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.