The Constitutional Court found No 446 / 2008 Coll.
The Constitutional Court found of 26 November 2008 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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446
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 26 November 2008 in plenary in the composition of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivan Janů, Vladimir Krórek, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická pursuant to Article 87 (2) of the Constitution of the Czech Republic on the proposal of the author - Senate of the Parliament of the Czech Republic - to assess the conformity of the Treaty amending the Treaty on the European Union and the Treaty establishing the European Community with the constitutional order
as follows:
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community
• Articles 2 (1) (formerly 2a (1)), 4 (2) (formerly 2c), 352 (1) (formerly 308 (1)), 83 (formerly 69b (1)) and 216 (formerly 1881) contained in the Treaty on the Functioning of the European Union,
• Articles 2 (formerly 1a), 7 and 48 (6) and (7) contained in the Treaty on European Union
• and the Charter of Fundamental Rights of the European Union
Reasons
1. The Senate of the Parliament of the Czech Republic (hereinafter referred to as "the Senate" or "the draftsman"), pursuant to Article 117b (1) of Act No. 107 / 1999 Coll., on the Rules of Procedure of the Senate, as amended, and pursuant to Article 71a (1) (a) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court"), submitted a proposal that the Constitutional Court, pursuant to Article 87 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), decide on the conformity of the Treaty amending the Treaty on the European Union and the Treaty establishing the European Community with the constitutional order of the Czech Republic.
2. In its proposal, the Senate stated that on 25 January 2008 the Government of the Czech Republic submitted to the Senate the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community ("the Treaty of Lisbon 'or" the Treaty') with a request for approval to ratify it. The Senate, following its resolution of 20 September 2007 on the positions of the Czech Republic prior to the meeting of the Summit of Heads of State or Government in Lisbon, took account of the report of the Committee on European Integration of the Senate on the draft Treaty establishing the Constitution for Europe on 30 September 2003 and the report of the European Union Committee on Senate Affairs on the draft Treaty establishing a Constitution for Europe on 3 November 2004 and having regard to the opinions of the Standing Commission of the Senate on 9 October 2003, of 3 November 2004 and of 27 March 2008, considers that certain provisions of the Treaty are directly related to the standards of the constitutional order of the Czech Republic. In view of the fundamental changes made by the Treaty which, in the opinion of the Senate, affect the substantive elements of statehood, it appears necessary to examine whether the Treaty is compatible with the constitutional characteristics of the Czech Republic as a sovereign, uniform and democratic rule of law (Article 1 (1) of the Constitution) and whether there is no change in the essential elements of a democratic rule of law which is inadmissible under Article 9 (2) of the Constitution.
3. The Senate stated that it considered it necessary for the Constitutional Court to assess the consistency between the specific provisions of the Treaty and the constitutional rules, in particular in the cases which it has defined further below.
4. (a) In accordance with the belief that legislative competence belongs to the Member States of the European Union, which delegate certain powers to international institutions, the Senate considers the key provision of Article 10a (1) of the Constitution that certain powers of the authorities of the Czech Republic may be delegated to an inter-national organisation or institution. The new version of the Treaty on the Functioning of the European Union (formerly the EC Treaty), in the opinion of the Senate, establishes a classification of powers rather characteristic for federal States, inter alia, introducing a category of exclusive powers of the Union in which complex areas of legal regulation fall, in which, pursuant to Article 2a (1) of the Treaty on the Functioning of the European Union, Member States may create and adopt legally binding acts "only if they are empowered or implementing Union acts." The following concept of shared powers (Article 2c of the Treaty), which are to exist in addition to those exclusive powers, together with the not entirely clear limits on the development of standards of secondary Union law, is, according to the Senate, open the scope of a wide, pre-identifiable sphere of Union standardisation where the principle of priority of Union law is applied implicitly, in accordance with Declaration 17 annexed to the Treaty. In the view of the Senate, the scope of the delegation of powers can thus be seen in the sphere of shared powers from the point of view of Article 10a The Constitution as not fully identifiable in advance (see also, in general terms, the introduction of Article 2c (2) of the proposal for a Treaty on the Functioning of the European Union - "The shared competence of the Union and the Member States applies in the following main areas:").
5. (b) The Senate indicated that it was subject to a review of compliance with Article 10a The Constitution should also be the nature of the proposed provision of Article 308 (1) of the Treaty on the Functioning of the European Union, pursuant to which the Council, acting unanimously on a proposal from the Commission, shall adopt measures to "achieve one of the objectives set out in the Treaties' in a situation where, within the framework of Union policies, a certain activity is necessary, for which the Treaty does not provide the necessary powers. Contrary to the existing wording of the founding agreements, the proposed Treaty provision is not limited to the area of regulation of the internal market, but rather constitutes a blank standard. It is said to allow measures to be taken beyond Union competence, i.e. beyond the scope of the delegation of powers under Article 10a of the Constitution. Such measures, according to the Senate, may subsequently also be taken on sensitive issues of cooperation in criminal matters without sufficient procedural guarantees for the protection of civil rights and freedoms, while maintaining the interpretation monopoly of the European Court of Justice. According to the Senate, the specific jurisdiction of the European Court of Justice, as the final arbitrator, may raise questions about compliance with the principle of legal certainty in a situation of unclear relation to the constitutional courts of the Member States. Particular attention should also be paid to the absence of a time limit on the validity of such a measure and its executive nature, which may raise doubts as to the relevance of the participation of national parliaments when considering the adoption of such a measure.
6. (c) According to the Senate proposal, the concept of competence with which Article 10a of the Constitution works does not only have a material dimension overlapping with the definition of the scope, but also an institutional dimension relating to the decision-making process. In this context, according to the Senate, the consistency of the proposed Article 48 of the Treaty on European Union with that provision of the Constitution needs to be reviewed. In fact, Articles 48 (6) and (7) provide for the possibility of a so-called simplified procedure for the adoption of amendments to primary Union law by means of an executive act amending the form of properly ratified EU Treaties.
7. The general transitional clause (Passerelle), which, despite the formal establishment of the principle of mutual flexibility in Declaration No 18 annexed to the Treaty, remains an instrument of one-way change of powers, is clearly being formulated in this context. The application of this clause in order to amend the unanimous decision-making procedure by a qualified majority in a given area or to replace a specific legislative procedure in accordance with the ordinary legislative procedure referred to in Article 48 (7) appears to constitute a change of powers within the meaning of Article 10a The Constitution, without this amendment being accompanied by ratification of an international treaty or by the active consent of Parliament. According to the Senate, the loss of the veto right can be seen as a transfer of powers to an international organisation, which, at the same time, effectively means limiting the importance of the parliamentary mandate given to the Government for a decision which, after the application of the transitional clause, could be overvoted by a representative of the government of an individual Member State.
8. In the case of the proposed Article 69b (1) TFEU, where the sectoral Council decides to include other areas of crime in the sphere of Union regulation, the scope for expressing Parliament's opposition is completely absent, however, in other cases - the proposed text of the General Transitional Clause (Article 48 (7) of the Treaty on European Union) and the partial Transitional Clause in the sphere of judicial cooperation in civil matters (Article 65 (3) TFEU) - this possibility is guaranteed. The limited involvement of national parliaments in the decision-making process of changing the relatively widely defined competences of the Union is complemented by the extension of qualified majority voting, often related to the overall communitarisation of the third pillar of European law, where, in parallel with the implicit weakening of the national parliamentary mandate and the abolition of the category of conventions approved by Parliament of the Czech Republic, the European Parliament assumes responsibility for the parliamentary dimension of decision-making. In this context, the Senate has asked whether, given the nature of the European Union as a community of states (not a federal state), this dimension of parliamentary democracy is sufficient and whether there is no de facto emptying of Article 15 (1) of the Constitution ("Legislative power in the Czech Republic belongs to Parliament.").
9. (d) The Senate continued that, in addition to the transitional clauses already mentioned and the flexibility clause, the procedural procedures laid down in the Treaty still affect constitutional order in other respects. This is the negotiation of international agreements under the proposed Article 1881 of the Treaty on the Functioning of the European Union. This is where the titles for concluding international agreements on behalf of the EU are extended (... "if the Treaties or agreements are either necessary to achieve the objectives set out in the Treaties within the framework of Union policies, or are provided for by a legally binding Union act, or may affect common rules or alter their scope.") The Treaties shall be binding on the EU and its Member States, with a decision by a qualified majority in the Council. According to the Senate, the Czech Republic does not have to agree to the Treaty and is still bound by it; the normal ratification process is not taking place at all, this leaves aside the possibility of a preliminary review of the compliance of such contracts with the constitutional order of the Czech Republic. The question is whether this is a procedure compatible with Article 49 and Article 63 (1) (b) of the Constitution and if there is room for the application of these Treaties under Article 10 of the Constitution.
10. (e) The Senate also stated that strengthening the powers of the institutions of the European Union, which represent the supranational level of decision-making, is accompanied by the introduction of a single legal personality of the European Union. It is said that the functioning of the European Union is gaining an entirely new legislative framework in the sphere of the second and third pillars, primarily political cooperation. However, in such a framework, fundamentally breaking down the principle of unanimous decision-making in the sphere of the third pillar, there may more often be conflicts with national standards of protection of fundamental rights than before. Although the European Union is to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms, according to the proposed Article 6 (2) of the EU Treaty, the same Article in paragraph 1 states that "the Union recognises the rights, freedoms and principles contained in the Charter of Fundamental Rights of the European Union of 7 December 2000, as amended in Strasbourg on 12 December 2007, which has the same legal power as the Treaties. 'This indirect reference to the Charter of Fundamental Rights of the European Union may, according to the Senate, create uncertainties about its status, as well as the fact that this Charter contains not only directly enforceable rights, but also principles or aspirations without clear arrangements. In a situation where the Union does not have or cannot have a specialised body, namely a court dealing with" constitutional complaints', which the provisions of the Charter would interpret in specific cases of breaches of civil rights are not clear. The Senate is not clear whether it constitutes a protection of the rights of citizens, or rather an interpretative instrument at whose point of view the competences of the Union institutions are being interpreted or deepened by the interpretation of the objectives pursued by the Union, whether the authority of national institutions which interpret national human rights catalogues is strengthened or weakened, always in relation to the arbitrary tradition of the political peoples of Europe, the procedural consequences (extension or acceleration of enforcement) of this step in relation to the jurisdiction of the European Court of Human Rights, and whether, as a result, the standard of national protection of human rights enshrined in the Charter of Fundamental Rights and Freedoms can be strengthened or undermined.
11. (f) Last but not least, according to the Senate's proposal, the definition of the status of the Charter and its interpretation is also necessary to grasp the newly formulated Article 1a of the EU Treaty, which extends the values on which the Union is founded, while incorporating the standards of the European social model ("in a society characterised by pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men"). According to the appellant, the question of interpretation of this provision is even greater than the fact that a serious breach of those values may result in the suspension of rights deriving from the Treaty for the Member State concerned. A mere proposal made by 1 / 3 of the Member States, by the European Parliament or by the European Commission against a Member State could, in fact, create political pressure leading to changes in the national legal order. The Senate therefore asks whether the wording of this provision is in line with the fundamental characteristics of the Czech Republic contained in Article 1 (1) and also Article 2 (1) (principle of sovereignty of the people) of the Constitution.
12. In the light of the above, the Senate proposed that the Constitutional Court, within the meaning of Article 87 (2) of the Constitution and Article 71e of the Law on the Constitutional Court, should rule on the conformity of the Treaty with the constitutional order.
13. 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 sent the Senate's motion to initiate proceedings to the Chamber of Deputies of the Parliament of the Czech Republic, the President of the Republic and the Government of the Czech Republic (Section 69 (1) of the Law on the Constitutional Court, per analogiam), with an opportunity to comment on the Senate's proposal.
14. On 5 June 2008, the Constitutional Court expressed the President of the Republic. He pointed out in his introduction that he welcomes and agrees with the Senate's proposal. The President stated that the Treaty of Lisbon, beyond any doubt, significantly changes the nature of the European Union as such and thus the legal position of the Czech Republic within it. Therefore, in his view, the assessment of the compliance of all its provisions individually and in their entirety with the Constitution of the Czech Republic, the Charter of Fundamental Rights and Freedoms and the constitutional order of the Czech Republic should be given particular attention. In this context, the President noted that the decision of the Constitutional Court on this matter would be one of the most important and responsible in the history of the Czech constitutional judiciary.
15. The President's observations shall be divided into three more comprehensive parts identified as A, B and C, which shall be subdivided into sub-chapters.
16. And it's called "Driving in general," and the first subchapter deals with the nature of the proceedings. In it, the President takes the view that the Constitutional Court is called upon to examine not only the provisions of the Treaty of Lisbon mentioned in the Senate's proposal, but also its compliance with the whole constitutional order, in all contexts. This is precisely the purpose of the procedure for the compliance of international treaties under Articles 10a and 49 of the Constitution with the constitutional order. The rationale of the proposal or the comments of the parties is said to be only of legal importance from the point of view of the proceedings that their claims, ideas and doubts need to be addressed in the reasoning of the finding. Furthermore, the President concludes that this type of procedure has the character of an undisputed procedure. If such an interpretation had not been valid, it would have been necessary to admit that another possible appellant under Article 71a (1) (b), (c) or (d) of the Act (i.e. a group of Members, Senators or President of the Republic) would still be entitled to make a different proposal, drawing the Constitutional Court's attention to other, previous appellants not mentioned by the provisions of the relevant international treaty, or constitutional order, after a positive finding by the Constitutional Court. Such an interpretation is considered not only absurd but also extremely impractical.
17. The next passage of the President's observations is entitled "Character of Treaties under Article 10a of the Constitution." Article 10 states that the declared international treaties, for which Parliament has given its assent to ratification, which the Czech Republic is bound under international law, are part of our legal order and take precedence over the law. This, but no other provision of the Constitution according to the President, makes any distinction between the Treaties under Rule 10a for which the two chambers of Parliament agree by a constitutional majority (Article 39 (4) of the Constitution) and the Treaties under Article 49 for which the two chambers give their consent by a simple majority (Article 39 (2) of the Constitution). This implies that, although the conditions for their ratification differ, the subsequent legal status of the Treaties under Article 10a and Article 49 of the Constitution must be the same in the Czech legal order. However, the President considers it impossible for ordinary international treaties under Article 49 of the Constitution to have the power of constitutional law or even have priority over it. As part of the rule of law, they take precedence over the law, but they are superior to constitutional order. However, this must then logically also apply to the Treaties under Article 10a, such as the Treaty of Lisbon and our Accession Treaty. Such an interpretation, according to the President, is confirmed by the wording of Article 112 of the Constitution. International treaties cannot be unilaterally abolished and withdrawal may not always be possible immediately. The subsequent control of their constitutionality would therefore be problematic and, therefore, their compliance with the constitutional order must be established in advance. Such a procedure, however, would make no sense for an international treaty which itself should have the power of constitutional law. The Treaty, which would be part of constitutional order, cannot, by its very nature, go against constitutional order. When it becomes part of it itself, implicit changes it in its image in accordance with the basic legal principle lex posterior derogat legi priori. (At this point, the President referred to a passage from the Opinion of the Standing Court of International Justice on the treatment of Polish citizens in Gdansk in 1932 - "According to universally accepted principles... the State cannot object to another state or its own constitution in order to avoid the obligations imposed on it by international law or the applicable international treaties.") The President concluded this part of the statement in such a way that, if the Constitutional Court did not agree with this interpretation and took the view that international treaties under Article 10a of the Constitution or other international treaties (reference to the Constitutional Court's finding No 403 / 2002 Coll.) were part of the constitutional order, it would be appropriate that the provisional control of the constitutionality would become a rule for all international treaties which should be part of the constitutional order, as this would prevent implicit, inadvertently or unnecessarily amending the constitutional order.
18. The most comprehensive part of the President's statement is part B, entitled 'To comply with the Treaty of Lisbon with the constitutional order'.
19. In it, the President first addressed the issue of sovereignty. He stated that under Article 1: The Constitution is the Czech Republic, a sovereign state which respects its obligations under international law. According to the President, it can be concluded that sovereignty in the sense of international law is understood here. The Czech Republic declares itself to be a full member of the international community and a full entity of international law. International law is a right of consensus; Unlike national law, its source is not, in the most general sense, an order (law, regulation, instruction, etc.) but a consensual or self-established legal standard (international treaties and international custom). According to the President, sovereignty is a property where the entity is not and cannot be limited by a standard that would arise without its consent, expressed either explicitly in the case of international agreements or implicitly in the case of international custom. Such an entity which is obliged to follow the instructions of another entity, irrespective of or even contrary to its will, is not sovereign under international law. The Treaty of Lisbon replaces decision-making in a number of areas by consensual decision-making on the basis of a vote (points to Article 9c of the Treaty on European Union, as amended by Article 1 (17) of the Treaty of Lisbon, i.e. Article 16 of the new consolidated version of the Treaty on European Union, renumbered on the basis of Article 5 of the Treaty of Lisbon; and Article 205 of the Treaty on the Functioning of the European Union, as amended by Article 2 (191) of the Treaty of Lisbon, i.e. Article 238 under the new consolidated text of the Treaty on the Functioning of the European Union, to date referred to as the Treaty on European Communities, renumbered on the basis of Article 5 of the Treaty of Lisbon). It can therefore happen that the Czech Republic will be bound by the standard that it has openly opposed. This applies even to the conclusion of certain international agreements by the European Union, namely the standards binding the Czech Republic on non-member states.
20. The President also spoke about the direct effect of EU legislation. He recalled that international law considers itself to be an exclusive system superior to national law and therefore considers national law from its point of view as mere legal fact, not legal standards; Therefore, it also does not in principle establish how States are to implement their international legal obligations. However, according to the President, the Treaty of Lisbon explicitly confirms that the selected EU legal acts are to have a direct effect in the legal order of the Member States (points to Article 249 of the Treaty on the Functioning of the European Union, as amended by Article 2 (235) of the Treaty of Lisbon, i.e. Article 288 of the new consolidated version of the Treaty on the Functioning of the European Union, renumbered on the basis of Article 5 of the Treaty of Lisbon; See also p. 6 of the submission reports for Parliament of the Czech Republic in Parliamentary Press No. 407 and Senate Press No. 181 in the current electoral periods); In contrast, the Constitution of the Czech Republic in Article 10 states that the international treaties approved and duly declared by Parliament are immediately binding. Thus, according to the President, contrario can be concluded that no foreign regulations other than those international treaties may have direct effect under the Czech legal order.
21. The President's observations are then addressed in his opinion to the unclear nature of the EU Charter of Fundamental Rights. Under the Treaty of Lisbon, the European Union is obliged to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms, while at the same time recognising the rights, freedoms and principles contained in the Charter of Fundamental Rights of the European Union. Moreover, this Charter is to have the same legal force as the Treaties establishing the EU (Article 6 of the Treaty on European Union, as amended by Article 1 (8) of the Treaty of Lisbon), in accordance with the new consolidated text of the Treaty on European Union, renumbered on the basis of Article 5 of the Treaty of Lisbon. According to the President, it is essential to find answers to questions as to what is the relationship between our Charter of Fundamental Rights, which is part of the constitutional order, and the Charter of Fundamental Rights of the EU, whether the Charter of Fundamental Rights also has the legal status of an international treaty under Article 10a Constitution and from that title priority over the Czech law, and if the EU Charter of Fundamental Rights and Freedoms is a treaty pursuant to Article 10a Constitution whether all its provisions are in line with our Charter of Fundamental Rights and Freedoms. The President added that he took it for granted that they did not have the same power as she did or even preferred it, which follows from the previous paragraph of his observations.
22. As regards the transfer of powers to the EU, the President referred to Article 10a Constitution according to which certain powers of the Czech authorities may be delegated to an international organisation or institution. It considers the word "international" to be relevant in this context, which it is clear that the powers of the authorities of the Czech Republic can only be transferred to an entity existing between states, not alongside them or even above them. The direct effect of European Union legislation suggests that the legal order of the Union feels superior to the laws of the Member States and that it emancipated itself against international law as a separate system, alongside international law. On the contrary, international law would be in line if European law had not prescribed for its members programming ways of fulfilling the obligations they are required (out of their common will). According to the President, by trying to grow the laws of the Member States, European law sees them as legal standards - on the contrary, international law fundamentally sees them as legal facts.
23. The EU Charter of Rights is, according to the President, an unnecessary document in itself. The Member States have their own, as a rule, much more sophisticated legal instruments. At international level, human rights and freedoms are guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe. This is historically verified and, in particular, has a functional judicial control mechanism, unlike the EU Charter of Rights, which, according to the President, only makes sense if the Union itself feels to be a sui generis state or a emerging federal state, which is then under international law itself obliged to respect and protect human rights. The fact that the EU will no longer be an international organisation after the adoption of the Treaty of Lisbon, but - according to the President - is also indicative of other facts; Although the European Union's citizenship had already been introduced by the so-called Maastricht Treaty of 1991, it was not a citizenship in the sense of international law. It was a concept that only the name or the "rights" that the citizens of the Member States would have had in common with citizenship in the legal sense. However, according to the President, the Treaty of Lisbon is moving forward, combining with the citizenship of the Union the rights that Union citizens will have in addition and which are only meaningful in the context of the EU; for example, the law of the legislative initiative grants the Treaty of Lisbon to a certain number of EU citizens who, as a whole, must "come from a substantial number of Member States." It is said that the Treaty of Lisbon already provides for a European civil society that exists here, alongside the civil society of individual Member States, and therefore a European nation is being constructed here.
24. Another example is, according to the President, a new definition of competences or their division between the Union and the Member States, which is said to be typical of the division of competences within the federal state. In particular, the division of powers belonging exclusively to the Union, to the residual powers belonging to the Member States and to the Union's ability to intervene on the basis of the principles of proportionality and subsidiarity does not differ very much from the division of competence between the association and the countries under the Basic Law of the Federal Republic of Germany. The only difference is that the Basic Law also defines areas in which the Clave must not intervene and which may be governed solely by the legislature of countries. Such a definition of the powers that the EU should in no way interfere with its Member States is lacking in the Treaty of Lisbon.
25. It is further stated that until now all decisions of the European Union have been taken by or derived from the Council of the EU or the European Council (the EU Commission constitutes secondary legislation, the EU Parliament performs its legislative functions together with the Council, the European Court of Justice merely interprets the so-called European law, but de jure does not create it, although its decisions often have a major impact); Member States are members of the EU Council and the European Council, and the result of their work is thus so far merely a sum of the will of the Member States. However, there is now to be a whole new position as President of the European Council; according to the President of the Treaty of Lisbon, it is not entirely clear, but it can be concluded that he too will have the right to vote in the European Council. This will then mean that the will of the European Union will no longer simply be the sum of the wills of the Member States, but the sum of the wills of the Member States and of the natural person who will be the President of the European Council at that time. This person will thus have a real veto right if the European Council decides by consensus. Contrary to the above, de jure is of no importance that the Treaty of Lisbon does not codify European symbolism - the flag, the anthem and the motto. Symbols are not one of the essential characteristics of a State under international law and are not one of the exclusive characteristics of a State. Moreover, European symbolism has long worked and will surely continue to function on the basis of international custom or so-called secondary Union law. Therefore, according to the President, it cannot be argued that its launch significantly distinguishes the Treaty of Lisbon from the rejected draft European Constitution. It is said that the difference between them lies only in form; whereas the EU Constitution has replaced existing treaties, the Treaty of Lisbon has the character of their amendment, making the so-called primary law of the Union even more opaque than it is now.
26. In conclusion, the President therefore stressed that all this raises fundamental doubts as to whether the European Union will remain an international organisation or an institution within the meaning of Article 10a, even after the entry into force of the Treaty of Lisbon. The Constitution of the Czech Republic, or whether it will no longer be an entity that exists next to its members and the prospective aspiring to even stand over them. The question is, then, whether Article 10a allows any powers of the Czech authorities to be transferred to such a transforming entity.
27. Part C of the President's statement refers to the way the Treaty of Lisbon is ratified. The President considers it useful for the Constitutional Court to find a way to express itself on the way in which the agreement to ratify the Treaty of Lisbon can be given. Article 10a The Constitution requires Parliament's consent to ratify an international treaty which transfers certain powers to an inter-national organisation or institution; a constitutional law may provide that, in a particular case, the consent given in the referendum is required. Pursuant to Article 1 of the Constitutional Act No. 515 / 2002 Coll., on the referendum on the accession of the Czech Republic to the European Union and on the amendment of the Constitutional Act No. 1 / 1993 Coll., the Constitution of the Czech Republic, as amended by the later constitutional laws, could only be decided on the accession of the Czech Republic to the Union by referendum. The question for the referendum was directly linked to the so-called Accession Treaty when it said: "Do you agree that the Czech Republic should become a Member State of the European Union under the Treaty of Accession of the Czech Republic to the European Union?" The Treaty of Accession is, in the President's view, clearly meant in the general sense, since it is not mentioned in the law by its full official name, including the date of signature; Moreover, a small "s" in the word contract is used. Therefore, it appears that any treaty determining the terms of our membership of the European Union is meant. As is apparent from the previous text, the Treaty of Lisbon changes in a very substantial way the conditions of membership of the Czech Republic in the European Union agreed by the Accession Treaty or changes the basic Treaties governing the functioning of the European Union, i.e. the Treaties to which the Accession Treaty refers and which are thus de jure part of it. In fact, the Treaty of Lisbon, according to the President, also amends the Treaty of Accession, so the legitimate question is whether consent to ratify the Treaty of Lisbon should also be the subject of a referendum.
28. In conclusion, the President of the Republic added that, in the light of the foregoing, it considers it necessary that the Constitutional Court, before ratifying the Treaty of Lisbon, should provide a clear reply to whether the Czech Republic will remain a sovereign state and a full entity of the international community, capable of fully respecting the obligations under international law, whether the provisions of the Treaty of Lisbon on the direct national effect of EU law are in accordance with Article 10 of the Constitution of the Czech Republic, whether the Charter of Fundamental Rights of the EU has the legal status of an international treaty pursuant to Article 10a, or Article 10 of the Constitution, and, if so, whether all its provisions are in accordance with the Charter of Fundamental Rights of the Czech Republic or other parts of the Constitution, whether the European Union will remain in force of the international organisation, or institutions, respectively, to which Article 10a The Constitution allows the powers of the institutions of the Czech Republic to be delegated, and if the Treaty of Lisbon amends, albeit indirectly, the Treaty of Accession, whether or not the Treaty of Lisbon applies implicitly to Constitutional Law No. 515 / 2002 Coll., on a referendum on the accession of the Czech Republic to the European Union (in which it would be necessary to amend, in particular, the question of the referendum) - that is to say, whether or not consent to the ratification of the Treaty of Lisbon should be the subject of a referendum.
29. The President of the Republic's statement also contains a summary stating that he considers a fundamental and comprehensive assessment of the content of the Treaty of Lisbon as a key precondition for its ratification as a legal party to the proceedings before the Constitutional Court. The reasons for the Senate's proposal and the content of this statement, according to the President, indicate that the Treaty of Lisbon constitutes a fundamental change in our constitutional order and the international position of the Czech Republic. The President does not consider it possible for such fundamental changes to the international status and internal functioning of the Czech Republic, which will undoubtedly bring about the adoption of the Lisbon Treaty, to take place as if it were entirely without their clear name, understanding and political and social consensus. According to the President, the Constitutional Court, as the highest legal authority of our state, is obliged to give political representation and the general public a clear and comprehensive assessment of the Treaty of Lisbon in all its contexts, so that it can be decided unequivocally and with full knowledge of its consequences. The Treaty of Lisbon brings about a fundamental change in the nature of the European Union and the legal position of the Czech Republic not only as its Member State, but as a sovereign and sovereign state at all, which until now has been and is. Before the Constitutional Court, therefore, in the view of the President of the Republic, there is an enormous responsibility not only to today, but also to the future of our state, whose 90th anniversary we are commemorating this year.
30. On 10 June 2008, the observations of the Chamber of Deputies of the Parliament of the Czech Republic were delivered to the Constitutional Court. The statement states that a procedure is currently being followed in the negotiation of international agreements by the Parliament of the Czech Republic, whereby the Government is presented with the international agreement of each chamber separately and the Chamber negotiations are in no way procedural or binding. It is therefore possible to talk about the so-called principle of double-rail negotiation of international agreements. As the Chamber of Deputies is not bound in this case by the obligation to suspend the negotiations of the international treaty until the Constitutional Court has decided, the Treaty is also debated in the bodies of the Chamber of Deputies. The Treaty was submitted to the Chamber of Deputies on 29 January 2008 as Press 407 / 0. The text of the Treaty was circulated to Members on 5 February 2008 and the Organising Committee recommended the negotiation of the Treaty, designated rapporteur Jan Hamáček and proposed to order it to the Foreign Committee. The first reading took place at the 28th meeting of the Chamber of Deputies on 19 and 20 March and 1 April 2008. A motion for rejection, a motion for a continuance, a proposal for a commandment to all the expert committees of the Chamber of Deputies and a proposal for an extension of the time limit to be discussed for 150 days was made during the debate. It was also proposed to adopt an accompanying resolution that the Chamber of Deputies requested the Constitutional Court under Article 87 (2) of the Constitution to assess the conformity of the Treaty with the constitutional order of the Czech Republic. On 1 April 2008, the Chamber of Deputies voted on the above-mentioned proposals that press 407 commands the Constitutional Committee, the Committee on European Affairs and the Foreign Committee to discuss it and extend the deadline for its discussion in committees by 20 days, i.e. to 80 days. For the time being, the Committee on European Affairs, with its resolution at its 35th meeting of 22 May 2008, decided to suspend the discussion of the press, has included the Committee on European Affairs on the agenda for the meeting. The agenda for the meeting of the other two above-mentioned committees, which have been ordered to negotiate the Treaty, has not yet been included, according to press 407.
31. The Government of the Czech Republic, in its observations of 2 July 2008 in the introductory section, stated in detail that on 23 July 2007 an Intergovernmental Conference was formally launched in the framework of the General Affairs and External Relations Council, during which it was to be drawn up on the basis of the proposed draft final text of the so-called Reform Treaty in accordance with the mandate approved by the European Council on 21 and 22 June 2007. The draft text of the Reform Treaty was discussed and modified in the coming months by a group of legal experts from the Member States of the European Union and finalized at the informal European Council in Lisbon on 18-19 October 2007. The Treaty of Lisbon consists of two essential parts; one part contains the text of the amendments to the Treaty on European Union, the other contains the text of the amendments to the Treaty establishing the European Community, including its renaming to the Treaty on the Functioning of the European Union. The Government of the Czech Republic approved the Treaty of Lisbon by Resolution No 1367 of 4 December 2007 and the Treaty was signed by authorised representatives of the EU Member States in Lisbon on 13 December 2007; for the Government of the Czech Republic, the Treaty of Lisbon was signed by Prime Minister M. Topolánek and Minister of Foreign Affairs K. Schwarzenberg. On 29 January 2008, on the basis of the same resolution, the Treaty of Lisbon was submitted by the Prime Minister to the Chamber of Deputies of the Parliament of the Czech Republic and the Senate to give consent to its ratification within the meaning of Article 10a of the Constitution. The Charter of Fundamental Rights of the European Union (hereinafter referred to as the "EU Charter '), which was solemnly proclaimed by the European Parliament, the Council and the Commission on 12 December 2007 in Strasbourg, was also presented to both chambers of Parliament for transparency purposes.
32. The Government further noted that the way from the Treaty of Nice to the new contractual basis embodied in the Treaty of Lisbon was complex and there were a number of issues related to the relations of primary EU law - the rule of law or the constitutional order of the Member States. Many problematic places have already been discussed in the Convention on the Future of Europe, which has prepared the draft Treaty establishing a Constitution for Europe; The government again came across some of them, also identified in the Senate proposal (especially the so-called transitional clause and the EU Charter) during negotiations on the text of the Treaty of Lisbon. In this sense, the Government considers it legitimate that the Senate has exercised its constitutional right and has made a proposal to address doubts as to the compliance of the Treaty of Lisbon with the constitutional order of the Czech Republic before the Treaty enters into force.
33. On the text of the Treaty of Lisbon, the Government initially stated that it had been responsible for analyzing its provisions, including the issues already mentioned, during its negotiation and signed the Treaty of Lisbon in the belief that it was in line with the constitutional order of the Czech Republic in its entirety.
34. From a procedural point of view, when formulating its observations, the Government took the legal view that the decision of the Constitutional Court under Article 87 (2) of the Constitution on the compatibility of an international treaty under Article 10a with the constitutional order was an undisputed procedure, not a contractual procedure. The Government thus imports in particular an interpretation of the relevant provisions of the Constitution and the Law on the Constitutional Court, according to which the procedure for the compliance of the international treaty with the constitutional order (see Sections 71a (1) and 71d (3) of the Constitutional Court Act). The procedure for the conformity of an international agreement under Article 10a is based on the principle of prior checking of constitutionality and the undisputed nature of the procedure is also to be taken into account in Section 71e of the Law on the Constitutional Court, which sets out the terms of the operative part of the operative part of the decision of the Constitutional Court. The Government therefore considers that the review of constitutionality should not only be limited to the specific claims formulated by the appellant but also to other issues relating to the Treaty of Lisbon. In the view of the Government, the appellant should therefore not be burdened with the burden of proof, as should the Government not be in the position of a defendant, but a participant with the same procedural rights and obligations as other parties, in particular the Chamber of Deputies and the President of the Republic.
35. In particular, it is stated that, if the Treaty of Lisbon is assessed in relation to the formal attributes of the State enshrined in Article 1 (1) of the Constitution ("the Czech Republic is a sovereign, united and democratic rule of law '), the Government does not find any discrepancy. As a result of the entry into force of the Treaty of Lisbon, the European Union will be reestablished with its own legal personality and Member States will conditionally transfer additional powers to the Union, but in the case of the Czech Republic, this will become constitutional in accordance with Article 10a of the Constitution; However, the Czech Republic will remain a separate, sovereign state. However, according to the Government, it is necessary to focus mainly on the assessment of the Treaty in terms of the so-called material core of the Constitution, i.e. the essential essentials of the democratic rule of law under Article 9 (2). The Government is of the opinion that the theory of immanent limits guaranteeing the identity of the Constitution, as set out in this article, is sufficient in itself to ensure that there cannot be a complete value transformation of the constitutional system in the Czech Republic. The Government is of the opinion that there are unwritten boundaries for amending the Constitution; changes and extensions of constitutional order are in line with the material core of the Constitution when the system of conformal development of the Czech Republic is guaranteed and when there is no overcoming of the value system on which the Constitution as a whole rests. With reference to Article 2 of the EU Treaty (" the Union is based on values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of minorities'), it is generally understood that both the constitutional system of the Czech Republic and the contractual system of the European Union are founded and based on the same principles and principles common to all Member States of the European Union.
36. The expression is further devoted to the particular arguments and considerations raised in the Senate's proposal.
37. First, the government deals with the question of defining and classifying EU competences. In this respect, it is based on the belief that the legislative 'competence' belongs to the Member States of the European Union, which the Treaty of Lisbon only confirms, in Article 5 (2) TEU. This principle is considered by the Government to be central to the definition of Union competences and fully identifies with it. It believes that the definition and classification of the powers introduced by the Treaty of Lisbon does not mean that the European Union is thereby acquiring any attributes of a federal state.
38. In relation to the exclusive powers of the Union, the Government states that this is not a newly introduced category of Union competence, since this type of competence already exists and is applied by the Community in accordance with the applicable text of the Treaty establishing the European Community, although exclusive powers are not explicitly listed in a separate provision. The existence of exclusive powers already follows clearly from Article 5 (2) of the EC Treaty, which defines the principle of subsidiarity in relation to shared powers; the definition of the concept of exclusive competence can also be found in the established case law of the European Court of Justice. The definition introduced by the Treaty of Lisbon does not in any way extend the concept of exclusive powers, according to the Government; Comprehensive areas of legal regulation already fall within the exclusive competence of the Community (such as a common commercial policy or rules for ensuring undistorted competition).
39. As regards the category of shared competences of the Union, the Government reiterates the principle of conferring powers as a general principle enshrined in Article 5 (1) TEU: "The definition of competences of the Union is governed by the principle of conferral of powers. The exercise of those powers shall be governed by the principles of subsidiarity and proportionality. '; The exercise of the Union's powers will depend on that principle, following the entry into force of the Treaty of Lisbon. In the light of the principle of conferral of powers, it is therefore necessary, according to the Government, to interpret all other provisions of the EU Treaty and of the TFEU concerning Union competences and the definition of competences between the Union and the Member States. The Government considers that the appellant's concern about the pre-difficult-to-identify sphere of Union standardisation is not justified. Of course, it is not possible to berth individual powers in such a detailed way that they always correspond precisely to the specific legal act of the Union by which they are implemented. However, it is possible, and the Treaty of Lisbon does so unequivocally, to anchor the precisely defined areas in which Union standardisation can take place. In this context, the Government also drew attention to the Protocol on the exercise of shared powers, annexed to the EU Treaty and to the TFEU, which expressly states that where the Union has adopted measures in one of the areas of shared powers, the scope of that exercise of powers shall apply only to the elements covered by the Union act in question and not to the whole area. Furthermore, on the category of shared powers, the Government pointed out once again that, in addition to the principle of entrustment, the subsidiarity principle enshrined in Article 5 (3) of the EU Treaty, which constitutes an important instrument for the balanced allocation of shared powers between the Member States and the European Union, also serves to establish the limits of the exercise of Union powers.
40. Another part of the Government's statement concerns the so-called flexibility clause under Article 352 TFEU; It is clear from the wording of this provision that it is not a blank standard, according to the Government. In order for the Union to benefit from Article 352 (1) TFEU under the Treaty of Lisbon, the conditions contained therein must be cumulatively met in relation to the proposed legislative act. The use of the flexibility clause is also subject to two declarations annexed to the Final Act of the Intergovernmental Conference preparing the Treaty of Lisbon, which are alleged to impose limits on the extensive interpretation and disproportionate use of this clause. Further limits on the extension of the flexibility clause are again the principle of subsidiarity, which acts as an abstract limit on the enlargement of Union competences, and its compliance is controlled by national parliaments (Article 352 (2) TFEU), and also the exclusion of the application of the flexibility clause in the field of the common foreign and security policy and the exclusion of harmonisation of Member States' legislation on the basis of the flexibility clause in cases where the Treaties exclude such harmonisation. This, according to the Government, precludes the use of the flexibility clause to harmonise legislation in areas where the Union has only supporting, coordinating or complementary powers.
41. With regard to the simplified procedure for amending the Treaties, the Government sees a fundamental difference in Articles 48 (6) and 48 (7) TEU. Pursuant to Article 48 (6) of the EU Treaty, the amendment of all or part of the provisions of Part Three TFEU relating to the internal policies and activities of the Union is, in addition to the unanimous decision of the European Council, subject to approval by all Member States in accordance with their respective constitutional requirements. The Government considers that from the point of view of the constitutional system of the Czech Republic such a change would be subject to the approval of Parliament under Article 10a of the Constitution, and the Government is therefore convinced that Article 48 (6) of the EU Treaty is in line with the constitutional order of the Czech Republic. In accordance with Article 48 (7) of the EU Treaty (so-called transitional clause), the voting procedure (from unanimity to a qualified majority) or legislative procedure (from a special to an ordinary legislative procedure) may be changed within the powers already transferred to Union level. The European Council shall take the relevant decisions unanimously after obtaining the consent of the European Parliament. Before such a decision can be taken, the proposal must be notified to national parliaments. If, within six months of such notification, a national Parliament has expressed its opposition, a decision shall not be taken. At the same time, however subject to the consent of the European Parliament at EU level, the control at Member State level by national parliaments remains in force, which the government considers essential.
42. According to the Government, as regards the relationship of the so-called transitional clause within the meaning of Article 48 (7) TEU to Article 10a The Constitution of the Czech Republic, it could be argued from a formal point of view that its application involves an indirect amendment to the Treaties without such amendment being the subject of ratification by the Member States in accordance with their constitutional provisions, as is the case with international treaties. However, the Government considers that, in relation to the so-called transitional clause, Article 10a The Constitution of the Czech Republic, in the framework of the transfer of powers to the European Union as a result of the ratification of the Treaty of Lisbon, gives its assent to the procedure under Article 48 (7) of the EU Treaty, which allows the European Council, with the consent of the European Parliament and under the conditions laid down, to decide on the amendment of the voting procedure in the Council or to amend the legislative procedure. Thus, the Czech Republic, acting as a sovereign Member State, gives its assent to future modifications to the exercise of delegated powers within the specified limits of Article 48 (7) TEU.
43. Thus, the application of the so-called transitional clause does not, in the view of the Government, undermine the principle of sovereign sovereignty of the States in accepting international legal obligations. The principle of the sovereignty of a Member State is reflected in the requirement for unanimity of the European Council's decisions and the right of each national Parliament to reject the proposal.
44. The Government also considered it necessary to comment on Article 83 TFEU (note: 69b), which provides for the possibility of laying down minimum rules on the definition of criminal offences and sanctions in areas of extremely serious crime with a cross-border dimension. Article 83 (1) of the Third Treaty on the Functioning of the European Union allows the Council, acting unanimously on the basis of developments in crime, after obtaining the consent of the European Parliament, to take decisions determining other areas of crime which meet the criteria laid down in Article 83 (1) of the TFEU beyond those explicitly provided for in that provision. In the view of the Government, the procedure under Article 83 (1) of the TFEU does not constitute a simplified procedure for amending the Treaty, a similar mechanism under Article 48 (7) of the EU Treaty. The Government takes the view that the Treaty of Lisbon provides for the delegation of power to the institutions of the Union to define, within the framework of the procedure laid down (unanimously adopted by the Council after obtaining the consent of the European Parliament), areas of particularly serious crime with a cross-border dimension, some of which are already laid down directly by the TFEU. According to the Government, it should be stressed that that provision does not relate directly to the transitional clause enshrined in Article 48 (7) TEU.
45. The Government also expressed its views on the question raised by the appellant as to whether the actual discharge of Article 15 (1) of the Constitution is not taking place. The Government is convinced that it does not, since the substance of the integration authorisation contained in Article 10a The Constitution of the Czech Republic is a principle of self-restraint of the institutions of the Czech Republic. When devoting powers to an international organisation or institution, the inevitable consequence is that the institution whose powers have been delegated ceases to that extent. However, it shall continue to exercise all other powers which it holds in accordance with the constitutional division of power.
46. As regards the negotiation of international agreements, the Government considered it necessary to recall that, in the first stages of the development of the European Economic Community, it was assumed that, in accordance with the theory of limited powers, the Community was only competent to conclude international agreements if they were expressly empowered to do so in the founding treaties. With time, however, it became clear that the legislative text of the founding contracts did not meet the actual needs of the Community and its Member States. It was therefore necessary to seek a way to streamline Community action in relation to third States and to achieve greater consistency between the competences that the Community has in place and those that it has in external relations with third States. The judgment of the European Court of Justice in the AETR case (judgment of the European Court of Justice in Law Case C-22 / 70 AETR, 1970, ECR 263) allowed the exceeding of the rule of express authorisation in the founding treaties; in which the European Court of Justice concluded that, if there is an internal competence of the Community to regulate the relevant legal area, it implies, in order to promote the objectives of the founding treaties, the power to act on behalf of the Community in matters falling within this sphere also in relation to third countries (theory of parallelism of internal and external powers, implied powers). The mandate of the EU to conclude an international treaty, according to the Government, may, in the current legal situation, be based on both the founding treaties and the lower legal acts of Community law which have been issued to achieve the EU's objectives as defined in the current Article 2 of the EC Treaty. The Government therefore does not consider that Article 216 et seq. The TFEU extended the existing range of legal titles on the basis of which the EU will be entitled to conclude international agreements after the entry into force of the Treaty of Lisbon, and notes that the provisions of the TFEU in question in fact only codify what was previously developed and established in the case-law of the European Court of Justice as a result of long-term developments.
47. As regards the voting procedure in the Council, the Government considers that Article 216 et seq. The TFEU only affects the negotiation of international agreements in order to meet the objectives of communised policies. The area of the so-called second pillar, i.e. the area of the common foreign and security policy, continues to retain its specific status, and the international treaties negotiated by the EU in that sphere (Article 37 TEU) will continue to be concluded unanimously after the entry into force of the Treaty of Lisbon (Article 24 (1), second (1), in conjunction with Article 31 (1), first (1), first). However, even in the field of communitarized policies, the qualified majority is not applied on a flat-rate basis without taking into account the nature of the subject matter of the negotiated contract. Article 218 (8) of the Treaty on the Functioning of the European Union lists cases where the Council of the EU decides unanimously.
48. As regards the definition of the scope of the area left by the Treaty of Lisbon for Member States to fulfil their constitutional requirements in the process of negotiating international agreements with third States, the Government states that the identification of the borders of that area does not result from the provisions of Article 216 et seq. The TFEU but from the provisions of Title 1 of the TFEU dealing with the types and areas of EU competence (see above). It is clear from these provisions that the existing concept, which distinguishes between two categories of international agreements, is in principle maintained in the field of the negotiation of so-called external agreements. The first of these are contracts concluded under the exclusive competence of the EU which are not subject to and will not be subject to national authorisation procedures even after the entry into force of the Treaty of Lisbon. This is because the power of the Czech Republic to conclude this type of international agreements has already been provided for in Article 10a The Constitution has been transferred to the institutions of the Czech Republic. The second category consists of so-called mixed contracts, which are currently concluded by the European Community with a third State with its Member States (EC and its Member States stand side by side and form a single contracting party together). This joint action, according to the Government, is inevitable because the European Community does not have the powers to negotiate or subsequently implement the Treaty in the chosen legal field and therefore urgently needs the synergies of its Member States. Member States may only provide the European Community with the required synergies once they have implemented their constitutional legislation. If such a mixed international treaty at national level in the Czech Republic was evaluated as a presidential category contract within the meaning of Article 49 of the Constitution (which is the most common case), then the Czech Republic could only agree to negotiate a treaty after the government and the two chambers of Parliament of the Czech Republic have approved this plan and then ratify it. On the basis of the procedure described and on a material legal basis, nothing can, according to the Government, change the fact that the EU will be given its own legal personality in the future.
49. The Government also stated that, in its proposal to assess the conformity of the Treaty of Lisbon with the constitutional order of the Czech Republic, the appellant raises a number of issues relating to the status and importance of the EU Charter of Fundamental Rights, as well as its relationship with the national catalogues of fundamental human rights and freedoms and the European Convention for the Protection of Human Rights and Fundamental Freedoms. From the Government's point of view, the EU Charter is, formally speaking, a separate document of a non-consensual nature. At the moment, it is said to have the character of a legally non-binding, purely political document containing a catalogue of human rights and freedoms. Thanks to the legislative reference contained in the new Article 6 (1) TEU, which states that: "The Union recognises the rights, freedoms and principles contained in the Charter of Fundamental Rights of 7 December 2000, as adopted in Strasbourg on 12 December 2007, which has the same legal power as the Treaties. ', the Charter of the EU will effectively be incorporated into the contractual acquis by the entry into force of the Treaty of Lisbon. Within its scope, while maintaining its own specific legal character in the EU law system, it will develop legal effects on the bodies of the Member States without the need to adopt its standards by a national legal act. However, the application advantage over the standards of the national law of the Member States should not, according to the Government, take place in relation to the so-called material core of the institutes of the Member States, as also stated by the Czech Constitutional Court. In addition, the above characteristics of the EU Charter shall apply only within the scope laid down in Article 6 of the Treaty of Lisbon in Article 6 (2) and (3) of the EU Treaty and the horizontal provisions in Title VII of the EU Charter itself. Article 51 (1) The EU Charter is primarily addressed to Union institutions, bodies, offices and agencies; Member States shall, on the contrary, only as long as they apply Union law.
50. According to the appellant, in a situation where the Union does not have a court to interpret its provisions in specific cases of infringement of civil rights, the role of the Charter is not clear. In particular, the Government has stated that the EU Charter will be incorporated by reference to the contractual acquis, and therefore some of its provisions, which are of the nature of subjective enforceable rights, can be directly invoked by individuals both in the courts of the Member States (if they apply EU law) and in the European Court of Justice. On the question of whether the EU Charter represents the protection of citizens' rights or rather an interpretative instrument at whose point of view the powers of the institutions are interpreted or the interpretation of the objectives pursued by the Union is deepened, the Government stated that the EU Charter is a modern catalogue and is intended to perform the two functions in parallel, namely to protect individuals and lay down limits on the exercise of the powers of the EU institutions, possibly by the authorities of the Member State when applying EU law. The Government has indicated that the EU Charter will exist in parallel with the catalogues of fundamental human rights and freedoms which are part of the constitutional law of the Member States without changing their scope in relation to purely national material. The Government believes that the application of the EU Charter will not result in a reduction of the standard of national protection for fundamental human rights and freedoms.
51. In the next part, the Government refers to the provision of Article 2 of the EU Treaty, which the appellant considers should be subject to a review of its compliance with Articles 1 (1) and 2 (1) of the Constitution. The Government does not share the appellant's views; Recalling, inter alia, that the values mentioned in Article 2 of the EU Treaty since the beginning of the 1990s, when the Czech legal order was gradually democratized, have been its immaterial substantive components.
52. In its observations, the Government noted that the possibility of suspending the rights deriving from the Treaties for a Member State cannot constitute a breach of the fundamental characteristics of the Czech Republic as a sovereign, uniform and democratic rule of law under Article 1 (1) of the Constitution, nor of the principle of the sovereignty of the people enshrined in Article 2 (1) of the Constitution, as this is a penalty against the Member State in the event of a breach of the values on which the EU is founded. These values are, as mentioned above, among the fundamental principles also protected by the Constitution of the Czech Republic. Therefore, the government does not share the appellant's concerns about interfering with the sovereignty of the Czech Republic through political pressure leading to changes in the national legal order in the event of violations of these values by the Czech Republic. If the Czech Republic respects its own Constitution, the suspension of the rights arising from its membership of the EU is not an option for the government.
53. In view of the above arguments, the Government considers that all the provisions of the Treaty of Lisbon referred to in its submissions by the appellant and the Treaty of Lisbon in their entirety are in line with the constitutional order of the Czech Republic.
54. At the oral hearing before the Constitutional Court, held on 25 November 2008, Vice-President Jiří Šneberger and Senator Luděk Sefzig spoke as plaintiffs (Senate of the Czech Republic). In principle, they reiterated the arguments already contained in the original proposal and did not submit any proposals to supplement the evidence in the case.
55. On behalf of the Chamber of Deputies of the Parliament of the Czech Republic, its President Miloslav Vlček referred in principle to the observations sent before the Constitutional Court.
56. On behalf of the Government of the Czech Republic, the Deputy Prime Minister for European Affairs Alexander Vondra essentially reiterated the views contained in the Constitutional Court's observations received and reiterated that the Government is convinced of the compliance of the Treaty of Lisbon with the constitutional order of the Czech Republic.
57. President Václav Klaus referred, in particular, to the broader context of the matter at oral hearing. If the Treaty of Lisbon enters into force, in his view, both the international position and the internal circumstances of our state will change, and the weight of the Czech Republic will be weakened when making decisions in the European Union.
58. The President then again recalled those of his questions, already in his statement to the Constitutional Court, which he considers most important: firstly, whether the Czech Republic - after the possible entry into force of the Treaty of Lisbon - would remain a sovereign, democratic and legal state, secondly, whether the Czech Republic would continue to be a full member of the international community, capable of independently and fully respecting its obligations under international law, and thirdly, whether the European Union would remain an international organisation or become a federal state, and whether our Constitution allows the Czech Republic to become a part of a state of this type.
59. The President also referred to the expression of the government and the argument contained therein based on the legal doctrine of the so-called material core of the constitution. Unlike the government, the President believes that the Treaty of Lisbon is inconsistent not only with the constitutional order as a whole, but also with the basic constitutional principles, which - precisely according to the doctrine of the material core of the Constitution - are inviolable and unchangeable (Article 9 of the Constitution). In this context, he also stated that the basis of the Constitution (and hence its hypothetical material core) is the principle of the sovereignty of the State, as the Czech Constitutional Court stated two years ago in the sugar quota case if it refused to recognise the doctrine of the European Court of Justice of the absolute advantages of Community law. According to the President, this is particularly about who the so-called "competencies" should be. The President does not consider this subject to be new; The Constitution had to be amended before it entered the European Union, but even then the so-called Euronovela had to respect Article 9 of the Constitution. It therefore enabled the institutions of the European Union to transfer "only" certain specific powers of the institutions of the Czech Republic, but did not allow them to delegate their sovereignty. It was said that in any transfer of powers, the delegated powers must be explicitly and unambiguously defined, and that there must be no possibility for the EU institutions to interpret the scope of the transfer of powers themselves or even to transfer other powers on themselves.
60. In the view of the President, the concept of shared powers under Article 4 of the consolidated text of the Treaty on the Functioning of the European Union, the adoption of measures beyond Union competence, "if necessary to achieve any of the objectives set out in the Treaties', as set out in Article 352 (1) of the Consolidated Treaty on the Functioning of the European Union (so-called authorisation clause, flexibility clause), and the simplified procedure for adopting amendments to primary law pursuant to Article 48 of the Treaty on European Union, so-called passerella. The so-called doctrine of implicit external powers formulated by the European Court of Justice in 2006, which allows international treaties to be negotiated beyond EU competence, is also particularly questionable. The Treaty of Lisbon, according to the President, is thus launching a process at the end of which the European Union will be the sovereign of regulations or other unilateral means of laying down standards and rules for both individual Member States and citizens of these states. Moreover, this fundamental restriction of the sovereignty of the Czech Republic and other Member States of the European Union is not clearly and openly formulated in the text of the Treaty of Lisbon and is not explicitly referred to as the intention and objective of the arrangement to be brought about by this Treaty.
61. Another important element of the so-called material core of the Constitution is, according to the President, the principle of the sovereignty of the people. It is therefore appropriate to ask who is the source of legal and political power in the European Union. The people, in the President's view, are not at all, because there is no 'European people'. Power in the EU is derived from institutions created under intergovernmental agreements or treaties. If the Treaty of Lisbon came into force, it would be possible, through 'from above', from Europe, to enforce effectively what no national parliament would ever approve. This would deepen the possibility of bypassing national legislators, which would significantly weaken democracy in Member States, including the Czech Republic. The Lisbon Treaty is therefore, in the President's view, also contrary to the constitutional principle of the sovereignty of the Czech people.
62. Furthermore, the President of the Republic criticised the lack of clarity and ambiguity of the provisions of the Treaty of Lisbon. These provisions will be interpreted and implemented by the institutions of the European Union, known as the tendency to interpret the Union's competences as widely as possible. This is contrary to Article 1 of the Constitution, since the Czech Republic is a state and a legal one, the essence of which is that the rules are given and known in advance.
63. In the next part of his speech, the President criticised the Government's view that, if adopted, the Treaty of Lisbon would de facto amend the Constitution indirectly, because it would automatically become part of it. This approach is considered erroneous by the President because Article 112 of the Constitution sets out only the Constitution of the Czech Republic, the Charter of Fundamental Rights and the Constitutional Law as part of the constitutional order and does not mention any international treaties; does not even mention the contracts referred to in Article 10a of the Constitution. All of this is said to mean that, even if, according to Article 10, all of Parliament's approved international treaties take precedence over the law, they do not achieve the power of constitutional laws, or they do not create the Constitution, and therefore cannot be part of it.
64. For all these reasons, the President of the Republic considers the Treaty of Lisbon to be inconsistent with the Czech constitutional order.
Basic data
65. The Treaty of Lisbon (LS) amending the Treaty on European Union (EU) and the Treaty establishing the European Community (EC) were submitted by the Government of the Parliament of the Czech Republic with a request to consent to its ratification on 25 January 2008. The Government itself agreed to the LS meeting on 4 December 2007. The Treaty of Lisbon was signed in Lisbon on 13 December 2007. It was signed by Prime Minister Mirek Topolánek and Minister of Foreign Affairs Karel Schwarzenberg for the Czech Republic.
66. According to point IV of the Government's submission report, this is a contract pursuant to Article 10a (1) of the Constitution of the Czech Republic, as amended, since it gives the EU some new powers and in some cases it moves from unanimity to qualified majority voting. At the same time, this is a treaty of the so-called "presidential" category which requires ratification by the President of the Republic.
67. Article 10a (2) The Constitution requires the consent of Parliament to ratify such an international treaty (or alternatively, in the event of a constitutional law, a referendum). Pursuant to Article 39 (4) of the Constitution, the consent to ratify the international treaty referred to in Article 10a (1) requires the consent of a majority of three fifths of all Members and a majority of three fifths of the Senators present.
68. In that case, pursuant to Article 87 (2) of the Constitution, the power of the Constitutional Court to decide on the compliance of the LS with the constitutional order is established. The legal conditions of this procedure within the meaning of the provisions of § 71a et seq. of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, are also fulfilled.
69. The Treaty of Lisbon is published in the Official Journal of the EU, C 306 series, Czech edition "Information and Notice," Volume 50, 17.12.2007. The Charter of Fundamental Rights of the EU, published by the European Parliament, the Council and the Commission, is published in the Official Journal of the EU, C 303 series, "Information and notifications of EU institutions and bodies', 14 December 2007.
70. Before the Constitutional Court accepted the content of the review of the Treaty of Lisbon in terms of its compliance with the constitutional order of the Czech Republic, it had to answer several fundamental questions relating to the nature of the procedure and the criteria of the review itself.
71. At first, it was a question of the extent to which the Constitutional Court is bound by the Senate's proposal (to the extent of the specific articles the Senate has justified) or whether it is entitled or even obliged to review the Treaty of Lisbon in its entirety, including in relation to the other articles, regardless of the scope and justification of the proposal. It was also a question of whether the Constitutional Court should examine only those provisions of the Treaty of Lisbon, which are normally new in terms of its content, namely whether it should carry out such a review without a substantial distinction between the provisions of the Treaty of Lisbon and the new ones. Finally, in this context, the reference aspect of the review by the Constitutional Court itself needs to be simply expressed in terms of whether it is constitutional order as a whole or merely the so-called material focus of the Constitution.
72. Thus, in the first stage, the Constitutional Court focused on considering the procedural question of the scope of the review, which, at least theoretically, was possible (according to the appellant and some observations) either on the whole of the Treaty of Lisbon or merely on the draft contested provisions of this Treaty. The proposal is designed to call in general for a review of the whole contract, but it specifically argues only against some of its provisions, as is apparent from the above-mentioned passage.
73. The Constitutional Court first of all states that it does not intend to distinguish in this case whether the proceedings are questionable or undisputed in the classical concept of civil. This is a very specific procedure for reviewing the constitutionality of the international treaty, which the Constitutional Court has adopted in the manner set out in the following text.
74. The Constitutional Court has reached a conclusion here (based, by analogy, on its constant case-law in the field of review of legislation), which focuses solely on the proposal of the qualified and justified provisions of the international agreement in question. The procedure for reviewing the constitutionality of laws within the meaning of Article 64 (1) of the Constitutional Court Act is similar; There, for example, the Constitutional Court stated that, even if, when assessing the constitutionality of the law, it is bound only by the petition and not by its justification, it does not conclude that the appellant, in the procedure for the control of standards, argues that the content of the law does not conflict with the constitutional order, does not burden the burden of the claim. If the appellant is opposed to the fact that the law does not comply with the constitutional order, for the purposes of the constitutional review, it is not sufficient only to denounce the proposed law, or its individual provisions, but also to state the reason for the unconstitutional plea. The Constitutional Court is not bound by this ground in the context of the review; is bound only by a petition, but not by the scope of the review, by the grounds contained in the proposal for a review of the standards (cf. sp. zn. Pl. ÚS 7 / 03, Collection of finds and orders of the Constitutional Court, Volume 34, Found No. 113, p. 180-181, published under No. 512 / 2004 Coll.). The provision of Article 71e of the Law on the Constitutional Court, which refers to the international treaty at all and not just to its individual provisions, is therefore not insurmountable in relation to the burden of the claim (the appellant) - and in view of the above arguments contained in the cited finding - but must be interpreted in this manner.
75. The Constitutional Court is bound by the scope of the application for the initiation of proceedings, which is understood in the above-mentioned concept, namely by the entitled appellant defined by the specific provisions contested, and is not entitled to step outside it. Thus, an actively legitimate body is burdensome in that procedure, which is initiated at its initiative (that is to say, facultative), the burden of the claim which it is obliged to fulfil. It can be added that the attempt to complete the constitutional review, nota bene with the consequences of the obstacles to rei iudicatae, in particular in the case of large normative texts, prevents the argument of noethical (noethically impossible); The normative argument is then based on the fact that both the constitutional and legal regulations design the Constitutional Court into a court and not a "interpretative place." The Constitutional Court of the Czech Republic is a judicial body for the protection of constitutionality, it is a decision-making body, and it is not an institution providing any opinions or advice. Moreover, this concept is confirmed by the exclusion of the Government from the scope of the legitimate review applicants. The review can only be activated when the international treaty is submitted for Parliament's approval and it can therefore be assumed that there will be opposition views on its constitutionality during this period. In the meantime, when negotiating an international treaty, the government must be guided by its own judgment and, where appropriate, by itself, in negotiations with other Contracting Parties, to correct its specific provisions.
76. Another argument in favour of this view is the overall concept of a preliminary review of the constitutionality of international treaties under Section 71a et seq. of the Constitutional Court Act. The sequence of individual applicants, as provided for in Article 71a (1), is guided by the idea of allowing each of them to express their doubts about the constitutionality of the international treaty under discussion in a proper manner. If the Constitutional Court were to decide on the conformity of the Treaty of Lisbon, that is to say as a whole (in relation to all its individual provisions, as the Senate suggests, but also the President of the Republic and the Government in its observations), it would in essence prevent the application for review of a group of Members or Senators who have a separate legitimacy to submit a proposal under Article 71a (1) (b) of the Act cited. While, in the case of the Government or the President, this restriction may, to some extent, be remedied in the context of their participation in the current proceedings (which is guaranteed by Section 71c of the Constitutional Court Act), a group of Members or senators does not have such an option. The examination of legislation or international treaties in their completeness, on a flat-rate basis, without the specific effects of their application or legal arguments for which the specifically defined and identified provisions of those rules should be unconstitutional, therefore cannot be accepted by the Constitutional courts.
77. The Constitutional Court therefore concludes that the review carried out by it focuses on those provisions of the Treaty of Lisbon whose compliance with the Constitution has been explicitly challenged by the appellant and put forward the arguments contained in his proposal.
78. It can therefore be concluded that a possible new proposal to review this identical Treaty of Lisbon would appear to be blocked by the rei iudicatae barrier in relation to the contested provisions today. However, this must only be assessed by the Constitutional Court if a new proposal is actually made; The question rei iudicatae can be interpreted strictly for such a case. However, if a proposal for a review of a new (other) contract document (albeit in whole or in part identical to the Treaty of Lisbon) is made, it will no longer be about the identity of the matter but about the identity of the problem. However, the content of the same provisions of such a new contract document may be found in a new text in other functional links and so on. The examination of such a situation, in particular in view of the possible impediment to rei iudicatae - taking into account the findings of the Constitutional Court adopted in this proceedings now - will be a matter for the Constitutional Court in the future if a proposal to review the constitutionality of a new (other) contract document is actually made.
79. Another question that the Constitutional Court had to resolve provisionally was the heading of the provisions of the Treaty of Lisbon, which should be reviewed in the light of the already ratified and fully applicable Treaty of Accession of the Czech Republic to the European Union, Communication No 44 / 2004 Coll. (Accession Treaty). This is the scope of the review in terms of whether the Constitutional Court only decides on those in the draft contested provisions of the Treaty of Lisbon, which can be considered in case of a normative new one, or on all the contested and contested provisions.
80. Pursuant to Article 87 (2) of the Constitution (as amended), the Constitutional Court (hereinafter referred to as the Constitutional Court) shall decide on the conformity of the international treaty under Articles 10a and 49 with the constitutional order before its ratification. Pending the decision of the Constitutional Court, the Treaty cannot be ratified. Unlike the (proposal) Treaty establishing a Constitution for Europe, the Treaty of Lisbon is not a new separate treaty to replace the existing complex of founding treaties, but is only an amendment to existing treaties (the Treaty on European Union and the Treaty establishing the European Communities, which it renounces to the Treaty on the Functioning of the European Union), as has been done by other earlier amendments to the founding treaties.
81. Under the Treaty of Lisbon, although very problematic and inconsistent, the following provisions can be distinguished from the above-defined point of view:
(a) provisions which are taken from the interpretation of existing contracts by the European Court of Justice;
(b) provisions which are taken over from existing contracts but which have undergone a partial modification (whether in the direction of extending Union competences or limiting Union competences);
(c) the derogatory provisions which abolish existing contractual provisions;
(d) provisions which are entirely new and have no equivalent in existing contracts.
82. Normatically new are certainly provisions of type (b), (c) and (d). For provisions of type (a) this is questionable. Although the interpretative consequences of existing contracts are implicit in existing contracts, it can be concluded that the explicit incorporation of a provision "only" in case-law may change in certain circumstances. Indeed, the Senate's proposal does not make a strict dividing line between the normatically new and old provisions of the Treaty of Lisbon, but its reservations are all directed against those which can be classified as normative new.
83. As has already been stated above, the identification of apparently new provisions alone can hardly be entirely clear. In addition, it can be concluded from the constitutional principle of predictability, clarity and certainty of law that, even if doubts arise, it is necessary to consider that, in a particular case, it is a normative new provision and to review it. Nor does it change the fact that certain amended provisions are sometimes merely interpretative consequences of the current legal situation, according to the case law of the Court of Justice.
84. In the view of the Constitutional Court, even by ratifying the Treaty of Accession, the normative position of constitutional order in the system of law operating in the Czech territory is not completely emptied. The Constitutional Court has previously stated that, exceptionally, the international treaty's non-compliance with the constitutional order or the human rights treaties can be inferred through decisions on both the constitutional complaint and the ex post. It did so in particular in the decision of the Constitutional Court, p. II. This finding rejected the individual application of the Treaty between the Czech Republic and the Slovak Republic on social security, which would have unconstitutional effects, given the exceptional hardness that its application would have caused in the present case. It states that the Constitutional Court is obliged to comply with Article 88 (2) of the Constitution, according to which the judges of the Constitutional Court are bound only by the constitutional order and the Constitutional Court Act when making their decisions. The Constitutional Court concluded that the Treaty between the Czech Republic and the Slovak Republic on social security was not a treaty that could be considered as part of a constitutional order and the Constitutional Court could therefore not accept as a constitutionally conformal one of its provisions which would result in a situation which does not comply with the Charter of Fundamental Rights and Freedoms or the Constitution as part of a constitutional order. The Constitutional Court is naturally aware that the quoted Treaty between the Czech Republic and the Slovak Republic is not a contract under Article 10a The Constitution, however, indicates that the above conclusion is applicable to international agreements at all. (Note: A similar conclusion, i.e. that the non-compliance of the international treaty with the constitutional order can also be established ex post - through a constitutional complaint - also shares part of the professional literature; cf. Acid, Kühn, Legal perspectives 10, 2002, No 7, p. 301-312.)
85. On the other hand, it is certain that, after ratification of any international treaty, the Constitutional Court is obliged to maintain considerable restraint and to apply (in the case of European treaties) the principle of Euroconformical interpretation regularly. However, this principle cannot be the nature of a "implicit Euronovella" Constitution. In the event of a clear conflict between the domestic constitution and European law, which cannot be healed by any reasonable interpretation, the constitutional order of the Czech Republic, in particular its material focus, must prevail.
86. The Constitutional Court is a judicial body for the protection of constitutionality, the supreme interpreter of constitutional law of the Czech Republic and not primary European law; It is not his job and is not the purpose of the procedure for the compliance of international treaties with the constitutional order to separate today's allegedly new and earlier old provisions of previous agreements, since such an autolimiting procedure cannot be found or clearly identified.
87. The Constitutional Court therefore included in its review all the provisions of the Treaty of Lisbon, whose compliance with the Constitution is called into question by the appellant in a qualified manner, since (in the context of previous considerations) it considers them to be normative, even though it can be accepted that they can, but only in some of their aspects, only replicate existing European law standards.
88. The question, which largely relates to the issue of possible distinction between the new and old provisions of the Treaty of Lisbon, is the determination of the relevant reference point for the review of the conformity of the Treaty of Lisbon with the Constitution of the Czech Republic. In the present case, the Constitutional Court used the constitutional order of the Czech Republic as a whole as a reference point, not just its so-called material outbreak (see, however, below).
89. The Constitutional Court therefore preferred a comprehensive review. The basic measure was the whole constitutional order, even though the material focus of the Constitution - the essential elements of a democratic rule of law, whose change is unacceptable - played a crucial and crucial role within it.
90. The accession of the Czech Republic to a supranational organisation of the European Union has led to a significant revision of the constitutional regulations (cf. the so-called Euronovel of the Constitution of the Czech Republic - Constitutional Act No. 395 / 2001 Coll., amending the constitutional law of the Czech National Council No. 1 / 1993 Coll., the Constitution of the Czech Republic, as amended), and a fundamental change of the Czech legal order has been made. However, European Union law, which has since been applied as an autonomous legal order in addition to the law of the Czech Republic on the basis of Article 10a of the Constitution, establishes (its) priority application only on the existence of valid and effective standards and is not yet the provisions of the Treaty of Lisbon. The absence of a prior review of the Accession Treaty by the Constitutional Court cannot in itself give rise to a presumption of its constitutionality (cf. Chapter IX above). If it were accepted that the acceptance of the ratification of an international treaty under Article 10a by the same majority as required for the adoption of a constitutional law would reduce the current review only to the area of the so-called material outbreak of the Constitution and otherwise exclude it, that would mean that the Institute of Preliminary Control of the Constitution would largely lose its meaning. However, the Constitution does not make any distinction in this respect between the "ordinary 'international treaties referred to in Article 49 and the international treaties referred to in Article 10a and provides for the same procedure for both of them to be reviewed by the Constitutional Court. Nor can the dominant role played by the executive in the negotiation of an international treaty under Article 10a be overlooked here, unlike the process of adopting constitutional laws, which Parliament and its individual members can actively participate in and effectively influence the final form of the adopted standard. Although, of course, individual provisions of the international treaty submitted for the approval of the Parliament of the Czech Republic can be led by the debate, Parliament only has the opportunity to give its consent as a whole or reject it. It also differs from the process of adopting a constitutional law, where a democratically legitimate constituency can directly influence its final form. Review by the Constitutional Court and, where appropriate, the finding of conflict between the constitutional order and the international treaty pursuant to Article 10a The Constitution then leads to the need to express which provision of constitutional order is contrary to the international treaty; here the legislators then open up the scope for active participation in the creation of legal standards of fundamental importance for the whole legal order of the Czech Republic.
91. As has already been said, the Constitutional Court, as a judicial body for the protection of constitutionality, is the highest body interpreting the constitutional regulations of the Czech Republic. That holistic approach to the assessment of the question must be the reference point for the review of the Treaty of Lisbon, also corresponds to the literal wording of Article 87 (2) of the Constitution, according to which the Constitutional Court decides on the compliance of the international treaty under Articles 10a and 49 with the constitutional order prior to its ratification, as well as the successive passages of the Constitutional Court Act, which also refers to the constitutional order as a whole and not only its - however significant - part. The text of the so-called Euronovella of the Constitution (Constitutional Act No 395 / 2001 Coll.) also testifies to this; Article 89 (3) provides that the decision of the Constitutional Court which, pursuant to Article 87 (2), has been declared incompatible with the constitutional order of the international treaty prevents ratification of the Treaty until the non-compliance has been remedied. Such a discrepancy may in principle be removed for multilateral agreements by amending the Constitution, which is, however, excluded from the material focus of the Constitution. Thus, the Constitution itself provides for the full constitutional order as a reference criterion for the review of the constitutionality of international treaties. The Constitutional Court Judge is then specifically bound only by the constitutional order, the Constitutional Court Act and in particular by the obligation to protect the inviolability of the natural rights of a person and of a citizen (Article 88 (2) in conjunction with Article 85 (2) of the Constitution).
92. Another essential argument for this solution is the generally accepted principle of interpretation of constitutional law, usually referred to as the principle of unity of constitutional order or constitutional order. It means that all provisions of the constitutional order must always be taken into account and interpreted in a reciprocal context, not taken out of the context of the entire constitution; This is all the more so because, in general and in many cases briefly drafted constitutional texts are significantly linked and rely on each other as individual building elements of a whole that creates new quality, sometimes different from its individual components. In any case, the limit shall be the prohibition of abuse of interpretation which would result in the removal or threat to the foundations of a democratic rule of law, as provided for in Article 9 (3) of the Constitution. It is the duty of all the bodies interpreting the legal order of the Czech Republic to use such interpretation, which is based on material, constitutionally established values which are essentially inviolable and unchangeable. The usual method, which then helps bridge possible contentious places, is the principle of constitutionally conformal interpretation, according to which if the text under examination allows more interpretations, one that is most consistent with the constitution or constitutional order as a whole must be used.
93. As the Constitutional Court has already stated above, in the context of the applied reference point, which is the constitutional order of the Czech Republic, these are equally important elements of the democratic rule of law - the amendment of which is inadmissible within the meaning of Article 9 (2) of the Constitution - which constitute a central criterion. In specific cases, the detailed content of these essential elements of the democratic rule of law, which are usually general principles, is precisely the result of interpretation of the institutions applying the Constitution. The Constitutional Court of the Czech Republic has already stated in its first historical finding that our Constitution is not based on value neutrality, it is not simply a definition of institutions and processes (the finding of the Pr. Collection of finds and orders of the Constitutional Court, Volume 1, Found No 1, published under No 14 / 1994 Coll.); by applying to the modern concept of a rule of law, which is understood not as a formal rule of law but as a material state. The guiding principle is undoubtedly the principle of inalienable, inalienable, unbiased and irrevocable fundamental rights and freedoms of individuals, equal in dignity and rights; a system based on the principles of democracy, the sovereignty of the people, the division of power, respecting in particular the stated material concept of the rule of law, is built to protect them. These principles are not relevant or formally implemented in accordance with the amendment of the Constitution, because many of them are obviously of natural origin, and the State is therefore not their provider, but can and must - as a constitutional state - only guarantee and protect them. Although the Constitutional Court has already stated, many times - after its first finding in this regard - the need to protect the principles of the so-called material outbreak of the Constitution by an increased degree, their specific list is not mentioned in any constitutional provision or in the Constitutional Court's findings. However, even in such proceedings, the Constitutional Court is not required to create an ambition similar to that of an account judge or catalogue; However, such an attempt would probably be appropriate if the Constitutional Court had chosen only this material focus as a benchmark for its review, because there is not a limited problem, but a comprehensive set of amended EU primary law, and it would therefore have to be more precisely identified with what it is specifically measured with and what (with which remaining parts of constitutional order) it is no longer. For the reasons set out above, the Constitutional Court has therefore taken into account the whole system of the Czech constitutional order, although above all its inviolable material focus, namely those articles or components which may relate to the appellant's contested provisions of the Treaty of Lisbon.
94. The following can be added.
The Constitutional Court on the matter concerning sugar quotas (CCE 50 / 04 of 8 March 2006, Collection of finds and orders of the Constitutional Court, Volume 40, Found No 50, Declared under No 154 / 2006 Coll.) has stated that the conferral of part of the powers of the Czech Republic to the EC institutions is conditional and may continue if these powers are exercised in a manner compatible with the preservation of the foundations of the state sovereignty of the Czech Republic and in a manner which does not jeopardise the very essence of the material rule of law; However, it should be pointed out that, in that case (i.e. in the case of sugar quotas), the Constitutional Court has assessed issues falling under so-called secondary EU law. As regards secondary Community law, the finding was based on the presumption of the compatibility of this Community law and, in particular, the case law of the European Court of Justice with the relevant provisions of the Czech constitutional order, in particular with guaranteed fundamental rights and freedoms. Therefore, any control should be limited to compliance with Articles 1 (1) and 9 (2) of the Constitution. However, as pointed out above, a comprehensive set of amended EU primary law is being assessed in the case under consideration - not to mention another type of procedure, too. This is another argument as to why it is appropriate to use the whole of the constitutional order as a reference criterion.
(Constitutional Court in the case of the "Euro arrest warrant '- sp. zn. At the same time, however, it implicitly admits the possible non-compliance to remove not only the preferential application of European law standards, but also through constitutional changes. It is appropriate to add that, however, in order to recognise the Constitution, the Constitutional Court needs to be able to review the provisions of European law in terms of their consistency with the constitutional order as a whole, not just with its material focus. In the context of such a review, it may define those provisions of constitutional order which cannot be interpreted using the domestic interpretation methodology in accordance with the requirements of European law and which would need to be adapted. The preliminary review gives him the right opportunity to do so, as it does not create problems at the application level. In addition, the Constitutional Court is given the opportunity to assess to some extent the constitutionality of the interpretation of existing EU law by the Court of Justice, without having a direct conflict with it.
It can also be added that neither the Senate, either as the draftsman nor as the President of the Republic, expressly refers to the reference point for the review of the Treaty of Lisbon. However, in its submission, the Senate also argues by the provisions of the Constitution, which could not possibly be regarded as its hard core.)
Content review - general section (basis points)
95. The Constitutional Court - even if it does not intend to resign from the examination of the Senate's contested articles of the Treaty of Lisbon (LS) from the point of view of the constitutional order as a whole (cf. Article 87 (2) of the Constitution, as amended), has focused in particular on Articles 10a (1), 1 (1) and 9 (2) and (3) of the Constitution.
96. Article 10a (1) provides that certain powers of the authorities of the Czech Republic may be delegated to an international organisation or institution by an international treaty. Article 1 (1) provides that the Czech Republic is a sovereign, uniform and democratic rule of law based on respect for the rights and freedoms of man and citizen. Article 9 (2) provides that the amendment of the essential elements of the democratic rule of law is inadmissible. Article 9 (3) provides that the interpretation of legal standards cannot justify the removal or threat to the foundations of a democratic state.
97. The Constitution implies that the international treaty can be passed on to international organisations not to the powers of all, but only to some. That Article is to be interpreted in particular in the context of Articles 1 (1) and 9 (2) of the Constitution cited. The delegation of powers of the authorities of the Czech Republic cannot therefore go so far as to undermine the very nature of the Republic as a sovereign and democratic rule of law based on respect for the rights and freedoms of man and citizen and to establish a change in the essential essentials of a democratic rule of law.
98. In this context, the Constitutional Court should at least briefly comment on the concept of a "sovereign state ', although naturally it does not have the ambition to interpret that concept in this finding in the form of a comprehensive analysis (it would not be possible; it is a term not indisputable and, in an abstract manner, hardly definable). State sovereignty is traditionally understood as the highest and exclusive power in state territory and state independence in international relations. Thus, no standard of international law can arise without the will of the states themselves, acting on the principle of sovereign equality. The standards to which the States have contributed in this way are then required to comply with the pacta sunt servanda principle and to fulfil them in good faith, thereby protecting the legal certainty of other entities.
99. For centuries, states have been recognised as actors in the international legal system, while individuals have not until recently had direct access to this area, apart from the possibility of obtaining their rights through the state to which they belonged. In classical theory, states are bodies of "international" (international) law that create for themselves and their needs, whether by adopting custom or by specific agreements, which find expression most often in international treaties. So, traditionally, countries have and still have an exclusive role in creating a modern international legal system.
100. In addition to the possibility of monitoring certain features that are generally accepted as constituent elements of the state ("original government-equipped territorial corporation" according to Jellinek, J.: General State. The cost of Jan Laichter, Prague, 1906, p. 187) and whose assessment indicates whether the state is here or not, it is also possible to see the freedom to self-restrict the legal order or freely accepted international obligations at the same time (Jellinek, J. op. cit. p. 524). It can therefore be concluded that the possibility of creating such a free will of the State to re-regulate a certain competence is not a manifestation of a sovereign's inadequacy, but of its full sovereignty.
101. International cooperation and coordination of national policies have become a necessary requirement to manage the globalisation of the world. For the first time in history, national security, which has always been at the heart of statehood, can only be effectively provided by a common process of sovereign states, by unifying resources, technologies, communication and information flows, power and authority. In a globalised world, the centres of power are regrouped, even depending on factors other than the power and will of individual sovereign states. This is a spontaneous, uncontrolled process of increasingly intensive integration of the countries of the world in a single economic system. This process, with the contribution of key communication technologies for mass media, Internet and television, subsequently affects the related relations outside and within the individual states in the areas of political, cultural, social psychology and others, including the areas of law.
102. The integration character, in this respect and in the case of the European Union, can ultimately bring about the protection and strengthening of Member States' sovereignty against external factors, in particular geopolitical and economic factors; This, for example, also in relation to emerging world powers, where it is difficult to estimate future value priorities that they will be willing to subordinate to building a new order of globalised world.
103. At the heart of European civilization, there are values common to all advanced world cultures. These are values that are human freedom and human dignity, which form the basis of the self-determination of a human being. Functional forms of social coexistence are based on conscious self-restraint and acceptance of order. The same principles also lead to higher forms of effective human organisation, whether it be a community, a state or forms of integration of states. This practical need has also produced the principle of subsidiarity, which can be balanced and functional only as long as the organisational stages between which the transfer of competence takes place feel the general benefit of this step.
104. The European Union has progressed by far the most in the concept of shared - "alloy" - sovereignty (pooled sureeignty) and is already creating the sui generis entity, which is difficult to accept in classic state categories. Rather, it is a question of language whether the integration process can be described as a "loss" of a part of sovereignty, virtually competence, or, for example, more closely as a "loan, assignment" of a part of the sovereignty's competences. It may seem paradoxical that a key manifestation of state sovereignty is the possibility of continuing to dispose of its sovereignty (part of it), or to advance some competence temporarily or permanently.
105. It is no longer possible to view the global scene as a world of isolated states. In general, it is considered that the state and its sovereignty are undergoing a transformation and that no state is as united a separate organization as the classical theories in the past assumed. On a global scale, there is an international political system that lacks institutionalised rules of self-governance, such as the international system of sovereign states so far. It is a fundamental interest in integrating European civilisation to act as a significant and respected force in global competition. These processes clearly demonstrate that even sovereign legitimate state power must necessarily monitor and try to approach, understand, and gradually subject to this spontaneous process of globalization lacking in hierarchical arrangements of the order of democratic legitimacy (Woodward, R. An, ace'not a, nation: the globalisation of world politics. In Michi, J. (ed.) The Handbook of globalization. Edward Elgar Publishing Limited, Cheltenham, UK, 2003, pp. 311-316).
106. However, it is important to point out the possibility for a Member State to withdraw from the European Union in accordance with the procedure laid down in Article 50 TEU; The explicit articulation of this possibility in the Treaty of Lisbon is an undeniable confirmation of the State are the Masters of the Treaty and of the continued sovereignty of the Member States.
107. Thus, from a modern constitutional point of view, sovereignty (sovereignty) does not have to mean "the independence of state power from any other power, both externally (in the field of international relations) and in internal affairs" (Dušan Hendrych et al., Law dictionary, C. H. Beck, 2nd edition 2003, p. 1007). This is no longer (probably) understood by sovereignty in any traditional democratic country, and the stricto sensus would not meet the features of sovereignty by any state, including the US. For example, David P. Calleo points out that if we understand sovereignty in its traditional concept, any international commitment relieves the state of part of its sovereignty. In practice, therefore, sovereignty should not only be taken as a rigid legal concept, but "also as a concept with a practical, moral and existential dimension. In practice, national sovereignty is always limited by objective conditions, including the reactions of neighbouring states. Under these conditions, national sovereignty means above all a legitimate government which has the formal power to choose between the options involved and not to follow the one directly dictated by a foreign power. In other words, for a national state, as well as for individuals within society, practical freedom means being an actor and not being an object. For a state that is in a tight interdependent system, practical sovereignty is to be seen as a player to whom neighbouring states listen, to whom they are actively dealing, and whose national interests are taken into account." (David P. Calleo, Rethinking Europe's Future, Princeton / Oxford, p. 141, 2001).
108. Therefore, it can be concluded from the foregoing considerations that the transfer of certain powers of the State, which arises out of the free will of the sovereign and will continue to be exercised with its participation in a pre-agreed, controlled manner, is not a conceptual weakening of sovereignty, but may, on the contrary, mean strengthening it in the joint approach of the integrated whole. The EU's integration process is not in a radical way that would generally mean "loss" of national sovereignty, but is an evolutionary process, and - among other things - a response to the advancing globalization in the world.
109. The Constitutional Court also states that, as far as the Czech Constitution is concerned, a simple language interpretation of Article 10a (1) of the Constitution can be chosen, which allows the delegation of only "certain powers of the institutions of the Czech Republic." It follows that the Constitution, interpreted as a whole, is consistent with the relationship between Article 10a and Article 1 (1): Article 10a cannot clearly be used for the unlimited transmission of sovereignty; In other words, on the basis of Article 10a, it is not possible, as has already been stated, to delegate powers the transfer of which would affect Article 1 (1) of the Constitution in the sense that it would no longer be possible to refer to the Czech Republic as a sovereign state. Article 1 (1) of the Constitution and Article 10a The Constitution therefore clearly shows that there are also certain limits on the transfer of sovereignty, the failure of which would already affect both Articles 1 (1) and 10a of the Constitution. These limits should be left primarily to the legislator's specifications, because it is and priori a political issue that gives legislators great discretion; the intervention of the Constitutional Court should be considered as an ultima ratio, in a situation where the degree of discretion has been clearly exceeded and the provisions of Article 1 (1) of the Constitution have been affected as powers have been transferred beyond the scope of Article 10a of the Constitution. A similar approach was taken by the Polish Constitutional Tribunal in its decision on the constitutionality of Poland's accession to the EU of 11 May 2005 (see Case C 18 / 04 OTK ZU (2005) ser. A, nr. 5, pol. 49).
110. As is apparent from the previous text, the reference aspect of the admissibility of the delegation of powers from the Czech Republic to an international organisation is in particular respect for the material outbreak of the Constitution pursuant to Article 9 (2) thereof. In particular, it concerns the protection of fundamental human rights and freedoms, as enshrined in the Charter of Fundamental Rights and Freedoms, in the (European) Convention for the Protection of Human Rights and Fundamental Freedoms, in other international treaties in this field and in the established case law of the Constitutional Court of the Czech Republic and the European Court of Human Rights. In this context, it can already be stated that, in particular, the application of the Treaty of Lisbon or the Charter of Fundamental Rights of the European Union will be significant in specific cases which may be challenged by the Constitutional Court of the Czech Republic through individual constitutional complaints relating to possible (exceptional) excesses of Union institutions and Union law in fundamental rights and freedoms. That's what we're talking about in another place.
111. The Constitutional Court ranks among the important bases of the Lisbon Treaty's content review as well as the fundamental case law of the Constitutional Court and, as an inspiration, some important decisions of other constitutional courts. However, the Constitutional Court does not see this caselaw as a dogma; As already mentioned, the Constitutional Court considers (and wants to consider in future the review of possible constitutional complaints) a reference point of view, in particular, of the material (hard) core of the Constitution, but this cannot completely exclude the possibility of taking into account the constitutional order as a whole.
112. In the case-law of the Constitutional Court, a decision on the finding of sp. zn.
113. In the case of "sugar quotas' (Pl. ÚS 50 / 04 of 8.3.2006) The Constitutional Court, inter alia, expressed the following arguments:
- The accession of the Czech Republic to the EU has led to the transfer of powers of national authorities to transnational bodies under Article 10a of the Constitution of the Czech Republic. The moment when the EC Treaty was binding on the Czech Republic, as amended by its revisions and as amended by the Accession Treaty, the national authorities which, under the primary EC law, have exercised EC law, were transferred to those authorities.
- The Czech Republic has given these powers to the EC institutions. This conferral of part of the powers is conditional; may continue as long as these powers are exercised by the EC institutions in a manner compatible with the preservation of the foundations of the national sovereignty of the Czech Republic and in a way that does not jeopardise the very essence of the material rule of law. (Note: However, this thesis does not preclude, as stated at another point / cf. point 94 /, the assessment of the LS with regard to constitutional order as a whole.)
- The immediate applicability in national law and the priority application of the regulation (note: it was a specific regulation in the case under review) stems from the own dogmatics of Community law, as it was previously submitted in the ECJ case-law. If membership of the EC entails a certain limitation of the powers of the national authorities for the benefit of the Community institutions, it must necessarily be one of the manifestations of such a limitation and of the freedom of Member States to determine the national effects of Community law. In fact, Article 10a of the Constitution of the Czech Republic is a two-way street: it forms the normative basis for the transfer of powers and, at the same time, it is a provision of the Constitution of the Czech Republic which opens up national legal order for the application of Community law, including rules concerning its effects within the legal order. (However, it cannot be seen - cf. paragraph 94 - that there is a difference in the fact that the Constitutional Court has reviewed secondary Community law while the Treaty of Lisbon is a primary law.)
114. In the case of "Euro arrest warrants' (Pl. ÚS 66 / 04 of 3.5.2006) The Constitutional Court, inter alia, expressed the following arguments:
- Article 1 (2) of the Constitution of the Czech Republic, in conjunction with the principle of cooperation laid down in Article 10 of the EC Treaty, shows the constitutional principle that domestic legislation, including the Constitution, is to be interpreted in line with the principles of European integration and cooperation between Community and national authorities. Therefore, if there are several interpretations of the constitutional order, which are part of the Charter of Fundamental Rights and Freedoms, and only some of them lead to a commitment that the Czech Republic has assumed in connection with its membership in the EU, an interpretation that supports the implementation of this commitment and not an interpretation that makes it impossible.
- The constitutional principle of the interpretation of domestic law in line with the obligations of the Czech Republic arising from its membership of the European Union is limited by the possible importance of the constitutional text. Article 1 (2) The Constitution is therefore not capable of altering the meaning of any other explicit constitutional provision. If the domestic methodology of the interpretation of constitutional law does not allow the relevant standard to be interpreted in accordance with European law, it is only up to the legislators to change the Constitution. However, that power may be exercised by the legislature only on condition that the essential requirements of the democratic rule of law (Article 9 (2) of the Constitution) are maintained, which are not available to the legislator, and therefore the power to amend those requirements cannot be transferred by the contract provided for in Article 10a of the Constitution (cf. Holländer, P. The material focus of the Constitution and the discrepancy of the Constitution, Lawyer 5 / 2005).
- It follows that if, according to the domestic interpretation methodology, there are several possible interpretations of the Constitution, with only some of them leading to a commitment that the Czech Republic has assumed by its membership in the European Union, an interpretation that supports the implementation of this Article 1 (2) of the Constitution must be chosen.
(Optically, there may be some discrepancy between the finding of the Constitutional Court on "sugar quotas' and" Euro arrest warrants'. This was pointed out in her different opinion on the finding of the Constitutional Court in the case of the "Euro arrest warrant 'of Judge E. Wagner, alleging that, in that case, the Constitutional Court moved the doctrine of the Constitutional Court - formulated in the case of" sugar quotas' - by claiming that there was "to some extent a limitation of the powers of the Constitutional Court 'and that" where the Czech legislation reflects a binding standard of European law, the doctrine of the primacy of Community law does not allow the Constitutional Court to examine such a Czech standard in terms of conformity with the constitutional order of the Czech Republic'. However, the Constitutional Court considers that the dissonance between the two findings does not need to be seen too sharply and strongly, which can be inferred from both the legal sentences of the Pl. ÚS 66 / 04 / Euroarrest / and the wording of its paragraph 53. For the purposes of the present finding on the assessment of the constitutionality of the LS, the Constitutional Court does not consider certain differences in the two findings cited to be decisive.)
115. In a further finding concerning the review of the bankruptcy and settlement law (Pl. ÚS 36 / 01 of 25.6.2002, Collection of finds and resolutions of the Constitutional Court, Volume 26, Found No. 80, published under No. 403 / 2002 Coll.) The Constitutional Court stated, inter alia, the following: the constitutional maximum provided for in Article 9 (2) of the Constitution does not result in a constellation only for the Constitution, but also for the Constitutional Court. The inadmissibility of the amendment to the fundamental essentials of the democratic rule of law includes an instruction from the Constitutional Court, according to which no amendment to the Constitution can be interpreted in the sense that the consequence would be to limit the procedural level of protection of fundamental rights and freedoms already achieved.
116. In the case-law of other constitutional courts - which may be inspiring - the judgment of the German Federal Constitutional Court (SÚS) Solange II and the Maastricht judgment can be regarded as essential.
117. In Solange II of 22.10.1986, The Federal Constitutional Court essentially stated that the level of protection of human rights provided by the European institutions is comparable to that which could be provided by the German authorities; The Federal Constitutional Court concluded that it would no longer examine the compatibility of Community standards and acts where the European Community and the Court of Justice of the Community in particular in general ensure effective protection of fundamental rights vis-à-vis Community acts; This protection must in principle correspond to the protection of fundamental rights provided by the Basic Law (Constitution of Germany).
118. In the Maastricht case of 12 October 1993, the SOS, inter alia, expressed the following arguments.
- Any entry into an interstate community shall result in a member of such a community being bound by its decisions. However, a Member State - and its citizens - is gaining influence by participating in the creation of the Community's will to monitor common - and hence its own - objectives, the result of which is then binding on all Member States, and therefore also assumes recognition of its own commitments. The readiness to accept the obligations of international law in the closer legal union of the international community is characteristic of a democratic state that wants to participate as an equal member in work in inter-state institutions and especially in the development of the European Union.
- The granting of sovereign approvals results in their defence no longer being dependent on the will of the Member State itself. To see this in breach of the constitutional principle of democracy would be contrary not only to the openness of the Constitution to integration that the Constitution wanted and expressed in 1949; It would also lay the foundation for the idea of democracy, which would make any democratic state, because of the principle of unanimity, incapable of integration.
- The principle of majority in accordance with the order of mutual respect resulting from Community loyalty (but) has a limit in the constitutional principles and fundamental interests of the Member States.
- In the area of 'competence', the fundamental question is who has the power to determine definitively what is and what is no longer the power delegated to the Community.
- The Federal Constitutional Court has reserved the power to assess whether a Community act has exceeded the limits imposed by German Community law (in the form of contracts of incorporation and their amendments).
- The Federal Constitutional Court has reserved a final word in determining which Community acts are ultra vires, i.e. beyond Community competence; If the Federal Constitutional Court had then concluded, it would have established their inapplicability in Germany.
- In other words, if the European institutions or bodies were to treat or further develop the Union Treaty in such a way that it would no longer be protected by the Treaty in a form which is the basis of the German Law of Approval, then the legal acts resulting from it would not be binding in the area of German sovereignty. For constitutional reasons, the German authorities would not be allowed to apply these legal acts in Germany. Accordingly, the Federal Constitutional Court shall examine whether the legal acts of the European institutions and bodies are within the limits of the sovereign rights granted to them or whether they exceed them.
119. As already stated, the provisions cited by the Constitution and the fundamental case law of the Constitutional Court constitute a significant (albeit not entirely exclusive) basis for the review of the Treaty of Lisbon as regards its own content.
120. The Constitutional Court, having regard to the above, notes (and repeats).
- The Constitutional Court generally recognises the functionality of the EU institutional framework to ensure control of the scope of the exercise of delegated powers; However, its position may change in the future if this framework proves to be inoperable.
- From the point of view of the constitutional order of the Czech Republic - and in particular with regard to the material focus of the Constitution - the text and content of the Treaty of Lisbon is important, not only.
- The Constitutional Court of the Czech Republic, too, will (although it may) act as an ultima ratio and may examine whether an act of the institutions of the Union has excluded itself from the powers which the Czech Republic has transferred to the European Union under Article 10a of the Constitution. However, the Constitutional Court assumes that such a situation can only occur in cases of exceptional nature; In particular, the abandonment of the value identity and the extent of the powers conferred may be considered as such.
Special part
121. The Constitutional Court, before assessing the constitutionality of the individual points of the Senate's proposal, considered - taking into account the specificity of the matter - the wording of its statement, whether positive or negative.
122. The precise wording of the provisions of § 71e (1) and (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, provides that (1) the Constitutional Court, after the procedure has been carried out, shall conclude that the international treaty is contrary to the constitutional order, shall declare that non-compliance by the finding; (2) If the Constitutional Court, following the procedure carried out, concludes that the international treaty is not contrary to the constitutional order, it shall decide by finding that the ratification of the international treaty is not contrary to the constitutional order.
123. However, such a wording of the statement of findings is hardly acceptable in this particular case, as the Constitutional Court examined (and ruled) the constitutionality of only eight Senate-challenged (and justified) articles of the Treaty of Lisbon, not the whole of the Treaties.
124. That is why the Constitutional Court chose the wording of the operative part of the finding by finding that the Treaty of Lisbon does not conflict with the constitutional order in the articles mentioned in the operative part of the finding.
125. At the first point of its proposal, the Senate raises doubts as to Article 2a (1) (now Article 2 (1)) and Article 2c (now Article 4) TFEU.
(now Article 2 (1)) read as follows:
1. Where the Treaties confer exclusive competence on the Union in a specific area, only the Union may create and adopt legally binding acts and Member States may do so only if authorised or implemented by the Union.
127. Article 2c (now Article 4) reads:
1. The Union shall share competence with the Member States where the Treaties confer upon it powers which do not concern the areas referred to in Articles 2b and 2e.
2. The shared competence of the Union and the Member States shall apply in the following main areas:
(a) the internal market;
(b) social policy as regards the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, except for the conservation of marine biological resources;
(e) the environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) an area of freedom, security and justice;
(k) common issues of public health safety as regards the aspects defined in this Treaty.
3. The Union shall have the power to carry out research, technological development and space activities, in particular to define and implement programmes, but the exercise of that competence shall not prevent Member States from exercising their competence.
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Regulation Information
| Citation | The Constitutional Court found No 446 / 2008 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 | 23.12.2008 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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