CONSTITUTIONAL CONSTRAINTS FOR EUROPEAN INTEGRATION (THE CZECH VIEW)

Por

JIRI ZEMANEK

Jean Monnet Professor

Charles University in Prague

[email protected]

Revista General de Derecho Público Comparado 7 (2010)

ABSTRACT: The Czech Constitutional Court in its Lisbon I and II judgments repeatedly refered to the supreme status of the Constitution within the national legal order after the accession, which didnot lead to an implicite amendment of the constitutional order. The functionality of the European institutional framework as a guardian of shared values (rule of law, fundamental rights etc.) has been demonstrated. However, the national „constitutional core“ must be protected against misuse of competence by the European Union bodies, even when the listing of vital (non-transferable) state functions is a matter of political process, not of adjudication. There are two pillars of European democracy: the European Parlament and national parliaments, both elected directly by Union Citizens. Sovereignty in a modern state is not an aim in itself based on exclusivity, but a means serving the aspirations of the people, concentrated in the power to dispose with the competences (to confer). This restrained reasoning of the Czech Constitutional Court largely emancipated it from the earlier “dependence“ on the positions of the German Constitutional Court.

KEYWORDS: The Treaty of Lisbon; Shared values; National constitutional reservations; Conferral of powers; European democracy; National sovereignty.

SUMMARY: I. Diverging assessments.- II. Constitutional core and ultra vires doctrin.- III. European democracy.- IV. Sovereignty issue.- V. Final Remark.

LIMITACIONES CONSTITUCIONALES PARA LA INTEGRACIÓN EUROPEA (EL CASO CHECO)

RESUMEN: El Tribunal Constitucional checo en repetidas ocasiones, en las sentencias I y II de Lisboa, hace referencia a la posición suprema de la Constitución en el ordenamiento jurídico nacional tras la adhesión, que no conduce a una modificación implícita del orden constitucional. La funcionalidad del marco institucional europeo como guardián de los valores compartidos (Estado de Derecho, los derechos fundamentales, etc.) ha sido demostrada. Sin embargo, el "núcleo constitucional" nacional debe ser protegido contra el uso indebido de la competencia por los órganos de la Unión Europea, aun cuando la lista de las funciones estatales vitales (no transferibles) es una cuestión que atañe al proceso político, y no a su adjudicación. Hay dos pilares de la democracia europea: el Parlamento Europeo y los Parlamentos nacionales, elegidos directamente por los ciudadanos de la Unión. La soberanía en un Estado moderno no es un fin en sí mismo basado en la exclusividad, sino un medio que sirve a las aspiraciones de las personas, concentradas en la facultad de disponer de las competencias (a conferir). Este razonamiento mesurado del Tribunal Constitucional checo se emancipa en gran medida, de la anterior "dependencia" de las posiciones del Tribunal Constitucional alemán.

PALABRAS CLAVE: Tratado de Lisboa; Valores compartidos; Reservas constitucionales nacionales; Atribución de competencias; Democracia europea; Soberanía nacional.

SUMARIO: I. DOCTRINAS DIVERGENTES.- II. TRIBUNAL CONSTITUCIONAL Y DOCTRINA ULTRA VIRES.- III. DEMOCRACIA EUROPEA.- IV. El asunto de la Soberanía.- V. CONCLUSIONES.

I. DIVERGING ASSESSMENTS

The recent preliminary review of the Treaty of Lisbon by the Czech Constitutional Court („the Court“) (1) and the German Bundesverfassungsgericht ("BVerfG“) (2) has given the opportunity to (re)consider their perception of European integration. The BVerfG reaffirmed its earlier case-law on ultra vires review of European legal acts, extended the control standard for autonomous, German-specific competences of substantial political importance (“constitutional identity“), both moderated by a recourse to the multilevel judicial dialog, and – astonishingly – rejected the direct democratic legitimacy of the European Union (being not in analogy to that of a state), the deficit of which – if not effectively counterbalanced by national parliaments – establishes constitutional limits for further integration. The Czech Court, in its earlier "European“ case-law inspired largely by the German doctrine (3), was now more self-restrained when identifying substantive grounds (criteria of reference) for review and less sceptical to European democracy in its concerns for the sovereign statehood (4).

II. CONSTITUTIONAL CORE AND ULTRA VIRES DOCTRIN

In the Czech Court´s opinion, even ratification of the Accession Treaty did completely render meaningless neither the normatively supreme status of the constitutional order in the legal system of the Czech Republic, nor the Court´s position of an ultima ratio, which can happen under two specific situations:

(a) The Court is required to apply regularly the principle of Euro-conforming interpretation of national law. However, this principle cannot have the character of an implicit amendment of the Constitution. In the event of a clear conflict between the constitutional order and the European law that cannot be cured by any reasonable interpretation, the constitutional order, in particular its material core, must take precedence.

(b) The Court is also required to recognize in general the functionality of the European institutional framework (in particular the European Court of Justice) for ensuring review of the exercise of competences conferred on the European Union. However, its position may change in the future and the respective European act would remain disapplied, if it appears, that this framework is apparently non-functional. Nevertheless, the Court assumes, that it can occur only in quite exceptional cases - abandoning the identity of values or exceeding the scope of competences by adoption of a European act.

Regarding “material core“ of the constitutional order – the inviolable "essential requirements of a democratic state governed by the rule of law“ (5), the Court disliked to define its features as well as to make in an abstract context and in advance an enumerative list of its component parts forever, since it could prevent a future self-serving definition based on cases adjudicated at the time. It is possible to specify the content of “material core“ only on the case-by-case basis. The Court nevertheless mentioned at least some of them: fundamental rights, democracy, people´s sovereignty, division of powers – not as a manifestation of its arbitrariness or (criticized) judicial activism, but to the contrary, as an evidence of its judicial restraint, which is perceived as a means of limiting the judicial power in favour of political processes and prevails over the requirement of an absolute legal certainty.

The Czech Court didnot subject the preservation of the sovereign Czech statehood by the retention of national competences of essential, vital importance, of its „constitutional identity“ (as the BVerfG did). It rejected to set authoritatively substantive limits to their conferral by a catalogue of non-transferable competences, in the future resistant to immediate political pressure and ad hoc interpretations influenced by cases at issue at a particular time, as the petitioners requested - obviously inspired by the German Lisbon judgement´s definition of domaine réservée, where an extensive conferral is not admissible(6). In view of the role which the Court plays in the Czech constitutional system, responsibility for this decision is primarily political and cannot be appropriated by the judicial branch of power. The Court can review it only at the point when the legislature, enjoying wide discretion, “manifestly exceeds“ the content-related limits of conferral (under Art. 10a para 1 Const.–only “certain“ competences can be transferred).

In both dimensions the Czech Court did not aspire to practice a residual jurisdiction and was aware of its duty to refer the question for preliminary ruling to the European Court of Justice; but did not seem to be too eager to do so (7).

III. EUROPEAN DEMOCRACY

In the Czech Court´s opinion, the provision of the Lisbon Treaty that "the functioning of the European Union shall be founded on representative democracy" (Article 10 TEU) concerns processes at the European as well as at national level. The European Parliament is not an exclusive source of democratic legitimacy for European decisions (in contrast to the opinion of the BVerfG), since it derives from complementarity (delicate balance) of both levels, without one necessarily outweighting the other. Over time the division of powers entrusted to the European Parliament and other European authorities has evolved into various normative procedures and reflects the balance between the both levels, authorising the exercise of conferred competence by European Union action(8). The Court rejected that the representative democracy can only exist inside of the sovereign states; the existence of its elements at the European Union level doesnot exclude realization of the same elements at the national constitutional level. The conditions of conformity of the conferral of competences were not violated.

For similar reasons the requirement of an absolute equality among the voters in particular member states is unnecessary (the Czech quota for the members of the European Parlament is rather balanced).

The marked tendency to strenghten the role of the national parliaments in the European Union´s decision-making processes by reinforced parliamentary scrutiny serves counterweighting the disbalanced division of powers in European agenda at national level rather than elimination of an allegely inborn „democratic deficit“ at the European level.

IV. SOVEREIGNTY ISSUE

The Czech Court was also aware of the European self-perception of “an ever closer union among the peoples of Europe“, but not to the extend, that would amount to a loss of statehood by means of change of identity of the Czech Republic, effected by its becoming a constituent part of a European federal state. The Court did not share the juxtaposition between national and European constituencies, which brought the BVerfG to a definition of constitutional limits for further integration and might only be overcome, once the constituent power (the citizens) decides to abandon national sovereignty and establish a European federation; for the time being, the European Union must respect the national reservations, otherwise it would contradict to the Constitution.

In a modern state, sovereignty is not an aim in and of itself, in isolation, but is a means to fulfilling the fundamental values, on which the construction of a democratic state governed by the rule of law stands. The conferral of competences based on a free will of the sovereign and will continue to be exercised with its participation in a pre-agreed, controlled manner, is not a sign of conceptual weakening, but – on the contrary - can lead in its consequences to strenghtening of sovereignty. Therefore, the key manifestation of state sovereignty is not an exclusivity having its source in the monopoly of power, but a possibility of a disposition to transfer some competences (on a temporar or a permanent basis).

The Czech Court was also aware, that the concept of “shared“ (pooled) sovereignty of the European Union as a sui generis entity can hardly be subsumed under classical categories of constitutional theory, as the President Vaclav Klaus argued in his pleading. This concept was already reminded in the political Memorandum accompanying the Czech application for EU-membership as early as in January 1996 (9).

V. FINAL REMARK

The Czech Constitutional Court has emancipated itself in two Lisabon judgements from its former position of a “Lehrlinge“ (apprentice) of European law. Even when its “European doctrine“ is not completed yet, the Court seems to be fairly “fit“ for the post-Lisabon European judicial discourse.

NOTAS:

(1). Cases Pl. US 19/08 Lisbon I of 26 November 2008 and Pl. US 29/09 Lisbon II of 3 November 2009 (English translation at: www.usoud.cz/view/726).

(2). BVerfG, 2BvE 2/08 of 30 June 2009.

(3). See the first path-breaking cases Pl. US 50/04 Sugar quotas of 3 march 2006 and Pl. US 66/04 European Arrest Warrant of 3 May 2006.

(4). I. Pernice, “La rete Europea di constituzionalita”, Der Europäische Verfassungsverbund und die Netzwerktheorie, WHI-Paper 01/10 (www.whi-berlin.de).

(5). “Eternity clause“ of Article 9 (2), which must be read in conjunction to Article 1 (1) Const: „The Czech Republic is a sovereign, unitary and democratic state governed by the rule of law, founded on respect for the rights and freedoms of man and of citizens“.

(6). Criminal law, monopoly use of force, fundamental fiscal decisions, the guarantee of a just social order, culturally and important decisions.

(7). An insertion of this duty in the Act on the Czech Constitutional Court doesnot seem meaningful (different opinion after Lisbon-judgement of the BVerfG expressed by the group of academics and judges – www.whi-berlin.de - Material 01/09).

(8). See the opinion of the GA Miguel Poires Maduro of 26 March 2009 in the case C-411/06 (no. 5): “Democracy… has a number of forms, especially in the Community… involves a delicate balance between national and European dimensions of democracy, without one necessarily outweighting the other… Over the time a balance has evolved between the powers entrusted to the Parliament and other authorities, which is expressed according to the will of the European nations through the various normative procedures, and reflects the balance between national and European instruments authorising the exercise of power on the European level“.

(9). Speaking about the exchange of a part of national sovereignty for a shared supranational sovereignty and co-responsibility as an inevitable step to be taken for the benefit of its own country and the whole of Europe.