European Parliament resolution of 22 May 2013 on the draft protocol on the application of the Charter of Fundamental Rights of the European Union to the Czech Republic (Article 48(3) of the Treaty on European Union) (00091/2011 – C7-0385/2011 – 2011/0817(NLE))
The European Parliament
– having regard to the letter from the Czech Government to the Council of 5 September 2011 on a draft protocol on the application of the Charter of Fundamental Rights of the European Union (‘the Charter’) to the Czech Republic,
– having regard to the letter from the President of the European Council to the President of the European Parliament of 25 October 2011, concerning a draft protocol on the application of the Charter to the Czech Republic,
– having regard to the first subparagraph of Article 48(3) of the Treaty on European Union (TEU), pursuant to which the European Council consulted Parliament (C7-0385/2011),
– having regard to Article 6(1) TEU and to the Charter,
– having regard to Protocol No 30 on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, annexed to the TEU and to the Treaty on the Functioning of the European Union,
– having regard to the conclusions of the meeting on 29 to 30 October 2009 of the Heads of State or Government of the Member States, meeting within the European Council,
– having regard to the declarations concerning the Charter, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007, in particular, Declaration No 1 by all the Member States, Declaration No 53 by the Czech Republic and Declarations No 61 and No 62 by the Republic of Poland,
– having regard to Resolution 330, adopted at the 12th Sitting of the Czech Senate on 6 October 2011,
– having regard to Rule 74a of its Rules of Procedure,
– having regard to the report of the Committee on Constitutional Affairs (A7-0174/2013),
A. The Heads of State or Government, meeting within the European Council on 29 to 30 October 2009, agreed that they would, at the time of the conclusion of the next accession treaty and in accordance with their respective constitutional requirements, attach to the Treaties a Protocol concerning the application of the Charter to the Czech Republic.
B. On 5 September 2011 the Czech Government, in a letter from its Permanent Representative, submitted to the Council a proposal, in accordance with Article 48(2) TEU, for the amendment of the Treaties to add a Protocol concerning the application of the Charter to the Czech Republic.
C. On 11 October 2011 the Council submitted to the European Council, in accordance with Article 48(2) TEU, a proposal for the amendment of the Treaties concerning the addition of a Protocol on the application of the Charter to the Czech Republic.
D. In accordance with the first subparagraph of Article 48(3) TEU, the European Council has consulted Parliament as to whether the proposed amendments should be examined.
E. Pursuant to Article 6(1) TEU, the European Union recognises the rights, freedoms and principles set out in the Charter as having the same legal value and binding force as the Treaties.
F. The Protocols form an integral part of the Treaties to which they are attached, and therefore an additional Protocol establishing special rules with regard to the application of parts of the law of the Union to a Member State requires a revision of the Treaties.
G. According to the second subparagraph of Article 6(1) TEU, the Charter does not extend in any way the competences of the Union as defined in the Treaties.
H. According to Article 51 thereof, the provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. Those institutions, bodies, offices and agencies must therefore respect the rights, observe the principles and promote the application of the Charter in accordance with their respective powers and respecting the limits of the powers conferred on the Union by the Treaties. As confirmed by Declaration No 1 by the Member States, the Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties.
I. Paragraph 2 of Declaration No 53 by the Czech Republic provides that the Charter ‘does not diminish the field of application of national law and does not restrain any current powers of the national authorities in this field’, thereby establishing that the integrity of the legal order of the Czech Republic is guaranteed without recourse to an additional instrument.
J. On the basis of academic evidence and case-law, Protocol No 30 does not exempt Poland and the United Kingdom from the binding provisions of the Charter, it is not an ‘opt-out’, it does not amend the Charter and it does not alter the legal position which would prevail if it were not to exist(1)
. The only effect it has is to create legal uncertainty not only in Poland and the United Kingdom but also in other Member States.
K. An important function of the Charter is to increase the prominence of fundamental rights and to make them more visible, but Protocol No 30 gives rise to legal uncertainty and political confusion, thereby undermining the efforts of the Union to reach and maintain a uniformly high and equal level of rights protection.
L. If Protocol No 30 were ever to be interpreted as limiting the scope or force of the provisions of the Charter, the effect would be to diminish the protection of fundamental rights and freedoms afforded to people in Poland, in the United Kingdom and, prospectively, in the Czech Republic,
M. The Czech Parliament ratified the Treaty of Lisbon precisely as it had been signed, without any reservation or qualification whatsoever concerning full adherence by the Czech Republic to the Charter(2)
N. The Czech Senate, in its Resolution 330 of 6 October 2011, opposed the application to the Czech Republic of Protocol No 30 on the ground that it would lower standards of protection of fundamental rights and freedoms afforded to Czech citizens. The Czech Senate also questioned the – ambiguous – constitutional circumstances in which the matter was first raised by the President of the Republic only after the parliamentary ratification of the Treaty of Lisbon had been completed.
O. The Czech Constitutional Court dismissed two petitions in 2008 and 2009, finding the Treaty of Lisbon to be fully in accordance with Czech constitutional law, but the possibility cannot be ruled out that a petition against the proposed amendment of the Treaties will be lodged at the same Court.
P. Parliament, in a spirit of sincere cooperation, is duty bound to give its opinion to the European Council on all Treaty changes that are proposed, irrespective of their significance, but it is in no way bound to agree with the European Council.
Q. Doubts persist as to the willingness of the Czech Parliament to complete the ratification of the new protocol aimed at extending the application of Protocol No 30 to the Czech Republic; in the event that the European Council decides to examine the proposed amendment, other Member States might wish not to start their ratification procedures until the Czech Republic has completed its own,
1. Calls on the European Council not to examine the proposed amendment of the Treaties;
2. Instructs its President to forward this resolution as its position to the European Council, the Council, the Commission, the government and parliament of the Czech Republic and the parliaments of the other Member States.