CYIL 2010

THE QUEST OF THE LISBON TREATY IN THE CZECH REPUBLIC … The Court then stated that this was in no way altered by the “flexibility clause” under Art. 352 (1) TFEU; the possibility of adopting such a measure was limited to the objectives defined in Art. 3 TEU and was also narrowed in view of Declarations No. 41 and No. 42 contained in the Final Act of the Intergovernmental Conference . 37 T hus, the flexibility clause was not to be regarded as a blanket norm that would make it possible to circumvent Art. 10a of the Constitution ; 38 in this regard the Constitutional Court also found the institutional framework for the review of transferred powers to be adequate as concerns the practice of EU institutions and the case-law of the ECJ. 39 The Constitutional Court also observed that the Treaty of Lisbon left it entirely up to the constitutional structures of Member States to ensure that the principle of subsidiarity was respected in decision-making under the flexibility clause. Consequently, the Czech legislature had room to pass an appropriate legal regulation that would be consistent with the constitutional order. 40  Simplified revision procedure of the Treaties Concerning the Senate’s doubts regarding Art. 48 (6)-(7) TEU (simplified revision procedure), the Constitutional Court firstly pointed to Art. 48 (6) subparagraph 3 TEU, which expressly eliminated any doubts relating to Art. 10a of the Constitution, since this provision explicitly made it prohibited to “ increase the competences conferred on the Union in the Treaties ”. 41 As to the procedure under 48 (7) TEU, the Court bluntly stated that: “ conceptually we cannot even conceive of changes that would expand Union competences, because this concerns – as is obvious – only voting. However, a change to the voting procedure under Art. 48 par. 7, requiring the consent of all Heads of State at the European Council, can be blocked by a lack of consent from any parliament of a Member State. ” 42 The Court also pointed out that “ Decisions under these articles are also reviewable by the Court of Justice as regards their consistency with the Treaty itself, which proves that they are not amendments to the Treaties, but, on the contrary, the Treaties retain a higher legal force over these acts. ” 43 However, the Constitutional Court then criticized (as obiter dicta ) the absence of a statutory legislative framework that would implement 37 Ibid., para. 149. 38 Ibid., para. 150: “The Constitutional Court agrees with the government’s opinion, stated in its brief, that the flexibility clause is not a blanket norm ; in order for the Union to be able to use Art. 352 par. 1 of the Treaty on the Functioning of the EU, the following conditions must be cumulatively met for a proposed legislative act : the need to achieve one of the objectives of the EU, adopting the act must be within the poli cies defined by the primary law of the EU, it must be unanimously approved by the Council, and the consent of the European Parliament must be obtained.” (emphasis added)

39 Ibid., para. 151. 40 Ibid., para. 153.

41 Ibid., para. 160. Moreover, the Constitutional Court also added that such decision, before its entry into force, was to be “ approved by the Member States in accordance with their respective constitutional require ments ”, which constitutes an additional constitutional safeguard.

42 Ibid., para. 161. 43 Ibid., para. 162.

35