K mantinelům přezkumu ústavnosti transpozičních předpisů
On the Limits of Constitutional Review of Transposition Acts

Summary/Abstract: This contribution deals with the limits of constitutional review of national acts transposing EU directives. It analyses the limits primarily in the Czech constitutional context. However, it also mentions some parallels and distinctions in the approach to these limits in other EU Member States. In this respect, it is pointed out that the Czech approach shows quite significant similarities to the German and French approaches. It is specified in the analysis that the Czech approach distinguishes between constitutional review of the form and the content of national transposition acts. While the constitutional review of the form of transposition acts is not subject to any limitations, this is not the case for the constitutional review of the content of such acts. When it comes to the latter constitutional review, only the content of Czech transposition acts which is not necessitated by the EU directives concerned is subject to full, unrestricted constitutional review. On the other hand, the content of Czech transposition acts which is necessitated by the EU directives concerned is subject to very limited constitutional review. Namely, to constitutional review merely from the point of view of compatibility with the ‘material core’ of the Czech Constitution (the material core is equivalent to ‘constitutional identity’ in the German and French approaches to constitutional review). It is, however, underscored that the Czech Constitutional Court should exercise the utmost restraint and prudence when it considers annulment of a Czech transposition act with necessitated content for its incompatibility with the material core of the Czech Constitution. In this respect, it is suggested that any such annulment should necessarily be preceded by the Czech Constitutional Court’s employment of the preliminary ruling procedure regarding validity or interpretation of the directive concerned before the Court of Justice of the EU.

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