Blog AnalysisEuropean policyIGC Treaties

The Czech request for derogation from the Charter, foolish or justified?

Vaclav Klaus' demands for a 'derogation' from the Charter of Fundamental Rights for the Czech Republic don't really seem
serious. But they are based on a fear, real or supposed, of a possible challenge to the Benes decrees by a European court, heightened by German claims.
(especially Bavarian) and recent Austrians. Read theinteresting (political) analysis by Jacques Rupnik on Diploweb as well as the analysis (more legal) on the Benès decrees and European law of the Robert Schuman Foundation, carried out before enlargement.

A declaration already exists. To put things back in place, we must remember that, in the Treaty of Lisbon, a declaration (of political value) - expressing the reservations of the
Czech Republic to the Charter of Fundamental Rights - already exists. It had been slipped in, in extremis, before the signing of this Treaty, in December 2007. Belatedly, while all the work
drafting of the Treaty had been completed and a political agreement reached at the Lisbon summit in October 2007, the Czech Republic had in fact obtained the slipping of four reservations into the
Charter of Fundamental Rights (Declaration 52).
1) “The provisions of the Charter are addressed to the Member States only when they are implementing Union law and not when they are adopting and implementing national law
independently of Union law.
2) The rights and principles (set by the Charter) must be interpreted in harmony with the said traditions ».
3) “The Charter does not reduce the scope of application of national law and does not limit any current competence of national authorities in this field”.
4) “No provision of the Charter may be interpreted as limiting or infringing recognized human rights and fundamental freedoms, within their scope
respective, by Union law and international conventions to which the Union or (…) the Member States are parties…”

Text value. These reservations may appear, at first glance, as a third opt-out (after the United Kingdom and Poland). But the essential difference lies in the legal value
of this act which apparently does not bind the European institutions or the Court of Justice. This text "above all confirms certain limitations set out in the Charter itself" explained a lawyer. Moreover, this text has been drafted in very general terms which do not refer only to the Czech Republic but to all the Member States. His tone
very political does not therefore fit well in a text with legal scope because it would mean a derogation for ALL the States and not only for the Czech Republic. The legal value
would require a new text. A new protocol seems out of the question (it would require another round of ratification). The only solution is to edit via a new Council statement
European Union, extending, in some way, the already existing UK-Polish protocol to the Czech Republic or including it in a future Treaty. But even this solution seems rather incongruous to me.
with regard to the intended objective.

The real problem
for the Czechs it is not the Charter of Fundamental Rights in itself. Because, on the one hand, the application of the Charter is limited to the European Treaties which provide that "the
treaties in no way prejudge the property regime in the Member States" (article 295 TEU, article 345 Tlisb). On the other hand,
it serves above all to protect citizens "against" the acts of the European institutions. It normally has no retroactive value. The text which protects in a major way the right to
ownership is the European Convention on Human Rights (ECHR). And the European Court of Human Rights has given it a certain force by several judgments, on the expropriations
notably. An "exception" (assuming it is valid) to the Charter of Fundamental Rights would not constitute an exception to the ECHR. The problem is therefore not solvable in a declaration or a
EU protocol. To want to go further would simply be to make an exception not to a text but to the values ​​of European human rights.

In a general view, the question of the "Benes decrees" is that they were precisely an "exception" to the usual rules of human rights, justified by an exceptional situation
and ratified by an international agreement (between the great powers of the moment). Even if the Czech position can be understood, making this subject a topical issue again can therefore only be
conflictual, politically and legally, not only between the Czech Republic and Germany, but throughout Central Europe. Because almost all of these countries in the region (Poland,
Slovakia, Yugoslavia, Romania, Hungary, Austria) were, and are, affected in one way or another by the expulsions at the end of the Second World War...

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).