As the fuss continues about whether or not Vaclav Klaus, the Czech president, will sign the European Union’s Lisbon treaty, I’d like to draw everyone’s attention to a detail that appears to have been generally overlooked. It concerns Klaus’s demand for a special protocol or legally binding exemption from the treaty’s Charter of Fundamental Rights, which, he says, is necessary to prevent a flood of claims on Czech property from the descendants of the roughly 3m Sudeten Germans expelled from the former Czechoslovakia after the second world war.
Leaving aside Klaus’s dubious assertion that the Charter could be exploited as the basis for such claims, the fact is that the Lisbon treaty already contains a special declaration by the Czech Republic on the Charter. It is buried near the end of the treaty’s official text in a part called Final Act of the Intergovernmental Conference, Section C: Declarations by Member-States. The Czech declaration, which is labelled No. 53, sets out the Czech position that “the Charter does not extend the field of application of [European] Union law] and does not establish any new power for the Union”.
It also underlines that “insofar as the Charter recognises fundamental rights and principles as they result from constitutional traditions common to the member-states, those rights and principles are to be interpreted in harmony with those traditions”.
In short, the Lisbon treaty already ring-fences Czech sovereignty insofar as it relates to the application of the Charter of Fundamental Rights.
Moreover, as Alexander Vondra, the former Czech EU affairs minister, has pointed out, other EU governments have already agreed with the Czechs that new EU laws cannot be applied retrospectively to back up property claims.
All of which Klaus undoubtedly knows. What is my conclusion? That Klaus’s alarmism about Czech vulnerability to German property claims is a legalistic ruse, a political manoeuvre, and not a serious legal point at all.
What is his real aim? Ideally, he would like to torpedo the Lisbon treaty. But he knows this will be all but impossible, if the Czech constitutional court gives a positive ruling on the treaty in the next couple of weeks. So his fallback position is to extract a declaration from other EU leaders giving a superfluous guarantee for the Czech Republic.
Then he can hold aloft this declaration in front of his countrymen, and - hey presto! - to borrow a phrase, it will be “peace in our time”.
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