Conference Paper

In this paper I will explore the issue of national constitutional limitations upon the transfer of competences/sovereign powers to the EU, with particular focus upon the doctrines developed by the Czech Constitutional Court since the Czech Republic's accession to the EU in 2004, and especially in its two decisions on the Lisbon Treaty. As is the case with the highest judicial instance in many EU Member States, the Czech Constitutional Court has developed doctrines that approve the transfer of sovereign powers to the EU while purporting to delimit the outer boundaries of the constitutionally acceptable transfer. The two parts of the doctrine focus on ensuring that the essence of sovereignty (also related to the issue of the maintenance of representative democracy at the Member State level) is preserved, and on ensuring that the substantive law-based state is respected. It is my contention that the doctrine on the essence of sovereignty is a constitutional figleaf in that it has no discernible content and the Constitutional Court has no intention of blocking a democratic decision to transfer competences to the EU. On the other hand, I will argue that the Constitutional Court's major focus has been on ensuring the substantive law-based state by rhetorically strengthening its asserted power to police specific EU legal acts for their compatibility with the essence of the democratic law-based state, a concept whose contours have been taking more distinct shape in recent years and which the Constitutional Court can more effectively employ to ensure that the EU does not overstep its bounds. Constitutional Review of EU Treaties: Democratic Fig Leaf or Genuine Protection of National Sovereignty?