Monday 19 October 2009

EU Charter and Beneš Decrees

Statewatch has published an analysis by Professor Steve Peers:

The Beneš Decrees and the EU Charter of Fundamental Rights” (12 October 2009; 14 pages)

Peers’ analysis addresses four issues:

1) What is the scope of the EU Charter of Fundamental Rights?

2) Does the scope of EC law include the Beneš Decrees?

3) Does the jurisdiction of the European Court of Justice extend to direct claims against Member States?

4) What legal method could be used to confirm that the Beneš Decrees cannot be challenged pursuant to the Charter of Rights?


Read and reflect.

Is there cause for the contagion, which has now spread from the Czech Republic to Slovakia?

Ralf Grahn


  1. At first sight this appears to be an excellent piece of research. But one wonders why no-one in the EU had not done something similar, earlier?

    How can anyone get President Klaus to read this report?

  2. French Derek,

    These questions were sorted out during the accession negotiations, although without a legally binding EU Charter.

    Quite often one can be sure that memorandums and opinions either exist or are produced within the EU institutions, but they remain unpublished, which is a shame with regard to public discussion.

    (The same goes for nominations. The Lisbon Treaty top jobs are discussed on the basis of leaks, speculation and - in Blair's case - campaigning in/by parts of the UK press. But where are the open nominations and visible discussions to bring the union closer to its citizens?)

    News items have told us that Klaus has received information from the government that the Charter poses no new danger, but as we have seen, he has chosen to use the issue to stoke up fears.

    The sensitivity of the matter is illustrated by the Slovak demand to become part of a probable declaration.

  3. Hi!

    I'm not expert, but I think Charter is not applicable for Beneš decrees, because it's not in the temporal scope of EU law. That one is the important here, which is clear from Art. 6 of Lisbon Treaty and Art. 51 of Charter.

    Also, I think legally binding Charter doesn't change very much if anything. Most of Member States has already implemented the Charter into their law. Exemptions for Poland and UK are there because they haven't implemented it already (e.g. abortions in Poland) and obviously were not willing to, so in order to keep ratification process going on, they've received exemptions.
    The fact they were able to fight out some extra privileges points out that other states may be able as well if they wanted to, but it was not necessary as the Charter was - through national law - legally binding de iure and de facto already.

    That means, that factually legally binding charter through LT doesn't change much. Thus if there were already attempts to open Beneš decrees on European Court and they've failed, they will fail already because legal situation is practically the same. EC decisions that Beneš decrees are not within the scope of EU are still perfectly valid - there's absolutely no reason to make other ruling.

    Klaus' demands should be viewed in context of political situation in Czech rep. And so should be (let's say) views of Slovak PM Róbert Fico. I mean: it's all political theater. Especially in Slovakia: economical crisis, political scandals, corrupted judges and self-destructive socialist budget for 2010 (yes, according to rule "the less income the more expenses") are best to overcome by some nationalist anti-Hungarian drivel.

    I'm not happy about the fact that half of citizens of Slovakia are idiots who jump straightly for this obvious game, but whatever... In any case, in other, foreign countries, it will be great mistake to understand stance of Slovak PM as legally relevant or insightful, or have to do anything with intellect. It's much more adequate to understand it as barking of dog.

    Greetings from Slovakia.

  4. Michal,

    I broadly agree with you.

    The EU Charter does not apply to earlier legislation or to national laws outside EU law, so there is no real need for any further action.

    I have some sympathy for the Slovak position, which says that no guarantees are needed, but they do not wish for an asymmetric situation.

    Yes, the EU Charter makes rights and principles from different sources more visible, without enhancing them, but I feel that rejecting the Charter is a rejection of the community of values the EU is.

  5. If we are to take Slovak position seriously, what they (we) say is:
    - no exemption is necessary (though no one of government said this explicitly, because it's better to keep people in fear),
    - but if someone would propose in European Commitee exemption for Czechs, we will veto it.

    If we are to take Klaus' position seriously (it appears that we actually doesn't have to, but suppose that he is absolutely serious), he says he won't sign it without the exemption concerning Beneš decrees. And in Czech law there is no way to force president to sign it, nor is there force to withdraw him from function (apart from case when President is convicted from treason).

    Now if both Klaus and Slovakia will stand for their words, we will end up with LT not ratified, which is what Klaus actually long for. But it's not what Slovak rep. longed for - actually we were very eager to ratify LT asap (as ironic as it sounds now, governing parties actually needed rare support from party of Hungarian minority to have LT ratified).

    So if I count correctly, Slovak rep. will end up with something we don't want - EU without LT - and with no further protection of legal validity of Beneš decrees. So I don't admire our position (alongside the fact that it really is just overlaying of our internal problems) - we should have stayed at statements about wrongness of Klaus' demand.

    And - I think - even if we will end up with exemption just for Czech rep. concerning Beneš decrees, nothing bad will happen. Because EC already made ruling on it, and EU law doesn't apply on it already.
    It will just look rather silly, like some kind of extra law saying that you really should obey the law. But it will not change anything legally nor factually.

  6. "Yes, the EU Charter makes rights and principles from different sources more visible, without enhancing them, but I feel that rejecting the Charter is a rejection of the community of values the EU is."

    BTW, I agree with this. Exemptions for Poland and UK imo cannot be read otherwise but that they are not willing to accept certain principles of EU.

    Consensus is probably still very very far.

  7. Michal,

    This is not the first nor, I am afraid, the last silly season in the European Union, which invites difficulties through its multiple unanimity rules (liberum veto).

    But if a declaration is needed, it does not matter that much if it covers the matter generally (including the Czech Republic and Slovakia).

    I share your worry about the Slovak government's harshly nationalistic and ungenerous line towards the Hungarian minority. European integration is supposed to work in the opposite direction, towards mutual understanding and solidarity.

  8. Michal,

    We are in agreement with regard to shared values.

  9. Should a court of last resort restrict its responsibility for such fundamental matter as HUMAN RIGHTS on such constructed reasons? Do human rights begin on some recent date? Are human rights restrictable? Also, if the right of ownership was never given up by the owner doesn't this constitute an ongoing violation?


  10. @ Christian:
    There are certain violations of human rights that cannot be prescripted - such as genocide.
    However, it's very difficult do prove that right to own is on par with right to live. You also need firm theoretical grounds to give some right possibility of timeless enforcement. I doubt you would be able to find such in case of ownership.

    Do you think Communism was just one on-going crime committed on people?

  11. @Michael

    I would have sympathy for a court that accepts and weights the matters of individuals purely on the basis of "universal rights" without compromising with the interest of politics or peoples or cultures or languages or governments. In particular, as far as the Benes Decrees are concerned I think there is sufficient reason to articulate clearly whether or not or how they are compatible with the Charter.

    Perhaps the court would come to the conclusion that universal rights are subordinate to the law established by Benes because of law in times of war, collective guilt or whatever good reason. But the court should speak. If the Benes Decrees were judged to be incompatible which I would think is possible if for no other reason than the human crimes (including murder) conducted in their wake, then what follows? I would think that there be no consequences at all other than putting the subject to peace in rest.



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