Jubilee Congress in the Capital of European Law
The Role of Europe and Law in Times of Crisis
It increasingly seems that the European Union (EU) is becoming a victim of its own success. The project to unite Europe that has achieved so much and has managed with unprecedented success to encompass both a deeper integration of Europe and the enlargement of the European Union to new states that undeniably belong to historic Europe, is showing signs of fatigue.
The financial crisis that crippled much of the world a few years ago continues to be felt in Europe today. While 25 European Union member states have agreed that a new fiscal treaty is needed, two have opted to stay out for the time being, paving the way towards a multi-speed European model. Quick ad hoc solutions are sought to overcome the crisis, which may cast doubt on the unique character of European Union law. The Supreme Court of Estonia will soon decide on the conformity of the Treaty establishing the European Stability Mechanism with the Estonian Constitution.
The European Commission has launched infringement proceedings against one member state due to concerns that the independence of its central bank and data protection authorities have been compromised and the judiciary has been unduly influenced. Another state has indicated a desire to weigh the possibility of curtailing the jurisdiction of the European Court of Human Rights. Today, when a serious threat to democracy exists in more than one European state and the terrorist acts of September 11, 2001 continue to cast a shadow throughout the world, the topics of human rights and the rule of law are particularly important.
It is therefore all the more worrisome that accession of the European Union to the European Convention on Human Rights has stalled on the political level. Yet this accession is prescribed by both the European Convention on Human Rights (ECHR) and the Treaty on European Union as amended by the Treaty of Lisbon, which may even be viewed as the legal basis for the obligation of the European Union to accede to the ECHR. It would be impossible to overstate the importance of guaranteeing the effective and steadfast protection of fundamental rights and freedoms throughout all of Europe such that this would apply should the European Union itself, for some regrettable reason, violate human rights.
Despite this uncertainty, it is highly likely that the European Union will soon welcome a new member, Croatia, whose accession under such circumstances has been likened by pessimists to purchasing a ticket on the Titanic.
Indeed, the European Union faces the challenge of finding satisfactory solutions to complicated problems. To do so, it must draw new strength and motivation from even the most difficult of situations to protect, preserve, respect and develop common values. We must remember that in the globalizing world, it is very difficult for a state to make it on its own and that there are few alternatives to a peaceful, united Europe. These alternatives may prove to be disastrous, bringing about conflict and misunderstanding, even to the point of war and the emergence of new, undemocratic and totalitarian organisations. Yet in emphasizing the need for European integration we should not forget that in the view of Robert Schuman, supranationality finds its basis in the nations it unites.
In this respect an important role is played by the legal framework of the European Union, which must be strong and effective yet must also accommodate developments in society and respect the fundamental values it expects its member states to uphold.
When we speak of European law, we cannot ignore FIDE, the International Association for European Law.
The Role of FIDE in European Law
In 2011, FIDE celebrated its 50th anniversary. It is fair to say that since the first FIDE Congress held in Brussels in 1961, FIDE has become a symbol of sorts in European law, and that this association, with its long tradition, has made an outstanding contribution to the shaping of European legal culture.
FIDE unites the associations of European law of European states with its activities focused on the biennial FIDE Congress, where academics and practitioners of European law, including the lawyers and judges of the European institutions, gather to discuss current issues of interest in European Union law. The association for European law of the host country also holds the presidency of FIDE for two consecutive years, during the year prior to and the year of the Congress.
The achievements of FIDE confirm the belief of Walter Hallstein, who was elected President of the European Commission in 1958, of the central importance of legislation and the interpretation and application of law for the integration of Europe.
FIDE has, in cooperation foremost with the Court of Justice of the European Union but also with the legal services of the European Commission and other EU institutions, supported the development of European Union law, its constructive critical study and dialogue between the national courts and the Court of Justice of the European Union. FIDE has also contributed to the development of the case law of the Court, dating back to the 1963 Van Gend en Loos decision that established the doctrine of the direct effect of European Community (Union) law and served as the topic of lively debate at the second FIDE Congress held in the Hague that same year.
Ten years later in 1973, Luxembourgish legal scholar, then FIDE President and Judge of the Court of Justice of the European Communities, Professor Pierre Pescatore, summed up the idea of the European Communities as a new and extraordinary phenomenon in international relations in which different states have agreed to base their relations on the rule of law and have placed their trust in judges.
The European Communities, which have become the European Union, and European law have changed significantly since the early days of FIDE. While respecting its foundations, we are striving towards a more responsible, secure, green and dynamic Europe. The Internet age offers us a multitude of opportunities but also new challenges such as the regulation of personal data protection within the Europe Union. These developments have also left their mark on FIDE.
Today, the membership of FIDE represents the participating states of an enlarged European Union. FIDE unites the associations of European law of almost all the member states, but also Croatia that will soon join the European Union and the associations dedicated to the study of European law of the EFTA (European Free Trade Association) states of Switzerland and Norway. In addition, a number of states beyond the EU and EFTA have demonstrated great interest in FIDE as well. The European Law Association of Lithuania will hopefully be accepted as a member of FIDE at the meeting of the Comité Directeur in Tallinn.
With the XXV FIDE Congress in Estonia, FIDE congresses have found their way to Central and Eastern Europe, FIDE has a female president and FIDE has begun to address European law more broadly, with interest in the interaction between the Charter of Fundamental Rights of the EU, the European Convention on Human Rights and the constitutions of the member states. The future of FIDE has been secured, as students and young lawyers are increasingly more aware of and involved in its activities.
The Statutes of FIDE and an overview of its activities are available on the Congress homepage, and preparations are being made for a permanent website. The Spanish Association for the Study of European Law has lead the effort to digitalize the reports of all previous FIDE Congresses to allow for their access electronically.
Estonia and the Role of its Association for European Law in FIDE
The Association for European Law of the Estonian Lawyers Association (hereinafter Estonian Association for European Law) has the exceptional opportunity, honour and challenge of organising the most important and distinguished event for FIDE, the XXV FIDE Congress from 30 May to 2 June in Tallinn, the capital of Estonia. This maritime Hansa city was one of the European Capitals of Culture in 2011 and its unique Old Town has been recognised as a UNESCO World Heritage Site.
The Patron of the XXV FIDE Congress in Tallinn 2012, President of the Republic of Estonia Toomas Hendrik Ilves, has reminded us that the capital of Estonia also served as a steadfast bulwark for European law many centuries ago, when the Lübeck Law was the law of the land. Today, thanks to the XXV FIDE Congress, Tallinn has become the Capital of European Law for 2012.
This year also marks the 20th anniversary of the adoption of the Constitution of the restored Republic of Estonia. European Union law, which was included in the constitutional legal order of Estonia through the adoption by referendum of the Constitution of the Republic of Estonia Amendment Act in 2003, can be viewed as a bridge between the celebration of the 50th anniversary of FIDE and the 20th anniversary of the Constitution of Estonia.
The XXV FIDE Congress in Tallinn will also provide Estonia with valuable experience in preparation for the first Estonian Presidency of the Council of the European Union in the first half of 2018.
Organisation of the XXV FIDE Congress in Estonia will also provide the population with a unique opportunity to increase their knowledge of their rights in the European Union. In a complex world with complex law, we must never lose sight of the fact that the people are of greatest importance.
As an innovation in the history of FIDE, a Youth Congress will be held on the day before the opening of the Congress in Tallinn, which will provide students with the opportunity to discuss and debate topics of current interest in European Law with some of the most renown experts in the field. This idea was generated in the course of preparations for the Congress.
When the meeting of the leadership of FIDE, the Comité Directeur, was held for the first time in Estonia on 27 May 2011, a miniconference was organised by the Estonian European Law Students Association (ELSA) and the Estonian Association for European Law just before the meeting, to benefit from lecturers who had arrived in Estonia for the occasion. This proved to be very popular and inspired an interest in organising yet another meeting of young lawyers before the XXV FIDE Congress Tallinn 2012.
The organiser of the Tallinn Congress, the Estonian Association for European Law, was founded on 13 November 2004, soon after Estonia had acceded to the European Union on 1 May of that year. Already in 2004, the Estonian Association for European Law joined FIDE, which at the time was headed by President Nial Fennely and Secretary General Patrick McCann from Ireland.
Yet ties between Estonian lawyers and FIDE date back much further to the year 2000, when the Finnish hosts of the FIDE Congress invited us to participate and got us “hooked” on FIDE. Since that time, a delegation of jurists from Estonia has regularly participated in the FIDE Congresses, and since 2004, Estonian lawyers have contributed to the FIDE Congress reports.
The XXV FIDE Congress Tallinn 2012 and its Reports
The FIDE Congress format and working method are rather unique among international conferences. The Congress addresses three main topics, and for each topic a general rapporteur is selected by the host FIDE member organisation. The general rapporteur drafts a questionnaire, which the rapporteurs from the EU institutions and FIDE member organisations are to respond to based on their perspective. Each general rapporteur compiles a general report based on all the reports received, which is discussed over two days in the FIDE Congress working groups moderated by leading experts in the field. The summaries of these discussions are presented at a plenary session on the closing day of the Congress. In addition to the three main topics, speeches are also held regarding other pertinent issues in EU law during the plenary sessions.
The main topics of the XXV FIDE Congress Tallinn 2012 are:
1. The Protection of Fundamental Rights Post-Lisbon: The Interaction between the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and National Constitutions;
2. The Interface between European Union Energy, Environmental and Competition Law;
3. The Area of Freedom, Security and Justice, Including Information Society Issues.
All three topics are currently relevant both in Estonia and in Europe as a whole, and allow for an in-depth discussion on the protection of fundamental rights.
Flexibility has been necessary in the selection of topics for the opening and closing plenary sessions. In addition to discussing constitutional developments in the EU in the light of the Lisbon Treaty as originally planned, the programme was amended to accommodate new developments in European Union law such as the eurozone crisis and enlargement of the European Union to include Croatia.
The Patron of the Congress, President of the Republic of Estonia Toomas Hendrik Ilves, will give the welcome speech of the XXV FIDE Congress Tallinn 2012, and opening speeches will be made by Kristen Michal, Minister of Justice of Estonia, and Viviane Reding, EU Commissioner for Justice, Citizenship and Fundamental Rights. Opening remarks will also be made by Professor Vassilios Skouris, President of the Court of Justice of the European Union, Judge Françoise Tulkens, Vice-President of the European Court of Human Rights and Mr. Märt Rask, Chief Justice of the Supreme Court of Estonia.
Professor Joseph Weiler of New York University will examine the constitutional process of the EU from an outside perspective in his speech “How faithful has Europe been to its constitutional values”? He will be followed by Professor Bruno De Witte from the European University Institute who has also titled his speech in the form of a question: “The Lisbon Treaty and the EU’s Constitutional Framework: How Have the Laeken Declaration’s Questions Been Answered?”. The session will be moderated by Mr. Rait Maruste, Chairman of the Constitutional Committee of the Riigikogu (Estonian parliament), former Judge of the European Court of Human Rights and former Chief Justice of the Supreme Court of Estonia.
The highly challenging and responsible task of general rapporteur for the XXV FIDE Congress Tallinn 2012 was assumed by Professor Leonard Besselink of the University of Utrecht, Professor Peter Cameron of the University of Dundee and Professor Valsamis Mitsilegas of Queen Mary, University of London. For the first time, the Executive Committee of FIDE agreed that the questionnaires should not exceed 15 questions to allow the rapporteurs to concentrate on analysis of the information presented. All the questionnaires are available in the three official languages of FIDE, English, French and German.
It is also noteworthy that the rapporteurs from the European institutions each represent a different, key EU institution. The rapporteur for Topic 1, Dr. Clemens Ladenburger, is employed in the Legal Service of the European Commission, and the rapporteur for the second topic, Dr. Marion Simm, works for the Legal Service of the Council of the European Union. When he consented to write the report, Mr. Ezio Perillo, who serves as rapporteur for Topic 3, was Director of the Directorate for Legislative Affairs of the European Parliament. As of 6 October 2011, he is serving as a Judge of the European Union Civil Service Tribunal.
The national rapporteurs were selected by each national FIDE member organisation. Of the 28 FIDE members, the following number of reports were submitted by the publication deadline: Topic 1 – 21 reports, Topic 2 – 21 reports and Topic 3 – 18 reports.
The reports will serve as the basis for the work of the working groups, lead by:
Topic 1 – Jean-Marc Sauvé, Vice-president of the Council of State and President of the French Institute of Administrative Sciences; Jean-Paul Costa, former President of the European Court of Human Rights and President of the René Cassin International Institute of Human Rights; Professor Juliane Kokott, Advocate General of the Court of Justice of the European Union; Professor Allan Rosas, Judge of the Court of Justice of the European Union.
Topic 2 – Professor Koen Lenaerts, Judge of the Court of Justice of the European Union; Miro Prek, Judge of the General Court of the European Union; Professor Giorgio Monti from the European University Institute; Associate Professor Anita Rønne from the University of Copenhagen.
Topic 3 – Professor Dr. Andreas Voßkuhle, President of the German Constitutional Court; Hans G. Nilsson, General Secretariat of the Council of the European Union; Professor Jacques Ziller, University of Pavia; Heili Sepp, Leading State Prosecutor, Office of the Prosecutor General of Estonia.
In deviation from the traditional FIDE Congress format, short pre-registered key-note presentations are planned during the Working Group sessions for Topic 1 by European Ombudsman Nikiforos Diamandouros and Paul Nemitz, Director, Fundamental Rights and Union Citizenship from the Directorate General Justice of the European Commission. Attorney Carri Ginter, Associate Professor of European Law at the University of Tartu, will make a presentation on Topic 2.
The closing plenary session planned for the Congress will be chaired by former Advocate General of the Court of Justice of the European Union, Professor Francis Jacobs of King’s College London, and Professor Lauri Mälksoo from the University of Tartu. It will include speeches by Professor Takis Tridimas of the University of London who will address the eurozone crisis, and by Professor Iris Goldner Lang from the University of Zagreb who will examine institutional and constitutional issues related to future enlargement of the European Union in the light of the accession of Croatia to the EU. Professor Ulla Neergaard from the University of Copenhagen will provide an overview of the preparations for the XXVI FIDE Congress to be held in Copenhagen in 2014.
The social programme is an integral part of any FIDE Congress. Each FIDE Congress host organisation not only represents its legal system within FIDE, but also introduces its country, region, city and culture to other FIDE members and guests. This will be possible in Estonia thanks to the support and cooperation of the City of Tallinn, and through the Welcome Reception hosted by the Estonian Bar Association and the Estonian Lawyers Association at the KUMU Art Museum of Estonia, the Reception hosted by Chief Justice of the Supreme Court of Estonia Märt Rask at the Estonia Concert Hall and the Gala Dinner hosted by Estonian Minister of Foreign Affairs Urmas Paet at the Seaplane Harbour. Participants and guests will also have the opportunity to enjoy the cultural programmes at these events and to partake in tours in Tallinn, to Lahemaa National Park and to the university city of Tartu.
As we pass the baton on to the Danish Association for European Law, the Estonian organising committee can only hope that all delegates and guests will take home fond memories of the Congress. It is our aspiration that the Congress reports will serve as a guide for European law for many years to come, and that they find an honoured place on library shelves throughout the European Union.
Expressions of Gratitude
The XXV FIDE Congress Tallinn 2012 reports have been published by Tartu University Press. Tartu University has a long tradition and has served as the seedbed of most Estonian lawyers. We owe our thanks to the University of Tartu, to its Faculty of Law and foremost to Professor Raul Narits, who early on recognized the value of the FIDE Congress for the university.
We extend our thanks to all the rapporteurs, speakers, moderators, chairs of the working groups and interpreters, as well as to the publishers who will promote and distribute their publications as the Congress. We further thank all the delegates and accompanying persons, the participants and speakers at the Youth Congress, and the organisers and hosts of the social programme.
As in the case of earlier congresses, the substantive and financial contribution of the Court of Justice of the European Union has been key to the success of the FIDE Congress in Tallinn.
We have been greatly assisted by the previous presidents and organisers of FIDE congresses such as Austria and Spain but also by the associations for European law of Finland and Ireland, who all graciously shared their experience with us. Professor Heribert Franz Köck of Austria assisted by Daniela Horn introduced the FIDE Congress to the Estonian public and possible sponsors already in the autumn of 2008. Professor Zacharias Sundström and attorney Matti Kauppi of Finland did so even earlier, while Professors Jürgen Schwarze and Peter-Christian Müller-Graf from Germany and Jenö Czuczai of Hungary were speakers at a congress on European law in Tallinn years ago, where they incited great interest in European law in the local audience.
The organisers also owe deep gratitude to all the FIDE national organisations for their warm and accommodating assistance.
We would also like to recognize the official partners and contributors of the XXV FIDE Congress Tallinn 2012: The Ministry of Justice and the Ministry of Foreign Affairs of Estonia, the Court of Justice of the European Union, the University of Tartu, Enterprise Estonia, the Supreme Court of Estonia, the State Audit Office of Estonia, Government Office, the Office of the Chancellor of Justice, Tallinn University of Technology, Tallinn City Government, the Bar Association of Estonia, MAQS Law Firm, Law Firm Sorainen, Aivar Pilv Law Office, the Chamber of Notaries of Estonia, the European Parliament Information Office in Estonia, the Representation of the European Commission in Estonia, Nordea Bank, Hart Publishing, Wolters Kluwer, Oxford University Press, Sweet & Maxwell, Springer, Cambridge University Press, Nomos Verlagsgesellschaft and the Chamber of Bailiffs and Trustees in Bankruptcy of Estonia.
Additionally, the extended organising committee of the XXV FIDE Congress Tallinn 2012 included representatives from the Office of the President of the Republic of Estonia, the Ministry of Finance of Estonia, the Estonian Convention Bureau, Tallinn Convention Bureau, Tallinn Culture and Heritage Department and Foundation Tallinn 2011.
Technical organisation of the conference has been provided by Frens Conference Services, which has also served as the Congress Secretariat and administered the congress website. The logo for the congress was designed by Reflex OÜ. Translation was coordinated and provided by Siiri Aulik with the assistance of Paloma Krõõt Tupay (German), Rodolphe Laffranque (French) and Jean-Pascal Ollivry (French).
Special acknowledgement is due to our core team of organisers who during the long months of preparation for the Congress never lost faith that the XXV FIDE Congress would be a resounding success, and made every effort to ensure this would happen. They merit particular gratitude and deep respect. They include: mag. iur. Merli Vahar; notary and long-time President of the Estonian Lawyers Association dr. iur. Priidu Pärna; Krista Paal, Director of the Estonian Lawyers Association; Dr. Anneli Albi, Senior Lecturer at the University of Kent; Marika Linntam, Director of the European Union Court Division, Ministry of Foreign Affairs; Kristi Värk, Advisor to the Secretary General and Maria Suurna of the Development and Personnel Division of the Ministry of Justice; Evelin Pärn-Lee, partner at MAQS Law Firm, mag. iur. Siiri Aulik; Alla Kuznetsova, lawyer at Raidla, Lijins and Norcous Law Firm and member of ELSA Estonia; Merike Saarmann from the Office of the Chancellor of Justice; Liisa Ojamaa from the Department of Legislation and Drafts, Tallinn City Office; and Heli Kuik from Frens Conference Services.
The reports of the XXV FIDE Congress Tallinn 2012 consist of three volumes, one for each main topic.
Topic 1 of the XXV FIDE Congress Tallinn 2012 is significantly broader than the protection of fundamental rights in the European Union. It addresses respect for human rights on the European continent as a whole, and thus is of interest to specialists in EU law and human rights, but also to experts in the public law and in particular the constitutional law of the Member States. It would not be possible to examine all fundamental rights and freedoms in this three dimensional study of the interaction between the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union and the constitutions of the Member States. Focus is therefore on access to justice and non-discrimination legislation and its interpretation. Equality is particularly topical, as 2012 has been declared by a decision of the European Parliament and of the Council of the European Union as the European Year of Active Ageing and Solidary Between Generations.
General Rapporteur Professor Leonard F.M. Besselink has adeptly grouped the questions in his questionnaire and enriched them with pertinent examples from the case law, and explanations and commentary from the legal literature. The case law, national legislation and legal doctrine of the Member States, as they relate to Topic 1 of the FIDE Congress, are all examined.
With regard to Topic 2 of the XXV FIDE Congress Tallinn 2012, it is no secret that there truly is “electricity” between competition law and sector-based energy legislation, just as there is tension between competition law and environmental law in general. It is particularly for this reason that the examination of the interface between energy, environmental and competition law, both in theory and in practice, provides such an enticing challenge. These three policy areas have not to our knowledge been addressed from the viewpoint of this triangular relationship at any previous FIDE Congress, although the interrelationships between energy and environmental policy and energy and competition policy have been studied separately.
General Rapporteur Professor Peter D. Cameron has successfully accomplished the ostensibly impossible feat of addressing the interrelationships between these three areas in 14 questions, subdivided according to the most pertinent issues: EU regulation and competition policy, promotion and subsidy of renewable energy, the consequences of climate change, energy security and Article 194 of the Treaty on the Functioning of the European Union, which provides the basis for European Union energy policy. How do we achieve the necessary balance of promoting the use of green, renewable energy without infringing competition and the free market economy, while ensuring solidarity in energy policy between the Member States?
The Stockholm Programme set an ambitious goal for the European Union for the period 2010-2014: “an open and secure Europe serving and protecting citizens”. General Rapporteur Professor Valsamis Mitsilegas for Topic 3 of the XXV FIDE Congress Tallinn 2012 has rightfully noted that the evolution of the European Union into an area of freedom, security and justice has been one of the most far-reaching constitutional developments in EU law. Based on an analysis which focuses on the implementation of EU law in the Member States, primarily in the courts, and the general impact of EU law on the protection of fundamental rights in the Member States, the reports and general report examine the process of harmonisation of criminal law in the European Union, judicial cooperation in criminal matters, the collection and exchange of personal data and also general constitutional developments in this area arising from the Treaty of Lisbon.
The three main topics of the XXV FIDE Congress Tallinn 2012 share points in common, and they are all to a greater or lessor extent related to the protection of human rights. One example of a link between Topics 1 and 3 is the Judgment of the European Court of Human Rights of 14 February 2012 in the case of Romet v. the Netherlands in which the Court for the first time addressed the issue of identity theft, with reference to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
Professor Julia Laffranque
President of FIDE
Judge of the European Court of Human Rights