The Constitutional Court of the Czech Republic and European Integration
in the Context of Judicial Dialogs
Lecture held at the European Graduate School for the Social Sciences, Telč 7. 10. 2011
Ivo Pospíšil
Constitutional Court of the Czech Republic
Introduction
I would like to thank the organizers of this meeting to be invited to this event and to
have the opportunity to hold a lecture here and to present you with the issue of the Czech
Constitutional Court’s role within the European Integration. Btw. it seems to me the
cooperation between the MU and the CC could be stronger as the CC is seated in Brno and
the building of the court is actually surrounded by the university facilities – the Faculty of
Social Studies, the Faculty of Arts and the building of rector’s office (as I noticed you had a
welcome party at the faculty yesterday, so you could spot the building of the court as well). I
hope this could be the very good start of such a co-operation.
When I was asked by the organizers as a representative of the Czech Constitutional
Court to hold a lecture here, I decided to choose the topic concerning the European integration
and the role of courts and particularly the Czech Constitutional Court. As I noticed from the
list of the participants this topic could be attractive for most of you, as the majority are
political scientists (and I do apologize to the rest who engage in other fields of social science).
As you remember our constitutional court enjoyed its international and European glory
a few years ago when it decided on the constitutional conformity of the Lisbon treaty and
“thanks” to the euro-pessimistic views of our senators and the president we had the
exceptional opportunity among other European constitutional courts to review the treaty even
twice (Pl. ÚS 19/08 and Pl. ÚS 29/09). I will try here to depict what is the role the Czech CC
played and plays as concerns the European integration issues and I will attempt to put it into
the broader framework of the so-called constitutional debates within the European system of
courts.
1. Short characteristics of the Czech CC
As I am here as a representative of the Court today and most of you come abroad it would
be undoubtedly appropriate to start with some few words about the court in general. When
speaking about the history of the court we are usually proud to reffer to the predecessor of
the contemporary Czech constitutional Court which was the constitutional court of the first
Czechoslovak Republic that served as a first court of such a type (the so-called specialized
constitutional judicial review) in Europe. However, it functioned in a limited manner and was
not been reestablished after WWII. The current court has been founded after the split of the
Czechoslovak federation – and as it was established after the breakdown of the former
communist regime its concept followed the similar examples, such as the German
constitutional court or the Spanish constitutional tribunal. It means it has – from the formal
point of view - relatively broad and strong competences – it is authorized to annul legal
acts passed both by the parliament or executive bodies, it deals with the individual
constitutional complaints, it decides on the impeachment of the president of the republic and
last but not least it reviews the international treaties before they are ratified by the president.
Therefore the court substantially and greatly intervenes to Czech politics –
however compared to other comparable European constitutional courts it is nothing
extraordinary. E.g. in 2000 it stroke down the electoral reform arranged by the two biggest
parties – ODS and ČSSD – that should have eliminated the significance of other smaller
parties. What was exceptional in the European constitutional milieu was its decision of 2009
when the court annulled even a constitutional law amending the constitution which
intended to shorten the regular period of the Czech parliament and was prepared in
order to open the space for new parliamentary election. To strike down the constitutional
law by the constitutional court is not an unknown step in Europe, but frankly speaking, it
happens rarely (there are similar examples from Austria when the CC annulled an ordinary
legal act and the parliament passed such an act repeatedly, however by the constitutional
majority and therefore the act passed again was formally labeled as a constitutional one.
It is obvious that the court has large and politically rooted prerequisites to become
an important participant within the so-called judicial debates (dialogs) between
European courts on the issues of European integration. These debates has its long-lasting
tradition going back to the 1960s and 70s when some of the national constitutional courts
(especially the German and Italian ones) challenged the extensive case-law of European court
of Justice.
It was not so surprising the Czech constitutional court which has very similar
competences and position within the domestic political system as its German counterpart
delivered two European-wide important decisions on the Lisbon treaty that could influence
the future of European integration.
2. Courts as actors of European integration
2.1 ECJ as an “engine” of integration, neutral arbiter or wicked initiator and
manipulator
It is well known fact that most of the important constitutional principles of EU have
been promoted not by member states and political bodies, but through the judicial case
law of ECJ. The direct effect and primacy of European law, fundamental rights protection
etc. – all these fundamental principles of EC/EU law have been originally articulated by the
ECJ and only then accepted by other institutions and member states and reflected in the
treaties. What is still disputed on this role of ECJ is the evaluation of this function: has the
ECJ been a neutral arbiter, the positive engine of integration or the negative and even
wicked initiator and manipulator of all that unwanted shifts in the integration, it is the
question.
There are even arguments (advocated for instance by Alec Stone Sweet) asserting that the
process of supranationalisation was not influenced by the member states (that have not
intended to create such an entity), but it was a specific constellation between the ECJ, the
domestic courts and the private actors (individuals, private enterprises and European
pressure groups) that shifted the project of European integration further!
Every actor in this constellation followed his own interest, but the point of intersection
created the pressure for supranationalisation irrespective of the will of member states –
see the following table. In other words from this point of view the shifts in the European
integration were a matter of specific constellations, strategies and interests between
individual participants of judicial procedures, the national courts implementing
European law and the ECJ. While the individual actors aim at protecting their individual
rights, limiting their losts or maximizing their profits (mainly economic ones) stemming from
the promotion of new European standards, the national courts in this multilevel game try to
achieve stronger position in the domestic separation of power (e. g. through widening the
space for judicial review) or through the adjudication of European law they often urge
particular policy that is denied by the domestic political actors. The aim of the ECJ itself is
then to strengthen its own position and prestige in relation to other EU institutions and
member states through developing the original aims of European integration.
Key actors of integration
Actors Objectives and Preferences Limitations and
Constraints
European Court of Justice To promote its own prestige
and power by increasing the
effectiveness of EU law and
developing a constituency for
EU law and litigants and
national courts
To advance the objectives of
the Treaty of Rome
Consistency with substantive
legal doctrine and
methodological constraints
imposed by legal reasoning
Extent of „information
asymetry“ between ECJ and
member state governments
Institutional rules governing
EC decision making
Public attitudes toward EU
integration
Individual litigants
a) „one-shotters“
(individuals)
b) „repeat players“ (large
corporate actors, public
interest pressure and
lobbying groups)
To minimize loss by winning
case (thus coercing
compliance with EU rules in
a given case)
To maximize trade gains and
individual rights by seeking
new (or expanded) EU rules
Limited resources and
relatively short time horizon
Inherent difficulties of case,
„selection and litigation
timing“
National courts To gain and solidify power
of judicial review
To improve institutional
power and prestige relative to
other courts within the same
national judicial system
To increase power to
promote certain substantive
policies through the law
Consistency with substantive
legal doctrine and
methodological constraints
imposed by legal reasoning
Minimum democratic
accountability
Source: Mattli, W. – Slaughter, A. – M. (1998): Revisiting the European Court of Justice.
International Organization, No. 1, p. 187.
This kind of interaction between the European judicial authorities was labeled as judicial
dialogs or judicial debates and represented a very interesting stuff for the application of the
theory of multi-level governance or the theory of legal pluralism. The debates can be viewed
as multilevel network among several variables in non-hierarchic position (between legal
norms, principles, values etc.) or as a network of games and strategies of different actors
(judicial bodies, supranational institutions, private actors). It also represented an impulse for
the European political science to invent the term “judicialization of politics” which has been
very well known in the U.S. from the deliberations on the role and impact of the U.S.
Supreme Court case-law on American politics. Btw. I consider it a regrettable shame that this
issue has been perverted in the Czech Republic by the president Klaus into rather a political
debate on the so-called “juristocracy” which has only a negative and slandering connotation.
2.2 Judicial dialogs and the role of constitutional courts
The political science, especially the Czech one has not still fully realized how important
role has been played by the judiciary in the course of European integration (one most recent
example is the decision of the German constitutional court of 7th
September 2011, 2 BvR
987/10, 2 BvR 1485/10, 2 BvR 1099/10, on the constitutional conformity of the German
participation in the financial aid to Greece; if the court would define such help
unconstitutional this would probably radically change the strategies of EU and member states
towards the Greek economic situation and led to the Greek expulsion from the European
monetary union). The afore-mentioned judicial debates create an important part of the
integration politics as they formulate the institutional as well as content limits for the
integration.
These “dialogs” originate in early 1970s when the German constitutional court
delivered its famous decision called Solange I in which it criticized the EC for the democratic
deficit and the lack of human rights protection (this decision forced the ECJ to invent the
system of fundamental rights protection in its case-law and made the EC to promote the direct
election into the European parliament in 1979). It continued by strong criticism of democratic
deficit and the lack of original EU souvereignty in the Maastricht Urteil (decision) of 1993
where the German constitutional court settled clear criteria under which the German
membership in the EU would be unconstitutional. However only recent years brought an
unprecedented series of landmark decisions of the national constitutional courts towards
the European integration and these recent judgments address key questions of European
constitutionalism. These decisions represent real series of debates on the same themes – I can
mention the sugar quota cases delivered by the constitutional courts in Hungary, Estonia,
Czech Republic in 2004 – 2006, arrest warrant decisions (on the question whether the own
citizen of one member state can be extradited to other member state in order to be charged and
prosecuted) delivered by the Polish, German, Cypriot and the Czech constitutional courts and
last but not least there is a set of decisions on the Lisbon treaty. The Lisbon saga represents
the most important milestone in the previous judicial debates. You are probably familiar with
the decision of the German court and the 2 judgments of the Czech constitutional court that
obtained the most visible attention by the media. But there were other constitutional courts
deciding on the Lisbon treaty: the first decision was issued by the French Conseil
Constitutionnel in December 2007, followed by the Austrian constitutional court in
September 2008. The Lisbon treaty was under the review even after it became effective in
December 2009 by the Hungarian court, Polish constitutional tribunal and the reviewing
procedure in Denmark is even still pending….
All the mentioned decisions are undoubtedly interesting both from the constitutional
point of view as well as from the perspective of European integration. However the real
mutual dialog took place between the German and the Czech constitutional courts as the
German one could react to the first decision of the Czech counterpart and our court replied in
its the second judgment.
Now, what are the spheres of European integration that remain disputed and discussed
in the constitutional courts case-law:
1. First of all it is the very nature of EU itself, i.e. the deficit of the original sovereignty
of EU and its institutions and the lack of democratic legitimation. This was
explicitly highlighted in the German decision on Lisbon treaty where the court
stipulated that the EU authority is not the original one, but still derives from the
sovereignty of member states. As there is nothing like the European people that
could legitimate the EU institutions in direct and equal elections the public authority
of EU can derive from the “state people” (Staatsvolk). According to the German court
even the European parliament is not a representative body of a sovereign
European people as it is not elected in uniform European-wide elections. This has
however serious consequences for the functioning of the EU and the functioning of the
multi-level governance:
a) this means that not the EU, but still and only the member states and their bodies
are the only masters of the whole integration, therefore it is not possible that
the EU institutions could change the institutional framework (which in fact
means the founding treaties) by their own. That is why the German court
requested that the simplified revision of the treaties established in the so-called
bridge-clauses or passerele clauses must be accompanied by the fully-pledged
consent of the German parliament.
b) this conclusion supports the earlier doctrine also developed by the German CC, but
accepted by most of the European courts (including the Czech one), which is the
doctrine of kompetenz-kompetenz. This means that not the EU institutions but
the constitutional courts are the final and definite authority to decide whether the
competences of EU institutions were realized in conformity of founding treaties
and national constitutions.
c) The German CC went further on in its Lisbon judgment when it set explicit
content limits to the future of European integration. It identified 5 key areas
that represent a red line of material core of nation states constitutions that cannot
be overstepped by the integration: these are (1.) decisions on substantive and
formal criminal law (from this point of view it is not possible that the EU
institutions could be authorized to pass whole-European criminal codes), (2.)
disposition and monopoly on the use of force by the police within the state and
by the military abroad, (3.) fundamental fiscal (budget) decisions on public
expenditures, esp. the within the social policy, (4.) decisions on living
condition within the social (welfare) state that differ around Europe, and
finally (5.) decisions of particular cultural importance, for example on family
law, schooling and education systems and dealing with religion.
2. Another disputed sphere are still guarantees of human rights existing on the
European level, even the EU passed a special catalogue – the Charter of EU
fundamental rights – that is after Lisbon a part of the European primary law . The
constitutional courts over Europe remain reluctant to give the EU institutions definite
competence to solely protect human rights – therefore there is a doctrine of Solange II
which is closely connected with the doctrine of kompetenz-kompetenz. The CC all
over Europe manifested they are prepared to protect their own citizen if they find the
European protection as insufficient (btw. It is also the case of the Czech constitutional
court). This could however change if the EU would access the European Convention
of Human rights and all the EU institutions would be submitted to the European court
for HR in Strasbourg which is likely to happen now.
2.3 The European doctrine of the Czech CC
As I mentioned Czech CC became an active and important participant of these Eurodebates
even before the Czech Republic joined the EU in 2004. After 7 years we can
speak about the complex European doctrine of the Czech court that is framed not
only by the two most famous Lisbon judgments but there are also preceding
judgments to Sugar quota (Pl. ÚS 50/04) and European Arrest warrant (Pl. ÚS
66/04) that shaped the CC attitude towards European integration.
How does the Czech doctrine look like?
1. Compared to the German attitude it is more Euro-optimistic. In the Sugar quota
decision we stipulated we are prepared to reflect the standards of HR protection on
the EU level and to adapt and adjust the interpretation of their domestic
constitutional guarantees if this would represent an obstacle for the membership
in the EU. On the other hand the CC borrowed from its German counterpart the
kompetenz-kopetenz doctrine which means that the competences realized by the EU
institutions are only delegated by the Czech Republic which means their original
bearers are still the Czech authorities and the guarantor of constitutional
conformity of the competences is still the CC.
2. As concerns our two Lisbon decisions we do not share such a strong mistrust of the
German constitutional court towards the political processes that take place on
the European level. First of all our court does not agree with the opinion of the
German CC dealing with the lack of democratic legitimacy of EU institutions. Our
decisions speak about the concept of the so-called “pooled sovereignty”: this means
that as far as the functioning of the member states as well as the EU is founded on the
representative democracy, such political processes on the Union and domestic levels
are mutually supplement and are dependent on each other. That is the essence of
multilevel-governance that the political processes taking place in the EU cannot be
evaluated in isolation, but only in connection with the mutual processes on the
national levels. Therefore we do not see the democratic situation in the EU at
contemporary stage so deficit and insufficient as our German counterpart.
3. Unlike the German court the Czech CC has not settled any detailed limits for the
future development of European integration as we think these questions are
rather of a political nature and depend on the future decisions of political
representatives. On the other hand there is one important criterion determined in the
Czech constitution which is the preservation of democratic state governed by the
rule of law. The principles of such state are unchangeable even by the constitution
itself it means they cannot be overruled by our membership in the EU as well.
Conclusions
I wanted to show how the courts and debates between the European courts contributed
to the European integration and how it can determine its future direction. The constitutional
courts including the Czech one have never refused the integration as such, but as guardians of
national constitutions have set certain limits upon it. In this way the debate is definitely not
over and it is necessary that politicians as well as political scientist should keep this in mind.
By the way, to conclude with I expect that in a short period of time the decisionmaking
of the Czech Constitutional court will fulfill the pages and broadcasting time of
European media again. You all remember that before the ratification of the Lisbon treaty it
was president Klaus who enforced from the European institutions an exception from the
application of the Charter of EU fundamental rights as the same opt-out was negotiated by the
U.K. and Poland before. However, this exception does not have a legal power as it must have
been proven and ratified by all the member states and therefore it is expected to be
acknowledged in the Croatian accession treaty. I noticed president Klaus now tries to
persuade the Czech social democrats that have majority in the senate (the upper house of the
parliament) and who oppose the exception to vote for as it can become an obstacle to the
Croatian membership in the EU. However, nobody noticed that such an exception legally
acknowledged after the Charter is already in force in the Czech Republic can be discrepant to
the constitutional case-law. This case-law is based on the assumption that the state cannot
deteriorate once settled standard of human rights protection – this means when the Czech
Republic once agreed with and ratified the Lisbon treaty and the Charter as a part of it could
be contrary to our own constitution to withdraw from the Charter…
I cannot tell you if this scenario will really come true, but as I know the case-law of
our court it is very likely to happen, although it could lead to another Euro-scandal of the
Czech Republic president as it will obstruct the Croatian membership in the EU.
Thank you very much for your kind attention!