WRITTEN QUESTION P-0721/04 by Daniela Raschhofer (NI) to the Commission. Benes Decree No 33/1945: the case of Hugo Salm.
Date: 2004-03-04
Institutions: European Parliament, Provisional data
Subjects: Community acquis, Czechia, EU law - national law, accession to the European Union, expropriation, indemnification, national, nationality, primacy of the law

8.4.2004

EN

Official Journal of the European Union

C 88 E/709

(2004/C 88 E/0730)

WRITTEN QUESTION P-0721/04

by Daniela Raschhofer (NI) to the Commission

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

(4 March 2004)

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No 33, although this Decree was explicitly repealed?

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?

Answer given by Mr Verheugen on behalf of the Commission

(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.

C 88 E/710

Official Journal of the European Union

EN

8.4.2004

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.

(2004/C 88 E/0731)

WRITTEN QUESTION E-0756/04

by José García-Margallo y Marfil (PPE-DE) to the Commission

(11 March 2004)

Subject: Repercussions of European financial market integration at national and regional level

Has the Commission carried out studies to assess the repercussions on national and regional financial
markets of the structural changes introduced by new European legislation on financial services and, in
particular, the possible weakening of regional financial markets vis-à-vis their national counterparts?

Is there not a risk that financial transactions will ultimately be concentrated in a limited number, i.e. three
or four, markets in Europe?

Answer given by Mr Bolkestein on behalf of the Commission

(23 April 2004)

Even though the Commission has not systematically launched studies to provide an answer to the precise
question of the repercussions on the national and regional financial markets of the changes introduced by
new legislation on financial services, studies have accompanied certain legislative proposals (e.g. studies on
supplementary pensions, which are publicly available on the web site of Directorate-General (DG) Internal
Market;
impact assessments of the forthcoming Reinsurance Directive and Capital Adequacy Directive
(CAD3), which will become public at the time of the Commission proposal, etc.) or assessed the situation
of a specific market segment on a pan-EU basis (e.g. study ‘Creating an internal market for the Banking
industry: an estimate on the structural changes induced by the deregulation and the single currency’).

In addition to these specific studies and impact assessments carried out, it is a general policy in proposing
legislation in financial services to organise wide-ranging consultations with stakeholders before these
legislative proposals are finalised. This procedure can help to determine whether or not a specific
legislative measure might impact negatively on one particular regional or national market segment.
Furthermore, it is the intention of the Commission to devote more importance to the impact assessment of
legislative proposals on specific markets segments and/or regions in the future.