Playing With Matches: The Czech Constitutional Court’s Ultra Vires Revolution


When the Czech Constitutional Court (CCC) declared the CJEU’s judgment in C-399/09 Landtová “ultra vires”, one of my colleagues commented: “giving Solange into their hands was like to let children play with matches”. I am afraid it is the adequate description of the decision, which is difficult to explain in legal terms and which in my view has much more to do with the psychology of the Court and its individual judges, although other domestic actors, the Supreme Administrative Court and the Government, also played an important role.

I suspect many readers of this blog will have to check the CJEU’s website in order to know what Landtová case was about. From the point of view of EU law it was an ordinary case, decided by the Fourth Chamber, concerning the interpretation of Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (“the Regulation”). Only at a closer look one could reveal an interesting dimension to it: the Czech Supreme Administrative Court (the SAC) was challenging the CCC’s case law concerning special pension increments that the CCC ordered to be paid to the Czech citizens, who were affected by the dissolution of Czechoslovakia in 1992.

Background to the conflict between the CCC and SAC

After the dissolution the two succession countries had to establish who was going to be responsible for paying the pensions of Czechoslovak citizens. Article 20 of the Agreement concluded by the Czech and Slovak Republic (“the C-S Agreement”) stipulated that the applicable scheme and the authority with competence to grant such benefits would be determined by the State of residence of the employer at the time of dissolution ...

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