EMU Integration and the Czech Constitution: Doctrinal Openness and Political Reluctance

Stefan Griller (ed.), EMU Choices. Hart, Oxford 2019 Forthcoming

37 Pages Posted: 12 Jun 2019

See all articles by Tomas Dumbrovsky

Tomas Dumbrovsky

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

Date Written: May 28, 2019

Abstract

The 2001 constitutional amendment introduced Art 10a in the Constitution. This Article regulates the Czech Republic’s participation in integrative international organisations and allows for transfer of powers and the resulting autonomous functioning in the Czech Republic of the complex legal system up within such organisations. Article 10a of the Constitution is also the basis for participation in integrative projects outside the EU. The Czech Republic is not a member of the euro area. It did not participate in the EFSF. It is also not a party to the ESM Treaty, is not bound by most of the provisions of the six-pack and the two-pack, and does not participate in the Euro-Plus Pact and the pillars of the Banking Union. Besides lack of political consensus, there are also structural socio-economic reasons for the cautious attitude towards participation in new fiscal, monetary, and banking cooperation. The material core of the Constitution creates an insurmountable barrier to actions of any institution of public power, Czech or European, and the Constitutional Court acknowledged its competence to review, as ultima ratio, ultra vires acts of the EU institutions. It does not necessarily mean that a transfer of competences is limited by the material core as long as the institutions exercising these powers act within the limits of the material core of the Constitution. That would apply to the accession to the third stage of EMU regarding monetary sovereignty. The Czech Republic assumed an obligation to accede to the third stage of EMU and arguments raised conditioning this obligation (such as rebus sic stantibus) are irrelevant. The current practice to abstain from participating in the ERM II as a way to avoid the obligation to accede to the third stage of EMU, despite fulfilling the convergence criteria, must be assessed as illegal. The Constitution gives a wide discretion to the legislator regarding economic and social reforms. The Court acknowledges that the enjoyment of these rights is conditioned by socio-economic situation of the state. However, the essential content of these rights may be compromised in exceptional situations only. It is yet to be clarified to what extent the essential content of social rights belongs to the material core of the Constitution. The Court hinted that the constitutional guarantees of social rights are an expression of the nature of the state and are intertwined with human dignity.

Keywords: Czech Republic; constitutional order; material core; ultra vires doctrine; member state with derogation; judicial review of economic measures; fiscal constitution

Suggested Citation

Dumbrovsky, Tomas, EMU Integration and the Czech Constitution: Doctrinal Openness and Political Reluctance (May 28, 2019). Stefan Griller (ed.), EMU Choices. Hart, Oxford 2019 Forthcoming, Available at SSRN: https://ssrn.com/abstract=3395392

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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