CYIL vol. 8 (2017)

DAVID SEHNÁLEK CYIL 8 ȍ2017Ȏ influence the Court’s line of thought and arguments. It could perhaps be added that the same Member States were equally indifferent to the possibility of a conceptual change in the functioning of the European Union in each review of primary law. Where the constitutional development of the European Union, whose dynamics were driven primarily by the decision- making of the Court of Justice of the EU, took a course undesirable for the Member States, it would have been very logical to direct or even reverse that trend by amending primary law. That did not happen. In this part of the work, Hamuľák treats the Court of Justice of the EU and national courts as opposing phenomena. It is a question as to whether this perception is faithful to reality. 5 In my opinion, the relevant relation is in fact rather symbiotic, full of dialogue and mutual influencing and directing. 6 I believe that the absence of a hierarchic arrangement is rather useful in this approach. Rather than strength, the Court of Justice of the EU and the courts of the Member States must rely in their decisions on cogency and willingness of the recipients to conform on a voluntary basis. The thus-arising relationship is in accordance with Hart’s concept of law and its acceptance. In my opinion, the fact that the relationship between the Court of Justice of the EU and the Member States’ courts is not antagonistic remains valid notwithstanding the case-law of the Czech Constitutional Court concerning Slovak pensions, as discussed in the publication. The latter is an excess that may be understood in human and political terms but has not been properly approached in legal terms. Nevertheless, the above symbiosis has led to an area that Hamuľák calls “ the Area of Darkness ”, where the interests and law of the EU overlap with the interests and law of the Member States. In this area, the question of sovereignty, its existence, nature and manifestations is most urgent. Hamuľák analyses this problem very carefully. In doing so, he rejects opinions denying further existence of sovereignty as a characteristic of a (European) State and tends to prefer a conservative approach, one he refers to as a condition of ‘ late sovereignty ’ or ‘ beyond sovereignty ’. In this part, the publication goes to the very essence of the problem. The phenomena and approaches that shaped themselves naturally and gradually in Western Europe are confronted with Czech experience. This is where differences between the new and old Member States are revealed and the author points out problems that may be somewhat overlooked by Western literature. Past experience is reflected in present thought and, therefore, we can agree with Hamuľák without reservations that the perception of sovereignty and the idea of losing it are specific in the Czech Republic (and other countries of Eastern Europe). 5 Empirical data suggest a rather interesting conclusion: the willingness of the Court of Justice of the EU to decide against the Member States increases proportionally to the accuracy and specificity of the standard that was breached. Thus, where the Court of Justice has a room for discretion, it prefers an amicable resolution. It is the Member States that seek to punish themselves. GARRETT, G. R., KELEMEN, D., SCHULZ, H., The European Court of Justice, National Governments, and Legal Integration in the European Union. International Organization , 1998, Vol. 52, No. 1, p. 174. 6 As Zemánek puts it, this is a concept that is based on understanding of the shared interests of the European Union and the Member States in preserving the achieved integration, which stands above the Member States’ individual interests. See p. 16. ZEMÁNEK, J., Meze ústavní autonomie v evropském víceúrovňovém svazku (Limits of Constitutional Autonomy in the European Multilevel Community). Acta Universitatis Carolinae Iuridica 2013. No. 4, p. 16.

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