Adjudicating Europe

From the Editors: Through the Mosquito we got excerpts of the key parts of the Court’s decision and also President Klaus’ reaction to it.

The judgment will soon be available in English at the Constitutional Court’s webpage. Here we only sum up the petition together with the operative part of the judgment and then provide a translation of the most relevant parts of the decision:

- first, the Court’s rejection to create a list of competences that cannot be transferred (in response to the petition that referred to the German Federal Constitutional Court’s decision on the Lisbon Treaty, which did so) and the Court’s stress on the responsibility of political actors,

- second, a part concerning the President’s constitutional obligation to ratify a treaty that has already been approved by Parliament “without unnecessary delay”,

- third, democracy in the European Union, where the Court expresses its disagreement with the German FCC’s rejection of representative democracy as a foundation of the EU’s functioning (Article 10 (1) TEU) and refers to AG Maduro’s opinion,

- fourth, a part concerning sovereignty, where the Court reminds the President of his awareness of the concept of “shared sovereignty”, contrary to what the President submitted.

Finally, we provide a full translation of President Klaus’ statement in reaction to the judgment.

Summary of the Petition and the Operative Part of the Judgment
The petition was very much inspired by the German Federal Constitutional Court’s judgment on the Lisbon Treaty as the petitioners explicitly admitted. They challenged the Lisbon Treaty as a whole (for its incomprehensibility, which allegedly conflicted with the rule of law principles, and also its possible retroactive application, since language corrections could be made after the Treaty’s adoption), the TEU and TFEU as a whole, since the goals of the Union breached, according to the petition, the principle of “political neutrality” of the Constitution and did not exclude the establishment of a federal state on the EU level as a final goal of the European integration. The petitioners also requested the Court to join this case with another one, where they challenged laws on the rules of procedure of the Chamber of Deputies and the Senate, which were adopted in order to increase Parliament’s involvement in the decision making at the EU level. In principle the petitioners wanted the government to be obliged to have a specific mandate from the Parliament for every voting in the Council, the argument being that there is no democracy on the EU level. In addition to this the petitioners also challenged a number of specific provisions of the TEU and TFEU.

You can get an idea of the contents of the petition from the operative part of the judgment:

I. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community
- as a whole
- specifically in Art. 7, Art. 8, Art. 9, Art. 10 par. 1, Art. 13 par. 1, Art. 14 par. 2, Art. 17 par. 1 and 3, Art. 19 par. 1, Art. 20, Art. 21 par. 2 letter h), Art. 42 par. 2, Art. 47 and Art. 50 paras. 2 to 4 of the Treaty on European Union
- in Art. 3, Art. 78 par. 3, Art. 79 par. 1 and Art. 83 of the Treaty on the Functioning of the European Union
and its ratification are not inconsistent with the constitutional order of the Czech Republic.

II. The petition to review the conformity of the Treaty on the European Union (referred to as the Treaty of Maastricht by the petitioner) as a whole, and the Treaty on the Functioning of the European Union (referred to as the Treaty of Rome by the petitioner) as a whole with the constitutional order is rejected [as inadmissible for being out of scope of the jurisdiction of the Court].

III. The petition to review the conformity of Art. 2, Art. 4 and Art. 216 of the Treaty on the Functioning of the European Union is rejected [as inadmissible for being res iudicata].

IV. The petition to find „that the Decision of the Heads of State or Government meeting within the European Council on the concerns of the Irish people on the Treaty of Lisbon, which on 18 and 19 June 2009 added certain provisions to the Treaty of Lisbon, is an international agreement pursuant to Article 10a of the Constitution and as such requires the approval of both Chambers of Parliament obtained by a constitutional majority, without which it is not applicable in relation to the Czech Republic“ is rejected [as inadmissible].

V. The petition to hear this petition to review the Treaty of Lisbon together with their previous petition of 31 August 2009, ref. no. Pl. ÚS 26/09, to annul selected provisions of the rules of procedure of both chambers of the Parliament, in joined proceedings is rejected [as inadmissible and ill-founded].

N.B.: The judgment uses both “petitioner” and “petitioners”, which is most probably an unintended inconsistency. While it was a group of senators, who submitted the petition (hence “petitioners”), the Constitutional Court refers to them in para. 1 as “the petitioner” (in singular), since the group is according to the Act on the Constitutional Court the actively legitimated party, taken as a whole (“it”).

The rejection to create a list of competences that cannot be transferred and the stress on the responsibility of political actors

110. In the introductory part of its petition the petitioner claims that “unfortunately the Constitution does not define more closely the essential requirements for a democratic state governed by the rule of law” (petition, point 13).[ The petitioners refer to the “eternity clause” of the Czech Constitution, contained in Article 9 (2) (“Any changes in the essential requirements for a democratic state governed by the rule of law are impermissible.”), which must be read in conjunction to Article 1 (1) (“The Czech Republic is a sovereign, unitary, and democratic state governed by the rule of law, founded on respect for the rights and freedoms of man and of citizens.”). It is the key provision with regard to the EU (also in relation with Article 10a (1): “Certain powers of Czech Republic authorities may be transferred by treaty to an international organization or institution.”).] According to the petitioner “it is true that the Constitutional Court has touched upon this concept [references to some previous judgments of the Court], but it does not provide any comprehensive, complex and close interpretation of it, which would be in the future immune against momentary political pressures and [hence] become subject to an expedient interpretation influenced by the currently pending cases” (petition, point 13). In point 49 of the petition the petitioner requests the Constitutional Court to define “the substantive limits to transfers of competences”, and in point 51 to 56 it attempts to define these limits itself, while it is obviously inspired by the judgment of the German Constitutional Court [reference], which provides such a list in point 252 (see particularly points 51 to 56 of the petition).

111. However, the Constitutional Court does not consider possible, with regard to its place in the constitutional system of the Czech Republic, to create such a list of competences that cannot be transferred and to authoritatively define “substantive limits to transfers of competences,” as it is demanded by the petitioner. It reminds that in its [Lisbon Treaty I judgment] the Constitutional Court stated that “these limits should be left primarily to the legislature to specify, because this is a priori a political question, which provides the legislature wide discretion” (point 109). Responsibility for these political decisions cannot be shifted on the Constitutional Court; the Court can make these decisions subject to its review only after they have been actually made on the political level.

112. For the same reasons the Constitutional Court does not feel competent to formulate in an abstract context and in advance what the precise content of Article 1 paragraph 1 of the Constitution is, as requested by the petitioner supported by the President, who welcomes the effort to “define the features of the so called material core of the constitutional order, or more exactly, said, sovereign democratic state governed by the rule of law by an enumerative list” and submits (in line with the petitioner), that this could “prevent a future expedient definitions of these features in relation to currently pending cases” [part C of the President’s submission ].

113. The Constitutional Court considers that it is exactly the concrete cases that can provide the Court the relevant framework within which it is possible, by interpretation on the case-by-case basis, to specify the content of the concept of “a sovereign, unitary, and democratic state governed by the rule of law, founded on respect for the rights and freedoms of man and of citizens”. The Constitutional Court has already done so in the decisions mentioned by the petitioner itself (see point 110 of this judgment), or in e.g. judgment [Pl. ÚS 36/01] and for the last time in judgment [Pl. ÚS 27/09 ]. It is not a manifestation of its arbitrariness, but to the contrary of its restraint and judicial minimalism, which is understood as a means of limiting the judicial power in favour of political procedures, and which prevails over the demand for an absolute legal certainty (see particularly Sunstein, C. R.: Judicial Minimalism on the Court, Cambridge, Harvard University Press, 1999, pp. 209-243 directly to the relationship between judicial minimalsim and the demand for legal certainty). The effort to define the concept of “a sovereign, unitary, and democratic state governed by the rule of law, founded on respect for the rights and freedoms of man and of citizens” once and forever (as requested by the petitioner supported by the President) could to the contrary be understood as a manifestation of judicial activism, which is by the way continuously criticized by some political actors.

The duty to ratify “without unnecessary delay”
This part of the judgment (paras. 115-124) deals with a possibility that the review of an international treaty would be misused for obstructions. Para. 116, which I translate below, contains something which could be considered as “obiter” (if you can identify such a thing in the Constitutional Court’s decisions), related to the obligation of the President to ratify a treaty “without unnecessary delay”.

116. The aim of the review of conformity of an international treaty with the constitutional order is to preventively eliminate the risk that the Czech Republic would enter into an international obligation, which would be in contradiction with the constitutional order, or to eliminate doubts as to conformity of the international treaty with the constitutional order before the treaty becomes for the Czech Republic internationally and within the Czech Republic internally legally binding, since after this the possibilities of solving the conflict are very limited (see Wagnerová E., Dostál M., Langášek T., Pospíšil I.: Zákon o Ústavním soudu s komentá?em, Praha, ASPI a. s., 2007, p. 298, 309–310). Inherently it is compelling to eliminate the doubts without unnecessary delay. On the international law level already by concluding an international treaty the parties to it accept an obligation not to prolong their definitive decision as to whether or not they ratify the treaty, which follows from the principle of good faith (see Poto?ný, M. Mezinárodní právo ve?ejné. Zvláštní ?ást. 1. vyd. Praha, C. H. Beck, 1996, s. 161). On the internal or constitutional law level the obligation of the President to ratify without unnecessary delay (that is to formally externally confirm the correct completion of the internal ratification procedure) the international treaty, which has been duly negotiated by the President or by the Government authorized by him and to whose ratification the democratically elected legislature gave its consent, especially when it comes to treaties according to Article 10a of the Constitution, which are ratified by a qualified majority of the Deputies and Senators. It is just and only the procedure before the Constitutional Court according to Article 87 (2) of the Constitution, which can, with regard to competently raised doubts as to the conformity of the international treaty with the constitutional order ex constitutione, postpone the moment of ratification until their elimination by an authoritative decision of the Constitutional Court, or possibly if a conflict was found, after eliminating the conflict by a change of the constitutional order (§ 71e (3) of the Act on the Constitutional Court).

Democracy in the European Union
134. As regards the question of “democratic deficits of decision making procedures in the European Union, its conflict with principles of a democratic state and the separation of powers, which the petitioners seek in Article 1 (1) of the Constitution, and its possible elimination through adoption of a “bound mandate” [...] at first place it is necessary to note that the Lisbon Treaty does not in any way prevent the Member States from adopting such measures on the internal level, which is by the way proven by the practice of particular Member States in questions concerning the control of the acting of the Government in the European Union from the side of national legislatures ( see e.g. Kiiver, P. The National Parliaments in the European Union: A Critical View on EU Constitution-Building. Kluwer Law International, Haag, 2006). Similarly as the Constitutional Court did not condition constitutionality of ratification of the Lisbon Treaty with an adoption of internal procedures concerning decisions possibly adopted on the basis of Article 48 (6) and (7) (although it expressly formulated its reservations as regards their absence), the absence of the controlling mechanisms, which the Lisbon Treaty does not limit in any way, cannot be the reason for its conflict with the constitutional order.

135. At the same time the Constitutional Court does not overlook the tendency to strengthen the role of parliaments of the Member States in the decision making procedures on the level of the European Union, an example of which is the Lisbon Treaty, after all [...]

136. Finally the Constitutional Court adds that it is in the essence of the transfer of competences of the Czech Republic authorities that instead of Parliament (but also other authorities of the Czech Republic) these competences are being exercised by the international organization, to which these competences have been transferred. The conditions of conformity of this transferral with the constitutional order have been comprehensively delimited in points 88 to 120 of the Lisbon Treaty I judgment, where the Court did not find their violation in case of the Lisbon Treaty either. At the same time the Court stressed at several places of that judgment that it is prepared to intervene in case of their violation (see particularly points 120, 139, 196 and 197 of the Lisbon Treaty I judgment).

137. It is possible to connect with the above mentioned reservation against the Lisbon Treaty the argument of petitioners concerning the conflict of Article 10 (1) TEU with Article 1 (1) and 10a of the Constitution [...]. When this provision provides that “the functioning of the Union shall be founded on representative democracy”, it is not intended to mean that only processes on the European level should secure fulfilment of this principle. The provision concerns processes both on the European and internal level, not only the European Parliament as the German Federal Constitutional Courts states in point 280 of its decision to which the petitioners refer (although they expressly refer to point 271 of that decision).

138. Advocate General Poiares Maduro has recently expressed a similar opinion in his Opinion of 26. March 2009 in Case C-411/06, not yet reported, footnote 5:
Democracy can take a number of different forms, however, especially in the European Community. At Community level, democratic legitimacy is derived from two main sources: either the Council, in which the will of the peoples of Europe is expressed through the positions adopted by their respective governments, under the control of their national parliaments; or the European Parliament, the directly representative European institution, and the Commission, which is directly accountable to it. Directly democratic representativeness is undeniably a relevant gauge of European democracy, but it is not the only one. In particular, European democracy also entails achieving a delicate balance between the national and European dimensions of democracy, without either one necessarily prevailing over the other. This is why the European Parliament does not have the same power as national parliaments in the legislative process and, although an argument could be made for stronger powers for the European Parliament, it is for the peoples of Europe to make that decision through treaty amendment. The balance between the powers conferred on the European Parliament and the other institutions as expressed in the different legislative procedures has evolved over time and reflects the balance which the peoples of Europe have wanted between national and European means of giving legitimacy to the exercise of power at European level.

139. In other words, democratic process on the Union and national level complement and condition each other. The petitioners are by the way mistaken if they contend that “representative democracy can only exist inside states, inside sovereign subjects”. The principle of representative democracy is one of the common principles of organisation of greater entities of an interstate type as well as non-governmental organizations. The existence of elements of representative democracy on the Union level does not exclude realization of the same elements anticipated by the constitutional order of the Czech Republic nor does it mean surpassing the limits of transferrals of competences given by Article 10a of the Constitution.

140. For similar reasons it is not possible to see a contradiction between Article 14 (2) TEU, which provides for a number of the members of the European Parliament, with the principle of equality provided for in Article 1 of the Charter of Fundamental Rights and Basic Freedoms, as the petitioner contends [...] As it has been shown above, the European Parliament is not the exclusive source of democratic legitimacy of decisions adopted on the level of the European Union. It is derived from a combination of structures existing on both national and European level and it is not possible to insist on the requirement of absolute equality among the voters in particular Member States. It would be the case only if the decisions in the European Union were adopted with exclusion of the legitimation bonds to governments and particularly legislatures in particular Member States. As the Constitutional Court shown above in this part of its judgment, however, the contrary is true.

Sovereignty of the Czech Republic and the State Power

146. At first the Constitutional Court refer to the conclusion expressed in its previous Lisbon Treaty I judgment as regards the character of the European Union, conditions on preserving the foundations of sovereignty of the Czech Republic and also control, which the Member States retain.

147. The Court reminds that (as it found in point 209 of the Lisbon Treaty I judgment) sovereignty of the state in a modern democratic state is not an aim in itself, thus in isolation, but it is a means to fulfil the foundational values, on which the construction of the democratic state based on the rule of law stands. In point 107 it inferred (with reference to considerations in points 98 to 107 of that judgment) that the transfer of competences of the state, which emanates from the free will of the sovereign and will continue to be exercised with its participation through a previously agreed, controlled means, is not a conceptual weakening of sovereignty, but can to the contrary in its consequences mean its strengthening in a common action of the integrated whole. The Constitutional Court also stated in point 104 of that judgment, that the European Union has advanced most in the concept of shared – “pooled” sovereignty and already today it creates a sui generis entity, which can hardly be subsumed into classical categories of constitutional theory. The key manifestation of sovereignty of the state is also a possibility to further dispose of its sovereignty (a part of it), or to transfer some competences temporarily or permanently.

148. When the President disputes this delimitation of sovereignty with a contention that “even though the term ‘shared sovereignty’ has recently been used rather frequently, it has only been used in non-rigorous debates”, since this concept is according to the President “self-contradictory”, because, as the President opines, “our legal system does not recognize the term ‘shared sovereignty’, and this term is not recognized by the law of the European Community either”, the Constitutional Court considers it suitable to remind in this connection of the text of Memorandum attached to the Czech Republic’s application for accession to the European Union (available at http://www.mzv.cz/jnp/cz/zahranicni_vztahy/neverejne/205891-memorandum.html The Czech Republic’s application for accession to the European Union [in English available at http://www.ena.lu/czech_republic_application_accession_european_union_17_january_1996-2-17915]):
The Czech nation has only recently regained its full national sovereignty. Yet, like the Governments of present Member States have done in the past, the Government of the Czech Republic has irrevocably arrived at the conclusion that within the context of modern European developments the exchange of apart of its national sovereignty for a shared supranational sovereignty and co-responsibility is an inevitable step to be taken for the benefit of its own country and the whole of Europe.

149. Decision of the Government of 13 December 1995 No. 732 on the Czech Republic’s application for accession to the European Union authorized the then Prime Minister (and today’s President) Václav Klaus to present the Application and the Memorandum (which was in conformity with the Decision of the Government an inseparable part of the Application) in January 1996 to the Government of the Italian Republic as a presiding Member State of the European Union for the first half of 1996. It is therefore beyond any doubts that the concept of shared sovereignty must have been well known to the President, but also to other political actors responsible for adoption of the mentioned Memorandum in times when the Czech Republic was not yet a member of the European Union. The legal representative of the President proved this fact at the oral hearing when he extensively quoted from the Memorandum to support his contention that the character of the European Union should be principally changed with the adoption of the Lisbon Treaty.

150. The Constitutional Court also held in point 120 of the Lisbon Treaty I judgment:
- The Constitutional Court generally recognizes the functionality of the EU institutional framework for ensuring review of the scope of the exercise of conferred competences; however, its position may change in the future if it appears that this framework is demonstrably non-functional.
- In terms of the constitutional order of the Czech Republic – and within it especially in view of the material core of the Constitution – what is important is not only the actual text and content of the Treaty of Lisbon, but also its future concrete application.
- The Constitutional Court of the Czech Republic will (may) also – although in view of the foregoing principles – function as an ultima ratio and may review whether any act of Union bodies exceeded the powers that the Czech Republic transferred to the European Union under Art. 10a of the Constitution. However, the Constitutional Court assumes that such a situation can occur only in quite exceptional cases; these could be, in particular, abandoning the identity of values and, as already cited, exceeding the scope of conferred competences.

President Klaus’ statement on the decision of the Constitutional Court of 3 November 2009

1) I expected the decision of the Constitutional Court and respect it even though I do not fundamentally agree with its content and reasoning.

2) I cannot agree with its form, that is its legal quality. The Judgment of the Constitutional Court is not a neutral legal analysis, but a biased political defense of the Lisbon Treaty from the side of its supporters. It is also obvious from a totally unsuitable confrontational way this judgment was made and presented.

3) Above all I cannot agree with the content of the decision, since with the Lisbon Treaty’s entry into force, contrary to the political [sic!] opinion of the Constitutional Court, the Czech Republic ceases to be a sovereign state. This change - for today and also for the future - legitimizes efforts of that part of our public, which is not indifferent to the matter of our national and state existence and which does not want to be reconciled with this result.

4) I cannot respect the Constitutional Court to formulate the duty of the President to ratify this (or any other international treaty) “without unnecessary delay” with reference to the Act on the Constitutional Court. It is the law which deals with the functioning of the Constitutional Court and the privileges of the President of the Republic, which are provided for just and only in the Constitution.

5) I inform that today at 3 p. m. I have signed the Lisbon Treaty.