(Sovereignty and Federalism in the European and American Integrations: The Doctrine of Interposition of the Czech Constitutional Court). Acta Universitatis Carolinae. Iuridica, No. 2/2012, pp. 29-50, 2013.
The comparison between the U.S. Compact Theory and the European doctrine of the Czech Constitutional Court reveals substantive similarities in their reasoning. The arguments challenging the powers of the central government are rather independent on the specific provisions of either the central government’s constitution or the constitutive unit’s constitution. Also, the existence and the wording of the eternity clause, the keystone of the Czech Constitutional Court’s sovereignty argument, seems less important than the Czech Constitutional Court would be willing to acknowledge. The U.S. Compact Theory shows that the ultra vires rationale and ensuing interposition stem directly from the state sovereignty theory rather than from the wording of state or federal constitutions.
The tension between the central government and the constitutive units in the European Union has increased with the accession of Central and Eastern European States. The understanding of sovereignty in the ‘new’ Member States is more dogmatic and does not take sufficiently into account the different nature of the European Union. Although the reasoning of the Czech Constitutional Court and other ‘new’ Member States’ courts are largely inspired by the German Federal Constitutional Court, the simultaneous employment of the Solange I and the Maastricht tests by the Czech Constitutional Court may create substantive problems in the application of European law and reveals the logical incoherence of the Court’s European doctrine. The EU rests on federalist foundations. In order to solve the internal sovereignty conundrum of the EU, the constitutive units – the Member States, though operating within a sovereignty paradigm, must acknowledge the different foundations of the EU . Moreover, the notion of federalism does not equal to the notion of federal state. In fact, the latter is a deformation of the theory of federalism seen through a sovereign state prism. Consequently, for some of the Member States’ constitutional courts, like the Czech one, the sovereignty of the Czech Republic as explicated by the Constitution is the ultimate limit to the development of the European Union.
While sovereignty cannot be divided, it can be shared – that is, exercised jointly. Federalism has proven to be a good interpretative lens and a guide for the exercise of joint sovereignty. Foedus, as the cornerstone of federalism, does not pose any formal obligations on the constitutive units vis-à-vis the central government. Foedus does not require the Member States to blindly accept the absolute supremacy of European law. It rather requires a bond among all members, which in their commonality have created a new organization administered by a central government. Seen from this perspective, the unilateral action of a Member State represented by its constitutional court breaches the bond. Such a unilateral action, although taken in the name of state sovereignty, in fact undermines the exclusivity of power of the common entity and is an attack on joint sovereignty. In this view, polities organized on true federalist ideas are inherently open to inclusion of new entities, something a sovereign state cannot offer. Federalism is inclusionary, while sovereignty is exclusionary. Because federalism does not emphasize exclusive power and hierarchy, but rather cooperation with trusted partners, it does not fall in theoretical problems that sovereignty faces in today’s world.