Czech Republic

V - 136(3) TFEU

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.

Negotiation
V.1
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.[1] 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.[2] 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.[3] There was no substantial opposition to the Amendment.[4] The preliminary consent to the government position was given by 120 votes in favour to 2 against (170 out of 200 deputies were present).[5]

Approval
V.2
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.[6] 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),[7] 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.[8] 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.[9] The Chamber of Deputies agreed to the EC Decision by 140:18 votes (189 out of 200 Deputies present) on June 5, 2012.[10] 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.[11]

Ratification difficulties    
V.3
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.[12] 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).[13] 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.[14] In President Klaus’s view, the President is responsible for the ratification of an international and may refuse to ratify it.[15] 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.”[16]

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.[17] 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.”[18] 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.[19] However, before the Court decided, Klaus’s term of office expired and the Court ruled, for that reason, the constitutional action inadmissible.[20]

The political discourse took a new turn with the Czech presidential elections in January 2013.[21] 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[22] and Miloš Zeman, took pro-European rhetoric, however with Zeman being more nationalistic.[23]

Shortly after Miloš Zeman was elected, he announced a new course towards the EU[24] – 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.

Case law  
V.4

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.[25] 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).

 

Miscellaneous
V.5
What other information is relevant with regard to the Czech Republic and the 136 TFEU Treaty amendment?

Not applicable.

[1] A preliminary consent procedure was adopted with the ratification of the Lisbon Treaty. Sec. 109i lit. b) of the Law No. 90/1995 Coll., Rules of Procedure of the Chamber of Deputies, a Sec. 119k lit. b) of the Law No. 107/1999 Coll., Rules of Procedure of the Senate.

[2] Chamber of Deputies of the Parliament, Resolution No. 368/1 of March 16, 2011 on the Draft European Council Decision on Art. 136 Amendment.

[3] PM Petr Nečas, stenographic protocol, Chamber of Deputies of the Parliament of the Czech Republic, March 16, 2011. Available at: http://www.psp.cz/eknih/2010ps/stenprot/014schuz/s014053.htm.

[4] MP Dana Váhalová only urged for broader involvement of private sector and worried about the fact that the new mechanisms of stability is established outside the EU institutions, while the current crisis would need rather deepening of EU integration. Stenographic protocol, Chamber of Deputies of the Parliament of the Czech Republic, March 16, 2011. Available at: http://www.psp.cz/eknih/2010ps/stenprot/014schuz/s014055.htm.

[5] Ibid.

[6] Art 49 of the Constitution reads: “The assent of both chambers of Parliament is required for the ratification of treaties: a) affecting the rights or duties of persons; b) of alliance, peace, or other political nature; c) by which the Czech Republic becomes a member of an international organization; d) of a general economic nature; e) concerning additional matters, the regulation of which is reserved to statute.”

[7] Art. 10a of the Constitution reads: “(1) Certain powers of Czech Republic authorities may be transferred by treaty to an international organization or institution. (2) The ratification of a treaty under paragraph 1 requires the consent of Parliament, unless a constitutional act provides that such ratification requires the approval obtained in a referendum.

[8] Stenographic Protocol, Senate of the Parliament, April 25, 2012, available at: http://www.senat.cz/xqw/xervlet/pssenat/htmlhled?action=doc&value=64331.

[9] Voting No. 17, April 25, 2012, available at: http://www.senat.cz/xqw/xervlet/pssenat/hlasy?G=12721&O=8. The Government Coalition at the time consisted of Civic Democrats and two junior parties TOP 09 and LIDEM. LIDEM was a group of MPs who had left former Government Coalition party Public Affairs. LIDEM did not have enough Ms to create its own political group and so their votes are registered under non-attached members.

[10] Stenographic protocol, Chamber of Deputies of the Parliament, June 5, 2012, available at: http://www.psp.cz/eknih/2010ps/stenprot/040schuz/s040022.htm#r4.

[11] Voting No. 12, June 5, 2012, available at: http://www.psp.cz/sqw/hlasy.sqw?g=55930&l=cz.

[12] Shortly before the Lisbon Treaty ratification process, a constitutional amendment was adopted creating a new procedure for constitutional review of an international treaty allowing the Constitutional Court to review its constitutionality before ratification. The Treaty was not found in conflict with the Constitution (there were two decisions – Lisbon I and Lisbon II; the first initiated by a group of MPs and joined by the President and the second review initiated by a group of Senators). After these decisions, the legitimacy of the Presidents’ refusal to sign the Treaty was considerably low – the Government and both chambers of the Parliament assented to the ratification and the Constitutional Court found the Treaty in compliance with the Constitution.

[13] The Constitution of the Czech Republic is available in English at http://www.usoud.cz/en/constitution-of-the-czech-republic/.

[14] The majority of Czech constitutional and international law scholars had an opposite view – the President cannot refuse to ratify a treaty unless it deviates from the text, which the Czech Republic agreed to and became bound from international law point of view (that is the text the Government representative signed on the international level). See e.g. P. Šturma, V. Balaš, J. Syllová, V. Jirásková, Selected problems of international treaties, negotiation and ratification process, 2010 (prepared for the Ministry of Foreign Affairs in connection with the Lisbon Treaty ratification process). Part 3.3, available at: http://www.mzv.cz/file/570095/Vybrane_problemy_sjednavani_mezinarodnich_sm_luv_res.pdf.

[15] The alternative interpretation was that the President is obliged to ratify given that all other constitutional actors agreed to the ratification (the Government by negotiating the Treaty, the Constitutional Court by founding the Treaty not in conflict with the Constitution, and especially the Parliament by agreeing with three-fifth majorities in both Chambers). Moreover, the President is responsible for negotiating international treaties and he delegates this competence to the Government. Although this construction is rather theoretical, as in practice, it is the Government who negotiates international treaties, it allows for an argumentation that it was the President who negotiated the Treaty (via Government) and therefore it is incoherent with such constitutional construction for him to refuse ratification.

[16] Klaus: Euroval považuji za zrůdnou věc, nepodepíšu jej, E15.cz, Dec. 7, 2012, available at: http://zpravy.e15.cz/domaci/politika/klaus-euroval-povazuji-za-zrudnou-vec-nepodepisu-jej-938718.

[17] Stenographic protocol, Senate of the Parliament, Dec 6, 2012, available at: http://www.senat.cz/xqw/xervlet/pssenat/hlasovani?action=steno&O=9&IS=4898&D=06.12.2012#b13494.

[18] The Constitution has been amended in connection with the introduction of direct elections of the President to make the impeachment more difficult procedurally (the indictment now requires consent of three-fifth majorities in both Chambers of the Parliament; while until then simple majority was required), while at the same time the reasons for indictment were extended. The amendment has not been in force yet at the time of the impeachment of President Klaus.

[19] Constitutional Court of the Czech Republic, Decision on the Senate Constitutional Action against the President of the Republic, Pl. ÚS 17/13 [2013].

[20] This opinion was contested given that the Constitution stipulates that the consequence of being found committing treason is also that the person is loosing his eligibility to acquire the office again (Vaclav Klaus can, in theory, candidate for the President in the future). The reasons for the Constitutional Court decision are not clear. The constitutional charge was highly controversial and supported by narrow majority in the Senate. Both the Prime Minister and the President-elect condemned the charge.

[21] Elections took place on January 11-12, 2013 (first round) and January 25-26, 2013 (second round). The elections were for the first time direct elections with candidates either being nominated by a political party with members in one of the Chambers of the Parliament (Parliamentary party) or securing 50 thousands signature of eligible voters.

[22] Schwarzenberg’s party TOP 09 was a liberal, the most pro-European party in the centre-right government lead by Civic Democratic leader Prime Minister Petr Necas.

[23] Zeman is a former Prime Minister (1998-2002), who headed Social Democratic Party and managed to establish it as the main party on the left. However, since presidential elections of 2003 (the President was elected by both chambers of the Parliament at the time), in which Zeman was a nominee of the Social Democrats, but lost due to a “coup” by leaders of his own party and President Klaus was elected instead (re-elected in 2008), Zeman withdraw from politics and has been at odds with the Social Democrats since. In 2013 elections, Social Democrats nominated their own candidate, a young and pro-European Social Democrat Jiri Dienstbier. Zeman, who appealed to the same electorate, thus needed to differentiate himself, taking more nationalistic tone. Then President Klaus has been discredited by introducing a controversial amnesty and the majority of the contenders for the office distanced themselves from Klaus on a variety of matters, the EU issues being one of them, though not dominant.

[24] The signing ceremony was attended by the Commission President Barroso.

[25] Sec. 71a of the Constitutional Court Act.