Abstract
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. The Court found a delicate balance between judicial restrain and activism in the difficult years of transition to democracy.
Its rather restrained approach in abstract review, where it would clash with political branches, was compensated by its activist approach to protection of fundamental rights and freedoms in concrete review, where the Court aimed to "teach" the ordinary judiciary to apply the Constitution directly and on regular basis using specific interpretative methods mentioned above that were rather foreign to ordinary judges. Once it established its authority, the Court has become moderately active vis-a-vis the political branches as well, most notably striking down electoral laws aiming to expand majoritarian voting system at the expense of the proportional system and striking down a constitutional amendment attempting to solve the parliamentary gridlock by ad hoc dissolution of the Chamber of Deputies.
However, in the area of social and economic reforms, the Court has afforded greater discretion to the political branches. Upon the accession, the Court adapted these principles to the new situation.
The development of its "European" doctrine has been influenced by the German Federal Constitutional Court and the Court's Kelsenian understanding of the constitutional judiciary as occupying a special position in the constitutional system with its main task being the protection of constitutionality. The EU law has affect in the Czech legal order based on Art. 10a of the Constitution that provided through the Accession Treaty for transfer of competences to the EU.
According to the Court, the EU law is applicable law for ordinary courts, but not for the Court itself. The Court will enforce the EU law only when its ignorance by ordinary courts is so serious and flagrant that it amounts to breach of the Constitution.
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. The Court afforded itself broader jurisdiction when reviewing changes of EU Treaties prior to their ratification, although it eventually indicated that a negative opinion would be given when the changes could breach the essential requirements protected by the eternity clause.
Similar approach can be expected in case of integrative international treaties outside the EU legal framework. 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. Even the Constitutional Court despite its progressive use of teleological and euro-conforming interpretation and fundamental rights activism is struggling to reach a modern, coherent, persuasive, and sufficiently differentiated doctrine that would make an impact on the European constitutional discourse.
All these issues add to a worrying decline in public 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, which is indicated by its hesitant attitude to ratification of the Lisbon Treaty, especially the Charter of Fundamental Rights of the European Union, keeping out of the Eurozone and the Eurocrisis measures, and unilaterally questioning the authority of the EU institutions.