# CE2004088EN.01070901.xml

| 8.4.2004 | EN | Official Journal of the European Union | CE 88/709 |
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8.4.2004

EN

Official Journal of the European Union

CE 88/709

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(2004/C 88 E/0730)

WRITTEN QUESTION P-0721/04

by Daniela Raschhofer (NI) to the Commission

(4 March 2004)

Subject:   Benes Decree No 33/1945: the case of Hugo Salm

Subject:

Prior to the adoption of the decision on the Czech Republic's accession to the European Union, there was widespread public discussion on the legal validity of the ‘Benes Decrees’, which are incompatible with the body of EU law due to their discriminatory nature.

In a resolution adopted in April 2002 on the Benes Decrees, the Czech National Council stated that no new legal relations could now be established on their basis. Not least for this reason, the Commission also declared that the Benes Decrees would not stand in the way of the Czech Republic's accession to the European Union.

The case in question concerns the heirs of Prince Hugo Salm.

In November 2003, the Supreme Administrative Court of the Czech Republic upheld a decision which Stanislav Gross, the Czech Home Affairs Minister, had taken in the previous year on the basis of Benes Decree No 33/1945.

Under Decree No 33 of 2 August 1945, all Czechoslovak citizens of German or Hungarian nationality were deprived of their citizenship, with the exception of those who could prove that they had remained loyal to the Czechoslovak Republic.

The judgment of the Supreme Administrative Court confirms that the Decrees continue to serve as a basis for new legal relations.

Can the Commission therefore answer the following questions:

| 1. | How does the Commission view the fact that a decision has been taken on the basis of Benes Decree No 33, although this Decree was explicitly repealed? |
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1.

How does the Commission view the fact that a decision has been taken on the basis of Benes Decree No 33, although this Decree was explicitly repealed?

| 2. | In the light of the Czech Republic's accession to the EU, does the Commission believe that this decision by the Czech Home Affairs Minister is compatible with the ‘acquis’ communautaire, given that the Czech National Council had declared that no new legal relations would be established on the basis of the Benes Decrees, and that the Commission made reference to this in its decision? |
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2.

In the light of the Czech Republic's accession to the EU, does the Commission believe that this decision by the Czech Home Affairs Minister is compatible with the ‘acquis’ communautaire, given that the Czech National Council had declared that no new legal relations would be established on the basis of the Benes Decrees, and that the Commission made reference to this in its decision?

| 3. | What action does the Commission plan to take? |
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3.

What action does the Commission plan to take?

Answer given by Mr Verheugen on behalf of the Commission

(7 April 2004)

(7 April 2004)

The Commission has recently received the relevant decision of the Supreme Administrative Court of the Czech Republic of 27 November 2003, referred to by the Honourable Member. The Commission has not yet conducted a thorough legal examination of this decision. In respecting Parliament's right to a swift answer, and on the basis of a preliminary examination, and of an as yet unauthorised translation the Commission is in a position to state the following.

On 14 October 2002, the Commission presented the ‘Summary Findings’ of a thorough investigation of relevant Czechoslovak presidential decrees of 1945 and 1946, and related restitution legislation. The result was clear: new expropriations cannot take place under the decrees today. The decision of the Czech Supreme Administrative Court of 27 November 2003 does not contradict these findings, but confirms their validity.

The decision of the Czech Supreme Administrative Court does not constitute a new application of the decree in question, nor does it create new legal relations. It is essential to recognise that the Court did not rule on the question whether the applicant (the late Count Hugo Salm) was a Czechoslovak citizen, which is beyond doubt. The Court simply examined the question of whether the applicant had retained his Czechoslovak citizenship in 1945 in accordance with the law applicable at the time, i.e. Decree 33/1945 which was invoked by the complainants in their favour. Apart from a number of other legal and procedural considerations, the Court had to establish certain historical facts; it did not order a new withdrawal of citizenship, let alone a new expropriation.

The Court referred to the findings of the Constitutional Court in another case (Case 114/96), which ordered the authorities to complete an administrative procedure under the decree (claiming that the person concerned had not been deprived of citizenship) that had been started after the war, and was never closed under the Communist regime. This is possible because the procedure for determining whether a person held citizenship at a given moment in time is governed by the rules applicable at the time that person acquired or lost citizenship. That does not at all mean that the same rules are applicable today and can be applied to withdraw citizenship. On the contrary: it is only for the benefit of the victims of the decrees that such an historical examination can be conducted and, if the conclusion is that the decree in question was not applied at the time in accordance with the provisions of that same decree, an historical administrative act can be declared null and void. Thus, citizenship can be retroactively confirmed, and hence property given back, but citizenship cannot be withdrawn by a new legal act based on the Decree. Indeed, the Court considered that although Decree No 33/1945 was repealed in 1949, its provisions ruling retention of citizenship, i.e. those favouring citizens, were still applicable and could be invoked by victims of misapplication of the Presidential Decrees.

On the basis of a preliminary examination, the Commission considers that the decision in question would not appear to be in contradiction with the ‘acquis’, nor with the principles of the rule of law because serious fact-finding seems to have taken place.

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