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Constitutional act no. 395/2001 Coll.

Constitutional act no. 395/2001 Coll. is undoubtedly one of the more important amendments of the Constitution: it is also arguably the only one with a nickname (the Euro-amendment). The name reflects the fact that this amendment prepared the Czech constitutional system for a later accession to the European Union. The reason for adoption of this constitutional act was to change the position of the international law in the Czech legal order and thus to ensure direct applicability of the European Law.

Before the adoption of the Euro-amendment, the Czech constitution basically adhered to the dualist conception of relationship between international and national law. At the same time, it recognized one important exception, namely so called “international human rights treaties”. This category of international treaties did not only enjoy direct effect in national law; it effectively occupied a position in the Czech legal order that was in many aspects identical to that of the Constitution itself. For example pursuant to Art. 87 para. 1 a) of the Constitution, the Constitutional Court had the authority to annul a statute that contradicted such an international human rights treaty.

Following the aforementioned constitutional amendment the situation changed considerably. Firstly, the Czech Constitution adopted a monist approach towards international treaties, declaring that all promulgated treaties, to the ratification of which Parliament has given its consent and by which the Czech Republic is bound, form a part of the Czech legal order and take precedence over statutes (Art. 10 of the Czech Constitution). The position towards other sources of international law (such as other international treaties or customary international law) was governed by the newly added art. 1 para. 2 of the Constitution (The Czech Republic shall observe its obligations resulting from international law).

The Euro-amendment touched upon some competences of the Constitutional Court as well. First of all, it gained a competence to review international treaties prior to their ratification). On the other hand since international human rights treaties to form a special constitutional category of international treaties, the Czech Constitutional Court arguably lost its authority to review whether national legislation conforms to standards set by them. This competence of the Czech Constitutional court was functionally replaced by the authority of general courts to directly apply any international treaty (including, but not limited to international human rights treaties) in cases where it conflicted with a domestic statute. This change triggered an interesting response by the Constitutional Court itself (cf. Constitutional Court judgement Pl. ÚS 36/01 of 25. 6. 2002).

The Constitutional Court came to a conclusion that this constitutional amendment, a “neutral” change of fundamental rights protection system, in its effect violated the Eternity Clause of the Czech Constitution no amendment to the Constitution can be interpreted in such a way that it would result in limiting an already achieved procedural level of protection for fundamental rights and freedoms.” Afterwards it went on to argue that the aforementioned change should indeed be considered a limitation of an already achieved procedural level of fundamental rights’ protection.  Therefore – despite the text of the Constitution – the Constitutional Court still treats the international human rights treaties as a part of the “constitutional order”.