Constitutionality of the European Stability Mechanism in Estonia: Applying Proportionality to Sovereignty

Extract

The Supreme Court en banc was forced to make a rushed judgment in a situation of confusion, uncertainty and absence of legal certainty prevailing in the Estonian and the EU legal environment.

Dissenting justice Jaak Luik

On 12 September 2012 the Bundesverfassungsgericht gave the green light for Germany to ratify the Treaty Establishing the European Stability Mechanism (ESM Treaty), but made ratification conditional upon international law arrangements to be made to guarantee an interpretation of the ESM Treaty which would be in line with the German Grundgesetz. Although the constitutional challenge in Germany, which is the largest ‘donor’ to the ESM, was certainly of core importance as to whether the member states would be able to launch the mechanism at all, the constitutional challenges in other member states also deserve academic attention. The reference for a preliminary ruling by the Supreme Court of Ireland raised serious questions concerning the conformity of the ESM Treaty with EU law. In its Pringle decision the Court of Justice dismissed the concerns raised in the reference as being unfounded.

This article focuses on the compatibility of the ‘emergency voting’ mechanism set out in Article 4(4) ESM Treaty with the principles of democracy, the rule of law and sovereignty raised before the Supreme Court of Estonia. The Constitution of the Republic of Estonia [Eesti Vabariigipõhiseadus] (henceforth: the Constitution) and the Acts of the Republic of Estonia do not foresee a separate constitutional court or the possibility of an individual constitutional petition. Thus, the issue of the constitutionality of the emergency voting procedure contained in the ESM Treaty was raised ex officio in abstract constitutional review proceedings by the Estonian Chancellor of Justice [Õiguskantsler], which ‘in Estonia combines the function of the general body of petition and the guardian of constitutionality.’ The petition for review focused on the fact that substantial budgetary decisions could be made in the future under the emergency voting procedure without the involvement of the Estonian parliament. According to the petition, ‘[w]ith accession to the Treaty the budgetary policy choices of the Riigikogu will diminish.’