Influence of European Community Law on Estonian Law and, in Particular, Law-making
| Author | Julia Laffranque |
| Position | Head of the EC Law Division, Ministry of Justice |
| Pages | 86-92 |
Page 86
In a closer analysis of Article 2201 (former Article 164) of the Treaty establishing the European Community, it may be noted that regardless of different national laws of its Member States, the European Community is founded on one single Community law, applicable to Community activities and equally binding on the institutions, Member States and citizens of the Community2. Thus Article 220 of the EC Treaty constitutes a key to the conception of the European Community as a community of law, which ensures material integrity of the Community3. The community of law principle must be and is taken into consideration in preparing Estonia's accession to the European Union. Estonia must be ready for membership of the European Union in not only political and economic but also legal terms. Community law and harmonisation of Estonian law therewith must not be underestimated in the pre-accession process. It would be erroneous to consider legal matters as being of secondary importance in the European Community for the sole reason that it was created primarily in order to improve efficiency of economic co-operation between the Member States. Actually, the European Community is largely held together by the very existence of a strong legal framework, in which, inter alia, the Court of Justice of the European Communities has a very important role to play in exercising control and, partly, creating law.
The relationship of Estonian law, its creators and implementers, to European Community law can be conventionally divided into three stages. Firstly, one can regard adaptation to the European Community law, during which deeper knowledge is gained about the Community law. The next logical step onwards from gaining abstract knowledge will be taken in a far more practical direction - making European Community law a part of the everyday work of those involved in law-making. Increasingly, the Community law will begin to influence the work also of those who implement and enforce law. This will peak in Estonia's becoming a full member of the European Union. Prior to joining the European Union, we are only indirectly related to Community law, but upon accession, there will be a good reason to regard the relations between Estonia and the European Union through the third stage, at which Estonia is no longer a partner but rather a part of the European Union and will begin to actively participate in creating and developing European Community law.
During the initial years of the relationship between Estonia and the European Union, many EU experts regarded Estonia's application for accession and the subsequent approval thereof by the Commission as a marriage proposal4. In order to further illustrate the above-described stages, the author of this article would regard the period of adaptation to Community law as two future family membersPage 87becoming acquainted, the performance of obligations under the association agreement and the pre-accession preparations as betrothal, and Estonia's membership in the European Union as marriage, in which equality of rights between the spouses must be ensured.
Upon the first acquaintance with European Community law, the approach adopted by the harmonisers of Estonian legislation with European law in its narrower sense, i.e. Community law,5 is of conclusive importance. The following paragraphs regard in particular the state officials who harmonise Estonian legislation with Community law. Their very comprehension of Community law as such will to a large extent influence the consideration of Community law in the process of law-making in Estonia.
It is well understandable that at first, Community law is deemed alien: it seems rather a theoretical conception and distant future than a part of Estonian legal practice. Disregarding its supranational character, Community law is often treated as international law6. On the other hand, European law is presently applicable in Estonia as international law. The Association Agreement, or Europe Agreement, concluded between Estonia and the EC is applicable to Estonia as a foreign agreement ratified by the Riigikogu;7 from the aspect of the Estonian Constitution, today, Community law cannot be regarded yet as directly applicable. In this point, it is nevertheless important that comprehension of Community law as supranational be created in Estonia and the attitude regarding Community law as international law be changed as from not later than the moment of accession.
The deepening of knowledge about Community law has been assisted by training in the field of European Community law organised for state officials, including judges and prosecutors8. Whilst, in the beginning of the 1990s, training in the field of Community law was of quite a casual nature, today training programmes have become more systematic, although a stronger emphasis could be laid on coordinating various training.
Proof that adaptation to Community law is not only a hobby for state officials but rather the fulfilment of foreign obligations assumed by the Republic of Estonia is provided by the agreements concluded between Estonia and the European Communities and their Member States and by the formulation of the ultimate objective under the agreements - accession to the European Union - in the official statement issued by the Government of the Republic of Estonia to the European Commission on 28 November 19959.
Until the entry into force of the Treaty of Amsterdam, any European state could, under Article O (1) of the Treaty on European Union (TEU), apply to become a member of the European Union. The Treaty of Amsterdam amends that Article, in the form of the present Article 49 of the TEU, as follows: "Any European State which respects the principles set out in Article 6 (1) may apply to become a member of the Union". Article 6 (1) of the TEU, as amended by the Treaty of Amsterdam, provides that the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to all Member States. These new requirements in the Treaty of Amsterdam originate from the criteria, also known as the Copenhagen criteria, established for candidate countries by the European Council at its Copenhagen summit of 1993 as follows:
- political criteria: a Member State should have stable institutions which would ensure respect for democracy, the rule of law and fundamental freedoms as well as the protection of minority rights;
- economic criteria: a Member State should have a functioning market economy; it should be able to adapt to the competition and market trends prevalent in the Union;
- the main condition of accession is, however, the transposition of acquis communautaire, i.e. the transposition of the political objectives and in particular the entire applicable Community law (primary and secondary legislation, unwritten law and case law of the Court of Justice). A candidate country should be ready to fulfil the obligations arising out of membership.
Chapter 3 of Part 5 of the Association Agreement, concluded between Estonia and the European Communities and their Member States, provides for Estonia's obligation of legislative approximation10. Namely, under Article 68 of the Europe Agreement, Estonia will endeavour to ensure that its legislation will be gradually made compatible with that of the Community.
Regardless of the concretisation of Article 68 following in Article 69, which indicates the fields whereto the legislative approximation primarily extends, Estonia's obligations under the Europe Agreement are formulated very generally, without providing details. Already the very circumstance that, under the Europe Agreement, Estonia "endeavours" to make its legislation compatible with EU law, is confusing11. Nolens volens, the question will arise of where the limits of transposing acquis communautaire are. Estonia must align its law with another, the creation of which it has not participated in. Secondary legislation of the Community - Regulations, Directives and Decisions - are adopted, with more or less participation by the European Parliament, by the Council of the European Union, which is composed of ministers of the EU Member States. As of now, Estonia is not yet a Member State but is, however, already bound by decisions taken in BrusselsPage 88without any chance of being influenced by representatives of Estonia. The situation seems not to improve even after Estonia's becoming a Member State, as a deficit of democracy in the European Union is complained about in professional literature of Member States12. However, the role of the European Parliament in the decision-making process has been increased in each instance of amending the Treaties. The Treaty of Amsterdam also extended the rights of the Member States' national parliaments in the EU decision-making process - the parliaments must be given six weeks to state their position before the...
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