Justice of the Supreme Court, Docent of European Law, University of Tartu
A Glance at the Estonian Legal Landscape in View of the Constitution Amendment Act
The Estonian Constitution is 15 years old. The first Estonian Constitution was passed in 19201. The amendments adopted by a referendum in 1933 were so essential and important that they are often called the 1933 Constitution2. In 1937, President Konstantin Päts submitted to the National Assembly a new draft Constitution, which entered into force on 1 January 19383. The current Constitution of the Republic of Estonia is among the most stable ones in Estonian constitutional history. It was adopted by a referendum on 28 June 1992 4 and remained completely unaltered for more than ten years. On 25 February 2003, the Constitution of the Republic of Estonia Amendment Act was passed in the Riigikogu for the election of local government councils for a term of four years 5 ; it entered into force on 17 October 2005. Another major amendment was made as a result of the referendum of 14 September 2003 6 , when it was decided to pass the Accession to the European Union (EU) and the Constitution Amendment Act (CAA). The next amendment took place in April 2007, and entered into force on 21 July 2007; the preamble of the Constitution was amended to include the state's objective of guaranteeing the preservation of the Estonian language through the ages7.
The CAA entered into force on 6 January 2004, three months after its proclamation, and its implementation has become increasingly topical after Estonia 's accession to the EU on 1 May of the same year. After the first application and interpretation issues, which have reached the Supreme Court 8 , it is suitable to discuss whether the CAA has justified itself, what shortcomings it has, and what are the positive aspects of Estonia's chosen approach.
This paper observes the changes that have occurred on the Estonian legal landscape in connection with the CAA: how Estonia 's EU membership and European law have affected our valid Constitution, its application and interpretation9. It begins with discussing the position and nature of the Constitution Amendment Act on the Estonian legal landscape, and related debates. The opinion of the Constitutional Review Chamber of the Supreme Court of 11 May 2006, on the interpretation of § 111 of the Constitution in conjunction with the Constitution Amendment Act and European Union Law may be considered to be a turning point in the interpretation of the CAA. This is why the paper first takes into consideration the discussions of the CAA that took place before the aforementioned opinion of the Supreme Court was adopted, and the earlier case-law of the Supreme Court. After that the paper analyses the attribution to the Supreme Court of the competence to provide opinions and the opinion of the Constitutional Review Chamber of the Supreme Court of 11 May 2006. Finally, the paper tries to assess the issues pertaining to this topic which have not yet been solved in Estonian law, especially in the judicial review process.
Following is a discussion of, firstly, the reasons why a separate CAA was preferred to detailed amendments to the Constitution; secondly, the position and influence of the CAA in Estonian law, and the constitutional law discussions that have been raised by problems with interpreting the CAA.
Unfortunately, it must be admitted that the issue of amending the Constitution was avoided in the initial phase of preparations for Estonia 's accession to the EU. Politicians saw the issue as too risky, and so the questions of whether and how the Constitution was to be amended were left to be answered at the last minute. The result was somewhat of a compromise. Although experts had already addressed the issue, to a greater or lesser extent since 1996, when the legal expertise committee was set up that analysed the Constitution as a whole 10 , the necessity of amending the Constitution became clear to everyone only in the second half of 2002, and lawyers and politicians reached, more or less, a consensus as to whether it was to be done11.
The next question was of how it was to be done. Various options were considered. The following aspects were decisive in the amendments to the Constitution: (1) amendments concerning EU accession had to be separate and not pending other amendments; (2) amendments had to concern the EU specifically and not international organisations in general; (3) it was not expedient to amend all provisions of the Constitution which could be contradictory, but an interpretation was to be preferred that facilitated integration12. With these considerations Estonia decided in favour of an original solution -- a separate CAA, which had to be adopted by a referendum, because the amendments concerned sections of the Constitution which may be amended only by a referendum13. Lithuania is the only other EU Member State that did something similar: its Constitution was also amended by a separate constitutional act, which, however, is much more detailed in terms of its content than the Estonian CAA14. Typically, the Constitutions of EU Member States contain either very general provisions on delegating a partial exercise of certain powers to international organisations (the Netherlands, Denmark, Luxembourg, Slovenia), separate provisions concerning the EU (Germany) or whole Chapters regulating EU membership (Austria, France)15.
Therefore both those who find that the choice in favour of the CAA was pragmatically the best considering the political and legal environment, which naturally does not preclude a need for more thorough constitutional amendments in the future, and those who consider the chosen option a unique approach to regulating the relations between EU law and domestic law, are right.
The CAA has only four sections, the meaning of which is far-reaching and builds a bridge between the Estonian legal order and EU law. The core of the Act consists of its first two sections, which provide for a "protective clause" stating that Estonia may belong to a European Union which respects the fundamental principles of the Estonian Constitution (§ 1), and stipulates that the Estonian Constitution shall be applied taking into account the applicable EU acquis transposed by the Accession Treaty, which essentially covers the principles of superiority and direct applicability of European law (§ 2).
The fundamental principles of the Constitution are the core values without which the Estonian state and Constitution lose its essence. They are universal in character and connected with the general principles of EU law16. Neither the Constitution nor the CAA defines the fundamental principles of the Constitution. As the protective clause is to be used if EU law is in conflict with the fundamental principles, the fundamental principles need to be defined. Theoretical approaches derive the fundamental principles of the Constitution from its preamble, Chapter I, "General Provisions" and §§ 10 and 11 of Chapter II, "Fundamental Rights, Freedoms and Duties". Experts have concluded that the fundamental principles should be defined in the form of an open catalogue, which covers, above all, the following principles: national sovereignty; the state's foundations of liberty, justice and law; protection of internal and external peace; preservation of the Estonian nation and culture through the ages; human dignity; social statehood; democracy; the rule of law; respect for fundamental rights and freedoms; proportionate exercise of the authority of the state17. Heinrich Schneider believes that, for its essence and functions, the CAA is in line with the preamble of the Constitution, as the CAA refers to fundamental principles, whose "real home" is in the preamble of the Constitution18. Schneider even argues that the CAA itself is among the fundamental principles of the Constitution19. Although certain fundamental principles of the Constitution, such as liberty, law and justice, internal and external peace and the preservation of the Estonian nation, language, and culture, can be found in the preamble of the Constitution, it is not advisable to place the entire CAA in the preamble of the Constitution, but rather a reference to the CAA in the preamble or general provisions of the Constitution should be considered. This would be important for a better understanding of the nature of the CAA and its linking to the Constitution.
After amendments, the Estonian Constitution consists of three documents: The...