O sodiščuKatalog IJZContributionsPresentation by Dr Aivars Endzinš, Chairman of the Constitutional Court of Latvia

Presentation by Dr Aivars Endzinš, Chairman of the Constitutional Court of Latvia

Prof. Dr. AIVARS ENDZINŠ
Chairman of the Republic of Latvia
Constitutional Court
 
THE POSITION OF CONSTITUTIONAL COURT OF THE
REPUBLIC OF LATVIA FOLLOWING INTEGRATION INTO
THE EUROPEAN UNION
  
The place and role of the Republic of Latvia Constitutional Court in the processes of Euro-integration, to our mind, may be viewed in a wider and narrower aspect.
 
On the one hand, i.e. in the wider aspect, the entire activities of the Constitutional Court for the last almost eight years have been directed to approximating the Latvian legal system to that of the European State system. The idea of a democratic and law-based state is the basis for functioning of the state legal system within the European Union. As concerns the above, nothing has changed after May 1. Everyday activities are going on; so that, when reviewing particular cases, in every particular case the Latvian legal norms shall be commensurable with the basic values of a democratic and law-based state.
 
On the other hand, i.e. in the narrower aspect, joining of Latvia to the European Union has advanced new and more complicated tasks for the Republic of Latvia Constitutional Court. We can mainly speak of two mutually closely connected blocks of problems:
 
First of all there are several topical constitutional legal issues, which are connected with the procedure of accession of Latvia to the European Union. Namely, at present nobody in Latvia is doubting that ”de facto” Latvia is within the European Union. However, the Constitutional Court is receiving many applications in which the submitters challenge the fact whether Latvia has joined the European Union ”de facto”. That is – the submitters hold that accession to the EU has been anti-constitutional.
 
Secondly, the Constitutional Court has to review cases in which such Latvian legal norms, which follow from the EU law, are challenged. As concerns these cases, the Constitutional Court has a double task – it has to elaborate a theoretical and methodical basis for reviewing such cases, at the same time giving interpretation of a particular legal issue.
And now I shall discuss the two above blocks in more  detail. In many cases the roots of these problems shall be looked for in the relevant Amendments to the Republic of Latvia Satversme (Constitution). As is well-known, Amendments to the Republic of Latvia Satversme[i] were adopted by the Saeima on May 8, 2003 and promulgated on May 22 (henceforth – the Amendments to the Satversme). They are connected with the issue of accession and functioning of Latvia in the EU.
 
As I have many times spoken about the above amendments from the platforms of European activities, I shall remind just the most important issues.
 
As is well-known, when renewing its independence, Latvia renewed also the validity of the old (passed in 1922) Republic of Latvia Satversme. When elaborating the Amendments to the Satversme, connected with the accession and functioning of Latvia in the EU, the norms of the Satversme and their contents had to be re-evaluated and analyzed by taking into consideration the context of the reality of the contemporary world. The most essential issue was: is it necessary and admissible to textually amend Articles 1 and 2 of the Satversme. These Articles determine that ”Latvia is an independent and democratic republic” and ”the sovereign power of the State of Latvia is vested in the people of Latvia”. The most essential issue of the discussions with regard to the above Articles was ”Does the participation of Latvia in the EU contract the contents of Articles 1 and 2?” From the answer to the above question depended the procedure, under which the Satversme permits accession to the EU.
 
Both – the working group under the guidance of the former Minister of Justice and the members of the Parliament reached the decision that there was no necessity to amend Articles 1 and 2 of the Satversme.
 
The Amendments to the Satversme are expressed in a very concise and laconic way, which complies with the style of the Satversme. The Amendments express Article 68 and 79 in the new wording:
 
68. All international agreements, which settle matters that may be decided by the legislative process, shall require ratification by the Saeima.
 
Upon entering into international agreements, Latvia, with the purpose of strengthening democracy, may delegate a part of its State institutional competencies to international institutions. International agreements in which a part of state institution competencies are delegated to international institutions may be ratified by the Saeima in sittings in which at least two thirds of the members of the Saeima participate, and a two-thirds majority vote of the members present is necessary for ratification.
 
Membership of Latvia in the European Union shall be decided by a national referendum, which is proposed by the Saeima.
 
Substantial changes in the terms regarding the membership of Latvia in the European Union shall be decided by a national referendum if such referendum is requested by at least one-half of the members of the Saeima.
 
79. An Amendment to the Constitution submitted for national referendum shall be deemed adopted if at least one-half of the electorate has voted in favour.
 
A draft law, decision regarding membership of Latvia in the European Union or substantial changes in the terms regarding such membership submitted for national referendum shall be deemed adopted if the number of voters is at least half of the number of electors as participated in the previous Saeima election and if the majority has voted in favour of the draft law, membership of Latvia in the European Union or substantial changes in the terms regarding such membership”.
 
On September 20, on the basis of Amendments to the Satversme, the referendum took place in Latvia. 1 010 467 voters took part in it. 676 700 voters (66,97%) from all the persons, who participated in the referendum) voted ”for”, 325 980 (32,26%) were ”against”.[ii]  7 787 (0,77%) of the votes were declared as invalid. On October 30, 2003 the Saeima ratified the so-called EU Agreement by law.[iii]
 
Not going deep into the Latvian constitutional law, at the first moment it might seem that there are no problems as the membership in the EU has been decided in a referendum with an impressive predominance of ”for”. However, one shall take into consideration that the referendum was on the issue whether to join the EU. It was not on the issue whether to amend Articles 1 and 2 of the Satversme.
 
Article 77 of the Satversme determines:” If the Saeima has amended the first, the second, the third, the fourth, the sixth or the seventy-seventh Article of the Constitution, such amendments, in order to come into force as law, shall be submitted to a national referendum”. Besides, one has to take into consideration that the majority of votes determined for both referendums differ. As can be seen from the cited Article 79 of the Satversme, an Amendment to the Constitution submitted for national referendum shall be deemed adopted if at least half of the electorate has voted in favour. In its turn, the decision regarding membership of Latvia in the European Union shall be deemed adopted if the number of voters is at least half of the number of electors as participated in the previous Saeima elections and if the majority has voted in favour of the membership of Latvia in the European Union.
 
Euro-optimists and Euro-pessimists interpret the results of September 20, 2003 referendum in a different way. Euro- optimists stress that 997 754 voters or 71,51%[iv] of persons, having the right to vote, participated in the previous Saeima elections. On September 20, 2003 for the accession to the EU voted about 68% of the above figure, which evidently suffices for taking the decision.
 
Euro-pessimists in their turn like to stress that from all the persons, having the right to vote, only 48% were ”for”, but 23% - ”against”. The latter figure is of no legal importance. Even if a much greater percentage of all the persons, having the right to vote, would have voted for membership of Latvia in the EU, all the same they would have voted for such a membership of Latvia in the EU, which does not change Articles 1 and 2 of the Satversme and delegates competence to the EU only ”with an aim of strengthening democracy”.
 
The ”last stronghold” of Euro-pessimists is the statement that the accession of Latvia to the EU is anti-constitutional, as the Saeima was not authorized to adopt the Amendments, without amending Articles 1 and 2 of the Satversme.[v] After the adoption of the Amendments to the Satversme several persons have submitted constitutional claims to the Constitutional Court, in this or that way trying to challenge the legitimacy of the Amendments, the referendum as well as the Agreement on the Accession. Up to now these claims have not complied with the requirements, set out in the Constitutional Court Law, therefore cases have not been initiated.
 
The last claim, which has been received on the above issues during the time of writing this report[vi], questions the legitimacy of the Euro-Parliament elections. At the moment the decision on the above claim has not been adopted.
 
Is the Constitutional Court the institution, which – by giving a juridically argumented viewpoint– shall solve the dispute on whether the accession of Latvia to the EU has been constitutional or anti-constitutional? Looking from the procedural viewpoint, the issue has two parts. First of all – are the particular cases within the competence of the Constitutional Court? Secondly, which persons and on what cases experience the right of submitting a claim on the particular issues.
 
As concerns the first issue, there is no dispute about the fact that in accordance with Article 16, Item 2 of the Constitutional Court Law the Constitutional Court shall review cases regarding compliance with the Constitution of international agreements signed or entered into by Latvia (even before the Saeima has confirmed the agreement).
 
In its turn, disputable is the issue whether the Constitutional Court may assess the compliance of a law on amendments to the Satversme with the Satversme. I should like to note that there are no norms in the Satversme, which directly authorize the Constitutional Court to assess the conformity of such a law with the Constitution or several of its norms. In the practice of the Constitutional Court there is no judgment, which solves the above issue. However, quite regular is the practice of the Constitutional Court Panels to refuse initiating a case on the assessment of mutual conformity of different norms of the Satversme. In its turn, the attitude to the issue of whether the Amendments to the Satversme have been adopted under the procedure envisaged by the law is positive.
 
Thus on November 11, 2003 the Fourth Panel of the Constitutional Court received five analogous applications.[vii] All of them requested declaration of 1) parts of Articles 68 and 79 of the Republic of Latvia Satversme;
2) referendum on the membership of Latvia in the European Union; 3) the Saeima decision on the adoption (in the first reading) of the draft Law ”On the Agreement between the Member States of the EU and the Candidate States on the Accession to the EU” as unconformable with Articles 1, 2, 77, 89 and 40 of the Republic of Latvia Satversme. The 4th. Panel of the Constitutional Court concluded that the claims, formulated in the above way, were not within the competence of the Constitutional Court and refused to initiate a case.
 
Inter alia the 4th. Panel concluded that:
 
In compliance with Article 85 of the Satversme and Article 16 (Item 1) of the Constitutional Court Law the Constitutional Court shall review cases concerning the compliance of laws with the Satversme.
Trying to interpret the term ”law” of the above norms, one shall take into consideration that the aim of the legislator, when establishing the Constitutional Court has first of all been to create an efficient mechanism for the protection of the priority of the Satversme norms. And it would be at variance with the above aim to assume that the Constitutional Court may not assess the conformity of those laws with the Satversme, which envisage amending the Satversme, but are not passed under the procedure, envisaged by the Satversme. The Constitutional Court is authorized to review issues on the fact whether particular norms have become the norms of the Satversme under the procedure established by law. Namely, whether the Saeima has not violated the procedure, when passing the norms.
 
At the same time one shall take into consideration, that the Satversme determines the procedure of amending it, besides the Satversme does not envisage that the Constitutional Court shall review the compliance of one norm with other norms or the Satversme as a whole. If a norm has been incorporated in the Satversme, it is an integral part of it and has a corresponding legal force.”
 
Thus the Constitutional Court would be authorized to review the case on whether the Saeima has adopted the Amendments to the Satversme, concerning accession to the EU, under the procedure, envisaged by the law.
 
Certainly, the Constitutional Court will be able to review such a case only then, when it receives an application, which complies with the requirements of the law. Up to now all the particular applications have been submitted as the constitutional claims. In none of the cases the persons have managed to substantiate that their fundamental rights, set out in the Satversme, are violated.
 
For example, in its February 25, 2004 decision on the refusal to initiate a case, the 4th. Panel of the Constitutional Court established:” The submitters of the application point out that by the referendum, which was realized in accordance with Article 2 of the Law ” On the Referendum and Initiation of the Laws”, Articles 1 and 2 of the Republic of Latvia Satversme were violated as ”the Latvian people were deprived of the sovereign power of the state and the principles of democracy were violated”. Neither ”the sovereign power of the State”, nor ”the principles of democracy” are included in the Satversme or catalogues on human rights of the international human rights documents, and they cannot be regarded as the fundamental rights of the persons.””
It is interesting to note that none of the submitters of constitutional claims has made references to the Satversme norms, which are analogous to Article 38 of the Fundamental Law of the German Federative Republic and which were made use of in the constitutional claims to Bundeverfassungsgericht in the ”Maastricht case”. However, there is a possibility that the Latvian Constitutional Court may have to reach the ”Maastricht Judgment” of its own. We do understand what responsibility it will be for the Constitutional Court.
 
However, even in case if the constitutionality of the process of accession is not challenged at the Constitutional Court, it sooner or later will have to solve the issue on the interaction of different EU acts with the Latvian legal norms.
 
As I have already mentioned, after May 1, 2004 essential problems are connected with the fact that the Constitutional Court has to review cases in which the Latvian legal norms, which follow from the European Union Law, are challenged.
 
At the moment we have already announced the Judgment in a case like the above. On the basis of the claim by the Riga Northern District Court was initiated case No. 2004-01-06 ”On the Conformity of Article 1142 of the Latvian Administrative Violation Code with the April 9, 1965 Convention on Facilitation of International Maritime Traffic”. It has been established in the above case that there is variance between the national legal norm (the challenged norm) and the norm of the Directive as well as the norm of the international agreement (Standard 3.15 of the Convention).
 
In its July 7, 2004 Judgment the Constitutional Court stressed that ” The person applying legal norms, also the court, when establishing discrepancy between the international legal norm and the national legal norm of Latvia, shall apply the international legal norm.”[viii] At the same time the Constitutional Court pointed out that after joining the European Union the Republic of Latvia has to honour the liabilities, following from the Accession Treaty. In accordance with the above act the Council Directive 2001/51/EK is also binding on Latvia.”[ix]
 
Inter alia the Constitutional Court established that ”Article 307 of the Foundation Agreement of the Consolidated European Community regulates the above cases, setting out that European Laws do not affect former agreements, but the Member States shall try to eliminate these unconformities. However, at the time while the Member State has not carried out any activities (denouncement, expression of pretexts) the international agreement shall be applied (see case C-158/91 Criminal proceedings against Jean-Claude Levy).[x]
 
Inter alia the Constitutional Court decided: ” to declare the following text of the first part of Article 1142 of the Latvian Administrative Violation Code: ”for carrying one or several persons from the foreign states to the Republic of Latvia if the above persons do not have valid travel documents for crossing the Republic of Latvia border and if it has been realized by the carrier of maritime transport” as unconformable from May 1, 2004 with Standard 3.15 of the International Convention on Facilitation of Maritime Traffic, signed in London on April 9, 1965 and null and void as regards the carriers of those states, which are Contracting States of the above Convention but are not EU Member States.”
 
With this Judgment the Constitutional Court has made a relevant step to express its viewpoint on the interaction of the EU norms and those of Latvia, as well as on the international liabilities of Latvia, undertaken before accession to the EU.
 
However, this does not mean that all the issues of this sector have been solved. Especially problematic for Latvian constitutional law will evidently be the issues on the mutual interaction of the EU acts and the Satversme. As I have mentioned before, the Latvian voters have taken their decision on the accession to the EU under the procedure, established by the Satversme. When choosing either ”yes” or ”no”, the Latvian citizens on the one hand have taken into consideration the requirements of the Satversme. That is – Articles 1 and 2 of the Satversme remain unchanged. Secondly – delegation of the State competence shall take place ”with an aim of strengthening democracy”.
 
Naturally at the moment there is no court practice in Latvia, which contains the solution of the above issue. I may express only the viewpoint of my own. On the one hand, to a certain limit I do agree with the general viewpoint, expressed by the EU law experts, namely, in case of collision the Community Laws prevail over the national laws and that priority of application of the Community Laws is absolute. Therefore in cases of collision, every Community legal norm to be applied [xi] directly prevails over every national legal norm of the state. Thus the priority of the Community Laws shall be in effect as concerns all the national norms, inter alia also the constitutional norms of Member States”.
 
On the other hand, the higher force of the EU acts is not absolute. The EU is not a state; it has no sovereignty of its own. EU has only these competencies, which the Member States have delegated to it and only in the amount the EU has received. If the EU passes legal acts, which do not follow from the essence of the EU or which may endanger e.g. the existence of the Latvian statehood or democracy, then the Republic of Latvia Satversme and not the above acts shall be applied.
 
I have to agree to the viewpoint, repeatedly voiced at international forums by the Republic of Lithuania Constitutional Court justice Stačiokas, namely, that the constitutional law of the EU is created by the corresponding EU acts and the constitutions of all the EU Member States.
 
At the same time one has to take into consideration that the national constitutional norms are not homogenous either. Every constitution includes the norms, which set out the constitutional basis of the State. Usually a more complicated procedure for amending the norms has been determined and some of the norms shall not be amended. These norms do not have and cannot have a lower legal force than the EU documents.
 
Of course, the above issue is mainly theoretic.
 
Looking from the effectivity angle I can only agree with the viewpoint of the Rector of the Riga Graduate School of Law prof. Norbert Reich that ”in the practice of our time, superiority is not the issue of hierarchy but that of the uniformity. Community rights is a separate legal system, with its sources, specific influence on states and individuals, with its own methods of interpretation and revision… Superiority is not an aim in itself but the means for reaching uniformity in interpretation and application”.[xii]
 
Latvia has some advantages as concerns just these issues. The laconic Satversme is a good material for interpreting it in conformity with the EU Law by systemic approach to it, only if the EU institutions do not use their competence with ill intentions. The Constitutional Court has a good practice in interpreting the Satversme in conformity with the European Court of Human Rights practice. And I hope that at one of our next meetings I shall be able to tell you how the Republic of Latvia Satversme is being successfully interpreted under the conditions of the EU.
 
Thank you for your attention!
 
 
 
 

[i] The Law ”Amendments to the Republic of Latvia Satversme”.
 
[ii]  On the final results of the referendum on the membership of Latvia in the EU. Latvijas Vestnesis 07.10.2003, see also the home page of the Central Election Committee www.cvk.lv.
 
[iii]  The Law ” On the Agreement between the Kingdom of Belgium, the Kingdom of Denmark, the Federative Republic of Germany, the Republic of Greece, the Kingdom of Spain, the Republic of France, Ireland, the Republic of Italy, the Duch of Luxemburg, the Kingdom of Netherlands, the Republic of Austria, the Republic of Portugal, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Estonia, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, the Republic of Slovakia on the accession of the Czech Republic, Republic of Estonia, the Republic of  Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Republic of Slovakia to the European Union”, adopted on October 30, 2003, promulgated on November 12, 2003; Latvijas Vestnesis 12.11.2003, No. 159 (2924).
 
[v] Pleps. What is the Constitutional Basis for the Accession of our State to the EU. The Word of the Lawyer. 17.06.2003; No. 23 (281).
 
[vi] The claim submitted by Janis Grigals on August 11, 2004.
 
[vii]  Applications on initiating a case at the Constitutional Court (Registration Nos. 119-123, 2003).
 
[viii] Judgment in Case No. 2004-01-06 ”On the Compliance of Article 1142 of the Administrative Violation Code with April 9, 1965 Convention on Facilitation of International Maritime Traffic”, July 7, 2004.
 
[ix]  Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the German Federative Republic, the Republic of Greece, the Kingdom of Spain, the Republic of France, Ireland, the Republic of Italy, Great Duchy of Luxemburg, the Kingdom of Netherlands, the Republic of Austria, the Republic of Portugal, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (the Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Republic of Slovakia on the Accession to the European Union.
 
[x] Judgment in Case No.2004-01-06 ”On the Compliance of Article 1142 of the Administrative Violation Code with April 9, 1965 Convention on Facilitation of International Maritime Traffic”, July 7, 2004.
 
[xi] Gatawis S., Broks E., Bule Z. The European Law. Riga, 2002, Eurofaculty, p. 107.
 
[xii] Norbert Reich, Cristopher Godar and Ksenia Vasilyeva. Understanding the EU Law: Aims, Principles and Methods of the Community Rights. Riga: The Agency of the Court House, 2004, pp.41-42.