Archive

26. 11. 20089:16

Opening Speech by Mr. Alexandr Vondra before the Czech Constitutional Court on 25.11.2008

Opening Speech by Mr. Alexandr Vondra, Deputy Prime Minister for European Affairs of the Czech Republic, before the Czech Constitutional Court on 25.11.2008

Dear Mr. President,

Honourable Judges,

On the 29th of January 2008 the government submitted, to both chambers of the Parliament, the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, for its ratification in compliance with Article 10a of the Czech Constitution. This Treaty is an international treaty concluded at an intergovernmental conference by all EU Member States which significantly changes and reforms the existing fundamental contractual framework of the Union.

This Treaty has been always seen by our government as a compromise solution, as a way out of a vicious circle of institutional discussions which have been taking place within the European Union since the nineties. It has been seen as a way out of the stalemate that ensued after the Treaty establishing a Constitution for Europe was refused in the French and the Dutch referendums. The government approached the negotiations about the Treaty responsibly and on the basis of a coalition mandate and, while looking for a compromise, sought to negotiate in order to obtain as much as possible. The government legitimately concluded the negotiations on this Treaty and the Prime Minister, along with the Minister of Foreign Affairs, signed it, in the conviction that is was in conformity with the constitution.

The government was aware, already during the negotiations on the Treaty, of the discussions and doubts related to some of the Treaty’s provisions, not only in the Czech Republic, but also in other Member States where the Treaty of Lisbon was, or is subject to review by constitutional courts (Spain, France and Germany). On the basis of legal analyses that it obtained, the Government however reached the conclusion that the Treaty is in conformity with the Czech constitutional order. Nevertheless, in light of these doubts, the Government considers that the Senate took a useful step when, at its 13th meeting on 24 April 2008, it decided - on the recommendation of the responsible Committee for EU Affairs - by Resolution No. 379 to submit a proposal to the Constitutional Court to review the conformity of the Treaty of Lisbon with the constitutional order in accordance with Article 87, paragraph 2 of the Czech Constitution, as a legitimate step within the framework of the preventive review allowed by the Czech Constitution.

The Government, as it is well known, does not have the active legitimacy to seek a review of the conformity of an international treaty with the constitutional order. It is however by law a participant in these proceedings, and thus the Government was summoned by the Constitutional Court to provide its opinion on the Senate’s submission. In its opinion the Government limited itself to the legal arguments referring to the individual points mentioned in the Senate’s submission and did not address the Treaty as a whole, nor did it address the procedural question related to the process of ratification of this Treaty in other Member States. On the basis of its detailed argumentation the Government in the concluding remarks stated that the Treaty of Lisbon is indeed in conformity with the constitutional order.

I will now attempt to briefly summarise the main points of the Government’s opinion. As regards the details, I refer to the written text.

Regarding the general question posed by the Senate with respect to the conformity of the Treaty of Lisbon with the constitutional characteristics of the Czech Republic as a sovereign, unified and democratic state under the rule of law

• The Senate requested the Constitutional Court to perform an overall review of the conformity of the Treaty of Lisbon (in its entire scope) with the fundamental constitutional characteristics of the Czech Republic in accordance with Article 1, paragraph 1 of the Constitution.

• The Government finds that the Treaty of Lisbon does not modify the fundamental constitutional attributes of the Czech Republic; the Czech Republic will remain a state that is

a) sovereign – the transfer of some of the competences of the Czech Republic to the European Union is being implemented in a way that complies with the Constitution under its Article 10a, and only some of the competences are being transferred; the transfer of the competences does not reach a level which would result in the loss of Czech sovereignty;

b) unitary – the Treaty of Lisbon does not turn the EU into a federal state, it remains a union of sovereign states;

c) democratic and legally consistent – the EU is based on the same principles for a democratic state under the rule of law as is the Czech Republic; the Treaty of Lisbon does not change these principles, but rather emphasises them;

d) based on respect for the rights and freedoms of man and citizen – these values are equally respected by the EU, which the Treaty of Lisbon confirms both in the provision of the EU Treaty and by the integration of the Charter of Fundamental Rights of the EU into the contractual acquis.

• It is the opinion of the Government that it is indeed necessary to take into account, when defining the content of the mentioned terms and principles, the fact that the Czech constitutional legislature endorses the idea of European integration; this was reflected specifically in the adoption of the “Euro-amendment” of the Czech Constitution in 2001.

Regarding Paragraph 1 of the Senate Proposal – Limits and Classification of EU Competences

The Government is convinced that the limits of competences stated in the Treaty of Lisbon are fully in compliance with Article 10a of the Czech Constitution, which provides for a transfer of certain competences of Czech authorities to an international organisation or institution.

• In reply to the argument that the classification of the competences is characteristic of federal states

The delimitation and classification of the competences itself as introduced in the Treaty of Lisbon does not confer on the EU any of the attributes of a federal state, since the EU does not have competence-competence, i.e. the power to determine the scope of its own competence without the approval of the Member States.

• In reply to the argument that the Treaty of Lisbon introduces exclusive competence

The concept of exclusive competence of the European Union already exists. It is already applicable in accordance with the amended version of the Treaty establishing the European Community. In the Treaty of Lisbon, the exclusive competences of the Union will only be listed in a separate article.

• In reply to the definition of the term exclusive competences

The principle saying that within the area of exclusive competence of the Union the Member States may adopt legally binding acts only if so empowered by the Union or for the implementation of Union acts is already applicable (on the basis of rulings of the European Court of Justice).

• In reply to the assertion regarding unclear limits of the Union legislative competences in the area of shared competences

The definition of shared competences in the Treaty of Lisbon is sufficiently specific. It is based on the principle of conferred competences and strictly complies with the principles of subsidiarity and proportionality. Besides, for a detailed definition of the competences (and not only shared competences) it is necessary to refer especially to Part Three (Union Policies and Internal Actions) of the Treaty on the Functioning of the European Union and not only to Part I, Title I (Categories and Areas of Union Competence).

It is also important to remember the Protocol on the exercise of shared competence, which says that when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.

Regarding Paragraph 2 of the Senate Proposal – Flexibility Clause

The Czech Government is of the opinion that the incorporation of the so-called flexibility clause in the Treaty on the Functioning of the European Union is in compliance with Article 10a of the Czech Constitution which provides for the transfer of certain competences of Czech authorities to an international organisation or institution.

• The flexibility clause is already provided for in the existing Treaty establishing the European Community. However, it only applies to the area of the internal market. In the Treaty of Lisbon this approach is to be used also in areas of other internal policies of the Union. Therefore, the change brought about by the Treaty of Lisbon does not lie in the establishment of the principle in itself, only in the scope of its application.

• The new provision does not amount to a carte blanche. The conditions for the application of the flexibility clause are specifically determined by the Treaty. The exercise of this principle:

– must be essential for the attainment of one of the objectives of the EU;

– must fall within the framework of the policies determined by the primary legislation of the EU;

– must be unanimously adopted by the Council and obtain the consent of the European Parliament;

– shall not entail harmonisation of the legislation of the Member States in those instances where the Treaties exclude such harmonisation;

– must respect the principle of subsidiarity which functions as an abstract limit to the extension of Union competences.

• The relation to Article 10a of the Czech Constitution – according to the Government’s opinion this does not constitute adoption of measures outside the transfer of competences in accordance with Article 10a of the Constitution. The detailed definition of all transferred competences is not, according to the Government’s belief, necessary. It is sufficient that the Treaty of Lisbon lays down clear limits to the exercise of the flexibility clause and allows for its application only after clearly determined conditions are complied with.

• The Government is nevertheless aware of the importance of parliamentary supervision in this area and is prepared to support the potential introduction of the imperative mandate for the Government under which a representative of the Government in the EU Council could not express his consent with the exercise of the flexibility clause without prior consent of the Czech Parliament.

Regarding Paragraph 3 of the Senate proposal – Simplified revision procedure

The Czech government is of the opinion that, in relation to the issues of transitional provisions under Article 48, paragraph 7 of the EU Treaty, the Treaty of Lisbon is not in conflict with Article 10a of the Czech Constitution.

• Regarding the simplified revision procedure in accordance with Article 48 (6) of the EU Treaty the Government does not see any problem in relation to the Czech Constitution as the revision based on this procedure requires approval by all Member States in accordance with their respective constitutional requirements.

• Special transitional provisions already exist in the current Treaties ; while the parliamentary level of consent is entirely missing.

• Regarding the relationship to Article 10a of the Czech Constitution – the Government does not believe that the transitional provisions under Article 48 (7) of the EU Treaty are incompatible with Article 10a of the Constitution. By the Treaty of Lisbon the Czech Republic transfers the competence to apply transitional provisions in the future, while the mechanisms in place – such as the unanimous consent of the European Council and the right of veto of each national parliament – guarantee that the principle of the sovereignty of the states will remain preserved.

• The Government is nevertheless aware of the importance of parliamentary controls in this area and is prepared to support the potential introduction of the imperative mandate for the government under which its member could not express his consent in the EU Council with the application of transitional provisions without prior consent of the Czech Parliament.

Question in Paragraph 3 of the Senate proposal – Relation to the exercise of legislative powers in the Czech Republic

The Czech Government does not see any conflict between the Treaty of Lisbon and Article 15, paragraph 1 of the Czech Constitution.

• The Senate points to the limited involvement of national parliaments in the decision-making on changes of the competences of the Union, extended voting by qualified majority and communitarisation of the third pillar, where the responsibility for the parliamentary dimension of the decision-making is assumed by the European Parliament. In this context [the Senate] asks whether this does not amount to the actual voidance of the [principles contained in] Article 15 paragraph 1 of the Czech Constitution under which the legislative powers belong to the [Czech] Parliament.

• The Government does not share this concern with the Senate. Under the Treaty of Lisbon only certain competences of the Czech Republic shall be transferred to the European Union. A significant portion of these competences have already been transferred to the EU (EC) by the existing Treaties.

• The Czech Parliament will continue to have the power to adopt national legislation with the exception of those areas which fall under the exclusive competence of the Union.

Regarding Paragraph 4 of the Senate proposal – Conclusion of International Treaties by the Union

The Czech Government is convinced that the procedure applicable to the conclusion of international treaties under the Treaty of Lisbon is compatible with Articles 49 and 63 paragraph 1 litra b) of the Czech Constitution.

• Regarding the argument that the Treaty of Lisbon extends the powers of the Union to conclude international treaties

The Czech Government does not believe that the Treaty of Lisbon extends the powers of the Union to conclude international treaties. The power of the Community to conclude international treaties as anticipated in the Treaty of Lisbon has already been implied by the decisions of the European Court of Justice. The Treaty of Lisbon does only expressly put into words what has already been implicitly in force and what has been developed and consolidated in the case law of the European Court of Justice.

• Regarding the argument that international treaties are concluded by the decision of the Council by a qualified majority and thus the Czech Republic could be bound by a treaty to which it did not consent

Not all international treaties are concluded by the decision of the Council adopted by a qualified majority – subject to unanimous consent are all treaties in the area of CFSP, all treaties in areas requiring unanimous consent, some treaties in the area of common commercial policy, accession treaties and other specific treaties.

International treaties concluded by the Community (the so-called external treaties) are and will remain to be of two types under the Treaty of Lisbon:

1) treaties concluded in the areas of exclusive competence of the EU – these are not subject to national approval procedures; the Czech Republic does not have this competence anymore as it has already transferred it to the EC;

2) the so-called mixed treaties (concluded in areas of shared competence) – besides the Community the treaty is concluded also by the Member States as the EC does not have sufficient competences in the given area to conclude a treaty nor subsequently implement it (it needs the cooperation of the Member States).

Under the Treaty of Lisbon the mixed treaties will remain within the area of the Member States who must subject them to their own domestic constitutional procedures in order to negotiate and conclude them, i.e. in case of the Czech Republic they will remain subject to Article 49 and Article 63, paragraph 1, litra b) of the Czech Constitution.

Regarding Paragraph 5 of the Senate proposal – Charter of Fundamental Rights of the EU

The Czech government is of the opinion that that the existence of the Charter, which under the Treaty of Lisbon will have the same legal force as The Treaties, is not in conflict with the constitutional order of the Czech Republic.

• Nature of the Charter of Fundamental Rights of the EU (Charter)

From the viewpoint of the Czech government the Charter is formally a separate document of a non-consensual nature (it is not an international treaty). However, through the Treaty of Lisbon the Charter will be factually incorporated into the acquis of the Union (under the Treaty of Lisbon [the Charter] shall have the “same legal value as the Treaties“).

• The binding nature of the Charter

The Charter will become binding for the Czech Republic but only in limited extent – the provisions of the Charter are primarily intended for authorities, institutions and other bodies of the Union; Member States are explicitly subject only to the extent of their application of the law of the Union.

• Relation of the Charter to domestic catalogues of human rights (the Charter of Fundamental Rights and Basic Freedoms in the Czech Republic)

The Charter will exist alongside the catalogues of human rights and freedoms, without modifying their extent to any degree.

With regard to the common historical, social and cultural traditions of the Member States, and especially to the long-standing membership in the Council of Europe (all EU Member States are signatories of the European Convention for the Protection of Human Rights and Fundamental Freedoms negotiated under the Council of Europe) it can hardly be expected that the Charter and the catalogues of human rights of the individual Member States would be in open conflict.

It is the belief of this government that there will be no reduction of the standard, due to the application of the Charter, of the domestic level of protection of the fundamental human rights and basic freedoms and the Charter itself does exclude such a possibility.

• Relationship between the European Court of Justice and the Constitutional courts of the Member States

The government is convinced that the Treaty of Lisbon coming into force should not lead to the hierarchisation of the relations between the European Court of Justice and the Constitutional courts of the individual Member States; they should complement each other in their activities, rather than compete with each other.

• What purpose does the Charter serve?

The government of the Czech Republic is convinced that the existence of a binding Charter will have its importance primarily in relation to the Union as such as well as to its bodies, which will be, in their activities, bound to adhere to human rights and freedoms not only implicitly through general principles anchored in the primary legislation and case law of the European Court of Justice but now also directly, through a comprehensive catalogue of human rights and freedoms.

• Why did the Czech Republic not negotiate an exemption from the Charter, like the UK or Poland?

In the opinion of the government, the Protocol on the application of the Charter of Fundamental Rights to Poland and to the United Kingdom does not constitute an exemption from the Charter for Poland and the UK, but only affirms that the Charter does not extend the jurisdiction of the EU courts to review national legislation and other acts if such acts do not refer to the application of EU law.

For these reasons, the government holds that it is not important for the Czech Republic to conclude, alongside Poland and the UK, this protocol or a similar one.

The government considered it sufficient that the Czech Republic annexed Declaration No. 53 annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. This declaration defines in more detail the scope of the application of the Charter.

Paragraph 1 of Declaration No. 53:

“The Czech Republic stresses that its provisions are addressed to the Member States only when they are implementing Union law, and not when they are adopting and implementing national law independently from Union law.”

Paragraph 2 of Declaration No. 53:

The Czech Republic also emphasises that the Charter does not extend the field of application of Union law and does not establish any new power for the Union.

Regarding Paragraph 6 of the proposal by the Senate –

values underlying the EU

The Czech Government does not see any conflict between Article 1a (2 according to the new numbering) of the EU Treaty and the provisions of Article 1, paragraph 1 and Article 2, paragraph 1 of the Czech Constitution.

• The Czech Government holds that Czech Republic is based on the same values that are now anchored in the Treaty of Lisbon. These values are acknowledged and protected by the Constitution of the Czech Republic.

• All these values are further elaborated upon in other constitutional norms and in the Charter of Fundamental Rights and Basic Freedoms and permeate the hierarchy of all subordinate legislation. In this light, the Treaty of Lisbon does not introduce anything beyond the extent of what is not already inherent in Czech legislation or that would be in conflict with it.

• The possibility to suspend the rights of Member States arising from the Treaties

The government is not concerned about of the suspension of the rights of Member States arising from the Treaties, which the Treaty of Lisbon enables in the event that a Member State seriously breaches the values upon which the Union is based. A similar provision is already part of the existing Treaty on European Union (Article 7).

The Constitution of the Czech Republic protects these values and regards a breach of them as unacceptable. As long as the Czech Republic complies with its own Constitution, there is no risk of a suspension of the rights that arise to the Czech Republic in connection with its membership in the EU.

• To conclude

• During the negotiations and the analysis of the Treaty of Lisbon, the Government relied not only on legal analyses but also on the fact that the integration of the Czech Republic into the European Union is one of the main objectives of the development of the country after 1989. The European Union is a community of democratic states under the rule of law to which the Czech Republic belongs and wants to belong.

• The Czech Republic made this clear when its Government with Václav Klaus as Prime Minister applied for EU membership in the 1990s. After long accession negotiations, the Czech Republic became a member in 2004 and this fact was confirmed by a referendum.

• Obviously, nothing in this world is black or white. But one thing is clear: the EU is a community espousing rules that all members must consent to. We do not always have to agree with them, but these rules give this community, after centuries of wars and conflicts, a firm order and a degree of security. It was also for these reasons that the Government concluded that the Treaty of Lisbon is acceptable for the Czech Republic.

Thank you