Dissenting Opinion in the European Court of Justice - Estonia’s ­Possible Contribution to the Democratisation of the European Union Juridcial System

Author:Julia Laffranque
Position:Doctor iuris, Justice of the Supreme Court

1. Introduction. Dissenting opinions in the Supreme Court of Estonia - 2. The current situation in the European Court of Justice - absence of dissenting opinion, and the reasons for it - 2.1. Opinion of the advocate-general as a replacement for the dissenting opinion - 3. The possibility and necessity of dissenting opinions in the European Court of Justice


Julia Laffranque

Doctor iuris, Justice of the Supreme Court

Dissenting Opinion in the European Court of Justice - Estonia's Possible Contribution to the Democratisation of the European Union Juridcial System

1. Introduction Dissenting opinions in the Supreme Court of Estonia

Estonia has become a member of the European Union. In relation to this, two Estonian judges work in the European Union court system and participate in supranational administration of justice in the European Court of Justice (ECJ) and the Court of First Instance of the European Communities. The judicial practice of the ECJ will definitely benefit from the experience that these judges have gained during their careers in the courts of Estonia, a country that restored democracy not long ago and has, among other things, built up a state based on the rule of law, characterised by ample reform legislation. But there is yet another link between the administration of justice in Estonia and that in the European Union - Estonian courts and judges have become a part of the judicial power of the European Union. Time will tell what the dialogue between the Estonian courts and the ECJ will be like; it is too early to predict how active the Estonian courts will be in seeking preliminary rulings from the ECJ. The co-operation will no doubt be mutually enriching; not only will administration of justice in Estonia become more 'European', but the European Union is in turn likely to find something worth transposing from Estonia.

I would like to focus on one such possible aspect of the Estonian legal system - the opportunity for a judge to present a dissenting opinion. The disclosure of a judge's dissent from the majority opinion is permitted in Estonian court judgements, but this is not allowed in judgements of the ECJ. The European Union as a whole has been criticised for lacking democracy in its judgement procedure, and the criticism is likely justified, considering how decisions are made in the ECJ. A smooth integration of the new member states into the body of the established members may come under threat when democracy is lacking. The admissibility of dissenting opinions in the ECJ is an issue that has remained intriguing as nobody dares to attempt to change the status quo of the ECJ, and thus it has become a taboo area for experts in European law. This article attempts to take pioneering strides in this field and serves as a dissenting opinion on the disallowance of dissenting opinions in the ECJ.

A dissenting opinion is an opinion expressed in a case where a judge who maintains the minority position does not subscribe to the justifications and/or conclusion of the judgement of the majority. As a rule, in Estonia, which belongs to the Continental European legal tradition, judges may maintain a dissenting opinion in administering justice, and the dissenting opinions of judges of the Estonian Supreme Court are published along with the judgements. This is nothing new for Estonian justice, as dissenting opinions were permissible to a certain extent before the Second World War and the concept of dissenting opinions was used even in the procedural codes applicable during the Soviet era. Dissenting opinions have been provided for in the Constitutional Review Proceedings Act1, Code of Civil Procedure2, and Code of Criminal Procedure3, the first being the most precise in its regulation thereof. A judge's expression of a dissenting opinion is common practice in all the chambers of the Supreme Court, especially in the Supreme Court en banc. During the period from the first decision of the Supreme Court, in 1993, until 2003, the judges of the Supreme Court have presented a total of 75 dissenting opinions concerning 58 decisions4. The presentation of dissenting opinions shows an increasing rather than a decreasing trend. If there is little precedent or it is contradictory on some points or even backed by poor reasoning, the dissenting opinion of a judge may add to uncertainty. On the one hand, presentation of dissenting opinions may render it difficult for the Supreme Court to direct the other courts, and thus the decision of the Supreme Court may serve as merely one of the arguments in the further development of law. On the other hand, in a new state, a thorough consideration of different positions may only contribute to the interpretation of the Constitution and legislation, filling of the gaps, and establishing of the general principles of law. Not rarely has the Supreme Court had to identify its role in relation with the other Estonian courts and state authorities, especially in its early years. Here the dissenting opinions of the judges of the Supreme Court concerning the nature and functions of the court and the methods of interpretation of constitutional and procedural law, which have facilitated the dynamic interpretation of the Constitution, among other things, serve as an invaluable asset. Dissenting opinions of Supreme Court judges have promoted the internationalisation of justice, relying on the law of other countries as well as on international and European law, among other legal traditions, in their arguments. When some opinions have been too progressive for their day (such as the dissenting opinion supporting abolition of the death penalty and those referring to European Union law)5 and considerably more liberal and far-reaching than the majority opinion, the dissenting opinions have also served not just to aid development of the law but also to provide limits to the role of the court and warn the majority against indirect, publicly undeclared alteration of earlier practice. In this respect, dissenting opinions can be compared to litmus paper and serve as the internal control of the Supreme Court itself in delimiting its competencies.

The dissenting opinion of a Supreme Court judge may, in a sense, have a proactive legislative function, which is manifested both in its influence on future judicial practice, as the dissenting opinion renders it demonstrably easier to alter earlier approaches, and in its legislative force, which is manifested in the consideration by the legislator of the proposal provided in the dissenting opinion. For example, an explanatory memorandum concerning a draft act relied on the dissenting opinion of judges of the Supreme Court6. To sum up, in Estonian law, the dissenting opinion of a judge of the Supreme Court may be viewed as between a decision of the Supreme Court and legal doctrine.

2. The current situation in the European Court of Justice - absence of dissenting opinion, and the reasons for it

Unlike many international and regional courts, such as the International Court of Justice in the Hague, the European Court of Human Rights, the International Tribunal for the Law of the Sea, and the International Criminal Court, the European Court of Justice does not allow for a judge to issue a dissenting opinion. The

EFTA Court
also excludes dissenting opinions.

The reasons the publication of a dissenting opinion was not desired when the ECJ was founded may be divided into:

- historical reasons,

- organisational reasons and those related to the selection of judges, and

- fundamental and substantial (almost ideological) reasons stemming from the legal policy of the European Union.

The reason related to the establishment of the European Communities/Union, historical development, and the legal orders of the member states influencing it is the absence of the institution of the dissenting opinion in the internal court systems of the founding member states. The founding member states of the European Communities - France, Germany, Italy, Belgium, the Netherlands, and Luxembourg - come from the Continental European legal tradition; even Germany was not familiar with the concept of dissenting opinions at the time, as the judges of the Federal Constitutional Court of Germany were permitted to present dissenting opinions no more recently than nearly 20 years after the establishment of the Court of the European Coal and Steel Community (ECSC). The founding member states had a conservative attitude with respect to the confidentiality of deliberations of the court, and exceptions to it (a judge's issuance of a dissenting opinion was considered one of these) were extremely limited. According to several authors, even today it is self-evident that dissenting opinions are not allowed in the ECJ because of the confidentiality of deliberations7.

Interestingly enough, even the later enlargements of the European Union, especially the accession of Great Britain, the home of the dissenting opinion, and Ireland in 1973 (the states acceding later, with the sole exception of Austria, allow for presentation of a dissenting opinion at least in part - in the highest courts, the constitutional courts8), were unable to alter the negative attitude assumed to the notion of dissenting opinions in the ECJ. There were attempts to discuss the topic of permitting judges to express dissenting opinions, part of the preparation for the reforms of the ECJ; e.g., at the intergovernmental conference of 1992, the European Parliament proposed that the practice of dissenting opinions be introduced to the system of legal protection of the European Communities9. These attempts have usually failed or been outweighed by negative final reports10. The reasons for this are, above all, rooted in the fact that the judicial power of the European Union is still in its structure - the main model being the highest administrative court in France, the Council of State (Conseild'Etat) - and in its...

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