Treaty of Lisbon
Pl. ÚS 19/08
JUDGMENT OF THE CONSTITUTIONAL COURT
Holding
On 26th November 2008, the Constitutional Court Plenum, composed of judges Stanislav
Balík, František Duchoň, Vlasta Formánková, Vojen Güttler (judge-rapporteur), Pavel Holländer,
Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel
Rychetský, Miloslav Výborný, Eliška Wagnerová and Michaela Židlická, on the petition of the Senat
of the Parliament of the Czech Republic for adjudging the conformity of the Treaty of Lisbon
amending the Treaty on European Union and the Treaty establishing the European Community with
the constitutional order, under Art. 87 par. 2 of the Constitution of the Czech Republic, decided as
follows:
The Treaty of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Community
* in Art. 2 par. 1 (originally Art. 2a par. 1), Art. 4 par. 2 (originally Art. 2c), Art. 352
par. 1 (originally Art. 308 par. 1), Art. 83 (originally Art. 69b par. 1) and Art. 216
(originally Art. 188l) of the Treaty on the Functioning of the European Union, as
amended by the Treaty of Lisbon,
* in Art. 2 (originally Art. 1a), Art. 7 and Art. 48 par. 6 and 7 of the Treaty on
European Union, as amended by the Treaty of Lisbon,
* and the Charter of Fundamental Rights of the European Union
is not in conflict with the constitutional order.
Reasoning
[translation is not available at the moment]
Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 26th November 2008
Pavel Rychetský
President of the Constitutional Court
Note: The judgment was unanimous; no dissenting nor concurring opinion has been appended
to the judgment. An abstract of the judgment will be soon available here.
Pl. ÚS 19/08
Abstract of the Judgment concerning the Treaty of Lisbon
Important notice: this is an abstract, not a judgment of the Court.
Abstracts are created by the Analytical Department of the Constitutional Court and do not bind the Court.
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing
the European Community
ABSTRACT
Headnotes
The transfer of powers of bodies of the Czech Republic to an international
organization under Art. 10a of the Constitution of the Czech Republic (the “Constitution”)
can not go so far as to violate the very essence of the republic as a democratic state governed
by the rule of law, founded on respect for the rights and freedoms of human beings and of
citizens, and to establish a change of the essential requirements of a democratic state
governed by the rule of law (Art. 9 par. 2 in connection with Art. 1 par. 1 of the Constitution).
If, on the basis of a transfer of powers, an international organization could continue to
change its powers at will, and independently of its members, i.e. if a constitutional
competence (competence competence) were transferred to it, this would be a transfer
inconsistent with Art. 1 par. 1 and Art. 10a of the Constitution.
The Treaty of Lisbon does not have such consequences in relation to the European
Union, and the reviewed provisions thereof are consistent with the constitutional order of the
Czech Republic.
In proceedings concerning whether an international treaty is consistent with the
constitutional order, the Constitutional Court is bound by the scope of a proper petition to
open proceedings. Its review concentrates only on those provisions of the international treaty
whose consistency with the constitutional order the petitioner questioned expressly, and with
justification.
The Judgment and Proceeding before the Constitutional Court
In its judgment of 26 November 2008, in a proceeding under Art. 87 par. 2 of the
Constitution on the consistency of an international treaty with the constitutional order,
opened upon a petition from the Senate of the Parliament of the Czech Republic (the
“Senate”), the plenum of the Constitutional Court declared that the Treaty of Lisbon
amending the Treaty on European Union and the Treaty establishing the European
Community (the “Treaty of Lisbon”), specifically Art. 2 par. 1 (before renumbering, Art. 2a
par. 1), Art. 4 par. 2 (before renumbering, Art. 2c), Art. 352 par. 1 (before renumbering, Art.
308 par. 1), Art. 83 (before renumbering, Art. 69b par. 1) and Art. 216 (before renumbering,
Art. 188l) of the Treaty on the Functioning of the European Union and Art. 2 (before
renumbering, Art. 1a), Art. 7 and Art. 48 par. 6 and 7 of the Treaty on European Union, as
amended by the Treaty of Lisbon, and the Charter of Fundamental Rights of the European
Union are not inconsistent with the constitutional order of the Czech Republic.*)
The Constitutional Court heard the arguments of the parties and their attorneys at a
hearing on 25 November 2008, which, after presentation of closing arguments it adjourned
until 26 November 2008, when it decided in a judgment that the cited provisions of Treaty of
Lisbon, or the Treaty on European Union and the Treaty on the Functioning of the European
Union as amended by the Treaty of Lisbon, including the Charter of Fundamental Rights and
Freedoms of the EU, are not inconsistent with the constitutional order of the Czech Republic.
The Senate’s Petition
The Senate petitioned the Constitutional Court under § 71a par. 1 let. a) of the Act on
the Constitutional Court after the government of the Czech Republic submitted the Treaty of
Lisbon to the Senate, requesting the Senate’s consent to its ratification. In its petition, the
Senate stated that the Treaty of Lisbon brings fundamental changes that affect substantive
elements of the statehood and constitutional characteristics of the Czech Republic as a
sovereign, unitary and democratic state governed by the rule of law (Art. 1 par. 1 of the
Constitution), or even of essential requirements of a democratic state governed by the rule of
law, which, under Art. 9 par. 2 of the Constitution, may not be changed.
(1.) Specifically, the Senate stated that the new wording of the Treaty on the
Functioning of the European Union (previously the Treaty Establishing the European
Community; the “TFEU”) establishes a classification of powers that is more characteristic of
federal states, by introducing a category of powers exclusive to the Union, which includes
entire comprehensive areas of legal regulation (Art. 2a par. 1 of the TFEU). It also stated that
in the sphere of shared competences (Art. 4 of the TFEU) there is, from the point of view of
Art. 10a of the Constitution, a transfer of competences to the Union in a scope that can not be
fully determined in advance.
(2.) The Senate also asked for review of Art. 352 par. 1 of the TFEU, which is not
limited to regulation of the internal market, and is thus a blanket norm that permits enacting
measures beyond the scope of Union competences, i.e. beyond the scope of transferred
powers under Art. 10a of the Constitution.
(3.) The Senate also pointed to Art. 48 par. 6 and 7 of the Treaty on European Union
(the “TEU”); according to the Senate, application of a general transitional clause (passerelle)
for purposes of changing unanimous decision making to decision making by a qualified
majority in a particular area or replacing a special legislative procedure by an ordinary
legislative procedure under Art. 48 par. 7 of the TEU is a change of powers under Art. 10a of
the Constitution, without that change being accompanied by ratification of an international
treaty or the active consent of Parliament. As regards Art. 83 par. 1 of the TFEU, there is no
opportunity at all for Parliament to express lack of consent; thus, this can de facto render Art.
15 par. 1 of the Constitution meaningless.
(4.) The Senate also objected that international treaties negotiated and approved by a
qualified majority in the Council (not unanimously) under Art. 216 of the TFEU would also
be binding on member states that did not consent to them, even though the standard
ratification process would not take place in these states, and, in the case of the Czech
Republic, the opportunity for preliminary judicial review as to whether such treaties are
consistent with the constitutional order would also disappear. Therefore, the Senate expressed
doubts as to whether this process is compatible with Art. 49 and Art. 63 par. 1 let. b) of the
Constitution, and whether there is room to apply these treaties based on Art. 10 of the
Constitution.
(5.) According to the Senate, the indirect reference to the Charter of Fundamental
Rights of the EU, together with the future accession of the EU to the European Convention
for the Protection of Human Rights and Fundamental Freedoms (Art. 6 par. 1 and 2 of the
TEU) can lead to lack of clarity about the status of the Charter of Fundamental Rights of the
EU (the “CFREU”), and it is not clear whether this construction will strengthen or, on the
contrary, lower the standard of domestic protection of human rights enshrined in the Czech
Charter of Fundamental Rights and Freedoms (the “CFRF”).
(6.) Finally, the Senate questioned whether Art. 2 of the TEU is consistent with Art. 1
par. 1 and Art. 2 par. 1 of the Constitution (the principle of the sovereignty of the people), in
view of the fact that it expands the values on which the Union is established, which could,
through a mechanism of suspending membership rights, be used to create political pressure to
change domestic legal orders concerning such fundamental issues against the will of the
sovereign, i.e. the people.
President Václav Klaus, as a party to the proceeding, agreed with the Senate’s
petition, and added to its arguments, among other things, by emphasizing the argument that
the Treaty of Lisbon is inconsistent primarily with the material core of the Constitution, and
that this inconsistency can not be removed even by a possible amendment to the Constitution.
In contrast, the government of Mirek Topolánek stated its belief that the Treaty of Lisbon is
not inconsistent with the constitutional order of the Czech Republic.
Reasoning of the Constitutional Court’s Judgment
Being faced with a petition for review of an international treaty for the first time, the
Constitutional Court first addressed the procedural issues of this kind of proceeding. It
rejected the arguments of the parties that the nature of the proceeding was non-adversarial
(implying an obligation to review all provisions of an international treaty for consistency with
the entire constitutional order, stating that this is a concept from civil trials, not transferable
to this quite unique proceeding. Analogously to proceedings on review of norms, the
Constitutional Court feels it is bound by the scope of the petition to open proceedings, which
means that it concentrates its review only on those provisions of the international treaty
whose consistency with the constitutional order the petitioner expressly contested, and where,
in an effort to meet the burden of allegation, it supported its claims with constitutional law
arguments (i.e., in the scope of a proper petition). The Constitutional Court peripherally
indicated that it would take a restrictive approach to addressing the issue of the impediment
of rei iudicatae, established for the future by this judgment of the Constitutional Court in
relation to possible other petitions from other possible petitioners to open proceedings on
review of whether the Treaty of Lisbon is consistent with the constitutional order. The
Constitutional Court also stated more precisely that in this review it did not intend, for a
number of reasons, to distinguish between the provisions of the Treaty of Lisbon described as
“normatively” old or new, i.e. it reviewed all those provisions of the Treaty of Lisbon that the
petitioner properly contested.
In this regard, the Constitutional Court expressed the opinion that, even after
ratification of the Accession Treaty, the normatively supreme position of the constitutional
order was not rendered meaningless, and that, in exceptional cases, one can conclude that a
treaty is inconsistent with the constitutional order even ex post, subsequently, after it has been
ratified, via individual constitutional complaint proceeding. It again subscribed to the
principle of a Euro-conforming interpretation of Czech constitutional law, but noted that in
the event of a clear conflict between the domestic constitution, especially its material core
(Art. 9 par. 2 and 3 of the Constitution) and European law that can not be healed by a
reasonable interpretation, the constitutional order of the Czech Republic, especially its
material core, must take precedence. However, as regards the referential viewpoint of a
preventive review of whether an international treaty is consistent with the constitutional
order, then the constitutional order as a whole can apply as a criterion of reference, although
in that case the material core of the constitution naturally plays a primary and key role.
Given this procedural definition, the Constitutional Court then considered the
individual objections from the Senate and other parties to the proceeding.
To begin with, the Constitutional Court stated that the limit for transfer of powers to
an international organization under Art. 10a of the Constitution consists of the essential
requirements of a sovereign, democratic state governed by the rule of law under Art. 9 par. 2
a Art. 1 par. 1 of the Constitution. However, today sovereignty can no longer be understood
absolutely; sovereignty is more a practical matter. In this sense, the transfer of certain
competences of the state, which arises from the free will of the sovereign and will continue to
be exercised with the sovereign’s participation, in a manner that is agreed on in advance and
is reviewable, is not a conceptual weakening of the sovereignty of a state, but, on the
contrary, can lead to strengthening it within the joint actions of an integrated whole.
Therefore, in this regard the Constitutional Court generally recognized the
functionality of the EU institutional framework for ensuring review of the scope of the
exercise of the transferred powers, although it acknowledged that its position cold change in
the future, if it appeared that this framework was demonstrably non-functional. In addition,
the Constitutional Court can review whether an act by bodies of the Union exceed the powers
that the Czech Republic transferred to the European Union under Art. 10a of the Constitution,
although only in wholly exceptional cases.
Specifically, as regards the first group of objections from the Senate (Art. 2 par. 1 and
Art. 4 par. 2 of the TFEU), the Constitutional Court stated that the category of the EU’s
exclusive powers is not new in any way. The Treaty of Lisbon does not establish an unlimited
competence clause even in the area of shared competences, but only declares the main areas
in which shared competences occur. In the context of other provisions of the Treaty of Lisbon
(Art. 2 par. 6 of the TFEU, Art. 5 par. 2 of the TEU, protocols on the application of the
principles of subsidiarity and proportionality and on on the exercise of shared competence) it
is evident that the Treaty of Lisbon provides a sufficiently certain normative framework for
determining the scope in which the CR will transfer its powers to the EU.
As regards Art. 352 par. 1 of the TFEU (the Senate’s second objection), the
Constitutional Court stated that the transfer of “constitutional” competence to an international
organization would be impermissible. However, in the case of the Treaty of Lisbon this will
not occur: amendment of the primary treaties will continue to be possible only with the
consent of all EU states, which thus remain masters of the treaties; moreover, the possibility
of withdrawing from the EU is expressly established (Art. 50 of the TEU). This is not in any
way changed by the so-called flexibility clause under Art. 352 par. 1 of the TFEU; the
possibility of adopting such a measure is limited to the objectives defined in Art. 3 of the
TEU and is also narrowed in view of declarations no. 41 and no. 42 contained in the Final
Act of the Intergovernmental Conference on the Treaty of Lisbon. Thus, the flexibility clause
is not a blanket norm that would enable circumventing Art. 10a of the Constitution; in this
regard the Constitutional Court also found adequate the institutional framework of review of
transferred powers, as it follows from the practice of bodies of the EU and from the case law
of the European Court of Justice. The Constitutional Court observed that the Treaty of Lisbon
leaves fully up to the constitutional structures of member states how to ensure that the
principle of subsidiarity is respected in decision-making under the flexibility clause. Thus, the
Czech legislature has room to pass an appropriate legal regulation that will be consistent with
the constitutional order.
As regards the Senate’s doubts about Art. 48 par. 6 and 7 of the TEU (the third group
of objections) the Constitutional Court pointed to Art. 48 par. 6 subparagraphs three of the
TEU, which expressly eliminates any doubts relating to Art. 10a of the Constitution
consisting of the claim that it would thus be possible to continue to increase the competences
conferred on the EU by the primary treaties. One can not even conceptually think of
amendments expanding Union powers, because a possible amendment clearly applies only to
voting. The primary treaties will keep a higher legal force over any acts adopted in this
manner; moreover, the article establishes the possibility for national parliaments to block
such acts. However, the Constitutional Court, obiter, criticized the lack of legal regulation
that would permit implementing decision-making procedures under Art. 48 of the TEU on a
domestic level, and de lege ferenda named certain criteria that such procedures should meet.
As regards Art. 83 par. 1 of the TFEU, especially regarding the third subparagraph,
the Constitutional Court stated that the Senate overlooked Art. 83 par. 3 of the TFEU, which
indicates that Art. 83 par. 1 of the TFEU can not be applied to our legal order without the
consent of the Czech Republic.
The Constitutional Court also noted, regarding these objections, that the Treaty of
Lisbon transfers powers to bodies whose regularly inspected legitimacy comes from general
elections in the individual member states. Moreover, the Treaty of Lisbon makes possible
several ways of involving domestic parliaments. The Constitutional Court concluded from
this that the Treaty of Lisbon reserves an important role for domestic parliaments, whose
consequences are to strengthen the role of individual member states; moreover, the regulation
is one that makes the structure of the whole system more understandable and more clear,
compared to the present condition. Therefore, voting by a qualified majority under Art. 48
par. 7 of the TEU is not inconsistent with Art. 1 par. 1 and Art. 15 par. 1 of the Constitution.
As regards the fourth group of the Senate’s objections (regarding Art. 216 of the
TFEU) the Constitutional Court stated that there is no question of conflict with Art. 10, Art.
49 and Art. 63 par. 1 let. b) of the Constitution, because these provisions do not apply to the
negotiation of such treaties concluded by the Union. Art. 216 of the TFEU is not a norm of
competence that expands the powers of the Union; it only expands the catalog of instruments
that the Union can use within the framework of its competences. Thus, the EU can exercise
the transferred powers both internally and externally, and the text of Art. 49 and 63 of the
Constitution does not form an insurmountable obstacle to the transfer of powers in the area of
concluding international treaties. Nonetheless, the Constitutional Court noted out that Art.
216 of the TFEU, due to its vagueness, is on the borderline of compatibility with
requirements that the text of a legal norm be certain, or with requirements that the transfer of
powers to the EU be determinable; however, this vagueness does not reach the intensity
necessary to declare Art. 216 of the TFEU inconsistent with the constitutional order.
As regards the fifth group of the Senate’s objections, concerning the CFREU and Art.
6 of the TEU, the Constitutional Court emphasized that the CFREU would primarily bind
Union bodies, and only bind Czech bodies in the event of application of European law. The
CFREU does not expand the area of application of Union law beyond the framework of the
Union’s powers. In addition, as a result of the EU’s accession to the Convention for the
Protection of Human Rights and Fundamental Freedoms the bodies of the Union, including
the Court of Justice, will become subject to review by the European Court of Human Rights,
which will strengthen the mutual conformity of both systems for the protection of
fundamental rights and freedoms. The Constitutional Court also noted that the CFREU
recognizes the fundamental rights arising from the constitutional traditions common to the
member states, and must therefore be interpreted in accordance with these traditions (Art. 52
par. 4 of the CFREU). It also emphasized that protection of fundamental rights and freedoms
is part of the material core of the Constitution, where it is beyond the reach of the legislature,
and if the standard of protection ensured in the EU were unacceptable, the bodies of the CR
would once again have to take over the transferred powers, in order to ensure protection of
the standard. However, it has not observed anything like that at the present time.
The Constitutional Court stated that it is difficult at an abstract level to review the
mutual harmony of individual rights and freedoms under the CFREU and the CFRF. Prima
vista there is no conflicting provision in the CFREU; in contrast, the catalog of rights in the
CFREU is fully comparable to the set of fundamental rights and freedoms protection in the
CR on the basis of the CFRF; even the petitioner did not raise any questions in this regard.
The Constitutional Court found that in the present situation the European institutional
provision of the standard of protection for human rights and fundamental freedoms is
compatible with the standard provided by the constitutional order of the CR. In the event of a
conflict of sources governing the rights and freedoms of individuals under the CFREU and
the CFRF the applying bodies will naturally proceed according to the one that provides
individuals the higher standard of protection.
As regards the sixth group of the Senate’s objections, the Constitutional Court stated
that the values mentioned in Art. 2 and 7 of the TEU are fundamentally consistent with the
values on which the material core of the Czech constitution rests (cf. Art. 1 par. 1, Art. 5, Art.
6 of the Constitution, Art. 1, Art. 2 par. 1, Art. 3, Chapter Four of the CFRF). Therefore, in
this regard as well the Treaty of Lisbon is consistent with the untouchable principles
protected by the Czech constitutional order. Insofar as the Senate relies on state sovereignty
in this regard, the Constitutional Court stated that in a modern, democratic state, governed by
the rule of law, state sovereignty is not an aim in and of itself, in isolation, but is a means for
fulfilling the fundamental values on which the construction of a constitutional state governed
by the rule of law, stands.
Therefore, the Constitutional Court summarized that the Treaty of Lisbon changes
nothing on the fundamental concept of current European integration, and that, even after the
entry into force of the Treaty of Lisbon, the Union would remain a unique organization of an
international law character.
Finally, the Constitutional Court addressed the arguments, or the initiative of the
president of the republic concerning the manner in which the Treaty of Lisbon is to be
approved (whether in a referendum or by parliament), and stated that resolution of this issue
lies outside the bounds of the possible review of an international treaty under Art. 87 par. 2 of
the Constitution.
The judge rapporteur was Vojen Güttler. No judge filed a dissenting opinion either to
the verdict or the justification of the judgment.
_________________
*) The rest of the text refers to individual provisions in the consolidated text of the primary treaties, that is,
according to the renumbering based on Art. 5 of the Treaty of Lisbon and the Tables of equivalences annexed to
the Treaty of Lisbon.
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