COMMISSION OPINION on a draft European Council decision in favour of examining the proposed amendment of the Treaties concerning the addition of a Protocol on the application of the Charter of Fundamental Rights of the European Union to the Czech Republic
Date: 2012-05-04
Institutions: European Commission
Subjects: Czechia, EU Charter of Fundamental Rights, Poland, United Kingdom, protocol to an agreement, revision of the Treaty (EU)

EUROPEAN COMMISSION 

Brussels, 4.5.2012  
COM(2012) 197 final 

COMMISSION OPINION 

on a draft European Council decision in favour of examining the proposed amendment 
of the Treaties concerning the addition of a Protocol on the application of the Charter of 
Fundamental Rights of the European Union to the Czech Republic 

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COMMISSION OPINION 

on a draft European Council decision in favour of examining the proposed amendment 
of the Treaties concerning the addition of a Protocol on the application of the Charter of 
Fundamental Rights of the European Union to the Czech Republic 

THE EUROPEAN COMMISSION, 

Having regard to the Treaty on European Union, and in particular Article 48(3) thereof, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

At the meeting of the European Council on 29 and 30 October 2009 the Heads of State 
or Government, taking into account the position taken by the Czech Republic, agreed 
that, at the time of the conclusion of the next Accession Treaty, the Treaties should be 
amended to the effect that a Protocol on the application of the Charter of Fundamental 
Rights  of  the  European  Union  to  the  Czech  Republic  is  attached  to  the  Treaty  on 
European  Union  (TEU)  and  the  Treaty  on  the  Functioning  of  the  European  Union 
(TFEU).  That  Protocol  should  provide  that  Protocol  No  30  on  the  application  of  the 
Charter  of  Fundamental  Rights  of  the  European  Union  to  Poland  and  the  United 
Kingdom also applies to the Czech Republic. In that connection, the European Council 
recalled 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 
and reaffirmed its determination to see that Treaty enter into force by the end of 2009. 
Having  been  ratified  by  the  Czech  Republic  on  13  November  2009,  the  Treaty  of 
Lisbon entered into force on 1 December 2009.  

On 5 September 2011, the Czech Government submitted to the Council a proposal, in 
accordance with Article 48(2) TEU, for the amendment of the Treaties concerning the 
addition of a Protocol on the application of the Charter of Fundamental Rights of the 
European Union to the Czech Republic. 

The President of the European Council wrote to the Commission on 25 October 2011 
requesting its opinion on that proposal.  

Pursuant  to  the  first  subparagraph  of  Article  6  (1)  of  the  TEU  the  Charter  of 
Fundamental  Rights  of  the  EU  shall  have  the  same  legal  value  as  the  Treaties.  The 
second  subparagraph  of  Article  6  (1)  of  the  TEU  clarifies  that  the  Charter  shall  not 
extend in any way the competences of the Union as defined in the Treaties. Pursuant to 
its  Preamble,  the  Charter  reaffirms,  with  due  regard  for  the  powers  and  tasks  of  the 
Union and for the principle of subsidiarity, the rights as they result, in particular, from 
the  constitutional  traditions  and  international  obligations  common  to  the  Member 
States, the European Convention for the Protection of Human Rights and Fundamental 
Freedoms, the Social Charters adopted by the Union and by the Council of Europe and 
the case-law of the Court of Justice of the European Union and of the European Court 
of  Human  Rights.  It  aims  at  strengthening  the  protection  of  fundamental  rights  by 
making those rights more visible. In accordance with its Article 51 (1) the Charter is 
“addressed  to  the  institutions,  bodies,  offices  and  agencies  of  the  Union  with  due 

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(5) 

(6) 

regard for the principle of subsidiarity and to the Member States only when they are 
implementing Union law”. 

Article 1(1) of Protocol No 30 provides that the Charter does not extend the ability of 
the  Court  of  Justice  of  the  European  Union,  or  any  court  or  tribunal  of  the  Member 
States  that  the  Protocol  No  30  applies  to,  to  find  that  the  laws,  regulations  or 
administrative  provisions,  practices  or  action  of  Member  States  that  it  applies  to  are 
inconsistent  with  the  fundamental  rights,  freedoms  and  principles  that  it  reaffirms. 
Pursuant to Article 1(2) of Protocol No 30 nothing in Title IV of the Charter creates 
justiciable  rights  applicable  to  Poland  and  the  United  Kingdom  except  in  so  far  as 
these  Member  States  have  provided  for  such  rights  in  their  national  law.  Finally, 
Article 2 of Protocol No 30 provides that to the extent that a provision of the Charter 
refers  to  national  laws  and  practices,  it  shall  only  apply  to  Poland  or  the  United 
Kingdom to the extent that the rights or principles that it contains are recognised in the 
law or practices of these Member States. 

Protocol  No  30  is  without  prejudice  to  other  obligations  devolving  upon  Poland  and 
the United Kingdom under the Treaty on European Union – and in particular Article 6 
(3)  thereof,  the  Treaty  on  the  Functioning  of  the  European  Union,  and  Union  law 
generally. In that connection it must be noted that the Charter only reaffirms the rights, 
freedoms and principles recognised in the Union and makes those rights more visible. 
The purpose of Protocol No 30 is to clarify the application of the Charter in relation to 
the  laws  and  administrative  action  of  these  Member  States  and  of  its  justiciability 
within these Member States. 

(7) 

The Commission notes that the agreement among the Heads of State or Government 
on  an  amendment  of  the  Treaties  concerning  the  addition  of  a  Protocol  on  the 
application of the Charter of Fundamental Rights of the EU to the Czech Republic has 
been reached in a specific context.  

HAS DELIVERED A FAVOURABLE OPINION 

on a draft European Council decision in favour of examining the proposed amendment of the 
Treaties  concerning  the  addition  of  a  Protocol  on  the  application  of  the  Charter  of 
Fundamental Rights of the European Union to the Czech Republic. 

This opinion is addressed to the European Council. 

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