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The Czech Legislative Process LEGAL LANDSCAPE IN A “LEGISLATIVE HURRICANE:” THE CZECH LEGISLATIVE PROCESS FROM ASSOCIATION TO ACCESSION A THESIS SUBMITTED TO THE STANFORD PROGRAM IN INTERNATIONAL LEGAL STUDIES AT THE STANFORD LAW SCHOOL, STANFORD UNIVERSITY IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF THE SCIENCE OF LAW By Markéta Trimble Landová May 2006 ABSTRACT The latest enlargement of the European Union (“EU”) has been very successful, as ten new countries joined the EU in 2004. Amid the consensus about the overall success of the enlargement, the political science literature has recently begun to examine and debate the effects that preparations for EU membership have had on the applicant countries. This thesis studies the nature of the effects that these preparations have had on the legislative process in one of the new member countries by focusing on the procedural and institutional aspects of the process in the Czech Republic. The author argues that EU membership preparations always have effects on the legislative process in applicant countries, but that the nature of the effects depends on preexisting domestic conditions; in the case of the Czech Republic, the combination of the effects and domestic conditions was detrimental to the legislative process. The research is based on the author’s professional experience in the Czech Cabinet and the European Commission and a number of interviews conducted with Czech politicians and experts actively involved in the Czech legislative process. The author performs an extensive analysis of legislative documents and Czech and other scholarly literature and uses statistics derived from an author-compiled database of Czech draft laws submitted between 1995 and 2004. The thesis provides an analysis of the effects of the multi-year abnormal conditions under which the Czech legislative process operated during preparations for EU membership and makes findings that can be used in designing improvements in the legislative process and improving legislative output. The thesis should also serve to alert countries applying for EU membership and countries transitioning to democracy to a problem that is likely to remain a challenge in the future. ii FOREWORD In 1995, following the ratification of the Europe Agreement Establishing an Association between the European Communities and their Member States, of the One Part, and the Czech Republic, of the Other Part,1 (the “Europe Agreement”), the Czech Republic officially began to prepare for its membership in the European Union (the “EU”).2 It took nine years of preparations before the country and nine others acceded to the European Union on May 1, 2004. These years between association and accession represented one of the most exciting periods in Czech Republic history. The period posed a tremendous challenge to the legislative process, which had to fulfill the requirement to align domestic laws with EU legislation. As a young lawyer, I had the privilege of taking part in this historic enterprise and contributing to preparations of the country for EU membership. My involvement between 1997 and 2004 included positions as Head of the Legislative Unit at the Czech Statistical Office, Head of the EU Law Unit at the Ministry of Justice of the Czech Republic, and a position in the Coordination and Revision Center of the Office of the Czech Republic Cabinet. In these positions I participated at various stages of the accession process, prepared analyses of Czech alignment with EU legislation, cooperated and negotiated with EU counterparts and took part in preparing Czech civil servants, judges and prosecutors for the country’s membership in the EU. In addition to this experience at the national level, I had an excellent opportunity to learn about the accession process from the EU institutions’ point of view during my six-month internship at the European Commission (Eurostat’s unit for legal affairs).3 Throughout this period it became clear to me that the uniqueness of the experience that my colleagues and I had shared deserved a more comprehensive reflection and 1 Official Journal of the European Communities, L 360, December 31, 1994, pp. 2 – 210. 2 In this thesis the term “European Union” is used even in references to the European Communities prior to the Maastricht Treaty. 3 Eurostat is the Statistical Office of the EU. iii assessment. The possible form of such reflection naturally varied with time, as excitement and success alternated with fatigue and despair. As is the case in all great historical periods, there were certainly moments in the process of preparing for EU membership when those involved contemplated forms of reflection that oscillated between a comic fable and a Greek tragedy.4 It took a year after the Czech Republic became a member of the EU for me to realize that the time was right to look back and provide a constructive analysis. This realization was also prompted by various published works that aimed to provide an analysis of the EU enlargement process and evaluate its effects on the post-communist countries that had become members of the EU in May 2004.5 However, these studies appear to lack a legislative perspective and some even discount the legislative alignment aspect, suggesting that its purely technical nature makes it unworthy of study. In this thesis I focus on the impact of the preparations for EU membership on the legislative process in the Czech Republic. I do not attempt to embrace the entire body of domestic law or to provide an in-depth substantive analysis of each relevant field of law, but instead concentrate on the procedural and institutional aspects of specific lawmaking that attempted to align national legislation with EU standards during the period of study (“examined period”). My objective is not to offer general answers about the impact of the EU enlargement on the new post-communist member states, but rather to contribute to the large mosaic of scholarly work that still needs to be completed in order to paint a comprehensive picture of the effects of recent developments in Central and Eastern Europe. At the same time, the issues raised in this thesis are relevant to today’s European Union as it continues to enlarge, adding even more new countries to its membership. 4 The first truly personal account of the accession process that I am aware of was presented by Pavel Telička, the Czech chief negotiator with the EU, and Karel Barták, a Czech journalist who has covered EU accession affairs as a ČTK (the Czech Press Agency) correspondent to Brussels since 1995. Telička, Pavel, Barták, Karel, Kterak jsme vstupovali, ČTK, Paseka, Praha – Litomyšl, 2003. 5 For instance, Cameron, Fraser (ed.), The Future of Europe: Integration and Enlargement, Routledge, 2004; Dimitrova, Antoaneta L. (ed.), Driven to Change, The European Union’s Enlargement Viewed From the East, Manchester University Press, 2004; Pridham, Geoffrey, Designing Democracy: EU Enlargement and Regime Change in Post-Communist Europe, Palgrave, 2005; Vachudova, Milada Anna, Europe Undivided: Democracy, Leverage, and Integration After Communism, Oxford University Press, 2005. iv Even though parts of this thesis may appear to be critical of individuals who have been involved in the process, I would like to emphasize that this project was inspired by my deep respect for numerous remarkable civil servants who share a genuine enthusiasm for European integration and have devoted their careers to the idea of EU enlargement. Their names remain mostly unknown to the public at large, and their contributions are hidden in the shadows of more broadly publicized political actions. However, without these zealous individuals, many of the small pieces of the jigsaw puzzle of accession would remain missing. v ACKNOWLEDGMENTS I would like to express my gratitude to Stanford Law School for providing me generous financial support to pursue my academic goals; its faculty and staff created the wonderful atmosphere that made this academic enterprise truly productive and enjoyable. There have been many persons who have generously followed the progress of my work and played an important role in the shaping of this thesis. Foremost, I would like to thank my advisors, Jonathan D. Greenberg, lecturer at Stanford Law School, and Michael A. McFaul, PhD., the Director of the Center on Democracy, Development and the Rule of Law of the Freeman Spogli Institute for International Studies at Stanford University, for their comments and advice. I have greatly appreciated input and suggestions by Ambassador Richard Morningstar and Amichai Magen, lecturers at Stanford Law School. I also extend special gratitude to my writing instructor, Carol Shabrami, PhD., and my editor, Meredith Nikkel. Special thanks go to my colleague Marie Louise Seelig, who patiently evaluated my drafts through the eyes of an EU citizen. Many thanks are also extended to my colleagues in the Stanford Program in International Legal Studies for providing valuable insights and creating a constructive and collegial atmosphere. This thesis derives valuable input from interviews conducted in Prague in April and May 2005. I would like to thank all 24 experts and politicians who kindly provided answers to my questions. Some of them expressed a desire for their names not to appear in this thesis. Those who agreed to have their names listed are as follows: • Mgr. Jiří Kaucký, Director of the Legislative Department of the Ministry of the Interior of the Czech Republic, • Mgr. Zoran Nerandžič, Director of the Legislative Department of the Ministry of Healthcare of the Czech Republic, vi • Mgr. Pavlína Obrová, Head of the Coordination and Revision Center of the Office of the Cabinet of the Czech Republic, • Ing. Edvard Outrata, Vice-President of the Senate of the Czech Republic Parliament, • Mgr. Miroslav Prokop, Director of the Human Resources Department of the Ministry of Agriculture, • Ing. Marcela Provazníková, Director of the Human Resources Department of the Czech Statistical Office, • Karel Schwarzenberg, Member of the Senate of the Czech Republic Parliament, Member of the Senate Committee for European Union Matters, • Dr.
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