CYIL 2010

THE QUEST OF THE LISBON TREATY IN THE CZECH REPUBLIC … principle of a Euro-conforming interpretation of Czech constitutional law, thus following its previous case-law according to which when interpreting domestic provisions, incl. those of the constitutional order, such interpretation as ensures compliance with EU law obligations must be chosen. 26 However, the Constitutional Court also noted that in the event of a clear conflict between the Constitution, especially its material core [Art. 9 (2)-(3) of the Constitution], and EU law that cannot be cured by a reasonable interpretation, the constitutional order of the Czech In this section, the Constitutional Court had to address the sensitive issue of state sovereignty and its possible limitations. The Court provided a thorough analysis of the concept of sovereignty, 28 highlighted the concept of “pooled sovereignty” in the EU and remarked, inter alia , that “from a modern constitutional law viewpoint”, sovereignty need not mean only “independence of the state power from any other power, both externally (in foreign relations), and in internal matters” , adding that “Sovereignty is (probably) no longer understood like this in any traditional democratic country, and stricto sensu no country, including the USA, would fulfil the elements of sovereignty. ” 29 T he Court concluded its analysis by stating that “the transfer of certain state competences, that arises from the free will of the sovereign, and will continue to be exercised with the sovereign’s participation in a manner that is agreed on in advance and that is reviewable, is not a conceptual weakening of the sovereignty of a state, but, on the contrary, can lead to strengthening it within the joint actions of an integrated whole. The EU’s integration process is not taking place in a radical manner that would generally mean the ‘loss’ of national sovereignty; rather, it is an evolutionary process and, among other things, a reaction to increasing globalization in the world. ” 30 The Court went on to say that the limit on transfers of powers to an international organization under Art. 10a of the Constitution consists of the essential requirements of a sovereign, democratic state governed by the rule of law under Art. 9 (2) and Art. 1 (1) of the Constitution. However, the Court refused to become a participant in political disputes concerning transfers of competences by stating: “These limits should be left primarily to the legislature to specify, because this is a priori a political question which provides the legislature with wide discretion; interference by the Constitutional primary law (incl. its supremacy and primacy over conflicting domestic provisions) in the Czech legal order. I would not agree with these arguments, since the Constitutional Court dealt exclusively with a situation involving a review of the Treaty of Lisbon before its entry into force, and did not deal with such Treaty‘s effects on the legal order after it had become a valid and fully effective source of primary law. However, the issue remains somewhat opaque and a future clarification would be very welcome. 26 Cf. namely the judgement of 3 May 2006, Pl. ÚS 66/04 (No. 434/2006 Coll., the “European Arrest Warrant” case). 27 Ibid., para. 85. 28 Ibid., paras. 98-108. 29 Ibid., para. 107. 30 Ibid., para. 108 (emphasis added). Republic, especially its material core, must take precedence. 27  Limits on transfer of sovereign powers (competence)

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