The last signature: how Czechia held up the Lisbon Treaty in 2009

In November 2008 President Václav Klaus called himself a dissident in the European Union, and the press made it a headline. The Czech Republic had still not ratified the Treaty of Lisbon, the document meant to rescue the EU's reform process after French and Dutch voters rejected a draft constitution in 2005. The treaty could take effect only when every member state had ratified it, so for a year the eyes of Brussels were on Prague.

This is how the ratification unfolded, and why it still matters as constitutional history.

What the treaty was

The Treaty of Lisbon, signed on 13 December 2007, amended the existing EU treaties. It created the post of President of the European Council, strengthened the role of the High Representative for foreign affairs, extended qualified majority voting in the Council, gave the European Parliament a greater say, made the Charter of Fundamental Rights legally binding and allowed national parliaments to review proposals for compliance with subsidiarity. It also set out a procedure for a member state to leave the Union, Article 50, which was used for the first time by the United Kingdom.

Because the treaty changed the founding treaties, it needed ratification by all member states according to their own rules. Most did so through parliaments. Ireland, whose constitution requires a referendum, voted no in June 2008, and then yes in a second referendum in October 2009 after receiving guarantees. The Czech Republic's process was slower than most for reasons that were domestic.

Politics at home

In the Czech Republic the treaty divided parties and institutions. The government of Mirek Topolánek, a coalition of the Civic Democrats (ODS), the Christian Democrats and the Greens, was split, with some ODS members following Klaus's scepticism. The Social Democrats, in opposition, supported ratification. In the first half of 2009 Czechia held the rotating presidency of the Council of the EU, and while it did so the government lost a vote of no confidence in March, a historic embarrassment, since it happened in the middle of the presidency. The mechanism of rotating presidencies is described in Czech EU presidency: how rotating presidencies work.

The president, elected by Parliament in 2003 and again in 2008, was the most prominent critic. Klaus had long argued that the EU was drifting towards a federal state at the expense of national sovereignty, and he described the treaty as a step in that direction. His role is described in how the Czech president is chosen and what the role does. He could not block a treaty approved by Parliament outright, but ratification was complete only once he signed, and he could delay that step. Havel, his predecessor and opposite in temperament, had championed Czech entry into the EU and NATO (Václav Havel: from dissident playwright to president).

The court in Brno

In 2008 a group of senators asked the Constitutional Court to examine whether the treaty was compatible with the Czech constitutional order. The Court, in a ruling of 26 November 2008, found that the specific provisions submitted did not conflict with it. A second group of senators challenged the treaty again in 2009, and the Court ruled on 3 November 2009 that the treaty as a whole was consistent with the constitution and rejected the complaint. These rulings, along with its later case law, are discussed in the Czech Constitutional Court explained and Czech Constitutional Court and EU law.

The Court's rulings have a wider significance. They confirmed that the transfer of powers to the EU is compatible with the constitution if certain limits are respected, which is a principle used in later cases about the relationship between Czech and EU law.

The Charter deal

Parliament approved the treaty in February (Chamber of Deputies) and May (Senate) 2009. Even so, Klaus declined to sign while the second constitutional complaint was pending, and he added a new demand: an exemption from the Charter of Fundamental Rights, modelled on the arrangement for Poland and the United Kingdom. His concern was that the Charter could be used for property claims by people expelled after the Second World War, which is explained in the Beneš decrees explained.

With Ireland's second referendum approved on 2 October 2009 and Poland's president signing soon after, Czechia was the last country standing. At the European Council on 29 and 30 October 2009 EU leaders agreed to extend such a protocol to the Czech Republic when the next accession treaty was agreed. The Court gave its ruling on 3 November, and Klaus signed within hours. Prime Minister Jan Fischer's government, in office since the spring, declared the process complete. The instrument of ratification was deposited with the Italian government, the depositary of the treaty, on 13 November 2009, and the treaty entered into force on 1 December.

What happened to the Charter exemption

The exemption never took effect. The protocol had to be incorporated by a treaty amendment, which required ratification by all states, and it was never carried through. The Czech government dropped the request in 2014, as covered in Czechia and the Charter of Fundamental Rights opt-out. The practical result is that the Charter applies to Czechia like any other member state.

The view from Brussels

Elsewhere in the Union the Czech episode was followed with irritation and some amusement. Other governments had been through their own difficulties: Ireland's referendum, Germany's Federal Constitutional Court ruling of June 2009 that required more rights for the Bundestag, and a challenge in Poland. Still, the Czech delay was the last obstacle, and it meant that the appointment of the first permanent President of the European Council and the new High Representative could not proceed until it was cleared. Those posts were filled in November 2009, only weeks after the Czech signature, with Herman Van Rompuy and Catherine Ashton chosen at an EU summit. The speed shows how much was riding on the Prague signature.

For Czech commentators, the episode held up a mirror. Supporters of the treaty argued that the country had embarrassed itself by tying its signature to a last-minute demand, while sceptics argued that the Czech Republic had defended a principle and shown that small states can bargain. Both views are still heard.

What Lisbon changed for Czechia

For Czech citizens the effects of the treaty are indirect. The treaty gave national parliaments more say in EU law-making, which the Czech Senate and Chamber use. It extended the powers of the European Parliament, to which Czechia sends elected members, as in Czech MEPs and European Parliament elections. It created a standing President of the European Council and strengthened the EU's foreign policy structure. And it introduced the European Citizens' Initiative, which allows a million citizens from several countries to ask the Commission to propose legislation.

More generally, the experience taught lessons about how the EU works. A single country, or a single office-holder, can delay a treaty until concessions are made; and the EU's consensus rule for treaty change gives every government influence. That is a big part of why later reforms have been pursued without treaty change where possible. The extended majority voting also explains how a country can be outvoted, as in the refugee quota dispute. The overall picture is in Czechia in the European Union: what membership means and how the EU works: institutions in plain terms.

Frequently asked questions

When did Czechia ratify the Lisbon Treaty?

Parliament approved it in February and May 2009 and President Klaus signed on 3 November 2009, the last signature needed.

What did the Constitutional Court decide?

In November 2008 and November 2009 it found the treaty compatible with the Czech constitutional order.

Why did the president delay?

He opposed the treaty and sought an exemption from the Charter of Fundamental Rights, which EU leaders agreed in October 2009.

When did the treaty take effect?

On 1 December 2009.

If you want the primary documents, read the Constitutional Court's English summaries of the two rulings.