The Judgement of the Czech Constitutional Court to the Lisbon Treaty in terms of constitutional law

Since it is the first case of application of the respective provisions of the Constitutional Court Act the main attention is paid to the procedural issues of this kind of proceeding such as formulation of the Senate’s proposal, the nature of the proceeding, extend of the review (the review only on those provisions of the Lisbon Treaty whose consistency with the constitutional order the petitioner expressly contested hence if it assessed the constitutionality of the entire treaty, it could constitute a barrier rei iudicatae for other potential petitioners. There is not possibility to distinguish between the old or new provisions of the Treaty. The Constitutional Court finds itself for the first time in a situation quite different from reviewing the constitutionality of amendments of acts as a subsequent control of the constitutionality of legal regulations. The Constitutional Court did not assess those parts of the Lisbon Treaty (comprising also dozens of protocols and declarations of a general and special nature) which do not concern the Czech Republic. In this connection, the general principle needs to be stated that where a member state gives a free hand to the future European Court of Justice to modify or even create new law, then the question needs to be asked whether it makes sense to engage in an abstract dispute over something that will obtain its specific shape only in its judicial decisions on thousands of pages of complicated texts of primary law. That’s why even after ratification of the Accession Treaty, the normatively supreme position of the constitutional order was not rendered meaningless, and that, in exceptional cases, one can conclude that a treaty is inconsistent with the constitutional order even ex post, subsequently, after it has been ratified, via individual constitutional complaint proceeding. The author analyses the styling of the judgement and its structuring. The attention is always paid to the key notion of material (substantial) core of the constitutional order and to a Euro-conforming interpretation of the constitutional provisions.