CYIL 2010

EMIL RUFFER CYIL 1 ȍ2010Ȏ Court should come into consideration as ultima ratio, i.e., in a situation where the scope of discretion was clearly exceeded.” 31  The nature and classification of EU powers (competence) As regards the first group of objections from the Senate (exclusive competence under Art. 2 (1) and shared competence under Art. 4 (2) TFEU), the Constitutional Court emphasized as a starting point that “the Treaty of Lisbon itself confirms that legislative competence – i.e., the authority to amend fundamental regulations, remains with the Member States ”, and also stressed the principal of conferral enshrined in Art. 5 (2) TEU . 32 The Court went on to state that the category of the EU’s exclusive powers is not a new invention, but was already present in the previous Treaties. 33 Further, the Treaty of Lisbon did not establish an unlimited competence clause in the area of shared competence, but only declared the main areas in which shared competence can be exercised, which must be read in conjunction with special Treaty provisions. 34 The Court then confirmed that in the context of other provisions of the Treaty of Lisbon [namely Art. 2 (6) TFEU, Art. 5 (2) TEU, Protocol on the application of the principles of subsidiarity and proportionality and Protocol on the exercise of shared competence], it is evident that the Treaty of Lisbon provides a sufficiently certain normative framework for determining the scope in which the Czech Republic will transfer certain of its powers to the EU. 35  Flexibility clause in Art. 352 TFEU As regards Art. 352 (1) TFEU, in order to asses the petitioner’s allegation that this provision enabled the Union to exceed its competence and constituted a “blanket norm”, the Constitutional Court firstly explored the wider context of this provision and stated that a transfer of “constitutional” competence to an international organization would be impermissible. However, in the case of the Treaty of Lisbon this would not occur: amendment of the primary Treaties would still be possible only with the consent of all EU Member States, which thus remain “Masters of the Treaties”; moreover, the possibility of withdrawal from the EU is expressly established (Art. 50 TEU). 36 31 Ibid., para. 109 (emphasis added). 32 Ibid., para. 132. Art. 5 (2) TEU provides: “Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. ” 33 Ibid., para. 133. 34 Ibid., paras. 134-137. 35 Ibid., paras. 136-140. The Court also reiterated at this point that “ in exceptional cases, it can func tion as an ultima ratio body and review whether an act of the Union has exceeded the limits [of powers] which the Czech Republic transferred to the EU under Art. 10a of the Constitution” and openly admitted that it drew inspiration for this approach from the doctrine of German Constitutional Court, namely from its judgements of 22 October 1986 (“Solange II”, BVerfGE 73, 339) and of 12 October 1993 (“Maastricht”, BVerfGE 89, 155). 36 Ibid., paras. 145-146.

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