Posudek k návrhu Ústavy Evropské unie

It is possible to appraise the impacts of the Draft Constitution of the EU on the state sovereignty of the CR only in the context of the changes which will occur 11pon the country’s accession to the Union. A number of such changes will remain concealed from common view by the sober formulation of the so-called Euro-amendment of the Constitution of the CR (Const. Law no. 39512001 Coll.), which does not deal explicitly with the effects of EU law in the Czech legal environment. As submitted by the Convention, the Draft Constitution of the EU consolidates and elaborates the content of the existing constitutional principles of the Union, and forms, together with the constitutions of the member states, one functional whole. It is not, however, a constitution in the forma/ sense, since it does not (as yet) feature the direct involvement of the citizens as the primary constitutional power on a Unionwide level. For the purposes of domestic approval of the Draft Treaty on the Constitution of the EU it will not be necessary to make an additional amendment to the Constitution of the CR, since the current language of Article 10 and/or 10a offers sufficient room for such discussions. The Draft Constitution of the EU confers some new powers from the member states to the EU, especially in the field of common foreign and security policy. Nonetheless, the exercise of such powers is, in general, still contingent upon the usage of legal instruments available from intergovernmental cooperation. The Draft Constitution of the EU significantly expands the options for national parliaments to participate in political and legal monitoring of adherence to the principle of subsidiarity by Union institutions. The legal formulation of the relationship between the central bodies of legislative and executive power in the CR ought to be enforced to ensure the full usage of such options (the so-called “Liaison Act”). The inclusion of the Charter on Fundamental Rights into the Draft Constitution of the EU significantly expands the set of directly applicable provisions of Union law at national level with supremacy not only over laws but also over the constitutions of the member states, insofar as such laws or constitutions might obstruct domestic implementation of Union law. If indirect amendment as a consequence of the principle of supremacy should lead to legal uncertainty, it would be appropriate to perform a due amendment (e.g. by attaching an addendum to the Czech Charter, pursuant to which a “citizen” would be deemed to mean any “citizen of the European Union”); a due amendment might also entail restricting the space for a facultative preliminary review of the constitutionality of the Treaty on the Constitution of the EU by the Czech Constitutional Court pursuant to Artic/e 87(2) of the Constitution of the CR. An indirect restriction of state sovereignty will occur as a result of the change in the provisions on voting by qualified majority in the Council, which will be made to a general principle for passing decisions in this institution (with permissible exceptions in favour of unanimous voting). At the same time, however, there will be a significant strengthening of the democratic legitimacy of Union decisions on issues of legislation, the passing of which will be fully conditional upon the approval of the European Parliament.