Speech by the President Ineta Ziemele at the 7th International Scientific Conference of the University of Latvia Faculty of Law
Professor, PhD Ineta Ziemele
President of the Constitutional Court of the Republic of Latvia
Riga 18 October 2019
The Rule of law of today serving the European citizen[1]
Rule of law is a dynamic and not a static principle. Its scope and our understanding about this principle lies in its evolution along with the development of society. This evolution becomes obvious if one compares how this principle was understood in Europe in the 70’s of the last century with the contents that we attribute to this principle today.
Therefore, I will examine especially one aspect of this principle – iura novit curia. Namely the actual increase of the role of the judiciary in the largest possible meaning. My conviction is that the Courts have a role to play in securing trust in democratic institutions of the State and the European Union. This evolution has been stimulated by several factors, among them the demise of totalitarian regimes and institution of the constitutional courts. As you see we have gone a long way, the principle of the separation of powers as it was envisaged by Montesquieu in its idea remains the same, and yet we have developed it in many ways.
Consequently, I will address the following question: what has been the impact of the European integration on the principle of the Rule of law; and especially what are the consequences for the citizens of the Member states from the direct and immediate applicability of the legal rules deriving from the Treaties (Van Gen den Loos), which may not be altered by a reference to the national legal norms (Costa v ENEL).
Iura novit curia
Nowadays the Rule of law is defined by the ability of a judge to realize its functions in the best possible manner.
In order to understand the contours of the modern rule of law, we should ask what should be the qualities of any judge in the EU Member states. This is why we should turn ourselves towards the principle of iura novit curia which simply means that the court knows the law. What is the significance of this principle today? Can we understand this principle as covering the situation where a Latvian court stills its proceedings and refers a question to the Constitutional court or to the Court of Justice of the European Union? Is this modern possibility provided by the Latvian legal system should be seen as an exception from the iura novit curia principle, or, quite on the contrary, these procedural possibilities form the actual scope of the iura novit curia principle?
According to this principle, which we have inherited from the Roman law – iura novit curia allows a judge to look at the law as something already known and familiar. It is the proper of the judicial function to explain the meaning of the law at given place and time. Yet a judge may not avoid to raise the question: what is law? A question which doesn’t have one simple answer. I endorse the view that the law follows a continuous development, in the same way as the human society since each individual has a natural inclination to improve herself. These developments require that we ask a question whether the new idea, achievement or the social relations resulting from them ask for a legal definition. Normally the legal definition is provided by the legislator, but it may be provided by a court as well [2]. This shows the difficulty to sustain a static understanding of the iura novit curia principle, according to which the statutory law rules which have already been defined is there to stay and the court knows them. Scholars have indicated that by saying iura novit curia we don’t mean anymore that “the court knows the law”, instead the courts decide on what is law in a dialogue. Therefore, today this principle may be expressed as – “iura iudicat curia”.[3]
In Latvia as EU Member state the legal relations exist not only within the Latvian legal system, but also within the EU legal system and in interaction with the global legal rules. Our Constitution reflects this reality in its article 68: „Upon entering into international agreements, Latvia, with the purpose of strengthening democracy, may delegate a part of its State institution competencies to international institutions. The Parliament may ratify international agreements in which a part of State institution competencies are delegated to international institutions in sittings in which at least two-thirds of the members of the Parliament participate, and a two-thirds majority vote of the members present is necessary for ratification.” Therefore, I will examine more in detail the sources and justifications how the EU law must be observed in Latvia.
EU law must be observed
The primary justification why the EU law is binding in Latvia lies in our Constitution. According to the aforementioned Article 68 of the Constitution the European treaties have become a legal source in the Latvian legal system. As a matter of fact, in the eyes of our Constitution a treaty is the outcome of legislative process in the same way as laws in the sense of article 64 of the Constitution. Treaties determine the rights and obligations in the territory of Latvia in the same manner as any statutory law.
Admittedly, derived EU law is not directly mentioned in the Constitution. Nevertheless, there is a wide consensus amongst the scholars that the Accession treaty is the legal basis of the validity in Latvia of all the norms which had entered in force before Latvia’s accession to the EU. Finally, treaty amendments and the norms adopted on their basis acquire legal force in Latvia according to the acceptation procedures provided by the Treaties.
I shall precise here that EU law as a source of law in the Member state’s legal system is to be viewed from two sides. On the on hand, from the EU point of view the primacy of EU law is a cornerstone principle of the Union law. Indeed, the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Union law and without the legal basis of the Union itself being called into question[4].
On the other hand, from the point of view of a national legal system, the EU law primacy is recognized provided that both systems are configurated as distinct and mutually autonomous, even if coordinated. For example, the EU law may not affect the immutable core of the Constitution. This hierarchical relationship between the national and EU legal systems is determined by the judge, who has the central role in this regard.
In Latvia this approach is provided under Article 15 of the Administrative procedure law. According to this article 15, none of the national law rules may be invoked to set aside the obligations deriving from the EU law, and yet at the same time this provision is the basis which allows the courts to verify whether the constitutional principles of the national system are respected. Indeed, if the national judge estimates that a given EU rule restricts the fundamental rights, separation of powers, or that it is adopted ultra vires, nothing in the national or EU legal system may prevent her to set aside the defective EU rule, after a preliminary reference to the Court of Justice [5].
EU law from the Constitutional Court’s perspective
When deciding a case with an EU element, the Court will look whether it is possible to read the rules of constitutional importance in such a way that they include the protections offered in the EU law. In other words, the EU law may serve as an indirect norm of reference to establish the scope of the fundamental rights provided in the Latvian bill of rights.
The advantage of this approach is that it allows to disseminate the European Union law in the Latvian legal order, without a need for a formal abrogation of the invalid national rule by the Parliament. The case where the Constitutional Court had to decide whether establishing a different rate of real estate tax in Riga for EU citizens originating from other Member states, it decided that the equality principle as it is enshrined in the Constitution should be read in the light of the prohibition of discrimination on grounds of nationality provided in the Treaty on the Functioning of the EU [6]. Similarly, in a case concerning principles of Value-Added Tax refund, the Constitutional court decided that the right to property is to be interpreted according to the EU principle of VAT neutrality[7]. Therefore, the constitution allows to protect the fundamental rights in a manner that includes the guarantees deriving from the EU law.
The previous obviously may not affect the Constitutional court’s jurisprudence in the so called Lisbon case, where it recalled that the EU law may not affect the basic principles of popular sovereignty and democratic republic.[8] At the same time, it should be recalled that already before Latvia joined the EU , the Constitutional court also judged that EU legal system requires that Member state is a democracy governed by the rule of law.[9]
Considering that the Constitutional court is “a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law”, in the sense of Article 267 paragraph 3 of the TFEU it “shall bring the matter before the Court [of Justice]”. It should be noted that until the first preliminary reference from the Constitutional court in 2017 neither the Constitutional Court Law, nor its Rules of Procedure did not regulate the referral to the Court of Justice of the European Union for a preliminary ruling. Therefore, the Constitutional Court established the procedure for this.[10]
Obviously not every case in the Constitutional court with an EU law element calls for a preliminary reference. If the solution of the case is clear, there is no need for an external advice, since – I repeat – iura novit curia – court knows the law.
In general, Latvian courts are rather active in making references for preliminary rulings. However, in the opinion of the Constitutional Court, they could use more actively the opportunity to submit an application to the Constitutional Court regarding the relationship between the Constitution and EU law. This is illustrated by the case of a child’s right to compensation following a road traffic accident in which both of his parents died. the Supreme court first submitted a preliminary reference to the Court of Justice (Drozdovs, C-277/12) [11] and subsequently it submitted an application before the Constitutional court.[12]
National judge as EU judge
Colleagues! Any national court is at the same time an EU court. This is explained by the structure of the EU legal system. The principle of mutual trust is the basis which holds the courts of the Member States together. This implies, inter alia, the recognition and enforcement of judgments of courts of other Member States as if they were not originating from a foreign jurisdiction. Latvian judges must therefore be aware that, through their rulings, they also give a first and general impression of the Latvian judicial system – and, accordingly, trust or distrust. Let us not forget that this is a unique situation throughout the world, where the judicial function which is normally exercised with sovereign prerogatives no longer stops at the borders of one country.
Latvian courts came into direct contact with the principle of mutual trust in the so called Avotiņš[13] case. There is no doubt that the principle of mutual trust ensures rapid and efficient administration of justice in most cases, but there are cases which may give rise to some concern.
However, the European Court of Human Rights in its judgment of 23 May 2016, expressed its reaction towards the EU mutual trust principle with the following words: “Limiting to exceptional cases the power of the State in which recognition is sought to review the observance of fundamental rights by the State of origin of the judgment could, in practice, run counter to the requirement imposed by the Convention according to which the court in the State addressed must at least be empowered to conduct a review commensurate with the gravity of any serious allegation of a violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient” (paragraph 114).
What should the Latvian courts decide facing this dilemma? First, it must be aware of it. Second, national, EU and Convention standards should be aligned as far as possible to avoid conflicts. One possible solution would be that Latvian ordre public requires to respect the human rights at least at the same level as provided in the ECHR. At the same time, it must be kept in mind that the Constitution may provide for even higher level of protection of human rights. Therefore, a mechanical application of EU law does not lead to a fair outcome and does not promote justice in Europe. We must not forget it is the EU citizen and the future European integration that lies at the heart of this. Judges play an extremely important role to play in this respect, in order to ensure that citizens’ rights, as derived from European law in the broad sense, are respected. Modern justice does not only contribute to build trust in contemporary democratic institutions within a single country, but it also enhances confidence in the European Union through law.
The quality of justice in a Member State is a matter of the European Union
The most recent case law of the Court of Justice of the European Union has strengthened the legal basis for the independence of the judicial systems of the Member States. National courts are part of the EU system of remedies in areas covered by EU law[14]. For any court to be able to provide such protection, first it must be independent[15].
Rule of law in the EU legal space today, which is also the Latvian legal space, should be seen not only from the point of view of independence of the judiciary, but also from the point of view of its efficiency. There is a basis for the thesis that modern justice is independent if it is capable of covering the qualitative aspects of the development of European and global law.
As a consequence, today’s debate on how the judiciary functions should be exercised today and what is a modern Rule of law is not merely an idea, but an obligation with a concrete content. That is to say, Latvia as EU Member State, and we – judges – as a court, we must give citizens the rights and protection that they derive from all the sources of law I have quoted so far. The quality of the Latvian court therefore is also is the quality of the EU courts.
Thus, the scope of the principle “judge knows the law” today includes the subtle application of national, EU and international law, striking the right balance to ensure that every EU citizen can fulfil herself within a democratic legal framework.
Finally, I would also like to emphasize the fact that every person living in Latvia has a role to play in strengthening modern rule of law in Latvia as an EU Member State and in the common EU legal space, since the Treaty on the Functioning of the European Union provides for an obligation to ensure uniform, effective and equivalent application of the EU law throughout the EU. Concretely this means that a Member state must provide for a procedure which enables for a person to claim damages for breaches of EU law. At present, the Constitutional Court has stated that the right to damages, inter alia, in connection with non-compliance with EU law, in claims based on the Constitutional complaints in relation to fair trial, shall be adjudicated in the courts of general jurisdiction.
However, the practice shows that there are not many such claims and that the Latvian citizens are not necessarily active in asking to defend their subjective rights under EU law. Whether this situation is in line with modern rule of law and whether there is something to be done in the area of legislation is one more of the many current research questions where national and at European law has a word to say.
[1] I’m grateful to Inguss Kalniņš and the Legal service of the Constitutional court for their help in discussing and gathering the research materials.
[2] Arndt A. Das rechtliche Gehör. Neue Juristische Wochenschrift, 1959, H.1, S. 6–7.
[3] Brüggemann J. Die richterliche Begründungspflicht. Verfassungsrechtliche Mindestanforderungen an die Begründung gerichtlicher Entscheidungen. Berlin: Duncker & Humblot, 1971, S. 161.
[4] Treaty on the Functioning of the European Union, Declaration No. 17 Concerning primacy, OJ C 115, 2008, p. 344.
[5] See as example, Court of Justice of the European Union, judgment, 8 April 2014, in Joined Cases C-293/12 and C-594/12, Digital Rights Ireland Ltd.
[6] Constitutional Court of Latvia, Judgment, 29.06.2018., case no 2017-28-0306.
[7] Constitutional Court of Latvia, Judgment, 11.04.2018., case no. 2017-12-01.
[8] Constitutional Court of Latvia, Judgment, 7.04.2009., case no. 2008-35-01.
[9] Constitutional Court of Latvia, Judgment, 5.03.2003., case no. 2002-18-01 (para 13).
[10] Report on the Work of the constitutional Court of the republic of Latvia in 2017, p 29.
[11] Court of Justice of the European Union, Judgment, 24 October 2013, C-277/12, Vitālijs Drozdovs/Baltikums AAS.
[12] Constitutional Court of Latvia, Judgment, 29.12.2014., case no. 2014-06-03.
[13] European Court of Human Rights, Judgment, 23 May 2016, Avotiņš pret Latviju.
[14] “the fields covered by Union law” – should be interpreted in the broadest possible manner, see Court of Justice of the European Union, opinion of Advocate General Tanchev, 27 June 2019, in Joined cases C‑585/18, C‑624/18 and C‑625/18, A.K. v Krajowa Rada Sądownictwa and CP (C‑624/18) DO (C‑625/18)V Sąd Najwyższy (C‑624/18 and C‑625/18), para 87.
[15] Court of Justice of the European Union, Judgment, 24 June 2019, C-619/18, European Commission v Republic of Poland, para 57.