Presentation by Dr Eerik Kergandberg, Judge of the Supreme Court of Estonia

 
This report concentrates upon three major issues. Firstly, an overview of the constitutional amendment process in Estonia as well as of the concurrent complications and dilemmas will be given. Secondly, the readiness of the Estonian Court to operate under new circumstances will be assessed. And thirdly, the novel role of the Constitutional Courts under new circumstances will briefly be discussed.
 
 
1. Constitutional amendments related to integration into the EU
 
On September 14th, 2003, Estonian citizens adopted in referendum the Constitution of the Republic of Estonia Amendment Act (hereafter Constitution Amendment Act). The first article of this, so-called Third Act,[2] reads as follows: "Estonia may belong to the European Union in accordance with the fundamental principles of the Constitution of the Republic of Estonia." According to article 2 of the same act, "[a]s of Estonia’s accession to the European Union, the Constitution of the Republic of Estonia applies taking account of the rights and obligations arising from the Accession Treaty."[3] Apart from this very general clause, no more amendments to the Constitution were made.
 
The political choice in favour of the laconic Third Act, instead of the thorough revision of the existing Constitution, or inserting a special chapter on EU into the Constitution,  which had also been discussed, posed a heated debate in Estonian society. Before the referendum, several public statements by renowned legal scholars and practicians were made both in favour and against the Third Act. While the politicians and civil servants preferred not to amend the Constitution, initiating a motion for complementing the Constitution with an Independent Third Constitutional Act; legal scholars, on the other hand, emphasized the need for a legitimate and legally correct entrance into the EU.[4]
Problems related to the Third Act
 
According to Rait Maruste, one of the severest opponents of the Third Act, and the former Chief Justice of the Supreme Court of Estonia,[5] along with joining with the EU, the existing relations of power will shift so dramatically, that emerging collisions cannot be bridged by mere general clause. In his view, the thorough revision of the existing articles of the Constitution should have been preferred, instead.
 
Other main constitutional problems raised with relation to the Third Act were the following. Firstly, the Third Act does not fit into the Estonian Legal order, as Estonia`s traditions provide that laws are amended by introducing amendments directly into the laws themselves instead of existing in parallel. Secondly, Estonian Constitution settles down very rigid amendment procedures, which do not include an act, which would exist independently besides the Constitution instead of amending it. Thirdly, the Third Act would provide unlimited interpretation possibilities and therefore no legal certainty.[6]
 
After political consensus had been reached on opting for the Third Act, new problems related to the accession emerged. Now attention shifted to the possible risks involved with the unconditional acceptance of the principle of the supremacy of the EU law.
 
 
Defence- clause to the Constitution Amendment Act
 
The initial text of the draft Constitution Amendment Act stated simply, that "[i]n case of Estonia´s membership in the European Union, the Constitution will be applied, taking into consideration the rights and obligations arising from the Accession Treaty."[7]
 
This wording of the Third Act deserved severe critics from part of some legal scholars.
L. Mälksoo, the then PhD student of Law of the Berlin Humboldt University, pointed to risks related to the possible future developments of the European Union and argued for adding additional safeguards into the text of the act.
 
In his words, the unconditional acceptance of supremacy of the EU law over the national Constitution in the constitutional text were inappropriate and unnecessary. While accepting the principle of supremacy as such, he pointed to the ongoing political integration in the framework of the EU, and to the possibility of extensive interpretation of the Treaties which could lead to reaching out to the most "sovereign" spheres that could possibly harm the identity of the member state and the fundamental principles of its Constitution.[8]
 
Resting on this kind of critique, the so-called crisis or defence-clause was added to the draft bill of the Constitution Amendment Act on the initiative of the Chancellor of Justice of Estonia.[9] The final text of the draft bill of the Constitution Amendment Act read as follows: "Estonia may belong to the European Union in accordance with the fundamental principles of the Constitution of the Republic of Estonia (Art 1). As of Estonia’s accession to the European Union, the Constitution of the Republic of Estonia applies taking account of the rights and obligations arising from the Accession Treaty. (Art 2)". This text was passed as law in referendum.
 
On introducing the defence-clause into the Constitution Amendment Act, Estonia rested upon the practice of the other Member States of the EU, who also have created legal "emergency exits" and guarantees for protection of the fundamental values of the constitution, which do not question the principle of supremacy of the EU law, but set certain limits to it. In this respect, the Maastricht decision[10] of the Constitutional Court of the Republic of Germany and Art 23 (1) of the German Constitution were primarily borne in mind.
 
The defence-clause is clearly future-oriented and should be invoked in and only in case of negative developments of the European Union. As to what constitute "the fundamental values of the Estonian Constitution", the Estonian politicians preferred to opt for the "open list" so as to refrain from potential self-restraint in this respect. Basically, the principles of human dignity, social and democratic state based on law; principles of the state based on liberty, justice and law; and the obligation to preserve Estonian nation and culture, are concerned.
 
The further elaboration of the content of  "the fundamental values of the Estonian Constitution" falls within the competence of the Constitutional Court of Estonia, should the necessity ever occur.
 
If the EU law got into conflict with the fundamental principles of the Estonian Constitution, it were the Constitutional Review Chamber of the Supreme Court, who had the possibility to assess the validity of the EU law and apply the fundamental principles of the Constitution. In this respect, the Constitutional Review Chamber of the Constitutional Court will act as the "ultimate stronghold" of the fundamental principles of the Estonian Constitution. If the contradiction couldn´t be eliminated, the defence clause could act as the crisis clause and serve as constitutional basis for initiating the withdrawal from the European Union.
 
 
2. Assessment of Constitutional Court´s Readiness for New Challenges
 
European law, the Council of Europe human rights law, in particular, has influenced Estonian legal thinking from the very beginning of re-establishing national legal order after Estonia`s regaining of independence in 1991. In developing the Constitution of Estonia, adopted on June 28th, 1992, European law in its wider sense, embracing, above all, the European Convention on Human Rights and the practice of the European Court of Human Rights, was taken as the basis. This means that the Estonian Constitution has been written in the spirit of the Council of Europe.[11]
 
 
Application of the European law by the Constitutional Court of Estonia
 
References to the Council of Europe human rights law have thus been quite ordinary in the decisions of the Constitutional Review Chamber. During the eleven years of its postwar existence, the Constitutional Review Chamber has frequently applied provisions of the European Convention of Human Rights and used the relevant practice of The European Court of Human Rights in its argumentation.
 
As to the EU law, there has been relatively little space for the Estonian courts to rely on EU law before accessing the EU on May 1st, 2004. However, already as early as in 1994, the Constitutional Review Chamber of the Supreme Court stated the following: "In democratic states the law and general principles of law developed in the course of history are observed in law-making as well as in law application, including the administration of justice. In creating the general principles of law for Estonia the general principles of law developed by the institutions of the Council of Europe and the European Union should be considered."[12] On the basis of this decision, already prior to the accession it was generally assumed that the generally recognized principles of European law served as an integral part of the Estonian legal system.
 
One can also find references to the Charter of Fundamental Rights of the European Union in the practice of the Constitutional Review Chamber of the Supreme Court. In its 2003 decision the Constitutional Review Chamber used the Charter as an interpretative aid in exploring the content of a national constitutional norm, stating that "[a]rticle 41 of one of the most recent international documents on fundamental rights - the European Union Charter of Fundamental Rights - directly refers to the right to good administration." The Court observed the following: "The Charter of Fundamental Rights of the European Union is not yet legally binding on Estonia, but - as it is also expressed in the preamble of the Charter - it is based, inter alia, on the constitutional tradition and the principles of democracy and the rule of law, common to the member states of the European Union. The principles of democracy and the rule of law, as well as other general principles and values of law valid in the European legal space, are also valid in Estonia."[13] In one of its latest decisions, the Constitutional Review Chamber also referred to the Charter, stating that "[p]ursuant to the Charter of Fundamental Rights of the European Union, which is not yet legally binding on Estonia at present, the Union recognises the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources."[14]
 
 
Judicial capacity in light of EU integration
 
Until May 1st, 2004, the Community law stood very much for a foreign law for a national judge from any candidate country. Membership of the European Union means among other things that national courts are expected to apply Community law as their national law. Thus the national judge is faced with the obligation to familiarise his or herself with the novel legal system so as to feel comfortable with applying hitherto unfamiliar norms just like those of domestic law. A justice of the Constitutional Court is no exception in this matter.
 
EUMAP report "Monitoring The EU Accession Process: Judicial Capacity (2002) states the following: "Estonia has made significant progress in establishing and supporting an independent, capable judiciary. Courts are increasingly staffed with capable, trained professionals; reform of judicial and administrative structures is given priority on the political agenda. The new Courts Act potentially represents a major step forward in strengthening the judicial system if its provisions are effectively implemented, especially those on the new Council for Court Administration. In particular, further progress is needed to integrate the judiciary into the budget process, to clarify judges’ selection process, and to develop a comprehensive system for performance evaluation based on clear standards."[15]
 
Estonia has introduced mandatory assessment for newly appointed judges at the end of their probation period, but thereafter full judges’ performance is not subject to periodic
assessments after they are appointed. With the new Courts Act from June 2002, the overall responsibility for training of judges was transferred from the Ministry if Justice to a new Council for Judicial Training. The judicial training in Estonia, like in Bulgaria, Latvia and Lithuania, is being carried out by nongovernmental judicial training centres.
 
As foreign donors gradually reduce their financial support for the programs of these centres, States should either start providing finances to these establishments or incorporate them into State-run judicial training systems, or otherwise use experience accumulated in the centres so that their potential is not wasted. In some cases, the assistance of the EU might be crucial to ensure long-term sustainability of these establishments; EU contributions to institutional capacity-building might be a better long-term investment than funding for specific training programs.
 
After publication of the third regular report (the so-called progress report) of 2000 by the European Commission, the Estonian Ministry of Justice revised the training programme for judges and prosecutors, which now includes special emphasis on EU-specific training. Thus the situation should be improving in field of EU law.
 
The justices of the Supreme Court have participated in numerous conferences, seminars and trainings on EU law. Especially since 2001 the number of academic and educational events touching on themes related to accession has increased. However, justices' contact with EU law has been mainly through their special field. While justices of administrative law background know the respective branch of EU law et cetera, general overview and more concrete knowledge on the role of domestic judiciary in European Union as well as basics of EU law are more modest.
 
 
3. The role of the Constitutional Courts following integration
 
As described earlier, the doctrine of the supremacy of European law over national constitutions is generally well accepted and repeatedly assured by the European Court of Justice. Nevertheless, the national high courts have from time to time shown their distrust of the idea of absolute supremacy by developing concepts like "constitutional identity" or "fundamental constitutional principles" refining the idea of supremacy. So far, no "hard cases" have arisen, but, in view of the further integration, this shouldn't be excluded from academic discussion. Constitutional courts as countermajoritarian institutions in the sense of acting as safeguards from the whims and fancies of politicians, should be at the forefront of this debate, by elaborating co-operation and change of views in this respect.
 
Many questions still remain unanswered. Let the journey begin.
 
 
 
 
 
 
 
 
 
 
 
Annex
 
The Constitution of the Republic of Estonia Amendment Act,[16] passed September 14th, 2003, entered into force 14 December 2003.
 
"At a referendum held on 14 September 2003 on the basis of § 162 of the Constitution of the Republic of Estonia, the people of Estonia adopted the following Act amending the Constitution:
 
§ 1. Estonia may belong to the European Union in accordance with the fundamental principles of the Constitution of the Republic of Estonia.
 
§ 2. As of Estonia’s accession to the European Union, the Constitution of the Republic of Estonia applies taking account of the rights and obligations arising from the Accession Treaty.
 
§ 3. This Act may be amended only by a referendum.
 
§ 4. This Act enters into force three months after the date of proclamation."