CYIL 2010

EMIL RUFFER CYIL 1 ȍ2010Ȏ As soon as it was clarified with the President that he would be satisfied with the possibility whereunder the Czech Republic would join the Protocol, the Government started intensive negotiations with the Swedish Presidency and the Council Secretariat General, and with their assistance a draft text was prepared for the European Council meeting scheduled for 29-30 October 2009. The text was included in the approved Presidency Conclusions, which stated that “ taking into account the position taken by the Czech Republic, the Heads of State or Government have agreed that they shall, at the time of the conclusion of the next Accession Treaty and in accordance with their respective constitutional requirements, attach the Protocol (in Annex I) to the Treaty on European Union and the Treaty on the Functioning of the European Union. ” 77 A detailed legal analysis of the Protocol and its effects would go beyond the topic of this article, so I will confine myself to stating that the Protocol in no way constitutes an “opt-out” or “exemption” from the EU Charter, neither for Poland and the United Kingdom as the present contracting parties, nor for the Czech Republic as a future contracting party. Rather, it is an instrument which interprets the EU Charter and makes the scope of application of the rights and principles embedded therein more precise, thus providing a safeguard against a potential extensive interpretation by the ECJ. This understanding of the Protocol is confirmed, inter alia , by the House of Lords report on the implementation of the Treaty of Lisbon. 78 As we have seen, neither the “Irish Guarantees” nor the (future) Czech accession to the Protocol constitute at this stage any amendment or change to the substance of the Treaty of Lisbon. However, they serve as interesting examples of legal creativity in search of a consensus and of the complexity of procedures at the EU level, as well as an illustration of how internal political sensitivities can end up being projected into European politics. VI. “Diversionary” - challenge against the Rules of Procedure Before the group of Senators filed its petition for the review of the Treaty of Lisbon as such, they decided to challenge the amended Rules of Procedure of the Parliament. Although they tried to link this petition to the legal challenge against the Treaty of Lisbon, this was a fairly feeble attempt, since there are two different and distinct procedures in the Constitution: (i) reviews of the legality of Acts of Parliament (or their individual provisions) – action for their annulment for alleged conflict with the 77 Presidency Conclusions, Document No. 15265/09 CONCL 3, point I.2, p. 2. The draft Protocol on the application of the Charter of Fundamental Rights of the EU to the Czech Republic is attached in Annex I. 78 The Treaty of Lisbon: An Impact Assessment , European Union Committee (House of Lords), 2008, pp. 101-107. Available at: http://www.parliament.the-stationery-office.co.uk/pa/ld200708/ldselect/ ldeucom/62/62.pdf. Cf. also P. Šturma, Lisabonská smlouva a závaznost Listiny základních práv EU pro Českou republiku vzhledem k tzv. výjimce (opt-out) [The Treaty of Lisbon and the Binding Force of the Charter of Fundamental Rights for the Czech Republic Regarding the so-called Opt-out] (2009) 6 Právní rozhledy 191.

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