CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ NATIONAL SOVEREIGNTY IN THE EUROPEAN UNION The fourth part of the publication, entitled “ Sovereignty Vis-à-Vis Moloch of European Integration ”, begins with the traditional ‘ Westphalian ’ understanding of sovereignty. This is based on an axiomatic approach. A state either is or is not independent and hence sovereign. However, this concept is incompatible with the concept on which the functioning of the European Union is based. In this approach, transfer of sovereignty means that the transferor loses his own sovereignty. Hamuľák demonstrates the problems accompanying these concepts on German case-law, which appears to be considerably conservative in this respect. 7 However, Hamuľák offers a solution to the problem through what he calls “ Dynamic Approach ”, in which sovereignty is seen as a flexible and hence partly transferable category. It is also inspiring to recall the historic context – in the European area, what could today be called “sovereignty”, was for centuries divided between secular and ecclesiastical authorities. In my opinion, Hamuľák’s proposition that the Westphalian understanding of sovereignty is somewhat obsolete seems to be confirmed by the development in the European Union as such as well other projects implemented in the European area. To be more specific, this includes e.g. the European Court of Human Rights and the individual’s option to sue the State in this court, as well as the planned (and hence yet to be implemented) project of the Unified Patent Court, which, if transformed into reality, will significantly interfere with the traditional concept of State sovereignty in an area as sensitive as judiciary. 8 The fifth part, entitled “ Practical Sovereignty in a Real World – Relationship Between EU Law and National Law (The Czech Perspective) ”, begins by recalling the principles of application of EU law and continues by discussing the constitutional limits of the normative effects of European Union law. This part of the text analyses in detail the case-law of the Czech Constitutional Court relating to the rules of application of EU law and their constitutional limits; as such it is a culmination of the entire publication. The sixth part, entitled “ State as a ‘Creator andMaster’ ”, symbolically closes the publication by presenting the possibility available to the Member States to leave the European Union. All considerations regarding the modern approach to sovereignty ultimately end where they began – with the State as the major player in international law. In the closing part of the publication, the author concludes that European integration does not interfere with practical sovereignty of the Czech Republic. In my opinion, this conclusion is supported by a high-quality analysis and the valid arguments presented in the previous parts of the publication. There is, after all, empirical evidence in the present-day United Kingdom which has decided to take destiny into its own hands and restore its legal independence from the EU, and hence also sovereignty within the traditional meaning of the word. Hamuľák’s publication is certainly worth reading. Probably the most important 7 Weiler recalls the internationalist fundaments of justice; in his understanding, the German Constitutional Court does nothing other than the Court of Justice itself. Duo cum faciunt idem, non est idem – When two people do the same thing, this might not be the same. The risk of the German Constitutional Court’s approach is that if other national courts followed the same path, this would lead to disintegration of the European Union. See WEILER, T., European Constitutionality and its Discontents . Northwestern Journal of International law and Business, Vol. 17, 1996-1997. p. 390. 8 See TÝČ, V., SEHNÁLEK, D., Mezinárodní smlouva jako možný perspektivní nástroj další evropské integrace (International Treaty as a Potential and Perspective Mechanism of European Integration). Právník , 2017, Vol. 156, No. 3, pp. 190 ff.

627