of the

rights of the citizens, or rather an interpretative instrument, in which the angle of vision are

interpreted the powers of the authorities or prohlubován the interpretation of the objectives of the Union

monitors, the Government stated that the EU Charter is a modern catalog and has

in parallel to perform both functions, thus protecting the individual and to provide for

the limits for the exercise of the powers of the EU institutions, Member State authorities

in the application of EU law. The Government concludes that the Charter of the EU there will be

parallel to the catalogues of fundamental human rights and freedoms, which are

part of the constitutional law of the Member States, without thereby in relation to purely

National subject matter however changed their range. According to the belief

the Government does not occur as a result of the application of the Charter of the EU to reduce the standard

national protection of fundamental human rights and freedoms.



51. In the next section, the Government expressed to the provisions of article. 2 of the EU Treaty,

that the applicant should be the subject of a review of its compliance with the

article. 1 (1). 1 and article. 2 (2). 1 of the Constitution. The Government navrhovatelovy views

not shared; reminding UOM. the values referred to in article 14(2). 2 of the EU Treaty are

Since the early 1990s. century, when the Czech legal order

gradually demokratizován, imanentními substantive components.



52. The possibility of suspension of rights, which for the Member State resulting from

Contracts, in its observations, the Government noted that this option cannot

refer to the basic characteristics of the violation of the Czech Republic as

a sovereign, unified and democratic State under art. 1

paragraph. 1 of the Constitution, nor the principle of sovereignty of the people enshrined in an article. 2 (2).

1 of the Constitution, as it is a penalty against a Member State in the case of

violations of the values on which the EU is founded. These values include, as already

mentioned above, to the basic principles of the Constitution also protected the United

of the Republic. Therefore, the Government does not share or concerns from interfering with

the sovereignty of the United States through political pressure, the head of the

changes to national law in the event of violations of these

values on the part of the United States. If the Czech Republic to comply with

its own Constitution, suspension of rights arising for it from membership in the

The EU is not an option, in the opinion of the Government into consideration.



53. With regard to the above arguments, the Government is of the opinion that

all the provisions of the Lisbon Treaty, to which it refers in its submission

the appellant, as well as the Lisbon Treaty in their entirety are in

accordance with the constitutional order of the Czech Republic.



Vi.



54. In oral proceedings before the Constitutional Court, held on 25 April. 11.2008,

by the plaintiff (the Senate of the Czech Republic), Vice-Chair of the Senate

Jiří Šneberger and Senator Luděk Sefzig. Both essentially reiterated

the arguments contained in the original proposal already and no suggestions for any

replenishment of the taking of evidence in the case by the parties concerned.



55. the Chamber of deputies of the Parliament of the Czech Republic, its President

Miloslav Vlček, in principle, to refer to the observations sent by the previously

To the Constitutional Court.



56. For the Government of the United Kingdom Deputy Prime Minister for European

Affairs Alexander Vondra essentially reiterated the views contained in the


The Constitutional Court delivered observations and reiterated that the Government is

convinced of the accordance of the Lisbon Treaty with the Czech constitutional order

of the Republic.



57. the President Václav Klaus pointed out, in particular, at a hearing on

the wider context of the case. If the Lisbon Treaty enters into force, changes

According to his opinion, as international standing and internal ratios

our State and will be weakened by the weight of the United States in deciding on the

Of the European Union.



58. the President reminded again of his questions, previously in his

expression of the highest constitutional court, which it considers the most important:

first of all, whether the Czech Republic-after Lisbon

Treaty enters into force-remained a sovereign, democratic and legal

State, secondly, whether the Czech Republic had continued to be a full

a member of the international community, individually and without the rest of the eligible

to comply with obligations under international law and under the

third, whether the European Union remains an international organisation, or whether it would

become a federal State, and that our Constitution will permit the Czech

Republic became a minor part of the State of this type.



59. Furthermore, the President pointed out to the Government and involved in the

the argument based on the legal doctrine of so-called. material core

of the Constitution. Unlike the Government, the President is of the opinion that the Lisbon

the contract is nesouladná not only with the constitutional order as a whole, but also to

the basic constitutional principles that are just under the doctrine of

the material Constitution of the core-inviolable and immutable (article 9

Of the Constitution). In this context, further stated that the basis for the Constitution (and thus

its a hypothetical material cores) is the principle of the sovereignty of

the State, which it said held two years ago and the Czech Constitutional Court in the case of

the so-called. sugar quotas if it refused to recognize the doctrine of the European Court of

the Court of the absolute primacy of Community law. According to the President goes

in particular, they should belong to the so-called. "competency competency". This

the topic does not consider the new President; the Constitution had to be amended before the

accession to the European Union, but also the then so called. euronovela had to

respect the provisions of article 9 of the Constitution. Therefore, to allow the institutions of the European Union

transfer "only" some specific powers of the authorities of the Czech Republic, but

Let bring your sovereignty. This was supposedly told that when

any transfer of powers must be transmitted over the powers explicitly and

clearly defined and that there must be no possibility that the EU institutions could

interpret the transmission range of the powers themselves or to even themselves on

yourself to transfer additional powers.



60. The principle of the sovereignty of the State is, in the opinion of the President in the

the concept of shared variance of the powers referred to in article 4

consolidated versions of the Treaty on the functioning of the European Union on the adoption of

measures beyond the Union's competences, "if it is necessary to achieve the

one of the objectives set out in the treaties referred to in article 352 para. 1

consolidated versions of the Treaty on the functioning of the European Union (the so-called.

the enabling clause, a flexibility clause), and a simplified procedure for

adoption of amendments to primary law according to art. 48 of the EU Treaty,

the so-called. passerella. Particularly controversial is said to be. the doctrine of implied

the external competences of the European Court of Justice in zformulovaná 2006,

to allow negotiate international treaties even beyond the competences of the EU.

The Treaty of Lisbon so as the President begins the process, at the end of

will be suverénem the European Union, which will be in regulations or other

a unilateral form of set standards and rules for how each of the

Member States, as well as the citizens of those States. The major limitations

the sovereignty of the United Kingdom and other Member States of the European Union

In addition, it is not in the text of the Lisbon Treaty clearly and openly designed and

is not explicitly identified as the intent and objective of an arrangement that has this

a contract to bring.



61. Another important element of the so-called. the core of the Constitution, according to the material

the President and the principle of the sovereignty of the people. Therefore, it is appropriate to ask the

the question of who is the source of legal and political power in the European Union. The people of this

in the opinion of the President in any way not because of the "European people"

does not exist. Power in the EU is derived from the institutions that were created on the basis of

intergovernmental agreements or contracts. If the Treaty of Lisbon has entered into

into force, it would be possible "from above", from Europe,

exekutivně to enforce what no national Parliament would never

approve. She developed the ability to circumvent national

legislatures in Member States, including the Czech Republic,

fundamentally weakening democracy. The Lisbon Treaty is, therefore, in the opinion of

the President at odds with the constitutional principle of the sovereignty of the Czech people.



62. Furthermore, the President criticized the vagueness and ambiguity

conflicts of provisions of the Lisbon Treaty. These provisions will be

interpret and implement the European Union institutions, supposedly known tendency to interpret

competences of the Union in the widest possible extent. This is in contradiction with article. 1

The Constitution, as the Czech Republic is a State as well as the legal, whose essence is,

the rules are fixed and known in advance.



63. The next part of their performances, the President criticized the view of the Government that

The Treaty of Lisbon, if accepted, the de facto indirectly amends

The Institute because he automatically becomes a part of it. This approach

the President is considered bad, because article 112 of the Constitution an exhaustive list

It lists as part of the constitutional order of the Institute itself, only the United

States, the Charter of fundamental rights and freedoms and constitutional laws and

makes no mention of any international treaty; even does not mention even of the Treaty

referred to in article 10 of the Constitution. All of this apparently implies that even though, according to

Article 10 all Parliament approved the international treaty

take precedence over the laws, do not reach the force of constitutional law, or

do not create a Constitution, and therefore cannot be a part of it.



64. It follows from all of the above reasons, the President of the Republic considers that the Lisbon

contract nesouladnou with the Czech constitutional order.



VII.



The basic factual information



65. The Treaty of Lisbon (LS) amending the Treaty on European Union (EU) and

The Treaty establishing the European Community (EC) has submitted to the Government

Parliament of the Czech Republic with a request for consent to its ratification date

25.1. 2008. The Government agreed to the negotiation of the LS, 4 June. 12.

2007. The Lisbon Treaty was signed in Lisbon on 13. 12.2004. For

It was signed by the Czech Republic Prime Minister Mirek Topolánek and Minister

of Foreign Affairs Karel Schwarzenberg.



66. According to paragraph No. IV Government report making this contract according to the

article. Article 10A(1). 1 of the Constitution of the Czech Republic, as subsequently amended,

as the EU takes on the basis of some of the new powers and in some

cases, moving from unanimity to qualified majority voting

majority. At the same time this contract is called. "presidential" category,

that requires ratification by the President of the Republic.



67. According to the article. Article 10A(1). 2 of the Constitution, to ratify such international

the contract requires the consent of Parliament (or, Alternatively, in the case of

the existence of the Constitutional Act, consent in a referendum). According to the article. paragraph 39. 4

The Constitution, to consent to the ratification of the conventions referred to in article 14(2). 10A

paragraph. 1 it should be a three-fifth majority of all members consent, and

a three-fifth majority of the senators.



68. In that case is according to art. 87 para. 2 of the Constitution established the competence of

The Constitutional Court may decide to comply with the constitutional order of the LS. Are

and the legal requirements of this proceeding within the meaning of the provisions of section 71a and

subs. Act No. 182/1993 Coll., on the Constitutional Court, as amended

regulations.



69. The Lisbon Treaty is published in the EU official journal, C series

306, the Czech edition of the "information and notices", volume 50, 17. 12.2007.

The EU Charter of fundamental rights, proclaimed by the European Parliament, the Council and the

By the Commission, is published in the EU official journal, C series 303, "information and

the announcement of the EU institutions ", on 14 June 2005. 12.2007.



VIII.



70. before the Constitutional Court went to the content of the review of the Lisbon

of the Treaty in terms of its compliance with the constitutional order of the Czech Republic,

He had to answer several fundamental questions relating to the nature of the

the procedure and criteria the review itself.



71. first, it was a question of to what extent is the Constitutional Court, in its

a review in the context of proceedings under section 71a of the law on the Constitutional Court is bound

the design of the Senate (in the range of specific articles, whose review of the Senate

motivated), or whether it is entitled to, or even be obliged to review the

The Lisbon Treaty in its entirety, even in relation to articles

the other, regardless of the scope and justification for this proposal. Additionally,

It was a question of whether the Constitutional Court to examine only the provisions

The Treaty of Lisbon, which are arbitrary from the perspective of your content new

Therefore, whether such a review without a major distinction between

arbitrary old and new provisions of the Lisbon Treaty. Finally, it is

need to deal with in this context, what is to be, in itself,

the reference point of the review of the Constitutional Court, simply expressed, whether

It is the constitutional order as a whole, or only called. material focus

Of the Constitution.




72. In the first stage, therefore, the Constitutional Court focused on the consideration of the procedural

questions the scope of review which has been – at least in theory-be (according to the

the appellant and certain terms) should be directed either to the entire

The Treaty of Lisbon or just on the design zpochybňovaná the provisions of this

of the Treaty. The proposal is designed so that, in General, calls for a review of the entire

the Treaty, however, specifically argues against only some of the

provisions as from the above passages clear.



73. The Constitutional Court first preliminary point that in this case Mr. does not intend to

distinguish whether this is about control of the disputed or undisputed classic concept

civilistickém. This is a very specific procedure for the review

the constitutionality of international treaties, which the Constitutional Court he conceived in a way that

is interpreted in the following text.



74. The Constitutional Court is here to give priority to the conclusion (the rising of the analogy

its constant case-law in the field of review of legislation)

focuses only on the design challenged and expertly justified

the provisions of the international treaty in question. A similar character also has a control

on the review of the constitutionality of laws within the meaning of § 64 para. 1 of the law on the constitutional

the Court; for example, the Constitutional Court there. expressed that, even if it is in the assessment

constitutionality of legislation is bound only Petite design and not its

the reasoning does not follow from this conclusion that the plaintiff in proceedings for review of

standards, argues the content of the incompatibility of the legislation with the constitutional

policy, does not burden the burden of claims. Oppose-if the petitioner against the

content-related non-compliance of the law with the constitutional order, for the purposes of the constitutional

the review is not sufficient merely to cancel the designation of the proposed law,

eventually. its individual provisions, but it is necessary to mention the reason

the alleged unconstitutionality. The Constitutional Court in the context of the review of this

the reason is bound; is bound only Petite, but not the scope of the review,

the reasons contained in the proposals on inspection standards (cf. find SP. zn.

PL. ÚS 7/03, a collection of findings and resolutions of the Constitutional Court, volume 34, finding

No. 113, pp. 180-181, promulgated under no. 512/2004 Sb.). The language of the provisions of §

71e law on the Constitutional Court, speaks about the international treaty at all and

not only its individual provisions, so it is not in relation to the

the burden of allegation (appellant)-and in view of the above,

the arguments contained in the cited award-unbeatable, but it should be

It landed in the meaning of interpret.



75. the Constitutional Court is the scope of the document instituting the proceedings, understood in the

the above concept, i.e., authorized by the applicant, as defined

specific provisions of the infected, bound and beyond is not

authorized to move. Legitimovaný body therefore actively puts in

those proceedings, which few of his initiatives (i.e.,

Optional), the burden of argument, which is required to fulfill. It is possible to add

that you try to the completeness of the constitutional review, nota bene with implications of barriers



REI iudicatae

, especially for large normative texts, prevents the epistemic argument

(noeticky impossible); normative argument is then based on the fact that

constitutional modification and drafting a law to the status of the Constitutional Court

the Court, and not the "interpretative". The Constitutional Court of the Czech Republic is

the judicial authority of the protection of constitutionality, the decision-making authority, and is not

the institution providing any views or opinions. After all, this

the concept is also confirmed by the exclusion from the circle of Governments who were stopped

the appellants ' review. The review is to be activated when it is

an international agreement submitted to Parliament for approval and when it is, therefore,

It may be assumed that in this period appear the opposition views on

its constitutionality. In the meantime, the Government must in negotiating international

contract control regarding its constitutionality of its own judgment and, where appropriate, itself

in the framework of negotiations with other parties to its particular

provisions to correct.



76. Another argument in favour of that view, the overall concept of the

the interim review of the constitutionality of international treaties in the context of section 71a and

subs. the law on the Constitutional Court. The sequence of each of the appellants,

as set out in section 71a para. 1, is guided by the idea to allow each of the

them to express their doubts as to the proper way of constitutionality

the present international agreements. If the Constitutional Court ruled on the

accordance of the Lisbon Treaty, that is, as a whole (in relation to all its

individual provisions, as it suggests not only the Senate, but in his

the observations of the President of the Republic and the Government also), in fact, by

made it impossible to apply the proposal to review a group of members of Parliament or senators who

have a separate evidence to file an application under section 71a para. 1 (b).

(b)) of the Act. While with the Government or with the President can be

restrictions to some extent remedied in the context of their participation in the current

control (which ensures their section 71 c of the law on the Constitutional Court), the Group

members of Parliament or senators has such an option. Review of legal

legislation or international treaties in their entirety, at a flat rate,

without the constitutional courts of the specific factual findings of the effects of

their applications or legal arguments, for that would be specifically defined

and identified the provisions of these regulations was to be unconstitutional,

Therefore, cannot be accepted.



77. the Constitutional Court thus concluded that the review carried out by it is concentrated

on the provisions of the Lisbon Treaty, whose consistency with the Constitution

the applicant expressly questioned and submitted arguments that are in

his design included.



78. Prima vista can therefore conclude that any new proposal on the review of the

This is identical to the Lisbon Treaty would probably was related to today

the contested provisions blocked by obstacle rei iudicatae. It must, however,

to assess the Constitutional Court only if the new proposal actually

filed; It can be noted that the question of rei iudicatae is for such a case

must be interpreted restrictively. However, if an application for review of the

a new (another) of the contractual document (though the content in whole or in part,

identical with the Treaty of Lisbon), then you will not be able (or not) about

the identity of things, but about the identity issue. Substantively the same provisions

such new contract document may, however, in the new text run

in other functional bindings, etc., than it is now. The assessment of such

the situation, in particular with regard to possible barriers to rei iudicatae-taking into account

the finding of the Constitutional Court adopted in this proceeding now-will be a thing of the

The Constitutional Court in the future, if the proposal for the review of

the constitutionality of a new (another) of the contractual document is actually filed.



IX.



79. The next question, which had to the Constitutional Court to resolve, has been provisionally

the circuit of the provisions of the Lisbon Treaty, which should be reviewed with a

regard to the already ratified and fully in the Czech Republic

applicable treaty on the accession of the Czech Republic to the European Union,

communication No 44/2004 Coll., m. s. (accession treaty). This is a range of

a review of whether the Constitutional Court shall act only on those in

the design of the contested provisions of the Lisbon Treaty, which can be used in

eventum considered arbitrary new, or about any infected and contentious

provisions.



80. According to the article. 87 para. 2 of the Constitution (as amended) the Constitutional Court ()

decides on the conformity of an international agreement pursuant to article. 10A and article. 49 s

the constitutional order, and that prior to its ratification. The decision of the constitutional

the Court cannot be ratified. Unlike the (draft)

A Constitution for Europe is not the Lisbon Treaty a new separate Treaty,

that would replace the existing complex of the founding treaties, but is merely a

amendments to the existing treaties (the Treaty on European Union and to the Treaty on the

establishing the European Community, which was renamed the Treaty on the

the functioning of the European Union), as do the other already earlier

amendments to the founding treaties.



81. in the context of the Lisbon Treaty can be-if very hard and

inadequately distinguished from the top-a defined point of view the following provisions:



a) provisions that are taken from the interpretation of the existing contracts

European Court of Justice;



(b)) the provisions that are taken from the existing contracts, for which, however,

There has been a partial modification (whether towards the extension of the competences of the Union

or limitation of competences of the Union);



c) derogation clauses which abolishes the existing contractual provisions;



d) provisions which are brand new and have no equivalent in the treaties

the existing.



82. the new provisions are certainly Arbitrary type b), c) and (d)). U

the provisions of and) it is questionable. Although interpretive consequences

existing agreements contained in the existing treaties implicite, can be

held that the express incorporation of a provision so far

the existing "only" in the case law, in certain circumstances it may

the normative significance of the change. The Senate proposal, moreover, a strict dividing line between

arbitrary new and old provisions of the Lisbon Treaty are not,

his reservations, however, mostly directed against the provisions, which can be

to be classified as arbitrary.



83. As already noted above, the identification of the apparently new

provisions can hardly be completely unambiguous. From the constitutional principle of

predictability, clarity and certainty of rights can be for the case


In addition, conclude that even if doubts arose, it is necessary to consider that in

the specific case of arbitrary new provisions, and submit the

review. It does not change the fact that an amended

the provisions are sometimes only the interpretative consequences of contemporary

legal status, according to the case-law of the Court.



84. In the opinion of the Constitutional Court or the ratification of the accession treaty, the

arbitrary high position of the constitutional order in the system of rights

acting on the Czech territory completely nevyprazdňuje. The Constitutional Court has previously

the exceptionally can be inferred inconsistency with international treaties

the constitutional order or human rights treaties by way of a decision on

constitutional complaints and ex post. He did so in particular in finding SP. zn. II. THE TC

405/02 (collection of findings and resolutions of the Constitutional Court, volume 30, finding no.

80). This finding refused individual application of the agreement between the Czech

Republic and the Slovak Republic on social security, which should

unconstitutional effects, and taking into account the extraordinary hardness, which could

the case in its application. It says that the Constitutional Court

is obliged to follow the provisions of article 88 para. 2 of the Constitution, according to which the judges of the

The Constitutional Court in its decision only bound by the constitutional order, and

the law on the Constitutional Court. The Constitutional Court, ruled that the agreement between the Czech

Republic and the Slovak Republic on social security is not

the contract, which could be regarded as part of the constitutional order and the

The Constitutional Court therefore cannot accept as a constitutionally compliant

application of any of its provisions that would result in the State,

that is not in accordance with the Charter of fundamental rights and freedoms and the Constitution

as components of the constitutional order. The Constitutional Court is naturally aware of the

the fact that the cited agreement between the Czech Republic and the Slovak

Republic is not the Treaty pursuant to article. 10A of the Constitution, but concludes that the amount of the

that conclusion is applicable in the area of international agreements at all.

(Note: a similar conclusion, i.e. that the non-compliance of an international treaty with the

the constitutional order can be inferred ex post on a constitutional complaint-

also shares part of the professional literature; CF.. Kysela, Kühn, Právní rozhledy

10, 2002, no. 7, pp. 301-312.)



85. On the other hand it is certain that after the ratification of any international

the Treaty is the Constitutional Court obliged to maintain considerable restraint and

apply (in the case of the European treaties) on a regular basis the principle

eurokonformního interpretation. This principle, however, cannot have the character of a

"default euronovely" of the Constitution. In the case of a clear conflict between the home

The Constitution and European law, which cannot be remedied by any reasonable

interpretation, you must have the constitutional order of the Czech Republic, in particular its

material focus, takes precedence.



86. the Constitutional Court is the judicial body of the protection of constitutionality, the Supreme

the interpreter of constitutional law of the Czech Republic, and not the primary

European law; It is not its task and it is not the purpose of the procedure for keeping

international treaties with constitutional order sophisticated separated from each other

today's supposedly new and earlier old provisions of the previous treaties, as

the procedure for such a autolimitující accurate and unambiguous criteria found

nor can you.



87. The Constitutional Court therefore in its examination to include all the provisions

The Lisbon Treaty, whose compliance with the Constitution of the applicant by a qualified

way calls into question, since (in the context of the foregoing considerations) is considered

under the new provisions of the arbitrary, although you can admit that they may, however,

only in some of its aspects, just replicate existing standards

European law.



X.



88. The question, which to a large extent related to the issue of the possible

the distinction between new and old arbitrary provisions of the Lisbon

the contract is to determine the relevant terms of reference for the review of

accordance of the Lisbon Treaty with the Constitution of the Czech Republic. The Constitutional Court in the

the case was used as the reference point of the constitutional order of the Czech

the Republic as a whole, not just its so-called. material focus (see

However, below).



89. The Constitutional Court therefore preferred a comprehensive review. Basic

the measure of him was the entire constitutional order, even if it just played

the focal point of the Constitution-that is in material the essential elements of democratic

the rule of law, whose amendment is inadmissible-the core and key

role.



90. the accession of the Czech Republic to the multinational organization of the European

the Union has led to a major revision of the constitutional rules (cf. the so-called euronovelu

The Constitution of the United States-Constitutional Act No. 395/2001 Coll., amending

the constitutional law of the Czech National Council No. 1/1993 Coll., Constitution of the Czech Republic,

as amended), and this led to a fundamental change in the Czech

the rule of law. Law of the European Union, since as an autonomous

the rule of law applies in addition to the legal order of the Czech Republic on the basis of

Article 10 of the Constitution, however, determined by (its) priority application only to

the existence of a valid and efficient standards and those provisions of the Lisbon

the Treaty is not yet. The lack of prior review of Access

the Constitutional Court of the Treaty cannot in itself give rise to a presumption of its

the constitutionality (cf. Chapter IX. above). If it was accepted the view that the

consent with the ratification of an international treaty in accordance with Article 10a

the same majority as is required for the adoption of the Constitutional Act,

reduces the present review only on the area of the so-called. the material of the outbreak

The Constitution, and it excludes, it would mean that it would institute a preliminary

checks the constitutionality of largely lost its meaning. The Constitution, however, in

this direction does not distinguish between "normal" international treaties according to the

article. 49 and the international treaties referred to in Article 10a and in both of them

provides for the same procedure, the review of the Constitutional Court. There can not be overlooked

even the dominant role in negotiating international agreements referred to in

Article 10a plays Executive, as opposed to the adoption of the constitutional

the law, which the Parliament and its members actively

to participate in and influence the real final version of accepted standards. Although

You can of course lead to the individual provisions of the international treaty

submitted for approval to the Parliament of the Czech Republic debate, Parliament has

the only option with her as with a total of either agree, or

refuse. In this he also differs from the process of adopting the constitutional

law, where democratically legitimovaný ústavodárce may immediately

influence its final form. A review of the Constitutional Court and the possible

the reunion of a conflict between the constitutional order and the international agreement referred to in

Article 10 of the Constitution leads to having to say that the provisions of the

the constitutional order is in violation of the international treaty; Here is then

the constitutional legislators paid opens up the space for an active share in the formation of laws

of major importance for the entire legal system of the Czech Republic.



91. As already mentioned, the Constitutional Court is the judicial body such as the protection of

the constitutionality of the supreme body of constitutional regulations of the Czech interpretujícím

of the Republic. Referred to his holistic approach to assessment questions, which must

be a reference point of view for the review of the Lisbon Treaty, then corresponds to the

wording of the article. 87 para. 2 of the Constitution, according to which the Constitutional Court

decides on the conformity of an international agreement pursuant to article. 10A and article. 49 s

the constitutional order before its ratification, as well as connecting passages

the law on the Constitutional Court, which also talks about the constitutional order as

a whole, and not just about his significant in any way-part-. About indeed

the text itself is called. euronovely of the Constitution (Constitutional Act No. 395/2001

SB.); article. 89 para. 3 provides that the decision of the Constitutional Court

which was referred to in article. 87 para. 2 non-compliance with international treaties ratified by the

the constitutional order, preventing the ratification of the Treaty until the non-compliance

deleted. Such a mismatch can be in the multilateral agreements in principle

delete by changing the Constitution, which is, of course, on the material of the outbreak of the Constitution

excluded. Ústavodárce himself is counting on the whole constitutional order as a

the reference criterion for the review of the constitutionality of international treaties. Judge

The Constitutional Court is bound by the constitutional order, only expressly by law

on the Constitutional Court and, in particular, the obligation to protect the inviolability of the

the natural rights of man and citizen's rights (article 88, paragraph 2, in conjunction with article.

paragraph 85. 2 of the Constitution).



92. Another significant argument for the chosen solution is generally as follows

recognized the principle of interpretation of constitutional law, typically referred to as the principle of

the unity of the constitutional order or the constitutional order. Indicates that the account is

should always take all the provisions of the constitutional order and their action

read in context, rather than pulling out of context is

a Constitution; This applies all the more so that, in General, and often in short

drafted the constitutional texts are semantically related and based on self

as individual building elements of the whole, which creates a new quality,

sometimes different from its individual components. The limit is in each

the case of the prohibition of abuse of interpretation, which would lead to the elimination or threat

the foundations of the democratic rule of law laid down article. 9. 3 of the Constitution.

The duty of all those authorities the legal order of the Czech Republic is


use of such an interpretation, which is based on the material, constitutionally

konstituovaných values that are sacrosanct in nature and

immutable. The usual method, helping then bridging

any contentious points, is the principle of constitutional interpretation, Conformal

According to which, if the text under consideration allows multiple interpretations, it is necessary to use the

the one that most closely matches the Constitution or constitutional order as a whole.



93. as already expressed above, the Constitutional Court, in the context of applied

terms of reference, which is the constitutional order of the Czech Republic, they are

as the essential elements of democratic State-whose

change is in the meaning of article 87(1). 9. 2 of the Constitution inadmissible-that represent

the core criteria. In more detail the content of these essential

the terms democratic State, which usually have the nature

General principles, in particular cases, it is just up to the result

interpretation of the authorities with the Constitution. The Constitutional Court of the Czech Republic

already in its first findings noted that our Constitution is not

based on the value neutrality, is not just the definition of institutions and

processes (find SP. zn. PL. ÚS 19/93; A collection of findings and resolutions of the constitutional

Court, volume 1, no. 1, promulgated under Act No. 14/1994 Coll.); This will

log on to the modern concept of the rule of law, which is to be understood not

as a formal law, but as a rule of law material. The guiding

the principle is undoubtedly the principle of inviolable, inalienable,

nepromlčitelných and linear irrevocable fundamental rights and freedoms of individuals,

equal in dignity and rights; to protect them is built up system

based on the principles of democracy, the sovereignty of the people, separation of powers,

respecting, in particular, referred to the material concept of rule of law. These

policies are not dotknutelné nor formálněprávně souladně change

The Constitution, as many of them are clearly přirozenoprávního of origin, and

the State is therefore not their provider, but can and must-as is the constitutional

the State-only guarantee and protect. Although the Constitutional Court many times-

After his already mentioned first in this direction-finding

the necessity of the increased rate of cherishing the principles of forming a so-called. material

the focal point of the Constitution, their particular enumeration is not in any constitutional

the provisions nor the Constitutional Court mentioned in the findings. Even in this proceeding

However, the Constitutional Court does not have the ambition to similar to the enumerated cases continues or catalog

create; such an attempt, however, apparently was necessary in the event that the

The Constitutional Court has chosen only as a measure of its review of this material

an outbreak, as measured against is not a limited problem, but a comprehensive

file the amended EU primary law, and would therefore need to be

to more accurately identify what specifically is measured against this file and

the (so that the remaining components of the constitutional order)

not. For the above reasons, therefore, for the purposes of the proceedings took

The Constitutional Court into account, the entire system of the Czech constitutional order, though

especially his inviolable material focus, and specifically those of its

articles or components that may be applicable to the applicant

questioned provisions of the Lisbon Treaty.



94. To do this, you can add the following.



The Constitutional Court in a case concerning sugar quotas (find pl. ÚS 50/04 of

on 8 June 1998. 3.2006, collection of findings and resolutions of the Constitutional Court, volume 40,

find no 50, declared under no 154/2006 Coll.), the lease will expire

part of the powers of the United States authorities of the EC is lending you the conditional and

It may take as long as these powers are exercised by those authorities,

in a manner consistent with the conservation of the foundations of State sovereignty

States and in a way that does not undermine the very essence of the material

the rule of law; There is, however, worth pointing out that in that case

(IE. the sugar quotas), the Constitutional Court considered the issue,

falling within the so-called. secondary EU law. If it was a secondary

Community law, was based on the finding of the presumption of conformity of the

Community law and in particular with the European Court of Justice case-law

the relevant provisions of the Czech constitutional order, in particular with

guaranteed fundamental rights and freedoms. Therefore, any such audit

be limited to compliance with article 4(1). 1 (1). 1 and article. 9. 2 of the Constitution. In

now the present case-apart from another type of proceedings-however, it is,

as already pointed out above, considered a comprehensive set of revised

the primary law of the EU. This is another argument why it is appropriate to use the

as a reference criterion the entire constitutional order.



(The Constitutional Court in the case of "eurozatykače"-SP. zn. PL. ÚS 66/04 Collection

the findings and resolutions of the Constitutional Court, Volume 41, finding no. 93, declared under

No 434/2006 Coll.-does not preclude a major priority application of EC law,

that is, as stated, his only boundary in material focus of the Constitution,

which defines for example. find a sugar quota. At the same time, however, implicitly

admits possible non-compliance to remove not only the preferred applications

European law, but also the way the constitutional changes. There is no need to

add that to their need to be able to recognize, it should be ústavodárce,

the Constitutional Court had the option to review the provisions of European law of the

for their compliance with the constitutional order as a whole, not only

with his material. Under such a review can then define

the provisions of the constitutional order, which cannot be interpreted using home

methodology of interpretation in accordance with the requirements of European law and which would

It was necessary to edit. Preliminary review to do so gives an appropriate

an opportunity, because it does not raise problems at the application level. The constitutional

the Court also gets the option to some extent to evaluate the constitutionality of

the interpretation of the existing law of the EU Court of Justice, without the

It was in direct conflict.



You can even add that neither the applicant nor the Senate as President

States expressly to the registration requirements for the review of the Lisbon

the Treaty, consonants. In its submission, however, the Senate also argues

the provisions of the Constitution, which would likely be her hard core considered

could not be.)



XI.



Content review-general part (Basic)



95. The Constitutional Court therefore does not intend to resign – even on the assessment of the Senate

disputed articles of the Treaty of Lisbon (LS) from the point of view of the constitutional

fine as a whole (cf. Article 87, paragraph 2, of the Constitution, as amended)

focused in terms of normative primarily on the article. Article 10A(1). 1, art. 1

paragraph. 1 and article. 9. 2 and 3 of the Constitution.



96. Article 10a paragraph 1. 1 provides that an international agreement may be

some of the powers of the authorities of the Czech Republic passed on to international

organization or institution. Article 1 (1). 1 States that the Czech Republic

It is a sovereign, unified and democratic rule of law, based on respect for

rights and freedoms of man and citizen. Article 9 paragraph 2. 2 provides that the change

the essential formalities democratic State is inadmissible.

Article 9 paragraph 2. 3 provides that the interpretation of the law could not authorise

delete, or a threat to the foundations of a democratic State.



97. From article. Article 10A(1). 1 of the Constitution suggests that international agreement can be transferred

the international organization rather than the powers of all, but only the powers of

some. That article should be interpreted, in particular, in the context of

the cited article. 1 (1). 1 and article. 9. 2 of the Constitution. The transfer of powers

the authorities of the Czech Republic therefore cannot go so far as to break the very

the essence of the Republic as a sovereign and democratic State of law

based on respect rights and freedoms of man and of the citizen, and to

change the essential requirements of democratic rule of law.



98. In this context, to the Constitutional Court at least briefly

comment on the concept of "sovereign State", while, naturally, does not have the ambition to

to interpret that concept in the form of a comprehensive analysis of the award (it was not

It would not be possible; It is a concept not undisputed and in the abstract can hardly

definable). The sovereignty of the State is traditionally seen as the highest and

exclusive power on the national territory and independence of the State in international

relationships. No standard of international law therefore cannot occur without

the will of the States themselves, acting on the principle of sovereign equality. Standards,

but to the emergence of States as follows, are then required to

respect in accordance with the principle of pacta sunt servanda and meet is in good

faith, which is protected by the legal certainty of the other entities.



99. For centuries, are States recognised actors in international legal

system, while individuals had until recently direct access to this

the area, in addition to the possibilities of redress by the State to which the

přináleželi. In the classical theory are States bodies "interstate"

(International) law for themselves and their needs they create, whether

the adoption of the customs, or specific agreements, which are the expression of

most often in international treaties. States traditionally have and still

have the sole role in the creation of the modern international legal

the system.



100. In addition to monitoring of certain characters, which are generally

accepted as the constitutive elements of the State ("



the original power of the Government bearing the territorial Corporation


"according to Jellinek, j.: the general theory of law. Load Jan Laichter,

Prague, 1906, p. 187) and whose reviews will indicate whether there is State or

It is not, it can at the same time



for the sovereign seen as freedom for their own voluntary restraint by the legal order or

freely accepted international commitments

in other words, the ability to edit your competency (Jellinek, j., op. cit.

p. 524). From this it can be inferred that the ability to form such a free

the will of the State to the repeated edit certain competence is not the manifestation of

the insufficiency of the sovereign, but its full sovereignty.



101. international cooperation and coordination of national policies has become

requirement management of globalization of the world. For the first time in the history of the

national security, which has always been at the heart of statehood, can effectively

ensure only the common procedure of sovereign States, the unification of

resources, technologies, communications and information flows, power and

Authority (CA). In a globalized world are experiencing the regrouping of centers of power even in the

Depending on other factors than just the power and the will of the individual

sovereign States. It is a spontaneous, uncontrolled process still

more intensive integration of the countries of the world into a single economic system. This

process, with the assistance of key communications technologies of mass media,

the Internet and television, subsequently affect the related relationships both outside and

within the individual States in the political, cultural, social

psychological and other, including areas of law.



102. The integration of character, in this respect, and in the case of the European Union,

can ultimately bring the protection and strengthening of sovereignty

Member States against external, particularly geopolitical and economic

factors; This for example. even with the newly emerging world powers, for which

It is hard to estimate the future value of priority, which will be

willing to build a new order of the globalized world subject.



103. At the core of European civilisation, there are values common to all

the developed world's cultures. As for the values of human freedom and

human dignity, which form the basis of self-determination of the human being.

Functional forms of social co-existence based on conscious for self-limitation

the individual and the acceptance of the order. The same principles are leading to higher forms of

effective human organizations, whether it is a municipality, State or forms of integration

States. From this practical needs was the principle of subsidiarity, which

can be balanced and functional only as long as the business degree,

among which to transfer competence occurs the general usefulness of this

step experience.



104. the European Union has progressed by far the most in the concept of shared-

"raw blisters were"-sovereignty (



pooled sovereignty

) and today creates a sui generis entity, that it's hard to withstand the inclusion in the

Classic státovědných categories. It is more a matter of language, whether the

the process of integration "loss" under the sovereignty of, respectively.

competences, or přiléhavěji for example. "the assignment, the assignment" section

competences of the sovereign. It may seem paradoxical that a key manifestation of

the sovereignty of the State is also a possibility with his sovereignty (its part)

In addition to dispose of, or specific competence to proceed temporarily or permanently.



105. On the global scene can no longer look only as the world

isolated States. It is generally considered that the State and its sovereignty

are undergoing a transformation, and that no State is no longer as a single separate entity

organizations, as expected of a classic theory in the past. In the global

scale of the international political system that lacks

institutionalised rules its own self-management, which have not yet

had the international system of sovereign States. It is quintessentially

interested in integrating the European civilization to stand out in the global competition

as an important and respected force. These processes clearly

demonstrate that even a sovereign, legitimate State power must necessarily follow

the ongoing trends and try to get close to them, understand them

and gradually submit to this spontaneous process of globalization devoid of

hierarchical organization of the order of democratic legitimacy (Woodward, R.



An ' irrigation ' not a ' nation ': the globalization of world politics

. In Michie, j. (ed.)



The Handbook of globalization.

Edward Elgar Publishing Limited, Cheltenham, UK, 2003, pp. 311-316).



106. However, it is important to point out the possibility for a Member State of the European

withdraw procedure laid down in article 4(1). 50 of the EU Treaty; an explicit

the articulation of this option in the Lisbon Treaty is an indisputable confirmation

the principle of



States are the Masters of the Treaty

and continuing sovereignty of Member States.



107. the Constitution of the modern point of view, therefore, does not have the sovereignty

(sovereignty) to mean only "independence of State authority on any other

power, both externally (in the area of international relations), as well as in

Internal Affairs "(Dusan Hendrych and al., Legal Dictionary, C. H.

Beck, 2. Edition, 2003, p. 1007). The following today (probably) not

understood in any traditional sovereignty of a democratic country, and



stricto sensu

by then, did not meet the characters of the sovereignty of any State, including the United States. For example. David

P. Calleo points out that if we understand sovereignty in its traditional

the concept of, any international obligation deprives the State of his

sovereignty. In practice, therefore, should not be seen only as a sovereignty

a rigid legal term, but "as a concept with practical, moral, and

existential dimensions. In practice, national sovereignty is always limited

by objective conditions, including reaction of neighbouring States. Under these

conditions of national sovereignty is above all a legitimate Government that

It has formal powers to choose between participation into account

variants, rather than follow a variation of the don't directly foreign

powers. In other words, for the national State, as well as for individuals in the

the company, means practical freedom of play and not be

the object. For the State, which is located close to each other, the captive

the system,



practical sovereignty is to be seen as a player who

neighboring States are listening, which actively Act, and the national

interests are taken into account.

"(David p. Calleo, Rethinking Europe's Future, Princeton/Oxford, str.

141, 2001).



108. It follows from the above considerations, it can therefore be inferred that the migration of certain

the competence of the State, which rises from the sovereign free will and will continue to

exercised under its participation agreed in advance, controlled manner,

the weakening of sovereignty is not conceptual, but it may in its

the consequences mean its strengthening in the common process of integrated

the whole. The EU integration process happens in a radical way that would

generally meant "loss of national sovereignty, but it is a process of

evolutionary, and-in addition to another-and the response to globalisation in the

world.



109. The Constitutional Court also notes that, as regards the Czech Constitution-you can choose

a simple literal interpretation of the article. Article 10A(1). 1 of the Constitution, which allows the

delegate "some powers of the authorities of the Czech Republic." It follows from this,

that the Constitution interpreted as a whole is consistent, in terms of the relationship

Article 10a and article. 1 (1). 1: article. 10A obviously cannot be used to

unlimited transfer of sovereignty; in other words, on the basis of Article 10a

You cannot transfer-as already mentioned-such a power, which

the migration would be without prejudice to article. 1 (1). 1 of the Constitution, in the sense that it would no longer

It was not possible to talk about the Czech Republic as a sovereign State. The concept of

the sovereignty of the interpreted between article 1 (1). 1

Of the Constitution and article. 10A of the Constitution thus clearly shows that there are also some

limits the transfer of sovereignty, whose non-compliance would be already affected how

article. 1 (1). 1, so article. 10A of the Constitution. These limits should be maintained

primarily on the lawmakers, because it is a priori a question

the policy, which gives lawmakers a large array of discretion; the intervention of the

The Constitutional Court should be considered as the ultima ratio in

a situation where the level of discretion clearly exceeded and the prejudice to article 86(2).

1 (1). 1 of the Constitution, because of the transfer of powers beyond the article. 10A

Of the Constitution. A similar approach the Polish Constitutional Tribunal in its

decision to the constitutionality of accession of Poland to the EU. May 2005 (see

find 18/04, OTK ZU (2005) ser. And, nr. 5, item 49).



110. As is apparent from the foregoing, consideration of the admissibility of the reference

the delegation of the United States to an international organization is

in particular, respect for the material of the outbreak in its article of the Constitution. 9

paragraph. 2. In particular, the protection of fundamental human rights and freedoms,

so as enshrined in the Charter of fundamental rights and freedoms, in the (European)

Convention for the protection of human rights and fundamental freedoms, in other

international treaties in this area and in the established case-law

The Constitutional Court of the Czech Republic and the European Court of human rights.

Already in this context, it can be noted that significant, however, in particular

the application of the Lisbon Treaty, respectively, the Charter of fundamental rights

The European Union in particular cases, which may challenge the Constitutional

Court of the United States by way of individual constitutional complaints

the likely related (exceptional) of the excesses of the EU institutions and

European Union law to the fundamental rights and freedoms. About it is even talking to another


the point of this finding.



111. The Constitutional Court ranks among the major bases the content of the review

The Lisbon Treaty and the case-law of the Constitutional Court and essential-as

inspiration-as well as some other important decisions of constitutional courts. This

the case law of the Constitutional Court, however, does not understand as dogma; as already mentioned,

While the Constitutional Court considers (and wants to be considered in the future for review

any constitutional complaints) as a reference point of view, in particular,

material (hard) the core of the Constitution, but it can not possibility

taking into account the constitutional right to the whole, completely ruled out.



112. The case-law of the Constitutional Court can be regarded as a fundamental decision

find SP. zn. PL. ÚS 50/04 (in case the "quota sugar") and find SP. zn.

PL. ÚS 66/04 (in case "eurozatykače")-both of the above.



113. In the matter of "sugar quotas (PL. ÚS 50/04 of 8 May. 3.2006) the constitutional

the Court, inter alia, expressed the following proposition:



-Accession of the Czech Republic to the EU, was based on the article. 10A of the Constitution

The United States to transfer the powers of the national authorities to the authorities

transnational. At the moment when it became a Treaty establishing the EC, as amended by

its revisions and as amended by the accession treaty to be binding for the Czech

Republic, there has been a transfer of those powers of the national authorities,

that the primary EC law the EC authorities, these authorities.



-Czech Republic gave those powers of the EC institutions. This lease will expire

part of the powers is lending you the conditional; It may take as long as they are

These powers are exercised in a manner compatible with the authorities of EC conservation

the foundations of the State sovereignty of the Czech Republic and in a manner that does not endanger

the very essence of the material law. (Note: this proposition, however,

does not exclude, as mentioned on another site/srov. paragraph 94/assessment, LS

with regard to constitutional order as a whole.)



-The immediate applicability of national law and the preferential

the application of the Regulation (Note: it was about a specific regulation in there on things)

It is apparent from its own dogmatic theology of Community law, as it was in the

the past made in ECJ case law. If the EC membership carries with it the

certain limits on the powers of the national authorities in favour of the

Community institutions, must necessarily be one of the manifestations of such restrictions

and limitations of freedom of Member States to determine the national effects

Community law. Article 10 of the Constitution of the Czech Republic actually

works both ways: there are normative basis for the transfer of the powers and

at the same time the provisions of the Constitution of the United States, which opens the

in national legislation, for the effect of Community law, including the

the rules relating to its effects within the rule of law.



(However, you cannot in no time – cf. section 94 – that the Lisbon Treaty is

the difference in the fact that in the case of "sugar quotas" to review the Constitutional Court

secondary Community law, while for the Lisbon Treaty is a

right primary.)



114. in the case of "eurozatykače" (PL. ÚS 66/04 of 3 March. 5.2006) the constitutional

the Court, inter alia, expressed the following proposition:



-Article 1 (1). 2 of the Constitution of the United States in connection with the principle of

the cooperation laid down in article 4(1). 10 of the EC Treaty implies the constitutional principle

which they are to be domestic legislation, including the Constitution, interpreted

souladně with principles of European integration and cooperation with community

authorities and the authorities of the Member State. Therefore, if there are several

interpretation of the constitutional order, which includes the Charter of fundamental

rights and freedoms, with only some of them lead to the attainment of the undertaking,

that took over the Czech Republic in connection with your membership in the EU, it is

need to choose the interpretation which supports the implementation of this commitment, and not

the interpretation that this implementation makes it impossible.



-Constitutional principle of interpretation of domestic law with the obligations of the United souladně

States arising from its membership in the European Union is limited

a possible meaning of the constitutional text. Article 1 (1). 2 of the Constitution, therefore, is not

the provisions of any eligible to change the meaning of any other

the express constitutional provision. If the home of the interpretation methodology

constitutional law does not allow you to lay out a standard souladně with

European law, it is up to the constitutional legislators paid change the Constitution. This power

However, ústavodárce can perform only in terms of the preservation of the essential

the terms democratic rule of law (article 9, paragraph 2, of the Constitution), which

are not available, so ústavodárce the power to amend these requirements

You cannot transfer or agreement referred to in article. 10A of the Constitution (cf.. Holländer, P.,

The focal point of the Constitution, and discretion in material ústavodárce, a lawyer for no. 5/2005).



-It follows from this that if there is a home based methodology of interpretation

several possible interpretations of the Constitution, with only some of them lead to

achieving the commitment, which was taken over by his membership in the Czech Republic

The European Union, it is necessary to choose the interpretation which supports the implementation of this

Article 1 (1). 2 of the Constitution.



(Optically might appear to be a discrepancy between the findings of the Constitutional Court in the

things "sugar quota" and the "eurozatykače". It pointed out in its

different opinion on the Constitutional Court in the case "eurozatykače"

judge e. Wagner, adding that in that case the Constitutional Court has moved

the doctrine of Constitutional Court-zformulovanou in sugar quota "-

the statement that there was "to a certain extent to limit the powers of the Constitutional Court"

and that "where Czech legislation reflects a binding standard of the European

law, the doctrine of the primacy of Community law does not allow Constitutional

Court to review such a Czech standard in terms of conformity with the constitutional

policy in the United States. ". The Constitutional Court nevertheless considers that the dissonances

between both of these findings is not to be seen too sharp and distinct,

which can be inferred from legal sentences quoting the finding of PL. ÚS 66/04

/eurozatykač/, and from the wording of paragraph 53. For the purposes of the present award

in the matter of the assessment of the constitutionality of SS, the Constitutional Court does not consider some differences

both cited the findings as decisive.)



115. in the next hit in the matter of the review of the Act on bankruptcy and settlement

(PL. ÚS 36/01 of 25 June. 6. in 2002, a collection of findings and resolutions of the constitutional

Court, Volume 26, finding no 80, declared under no. 403/2002 Coll.) The constitutional

the Court, inter alia, expressed the following: from the constitutional maxims pursuant to art. 9. 2

The Constitution does not generate consequences only for ústavodárce, but also to the constitutional

the Court. In the inadmissibility of the changes of the essential elements of the Democratic

the rule of law is contained even a hint to the Constitutional Court, according to which any

the amendment of the Constitution cannot be interpreted in the sense that it would result in

It was a procedural level already achieved limits of protection of fundamental rights and

freedoms.



116. In the case of other constitutional courts-which can be inspirational-

can be considered essential, in particular, the decision of the German Federal

the Constitutional Court (SUSA) Solange II and Maastricht's judgment.



117. in Solange II of 22 March. 10.1986 the Federal Constitutional Court in the

Basically, the level of human rights protection provided by the

the European institutions is comparable with, no longer could provide

the German authorities; The Federal Constitutional Court ruled that it will be more

review the compatibility of standards and community acts, when the European

the community and the community in General, especially the Court of Justice shall ensure effective

the protection of fundamental rights against acts of the community; This protection must, in

principle, correspond to the protection of fundamental rights conferred by the basic

the law (the Constitution of the FEDERAL REPUBLIC OF GERMANY).



118. in the case of Maastricht 12. 10.1993 SUSA, inter alia, expressed its support

the following proposition.



-Each input to the mezistátnímu community, with the result that the

such community is bound by its decisions. Member State-and with

it and its citizens-but gaining influence through options

participation in the creation of the will of the Community to monitor public-and thus also

own-goals, whose outcome is then binding on all Member

States, and, therefore, also assumes the recognition of their own commitments. The readiness of the

to the acceptance of the obligations of international law in the strict legal volume

in a transnational community characteristic of a democratic State,

who wants to participate as an equal member of the work in the international

institutions and particularly in the development of the European Union.



-The granting of sovereign privilege has the effect that their defense had already

does not depend on the will of always the Member State itself. See in this regard

a violation of the constitutional principle of democracy would be in conflict not only with the

the openness of the Constitution against the integration of the ústavodárce and wanted to comment

in 1949; It also laid the Foundation of the concept of democracy, which

should be at every democratic State because of the principle of unanimity

invalid integration.



-The principle of mutual respect, according to the command of the majority of

loyalty to the Community (However,) has a limit in constitutional principles and

the elementary interests of Member States.



-In the field of "competency competency" is a fundamental question of who has the power to

definitively determine what is and what is not already transferred jurisdiction to the

The community.



-The Federal Constitutional Court reserved the power to assess the question of whether the

a Community act crossed the border, which gave the Community


German law (in the form of treaties and their changes).



-The Federal Constitutional Court reserved the final say in determining

that Community acts are ultra vires, i.e. beyond the powers of the

The community; If it then the Federal Constitutional Court ruled, based

It would be their neaplikovatelnost on the territory of Germany.



-In other words, if the European institutions or authorities ' establishment of the

The Treaty on the Union or to further develop it in such a way that it would no longer

not protected by the contract in such a form, which is the Foundation of the German

the approval of the law, then there would be little resulting legal acts were not in the area of

German sovereignty. German State authorities should

constitutional reasons, were not allowed to make those legal acts in

Germany implemented. In accordance with the Federal Constitutional Court shall examine,

whether the legal acts of the European institutions and bodies held within the limits of

sovereign rights, provided to them, or whether it is cross.



119. As already mentioned, the cited provisions of the Constitution and fundamental

the case-law of the Constitutional Court are important (albeit not completely

exclusive content of the starting points of the review) of the Lisbon Treaty in its

custom content.



120. the Constitutional Court with regard to the above-noted (and therefore

repeats)



-The Constitutional Court generally recognises the functionality of the institutional framework of the EU

ensure control of performance range delegated powers; his

the opinion, however, may change in the future, should it be found that the

This framework is shown to be non-functional.



-In terms of the constitutional order of the Czech Republic-and in particular the

taking into account the material Constitution – is a major focus not only

custom text and the contents of the Lisbon Treaty, but also its future specific

the application.



-And the Constitutional Court of the Czech Republic will (May)-even taking into account the

the previous policy-to act as an ultima ratio and may examine whether the

any act of the institutions of the Union nevybočil of the powers which the Czech Republic

According to the article. 10A of the Constitution to the European Union. The Constitutional Court, however,

It assumes that such a situation may occur only in cases

exceptional; for those in particular could be leaving the value

identity and already exceeding the scope of conferred competence.



XII.



A special section



121. The Constitutional Court prior to the assessment of the constitutionality of individual points

the Senate was considering the proposal, taking into account the specificity of the-things-formulation

their opinion, whether the statement would be positive or negative.



122. The exact wording of the provisions of section 71e para. 1 and 2 of Act No. 182/1993 Coll.

on the Constitutional Court, as amended, provides that (1)

If, after completion of the proceedings, the Constitutional Court concluded that the international

the Treaty is in conflict with the constitutional order, said this discrepancy

finding; in the report, indicating that the provisions of the constitutional order is

in violation of the international treaty, (2) If, after completion of the Constitutional Court

Management concluded that an international agreement is not in conflict with the constitutional

policy, decides to findings that the ratification of international treaties is not in

contrary to the constitutional order.



123. the wording of the operative part of such a finding is, however, in this particular Mr.

things hardly acceptable, since the Constitutional Court examined the (probable)

only eight of the contested the constitutionality of the Senate (and justified) articles

The Lisbon Treaty, not the entire contract.



124. Accordingly, the Constitutional Court chose the wording of the operative part of the award so that it found

that the Treaty of Lisbon in the articles referred to in the operative part of this finding is not

contrary to the constitutional order.



XIII.



125. On the first point of his proposal floating around the Senate in doubt, as regards

article. 2A paragraph 2. 1 (now article 2, paragraph 1) and to article. 2 c (now article 4) of the Treaty on

functioning of the EU.



126. Article 2a paragraph 2. 1 (now article 2 (1)):



1. when the treaties confer on the Union in certain areas of exclusive competence, the

only the EU legislate and adopt legally binding acts, the Member States

can do so only if so empowered by the Union or if they are performed

the Union acts.



127. Article 2 c (now article 4):



1. The Union shall share competence with the Member States, if the Treaty confer

it a competence which does not relate to the areas referred to in articles 2b and 2e.



2. Shared competence of the Union and the Member States applies in the following

main areas:



and the internal market);



b) social policy, for the aspects defined in this Treaty;



(c)) the economic, social and territorial cohesion;



(d)) agriculture and fisheries, excluding the conservation of marine biological resources;



(e));



f) consumer protection;



g) transport;



h) trans-European networks;



I) energy;



j) area of freedom, security and justice;



k) common safety concerns in public health matters, as regards

aspects defined in this Treaty.



3. The Union shall have competence to carry out activities in the field of research, technological

development and space, in particular to define and implement programmes performance

This power shall not prevent Member States from exercising their powers.



4. the Union shall have competence to carry out activities and conduct a common policy in the

area of development cooperation and humanitarian aid, but the performance of this

powers shall not prevent Member States from exercising their powers.



128. At the first point of his proposal calls for the Senate, the Constitutional Court, to deal with

the question of the nature and classification of the powers conferred on the European

the Union. Stated in particular that the new text of the Treaty on the functioning of the European

Union (formerly the Treaty establishing the EC) supposedly based the classification of competences

the characteristic more for Federal States, with mj. introduces

the category of exclusive competences of the Union, in which case they are a complex area

legal regulation, in which according to the article. 2A paragraph 2. 1 of the Treaty on the functioning of

The European Union, the Member States may legislate and adopt legally binding

acts only if they are empowered to do so, or when they are implementing acts of the Union.

Connecting the concept of shared competence (article 2 c of the Treaty) that have

exist in addition to the above mentioned powers exclusive, opens by

the appellant, in advance of a wide space is said to be difficult to identifiable realm

EU standardisation, where he implicitly, in accordance with Declaration No 17

annexed to the Treaty, the principle of primacy of EU law.

The extent of delegation of powers can be seen in the sphere of shared

powers from the perspective of Q1. 10A the Constitution as not fully determined in advance.



129. the President of the Republic to the classification of competences characteristic and

in his opinion, rather for the Federal States, provides, inter alia, that from the

the literal wording of Article 10a of the Constitution implies that the powers of the organs of the United

States can be transferred only to an entity existing between States, not

next to them, or even above them. In its arguments, then points out,

that the Union is not such an "entity".



130. The Constitutional Court-the delimitation of competences of the European Union and

their character-States that the transfer of the powers of the Czech border

Republic on the international organisation or institution primarily regulates the

article. 10A of the Constitution, which speaks of "some" transfer of powers; There cannot be

to overlook a certain meaning that Article 10a of the constitutional court determine

concerning the sugar quotas (find SP. zn. PL. ÚS 50/04-see above). From

use of the word "some" powers shows that the international organization

or institution cannot be transferred the powers of all; However, this does not mean

automatic conclusion on the compatibility of the transfer of powers in the event that the

the authorities of the Czech Republic were retained at least some competence.

Meaning of the word "some" is logically should be interpreted with a view to further

the provisions of the constitutional order, in particular, on article 1 (1). 1 of the Constitution,

According to which the Czech Republic is a sovereign, unified and democratic

the rule of law, based on respect for the rights and freedoms of man and citizen. In

that finding pl. ÚS 50/04, the Constitutional Court held cross-compliance

the transfer of the powers in two levels-the formal and material. Formal

plane restricts the powers of its compatibility with the conservation of the foundations

State sovereignty of the Czech Republic. In this respect, the formal plane

with the provisions of article 1 (1). 1 of the Constitution. The material plane refers to the

means of exercising delegated powers, which shall not endanger the very

the nature of the material, the rule of law; This limitation is based on the provisions of the

Article 9, paragraph 1. 2 of the Constitution, according to which a change of the essential requirements

democratic rule of law is inadmissible. Material transfer boundary

the powers are even, as the Constitutional Court stressed, including the disposition of the

ústavodárce itself. However, it did not indicate that the transfer of

powers was not allowed to include "a comprehensive area of legal regulation", or that the

by organisation or institution to which the competence of the authorities of the Czech

States carry, could not exercise such powers solely as

apparently considers the appellant. To do this, however, is to be stressed-out

the reasons given-that in this case, however, on a review of the

the constitutionality of the amended EU primary law, the reference

the criterion are not merely article. 1 (1). 1 of the Constitution and article. 9. 2 of the Constitution

(though are the key factor), but the constitutional order as a whole (cf.

section 88 et seq.).



131. Comprehensively you can say that, of course, only the sovereign State is able to


commit to comply with and effectively enforce, so realistically guarantee,

the most important constitutional rules and the principles of the rule of law in the material;

preservation of the essential attributes of sovereignty there is a condicio sine qua non,

the assumption that the principles of přirozenoprávního of origin could be at all

protected by the State.



132. As rightly emphasises in its proposal and the Senate itself

The Treaty of Lisbon confirms that the legislative competency competency,

Therefore, permission to change the basic provisions, remains to the Member States. With this

doubts are closely related to the Senate and the President of the Republic, concerning the

the character of the EU as a federal State, or classification of powers,

which, according to the Senate and the President to commemorate such State; This can be

In short, that if the Union does not have the aforementioned

competency skills, cannot be seen as a kind of federal or

State, or for a specific entity, standing in every respect and always above

individual States. The Union can only act within the powers her

expressly conferred on the Member States, which must not exceed,

itself give rise to a new jurisdiction. Article 5 (3). 2 of the EU Treaty

provides: "under the principle of conferral, the Union only in

the limits of the powers conferred on it by the treaties by Member States for achieving the

the objectives laid down in the treaties. The powers of the Union in the treaties, which are not

entrusted to remain with the Member States. "



(This provision is in addition, basically it's from an existing article 5 of

YOU, and is even more highlighted the limitations of the Union's competences;

CF.. the first paragraph of that article. 5: "the community is acting within the limits of

powers conferred upon it by this Treaty and the objectives set therein. ")



133. The Constitutional Court at this stage-to the objection that the Lisbon Treaty

the newly introduced category of the exclusive powers of the Union-concludes that this

category (as such) is known today (albeit not exclusive competence

in a separate provision explicitly listed), and in the interpretation of the law

The EU Court of Justice, the Treaty EC (see the cited article 5 of the Treaty

EC). In comparison with the previous article. 5 of the EC Treaty, however, the new

the provisions on the powers of a step towards greater clarity and rationality,

of national constitutional perspective, no doubt regarded as

beneficial. For the classification of the individual competencies of change occurs;

their distribution, although in a number of powers is based on Division by

the existing treaties, for some elements, however, differ, so you can be in the

This way, understood as the new provisions.



134. as regards the sphere of the so-called. shared competences, the argument in the Senate

fundamentally fails to recognise the article. 2 (2). 6 of the Treaty on the functioning of the EU (2a (6)),

According to which the scope of and arrangements for exercising the powers determine the provisions of the treaties

relating to each area. Article. 4 (4). 2 of the Treaty on the functioning of

The EU (2 c) cited by the Senate, therefore, does not constitute an unlimited competency

a clause in the area of shared competence, but just declares the main

the area where the shared competence take effect; each individual jurisdiction

However, in any case, must be specified in the relevant parts of the

the respective contract. It can therefore say that the EU Treaty does not contain a shared

powers on the basis of article. 4 (4). 2 of the Treaty on the functioning of the EU, but on the

the basis of each specific contractual provisions. If there is any

the power expressly marked as the European Union, whether exclusive or shared,

remains fully available to the Member State. Talk about it-as has already been

mentioned-already cited article. 5 (3). 2 of the EU Treaty: "under the principle of

conferral, the Union only within the limits of powers conferred on it in the

The treaties by Member States to achieve the objectives laid down in the treaties.

Competences not conferred upon the Union in the treaties remain with the Member

States. ". The transfer of powers under art. 10A of the Constitution is therefore not unlimited, and

This article is not in this direction violated. Again, it is necessary to

point out that the European Union can only act in those areas in

which were, for the assumptions defined above, on the basis of the doctrine

autolimitace (single-sided self-limiting sovereign act sovereign

State) in accordance with a specific national law, certain powers

of the Member States.



135. Of the constitutional limits of the transfer of the powers contained in Article 10a

The Constitution, however, also need clearer boundedness (and hence the

certainty and observables) delegated powers, together with the

sufficient control over the transfer of the powers of the Czech

the Republic as a sovereign State.



136. With regard to this



boundedness

delegated powers, so it is important to note that article 2 c, paragraph 1. 2

(now article 4) Treaty on the functioning of the EU, cited by the Senate itself still

does not define the competences of the Union. These are specified in the individual

provisions in other parts of the Treaty on the functioning of the EU, including

specific decision-making procedures and legal instruments, which may be

When you implement them used, as indeed in its Government recalls

the observations. The Constitutional Court therefore agrees with the Government that the concern

the appellant relating to the advance difficult to identifiable realm Union

standardisation is not appropriate under the circumstances and that (after all) nor is it possible

exhaustive anchor each jurisdiction so detailed way,

to always accurately reflect a particular legal act of the Union, which are

implemented. It is possible, however, and the Treaty of Lisbon so clearly is,

provide well-defined areas in which the Union may normotvorba

take place.



[Government in its observations, only the third part of the Treaty on the functioning of the EU

(internal policies and action of the Union), which, however, fails to recognise the competence

provisions in other parts of this agreement, for example. Article 18, which is

part of the second part of the Treaty on the functioning of the EU, and according to which the European

Parliament and the Council may adopt provisions the ordinary legislative procedure

prohibiting discrimination on grounds of nationality.]



137. Article 5 of the Treaty on the EU regulates the principles for the definition and performance

the powers of the European Union. Their further concretization is controlled by

the principle of conferred powers (see paragraph 134). The performance of other than

the exclusive powers of the European Union is then limited by the principles of subsidiarity and

of proportionality. According to the principle of subsidiarity, "the Union shall act in areas

that do not fall within its exclusive competence only if and to the extent

If the objectives of the proposed action cannot be sufficiently achieved by the Member

States at the level of Central, regional and local level, but can rather, by

reason of the scale or effects of the action, be better achieved at Union level "

(article 5 (3)). The principle of proportionality requires that neither the content nor the

form of Union action shall not exceed beyond what is necessary to

achievement of the objectives of the treaties (article 5 (4)). The contents of these principles further

instantiates a particular protocol on the application of the subsidiarity and

of proportionality, together with the Protocol on the exercise of shared competence. These

the policy, along with the specific provisions of the Treaty on European Union and to the Treaty on the

functioning of the EU, thus providing sufficiently certain normative framework for

determine the extent to which the Czech Republic of its powers to the European

the Union moved on.



138. The question



checks

the transfer of powers on the part of the United States as a sovereign State is

to be understood, in particular in relation to the provisions of the treaties defining the

the powers of the Union, with particular regard to article 5 of the EU Treaty. What is

as regards the institutional framework for the control of the exercise of powers is



Certainly, the basic

authority control the limits of the exercise of powers by the European Union Court of Justice.

It carries out on the basis of article 263 of the Treaty in the framework of the direct

control of the legality of "legislative acts, acts of the Council, the Commission and the European

the Central Bank, other than recommendations and opinions, and also acts

The European Parliament and the European Council, which have legal effects in regard to

to third parties. Also review the legality of acts of the institutions and any other

the bodies of the Union which have legal effects on third parties ". His

the control function is also applied in deciding on preliminary issues

(relating to the interpretation of contracts on the validity and interpretation of acts adopted by the

institutions, bodies or agencies of the Union) submitted to courts

the Member States referred to in article 267 TFEU. In Addition To The Court Of

the Court shall in addition be required to all institutions of the Union keep

compliance with the said principles of subsidiarity and proportionality, as referred to and

Article 1 of the Protocol on the application of the principles of subsidiarity and proportionality, the

which protocol provides for specific procedures.



139. in this connection, the Constitutional Court again notes that the generally recognized

the operation of this institutional framework for ensuring the control range

the exercise of delegated powers, while his opinion may in

future change if I showed that this framework

proven to be non-functional. The Constitutional Court here refers to its conclusions in the XI.

part of this finding (paragraph No. 120) which may, in exceptional

cases, to act as an ultima ratio and examine whether any act of Union

nevybočil of Czech Republic to the EU, which according to the article. 10A of the Constitution

moved on.



(In this respect, therefore, it was analogous to the decision of the Federal


the Constitutional Court in the matter of "Solange II", but in relation to the control of

powers, not the level of protection of fundamental rights and freedoms.



For example. the Polish Constitutional Court, however, expressly excludes the jurisdiction of the

the Court considered the limits of delegation of powers to the EU, as it is referred to in

The question of the Tribunal's interpretation of national constitutional law. Although it can be used from

the perspective of the dogmatic theology of national constitutional law with such a conclusion to the

a certain extent agree, the question is whether it must be formulated

the distinct, as the Tribunal did.)



The German Federal Constitutional Court-as has already been mentioned above (paragraph 118)-

He reserved the right to the final word on the question of whether any

Community act crossed the border, which gave the German Community

law and that Community acts are therefore ultra vires, outside the purview of the

The EU. From the perspective of German law is theoretically possible, that

exceeding the competence of the community commits itself, the Court (eg.

the fact that its interpretation will no longer be the interpretation of the founding treaties, but it will

on the contrary, inadmissible regulatory). If the Federal Constitutional Court

deduced that these acts are ultra vires, it constitutes the

neaplikovatelnost (not a nullity or neutrality) within Germany.

The Maastricht decision therefore meant a qualitative shift; You can, however,

apparently agree that the Maastricht Federal doctrine

the Constitutional Court (kompetenz for-kompetenz for) is more in the nature of the potential

Alerts may or may not be, in practice, never used.



The Court has also held that, in the specific case of the European

the Act exceeded the powers of the EU on the basis of the European treaties,

in particular, the EC Treaty. For the first time this has happened in the year 2000, when it set aside the

Council directive on the regulation of tobacco advertising, since this edit by

It was not within the competence of the EU is based on the transfer of powers

from the Member States (judgment of 5 November 2002. 10.2000, Germany v Parliament and

The Council, C-376/98, ECR I-8419).



140. the Constitutional Court also is highlighted by the fact that in addition, the Treaty of Lisbon

extends the current framework-where was the dominant authority of the Court of Justice of the EC

(along with other authorities at EU level)-the involvement of the Parliaments of the Member

States in the process of checking the performance of powers in accordance with the Protocol on the

role of national parliaments in the European Union and the Protocol on the

application of the principles of subsidiarity and proportionality. The parliaments of the Member

countries may therefore play an important role in the protection of the limits of the competences that

the Member States have transferred their competence to the Union. (



Note: the question is whether the core role of the constitutional courts have not yet already then

not significant enough as per the previous edit.

Control over respect for the limits of the) transfer of powers is so common

the task of all the participating institutions, both at the European and

national level.



141. From all these reasons, the Constitutional Court did not find that article. 2

paragraph. 1 (2a, paragraph 1) and to article. 4 (4). 2 (2 c) of the Treaty on the functioning of the EU,

challenged by the applicant in its proposal, for the first time point were in contradiction with the

the constitutional order of the Czech Republic.



XIV.



142. On the second point of his proposal floating around the Senate in doubt, as regards

article. paragraph 308. 1 (now article 352) of the Treaty on the functioning of the EU (clause

flexibility).



143. The entire article 308 (now 352):



1. If, in order to attain one of the objectives laid down in the treaties is

the necessary action by the Union in the framework of the policies defined in the treaties,

but for this activity, they do not provide the necessary powers, the Council shall adopt

on a proposal from the Commission, acting unanimously after obtaining the consent of the European Parliament

appropriate provisions. If the provisions in question are adopted by the Council

a special legislative procedure, it shall act unanimously, also on

proposal from the Commission and after obtaining the consent of the European Parliament.



2. in the context of the procedure for the control of the principle of subsidiarity referred to in article. 5 (3). 3

Treaty on European Union, the Commission notifies the national parliaments on

proposals based on this article.



3. Measures based on this article shall not entail harmonisation of legal

provisions of the Member States in cases where the treaties this harmony

exclusive.



4. This article cannot serve as a basis for achieving the objectives

laid down in the framework of the common foreign and security policy, and each

Act adopted pursuant to this article shall respect the limits set out in article. 40

the second subparagraph of the Treaty on European Union.



144. in the point of the second proposal of the Senate so it is stated that the subject of review

accordance with article 6(1). 10A of the Constitution should be the nature of the provisions of article. paragraph 308.

1 of the Treaty on the functioning of the European Union, according to which-according to the Senate shall take

The Council, acting unanimously on a proposal from the Commission, the measures to attain one of the objectives of the

laid down by the treaties, and that in a situation where it is in the context of EU policies

the necessary action to which the Treaty has not provided the necessary powers.

Unlike the existing wording of the proposed provisions of the founding treaties

The Treaty does not limit to the area of the regulation of the internal market, but allegedly

represents the blanketní standard. Allows you to be so apparently the adoption of measures above the

framework of the EU's competences, i.e.. outside the scope of the delegation by

article. 10A of the Constitution of the United States; measures can then be taken

for example. also in the area of sensitive issues of cooperation in criminal matters.

According to the Senate and the specific competence of the jurisdiction of the European Court of

the Court as the final arbiter in a dispute may, where appropriate, vzniknuvším

cause-in view of the nevyjasněný relationship to the constitutional courts

Member States-questions concerning compliance with the principle of legal certainty.

The Senate finally argues that the absence of a time-limit of validity of

of the action taken and its (supposedly) Executive nature raise doubts

the participation of the national parliaments of relevance when considering the adoption of the

such a measure.



145. The Constitutional Court shall be considered before a specific assessment of the issue

-Since it is closely related with it-fit noted that in the wider

the context for the assessment are the legal nature of the EU under the Lisbon

key provisions of the Treaty relating to the entry into force of the Treaty of Lisbon,

subsequent possible revisions of the primary European law and about the possibility of

performance of a Member State of the EU contract. This question,

who has the highest in the region, the constitutional competence the competence; If

the Union would be able to freely change their powers independently from the

the signatory countries of the Czech Republic, violating the ratification of the SS article. 1

paragraph. 1 and article. 10A of the Constitution. (The following reasoning related with point

the first draft of the Senate, but has the meaning as well as for the second point/cell. 308, respectively.

352/his design.)



146. as regards the entry into force of the Lisbon Treaty, the condition of its

unanimous acceptance by all signatories is a significant feature of the Organization

international legal nature that distinguishes the EU from the Federation or other

the State Department. However, it is necessary to consider not only what form

The Treaty of Lisbon enters into force, but also the way in which you can

of the Treaty in the framework of the EU'S primary law (whether the EU Treaty, so the Treaty

functioning of the EU) to change. The system changes the primary law, as it enshrines the

The Treaty of Lisbon, is a testament to that, all appointed by the international

the Treaty shall remain such agreements with regard to their own

the revision, and the European Union will therefore, even after the Lisbon

Treaty enters into force specific organisations mezinárodněprávního

character. In a federal State is primarily to the authorities

the amendment to the Constitution of the Federation to receive custom; Member States mnohačlenné

Federation, when taking part in such constitutional changes may not with the constitutional

refuse all, yet changing the Constitution, enters into force.

Conversely, changing the EU Treaty and the Treaty on the functioning of the EU will be possible only within the

consent of all the States of the Union at the Intergovernmental Conference, so that the role of the authorities

The Union would have been just a riot, not decizní; Therefore, the institutions of the Union will not be

to decide on the proposed changes, but only organizationally to ensure

revision of the treaties, and the changes will enter into force after ratification by all the Member

States in accordance with their respective constitutional requirements (see article 48, paragraphs 1 to 5

Of the EU Treaty). The EU, therefore, even after the entry into force of the Treaty of Lisbon

does not get the power to create their own new competencies, "masters of the treaties"

Member States still remain. In addition, the Treaty of Lisbon introduces in

article. 50 of the Treaty on European Union the possibility of withdrawal from the organisation. May

occur by agreement with the Council as the withdrawing State representative member

States (that is, not with the Commission, as representative of the interests of the Union) and

If there is no agreement, it follows from the Treaty itself, the notice period for

State. And the way their membership seems like a typical for

International Organization, not for the contemporary Federal State, and

sovereignty of the Member countries, on the contrary, strengthened by this option. Referred to

the arguments are further evidence of the fact that the Treaty of Lisbon neproměňuje

significantly the nature of the EU and that does not give the possibility for the Union to accept

measures beyond the Union's competences, thus outside the scope of the migration

powers under art. Article 10A(1). 1 of the Constitution.



147. With the wider definition of the legal nature of the EU is closely related and

the issues mentioned by the Senate in its proposal; This is the so-called. clause

flexibility (article 352 of the TFEU, formerly Article 308 of the Treaty on

EC) and a simplified procedure for the revision of EU primary law (the so-called.


passerelly) according to the article. 48 para. 6 and 7 of the EU Treaty. With regard to the

simplified procedure for the revision of EU primary law, it will be about it

discussed elsewhere (Chapter XV, paragraphs 156 et seq. of this

finding), as the Senate to be classified as a separate third paragraph of its

the proposal.



148. the flexibility clause under the Lisbon Treaty represents a

modified the current article. 308 of the EC Treaty (formerly Article 235 of the Treaty on

EEC). This enables the Council, acting unanimously, to take the appropriate measures when

If the contract does not give the community a certain authority to the EC, however, if the

at the same time such power carried out to achieve the objectives of the community in the

framework of the internal market, the Commission shall propose and if consulted

The Parliament; It is not possible to use it, it was not possible to reach any of the

the objectives of the common market. (



Note: an example of the use of the powers of the Council may be eg. the decision of the

Council/327, which was adopted by the program of the international exchange of students

Erasmus; CF.. judgment of the Court of 30 November 2005. 5. The Commission, in 1989.

The Council, 242/87, Ecr, p. 142.

Compared with the past) State of the Lisbon Treaty applicability

extends the flexibility clause, since it is feasible to

one of the objectives of the policies defined in the treaties of any (not only

the internal market), with the exception of the common foreign and security policy

(paragraph 4 of the cited article). In this way the movement occurs, new

powers to the EU. This expansion corresponds to the strengthening of the European

Parliament: according to the article. 352 para. 1 of the Treaty on the functioning of the EU is to use

This article, subject to the consent of Parliament (Note: today is only necessary

consultation); In addition, however, they gain important powers of domestic parliaments,

which shall check compliance with the principle of subsidiarity.



149. However, you cannot claim the Senate regard that article 352 of the Treaty on

functioning of the EU-as already mentioned-he opened the Union space for adoption

measures outside the scope of delegation of powers under art. 10A of the Constitution the Czech

of the Republic. The possibility of adopting such measures is limited to the objectives,

which are defined in article 3 of the EU Treaty (formerly article 2), which provides

and sufficient guidance to determine the limit of delegated powers, the authorities

The Union cannot exceed. Third and fourth paragraphs of article 352

In addition, you expressly restrict the field in which you may apply. In addition, how

correctly points out in its observations, the Government of the United States, Declaration No 41

and 42, made to the article (annexed to the final act of the

of the Intergovernmental Conference preparing the LS) further restrict the possibilities of use

article 352 of the Treaty as a means of covert

expansion of the powers of the institutions of the Union. Although these statements do not have the

legally binding nature, expressed the belief of the

parties-including the Government of the Czech Republic-to the proper interpretation of

of the provision, which additionally confirms and existing case-law

Of the Court of Justice concerning the interpretation of article 308 of the EC Treaty. This

the Declaration may therefore serve as an important interpretative aid in

the interpretation of the relevant provisions.



(First of the Declaration notes that the reference to the objectives of the Union in article.

352 para. 1 of the Treaty on the functioning of the European Union refers to the objectives set out

in the article. 3 (2). 2 and 3 of the Treaty on European Union and to the objectives in article. 3 (2). 5

those contracts relating to external action under part five

The Treaty on the functioning of the European Union. It is therefore conceivable that the activities of the

based on article 352 of the Treaty on the functioning of the European Union monitored the

only the objectives set out in article. 3 (2). 1 of the Treaty on European Union. In this

context, the Conference notes that in accordance with art. 31 para. 1

Treaty on European Union cannot be in the field of the common foreign and

security policy adopted by legislative acts. The second cited

the Declaration stresses that, in accordance with settled case-law

The Court of Justice of the European Union article 352 of the TFEU

The European Union as an integral part of the institutional system

based on the principle of conferred powers to serve as a basis for

extension of the scope of Union powers beyond the general framework defined by the provisions of

The treaties as a whole, and in particular the provisions defining the tasks and

the activities of the Union. Article 352 cannot under any circumstances be used as a

the basis for the adoption of provisions whose effect would, in essence, meant

modification of the contracts without a procedure that has been used for this purpose of the Treaty

provides).



150. The Constitutional Court therefore agrees with the opinion of the Minister referred to in its

representation, that in the case of the flexibility clause not blanketní

standard; the Union article could. 352 para. 1 of the Treaty on the functioning of the EU

use must be in relation to a proposed legislative act

cumulatively meet the following conditions: the need to achieve

one of the objectives of the EU, the adoption of the Act must be in the framework of the policies defined

the primary law of the EU, there must be a unanimous approval of the Council, and must

be obtained the consent of the European Parliament. It is obvious that the conditions

considerably strict and restrictive, which enclose the path enough to

that article 352 para. 1 of the Treaty on the functioning of the EU applied disproportionately

(abused).



151. In the opinion of the Chamber, however, and the specific competence of the jurisdiction of

European Court of Justice may cause-of a situation following a

relation to the constitutional courts of the Member States-questions relating to compliance with the

the principle of legal certainty. The Constitutional Court finds that the action of the

The Court of Justice is, however, just when it comes to design issues, rather

easy to use. According to the existing case-law of the Court concerning article

308 of the EC Treaty (already) it follows from the wording of article, that his

use as the legal basis of the Act is justified only if the

no other provisions of the Treaty does not confer on the Community institutions the power to

necessary for the adoption of this Act. In such a situation, this article allows you to

authorities to act in order to establish one of the objectives of the community and

Despite the absence of a provision conferring on them the necessary

the power. However, to the Community institutions (Note: in the context of

the assessment of article 352 of the TFEU understood institutions of the Union)

could such a legal act, it must be associated with one of the target

the objectives of the Treaty, which sets out the Union. (cf. judgment of the Court of

on 26 April. March 1987, Commission v Council, 45/86, ECR 1493, paragraph 13).

Essential feedback to the flexibility, however, should be considered as opinion

The Court of justice 2/94 of 28. 3. the 1996 [1996] ECR 1759, relating to

options for the community to accede to the European Convention for the protection of human

rights and fundamental freedoms (opinion CITES Article 235 yet, but

was identical with today's article. 308 of the EC Treaty). The court first

He stressed that article. 235 can be used only in the absence of express or

implicit powers; He continued that this article was created to

filling in the gaps where there is no specific provisions

The Treaty, which would make the Community institutions express or

implied powers to act, if such powers are still

necessary to enable the community to carry out its functions with a view to

the objectives set out in the Treaty. The Court explicitly stated that this provision, which

It is an integral part of an institutional system based on the principle of

of conferred powers, cannot serve as a basis for the expansion of the realm

of Community powers beyond the general basis created by the provisions of the

The Treaty as a whole, and in particular those that define the tasks and activities

The community. In any case, article 235 cannot be used as a

the basis for the adoption of the provisions, the effect of which would be essentially

the amendment to the agreement without the proper procedure that exists for this purpose.



152. Since the provisions of the flexibility clause (article 352, paragraph 1), as

It is clear from the above that represents the modified current article

paragraph 308. 1, although its scope is extended, can undoubtedly understand

the opinion of the Court as a confirmation of the fact that the flexibility clause

cannot serve as a means to amend the Treaty on the functioning of the EU. For

help this clause-and the practice of the EU institutions and referred to the case law of

This is confirmed by the Court-thus is not and will not be able to circumvent article. 10A

The Constitution of the United States. In this condition, the Constitutional Court shall be deemed to

the institutional framework of control performance of delegated powers-even with

regard to article 352 of the Treaty-as sufficient, with the

taking into account all the reasons that are listed above; again, however,

stresses that the application of this article may be considered exceptional

(cf. The Court above).



153. As already mentioned, article 352 in addition, explicitly proclaims that

decisions under clause must respect the principle of flexibility

of subsidiarity, the observance of which oversee domestic parliaments.

The Treaty of Lisbon itself, no room for the involvement of national

parliaments and leaves it entirely up to the limits of constitutional structures

the Member States of the manner in which it ensures. On the contrary, compared to article 308

Of the EC Treaty, the second paragraph of the article emphasises the role that in

the process of standardisation of the EU national parliaments have to play, which is

again, by strengthening the position of the Member States. Therefore, the objection of the Senate when it comes


on the absence of a time-limit of validity of the action taken and its supposedly

Executive nature, according to the beliefs of the Constitutional Court cannot doubt

over the participation of the national parliaments. However, in the Czech

the legislature, in the event of the entry into force of the Treaty of Lisbon has taken

in this respect, in accordance with the constitutional order the appropriate legislation

(cf. also chapter XV, section 165-167).



154. Another objection to the Senate about taking action in the area of sensitive

issues of cooperation in criminal matters and on the alleged insufficient

the procedural guarantees of the protection of civil rights and freedoms affect rather

subsequent application sphere and with reference to the above arguments, it appears

as unfounded; After all, your rapporteur these doubts or

closer nekonkretizoval.



155. for these reasons, the Constitutional Court did not find that the article would be. 352 (article.

308) of the Treaty on the functioning of the EU in conflict with the constitutional order of the Czech

of the Republic.



XV.



156. In the third paragraph of my proposal, the Senate said that the concept of jurisdiction, with the

which works article. 10A of the Constitution of the Czech Republic, does not only have the material

dimension of overlapping with the definition of its scope, but also measure

institutional, relating to the method of decision-making. In this

the context is in the opinion of the Senate of the need to review compliance of the article. 48

paragraph. 6 and 7 of the Treaty on European Union with that provision of the Constitution of the Czech

(Note: the numbering does not change). Indeed, these hlánky introduce

option. the simplified procedure for the adoption of amendments to the primary

of EU law through an Executive Act, amending the form

duly ratified by the founding treaties of the EU. Clearly is said to be in this

context, formulated the General transition clause (the so-called passerelle)

that-despite the formal principle of two-sided flexibility in anchorage

Declaration No 19 annexed to the Treaty, remains by the petitioner

a one-way tool changes. The application of this clause for the

the purpose of the amendments to the unanimous decisions by qualified

the majority in a particular area or replacing special legislative

procedure to the ordinary legislative procedure pursuant to art. 48 para. 7 may

the view of the Chamber represent the change of powers in the meaning of article. 10A of the Constitution,

without this change was accompanied by the ratification of an international agreement or

the active consent of the Parliament of the Czech Republic. Loss of the right of veto is said

can be understood as the transfer of powers to an international organization,

which also effectively limit the importance of the parliamentary mandate

awarded to the Government for a decision, which would receive after application

transitional clause could be a representative of the Government of the individual Member

the State of the swing vote.



157. Article 48 para. 6 read as follows:



The Government of each Member State, the European Parliament or the Commission may

submit to the European Council proposals for revising all or part of the provisions

part three of the Treaty on the functioning of the European Union concerning the

internal Union policies and activities.



The European Council may adopt a decision amending all or part of the

the provisions of part three of the Treaty on the functioning of the European Union. The European Council

shall act unanimously after consulting the European Parliament and the Commission and,

in the case of institutional changes in the monetary field, with the European

Central Bank. This decision shall enter into force only after the approval of the

Member States in accordance with their respective constitutional requirements.



Decision under the second subparagraph shall not extend the powers conferred on the

Union In The Treaties.



158. Article 48 para. 7 read as follows:



If the Treaty on the functioning of the European Union or title V of this Treaty,

that the Council shall decide in a particular area or in a specific case by unanimity,

the European Council may adopt a decision authorising the Council to this

area, or in this case, decide by a qualified majority. This

subparagraph shall not apply to decisions having military or

Defense.



If provided for in the Treaty on the functioning of the European Union that the Council adopts the

legislative acts of the special legislative procedure, the European Council

take the decision to accept these acts under the ordinary

legislative procedure.



Any initiative of the European Council on the basis of the first or second

subparagraph shall be notified to the national parliaments. If one makes

the national Parliament within six months from such notification, your

the opposition, the decision referred to in the first or second subparagraph, the

does not accept. If there is no opposition, the European Council may this

the decision to take.



The European Council shall decide on the adoption of the decision referred to in the first or

the second subparagraph shall, acting unanimously after obtaining the consent of the European

Parliament, which shall act by a majority of all its members.



159. The applicant challenged the articles govern the simplified procedure

revision of EU primary law. It can be recalled that a similar procedure

knows-with some not very substantial differences-already present

European law (cf. Article 137, paragraph 2, and article 175 (2) of the EC Treaty).



160. Article. 48 para. 6 of the EU Treaty allows for the adoption of the simplified procedure

changes to part three of the Treaty on the functioning of the European Union, involving among others.

the internal market, free movement of persons and services, free movement of goods, capital and

payments, competition rules, economic and monetary policy

, etc., but is subject to approval by the Member States in accordance with their

constitutions and cannot touch the transfer of new powers to the Union. Paragraph

Sixth, third subparagraph article excludes changes in contested under this

the scheme, which could affect the Union's competences; This is expressly

eliminated any doubt in relation to the article. 10A of the Constitution the Czech

of the Republic. Change according to the article. 48 para. 6 made by unanimous

decision of the European Council must be approved by Member States in accordance

with their respective constitutional requirements. Key aspects of the Constitution-to

It is mentioned-however, is that according to the literal wording of the article could not be examined

no more powers to the Union.



161. Article. 48 para. 7 regulates the simplified procedure for the adoption of amendments to the

the vote of the Council under the Treaty on the functioning of the EU or by the head of the fifth

Of the EU Treaty, from unanimity to vote

by a qualified majority, except in military and defense. When it comes to this

paragraph, about the expansion of European Union competence cannot be conceptually or

consider, as it refers to-as is obvious-just vote. Change

How to vote in accordance with article 3(1). 48 para. 7, requiring the consent of all the heads of

States at the European Council, is blokovatelná disapproval of any

of the parliaments of the Member States.



162. Generally speaking, sixth and seventh paragraphs article. 48 of the EU Treaty, in

principle, distinguish the degree of autonomy you only leave the Member

States in the approval decision. While the sixth paragraph leaves

the absolute discretion of the Member States with regard to the method of approval

the decision, seventh paragraph, it restricts the possibility of opposition

by the national Parliament. Decisions pursuant to those articles

they are also subject to review by the Court of Justice as to their compliance with the

the Treaty itself, which shows that they do not have the character of the amendments to the Treaties,

but on the contrary, the contract's over these acts (or replace it formally

deklasifikované standards) preserve the higher legal force.



163. For completeness, in addition to two passerell modified article. 48

paragraph. 6 and 7 of the EU Treaty, there are several special provisions

the European Council, acting unanimously, may change the way you vote from

unanimous on majority (article 31, paragraph 3, of the EU Treaty, article 312

paragraph. 2 and article. 333 TFEU), or may do so

unanimously by the Council of Ministers (article 81, paragraph 3, TFEU)

that takes measures concerning family law with cross-

element that can be harmonized on the basis of majority voting;

Unlike today's situation (see article 67, paragraph 2, of the EC Treaty) is the newly

embedded option of national parliaments to veto such an act. About these

the provisions apply, in principle, the same things would be stated in the interpretation of the article. 48

paragraph. 6 and 7, that is, on the basis of acts consisting of not formally form

the amendment to the Contract, but the contract's over them will keep the higher legal force, and

These acts must be in accordance with the terms of the contract to them

define.



164. for these reasons, the Constitutional Court did not find that article. 48 para. 6 and

7 of the EU Treaty have been in conflict with the constitutional order of the Czech Republic.



165. in this context, however, cannot see that so far, there are no

the follow-up provisions of the law of the United States, that would allow

implementation of the procedures laid down in the 6th and 7th paragraph

article. 48 on the national level. The absence of these procedures, although

about yourself questions the constitutionality of the Treaty of Lisbon does not touch directly, because

However, the Lisbon Treaty provides for national ingerenci

parliaments, the Government as the opponent of the Lisbon Treaty (and the one who

negotiators at the EU level) should be sufficiently and timely proposal

the relevant procedures at national level should reflect

ensure the compatibility of the Treaty and its interaction with the constitutional order

The United States, not only with regard to the participation of Parliament, but also with

regard to the possibility of a preliminary review of the changes to the treaties, the Constitutional Court. Is


Obviously, the requirement of certainty of delegated powers shall apply

not only to the conduct of the EU institutions, but also to the authorities of the Czech Republic, if the

the synergy necessary for the adoption of a decision of the EU, which

delegated powers of direct concern.



166. In this situation, should be clearly defined the role you will play

each of the Chambers of Parliament, and their relationship. In particular,

the application of the veto rights of the national parliaments to the resolution of the European Council

(article. 48 para. 7); This is a very important power of control and

responsibility, which is one of the fundamental postulates of the Lisbon

the Treaty, with a view to compliance with the principle of subsidiarity. On

ambiguities in this regard draws attention, for example, 7. resolution of the Standing Committee

for the Constitution of the Czech Republic and the parliamentary procedures of the 14. the meeting,

June 27. in March 2008, the draft opinion to the relationship to the Lisbon

Treaty amending the Treaty on European Union and to the Treaty establishing the

The European Community and of the constitutional order of the Czech Republic in point 3.



167. Second, it is necessary to ensure that the decisions taken at the

the basis of article 48 paragraph 6, 2. subparagraph, the Constitutional Court of the Czech

States in terms of compliance with the constitutional order of such a decision.

Unlike the decision referred to in paragraph 7, where the only changes the way

voting (and content changes can be assessed, therefore, already at this time, when

powers are transmitted), the decision referred to in paragraph 6 shall be amended

substantive provisions of the treaties. It is therefore necessary to allow the control of that

changes in terms of the provisions of the constitutional order of the Czech Republic the constitutional

the Court, in order to respect the limits of delegation within the meaning of

Article 10 of the Constitution. The only way you can guarantee that the delegation of powers,

occurs in accordance with article 48 paragraph 6, already at the moment of the adoption of the

The Lisbon Treaty does not give the option to accept the Czech Republic on the basis of

the provisions of the decision, which would be in conflict with the constitutional

policy of the Czech State.



168. In additional opposition (included in the same paragraph as article 48 (6) and (7)

Of the EU Treaty) the Board stated that in the case of article. 69 b of paragraph 1. 1 of the Treaty on

functioning of the EU (now article 83, paragraph 1), when the Council decides on the sectoral

the inclusion of additional areas of crime to the sphere of EU regulation,

space for opposition to Parliament, however, is completely missing in the

another case-the proposed text for general transitional clause

(article 48 para. 7 of the Treaty on European Union) and the partial transition clause in

the sphere of judicial cooperation in civil matters (article 65, paragraph 3, of the Treaty on

the functioning of the EU)-this option is guaranteed. The Senate added that limited

involvement of national parliaments in the decision-making about the change quite widely

defined the Union's competences shall be accompanied by an extension of the vote

by a qualified majority, often related to the overall

komunitarizací of the current third pillar of European law, where

in parallel with the implicit weakening a national parliamentary mandate and the

by the conventions to be adopted by the Parliament of the Czech Republic

assumes responsibility for the parliamentary dimension of the European decision-making

Parliament. The Senate calls into question-because of the nature of the European Union

as a community of States (not the Federal State)-whether this

dimension of parliamentary democracy that there are adequate and effective

empty article. 15 paragraph 1. 1 of the Constitution of the Czech Republic. In this context,

President criticizes vote in its observations

by qualified majority, even more strongly, but not in relation to the

doubts about the proper involvement of the Parliament of the Czech Republic to the

decisions of the Union, but in view of the concern about the preservation of the sovereignty of the United

the Republic at all.



169. Article 69 b of paragraph 1. 1 (now article 83, paragraph 1) of the Treaty on the functioning of the EU

says that the European Parliament and the Council, can the ordinary legislative procedure

by means of directives lay down minimum rules concerning the definition of the

criminal offences and sanctions in the areas of particularly serious crime

with a cross-border dimension because of the nature or impact of such offences

offences or from a special need to combat them on a common basis. As to the

these areas of crime: terrorism, trafficking in human beings and the sexual

exploitation of women and children, illicit drug trafficking, illicit

arms trade, money laundering, corruption, counterfeiting of payment

resources, criminal activity in the field of computer technology and organized

crime.



170. The Senate, however, in principle, argues with the third subparagraph, which States that

on the basis of developments in crime, the Council may adopt a decision

identifying other areas of crime that meet the criteria set

in this paragraph. However, it shall act



unanimously

After obtaining the consent of the European Parliament. The Senate then in addition-in addition to

referred to guarantees-basically ignored the protection provided by the United

the Republic article. 83 para. 3 of the Treaty on the functioning of the EU; It follows that if

a member of the Council considers that a draft directive touched "fundamental aspects of

(his) criminal justice system ', it may request that the draft

referred to the European Council; then the ordinary legislative procedure shall be suspended and

If later consensus-suspension of the ordinary

the legislative procedure is closed. Without the consent of the United States, therefore, in

essentially the article is not possible. 83 para. 1 the third paragraph to our rule of law

apply. The Constitutional Court agrees with the Government that, to the extent

the scope of the article. 83 para. 1 of the Treaty, national

parliaments meet its preliminary scrutiny role according to the respective

the provisions of the Protocol on the application of the principles of subsidiarity and proportionality,

and that the purpose of the provision is not arbitrary expansion

the powers of the Union, but raising the possibility to effectively respond to the security

threats and criminal activity of the extraordinary danger, which can be considered

completely legitimate.



171. for these reasons, the Constitutional Court did not find that the article would be. 83 para.

1 (69 b, paragraph 1) of the Treaty on the functioning of the EU in conflict with the constitutional order

Of the Czech Republic.



172. With regard to the doubts of the Senate concerning the extension of the voting

by a qualified majority (article 48 (7)) in relation to the article. 15 paragraph 1. 1

The Constitution ("the legislative power belongs to Parliament-"), or questions of sovereignty

State, reference may be made to the conclusions expressed above (in General, section 87 of the

the award). There is no need to again recall the ancient international

the principle of possible sovereign default, which only self-limitation is entitled to consider the

the very restrictive, in an international environment

respect for the principle of



pacta sunt servanda

issue. According to the Government, it is possible to state that when migrating

powers to an international organization or institution is its

an inevitable consequence of the fact that the authority whose powers were

transferred, it is in this range, but shall cease, however, all exercised

other powers assigned to him in accordance with the constitutionally defined division of power

It belongs. The constitutional requirement of article. 15 paragraph 1. 1 of the Constitution, legislative power in

The Czech Republic belongs to the Parliament, therefore, is not in any way prejudice, and even

the sovereignty of the United Kingdom is not under an unacceptable limit reduced.



173. The Lisbon Treaty moves powers to the authorities

have their legitimacy is to be controlled on a regular basis, based on the

General elections in the territory of each Member State. In addition, the

The Lisbon Treaty allows several ways the involvement of national

parliaments (the possibility of direct opposition Parliament, where appropriate,

one of its Chambers, is one of the forms of participation of national

parliaments). Explicitly lists the article is. 12 of the EU Treaty as follows:



National parliaments contribute actively to the good functioning of the Union

in the following ways:



and the institutions of the Union shall be informed) and they are referred to the proposals

legislative acts of the Union in accordance with the Protocol on the role of national

parliaments in the European Union;



(b)) to ensure that the principle of subsidiarity is respected in accordance with the

the procedures laid down in the Protocol on the application of the principles of subsidiarity and

of proportionality;



(c)) within the area of freedom, security and justice, in the

evaluation mechanisms for the implementation of the Union policies in that area by

Article 70 of the Treaty on the functioning of the European Union and are involved in the

political monitoring of Europol and the evaluation of Eurojust's activities

in accordance with articles 88 and 85 of that Treaty;



d) taking part in the revision procedures of the treaties, in accordance with article 48

This agreement;



(e)) are reported to the application for accession to the Union in accordance with article 49

This agreement;



f) participate in the interparliamentary cooperation between national

parliaments and the European Parliament in accordance with the Protocol on the role of

national parliaments in the European Union.



174. The Constitutional Court therefore concludes that the national parliaments (including the

The Parliament of the United Kingdom) is the Lisbon Treaty reserved important

the job, which ultimately strengthens the role of the individual Member

States; negligible is also not help clarify and clarification of the whole

the system. It is only necessary to remind the responsible role of the competent

the authorities of the Czech Republic, in particular the Government, for the preparation and adoption of the legal

the scheme, which will allow full implementation of these permissions.




175. for these reasons, the Constitutional Court did not find that the extension

qualified majority voting under article. 48 para. 7 constitutionally

funky way touched the article. 15 paragraph 1. 1 of the Constitution or of the sovereignty

The United States referred to in article. 1 (1). 1 of the Constitution.



XVI.



176. In the fourth paragraph of the proposal, the Senate noted that in addition to the already mentioned

transition clauses and clauses of the flexibility to process procedures

laid down by the Lisbon Treaty affect the constitutional order in yet

Another way. This is apparently about the negotiation of international agreements referred to in

the proposed article. 188l of the Treaty on the functioning of the European Union (now article).

Here is-in the opinion of the Senate-titles to the conclusion of international

contracts on behalf of the EU. Contracts are binding on the EU and its

Member States, and are concluded by a decision by a qualified

majority in the Council. The Czech Republic does not have the Treaty consistently

Express, and yet it is bound; the normal ratification process at all

There is, and this eliminates the mj. possibility of a preliminary review of the conformity

such contracts with the constitutional order of the Czech Republic. Question by

The Senate remains, whether it is a procedure compatible with the diction article. 49 and article.

63 para. 1 (b). (b)) of the Constitution, and if there is room for application of these

contracts on the basis of article. 10 of the Constitution.



177. Article 216 (188l) of the Treaty on the functioning of the EU:



1. the Union may conclude an agreement with one or more third countries or

international organisations, if provided for by the Treaty or if it is the conclusion of the

the agreement necessary to achieve the objectives set by the treaties in the framework of the

policies of the Union, or is provided for in a legally binding Union Act, or

may adversely affect common rules or alter their scope.



2. agreements concluded by the Union are binding upon the institutions of the Union and on its Member

States.



178. In paragraph therefore questions the Senate negotiating international

contracts referred to in article 14(2). 216 of the Treaty (formerly article 188l).



179. As a preliminary point it should be stressed that the proposed article. 216 (188l)

functioning of the EU is a reaction to the fact that the Treaty of Lisbon explicitly recognises

The Union legal personality, including the capacity to conclude and

international agreements (article 47 of the EU Treaty); The Union replaces the existing

Community and the European Union (article 1 of the EU Treaty as amended by the Lisbon

of the Treaty). It must be recalled that the contested provision must be

read in connection with article 3, paragraph 3. 2 of the Treaty on the functioning of the EU, which

The Senate does not explicitly refer. It reads as follows: "in the exclusive powers of the Union is

also the conclusion of an international agreement when its conclusion is provided for

legislative act of the Union or is necessary to enable the Union to

to exercise its internal competence, or insofar as its conclusion may affect

common rules or alter their scope. " (



Note: this provision apparently reacts to the recent opinion of the Court

-opinion 1/03 of 7 October. in February 2006, the Lugano Convention, ECR. with.

I-1145-which significantly expanded the powers of the EC to conclude international

of the Treaty in the exclusive scope.

)



180. the Government in its observations from a historical point of view correctly

pointed out that it is in the early stages of the development of the European economic

the community was based on the assumption that, in accordance with the theory of limited

powers, it is for the community the power to conclude international agreements

only if they are expressly authorised in the founding treaties.

With the passage of time, however, it became clear that the operative text of the founding treaties

does not correspond to the real needs of the community and its Member States; It was

Therefore, the need to find a way to streamline community action in

relationship to third States and to achieve greater consistency between the

the powers at its disposal, the community, and those governing the

It has on external relations with third States.



181. At present, there is no doubt that the EC shall have international legal

personality and joined the hundreds of international treaties. For an existing

the situation of European law expressly confers on the Community (article 300 of the Treaty on

EC) and implicitly also the EU (articles 24 and 38 of the EU Treaty today) the power

to enter into agreements with third States. These "outside" of the Treaty have dual

nature, as they are both part of international law, on the one hand-from

However, in terms of the Union-also included in Community law (or law

of European Union); its components have become thanks to the European legislation

are listed in the annex; as regards Community law, rule

It will be an international agreement in the annex "regulation". In

the hierarchy of sources of law, EU law have the status between primary and

the secondary, so will take precedence over the law of secondary, not

However, even before the primary law.



182. The Constitutional Court has considered that the main arguments of the Senate, in principle,

based on the not quite a precise understanding of the existing international

personality of the EC and the EU, the legal status of international treaties

concluded within the framework of the Union's powers and transfer themselves powers

individual States in the EU. Because of an international treaty under the authority of

the Union will be concluded on the basis of article 87(3)(c). 216 seq. Treaty on the functioning of the EU

(as amended by the Lisbon Treaty), and in the present, are closed on

the basis of the article. 300 of the EC Treaty, cannot be considered to conflict with article. 49 and article.

63 para. 1 (b). (b)) of the Constitution of the United States, or with the article. 10 of the Constitution, as

considers Senate; the provisions of the Czech constitutional order on

the negotiation of such Union contracts and their application in the

the Czech constitutional order nedopadají. (This is evident even from the reasoning in

the following paragraphs of this report.) This conclusion applies not only to the so-called.

mixed contracts, where it is a combination of the powers of the Union and the Member States

(typically a contract that contains both things in the area of competence of the EU, so

things in the area of competence of the Member States); you will, however, be concluded on the one hand

the regime established by the Treaty on the functioning of the EU, on the one hand mode

expected by the Member States and the Czech Republic thus raise

the ratification process in accordance with the Constitution.



183. In this context, you can add that article. 216 may be interpreted as

competency standard, which would extendovala the competence of the Union; on the contrary, article

216 notes only that the Union in the framework of their powers just closes

the international treaty. The powers are not defined in this article. 216,

but the specific provisions, in particular the Treaty on the functioning of the EU.

This is not about significant change against previous legal situation;

the only difference is that the more relevant that the Union gets the possibility to conclude

international treaties in the area of the so-called. the second and third pillars,

introduced by the Maastricht Treaty.



(But already existed in principle, as the existing EU Treaty that

implicite assumes in article. 24 and 38. You can share the view of the expert

House of Lords opinion, according to which the explicit granting of legal

personality of the Union and article. 216 related rather than declaratory

normative in nature. CF.. The House of Lords: The Treaty of Lisbon: an

impact assesment. Volume I, Report. March 13, 2008. pp. 30 seq..,

accessed at http://www.parliament.the-stationery-office.com/. On

the other hand, however, it is possible to admit that due to the aforementioned

opinion 1/03 of the Court is no longer clear that outwardly, the EU can exercise

more powers than those it inside; in the details for example.

Birch, p.: the European Court of Justice: Opinion of the new Lugano Convention considerably

strengthens the external competence of the community, Právní rozhledy No. 10/2006

385-390, p. 389. In this direction would be-in case rigoróznějšího

review-it was a consideration of the criteria of boundedness of the powers

transferred to the EU in the field of external relations and control their performance.)



184. the European Union thus delegated may engage in

and externally; the very wording of the provisions of articles 49 or 63 of the Constitution,

which the Senate relied on, does not create an insurmountable barrier transfer

powers in the area of international agreements. Neither

international legal personality nor the advanced option to enter into

international treaties do not form from the Union a new, separate entity,

gifted unfair competence at the expense of the Member States; legal

personality and the right to conclude international agreements, moreover, have a

much less important international organisation, whether cooperation or

integration type. The boundaries of the transfer of the powers in this area provides

the limits that the Constitutional Court has already identified several times above; as to the conservation of the

the core attributes of State sovereignty that is neither in the

legal status, even after the entry into force of the Treaty of Lisbon

in its essence, without prejudice, of course, provided that the competent

the EU institutions are responsible to comply with the framework defined in this agreement and

do not exceed their competences; However, this is a question to the subsequent

the application of the Lisbon Treaty in practice. As noted, the Government

In this respect, the Treaty of Lisbon to a great extent explains and codifies

What was as a result of long-term development have previously developed and

steady in the case law of the European Court of Justice; like any codification,

This has contributed to increased legal certainty legal mailing


standards, not only of the EU institutions, but also the individual Member States. This is

be evaluated positively as well as from a national point of view, in particular,

taking into account the principles contained in particular in article. 1 (1). 1 of the Constitution.



185. for these reasons, the Constitutional Court did not find that the article would be. 216

(188l) of the Treaty on the functioning of the EU in conflict with the constitutional order of the Czech

of the Republic.



186. on the other hand, however, it is important to underline that the cited article 216 is

for its vagueness on the border of the compatibility with the requirements of the normative

observations of the legal text arising from the principles of democratic

the rule of law. The Constitutional Court itself-zabývaje is another site content

the transfer of powers within the meaning of article 3(1). 10A of the Constitution-deduced that this transfer

must be enclosed, recognizable and specific enough. Just

"určitelnost" the transfer of powers to an international organization is in the article

216 TFEU rather problematic; already at first sight is

that its formulation ("-" or "-" to either "-" or "-" or "-" or "-")

are "rubber", a vague and difficult to predict. In this way, you can

for comparison, mention for example. about generally known consistent case-law

The European Court of human rights, which-if it relates to the concept of "law"

-must be available, accurate and with predictable consequences. (I)

When the Constitutional Court recognizes that the accuracy requirements of the international

(probably) the Treaty cannot be interpreted as strictly as is the case with the law,

Nevertheless concludes that the basic elements of accuracy, certainty and

the predictability of legislation must comply with the international treaty. It

However, in article 216 of the TFEU rather questionable; However, this

It does not go so far, that the Constitutional Court could and should say-only

for the above mentioned normative representation of the text-that is cited

Article 216 in conflict with the constitutional order of the Czech Republic.



XVII.



187. in the fifth paragraph of the proposal, the Senate dealt with the issue of the Charter

fundamental rights of the European Union. He stated that the strengthening of the powers of the institutions

The European Union, which represent supranacionální level of decision making,

It is accompanied by the introduction of the single legal personality of the European Union, and

its functioning is in the realm of the current second and third

pillar, primarily in the areas of political cooperation, a completely new

the legislative framework. In this context (odbourávajícím in the said principle

the realm of the current third pillar principle unanimous) can

However, more often than ever to occur collisions with the national

the standards of protection of fundamental rights. Although the European Union according to the

the proposed article. 6 (1). 2 of the EU Treaty to accede to the European Convention for the

the protection of human rights and fundamental freedoms, concluded at the same

article in paragraph 1, that ' the Union recognises the rights, freedoms and principles contained in the

Charter of fundamental rights of the European Union of 7 December 2004. December 2000, as amended by

modified on 12. December 2007 in Strasbourg, which has the same legal

value as the treaties. '. This indirect reference to the Charter of fundamental rights

The European Union (hereinafter referred to as "the Charter") in the opinion of the Senate-

cause confusion about its status, as well as the fact that

The Charter contains not only the directly enforceable rights, but also the principles or

aspiration without a clear scheme of arrangement. In a situation where the Union

does not have and cannot have a specialised body, thus

Court řešícím "constitutional complaint", that provision of the Charter in

specific cases of violation of civil rights, he said, is not said to her

the role of the obvious. The Senate is not sure whether the Charter represents the protection of the rights

citizens, or rather an interpretative instrument, in which the angle of vision are

interpreted the powers of the EU institutions or the prohlubován interpretation of the objectives at which

The Union shall pursue, whether it is strengthened or vice versa on the authority

national institutions that interpret the national catalogues of human

rights always in the context of the peculiar political tradition of the peoples of Europe,

What procedural consequences (extension or acceleration of the instrument permitting enforcement

rights) has this step in relation to the jurisdiction of the European Court of human

rights, and that as a result of this fact can be bolstered or

nivelizován national standard of human rights protection embodied in the

The Charter of fundamental rights and freedoms. In that context, the President of the

States in its observations. He stated that in his opinion, the Charter has

rights of the EU make sense only if the Union feels itself to be the State of sui

generis, respectively, resulting from the Federal State, the type that is then

international law itself obliged to respect and protect human rights.



188. The Senate basically calls into question the very existence of a character

Charter of fundamental rights of the Union, as well as the issue of that with this

the theme of the closer.



189. Article 6 of the Treaty on European Union States:



1. the Union recognises the rights, freedoms and principles contained in the Charter of fundamental

rights of the European Union of 7 December 2004. December 2000, as adapted on 12 June 2006.

December 2007 in Strasbourg, which has the same legal value as the treaties.



The Charter did not increase the powers of the Union as defined by the treaties.



The rights, freedoms and principles in the Charter shall be interpreted in accordance with the

the General provisions in Title VII of the Charter governing its interpretation and

use of, and with due regard to the explanations referred to in the Charter,

that set out the sources of those provisions.



2. the Union shall accede to the European Convention for the protection of human rights and

fundamental freedoms. Accession to this Agreement shall not affect the powers of the

Of the Union as defined by the treaties.



3. fundamental rights, as guaranteed by the European Convention for the protection of

human rights and fundamental freedoms and as they result from the constitutional traditions

common to the Member States, shall constitute general principles of Union law.



190. As a preliminary point, it must be held that the purpose of embedding protection

human rights at the European level, in particular, was an effort to better

the protection of individuals in relation to the activities of the European institutions, which would

should be uniform, clearer and not significantly different according to the

individual national constitutions. It should be stressed that emerging Charter

was already on the basis of their award was conceived not as a completely new

document, but rather as the text in more detail kodifikující and advanced to

a large extent the already existing legal status. A reference to the currently

a non-binding Charter of fundamental rights of the European Union of 7 December 2004. 12.2000/ve

as adapted by day 12. 12.2007/(article 6, paragraph 1, of the EU Treaty as amended by the

article. 1 point 8 of the Treaty of Lisbon) is therefore not revolutionary enough to matter

should perhaps at initial examination. This catalogue of human

rights is included in the primary European law (referred to article 6, paragraph 1);

The Charter is not directly included in the text of the founding treaties, but it is on

the plane of the primary law-as already indicated above-being promoted by reference.

There is nothing special and certainly not nesouladného with the constitutional

policy in the United States; as to the possible, even in national law

used the legislative method, and a doubt in this respect are therefore not

necessary (cf. Article 112, paragraph 1, of the Constitution of the Czech Republic).



191. as regards itself, therefore, the (future) status of the Charter of the

clearly, the text referred to the formulation contained in article 6 (1). 1

Of the EU Treaty, namely that the Charter has the same legal value as the treaties, it is

undoubtedly be interpreted so that the document is an integral part of them.

Charter-in the event of the entry into force of the Lisbon Treaty-would, in the first

a number of obliged EU institutions and only vicariously, in the application

European Union law, whether direct or indirect, whether or not the authorities. The provisions of the

Charter are addressed to the institutions compliance with the principle of subsidiarity,

institutions and other bodies of the Union and of the Member States, but

exclusively only if implement Union law (article 51, paragraph 1,

Of the Charter). This principle reflects the current case law and the application

the unwritten human rights principles by the Court; States are bound by this

European standards of human rights when it is applied to the community

the right (cf. e.g. judgment of the Court of 13 July. 4.2000, Karlsson

and others, C-292/97, ECR I-2737, paragraph 2. 37, according to which the requirements of the

resulting from the protection of fundamental rights within the community legal

regulations are binding for Member States if they implement

Community rules). From the previous principle, so logically it follows that

Charter does not extend the scope of application of Union law beyond the powers of

The Union (article 51, paragraph 2, of the Charter, article 6, paragraph 1, of the EU Treaty). This

the recent case-law; for example. in the so-called. "the case of the Red Star"

(order of the Court of 6 April 2005. 10.2005, Vajnai, C-328/04.

judge. I-8577), where it was a question of whether it is contrary to the

European human rights principles of the prohibition of Communist nepsanými

symbols, backed by criminal sanctions in Hungary, the question was

considered as manifestly inadmissible, and it's not because today's

EU law knew no freedom of speech, but because in a given area

Community law does not in any way, and is therefore fully in Hungary to

establishes the prohibition of those symbols that are unacceptable to Hungary.

Similarly, the CF. judgment of 29 January. 5. the 1997 Kremzow, C-299/95,

ECR I-2629, where accused of murder tried to rely on the community


the level of protection of human rights and argued that any punishment

touches his "communitarian" freedom of movement. This line of argument, the Court

the question referred by the Austrian Court also rejected, because European law

It was not the thing to not applicable. On the inadmissibility of such

the questions will not change anything, even after the eventual entry of the Charter

Since its entry into force article. 11 is not applicable to similar cases.



192. In this context, can only be recalled that at the present time, for

the absence of a written (mandatory) a catalog of human rights within the EU, it is

that the Court of Justice, which applies the (guards) at EU level, human rights

created or recognized by this Court in the form of unwritten common

the constitutional principles of the Member States, therefore, with regard to domestic constitutional

systems and the system of protection conceived by the European Court of human rights

for human rights.



Note: refers to the Charter, the Court itself-see. for example. the judgment of the

27 June 2002. June 2006, Parliament v Council, case C-540/03, ECR. I-5769,

section 38; judgment of 3 July 2003. May 2007, Advocaten voor de Wereld,

C-303/05, ECR. I-3633, paragraph 46, and more.



193. the Charter itself contains a catalogue of fundamental rights and freedoms

(centered in the head first through sixth) and general provisions governing

its interpretation and application (chapter seven). Standard of protection of human rights and

fundamental freedoms in the European Union should be considered in addition to the Charter of the EU

with regard to the other relevant provisions of European law. Article 6 of the

paragraph. 2 of the EU Treaty provides that the Union shall accede to the European Convention on

the protection of human rights and fundamental freedoms. According to the third paragraph of the same

the article then fundamental rights, as guaranteed by the European Convention for the

the protection of human rights and fundamental freedoms and as they result from the constitutional

traditions common to the Member States, shall constitute general principles of Union law.

The second paragraph is important in particular with regard to the formal page

standard of protection. Materially are the fundamental rights guaranteed

Convention on the protection of the EU's system contained both through their

Declaration for the General principles of the law of the Union and their role in the case law

The Court of Justice. As a result of accession to the Convention with the institutions of the Union-including

The Court of justice-become a body checks by European Court

for human rights. From the perspective of a standard of protection that is based on the constitutional

order of the Czech Republic can be stated that the involvement of the European Court

for human rights to the institutional framework of the protection of human rights and

fundamental freedoms in the European Union is a step that mutual conformity

systems examined, only strengthens.



194. the third paragraph of article sixth, then refers to hardware components

standard of protection of human rights and fundamental freedoms. In this regard,

It is possible in the abstract of the review stated that this provision

It reflects the requirements of the national standard, as both are based on the

the same value of the framework. This fact is reinforced by the

The EU Charter of fundamental rights, whose article 52 paragraph 1. 3 and 4 shall provide that the

"If this Charter contains rights corresponding to rights guaranteed by the

Convention for the protection of human rights and fundamental freedoms, the meaning and

the scope of these rights are the same as those that shall be referred to the Convention.

This provision shall not prevent Union law providing more extensive

the protection. Insofar as this Charter recognises fundamental rights as they result from the

constitutional traditions common to the Member States, those rights shall be

interpreted in harmony with those traditions. ". It is necessary to take into account and

hlánek 53 of the Charter of fundamental rights of the EU, according to which "no provision of the

This Charter shall be interpreted as restricting or adversely affecting human

rights and fundamental freedoms, which in the area of their jurisdiction, recognize the right of

Union, international law and by international agreements to which the Union is

or all the Member States, including the European Convention for the protection of human

rights and fundamental freedoms, and the constitutions of the Member States. ". You can only

Note that this principle is key when it comes to limiting the reach of the

of EU law, and therefore also the relay restrictions on the sovereignty of the State of the EU.



195. Thus, if the Charter-as already mentioned-recognizes basic

rights as they result from the constitutional traditions common to the Member States,

those rights shall be interpreted in harmony with those traditions (article 52

paragraph. 4). There is a certain change compared to

It reflects the fact that it is a newly introduced written (binding) catalog

of human rights. While today they are the constitutional traditions common to the Member

States the material source of unwritten human rights, after the entry

The Treaty of Lisbon will this source text of the Charter itself, and

constitutional traditions get character of relief resources, in the interpretative

the meaning of comparative methods of interpretation of obligatory.



196. as regards the possibility of conflict between the standard of protection of human rights

and fundamental freedoms secured by the constitutional order of the Czech Republic and

provided by a standard within the European Union, it must be recalled,

that the protection of fundamental rights and freedoms belong to the area of the so-called. material

the outbreak of the Constitution that is out there (cf. ústavodárce. Pl. ÚS

50/04). If the from this perspective, the standard of protection provided in the

the European Union, the Czech authorities would have to

again, assume that his powers passed the respect ensure (cf.

the above mentioned already find in the matter of sugar quotas, SP. zn. PL. ÚS 50/04).



197. In an abstract sense, but can be difficult to assess the consistency of

individual rights and freedoms secured within the assessed systems

If these rights are not formulated very clearly and in detail.

Only in this case it would be possible to identify their potential

non-compliance and the possibility of its solution. However, no such provisions in the Charter of

The EU is clearly not included and no doubt in this respect, indeed,

It does not express nor the Senate as claimant. On the contrary, the contents of the catalog of human

the Rights expressed in the EU Charter is fully comparable with the protected content

The Czech Republic on the basis of a national Charter of fundamental rights and

freedoms, as well as the Convention for the protection of human rights and fundamental freedoms. In

this respect, it is possible to note the consistency of the EU Charter not only with material

the focal point of the Constitution, but even with all the provisions of the constitutional order.

After all, most of the rights and freedoms provided by contemporary systems of protection

It is according to the prevailing theoretical concepts (cf. for example. Alexy,

R.: A Theory of Constitutional Rights, Oxford University Press 2002;

a comparison of the German, European and American offers e.g. methodology. Qom,

M.: Constitutional Rights as Principles: On the Structure and Domain of

Constitutional Justice, 2 International Journal of Constitutional Law

574, 2004) as well as their practical applications of the most important constitutional courts

Open mutual measurement based on the analysis of proportionality

intervention into one of guaranteed rights in favour of the rights of another. Key

It is in this way not only the wording of the law, but far away

rather, the institutional system that ensures its protection. In this

It can be recalled and direction finding of the Constitutional Court in case drug Ordinance

(find SP. zn. PL. ÚS 36/05, promulgated under no. 57/2007 Coll.), where the constitutional

the Court explicitly. He stated that, as interpreted by the European Court of Justice

principles corresponding to the fundamental rights and freedoms, cannot remain without

the response when the interpretation of national law and its accordance with constitutionally

guaranteed rights. Similarly, in recent times was also the European Court of

for human rights in the case of Bosphorus (judgment of the European Court of

human rights in Bosphorus Hava Yollarý Turizm Ticaret Anonim in

Ţirketi against Ireland no 45036/98 of 30 March 1998. June 2005). Of these

reasons to consider the current state of European institutional

ensuring the standard of protection of human rights and fundamental freedoms

provided by a-compliant on the basis of the constitutional order

Of the Czech Republic. Can agree that even after

the entry into force of the Treaty of Lisbon will be the relationship between the European

the Court of Justice and the constitutional courts of the Member States somehow fundamentally

hierarchizován; It should continue to be conducted as peer dialogue

the partners, who will in their activities to respect and complement,

rather than compete with each other.



198. in this connection, the Constitutional Court notes that the guiding principle in

the field of human rights and fundamental freedoms is the most effective protection

individuals associated with their unique amount directly to the

the basis of human rights catalogues, usually without the mediation of other

legal texts less legal force. In the contemporary democratic Europe has been

achieved in periods after the second world war, and after the fall of totalitarian regimes

in the early 1990s, an exceptional level of protection

of human rights; Bill of rights the EU this system not neproblematizuje, but

on the contrary-in its field of competence extends, and appropriately-an individual, in

the entire structure is built, it can only benefit.

Possible future potential conflicts and disputes relating to the interpretation, which

may occur in any area of human activity, are not of this


the essential point of view; What matters is the overall purpose, based on the timeless

values that are the same or similar nature, whether they are already

guaranteed at national, European or international.



199. On this point it is still relevant to note that the Charter in article

51 expressly provides that it does not extend the scope of European Union law over

beyond the powers of the Union or establish any new power or task for the

The Union, or modify powers and tasks as defined by the treaties. Her

the provisions are determined (in compliance with the principle of subsidiarity) authorities,

institutions and other bodies of the Union and of the Member States only

When they are implementing Union law. They shall therefore respect the rights, observe the principles and

promote the application thereof in accordance with their respective powers, in the

conservation of the limits of the competences which are conferred upon the Union in the treaties. In this

the context of the Constitutional Court notes that, in the area where the authorities of the Czech

States were not transmitted their powers to the European Union, namely the Charter of the EU

immediately the welding fi lter and standard of protection based on the constitutional order

The United States is fully autonomous and independent in this respect

the standard of the European Union.



200. Other objections to the Senate have noted that it is not the task of the

The Constitutional Court assessed the instrument in terms of criteria other than those

that was defined above; It is therefore not possible to comment on the appropriateness of the

the embedding of certain rights and freedoms (which the Senate refers to as "understanding or

aspiration ", without the relevant provisions of the Charter specifies the closer EU)

or deal with their supposedly not quite clear by systematic arrangement.

Similarly, you can respond to the observations of the President of the Republic, pursuant to which the

the EU Charter of rights has meaning only if the Union feels itself to be

emerging state federal type, which then is the international law

obliged to respect and protect human rights. On the question of the Federal

the nature of the European Union, the Constitutional Court has already expressed by other items

This finding; It only remains to add that there is nothing unusual about the fact that

There are other international organisations with their own catalogs of basic

rights and freedoms. The most prominent of them is the one to which even himself

the President points out; It is the Council of Europe with its European Convention for the

the protection of human rights and fundamental freedoms, which it undoubtedly

Federal State of sui generis does not.



201. The Senate also raises the question of whether the Charter represents the protection of the

rights of the citizens, or rather an interpretative instrument, in which the angle of vision are

interpreted the powers of the authorities or prohlubován the interpretation of the objectives of the Union

tracks. Here, the Constitutional Court agrees with the observations contained in the

the Government, according to which it is clear that these functions are not mutually exclusive;

The EU Charter has in parallel to perform both functions, thus protecting

individuals and to determine the limits of the exercise of the powers of the EU institutions, where appropriate,

authorities of the Member State, in the application of EU law.



202. The Senate finally is considering whether the existence of the Charter does

strengthen or "watering" the standard of the national protection of human rights

According to the Charter of fundamental rights and freedoms. Such concern, however, it is not necessary.

Indeed, the constitutional courts traditionally held on the question of conflicts of various

the sources of fundamental human rights and freedoms, a pragmatic approach

based on the meaning and purpose of the Law Institute, which

It is in the area of human rights, in particular the protection of the individual against the

unconstitutional interference of State power. In the case of collision of the springs

regulating the rights and freedoms of individuals, therefore, follow that of the

them, which admits individuals a higher standard of protection.



203. In this context, the Constitutional Court considers for possible recall

that most modern Institute of European democratic States is based on more

less of the natural law theory, and therefore that the State is not entitled to

already granted rights to unilaterally withdraw (cf. also paragraph 115). Here

The Constitutional Court only adds that State, nor is it a provider (donor)

the rights of přirozenoprávního origin, which would hopefully these rights "said", the

has any individual regardless of the Act state that can only

log on to their observance and guarantee; However, this gets

the most important quality of a democratic and constitutional State, which

leaning against the values that are inalienable, not subject to alienation,

nepromlčitelné and non-cancelable.



204. For all the above reasons, the Constitutional Court did not find that the

the incorporation of the EU Charter of fundamental rights into European primary

However challenged the law or problematizovala national standard

the protection of human rights and was contrary to the constitutional order of the Czech

of the Republic.



XVIII.



205. In the sixth paragraph of the proposal, the Senate said that, last but not least are

the definition of the status of the Charter and its interpretation of the options needed to

embracing the newly formulated article. 1A of the EU Treaty, which

extension of the values on which the Union is founded, and at the same time to incorporate the

standards of the European social model ("in a society characterised by

pluralism, non-discrimination, tolerance, justice,

solidarity and equality between women and men "). The question of the interpretation of this

the provisions referred to in the Senate by excelling rather that a serious breach of the

those values may lead to suspension of the rights provided for the

Member State from the Treaty. No longer just a design made by 1/3 of the Member countries,

The European Parliament or the European Commission against a Member

the State would create political pressure might lead to changes

the national legal order. Therefore, the Senate gives to consider whether it is

the wording of this provision in accordance with the basic characteristic

The United States, contained in the article. 1 (1). 1, and also with article. 2 (2). 1

The Constitution (the principle of the sovereignty of the people).



206. Article 1a (now article 2) of the EU Treaty:



The Union is founded on the values of respect for human dignity, freedom,

democracy, equality, the rule of law and respect for human rights, including

the rights of minorities. These values are common to the Member States in

society characterised by pluralism, non-discrimination,

tolerance, justice, solidarity and equality between women and men.



207. Article 7, which the Chamber of content, though not explicitly invokes, as follows:



1. On a reasoned proposal of one third of the Member States of the European

Parliament or the European Commission, the Council, a majority of four fifths of its

Members after obtaining the consent of the European Parliament, may decide that

There is a clear risk that serious breach by a Member State

the values referred to in article 2. Before the adoption of this decision, shall hear the

The Council and the Member State concerned may submit to the State the same procedure

recommendations. The Council shall periodically review whether the reasons for

such a decision is based, remains unsolved.



2. On a proposal by one third of the Member States or the European Commission, and after

obtaining the consent of the European Parliament, the European Council, acting unanimously

decide that there is a serious and persistent breach of the values listed

in article 2, by the Member State, after inviting the Member State

to this issue.



3. If it was made of the findings referred to in paragraph 2, the Council may

by a qualified majority, decide that certain rights that for the

State resulting from the use of contracts, including the voting rights of the representatives of the

the Governments in the Council, will be suspended. While taking into account the potential impact of the

such suspension to the rights and obligations of natural and legal

persons. The obligations of the Member State concerned arising from contracts are

for that State in any case continue to be binding.



4. the Council may decide by qualified majority, amend or

revoke measures taken in accordance with paragraph 3, if the situation changes,

that led to the adoption of these measures.



5. for the purposes of this article, the European Parliament, the European Council and

The Council shall apply the rules of voting provided for in article 354 of the Treaty on

the functioning of the European Union.



208. The Constitutional Court notes that those values are in an essential

accordance with the values on which is built the material

the focus of the constitutional order of the Czech Republic; This is essentially about

the most important rules and principles universally přirozenoprávního origin,

whose protection is the best goal of the State, which has to be

the State democratic and legal. Already in the preamble to the Charter of fundamental

rights and freedoms and the Constitution expressed unconditional ústavodárce the linking of

those values on which our constitutionalism; MJ. recognized by the

the inviolability of the natural rights of man, follows the generally shared

values of humanity and commitment to protect and develop the Czech Republic in a spirit of

the inalienable values of human dignity and freedom, together with the will to

is one of the States that honor these values, and it explicitly as

part of the family of European and world democracy. In terms of the actual

the text of the Constitution and the Charter of fundamental rights and freedoms are in this sense

the key article. 1 (1). 1 of the Constitution and article. 1 of the Charter of fundamental rights and freedoms,

which shows that the Czech Republic is a sovereign, democratic, legal

State based on respect for the inalienable, inalienable and nepromlčitelným

nezrušitelným human rights and freedoms, free and equal in


dignity and rights. The rights and freedoms of minorities in General, and of the national

or ethnic terms are the subject of the article. 6 of the Constitution (which is determined

an obligation to ensure their protection), as well as the head of the third Charter of fundamental

rights and freedoms. The prohibition of discrimination is guaranteed in particular in article. 3 of the Charter

fundamental rights and freedoms, the principle of multiparty democracy in its article. 2

paragraph. 1, the principle of solidarity, above all in the arcade on the economic and

social rights the Charter of fundamental rights and freedoms; himself a political

the system is according to art. 5 of the Constitution based on free competition of political

party, unwilling to violence as a means of enforcing their interests and

that respect basic democratic principles. For the sake of completeness

recall that almost the same provisions as the newly formulated article. 2

The EU Treaty is there already in the existing article. 7 of the EU Treaty, which

refers to the principles contained in the article. 6 (1). 1 thereof, by

which the Union is founded on the principles of liberty, democracy, respect for

human rights, fundamental freedoms and the rule of law, principles which are

common to the Member States. This is just another proof that these

values have for the EU no longer constitutive character.



209. According to the beliefs of the Constitutional Court is therefore absolutely clear that

The Treaty of Lisbon is in this direction, in accordance with nedotknutelnými

the principles protected by the Czech constitutional order and that European law is

based on fundamental human and democratic values, common

and shared by all EU States. In this context, it must be recalled,

that starting with 1. May 2004, i.e. after the entry into force of the Treaty on the

accession of the Czech Republic to the EU, he had a new meaning and the article. 1 (1). 2

The Constitution, in relation to compliance with the obligations for the Czech Republic

deriving from its membership in the EU. Therefore, if the Senate suggests the possibility of

use of the mode of the Lisbon Treaty in the event that the Czech Republic

seriously violated the values as defined in article 2 of the EU Treaty,

We can only conclude that such an infringement would simultaneously mean

and the violation of those values on which rests the very material taken

the constitutionality of the United States; that would initially own the Constitutional Court, as well as

national courts within the limits of its jurisdiction, had to provide

the maximum protection possible. It should also see that the concept of "people" as the source

all of the State (article 2, paragraph 1, of the Constitution) should not be confused with

the sovereignty of the Czech Republic as a State, discussed by the article 1 (1).

1 of the Constitution, which, however, the applicant pleads, in particular. Sovereignty of the State

not in the modern democratic legal State to itself, that is,

in isolation, but rather is a means to the fulfilment of the abovementioned fundamental

the values on which the construction of the constitutional rule of law stands. It can therefore be

agree with the Government of the United States, according to which the possibility of a suspension

rights for a Member State resulting from the treaties, cannot mean

disruption of the basic characteristics of the United States as a sovereign,

the single and democratic rule of law according to art. 1 (1). 1 of the Constitution,

Neither the principle of the sovereignty of the people enshrined in an article. 2 (2). 1 of the Constitution, as

This is a penalty only against the Member State which violates the

the values on which the Union is founded; These values include, as

mentioned above, to the basic principles of the Constitution also protected

Of the Czech Republic. If the Czech Republic to follow its own constitutional

order, the suspension of rights arising for it from membership in the EU

out of the question. It can therefore be concluded that the existence of these values to the

EU level, as well as measures to protect them are on the contrary evidence

-reinforcing those beliefs which they argue the mutual compatibility and

podpůrností of the two systems, national and European Union, and in

the most important areas is the very essence of the rights and

Justice.



210. for these reasons, the Constitutional Court did not find that article. 2 and article. 7

The EU Treaty have been in conflict with the constitutional order of the Czech Republic.



XIX.



211. The Constitutional Court of the abovementioned interpretation has responded to the most important

objections and doubts that-in view of the Czech constitutional order-

spoke to specifically those articles of the Lisbon Treaty the Senate

Parliament of the Czech Republic as the legitimate claimant. The Constitutional Court

However, to reflect the President's argument, even though it is not in the control

the claimant, which contains his above quoted expression in detail.

As for the arguments of a dual nature. Some of them are identical or overlap with

the content of the proposal to the Senate and, therefore, the Constitutional Court responded to them in the context of the

analysis of the individual points of the Senate proposal. The next President's

arguments mean either supplement or derogate from the draft of the Senate; If

as for them, the Constitutional Court mentioned about them and briefly dealt with them. It

everything is determined by (among others) as well as the fact that both the Senate and the President of the relatively

exactly identified the provisions of the Lisbon Treaty, which would in

eventum actually could be from the standpoint of the Czech constitutional order at issue

or problematic.



212. observations of the President of the Republic is more pronounced-beyond the scope of the proposal

The Senate-so far as demanding that the Constitutional Court considered itself the way

the approval of the Lisbon Treaty; the President is inclined to believe that the

a referendum should be held, as with the so-called. the accession treaty.

Although the President of the Republic-as already mentioned-is not in the

management of the claimant, would not, in the opinion of the Constitutional Court must be

ignore this complaint. The President's request, however, goes in this direction

outside the limits of the possible review of the international agreement of the proposed article 87

paragraph. 2 of the Constitution. The Constitutional Court could examine the manner of approval

The Lisbon Treaty only if that would be expressly laid down the

separate provisions of the Constitution, which would have had to add ústavodárce

Similarly, as it did in the case of a review of the referendum on the accession of the

The Czech Republic to the European Union by adding article 87 paragraph 1. 1

(a). l), (m)). Otherwise, it would be possible for the holding of such a referendum-ad hoc

which was entirely political nature-to which, however, the Czech

Republic in the case of ratification of the Lisbon Treaty to carry out. Therefore,

You can't think about that, if the Treaty of Lisbon (indirectly changed

as well as to) the Treaty of accession of the Czech Republic to the European Union,

should the constitutional law no 515/2002 Coll., on the referendum on the accession of the

The Czech Republic to the European Union implicitly apply to this

(Lisbon) Treaty. A referendum in this direction, therefore, was not obligatory

and the possible review of the approval process of the Lisbon Treaty itself is not in the

the competence of the Constitutional Court.



213. the President of the Republic at a hearing at the Constitutional Court on 25 April. 11.

2008 its written observations orally supplement (paragraphs 57 to 64). The Constitutional Court

notes that the content itself-taken-on the President's arguments in

response in the previous sections of this report.



214. For completeness, the Constitutional Court States that the observations of the Government of the Czech

the Republic could not respond in detail, as should the Government in a substantial

extent, argued in favor of the accordance of the Lisbon Treaty with the constitutional

policy, which was also the conclusion to which came the Constitutional Court; However,

obvious from the above that in some places the award yet-or

that is why he considered the Constitutional Court-Court equivalent

the view that the Government either shares or which Government has expressed only

somewhat in other words.



XX.



215. the Constitutional Court thus concluded that the review carried out by it in the case

he concentrated on the provisions of the Lisbon Treaty, whose compliance with the

The Constitution explicitly questioned the appellant and submitted arguments that

in its proposal were included and that the Constitutional Court referred to above

the way he reacted. The Constitutional Court include in its examination of all

the provisions of the Lisbon Treaty, whose compliance with the constitutional order

the appellant questioned the way-that the Constitutional Court

He considers arbitrary new-while one can admit that, in some

aspects of could only replicate the existing norms of European law, and

even with regard to the already ratified and fully in the Czech Republic

applicable treaty on the accession of the Czech Republic to the European Union.

Related question then was determining the terms of reference

review of the conformity of the Lisbon Treaty with the Constitution. The Constitutional Court in the

If used as a reference point of the constitutional order of the Czech Republic

as a whole, not just its so-called. material outbreak, and for the reasons

that also explained in detail above; i preferred a comprehensive review,

When in the framework of the constitutional order of the same material, has played a focal point of the Constitution

-Therefore, the essential elements of democratic State whose

the change is illegal-the role of the core.



216. The principles of the constitutional order, including the material of the outbreak of the Constitution

While the Constitutional Court interpreted in the context of the Constitution as a whole. He entered

so clearly the idea of European responsibility and allegiance

expressed by the Czech ústavodárce. (It has made and the Government of the United States.)

He came in so doing. considers that the Lisbon Treaty does not change the

the basic concept of the existing European integration and that the Union even after possible

the entry into force of the Lisbon Treaty remains a specific organization


international legal nature. From the perspective of our constitutional law remains

The Constitution (and the Czech constitutional order at all) the Basic Law of the State; If

It is a Czech legal order and on European law, this is a relatively

separate and autonomous systems. The Constitutional Court remains the crowning

the protector of Czech constitutionality, even against the possible excesses of the EU

authorities and the European law, which clearly corresponds to the pointed

the question of the sovereignty of the United States; If the Constitutional Court Supreme

the interpreter of constitutional laws of the United States, which are in the Czech Republic

the territory of the highest legal force, it is clear that article. 1 (1). the Constitution cannot

be violated. If the European institutions have or develop

EU law in a manner that would undermine the foundations of the material

understood the constitutionality and the essential elements of democratic rule

the State, which are in accordance with the Constitution of the United States should be interpreted as

inviolable (article 9, paragraph 2, of the Constitution), then such legal acts

in the Czech Republic could not be binding. In accordance with the wishes to Czech

The Constitutional Court review as ultima ratio, and whether the legal acts

the European institutions are holding within the limits of the powers granted to them. In

This way, therefore, the Constitutional Court agreed, in principle, with some of the conclusions of the

The Federal Constitutional Court, expressed in its so-called. Maastrichtském

judgment (cf. above), according to which the principle of majority according to the

mutual respect, arising from the community, their loyalty to the limit in the

the constitutional principles and the basic interests of the Member countries; the performance of the

sovereign power volume States, which the European Union is founded

the mandate States that remain sovereign and that through

their Governments are acting regularly in the international area, and thus governed by the

the integration process.



217. The most important findings for review by the Constitutional Court, however,

that the Union continues to be based on the values of respect for human dignity,

freedom, democracy, the rule of law and understood the material compliance

human rights, and that therefore the emphasis is on what historically, spiritually and

advised combines the peoples of Europe to find justice in various

cases, for the benefit of the whole. Objectives and the integration role of the EU in this

the direction of the formulated in a unique way and the Constitutional Court as the people of the United

States responsible guarantor of the constitutionality of the democratic rule of law,

responsible in particular for the protection of the vested, inalienable,

nepromlčitelných and linear irrevocable fundamental rights and freedoms of individuals,

equal in dignity and rights, did not find anything in this direction, what would it

has led to the need to intervene.



XXI.



218. It follows from all of the above reasons, the Constitutional Court came to the conclusion that

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

establishing the European Community



in articles 2 (2). 1 (formerly 2a (1)), 4 (4). 2 (formerly 2 c), 352

paragraph. 1 (formerly 308 (1)), 83 (previously 69 b (1)) and 216 (formerly 188

l), contained in the Treaty on the functioning of the European Union,



in articles 2 (formerly 1a), 7 and 48 para. 6 and 7 contained in the contract of

The European Union,



* and the Charter of fundamental rights of the European Union



do not conflict with the constitutional order.



The President of the Constitutional Court:



JUDr. Rychetský in r.