CYIL 2010

EMIL RUFFER CYIL 1 ȍ2010Ȏ which is, however, without prejudice to his relationship to the Government and its opinion in the subject matter. The amendment also introduces the so-called “conditional (or binding) mandate” of the Government in cases of certain decision-making at the Council or the European Council. In some cases the mandate of the representative of the Government to vote for a proposal of a decision in the Council or in the European Council will be conditioned on the granting of previous assent by both Chambers of the Parliament. Without the assent of the Chamber of Deputies and the Senate, the representative of the Government will not have the mandate to vote for the proposal concerned. This mechanism should apply primarily in cases involving the application of the “passerelle clauses” , which allow the voting procedure in the Council to be changed from a unanimous vote to a qualified majority vote or which allow the procedure for the adoption of legislative acts to be changed from a special legislative procedure to an ordinary legislative procedure, and also in cases of the application of the “ flexibility clause ” according to Art. 352 TFEU. The Treaty of Lisbon was given assent in the Senate on 6 May 2009, immediately after the approval of the Amendment to the Rules of Procedure. 65 Now the Treaty was “cleared” for ratification by both Chambers of the Parliament and could be submitted to the Czech President, Mr Václav Klaus, for ratification. The Government submitted the instrument of ratification to the Office of the President on 22 May 2009 (by means of a letter from the Ministry of Foreign Affairs, which is the standard procedure). However, the ratification process was still far from complete, since a group of Senators who had voted against the Treaty announced already on 6 May 2009 that they intend to challenge the Treaty again before the Constitutional Court. The President therefore declared, after meeting with the group of Senators on the same day, that he intended to wait two months with his signature of the instrument of ratification, until the Senators have filed the petition with the Constitutional Court. In his letter to the Minister of Foreign Affairs, dated 27 May 2009, the President formally confirmed the information he had provided to the media on 6 May 2009 and the ratification was put on hold once again. The intention of the President to provide the group of Senators with a certain time limit to file their petition was as such in conformity with the Constitution, since had he ratified the Treaty immediately after it has been submitted to him (which he could have done), he would have prevented the Senators from filing their petition. It is not admissible for a group of Deputies or Senators to challenge an international treaty after it has been ratified, 66 so an appropriate time limit provided by the 65 Resolution No. 154 of 6 May 2009. Of the 79 Senators present (from a total of 81), 54 voted in favour, 20 against, and 5 abstained. The required 3/5 majority was 48 votes in favour. 66 Art. 87 (2) of the Constitution clearly states that an international treaty can be reviewed by the Constitutional Court before its ratification; Sec. 71a (1) b) of the Constitutional Court Act explicitly stipulates that a group of Senators or Deputies may file a petition for the review of an international treaty from the time it has received consent from the Parliament until the time it has been ratified by the President.

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