CYIL 2010

EMIL RUFFER CYIL 1 ȍ2010Ȏ the field including the area of freedom, security and justice, and introducing in that field the principle of majority voting by representatives of the executive branch of individual Member States of the European Union violates Article 10a of the Constitution, because in fact this is not a transfer of the powers of authorities of the Czech Republic to an international organization, but to a group of states which will outvote the Czech Republic in promoting their own interests”. In the President’s opinion, “Article 10a of the Constitution does not permit a transfer of the powers of authorities of the Czech Republic to another state or group of states” . 96 (iv)Judgement of the Constitutional Court The Constitutional Court issued its long-awaited decision on 3 November 2009. 97 In its judgement the Court declared that the Treaty of Lisbon, as a whole and in the individually contested articles, is not in conflict with the constitutional order. The judgement was divided into eight parts. In Part I, the submission of the petitioners was summarised, and Part II contained summaries of the submissions of other participants – the President, the Parliament and the Government. Part III summarised the oral hearings held on 27 October 2009, where the petitioners, rather unexpectedly, presented another supplement to their petition. This last minute submission was then mentioned in the judgement, and the Court was not very sympathetic to such attempts to submit supplements at the very last moment without any persuasive grounds. In Part IV, the Court elaborated on the scope of the review from three basic perspectives: (i) whether the previous judgement (“Lisbon I”) implied the impediment of rei iudicatae ; (ii) whether the Treaty could be reviewed as a whole or only the parts explicitly challenged and supported by specific grounds, and (iii) whether the activities of the petitioners could amount to an obstruction of a procedure for constitutional review. In Part V, the Court then dealt with some specific challenges raised by the petitioners, in Parts VI and VII the Court rejected some points from the petition as inadmissible and the final Part VIII summarised the judgement by reproducing the operative part and pointing out the sections of the text containing the Court’s reasoning for each of its findings. Some of the most interesting parts of the judgement will be discussed in greater detail below. The Constitutional Court did not fundamentally deviate from the opinion it had expressed in the “Lisbon I” judgement, and reviewed only those parts of the Treaty of Lisbon that the petitioners had expressly contested and supported by grounds . However, because this time the petitioners had also contested the Treaty of Lisbon 96 This argument was completely disregarded by the Court, and rightly so, since apart from not being used in the petition of the Senators, such argument also completely ignored the fact that all decisions made by majority voting were adopted in the Council or in the European Council, i.e., at those institutions of the international organisation that exercised the transferred powers. The powers were thus transferred to the EU institutions, and not to the individual Member States, and the voting rights in the Council or in the European Council were allocated on the basis of EU primary law (TEU and TFEU). 97 Judgement of 3 November 2009, Pl. ÚS 29/09 (No. 387/2009 Coll.).

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