CYIL 2010

EMIL RUFFER CYIL 1 ȍ2010Ȏ constitutional framework against which the provisions of the Lisbon Treaty would be reviewed.  Scope of review When dealing with the first procedural issue, the Court rejected the parties’ arguments that the nature of the proceeding was non-adversarial, 20 stating that this is a concept from civil trials, not transferable to this altogether unique proceeding. Analogously to proceedings on the review of norms, the Constitutional Court felt itself bound by the scope of the petition to open proceedings, which meant that it would focus its review only on those provisions of the international treaty whose consistency with the constitutional order the petitioner had expressly contested, and where, in an effort to meet the burden of proof, the petitioner had supported its claims with constitutional law arguments . 21 The Court concurrently indicated that it would take a restrictive approach to addressing the issue of the impediment of rei iudicatae , established for the future by this judgment in relation to other potential petitions from other petitioners concerning a review of the Treaty of Lisbon. 22  Point of reference – the constitutional order as a whole In determining the appropriate point of reference for reviewing the Treaty of Lisbon, the Constitutional Court applied, as a point of reference, the constitutional order of the Czech Republic as a whole, not only its so-called “material core” . 23 The Court went on to add, however, that the “material core” of the Constitution naturally played a primary and key role. 24 Further, the Court pointed out that the Constitution did not distinguish between “ordinary” international treaties under Art. 49 and international treaties “transferring competence” under Article 10a of the Constitution, and provided for the same procedure for reviews of both these categories, thereby supporting the conclusion of the “full-extent” review of the Treaty of Lisbon. 25 It is also relevant in this context that the Court again subscribed to the 20 This was the position of both the President and the Government, implying that the Court had an ob ligation to review all provisions of an international treaty for consistency with the entire constitutional order, thus excluding any other future review due to the impediment of rei iudicatae . 21 Pl. ÚS 19/08, paras. 74-75. 22 Ibid., para. 78. The Court indeed fulfilled its promise and in the “Lisbon II” case it dismissed signifi cant parts of the petition due to the impediment of rei iudicatae . Still, the original decision of the Court not to review the entire Treaty of Lisbon, although supported by legal arguments, seems questionable, inter alia , in the light of the exact wording of Sec. 71e (1)-(2) of the Constitutional Court Act, accord ing to which the Constitutional Court should decide whether “ the international treaty is in conflict with the constitutional order” or whether “ the international treaty is not in conflict with the consti tutional order” (which implies the whole treaty, not just its selected provisions). 23 Ibid., para. 88. The “material core” of the Constitution is not explicitly and exhaustively defined, but Art. 9(2) of the Constitution is relevant in this context, stating that “ Any changes in the essential re quirements for a democratic state governed by the rule of law are impermissible. ” (emphasis added). 24 Ibid., paras. 89 and 93. 25 Ibid., para. 90. This statement gave rise to complex discussions and criticism of the judgement among scholars and commentators as to the effects of international treaties under Art. 10a of the Constitution in the Czech legal order, and some inferred that the Court in fact rejected any privileged status of EU

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