The Czech Charter opt-out that never was: Klaus, Beneš and Lisbon

Few EU documents have caused as much alarm in Czech politics for so little practical effect as the Charter of Fundamental Rights. In the autumn of 2009 the whole Lisbon Treaty, the product of years of negotiation among 27 governments, waited on one signature in Prague Castle. The price of that signature was a footnote to the treaty about a charter that, as lawyers pointed out at the time, would rarely touch a Czech citizen's life.

What the Charter is, why the Czech Republic sought an exemption, what became of it and what the Charter does for people living in Czechia today are the questions below. The story of the signature itself is in Czechia and the Lisbon Treaty.

What the Charter is

The Charter of Fundamental Rights of the European Union lists civil, political, economic and social rights under six headings: dignity, freedoms, equality, solidarity, citizens' rights and justice. It was proclaimed in 2000 as a political declaration. The Treaty of Lisbon, which entered into force on 1 December 2009, gave it the same legal value as the EU treaties.

Its reach is narrower than many assume. Article 51 says the Charter binds the EU institutions, and binds member states only "when they are implementing Union law". A Czech court deciding a purely domestic dispute under Czech law applies the Czech Charter of Fundamental Rights and Freedoms, which forms part of the constitutional order, not the EU one. The EU Charter becomes relevant when the case involves an EU regulation, a directive or another act of EU law, from data protection to consumer rules to asylum.

The Charter also does not create new powers for the EU. It restates rights, many of which already existed as general principles of EU law or in the European Convention on Human Rights, and in practice the Court of Justice in Luxembourg uses it as a reference point when reviewing EU measures and national implementation.

Why Prague asked for an opt-out

The immediate worry belonged to President Václav Klaus, a long-standing critic of deeper European integration. He feared that the Charter could be used to reopen claims by people expelled from Czechoslovakia after the Second World War, based on the postwar decrees of President Edvard Beneš. Those decrees are discussed in the Beneš decrees explained. Klaus said he would sign the Lisbon Treaty only if Czechia received a guarantee that the Charter could not be used for such claims.

The model was Protocol 30, attached to the treaties for Poland and the United Kingdom. That protocol does not exempt those countries from the Charter. It says the Charter does not extend the ability of the Court of Justice or national courts to find their laws inconsistent with it, and it clarifies that the Charter's "solidarity" title creates no justiciable rights unless national law provides them. Lawyers have argued ever since about how much difference it makes, and the Court of Justice has held that the protocol does not release the two countries from respecting the Charter.

At the European Council in late October 2009 leaders agreed that a similar protocol would be extended to Czechia when the next accession treaty was concluded. On 3 November 2009 the Constitutional Court rejected a challenge brought by a group of senators, and Klaus signed within hours. Czechia was the last member state to complete ratification.

Why the opt-out never took effect

A protocol of this kind has to be added to the treaties by a formal amendment, which in turn needs ratification by every member state. The plan was to attach it to the next accession treaty, but the amendment was not carried through in the years that followed. Czech opinion also shifted. Critics at home argued that the Beneš decrees were beyond the reach of the Charter in any case and that the opt-out sent a poor signal. In 2014 a new government led by Bohuslav Sobotka decided to stop pursuing the request, saying the concern behind it was unjustified. The human rights minister of that government, Jiří Dienstbier, was one of the voices for dropping it.

The result is simple. Czechia has no opt-out. The Charter applies to the country as it does to every member state except for the special case of Poland and the United Kingdom, and since Brexit the UK is outside the EU altogether.

What it means in practice

For most residents the Charter is a background rule. Where it matters is in cases that combine national law with EU law. Data protection is the commonest example: the right to the protection of personal data is Article 8 of the Charter, and the GDPR is an act of EU law that Czech authorities and courts must apply consistently with it. Consumer protection, non-discrimination at work, rules on asylum and border procedures, and the rights of defendants in cross-border criminal cases are others.

An individual cannot bring a complaint directly to the Court of Justice about a Charter breach. The route runs through national courts, which can, and in some circumstances must, ask Luxembourg for a ruling on how EU law should be read. The Czech Constitutional Court, discussed in Czech Constitutional Court and EU law, occasionally engages with the Charter in its decisions, but it also keeps for itself the final word on the Czech constitutional order. The relationship was tested in 2012 in a case on Slovak pensions, when the Constitutional Court found that a ruling of the Court of Justice had gone beyond the powers conferred on the EU.

Where the argument stands now

The Beneš decrees remain a sensitive subject in Czech politics, and sections of the political spectrum still raise the Charter as an example of EU overreach. Supporters reply that the Charter is mostly a codification of rights already recognised. The disagreement is less about the text than about the broader question of how far EU law should reach into national constitutional matters, which is the same line along which the debate over the euro (will Czechia adopt the euro) and over migration policy (the refugee quota dispute) runs.

For the wider picture of membership, see Czechia in the European Union: what membership means and how the EU works: institutions in plain terms. Domestic constitutional rights are covered in the Czech Constitution in plain terms.

Reading the sources

The text of the Charter is published in all EU languages on EUR-Lex, and the Commission publishes an annual report on its application. If you want to know whether a particular situation falls within the Charter, the first question is always whether EU law is involved. If it is not, the Czech Charter of Fundamental Rights and Freedoms and the European Convention on Human Rights are the relevant texts.

Frequently asked questions

Does Czechia have an opt-out from the EU Charter?

No. EU leaders agreed in 2009 to extend a protocol to Czechia, but it never took effect, and the government dropped the request in 2014.

Which countries had a Charter protocol?

Poland and the United Kingdom. The protocol did not fully exempt them from the Charter, and the UK has since left the EU.

Why did President Klaus want it?

He feared the Charter could be used to reopen property claims by people expelled after 1945, linked to the Beneš decrees.

When does the Charter apply to Czech authorities?

Only when they are implementing EU law, for example when applying an EU regulation or a directive.

Can I complain directly to the EU Court of Justice?

No. Individuals go through national courts, which may refer questions on EU law to Luxembourg.

If you think EU law is involved in a dispute, ask the court or a lawyer whether a reference to the Court of Justice is possible before you assume the Charter applies.