Korektura



Procedure of Preventive Review of the Lisbon Treaty in the Czech Republic

Jan Filip

In 2001, the Czech Republic adopted the so-called Euro-amendment to the Constitution of the Czech
Republic (Constitutional Act No. 395/2001 Sb.),[1] introducing a number of significant changes in
the constitutional order from the points of view of international and domestic law (Art. 1 para. 2
and Art. 10 of the Constitution of the Czech Republic – hereinafter “the Constitution”). At the
same time, the amendment provided for the possibility of transferring some of the powers of state
authorities to international organizations or institutions (cf. Article 10a para. 1), thereby
setting the constitutional prerequisites for the accession of the country to the European Union. It
also vested the Constitutional Court with the power of preventive review of the constitutionality
of international treaties, which had previously not been regulated in the Czech legal system.[2]
In this connection, a new part II (Art. s 71a-71e) was included in Act No. 182/1993 Sb. on the
Constitutional Court on the basis of its amendment No. 48/2002 Sb.,[3] which regulated the
procedure to be followed by the Constitutional Court during its preventive review.


However, this possibility of judicial review, which thus became available for authorized subjects
from 1 June 2002, remained unexercised for a long time. It took six years[4] before the Senate
decided in April 2008 – after the complicated discussions over the government proposal to approve
the ratification of the Lisbon Treaty, amending the Treaty on the European Union and the Treaty
establishing the European Community – to file a motion to the Constitutional Court to assess the
conformity of the Lisbon Treaty with the constitutional order. Thus, this proposal, submitted to
the Constitutional Court on 30 April 2008, became the very first motion for the preventive review
of an international treaty to be admitted to the Constitutional Court, and it will be heard. Owing
to the progress of the ratification of this treaty in the other EU sates, the future decision of
the Constitutional Court is eagerly anticipated, not only by Czech authorities, politicians, and
the public, but also EU bodies and those states where the process of ratification has not been
finished yet and where it is hoped that the Lisbon Treaty will not come into effect as a result of
this decision. This study aims to point out certain procedural issues which the Constitutional
Court will have to address in this connection. Issues related to the content are disregarded on
purpose, since they are beyond the scope of the present text.



1. Formulation of the text of the Lisbon Treaty and the Constitutional Court


The future groundbreaking decision by the Constitutional Court will have to address a whole range
of issues. As indicated by the declarations of the Chairman in the media, what is problematic is
not only the actual decision of correspondence or non-correspondence of the Lisbon Treaty with the
Czech constitutional order, but also the manner in which the decision is to be arrived at. Prior to
the decision itself, the Constitutional Court will have to adopt a position on the interpretation
of the 2^nd part (Art. 71a-71e) of the Act on the Constitutional Court.


The current situation is similar to the referendum on the Accession Treaty in 2003. During that
referendum, Czech citizens had the first opportunity to vote in a referendum on a question that was
rather difficult – with respect to how extensive the text of the treaty was. The same holds true
now for the Constitutional Court, which is to apply the provision on the preventive review of an
international treaty for the first time. Its task is to assess the amended text which is, as
regards its formulation, rather complex and unclear, requiring a difficult reconstruction because
it is impossible to understand it without the texts of the existing treaties on the EU and EC.[5]
In fact, should the task of the Constitutional Court be to assess the constitutionality of an
amendment or a revision of a law that would be drafted in a form similar to the Lisbon Treaty, then
it should – in accordance with the past declarations of the same court on the formation of clear,
intelligible, certain and unequivocal texts of legal regulations in a state governed by the rule of
law – arrive at the conclusion that the text is in conflict with such principles. What is needed to
solve such a puzzle (as it was expressed by the Austrian Constitutional Court in one of its
findings )[6] is diligence and patience.


In the case of the Lisbon Treaty, however, there is a “mitigating circumstance.” The authors of
this puzzle[7] were so nice that they at least provided us with clues at the end.[8] Thanks to this
and our knowledge of the previous numbering systems, we are able to find where the relevant
provision is currently located, how it is identified and where it will be placed under the new
numbering system. Any failure to do so will result in a confusion of terms. What is also bizarre is
that, owing to the special numbering system, the petitioner and the Constitutional Court will have
to agree which of the three versions to use in order to be able to understand each other at all.[9]
However, this is not the end: in addition, there are 13 protocols and 65 declarations of the
contracting parties in which they assure each other that they are serious about the whole issue and
that they do not have any other intentions.


In the case of the EU, this is not just about the frequency of words such “democracy,” “values,”
etc., in the text of the Lisbon Treaty, but is also about the form by which this text makes such
values accessible to EU citizens. What is even more significant, however, is the fact that the
so-called “European constitutional agreement” of 2004 (the Treaty establishing a Constitution for
Europe), which had been turned down, is resubmitted for adoption again, merely cleared of any
indications of a future super-state.[10] This is further evidence that the “D plan”, i.e., dialogue
and democracy is not meant quite seriously in actual reality. But, the warning contained in the
Maastricht judgment of the Federal Constitutional Court[11] is still valid: this stated that
democracy is not just a formal principle of accountability of decisions (“Zurechnungsprinzip”); by
contrast, it should stem from the competition of social forces, interests, and ideas, making the
decision-making process of bodies exercising their supreme power and the current political aims
clearly visible and intelligible, and the fact that voters can communicate with such a power in
their own mother tongues.



2. Formulation of the Senate’s proposal


However, the proposal by the Senate of the Parliament of the Czech Republic did not make the role
of the Constitutional Court any easier. The extent of the motion was merely three pages,[12] which
mostly consisted not of statements or evidence supporting such statements but questions and notes
of interrogation. Something like that has been unheard of in the previous experience of the
Constitutional Court.[13] The formulation of the statement of the ruling (i.e. the very proposal
how the Court should decide)[14] raises doubts – in light of the doctrine of the Constitutional
Court on being bound by the formulation of the proposal of the statement – whether it satisfies at
all the requirements of the provisions in Art. 71e para. 1 and 2 of the Act on the Constitutional
Court, specifying the requirements on proposal on statements of ruling in motions to be decided by
the Constitutional Court. The Senate’s motion is evidently based on Art.  71a of the Act, which,
however, merely describes the subject matter of the proceedings. In the form of a question rather
than a statement of alleged unconstitutionality, the Senate merely demands that the Constitutional
Court decides on the conformity of the Lisbon Treaty with the constitutional order, without
unequivocally pointing out the direction in which a decision should be made.[15] The contrary
formulation of the proposal of the statement of the ruling (i.e., the expression of conformity with
the constitutional order) is hardly conceivable with respect to the purpose of the proceedings,
i.e., to prevent the ratification of an unconstitutional obligation.[16] This kind of formulation
is possible only in the statement of a Constitutional Court finding (the ratification of a treaty
is not in conflict) in which the court expresses its disagreement that an international treaty is
not in conformity with the constitutional order. The Senate, however, included various – and quite
diverse – versions of the statement in the proposal of its petition. There is no doubt about what a
reporting judge would do after receiving a constitutional complaint whose proposal of the statement
of ruling would request that the Constitutional Court should decide, in the sense of Art.  87 para.
1 of the Constitution or Art. 82 para. 1 of the Act on the Constitutional Court, about the
conformity of an action of public authority with the constitutionally guaranteed rights of the
complainant.[17] Either the complainant will have to cure defects of such proposal of the statement
by the deadline designated by the reporting judge or the complaint shall be rejected on procedural
grounds.


The actual petition gives the impression that the Senate does not consider the Constitutional Court
as a court but as to be some kind of constitutional council – a sort of advisory body.[18] Further
evidence of the attitude of politicians towards the Constitutional Court is provided by the
statement by a member of the Government on TV, demanding that the Constitutional Court “hurry up”
so that the ratification process could be continued in September, as well as a statement by another
government official that the Constitutional Court “begged” the government for a [DEL: position
:DEL] opinion on the Lisbon Treaty. Let me just add that this matter does not concern a direct
politicisation of the Constitutional Court, as, for instance, in the case of its decision-making on
public budget reforms. The incursion of the judiciary into the area of foreign policy is quite in
place: this is also because of the nature of the EU and the obligations which arise for the Czech
Republic on account of its membership in this (at least so far) supra-national organization.[19]
The reason why the title of the present article mentions the procedure of preventive review – as
opposed to the petition for review of the accession treaty (Pl. ÚS 1/04) that had been denied entry
into the “gates” of the Constitutional Court (being dismissed a limine fori, i.e., literally “from
the court’s threshold”) – is that, if the Constitutional Court had adopted a stricter attitude, the
petition could already have been relegated into the archives of the Court for reasons stated in the
previous paragraph. However, it is questionable whether this might not give rise to suspicions that
the Constitutional Court is playing its own game in the form of a delaying tactic, thereby lending
support to opponents of the ratification of the Lisbon Treaty. On the other hand, the objection
might be raised that the Court’s decision may be on account of the fact that the petition is easier
to process in comparison with the high level of debate on the Lisbon Treaty in the Senate.


As a result, a whole range of procedural issues arise in this connection, even prior to the actual
decision on the petition itself. These issues deserve to be addressed here, while it is necessary
to point out certain new circumstances which – as is usual – are likely to surface during the
practical realization of a legal rule. The positions expressed in the commentaries to the Act on
the Constitutional Court[20] are, understandably, still considerations de interpretatione ferenda.
The final word in the contested points will rest on the Constitutional Court, which has decided in
this connection not to decide any other issues in the plenary before issuing its decision on this
matter. Yet, there is a whole range of issues that need to be pointed out. They include, above all,
the issue of the extent of the review, its criteria, procedures for discussion, and the majority
vote necessary to adopt a decision. The actual matter of the petition is directly relevant, but the
mere description of the individual issues would go beyond the scope of this article, regardless of
the fact that certain issues, such as the assessment of a possible intervention into the
sovereignty of a state, are basically insoluble with respect to the changes in the understanding of
this concept since 1576, when it was introduced in the theory of the state by J. Bodin.[21] The
same holds for trying to answer whether, in connection with the acquisition of legal subjectivity,
the EU is not, after all, gradually becoming a state body which is [DEL: prevented :DEL] prohibited
from being delegated some powers on the basis of Article 10a of the Constitution.


3. The extent of the review – the entire Lisbon Treaty or selected provisions only?


It appears from the Senate’s petition that the Constitutional Court should adopt a position
concerning the Lisbon Treaty as a whole, because it causes a conflict with the characterization of
the Czech Republic as a supreme, unified, and democratic legal country, as well as a change in some
of its essential elements defined in Article 9(2) of the Constitution.[22] At the same time, the
Senate’s petition raises several specific doubts about some provisions of the TEU and TFEU.
According to the Senate:

1)      TFEU establishes a classification of powers that is more characteristic for division of jur
isdiction in federal states, by introducing a category of powers exclusive to the Union, which incl
udes entire comprehensive areas of legal regulation (Art. 2a par. 1 of the TFEU). In conjunction wi
th those facts, in the sphere of shared competences (Art. 4 of the TFEU) there is, from the point o
f view of Art. 10a of the Constitution, a transfer of competences to the Union in a scope that can
not be fully determined in advance,
2)      the Art. 352 par. 1 of the TFEU, which is not limited to regulation of the internal market,
 and is thus a blanket norm that permits enacting measures beyond the scope of Union competences, i
.e. beyond the scope of transferred powers under Art. 10a of the Constitution,
3)      application of a general transitional clause (passerelle) for purposes of changing unanimou
s decision making to decision making by a qualified majority in a particular area or replacing a sp
ecial legislative procedure by an ordinary legislative procedure under Art. 48 par. 7 of the TEU is
 a change of powers under Art. 10a of the Constitution, without that change being accompanied by ra
tification of an international treaty or the active consent of Parliament. As regards Art. 83 par.
1 of the TFEU, there is no opportunity at all for Parliament to express lack of consent; thus, this
 can de facto render Art. 15 par. 1 of the Constitution meaningless,
4)      international treaties negotiated and approved by a qualified majority in the Council (not
unanimously) under Art. 216 of the TFEU would also be binding on member states that did not consent
 to them, even though the standard ratification process would not take place in these states, and,
in the case of the Czech Republic, the opportunity for preliminary judicial review as to whether su
ch treaties are consistent with the constitutional order would also disappear. Therefore, the Senat
e expressed doubts as to whether this process is compatible with Art. 49 and Art. 63 par. 1 let. b)
 of the Constitution, and whether there is room to apply these treaties based on Art. 10 of the Con
stitution,
5)      the indirect reference to the Charter of Fundamental Rights of the EU, together with the fu
ture accession of the EU to the European Convention for the Protection of Human Rights and Fundamen
tal Freedoms (Art. 6 par. 1 and 2 of the TEU) can lead to lack of clarity about the status of the C
harter of Fundamental Rights of the EU (the “CFREU”), and it is not clear whether this construction
 will strengthen or, on the contrary, lower the standard of domestic protection of human rights ens
hrined in the Czech Charter of Fundamental Rights and Freedoms (the “CFRF”),
6)      there is a question whether Art. 2 of the TEU is consistent with Art. 1 par. 1 and Art. 2 p
ar. 1 of the Constitution (the principle of the sovereignty of the people), in view of the fact tha
t it expands the values on which the Union is established, which could, through a mechanism of susp
ending membership rights, be used to create political pressure to change domestic legal orders conc
erning such fundamental issues against the will of the sovereign, i.e. the people.[23]


A double problem has, thus, been created for the Constitutional Court.[24] If it assessed the
constitutionality of the entire treaty, it could constitute a barrier rei iudicatae for other
potential petitioners. This is because Art.  71a of the Act on the Constitutional Court contains a
construction under which the right to file a petition to the Constitutional Court arises gradually
to the individual petitioners in relation to the actual stage of the procedure of giving the
consent for ratification (Art.  71a para. 1 of the Act on the Constitutional Court). It appears
from previous judicial decisions that this is not possible. Examples may be given of decisions (so
far only in the case of legal rules) where the Constitutional Court decided on an overall petition
for the cancellation of an entire legal regulation in such a way that it granted the petition with
respect to several provisions, not refusing but dismissing the remaining parts of the petition.[25]
In this way, the impression might be created of causing an obstacle rei iudicatae. However, the
position by the Constitutional Court must respect the interconnectedness between the statement and
its reasoning (otherwise even a decision by the Constitutional Court might be void). In this case,
however, such a problem should not arise because – with a view to the specificity of the statement
concerning preventive review under Art.  71e para. 1 and para. 2 of the Act on the Constitutional
Court – the Constitutional Court should deal with insubstantial (and even more so with
unsubstantiated) allegations in the reasoning of its finding, not in the statement. This should not
prevent other potential petitioners from challenging some other provisions of the treaty or even
(in my opinion) the same provisions but substantiated with some other, new arguments. The idea that
the Constitutional Court will deal in detail with such an extensive and incomprehensible text –
once and for all, even without the petition for review meeting the requirements of Art.  34 of the
Act on the Constitutional Court – is totally out of the question.[26] This is not a parallel to the
criminal notice (complaint) of suspected unconstitutionality; in addition, there is a whole range
of other arguments against, mainly the actual raison-d’etre of preventive review.[27] The fact that
other potential petitioners are ex lege parties to the proceedings (except for the government and
groups of MPs or Senators) does not deprive such petitioners of the possibility of filing an
independent petition once it is their turn, under Art.  71 para. 1 of the Act on the Constitutional
Court, within the process of expressing one’s approval.[28]


4. What parts of the text of the Lisbon Treaty should the Constitutional Court review?


There are EU-wide discussions on what is new in the Lisbon Treaty in comparison with the current
state. The Constitutional Court is unlikely to be spared such considerations, although these will
be engaged from a different standpoint. The preventive review of an international treaty should not
be a pretext for a subsequent review of, e.g., the contents of the Accession Treaty of 2003. It
will therefore have to be decided what the limits of the preventive review are (i.e., the new
situation), separating out the previously agreed or formed legal situation (acqui communautaire),
in which there would be, from the substantive standpoint, no preventive review. However, the
Constitutional Court cannot be required to stake out those areas in EU primary law which – from the
position of the Lisbon Treaty – already work, and separate them from new developments introduced
under this treaty. This is a rather complex issue, and its critics are typically put down by being
told that such specificities are not yet explicitly mentioned in the primary law but are contained
in the judicial decisions of the European Court of Justice.[29] Since even similar provisions may
obtain quite different contents in new contexts, none of them may be ruled out from the review,
save perhaps for derogatory and operative provisions. It generally holds that the challenged
provisions are not subject to review.[30] The Constitutional Court will not likewise assess those
parts of the Lisbon Treaty (comprising also dozens of protocols and declarations of a general and
special nature) which do not concern the Czech Republic. In this connection, the general principle
needs to be stated that where a member state gives a free hand to the future European Court of
Justice to modify or even create new law, then the question needs to be asked whether it makes
sense to engage in an abstract dispute over something that will obtain its specific shape only in
its judicial decisions on thousands of pages of complicated texts of primary law. The current ECJ
does not ask the question of whether the EU is a state; it behaves as if it were, although what is
missing is the proverbial competence exclusivity (Kompetenz-Kompetenz) referred to by Kelsen.


Thus, the Constitutional Court finds itself for the first time in a situation quite different from
reviewing the constitutionality of amendments of acts as a subsequent control of the
constitutionality of legal regulations. In that area, the court has established quite a consistent
doctrine according to which it reviews the content of the original text as modified by the
amendment, which does not have an independent existence. In the case of amendments, the court
assesses only the formal aspects, such as the observance of the procedure of its adoption and
publication (cf. for instance, findings Nos. 30/1998 Sb. and  476/2002 Sb.). The use of this
doctrine, however, turns out to be entirely impractical with respect to preventive review, simply
on account of the nature of the matter itself.


The form of the Lisbon Treaty as the subject matter of review is related to the provision of Art.
71d para. 3 of the Act on the Constitutional Court, under which the Constitutional Court is not
limited to the assessment of the content of an international treaty with respect to the
constitutional order. Here, unlike Art. 68 para. 1 of the Act on the Constitutional Court, no
assessment is required about whether an international treaty has been concluded by a body which was
authorised to do so and whether the process of its conclusion was in conformity with the national
constitutional law. I have expressed my opinion on this matter several times, also by raising an
objection to the possible conflict between Art. 71d para. 3 of the Act on the Constitutional Court
and Art.  87 para. 2 and Article 88 para. 1 of the Constitution.[31] In this connection, let me
mention another aspect and formulate a conclusion in the form of a question. [DEL: All :DEL] Some
proponents of the ratification of the Lisbon Treaty claim that it does not contain any possibility
of a transfer of new competencies from the Czech Republic to the EU. The exclusion of the review of
procedural issues therefore hides another problem. In the event that both houses of the Parliament
will approve the ratification according to the procedure in Article 49 of the Constitution, i.e.,
under the conditions of Art. 39 para. 1 and para. 2 of the Constitution (i.e., the majority of the
members present) and the President of the Czech Republic subsequently proves to the Constitutional
Court that such a transfer happens, would the Constitutional Court be able to state that it may not
deal with the breach of the procedure specified in Article 10a para 2 and Article 39 para. 4 of the
Constitutional Court (the qualified majority)?[32] In such a case, this will concern not only the
self-limitation of the Constitutional Court, which should not review whether the transfer of
competencies is or is not in conformity with the interests of the Czech Republic (this is a typical
problem in the sense of a “political question doctrine”) but also the problem of procedure which
does not, in this case, encroach upon the area of international law.


Another issue consists in deciding what benchmark should be used for assessing an authentic
international treaty. This will be the first time that the Constitutional Court will apply the
provisions on the reference criterion for review, which are not formulated in a uniform manner. The
prescribed criterion for the assessment of conformity is, under Art.  71a of the Act on the
Constitutional Court, a constitutional law, while Article 87 para. 2 of the Constitution  (to which
Art.  71a para. 1 refers) stipulates that this should be the constitutional order. The same [DEL:
conclusion about :DEL] notion (“the constitutional order”) is mentioned in Art.  71e of the Act on
the Constitutional Court. This cannot be considered just as a technical mistake; it would be
insignificant if the Constitutional Court was not striving to extend the interpretation of the
notion of “constitutional order” (cf. the finding No. 403/2002 Sb.).[33] However, it is hardly
conceivable that the criterion for the review of an international treaty by the Constitutional
Court should consist in another international treaty, be it a treaty on human rights. Since the
constitutional order is made up, according to Article 112 para. 1 of the Constitution, of
constitutional acts and the Charter, then this particular case will call for the assessment of
conformity with a specific constitutional act and its provision, rather than the constitutional
order as a whole – unless the Constitutional Court decides to reopen this issue once again. The
constitutional order does not have any provisions, as a part of the imprecise formulation in Art.
71e para.  1 of the Act on the Constitutional Court. Should a possible conflict be found, then it
does not matter what constitutional provision it conflicts with.[34] The review cannot be limited
only to Article 9 para. 2 of the Constitution (so-called “material core” of the Constitution) or
Article 1 of the Charter, as it might be possible in the event of an already valid EC and EU law in
the sense of the findings of the Constitutional Court concerning constitutionality of the sugar
quotas (No. 154/2006 Sb.) and the European arrest warrant (No. 434/2006 Sb.).


5. The effect of the Irish referendum on the procedure of the Czech Constitutional Court


Decision-making in the field of international politics necessarily leads to the necessity of
reacting to other contracting parties, which is not customary in other areas of the jurisdiction of
the Constitutional Court. In this case, this concerns the issue of the Irish referendum, which
turned the Lisbon Treaty down. As a consequence, the Constitutional Court might have found itself
facing a new question, arising to it, just as in the case of some other constitutional courts in
connection with the previous[35] European constitutional treaty, which was turned down in referenda
in France and the Netherlands. However, in this case, the situation is different,[36] and the
Constitutional Court did not have reason to discontinue or stop the proceedings because the
contractual process still continues. Apart from that, discussions constantly tend to overlook the
provision in Article 48 para. 5 of the new numbering of the EU treaty, which anticipates such a
situation.[37] This provides that, if the Lisbon Treaty is ratified by four fifths of member states
within two years after its conclusion, and if one or more member states meet obstacles while
ratifying it, the issue will be dealt with by the European Council. It is, therefore, anticipated
that, in order to assess the situation, the process will have to be concluded in all of the 28
contracting parties of the ratification process (the EU itself and its member states), because
without this, the European Council cannot look for possible solutions.


6. What will the Constitutional Court decide and by what majority


It is not quite clear from the prayer of the Senate’s petition what statement the Senate actually
requests. This does not unequivocally arise even from the special provision in Art. 71e of the Act
on the Constitutional Court. This proceeding is different from judicial review of legal regulations
because it essentially concerns the pronouncement of an authoritative position on the
constitutionality of an international treaty. Its aim is to block the potential ratification (Art.
87 para. 2 of the Constitution), not the process of ratification. The question the Constitutional
Court is addressing in this case is not how many and which provisions, but whether the ratification
is possible or not. This is one of the reasons why the second division (Art. 71a – 71e) does not
contain an explicit reference to the first division (Art. 64 – 71) of the special part of the Act
on Constitutional Court (control of constitutionality and legality of enactments). Approval is
given to an international treaty as a whole because it may be ratified only in its entirety.[38]
Should even a single provision of this treaty be found unconstitutional, this will not change the
result in any way. There is a parallel with the two houses of the Parliament: just as they can only
approve or dismiss the ratification of a treaty (Art.  108 para. 6 of the Rules of Procedure of the
Chamber of Deputives and Art.  117b para. 5 of the Rules of Procedure of the Senate), the
Constitutional Court may only decide in its finding that an international treaty (i.e., not its
individual provisions) may not be ratified.[39]


The issue is about the prevention of a possible unconstitutional situation and not about
repression, i.e., about the removal of an unconstitutional situation. A conflict with other law is
not a problem with respect to the place of such treaties within the application hierarchy of Czech
law (pursuant to Art. 10 of the Constitution conventio derogat legi). The provision of Art.  71e of
the Act on the Constitutional Court does not require the Constitutional Court to state in its
finding which provision(s) of an international treaty are considered to be in conflict with the
constitutional order; it does, however, require the listing of the specific constitutional
provisions with which a conflict is found. In this way, the unconstitutional elements of an
international treaty will be indirectly identified (unless this occurs in the statement). It is
not, however, impossible (the practice of delivering statements is still developing) that the
general statement under Art.  71e(1) of the Act on the Constitutional Court will combine with an
enumeration of the problematic provisions of a treaty or, by contrast, an enumeration of those
provisions which are found to be constitutionally all right.


It appears (so far only in the literature) that another contested issue is what majority is
necessary to carry the decision of the Constitutional Court in this matter. According to one of the
opinions,[40] the principle in favorem conventionis should be applied,[41] similarly to judicial
review of laws. This is based on the prerequisite that the President and the government will be
signing treaties that conform to the Constitution and that the contrary needs to be proved. This is
based, under Art. 13 of the Act on the Constitutional Court, on the qualified majority (i.e., nine
votes). An interesting position is taken by another commentary,[42] which probably favours the
standpoint that the qualified majority must be reached in order to express the conformity (or –
better – the incontestability) of an international treaty with the constitutional order.[43] In
theory, the ratification of the Lisbon Treaty could be blocked by two votes if the quorum is 10
judges or by 7 votes if the quorum is 15 judges. The decision would, thus, be made by the notorious
and egregious “relevant minority.”[44] It will, therefore, also be important how this issue is
clarified.


7. Addendum


During the author’s proof of this study the Constitutional Court delivered its judgment. Hitherto
it is not at the disposal its full wording.[45] On the basis of the announced parts of the
ruling[46] we can state that the most of the procedural questions treated in this study were
answered in the first part of the ruling.[47] In this respect, the Court especially pointed out,
that it concentrates its review only on those provisions of the international treaty whose
accordance with the constitutional order the petitioner expressly contested, and where, in an
effort to meet the burden of allegation, it supported its claims with constitutional law arguments.
The Constitutional Court also stated more precisely that in this review it did not intend, for a
number of reasons, to distinguish between the provisions of the Treaty of Lisbon described as
“normatively” old or new, i.e. it reviewed all those provisions of the Treaty of Lisbon that the
petitioner properly contested. Important is an additional statement of the Constitutional Court,
that it can review whether an act by bodies of the Union exceed the powers that the Czech Republic
transferred to the European Union under Art. 10a of the Constitution, however only in utterly
exceptional cases.


Thus, the findings (in a narrow sense) sounds as follows: The Treaty of Lisbon amending the Treaty
on European Union and the Treaty establishing the European Community in Art. 2 par. 1 (originally
Art. 2a par. 1), Art. 4 par. 2 (originally Art. 2c), Art. 352 par. 1 (originally Art. 308 par. 1),
Art. 83 (originally Art. 69b par. 1) and Art. 216 (originally Art. 188l) of the TFEU, as amended by
the Treaty of Lisbon, in Art. 2 (originally Art. 1a), Art. 7 and Art. 48 par. 6 and 7 of the TEU,
as amended by the Treaty of Lisbon, and the Charter of Fundamental Rights of the European Union is
not in conflict with the constitutional order.


Thus, the story of the Lisbon Treaty will continue. If the process of approval of the ratification
was successful in both the Senate and the Chamber of Deputies, there will be waiting President
Václav Klaus at the end.[48] According to him, any discussion on when the Lisbon Treaty will be
passed or rejected by the Czech Republic is pointless now because of the Irish referendum.[49]


________________________________

[1] The following abbreviations in this study will be used: „Sb.“ as Collection of Laws, the Czech
official journal for promulgation of legal enactments, “TEU” as “the Treaty on European Union”,
“TFEU” as the Treaty on the

Functioning of the European Union, “the Constitution of the Czech Republic” as “the Constitution”.

[2] The legal system of the Czech Republic does not allow for a subsequent constitutional review of
international treaties. However, the decisions of the Constitutional Court have already shown that
this should not obstruct the protection of fundamental rights of individuals by means of
constitutional complaints. Cf. the finding II. ÚS 405/02 of 2003 (available at nalus.usoud.cz in
Czech or at www.usoud.cz in English) on the issue of Slovak pensions paid to Czech citizens.

[3] The English versions of the Constitution of the Czech Republic, the Act on the Constitutional
Court and other regulations are available online at: http://www.psp.cz/cgi-bin/eng/sqw/hp.sqw?k=31.

[4] In actual practice, there has only been one petition filed for reviewing the conformity of the
international treaty on the accession of the Czech Republic to the EU. This, however, could not be
heard (Pl. ÚS 1/04, cf. nalus.usoud.cz) because it was filed [DEL: too late :DEL] after the
deadline for its submission. In the case of the “European constitution,” the expected proposal
could not even be filed because of the failure of the proposal in the national referenda in France
and the Netherlands. The attempt of the President to start proceedings on the “European
constitution” was dealt with by the Constitutional Court “in front of the gates”: informally, in
the form of a letter, which is a suitable manner of responding to a letter.

[5] It seems as if this unintelligible form was meant to cover up the fact that the Lisbon Treaty
takes over a significant part of the “European constitution” and should simultaneously serve as a
prevention against holding referenda on a text which cannot be grasped without the consolidated
texts of both treaties.

[6] This is the so-called Denksporterkenntniss from 1994 (G 135/93 VfGH), which concluded that a
legal regulation is in conflict with the principle of the legal state if “In order to find out its
sense, extensive knowledge of constitutional law, qualified legal expertise and experience, as well
as archivists’ diligence are needed” or where the understanding depends on “exceptional
methodological abilities and a certain pleasure of solving puzzles.”

[7] T. Oppermann: Die Europäische Union von Lissabon. DVBl., 2008, vol. 8, p. 476 uses the fitting
description as “an unreadable monster” (ein unlesbares Monstrum).

[8] However, if common people read Article 5 of the Treaty, which explains the secrets of the
numbering system, the changes in referencing, etc., they will not be really encouraged to read on,
especially if they encounter the “horizontal changes” specified in Article 2 which further
obfuscate the text.

[9] Otherwise it might review the constitutionality of provisions identified differently from the
petitioner. It will be only the official, i.e., the “consolidated,” text of both new treaties that
will make the primary EU law again user-friendly for EU citizens. This version, however, was
published in the Official Journal of EU only on 9 May 2008 (208/C 115/01), i.e., at a time when the
Senate’s petition had already been submitted to the Constitutional Court.

[10] For a detailed analysis, see: House of Lords. European Union Committee. The Treaty of Lisbon:
an impact assessment. HL Paper 62-I (The Report) a 62-II (Evidence). The literature states that 95
to 99 per cent of the content of the European constitutional treaty has been taken over (“saved”).
For more details, see e.g., Terhechte, J. Ph.: Der Vertrag von Lissabon: Grundlegende
Verfassungsurkunde der europäischen Rechtsgemeinschaft oder technischer Änderungsvertrag? EuR,
2008, No. 2, p. 189, which gives the figure as 95 per cent. J. P. Bonde, in the electronic version
of his study, New name – Same content. The Lisbon Treaty – is it also an EU Constitution? 2^nd ed.
2007, p. 8 (http://www.j.dk/exp/images/bondes/BOOK_New_name_-_same_content_EN.pdf), offers the
opinion of A. Stubb, a Finnish representative at inter-governmental conferences for the preparation
of the treaty, that the commonality of both texts is 99 per cent. Cf. also Bergmann, J.: Bericht
aus Europa: Vertrag von Lisabon und aktuelle Rechtsprechung. DÖV, 2008, No.  8, p. 305-309. It may
basically be said that analyses agree in numbers. What they differ in is just the conclusion
whether this constitutes a success (the saving of the European constitutional treaty) or a failure
to respect the opinions of EU citizens.

[11] Detailed description and documentation is provided in Winkelmann, I.: Das Maastricht-Urteil
des Bundesverfassungsgerichts vom 12. Oktober 1993. Berlin 1994.

[12] Its text was included in the annex to the decision No. 257 from the 33^rd meeting of the
Senate’s Committee for EU affairs. The senate approved this proposal during its meeting on 24 April
2008, with the majority of 48 votes, with 4 votes against (out of 70 senators present).

[13] An example of how thorough a proposal in such a serious matter may be can be provided by the
situation in Germany: the motion by MP P. Gauweiler (this includes other issues in addition to the
constitutional complaint) has over 300 pages; S. Hassel-Reusing’s constitutional complaint has 114
pages; D. Dehma’s complaint has 63 pages; the motion by Die Linke has 61 pages. Not intending to
criticize that honorable institution, the extent of the proposal of the Senate is surprising,
especially with a view to what excellent experts the Senate has, what attention was paid to this
Treaty in its bodies, and what the level of the plenary debate was.

[14] The formulation of the statement of the ruling (terms of the judgement) is called „petit“ in
Czech. The Czech theory of procedural law traditionally distinguishes between such a „petit“ and
the giving reasons for it. The Senate requests in its proposal of the statement of the ruling
(petit) that the Constitutional Court should decide “in the sense of Art. 87 para. 2 of the
Constitution, as amended by the constitutional acts No. 395/2001 Sb., and Art.  71e of the Act No.
182/1993 Sb., on the Constitutional Court, as amended by the Act No. 48/2002 Sb., on the conformity
of the Treaty with the constitutional order.”

[15] The Constitutional Court is not the state’s notary; therefore, any proposal may only request
the court to declare non-correspondence. In the opposite case, the Constitutional Court will not
turn down anything (just as it will not cancel anything in the event of granting the motion), it
will simply – with a view to the nature of the preventive nature of the review – declare
correspondence, thereby dismissing the motion. For more details, see Filip/Holländer/Šimíček: Zákon
o Ústavním soudu. Komentář [Commentary to the Act on Constitutional Court]. 2^nd ed. C.H.Beck,
Praha 2007, pp. 485-487. It will therefore be interesting to observe how the Constitutional Court
will deal with this formulation.

[16] Of course, one may come across this in the practice of constitutional courts, e.g., where
someone wants to convince someone else about the constitutionality of, for instance, a law.
However, a constitutional court will be requested to cancel such a law as unconstitutional,
although it will be expected that such a petition will be turned down, thereby confirming the
constitutionality of such an act.

[17] I.e., being asked to choose himself whether to agree with the petition in full or in part, or
whether to dismiss it in full or in part. By all means, the proposal of the statement shall be
definite and unequivocal. Its formulation in such a form is the most important task of the
petitioner.

[18] In the case of treaties, the government may, in pursuance to Article 24 of the EU Treaty and
Article 300 of the EC Treaty, ask for an opinion from the European Court of Justice.

[19] On the other hand, one cannot fail to see the application of the possibility to defer the
ratification of the Lisbon Treaty by means of a petition to the Constitutional Court. Unlike the
so-called concordat with the Vatican, which was “removed” by a decision of the Chamber of the
Representatives, the majority of Senators did not refuse to give their approval but referred the
matter to the Constitutional Court.

[20] Cf. Filip/Holländer/Šimíček: op. cit., pp. 457-489 and Wagnerová, E. a kol.: Zákon o Ústavním
soudu s komentářem [The Act on Constitutional Court with a Commentary] ASPI, Praha 2007, pp.
298-315.

[21] Bodin, J.: Six Books of the Commonwealth. Oxford 1955. Cf. mainly chapter 10 of the first book
on the properties of sovereignty (p. 40n).

[22] To be correct, the Senate does not claim this (see above); it actually just asks the question
whether this is not the case, although the relevant section of the petition does not finish with a
question mark. The possible ratification of the Lisbon Treaty is challenged but not explicitly.

[23] President Václav Klaus, as a party to the proceeding according to art. 71c of the
Constitutional Court Act supported the Senate’s arguments. According to his opinion, the Lisbon
Treaty is at variance with the spirit of the Constitution and its "material core"  and will push
the EU closer to a federative state.  The remaining [DEL: parties :DEL] party to the proceedings,
i.e. the Chamber of Deputies of the Parliament represented by its Chairman Miloslav Vlček took
rather neutral position. In contrast to the President’s argumentation, the Government rejected the
Senate’s objections and tried to give reasons for conformity of the Lisbon Treaty with the
constitutional order.

[24] Regardless of the fact that the entire petition would have to be divided among several
reporting judges, just as in the case of judicial review of the constitutionality of the Act No.
261/2007 Sb. on Reform of Public Budgets.

[25] This was the case in a few findings as e.g., the finding No. 131/1994 Sb. (concerning the Act
No. 229/1991 Sb., on Land, as subsequently amended), the finding No. 410/2001 Sb. (concerning the
sugar quotas) as well as the finding No. 2/2008 Sb. (concerning the Act No. 261/2007 Sb., on Reform
of Public Budgets).

[26] The Constitutional Court uses the following formulation: “Where the petitioner in the
proceedings on the review of norms cannot bear the burden of alleged unconstitutionality, such a
petition must be considered as in conflict with Art.  34(1) of the Act No. 182/1993 Sb., and thus
as incapable of being discussed with respect to the issue in the matter” (finding No. 512/2004
Sb.). One can object to the transfer of terms from civil proceedings (i.e., “contested” and
“uncontested” proceedings) into the abstract review of an international treaty which has not yet
been ratified.”

[27] Cf. Filip/Holländer/Šimíček: op. cit. p. 483. Wagnerová, E. a kol.: op. cit., p. 312,
tentatively admits that the Constitutional Court could carry out a “remaining” review with the
result of creating the situation rei iudicatae.

[28] In this case, this concerns mainly the President of the Czech Republic, whose position on the
Senate’s petition (available online at www.hrad.cz) specifies the significant problems of the
subject matter of the proceedings. This would be possible if the Constitutional Court decided that
the Lisbon Treaty is in conformity with the constitutional order and if the process of approval of
the ratification was successful in both the Senate and the Chamber of Deputies.

[29] A suitable example consists of the development of judicial decisions of the US Supreme Court
and its doctrines of residual powers of states and, above all, implied powers of the federation.
The latter provided inspiration for the European Court of Justice as early as 1956 (cf. the
decision in Fédération Charbonnière de Belgique v High Authority of the European Coal and Steel
Community. – Case 8-55 – derivation of the competence to conclude international treaties from the
competence to regulate a certain issue within the EC).

[30] Unlike Poland and Great Britain, the Czech Republic did not negotiate any exceptions. Its
declarations concerning the Charter of Fundamental Rights of the EU are merely parts of the textual
organization of the Lisbon Treaty, with individual states confirming that they have understood the
text properly.

[31] Cf. Filip/Holländer/Šimíček: op. cit. p. 481n.

[32] In this connection, I emphasize the procedural aspect rather than the content. One cannot,
however, fail to consider the Protocol on the application of the Charter of Fundamental Rights of
the EU in Poland and Great Britain, the role of the future Court of Justice of the EU as an engine
for integration, and the well-known doctrine of the Czech Constitutional Court, which deals not
with individual issues but with everything “in aggregate” (cf. the finding No. 64/2001 Sb. on the
election reform). This (i.e., the rule of “what is too numerous becomes excessive”) is what the
extensive argumentation of MP Gauweiler is clearly based on (cf. his petition to the German
Constitutional Court).

[33] Cf. Filip, J.: Nález č. 403/2002 Sb. jako rukavice hozená ústavodárci Ústavním soudem. Právní
zpravodaj, roč. 2002, No. 11.

[34] The term “conformity” (or “accordance”) is not suitable for this kind of relation, because
international treaties do not constitute executive instruments for the constitution. For the
purpose of preserving constitutionality, it is sufficient that an international treaty is not in
conflict with the constitutional order. Some other construction is not, because of the nature of
the matter, even conceivable.

[35] This is, however, relative, since the vast majority of its provisions form a part of the
Lisbon Treaty.

[36] Not only according to the famous dictum that, in the case of disapproval by such a big member
state as France (moreover, prior to national elections), it is bad luck for the treaty, while in
the case of disapproval by a small member state, it is bad luck for such a member state.

[37] It is literally taken over from No. IV-443 of the past European Constitutional Treaty. The
commentary (Note No. 4, p. 621), however, expresses doubts about the meaning of such a provision.
Now we know it: identical content is submitted again under a new and camouflaged label.

[38] The ratification cannot take the form of a proposal of the statement of the ruling in the
Senate’s petition, from which it is not clear whether the treaty is, in the Senate’s opinion,
problematic or not.

[39] For more details, see Filip/Holländer/Šimíček: op. cit. p. 484-489.

[40] Filip/Holländer/Šimíček: op. cit. p. 72.

[41] Pursuant to Art. 10 of the Constitution if an international treaty provides something other
than that which a statute provides, the treaty shall apply.

[42] I. Pospíšil in Wagnerová, E. a kol.: op. cit. p. 314.

[43] This is the logical consequence of the opinion that the Constitutional Court may review not
only the contested parts of a treaty but also the rest. Wagnerová, E. a kol.: op. cit. p. 312.

[44] Cf. the finding of the Constitutional Court 3/96 of 1996 (available online at
http://nalus.usoud.cz) on electoral deposits and the various opinions in this matter. If the
required qualified majority of 9 votes is not reached, the over-voted minority is giving the
reasoning of the ruling of the Court.

[45] The abstract of the ruling has been published yet on the web of the Constitutional Court
(http://angl.concourt.cz/angl_verze/doc/pl-19-08.php).

[46] According to the tradition originated from the period of the Austro-Hungarian monarchy, the
judgments of the Constitutional Court are called „nález“ in Czech, what is matching to the term
„finding“ in English or “das Erkenntiss” in German.

[47] The ruling as announced was unanimous and without any form of a separate vote, thus the
deliberations sub 6 concerning the qualified majority has remained in the meanwhile merely a
problem of theory.

[48] Immediately after the Court’s decision the President expressed its hope, that a new motion
will be submitted by a group of Senators or Deputies. He discerns a lot of another new and profound
reasons the Constitutional Court did not deal with. In such a case the new motion in the same
matter is not excluded (so-called inadmissible petition in sense of res iudicata).

[49] Standpoint of the President that concerns the future potential signature of instruments of
ratification of the Lisbon Treaty is coincident with the position of the President of Poland L.
Kaczyński. They both would probably sign the Lisbon Treaty only if it were ratified by Ireland.