Reply to the Constitutional Court Regarding the Lisbon Treaty

10/17/2009 , Prague

A. Preamble

I appreciate the effort of the group of senators to gain certainty whether the Lisbon Treaty is or is not consistent with Czech constitutional order. Their conscientious and responsible approach is evident from the full versions of the Treaty of Rome and the Maastricht Treaty that have been attached to the draft text along with a clear designation of changes to these treaties by the Lisbon Treaty. Such a document has not existed in our country before, even though it is clear that it is absolutely essential for at least a basic understanding of the extent of the changes brought about by the Lisbon Treaty and for assessing its contents.

        I therefore welcome the proposal by the group of senators.

The Lisbon Treaty is not merely a legal-technical document, as it is often interpreted. Its contents constitutes a fundamental shift in the European integration process towards greater centralization of decision-making, towards further weakening of the position of the member states (and consequently also of individual citizens), even though this goal was never openly declared or formulated. The direction of European integration and its final state was never a subject of serious public political discussion, not in Europeand not in the individual EU member states. In the opinion of a group of Senators of the Parliament of the Czech Republic, in the opinion of many experts, in the opinion of a considerable part of our general public as well as in my opinion, the Lisbon Treaty contains commitments that de facto mean giving up basic attributes of the sovereign state.

        The Constitutional Court is therefore deciding on a matter that is absolutely fundamental for the future of our country. It is deciding the future of a state, the sovereignty of which previous generations fought for in both world wars, the sovereignty that was later taken away from us by the communist totalitarian rule. Twenty years after the restoration of our democracy and sovereignty, we are once again dealing with the question whether we should – this time voluntarily, based on our free will – give up the position of a sovereign state and hand over decision-making on our own matters to European institutions that are outside of the democratic control of our citizens. 

The Constitutional Court has already declared several times that the indisputable constitutionality of the matters that are being examined stands high above the current political interests. I believe therefore, it will approach the assessment of the Lisbon Treaty and its consistency with our constitutional order with a high degree of responsibility required by the significance of this matter.

Even though theConstitutional Court has already commented on the subject of the Lisbon Treaty, the comments were made only about the Treaty’s particular details and not the Treaty as a whole. Earlier assessments of parts of the Lisbon Treaty are not a guarantee that could refute doubts about the compatibility of the Lisbon Treaty with our constitutional order. Today’s task of the Constitutional Court is completely different and therefore incomparable with the task in autumn last year.

I would like to point out that the German Constitutional Court recently deliberated the compatibility of the German Constitution with the Lisbon Treaty for a full ten months and that the extent and content of its decision, which bound German legislators to adopt additional legal regulations, corresponded to the importance of this deliberation.

I am fully aware the deliberation of the Constitutional Court is occurring at a time when the Czech Republicis exposed to extraordinary pressure, both from some domestic circuits as well as from abroad. I am confident these external pressures will not affect the court’s decision-making. Similarly, the results of the ratification processes in other countries of the European Union must not have any impact on the Court’s decision-making because here the Czech Constitutional Court is assessing the consistency of the Lisbon Treaty with the Constitution of the Czech Republic. It is also necessary to point out that the Constitutional Court is not assessing the consistency of the Constitution with the Lisbon Treaty, but conversely the consistency of the Lisbon Treaty with the Constitution.

Considering that the previous review of the consistency of the Lisbon Treaty with the constitutional order of the Czech Republic was based on a specific approach where the Constitutional Court only assessed those provisions that were challenged by the Senate at the time and did not assess the Lisbon Treaty comprehensively and as a whole, the arguments that I made in my statement of June 2008 were not seriously assessed and considered. At that time theConstitutional Court responded with only one sentence to my extensive statement. The current motion of the Senators, where the extent of the provisions that are being challenged is much greater, provides an opportunity to contemplate the question of the Lisbon Treaty more comprehensively, thereby also opening the opportunity to return to my previous arguments.

B. Recapitulation of my statement of June 2008
On 3 June 2008, I provided theConstitutional Court with an extensive statement about the Senate’s proposal for an assessment of the compliance of the Lisbon Treaty with the constitutional system. At that time I summed it up in five questions, which had not been completely and convincingly answered during the proceedings and still have not been answered to this day.

Question no. 1: Will the CzechRepublicremain a sovereign country and a full-fledged entity of the international community, capable of adhering to the obligations arising for it from international law, even after theLisbonTreaty enters into force? 

        The Constitutional Courtactually avoided a direct answer and came up with a new theory of sovereignty shared together by the European Union and the Czech Republic (as well as other member states). Even though the term “shared sovereignty” has recently been used rather frequently, it has only been used in non-rigorous debates. It is actually self-contradictory. Our legal system does not recognize the term “shared sovereignty”, and this term is not recognized by the law of the European Community either. The term was only used in the Decision of the European Parliament and of the Council establishing the “Europe for Citizens” programme to promote active European citizenship for the period of 2007–2013. The program states the following: “A culture of shared sovereignty – not abandonment of sovereignty – this is the culture and identity of the European citizen of today, and of tomorrow even more so”. Naturally, this cannot serve as the basis of any legal argumentation.

The substance of sovereignty is an unlimited execution of power. Its sharing negates sovereignty. Effectively, this opinion of the Constitutional Court suggests that no sovereign in the true sense of the word will exist in the European Union. This represents a very dangerous social arrangement. I do not think that the Czech legislators had this type of sovereignty in mind when they formulated Article 1 of the Constitution back in 1992. The response of the Constitutional Court also answers the second part of this question: The Czech Republic, as an entity of the international community, is not sovereign and may completely meet its obligations together with the European Union only. This was not and is not an acceptable answer for me.

        Question no. 2: Does the provision of theLisbonTreaty concerning the internal effect of EU legislation comply with Article 10 of the Constitution of theCzechRepublic?

        The Constitutional Court has not answered this question at all. It only touched upon the issue by referring to the case of the so-called sugar quotas.

Question no. 3: Does the EU Charter of Fundamental Rights have the legal status of an international treaty according to Article 10a and/or Article 10 of the Constitution; if so, do all of its provisions comply with the Charter of Fundamental Rights and Freedoms of the Czech Republic and/or other parts of the constitutional system? 

        The Constitutional Court did not provide a direct answer to the first part of the question. It is only possible to make an indirect deduction from the Constitutional Court’s decision that the Court considers the Charter of Fundamental Rights of the European Union as an international treaty and that the Charter does not contradict the Constitution. However, no explicit answer has been provided.

        Question no. 4: Will the European Union remain an international organization or institution to which Article 10a of the Constitution allows the transfer of powers of the bodies of the CzechRepublicafter the LisbonTreaty enters into force? 

        The Constitutional Court has not given any answer.

        Question no. 5: If the Lisbon Treaty amends, albeit indirectly, the Accession Treaty, does Constitutional Act No 515/2002 Coll. on the Referendum on the Czech Republic's Accession to the European Union not implicitly apply to the Lisbon Treaty as well(if so, it would be necessary to amend, in particular, the referendum question)? Then, should the approval of the ratification of the LisbonTreaty not be subject to a referendum as well?

This question was the only one that was answered by the Constitutional Court, even though the Court apparently did not understand my inquiry.

        The Constitutional Court stated that a referendum is in fact possible. It also stated that this decision does not fall within its competences but within the competences of political authorities. However, my question was whether the already approved constitutional Act on the Referendum on accession of the CzechRepublicto the European Union does or does not apply to the Lisbon Treaty. The Lisbon Treaty changes the terms and conditions of our accession and it does so in a very significant way.

Vaclav Klaus,
16 October 2009

Radim Ochvat, Director of the Press Department