1. Implementing EU-law – The Czech Republic
BETWEEN LAW AND POLITICS
Karin Hilmer Pedersen
Ph.D.
Aarhus University, Denmark
Work in progress
Paper prepared for the VII CEEISA Convention,
"Borders on our mind, borders of the mind" 2-4 September, 2009,
School of International Relations, St. Petersburg University

2. “Law is to political institutions as bones to the body”
“Law is to political institutions as bones to the body” Sir Frederick Pollock The History of English Law as a Branch of Politics, 1882
The judicial changes in the EU – two related yet independent developments
The Constitutionalization of EU and its Member States
The Treaties as the main documents for interpretation
Direct action and superiority
The dual reform of Central- and East European legal systems
The question:
May boarders on or of our mind in an EU-27 block the function of internal market regulation?

3. The empirical context – EU and the Czech Republic
Czech president Vaclav Klaus has stated that the Czech Republic can not ratify the Lisbon Treaty as several pharagraphs contradict the Czech Constitution.
In November 2008, the Czech Constitutional court ruled that the pharagraphs in question are in compliance with the Czech Constitution.
An example of:
Czech EU-scepticism
The Czech Constitutional court’s independence

4. Two theoretical points of departure
Europeanization : a process in which EU law and policies are implemented in member states, highlighting, however, the importance of domestic mediating factors
Economic vulnerability
Political institutions and traditions
Ideas, and norms
Judicialization: a process in which the importance of legal interpretation is increasing: => the importance of judges

5. Legal traditions: the relation between the judiciary and the executive
American constitutionalism:
Judges should hold powers to control that the executive and legislative branches decisions are held within the frame of the Constitutionally given rights (A. Hamilton, The Feeralist papers no. 78)
Continental ’constitutionalism’:
Legal realism an the ambiguity of legal interpretation calls into question excessive power vested in judges (Alf Ross)
Constitutional courts especially designed for the task of judicial review
The Sovietlegal tradition:
The judicary as a reliable and effective instrument serving to enforce socialist ideology , thus strengthening state authority (Zdeněk Kühn)

6. Europeanization of the judiciary – the Czech case: Giving priority to the executive
Immediate actions
Discrediting Soviet judges (lustration process) (interview; Cepl )
Attitudes of the political and administrative elites were to solve problems with administrative means first, and then initiate legislation (demstar data, 2004)
Stabilizing executive dominance
Court judges subordinated to the Ministry of Justice (Bobek, )
Deciding not to establish an independent national judicial council (Wittrup)
Transposition of EU law into national law

7. Transposition deficit of the Member states Member States remaining above the ceiling of 1,0 % target, November 2008 (series 1) and 2007 (series 2) Internal market Scoreboard, 2009 no 19 and

8. New references for a preliminary ruling by Member State according to art.234, the first 5 years of member ship Court of Justice Statistics, Annual Report 2008,

9. Judicialization through knowledge
85 per cent of the responding Czech judges questions if their colleagues have sufficient knowledge of EU-law.
“I use the present Czech law and try to interpret it in accordance with the intentions and aims of EU legislation. With the present level of knowledge of EU law, I would not dare to claim that I am capable of its exact interpretation”.
“There is definitely variation in the knowledge of EU law among the younger colleagues, who studied when the EU law was being taught at the law faculties. I am one of them, but nevertheless, I think that the level of knowledge of EU law, even among those persons, is not sufficient.”

10. Judicialization through norms
”Generally, I do not agree with the present regulation. EU law already behaves as if the United States of Europe already exists. It is not possible to unify the laws of all member states under one roof because it takes into account neither their individuality, nor the specifics of all the countries and their historical or legal development” (High Court Czech judge). BUT ”I think that EU law should be continuously incorporated into national legislation, so that thorough knowledge of EU law suffices for ordinary court praxis” (Czech judge)

11. Is there a ’barrier’ between minds when implementing EU-law?“
Awareness of EU law is generally high, but knowledge about it is not very deep. Judges usually recognize if aspects of a case are linked to EU law, and they then study the relevant part. In practice, I don’t see any fundamental problems in the application of EU law. I don’t think that the standard of knowledge about EU law is poorer among Czech judges than among German and Austrian judges, or in former “Eastern” countries – Poland, Hungary, Slovenia or Slovakia.” (Czech judge)