Constitution of the Republic of Estonia in the Light of Accession to the European Union

• Author: Julia Laffranque
• Pages: 207-221

Julia Laffranque

Constitution of the Republic of Estonia in the Light of Accession to the European Union

1. Importance of the problem and the need for discussion

Next year the Constitution of the newly independent Estonia will become 10 years old. Noteworthy is the fact that the Constitution has not been amended at all during the first decade. This refers either to the successful quality and stability of Estonia's most important in-force legal document or to an over-sophisticated procedure of amendment of the Constitution and inability to achieve the political consensus for adoption of necessary amendments.

Estonia has substantially developed during the ten-year period. The government's priorities in foreign policy have also become more specific, and Estonia's joining the European Union has become one of them. The latter climaxed in 1995 in the presentation of application for accession to the European Union and the entering into force of the Association Agreement in 1998². By the present moment more than half of the chapters of accession negotiations have been temporarily closed³. An inevitable question arises of how a Constitution passed ten years ago can hold out against such fast development in foreign policy, which is, though, also closely intertwined with domestic policy, and what would the best approach be in order to achieve a balance between political objectives, the will of people and juridically correct legitimation that would satisfy both politicians and lawyers and what is most important ? also the Estonian people.

Lack of knowledge may sometimes lead to development of false opinions, the results of which will be difficult to cure later. Thus we have reached a deplorable situation where there should be enough general information for everybody on Estonia's pursuit into the European Union and the nature of the European Union, but important legal and constitutional issues have mainly been left to experts of the field or those enthusiastic eurosceptics looking for cons against joining the European Union⁴. Politicians have the utmost caution in their attitudes towards the topic. Nevertheless the Constitution touches us all, i.e. the whole of the Estonian people into whom the supreme state power has been vested pursuant to the Constitution⁵. It is the people who will most probably make the final decision upon joining the European Union and amendment of the most important chapters of the Constitution, if necessary.

When the Committee of Expert Legal Review of the Constitution of the Republic of Estonia ⁶ , formed during the reign of the preceding government, after the presentation of its report in 1998 invited lawyers and politicians to discussion, the reaction to it remained modest⁷. Concerning seminars on the Constitution of the Republic of Estonia and the European Union, only two of them are worth mentioning: the Riigikogu's (Estonian parliament) event on amendment of the Constitution in a more general sense that took place in Haapsalu in December 1999, and the round table on EU law organised a year later by the Ministry of Justice "On the need for amendment of the Constitution of the Republic of Estonia in relation with Estonia's accession to the European Union" with the participation of German and French experts, which was followed by a broader discussion in the National Library with the assistance of the European Union Information Secretariat.

It may be concluded from the above that the relation between the Constitution of the Republic of Estonia and the European Union and issues related to possible amendment of the Constitution are important problems that need comprehensive juridical as well as political analysis and a broader discussion relying on it⁸.

The author of this article is going to clarify the present situation for the purposes of better orientation in sophisticated constitutional issues that accompany joining the European Union, and give one possible vision of legally appropriate constructions in respect of these problems, presenting therewith exclusively personal opinions. First it will be considered whether the ongoing process of integration of Estonia into the European Union, i.e. the process preceding joining the European Union, is legitimate. Then it will be discussed how it is possible to interpret the valid Constitution dynamically, following the principle of equability of the Constitution at the same time. Thereafter it will be analysed whether the 1992 Constitution of the Republic of Estonia enables Estonia to become a member of the European Union and explained in what way the Constitution should be amended, if it turns out to be necessary, and how to carry it through. At the same time experience of the member states of the EU will be presented for comparison, although intentions of other candidate states on the issue will not be given closer analysis due to limited space and relatively incomplete data available. In the end the joining of Estonia with the European Union will be observed in a broader context than amendment of the Constitution, considering the possible referendum preceding the accession to the European Union.

2. Legitimacy of the process of integration of Estonia into the European Union (i e. the process preceding accession to the European Union)

The issue of possible amendment of the Constitution has often been associated with the process preceding Estonia's joining the European Union and the legitimacy of the latter has been called into question⁹. Here we have to proceed from the following:

-political expression will by the government of the Republic of Estonia and the Association or the Europe Agreement ratified by the Riigikogu as representatives of the people,

-the Europe Agreement as the legal basis of relations between the European Union and Estonia,

-legal validity of Estonia's objective to join the European Union,

-compliance of the Europe Agreement with the Constitution,

-other legal acts,

-as well as legally not binding documents that constitute basis for Estonia's preparation for accession to the European Union.

The Europe Agreement ¹⁰ ratified by the Riigikogu created a new, substantially broader framework for relations between Estonia and the European Union as compared to the previous Agreement on Free Trade. Association is the strongest bond that exists between the European Union and third states. The Europe Agreement is a legally binding document that regulates Estonia's relations with the European Union until Estonia becomes a member state of the European Union.

It follows from the Preamble of the Europe Agreement that Estonia's final objective is to become a member of the European Union, and association helps Estonia to achieve this end according to the opinions held by the parties. The former Legal Chancellor Eerik-Juhan Truuväli has said that the position expressed in the Preamble of the Europe Agreement is a political expression of will of the Government of the Republic of Estonia who signed the Agreement and of the Riigikogu who ratified it, which has no legal consequences for the achieving of such end. However, the importance of preambles should not be forgotten at interpretation of agreements¹¹.

Beside the Preamble, article 1 of the legally binding Europe Agreement provides:

"1. An association is hereby established between the Community and its Member States, of the one part, and Estonia, of the other part.

2. The objectives of this association are:

/.../ to provide an appropriate framework for the gradual integration of Estonia into the European Union. Estonia shall work towards fulfilling the necessary requirements in this respect."

The Association Council founded on the grounds of the Europe Agreement is the highest political body according to the Agreement, which convenes on the level of ministers and is authorised to deal with whatever issues considered necessary by the parties to raise¹². In accordance with article 111 of the Europe Agreement the Association Council has the power to take decisions for the purpose of attaining the objectives of the Association Agreement. The decisions taken are binding on the Europe Agreement parties which shall take the measures necessary to implement the decisions taken. The Association Council may also make appropriate recommendations.

But is the Europe Agreement itself in harmony with the Constitution? From the pro forma legal aspect the answer to this question may only be affirmative. The first paragraph of section 123 of the Estonian Constitution prohibits entering into international treaties which are in conflict with the Constitution. Accordingly, the concluded and entered into force Europe Agreement does comply with the Constitution. No one raised the question of possible conflict between the Europe Agreement and the Estonian Constitution before the coming into force of the former.

In accordance with clause 5 of subsection 4 (1) of the Constitutional Review Proceedings Act ¹³ , the Supreme Court may perform review only on foreign treaties that have not entered into force. The proposal may be made according to subsection 6 (1) of the same Act by the President of the Republic (does not proclaim the ratification act of the foreign treaty) and the Legal Chancellor (for checking the compliance of foreign treaties with the Constitution ? as towards a signed foreign treaty or bill of ratification of a...