Estonia: From Rules to Pragmatism

This book chapter explores the effects of EU integration on the Estonian Constitution in the light of what scholars have described as a ‘disconnect’ or a lack of a meaningful dialogue between the national and EU legal discourses. It will be seen that from the perspective of EU law, an exemplary approach has been taken whereby the national constitution has by and large been suspended in areas that fall within the scope of EU law, and courts have granted to EU law exceptionless primacy. However, from the perspective of the Estonian constitutional system, we submit for the consideration of the readers that a profound but largely undiscussed shift has occurred from the binding rules of the post-totalitarian constitutional Rechtsstaat to pragmatism. This shift will be traced in three areas: (a) the flexibilization of the formerly strict constitutional provisions through the Supplementary Act of the Constitution and the expanded use of the principle of proportionality; (b) the near-abandonment of constitutional review in relation to a very broad range of provisions ‘tied’ to EU law; and (c) levelling downwards of the protection of substantive constitutional values that have been part of the post-totalitarian constitutionalism modelled on the German constitutional Rechtsstaat, such as fundamental rights, the rule of law safeguards, judicial protection and the social state, in order to comply with autonomous EU law that is oriented more towards effectiveness, the market and neofunctionalism. Such concerns arose most sharply in the ESM Treaty case, where nine judges wrote dissenting opinions with regard to the impact of the very large financial liabilities on the social-democratic state based on the rule of law. Other examples include near-automatic European Arrest Warrant extraditions on the basis of trust by courts, a change in the interpretation of the principles of legitimate expectations and vacatio legis, rules on publication of laws, and a shift towards ‘criministrative law’. The chapter points out that such concerns – along with broader observations about obsolescence of national constitutions or even a paradigm shift from constitutional law to governance – have also been raised in other Member States. The paper ends with a call for a joined-up and inclusive discussion, as part of the ongoing debate on the future of Europe, about the actual effects of EU law on the constitutional systems of the Member States, beyond the keywords of sovereignty and national constitutional identity to which the above matters have hitherto simplistically been reduced due to structural issues in the mainstream EU discourse.