Since we did not meet on 28 October, we will return to the texts on the Czech constitutional identity in this session. Please read (or refresh your notes) the article by Kosař & Vyhnánek, and have a look also at the text by Přibáň - all these texts can be downloaded below.

Apart from that, there are no new assigned readings. Please go through your readings for previous classes, catch up with those you have not managed to read, and prepare discussion points for our class. For those who want to go further: find another author who has written about constitutional identity and try to understand their point of view - you can then introduce their ideas to us during class. 

Questions to Kosař Vyhnánek and Přibáň, November 18^th, 2020 (by Karel Thygessen)

Last time we were talking, inter alia, about the possible existence of “Constitutional Identity”; to me this identity exists, but shall be understood as a technical processual break assisted by legal experts providing thus for just “Legal Identity”, the authors come with other explanation though…

In the “Czech article” the authors define “Constitutional Identity” in Czech Republic upon three aspects:

• rigid interpretation based on “Eternity Clause” and CCC case law;
• broader version based on “Material Core” of the Constitution;
• and popular identity based on nations´ history and other narratives… 

Similar categories are dealt with in the “English article”. There the aspects defining Constitutional Identity are:

• legal identity,
• political identity, and
• popular identity (pp. 110, 111).

As to the English Article:

1)      Do you agree to the fact that whilst “Legal Identity/Constitutionalism ” is more important in the Czech Rep. compared to “Political Identity/Constitutionalism” also the “Popular Identity/Constitutionalism” is weak and this weakness is a distinctive feature of Czech system which can indeed result in clashes between elites and the people??? (p. 111);

2)      What sort of “Constitutional Patriotism” (p. 95) can we have in the Czech Republic if 30 percent of population are of Slavic origin, another 30 per cents are Celto-Germanic and the rest are various minorities???;

3)      Is it good to support anything like “popular” part of “Constitutional Identity” in situation we can see abuses in Poland and Hungary??? (p. 112);

As to the Czech Article:

1)    What do you think about the “Clash of Sovereignties” and about the concept within EU Law of “Constitutional Identity Protection” as defined in Article 4/2 TEU in respect to “National Identities” and, narrowly, to “Constitutional Identities” of Member States??? Don’t you think that this identity, as well as national law counterparts, shall pertain to something like safeguard and definition and use of the tool shall indeed be done exclusively by legal experts, the “Legal Identity” being the only reasonable part of “Constitutional Identity” and “National Identity” concepts??? (p. 854);

2)    Do you agree with the main argument of the Czech Article, that it is not probable that there will be a clash between CCC and ECJ as to the “Constitutional Identity” concept, and that more probable is internal conflict between “Popular Constitutional Identity/People” on one hand and “Legal Constitutional Identity/Legal Experts” on the other hand??? (p. 855);

3)    Though there is a limited chance of dispute between CCC and ECJ, the authors argue that CCC is comparatively very activist (p. 861) and in some cases CCC is capable of “drastic interpretation of Constitution” (p. 862); Can you see a danger here of drastic stance even in case of clash between the ECJ and CCC??? (p. 862);

4)    As concerns the case Dreithaler (p. 860), do you think that CCC has acted in accordance with certain aspect of “Constitutional Identity” defined by Jacobsohn, who stated that such identity is not constituted solely by the past history of the nation but it also is constructed upon the will to overcome this history (p. 856)???;

5)    According to Preuss, “Material Core” is an equivalent of the “Constitutional Identity” but is not sufficiently defined and what is more, there are reasonable criteria lacking for a definition, do you agree??? (p. 859);

6)    Why is that that in some regimes there is no Eternity Clause included to the Constitution at all???; Why do we have, in the Czech “Eternity Clause”, only a limited number of values and the scope is only broadened via CCC case law and via doctrinal sources??? (p. 858, 859); Even if the two concepts are not the same, shall there be more unity between “Material Core” and “Eternity Clause” in the Czech Republic?? If we understand a “Material Core” as a group of ideals protected by Constitution and “Eternity Clause” as ban on change of basic principles of constitutional order (Molek quoted by Kosař and Vyhnánek, p. 859), shall the possible ban be not broader???

7)   “Popular Identity” crises aggravated by Financial Crisis, Refugee Crisis, and now by COVID crisis???;

Questions Přibáň

1)      Do you agree with the fact that there is global shift, as the author observes, in rejection of absolutist notion of sovereignty??? Sovereignty is not “a matter of either or”, it rather is a practical matter??? (p. 189, Lisbon I. case) And/or a key manifestation of state sovereignty is “ability to cede certain powers temporarily or permanently”??? (pp.189, 193, Lisbon II. Case, Memorandum attached to CR Application);

2)      Similarly, as to the regional level, after the Treaty of Lisbon, do we have European Post-Sovereign Constitutionalism coupled with Self-Limited Constitutional Sovereignty of Member States (p. 184) or are there still disputes between monist and dualist conceptions dividing Member States, the further dynamics being provided via the doctrine of “States as Masters of the Treaty??? (p. 190); Do you agree with FCC declaration that “what happens to Europe is for Europe to decide (and shall be under EUCJ jurisdiction)” or would you rather stick to the CCC interpretation invoking “commonly shared values and principles of democratic constitutional state and Rule of Law to be pluralistically applicable in the EU??? (p. 195). What do you think about the Kompetenz der Kompetenz??? (pp. 185, 195);

3)      Can the lacking political science classification of the EU as organization be legitimized by the fact of parallel regionalization processes in other parts of the World, the ultimate goal being overall Globalization??? Can we defend the stance of FCC, on the other hand, that ignores supranational and multi-level governance even if these two are deemed core principles of current EU functioning??? (p. 195);

4)      Do you agree with the fact that any system based on concentrated model of constitutional judiciary is more prone to critiques based on lack of democratic legitimacy – isn´t there a lack of EU democratic legitimacy confronted with equally missing legitimacy of the domestic court of last instance??? Based on the previous, can be such lack solved via “legitimacy via efficiency - FCC” or via “set of shared values - CC”??? (p. 195);

5)      Are the different stances towards EU Law supremacy and EU political bodies and their competences in Czech Republic and in Germany vested in different historical narratives, as indirectly suggested by Přibáň (democratic Western Germany x communist Czechoslovakia and Czech Rep. entering the exclusive club of EU Member States)??? (p. 185);

6)      Why do you think there is a clash between CCC and SAC (Supreme Administrative Court) in Czech Republic, whereby SAC is possibly trying to disjoint overall positive stance of CCC towards ECJ???

LIST of CASES

1. FCC Solange
2. FCC Maastricht
3. FCC Lisbon case
4. CCC Holubec
5. CCC Lisbon I and Lisbon II
6. CCC Melčák
7. ECJ Landtova - C-399/09

 See you on Wednesday! :)