English Pages, 25. 11. 2008
Mr. Chairman and judges of the Constitutional Court,
I am at this hearing because the Constitutional Court asked me to present my viewpoint on the proposal made by the Senate of the Czech Republic Parliament to have the Lisbon Treaty, modifying the Treaty on the European Union and the Treaty Establishing the European Community as agreed in Lisbon on 17 December 2007, examined in order to assess whether or not it is compatible with the Czech Republic’s Constitution.
At the beginning, I would like to emphasize that I am well aware that the arguments that are the most relevant for the decision of the Constitutional Court are legal arguments. I will concentrate on these arguments in my speech.
However, it is evident that we must not lose sight of the wider context. If this treaty comes into force, the international position as well as internal conditions within our state will change. Also the influence of our country on the decisions of the European Union will be weakened. All this would change the terms of our membership, which were approved by our citizens in the referendum on the EU Accession Treaty. The democratically established authorities of our state will be deprived of the right to decide on many areas of public life and this administration will be turned over to EU authorities which are not subjected to sufficient democratic control. In addition, European Union authorities will be allowed to expand their own competences over life in our country and its citizens at their will, even without our consent.
Our decision on such crucial issues such as the Lisbon Treaty therefore must not be guided by foreign pressure or the momentary short-term interests of some of our politicians. It must not be guided by naive illusions about international politics, which have failed us repeatedly in the past. The decision on the Lisbon Treaty will not be binding just for now or only for a few years. It will bind future generations. Therefore I consider these proceedings of the Constitutional Court a key event in its history. This decision of yours will probably be the most important decision you will ever have to make.
I expect you to explicitly react to my statement of June this year. I am not going to repeat it here, but I believe we should at least briefly sum up those questions of mine that I raised and that I still consider important:
First; Would the Czech Republic – if the Lisbon Treaty came into force – still be a sovereign, democratic and legally consistent state?
Second; Would the Czech Republic still be a member of the international community with full rights, able to abide fully and independently by its obligations arising from international law?
Third; Would the European Union remain an international organisation or would it become a federal state (or an entity of any other name with the characteristic attributes of a federal state), and does our Constitution allow the Czech Republic to become part of such a state?
Your clear and unequivocal response to these questions is a necessary prerequisite for the Czech Republic to be able – in the hypothetical case that the Irish would change their decision in the future – to proceed with the ratification of the Lisbon Treaty.
I am not here at these proceedings just to repeat these elementary though crucial issues. There is a new circumstance. It is the standpoint of the Czech government of 27 June this year, when the government backed up its arguments with the legal doctrine of the “material core” of the Constitution. With the help of this doctrine the government came to the conclusion that the Lisbon Treaty is compatible with our Constitution. However, in my view, it is just the opposite.
Even the very fact that the government is referring to this doctrine is rather surprising, because it is not one that has been tested or proven. It was only first applied in this country in 2006. It was formulated in Germany in connection with the provision of the German Constitution which forbids changing the key attributes of a democratic state. It became popular for the Constitutional Courts because this doctrine turned them into a monopoly arbiter on decisions about which part of the Constitution is important and which is not. In every case, these decisions are inevitably subjective, because the general theory of law contains no definition of which elements of the Constitution are the alleged “material core”. I have grave doubts about this approach to the Constitution; however the government adopted this doctrine as the basis for its attitude to the Lisbon Treaty, so I will try to assess the Lisbon Treaty from this point of view as well.
The Lisbon Treaty does not comply with the constitutional order of the Czech Republic. It violates not only individual provisions that could be remedied by amending the Constitution – though it certainly cannot be solved by interpreting the Lisbon Treaty adoption as an indirect change of the Constitution, as the government assumes. It violates basic constitutional principles which are – according to the “material core” doctrine - untouchable and unchangeable. Article 9 of the Constitution, which is the basis for using this doctrine, states:
“(1) Constitution may be supplemented or amended only by Constitutional Acts.
(2) The substantive requisites of the democratic, law-abiding State may not be amended.
(3) Interpretation of legal rules may not be used as authorization to eliminate or imperil the foundations of the democratic State.”
In the context of these proceedings paragraphs, (2) and (3) are the most important.
It is undeniable that the core of the Constitution as well as its alleged “material core” is the principle of the sovereignty of the state. This was also the conclusion of the Czech Constitutional Court two years ago. You reached this decision in the Sugar Quota Case, where you rejected the doctrine of the European Court about the absolute precedence of Community law. There you stated that – let me quote – “the transfer of power to the European Union authorities can be made only as long as it is done in a way which is compatible with preserving the sovereignty of the Czech Republic and as long as it does not endanger the very basics of the democratic law-abiding state.” End of quote.
This was a very important decision, and I identify with it. It confirms that the Czech Republic – unlike most EU countries – must not become a subject of a federal state (or a state of the federal type). According to the finding of the Constitutional Court No. 154/2006 Coll., renouncing sovereignty would be invalid because it would violate article 9 of the Constitution.
Such a conclusion is not surprising, because it is obvious that there can never be two sovereigns on one territory. We would always decide again and again, which of the two has precedence, who is to decide which powers to transfer to the European Union authorities and which are to remain with the member state. The question is, in whose competence are the competences (i.e. who has the so called “competence competence”).
This is not a new topic. We already had to change our Constitution before accession to the European Union, but even then the amendment of the Constitution had to respect article 9 of the Czech Republic Constitution. This is why it allowed only some specific powers of the Czech Republic authorities to be transferred to the European Union authorities, but it did not allow the transfer of our sovereignty. This clearly stated that any transfer of powers must explicitly list the transferred powers and no possibility must be left for the EU authorities to interpret the scope of the transferred powers as they liked or even allow that they could appropriate more and more powers from our country without needing our consent and without us being able to present our disagreement or refer – as we are doing now – to the Czech Constitutional Court to assess the issue. The Lisbon Treaty will reduce the powers of this court. This is why even now the European Union authorities cannot be given the “competence to take further competences”.
The following provisions of the Lisbon Treaty absolutely contradict the principle of the sovereignty of the state:
- The concept of shared powers according to article 4 of the consolidated wording of the Treaty on the European Union;
- Adopting measures beyond the competence of the European Union, “if it is necessary to achieve some of the objectives set by the Treaties” according to article 352 section 1 of the consolidated wording of the Treaty on the European Union, which is the “authorising clause” or “flexibility clause”;
- The simplified revision procedure for adopting changes of the primary law according to article 48 of the Treaty on the European Union, the passerelle. It allows the establishing treaties of the EU to be changed and thus – immediately – also our legal system simply by a decision of the Council of the European Union.
Also, the implicit external powers doctrine as formulated by the European Court of Justice in 2006 is very doubtful. It allows the European Union to conclude international treaties that are beyond its competences. It is enough for the EU to claim that such a treaty is necessary to achieve the objectives set by the Treaties within EU policies. What is alarming is not only the very vague definition of this competence of the EU, but also the fact that it is already in force, though it is to be codified in the Lisbon Treaty, in article 216 of the consolidated version of the Treaty on the European Union, which will thus codify and legalise this practice retroactively.
The Lisbon Treaty thus begins a process at the end of which the European Union will be the sovereign that sets norms and rules for individual member states and their citizens through directives or some other unilateral form. The constitutions of the states will no longer be the source of the legal order of the individual member states. On the contrary, in such a situation these legal systems will derive their existence from the European Union Constitution (no matter what its name will be) and will have to adapt to it.
It is particularly alarming that this ultimate limitation of the sovereignty of the Czech Republic and the other member states of the European Union is never clearly and openly formulated and it is not explicitly named as the intention and objective of the new order that this treaty will bring about. The termination of sovereignty is carried out in secrecy, implicitly; it is encrypted deep in unclear articles and provisions. If the Lisbon Treaty comes into force, it will – without the European public knowing it – authorise the European Union authorities to reduce the sovereignty of member states by its decisions at will. This is unacceptable. Deepening of European integration must not occur in secrecy, behind the backs of the citizens of member states, and neither can it be forced on them against their will. This would be a violation of article 9 as well as article 1 of our Constitution. The only conclusion that can be made is that the European Union contradicts the principle of the sovereignty of the Czech state.
Another important element of the “material core” of the Constitution is the principle of the sovereignty of the people. “The people are the source of all power in the State”, the Constitution states. This is what makes the Czech Republic a democratic country. It is the clearly defined, historically authentic people, politically identifiable demos, who are the Czech sovereign, the holder of the sovereignty of the Czech state. The whole Czech constitutional, legal and political system springs from the power of the people.
Therefore we should ask who is the source of the legal and political power in the European Union? It certainly is not the people, because no “European people”, demos, exist. The power in the EU is derived from the institutions established by inter-governmental treaties or agreements. However, this conception of power is in contradiction with the conception of the state as defined in the Czech Constitution. This leads to other questions: Would the European Union, after adopting the Lisbon Treaty, be as democratic as the present Czech Republic? Does the European Union have sufficiently structured distribution of powers and sufficient control, supervision and appeal mechanisms? Is its political system based on free and voluntary establishment and free competition of political parties? Is it possible to change the existing EU authorities by electing the opposition? There are a lot of questions like these.
If the Lisbon Treaty came into force, the European executive could force upon us from above even such things that a national parliament would never approve. It would broaden the ways to bypass the national legislative assemblies, which would weaken democracy in the member states, including the Czech Republic. The Lisbon Treaty thus violates the constitutional principle of the sovereignty of the Czech people.
Not only that. If the powers of the Czech people become so limited in order to expand the power of the EU authorities, it will be a chain reaction which will also limit other basic principles of our Constitution – the principle of the protection of personal freedom, the principle of the division of public power, the principle of the rule of law and the equality of citizens in court and the principle of legal certainty. The Czech Republic could then ensure these principles only within the limited residual scope allowed by the European Union authorities.
Another important element of the “material core” doctrine is that the Czech Republic – according to article 1 of its Constitution – is not only a democratic but also a legally consistent state. A legally consistent state is a state where the rules are declared and known in advance. The Lisbon Treaty violates this principle not only because its text is so unclear but especially because of the ambiguity of its provisions that deal with competences. These provisions will be interpreted and executed by the European Union authorities, which are known to interpret EU competences as widely as possible.
In view of all these arguments I consider it as proven that the Lisbon Treaty contradicts all these key constitutional principles, which are considered its “material core”. It is also evident that it contradicts many specific individual provisions of the Constitution. The government, however, believes that these individual contradictions are unimportant, because the Lisbon Treaty, if accepted, de-facto indirectly amends our Constitution, because it automatically becomes a part of it.
This attitude of the government is erroneous, because as part of the existing constitutional order article 112 of the Constitution lists solely the Czech Republic’s Constitution, the Charter of Basic Rights and Liberties and the constitutional acts. It does not mention any international treaties; it even does not mention the treaties listed in article 10a of the Constitution. Not even the quoted article 9 of the Constitution mentions international treaties. This all leads to the conclusion that though the international treaties approved by Parliament have precedence over other acts, they do not have the force of constitutional acts, i.e. they do not create the Constitution and thus cannot be part of it.
Finally, I would like to express my belief that the purpose of these proceedings on assessing the compliance of international treaties according to article 10a and article 49 of the Constitution with our constitutional order is to prevent situations where the Czech Republic would adopt an international obligation that violates our constitutional order. Therefore I am convinced that the Constitutional Court – if it has any doubts about the compliance or non-compliance of the international treaty with our constitutional order – should rather conclude that the treaty is in contradiction with the Constitution. I am referring to the commentary of Eliška Wagnerová et al. about the Constitutional Court Act published by the ASPI publishing house last year, which says: “In this type of proceeding the Constitutional Court should not try to remedy the contradiction by a conformal interpretation in either direction... Any doubts about the contradiction should rather lead it to a conclusion that there exists some contradiction of content.” If there are any doubts the decision should always be in favour of the constitutional order, not against it.
Mr. Chairman and judges, I believe that these new arguments of mine reinforce the conclusion that the content of the Lisbon Treaty is in contradiction with our constitutional order, and I hope you will identify with these arguments.
I am pleased, that these proceedings are public. This gives the public an opportunity for the public to hear the arguments directly, not in a mediated and often caricatured form.
Thank you for your attention.
Václav Klaus, Constitutional Court, Brno, 25 November 2008
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