CYIL 2010

THE QUEST OF THE LISBON TREATY IN THE CZECH REPUBLIC … focus only on the petition from the Senate, the position of the Government and the arguments of the President, and of course on the judgement of the Court and the manner in which it reflected the arguments presented by the parties. (i) Petition from the Senate By way of its Resolution No. 379 of 24 April 2008, the Senate resolved to petition the Constitutional Court to assess the conformity of the Treaty of Lisbon with the constitutional order of the Czech Republic pursuant to Art. 87 (2) of the Constitution. The Senate requested the Constitutional Court to review whether the Treaty of Lisbon was in conformity with the constitutional character of the Czech Republic as a sovereign, unitary and democratic state under the rule of law according to Art. 1(1) of the Constitution and whether the Treaty would not lead to a change in the fundamental requisites of a democratic state under the rule of law, such change being prohibited under Art. 9 (2) of the Constitution. In its brief petition (4 pages in total), the Senate drew attention to certain areas or provisions of the Treaty of Lisbon that could potentially be in conflict with the constitutional order of the Czech Republic, namely: the classification of competences, exclusive competences of the Union and indeterminate boundaries of shared competences; the “flexibility clause” in Art. 352 of the Treaty on the Functioning of the European Union (hereinafter the “TFEU”) 12 and its application; the simplified revision procedure for adopting amendments to the Treaties contained in Art. 48 (6)-(7) of the Treaty on European Union (hereinafter the “TEU”), incl. the so-called bridging clause or passerelle ; 13 the binding nature on the Czech Republic of international agreements concluded by the Union and the expansion of the legal grounds (competence) for their conclusion; the nature and impacts of the EU Charter; the principles on which the Union is founded (Art. 2 TEU) and the and the Chamber informed the Court that, inter alia , the deadlines for discussion in the committees were extended and that the Committee for European Affairs decided to suspend the discussion of the Treaty of Lisbon pending the outcome of the proceedings. 12 According to this provision, “ [i]f action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament.” 13 When proceeding according to Art. 48 (7) TEU (the so-called passerelle clause), a change in voting procedure (from unanimous voting to qualified majority voting) or a change in legislative procedure (from special to ordinary legislative procedure) may occur within the sphere of competencies already transferred to the level of the Union. The respective measure is adopted unanimously by the European Council after obtaining consent from the European Parliament. Before such measure can be adopted, national parliaments must be notified of such proposal. If any national parliament makes known its opposition to the proposal within six months of this notification, the measure is not adopted.

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