EU Integration and the Czech Constitution: Assertive Judiciary and Baffled Administration

In Stefan Griller, Monica Claes, and Lina Papadopoulou (eds) Member States’ Constitutions and EU Integration, Hart: Oxford 2019

33 Pages Posted: 9 Jun 2015 Last revised: 30 May 2019

See all articles by Lubos Tichy

Lubos Tichy

Charles University in Prague - Faculty of Law

Tomas Dumbrovsky

Charles University in Prague - Faculty of Law; Doha Institute for Graduate Studies - Human Rights Program

Date Written: August 1, 2017

Abstract

The so-called Euro-amendment of the Constitution has created a special regime for participation in integrative international organizations and allowed for transfer of powers and resulting autonomous functioning of complex legal systems built up within such organizations in the Czech Republic.

The Constitutional Court formulated the fundamental principles of constitutional adjudication prior to the accession of the Czech Republic to the European Union: primacy of teleological interpretation, material core of the Constitution and the ultra vires doctrine, radiation doctrine, principle of constitutionally conforming interpretation (indirect effect), and principle of high level of protection of fundamental rights and freedoms.

Upon the accession, the Court adapted these principles to the new situation. The EU law functions autonomously in the Czech legal order and in case of conflict with constitutional provisions, a constitutional interpretation that affords the effect to EU law must take precedence (euro-conforming interpretation affording indirect effect). However, there are limits to such EU law effects. The nature of the Czech Republic as democratic, sovereign state based on rule of law and respecting fundamental rights and freedoms cannot be changed. The Court has acknowledged that the level of human rights protection in the EU is comparable to the level of protection afforded by the Czech Constitution, however it has not fully precluded an ad hoc evaluation. The other essential requirements, such as democracy and sovereignty are developing concepts and the Court would evaluate them on case-by-case basis.

This, at the first sight, progressive and self-confident approach to the European integration becomes grimmer when we look into the every-day practice. Authorities of the state administration often lack sufficient expertise, approached their tasks formalistically, and are unwilling to engage in discussion with and learn from legal academia at home, their colleagues in other Member States, and are utterly unaware of European legal academic discourse even in their area of expertise. The Czech legal academia, with notable exceptions, suffers from lack of comparative approach and struggles to grasp changing realities due to their persistence on rigid legal categories and concepts of the past with little functional value. The courts follow this trend. All these issues add to a worrying decline in support to further integration. The constitutional authorities, from political to judicial branches, at the same time affect public attitude to the integration and adapt to it. As a result, the Czech Republic is moving to the periphery of the European integration project.

Keywords: Czech Republic; Czech Constitutional Court; European Union; European Integration

Suggested Citation

Tichy, Lubos and Dumbrovsky, Tomas, EU Integration and the Czech Constitution: Assertive Judiciary and Baffled Administration (August 1, 2017). In Stefan Griller, Monica Claes, and Lina Papadopoulou (eds) Member States’ Constitutions and EU Integration, Hart: Oxford 2019 , Available at SSRN: https://ssrn.com/abstract=2615617

Lubos Tichy

Charles University in Prague - Faculty of Law ( email )

Nam. Curieovych 7
Praha, 11640
Czech Republic

Tomas Dumbrovsky (Contact Author)

Charles University in Prague - Faculty of Law ( email )

Nam. Curieovych 7
Praha, 11640
Czech Republic

Doha Institute for Graduate Studies - Human Rights Program ( email )

Al Tarfa Street
Doha, Zone 70
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