Saturday 31 October 2009

EU Lisbon Treaty: Trick or treat(y)?

Trick or treat?”, asked president Vaclav Klaus, and 27 member state governments (including his own) obliged by granting the Czech Republic an opt-out from the Charter of fundamental rights of the European Union.

Presidency conclusions

This is how the Presidency conclusions of the European Council 29 to 30 October 2009 (document 15265/09) settle the issue (page 1 to 2):

I. Institutional issues

1. The European Council welcomes the ratification of the Treaty of Lisbon by Germany, Ireland and Poland, which means that it has now been approved by the people or the parliaments of all 27 Member States.

2. The European Council recalls that the entry into force of the Treaty of Lisbon requires ratification by each of the 27 Member States in accordance with their respective constitutional requirements. It reaffirms its determination to see the Treaty enter into force by the end of 2009, thus allowing it to develop its effects in the future.

On this basis, and taking into account the position taken by the Czech Republic, the Heads of State or Government have agreed that they shall, at the time of the conclusion of the next Accession Treaty and in accordance with their respective constitutional requirements, attach the Protocol (in Annex I) to the Treaty on European Union and the Treaty on the Functioning of the European Union.

In this context, and with regard to legal application of the Treaty of Lisbon and its relation to legal systems of Member States, the European Council confirms that:

a) The Treaty of Lisbon provides that "competences not conferred upon the Union in the Treaties remain with the Member States" (Art. 5(2) TEU);

b) The Charter is "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" (Art. 51(1) Charter).


Annex I with the text of the protocol appears on page 14 of the presidency conclusions:



The Heads of State or Government of the 27 Member States of the European Union, taking note of the wish expressed by the Czech Republic,

Having regard to the Conclusions of the European Council,

Have agreed on the following Protocol :

Article 1

Protocol No 30 on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom shall apply to the Czech Republic.

Article 2

The Title, Preamble and operative part of Protocol No 30 shall be modified in order to refer to the Czech Republic in the same terms as they refer to Poland and to the United Kingdom.

Article 3

This Protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.


Swedish Council Presidency

Swedish prime minister Fredrik Reinfeldt thanked his colleagues for clearing the final political hurdle to the Lisbon Treaty:

"I am pleased to announce that the European Council has this evening agreed to accept the exemption that the President of the Czech Republic has requested in order to be able to ratify the Treaty of Lisbon. We succeeded in reaching this agreement thanks to the many EU leaders who showed leadership and a strong willingness to cooperate.”


EU minister Cecilia Malmström noted on her blog:

“The Lisbon Treaty was moved yet another step closer to its entry into force last night, as European leaders agreed to grant the Czech Republic a clarification, which will satisfy the Czech government and the concerns of the country’s President Vaclav Klaus.

While not at all an ”opt-out” from the entire Charter of Fundamental Rights, as it has sometimes been described, EU leaders agreed that the Czech Republic will accede to the protocol previously agreed for Poland and the UK, which clarifies the contents of the Charter and its relation to national legislation.”


Vaclav Klaus

Having got his candy, Czech Happenings report that “Klaus not to raise further conditions before Lisbon signature” (30 October 2009). The article refers to a press release by the president’s spokesman Radim Ochvat.

Despite approval by 27 national governments and as many national parliaments, opponents of representative democracy have continued their campaign against the Lisbon Treaty. Yesterday, Kent Ekeroth from the extreme right Sweden Democrats (Sverigedemokraterna, SD) handed a petition with some 20,000 signatures to a representative of Klaus.

The fascistoid Sverigedemokraterna offers no translation of its name, so it has been called Swedish Democrats and Sweden’s National Democrats in various news items, which inform us that they, together with other nasties, Hungary's Jobbik, France's National Front, Italy's Three-Colour Flame and Belgium's National Front have formed the Alliance of European National Movements on Saturday and say they expect parties from Britain, Austria, Spain and Portugal to join them soon.


No to social and employment rights

The leader of the Civic Democratic Party (ODS), Mirek Topolanek, said that the opt-out did not mean any shift in the position on the Benes decrees.

The ODS leader, whose party sits in the anti-integrationist European Conservatives and Reformists (ECR) group in the European Parliament, together with the UK Conservatives and the Polish Law and Justice Party (PiS), expresses his satisfaction for a totally different reason. According to ex prime minister Topolanek:

"We will not be committed to fulfil comprehensive social rights of the third generation. This relates to the increased protection of employees in the event of sacking, higher demands for welfare and conditions of collective bargaining."

Unions and social democrats have been less enthusiastic.



Yesterday, a group of about 15 demonstrators ─ UKIP, UK Conservatives and others flying Czech colours ─ in Brussels urged president Klaus not to sign the Lisbon Treaty. On Wednesday, about 200 had demonstrated in Prague.



The Czech Constitutional Court in Brno deals with the Lisbon Treaty Tuesday, 3 November 2009, which is the earliest day for a resolution on the complaints filed by 17 Czech Senators, defeated in the democratic arena.

After the substantially unfounded concession, but face-saving for president Vaclav Klaus, the Lisbon Treaty can finally be ratified by the Czech Republic, if the Constitutional Court rejects the complaints.

If the ratification instrument is deposited with the Italian government during November, the Lisbon Treaty could enter into force from 1 December 2009.

When the following EU Accession Treaty is concluded, the political promise made to the Czech Republic would be formally enshrined, somewhat shamefully distancing the country from the community of values formed around the Charter of Fundamental Rights of the European Union. The effect – including social and employment principles – is more symbolic than real, but the Czech will find themselves in the company of the United Kingdom and Poland.

According to the prime minister of Luxembourg, Jean-Claude Juncker, the Swedish presidency of the EU Council will start consultations on the top jobs (president of the European Council and high representative for foreign affairs and security policy) the day after president Klaus signs the ratification instrument. An extra summit will be convened, most likely in November.

In principle, the new Commission should take over tomorrow, 1 November 2009, but the Council still needs to agree with the president-elect, José Manuel Barroso, on the list of members. Some member states have not made their proposals yet. The European Parliament then arranges hearings with the proposed commissioners, before giving its consent to the Commission as a body. After that, the European Council makes the formal appointments. Even if the European Parliament does not reject the proposed Commission, 1 January 2010 seems to be the earliest possible date for entry into office.

Almost a decade has passed since the European leaders acknowledged that the Treaty of Nice was an unsatisfactory quick fix and that the treaty reform process had to continue, in the Nice declaration (23) on the future of the Union...

The Treaty of Lisbon is a step forward, but Europe’s new challenges have emerged and developed much faster than the structure of the European Union.

Ralf Grahn


  1. You may also want to check this out on the "legal impact" of the Protocol no. 30:

  2. LCP,

    Thank you for the valuable link, which contains more detailed reasoning, in line with the findings of the House of Lords on the Lisbon Treaty and Professor Steve Peers' analysis for Statewatch.

    Trick or treat is a relative of extortion or the "protection business", if we think about it ...

  3. The main problem with the Presidency in the Treaty is that the post is unelected.

    The position has been left ill-defined and in the hands of an adept politician could become a position with real executive powers. Such a post really has to be accountable to the European electorate.

  4. Gary,

    As I have written earlier, I see a chairman-like president as wholly suitable. Every collegiate body has on, practically.

    A "President of Europe" goes beyond the Lisbon Treaty.

    I would strengthen legitimacy on a parliamentary basis, not by creating a presidential system.


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