JUDGMENT

On Behalf of the Republic of Latvia

Riga, 7 April 2009

in Case No. 2008-35-01

The Constitutional Court of the Republic of Latvia, composed of the Chairman of the Court hearing Gunārs Kūtris, Justices Kaspars Balodis, Aija Branta, Juris Jelāgins, Kristīne Krūma and Viktors Skudra,

with the secretary of the hearing of the Court, Līva Rozentāle,

with the participation of the applicant Edgars Jansons, Benno Butulis, the representative of applicant Olafs Brežinskis, Liene Cakare, the assistant to the attorney at law, representing applicant Uldis Vizbulis, and Dmitrijs Skačkovs, attorney at law representing applicant Mārīte Teivāne,

with the participation of Lauris Liepa, the attorney at law representing the institution that has adopted the contested act, the Saeima [Parliament] of the Republic of Latvia,

according to Article 85 of the Satversme [Constitution] of the Republic of Latvia, Article 16 1^st indent, Article 17 (1), 11^th indent and Article 19² of the Constitutional Court Law,

on 3, 4 and 10 March 2009, in Riga, in a public hearing, examined the case

"On Compliance of the Law “On the Treaty of Lisbon Amending the Treaty of European Union and the Treaty Establishing the European Community” with Article 101 of the Satversme of the Republic of Latvia”.

The Facts

1. On 15 December 2001, at the meeting of the European Council in Laeken, the “Laeken Declaration on the Future of the European Union" (hereinafter – the Laeken Declaration) was adopted. It committed the European Union (hereinafter – the EU) to becoming more democratic, transparent and effective. The Laeken Declaration provided for the drafting of a Constitution for European citizens, as well as a Convention to prepare EU reforms. The Convention was formed and representatives of Latvia participated in its proceedings.

The Treaty establishing a Constitution for Europe (hereinafter – TC) was adopted on 18 June 2004 in the Intergovernmental Conference where all 25 Member States of the EU, including Latvia, participated. The Conference decided to replace the treaties in force by the TC. Representatives from all of the Member States signed the TC in Rome, on 29 October 2004.

On 2 June 2005, the Saeima of the Republic of Latvia (hereinafter – the Saeima) adopted the Law “On the Treaty Establishing a Constitution for Europe” which adopted and confirmed the TC signed in Rome on 29 October 2004, as well as the Final Act and the declarations annexed thereto.

The TC did not come into force because it was rejected in the referendum in France on 29 May 2005 and in the Netherlands on 1 June 2005.

According to the results of the Intergovernmental Conference of 18 June 2004 (the TC draft) and the mandate confirmed by the European Council on 21 and 22 June 2007, the Treaty of Lisbon amending the Treaty on the European Union and the Treaty establishing the European Community (hereinafter – TL) was adopted (see: Consolidated texts of the Treaty on the European Union and the Treaty on the Functioning of the European Union. Official Journal C 115, 9 May 2008). Representatives from Member States and their governments adopted the TL on 18 – 19 October 2007 in an informal meeting of the European Council in Lisbon and decided that it would be signed on 13 December 2007.

The President, Prime Minister and the Minister of Foreign Affairs, together with the leaders of other EU Member States, signed the TL in Lisbon, Portugal on 13 December 2007.

On 3 April 2008, the Saeima adopted the law declaring “The Law on the Treaty Establishing a Constitution for Europe” void.

On 8 May 2008, the Saeima adopted the law entitled "On the Treaty of Lisbon Amending the Treaty on the European Union and the Treaty Establishing the European Community” (hereinafter – the Contested Act). It was proclaimed on 28 May 2008. The Contested Act came into force on the day after the proclamation, namely, 29 May 2008.

2. The applicants, Edgars Jansons, Raimonds Seņko, Aivars Graikstis, Uldis Vizbulis, Mārīte Teivāne, Kristaps Bergmanis, Raimonds Rutenbergs, Arvīds Kalme, Maija Smila, Māra Pastore, Olafs Brežinskis, Rihards Cicens and Valērija Mihailovska (hereinafter – the Applicants) - claim that the Contested Act breaches their fundamental rights guaranteed by Article 101 of the Satversme of the Republic of Latvia (hereinafter – the Satversme), namely, right to participate in the conduct of State and municipal affairs and local government as provided by law, since the TL could have been ratified and confirmed only by a referendum.

Taking into consideration the principle of constitutional integrity it was noted that the Contested Act breaches Article 2 and Article 77, or alternatively Article 68 (4) of the Satversme. This breach has lead to the violation of the fundamental rights established in Article 101 of the Satversme. Moreover, there are other legal grounds that place an obligation upon the Saeima to submit the TL to a referendum.

The applicant claimed that the principle of sovereignty enshrined in Article 2 of the Satversme was breached. The Applicants, by reference to Article 50 of the Consolidated Treaty on the European Union (hereinafter – CTEU), claimed that Latvia, in the case of necessity, would no longer be able to freely decide on withdrawal from the EU. Namely, the exit would depend on the will of other subjects, which Latvia will no longer be able to control. The qualified majority of votes provided in Article 238 of the Consolidated Treaty on the Functioning of the European Union (hereinafter – TFEU) would lead to a situation when only some of the 27 EU Member States will be able to block the withdrawal. Therefore, when the TL becomes effective, Article 2 of the Satversme would become declaratory.

Since the Contested Act has substantively amended Article 2 of the Satversme, the failure to apply Article 77 of the Satversme is unreasonable. Article 77 of the Satversme refers to a constitution in its material sense. The words “to amend” included therein should not be understood only in their narrow grammatical sense. Article 2 of the Satversme can be amended without introducing any amendments into its text. Since the Saeima has transferred national sovereignty to another subject without holding a referendum, Article 2 of the Satversme shall be recognized as amended in breach of Article 77 of the Satversme.

The Applicants hold that, by adopting the Contested Act, Article 68 (4) of the Satversme has been breached. The words "substantial changes" in this Article is a term which can be legally tested; it relates to situations when membership in the EU implies, firstly, trends toward the weakening of democracy, secondly, the EU becoming a State like entity, and, thirdly, the adoption of a new treaty - a constitution for the EU.

Trends toward the diluting of democracy are apparent from the fact that the TL deviates from the consensus principle presently applied in voting and decision-making procedures by the Council. Consequently, other Member States would be authorized to adopt decisions binding on Latvia by ignoring any objections Latvia has and disregarding her interests. Likewise, each Member State will not have a nominated Commissioner, meaning that Latvian small States’ equality within the EU will not be ensured in the future.

When assessing whether the EU is becoming a State like entity, the Applicants claim that after the adoption of the TL, there would be no competence falling outside of the EU. From Article 26 of the CTEU, one can clearly derive that the EU will acquire the competencies attributable to a State like entity, such as a common foreign and security policy. Moreover, Article 2 (1) of the TFEU allows the EU to delegate certain functions to Member States. This, however, is impossible because the EU cannot delegate what does not pertain to it. Accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – ECHR) should also be noted because no such rights have been provided for a supranational organization.

The Applicants emphasize that the TL includes about 90 percent of the norms included in the TC. Consequently, there is a reason to hold that, by means of the TL, a completely different EU is being formed, and this Treaty should be regarded as its constitution. Moreover, the TL confers to the EU additional competencies and powers in its relations with Member States.

When answering the questions of the Constitutional Court, the Applicants submit that the TL would become binding on Latvia if a popular vote would have been held according to the procedure provided in Article 79 (1) of the Satversme and that the result thereof would be positive. However, if the arguments presented in the constitutional claim were rejected, a referendum still should be held according to Article 79 (2) of the Satversme.

The Applicants hold that the Saeima’s submission, included in its memorial that Article 68 (4) of the Satversme provides for an optional referendum is ungrounded. If the Saeima had established that the TL provides for substantial changes in the conditions for Latvian membership in the EU, the Saeima would have an obligation, rather than a right, to submit the TL to a popular vote. Such an obligation can be derived from Article 18 of the Satversme.

The phrase “substantial changes in the membership conditions of Latvia in the European Union” in Article 68 (4) of the Satversme has legal consequences. Therefore, the Constitutional Court must examine this phrase even if half of the MPs have not established that there have been substantial changes.

In the clarification to the original Application, it was submitted that Article 101 (1) of the Satversme includes not only the right to participate in a referendum whenever one is held, but also the right to claim the organisation of a referendum whenever it should be held according to the Satversme or other laws.

The TL infringes Article 2 of the Satversme in terms of its letter and spirit, which requires, according to the Satversme, a double approval. Namely, since the TL materially amends Article 2 of the Satversme, the Saeima had to adopt a ratification law and submit this law to a popular vote. Since the law has not been submitted to a popular vote, it has not become effective.

It should also be taken into consideration that Article 77 of the Satversme should be applied in cases when it is necessary to assess the Latvian EU membership, as well as the substantial conditions of membership. In turn, several conditions for the transfer of competences derive from the principle of the sovereignty of the people and the democratic State, i.e. the transfer of competencies shall not limit the rights of a Member State to exit the EU; the delegation can only concern a part of the several competencies; the delegation can only concern specified competencies; any delegation of competencies shall be permitted only if it is done with the purpose of strengthening democracy.

Currently, the right to withdraw from the EU is derived from the contents and object of its fundamental documents, as well as the Vienna Convention on the Law of Treaties (hereinafter - the Vienna Convention). However, the TL, unlike the existing “non-regulation”, considerably limits or even excludes any possibility for a Member State to withdraw from the EU. Therefore, the right to the "the final say" means that the people have the right to decide on immediate withdrawal from the EU instead of suffering within the EU for two more years.

Similarly, the objective of strengthening democracy has not been reached. On the contrary, the democracy within the EU will become weaker. A democratic deficit is increased with the amendment procedure for founding European treaties, which allows bypass national Parliaments. Therefore, national Parliaments lose effective control over the “gradual transfer of certain competencies” to the EU. In the European Council, Latvia is represented by the State President who is not directly democratically legitimated, meaning that his activities may not serve as the basis for amending European founding treaties. The Council will be authorized to apply the principle of the qualified majority of votes when deciding on more than 40 areas. This would increase the power of big states but weaken the influence of small ones. The rights of one million “European people” to exercise legal initiative would likewise not strengthen democracy because there are no generic “European” people.

However, even if the Constitutional Court concludes that the Contested Act is valid law, it is still necessary to hold a referendum, as provided for at least in Article 68 (4) of the Satversme.

The Applicant E. Jansons, during the Court hearing, submitted the following additional arguments. He noted that Article 1 and Article 2 of the Satversme have been recognized as the core of the Satversme since 1918. Consequently, other norms of the Satversme, such as accession to another State, shall be interpreted in the light of these articles. Although the Satversme has been amended over the years, its core elements remain unchanged. The amendments to Article 68 of the Satversme should also be interpreted in light of the core elements of the Satversme because these norms were established for cases such as this one, namely, the ratification of the TL. Therefore, Article 68 (4) of the Satversme should not be interpreted as an exclusive prerogative of the Saeima. It is also necessary to take into consideration the fact that the public has not been appropriately informed about the contents of the TL.

Substantial changes in the TL entail the irreversible export of the competencies of Latvia to the EU. These areas are not only cultural values but they also strategically important areas related to the State’s right to self-determination. These areas include foreign policy, security policy, and the common judicial system.

B. Butulis, the representative of O. Beržinskis noted that the TL should not be considered separately from other EU documents; namely, he stated that the accession of Latvia to the EU and the TL should be assessed in conjunction with one another. Two main theories of sovereignty existed when Latvia joined the EU. One of the theories was that by acceding to the EU, the sovereignty of the people is infringed, whilst the other theory did not recognize any such infringement. For Latvia to be able to accede to the EU, it was declared, due to certain political considerations, that the sovereignty of the people is not being infringed. Therefore, when adopting the Contested Act, it has not been verified whether its adoption would breach Article 2 and Article 77 of the Satversme.

The understanding of sovereignty has changed over time; however, the notion of sovereignty can be regarded as a legal term with vague, though definable, confines. In the context of the abovementioned notion, the delegation of national competencies to a supranational organization is of the greatest importance. Such delegation should be carried out without infringing national sovereignty.

As for national sovereignty, the rights of the people to withdraw from the EU or any other supranational organization, i.e. the rights to retrieve the competencies once delegated, are important. It is also necessary to take into consideration the extent and limits of the competencies that are delegated.

When assessing the delegation of competencies to the EU, it is necessary to take into consideration Article 68 (2) of the Satversme, which provides that the only purpose for delegating State’s competencies to a supranational organization is to strengthen democracy. The TL would only increase the democratic deficit, whilst the influence of Latvia within the Council would decrease. Therefore, there would be more and more questions decided without Latvia’s participation, which means that decisions which are not directly legitimated would be made.

The assistant to attorney L. Cakare, the representative of U. Vizbulis, has noted that the TL causes two fundamental breaches of the rule of law; namely, the loss of sovereignty and the decreasing human rights protection. The Saeima, when adopting a law of such importance, has acted contrary to the norms of the Satversme and jeopardized the sovereignty of the people. The complex procedure established in Article 50 of the CTEU, according to which a Member State can secede from the EU, has deprived citizens from the right to decide the status of their State. These rights are conferred to other persons and institutions, which considerably undermines the sovereignty of the people. The sovereign power of the citizens of the Republic of Latvia is transferred from one legal person to another one who is not related to the Republic of Latvia. This is not provided by the provisions on democracy and sovereignty included in the Satversme.

By modifying the notion of the sovereignty of the people, Article 2 of the Satversme has been amended. Moreover, Article 77 of the Satversme has also material meaning. Although without amending the wording of Article 2 of the Satversme, this Article is being effectively amended by transferring the sovereignty of the people to other legal persons.

The delegation of competencies to an international organization without holding referendum is possible only if the sovereignty of the people is not forfeited. The Saeima, however, has not assessed the importance of the norms of the TL. Significant amendments introduced by the TL manifest tendency to dilute democracy. This argument is supported by mentioning planned changes in the Council’s voting procedure that will become effective in 2014 and the development of the EU into a State like entity. The weakening of democracy also manifests itself through the fact that the Council is not an institution elected by the people of Europe.

The EU, in fact, already has a sui generis status which is being constantly upgraded. Thus, these improvements and changes move the EU closer to a State like entity because the EU, according to the TL, takes over domains where the competencies of the EU and that of its Member States compete. Moreover, the EU gains the right to retain competence in the areas overtaken. It can be concluded, then, that after the TL becomes effective, the EU would be in charge of all the competencies of the Member States.

Attorney D. Skačkovs, representative of M. Teivāne, noted that according to Article 294 of the TFEU, a representative directly elected by the people would in fact be denied the possibility of playing a role in the European Parliament. Also, “relations with the Council and the European Parliament resemble the relations between the State Council and the State Duma of tsarist Russia rather than a modern democratic State—and this is unique nowadays”. Since all people have a right to freely decide their destiny and determine its political status without any external influence, the European Council is not empowered to deny the people of Latvia the right to freely withdraw from the EU.

When providing answers to the questions of the Constitutional Court and a representative of the Saeima, the Applicants noted that the procedure, according to which a Member State can withdraw from the EU, is unclear because Article 50 of the CTEU does not clearly establish the way that the Republic of Latvia, in case of withdrawal from the EU, would regain the competencies that it delegated to the EU. Moreover, in accordance with Article 50 (2) of the CTEU, the Republic of Latvia should not participate in the decision-making process regarding the withdrawal procedure.

Over time, the EU is becoming a State like entity, i.e. it is being federalized. This could lead to the weakening of democracy in the EU. The new exclusive competencies transferred that cause the greatest concern regarding breach of Article 2 of the Satversme are security and foreign affairs, a common judicial system and a common trade policy. After the TL becomes effective, Member States would lose their right to express national foreign policy position. Likewise, the three EU pillars would be abolished, and security would become an ordinary competence of the EU.

The withdrawal procedure for the Republic of Latvia from the EU is established in Article 68 (3) of the Satversme; and, withdrawal should be implemented by a referendum. However, according to the TL, it would be necessary to agree on the terms of withdrawal or wait for two years. Moreover, the State herself would not be able to participate in negotiations regarding the withdrawal.

3. The Saeima, the institution that passed the Contested Act, has noted in its memorial that the Contested Act does not breach Article 101 of the Satversme.

Article 101 of the Satversme does not provide for a situation in which a referendum should be held or the persons that would be entitled to participate in the referendum. This is established by other norms of the Satversme, but Article 80 of the Satversme provides for the rights of citizens to participate in a referendum. Article 73 of the Satversme establishes situations in which a referendum should not be held, while Article 68 of the Satversme provides for cases when and under what circumstances referendum shall be held on issues regarding membership in the EU. Therefore, it cannot be claimed that Article 101 of the Satversme provides for an argument regarding the cases when an issue should be submitted to a referendum. An answer to the question of whether to hold a referendum should be derived from an interpretation of Article 68 (4) of the Satversme and from the presence or absence of the respective preconditions.

In order to conclude if the Contested Act complies with Article 101 (1) of the Satversme, it is necessary to establish whether this Law has been adopted without breaching the requirements of Article 68 (4) of the Satversme. It can be clearly concluded from the textual construction of the abovementioned norm that if at least half of the members of the Saeima (MPs) have not required a referendum on amendments of conditions of EU membership, a referendum shall not be held.

The Saeima emphasizes that if the constitutional legislator intended to provide for a mandatory referendum when substantial changes are being introduced into the conditions of EU membership by means of any treaty, then Article 68 (4) of the Satversme would have had such wording without conditioning a referendum on the express will (signatures) of 50 MPs. The Saeima also submits that Article 68 (4) of the Satversme confers the Saeima the right to initiate a referendum not as a State organ but rather to certain number of MPs as representatives of the people. Therefore, the MPs are entitled to exercise these rights at their own discretion if they consider it necessary and adequate to the interests of the Latvian people. Thus, it is the competence of 50 MPs to decide whether certain factual and legal circumstances should be recognized as substantial changes in Latvia’s membership in the EU, which would allow the Saeima to decide on holding a referendum.

Moreover, the Saeima notes that a change in certain conditions of Latvia’s membership in the EU cannot be regarded as “substantial changes.” The broadening of EU competence on a certain issue does not imply “substantial changes in the membership conditions”. This issue shall be decided based on considerations of political usefulness. A referendum provided for in Article 68 (4) of the Satversme should be held only if a draft decision sighed by 50 MPs is submitted. As long as there is no such draft decision, the Saeima, as a State authority, is not entitled to adopt a decision by a majority of votes regarding organization of a referendum on substantial changes in the EU membership conditions.

In its reply, the Saeima states that Latvian membership in the EU, as well as any changes in the conditions for membership or in the EU’s institutional structure or competence are implemented on the basis of international legal instruments, such as international treaties, which are adopted by EU Member States. Therefore, the respective issue shall be examined in the context of Article 68 of the Satversme.

After the amendments of 8 May 2003, Article 68 of the Satversme provides two procedures by which the Saeima should ratify international agreements. According to Article 68 (1) of the Satversme, as well as taking into account Article 23 and Article 24 of the Satversme, international agreements, which settle matters that should be decided through the legislative process, should be ratified by the Saeima in sitting, where at least half of the MPs are present with the absolute majority of MPs voting in favour. In turn, when the competencies of national institutions are partially delegated to international institutions by way of international agreements which settle matters that may be decided by the legislative process with the purpose of strengthening democracy, then Article 68 (2) of the Satversme should be applied. Namely, such international agreements shall be ratified in sittings in which at least two-thirds of the MPs participate, and two-thirds of MPs present are in favour of ratification.

In addition to both of the procedures included in Article 68 of the Satversme, there might be cases when the procedure established in Article 77 of the Satversme should be applied, i.e., in cases when mandatory amendments to the Articles 1, 2, 3, 4, 6 or 77 of the Satversme would be required because of ratification of international agreements. According to Article 77 of the Satversme, such amendments would become effective only if they were confirmed by a referendum and at least half of the voters of Latvia have voted in favour.

Any international treaty, which settles matters that may be decided through the legislative process, is vetted by the Saeima before it is ratified to establish the procedure according to which it should be ratified. This should ensure that Latvia accepts international obligations provided by the treaty in accordance with the procedure established in the Satversme. The leading public authority in the field of foreign affairs is the Ministry of Foreign Affairs, and according to the law it must provide an opinion on the lawfulness of international treaties so that the Cabinet of Ministers can decide whether to submit them to the Saeima.

In addition to this, the Saeima itself, after having received a draft law regarding ratification of an international treaty, examines the procedure for ratification. Likewise, the Saeima assesses the usefulness and conformity of a concluded international treaty with the interests of the State of Latvia. Such rights of the Saeima are enshrined in Article 68 of the Satversme.

The Saeima emphasizes that Article 68 (1) and 68 (2), as well as Article 77 of the Satversme provide for automatic procedures. Namely, if there are preconditions for applying certain procedures provided for in these norms, then the issues must be decided exclusively according to the procedures established in these articles of the Satversme. Likewise, in all these cases, the procedure according to which each particular issue must be decided upon should be verified. In turn Article 68 (4) of the Satversme provides for an optional procedure. The application of this procedure depends on whether the subject provided for in Article 68 (4) of the Satversme requests its application.

The Saeima would have had an obligation to consider the question of whether the TL provides for “substantial changes in the membership conditions of Latvia in the EU” only in the case that a request to submit the issue to a referendum as provided for in Article 68 (4) of the Satversme would have been received from at least half of the MPs. This is provided by Article 11 (4) of the Law on Referenda and Legislative Initiatives which states: “the Saeima shall propose holding a referendum on substantial changes in the membership conditions of Latvia in the European Union if so requested by at least one-half of the members of the Saeima”. In this case, the Saeima should make certain not only that one-half of its members have requested holding a referendum, but also that the international treaty under consideration indeed provides for “substantial changes” in the terms of Latvia’s membership in the EU.

It is also admitted that, according to the wording of Article 68 (4) of the Satversme, “substantial changes in the membership conditions of Latvia in the EU” is rather a question of political usefulness. However, it cannot be denied that this notion has certain legal content that affects the application of Article 68 (4) of the Satversme.

The Saeima also expresses its doubt as to whether any practical infringement of the rights of the Applicants established in the Satversme has occurred in this case. First of all, the TL, in the context of international law, has not entered into force, and, at present, cannot cause any legal consequences to the Applicants. Secondly, even if the TL was effective, no automatic subjective public rights to participate in a referendum can be derived from Article 68 (4) and from Article 72 of the Satversme. Legal construction of both of these norms is based on the fact that the criterion for initiating the process is based upon a request from one or several officials, without which no subjective public rights emerge. Therefore, the Saeima also requests to establish whether it is useful to continue proceedings in this case.

When assessing submissions by the Applicants, the representative of the Saeima admits that the majority of arguments expressed orally apply to the EU structure and the authority of the European Community created in 1957, rather than to deficiencies of the TL or to hypothetical restrictions of rights derived. In essence, the Applicants contest Latvia’s membership in the European Union.

It is essential that at the time when the Republic of Latvia joined the European Union, the TC was already drafted and submitted to the Member States for discussion. Consequently, assessment of the lawfulness of ratification of the TL is affected by the fact that the Saeima had already ratified the TC, and the lawfulness of ratification law of the TC has not been disputed. In fact, possible infringement of the rights of the Applicants could have been caused by the ratification of the TC in 2005.

When assessing the ratification of the TL, it is wrong to assess solely the adoption of the Contested Act and only in the context of the work done by the legislator without assessing the actions carried out by the Cabinet of Ministers and the Ministries.

The representative of the Saeima indicated that the Applicants substantiate the reduction of sovereignty by the changes introduced in the right to exit from the EU, as well as by substantial changes in the membership conditions in the EU. Today, the understanding of sovereignty has changed considerably. This early understanding is no longer valid. An essential parameter was introduced into the definition of sovereignty by the membership in the EU, as well as by international legal relations prevailing in the contemporary world. Until the Member States preserve the right to terminate this restrictive independence by withdrawing from the EU, they do not lose their sovereignty. Therefore, “sovereignty” today also entails the notion of the right to the “final say”. Article 50 of the CTEU clearly provides that each Member State can decide on withdrawing from the EU in accordance with their constitutional conditions. Taking into consideration legal, political, economic, and social bonds that have been formed between the Republic of Latvia and the EU, the term of two years established in Article 50 of the CTEU is reasonable. The fulfilment of obligations towards the EU and its institutions cannot be, undoubtedly, regarded as a restriction of sovereignty. Therefore, the sovereignty of the people is not restricted but, on the contrary, exercised.

The European Commission does not represent Latvia as a Member State. It implements common EU policies. The Commissioner does not represent the Republic of Latvia. The Commissioner should be neutral in his/her work because s/he is responsible for “a whole range of issues” and does not put forth the identity of the State as his/her priority of activities.

According to the TL, the number of the members of the European Parliament is reduced from 785 to 750. However, Latvia would still have nine representatives as provided by the regulation currently in force.

Saeima rejects the objections on dilution of democracy, and notes that significant novelty introduced by the TL is citizens’ initiative. It provides that one million citizens from EU Member States have the right to initiate the adoption of legislative acts.

When providing answers to the questions posed during the Court hearing, the representative of the Saeima noted that on the basis of TL the Republic of Latvia will not transfer any competence to the EU which would entail the amendment of Article 2 of the Satversme. Therefore, the sovereignty of the State will not be limited. For instance, in the sphere of foreign and security policy, the EU would still have no right to state a position contrary to that of the Republic of Latvia. Likewise, the formation of the European Public Prosecutor’s Office would not affect Article 2 of the Satversme. The functions of public prosecutor will, without any doubt, remain the within the competence of each Member State. After the TL becomes effective, the Constitutional Court would still have the right to judge on issues related to the scope and limits of the sovereignty of the people. However, issues related to the EU Treaties would fall under the jurisdiction of the European Court of Justice.

The obligation of the Saeima is to examine compatibility of each legal norm, prior to its adoption, with Articles 1 and 2 of the Satversme. Compatibility with these Articles is examined not only when the MPs decide on adoption of a draft law but also during drafting, for instance, in the Ministry, the Cabinet of Ministers, or in the respective committee of the Saeima. If, during the drafting of the law, incompatibility with Article 1 and Article 2 of the Satversme is not established, there is no reason to apply Article 77 of the Satversme.

4. The summoned party, the Cabinet of Ministers, holds that Article 101 of the Satversme does not include “the right to a referendum” but that this norm provides only for the right to participate in a referendum. Namely, if a referendum is held in the cases provided for in the Satversme, Article 101 will protect the rights of the citizens of Latvia to participate therein. The purpose of the constitutional legislator, when adopting Article 101 of the Satversme, was not to confer right to Latvian citizens to participate in the conduct of State affairs which are not provided in the Satversme and other laws. Since Article 101 of the Satversme does not provide for the right to request a referendum apart from the procedures established in the Satversme, the Cabinet of Ministers holds that no breach of the fundamental rights established in Article 101 of the Satversme was done to the Applicants.

When assessing whether the TL could infringe the sovereignty of Latvia enshrined in Article 2 of the Satversme and whether the Contested Act complies with Article 2 of the Satversme, the Cabinet of Ministers notes that sovereignty is one of the most essential and complex fundamental constitutional concepts. By referring to Kārlis Dišlers, the Cabinet submits that the notion of sovereignty includes independence of the State in relation to other States and the independence of the State from any other State. The people are the ultimate source of power, and the meaning of the sovereignty of the people is the same as for the sovereignty of the State. Therefore, the concept of sovereignty places emphasis on the fact that those people who have formed their State are politically and legally independent from other States.

The sovereignty of the people, in the traditional sense, means exercising exclusive rights in governing the State. Today, however, one should bear in mind that all States are politically and economically "inter-dependent". Therefore, the scope of the concept of sovereignty enshrined in Article 2 of the Satversme has changed since its adoption in 1922. International treaties and evolving interdependence limits the sovereign rights of all States. In these cases, one can speak about the transfer of competencies to international organizations. Thus, the understanding of sovereignty as an absolute and unlimited power has changed. Today, absolute sovereignty of a State would also mean isolation of the State.

By reference to the materials and reports of the working group in charge of drafting the amendments to the Constitution, the Cabinet concludes that, when Latvia joined the EU, the sovereignty of the State was not infringed. Accession to the EU does modify the concept of sovereignty included in Article 2 of the Satversme. However, this in no case means the loss of sovereignty.

The argument made in the constitutional complaint that the TL limits the rights of the Member States to secede from the EU is not substantiated. Before the TL becomes effective, the exit procedure has to be assessed according to Article 56 of the Vienna Convention. This procedure has been explored in case of Greenland. However, Article 50 of the CTEU provides that the Member States are entitled to unilateral withdrawal from the EU. Although these rights cannot be exercised immediately, the Member State willing to withdraw from the EU would not need the consent of other Member States or of EU institutions according to the TL. The TL defines the right to withdraw in the EU law and provides for a detailed procedure for its implementation. The term of two years envisaged in Article 50 of the CTEU is sufficiently short, taking into consideration the total number of EU Member States, the range of competencies of this organization and the multilateral legal relations established among the EU Member States on the one hand side and the Member State willing to withdraw from the EU on the other.

Therefore, the Cabinet of Ministers concludes that the TL does not restrict and deprive Latvia of the right to “final say”. On the contrary, it provides for and strengthens this right. The provisions of Article 50 of the CTEU strengthen the sovereignty of the EU Member States, including Latvia. Therefore, the Applicants’ argument that the TL could infringe the sovereignty of Latvia established in Article 2 of the Satversme is ungrounded. Consequently, the Contested Act does not contradict Article 2 of the Satversme.

When assessing the application of Article 68 of the Satversme in this case, the Cabinet of Ministers agrees with the opinion of the Saeima that from the wording of Article 68 (4) of the Satversme it can be clearly derived that if at least one-half of the MPs have not requested a referendum on amendments in the terms of Latvia's membership in the EU, no referendum should be held. Therefore, the abovementioned norm provides for a “non-mandatory” referendum. Namely, the norm leaves the decision at discretion of the MPs. They have exclusive powers to vet whether changes in the conditions of Latvia’s EU membership should be regarded as “substantial”. Only if at least 50 MPs hold that changes are substantial and require holding a referendum, such a referendum should be held. No other person is vested with such rights by Article 68 (4) of the Satversme.

The Cabinet of Ministers emphasises that the amendments to the Satversme which introduced the present wording of Article 68 of the Satversme have been adopted in order to ensure that a referendum would not be held in case of any changes in the founding treaties but only in cases of the most important issues of European integration. Any amendments to the EU’s founding treaties are important both legally and politically; however, not all amendments to these founding treaties can be qualified as “substantial” in the meaning of Article 68 (4) of the Satversme. “Substantial” changes to EU founding treaties are those that would significantly alter the EU constitutional structure and place doubt on whether the Latvian people would support Latvia's membership in the EU according to the new form of integration.

The TL attaches greater role to the European Parliament and to national Parliaments, makes the decision-making process more effective in the Council, extends the use of the qualified majority procedure and provides for changes in the institutional architecture of the EU. Therefore, the objective of the TL is not to create the EU whose constitutional setup or form of integration would be based on different principles. The main objective of the TL is to ensure the successful functioning of the enlarged EU, as well as the further integration of the EU Member States, taking into consideration the different level of mutual integration and economic development of the EU Member States.

The Cabinet of Ministers admits that the text of the TL, though it is not identical to the text of the TC, resembles it. Although the TL is important for Latvia, it shall not be qualified as substantial for the purpose of holding a referendum, according to Article 68 (4) of the Satversme.

The argument included in the Application that the TL implies “a trend of diluting democracy” is ungrounded. On the contrary, one of the objectives of the TL is to reduce the "democratic deficit" in the European Union. The Cabinet of Ministers notes that in the EU the notion of the "democratic deficit" means the "executive dominance”. In turn the TL provides for equal role of the European Parliament and the Council in decision-making in about 40 new spheres. Likewise, after the TL becomes effective, national Parliaments, including the Saeima, would get involved in the EU decision-making process already at the early drafting stage. Moreover, Article 11 (4) of the CTEU should be particularly emphasized in this respect.

The argument of the Applicants that decisions in the Council are mainly being adopted according to the principle of consensus is also ungrounded. The founding treaties of the EU define situations when the Council needs a simple majority of vote, a qualified majority of votes (QMV) or unanimity in order to adopt a decision.

The Cabinet of Ministers holds that balance should be ensured between the Council’s ability to work effectively and the respect of the interests of each particular Member State. In the Union of 27 members it is impossible to adopt decisions only by unanimity. Although the TL broadens the scope of issues in which a QMV will be used even in the situations that the decision is disadvantageous for a Member State, such a restriction of the interests of a certain Member State can be justified with the aim of attaining an efficient decision-making process in the Council, the proper functioning of the EU and the co-operation between the EU Member States.

Democracy in the EU is not weakened by the provision of the TL that each Member State shall no longer have a permanent Commissioner nominated by the State. The Protocol attached to the Treaty of Nice provided that the number of Commissioners in the enlarged Union of 27 Members would be less than the number of the Member States.

The argument in the Application that the TL brings the EU closer to a State like entity is ungrounded. By transferring certain competencies to the EU, the Member States do not lose traditional constitutive elements of statehood, i.e. population, territory, government, and the ability to interact internationally with other States. The EU does not represent "European people" in the sociological sense; there is no common language, identity and culture. The composition of the people in the EU is diverse. EU citizenship is not autonomous—it does not substitute for citizenship of the Member States. EU citizens are citizens of the Member States, and the Member States are entitled to establish their own procedures for acquisition of citizenship. Likewise, the EU does not have its own territory, and it does not have the right to change the territories of its Member States. Therefore, the borders of the Member States continue existing de facto and de jure.

The Cabinet of Ministers emphasizes that no comprehensive and exhaustive enumeration of the competencies of the EU and its Member States and the mutual division thereof is provided in the founding treaties of the EU. Nevertheless, this can be derived from EU primary and secondary legislation and the case-law of the European Court of Justice.

In addition, the TL specifically defines the competencies of the EU and establishes the spheres of exclusive EU competence, shared and supporting (complementary) competencies of the EU and its Member States. The TL provides that the EU shall act only within competencies that have been conferred to it by the Treaty. It does not provide for any substantial changes in the allocation of competencies between the EU and its Member States as compared to the present situation. Therefore, the EU is not a State and the TL does not provide for such changes that would result in the EU becoming a State.

The Cabinet of Ministers agrees with what has been noted in the Application, namely that the ECHR does not provide that supranational organizations could become parties to the Convention. Therefore, the accession of the EU to the ECHR would be possible only after certain amendments become effective.

Inese Nikuļceva, the representative of the Cabinet of Ministers, noted during the Court hearing that the right to participate in the conduct of public affairs provided by Article 101 of the Satversme includes only the right to participate in referendums without any unjustified restrictions, rather than the right to request holding a referendum. There are six situations for referenda provided in the Satversme. None of these situations provides that a citizen can request holding a referendum. Therefore, the Cabinet of Ministers holds that the constitutional rights of the Applicants have not been infringed.

When examining Article 2 of the Satversme, it should be kept in mind that the EU membership does not affect the sovereignty of the people and the transfer of competencies to supranational institutions is compatible with sovereignty. This is confirmed by the study of the Working Group for Drafting the Amendments of Article 68 and Article 79 of the Satversme and by the minutes of the meetings of the Working Group filed by the representative of the Saeima.

In Latvia, the notion of sovereignty is to a large extent associated to the right to the “final say", and the TL introduces expressis verbis for such rights in EU law for the first time. Moreover, the so-called theory of Kompetenz Kompetenz, which is accepted in Europe, should also be taken into consideration. Namely, as long as the Member States retain the competence to establish EU competencies, sovereignty is not lost. The TL does not change anything with respect to this issue.

One cannot agree with the arguments of the Applicants that after the TL comes into force the EU would take over all competencies, while Member States would have no competencies at all. Even at present, competencies are divided between the EU and the Member States, and this setup is derived from the primary and secondary EU legal acts and the case-law of the European Court of Justice. The TL provides a list of exclusive competencies, shared competencies and supporting (complimentary) competencies, and it states that the rest of competencies remain with Member States. The TL does not introduce any substantial changes into the division of competencies.

The representative of the Cabinet of Ministers held that since the TL does not amend Article 2 of the Satversme neither as to its wording nor content, no national referendum should have been held as provided in Article 77 of the Satversme.

Article 68 (4) of the Satversme provides for the exclusive rights of the MPs to submit the question on changes in the conditions for Latvia’s membership in the EU to a referendum. It can be seen in the transcripts of the Saeima sittings that the MPs have considered this issue.

The representative of the Cabinet of Ministers drew attention to what has been provided in Article 68 (4) of the Satversme, that the questions regarding substantial changes shall be submitted to a referendum. The constitutional structure of the EU has not changed because the purpose of the TL is to ameliorate and rationalize the work of the enlarged EU rather than to create a new different form of European integration. On 20 September 2003, when a referendum on Latvia’s membership in the EU was held, the EU itself held debate on its constitutional future and citizens could anticipate changes.

The representative of the Cabinet of Ministers emphasized that the Contested Act whereby the TL was ratified has been adopted in accordance with Article 68 (2) of the Satversme. The TL strengthens democracy because one of its purposes is to reduce the so-called democratic deficit in the EU. This is proved by the fact that the role of the European Parliament has increased, national Parliaments are becoming more involved in EU decision-making, and the right to initiate the adoption of EU legislative acts by one million EU citizens is provided. As to the voting procedure in the Council, it does not provide more favourable conditions for either small or large Member States. The opinion that the influence of small Member States will be reduced is likewise ungrounded.

When answering the questions during the Court hearing, the representative of the Cabinet of Ministers indicated that from the transcripts of the Saeima sittings it can be derived that the MPs have been informed of the fact that, after ratifying the TL, Article 68 (4) of the Satversme could be infringed. Since one of the MPs has pointed to this fact, it is clear that all of the MPs have heard and considered this issue - whether or not to submit the issue to a referendum. If the MPs had thought that Article 2 of the Satversme was being amended by passing the Contested Act, they would not have been allowed to adopt this law.

The TL was ratified in a Saeima sitting where at least two-thirds of the MPs participated and the decision was adopted by at least two-thirds of the majority of the MPs present. This means that Contested Act is not the same as other laws which are adopted according to ordinary procedure by simple majority of votes with majority of MPs present. It must be emphasized, however, that for the purposes of Law on Constitutional Court, “this is [still] a law because the Constitutional Court shall examine cases on compliance of laws with the Satversme”.

5. The summoned party, the Ombudsman of the Republic of Latvia, (hereinafter – the Ombudsman) admits that Article 101 of the Satversme provides for very important rights that serve as a guarantee for ensuring the legitimacy of a democratic State regime. These rights, however, are not absolute because Article 101 of the Satversme contains the condition which provides “as provided for by law”. Therefore, the Satversme provides that the way to exercise these rights shall be established by law, and this condition should be interpreted by taking into account the limitations set in other laws.

The Ombudsman emphasizes that the right to participate in a referendum is only one of the rights that stems from Article 101 (1) of the Satversme. Since the procedure for dealing with the issues related to Latvia’s membership in the EU is set by Article 68 of the Satversme, the meaning of this Article in this case should be assessed. Since the Satversme contains a condition that sets the procedure for the Saeima in such situations, the provisions of Article 68 of the Satversme should be applied. The wording of each phrase and provision of the Satversme is well-considered taking into account that articles of the Satversme are sometimes widely interpreted. Article 77 of the Satversme specifies the situations when a referendum must be held even if it is not required by half of the MPs.

Article 50 (2) of the CTEU provides that a Member State seeking to withdraw from the EU should agree with the European Council and conclude an agreement on withdrawal. It clearly derives from what has been stated in the second paragraph of this Article that if a Member State cannot agree to the arrangements of withdrawal, the exit from the EU is automatic after two year period. Therefore, the State does not lose the right to the “final say” and can freely withdraw from the EU. A Member State of the EU has various obligations, so it is understandable that if the Member State intends to withdraw from the EU, the EU will negotiate with relevant State and conclude an agreement setting out the framework of its future relationship with the State and arrangements for the latter’s withdrawal.

Taking the aforesaid analysis into consideration, the Ombudsman holds that the TL does not amend Article 2 of the Satversme and therefore Article 77 of the Satversme should not be applied because the sovereignty of the State is not affected by the procedure of withdrawal.

As to the significance of the changes introduced by the TL, it is necessary to take into account the fact that in this case, it shall be decided by the Saeima. Therefore, it is not useful to analyse what could be regarded as substantial changes because, although general characteristics could be applied to this notion, the opinions of the MPs may differ. It falls solely within the competence of the MPs to decide whether changes are significant and whether a referendum should be held on particular issue.

The opinion of the Applicants that Article 68 (4) of the Satversme should be interpreted in such a way that the MPs should initiate a referendum in the case if the changes in the conditions of Latvia's membership in the EU are substantial is ungrounded. If drafters of Satversme would have wanted to entrust Saeima with such obligation, then this would be stated in Article mentioned. The legislator had no intention to establish an obligation to the Saeima to initiate a referendum in the case if changes in the conditions of Latvia's membership in the EU are substantial. The aforementioned is also confirmed by the fact that Article 68 (3) of the Satversme provides for a situation when the Saeima is obliged to initiate a referendum. This proves that the drafters have intentionally provided only for the right, not the duty of the Saeima to decide whether to initiate a referendum in the case when substantial changes are made to the conditions of Latvia’s membership in the EU.

Līga Lauceniece, the representative of the Ombudsman, has noted that the rights provided in Article 101 of the Satversme serve as a guarantee for ensuring the legitimacy of the democratic regime. It is also necessary to emphasize, however, that these rights are not absolute, namely, the way to exercise the rights established in this Article should be determined by law.

In turn, the procedures for dealing with the issues regarding Latvia’s membership in the EU are provided in Article 68 of the Satversme. This means that the role of this Article in this case should be assessed. Contrary to what has been submitted by the Applicants, Article 68 (4) of the Satversme should be interpreted to provide a right rather than a duty for the Saeima to initiate a referendum if changes to the conditions of Latvia’s membership in the EU are substantial.

When assessing Article 50 of the CTEU, it should be noted that the term of two years for reaching agreement is proportionate, and one cannot think of a situation when the Republic of Latvia "could make an immediate decision to exit from the EU and to do it on the same day".

Taking the aforesaid analysis into account, it can be concluded that the Contested Act complies with the Satversme, and the fundamental rights established in Article 101 of the Satversme are not breached.

6. The summoned person, dr.iur. Aivars Endziņš, a professor at the Department of Public Law at the School of Business Administration, "Turība," noted that sovereignty cannot be restricted or limited otherwise, i.e., “sovereignty either exists or not”. Unlike, for example, the Federal Republic of Germany, the Republic of Latvia has provided that sovereignty exists and it is associated with the right to “final say” that is provided in Article 68 (2) of the Satversme. The TC has not provided for any such regulation regarding withdrawal from the EU, but the TL does provide for it. Hypothetical withdrawal from the EU should not be implemented immediately because it would be necessary to solve many legal issues.

If at least 50 MPs would consider that changes in the conditions of Latvian membership in the EU are substantial, then the issue should be submitted to a referendum.

The procedure for adopting a law, provided in Article 68 (2) of the Satversme, resembles the procedure for adopting the norms of the Satversme. Consequently, these laws are laws of constitutional rank according to their nature, although no hierarchy of laws exists in Latvia.

There are no considerable differences between the TC and the TL, which means that the fundamental rights included in Article 101 of the Satversme are not being infringed by the ratification of the TL.

When answering to the questions during the Court hearing, A. Endziņš noted that Article 68 (4) of the Satversme provides for the right rather than the duty of the MPs to submit an issue regarding substantial changes in the conditions of Latvia’s membership in the EU to a referendum. If the Saeima would, by a law, adopt substantial amendments that would infringe the sovereignty of the State, then such a law could be contested by one-tenth of voters by submitting respective draft law.

It is impossible abstractly to distinguish between substantial amendments mentioned in Article 68 (4) of the Satversme and those of Article 2 of the Satversme. It would, however, be possible to speak of amendment to Article 2 of the Satversme if the sovereignty of the people or an independent State were infringed. The requirement of a request by at least 50 MPs before the matter of substantial amendments can be submitted for a referendum has been established to preclude a referendum motivated by populist considerations. A referendum would also not be permissible regarding, for instance, the adoption of a new EU regulation or directive.

The assessment of the level of integration into the EU that the Republic of Latvia should attain to achieve a stage of substantial changes in the terms of Latvia’s membership depends on the opinion of the MPs and the government. Another issue is whether the representatives of the Republic of Latvia working in EU institutions are able to defend the position that is principally important for the State.

When assessing the decision-making procedure of the EU, A. Endziņš emphasizes that the voting procedure established in the TL should not be regarded as restriction on democracy. The existence of veto rights, in fact, would hamper development because each Member State would try to solve an issue in its own favour, taking into account its own economic and political criteria.

7. The summoned person, Mārtiņš Mits, the Prorector of the Riga Graduate School of Law and a doctoral student at Lund University, informed the Court that in the draft version of Chapter 8 of the Satversme which has been produced already in 1996, the wording of Article 101 of the Satversme was formulated in a manner that would confer rights on each citizen to take part in the government of country. This notion is directly linked with the wording of Article 21 of the Universal Declaration of Human Rights. In turn the drafting commission for Chapter 8 of the Satversme has introduced the notion a “right to take part in the conduct of State and municipal affairs.” This notion is directly related to indent “a” of Article 25 of the International Covenant on Civil and Political Rights. Based on the commentaries of the abovementioned Covenant and the transcripts of the Saeima sittings, M. Mits concludes that participation in a referendum falls within the scope of Article 101 of the Satversme as one of the ways, though not the decisive one, of realizing participation in the conduct of the State affairs.

When assessing whether it is possible to speak of the rights to a referendum, it is necessary to take into account Article 25 of the International Covenant on Civil and Political Rights. The abovementioned norm provides individual with certain rights to participate in the processes that ensure the conduct of public affairs. However, it does not oblige States parties to the Covenant to provide for new possibilities to take part in referendums. In the case under review, Article 101 of the Satversme shall be assessed in conjunction with other articles, namely, Article 68 (4) and Article 2 of the Satversme.

Having employed textual and historical method of interpretation, M.Mits concludes that Article 68 (4) of the Satversme grants MPs the right rather than the duty to submit an issue to a referendum. In the ambit of Article 101 of the Satversme, the right to a referendum would arise if, according to the procedures established in Article 68 (4) of the Satversme, a referendum is requested by 50 MPs. In this case, no such request was submitted and the issue did not go to a referendum. There is no reason to conclude that Article 68 (4) of the Satversme would oblige the MPs to do so.

The structure of Article 68 (4) of the Satversme, however, may cause serious problems when, as a result of political compromises, legitimate consent of the people is not received although it is necessary. It is should be kept in mind that, along with the procedure provided in Article 68 (4) of the Satversme, the procedure established in Article 77 providing for the obligation to submit issues regarding amendments to the notion of sovereignty included in Article 2 to a referendum, also exists.

The amendments introduced in the EU founding treaties by the TL shall be assessed from the point of view of Article 2 of the Satversme rather than from the perspective of Article 68 (4). Taking into account that the term sovereignty is abstract, it can be derived that amendments in the conditions of Latvia's membership in the EU should be sufficiently substantial. For instance, the amendments should be comparable to the competencies transferred to the EU at the moment when the issue of Latvia joining the EU was decided upon.

M. Mits emphasizes that the amendments provided by the TL should be assessed as a whole. For instance, the possible decrease of possibilities for Latvia to directly use its influence on decisions adopted by the EU institutions should be compared to the direct influence increased of the State in the EU. To give an example, this would include the possibility of national Parliaments to apply the so-called “yellow-card” procedure.

The TL introduces institutional changes within the EU that would not considerably influence its former structure. The purpose of the changes is to increase the efficiency of EU institutions. The TL does not reach the level at which it would be possible to speak of transferring new competencies to the EU that would lead to a restriction in sovereignty for purposes of Article 2 of the Satversme. Consequently, the right to a referendum does not derive neither from Article 2 of the Satversme in conjunction with Article 101 of the Satversme, nor from Article 68 (4) of the Satversme in conjunction with Article 101 of the Satversme.

M. Mits indicated that that the changes in the conditions of Latvia's membership in the EU introduced by the TL are substantial according to Article 68 (4) of the Satversme. However, since this procedure is deemed a right not a duty of the MPs, the fact that they have not exercised this right does not mean automatically that the Satversme has been breached.

Regarding Article 2 of the Satversme, it is necessary to keep in mind the fact that after joining the EU, the Republic of Latvia has already delegated certain competences to the EU. Therefore, it is important to assess whether, by delegating new competencies, for example, the understanding of the notion of sovereignty included in Article 2 has become more limited. From the legal point of view it is necessary to assess the case of transfer of these competencies in relation with the competencies already transferred. It is possible, however, that there comes a moment when the obligation arises to assess the transferred competencies in their totality.

Issues regarding Latvia’s membership in the EU are regulated by special articles of the Satversme. However, in cases when there is a question of transfer of competencies which infringe the core of sovereignty provided in Article 2 of Satversme, the procedure provided in Article 79 (1) should be applied.

8. The summoned person, Mārtiņš Paparinskis, a doctoral student at Oxford University, in his written submission states that, when assessing whether the Contested Act has infringed the rights of the Applicants, it is necessary to take into consideration the scope of Article 101 of the Satversme. In a narrow sense, this norm is applicable to the rights of the people to participate in ongoing processes rather that their rights to require the establishment of such processes.

In a wider sense, Article 101 should apply to the rights of the people to request the carrying out of certain participatory processes, including the cases when referenda are guaranteed by the Satversme. The words “as provided for by law” establish the scope and content of the rights provided in Article 101, and interpretation of the abovementioned human right would lead to the provisions regulating the participation processes. Although individuals cannot request the establishment of a new procedure for participation, they can request the application of an existing procedure. Based on this interpretation of Article 101 (1), the Applicants would have the right to ask the Constitutional Court to assess whether certain normative acts comply with the rights of participation established in the Satversme.

M. Paparinskis notes that in the constitutional doctrine of Latvia, there are two widely recognized theses related to the nature of sovereignty. The first emphasizes the fundamental and conceptual changes that have taken place in the relations of States with international law since the adoption of the Satversme. Therefore, particular constitutional restrictions could be interpreted in a modern and nuanced way. Another thesis draws attention to the fact that the right to withdraw from the EU is the main (or even the only) criterion for the conclusion regarding the lack of infringement of sovereignty. The validity of these two theses is questioned in the opinion provided by the summoned party as not self-evident.

In relation to the contents of the notion of sovereignty included in Article 2 of the Satversme, M. Paparinskis notes that it is necessary to identify the moment at which the exercise of sovereignty for the creation of international obligations reaches the level requiring a constitutional procedure for its legitimisation within the national legal system.

When analysing the abovementioned questions, one should firstly assess the nature of the respective international organization. The transfer of competencies to an organization unifying democratic and rule of law-governed states should be assessed differently if compared to a transfer of the same competencies to a union of authoritarian states. Secondly, one could also consider the scope of the competencies transferred to an international organization. The transfer of competencies in the fields of economy, security and foreign affairs to similar international organizations could trigger off different effect from the point of view of sovereignty. Thirdly, one could assess the institutional structure of the international organization, as well as its procedures for legitimization of certain institutional practice and competencies.

At the same time, no decisive role can be given to the right to withdraw from any international organization, namely, the right to the “final say", when assessing the contents of Article 2 of the Satversme, particularly because the Latvian constitutional system is based on “open approach” model as regards international law and organizations. Thus, when examining sovereignty, the right to the “initial” rather than the “final say” - the legitimacy, and the objectives, nature, structure, dynamics and values of the organization implementing the competencies, and the possibility of the State and its citizens to influence implementation of those competencies - is more important. When assessing changes to sovereignty from the perspective of democracy, it is necessary to consider the possibilities of the citizens to affect the activities of international institutions, as well as their compliance with rule of law and human rights.

Textual interpretation of Article 68 (4) of the Satversme allows a conclusion that when changes reach the objectively established level of "substantial changes", at least one-half of the MPs have the right to request a referendum. Systematic interpretation confirms the objective and optional character of this request by the Saeima. Consequently, the current formulation “substantial changes in the membership conditions” does not directly require a referendum, providing only a right of at least half of the MPs to request a referendum.

“Substantial changes in the membership conditions of Latvia in the European Union” do not directly specify the criteria that should be taken into consideration when assessing changes introduced in the conditions. The changes of the conditions could lead to either greater or lesser Latvian influence in the legislative process, a greater or lesser influence of Latvian citizens on the work of the EU, greater or lesser protection of human rights, changes to the competencies of the EU in various domains or other changes. When interpreting this norm systematically, one could consider it in conjunction with Article 68 (2) of the Satversme.

The argument of the Applicants that the TL approximates the EU to a State like entity is unsubstantiated. The EU does not require it to be regarded as a State; the fact that States have transferred certain competencies to the EU does not mean that it will become a State. Likewise, the reference to the potential accession of the EU to the ECHR does not mean that the EU will become State. The fact of accession per se is nothing unusual because the European Community already is a party to many international agreements.

When assessing legal regulations that provide for the possibilities of Member States to withdraw from the EU, it is necessary to consider the fact that no clear rights to unilateral withdrawal from the EU have existed before. However, after the TL is enacted, Article 50 of the CTEU would expressis verbis provide such rights.

M. Paparinskis recognises that the TL provides for many changes in the functioning of the TL that tend toward the simplification of complex procedures and institutions formed over time. The amendments are not creating novel or revolutionary procedures that could not have been foreseen at the stage of accession. When considering all of the amendments in their totality, there is no reason to hold that they would alter sovereign rights to the extent that the notion of sovereignty under Article 2 of the Satversme would be affected.

M. Paparinskis also holds that the influence of the TL is considerable enough to regard the TL as substantially changing the conditions of Latvia’s membership in the EU. However, since the legal requirements of Article 68 (4) have not been fulfilled, the Applicants were not granted the right to request a referendum, and their fundamental rights have not been infringed.

The Constitutional Court holds that:

I

9. The present case was declared admissible based on the alleged violation of the right to participate in the conduct of State affairs, as granted by Article 101 of the Satversme. Article 101 (1) of the Satversme provides: “Every citizen of Latvia has the right, as provided for by law, to participate in the conduct of State and municipal affairs, as well as to hold a position in the civil service.”

The Applicants hold that the rights established in Article 101 of the Satversme have been infringed by means of the ratification of the TL because they were denied the right to participate in a referendum regarding the TL, as provided in Article 77 of the Satversme in conjunction with Article 2, or, if otherwise that the Constitutional Court would not recognize a breach of Article 2 and Article 77, Article 68 (4) is claimed to be breached.

In order to establish whether breach of the fundamental rights of the Applicants has occurred, it is necessary to assess whether this case falls under the jurisdiction of the Constitutional Court and what the scope of the Applicants’ claim is.

10. Latvia acceded to the EU on 1 May 2004. The referendum of accession of Latvia to the European Union took place on 30 September 2003. 10,101,467 persons having the right to vote participated therein, 676,700 of whom voted for the accession (see: Decision of 6 October 2003 of the Central Election Commission No. 20 “On the Results of the Referendum on Latvia’s Membership in the European Union”. Latvijas Vēstnesis, 7 October 2003, No. 38). Therefore, Latvia’s the decision of Latvian membership in the European Union was adopted and Latvian membership in the EU was decided by a referendum in accordance with the provisions of Article 68 (3) of the Satversme and the requirements of Article 79 (2) of the Satversme.

10.1 At the time when Latvia acceded to the EU, its functioning was regulated by the Treaty on the European Union (hereinafter – the TEU), the Treaty Establishing the European Community (hereinafter – the TEC), as well as the Treaty Establishing the European Atomic Energy Community (hereinafter - Euratom). The last amendments to these treaties were introduced by the Treaty of Nice that came into force on 1 February 2003. Moreover, at that time, the preparatory work for the TC was already launched.

Government representatives and their deputies were assigned under the Order of 14 February 2002 of the Cabinet of Ministers No. 85 “On Appointment of a Representative of the Latvian Government and Deputy thereof for Participation in the Laeken Convention Created by the European Union Council” and the Order of 24 December 2002 of the Cabinet of Ministers No. 714 “On Appointment of a Representative of the Latvian Government and Deputy thereof for Participation in the Laeken Convention Created by the European Union Council” to participate in the European Convention that elaborated the TC.

According to the statement of 28 December 2002 of the Saeima, four MPs were also involved in the work of the European Convention: two permanent members and two substitutes.

In order to assess the draft of the TC and prepare Latvia's national position for the intergovernmental conference, the Ministry of Foreign Affairs, according to the Regulation of 3 June 2003 of the Cabinet of Ministers No. 286 "Provisional procedure for Coordination of Development, Approval and Representation of Latvia's National Position in European Union Issues", established an inter-institutional working group. Taking into consideration the opinions provided by EU institutions and institutions of other EU Member States, the working group prepared suggestions for Latvia’s national position for the intergovernmental conference.

10.2 The TC was signed on 29 October 2004 in Rome, Italy. On 2 June 2005, the Saeima ratified the TC by adopting the Law “On the Treaty Establishing a Constitution for Europe”. The fundamental purpose of the TC was to create an EU founding treaty that ensures optimal and efficient EU and institutional functioning after new Member States join the Union.

On 3 April 2008, the Saeima adopted the law “On Recognition of the Law “On the Treaty Establishing a Constitution for Europe” as invalid”. This law was adopted, among other things, because on 29 May 2005, the citizens of France and on 1 June 2005 the citizens of the Netherlands rejected the TC in their referenda, and EU Member States agreed to work on new amendments to the Treaties (see: annotation to the Law on Recognition of the Law on the Treaty Establishing a Constitution for Europe as Invalid: http://titania.saeima.lv/LIVS/SaeimaLIVS.nsf/0/367449605F4DFA1DC2257401002B5DAA?OpenDocument).

The TC was ratified by the Saeima and later recognized as invalid in accordance with the procedure established in the second sentence of Article 68 (2) of the Satversme. Namely, both laws were adopted at Saeima’ sittings where at least two-thirds of the MPs were present, the decisions being adopted with the two-thirds majority of votes of the MPs present.

Compliance of the Law on the Treaty Establishing a Constitution for Europe or Law on Recognition of the Law on the Treaty Establishing a Constitution for Europe’ as Invalid with the Satversme has not been contested.

10.3 Representatives from Member States signed the TL at the European Council on 13 December 2007. Opposite to the TC which was adopted as a new and independent treaty that fully replaced former Treaties, the TL was adopted as amendments to the effective TEU and TEC. Consequently, the TL, unlike the TC, is regarded as amendments to existing Treaties rather than a new international treaty in the meaning of Article 40 of the Vienna Convention. According to the Article’s second paragraph each one contracting State shall have the right to take part in the negotiation and conclusion of any agreement for the amendment of the treaty. This means that the TL will create no conceptually new legal subject [see: Dougan M. The Treaty of Lisbon 2007: Winning Minds, Not Hearts (2008) 45 Common Market Law Review 617, pp. 622 – 624].

In this case, compliance of the ratification of the TL with Article 101 (1) of the Satversme has been contested. The case was declared admissible only on this aspect of compliance. Therefore, the arguments of the Applicants regarding the procedure according to which the Republic of Latvia joined the EU, as well as the lawfulness of the Law on the Treaty Establishing a Constitution for Europe, fall outside the scope of the claim and will not be addressed.

At the same time, the Court admits that assessment of the TL or other EU legal acts comparable to the TL in the context of another case can be affected by the fact that, for example, as a result of their application the provisions of the Satversme are breached. Namely, either by applying the norms that are not mentioned in the present Application, or by changing practice of the application of the EU’s founding Treaties in the context of indent "b" of Article 31 (3) of the Vienna Convention, the rights established in the Satversme are being infringed.

In this case, the Court should assess the norms that amend the effective provisions of the EU Treaties, as well as new provisions introduced or those that repeal the effective provisions of those Treaties.

10.4 The Contested Act was adopted according to the procedure established in the second sentence of Article 68 (2) of the Satversme. Namely, the procedure provided for ratification of international treaties when Latvia, with a view to strengthening its democracy, delegates part of the competencies of its institutions to international institutions.

By amendments on 8 May, 2003, Article 68 of the Satversme provided that international treaties providing delegation part of the national competencies to international institutions for strengthening Latvian democracy Saeima can adopt in sittings where at least two-thirds of the MPs are present and a two-thirds majority of the members there present vote in favour. Therefore, acts of constitutional rank can be adopted only in those cases established by the Satversme (see: Judgment of 29 November 2007 by the Constitutional Court in the case No. 2007-10-0102, Para 56.3).

Laws adopted according to the procedure established in the second sentence of Article 68 (2) of the Satversme are adopted by the same subject - Saeima, and they are adopted according to the same procedure applicable in cases when amendments are made to those articles of the Satversme that are not recognized as core of constitutional basis for the Republic of Latvia. The fact that the abovementioned laws are adopted in two instead of three readings, as provided in 3^rd indent of Section 114 (2) of the Saeima Rules of Procedure, follows from the fact that international agreements, due to their character, are adopted in the Saeima without introducing any amendments to the text. The legislator can only ratify or reject an agreement. The decision of the legislator to ratify an agreement means assent of the State be obliged by a particular international agreement.

According to Article 85 of the Satversme and Article 16(1) of the Constitutional Court Law, the Constitutional Court shall review cases regarding compliance of laws with the Satversme. When interpreting the term “law”, it is necessary to consider the fact that the purpose of the legislator, when establishing the Constitutional Court, first of all was to create an effective mechanism for protecting supremacy of constitutional norms. The assumption contrary to this purpose would be that the Constitutional Court cannot review whether adoption of certain laws, which are taken on basis of the second sentence of Article 68 (2) of the Satversme, namely the review whether the Saeima made procedural breach by adopting these norms (see: Decisions of 11 November 2003 b the Saeima Fourth Chamber on inadmissibility of application. Application reg. Nr. 119 - 123).

11. During the Court hearing, the representative of the Saeima, L. Liepa, asked to terminate proceedings by submitting that:

1) the TL is not in force at the international level. Consequently, no fundamental rights of the Applicants are infringed;

2) the Applicants have not exhausted available legal remedies. Based on the decision of 26 April 2007 by a Chamber of the Constitutional Court declaring inadmissible an application submitted by a private law person, it should also be declared that, in this case, the rights of the Applicants to participate and express their opinion would have been infringed if they had exercised the right to submit a draft law or draft amendments to the Satversme regarding the adoption of the TL by way of a referendum, as provided for in Article 78 of the Satversme;

3) the complaint submitted to the institution exercising constitutional control by an individual, whose purpose was not to protect his/her constitutionally guaranteed fundamental rights, shall be deemed as actio popularis. In this case, the constitutional claim is directed towards the protection of the good order and prestige of the legislator rather than towards the prevention of the infringement of the specific fundamental rights of the Applicants (see: Transcript of the Constitutional Court hearing of 4 March 2009, case materials, Vol. 4, pp. 20 – 22).

11.1 The Constitutional Court, when assessing the arguments of the representative of the Saeima that the case should be terminated since the TL has not come into force, states that there is no dispute as to whether the TL or any of its provisions directly infringe or restrict the rights or legal interests of the Applicants. The Applicants question compliance of the procedure of TL ratification with the Satversme. The Applicants have also reiterated at the Court hearing that they contest the constitutionality of the ratification procedure rather than the TL itself. Namely, they request the Constitutional Court to assess whether the Saeima has appropriately applied the procedure established in Article 68 (2) of the Satversme, or a referendum to ratify the treaty, as provided in Article 79(1) or Article 79 (2) of the Satversme, the Applicants having the rights to participate therein had to be held.

Therefore, the fact that the TL has not come into force in international law may not serve as a ground to refuse assessing compliance of its ratification with the Satversme.

The task of the Constitutional Court is, on the one hand, to ensure full protection of the Satversme as the supreme law of the State and, on the other hand, to ensure, within its scope of jurisdiction, that the Republic of Latvia enters into international obligations according to the procedures established in the Satversme. Namely, the Constitutional Court has the duty to ensure the supremacy of the Satversme and ensure that the procedures, according to which the State has undertaken certain international obligations, will not be contested post factum.

11.2 When assessing whether the findings from 26 April 2007 by the Chamber of the Constitutional Court can be applied to this case, the Constitutional Court recognizes that the Chamber, when deciding whether a particular application is admissible for its examination is guided by the arguments made in the application. The interpretation of the procedural issue established in the Constitutional Court Law provided in the decision of the Chamber can be applied particularly to the case under review by the Chamber only.

On 26 April 2007, the Constitutional Court, based on an application of twenty-one MPs, declared admissible a case on the constitutionality of the legal act contested also by an individual. The MPs who signed the application are seen as one single applicant whose procedural rights are broader when compared to those of a private law person. This difference mainly relates to the legal requirement for an individual to substantiate infringement of his fundamental rights. The practice of the Court of simultaneously reviewing several cases on the constitutionality of identical acts, with the extent of the rights of the applicants being different, would be non-compliant with the principle of procedural economy.

In this case, none of the subjects entitling the Constitutional Court to perform the abstract control has brought a court action. The task of the Constitutional Court, according to its jurisdiction, is to ensure the existence of the legal regulation which eliminates regulations that do not comply with the Satversme or with other legal norms (acts) of higher legal force to the fullest and most exhaustive level possible, as well as to provide its opinion regarding constitutionally important issues. The Court has no reason to terminate proceedings without examining this case on the merits.

11.3 The argument that the Applicants’ complaint should be regarded as an actio popularis and that their rights have not been infringed should be examined in the context of assessing the scope of Article 101 (1) of the Satversme. When cases regarding violations of certain fundamental rights are decided, due to their specific nature it is necessary to address simultaneously the issue of existence of an infringement and the merits. Although the Constitutional Court Law does not provide it, the Constitutional Court concludes that there are certain fundamental rights, assessment of infringement of which requires examination of the case on the merits. Such procedure is provided, for example, by the Article 29 (3) of the ECHR (see, e.g.: Kovach v. Ukraine, Application no. 39424/02, Judgment of 7 February 2008, para 44; Blumberga v. Latvia, Application no. 70930/01, Judgment of 14 October 2008, para 61). In this case, the Applicants have claimed, inter alia, possible amendments in the content of the articles of the Satversme by the ratification of the TL which are at the core of the legal system of the Republic of Latvia.

Taking the aforesaid and the fact that the rights of the people to participate in the decision-making process regarding issues relevant to the State shall be regarded as fundamental human rights into account, the Constitutional Court is obliged to provide the broadest assessment possible regarding whether the rights of the Applicants have been breached and to examine the case on the merits.

Therefore, the fact, that the TL has not yet come into force and the decision of the Constitutional Court Chamber on refusal to start a case on another application, may not serve as the basis for the Constitutional Court to terminate proceedings and not assess compliance of the adoption procedure of the TL with the Satversme. The Constitutional Court is entitled to review questions on whether the TL amending the TEU and the TEC has been ratified according to the procedures established in the Satversme and by observing the requirements regarding a referendum.

II

12. Article 101 of the Satversme envisages a right which serves as guarantee for democracy and is aimed at ensuring the legitimacy of the democratic State. However, the right is not absolute, since Article 101 also includes the condition “as provided for by law”. Therefore, the Satversme provides that the exercise of these rights shall be determined by law (see: Judgment of 30 August 2000 by the Constitutional Court in the case No. 2000-03-01, Para 1 of the Concluding Part).

13. The contents of Article 101 must be interpreted in conjunction with Article 89 which determines that the State shall recognize and protect fundamental human rights in accordance with the Satversme, the laws and international agreements binding on Latvia. When interpreting the Satversme and the international obligations of Latvia, it is necessary to find a solution that ensures harmonious interpretation of norms (see: Judgment of 113 May 2005 by the Constitutional Court in the case No. 2004-18-0106, Para 5 of the Motives). Therefore, international law and practice may serve as an instrument to establish the scope of the rules and principles established in the Satversme.

13.1. Indent “a” of Article 25 of the UN International Covenant on Civil and Political Rights provides that “every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 [of the Covenant] and without unreasonable restrictions to take part in the conduct of public affairs, directly or through freely chosen representatives.”

The UN Committee on Human Rights has noted in the General Comment No. 25 that “the allocation of powers and the means by which individual citizens exercise the right to participate in the conduct of public affairs protected by Article 25 should be established by the constitution and other laws” [General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25): 12/07/96. CCPR/C/21/Rev.1/Add. 7, para 5]. The minimum standard established in indent “a” of Article 25 of the Covenant is that the public power should be based on the principle of popular sovereignty. The government is accountable to the people and the people control the government. The way in which the rights of the people are exercised depends on the State’s political system. The Covenant does not provide any model of democracy, and the States in this respect are provided broad discretion (see: M. Nowak, UN Covenant on Civil and Political Rights. CCPR Commentary, Kehl and Arlington, VA: N.P.Engel, 1993, p. 441, 453). Such approach is also confirmed by the practice of the UN Committee on Human Rights (see: Communication No. 205/1986:Canada. 03/12/91. CCPR/C/43/D/205/1986, para 6).

The referendum procedure is an obvious expression of the modern understanding of “direct” involvement in the conduct of public affairs. The rights under indent “a” of Article 25 are related to, but distinct from, the right of the people to self-determination established in Article 1 of the Covenant. By virtue of the rights covered by Article 1, people have the right to freely determine their political status and choose the form of their constitution and government. In turn Article 25 deals with the right of individuals to participate in those processes which constitute “the conduct of public affairs” [see: General Comment No.25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25): 12/07/96. CCPR/C/21/Rev.1/Add.7 para 2]. The structure and form of power, according to which citizens implement their rights to participate in “the conduct of public affairs”, is provided by the Satversme and the laws of Latvia.

13.2. The Saeima recognized in its memorial that Article 101 (1) of the Satversme includes a broad range of issues, while only one of these issues is related to the participation of the citizens in a referendum. Article 101 neither provides for cases when a referendum should be held, nor for persons who have rights to participate in a referendum. These situations are provided for in other provisions of the Satversme; for instance, in Articles 48, 68, 72, 73, 77 and 78 (see: case materials, Vol. 1, pp. 58). The Ombudsman has also admitted that the right to participate in a referendum is only one of the rights that derive from Article 101 (1) of the Satversme (see: case materials, Vol. 2, pp.45).

The Constitutional Court notes that the words “to participate in the conduct of State affairs” should be understood as the right to participate in a referendum. There is no reason to consider that Article 101 (1) of the Satversme should be interpreted so as to apply only to the right to participate in ongoing processes. Namely, it would be applicable only when possible breach of human rights occurred during already ongoing referendum. Drafting materials of Article 101 do not show that the legislator had the purpose to cover solely the rights of individuals to participate in ongoing activities (see: case materials, Vol. 1, pp. 74 - 146).

M. Mits, considering this legislative history and several international documents on human rights, rightly drew the Court’s attention to the fact that participation in the conduct of State affairs may be carried out directly or indirectly, and the Article 101 incorporates both these forms of participation (see: Transcript of the Constitutional Court hearing of 4 march 2009, case materials, Vol. 4, pp. 118 and 119).

13.3.  Article 101 (1) of the Satversme is applicable to the right to request a referendum if this is expressis verbis provided in the Satversme or a law, and this request applies to cases on holding a referendum, as guaranteed by the Satversme. An individual, by referring to Article 101 of the Satversme, may request application of the constitutionally guaranteed procedure of a referendum or to ask for assessment whether adoption of a particular law complies with the right to participation as guaranteed by the Satversme. A referendum, however, may not be held if the constitution or a normative act in conjunction with the constitution does not provide for it. This applies, for instance, in cases when a particular issue falls within the exclusive competence of the Parliament [see: Code of Good Practice on Referenda, adopted by the Council for Democratic Elections at its 19th meeting, Venice, 16 December 2006, and the European Commission for Democracy through Law (Venice Commission) at its 70th plenary session, Venice, 16 – 17 March 2007, Study No. 371/2006, CDL-AD (2007)008, Strasbourg, 19 March 2007, p.11]. Therefore, individuals may not request the creation of participation procedures that that they desire but that are not provided for in the law (see: Opinion of M. Paparinskis, case materials, Vol. 3, pp. 44).

In this case, the Applicants have identified two rules contained in the Satversme that provide for the right of citizens of the Republic of Latvia to participate in a referendum. Therefore, there is no doubt that the claim has been based on the provisions that provide for submission of certain questions to a referendum, and the Applicants do not ask to introduce new provisions into the Satversme or repeal any provisions of the Satversme.

In order to examine whether the fundamental rights of the Applicants, taking into consideration the procedure of TL ratification, have been breached, it is necessary to establish if at all the Applicants have such rights in accordance with Article 101 of the Satversme in conjunction with Article 2 of the Satversme. If the Constitutional Court establishes that the rights of the Applicants have not been breached, then it will have to assess whether a breach may have occurred by reference to Article 101 of the Satversme interpreted in conjunction with Article 68 (4) of the Satversme.

The Applicants have the right to request the Constitutional Court to examine whether the Saeima, when adopting the Contested Act, has acted legally by not submitting it to a referendum, as established in Article 77 of the Satversme or Article 68 (4) of the Satversme.

III

14. Article 2 of the Satversme provides that the sovereign power of the State of Latvia is vested in the people of Latvia. The principle of the sovereignty of the people is therefore established in Article 2 (see: Transcript of the 1^st meeting of the 6^th session the Constitutional Assembly [Satversmes sapulce] of 20 September 1921). According to the principle of people’s sovereignty, Latvian people are the ultimate bearers of sovereignty.

The Satversme divides the power of the Satversme among the body of Latvian citizens and the Saeima. However, it guarantees the exclusive rights of the Latvian people to deal with the fundamental norms of the Satversme, namely, to repeal the Constitution or establish a new constitutional order. (see: Judgment of 29 November 2007 by the Constitutional Court in the case no. 2007-10-0102, Para 31.1). First, according to Article 78 of the Satversme, the citizens of Latvia can adopt draft amendments to the Satversme. Second, according to Article 77, only the citizens of Latvia can amend Articles 1, 2, 3, 4, 6 and 77 of the Satversme. The norms mentioned in Article 77 “are the most essential articles of the Satversme; it is impossible to change the republican and democratic nature of our State regime without amending or deleting these articles. Therefore, no one other than the people themselves is entrusted with the task of protecting these articles – they can only be amended based on the will of the people expressed in a referendum (mandatory referendum)” (Dišlers K. Ievads Latvijas valststiesību zinātnē. Rīga: A. Gulbis, 1930, pp. 110). Therefore, the Saeima cannot ignore the rights of the people to participate in the decision-making process based on Article 2 of the Satversme.

In order to establish whether any breach of the fundamental rights of the Applicants has occurred, the Constitutional Court has to assess whether the Applicants had the rights “as provided for by law” to participate in the conduct of State affairs, namely, to participate in a referendum according to Article 77 of the Satversme.

15. First of all, the Constitutional Court should establish whether, when adopting the Contested Act, Article 2 of the Constitution could have been amended and, if so, whether such amendments have been made in this case.

15.1. The Applicants have submitted in their Application and in the supplementary observations that Article 2 of the Satversme can be amended also without changing its text.

Articles 1, 2 and 3 of the Satversme provide the fundamental principles for the Latvian State. These fundamental principles are formulated in the form of abstract and conceptual axioms; the articles do not contain any reference to their amending or implementation procedures. Establishment of such procedures is the task for other articles included in different parts of the Satversme. The Constitutional Court has already held in its case-law that it is possible to adopt laws, including those which ratify international treaties that infringe articles 1 and 2 of the Satversme and that failure to submit such laws to a referendum is unconstitutional according to Article 77 of the Satversme (see: Judgment of 29 November 2007 by the Constitutional Court in the case No. 2007-10-0102, Para 28.4 and 42.3 of the Motives).

15.2. The representative of the Saeima admitted that this submission of the Applicants is correct and noted that “the Saeima does not disagree that amendments to Article 2 of the Satversme are not only textual; they might also be contextual, meaning the amendments are related to other legal acts which change the concept of sovereignty or its extent” (Transcript of the Constitutional Court hearing of 4 March 2009, case materials, Vol. 4, pp. 55).

The representative of the Cabinet of Ministers also agreed with the representative of the Saeima by admitting that “it is possible to agree with the Applicants regarding the fact that Article 77 [of the Satversme] should be applied also if Article 2 [of the Satversme] would have been amended on the merits rather than at the textual level” (Transcript of the Constitutional Court hearing of 4 March 2009, case materials, Vol. 4, pp. 83).

It can be concluded that there is no dispute about whether Article 2 of the Satversme can be amended without introducing textual changes into this Article but also by including changes into other legal acts.

Therefore, the Constitutional Court must examine whether in the adoption of the Contested Act the sovereignty of the people established in Article 2 of the Satversme has been infringed and whether after the adoption of the Contested Act, a referendum should have been held according to Article 77 of the Satversme.

16. In their Application and clarification thereto, the Applicants maintained different claims regarding the TL norms which possibly breach Article 2 of the Satversme. In order to assess the breach of Article 2, the Constitutional Court should assess the specific provisions of the TL referred to by the Applicants.

16.1. The main argument of the Applicants is related to the restricted rights to withdraw from the EU. Initially, the Applicants have indicated that the right of the “final say” of the people means the right to immediately withdraw from the EU because “assuming that such a statement has been expressed regarding withdrawal from the EU, there necessarily exists a serious reason for that, and one which would have to be suffered for two more years in spite of the dissatisfaction" (Clarification to the constitutional complaint lodged by the Applicants, case materials, Vol. 3, pp. 74). Likewise, the Applicants have indicated that Latvia would not be entitled to participate in negotiations on withdrawal agreement.

During the Court hearing the Applicants changed their position. They admitted that withdrawal from the EU would not always be possible without the established term of two years because the State would, by that time, have many secondary obligations that could cause legal consequences. Moreover, it is not clear to what extent Latvia could restore the situation it had at the time of joining the EU (see: Transcript of the Constitutional Court hearing of 4 March 2009, case materials, Vol. 4, pp. 39). The Applicants, however, did not specify the way and the extent to which it would be possible to restore the situation of 2004. They did not explain what common actions between Latvia and the EU are indispensible for immediate restoration of this situation by sidetracking the requirement regarding mutual agreement.

Article 50 of the CTEU states:

“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3) (b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”

16.2. The abovementioned article of the CTEU is a new provision, as previously the procedure whereby a Member State may withdraw from the EU was not regulated by the founding Treaties. Having examined this article, the Constitutional Court holds that the arguments of the Applicants regarding the withdrawal procedure are ungrounded for three main reasons.

First, the regulation on withdrawal is not a restriction of the sovereignty of the people because indent “b” of Article 54 of the Vienna Convention already provides a withdrawal procedure from an international treaty. The abovementioned norm of the CTEU should be regarded as lex specialis in relation to Vienna Convention which provides that a party’s termination of a treaty of withdrawal may happen at any time by the consent of all of the parties after consultation with the other contracting States. Moreover, the TL provides for broader guarantees as compared to general international law. According to Article 50 (3) of the CTEU, a State has the right to withdraw from the EU after two years even if it has not come to an agreement with other Member States. Moreover, according to Article 50 (2) of the TEU, there is no need to receive the consent of all of the Member States because a withdrawal agreement is concluded by a qualified majority of the Council.

Second, the Applicants are misled that Article 50 of the CTEU precludes Latvia from participating in the drafting of provisions on the withdrawal arrangements. This article only provides that Latvian representatives in the Council cannot participate in negotiations on behalf of the EU. Latvia, however, preserves its rights as an independent contracting party. The Constitutional Court notes that in this context the period of two years is essential to ensure that the withdrawal procedure causes as little disruption as possible by observing the rights and legitimate interests of the State and of its citizens that they had exercised during Latvia’s membership in the EU.

Therefore, it is not only desirable but also indispensible to have a term, within which it would be possible to make compromises regarding those persons who are exercising any of the fundamental freedoms of the EU. For instance, persons who are legally residing and working in other EU Member States or have concluded contracts on goods supplied or purchased, have made provisions of service, got recognition of their qualifications, opened branches of their companies, or exercise rights in other States outside the EU, that are parties to special agreements with the EU, which those persons would lose in case of Latvia’s withdrawal from the EU.

Thirdly, the term of two years per se does not limit the possibilities for Latvia to exit from the EU because Article 50 (3) of the CTEU does not exclude the situation when an agreement on withdrawal is reached sooner. The representative of the Ombudsman rightly stated at the hearing that the period of two years set by the said article is proportionate in case of withdrawal (see; Transcript of the Constitutional Court hearing of 4 May 2009, case materials, Vol. 4, pp. 96).

Article 50 of the CTEU, which provides the right for the Member State to withdraw from the EU, does not amend the content of Article 2 of the Satversme.

16.3. The Applicants have also noted that the EU is gradually becoming a State like entity or a federal state, which means that, after the TL becomes effective, a body of “European people” would be created (see: case materials, Vol. 4, pp. 79 and 85).

The Constitutional Court does not agree with these arguments.

First, according to the fundamental principles of international law that provide for the creation of states, it is necessary to make a claim on the formation of a State without breaching the territorial integrity of other States and observing national constitutional provisions. This would mean that all people of the EU Member States, by exercising their rights to self-determination, would have to bring such a claim in accordance with the constitutional requirements of each State.

The principle of self-determination includes three elements: the right to self-decision, the right to self-organization and the right to self-government.

The right of the people to self-decision as an element of the principle of self-determination means the right of the people to freely and independently decide their political status by becoming a part of a certain State on the basis of autonomy or seceding from a State and establishing an independent State in accordance with the norms of national law.

The right to self-organization is the right to freely and independently establish a State regime in a Constitution that is adopted by a referendum or Constitutional Assembly [Satversmes Sapulce].

The right to self-government is the right to exercise power in accordance with the provisions of Constitution (see: Judgment of 29 November 2007 by the Constitutional Court in the case No. 2007-10-0102, Para 18.1).

The TL does not provide for any norm that would confirm that the EU claims to become a State, and the people of the EU Member States have not requested to exercise their rights to self-determination within the EU. Neither the Contested Act nor the TL includes even indirect references to any claim of the right to self-determination.

On the contrary, the CTEU expressis verbis provides for respect of the identity and sovereignty of the Member States, which is emphasized more so in this Treaty than in other EU Treaties which are currently in force. Article 4 (2) of the CTEU provides that the Union shall respect the equality of Member States as well as their national identities inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. The EU shall respect the essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. These functions remain the sole responsibility of each Member State. This norm in particular guarantees that henceforth there will be States and their fundamental constitutional structures, as well as their values, principles, and fundamental rights that cannot be lost by reinforcing a supranational organization.

The national identities of Member States, being referred to by the treaties, have significant legal consequences. The exercise of power by the Union appears not as the will of a single sovereign, but rather as the common exercise of public power by various actors. This is also confirmed by Article 1 of the CTEU, which provides that the Contracting Parties establish among themselves a European Union, on which the Member States confer competences to attain objectives they have in common. The union is not a State, but rather a new form of political and legal order [see: A. Von Bogdandy, Doctrine of Principles. In: European Integration – The New German Scholarship, J.H.H. Weiler, A. von Bogdandy (ed.), Jean Monnet Working Paper Series 9/03.1. NYU School of Law, New York 2003, 1 – 50, p. 10, 12].

Secondly, according to Article 48 of the CTEU and also according to the existing Article 48 of the TEU, the EU Treaties can be amended if all Member States agree to the amendments in accordance with national requirements and, if necessary, compromise is reached on exceptions in the conditions of the membership. Therefore, Latvia does not lose its rights to object, directly or indirectly, to any changes within the EU, including the changes that do not comply with the Satversme. The role of the EU institutions in the Treaty amending procedure is not decisive. EU institutions do not have the right to adopt final decisions, although they have the right to initiate the revision of the Treaties. This is an essential feature of an organization based on international law. Thus, the EU differs from a federal State. In case of federal States those are mainly federal institutions that adopt amendments to a constitution. Even if states of the federation (for instance, lands or cantons) have the right to participate in the drafting process of amendments to a constitution, the consent of all of the states is not required for the amendments to become effective.

Thirdly, in their arguments on the creation of “European people,” the Applicants referred to the Charter of Fundamental Rights (hereinafter – the Charter) and Article 9 of the CTEU. The Constitutional Court concludes that the Applicants’ claims do not derive neither from the text of the CTEU nor from the Charter.

The Preamble of the CTEU repeatedly refers to the interests of the all European peoples. Further the CTEU mentions the need to promote the well-being of peoples, not one particular body of people, as one of the fundamental purposes of the EU (see, e.g.: Article 3 of the CTEU). The Preamble of the Charter, to which the Applicants refer, establishes expressis verbis that the peoples of Europe, rather than one people, create an ever closer union among them and are resolved to share a peaceful future based on common values. Article 9 of the CTEU, noted by the Applicants, should not regarded as a new norm; it literally duplicates Article 17 of the TEC, which provides for conferring citizenship to persons who have acquired nationality of Member States in accordance with national laws. Moreover, EU Member States enjoy freedom of action in that they are entitled to attach to the Treaty a declaration providing which individuals to be regarded as EU citizens in the EU. This Article was included in the Treaty already in 1992 by introducing amendments by the Maastricht Treaty. Member States, however, who have submitted the declaration, should observe the obligations derived from the ECHR (see: European Court of Human Rights Case of Matthews v. The United Kingdom, Application no. 24833/94, 18 February 1999; Case C-145/04 Kingdom of Spain v. United Kingdom of Great Britain and Northern Ireland [2006] ECR I-7917).

Therefore, the Constitutional Court has no reason to conclude that the EU would become a State like entity after the TL comes into effect or that a “European people” would be formed by means of the TL.

17. In order to assess the most substantial changes that the Applicants claim the TL introduces, the amendments cannot be reviewed separately; it is necessary to consider them as a whole, along with the balance of rights and obligations reached within the EU. The Constitutional Court recognizes that the State of Latvia is based on fundamental values such as human rights and fundamental freedoms, democracy, the sovereignty of the State and its people, the division of powers and the rule of law. The State is obliged to guarantee these values and they cannot be infringed by amending Satversme by law. Therefore, the delegation of competencies cannot violate the rule of law and the basis of an independent, sovereign and democratic republic. Likewise, the EU cannot affect the rights of citizens to decide upon the issues that are essential to a democratic State.

Article 2 of the Satversme provides not only for the right to “the final say” but also for an obligation to assess the membership conditions of an international organization as such. In this context, the right to “the initial say” seems even more important. This means the legitimate agreement on the exercise of sovereignty in a certain manner, namely, the aims, nature and structure of an organization that is implementing competencies and the ability of the State and its citizens to influence implementation processes. Therefore, it is necessary to identify the moment at which the exercise of sovereignty for the creation of international obligations reaches the level requiring a constitutional procedure for its legitimisation within the national legal order (see: Opinion of M. Paparinskis, case materials, Vol. 3, pp. 47, 48 and 50).

Already prior to World War II in international law analysis of the legal consequences that arise when a State undertakes international obligations, sovereignty was treated as the exercise of sovereign rights rather than a restriction thereof. The Permanent Court of International Justice rejected the view that the conclusion of any such treaty according to which a State undertook to perform or refrain from performing certain acts would mean this State’s abandonment of its sovereignty. At the same time, the right of entering into international engagements is an attribute of State sovereignty. The Permanent Court of International Justice noted that “La Cour se refuse à voir dans la conclusion d’un traité quel-conque, par lequel un Etat s’engage à faire ou à ne pas faire quelque chose, un abandon de sa souveraineté. Sans doute, toute convention engendrant une obligation de ce genre, apporte une restriction à l’exercise des droits souverain de l’Etat, en ce sens qu’elle imprime à cet exercise une direction déterminée. Mais la faculté de contracter des engagements internationaux est précisément un attribut de la souverainété de l’Etat.” (Affaire du Vapeur „Wimbledon”, CPJI Ser A 01 15, 1923, 25). When analysing international relations between States and international organizations, it has been admitted that international organizations are institutions, in the frameworks of which States are merging their sovereignty and resources in order to solve common problems and find common solutions by acting in favour of national interests (see: Scelle G., L’admission des nouveaux membres de la Société des Nations // Revue Générale de Droit International Public, 1921, vol. 28, p. 122, 125-127; Huber M., Die soziologischen Grundlagen des Völkerrechts, Berlin, 1928, ss. 18, 23; Lauterpacht H. (ed). Oppenheim’s International Law, Fifth edition, London, 1937, p. 308).

The notion of sovereignty has always been related to the use of power in internal and foreign relations, and this use has always been subjected to the values on basis of which it is found. Values provide sovereignty with a normative character which can be used to evaluate a state of affairs between a State and international organisation (sk.: Sarooshi D., International Organizations and Their Exercise of Sovereign Powers, Oxford Monographs in International Law, 2005, p. 9). The State may be a member of such international organizations in which legal relations between the institutions and Member States may differ, and the relations affect respective constitutional norms differently even if the organization is endowed with international legal powers which affect Constitutional norms differently.

The Constitutional Court should determine whether an amendment of Article 2 of the Satversme has occurred along with the amendments to the EU’s founding Treaties referenced by the Applicants.

18. In their clarification to the Application, the Applicants made several arguments according to which Article 2 of the Satversme has been amended.

Without mentioning relevant articles of EU’s founding Treaties, the case-law of the European Court of Justice or other facts of legal nature, the Applicants have not explained the differences between legal regulation, which is currently in force according to EU treaties, and the legal regulation which will be in force after the TL becomes effective.

However, the Constitutional Court holds that it is nevertheless necessary to examine the submissions of Applicants.

18.1. Both in clarification to the Application and during the Court hearing, the Applicants noted the following areas that affect Article 2 of the Satversme:

1) EU status of a legal personality;

2) scope and vague specification of delegated functions, including widening of exclusive competencies;

3) changes in the decision-making procedures that allow avoiding the national Parliaments and increased role of the European Parliament and the European Council;

4) common foreign and security policy, including EU military force;

5) flexibility clause and passarelle procedure;

6) foundation of the European Public Prosecutor’s Office;

7) adoption of the Charter and ratification of the ECHR;

8) formation of the EU court chamber, the establishment of the positions of EU President and the High Representative of the Union for Foreign Affairs and Security Policy, as well as the fact that Latvia will have its Commissioner only during two of three terms of office of the Commission;

9) insufficient information on amendments that the TL would introduce into EU’s founding Treaties.

The Constitutional Court will not assess the usefulness of the introduction of certain articles into EU’s founding Treaties, which is a question of political choice. The role of the Constitutional Court is to prevent the adoption of amendments to Article 2 of the Satversme by way of an inappropriate procedure.

Therefore, the Constitutional Court must ex officio assess the submissions of the Applicants that could cause the breach of Article 2 of the Satversme.

18.2. The Applicants indicate that, according to Article 47 of the CTEU, the EU is conferred legal personality. This means that the EU continues to become closer to a State like entity.

The Constitutional Court concludes that, after the TL becomes effective, the EU will continue functioning based on two treaties: the CTEU and the TFEU, both these treaties having equal rank. So far, the EU was functioning based on the so- called “pillar system”, where the first pillar, the European Community, had the legal personality. The fact that an international organization has the status of a legal person does not per se mean that this organization is becoming a State like entity. As noted by the UN International Court of Justice that: “[t]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community” (Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, April [1949] ICJ Rep. 174, 178). Therefore, the Court has concluded that international organizations are not “States” or “super-States”. Instead, they are subjects of international law of another kind. The International Court in its opinion defined the fundamental features for an international organization, including the need to have the status of a legal person and implied powers (see: Klabbers J., The Life and Times of the Law of International Organizations, Nordic Journal of International Law 70: 287 – 317, 2001, pp. 302-303). International organizations, as compared to States, may use their status of legal personality only within the scope of competencies transferred to them, and these competencies are usually established in a treaty.

Therefore, to examine whether the TL amends the content of Article 2 of the Satversme, it is not essential to focus on legal personality of the EU but to determine the new competencies that will be transferred to it and whether they are clearly defined. The Court should examine those amendments of the TL that were mentioned by the Applicants and that apply to the new or amended competencies of the EU.

18.3. The Applicants have noted that after the TL becomes effective, 32 new competences would be transferred to the EU (see: Transcript of the Constitutional Court hearing of 4 March 2009, case materials, Vol. 4, pp. 80). In the clarification to the Application, the Applicants submitted that the EU may waive certain transferred competencies by giving them back to the Member States. As examples for additionally transferred competencies, the Applicants at the Court hearing mentioned energy and trade policy. The Applicants also drew attention to the changes in the decision-making procedure in the EU.

The Constitutional Court admits that an assessment of the transferred competencies should be based on the fact that the transfer of competencies to the EU and the integration of the legal acts of the European Community into our legal system places certain restrictions that can be acceptable only if the EU law is compatible with the principles of a democratic State and the sovereignty of the people that are derived from Article 1 and 2 of the Satversme.

The Court asserts that the transfer of certain competencies to the EU instead of being considered as dilution of sovereignty must be regarded as exercise of sovereignty of the people to reach the aims set forth in the EU. Neither the effective Treaties, nor the objectives set in Article 3 of the CTEU that the EU is striving to achieve within the limits of its competences in accordance with Article 3(6) of the CTEU, are contrary to the values and interests established in the Satversme. At the same time, as the EU integration progresses proceeds, it is necessary to take into account that Article 2 of the Satversme does not allow an unlimited transfer of competences, which would preclude Latvia from being regarded as a sovereign State.

In this case, considering the Applicants’ submissions, there is no reason to hold that the EU would be delegated new exclusive competences in accordance with Article 3 of the CTEU. The EU has always enjoyed broad exclusive competency in issues related to trade (see, e.g.: http://europa.eu/abc/panorama/index_en.htm). This is related not only to the regulation of the EU internal market but also to EU external trade. For instance, the EU has represented its Member States in the World Trade Organization since 1 January 1995. By virtue of the TL, protection of trademarks, designs, patents and copyright protection will be harmonized. These changes are related to the need to achieve the objectives of the Lisbon Strategy adopted in 2005, in relation to innovation, research and increased competiveness of a single market. Likewise, competence in trade policy would also be broadened in certain areas, such as, for instance, direct foreign investments.

The Constitutional Court concludes that the opinion of the Applicants that the TL would allow the energy to become an exclusive competence of the EU is ungrounded. As to energy policy, Article 4 of the TFEU provides that the Member States and the EU shall have shared competences. According to the current structure of the Treaty energy policy is not regulated in a separate chapter. The EU, however, when exercising its current competencies that are transferred within the framework of regulations for the single market, environmental protection and other fields, has already adopted legal acts and has created energy policy. Thus, for instance, there are documents regarding taxing energy products, public procurement, the internal energy market, trans-European energy networks and environmental protection [see: Council Directive (20 December 1968) imposing an obligation on Member States of the EEC to maintain minimum stock of crude oil and/or petroleum products; Council Directive 98/93/EC (14 December 1998) amending directive 68/414/EEC imposing an obligation on Member States of the EEC to maintain minimum stock of crude oil and/or petroleum products; Directive 2006/32/EC of the European Parliament and of the Council on energy end-use efficiency and energy services and repealing Council Directive 93/76/EEC].

There are currently several mechanisms that relate to energy technologies, European power supply networks, power supply security, climate change and nuclear waste. Likewise, the European Energy Charter (confirmed by the Decision 98/181/EC of 23 September 1997 by the European Communities of the Energy Charter Treaty and the European Coil and Steel Community) and the Energy Community Treaty (confirmed by the Council Decision 2006/500/EC of 29 May 2006) have been adopted. Euratom is also effective and it regulates several issues related to energy. A chapter is devoted to energy in the TL, thus separating it from other related issues. In this chapter, it is stated that the main objectives of EU’s participation are to ensure the functioning of the energy market, ensure security of energy supply, promote energy efficiency and energy saving and the development of new and renewable forms of energy. The main amendment in the field of energy is the so-called “principle of solidarity”, according to which if an EU Member State experiences severe difficulties with energy supply, the duty of other Member States is to provide assistance (see: Article 122 of the TFEU). Therefore, there is no reason to conclude that the competence delegated to the EU in the field of energy would be considerably broadened by the TL and that these amendments breach Article 2 of the Satversme.

The effective Treaties do not include enumeration of competencies. Instead Article 5 of the CTEU and Title I of the first part of the TFEU, “Categories and Areas of Union Competence”, precisely define the division of competencies between the EU and its Member States. Enumeration of competencies provided in Article 4 and 6 of the TFEU is also making the functioning of the organization more transparent. This does not change the situation after accession; it only simplifies, restructures and makes it more precise. The clear separation of competencies by the TL generally aims toward legal certainty and the development of positive development of relations between national and EU legislation.

Moreover, the EU, when exercising its non-exclusive competencies, should observe the principles of subsidiarity and proportionality which restrict the possibility to broaden competences. Additionally, national Parliaments would be involved in monitoring the application of these principles (see: Article 5 of CTEU and Protocol No. 2 of the CTEU “On the Application of the Principles of Subsidiarity and Proportionality”). The abovementioned provisions and principles form a sufficiently exact legal framework so as to clearly define the extent of the competences that would be transferred to the EU according to the TL.

All EU institutions also have to ensure the permanent compliance with principles of subsidiarity and proportionality. On basis of Article 263 of the TFEU and according to preliminary rulings procedure that is established in Article 267 of the TFEU the European Court of Justice (ECJ) will monitor the implementation of competences.

It cannot be upheld that, according to the Applicants, the ECJ “has declared itself to be the ‘engine’ of EU integration” (Transcript of the Constitutional Court hearing of 4 March 2009, case materials, Vol. 4, pp. 32 and Transcript of the Constitutional Court hearing of 10 March 2009, case materials, pp. 129). Although certain judgments of the ECJ have provoked discussions on their future consequences, such conclusion cannot be applied to all judgments, especially in relation to accepting new competencies for the EU (see, e.g.: Opinion 2/92 Competence of the Community or one of its Institutions to Participate in the Third Revised Decision of the OECD on National Treatment [1995], ECR I-521; Opinion 2/94 Accession of the Community to the European Human Rights Convention [1996] ECR I-1759; Opinion 1/94 Competence of the Community to Conclude International Agreements Concerning Services and the Protection of Intellectual Property, WTO [1994] ECR I-5267, Craig P., de Búrca G., EU Law. Text, Cases and Materials. 4th ed., Oxford University Press, 2008, pp. 97 – 98). It was also stated in legal doctrine that the role of the ECJ is no longer to act as a sort of ‘integration motor’; its task is to ensure balanced equilibrium between the competences, rights and functions of the institutions, Member States and citizens (see: Albi A., Supremacy of EC Law in the New Member States. Bringing Parliaments into the Equation of Co-operative Constitutionalism, European Constitutional Law Review, 3: pp. 25 – 67, 2007, p. 40).

18.4. During the Court hearing, the Applicants repeatedly asserted that, as the procedure of voting in the Council changes, the possibility that Latvia, being a small State, would not be able to appropriately protect its interests. “Latvia’s influence in the Council would decrease from 1.2 to 0.4 percent” (Transcript of the Constitutional Court hearing of 4 March 2009, case materials, Vol. 4, pp. 32 and transcript of the Constitutional Court hearing of 10 March 2009, case materials, Vol. 4, pp. 128). Moreover, the transition from consensus voting to a co-decision procedure would take place in several areas (see: case materials, Vol. 1, pp. 9 and 10).

Article 16 of the CTEU, regarding voting procedures in the Council provides:

“2. The Council shall consist of a representative of each Member State at the ministerial level, who may commit the government of the Member State in question and cast its vote.

3. The Council shall act by a qualified majority except where the Treaties provide otherwise.

4. As of 1 November 2014, a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union.

A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.

The other arrangements governing the qualified majority are laid down in Article 238(2) of the Treaty on the Functioning of the European Union.

5. The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions.”

EU membership means that neither Latvia nor any other Member State has absolute right to block any decision that is being adopted in the EU. Latvia has not had such rights since its accession to the EU. Although the TL provides for several issues on which the decisions will be made by QMV rather than unanimously, the Constitutional Court agrees with M. Mits that possible decrease of Latvian direct influence in the EU institutions should be assessed in the context of increased direct influence (see: Transcript of the Constitutional Court hearing of 4 May 2009, case materials, Vol. 4, pp. 120).

As to this context, there are at least three substantial changes introduced by the TL. First, according to Article 11 (4) of the CTEU, not less than one million citizens who are citizens of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any proposal on matters where citizens consider that a legal act of the Union is required. According to Article 24 (1) of the TFEU, the European Parliament and the Council, acting by means of regulations, shall adopt the provisions for the procedures and conditions required for a citizens’ initiative.

Second, Article 12 of the CTEU and Protocol No. 1 of the TFEU, on the Role of National Parliaments in the European Union, provides for the involvement of national Parliaments in application of the principles of subsidiarity and proportionality. National Parliaments will receive all draft legislative acts, will take part, within the framework of the area of freedom, security and justice, in the evaluation mechanisms, will be involved in the political monitoring of Europol and the evaluation of Eurojust’s activities as well as take part in the revisions procedures of Treaties and accession of new Member States. If one third of the Parliaments will object to certain legislative act, the Commission will have to review the draft.

Third, the TL will introduce the so called “Ioannina Compromise”, which is included in Declaration No. 7 annexed to the Final Act of the TL. According to Article 16 (4) of the CTEU, which establishes voting procedures in the Council from 1 November 2014, the so-called “blocking minority” is provided. It should include at least four Council members. According to the Compromise, until 31 March 2017, the countries representing at least three-quarters of the Member States or of the actual Union population will be necessary to constitute a blocking minority resulting from the application of Article 16(4) CTEU. As from 1 April 2017, the same obligation will arise at the initiative of countries representing at least 55 percent of the Member States or of the actual Union population. In order to amend this Compromise, the Council must reach a consensus. Moreover, when a Member State will consider that any draft legal act of the EU affects its interests, financial balance, social security system or criminal law, it will be entitled to initiate termination of the legislative procedure. In this case, the European Council would be obligated to reach, within four months, a consensus on the continuation or termination of the legislative procedure.

18.5. The Applicants hold that after the TL becomes effective, Latvia will transfer to the EU the competence in foreign and security policy because decisions will be adopted within the EU (see: Transcript of the Constitutional Court hearing of 4 March 2009, case materials, Vol. 4, pp. 46 and 48).

The Constitutional Court agrees with the Applicants insofar as the TL formally repeals the pillar system. The former second pillar – Common Foreign and Security Policy (hereinafter – CFSP) has been included in Title V of the CTEU “General Provisions of the Union’s External Action and Specific Provisions on the Common Foreign and Security Policy”. This is the only pillar that will be preserved at the intergovernmental level. According to Article 22 of the CTEU, the decisions on external action of the Union should be adopted unanimously in order to reaching the objectives established in Article 21 of the CTEU. This According to Articles 22 and 23 of the CTEU, applies to all decisions regarding CFSP. In accordance with Articles 24 and 31 of the CTEU, the CFSP is subject to specific rules and procedures that do n not provide for the adoption of legislative acts. Similarly the ECJ according to Article 275 of the TFEU will not have the jurisdiction on these provisions. The only exception to when the ECJ will be entitled to review the CFSP decisions will be the cases when these decisions concern the rights of natural or legal persons (Article 40 of the CTEU and Article 75 of the TFEU). Such practice exists according to the Treaties in force. The ECJ already reviews the legality of regulations and decisions that introduce the EC sanctions based on the UN Security Council resolutions or European Council’s positions in relation to the founding Treaties. As a result of such acts most often the bank accounts of individuals are frozen or free travel is limited if they are suspected of international terrorism (see: Cases 402/05 P and C 415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council [2008] Judgment of 3 September 2008; Case T-284/08 People’s Mojahedin Organization of Iran v Council [2008] Judgment of 4 December 2008).

Therefore, the only significant difference is that the decisions will be adopted in the framework of the CFSP. In relation to Common Security and Defence Policy it is settled, that these policies are integral of the CFSP and are implemented by exploring the capabilities provided by the Member States (see: Article 42 of the CTEU). The CTEU provides that this policy will be framed on the basis of unanimous decisions of the European Council, and it particularly emphasizes that common security and defence policy will not affect obligations of the Member States in the NATO and will respect them. In general, the CTEU requires adoption of unanimous decisions and does not provide that mutual obligations of Member States would exceed those established in the treaty establishing NATO (see: Article 42(7) of the CTEU).

18.6. The Applicants in their clarification to the Application mentioned the flexibility clause and passarelle procedure which, in their view, suggest that the EU is becoming a State like entity (see: case materials, Vol. 3, pp. 85).

Although the Applicants have not specified the norm where the flexibility clause is included, the Constitutional Court assumes that the Applicants meant Article 352 of the TFEU. This norm has been included in EU’s founding Treaties since the foundation of the European Communities (see: Article 308 of the TEC). Similar flexibility clauses are also included in treaties establishing other organizations, and the UN International Court of Justice has declared them as an organic element of the effective functioning of international organizations (see: Advisory Opinion, Reparations for Injuries suffered in the service of the UN, ICJ, 11 April 1949). The TL would introduce additional democratic guarantees, namely, national Parliaments would have the right to object if the EU, based on Article 352 of the TFEU, will draft new legal acts. (see: Albi, p. 42).

Passarelle clauses, or the norms subject to simplified revision procedures of EU’s founding Treaties, had already been included in EU Treaties (see, e.g.: Article 42 of the TEU, Article 137(2) and Article 175(2) of the TEC). EU’s founding Treaties, even after the TL becomes effective, would not provide for identical legislative procedure within the EU. In addition to ordinary legislative procedure, namely, the co-decision procedure, there will be special legislative procedures, namely, unanimity, sometimes after consulting or consent of the European Parliament. It will not be possible to alter the EU competencies in accordance with the passarelle procedure, but it will be possible to introduce amendments to the decision-making procedure of the EU by changing it from the special decision-making procedure to the co-decision procedure. Article 48 (7) of the CTEU provides for two types of passarelle procedures. Firstly, Member States may agree to change for a co-decision procedure. Secondly, Member States may agree on decision making by a QMV in the Council without amending the procedure regarding the involvement of the European Parliament in the decision-making process. The Council should adopt a decision unanimously by obtaining the consent of the European Parliament. Substantial novelty in the present regulation regarding decision-making procedure is the fact that national Parliaments should be notified about the planned changes in the decision-making procedure. The national Parliaments will be entitled to use their veto rights within six months. Any State, including Latvia, will be able to block the changes envisaged in the decision making procedure. Therefore, the argument of the Applicants that amendments to the Treaty could be introduced without the consent of the Saeima is ungrounded. National Parliaments will have no such authority only regarding the passarelle norms currently in force. The TFEU also contains several exceptions when passarelle norms shall not be applied (see: Article 353 of the TFEU).

Accordingly, the Constitutional Court concludes that Latvia will have the rights and the ability to block changes in the decision-making procedure that are undesirable for Latvia and the Saeima will have the possibility to express its opinion before changes come into force.

18.7. The Applicants claimed in the clarifications to the Application and during the adversarial stage of the hearing that the EU would become a State like entity because of the creation of the European Public Prosecutor’s Office. The representative of the Saeima asserted during the Court hearing that the TL does not establish a common Public Prosecutor’s Office at the European level and “it is only a political position that can be implemented” (see: Transcript of the Constitutional Court hearing of 4 March 2009, case materials, Vol. 4, pp. 61).

The Constitutional Court recognizes that, first, according to Article 86(1) of the TFEU, establishing the Public Prosecutor’s Office is only a possibility. Even after the TL becomes effective the Public Prosecutor’s Office will not be automatically established.

Secondly, the regulations, by which the Eurojust could be restructured to Public Prosecutor’s Office, should be adopted by a unanimous decision of the Council and with the consent of the European Parliament. Thus, during drafting of the abovementioned regulations, the Republic of Latvia would be able to express its opinion and, if necessity, block the adoption of a decision.

Thirdly, even if the European Public Prosecutor’s Office is formed, it would not overtake or significantly affect the competence of judicial power or the Public Prosecutor’s Office of Latvia. Although the competence of the European Public Prosecutor’s Office envisaged would differ from the present competence of Eurojust, which is to coordinate co-operation between the States against cross-boarder and organized crime, it would still cover only the issues related to the financial interests of the EU and issues having cross-border importance.

The Applicants have not indicated any other reasons why the establishment of the European Public Prosecutor’s Office would be unconstitutional. Therefore, the Constitutional Court deems the Applicants’ argument ungrounded.

18.8. The Applicants indicate that the EU cannot ratify the ECHR, which allows such rights only to States. Human rights established in the Charter should also be compared to the rights established in Chapter 8 of the Satversme, and application of the Charter may prove to be incompatible with the Satversme (see: Transcript of the Constitutional Court hearing of 10 March 2009, case materials, Vol. 4, p. 132).

The Constitutional Court emphasises from the outset that Article 6 (2) of the CTEU provides only that “[the] Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties”. Therefore, the aim is that accession can take place only in accordance with the provisions of the TEU and the ECHR.

The fact that the Charter and the ECHR would become binding on the EU according to Article 6 (2) and (3) of the CTEU is not incompatible with the Satversme because all of these documents are based on same values and principles. Moreover, the Court has repeatedly stated that the objective of the legislator was not to contrast the norms of human rights established in the Satversme with international legal norms. The Satversme in essence cannot envisage a lesser degree of ensuring or protecting fundamental rights than is envisaged in any of international legal acts. A different conclusion would be contrary to the idea of the State based on the rule of law as established in Article 1 of the Satversme. One of the main features of the State based on the rule of law is the recognition of human rights and fundamental freedoms as the highest values of the State (see: Judgment of 14 September 2005 by the Constitutional Court in the case No. 2005-02-0106, Para 10).

Moreover, on 28 March 2006, Latvia ratified Protocol No. 14 of the ECHR (see: Law of 9 February 2006 on Protocol No., 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention). Article 17 thereof amends Article 59 of the ECHR by supplementing it with a second paragraph that would allow for the possibility for the EU to accede to this Convention.

The EC has already acceded to 47 different Conventions of the Council of Europe (see: http://conventions.coe.int/Treaty/Commun/Liste Traites.asp?CM=13&CL=ENG). Moreover, the Community represents the Member States in different international organizations or international treaties, such as the World Trade Organization (1995), the UN Convention on the Law of the Sea (1998), in accordance with limits of shared competence [see: http://www.wto.org/english/theWTO_e/countries_e /european_communitiese.htm un http://www.un.org/Depts/los/referencefiles/chronological_lists_of_ratifications.htm#The%20United%20Nations%20Convention%20on%20the%20Law%20of%20the%20Sea;C-459/03 Commission v. Ireland (Mox Plant) [2006] ECR I-4635].

Article 51 of the Charter clearly provides that the Charter does not establish any new power for the Community or the Union, or modify the powers and tasks defined by the EU Treaties. It places obligations to the institutions and other bodies of the EU, as well as to the Member States only when implementing EU law. The Charter may not be applied to fields that Latvia has not delegated to the EU. Therefore, the constitutional mechanism for the protection of human rights is autonomous and independent from the EU. Moreover, along with recognising the Charter as a legally binding document, the protection of individual rights would be increased since previously they have been ensured only at the level of general principles of law, but this is insufficient in the context of legal security and certainty (Application no. 62023/00, Emesa Sugar v. Netherlands, ECtHR decision of 13 January 2005, Case C-17/98 Emesa Sugar v. Aruba [2000] ECR I-665, Craig and Búrca, pp. 425 – 426).

In the context of case it can be concluded that, after the TL becomes effective, several systems for the protection of human rights would exist, inter alia, the system of the Republic of Latvia, the EU and the ECHR. Latvia has already agreed to this by ratifying Protocol No. 14 of the ECHR, which has not been contested at the Constitutional Court. Moreover, the Court cannot assess in abstracto the claim regarding the possible conflict of different systems for the protection of human rights. Such conflicts will have to be solved on a case-by-case basis.

18.9. The Applicants noted several institutional amendments that bring the EU closer to a State like entity, namely the fact that the posts of the EU’s President and the EU’s External Relations Commissioner would be established, that Latvian Commissioner will work for only two out of three terms of office in the Commission, and that a ‘European Judicial Chamber’, with a broader scope of competencies, would be formed.

The Treaties in force state that the President of the European Council is the Head of State or Government of the Member State, which holds the Presidency of the Council for a term of six months. According to Article 15(5) of the CTEU, the European Council elects its President, by a QMV, for a term of two and a half years, renewable once. These organizational changes will ensure greater continuity in EU’s activities, but they cannot affect the functioning of Latvia as a sovereign State.

The Applicants’ argument regarding the establishment of the post of EU’s External Relations Commissioner is unclear. Apparently, the Applicants thought to refer to an amalgamation of the existing functions of the Commissioner for External Relations and the High Representative of the Union for the CFSP (hereinafter - the High Representative) by the TL.

One of the objectives of the Laeken Declaration was to increase the efficiency of the EU’s institutions and thereby to ensure more efficient and coordinated implementation of foreign policy. According to Article 18 of the CTEU, the High Representative when conducting EU CFSP shall contribute by his proposals to the development of the policy in accordance with powers mandated by the Council. The same applies to Common Security and Defence policy. Although the High Representative will preside over the Foreign Affairs Council in accordance with Article 18 (3) of the CTEU, he will be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union’s external action. In exercising responsibilities within the Commission, according to Article 18 (2) and (3) of the CTEU, the High Representative shall use his functions in accordance with the mandate given by the Council. Therefore, although the High Representative will be part of the Commission, his functions as Commissioner of External Relations will be more limited because they will be determined by the Council instead of Commission. The mandate for the High Representative will derive from unanimous decisions of the Council, rather than from the decisions of the Commission. This is also confirmed by Article 18(4) of the CTEU, which states that the High Representative when acting within framework of the Commission should abide to procedures insofar those correspond to his powers granted by the Council and are in conformity with the decisions of the Foreign Affairs Council.

Therefore, similarly to existing provisions of Articles 18, 26 and indent (d) of Article 27 of the TEU, the High Representative will act under supervision of the Council rather than Commission. This means that the High Representative will not be allowed to express an opinion or to undertake an initiative without the unanimous consent of the Council. Thus, Latvia will not lose the right to restrict the scope of the activities of the High Representative.

The Applicants’ arguments concerning the reduction of the number of Commissioners provided by the TL are not entirely correct.

Firstly, the provision regarding the reduction of the number of Commissioners was already provided in the Treaty of Nice, which was valid at the time when Latvia joined the EU. The Protocol on Enlargement of the European Union (hereafter – the Protocol) was annexed to the Treaty of Nice. Article 4 of the Protocol includes provisions regarding the Commission. Article 4(2) states that, when the Union consists of 27 Member States, Article 213(1) of the Treaty establishing the European Community and Article 126(1) of the Treaty establishing the European Atomic Energy Community shall be replaced by the following:

"1.   The Members of the Commission shall be chosen on the grounds of their general competence and their independence shall be beyond doubt.

The number of Members of the Commission shall be less than the number of Member States. The Members of the Commission shall be chosen according to a rotation system based on the principle of equality, the implementing arrangements for which shall be adopted by the Council, acting unanimously.

The number of Members of the Commission shall be set by the Council, acting unanimously.

This amendment shall apply as from the date on which the first Commission following the date of accession of the 27th Member State of the Union takes up its duties.”

Therefore, it was known even prior to Latvia’s accession to the EU that all Member States would not always be represented in the Commission.

Secondly, according to the institutional structure of the EU, the European Commission and the Commissioners represent the interests of the EU in general rather than the interests of particular State. According to Article 17 of the CTEU, the Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of Treaties and measures adopted by institutions pursuant to these Treaties. Therefore, from the position of protection of national interests it is irrelevant whether each Member State would be represented by its own Commissioner.

Thirdly, as the Presidency Conclusions adopted at the European Council meeting in Brussels have noted, the European Council agrees that provided the TL enters into force, a decision will be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State (see: Brussels European Council, Presidency Conclusions, 11th-12th December 2008, Brussels, 13 February 2009, 17271/1/08 REV 1, point 2). According to Article 4 of the effective TEU, such conclusions are the form in which the general development of the EU is decided upon.

The Constitutional Court concludes that the Applicants, by referring to a ‘European Judicial Chamber’, have meant the Court of Justice of the European Union which will include the Court of Justice, the General Court and other specialised courts (see: Article 19 of the CTEU). The Union’s basic judicial architecture will not be significantly modified by the TL; however, there are several changes to the detailed jurisdiction of the Union courts (see: Dougan, p. 673). These changes include the following: simplified revision procedures for imposing sanctions upon defaulting States within the context of enforcement procedures; an extension of the jurisdiction within the Area of Freedom, Security and Justice (see: Article 46 of the effective TEU and Title IV of the TEC) and restrictions applicable to the Court’s jurisdiction under existing Title VI of the TEU would be erased. The Court’s jurisdiction as regards pre-existing Third Pillar acts would remain subject to the current Treaty provisions for a five-year transitional period following the entry into force of the TL. According to Article 276 of the TFEU, the Court will have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement agencies with regard to the safeguarding of internal security. The Constitutional Court notes that Article 275 of the TFEU excludes the jurisdiction of the Court of Justice over the CFSP and any acts adopted on basis of those provisions. However, this Article does not alter the current situation entitling the Court to hear actions for annulment against decisions imposing restrictive measures upon natural or legal persons. After Article 263 (4) of the TFEU, regarding action for annulment in cases not requiring further implementation by the Member States but infringing the rights of natural or legal persons, will come into force, the rights to approach the EU courts will be significantly extended. When examining the amendments to the competence of the EU courts it can be concluded that the Court’s jurisdiction to review decisions affecting individual rights will increase [see: Spaventa E., Fundamental What? The difficult relationship between foreign policy and fundamental rights, in Cremona M. and de Witte B. (eds.), EU Foreign Relations Law: Constitutional Fundamentals, Hart Publishing, 2008]. Therefore, the Constitutional Court concludes that, although the competence of the EU courts would increase, it is linked with additional guarantees for the protection of the rights of natural and legal persons.

18.10. The Applicants claim that sovereignty, as outlined in Article 2 of the Satversme, is breached by the “deliberate concealment of information from society regarding the content and consequences of the Treaty of Lisbon” or that the information about the TL was in its character open euro-optimism propaganda rather than neutral (case materials, Vol. 3, pp. 80 and 81).

The Constitutional Court finds that the widest possible awareness of society on issues regarding the EU should no doubt be considered as welcome and it facilitates transparency and predictability of decisions adopted in this sphere. The dissemination of additional information should be seen as good administration, which also increases society’s understanding of a particular issue and creates the basis for broader discussions on possible problem issues. On the basis of this information, society indirectly participates in decision-making processes of national importance, such as integration into the EU.

The Constitutional Court, however, notes that it has no grounds to assess the process or manner in which society was informed about the TL, as a violation or infringement of the principle of sovereignty of the people. Conduct of the State institutions as regards dissemination of information to the public, insofar as an obligation to do so is not expressly provided for by the law, depends above all on politically shaped considerations of utility which are not subject to strict judicial review by reference to legal standards.

The Constitutional Court has not established any norms of the TL that would infringe the principle of sovereignty of the people established in Article 2 of the Satversme. Therefore, a referendum should not be held according to Article 77 of the Satversme.

IV

19.  Article 68 (4) of the Satversme states that: “[s]ubstantial changes in the membership conditions of Latvia in the European Union shall be decided by a referendum if such referendum is requested by at least one-half of the members of the Saeima.”

The Applicants claim that the abovementioned norm and its legislative history oblige the MPs to submit the approval of substantial changes in the membership conditions of Latvia in the EU, to a referendum. Moreover, this duty also derives from the solemn pledge of a MP provided for in Article 18 of the Satversme.

The Saeima does not agree to this interpretation of Article 68 (4) of the Satversme and holds that this provision provides only the right of the MPs to submit substantial changes in the membership conditions of Latvia in the EU to a referendum. MPs use this right taking into account considerations of political utility.

19.1. The Constitutional Court asserts that Article 68 (4) of the Satversme shall first be interpreted textually. Namely, the Constitutional Court, taking into account the contradicting interpretation of Article 68 (4) of the Satversme by the Parties, should examine whether this provision provides the obligation or right of the MPs to initiate a referendum on substantial changes in the conditions for Latvia’s membership in the EU.

Interpretation of Article 68 (4) of the Satversme offered by the Saeima is supported by the Ombudsman. It holds that this provision should be interpreted as providing the right of the MPs to initiate a referendum if changes in the conditions of the membership of Latvia in the EU are substantial. If the drafters of the Satversme would have wanted to establish a duty for the Saeima, this would have been included in the abovementioned Article (see: case materials, Vol. 2, pp. 46).

M. Paparinskis also recognises that the wording “substantial changes in the conditions” “does not directly mean a duty to hold a referendum; rather, it confers the right to at least one half of the MPs to request a referendum regardless of the opinion or recommendations of other institutions” (see: case materials, Vol. 3, pp. 52). A similar opinion was expressed by A. Endziņš, who indicated that it is the right of the MPs, and they should assess whether to exercise it. If 50 MPs hold that these amendments should be submitted to a referendum, then the referendum is mandatory (see: Transcript of the Constitutional Court hearing of 4 March 2008, case materials, Vol. 4, pp. 102).

M. Mits states that Article 68 (4) of the Satversme requires hold a referendum when there are two cumulative conditions. M. Mits stated that “[i]f we apply the textual method of interpretation [..] then Article 68 (4) of the Satversme establishes a right rather than a duty of the MPs to submit the respective issue to a referendum[..] According to Article 101 [of the Satversme], the right to a referendum would rise if a referendum is requested by 50 MPs in accordance with Article 68 (4) of the Satversme. In this case, this did not take place. The issue has not been submitted to a referendum and there is no reason to hold that Article 68 (4) of the Satversme obliged MPs to do so” (see: Transcript of the Constitutional Court hearing of 4 March 2008, case materials, Vol. 4, pp. 119 and 120).

The Constitutional Court agrees that a textual interpretation of Article 68 (4) of the Satversme gives no reason to conclude that it would establish a duty of the MPs to submit substantial changes in the conditions of the membership of Latvia in the EU to a referendum. Finding that it establishes a duty of the MPs would be contrary to the text of Article 68 (4) of the Satversme.

19.2. However, textual method of interpretation is only one of the methods to be applied and not necessarily it is always possible to be guided by grammatical sense of the norm. It should be noted that use of textual interpretation of legal provisions in most cases cannot be considered as sufficient to reveal the meaning of the legal provision. Therefore, other interpretative methods should also be used (see, e.g.: Judgment of 4 February 2003 by the Constitutonal Court in the case No. 2002-06-01, Para 3 of the Establishing Part, Judgment of 20 December 2006 by the Constitutonal Court in the case No. 2006-12-01, Para 9.1 and Judgment of 21 December 2007 by the Constitutonal Court in the case No. 2007-12-03, Para 19).

Applying the historical interpretation method, the meaning of the legal norm is established by taking into account the circumstances on basis of which it has been drafted (see, e.g.: Judgment of 8 February 2007 by the Constitutonal Court in the case No. 2006-09-03, Para 12).

According to the materials of the working group drafting Articles 68 and 79 of the Satversme, initially, a provision analogous to Article 68 (4) was not included in the draft (see: case materials, Vol. 3, pp. 128). However, since the moment that the working group agreed to supplement Article 68 by the fourth paragraph, the wording “if requested by at least one-half of the members of the Saeima” has remained intact until when it was adopted by the Saeima (see: case materials, Vol. 3, pp. 144., 146., 162., 166. and 171).

The working group’s discussions on articles 68 and 79 and the Annotation of the draft Law on Amendments to the Satversme of the Republic of Latvia do not reveal that Article 68 (4) establishes an obligation for the MPs to submit substantial changes in the membership conditions of Latvia in the EU to a referendum. In addition, the persons summoned by the Constitutional Court, by referring to the legislative history of Article 68 (4), conclude that there is a right rather than a duty established for the MPs. (see: Opinion of M. Paparinskis, case materials, Vol. 3, pp. 52 and statement of M. Mits at the Court hearing, case materials, Vol. 4, pp. 119).

A significant argument is the theoretical reasoning by the working group for amendments to Article 68. In the context of Article 68(4) they repeatedly and undoubtedly state that referendum is not mandatory and that the MPs have the right to choose whether to submit any issue related to the EU integration to a referendum. The reasoning states that the rights granted to the Saeima by Article 68 (4), i.e. the rights to assess the conditions regarding Latvia’s membership in the EU and to decide whether to submit the issue to a referendum, are not related to fundamental constitutional principles. This norm has invented new, non-mandatory referendum. The first words “if it is requested” specify the most essential difference between this and a referendum provided for in Article 68 (3). A referendum in the former case is not mandatory and not less than a half of the MPs have the right to choose whether to submit any issue regarding integration into the EU to a referendum. The initial objective of this amendment was to ensure that a referendum is held on very important issues of the EU integration. Article 68 (4) provides for the possibility to find out the will of the people if the EU changes its constitutional structure at the extent that it may cause doubt whether the people of Latvia would support Latvia’s membership in the significantly changed form of integration (see: Kādēļ Latvijas konstitūcijā nepieciešami labojumi? Jurista Vārds, 15 May 2001, No. 14.).

19.3. To establish the meaning of certain norms of the Satversme to the fullest extent possible and in an objective manner, they should be compared with other norms in the Satversme. Other provisions of the Satversme, to trigger the legal consequences provided therein, use identical wording to Article 68 (4), namely: “The Presidium of the Saeima shall convene a sitting of the Saeima if so requested by the President, the Prime Minister, or not less than one third of the members of the Saeima.” Article 26 provides: “The Saeima shall appoint parliamentary investigatory committees for specified matters if not less than one-third of its members so request”, and Article 72 states that:

“[t]he President has the right to suspend the proclamation of a law for a period of two months. The President shall suspend the proclamation of a law if so requested by not less than one third of the members of the Saeima. This right may be exercised by the President, or by one third of the members of the Saeima, within ten days of the adoption of the law by the Saeima. The law thus suspended shall be put to a referendum if so requested by not less than one tenth of the electorate. If no such request is received during the aforementioned two-month period, the law shall then be proclaimed after the expiration of such period. A referendum shall not take place, however, if the Saeima again votes on the law and not less than three quarters of all members of the Saeima vote in favour of adoption of the law”.

Consequently, a mandatory precondition for performing these activities is a request of a certain number of MPs as established in the Satversme, namely, the Satversme makes the respective acts conditional upon a request submitted by a sufficient number of MPs. The use of this function falls within the exclusive competence of the MPs as representatives of the people, rather than as of the Saeima as State organ. Therefore, the Satversme confers the right to several MPs to express their opinion regarding issues of national importance and to control the majority of the Saeima. Article 68 (4) of the Satversme has an analogous structure.

The Constitutional Court has recognized that the Satversme in substance is a short and laconic yet complex document. I.e., no provision of the Satversme or its part or even a single word may be regarded as superfluous, because such an interpretation would compromise the structure of the Satversme (see: Judgment of 16 December 2005 by the Constitutional Court in the case No. 2005–12–0103, Para 17). If any of the wording of the Satversme has been conferred a certain content, then it should be taken into account to ensure the correct application of the norms of the Satversme.

In order to note the obligation of the Saeima to act or refrain from action, the different wording of Article 68 (4) of the Satversme is used in the Satversme. For instance, Article 68 (3) provides that “membership of Latvia in the European Union shall be decided by a referendum, which is proposed by the Saeima”. Therefore, the pre-condition for making decision on Latvian membership in the EU is the obligation of the Saeima to initiate a referendum. If the Saeima fails to fulfil this obligation, no legal basis exist to hold a referendum and to decide upon Latvian membership in the EU.

Article 66 (2) of the Satversme provides: “If the Saeima makes a decision that requires expenses not provided for in the budget, the respective decision must also identify the funds to cover such expenses”. Therefore, if the Saeima wished to adopt a decision that is related to expenditures not provided for in the budget, it is under an obligation in to identify the source of funds from which it plans to cover the expenditures. In turn, Article 77 of the Satversme provides: “If the Saeima has amended Article one, two, three, four, six or seventy-seven of the Satversme, such amendments, in order become effective, should be confirmed by a referendum”. Therefore, the Saeima, when amending any of the articles mentioned in Article 77 of the Satversme, also has the obligation to submit the respective amendments to a referendum. If the Saeima fails to fulfil this duty, the amendments will not become effective.

19.4.  Article 68 (4) and Article 79 (2) of the Satversme confer the right to the people to decide issues regarding substantial changes in the membership conditions of Latvia in the EU if it is requested by at least half of the MPs. This formulation ensures the possibility to engage the will of the people if the EU changes its constitutional structure to the extent that it raises doubt whether the Latvian people would support Latvia’s membership the significantly changed form of integration. Simultaneously it ensures that a referendum would be held only on the most important issues of European integration (for instance, substantial changes in EU founding Treaties). The present wording does not allow submitting any issue to a referendum (for instance, acts adopted by EU institutions, including directives, regulations etc.) (see: Annotation of the draft law "Amendments to the Satversme of the Republic of Latvia", document No. 318, A http://www.saeima.lv/saeima8/mek_reg.fre).

The Constitutional Court considers that the principle of legal certainty would be offended if the sufficiently clear wording of Article 68 (4) of the Satversme were construed to imply an obligation of the MPs to submit to a referendum the approval of substantial changes in the conditions of Latvia’s membership of the EU. The validity of such a conclusion could not be confirmed by the objective of the legislator by which such a norm has been included into the Satversme. The Applicant E. Jansons, in fact, substantiates his interpretation of Article 68 (4) by reference political utility, namely that if this issue had been submitted to a referendum, “the confidence in the Saeima would have been much greater” (see: Transcript of the Constitutional Court hearing of 4 March 2009, case materials, Vol. 4, pp. 27).

Accordingly, it appears that in essence the Applicants request the Court to develop the meaning of Article 68 (4) of the Satversme by means of ‘teleological reduction’. Namely, the Applicants claim that the words “if it is requested by at least one half of the members of the Saeima” cannot be applicable in cases when, in view of amendments to the EU’s founding Treaties, substantial changes are introduced in the EU integration, and that in such cases, amendments should always be automatically submitted to a referendum. However, according to the principle of legal certainty one can derive the prohibition of ‘teleological reduction’ if it is necessary to strictly follow the unequivocal legal norm (see: Neimanis J. Tiesību tālākveidošana. Rīga, Latvijas Vēstnesis, 2006, pp. 155).

The Constitutional Court notes that making choices about the political utility of a certain approach if first and foremost the task of a democratically legitimised parliament. “Considerations of utility may not justify any deviation from the text of the basic law […] the letter of the basic law represents its raison d’être: to be an immutable law for the citizens and to be the one determinant without which life cannot be envisaged” [Sinaiskis V. Lietderība un noteikumi likumu tulkošanā (Sakarā ar dep. Goldmaņa neaizskaramību). Jurists, No.3, 1928, 72.col.].

The Constitutional Court concludes that Article 68 (4) sets as a pre-condition for the people to exercise their right to participate in the decision-making process regarding the amendments to the EU Treaties, the request of at least one-half of the MPs. Although there is a pre-condition for the exercise of this right of the people, the Constitutional Court may not re-assess constitutionality of certain norms of the Satversme because such assessment does not fall within its jurisdiction. The Constitutional Court, however, de lege ferenda agrees with M. Paparinskis that a referendum undoubtedly plays a substantial role in legitimizing decisions of national importance (see: case materials, Vol. 4, pp. 57 and 58).

20.  The Constitutional Court does agree with the Applicants that the Saeima, when deciding on ratification of an international treaty which settles matters that should be decided by the legislative process, is obliged to vet this treaty. The fact that other national institutions have already performed such assessments (for instance, the ministry that is responsible for the respective sphere) does not relieve the Saeima of its responsibility to assess the respective issue itself. Article 68 of the Satversme inter alia provides that all international agreements which settle issues to be adopted in the legislative process require ratification by the Saeima. The Constitutional Assembly, when it included this provision in the Satversme, did not mean that Latvia could not abide by its international commitments. The requirement to adopt international agreements by the Saeima was incorporated in the Satversme with the aim to exclude the possibility to acquire international obligations that settle issues requiring adoption by legislative procedure without the assent of the Saeima. Thus, the Constitutional Assembly has been guided by the presumption that international obligations “settle” issues and that they should be complied with (see: Judgment of 7 July 2004 by the Constitutional Court in the case No. 2004-01-06, Para 3.2 and Para 6).

Neither the Saeima’s debates, nor the opinions of the commissions provide an answer to the question how the question on substantial changes in the membership conditions of Latvia in the EU introduced by the TL has been assessed before ratification of the TL. In turn, it can be concluded indirectly from the debates in Saeima’s on ratification of the TL that the question on substantial changes in the membership conditions of Latvia in the EU has been assessed. For instance, a MP and a representative of the commission in charge, Leopolds Ozoliņš, noted that “[t]he principles and rules included in the draft Treaty comply with the main objectives of negotiating it, and with the national position of the Republic of Latvia. The Treaty does not establish substantial changes in the membership conditions of Latvia in the EU. With the entry into force of the Treaty, Latvia’s ability to participate in the decision-making processes within the EU will increase” (Transcript of the sitting of 19 may 2005 of the 8th Saeima of the Republic of Latvia, http://www.saeima.lv/steno/2002_8/st_ 050519/st1905.htm).

The Constitutional Court finds that the fact whether the MPs are able to adopt an objective decision on the ratification of any international treaty that delegates competencies from Latvia to the EU depends, to a great extent, on preliminary assessment of the treaty by inter alia institutions subordinated to the Cabinet of Ministers and experts which is made available to the MPs. After receiving the respective draft law, the Saeima itself, according to provisions Satversme or laws, is obliged first of all to assess which procedure shall be applied for the adoption of the law. The existence of such an obligation was confirmed by the representative of the Saeima who indicated that “each law in the Saeima is tested as to whether it complies with the hierarchy of legal acts and the requirements of Articles 1 and 2 of the Satversme” (see: Transcript of the Constitutional Court hearing of 10 May 2009, case materials, Vol. 4, pp. 154).

After reviewing the transcripts from the Saeima sittings and other case materials, the Court has no reason to hold that the voting of the MPs regarding ratification of the TL has been arbitrary and adopted on the basis of incomplete information. Moreover, the duty to assess legal acts submitted to voting is a political responsibility.

Since, in the process of adopting the Contested Act, the procedure established in Article 68 of the Satversme was not breached, the rights of the Applicants established in Article 101 of the Satversme have not been breached. Therefore, the Court concludes that the Contested Act complies with Article 101 of the Satversme.

The Constitutional Court,

Based on Articles 30 – 32 of the Constitutional Court Law,

h o l d s :

The Law “On the Treaty of Lisbon Amending the Treaty of European Union and the Treaty establishing the European Community” has been adopted in conformity with the procedures established in the Satversme of the Republic of Latvia and consequently complies with Article 101 (1) of the Satversme.

The Judgment is final and not subject to appeal.

The Judgment has been delivered on 7 April 2009.

The Presiding Judge G. Kūtris