Publication details
The Constitution and Constitutional Identity of the Czech Republic vs. the Law of the European Union
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| Year of publication | 2022 |
| Type | Chapter of a book |
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| Description | The relationship of the law of the European Union to the law of the Czech Republic is set out in the Constitution of the Czech Republic, which provides for its primacy as treaties or acts resulting from the implementation of treaties (regulations, directives) over acts. Its relationship to constitutional acts is linked to the question of state sovereignty. If we recognize state sovereignty, European law does not take precedence over the constitutional norms of a member state, unless that member state explicitly declares otherwise. In the Czech Republic, the Constitution does not place European law above constitutional law. All constitutional acts of the Czech Republic are valid without exception on the territory of the Czech Republic and take precedence, even if they contradict the law of the European Union. The basic European treaties do not regulate the relationship between European law and the constitutional law of a member state. The theory of the primacy of European Union law, including directives and regulations adopted by majority vote against the will of a member state, over the legal order of the member state as a whole, including constitutional law, is based on the practice of the Court of Justice of the European Union. However, with regard to constitutional law of member states, this primacy can only exist if a member state has lost sovereignty as a result of its accession to the European Union. A sovereign state cannot be subordinated to any authority except through voluntary self-restriction. Its constitution cannot be subordinated to another, foreign legal system. As the content of the referendum on the accession of the Czech Republic to the European Union was the transfer of certain competences of the Czech authorities to the European Union and not the transfer of sovereignty, the law of the European Union does not take precedence over the constitutional acts of the Czech Republic. However, it cannot be ruled out that a supporter of the loss of member state sovereignty as a result of accession to the European Union will have a different opinion. This is a purely political issue in which a member state’s position will depend on the extent to which its head of state, government and parliament are made up of people advocating one approach or the other. At the same time, the issue of the extent to which the European Council will decide to enforce the alleged primacy of European Union law enforced by the Court of Justice of the European Union will be a highly political one. When a member state joined the European Union and signed the successive amendments to the basic treaties, it was never explicitly stated that this was the moment when the sovereignty of the member state was lost. |