CYIL 2010

THE QUEST OF THE LISBON TREATY IN THE CZECH REPUBLIC … Constitution must be the same. However, the President considered it impossible for ordinary international treaties under Art. 49 of the Constitution to have the force of a constitutional act, let alone to have precedence over a constitutional act. As part of the legal order, they have precedence over statutes, but the constitutional order is still above them and cannot be affected. In Section B of his written observations, the President addressed the issues of sovereignty (the question of whether the Czech Republic will, even after the Treaty of Lisbon enters into force, remain a sovereign state and a full subject of the international community), direct effect of EU regulations, status of the EU Charter and its effects, the nature of EU competences and limits on their transfer from the state level, and the new decision- making procedures at EU institutions (namely the European Council). The President further expressed his doubts as to whether the EU would still remain an international organisation or whether it would acquire the characteristics of a “federal state”. Consequently, he raised the issue of whether Art. 10a of the Constitution in fact even permitted a transfer of any powers of institutions of the Czech Republic to an entity that is undergoing such transformation. Finally, in Section C of his submission, the President addressed the issue of the manner in which the Treaty of Lisbon should be ratified in the Czech Republic. He claimed that since the Treaty on Accession to the EU was subject to approval in a referendum, 17 and the Treaty of Lisbon fundamentally changes the terms under which the Czech Republic had acceded to the EU in 2004, it may be necessary to approve the Treaty of Lisbon in the same manner, i.e., in a referendum. (iv) Judgement of the Constitutional Court The judgement was delivered on 26 November 2009 18 and dealt in considerable detail with all six of the problem areas that had only been briefly outlined by the Senate. However, before getting to the merits of the case, the Constitutional Court had to deal with two significant procedural issues, raised both by the President and the Government. Firstly, the Court had to decide whether it would review only the challenged (or “highlighted”) 19 provisions of the Treaty of Lisbon or whether it would review it in its entirety. Secondly, there was the question of defining the 17 Constitutional Act No. 515/2002 Coll., on a Referendum on the Accession of the Czech Republic to the European Union. 18 Judgement of 26 November 2008, Pl. ÚS 19/08 (No. 446/2008 Coll.). 19 In fact, the Senate‘s petition did not openly challenge the unconstitutionality of the selected provisions of the Treaty of Lisbon by unequivocally stating that they were in conflict with the constitutional order and by supporting these claims with legal arguments, it merely expressed some doubts and concerns about their compliance with the Constitution, thus giving the petition a peculiar twist. The Senate asked the Court to declare whether the “ Treaty of Lisbon was in compliance with the Constitution ”, rather than openly asserting any conflict of its provisions with the Constitution and asking for a decla ration thereof from the Court, thereby seeking an assurance from the Court that would lift the shadow of a doubt surrounding the Treaty.

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