The Role of Constitutional Courts in Reconciling the Application of European Union and International Law with the Constitutional Identity
Contribution by Mr Aldis Laviņš, President of the Constitutional Court of the Republic of Latvia
Conference “The Contribution of Constitutional Courts in Protecting and Strengthening Fundamental Values of Democracy, Rule of Law, and Fundamental Human Rights and Freedoms”
organised by the Constitutional Court of the Republic of Kosovo in Pristina.
Distinguished Colleagues!
On behalf of the Latvian Constitutional Court, I am honoured to congratulate your highly respected Court on anniversary of the establishment!
I would like to start my short presentation by empathising that at the end of last year, Kosovo submitted an application for the European Union membership. This is a very inspiring milestone for us, because the Constitutional Court of Latvia is strongly supporting the path of Kosovo to the European Union. We are committed to intensify our mutual dialogue to foster integration of the legal system of Kosovo in a united European legal space.
Therefore, today, in the session on the role of Constitutional Courts in strengthening the values of democracy and rule of law, I would like to focus on how to protect these values in practice, being a part of a united European family. The subjects of abstract constitutional control submit an application to the Constitutional Court to safeguard public interests, and that is why courts often examine so-called “values cases” within the framework of such a mechanism.
It is well known that European Union is based on values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. In a similar way, the European Court of Human Rights has referred to “values of equality, diversity and pluralism” that underly the Convention system. It appears safe to say, that the values underlying both European systems – the European Union and the Council of Europe – are similar, if not identical.
At the same time the European Court of Human Rights accepts national particularities and allows for margin of appreciation in complying with the Convention rights, and the European Union even protects national identities in Article 4(2) of the Treaty on European Union. As the Priest at St. Teresa’s Cathedral said yesterday, “If roots are denied, we are no one”. That’s why European common values also emphasize the importance of Member State’s origins and heritage in shaping their identity.
It is self-evident that there should not exist a conflict between the shared European values and profound constitutional identities of Member States. In the last decade, there have been extensive discussions in Latvia about the core of the Constitution. Thus, it is recognized in Latvia that there are general constitutional values, such as the rule of law, protection of the national language, protection of the fundamental rights among others. These values allow the Republic of Latvia to exist as a nation. Thus, not everything provided under the Constitution would automatically or instantly become the national constitutional identity. I will not elaborate on this issue due to time limit, instead I will provide you with a recent example how to reconcile constitutional identities of Member States with the shared European values!
In a recent preliminary procedure (so-called Cilēvičs e.a. case) the Latvian Constitutional court asked the European Court of Justice, whether the protection of the State language, which in Latvia is understood as a manifestation of national identity, may justify restriction on the freedom of establishment within the European Union Member States. The case concerned a very strict limitation upon the higher education institutions to offer courses of study in foreign languages. In the application, submitted by twenty members of the Parliament, it was held that the contested provisions restrict the fundamental rights to private property – as they entail restrictions on the freedom of establishment of citizens and companies originating from Member States of the European Union. Contested provisions make it more difficult for certain undertakings established abroad to relocate to Latvia or to open some other place of business in Latvia. Applicants correctly point out, in so far as educational courses have to be provided (almost exclusively) in Latvian, many foreign higher education institutions will be unable to use a (probably significant) part of their administrative and teaching staff in Latvia.
The Court of Justice ruled, that European Union law must be interpreted as not precluding legislation of a Member State which, in principle, obliges higher education institutions to provide teaching solely in the official language of that Member State, in so far as such legislation is justified on grounds related to the protection of its national identity, and provided that it is necessary and proportionate to the protection of the pursued aim of national identity.
Thus, the Court of Justice in principle confirmed that the protection of the national language may be based on a system of protection which is different from that adopted by other Member States. Taking this into account, the Constitutional Court concluded that the benefit of Latvian society from the restriction of the fundamental rights of foreign entrepreneur outweighs the adverse consequences that private higher education institutions incur due to the restriction of their fundamental right, namely, the right to conduct commercial activity.
Thus, we are allowed to be assured that in their absolute majority the value cases allow to conciliate the national constitutional identity with the supra-national obligations.
Dear Colleagues!
Constitutional identities and shared European values are the “immutable cores” of the three legal systems, which unite us in protecting Democracy and Rule of Law, not divide us!