V Treaty amendment article 136(3) TFEU
At the 16/17 December 2010 European Council a political decision was taken to amend the Treaties through the simplified revision procedure of article 48(6) TFEU. On March 25, 2011 the European Council adopted the legal decision to amend article 136 TFEU by adding a new third paragraph: “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.”
The process of approval of this decision by the member states in accordance with their respective constitutional requirements as prescribed by article 48(6) has been completed and the amendment has entered into force on 1 May 2013.
What political/legal difficulties did the Czech Republic encounter in the negotiation of the amendment of article 136 TFEU?
The Parliament gave a preliminary consent to the Government to agree to the draft European Council Decision on Art. 136 Amendment. On March 16, 2011, the Chamber of Deputies of the Parliament mandated the Government to agree to a compromise that would not differ substantially from the original draft, that would respect the basic framework set by the Statement by the Eurogroup of Nov. 28, 2010, and that would be in compliance with Art. 48/6 TEU. The Government then conditioned its consent to the plan – a Treaty amendment would be strictly limited to the aim sought and would not transfer new competences to the EU (the second condition, however, follows from the limitations of the simplified procedure itself). Under these two conditions, CR agreed to the use of the simplified procedure.
In the Parliamentary debate, Prime Minister (PM) Nečas emphasized that the Amendment does not transfer new competences to the EU, that there is no obligation for CR to financially participate on the ESM operations and at the same time nothing prevents CR to voluntary participate on the mechanism ad hoc. He reassured that strong Euro is essential for the Czech economy and that CR supports the draft Amendment and the ESM in general. There was no substantial opposition to the Amendment. The preliminary consent to the government position was given by 120 votes in favour to 2 against (170 out of 200 deputies were present).
How has the 136 TFEU Treaty amendment been approved in the Czech Republic and on what legal basis/argumentation?
The European Council Decision was considered a “presidential” international treaty falling within Art. 49 of the Czech Constitution. The ratification therefore required an assent of both chambers of Parliament and ratification in the narrow sense by the President (Art. 63 of the Constitution). There was little discontent about the required majority. Given that the Amendment does not transfer new competences to the EU, simple majority would suffice. However, the EC Decision was finally considered under Art. 10a of the Constitution (which has been regularly used as a constitutional basis for the previous EU Treaties changes), requiring three-fifth majority of all Deputies and three-fifth majority of Senators present (Art. 39/4 of the Constitution). The Parliament opted for this solution in order to build and declare broader consensus on the issue. The Senate agreed to the EC Decision by 49:9 votes (62 out of 81 Senators present) on April 25, 2012. The breakdown of votes was as follows: Social Democrats: 29 in favour, 10 not present, 1 abstention; Civic Democrats: 9 in favour, 6 against, 8 not present, 1 abstention; Christian Democrats: 5 in favour, 1 against; TOP 09: 4 in favour, 1 abstention; non-attached Members: 1 in favour, 2 against, 2 abstentions. The Chamber of Deputies agreed to the EC Decision by 140:18 votes (189 out of 200 Deputies present) on June 5, 2012. The breakdown of votes was as follows: Social Democrats: 47 in favour, 3 not present, 3 abstentions, 1 authorized absence; Civic Democrats: 41 in favour, 4 against, 4 not present, 2 abstentions; TOP 09: 41 in favour; Communists: 1 against, 1 not present, 24 abstentions; Public Affairs: 1 in favour, 11 against; non-attached Members: 10 in favour, 2 against, 1 not present, 2 abstentions, 1 authorized absence.
What political/legal difficulties did the Czech Republic encounter during the ratification of the 136 TFEU Treaty amendment?
The ratification process of the European Council Decision (introducing the Article 136(3) TFEU) was stalled due to a refusal of President Václav Klaus to sign it. President Klaus set the precedence with his initial refusal to sign the Lisbon Treaty. On the legal ground, the debate centred on the meaning of the provision of the Czech Constitution regulating the ratification process. The Constitution provides that the President of the Republic “negotiates and ratifies international treaties” (Art. 63(1)(b)) and that “[t]he assent of both chambers of Parliament is required for the ratification of [qualified] treaties” (Art. 49). The President has interpreted these provisions literally – the President ratifies the Treaty and the Parliament gives assent, meaning that the ratification of a treaty is in the hands of the President with his signature to the treaty being the constitutive moment (unlike in the case of statutes). “Ratification” was thus interpreted as the act of signing a treaty by the President with the Parliament giving the assent before the actual ratification. In President Klaus’s view, the President is responsible for the ratification of an international and may refuse to ratify it. President Klaus eventually ratified the Lisbon Treaty.
However, he repeated this approach with the European Council Decision, despite the fact that both Chambers of Parliament had gave their assent to it. This time, the pressure from the EU partners was lower given that the mechanisms sought after by the European Council Decision have been already operational. As the Art. 136 TFEU Amendment does not create any immediate obligations for the Czech Republic and before taking any obligations arising thereof, another decision (to join the Euro) would have to be taken, there was no intention to submit the amendment to the Constitutional Court for a review. According to Klaus, the Art. 136 TFEU Amendment and the ESM were “horrifying and absurd.”
As the conflict between the President on the one hand and the Government and the Parliament on the other hand escalated, the Senate passed a motion calling the President to sign the ratification instrument promptly. In January, the President issued a decree providing for a broad amnesty. This led to a considerable political turmoil. The Senate took an unprecedented step and lodged a constitutional action against the President. According to Art. 66 (2) of the Constitution, “[t]he President of the Republic may be prosecuted for high treason before the Constitutional Court on the basis of a charge brought by the Senate.” Although an amnesty decree issued in January 2013 was the main focus, charges of gross violation of the constitutional order included President’s refusal to ratify the European Council Decision. In fact it was listed as the first charge in the constitutional action. However, before the Court decided, Klaus’s term of office expired and the Court ruled, for that reason, the constitutional action inadmissible.
The political discourse took a new turn with the Czech presidential elections in January 2013. The idea of direct presidential elections has been discussed for a decade and the first elections were widely followed by general public. Miloš Zeman was an “independent” candidate (meaning he collected 50 thousands voters’ signatures instead of being nominated by a Parliamentary party). This gave him more freedom in the campaign, including on EU issues. Both main candidates, Karel Schwarzenberg and Miloš Zeman, took pro-European rhetoric, however with Zeman being more nationalistic.
Shortly after Miloš Zeman was elected, he announced a new course towards the EU – that he would sign the European Council Decision promptly, while emphasizing the Treaty does not create any new obligations for the Czech Republic. He took the office on March 8, 2013 and signed the Decision on April 3, 2013. As the Czech Republic was the last Member State to ratify, upon the conclusion of the ratification process in the Czech Republic, the EC Decision amending the Treaty entered into force on May 1, 2013. The Schwarzenberg’s party TOP 09 tried to exploit the new pro-European course of the President and called for the Government to join the Fiscal Compact, threatening to leave the Government otherwise. However, this effort dissipated.
Is there a (constitutional) court judgment in the Czech Republic on the 136 TFEU Treaty amendment?
No. In general, an amendment to the Constitution adopted in anticipation of the Czech accession to the EU entrusted the Constitutional Court with review of conformity with constitutional acts of international treaties. Prior to the ratification of a qualified treaty (a treaty transferring powers to international organization or institution and treaties requiring ratification of Parliament), the Constitutional Court has jurisdiction to decide concerning the treaty’s conformity with the constitutional order. A treaty may not be ratified prior to the Constitutional Court giving judgment (Art. 87 (2) of the Constitution). A petition, may be submitted by one of the chambers of Parliament, as of the moment when the treaty is submitted to it for its consent to ratification, until the moment when the treaty receives that consent; a group of at least 41 Deputies or a group of at least 17 Senators, from the moment when the Parliament has given its consent to the ratification of the treaty, until the moment when the President of the Republic ratifies the treaty; a group of at least 41 Deputies or a group of at least 17 Senators, from the declaration of the results of a referendum in which consent to the ratification of a treaty is given, until the moment when the President of the Republic ratifies the treaty; and the President of the Republic, from the moment when the treaty was submitted to him for ratification. The court reviews only provisions of a treaty contested by the petitioner, not a treaty in its entirety. That means, a decision on compliance with the constitutional order of a treaty does not represent res iudicata and other authorized persons may submit their own petitions with different argumentation or for provisions not contested yet. So far, only the Lisbon Treaty was subject to the review (twice).
What other information is relevant with regard to the Czech Republic and the 136 TFEU Treaty amendment?