CYIL 2010

THE QUEST OF THE LISBON TREATY IN THE CZECH REPUBLIC … extent that such mixed agreements are classified in the Czech Republic as agreements of the so called “presidential” category, 119 they will have the status of international agreements under Art. 10 of the Constitution, i.e., they will become an integral part of the domestic legal order and in the event of conflict they will have precedence over domestic statutes. 120 (iv) Specifics in the area of Common Foreign and Security Policy (CFSP) The legal basis is to be found in Art. 37 TEU, according to which the Union may conclude agreements in the area of CFSP. However, for negotiations the general procedural provision of Art. 218 TFEU shall be applied, which nevertheless contains the specifics for CFSP agreements (e.g., authorisation for negotiations is not submitted by the European Commission but by the High Representative of the Union for Foreign Affairs and Security Policy; 121 the European Parliament does not participate in decisions on signing and concluding the agreements; 122 the agreements are in most cases concluded unanimously, since unanimity is generally required for the adoption of acts under CFSP and the conclusion of agreements in the area of the CFSP reflects this fact 123 ). The issue of delimiting competence in the CFSP area is not entirely unambiguous and leaves certain room for speculations, nevertheless it seems clear that it is definitely not an exclusive competence, since this would contradict the nature of ments (those which are subject to Parliament’s consent) over all national laws (statutes) except for the Constitution: “ Promulgated international treaties, to the ratification of which the Parliament has given its consent and by which the Czech Republic is bound, form part of the legal order; if a treaty provides something other than a statute, the treaty shall apply. ” 119 Agreements which are subject to the Parliament’s consent (in both Chambers) and ratified by the President. These are agreements whose subject matter is outlined in Art. 49 of the Constitution, namely: (a) affecting the rights or duties of persons; (b) of alliance, peace, or other political nature; (c) by which the Czech Republic becomes a member of an international organization; (d) of a general economic nature; (e) concerning additional matters the regulation of which is reserved to statute. In other words, the involvement of the Parliament reflects the political and legal importance of the above mentioned types of agreements. 120 Legal status under Art. 10 of the Constitution should stricto sensu apply only to those parts of mixed agreements which are within the competence of the Czech Republic, whereas other provisions within the exclusive competence of the Union should be incorporated by means of the “two-way” provision of Art. 10a of the Constitution. This dichotomy, which is not entirely satisfactory, is one of the reasons why some scholars, e.g., Prof. Jiří Malenovský, criticise the application of Art. 10a of the Constitution as an incorporative norm and argue that the effects of all international treaties in the Czech legal should be generally governed by Art. 10 of the Constitution, whereas EU primary law treaties and secondary law adopted on their basis, including EU international agreements, constitute only a specific (and privileged) subset of incorporated agreements. Cf. J. Malenovský, K nové doktríně Ústavního soudu ČR v otázce vztahů českého, komunitárního a mezinárodního práva [On the New Doctrine of the Constitutional Court Concerning the Relations of Czech, Community and International Law], Právní rozhledy [Legal Perspectives] No 21, 2006, p. 774-783. 121 Art. 218 (3) TFEU.

122 Art. 218 (6) subparagraph 1 TFEU. 123 Art. 218 (8) subparagraph 2 TFEU.

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