The Constitutional Court found No 387 / 2009 Coll.
The Constitutional Court found of 3 November 2009 on the proposal to assess the conformity of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community with the constitutional order
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The Constitutional Tribunal found
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10.11.2009
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387
FIND
The Constitutional Court
On behalf of the Republic
On 3 November 2009, the Constitutional Court decided in plenary of the President of the Court of Paul Rychett and Judges Stanislav Balík, František Duchona, Vlasta Formánková, Military Güttler, Pavel Holländer, Ivana Jana, Vladimir Krorka, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Miloslav Excellent, Eliška Wagner and Michaela Židlická under Article 87 (2) of the Constitution of the Czech Republic of the Constitution of the Senate Group of the Czech Parliament, jointly represented by Senator Jiří Oberfalzer, legally represented by Advocate General Jaroslav Kuba, on the basis of the Treaty amending the Treaty on the European Union and the Treaty establishing the European Community with the Constitution, with the participation of the Parliament of the Czech Republic,
as follows:
I. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community
- as a whole,
- Articles 7, 8, 9, 10 (1), 13 (1), 14 (2), 17 (1) and (3), 19 (1), 20, 21 (2) (h), 42 (2), 47 and 50 (2) to (4) of the Treaty on European Union,
- Articles 3, 78 (3), 79 (1) and 83 contained in the Treaty on the Functioning of the European Union
and its ratification is not contrary to the constitutional order of the Czech Republic.
II. The proposal that the Constitutional Court assess the conformity of the Treaty on European Union (the appellant designated as the "Maastricht Treaty") as a whole and the Treaty establishing the European Community (the appellant designated as the "Treaty of Rome") as a whole with the constitutional order is rejected.
III. The proposal that the Constitutional Court assess the conformity of Articles 2, 4 and 216 of the Treaty on the Functioning of the European Union with the constitutional order is rejected.
IV. The motion for the Constitutional Court to state that "the decision of Heads of State or Government meeting within the European Council in relation to the concerns of the Irish people concerning the Treaty of Lisbon, which, on 18 and 19 June 2009, supplemented certain provisions of the Treaty of Lisbon, is an international treaty under Article 10a of the Constitution and as such requires the approval of both chambers of Parliament by a constitutional majority, otherwise not applicable to the Czech Republic," is rejected.
V. The proposal that the Constitutional Court should link the motion of a group of Senators to this proposal to initiate proceedings on the conformity of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community with the constitutional order to abolish the selected provisions of the Rules of Procedure of the two chambers of Parliament, which are set out in the Rules of Procedure of the First Chamber of the European Union, to the Rules of Procedure of the two chambers of the two chambers of Parliament, which are set out in the Rules of Procedure.
Reasons
Recital of the proposal
A.
Proposal of 28 September 2009
1. On 29 September 2009, the Constitutional Court received a proposal from a group of senators jointly represented by Senator Jiří Oberfalzer (hereinafter referred to as "the appellant ') to assess the conformity of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community with the constitutional order referred to in Article 87 (2) of the Constitution of the Czech Republic, as amended (hereinafter referred to as" the Constitution').
2. Petit of the proposal is divided into four points, to which the following parts of the statement of reasons correspond.
3. In point I of the petition, the appellant calls into question the conformity of the "Treaty of Lisbon as a whole, the" Treaty of Maastricht as a whole, "and the" Treaty of Rome as a whole "with Article 1 (1) of the Constitution and Article 2 (1) of the Charter; in fact, the appellant refers to the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (hereinafter referred to as the Treaty of Lisbon) or the Treaty on European Union (hereinafter referred to as the TEU), sometimes actually referred to as the" Treaty of Maastricht ', as amended by the Treaty of Lisbon or the Treaty on the Functioning of the European Union (hereinafter referred to as the "Treaty of Rome'), i.e. the Treaty establishing the European Community, which has been amended and renamed by the Treaty of Lisbon and is sometimes referred to as the" Treaty of Rome '.
4. This point in the petition is linked to the broad argument contained in paragraphs 11 to 100. First, in paragraphs 11 to 59 of the proposal, the appellant defines the basis for his argument, which calls into question the conformity of the Treaty of Lisbon with the constitutional order of the Czech Republic. It gives its own definition and definition of the essential elements of the "rule of law '(paragraphs 14 to 26 of the proposal), the" democratic rule of law' (paragraphs 27 and 28 of the proposal), the "democratic state '(paragraphs 29 to 38 of the proposal) and, finally, the" sovereign democratic rule of law' (paragraphs 39 to 59 of the proposal).
5. The appellant then outlines in paragraphs 60 to 96 the arguments why, in his view, the Treaty of Lisbon contradicts the above-mentioned characteristics and summarises them in paragraphs 97 to 100 of the proposal.
6. First, according to the appellant, the Treaty of Lisbon as a whole is contrary to Article 1 (1) of the Constitution or to the characteristics of the Czech Republic as a rule of law. The reason for this is that it does not comply with the requirements of sufficient clarity and clarity of the legislation (in particular in the absence of an authentic consolidated text "TEU and TFEU and in view of the scope of the amendments introduced by the Treaty of Lisbon - see paragraphs 61 to 70 of the proposal) and potentially the principle of prohibition of retroactivity (in view of the" possibility for the institutions of the European Union responsible for issuing its Official Journal to carry out further amendments in the Treaty of Lisbon and during its approval to correct errors' which will be found in the Treaty of Lisbon or in existing Treaties', which the appellant points out in point 71 of the proposal). These principles, according to the appellant, are generally one of the fundamental features of the rule of law (paragraph 97 of the proposal summarises this argument and refers to the other points of the proposal which the appellants consider to support).
7. In addition, the appellant adds that the so-called 'tied mandate', i.e. Parliament's prior consent to the vote of the representative of the Czech Republic in the Council of the EU, must be subject to all the votes which coincide with Parliament's competence at national level. The appellant considers that the so-called binding mandate should be subject to scrutiny by the Constitutional Court on a similar scale to national decisions. According to the appellant, "until the adoption of a [modification] of a binding mandate to that extent, ratification of the Treaty of Lisbon would be inadmissible, since its implementation would be contrary to the principle of division of power, which is one of the necessary preconditions for a democratic rule of law '(paragraph 82 of the proposal; paragraph 100 of the proposal summarises this argument and refers to the other points of the proposal which, in the appellants' view, are intended to support it).
8. Secondly, the appellant considers that the TEU as a whole is contrary to Article 1 (1) of the Constitution (characteristic of the Czech Republic as a democratic state) and Article 2 (1) of the Charter of Fundamental Rights and Freedoms ("the Charter '). The appellant points out Article 3 of the TFEU, which defines the objectives of the European Union, and argues that" the objectives thus defined contravene the principle of political neutrality, since they limit the possible decisions of the majority, i.e. the government of the people in advance' (paragraph 87 of the proposal). At the same time, according to the applicant of the TEU as a whole, it does not comply with the requirement of political neutrality, which is one of the fundamental features of a democratic state (point 98 of the proposal summarises this argument and refers to the other points of the proposal which the appellants consider to support).
9. Thirdly, the appellant considers that both the TEU as a whole and the TFEU as a whole are contrary to Article 1 (1) of the Constitution (characteristic of the Czech Republic as a sovereign state). The reason for this is that, according to the appellant, these treaties admit the creation of a common European defence as part of the European integration objective, with their own defence being a competence which, in the appellant's view, must always remain sovereign if it is to remain sovereign. Another reason outlined by the appellant is that these agreements do not exclude the creation of a common European federal state as the ultimate objective of European integration (point 99 of the proposal summarises this argument and refers to the other points of the proposal which the appellant believes should support).
10. In point II of the petition, the appellant disputes the conformity of selected provisions of the TEU with the selected and defined provisions of the Constitution or the Charter.
11. First, the appellant focuses on Article 7 TEU, which provides, inter alia, for the possibility of suspending rights arising for a Member State from the application of the Treaties in the event of a serious and persistent breach of the values referred to in Article 2 TEU. The appellant disputes the conformity of this provision as a whole and, in particular, of the verbal links contained therein "obvious danger '," serious infringement' and "certain rights' and wording ', while taking into account the possible consequences of such suspension for the rights and obligations of natural and legal persons' with Article 1 (1) of the Constitution, namely the principles of adequate generality and sufficient clarity of the legislation which the appellant considers to be an unforgivable component of the rule of law. According to the appellant, Article 7 TEU also contradicts Article 2 (3) of the Constitution. It states that," if membership rights are suspended, even for private individuals, the Czech state power will not in fact be able to serve its citizens, because it will be temporarily deprived of certain rights without which the service will not be possible for citizens "(paragraph 105 of the proposal). In more detail, the appellant makes his argument in paragraphs 102 to 106 of the proposal.
12. Secondly, the appellant focuses on Article 8 TEU. It states in paragraph 1 that "The Union shall develop privileged relations with its neighbourhood countries with a view to creating an area of prosperity and good neighbourly relations, based on the values of the Union and characterised by close and peaceful relations based on cooperation. '. As with the previous provision of the TEU, the appellant disputes its consistency as a whole and, in particular, as regards the phrase" privileged relations' and "close links' with Article 1 (1) of the Constitution, namely the principles of adequate generality and sufficient clarity of the legislation which the appellants consider to be unforgivable components of the rule of law. In more detail, the appellant disseminates its argument in paragraphs 107 to 109 of the proposal.
13. Thirdly, the appellant focuses on Article 10 (1) TEU, which states that "The functioning of the Union is based on representative democracy." According to the appellant, 'the European Union, if it is to remain an international organisation, cannot be founded on representative democracy. It must remain based on the sovereign equality of its Member States, and representative democracy must remain only a necessary and at the same time a luxury supplement "(paragraph 111 of the proposal). The appellant argues that" if representative democracy were the basis of the EU, it would mean that the EU itself is a state, and that would be contrary to the principle that the Czech Republic may only delegate to an international organisation or institution certain powers of its institutions, but not its sovereignty itself' (paragraph 113 of the proposal). Article 10 (1) TEU therefore, in the appellant's view, contradicts Article 1 (1) of the Constitution and Article 10a of the Constitution. In more detail, the appellant makes his argument in paragraphs 110 to 113 of the proposal.
14. Fourthly, the appellant focuses on Article 17 (1) and (3) TEU concerning the Commission's position. The first paragraph, according to the appellant, "contradicts the requirements of adequate generality and sufficient clarity of legislation by its vague wording and as such contradicts the principle of legal certainty which makes the existence of the rule of law conditional '. Consequently, according to the appellant, Article 1 (1) of the Constitution is contrary. The third paragraph of the provision in question provides, inter alia, that the members of the Commission are chosen" on the basis of the overall competence and Europeanisation of persons who offer all guarantees of independence. "According to the appellant," this provision effectively prevents anyone who would have unconformal views on European integration from becoming a member of the Commission' (paragraph 118 of the proposal). The appellant therefore argues in paragraphs 120 and 121 that this provision is "not only vague, but also extremely ideologically coloured and discriminatory '. Therefore, according to the appellant," not only does it contradict the principles of adequate generality and sufficient clarity of the law, but also the principle of political neutrality' (paragraph 120 of the proposal). For these reasons, Article 17 (3) TEU is to be contrary to Article 1 (1) of the Constitution, as well as Article 2 (1) of the Charter, according to which the State must not be bound by any exclusive ideology. The appellant also considers that this provision contravenes Article 1 (1) of the Charter (sic) under which people are equal in rights and Article 21 (4) of the Charter under which citizens have equal access to elected and other public functions. According to the appellant, the unconstitutional inequality lies in establishing the condition of sufficient Europeanism. In more detail, the appellant disseminates his argument in paragraphs 114 to 121 of the proposal.
15. Fifth, the draftsman focuses on Article 20 TEU, which regulates enhanced cooperation between EU Member States. According to the appellant, making enhanced cooperation conditional upon the consent of the EU institutions preventing the exercise of certain powers both at European and Member State level and, as such, contradicting the principle of government of the people enshrined in Article 1 (1) of the Constitution. Furthermore, according to the author's view, "it is contrary to the limitation of cooperation between Member States in areas where the Union has not yet exercised its competence and the principle of sovereignty of the Czech Republic '(paragraph 127 of the proposal) and therefore Article 10a of the Constitution. In more detail, the appellant disseminates his argument in paragraphs 122 to 128 of the proposal.
16. Sixth, the appellant focuses on Article 21 (2) (h) TEU. According to this provision, "The Union shall define and implement common policies and activities and shall seek to achieve a high degree of cooperation in all areas of international relations in an effort [...] to promote an international system based on enhanced multilateral cooperation and good governance on a global scale. 'According to the appellant, this provision contravenes" the principle of sufficient clarity of the law and, consequently, the principle of legal certainty which makes the rule of law [...] conditional on the existence of the rule of law and further contradicts the principle of political neutrality of the Constitution' (paragraph 130 of the proposal). The appellant therefore considers that the provision in question is contrary to Article 1 (1) of the Constitution and Article 2 (1) of the Charter according to which the State must not be bound by any exclusive ideology. In more detail, the appellant disseminates its argument in paragraphs 129 and 130 of the proposal.
17. Seventh, the appellant focuses on Article 42 (2) TEU. Under this provision, the "Common Security and Defence Policy 'includes the progressive definition of the Union's common defence policy. This will lead to a common defence once the European Council has unanimously decided on this. In this case, they shall recommend that Member States take such a decision in accordance with their constitutional requirements.'; In the opinion expressed by the draftsman, the Czech Republic" must not seek a common European defence at all - it would violate its own Constitution already '(paragraph 135 of the proposal). According to the appellant, "mere contractual acceptance of the possibility of a European federation with the Czech Republic as one of its entities contradicts the principle that the Czech Republic is a sovereign state. The same applies to the commitment to seek common European defence, because without its own defence, the Czech Republic would no longer be a sovereign state" (paragraph 135 of the proposal). Therefore, the provision in question is to be contrary to Articles 1 (1) and 10a of the Constitution. In more detail, the appellant's argument is set out in points 131 to 136 of the proposal.
18. Finally, at eight, the appellant focuses on Article 50 (2) to (4) TEU. These provisions provide for the possibility of a Member State leaving the EU. According to the appellant, this arrangement is "contrary to the principle of sovereignty," enshrined in Article 1 (1) of the Constitution, and also contradicts "the principles of retroactivity and legitimate expectations, namely the fundamental principle of the rule of law, that any rule must be known in advance" (paragraph 143 of the proposal). According to the appellant, the uncertainty of future conditions of withdrawal from the EU also contradicts Article 10a The Constitution, since "the transfer of powers must be certain, and the method of withdrawing delegated powers must be certain. The withdrawal of powers must not be subject to the de facto need for EU consent" (paragraph 144 of the proposal). In more detail, the appellant disseminates his argument in paragraphs 137 to 145 of the proposal.
19. In point III of the petition, the appellant disputes the conformity of the selected provisions of the "Treaty of Rome '(i.e. TFEU), namely Articles 78 (3) and 79 (1) thereof [with the constitutional order]. In the petition itself, although the appellant does not state what provisions of constitutional order the provisions of the TFEU should be in conflict with, this is identifiable from the next text of the proposal, namely points 147 to 150.
20. Article 78 (3) TFEU provides: "If one or more Member States are in an emergency as a result of a sudden influx of third-country nationals, the Council may, on a proposal from the Commission, adopt temporary measures for the benefit of the Member States concerned. The Council shall act after consulting the European Parliament. '. Article 79 (1) TFEU then states that" The Union is developing a common immigration policy aimed at ensuring effective management of migration flows at all stages, fair treatment of third-country nationals legally residing in Member States, as well as preventing and strengthening the fight against illegal immigration and trafficking in human beings.' According to the appellant, it follows from these provisions that "the Czech Republic will not always decide on the composition and number of refugees in its territory. The European Union will thus be given the power to participate in decisions which may have a relatively significant impact on the composition of the Czech population and its cultural and social character" (paragraph 148 of the proposal). According to the appellant, this is contrary to the principle contained in Articles 1 (1) and 10a, The Constitution, namely, "the powers relating to decision-making in matters of exceptional cultural or social impact are not transferable and must always remain fully within the competence of the Czech authorities. Their transfer to an international organisation or institution would contradict the character of the Czech Republic as a sovereign state" (paragraph 148 of the proposal). In addition, the appellant states that these provisions of the TFEU define only vaguely the conditions under which the EU Council can act and what it can actually do (paragraph 149 of the proposal). Therefore, in the view of the appellant, Article 78 (3) TFEU "also contradicts the principles of a reasonable general nature, namely the sufficient clarity of the law, and consequently conflicts with the principle of legal certainty as a necessary precondition for the existence of the rule of law '(paragraph 149 of the proposal). In more detail, the appellant disseminates his argument in points 147 to 150 of the proposal.
21. In point III of the petition, the appellant further "reserves the right to supplement the petition with a proposal to examine other selected articles of the Treaty of Rome '; In paragraph 146 of its proposal, it then states that" for time reasons only two provisions are yet mentioned, but the applicants are prepared to complete this part'. According to the appellant, the reason is that it does not "want to prevent the Constitutional Court from dealing with this proposal now."
22. In point IV of the petition, the appellant first asks the Constitutional Court to state that the decision of the Heads of State or Government meeting within the European Council in relation to the concerns of the Irish people concerning the Treaty of Lisbon, which, on 18 and 19 June 2009, supplemented certain provisions of the Treaty of Lisbon, is an international treaty under Article 10a of the Constitution and as such requires the approval of both chambers of Parliament by a constitutional majority, otherwise it is not applicable to the Czech Republic. "The petit thus formulated is then distributed by the appellant in paragraphs 151 to 165 of the proposal.
23. Finally, the appellant refers to his previous proposal to abolish the selected provisions of the Rules of Procedure of the two chambers of Parliament (sp. zn. Pl. ÚS 26 / 09), citing from his petition and referring to the provisions of § 63 of Act No. 182 / 1993 Coll., on the Constitutional Court, in conjunction with the provision of § 112 of Act No. 99 / 1963 Coll., the Civil Code, "the appellant requests that the Constitutional Court associate both proposals with the joint proceedings'.
B.
Complement of the proposal of 15 October 2009
24. On 15 October 2009, the Constitutional Court received a document entitled "Addition of the Senate Group's proposal to assess the conformity of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, or their selected provisions, with the constitutional order '(" Addition'), presented by Senator Jiří Oberfalzer as a representative of the Group of Senators. In addition, it is proposed that "the Constitutional Court should also assess the consistency of the following Articles of the Treaty on the Functioning of the European Union, as amended by the Treaty of Lisbon [...]: Articles 2, 3 and 4; Article 83; and Article 216 with Article 1 (1) and Article 10a of the Constitution '.
25. In the argument section of the supplement, which relates to the above contested provisions of the TFEU, points 3 to 6 of the addendum are first recalled.
26. The amendment then states in point 7 that "the shared powers are considered by the appellants to be very widely and too widely defined - as a result they can be further extended through extensive interpretation '. According to the appellant," the volume of delegated or potentially devolved powers is not precisely identifiable' and therefore, in his view, it is to be contrary to the "principle of adequate generality of legislation [...] and to the principle that the Czech Republic may, under Article 10a of its Constitution, delegate only part of the powers of its institutions, not all (even potentially) '. It therefore concludes that the definition of the shared powers of Article 4 TFEU is contrary to Article 1 (1) and Article 10a of the Constitution.
27. In addition, point 8 of the addendum states that Article 2 (4) TFEU "states that the common foreign and security policy is to lead to the definition of a common defence policy. This, in itself, contradicts Articles 1 (1) and 10a. The Constitution - according to the appellant," the same argument applies to Article 42 TEU (as amended by the Treaty of Lisbon) '. The extension refers to paragraphs 131 to 136 of the proposal.
28. Point 9 of the addendum calls into question the compliance of Article 3 TFEU with Articles 1 (1) and 10a of the Constitution. It shall state:
"The Union's exclusive competence is also problematic. The applicants do not dispute the delegation of [Article 3 TFEU] of the listed powers to the EU. The problem is that, although the EU has these powers or will acquire them, it is not obliged to exercise them without further action, or it fails to agree on appropriate legislation; At the same time, Member States lose these powers, i.e. they must not exercise them, even in a situation where the Union has failed to agree on the rules to be applied in a particular area. Therefore, there may also be a situation where no rules apply in the areas of the Union's exclusive competence. This is in direct conflict with the very essence of the rule of law, which is the existence of rules, i.e. to give individuals and their different groups at least relative certainty as to the consequences of their behaviour, thereby facilitating their decision-making and coexistence."
29. In the view set out in paragraph 10 of the Addition, "the exclusive competence of the EU generally contradicts Articles 1 (1) and 10a of the Constitution. In line with them, there is only such a transfer of competence, where the result is shared competence, that is, a situation where there is no risk of a region being left completely without substantive legislation. The delegation of powers within the meaning of Article 3 and Article 4 TFEU is not limited, identifiable and sufficiently certain. '
30. In paragraphs 11 to 14, Article 83 TFEU and Articles 1 (1) and 10a of the Constitution are called into question. In the opinion expressed in the addition to the "decision on what is a criminal offence and what penalties are to be imposed for offences, it is one of those powers of the State authorities which cannot be delegated under Article 10a of the Constitution '(paragraph 11 of the Addition refers to paragraph 54 of the proposal and point 6 of the Addition);" it is clear from the text [the contested provision] that the European Union is to be given its own criminal jurisdiction', which is "in itself 'to oppose the appointed provisions of the Constitution (paragraph 13 of the Addition). Finally, it is stated that" this competence does not have clear contours, the Council, together with the European Parliament, can expand its criminal jurisdiction further. The transfer of powers within the meaning of [Article 83 TFEU] is therefore not limited, identifiable and sufficiently specific "(paragraph 14 of the addendum).
31. In paragraphs 15 to 20 of the addendum, the compliance of Article 216 TFEU with Articles 1 (1) and 10a of the Constitution is called into question. The amendment states that "although this article has already been challenged by the Senate's proposal, the appellants consider that there are other circumstances that the Senate did not explicitly refer to in 2008 and that the Constitutional Court did not therefore deal with them, despite having touched them '(paragraph 16). The arguments set out by the Senate as well as the relevant part of the finding sp. zn. Pl. ÚS 19 / 08 of 26.11.2008 (446 / 2008 Coll.) - paragraph 182, points 183 and 186 of the finding are literally cited.
32. In conclusion, point 21 of the addendum states:
"The appellants cannot shake the impression that the Constitutional Court, when assessing the Treaty of Lisbon with a constitutional order, has always been on the side of the Treaty of Lisbon in any case of doubt rather than on the side of the constitutional order. Unfortunately, the Constitutional Court has a considerable degree of interpretation freedom and an effort to act on purpose so that the Treaty of Lisbon can be declared uncontradictory to constitutional order. This and some public speeches by the judges of the Constitutional Court give the impression that a decision has been taken in advance."
33. It cites the amendment from the oral statement of the President of the Republic in the proceedings in Pl. ÚS 19 / 08 and "calls on the Constitutional Court to" explain "why the principle that decisions in the case of international agreements should always give priority to constitutional order in the event of any doubt over an international treaty, does not apply or followed it in the examination of the proposal and its amendment" (paragraph 23).
34. At the very end of the amendment, it is summarised 'the proposal to assess the conformity of the Treaty of Lisbon, as is apparent from this amendment'.
35. At the oral hearing on 27 October 2009, the appellant submitted a further addition to its proposal, the content of which is summarised in points 78 to 90 of this finding.
Proceedings and recap of the observations of the parties
36. Pursuant to Section 71c of the Constitutional Court Act, Parliament, the President of the Republic and the Government are parties to the proceedings on compliance of international treaties with constitutional laws, in addition to the appellant. The Constitutional Court therefore, pursuant to Paragraph 42 (4) of the Law on the Constitutional Court, sent the proposal in question to the Chamber of Deputies and to the Senate of the Parliament of the Czech Republic, the President of the Republic and the Government of the Czech Republic, with the opportunity to comment on the application within a specified time limit.
A.
Observations of the Chamber of Deputies
37. On 8 October 2009, the Constitutional Court expressed the observations of the Chamber of Deputies of the Parliament of the Czech Republic signed by its President Miloslav Vlček. First of all, the expression summarises the process of approving the Treaty of Lisbon by the Chamber of Deputies. However, the President of the Chamber of Deputies also adds "his personal opinion on the relationship of the previous proceedings with the Constitutional Court [in which the Constitutional Court decided by the finding of Sp. Pl. ÚS 19 / 08 of 26.11.2008 (446 / 2008 Coll.)] on a proposal submitted by a group of senators'. It considers that already in this finding the Constitutional Court" has implicitly concluded that the ratification of the Treaty will not affect the Czech Republic as a democratic sovereign state within the meaning of the Constitution and the Charter of Fundamental Rights and Freedoms. The opposite conclusion would, according to the President of the Chamber of Deputies, necessarily create confusion as to the conclusions contained in the operative part of the statement and in the reasoning of the Constitutional Court's finding of Pl. ÚS 19 / 08 '. Finally, the President of the Chamber of Deputies notes that the proposal concerning the decisions of Heads of State or Government meeting within the European Council in relation to the concerns of the Irish people concerning the Treaty of Lisbon cannot be regarded as an international treaty for formal or content reasons, and therefore the proposal "to express a likely interpretative statement by the Constitutional Court is to be considered irrelevant'.
B.
Statement by the Senate
38. On 14 October 2009, the Constitutional Court received a statement from the Senate of the Parliament of the Czech Republic signed by its President Primem Sobotka. The statement first summarises the content of the proposal in Part I and Part II and continues with the information from the Senate during the ratification of the Lisbon Treaty. It states that 'after a year and a quarter of the process of discussing the Treaty of Lisbon in the upper chamber of Parliament, the Senate was given its approval on 6 May 2009'. Then the statement in Part IV turns to the question of compliance of the Treaty of Lisbon with the constitutional order. As stated in the observations, the Senate has been given considerable attention throughout the entire negotiation of the Treaty, both before the Senate's proposal for its review (Pl. ÚS 19 / 08) and after, when the Senators "focused in particular on the analysis of the decision, both from a formal and material point of view '. Furthermore, the expression clearly states how the various objections to the compliance of the Treaty of Lisbon with the constitutional order that the applicants are now making were the subject of a debate in the Senate with their active participation (the expression refers to the extent of the transfer of powers and the preservation of sovereignty, the democratic deficit in the European Union, the question of" admitting the creation of a European federation with the Czech Republic as a member', the definition of the objectives of the European Union, the question of the withdrawal of a Member State from the European Union and, finally, the reservations against "extreme ambiguity 'of the Treaty of Lisbon). Part IV concludes that the Senate" in detail and thoroughly addressed the Lisbon Treaty, not only three times at its meeting, but also in all the bodies which discussed the document, and although it heard various opinions expressing both positive and negative opinions on the international treaty under discussion, the majority opinion was expressed on 6 May 2009 by a resolution to which the Senate agreed to ratify it'. In conclusion, the President of the Senate notes that "it is" sent with the knowledge that it is entirely up to the Constitutional Court to decide, within the meaning of Article 87 (2) of the Constitution and the section of the Second Act No. 182 / 1993 Coll., on the Constitutional Court, on the proposal of a group of Senators'.
C.
Government observations
39. On 15 October 2009, the Constitutional Court received observations from the Government of the Czech Republic (adopted on the same day by order of the Government No. 1295). It speaks in detail on the individual points of the draft group of senators.
40. At the outset, the Government considers "it is necessary to emphasise that the Constitutional Court has already dealt with [in the opinion of Pl. ÚS 19 / 08], which it stated in the specific provisions contested by the [Senate] and the Charter of Fundamental Rights of the European Union, not contrary to the constitutional order '. According to the Government," although the statement of the Lisbon Treaty only covers some of the provisions of the Treaty of Lisbon, the Government assumes that the Constitutional Court did not assess these provisions in isolation, but in their context with other parts of the Treaty of Lisbon and in the context of its overall concept. [...] In the view of the Government, this must be taken into account in particular when assessing Part I of the proposal "(point 2 of the Government's observations). The Government also states that" the admissibility of a further proposal to review the Treaty of Lisbon should be rather exceptional' (paragraph 3 of the Government's observations). The Government also considers that "this issue will need to be clarified in relation to the Senate Group's proposal, since in some parts of the proposal, the already reviewed provisions of the Treaty of Lisbon are clearly being challenged or the arguments already rejected by the Constitutional Court in the Lisbon find '(paragraph 3 of the Government's observations).
41. In order to exclude the appellant, if appropriate, extend its submission by examining further provisions of the TFEU (see paragraph 21 of this Decision), the Government states:
"In particular, the Constitutional Court should assess whether such a reservation, which has the de facto character of a blank application to initiate proceedings, does not contradict the meaning and purpose of the procedure for reviewing the compliance of the international treaty with the constitutional order of the Czech Republic. In the event that the Constitutional Court does not reach that conclusion, the Government considers that such a procedure could, where appropriate, be assessed in the light of Article 118b of the Civil Code, which, in view of the absence of an explicit regulation in § 71d of the Law on the Constitutional Court, could be used retrospectively on the basis of § 63 of the Act cited [here the Government refers to Resolution sp. zn. I. ÚS 288 / 2000 of 23.1.2001 (U 4 / 21 SbNU 371)]. The Government considers that the Constitutional Court should consider whether, on the basis of the appropriate application of Article 118b of the Civil Code already cited, it does not restrict the appellant to the possibility of extending the original proposal to the principle of concentration of proceedings and, if so, at what point the restriction is bound" (paragraph 5 of the Government's observations).
42. The Government refers to the statement of reasons for the resolution of the Court of First Instance in this case, available at http: / / nalus.ujud.cz, on the rejection of the application in this case.
43. K point Even the petition of the Government states first of all that, in its view, it is misformulated when it questions "the constitutional conformity not only of the Treaty of Lisbon as a whole but also of [TEU] and [TFEU] as a whole. The Treaty of Lisbon [in the view of the Government] undoubtedly constitutes a fundamental amendment to the existing founding treaties, but some of the provisions in force in the two Treaties remain unaffected by that amendment and should therefore not be subject to review by the Constitutional Court in the context of the procedures for the compliance of the Treaty of Lisbon with the constitutional order. The Government believes that the standards of primary law currently in force cannot be reviewed in this review '(paragraph 4 of the Government's observations; see also paragraph 8). The Government also states that, in this section, the proposal" lacks constitutionally relevant arguments and on some points it rather gives the impression that the appellants are merely trying to convince the Constitutional Court of their legal political judgments' (paragraph 8 of the Government's observations). If this were indeed the case, then the Constitutional Court would not, in the Government's view, be competent to discuss these parts of the proposal (paragraph 9 of the Government's observations).
44. The petition also states that "there can be no doubt that the consent to ratify the Treaty of Lisbon was given by the Parliament of the Czech Republic in force, in accordance with all the rules resulting from the Constitution and the rule of law of the Czech Republic" (paragraph 11 of the Government's observations). According to the Government, the Treaty of Lisbon is "an amendment to the founding treaties and therefore the subject of ratification is so-called amendment points. This procedure is also used in cases of amendments to the legal standards in the Czech legislative process" (paragraph 11 of the Government's statement). Moreover, according to the Government, "the absence of an official consolidated version of the founding treaties with incorporated amendments under the Treaty of Lisbon does not support the conclusion of the appellants, but, on the contrary, it seems perfectly logical, as the Treaty of Lisbon amending the founding treaties is the subject of ratification in the Member States. Should the official consolidated text exist, there would be uncertainty as to what is to be the subject of ratification in all Member States and which of the two texts takes precedence in the (hypothetical) case of their conflict. The Government states that the unofficial consolidated version of the Treaty of Lisbon-incorporated contracts for better orientation exists and has been published in the Official Journal of the EU and in the Czech language" (paragraph 12 of the Government's observations, with reference to OJ C 115, 9.5.2008, p. 1). As regards the appellant's alleged breach of the principle of non-retroactivity (see paragraph 6 of this finding), the Government states that "this possibility of additional corrections, [...] is fully in line with international law. These are the so-called corrigenda, i.e. the corrections to errors which arose when translating text from the original language or languages into other official languages of the Union, and not changes of a substantive nature. This procedure is subject to the rules laid down in Article 79 of the Vienna Convention on the Law of Treaties [published under No 15 / 1988 Coll., hereinafter referred to as the Vienna Convention ']' (paragraph 13 of the Government's observations, references deleted). The Government also contradicts the assertion of the appellant that the Treaty of Lisbon contradicts the fundamental characteristics of the Czech Republic as a sovereign and democratic rule of law enshrined in Article 1 (1) of the Constitution of the Czech Republic, namely Article 2 (1) of the Charter of Fundamental Rights and Freedoms, in view of the further alleged reasons summarised in paragraphs 6 and 7 of this Decision.
45. Furthermore, the Government expresses its views on the various grounds in which the appellant sees a discrepancy between certain provisions of the Treaty of Lisbon and the constitutional order and which the appellant states in point II of the petition.
46. In paragraphs 18 to 23 of its observations, the Government argues that Article 7 of the TEU does not conflict with Article 1 (1) or Article 2 (3) of the Constitution (see paragraph 11 of the finding on this appellant's claim for a breach of the Treaty of Lisbon.) It recalls that this provision was already the subject of an assessment by the Constitutional Court, which did not find its contradiction with the constitutional order in the Pl. ÚS 19 / 08. Furthermore, the Government submits, inter alia, that the terms which the appellant contests are not "excluded from the reasonable scope, not only within the standards of international contract law, but also within the standards of national law, which appear to be higher than the standards previously mentioned '(paragraph 20 of the Government's observations referring to paragraph 186 of the decision of Pl. ÚS 19 / 08).
47. In paragraphs 24 to 31 of its observations, the Government argues that Article 8 of the TEU does not, in its view, contradict Article 1 (1) of the Constitution (see paragraph 12 of the finding on this appellant's alleged reason for the breach of the Treaty of Lisbon's constitutional order). Here, for example, the Government points out that "the importance of the terms at issue can be taken up by the usual interpretative means laid down in Article 31 of the Vienna Convention for the interpretation of international treaties. According to that provision, the terms in the text of the international treaty must not be interpreted in isolation but in connection with each other, interpreted in good faith and attributed to them the common sense and, finally, take account of the subject matter and purpose of the agreement in such a way as to contribute to the effective implementation of the agreement '(paragraph 25 of the Government's observations). The Government then performs such an interpretation at the following points in its observations.
48. In paragraphs 32 and 33, the Government deals with the appellants' doubts expressed in connection with Article 10 (1) TEU and also notes that it is not contrary to Articles 1 (1) or 10a of the Constitution (see paragraph 13 of the finding on this appellant's alleged reason for the breach of the Treaty of Lisbon's constitutional order). The Government states in paragraph 32 of its observations that this provision of the TEU is:
"especially by stating that representative democracy belongs to the common constitutional traditions shared by the Member States. It is through representative democracy at national level that the powers of the Member States, the Union and its institutions remain original. This fundamental line of representative democracy is then accentuated by the Treaty of Lisbon by the recognition of the special role of national parliaments in controlling the exercise of the powers conferred on them. The fact that the European Parliament, elected directly by the citizens of the Member States of the Union on the basis of the principle of so-called degressive proportionality, exercises at Union level certain, but not all, functions which are imputable to national representative bodies, namely the functions of control and legislative bodies, indicates that this body plays an additional role in strengthening the transparency and democratic structure of the decision-making process, and not that the Union itself becomes a State through it or that the rights of national parliaments would be transferred to it. The European Union is therefore a sui generis system in which the democratic representation element is based on a legitimate chain between national parliaments and the Council and supplemented by a horizontal element of representation in the European Parliament '.
49. In paragraphs 34 to 41 of its observations, the Government argues for the conclusion set out in paragraph 41 that Article 17 of the TEU "does not, in its view, contradict Article 1 (1) of the Constitution or the Charter of Fundamental Rights and Freedoms' (see paragraph 14 of the finding for this appellant's alleged reason for the breach of the Treaty of Lisbon's constitutional order). On the question of the vague concept of 'European', the Government points to the wording of that concept in other language versions. The Government states that" in the Czech translation, perhaps a somewhat inappropriately chosen expression of Europeanism must therefore be seen in this context as "European engagement," that is to say, basal loyalty to values and general objectives of integration '(paragraph 39 of the Government's statement). Similarly, the government argues in view of the alleged contradiction between the demand for Europeanism and the principle of political neutrality.
50. In paragraphs 42 to 44 of its observations, the Government argues for the conclusion set out in paragraph 44 that "it does not share the view of the appellants that the so-called enhanced cooperation" provided for in Article 20 TEU "contradicts the principle of sovereignty of the Czech Republic and, in the light of the above, believes that Article 20 TEU does not conflict with Article 1 (1) or Article 10a of the Constitution '(see paragraph 15 of the Found for this appellant's contention of the Treaty of Lisbon). The Government states in paragraph 42 of its observations that:
"the purpose of enhanced cooperation is to enable certain Member States to integrate more quickly within the Union, while ensuring that such cooperation is open to the other Member States in the event of their later interest at any time under clearly defined conditions. For these reasons, it is quite logical that the Treaty of Lisbon, like the already in force EU Treaty, makes the establishment of enhanced cooperation between a group of Member States conditional on compliance with the conditions laid down and approval by the Council. If some EU Member States wish to establish cooperation outside the scope of the Union and without the use of its institutional structures, such cooperation will not be contrary to their obligations under their membership of the Union, the Treaty of Lisbon does not impose any restrictions on them. However, unlike enhanced cooperation within the meaning of Article 20 TEU, in this case the Union cannot guarantee the other Member States that the participating States will be able to join such cooperation outside the EU '.
51. The Government adds in this regard that "in the area of shared competence, the principle is that, to the extent that the Union has not exercised certain powers or has decided to cease to exercise them, it is for the Member States" (Government statement, paragraph 43). In the view of the Government, Member States may exercise those powers which have not yet been exercised by the Union individually or jointly, provided that the exercise of those powers does not conflict with the obligations of those Member States arising from their EU membership. However, as the government further explains,
"However, in the case of enhanced cooperation within the meaning of Article 20 TEU, this is already a qualitatively different situation, as it takes place within the objectives and competences of the Union and within the framework of the Union's integration process, which can thus be deepened and strengthened by this route also between a closer group (at least nine) of Member States. The Member States involved in enhanced cooperation exercise the non-exclusive powers of the Union, not of their own, as expressly and clearly referred to in Article 20 (1) TEU. If legal acts are adopted under this qualified enhanced cooperation, they will have the quality of Union law with all relevant attributes' (paragraph 43 Government observations).
52. In paragraphs 45 to 51 of its observations, the Government argues for the conclusion set out in paragraph 51 that "Article 21 (2) (h) TEU does not contradict Article 1 (1) of the Constitution of the Czech Republic or Article 2 (1) of the Charter of Fundamental Rights and Freedoms' (see paragraph 16 of the Treaty of Lisbon), referring to the argument put forward in relation to similar arguments of the appellants and supplementing it with a comparative language interpretation, with which the Government considers that" the Member States of the Union did not have good governance in the sense of a responsible exercise of public authority against subordinate entities that are effectively implemented only within the State, with which the Government thinks as a rather responsible political decision against the equivalent partners to lead to create and maintain a global order '.
53. In paragraphs 52 to 58 of its observations, the Government argues, for the conclusion set out in paragraph 58, that the possibility of creating a common defence of the EU, enshrined in Article 42 (2) (1) TEU, is not contrary to Article 1 (1) or Article 10a of the Constitution (see paragraph 17 of the finding on this appellant's alleged ground of violation of the Treaty of Lisbon's constitutional order). First of all, the Government considers it necessary to oppose the appellant's claim (contained in paragraph 131 of the proposal) that "the new text of the Maastricht Treaty does not allow any alternative other than the creation of a common defence '. According to the Government, this claim is" directly contrary to the wording of Article 42 TEU'. According to the Government, "it is clear that, from a legal point of view, the possibility of unanimously deciding on a common defence is established, but it is left to the political considerations of the representatives of the Member States in the European Council whether such a decision will be taken. In any event, this is not a legal obligation whose failure to comply would constitute a breach of the contractual obligation. In other words, a common defence will arise if the European Council decides at an unspecified time forward, solely on the basis of its political considerations, without being legally obliged to do so" (both citations from paragraph 53 of the Government's observations). Furthermore, the Government draws attention to the need to approve such a decision by all Member States in accordance with their regulations (paragraph 54 of the Government's observations). The government is also convinced that
"the assertion made by the appellants of the impossibility to delegate any powers of defence to an international organisation is unsustainable. If defence matters were indeed a fundamental attribute of the sovereignty of the Czech Republic, the preservation of which would not allow defence to be made subject to international obligations, the whole provision of Article 43 of the Constitution of the Czech Republic would lack meaning. It is evident that both the fulfilment of the international contractual obligations on the joint defence against assault (Article 43 (1) of the Constitution) and the participation of the Czech Republic in the defence systems of the international organisation of which the Czech Republic is a member (Article 43 (2) of the Constitution), as well as the residence of the armed forces of other States in the territory of the Czech Republic (Article 43 (3) of the Constitution), clearly represent the sharing of powers in the field of defence, obviously on the basis of the applicable international contractual obligations accepted by the Czech Republic as a sovereign State when fulfilling the Constitution of the Czech Republic of the established procedures. The adoption of such contractual obligations expressly allows Article 49 (1) (b) to be applied. b) The Constitution of the Czech Republic, which sets out as one of the categories of so-called" presidential contracts "the category of contracts" Allied, peaceful and other political "(paragraph 55 of the Government's observations).
54. In this context, the Government draws attention to the membership of the Czech Republic in the North Atlantic Treaty Organisation (NATO - North Atlantic Treaty [Washington, D. C., 4 April 1949]. It entered into force for the Czech Republic in accordance with the wording of Article 10 of the Treaty on 12 March 1999 and was published under No 66 / 1999 Coll.) and the consequences thereof, also with regard to Article 42 (7) (2) TEU.
55. In paragraphs 59 to 61 of its observations, the Government argues for the conclusion set out in paragraph 61 that Article 50 (2) to (4) of the TEU "governing the procedure for the withdrawal of a Member State from the Union is not contrary to Article 1 (1) or Article 10a of the Constitution '(see paragraph 18 of the finding for this appellant's alleged reason of infringement of the Treaty of Lisbon. In that context, the Government recalls the conclusions of the Constitutional Court, expressed in paragraph 106 of its finding of the ÚS 19 / 08, that" explicit articulation in the Treaty of Lisbon of the [possibility of withdrawal] is an undisputed confirmation of the State are the Masters of the Treaty and of the continued sovereignty of the Member States'. According to the Government, "the adjustment of the procedure is then an expression of the common will of the Member States to deal with future mutual relations contractually, unanimously and comprehensively (which is undoubtedly desirable for such an integration unit) '(paragraph 59 of the Government's observations).
56. On the alleged grounds of a breach of the Treaty of Lisbon with the constitutional order referred to in point III of the petition (see point 19 of the finding on this point of the petition), the Government points out that the appellants challenge the provisions of Article 78 (3) TFEU and Article 79 (1) TFEU "without paying attention to the systematic interpretation of those provisions, whether they are the very concept of an area of freedom, security and justice, international commitments in the field of asylum policy, the permeability of internal borders, the protection of external borders and the follow-up visa policy or the pursuit of a comprehensive solution to legal and illegal migration. They also disregard those provisions of the TFEU which refute their argument and the literal text of those provisions" (paragraph 62 of the Government's observations). On Article 78 (3) TFEU, the Government states that it is necessary to bear in mind "that it is the Member States which decide on such measures in the Council in favour of the Member States concerned or the Member States concerned. This provision should also be interpreted in the context of the application of the principle of solidarity and the fair distribution of responsibility between Member States, including at financial level '(paragraph 63 of the Government's observations). As regards Article 79 (1) TFEU, the Government" considers it necessary, in particular, to refer to paragraph 5 of that Article, which the appellants have completely abandoned.' According to the Government, "this provision guarantees Member States the right to determine the volume of entry of third-country nationals arriving in their territory in order to seek work or to do business as a self-employed person. This is a particularly important regulatory mechanism which should remain the protection of the internal labour market against the undesirable (unmanageable) influx of foreign nationals already moving freely for work within the common labour market of the Union '(paragraph 64 of the Government's observations). On the basis of the above, the Government considers that the appellants' claims in Part III of the proposal are manifestly unfounded. According to the Government, Article 78 (3) and Article 79 (1) TFEU do not contradict Article 1 (1) of the Constitution" (paragraph 65 of the Government's observations).
57. On point IV of the petition, the Government states that "the Constitutional Court is not legally competent to consider such a proposal, on the one hand, because it is not a category of international agreement which is subject to a preliminary review of the constitutionality of [...] and because the Constitutional Court is merely asked to give an authoritative statement of the veracity of a particular legal opinion '(paragraph 66 of the Government's observations).
D.
Statement by the President of the Republic
58. On 16 October 2009, the Constitutional Court expressed the President of the Republic. It shall be broken into five parts marked A to E.
59. In Part A, entitled "Preamble," the President of the Republic recalls the socio-political context of the adoption of the Treaty of Lisbon, welcomes the proposal of a group of Senators and notes that "although the Constitutional Court has already expressed its views on the Treaty of Lisbon, it was only to its individual nature and not to the Treaty as a whole." In the view of the President of the Republic, "an earlier assessment of the sub-passages of the Treaty of Lisbon is not a guarantee that could dispel doubts about the compatibility of the Treaty of Lisbon with our constitutional order. Today's task of the Constitutional Court is quite different and therefore incomparable to what it had in the autumn of last year." As regards the previous review of the Treaty of Lisbon, the President of the Republic returns in the last paragraph of the first part of his observations:
"Since the previous examination of the compliance of the Treaty of Lisbon with the constitutional order of the Czech Republic was based on a specific approach, when the Constitutional Court considered only the provisions which the Senate had challenged at the time and did not consider the Treaty of Lisbon in a comprehensive and coherent manner, my arguments, which I made in my opinion of June 2008, were not seriously assessed and considered. My comprehensive statement was answered by the Constitutional Court with a single sentence. The simultaneous submission of the Senators, which is much wider in the scope of the contested provisions, gives an opportunity to think more comprehensively about the issue of the Treaty of Lisbon and thus opens up the opportunity to return to my previous arguments."
60. In Part B, the President of the Republic recaptures his observations of June 2008 (made in the context of the proceedings in the case sp. zn. The President of the Republic considers that, "in the course of the proceedings or at a later date, he has not received complete and convincing answers' to the five questions he raised in this statement. These questions are repeated in the submission.
61. The first question raised by the President of the Republic was: "Will the Czech Republic remain a sovereign state and a full-fledged entity of the international community, capable of independently and fully respecting its obligations under international law?" In the opinion of the President of the Republic, the Constitutional Court "avoided direct answers and came up with a new theory of sovereignty shared jointly by the European Union and the Czech Republic (and other Member States)." The President of the Republic shall state:
"While the concept of shared sovereignty has been used quite often recently, it is only in non-rigid debates. He's a contradiction in himself. Not only does our rule of law not know the term 'shared sovereignty', but neither does the law of the European Union. It was only used in the Decision of the European Parliament and of the Council establishing for the period 2007-2013 the Citizens for Europe programme to promote active European citizenship, which states that 'Culture of shared sovereignty - and not relinquishing sovereignty - is the culture and identity of today's European citizen and, more importantly, the citizen of the future'. This cannot, of course, be the basis of any legal argument '.
62. In the following paragraph, the President of the Republic represents his concept of sovereignty: "The principle of sovereignty is the unlimited exercise of power. Its sharing of sovereignty denies'. According to the President of the Republic" led to this view by the Constitutional Court [the President of the Republic seems to have in mind the concept of sovereignty expressed by the Constitutional Court in its finding of Pl. ÚS 19 / 08] suggests that there will be no sovereign in the European Union in the classical sense. This is a very dangerous social arrangement. "The President of the Republic concludes:
"I do not think that is the type of sovereignty that the Czech Constitution had in mind when it formulated Article 1 of the Constitution in 1992. The response of the Constitutional Court also answers the second part of this question: the Czech Republic, as an international community body, is not fully legal and can fully respect its international obligations only together with the European Union. That was not an acceptable answer for me."
63. The second question to which the President of the Republic sought an answer in the proceedings before the Constitutional Court was: "Is the provisions of the Treaty of Lisbon on the direct national effect of European Union legislation in accordance with Article 10 of the Constitution of the Czech Republic?" In the opinion of the President of the Republic, "the Constitutional Court did not give an answer at all to this question. The issue [according to the President of the Republic] was only addressed by reference to the sugar quota case. '
64. On the third question, the President of the Republic asked: "Does the Charter of Fundamental Rights of the European Union have the legal status of an international treaty under Article 10a of the Constitution and, if so, are all its provisions in line with the Charter of Fundamental Rights and the freedoms of the Czech Republic or other parts of constitutional order?" In the opinion of the President of the Republic, "the Constitutional Court did not provide a direct reply to the first part of the question. It can only be inferred indirectly from the finding that the Constitutional Court considers the Charter of Fundamental Rights of the European Union to be an international treaty and that the Charter does not conflict with the Constitution. However, no explicit reply was given. '
65. On the fourth question, the President of the Republic asked whether the European Union would remain "after the entry into force of the Treaty of Lisbon by an international organisation or institution to which Article 10a The Constitution permits the delegation of powers to the institutions of the Czech Republic. 'According to the President of the Republic, the Constitutional Court has not provided any reply.
66. Finally, the fifth question asked by the President of the Republic: "If the Treaty of Lisbon indirectly amends the Treaty of Accession, then does the Constitutional Law No 515 / 2002 Coll., on the referendum on the accession of the Czech Republic to the European Union apply implicitly to the Treaty of Lisbon (in which it would be necessary to amend in particular the question of referendum)? Therefore, is the agreement to ratify the Treaty of Lisbon not the subject of a referendum? 'Here, the President of the Republic states that" he answered this question as a single Constitutional Court, although he probably did not understand my question. "According to the understanding of the President of the Republic:
"The Constitutional Court stated that a referendum is possible, but that the decision is not for the Constitutional Court but for the political authorities. However, I asked whether the already approved Constitutional Law on the referendum on the accession of the Czech Republic to the European Union applies or does not apply to the Treaty of Lisbon. It changes the conditions of our approach in a very substantial way."
67. The President of the Republic recalls the explanatory memorandum to Constitutional Act No. 515 / 2002 Coll. (in his view "approved by the Government and Parliament of the Czech Republic") and quotes the following passage:
"Article 10a The Constitution provides, alternatively, as a condition of ratification of the international treaty, which transfers certain powers of the Czech authorities to an international organisation or institution, either the consent of a majority of three-fifths of all Members and a majority of three-fifths of the senators present, or the agreement given in the referendum. The draft law specifies this general wording in such a way that, in the event of ratification of the Treaty of Accession of the Czech Republic to the European Union, prior agreement is needed in a referendum, as it is the only one that can decide on accession to the European Union; determine, therefore, one of the variants referred to in Article 10a. The process of ratifying other type-defined international treaties does not address the bill, it will be the subject of future decisions by Parliament."
From this, the President of the Republic states that "already in 2002, the Parliament of the Czech Republic assumed that under Article 10a of the Constitution, if certain powers of the Czech authorities were to be transferred to an international organisation or institution in the future, it should become a referendum." In the opinion of the President of the Republic, the Constitutional Court
"it did not address at all the question of whether the Treaty of Lisbon, which is to be ratified more than five years after 1 May 2004, i.e. since the date of accession of the Czech Republic to the European Union, did not change the conditions under which the citizens expressed themselves in a referendum on the accession of the Czech Republic to the European Union, and whether, therefore, there is no need to adopt a new referendum law to answer the question of consent to the amendments adopted by the Treaty of Lisbon."
68. In conclusion, Part B, the President of the Republic declares: "All these questions must be answered directly by the Constitutional Court."
69. In Part C, the President of the Republic shall recap the draft of a group of Senators and give his consent to their reservations. In conclusion, the President of the Republic welcomes their efforts to "define the characters of the so-called material core of constitutional order, more precisely the sovereign democratic rule of law." The President of the Republic considers that "if the Constitutional Court accepts this definition as its own or defines it in a different, similar manner, it could prevent the future purposeful definition of these characteristics in the context of the current cases'. In the opinion of the President of the Republic, this would significantly strengthen the level of legal certainty both for citizens and for state authorities.
70. In Part D, the President of the Republic returns to the motion of a group of Senators to repeal the selected provisions of the Rules of Procedure of the two chambers of Parliament (sp. zn. The President of the Republic "has no choice but to express his regret at this rash procedure of the Constitutional Court, as these serious questions of Czech statehood will remain unanswered and may be the subject of further disputes in the future '.
71. In the final part of E, the President of the Republic proposes:
"that the Constitutional Court should decide clearly, specifically and on a detailed basis on the compliance of the Treaty of Lisbon as a whole with Article 1 (1) of the Constitution, or Article 2 (1) of the Charter of Fundamental Rights and Freedoms, and that it should state whether the Czech Republic will remain a sovereign, united and democratic rule of law based on respect for the rights and freedoms of man and citizen after the ratification of the Treaty of Lisbon."
72. On 23 October 2009, the Constitutional Court was served by the President's legal representative Aleš Pejchal by supplementing the President's observations. In this case, the President of the Republic agrees with the amendment of the Senate Group's proposal and, within the framework of this, he draws the attention of the Constitutional Court to ensure that it does not forget to assess the compatibility of the Treaty of Lisbon with the Constitution, also in view of whether "the abandonment of the principle of consensus in an area of freedom, security and justice and the establishment of the principle of majority voting by the representatives of the executive individual Member States of the European Union does not infringe Article 10a The Constitution, as it is in fact not a matter of transferring the powers of the authorities of the Czech Republic to an international organisation, but to a group of states which vote over the Czech Republic in promoting their own interests." In the view of the President of the Republic, "the transfer of powers of the authorities of the Czech Republic to another State or group of States does not allow the Constitution to take place '.
The conduct of oral proceedings
73. At the oral hearing before the Constitutional Court, held on 27 October 2009, Senator Jiří Oberfalzer and his authorised legal representative Jaroslav Kuba, her President Miloslav Vlček, his President Přemysl Sobotka, his authorised legal representative Aleš Pejchal, and the Minister for European Affairs of Štefan Füle, spoke for the Senate of the Czech Republic.
74. The lawyer of the appellant raised, referring to the provisions of Paragraph 37 (1) of the Law on the Constitutional Court, an objection to the bias of the Judge-Rapporteur Paul Rychetsky, stating that, in the text published in the online edition of the People's newspaper of 30 September 2009, "the German ambassador asked Rychetsky about the fate of Lisbon," he stated, inter alia, that "the German ambassador personally ordered and negotiated with the President of the Court of Paul Rychetsky two weeks ago. Judge Rychetsky confirmed it to the people's newspaper. According to Rychetsky, Ambassador Johannes Haindle wondered how long it would take for the court to pass judgment (sic!). In fact, as stated in the above article (sic!), the meeting... surprised the senators who lodged a constitutional complaint (sic!)."
75. The Constitutional Court suspended the hearing and then decided on the objection by a resolution as follows: "Judge Pavel Rychetský is not excluded from hearing and making decisions on the matter under point Pl. ÚS 29 / 09." The details refer to the resolution available at http: / / nalus.ujud.cz.
76. In the continuation of the oral hearing, the President of the Constitutional Court briefly summarised the content of the application together with the amendment made by the appellant and the observations of the parties and invited the representative of the Government to submit, in accordance with the call made by the Judge-Rapporteur on 26 October 2009, a copy of the Government of the Czech Republic resolution of 13 December 1995 No 732 on the application of the Czech Republic to join the European Union together with the application and the memorandum attached to the request. The representative of the Government did so and copies of those documents were received at the oral hearing and the other parties.
77. The appellant, through his lawyer's mouth, submitted a document entitled "Complement and specification of the petition with justification '(hereinafter referred to as" Second Addition') and briefly summarised its content. The second amendment was served by the President of the Constitutional Court on the other parties by a short journey directly during the oral hearing.
78. The appellant, in its second amendment, "complements and clarifies the petition 'of 29 September 2009 and its supplement of 15 October 2009 as follows: Point I of the petition as formulated in the second amendment, reads:" The Treaty of Lisbon (as consolidated) as a whole, (the Maastricht Treaty as a whole and the Treaty of Rome as a whole) contradicts Article 1 (1) of the Constitution, and Article 2 (1) of the [Charter]'. In point II of the petition, the appellant makes the following amendments:
- Article 7 (3) TEU already contested in the original proposal (see paragraph 11 of this finding; However, in both the original proposal and its amendment, the appellant questioned Article 7 TEU as a whole and then its specific wording), according to the appellant, is also to oppose Article 2 (3) of the Constitution,
- Article 9 TEU is, according to the applicant, to oppose Article 1 (1) of the Constitution,
- Article 13 (1) TEU and Article 47 TEU are, according to the applicant, to oppose Article 10a (1) of the Constitution,
- Article 14 (2) TEU is, according to the applicant, to oppose Article 1 of the Charter,
- Article 17 (1) and (3) of the TEU already contested in the original proposal (see paragraph 14 of this finding; In addition, however, only the second subparagraph of Article 17 (3) of the TEU was challenged by the appellant) is it intended to contradict Article 21 (4) of the Charter,
- Article 19 (1) TEU is, according to the applicant, to oppose Article 87 (2) of the Constitution
- Article 50 (2), (4) of the TEU, already contested in the original proposal (see paragraph 18 of this finding), is, according to the applicant, to oppose Article 2 (3) of the Constitution.
79. In the context of Article 8 of the TEU already contested in the original proposal (see paragraph 12 of this finding), the appellant does not, in the second amendment, indicate the contradiction of the specific wording as it did in the original proposal; for Article 7 TEU, in this second supplement, the appellant refers only to paragraph 3 thereof; for Article 50 TEU, the appellant refers only to paragraphs 2, 4 and not to paragraphs 2 to 4, as it did in the original proposal and its additions (see paragraph 18). However, these differences are likely to be attributed to the sloppy processing of those submissions (as well as the express questioning of the second subparagraph of Article 17 (3) TEU in addition to the application) rather than the appellant's intention, and the Constitutional Court did not therefore consider them relevant.
80. The above additions or modifications to the petit version of the proposal were justified by the appellant in the manner summarised in the following paragraphs (typing errors are corrected in citations, syntax is not).
81. To the alleged infringement of Article 7 (3) TEU with Article 2 (3) of the Constitution:
"When exercising that power, the Council shall decide by a qualified majority to suspend the rights of a Member State, including the voting rights of representatives of its Government in the Council. Consequently, the power of that Member State will be restricted. And the impact on his citizens. The legal standard, which contains this rule, enshrined in [Article 7 (3) TEU], and which allows the power of a Member State, which is primarily founded as a service to its citizens, is thus directly contrary to the legal standard of the Czech constitutional order. Specifically enshrined in [Article 2 (3) of the Constitution], according to which state authority serves all citizens'.
82. The Constitutional Court notes here that the appellant challenged the compliance of Article 7 TEU with Article 2 (3) of the Constitution in its original proposal (cf. point 11 of this finding).
83. As regards the alleged infringement of Article 9 TEU with Article 1 (1) of the Constitution:
"The so-called" European citizenship "institute, which is not derived from the Constitution or the constitutional order of a Member State, shall be applied to the application of this legislation. As the citizenship institute is not a defining feature of the international organisation but of the state, the introduction of so-called 'European citizenship' also proves that the legal personality of the EU bears the characteristics of the state within the meaning of this regulation. (With the legal personality of an international organisation, it would correspond to the designation" citizens of the Member States of the European Union ').
This will consequently limit the sovereignty of the Member State. Citizenship with legal consequences, the Constitution of the Czech Republic only states in the provisions of Articles 1, 2, 12 and 100.
Thus, the legal standard, which includes that institute, and enshrined in the [provision of Article 9 TEU] cannot exclude the emergence of conflicting liability for a citizen of a Member State. First, it comes from a national civil relationship, first, it comes from a so-called 'European relationship'. The creation of citizenship with legal consequences under the [provision of Article 9 TEU] to a citizen of the Czech Republic is thus contrary to the constitutional principle of the sovereignty of the Czech Republic, enshrined in [provision of Article 1 (1) of the Constitution], a feeling: "The Czech Republic is a sovereign, united and democratic rule of law."
As a result of the creation of a 'European citizenship', its citizens can thus, for example, develop a decision-making dilemma between the responsibility of the state or the EU in a situation of possible conflict between them '.
84. The alleged violation of Article 13 (1) TEU and Article 47 TEU with Article 10a (1) The Constitution states that "when applying the provisions cited, the legal personality of the European Union will manifest itself as the legal personality of the State '. In the following sections, the appellant disseminates this claim and concludes that from the application of these provisions of the TEU,
"it follows that the transfer of certain powers to the EU and its institutions will result in the Member State losing its sovereign ability to defend its members against the effects of external restrictions on their fundamental rights. For the entity to which these powers are delegated has the legal personality of the State and not the legal personality of an international organisation or institution. Therefore [these provisions] are contrary to [Article 10a (1) of the Constitution]. It states that" by international treaty, certain powers of the authorities of the Czech Republic may be delegated to an international organisation or institution, "and therefore not to another state."
85. The Charter draws the attention of the appellant to the fact that as a result of its application, "citizens of the most populous state will have between 12,6% and 12,6% of representatives in the [European Parliament], while only 0.8% of the weakest in number." From this, the appellant imports an infringement of the principle of equality enshrined in the provision cited in the Charter.
86. To the alleged infringement of Article 17 (1) and (3) TEU with Article 21 (4) of the Charter:
"The [Article 17 (3) of the TEU] states:..." Members of the European Commission shall be selected according to their overall competence and Europeanisation. "The content of" European 'is not defined, it can be used for discrimination etc. But above all, its transformation into the exclusive ideology of the EU, distorting pluralism and democratic values on which it was based, is not excluded.
This is no longer just a "problem" of the Czech Republic.
Thus, that provision of the TEU contradicts [Article 21 (4) of the Charter], citing: "The State of... (with) must not... bind... to exclusive ideology." In addition, [Article 21 (4) of the Charter]: "Citizens have access to elected and other public functions on equal terms'.
87. Similarly to the arguments put forward in relation to the infringement of Article 7 of the TEU with Article 2 (3) of the Constitution (see paragraph 82 of this decision), the Constitutional Court notes that this supplement actually reproduces the original proposal (see paragraph 14 of this decision).
88. The alleged breach of Article 19 (1) TEU with Article 87 (2) The Constitution states that "the interpretation of law by the Court of Justice of the European Union is one of the sources of so-called" Union law. "And which, according to the" Declaration 'attached to the Final Act of the Intergovernmental Conference under item "A' as" Declaration on the provisions of the Treaties' No 17: "Declaration of priority 'shall take precedence over the law of a Member State'. According to the appellant, therefore,
"the interpretation of any amendments or amendments to the Treaty of Lisbon by the Court of Justice of the European Union shall take precedence over their interpretation by the Constitutional Court of an EU Member State. This is when he decides on the compliance of the international treaty with the constitution or constitutional order.
This will result in a limitation of the jurisdiction of the relevant Constitutional Court, which is enshrined in [Article 87 (2) of the Constitution] in the case of the [Constitutional Court of the Czech Republic] and in its intentions decides on the compliance of the international treaty under Articles 10a and 49 with the constitutional order before its ratification.
Thus, the legal standard containing this rule in the [provision of Article 19 (1) TEU] is superior to the Court of Justice of the European Union in its interpretation of the so-called 'Treaties' (meaning the Treaty of Lisbon) and in the cases of their interpretation by the Constitutional Court of an EU Member State. In its decision on the compliance of the Treaty of Lisbon, as amended and amended by the international treaty with the Constitution or the constitutional order of the Member State.
This is in direct conflict with the legal standard of the Czech constitutional order enshrined in [Article 87 (2) of the Constitution]. It allows [the Constitutional Court] to make independent judgments concerning the interpretation of the international treaty pursuant to Articles 10a and 49 if it decides on its compliance with the constitutional order of the Czech Republic. At the same time, this will introduce the dependence of the interpretation of the Constitution on the standard contained in another legal document. "
89. Finally, the alleged breach of Article 50 (2), (4) TEU with Article 2 (3) The Constitution states that "the speech [is] subject to conditions, unilaterally identified by the European Council guidelines. For, pursuant to paragraph 4, its member representing the State acting in it may not participate in its deliberations." Therefore, according to the appellant, "it cannot be excluded that the conditions contained in the withdrawal agreement may be, for example, economically liquidation for the State acting and force it to withdraw its decision. So it is true - and again it is not just about the Czech Republic - that if the right of a Member State to leave the EU is to be restricted, at least under conditions known before accession." Directly to the alleged contradiction, the appellant submits that
"if, pursuant to paragraph 4, a member of the European Council or of the Council representing the acting State is not allowed to participate in the negotiations relating to its State, the so-called 'Treaty of Lisbon' during that process also limits the potential of the acting State to serve its citizens. And at the same time, their right to do so. It therefore contradicts [Article 2 (3) of the Constitution], which states that:" State power serves all citizens. "'
90. Following the question of the President of the Constitutional Court, the lawyer confirmed that the appellant continued to insist on further points of the petition which were not mentioned in the second amendment. It also confirmed that points II and III were understood by the appellant as being relevant to point I of the petition.
91. In the closing speech, Senator Jiří Oberfalzer, representing the appellants, returned to the content of the previous proposals and their additions submitted by the appellant and, above all, gave a comprehensive review of the content of the observations in the case sp. zn. Pl. ÚS 26 / 09. In his speech, the counsel of the appellant then disputed points 70 to 76 of the Pl. ÚS 19 / 08. For the sake of completeness, the Constitutional Court notes here that after the taking of evidence, the closing arguments and the Constitutional Court have been brought to the final hearing, it has received a further submission by the appellant through his legal representative on 30 October 2009. In view of the timing of this submission and the fact that, according to its content, it was clearly not a proposal to initiate the procedure, it was postponed [Paragraph 41 (a) of the Law on the Constitutional Court].
92. In particular, the President's legal representative repeated the questions raised by the President in his observations (see paragraphs 60 to 68 of this Decision), and then quoted extensively from the above-mentioned memorandum attached to the Czech Republic's request for accession to the European Union (see paragraph 76 of this Decision). He pointed out that, in the view of the President of the Republic, the character of the European Union is fundamentally changing by the Treaty of Lisbon compared to the character of the Union now.
93. Representatives of the two chambers of Parliament of the Czech Republic commented on the content of their written observations and reiterated that the Constitutional Court had already taken a positive view of the conformity of the Treaty of Lisbon with the constitutional order.
94. The representative of the Government first recited the content of the written observations of the Government and then submitted a separate statement to supplement the proposal, which concluded that the Government was convinced that the various articles of the TFEU contested in the amendment were not contrary to the constitutional order. He also commented on the President's written observations. At the end of his speech, he stated that "the Government of the Czech Republic has submitted the Treaty of Lisbon, a proposal by a group of senators, including its subsequent additions, as well as a detailed legal analysis by the President of the Republic, on the basis of which it concluded that the Treaty of Lisbon is not contrary to the constitutional order of the Czech Republic in each of the contested parts as well as as as as a whole."
Definition of the scope of the review
95. The extent to which the Constitutional Court is entitled to review the Treaty of Lisbon itself should be defined, in particular in the light of its previous findings, in the light of the Court of First Instance 19 / 08. Three questions have arisen before the Constitutional Court in this context. First, to what extent does the Constitutional Court oppose its previous decision in the further review of the Treaty of Lisbon (barrier to rei iudicatae, section A below). Secondly, the question of the possibility of reviewing the Treaty of Lisbon and, where appropriate, of the Treaties which it amends (i.e. the TEU and the TFEU) as a whole and the related content limits of the review of international treaties (Section B below). Finally, the Constitutional Court considers it necessary to recall the fundamental principles of the procedure for the compliance of international treaties within the meaning of Article 87 (2) of the Constitution and the subsequent provisions of the Constitutional Court Law, in particular with regard to the possibility of abuse of the procedure in respect of unconstitutional obstructive practices (Section C below).
A.
Obstacle of a matter which is legitimately judged in relation to the finding of Pl. ÚS 19 / 08
96. In point 78 of the finding Pl ÚS 19 / 08 The Constitutional Court stated that a possible new proposal to review this identical Treaty of Lisbon would appear to be blocked by the barrier to rei iudicatae in relation to the provisions currently under appeal. However, even then, the Constitutional Court pointed out that it would only make such an assessment if a new proposal was actually made; At the same time, he stated that the question of rei iudicatae is to be interpreted strictly for such a case. The Constitutional Court therefore left the assessment of the barrier rei iudicatae open. The definition in this regard is crucial when it is the same thing.
97. The restrictive concept of an obstacle to rei iudicatae is consistent with dual unity: the identity of the provisions of the international treaty which are contested by the proposal, and the identity of the alleged reason for its conflict with the constitutional order in which the provisions of the international agreement were reviewed in the previous decision and which obstructs the establishment of rei iudicatae. The so-defined barrier to rei iudicatae is restrictive in the sense that it places stricter requirements on the unity of the matter.
98. On the other hand, the delineated barrier to rei iudicatae gives the subsequent potential appellants a broader opportunity to question the constitutionality of the international treaty than if the identity of the case had already occurred, for example, only one of the provisions of the international treaty reviewed once. This corresponds to the concept of the procedure laid down in Article 87 (2) of the Constitution, to which the Constitutional Court expressed itself in the already cited finding of Pl. ÚS 19 / 08 (paragraph 76), as follows: "The sequence of individual applicants, as provided for in Article 71a (1) (Law on the Constitutional Court), is guided by the idea of allowing each of them to express their doubts about the constitutionality of the international treaty under discussion." If the first proposal for a review of the provisions of an international treaty could effectively block further proposals for a review of the same provision, raised in view of the possible contradiction with the provisions of the constitutional order which the Constitutional Court did not deal with in the previous decision, the possibility for any potential appellant to express his doubts about the constitutionality of the international treaty in question would largely lose meaning.
99. The Constitutional Court points out, however, that this sequence of appellants and the consequences derived from it by the Constitutional Court at the previous point do not mean that any subsequent appellants (or potential parties to other proceedings) are allowed to question again and again the Constitutional Court once in its findings on the conformity of the international agreement under review (or those provisions which it has made subject to its review) with the constitutional order (on top of which also section C of this part of the finding below). The finality, immutability and also the binding validity of the final decision of the Constitutional Court resulting from Article 89 of the Constitution and the subsequent provisions of the Law on the Constitutional Court fulfil the important functions which reflect the position of the Constitutional Court as a judicial body, not a point of order or a place for discussion of a primary academic or political nature (see, to that effect, the Court of First Instance, paragraph 75).
100. The Constitutional Court is a constitutional body which has been awarded pursuant to Article 89 (2) The constitution of powers authoritatively and definitively interpret the provisions of constitutional order, not the place for endless controversy that some participants are trying to make. The enforceable finding of the Constitutional Court is binding on all the institutions and persons (Article 89 (2) of Constitutional Act No. 1 / 1993 Coll.) and therefore - as is understood by itself - is binding on the Constitutional Court itself. Consequently, for any further procedure before it, in which it should be redecided (albeit by derogation), it constitutes an indispensable procedural obstacle to rei iudicatae (§ 35 (1) of Act No. 182 / 1993 Coll.), which naturally prevents any further meritorial review of the case [finding sp. zn. III. ÚS 425 / 97 of 2.4.1998 (N 42 / 10 of SbNU 285), p. 287-288].
101. The arguments put forward by the appellant in its addition to the alleged infringement of Articles 2 and 4 TFEU (defining the competences of the Union) with Articles 1 (1) and 10a of the Constitution (referring to points 26 to 29 of this finding) have been dealt with in detail by the Constitutional Court in points 125 to 141 of its finding of P.ÚS 19 / 08; The same applies to the arguments put forward in relation to the alleged breach of Article 216 TFEU with the same provisions of the Constitution (see point 31 of this finding for this argument); In that regard, the appellant does not even conceal that the Constitutional Court requests the reassessment of its conclusion expressed in the finding of Pl. ÚS 19 / 08 in points 176 to 186. Therefore, the Constitutional Court must reject these proposals on the basis of Article 35 (2) of the Constitutional Court Act as inadmissible. The related application for a review of Article 3 TFEU cannot be rejected on this basis as it was explicitly addressed by the Constitutional Court in its finding of Pl. ÚS 19 / 08. However, at this point, the Constitutional Court refers to the same points of the Pl. ÚS 19 / 08, which relate to the review of the compliance of Articles 2 and 4 TFEU with the constitutional order and which fully affect Article 3 TFEU.
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Regulation Information
| Citation | The Constitutional Court found No 387 / 2009 Coll., on the proposal to assess the conformity of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community with the constitutional order |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 10.11.2009 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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