Estonian Constitutional Court: EU Conformity as a Supra-Legal Goal

Paloma Krõõt Tupay

University of Tartu

Estonia regained independence in 1991, putting an end to a period of more than 50 years of Soviet occupation. The hurdles the country had to overcome in this new beginning – to become today's small but successful democratic e-state – were great. Estonia had to be reinvented politically, economically and legally; the institutions necessary for an independent state were lacking, as was practical experience of their functioning. Of particular importance in this reinvention was the goal of becoming part of the European Union (EU). This is evidenced, among other things, by a 2006 landmark judgment discussed below. 

The political and legal background to the Court’s decision

The new Estonian Constitution (EC), adopted in 1992, expressly delegates the declaration of the annulment of laws on grounds of unconstitutionality to the Estonian Supreme Court (ESC). The EC does not create a constitutional court. The reasons for deciding against a constitutional court were mainly of a practical nature. On the one hand, the authors of the EC just followed the example of the earlier Estonian Constitutions of 1920 and 1938; on the other hand, for a small state it was not an unimportant argument that an integrative solution can be implemented with less expense and regulatory effort. Today, most constitutional claims are decided by the Constitutional Review Chamber of the Supreme Court (ESC CRC).

After regaining independence, Estonia's accession to the EU became a significant goal of national policy. The reason for this clear orientation towards the West can be found in the geo-political and historical-cultural position of the country. After long years under Russian domination and forced membership in the USSR, the country wanted to secure independence for the future at any cost. On 24 November 1995, Estonia applied for EU membership and accession negotiations formally began in 1998.

Despite initial expert discussions, it was not until accession came within reach in 2002 that the need to regulate conformity between national and EU law was appreciated also at the political level. As the reports of the experts involved in the drafting process reveal, the limited time frame remaining for decision-making played a significant role in the decision against an "integrative" solution by way of amending the EC and in favor of a separate legal act supplementing the EC. Judge and Professor Julia Laffranque has also pointed out that a detailed modification of the Constitution would also have been "psychologically too categorical for the people". Against the backdrop of the newly won freedom from the USSR, such an approach would have likely caused accession to the EU to be perceived as a new "forced union". The four-paragraph long Amendment Act to the Estonian Constitution (EC AA) was adopted by referendum on 14 September 2003, without amending the text of the already existing Constitution. On 1 May 2004, Estonia became a member of the EU.

According to the EC AA’s first section, Estonia may belong to the EU as long as the fundamental principles of the EC are respected. Section 2 of the EC AA states that as long as Estonia is a member of the EU, the EC shall be applied taking into account the rights and obligations arising from Estonia’s Accession Treaty to the EU. The Act’s final two sections state that the EC AA may be amended only by referendum and enters into force three months after its promulgation. With this broad wording, the ESC was given a large role in assessing the conformity of Estonian law with EU law. In what follows, I discuss one of the most significant decisions on this issue.

The Supreme Court’s 2006 decision on the necessity to interpret the Constitution in conformity with EU law

At the end of 2005, the Estonian Parliament, Riigikogu, adopted a legal amendment granting that body the right to request from the ESC CRC opinions regarding the conformity with European Law of parliamentary bills dealing with the implementation of EU legal requirements into national law (§ 71 Constitutional Review Procedure Act).

Against the background of Estonia's strong aspiration to become a member of the eurozone, the reason for drafting the bill in question was the ongoing dispute between the Estonian government and the European Commission over the interpretation of § 111 EC. The issue was whether § 111 EC, according to which the Estonian Central Bank has the exclusive right to issue money and is responsible for its stability, is compatible with EU law, which grants the European Central Bank the exclusive right to issue Euro banknotes within the EU. While the European Central Bank (and with it a large part of the legal community in Estonia) "strongly recommended" a constitutional amendment for reasons of legal certainty, opponents in Estonia objected that such an amendment was dispensable due to the EC AA. However, the Commission had agreed to drop its concerns in this respect in the event of a positive ruling by the ESC CRC confirming the possibility of interpreting § 111 EC in conformity with EU law.

In order to enable such a decision to be made by the Court, the Riigikogu adopted the above-mentioned legal amendment as a first step. Next, the Riigikogu turned to the ESC CRC to ask for its opinion on the conformity of § 111 EC with EU law, in the light of Estonia’s accession to the eurozone. This is the only time the Riigikogu has used this mechanism.

The ESC CRC rendered its ruling on 11 May 2006. On the legal effect of the EC AA, the ESC CRC stated in its opinion (ESC CRC Opinion 11.05.2006, 3-4-1-3-06, para 15 f) that “[§ 2 EC AA] amounts to a material amendment of the entirety of the Constitution to the extent that it is not compatible with EU law. To find out which part of the Constitution is applicable, it has to be interpreted in conjunction with EU law, which became binding for Estonia through the Accession Treaty.” 

Further, the ESC CRC found that § 111 EC was incompatible with EU law, since the respective legal norm provided for conflicting sole competences for the issuance of Estonian money and the Euro, respectively. According to § 2 EC AA, § 111 EC had to be left inapplicable and the relevant EU law applied instead. According to the Court, the EC AA allows the EC to be read in a manner conforming to EU law (the Court speaks here of reading, Estonian: lugema, not of interpreting, Estonian: tõlgendama; ESC CRC Opinion 11.05.2006, 3-4-1-3-06, para 14).

Dissenting opinions were written by 2 of the 9 Judges of the ESC CRC. Among other aspects, the dissenting Judges questioned the constitutionality of the act that granted the parliament the right to refer questions of conformity of national bills with EU Law for preventive control to the ESC CRC, as the extent and possible binding legal force of such court opinions remained unclear. 

Both dissenting Judges argued further that the ESC CRC had unjustifiably extended the principle of the primacy of EU law, commonly understood as primacy of application, into a competence to amend the EC. The Judges further criticized the Court’s opinion for relying exclusively on the regulatory content of § 2 EC AA, without even mentioning the Act’s first section, which states that Estonia may belong to the EU only as long as the fundamental principles of the EC are respected.

The ESC CRC’s application of the EC AA leaves no room for legal interpretation. If a constitutional provision is incompatible with EU law the provision is, in the words of the ESC CRC, "suspended" and replaced by EU law (ibid, para 16). It remains unclear whether this is a "suspension" in the sense of a priority of application or validity. Even though the Court does not speak of invalidity, its choice of words confirms the ESC CRC’s broad understanding of the priority of EU law over national law.

The ESC CRC’s decision does not comment on the principles of legal clarity and certainty. However, Estonian legal scholarship commenting on the ESC CRC’s opinion has pointed out that the European Court of Justice (ECJ - the supreme court of the EU on matters of EU law) understands legal clarity and certainty as binding legal obligations. This requires that where national norms contradict EU law these need to harmonized also in formal terms, i.e. in their wording, not only in their interpretation.

Posterity and significance of the 2006 decision

The 2006 decision suggests that the ESC has clearly understood itself as having a responsibility to facilitate Estonia's rapid integration into the EU. Against Estonia’s historical and political context, it is understandable why Estonian jurisprudence has often been described as particularly "EU-friendly" (e.g. Albi/Kalmo, p 21).

In this context, a 2022 decision of the ESC en banc stands out. Referring to the case law of the ECJ, the ESC states that "[…] the primacy and direct effect of the provisions of EU law do not release Member States from their obligation to remove from their domestic legal order any provisions incompatible with EU law, since the maintenance of such provisions gives rise to an ambiguous state of affairs and makes it more difficult to rely on EU law.” (para 45). And referring to § 1 EC AA, the ESC concludes that "the principle of primacy of EU law applies to the entirety of Estonian national law, including the Constitution […], but only insofar as this is not contrary to fundamental constitutional principles" (para 41). This ruling indicates the gradual "emancipation" of Estonian jurisdiction vis-à-vis that of the EU.

The 2006 judgment is part of an EU law-friendly application of the law in Estonia, which has been characterized in the literature, inter alia, as "unlimited priority" of EU law (see Ernits, Madis et al) and (legal) "pragmatism" (see Albi and Kalmo). However, the 2022 judgment has even more far-reaching significance for the Estonian legal system.

First, it should be noted in this respect that the Estonian legal system is young compared to many other legal systems in other EU member states. After Estonia regained independence in 1991, it had to be entirely reinvented, also in terms of its methodology and legal practice. The ESC’s approval in the 2006 decision to apply the law contrary to its wording – even if only within the framework of a certain subject area – also therefore has significance for the interpretation of the Estonian Constitution. It shows the Court's readiness to interpret the Constitution even beyond its wording. As a matter of fact, no clear methodological or judicial principles have emerged to date in this regard. At the same time, however, the above-mentioned 2022 ESC judgment also testifies to the fact that ESC Judges today are more aware of the position and value of their own legal system. It does not seem realistic that the ESC today would also issue such a succinctly reasoned judgment on this matter as they did in 2006.

Furthermore, it should be noted that the ruling of the ESC discussed here forms part of a political effort set at national level. First of all, the legislator had created the necessary legal basis for the ESC to interpret quite freely the conformity of the Constitution with EU law. The ESC, in turn, fulfilled the political expectation that had been placed on it. However, such tendencies to dissolve basic legal principles, such as the primacy of the law or legal clarity and certainty in cases of special political priorities, are not peculiar to Estonia. During the Covid-19 crisis, for example, it could be observed globally that public authorities were sometimes inclined – in the name of health protection – to restrict freedoms without a sufficient legal basis. The tendency to push aside the law in the name of good intentions, however, should be met with caution. History teaches that using the law to achieve political goals undermines its objectivity and credibility in the long run. This, in turn, undermines the rule of law.

Paloma Krõõt Tupay is Associate Professor at the School of Law, University of Tartu in Tallin (Estonia).

Suggested Citation: Paloma Krõõt Tupay, ‘Estonian Constitutional Court: EU-conformity as a supra-legal goal’ IACL-AIDC Blog (14 November 2023), Estonian Constitutional Court: EU Conformity as a Supra-Legal Goal — IACL-IADC Blog (blog-iacl-aidc.org)