Ivo Pilving, Tallinn Circuit Court
Villem Lapimaa, Tallinn Administrative Court
A. Legal framework
1. In Estonia an act amending the Constitution was adopted in 2003. Pursuant to § 2 of the Amendment Act the national Constitution shall be interpreted taking account of the rights and obligations arising from the Accession Treaty. Pursuant to Article 1(2) of the Accession Treaty the Act concerning accession conditions constitutes an inseparable part of the Treaty. Pursuant to Article 2 of the Accession Act, from the date of Estonia’s accession, the provisions of the original Treaties of European Community shall be binding on Estonia. On the basis of the EC Treaty all other valid EU legislation is also binding on Estonia.
Pursuant to § 123(2) of the Constitution, if laws or other legislation of Estonia are in conflict with international treaties ratified by the parliament, the provisions of the international treaty shall apply.
The European Union law has supremacy over Estonian law, even over the Constitution. Taking into account the case-law of the ECJ, this means the supremacy upon application. The supremacy upon application means that the national act which is in conflict with the EU law should be set aside in a concrete dispute.
According to § 1 of the Amendment Act, Estonia may only belong to the EU in accordance with the fundamental principles of the national constitution (rule of law, democracy, basic human rights etc). First it means that Estonia will have to leave the EU, if the belonging to the Union will violate the fundamental constitutional principles in the future. It also means that the fundamental principles of the Constitution have primacy over community law. This defence clause has a rather theoretical and emotional character, but nevertheless there is a possibility that an act of the secondary community law can be set aside in national court procedure according to § 152 of the Constitution.
2. The Supreme Court (Riigikohus) is the highest court in Estonia and at the same time the court of constitutional review. The Supreme Court adjudicates constitutional review cases either at the sessions of the Constitutional Review Chamber or sitting en banc. Constitutional Review Chamber hears cases in panels of at least three members.
The Supreme Court reviews the constitutionality of a law or other generally applicable legal act on the basis of an application of the Parliament, the President of the Republic, the legal chancellor or a local self-government. The right of the Parliament to apply for constitutional review was introduced with an amendment act enacted on December 8, 2005. The Parliament may turn to the Supreme Court for an opinion on how to interpret the Constitution in accordance with EU law if this is of decisive importance in the legislative procedure (§ 71 of the Constitutional Review Act). This amendment was driven by the necessity to clarify whether the introduction of the common currency – the euro – would be in conformity with the Constitution.
In addition to the above, all Estonian courts must review the constitutionality of the laws and other legal acts they apply in court proceedings. In case the relevant law or other legal act is in violation of the Constitution, the legal act must be set aside. This will also initiate constitutional review proceedings in the Supreme Court.
All Estonian courts are obliged to apply community law. Administrative courts have to check the lawfulness of individual administrative decisions, inter alia their conformity with EU law. In case a national law on which an administrative decision is based violates EU law, the administrative court shall set the law aside for that case. In order to set aside a law due to a violation of EU law, the administrative court is not obliged to commence constitutional review proceedings. In constitutional review proceedings, the Supreme Court must set aside a law or other legal act violating EU law as well. The Supreme Court has to apply the Constitution in accordance with the obligations arising for Estonia from the community law. However, no one is entitled to turn to the Supreme Court to have a law declared void as a direct result of violation of EU law.
3. In Estonia, the EU directives are implemented by parliament law. The EU regulations are directly part of national legislation. If the regulation requires some national implementation, a parliament law or government regulation can be adopted. By the moment of accession the Estonian laws were complemented with amendments necessary to introduce the existing community law.
B. Attitude of administrative judges
1. The Estonian national courts have very little experience interpreting the community law since the Estonian accession to the EU. The judges of first and second instance can interpret the community law themselves or ask the ECJ for a preliminary ruling. The Supreme Court has to ask for a preliminary ruling, except where the question is obviously clear or has already been solved by the ECJ. National procedural rules do not regulate the asking for a preliminary ruling, Art 234 EC and the respective case-law of ECJ are applicable.
2. The knowledge of community law among Estonian judges and lawyers is still a problem. However, special community law courses are held, handbooks are prepared etc. Yet there is no serious problem in accepting the precedence of community law.
3. Administrative judges are obliged to check by their own motion whether an administrative act complies with community law. The violation of this obligation would at the same time amount to a violation of the national procedural law.
4. See answer B.1 above. However, pursuant to the Amendment Act of the Constitution, the Estonian court always has to apply the Constitution in accordance with community law.
5. In the very few adjudicated cases where community law has been held relevant, courts have made direct references to ECJ judgments. Examples on this can even be found in judgments made before accession where the harmonised national law was interpreted. References to the Supreme Court decisions are common in Estonian court practice; the citation of ECJ decisions is frequent as well.
1. There is no rule in national procedure code regulating the question, whether the law violating the community law has to be declared inapplicable. But judges are obliged to do so according to community law.
2. Estonian administrative judges can quash individual administrative acts only. Inconsistency with community law can be a reason for quashing. A general regulation can only be declared inapplicable in a concrete case.
3. Estonian courts cannot require the Parliament or the government to adopt new laws or general rules implementing directives, but they can order the authorities to take individual measures demanded by community legislation. Direct injunction as well as reconsidering the case in accordance with the community law by an administrative authority are possible.
In case the state has failed to implement a directive by the given term, an Estonian administrative court can rely on the ECJ practice according to which, to pursue his rights in a dispute with a national authority, a person is entitled to rely on the directive which has unlawfully been left unimplemented or has been implemented incorrectly, in case the directive sets forth the right in question unconditionally and in sufficient detail.
4. Administrative courts can order authorities to pay damages for unlawful administrative decisions. According § 14(1) of the State Liability Law, a person is entitled to claim compensation for damage caused with a law or regulation or the failure to enact one, but only if the damage has resulted from a serious violation, the norm forming the basis of the violated obligation is directly applicable and the person belongs to a group of extraordinarily suffered persons. On these conditions it is possible on the national level to claim compensation for damage caused by the legislator in failing to implement a directive or in implementing one incorrectly. In practice, the importance of this provision has so far been minor since in most cases damage has been caused by administrative decisions.