–   The level of abstraction fit for a European restatement on this matter (1)

–   The structuring of the different institutions in a conceptual and regulatory framework (2)

–   The relationship between the specific rules for personal security and general contract law in the proposed Draft Common Frame of Reference ^*2 (3)

–   The rules applicable to provision of proprietary security by a third party (4)

1. General problems of harmonisation

The draft common frame of reference tends to formulate rules as much as possible on a general level, and this is clearly also true in the field of personal security. As we will see, many questions are already dealt with in general terms in Book II, on contracts and juridical acts in general, or in Book III, on obligations in general. Further, within the field of personal security, matters are regulated basically for two broad categories of personal security, dependent and independent personal security, with even a substantial general part for both of them.

Is this tendency merely a revival of the Pandectist temptation, as some opponents have cried, reducing the Pandektenschule further unjustly to mere Begriffsjurisprudenz? There are some objective elements explaining and probably also justifying this style. I would like to mention four. All four were to some extent — and mutatis mutandis — also present in the context of 19^th-century Germany.

1)  The lasting importance of freedom of contract, allowing private parties to create new forms or variations of contractual relationships, including personal security. There is no numerus clausus of nominate contracts. This obliges the legislator to use general categories.

2)  The growing pressure of the equality principle as a principle of good legislation. Differences in rules have to be justified. Thus, even more than in Germany, private law is weekly under scrutiny by the Belgian Constitutional Court and private law rules are regularly declared unconstitutional because there is not sufficient justification for differences between comparable situations.

3)  The transnational character, which imposes pressure to use categories in which more specific national institutions can be classified.

4)  Ockham’s razor: where the rule is the same, it is not rational to repeat it many times.

On the other hand, the criticism addressed to such general rules is known also, the well‑founded as well as the unfounded criticism. On the one hand, the arguments criticising the intellectual level of abstraction are an expression of laziness. But the arguments criticising the societal level of abstraction, rules abstracted from the concrete societal contexts they regulate, have to be taken seriously. However, this has to be done by providing compensatory mechanisms with an equally general playing field, not pointillist measures.

I have strongly objected to putting ‘general principles’ in a legal code or DCFR, as these principles are always in competition, contradicting each other, and their balance can only be expressed in rules, not in principles themselves. It is the task of the rules to indicate in which circumstances one or another underlying principle prevails. ^*3 But this is not an objection against rules of a general character, as long as they are still rules — i.e., containing their conditions of application. It does not make sense to formulate large-scale principles and then add here and there some exceptions without reflection on the principles underlying such exceptions. The balance to be found, e.g., between parties’ autonomy and consumer protection is not a balance to be found only for very specific types of cases; it is a more general problem. Many rule-makers tend to formulate consumer protection rules too strictly (as to their field of application), allowing business parties to circumvent them too easily.

Thus any consumer protection legislation that has been drafted in terms of suretyship (Bürgschaft) alone is immediately circumvented by stipulating co-debtorship instead of suretyship in the strict sense, which necessitates ‘reparation statutes’ to broaden the field of application. We have seen this in Belgium, but it has not prevented the legislator from repeating the same mistake over and over again. The DCFR’s Book IV G has rightly chosen to formulate consumer protection for personal security in a general way, in Chapter 4.

By virtue of Article IVG–4:102 ^*4 , the rules on dependent personal security will apply to any personal security given by a consumer to a business ^*5 , thus converting independent personal security as well as co-debtorship for security purposes into dependent personal security (Bürgschaft). While co-debtorship for security purposes by a consumer is not explicitly excluded, it follows from Article IVG–4:102 that it too is converted into dependent personal security.

I will illustrate the general tendency in this draft more specifically by analysing two perspectives on the draft rules:

–   firstly, the general structure of the different types of personal security and how they fit into the law of obligations in general (2);

–   secondly, the relationship between the specific rules and general contract law (3).

2. Structure of personal security as a type of plurality of debtors

The basic idea in all cases of personal security is that there are at least three parties involved and that there is some form of plurality of debtors.

2.1. Dependent and independent security in general

In most legal traditions, the various forms of plurality of debtors can first of all be classified into the following three general categories:

1)  Co-debtors liable for the same obligation, either solidarily or jointly. A performing debtor performs an obligation, which is its ‘own’ obligation but not merely its own obligation. It is also someone else’s obligation, each of them having a ‘share’ to bear. These situations are in the DCFR governed by Book III, Chapter 4.

2)  A debtor liable for a debt that is the debt of someone else, the main debtor. The first mentioned has no ‘share’; internally the debt is apportioned solely to the main debtor. The main figure is the dependent personal security. This category encompasses, in my view, also the cases where a third party grants a proprietary security right to secure someone else’s debt (see also 4. below).

3)  Two debtors each liable for a different obligation. Their obligations are concurrent, not cumulative, and in the internal relationship the debt is apportioned to one of them while the other has no share to bear. One of the main figures is the independent personal security, in the DCFR governed by Book IV G, Chapter 3.

The ‘odd’ figure is the co-debtorship for security purposes, where the creditor stipulates that the personal security’s guarantor is nevertheless liable as a main debtor. The DCFR has not abolished this figure, except for B-to-C relationships.

The main difference between the second and third category above is evidently expressed by the words ‘dependent’ and ‘independent’. The obligation with the personal security is either dependent on or (wholly or partially) independent from the ‘valuta relationship’, the relationship between the creditor and the ‘main’ debtor (whose debt it primarily is). The word ‘independent’ is to be preferred over ‘abstract’, because the abstraction of their obligation describes the relationship to the internal relationship between the debtors, the ‘provision relationship’, and both types of personal security are in principle ‘abstract’ in that sense.

Figure: Dependent personal security

Figure: Independent personal security

2.2. Guarantee function and payment function

The different forms of plurality, or at least the second and third type, can, however, also be classified on the basis of another criterion, according to whether the addition of a debtor has first of all a security (guarantee) function or a payment function. A third possibility is that a new debtor is fully substituting for the old debtor, who is discharged (perfect or complete substitution of a debtor — see Article III–5:203 and 204 of the DCFR).

Leaving aside the last figure, wherein there is no longer a plurality of debtors, this brings us the four following categories of plurality of debtors other than simple co-debtorship.

The distinction between security instruments and payment instruments is not absolute, and intermediate figures are in principle possible. The whole matter is in a certain sense law of obligations in its purest form: the rules express the relation between the different party relationships involved. Nevertheless, it is possible for a legislator to, for reasons of consumer protection or more generally transparency for the market participants, introduce a certain Typenzwang or convert divergent figures into one of the pre‑established ones. The latter policy has indeed been followed in the DCFR for personal security provided by a consumer to a business.

2.3. Classification of the internal relationship

One can also classify the situations according to the intended effect in the internal relationship between the different debtors: is the performing party engaging itself to pay an existing debt toward the main debtor (solvendi causa), to obtain a claim for reimbursement and perhaps remuneration (credendi causa), or gratuitously (donandi causa)? This distinction does, however, only have an indirect effect on the obligation of the debtors towards the creditor and is therefore not used in the given scheme.

The internal relationship is, on the other hand, interesting from the standpoint of proprietary security, something that may seem curious at first sight. If the delegating debtor requests the delegated debtor to engage itself towards the creditor — especially by drawing a bill of exchange or a cheque —, in many national systems and some uniform laws this request amounts to a disposition of the right to performance that the delegating debtor has against the delegated debtor, a disposition in favour of the creditor. Where the delegated debtor is indeed becoming a debtor of the creditor, this does not matter very much, but where it doesn’t, the creditor has a proprietary security right in the delegator’s right against the delegated party.

2.4. Four basic types

Where do we find these four categories in the DCFR?

1. ‘Dependent’ obligations with a guarantee function : We find them mainly in the form of the dependent personal security in Book IV G, Chapters 2 and 4, discussed in more detail infra. The DCFR has rightly chosen functional and neutral terminology.

We also find them in the case of an incomplete substitution of debtor, where the old debtor has a similar function, in Article III–5:206 and 5:207. The remaining obligation of the old debtor certainly has a guarantee function, although it is not ‘dependent’ in the strict sense, as it was the original obligation. Article III–5:207 thus provides that

“(1) The effects of an incomplete substitution on defences and set-off are the same as the effects of a complete substitution.

(2) To the extent that the original debtor is not discharged, any personal or proprietary security provided for the performance of that debtor’s obligations is unaffected by the substitution.

(3) So far as not inconsistent with paragraphs (1) and (2) the liability of the original debtor is governed by the rules on the liability of a provider of dependent personal security with subsidiary liability.”

2. ‘Independent’ obligations with a guarantee function . We find them as “independent personal security” in Book IV G, Chapter 3, also discussed infra. Here again, the DCFR has rightly chosen functional and neutral terminology.

3. ‘Dependent’ obligations with a payment function . The third category is found in the delegatio solvendi where the obligation of the additional debtor is not independent in the sense of not being abstracted from the original or valuta relationship.

Figure: Dependent delegatio solvendi

This figure is not regulated by the DCFR but is in a certain sense the mirror image of the incomplete substitution of debtor of Article III–5:206. Where the creditor has accepted the delegation, it has to pursue performance from the delegated debtor in the first place and the original debtor is now merely a subsidiary debtor, although in the internal relationship between both debtors he has to bear the full obligation. The relationship between the creditor and its debtor will determine whether the creditor is obliged to accept a delegation of debt by its debtor to a delegated debtor. As long as the creditor neither accepts the delegation nor is bound to accept, the old debtor remains bound unconditionally and will be discharged only if the third party effectively pays for the account of the old debtor.

4. ‘Independent’ obligations with a payment function : The final category is, again, a delegatio solvendi, but it is one where the delegated debtor engages in an obligation that is not dependent upon the original obligation. The conditions under which the delegated debtor is bound (i.e., the modalities of his obligation) are a question of interpretation of his promise. This figure too is not regulated by the DCFR, although some aspects can be traced — e.g., in Article III–2:108 (2), which provides that “a creditor who accepts a cheque or other order to pay or a promise to pay is presumed to do so only on condition that it will be honoured. The creditor may not enforce the original obligation to pay unless the order or promise is not honoured”. Here, too, the ‘main’ debtor becomes a subsidiary debtor in the relationship with the creditor.

Figure: Independent delegatio solvendi

An example mentioned in the Comments to Book IV G is the letter of credit in a documentary credit.

Figure: Documentary credit

Other examples are the various payment instruments, such as credit cards, bills of exchange, and even simple money transfer. Some elements of these figures are governed by acquis rules, especially in the Payment Services Directive. That directive does not, however, elaborate on the basic infrastructure of payment instruments in the general law of obligations.

2.5. The main content of personal security

Dependent personal security and independent personal security differ from each other in the role the valuta relationship plays. More precisely, this follows from the different modes in which the terms of the obligation are determined:

1) In cases of independent security, the terms of the obligation are determined in principle by the contract with the creditor in itself, without reference to one or more secured obligations.

2) In the case of dependent security, the terms of the obligation are primarily limited in a double way:

–   by the extent of the obligations of the main debtor;

–   by the extent to which these obligations are ‘covered’ by the security (an extent that cannot be completely unlimited).

The notion of coverage combines these two cumulative limitations. Fortunately, the DCFR does not follow a certain tendency seen in the French and Belgian doctrine to see two different obligations on the side of the security, a so-called obligation de garantie and obligation de payement; there is only one obligation of the security, but the content of that single obligation is determined by the notion of coverage, which refers to covered obligations of the main debtor.

Apart from the limitation of coverage, the obligation can also be limited by other terms, such as a time for resort to the security (Article IVG–2:108) or other modes of extinction or modalities of the obligation of the security provider (e.g., its possible subsidiary character). As it would go against public policy for the obligation of the security to be able to increase indefinitely because the agreed coverage is ‘global’, the object of the obligation can by notice be limited to obligations that have arisen before the end of the notice period (see infra).

3. Relationship with the general law of contracts and obligations

National systems also differ in the extent to which they rely on general contract law and general law of obligations. In the DCFR, personal security is to a large extent governed by the general law of obligations.

3.1. Formation

Apart from slight precision in Article IVG–1:103 on creditor’s acceptance, there are no specific rules on formation or personal security in general. This corresponds to the general approach of the DCFR to specific contracts. In B-to-C contracts, however, writing and signature are required by Article IVG–4:104. In all other respects, the rules of Book II’s Chapter 4 apply (and some rules relating to formation found elsewhere, such as the rule in II–9:103 on the integration of terms not individually negotiated).

3.2. Pre-contractual information duties

The most important rule in this respect is a specific rule applicable when the security giver is a consumer, stated in Article IVG–4:103, paragraph 1:

“the creditor has a duty to explain to the intending security provider:

(a) the general effect of the intended security; and

(b) the special risks to which the security provider may according to the information accessible to the creditor be exposed in view of the financial situation of the debtor.”

In the general contract law, there is no corresponding rule. The specific articles on pre‑contractual information duties in the DCFR’s Book II, Chapter 3, including the general duty set forth in Article II–3:101, only apply to businesses supplying goods and services; thus, they do not apply to creditors stipulating a personal security. They will, on the other hand, apply to professional security givers such as banks, who do provide services when they provide personal security — depending on the circumstances, the service can be a service toward the creditor or toward the main debtor, or toward both. The more specific rules of Article II–3:102 ff. in any case will only apply if the security giver is providing a service to a consumer. A bank securing the right to payment of rent may have an information duty towards the landlord and/or the tenant, depending on their status as consumer. Given the content of these rules, however, they will only play a marginal role and probably only in the internal relationship between professional security giver and main debtor (as to their mutual obligations).

Apart from these, information duties can follow indirectly from the general rules on mistake and other defects of consent. Relevant here are only the cases of a defect of consent on the side of the security giver, especially mistake caused by the other party (by giving incorrect information) (II–7:201 (1) (b) (1)), a mistake known by or apparent to the other party and not disclosed (II–7:201 (1) (b) (2)), and consent induced through the fraudulent non-disclosure of information that good faith and fair dealing required the other party to disclose (II–7:205). The latter article in its third paragraph states criteria for information duties, which in my view belong rather more in a general article than in the fraud article alone. The paragraph states that

“regard should be had to all the circumstances, including:

(a) whether the party had special expertise;

(b) the cost to the party of acquiring the relevant information;

(c) whether the other party could reasonably acquire the information by other means; and

(d) the apparent importance of the information to the other party.”

These information duties apply to all parties, not merely creditors stipulating an obligation of a consumer. There clearly is a difference in the greater protection of consumers under Article IVG–4:103, paragraph 1:

–   In relation to consumers, the creditor who has information regarding the financial situation of the main debtor cannot hide behind the duty of the security giver to inform itself.

–   In relation to the content of the obligation, there is basically a duty to explain the effects to a consumer. This is corroborated by more specific duties following from other articles, especially Article IVG–4:105 (a): where no maximum amount is agreed upon with the consumer-security provider, the obligation of the security provider is necessarily limited to the value of the secured rights at the time the security becomes effective.

The absence of a more specific information duty for all contracts for personal security is obviously a compromise between the very different national laws; the complexity of the relationship made it more difficult to go forward in this part of the DCFR than, for example, in the part on services (Book IV C).

3.3. Validity: Defects of consent

Recent developments in the law on personal securities have to a large extent been focused on the area of defects of consent. The DCFR does not add many specific rules to the general rules in Book II, Chapter 7.

As to mistake and fraud, apart from the additional content of information duties (already mentioned), there is a slight difference following from Article IVG–4:103, paragraph 4, as the contract can be avoided at any time, whereas in general contract law notice must be given within a reasonable time, according to Article II–7:210. As to the general rules on mistake and fraud, attention must also be given to Article II–7:208:

–   Where the main debtor is guilty of fraud in relation to the conclusion of the security contract by the security provider, the security provider can avoid the security contract if the creditor knew or could reasonably be expected to have known of the facts (Article II–7:208 (2)).

–   Where the main debtor is, moreover, with the creditor’s assent involved in the making of the security contract, the causing of a mistake or fraud is attributed to the creditor itself, irrespective of that knowledge (Article II–7:208 (1)).

Important additions to the general rules are found in relation to abuse of circumstances or ‘unfair exploitation’. Article II–7:207 does not deal in itself with cases where the security provider is in a relationship of trust or dependency with the main debtor; it addresses only cases of such relationship with the creditor. Article IVG–4:103 thus gives a more specific rule for a relationship of trust or confidence between the consumer security provider and the main debtor: as soon as the creditor (being a business) knows or has reason to know that there is a significant risk that the security provider is not acting freely or with adequate information, the creditor must ascertain that the security provider has received independent advice and has enjoyed a period for reflection of at least five days. Where the issue is not merely knowledge of a significant risk but knowledge or constructive knowledge of an actual unfair exploitation of the security provider’s dependency, trust, or other weaknesses (improvidence, ignorance, or inexperience — see Article II–7:207 (1) (a)) by the main debtor, the general rule of II–7:207 iuncto II–7:208 (2) applies and the security provider can avoid the contract whether or not it is a B-to-C contract. Equally, where the main debtor is with the creditor’s assent involved in the making of the security contract, the unfair exploitation by the principal is attributed to the creditor itself, irrespective of such knowledge and irrespective of the business or consumer character (cf. Article II–7:208 (1)).

3.4. Withdrawal right in contracts negotiated away from business premises

The Book on personal security has no specific rules on withdrawal rights, as Article II–5:201 on contracts negotiated away from business premises explicitly also covers personal security granted by a consumer. The withdrawal period of 14 days starts when the contract is concluded and adequate notice of the withdrawal right is given; it ends one year after conclusion, even if such notice has not been given (see Article II–5:103).

3.5. Interpretation

As regards interpretation, here, too the general rules apply. Relevant are, i.a., the general rule of II–8:101, the rule of interpretation against the dominant party in II–8:103, and the preference for negotiated terms in II–8:104.

Book IV G adds a “presumption” for dependent personal security (rather than independent security or co-debtorship) in Article IVG–2:101, which can, however, also be understood as a default rule (in exactly the manner in which the non-subsidiary character outside B-to-C contracts, the non-global character, and the limitability of security not limited to specific obligations are default rules — see Articles IVG–2:105, IVG–2:102 (3), and IVG–2:109).

3.6. Contents and modalities of performance — ‘external’ relationship

Evidently, the main topic on which Book IV G takes over from the general law of contracts and obligations in Books II and III is the content of the contract, i.e., the rights and obligations arising out of the contract and their specific modalities.

Thus, Book IV G states as a default rule that personal security is dependent on the debtor’s obligation (IVG–2:101) and subject to all defences of the debtor (IVG–2:103), with the exception of some personal defences (Article IVG–2:102 (2) (a) to (c)); where the security is nevertheless an independent security, Chapter 3 contains more specific default rules.

Further, it contains, in essence, the following rules for dependent personal security:

–   The default rule that a dependent personal security covers only an existing right of the creditor against the debtor and only up to the value of the secured right at the time the security becomes effective plus the ancillary obligations of the debtor (Articles IVG–2:102 (3) and IVG–2:104 (1 and 2)) and that later agreements between the creditor and the main debtor do not extend that coverage or otherwise adversely affect the obligation of the security provider (see Article IVG–2:102 (4)).

–   A notification duty for the creditor in case of events of non-performance by the main debtor (Article IVG–2:107 (1)) and a more general annual notification duty of the creditor in B-to-C contracts (Article IVG–4:106).

–   A rule of interpretation when a time limit for resort to a security has been agreed upon (in Article IVG–2:108, a more specific rule when compared to the general rule on time-limited obligations in Article III–1:107).

–   Specific rules for the case in which a security is neither limited to cover specific obligations nor limited to cover obligations arising before an agreed time limit — namely, the limitability of the security via notice of (at least) three months (Article IVG–2:109). This rule replaces the general rule of Article III–1:109 (2) on continuous or periodic performances for an unlimited period of time, which requires merely a reasonable period of notice. In B-to-C contracts, any time limit of more than three years can be set by the consumer, given its possibility to limit the coverage to existing obligations by giving notice of at least three months (Article IVG–4:107).

–   Specific rules for the case wherein a global security has been agreed on (in derogation from IVG–2:102 (3 and 4)), such as the limitation to rights arising from contracts between the creditor and the main debtor (Article IVG–2:104 (3)), the necessity of a maximum amount in B-to-C contracts (Article IVG–4:105 (a)), and additional notification duties in certain cases of increase (Article IVG–2:107 (2)).

–   As a default rule outside B-to-C contracts: the solidarity between the security provider and the main debtor (Article IVG–2:105), but equally a rule in case subsidiary liability has been agreed upon (see Article IVG–2:106);

–   A duty of care of the creditor to maintain the security provider’s right to subrogation or recourse/reimbursement from the debtor (Article IVG–2:110).

In cases of independent personal security:

–   The contents of the obligation are determined not by the delimitation of ‘coverage’ given to obligations of the main debtor but by requirements for a demand for performance. The security provider can only invoke defences out of its own relationship with the creditor, including evidently that the demand does not comply with the terms of the obligation (Article IVG–3:103 (1 and 2)); this rule is restricted in cases of guarantees on first demand (Article IVG–3:104). The security provider cannot invoke defences from the relationship between the main debtor and the creditor, except where the creditor’s demand for performance is manifestly abusive or fraudulent (Article IVG–3:105).

–   There is also a rule of interpretation in cases where a time limit for resort to a security has been agreed upon (Article IVG–3:107).

–   There is a default rule on the time of performance (Article IVG–3:103 (3)).

These rules are not mandatory except in B-to-C contracts (which are always converted into dependent personal security). In other relationships, only the general limitations to freedom of contract apply, such as can be found in the chapter on validity (Book II, Chapter 7) and the rules on the duty of transparency in terms not individually negotiated (Article II–9:402), and on unfair terms (Article II–9:404 for contracts between non-business parties and II–9:405 for contracts between business parties). As Article II–9:406 (2) recalls, for contract terms drafted in plain and intelligible language, the unfairness test extends neither to the definition of the main subject matter of the contract nor to the adequacy of the price to be paid.

Some terms of the relationship arising out of contracts of personal security are determined by general rules of the law of obligations, such as the duty to act in accordance with good faith and fair dealing (Article III–1:103), the duty to co-operate for the performance of the obligations (Article III–1:104), the duty not to discriminate on forbidden grounds in the exercise of a right to performance (Article III–1:105), and the rules on the modalities of performance (Articles III–2:101 to III–2:109 and III–2:111 to III–2:113, except insofar as the more specific rules of IV G deviate from them ^*6 ).

3.7. Non-performance, remedies, and extinction

The specific part on personal security in Book IV G contains very few rules concerning non-performance of obligations or extinction. ^*7 Nearly all of the more specific rules on performance and non-performance relate to reduction of rights as a remedy for requirements for the parties, requirements that are, technically speaking, neither duties nor obligations but mere charges or Obliegenheiten. See, e.g., Article IVG–2:107 (4) concerning the remedy in cases of non-notification by the creditor, IVG–2:110 concerning the reduction of creditor’s rights for lack of care, and IVG–2:112 c.q. IVG–3:102 on the reduction of the security provider’s rights of recourse or subrogation in case of non-notification of the debtor by the security provider.

Evidently, in cases of dependent security, one has to distinguish clearly on the one hand the obligation of the main debtor, which is not as such an obligation of the security provider but merely an element determining (and fundamentally limiting) the content of the obligation of the security provider, and the obligation of the security provider in its own right: the secured obligation and the securing obligation, the obligation that may be covered, and the coverage of it by the securing obligation.

Thus, for example, one has to distinguish the interest due from the debtor on the secured obligation, which is covered by the obligation of the security provider as part of the secured right, and the interest due from the security provider itself because of its non- performance of its own obligation to pay once that obligation becomes due. The same can be said about costs of legal proceedings. Article IVG–2:104 determines which ancillary obligations of the main debtor are covered by the dependent security; the ancillary obligations of the security provider itself are determined by the general rules of Book III (as are those of the main debtor, unless more specific rules dependent on the type of relationship between the creditor and main debtor apply). Book IV G does not contain an explicit rule against unjust enrichment, but it should be clear that the creditor is not entitled to both types of interest for the same period of time.

3.8. Effects in the internal relationship

As to the internal relationship, the following specific rules are found:

–   For dependent security, the right of the security provider to request relief by the debtor (Article IVG–2:111).

–   Both for dependent and for independent security, the rights of the security provider after performance — namely, a right to reimbursement (recourse) and a subrogation in creditors’ rights (Article IVG–2:113), subject to some duties of the security provider such as notification of the (main) debtor before and/or after performance toward the creditor (Article IVG–2:112 for the case of dependent security and Article IVG–3:102 for independent security).

–   Rules concerning cases involving several security providers (IVG–1:105 to 1:107).

The corresponding figure would look as follows for the subrogatory claim.

In the subrogatory relationship, the main debtor can indeed invoke all exceptions arising from the original relationship with the creditor. As to the relationship between the subrogating creditor and the subrogated creditor, the debtor can, in principle, invoke it only in order to limit the subrogation to the amount of performance by the subrogating party.

As in the case of assignment, personal subrogation entails as much a transmission of property in a right as a change in the relationship with the debtor. The rules of the DCFR do not yet really distinguish these two aspects or spell out the specific rules. In my opinion, this means that the rules on assignment must be applied with appropriate adaptations. I have discussed them in another article. ^*8

Although Article IVG–4:102 seems to imply that these rules too are mandatory in cases of personal security of a consumer toward a business, I doubt that this interpretation is correct. The internal relationship is not governed by the contract between the security provider and the creditor, and these rules are therefore default rules, which can be modified as far as this can be done validly on the basis of the internal relationship itself.

3.9. Rules on plurality of debtors

Article IVG–1:108 provides for the subsidiary application of the rules on solidary debtors from Book III, Chapter 4 — namely, Article III–4:107 and III–4:112. The other rules on plurality of debtors will further apply in cases of co-debtorship for security purposes (Article IVG–1:104). III–4:107 deals with the subrogation of the co-debtor who has performed and the associated right of recourse. These rules thus apply to co-debtorship for security purposes and subsidiarily to dependent and independent personal security, where Article IVG–2:113 primarily governs the matter. Formulated for dependent security, IVG–2:113 applies “with appropriate adaptations” in the case of independent securities (IVG–3:109).

However, it seems as if time constraints have prevented co-ordination between these different articles. In essence, III–4:107 and IVG–2:113 say the same thing in rather different words. IVG–2:113 is more detailed and precise than is III–4:107, which is still the PECL rule, drafted before the matter was considered in greater detail by the security group and not revised since. In each of these articles, we have two concurrent remedies (IVG–2:113 (1) in fine also uses the word ‘concurrent’ explicitly); they are the same in essence but have different names:

–   The remedy of subrogation is called subrogation in IVG–2:113 but not in III–4:107.

–   The remedy based upon the internal relationship (a kind of enrichment remedy) is called recourse in the one and reimbursement in the other.

The priority for the old creditor in the case of partial performance is spelled out in both, in different words. Thus, some co-ordinating work remains to be done.

4. Proprietary security by a third party

Proprietary security by a third party that is not the main debtor is, in my view, also personal security. In the DCFR, the transfer of property and constitution of limited property rights are not abstract but causal. Creation of the proprietary security right thus requires an obligation of the third party to grant this right. Such an obligation is certainly an obligation to secure a right to performance of the main debtor. In that sense it is a form of personal security, even if it would not fall under the three categories defined for personal security. It follows from Article IVG–1:102 that the notion of personal security is not necessarily restricted to these three categories. But I understand the definition of ‘dependent personal security’ in this way as, in fact, covering these security rights, even if the obligation to grant the right is due before the performance of the secured obligation is due.

The question is relevant, i.a., for the application of Article IVG–4:103. If proprietary security by a third party is included, the creditor’s pre-contractual duties provided by that article also apply in relation to a consumer-grantor, which is perfectly reasonable. We should not allow creditors to circumvent the protection of consumer sureties by demanding, instead of an obligation of liability with all one’s assets, the granting of security rights over all or nearly all assets.

Notes:

^*1 Presented in German as “Die Harmonisierung der persönlichen Sicherheiten in Europa (Garantien / Bürgschaften), Tagung “Europäisches Kreditsicherungsrecht” zu Ehren von Prof. Dr. Dr. h.c. mult. Ulrich Drobnig aus Anlass seines 80. Geburtstags, Hamburg, 12 December 2008.

^*2 The complete draft is published as Principles, Definitions and Model Rules of European Private Law — Draft Common Frame of Reference (DCFR), edited by Christian von Bar, Eric Clive and Hans Schulte-Nölke and Hugh Beale, Johnny Herre, Jérôme Huet, Peter Schlechtriem†, Matthias Storme, Stephen Swann, Paul Varul, Anna Veneziano and Fryderyk Zoll, in an Outline edition, Sellier 2009 and a full edition later in 2009. Part IV G of the DCFR is in essence the book Personal Security written by Prof. Ulrich Drobnig, published in 2007 in the series Principles of European Law (Study Group on a European Civil Code), with some modifications due to its integration in the whole of the DCFR.

^*3 M. E. Storme “Une question de principe(s)? Réponse à quelques critiques à l’égard du projet provisoire de “Cadre commun de référence”, Konferenz “The Draft Common Frame of Reference”, European Legal Academy / Europäische Rechtsakademie Trier 6–7 März 2008,  9. ERA-Forum 2008 Supplement 1, p. S. 65–77. Available at http://webh01.ua.ac.be/storme/ERA-ForumTrier2008.pdf.

^*4 For the sake of clarity, the conversion of independent security is explicitly provided for in Article IVG–4:105 (c).

^*5 With the exception of security providers able to exercise substantial influence upon the debtor where the debtor is not a natural person (Article IV.G–4:101 (2) (b)).

^*6 E.g., in case of subsidiary liability of the security provider (Article IVG–2:106), or in case of independent personal security (Article IVG–3:103 or IVG–3:104).

^*7 Apart from the rule of interpretation where a time limit for resort to a security has been agreed (Article IVG–2:108 for dependent security c.q. IVG–3:107 for independent security, a more specific rule compared to the general rule on time-limited obligations in Article III–1:107).

^*8 M. E. Storme. The Structure of the Law on Multiparty-situations in the Draft Common Frame of Reference. – Juridica International 2008 (14), pp. 78–88. Available at http://www.storme.eu/ji_08_1_78.pdf.

The time between the two World Wars is of special significance in the history of Estonia: for the first time, the country enjoyed sovereignty, and a parliamentary democracy was established. ^*2 Developing a legal order for our own state and drafting new legislation became undoubtedly one of the priorities in the Republic of Estonia, which was born in 1918. Until the adoption of the new laws, the old ones remained in force, having been imposed in the Estonian and Livonian provinces during the tsarist regime (for example, the Baltic Private Law Act ^*3 with its special legislation such as town law, land law, statutes for peasants, and special regulations regarding the clergy), creating an obvious lack of uniformity from the point of view of the legal system. ^*4 Regrettably, drafting of legislation is a remarkably time-consuming process, and in the few years of independence this process was not completed in some areas of law. Also, the Baltic Private Law Act, on which the new Civil Code was based, and which relied heavily on Roman law and contained a great number of Latin terms, remained in force until the Soviet occupation in 1940. Albeit outdated in essence, the Civil Code formed one of the central elements in the juridical discourse.

At the outset of self-determination, great importance was attached to the Estonian language, which began to be used for legal studies, legislation, and practice of law in general. Consequently, in the interwar period, the Estonian legal language and the corresponding terminology developed, ousting the Russian and German languages, which had previously been used for legal purposes. ^*5

The concept of the relationship between language and nationality in modern society and the idea that each nation is unique, and that in order for a nation to survive, its language and culture must be preserved, stems from the 18^th-century German Sturm und Drang movement and echoes the ideas of the French Enlightenment. ^*6 This national and linguistic ideology was embraced by 19^th-century thinkers and sociologists who attempted to find an explanation for the national and linguistic conflicts in the Russian, Austro-Hungarian, and Turkish empires and therefore readily accepted the German national-linguistic model. Furthermore, this model proposed political rights and democracy through national independence. ^*7 These concepts and ideas were also mirrored in Estonia at the beginning of the 20^th century, when the Estonian language was definitely a component of national identity as well as a political object and resource, particularly in the early years of independence as legislation began to be prepared by lawyers and politicians who were of Estonian origin. ^*8

Therefore, the era examined in the present article is, on the one hand, a time when legal terminology in the native language was created and developed. On the other hand, in the territory of Estonia, for centuries laws had been applied whose origins can be detected in the legal history of Europe. Similarly, over the centuries, Latin vocabulary had become an integral part of legal language, having been developed on the basis of Roman law or legal sources from the Europe of the Middle Ages. Accurate and relevant usage of professional terms of foreign origin requires a basic knowledge of the structure of the foreign language concerned. At the beginning of the century and in the interwar period, Latin was a natural part of schooling in Estonia. ^*9 At university level, Latin was considered even more important. For instance, the students of the Faculty of Law at the University of Tartu were required to know enough Latin to be able to manage compulsory reading: Caesar’s Commentarii de Bello Gallico (‘Commentaries on the Gallic War’), Cicero’s speeches, Ovid’s Metamorphoses, and excerpts from the works of Horace and Livy. ^*10 At that time, Roman law was taught in two stages at Tartu: in the first year, the students became familiar with the history and sources of Roman law, and the second year focused on study of the system of Roman law. Knowledge of professional terminology in Latin was perfected in practical classes during those courses, as extracts from the ‘Institutes’ of Gaius and Justinian were read and translated. ^*11

Thus, against the background of, on the one hand, the desire and urgent need for the development of native terminology and, on the other, the European terminological tradition and the legislation implemented at that time, my research aims at investigating the role and importance of Latin terms in the new legal culture. How and to what extent did Estonian lawyers and jurists use Latin terms in their writing in the time between the two World Wars, and which particular Latin terms were used? The research material is constituted by the Latin legal terms detected in the Estonian-language juridical periodical Õigus (‘Law’) ^*12 published in 1920–1940. In comparison with other types of scholarly texts, such as course books, monographs, or dissertations on jurisprudence, the choice of a journal for this kind of terminological analysis has a clear advantage with regard to the topicality of its subject matter. Formally, periodicals are the most dynamic medium of law, reflecting the daily life of a particular legal culture. ^*13 In addition, the variety of the topics touched upon enables us to draw more specific conclusions about the usage of terms. At the beginning of the 20^th century, legal advice in the Estonian language was not widely accessible. Even though several legal course books compiled in Estonian were printed before World War II, material in Estonian about most areas of law was not available at that time.

The research method applied is quantitative and qualitative term analysis, which helps us to determine the total number of Latin terms used and the dynamic changes that occurred in the 20 years of publication of the periodical, as well as the number of distinct terms used in the articles published in the periodical, which in turn enables us to assess the knowledge of foreign terms of the jurists of the time. Analysis of the terms on the basis of the frequency of their occurrence additionally allows us to draw important conclusions about the range of subjects and the areas of law that required more frequent usage of Latin terms but simultaneously required more attention on the part of lawyers and were under close scrutiny in the juridical discourse.

2. Research material

The journal Õigus began to be published in October 1920. Even though Õigus was the first juridical periodical in the Republic of Estonia, it cannot be said to have been the very first journal in the Estonian language that contained text about legal matters. Since 1909, a few publications had already been printed in Estonian as newspaper supplements or separate periodicals in Tallinn, Tartu, and even St. Petersburg. ^*14 However, these attempts were short-lived and rarely produced more than two or three issues, because, as the editorial board wrote in the introduction to the first issue of Õigus, in 1920, “there existed no national courts, nor government, thus rendering it unnecessary to have a national juridical periodical. Besides, because of strict censorship, it was impossible to publish certain pieces that needed to be published. Therefore, it is understandable why no progress was made in this area. Nevertheless, the situation has changed radically since the establishment of our independent state.” ^*15

There was undoubtedly a need for primary legal information when the new state was created, and numerous questions arose pertaining to drafting and implementation of new laws. What is remarkable is that throughout its 20 years of publication, Õigus was the only juridical periodical to be published. This can be explained by the limited number of professional jurists in Estonia. Also later, after the Second World War and since the restoration of independence, there has usually been one legal journal at a time — e.g., Nõukogude Õigus (‘Soviet Law’) ^*16 during the Soviet era and at present Juridica. ^*17 Õigus was issued by the Association of Legal Scientists in Tartu, which had been formed only a few months prior to the release of the first issue. The editors and authors were professors from the University of Tartu, judges of the Supreme Court, well-known lawyers, and the Chancellor of Justice — the most active and renowned figures in the field of law in Estonia at the beginning of the 20^th century.

Õigus appeared for 20 years without interruption. The last issue was printed in March 1940, only a few months before Estonia was occupied by Soviet Russia. In total, 176 issues were published in 20 years. In both the first and the last year of its publication, only three issues appeared. From 1921 to 1928, eight issues of Õigus were published per year, on average ^*18 , and from 1929 onwards, as many as 10 issues per year. All in all, the research material comprises 7,266 pages and 624 articles.

Graph 1 shows that in the first 10 years of publication the capacity of the journal was 230 pages a year on average, increasing by half by the end of the decade — 352 pages in 1929. In the second decade of its publication, from 1930, the capacity doubled in comparison with that of the early years, reaching 480 pages on average. This was made possible by the improved economic situation of the publisher of the journal. Summarising the first decade of publication, the editorial board stated that in the beginning they had faced serious financial difficulties and even paying fees to the authors of articles had been problematic. Thanks to support from the state and private donors, the second half of the 1920s was financially more favourable, and also a solid base of subscribers had been built, enabling the publishers to increase the number of issues per year from eight to 10 in 1929. ^*19

Graph 1: Number of articles and pages in Õigus

Contrasting the number of pages and articles, we notice that, despite the significantly increased volume, the average number of articles remained the same — approximately 30 to 33 articles a year. Subsequently, the quality of the pieces improved in Õigus in the second half of its lifetime: gradually the articles written became longer and more detailed. While in the beginning it was necessary to deal with juridical issues that surfaced in everyday life and to print articles often containing reviews and summaries of new legislation, the later period also witnessed the publication of exhaustive research articles in addition to papers focusing on legislation. Thus in the 1930s Õigus published on its pages several studies that have found a firm place in the history of legal science in Estonia. By way of illustration, three most detailed and extensive pieces of writing about Old Estonia (i.e., the time before and around the introduction of Christianity) can be mentioned: an article published in two parts (in 1935 and 1936) discussed the agreements between the Estonians and foreign conquerors in the 13^th century, and an article published in 1937 concentrated on public assemblies in Old Estonia. All three articles were written by distinguished jurist Jüri Uluots, professor of the history of Estonian law at the University of Tartu and a politician. ^*20 In the context of the present study, not only do scholars find these articles interesting from the viewpoint of legal history, but they are also fascinated by the philological aspect of the pieces, because all three quoted extensively the original Heinrici Chronicon Lyvoniae ^*21 in Latin, which had been written in the 13^th century. Additionally, the use of those quotations is a sign of the author’s mastery of Latin: the translations provided by the author himself for many of the quotations demonstrate his good knowledge of the vocabulary of the Middle Ages, in which the meanings of terms may differ greatly from those applied in Roman law. References to such sources verify that the role of Latin in Õigus was not limited to a few practical legal terms; also lengthy citations from sources of legal history in Latin had their firm place in juridical argumentation.

Besides articles on legal science and commentaries on legislation, Õigus contained information about legal practice: each issue ended with a summary of the decisions made by the Supreme Court (Riigikohus). Once a year, a statistical review of the activities of different court instances in various towns in Estonia was printed (the number of cases heard, the number of cases settled, and the number of pending cases). In addition, some issues included summaries of the activities of the Parliament (Riigikogu), overviews of new legal literature in Estonia as well as abroad, reviews of international congresses and conventions, announcements and practical legal information, and summaries of the presentations of the speakers at the Õigusteadlaste päev (‘Day of the Jurists’) conferences. A great deal of attention is paid to introducing the legal affairs and legislation of the country’s closest neighbours — Finland, Latvia, and Soviet Russia — as well as other European countries, among them Poland, Hungary, Italy, Germany, and Belgium. In 1939, even an article about China’s new Civil Code was published. Latin terms are to be found in articles about all of these topics.

Next, the results of quantitative statistical analysis are presented. Besides the frequency of usage of Latin terms, terminological variety is considered, with examination of which different Latin terms occur in the articles in Õigus and in what relationship. The usage of Latin terms with regard to land ownership and the right of succession is handled separately because these issues, more than others, generated heated debate among the authors of Õigus and thus a great deal of associated vocabulary in Latin was included. Therefore, the question of why the topics mentioned were so popular on the pages of Õigus and which Latin terms the writers used to discuss them ought to be delved into.

3. Frequency of usage of Latin terms

In total, in 20 years Latin terms were used 5,791 times, while, on average, 32 Latin expressions per issue and nine Latin terms per article were employed. If we divide the number of pages by the number of terms, we can see that, on average, 0.8 expressions per page were used; i.e., the Latin language appears on almost every single page of Õigus. In comparison with the current usage of Latin legal terms, this is a remarkably large number. For instance, in Juridica, the only juridical journal in the time of regained independence, the average number of Latin terms in the 16 years of publication is 3–4 expressions per article. ^*22 In the articles in Soviet Law, only 0.2 Latin terms per article were used. ^*23

Graph 2: Latin terms in Õigus

Graph 2 illustrates the usage of Latin terminology in Õigus over the years. Looking at the total numbers, we clearly see a steady increase in the usage of Latin terms throughout the years of publication of the journal. There is a sharp difference between the first and last year of publication of Õigus — both in 1920 and 1940, only three issues were printed, but the usage of Latin expressions increased tenfold in 20 years, from 23 instances in the first year to 224 instances in the last year of publication. In the 1920s, the average number of Latin phrases used per year is 117, whereas by the end of the decade, in 1929, this number had tripled to 356. In the 1930s, 400 Latin terms were used in articles per year, and, again, the most noticeable increase appeared at the end of the decade, in 1939, when 655 Latin expressions were used.

The exponential increase in the usage of Latin terms in 1929–1931 (356 Latin expressions in 1929, 417 in 1930, and 373 in 1931), 1935–1936 (494 Latin expressions in 1935 and 541 in 1936), and 1939 (with 655 Latin expressions) can be explained by the topics analysed in those years: the greatest number of articles printed in the above‑mentioned years focused on civil law, whose historical connection with Roman law and terminology based on Latin justify more frequent use of phrases originating from Latin. The use of terminology in 1935 and 1936 was influenced by the drafts of the Civil Code prepared in those years, which naturally led to corresponding scholarly discussions. ^*24 By comparison, in 1935 also the new Penal Code was adopted ^*25 , which had already been drafted in 1925. In the issues of Õigus from 1935, and even earlier, articles about the Penal Code were printed, but this topic failed to elicit such a wide response as the preparation of the new Civil Code. The lack of interest expressed in the articles of Õigus in the new Penal Code can be explained by the fact that, even though it was not an exact copy of the old Penal Code that had been enforced under the tsarist regime, it was based on it and obviously the changes in the content were not extensive enough to prompt more specific arguments. Similarly, the adoption of the Penal Code did not bring about marked changes in the usage of Latin terms. In comparison with what is seen in the articles written about the Civil Code, Latin terms are very few in the pieces dealing with the Penal Code.

In 1939, three articles were published, with one in two parts discussing the history of the Estonian Bar Association and the other focusing on the so-called Law of Vigala — the regional special law for 18^th-century Estonian peasants. History is also typically an area in which the usage of Latin terms seems rather natural, since for centuries the law was developed on the basis of Latin and all major sources of our knowledge of Roman law are written in Latin.

However, considering the issues of Õigus in 1932 and 1937, in which the occurrence of Latin terms is clearly less frequent, we cannot very easily single out one particular cause for that: also in these years, articles about civil law and history were written, so such topics are not the only reason for resorting to Latin phrases. A common feature, though, is that in both years articles appeared that touched upon the legal orders of foreign states (e.g., Poland, Hungary, Latvia, and Italy), and apparently the authors’ lack of use of Latin is due to the descriptive nature of these pieces.

4. Terminological variety

4.1 The most frequent terms

While the total number of Latin terms in Õigus in its 20 years of publication was 5,791, the number of distinct terms used was1,342. This figure is surprising and is accounted for by a remarkable variety of Latin expressions. ^*26 Dividing the total number of terms by the number of distinct terms, we see that one and the same term occurs slightly more than four times per article on average. Nevertheless, it must be pointed out that the majority of terms have been used just once, and only 490 terms appear at least twice per article. There are 297 terms that occur at least three times and 167 terms that appear five or more times — hence the conspicuousness of the most recurrently used expressions in the material researched. The 10 most frequently found Latin legal terms in Õigus are laesio enormis, expressis verbis, ex officio, de lege ferenda, contra legem, ipso iure, detentor, detentio, in solidum, and praeter legem.

The term the reader encounters most often in the articles in Õigus is laesio enormis (‘gross disparity’), used 197 times. The term laesio enormis denotes the injury sustained by one of the parties to an onerous contract when he has been overreached by the other to the extent of more than half the value of the subject matter (e.g., when a vendor has not received half the value of the property sold, or the purchaser has paid more than double the value). In Õigus, the term laesio enormis enters the articles written by lawyers from 1930 and can be found in nine issues, in rather lengthy pieces of writing drawing attention to the shortcomings of the legislation imposed earlier in Estonia, in the Baltic Private Law Act. Analysing the development of this very term, the authors come to the conclusion in their articles that the legislation in force referring to laesio enormis ought to be amended or replaced in its entirety by a more specific regulation drafted along the lines of the German BGB.

The expressions next on the list of the most frequently used Latin terms — i.e., expressis verbis (‘explicitly’, with 118 occurrences), ex officio (meaning ‘by virtue of office or position’, with 72), de lege ferenda (‘desirable to establish according to the law’, 47), contra legem (‘contrary to the law’, 35), and ipso iure (‘by the law itself’, 34) — semantically belong to the general vocabulary of law, and they can be found equally in articles discussing all areas of law throughout the years of publication of the journal.

The next expressions on the list of the most frequently used terms were first printed in Õigus at the end of the 1920s in the articles about the right of obligation. Those terms are detentor (‘detainer’, 32) and detentio (‘detention’, 31), referring to holding a thing while having neither possession nor ownership thereof, nor the use of possessory remedies, and the term in solidum (‘for the whole’, 30) in the context of a joint obligation in full — if several co-obligants are bound in solidum, each is liable for full payment or performance, and the creditor may choose which of the obligants he will sue.

The next term in the order of frequency of usage, praeter legem (‘beyond the law’, 27), refers to norms not imposed as laws but supplementing the right defined in existing legislation within the given framework.

This term is typically used in combination with the above-mentioned phrase contra legem as well as intra legem (‘within the law’, 7), which denote regulations: a praeter legem regulation is a legal instrument that governs an area not regulated by legislation — i.e., a regulation that replaces or amends a law. The authors use the term ‘contra legem regulation’ to refer to an act that is essentially incompatible with formal law, and the term ‘intra legem regulation’ denotes an instrument specifying a law. All three of these terms are to be found in the journal throughout its 20 years of publication.

When we take a closer look at the phrases that follow the top 10 on the list of the most commonly used terms, we notice that they fall into two thematic groups: land ownership and the right of succession — these two matters are also among the most widely discussed problems throughout the issues of Õigus published over 20 years.

4.2. Succession

The issues of the right of succession were thoroughly discussed in the articles in Õigus because of the process of drafting of the Estonian Civil Code, which failed to be adopted before World War II, though. Consequently, until Soviet rule was imposed, the Baltic Private Law Act ^*27 (1864/1865) was in force. The Baltic Private Law Act, which in 1856–1864 had been codified by Friedrich Georg von Bunge, professor of provincial law at the University of Tartu ^*28 , and which had entered into force on 1 July 1865, contained, besides German general law, also a great number of rules of Roman law. ^*29 Now, in a new era, particularly after the adoption in 1920 of the act that abolished the nobility ^*30 , the right of succession in particular (and family law) in this legal act was rather problematic and outdated. As had the Baltic Private Law Act as a whole, these parts had been drafted in the interests of the landed gentry but were now taken as the basis of civil law to be applied to every citizen. As a result, the right of succession was one of the first subjects that the codification committee concentrated on, and in 1925 draft legislation of the Civil Code prepared by the Ministry of Courts was published. ^*31

The part of the new Civil Code concerning the right of succession was under active discussion in Õigus throughout its 20 years. The authors paid the most attention to the hereditas iacens as a legal person, the form and types of the will, the compulsory portion and the beneficiaries, and the scope of the liability of the heirs. The most commonly used Latin term related to the right of succession, hereditas iacens (‘resting inheritance’, with 23 occurrences), denotes succession that has been opened but where the inheritance has not been transferred to heirs. In the draft of the new Civil Code, the hereditas iacens was to be deemed a legal person, but the expediency of this provision was questioned in several articles, and it was suggested that it should be excluded. In this context, also the exclusion in the new law of transmissio hereditatis (‘transmission of the inheritance’, 10) and ius accrescendi (‘right of survivorship’, 10) of institutes, as well as a donatio mortis causa (‘gift in prospect of death’, 7) and cessio hereditatis (‘cession of an inheritance’, 6), originating from Roman law, was considered.

Other, more frequently used terms in articles about the right of succession were hereditatis petitio (‘petition of an inheritance’, 6), beneficium inventarii (‘benefit of inventory’, 5), beneficium separationis (‘right to have the goods of an heir separated from those of the testator in favour of creditors’, 4), successio singularis (‘singular succession’, 4), and successio universalis (‘universal succession’, 3).

The abundance of Latin terms in the articles in Õigus discussing these problems can be explained by the strong influence of Roman law on the right of succession in the Baltic Private Law Act. Also, it should be mentioned that, even though the Baltic Private Law Act remained in force practically throughout the first period of independence in Estonia, it failed to be translated into Estonian. Therefore, close study of the articles in Õigus gives the impression that Latin terms, in addition to conveying juridical notions, had to play an intermediary role in the communication between the two languages (German and Estonian) and provide the required specificity of concepts.

4.3. The Land Reform Act, real estate, and ownership relations

The fact that so much was written about land ownership and immovable property can be explained with the Land Reform Act. ^*32 At the very beginning of self-government, Estonia underwent a number of economic, social, and political reforms necessary for coming to terms with its new status as a sovereign state. Economically and socially, a radical land reform in 1919 was an important step in abolishing the previous feudal system. As expressed by then Prime Minister Otto Strandman ^*33 , the lack of land in Estonia had been a problem for centuries. The government considered it a priority that an opportunity to acquire and cultivate land be given to everyone who had the desire, courage, and strength to do so. ^*34 Hence, after reduction, or expropriation of manor estates belonging to the Baltic nobility, in many instances the main part of an estate remained in the possession of the former owners but the rest of a large estate holding was redistributed among the peasants and especially among volunteers in the Estonian War of Independence (1918–1920). According to § 21 of the Land Reform Act, the primary beneficiaries to receive land from the state were the individuals who had demonstrated remarkable bravery in the War of Independence, as well as the families of the soldiers who had fought and died in that war. As a result, more than 30,000 new farms were established. As expected, the land reform resulted in tenser relations between Estonia, on one hand, and Germany and other countries whose citizens had been large landowners in Estonia. ^*35

Thus a new legal situation had been created and, naturally, various problems with real estate and ownership relations arose in everyday life. Latin legal terms in the articles focusing on these topics vary from short one-word terms, such as fundus (meaning ‘land’, with 3 occurrences) and pignus (‘pledge’, with 1), to longer phrases of several words — for instance, citations from Roman law: illius fit aedificium, cuius et solum est ^*36 (‘the building belongs to the one who also owns the land’, 1) and qui ad certum tempus conducit, finito quoque tempore colonus est; intelligitur enim dominus, quum patitur colonum in fundo esse, ex intergo locare, et huius modi contractus, […] nudo consensu convalescunt ^*37 (‘the one who pays rent for the place for a certain period shall be the tenant also after the end of this period, for it shall be deemed the case that the owner, allowing the tenant to live on his land, continues to lease the place out and this type of contract […] shall be valid by mere consent’, 1), or the last citation from the Digests, modified: dominus non patitur colonum in fundo esse (‘the owner does not have to allow the tenant to be on his land’, 1).

In several articles, the authors discuss the divided property in Estonian towns (dominium divisum) — i.e., obrok or ground rent. The Latin terms used in such cases are dominium directum (‘strict ownership, the right of a landlord’, 2) and dominium utile (‘ownership of the soil itself, the right of a tenant’, 6). According to this form of ownership, real estate was first owned by the primary or direct owner, the dominus directus (four occurrences), and secondly owned by the dominus utilis (‘tenant or person who uses the property’, 5) who had the hereditary right to ground rent and the right of ownership of the buildings on the lot. The divided property institute was also observed in dealings with the new farms established as a result of the land reform  — the primary owner was the state, and the obrok tenant (asunik) had the right to use the property. It is not surprising, then, that the divided property principle, alien to ancient Roman law, created in the Middle Ages, and discarded in the process of developing modern private law, was adhered to in Estonia between the World Wars. It was conditioned, on the one hand, by the existing legislation pertaining to private law inherited from the Russian tsarist regime. At the same time, it was used to solve the regulatory problems that came with the new social reforms.

The basis of the hereditary right of obrok rent in the Baltic law was the Roman institute of emphyteusis. The term emphyteusis (used in the articles 20 times) denotes a contract by which a landed estate was leased to a tenant, either in perpetuity or for a long term, of many years, upon the reservation of annual rent and upon the condition that the tenant improve the property, by building, cultivating, or otherwise, and with a right vested in the tenant to alienate the estate or pass it to his heirs. Likewise, according to the Baltic law, two conditions had to be met for the hereditary right of obrok rent (as real right of use of another owner’s property) to apply: 1) use of another owner’s immovable property for an unspecified term and 2) paying the annual obrok rent in a specified amount. These two conditions set the right of obrok rent apart from a tenancy agreement and ususfructus (‘usufruct’, 7), which denotes a right to use of the profits by one person while the ownership belongs to another.

In the 1935 draft of the Civil Code, superficies (referring to building rights, right of superficies, 2), which had disappeared from private law in Western Europe, could again be found as a separate institute, also mostly derived from the Russian tsarist legislation, and this was reviewed in Õigus, too. A right of superficies could be given for only a specified term, no less than 36 and no more than 99 years, and it could be terminated upon the demand of the owner if the superficiary had not erected the required constructions within the specified term.

Together with the term condominium (‘co-ownership’, 10), there are expressions in the articles that denote forms of such limited ownership as hypotheca (‘obligation by which property of a debtor was made over to his creditor in security of his debt’, 1), usus (‘use’, 8),and habitatio (‘habitation or dwelling, right of free residence in another’s house’, 3).

The majority of Latin terms pertaining to the right of ownership and possession used by the authors in their articles in the corpus examined here originate from Roman law. On the one hand, this was conditioned by the reception of this area of law and application of the terminology in existing legislation — these institutions denoted by Latin terms had a legal basis in Estonian private law at the time in the form of the Baltic Private Law Act. On the other hand, the above-mentioned Latin terms, with their precision, conciseness, and clarity, are an attestation to the efficiency of the professional communication on the pages of the journal between the lawyers concerned.

5. Conclusions

The analysis of the articles published in the Estonian-language juridical journal Õigus in the interwar period reveals that, alongside the creation and development of legal terminology in the native language, expressions in Latin had a major role in Estonian legal language. In the 20 years of the journal’s publication, Latin terms were used approximately 5,800 times on its pages. This was an era that witnessed more extensive use of Latin terminology than any other period in the history of juridical journalism in Estonian. Also, the terminological variety of the vocabulary of the jurists was remarkable — more than 1,300 different Latin terms could be found in their writings. It ought to be emphasised that the common use of Latin terms did not minimise the importance of the effort put into introducing and expanding legal terminology in the native language; on the contrary, Latin phrases helped to increase and improve it, functioning as intermediaries between the two languages while the German and Russian legal languages were replaced by the Estonian legal language, and adding Latin terms to the new technical vocabulary in Estonian facilitated understanding of their meaning and scope.

The preconditions for the effective use of Latin terms were created by the educational achievements in the given period, which allowed the professionals not only to quote short technical terms consisting of a few words but also to cite the Digests of Justinian and sources in Latin originating from the Middle Ages. On the other hand, the use of Latin terms was conditioned by the legal environment, since between the two World Wars the government failed to adopt the new Civil Code and the Baltic Private Law was in force, relying largely on the norms of Roman law. The examples of the right of succession and land ownership illustrate well the occurrence of Latin terminology in such circumstances: not only are the Latin terms in the relevant articles a manifestation of the historical development of these areas of law, but they also stemmed directly from the legislation enforced. Thus, we come to the realisation that Latin terms used in the interwar period were an essential part of the active vocabulary of lawyers and a practical tool for jurists in the course of legal reforms when drafting, explaining, and assessing the new legislation.

Notes:

^*1 This article was published with support from ESF Grant 7923 .

^*2 About Estonian history in the period under scrutiny in this article: Z. Kiaupa, A. Mäesalu, A. Pajur, G. Straube. The History of the Baltic Countries. 3^rd, revised ed. Tallinn: Avita 2002, in particular, the chapter “The Baltic States 1914–1939”, pp. 129–164.

^*3 Provincialrecht der Ostseegouvernements. Dritter Theil. Privatrecht. Liv-, Est- und Curlaendisches Privatrecht. Zusammengestellt auf Befehl des Herrn und Kaisers Alexander II. St. Petersburg: Buchdruckerei der Zweiten Abtheilung Seiner Kaiserlichen Majestät Eigener Kanzlei 1864. More about the Baltic Private Law Act later in the article, in the context of land ownership and the right of succession .

^*4 More about the development of the legal order in Estonia, see T. Anepaio. Die rechtliche Entwicklung der baltischen Staaten 1918–1940. – Modernisierung durch Transfer zwischen den Weltkriegen. T. Giaro (Hrsg.). Frankfurt am Main: Vittorio Klostermann 2007, pp. 7–30; M. Luts-Sootak. Estland. – Handwörterbuch zur deutschen Rechtsgeschichte. Lfg. 6. (Eid-Familienfideikommiss). 2. Aufl. Berlin: Erich Schmidt Verlag 2007, p. 1430; P. Järvelaid. The Development of the Estonian Legal System. – Zeitschrift für Europäisches Privatrecht 2000 (8 Jhg.), pp. 873–877.

^*5 As a result of the work done on legal terminology in Estonian, “Õigusteaduse sõnastik” (Dictionary of Law) was published in 1934, compiled by F. Karlson, J. V. Veski, ed. E. Ilus. Tartu: Akadeemiline Kooperatiiv 1934 (in Estonian).

^*6 About this, see J. G. von Herder. Abhandlungen über den Ursprung der Sprache. Stuttgart: Reclam 2002, pp. 38–52.

^*7 M. Rannut, Ü. Rannut, A. Verschik. Keel, võim, ühiskond (Language, Power, Society). Tallinn: TPÜ Kirjastus 2003, pp. 44–47 (in Estonian).

^*8 A. Vettik, R. Kull. Tagasivaade eesti õigussõnavara kujunemisloole (1920–1940) (A Historical Overview of the Development of Estonian Legal Vocabulary (1920–1940)). Tallinn: Eesti Teaduste Akadeemia, Emakeele Selts 2002, p. 10 (in Estonian).

^*9 A good example would be the memoirs of E. Nurm, the author of several Latin grammars, who wrote about his school years and organisation of studies at a grammar school in Tallinn: E. Nurm. Mälestusi Tallinna Nikolai Gümnaasiumist 1907–1914 (Memoirs about Tallinn Nikolai Grammar School 1907–1914). – Keel ja Kirjandus 1981, pp. 300–309 (in Estonian).

^*10 The decision of the Faculty Council from 18.12.1923. Eesti Ajalooarhiiv (Estonian Historical Archives), 2100.10.17, pp. 28–29, 40–43.

^*11 H. Siimets-Gross. Die Lehre des römischen Rechts an der Universität Tartu in den Jahren 1919–1940. – Juristische Fakultäten und Juristen­ausbildung im Ostseeraum: zweiter Rechtshistorikertag im Ostseeraum, Lund 12.–17.03.2002. Stockholm: Rönnels Antikvariat AB 2005, pp. 343–347.

^*12 Juridical monthly Õigus, 1920–1940. Editor-in-chief F. Karlson; published by the Association of Legal Scientists in Tartu.

^*13 M. Stolleis. Juristische Zeitschriften – die neuen Medien des 18.–20. Jahrhunderts. – Juristische Zeitschriften. Die neuen Medien des 18.–20.Jahrhunderts. Ius Commune Sonderhefte, Studien zur Europäischen Rechtsgeschichte, 128. M. Stolleis (Hrsg.). Frankfurt a.M.: Klostermann 1999, p. XIV.

^*14 Prior to the journal Õigus the following Estonian-language periodicals had been published: Seadus ja Kohus: õigusteadline ajakiri. Peterburi Teataja kaasanne (1909, 1911, 1913); Pealinna Teataja kaasanne (1910) (Law and Court: juridical journal. Supplement to gazette Peterburi Teataja (1909, 1911, 1913); supplement to gazette Pealinna Teataja (1910)). Published by A. Einer, A. Vares, M. Jaakson; St. Petersburg 1909–1911, 1913; Õigus: õigusteadline ajakiri (Law: juridical journal). Ed. J. Reinthal, M. Pung. Tallinn: Ühiselu, 1912; Õigus ja Kohus: õigusteadusline ajakiri: Päevalehe, Aja, Koidu hinnata eralisa. (Justice and Court: juridical journal: free special supplement to Päevaleht, Aeg, Koit). Issued by B. Mäns, J. Luiga; Tallinn: Pert, 1912–1914; Õigus: Meie Aastasada, Sakala, Meie Kodumaa õigusteadline hinnata kaasanne (Law: free juridical supplement to Meie Aastasada, Sakala, Meie Kodumaa). Editor-in-chief K. Pikk, Tartu, 1913–1914; Õigus: õigusteadline lisa: Tallinna Teataja, Tallinna Uudiste, Meie elu, Peterburi Teataja, Tartu Päevalehe, Meie Aastasaja, Oleviku, Sakala, Meie Kodumaa hinnata lisa nr 1; Tallinna Teataja hinnata kaasanne nr 2 (Law: juridical supplement: free supplement No. 1 to Tallinna Teataja, Tallinna Uudised, Meie Elu, Peterburi Teataja, Tartu Päevaleht, Meie Aastasada, Sakala, Meie Kodumaa; free supplement No. 2 to Tallinna Teataja). Ed. A. Birk, Tallinn: Ühiselu, 1914; issues 1–2.

^*15 Editorial board of Õigus (in 1920: J. Lõo, N. Maim, R. Rägo). To the Readers. – Õigus 1920/1, p. 1.

^*16 Nõukogude Õigus/Soviet Law: Juridical Bulletin of the Ministry of Justice of Estonian SSR. Tallinn: Eesti NSV Justiitsministeerium, 1967–1989.

^*17 Juridica: University of Tartu Faculty of Law periodical. Editor-in-chief P. Varul. Tartu: Iuridicum Foundation, 1993–present.

^*18 In 1921 and 1928, several issues appeared as voluminous and thematically compiled editions containing for instance the presentations made at the conferences of the Association of Legal Scientists.

^*19 A. Mägi. Märkmeid Õiguse kümneaastase ilmumise puhul (Notes on 10 Years of Publication of Õigus). – Õigus 1931/3, pp. 126–132 (in Estonian).

^*20 J. Uluots (1890–1945) was many times a member of the parliament, Prime Minister in 1939–1940, and 1940–1945 Prime Minister in the capacity of the President. More about J. Uluots: K. Merusk. Sissejuhatus (Introduction), pp. 7–13; R. Ränk. Professor Jüri Uluots juristina ja ajaloolasena (Professor Jüri Uluots as a Lawyer and Historian), pp. 407–421. – Seaduse sünd: Eesti õiguse lugu (Birth of Law: The History of Estonian Legislation). Compiled by H. Runnel. Tartu: Ilmamaa 2004 (in Estoninan).

^*21 Heinrici Chronicon Lyvoniae. Ex recensione W. Arndt. Hannover: Hahn 1874.

^*22 More about the usage of Latin terms in juridical texts in re-independent Estonia, see M. Ristikivi. Lexica iuridica in Juridica: Latin Terms as a Reflection of Europanisation of Estonian Legal Culture. – Juridica International 2007 (12), p. 175.

^*23 About Latin terms in juridical articles in Estonian during the Soviet era, see M. Ristikivi. Terminological Turn as a Turn of Legal Culture. – Juridica International 2008 (15), p. 178.

^*24 In 1935 and 1936, special issues of Õigus were published, introducing the drafts of the Civil Code and its differences in comparison with the Baltic Private Law Act. More about this, see Õigus 1935/6 and Õigus 1936/7.

^*25 Kriminaalseadustik (Penal Code). Adopted on 26.03.1929. – RT 1929, 56 (in Estonian). Muudetud ja täiendatud Riigivanema poolt 19.09.1934 dekreedina antud Kriminaalseadustiku maksmapanemise seadusega (Amended and complemented by the Act of Enforcement of the Criminal Code issued on 19.09.1934 as a decree by the State Head). – RT 1934, 85 (in Estonian).

^*26 Such a considerable number of terms would be sufficient for an average glossary. A case in point is a glossary compiled by W. Schwab and R. Pagé „Les locutions latines et le droit positif québécois. Nomenclature des usages de la jurisprudence“ (Québec: Editeur officiel du Québec 1981). It consists of the Latin terms found in the documents concerning Québec court proceedings and contains approximately 700 juridical terms and phrases. In the Latin–Estonian Legal Dictionary compiled by K. Adomeit, H. Siimets-Gross, M. Ristikivi and printed in 2005 there are over 3,400 entries.

^*27 Provincialrecht der Ostseegouvernements. Dritter Theil. Privatrecht. Liv-, Est- und Curlaendisches Privatrecht. Zusammengestellt auf Befehl des Herrn und Kaisers Alexander II. St. Petersburg: Buchdruckerei der Zweiten Abtheilung Seiner Kaiserlichen Majestät Eigener Kanzlei 1864.

^*28 More about F. G. von Bunge (1802–1897) and his teaching of law, see M. Luts. Juhuslik ja isamaaline: F. G. von Bunge provintsiaalõigusteadus (Accidental and Patriotic: The Provincial Legal Science of F. G. von Bunge). Dissertationes iuridicae Universitatis Tartuensis, 3. Tartu: TÜ Kirjastus 2000 (in Estonian); by the same author, see also Tundmatu Friedrich Georg von Bunge (Unknown Friedrich Georg von Bunge), in a collection of publications by the Learned Estonian Society and the Faculty of Law of the University of Tartu. Tartu: Õpetatud Eesti Selts 2006 (in Estonian).

^*29 More about the role of Roman law in the Baltic Private Law Act, see H. Siimets-Gross. Roman Law in the Baltic Private Law Act — the Triumph of Roman Law in the Baltic Sea Provinces? – Juridica International 2007 (12), pp. 180–189.

^*30 Seisuste kaotamise seadus (Law on the Abolition of Nobility), 9.06.1920, adopted by the Estonian Constituent Assembly. – RT 1920, 129/130, 254 (in Estonian).

^*31 Tsiviil seadustik. Pärandusõigus (Civil Code. Succession). Tallinn 1925 (in Estonian).

^*32 Maareformi seadus. – RT 1919, 79/80 (in Estonian).

^*33 O. Strandman (1875–1941) was Estonian politician and diplomat, Prime Minister in 1919 and State Head in 1929–1931. More about O.  Strandman, see H. Tuulik, J. Valge. Otto Strandman 1875–1941. – Looming 1989/7, pp. 963–973 (in Estonian).

^*34 O. Strandman’s speech to the Estonian Constituent Assembly at the reading of the Land Reform Act on 29 July 1919. Asutava Kogu II istungjärk. Protokollid Nr. 28–97 (2^nd session of the Constituent Assembly. Minutes Nos. 28–97). Tallinn 1920, columns 430–435. Ibid.: “Also politically we are compelled to wipe out the estate holdings, whether we like it or not. […] When we look at what kind of role large landowners have played in the life of our nation, we see that there is no other way. […] 5,000–6,000 individuals should not be allowed to have power over the whole country and its people. They should not be allowed to have the economic power […] to establish the political order and supremacy in this country to serve their own interests. This power should be taken from them and given to the people.”

^*35 E.g., compare G. von Rauch. Balti riikide ajalugu 1918–1940 (The History of the Baltic States 1918–1940). Tallinn: Detlar 1995, p. 48: “Already at the first reading of the Act, it was clearly stated […] that the purpose was to deprive the German gentry of their economic and political power. The German delegates had a specially difficult time in June and July 1919. The suggestion that a third of the utilised agricultural land of the large estates be given for a reasonable price to the state to be distributed as individual farms (asundustalud) was not even considered. The proposal made by the moderate parties to gradually reduce the large estates to the minimum was also rejected. […] As a result of numerous debates, the Expropriation Act was passed on 10 October 1919, with 63 votes in favour, nine votes against, and one remained undecided. However, in protest before voting the representatives of the Estonian National Party and the Christian Party had left. The expropriation of manor estates constituted the intervention by the state in ownership relations, which can be deemed a revolutionary measure.” Original book in German: Geschichte der baltischen Staaten 3. Aufl. München: Dt. Taschenbuch-Verlag 1990.

^*36 Gaius. Dig. 41.1.7.12.

^*37 Ulp. Dig. 19.2.14.

The history of private law in Germany in the first half of the 19^th century is well known for exhibiting a fascinating scientific awakening. Although there was little legislation, especially not many codifications, the scholars of the historic school of law (Historische Rechtsschule) with their thinking back to the tradition of the records laid the foundations for the modern system and dogmatics of legal doctrine that remain until today. In a way not imaginable today, the scientific doctrine formed the contemporary private law. But this well-known role of the literature as one of the main law-producing elements hides too easily the view of a second very important contribution to the modernisation of law: the jurisdiction of the courts. The following comments will show that the jurisdiction of the courts also played a large role in unifying the law and thus in the creation of supra-regional law. Therefore, this essay will focus on the activities of the most well-known German court of the first half of the 19^th century.

The Oberappellationsgericht (High Court of Appeal) of the four free cities that operated in Lübeck between 1820 and 1879 was the most esteemed court of its time. Founded because of German constitutional law in 1815 ^*1 , it was the third level of jurisdiction for mainly civil-law cases ^*2 from Hamburg, Frankfurt, Bremen, and Lübeck. But in 1869, 60% of the cases had to do with commercial law. ^*3 The members of the court were often well-known German legal scholars; in particular, the court presidents Georg Arnold Heise, Carl Georg von Wächter, and Johann Friedrich Kierulff were prominent jurists. ^*4 As judged by Bernhard Windscheid, the seat of the president of the court was as important as Savigny’s professorship in Berlin. ^*5 Rudolf von Jhering’s nice bon mot of Germany’s educated court confirms this positive picture. ^*6 The heyday of the court lasted until 1870 but came to an end with the foundation of the Bundesoberhandelsgericht in Leipzig. After having lost Frankfurt from its district in 1866, the court slowly but surely lost its jurisdiction and with the implementation of the reformatory laws (Reichsjustizgesetze) in 1879 it was dissolved and incorporated into the still existing Hanseatic Oberlandesgericht in Hamburg.

Suits under commercial law are of special interest for modern scholars for many reasons. Commercial law as a whole is known to have been one of the factors in the legal modernisation of the 19^th century. ^*7 Here there were possibilities of making law and solving problems independent from the stiff framework of Roman law. Therefore, many legal scholars, the so-called Germanists, found interest in commercial law. One speciality of maritime commercial law, with which the court had to deal much of the time, was that there was always a relationship with foreign law. The point of origin and the destination of a ship were in two different states. Hence questions arose about the areal and personal ambit of territorial rules of law. This was also a possible catalyst for unification of law, meaning the development of supra-regional legal provisions of commercial law beyond the ambit of rules of special law.

2. Case studies to maritime commercial law trials

In the following discussion, the legal practice of the Oberappellationsgericht will be illustrated by examining two case studies more closely.

2.1. The argument about spoilt southern fruit for Tallinn

The first of these cases was decided on 22 December 1831. As was the situation so often, it was about the loss of a shipload of cargo through rough weather conditions in winter. ^*8 In older times, it was generally not permitted to pass through the Baltic Sea between 11 November and 22 February. ^*9 Passage by sea in the 19^th century in December and January was no longer problematic legally, but it was still dangerous. In December 1828, skipper Peter Larsen of Lübeck signed a contract with Dietrich Gottlieb Witte to deliver some fruit from Lübeck to Tallinn. ^*10 The ship departed on New Year’s Eve from Travemünde for Estonia but returned on 15 January 1829 because the bad weather rendered it impossible to open the portholes. The crew feared that the fruit could go bad because of smoke and dust, and so they came back. The skipper asked his partner in the contract what he should do to keep the fruit fresh, but the latter just answered that he was only the forwarding agent and the bills of lading had already been transferred to Tallinn, so the skipper would have to decide what was best for keeping the fruit fresh. ^*11 When the skies grew lighter, the skipper opened the portholes and saw that the load had become wet and also that some boxes were so hot that one could not touch them with the bare hands. The steersman and the sailors made a formal statement about this, and the skipper demanded damages from his contract partner, Witte, to pay for his efforts to preserve the fruit.

In a seemingly harsh decision, the Oberappellationsgericht dismissed the claim completely but did refer the case back to the lower court to clarify further questions. ^*12 In its reasons for the judgement, the court, as in other cases, managed to direct all disputes back to questions under the general law of obligations. Thus the solution in this special case gained judicial transparency and generalisability at the same time. As a possible basis for claim, or ‘action’ in the terminology of Roman law, the court considered agency of necessity (negotiorum gestio) and the freight contract. Remarkably, the agency as a quasi-contract stood at the beginning and was therefore supposedly superior to the contract. ^*13 In a very brief decision, the court rejected reimbursement of expenses for two reasons. Firstly, the plaintiff’s contracting partner had been in Lübeck. He had had the possibility to come to Travemünde at any time and look after the fruit on his own — which he did not do. Secondly, Witte had said that the bills of lading had already been sent to Tallinn. Hence the Oberappellationsgericht concluded that Witte as principal obviously had no interest in saving the fruit. At this point in the reasons for the judgement comes a sentence as might be seen in a textbook: “Now no right can be gained from an agency against someone who himself has declared that he has no interest in the thing, that he does not want anything to do with it and thus abandons the thing.” ^*14 Dogmatically it stands out that the court did not differentiate between the question of whether the defendant actually was the agent — and thus whether the preservation of the southern fruit was agency by Witte — and the connected question of whether this was part of his intention. Both issues could be subsumed under the interest of the agency.

Only after rejecting the claim for reimbursement of expenses from negotiorum gestio did the court deal with the matter of contractual claim for payment. This again shows the willingness to find generalisable solutions that break out of limitations of the special law. In general, the court acknowledged the duty of the skipper to take the best possible care of the shipload in cases of emergency at sea and in the emergency harbour. This resulted from an analogy to a statute from Lübeck about the cooling of grain and the recovery of shiploads in the event of a shipwreck. ^*15 The intention to overcome the narrowness of the special law can be seen particularly well in the fact that, although the outcome was already clear, the reasoning for the judgement adds that the same also follows from the nature of a freight contract as a kind of lease contract (locatio conductio) in which the recipient has to apply the same amount of care to preserve the goods as a diligent head of household (paterfamilias). ^*16 The reference to the ‘nature of the thing’ as comes up in the judgement was a topos often used by Georg Arnold Heise even before his time as president of the Oberappellationsgericht of Lübeck. ^*17 He often used it as an argument in his later-to-be-printed lectures on commercial law ^*18 , which shows his apparent closeness to Savigny’s doctrine of sources of law. ^*19 With arguments such as these, the court left all the specialities of special law and maritime law behind and thus shifted the solution over to law of obligations only, here the discussion about rights and duties within the lease contract — the still unified type of contract known as locatio conductio. ^*20 Considering Roman law, the court stated that this kind of contract would normally grant reimbursement of expenses ^*21 but in this case the plaintiff had sued the wrong person.

After that, the Oberappellationsgericht examined whether the skipper could at least claim the agreed cartage or parts of it from the defendant if a coincidence concerning the skipper had kept him from finishing the promised tour. During this examination, the court prioritised a solution from Roman law, putting the relevant sources of special law second. Following the rules of Roman law, the court assumed that the contract had been annulled without the skipper being able to raise any claims against the defendant ^*22 , for the skipper had returned to his original port unsuccessfully. The return had been due to coincidence — namely, the bad weather conditions — and not on account of the fruit having gone bad. Had the skipper brought the spoilt fruit to Tallinn or had he berthed at a harbour on his route to Estonia, the situation might have been different. Now, however, the carrier could only be expected to adhere to the contract if the long stay in Travemünde for the necessary repairs was not to the disadvantage of the charterer. The court based this decision on Roman law ^*23 as well as on several rules of maritime law from the French Rôles d’Oléron ^*24 , the Dutch Vonnesse van Damme ^*25 , the Scandinavian maritime law from Visby ^*26 , and the Prussian law of the 18^th century. ^*27 Taking a single case as an example, the fruit transporter that had an accident, the court set up general rules for impossibility without fault in a mutual contract. ^*28 Along with this, it clarified where the boundary lay between delay without fault and complete impossibility. It was deemed impossibility when in the case of delay abiding by the contract leads to unreasonable disadvantages for the contracting party affected. By comparison, it seems a very harsh decision that the court denied the skipper even only some of the freight charges. Several maritime laws acknowledge this claim in principle ^*29 , but the court argued that the ship did not go ashore on its route but sailed back to Travemünde. At the end of the ruling, the conclusion come to is again affirmed with relative brevity by an analogy to law from Lübeck. ^*30 But the reference to special law at this point once more has no discrete relevance. This case is a distinct example of the court developing general dogmatic principles from seemingly very special problems. Therewith, the Oberappellationsgericht with its manner of reasoning in its judgements contributed considerably to the unification of law, because the rules of special law were adapted to achieve respectively greater coherence. ^*31 The reasoning in this case of impossibility and duties within a lease contract shows how the court administered justice beyond maritime commercial law in the main areas of the general law of obligations. ^*32

2.2. The confiscation of the Dora in Tallinn

A second example shows a very similar method of solving legal problems. The circumstances are like many other cases the Oberappellationsgericht of the four free German cities had to deal with many times: the fate of the Dora. In 1817, the skipper of this ship, one Hasse, sailed from Lübeck to Tallinn. A manifesto on the import and export trade of the Russian Empire from 19/31 December 1810 ordered that all imported goods had to have a bill of lading attached that declared the quality and quantity of the goods. Furthermore, anonymous import was forbidden. This meant that every time no recipient came forward, the skipper was seen as the owner of the freight and was held responsible for the non-cleared load. ^*33 Therefore, a limitation of imports existed for Russia and thus also for the Baltic provinces in order to inhibit trading companies, shipping companies, and skippers from violating Russian customs regulations. Hasse knew of this statute, because in 1815 he had been caught in violation of the manifesto from 1810 and had just managed to flee Estonia. Two years later, he did not have as much luck. The Russian authorities confiscated the ship along with its load belonging to 13 different trading houses, with the accusation of Hasse having carried along loads that were to be brought to the Baltic provinces in secret. Hasse was taken into custody and died imprisoned in Tallinn. The skipper’s widow and the shipping company took some of the merchants who had sent non-cleared goods to Tallinn to court for compensation.

The Oberappellationsgericht in Lübeck dealt with this case for the first time from December 1821. The parties did not agree about whether, on the one hand, the skipper had known that he had been transporting non-cleared goods and, on the other, whether the consignors had had knowledge that the import of such goods to Russia was forbidden. The City Court of Lübeck had delivered a judgement of proof, against which the consignors appealed. The parties’ as well as the court’s juristic argumentation shows an enormous level of juridical debate and demonstrates in this particular case why one could speak of this court as Germany’s educated court. ^*34 Throughout all written pleadings, one can detect the aim of generalising the argument about the ship and entering into a cardinal clarification of legal questions of international maritime law. The sentences formulated contain confessions of position on legal essentials of great range. In this manner the counsel for the defendants argued: “The law that through the declared will of the head of state receives its sanction and binding force is applied to the subjects of that state, and only for these as a regulation by which the free actions of the subjects are to be adapted and judged.” ^*35 Also regarded as temporal subjects are merchants who stay in the country only for a short time, as strangers. It follows in consequence that a skipper or a carter who in accordance with a freight contract travelled abroad became a temporal subject of that country, and thus had to observe the local laws and also endure the local punishments when having violated the laws. ^*36 In contrast, this should not apply to those merchants who lived in Germany rather than in the state of the prohibition act: “The merchant who makes [the import regulations] subject to his actions does not trespass against laws that are binding for him, because he is only subject to the law of his state, and there exists no absolute duty for him to let his exercise of acts that are in themselves rightful be constrained by the will of an alien sovereign [...], and if the preacher of morality demurs, the jurist calls out to him that all is allowed that has not been forbidden in the state.” ^*37 This was a clear confession to a liberal view on freedom of action that could only be constrained by domestic laws. The distinction between law and moral in this almost declamatory argumentation had the purpose of claiming abidance by the laws even when it might clash with widespread moral attitudes. Some years later, Rudolf von Jhering referred to such maxims almost directly. ^*38 The practical consequence was a totally different distribution of risks between merchant and skipper. The merchant who sent his goods abroad only risked having his goods confiscated, whereas the skipper had to fear personal disadvantages, as the prohibition acts addressing foreign import and customs laws applied to him as a person. ^*39 On account of very basic considerations, without going into details of the matter, the merchants had found a general solution. That in this case the claim for compensation of the plaintiffs had to be dismissed went — according to the defendant’s argumentation — without question.

Naturally, the counsel for the plaintiffs had a different opinion on this and also referred to the international law. Going into basic principles, just as the merchants did, he emphasised in his written pleading to the court: “As it belongs to the sovereign rights of every nation to determine whether and under which conditions, constrictions, and customs it wants to trade goods with other nations ^*40 , it may also, in contradiction to this incontestable right, be naturally assumed that every citizen of a nation — when he wants to trade abroad — has to abide by the rules and laws of that country to which he trades his goods. Therefore, the merchant violates the laws of the foreign territory when he imports forbidden goods or avoids customs duty [...]. If the skipper now claims compensation of the consigner of the contraband ^*41 , the latter is obliged to pay because he has violated the principle of international law that every merchant who wants to benefit from the conditionally granted foreign freedom of action has to abide by those foreign laws.” ^*42 Stemming from the argument about the confiscated ship, a dispute arose as to the personal ambit of foreign rules of law. While the merchants thought the laws only to apply to those who sojourn in the national territory of the legislator, the skipper and the shipping company extended the binding force to all those who perform legal transactions with respect to that country. The conclusion was very obvious, according to the argumentation of the plaintiffs: as the merchants also violated Russian law, they were liable for the confiscation of the ship in Tallinn.

The judgement of the Oberappellationsgericht is a masterpiece. The tenor of the judgement of 12 December 1822 is completely rooted in the traditional legal doctrine of evidence; it contains questions of evidence and counter-evidence and focuses solely on the actual dispute. ^*43 However, the reasons given for the judgement, which were published almost in full ^*44 , resolved the conflict concerning international law in a short introduction and then traced the entire conflict back to basic questions of the general doctrine of private legal transactions. As study of many of the court’s reasons for its judgements shows, this was the true strength of the Oberappellationsgericht. The court’s reasons were able to solve problems that at first glance seemed to be complicated and detailed, doing so on a fundamental level and thus establishing legal certainty beyond the individual case at hand. In the case of the Dora, this was achieved as follows: First, the binding force of foreign laws was dealt with. Regarding this aspect, the court differentiated between general prohibitive laws and laws that favour nationals but discriminate against foreigners. In the first case, the court judged the laws of foreign states to be considered only because of “observance of the international laws”. In the second case, however, regarding the unequal treatment of nationals and foreigners, “even the international law does not demand obeying these rules, these hostile steps” ^*45 . In deciding this way, the court referred to leading French literature. ^*46 The result was clear: the present European code of practice between states did not forbid establishing an enterprise that runs against foreign customs regulations or assuming the risk of such an enterprise. ^*47 In the beginning, this was a definite commitment to the freedom of maritime trade, independent from foreign prohibitive laws. This corresponded to the defendant merchants’ legal opinion. But the Oberappellationsgericht aimed to make distinctions in this respect, too. Namely, the introduction regarding international law only pointed out that the skipper and the shipping company could not demand compensation simply because the principal had violated Russian customs regulations.

In contrast to this, the court considered a contractual claim — bearing in mind the uncertain hearing of evidence — to appear obvious, for “such a trade with contraband would always be a dangerous trade” ^*48 . As it was a dangerous legal transaction, the court stated certain duties of clarification and information that would justify a contractual claim for compensation if violated. According to the Oberappellationsgericht, each contracting party when entering into a bilateral contract was bound to “inform the other contracting party about possible physical and legal defects and about such characteristics of those defects as might threaten their means or even the contracting party’s personal safety” ^*49 . And exactly because of this general duty to inform the other about imminent dangers, the person loading contraband had at least to inform the skipper or carter if in the event of discovery not only the goods but also the ship, coach, or horses would be in danger of confiscation. A contracting party not doing so would owe damages because, according to the freight contract, the charterer was forbidden to load illegal goods, which might cause danger to an unknowing skipper. ^*50 The court relied on the ‘legal analogy’ and the well-known treatise of the English Lord Chief Justice Charles Abbott Tenterden ^*51 on the law of merchant ships. ^*52 Virtually without any normative basis, the court developed a doctrine of duty of mutual clarification and information in bilateral contracts, which only had to be modified somewhat — for if the recipient knew about the dangerous aspects of the object, it was not necessary to inform him about them formally. At this point, the judgement again found a strong basis in academic law. ^*53 Out of a problem that the parties understood as a question of international law the Oberappellationsgericht developed important and representative rules of law for general contract law. Obviously, this judgement from 1822 established the legal practice of the Oberappellationsgericht in a sustainable manner. When in May 1829 it had to interpret another case involving contraband, in which the Russian authorities had again confiscated goods, the Oberappellationsgericht referred to this decision directly and cited the principles developed therein, extensively and almost verbatim. ^*54 Clearly, the representative and generally formulated opinion of the Oberappellationsgericht was highly suitable for developing prevailing case law and thus strengthening the certainty of law.

Simply for the sake of completeness, it remains to be said, as alluded to earlier, that the Oberappellationsgericht had to deal with the case described, concerning the Dora, several times. In 1834, the Dora case was brought to the court in Lübeck for the fifth time. But here the lawsuit was finally ended with a settlement in July 1835. ^*55 Thus, it had taken 13 years for the Dora case to be closed with the Oberappellationsgericht. Examples such as this show the disadvantages of a court procedure that allows unlimited appeals against interlocutory judgements. All told, four extensive decisions (Relationen) were worked out unavailingly by the members of the court. The respective separate proceedings before the Oberappellationsgericht seldom took longer than one year. Nonetheless, the case dragged on without fault on the part of the Oberappellationsgericht and was ended finally by an extrajudicial settlement without a final judgement being necessary. Hence, proceedings before the Oberappellationsgericht seemed to have had structural defects, which must not be forgotten even if the aspects of the court’s legal practice described here are very fascinating. Concerning early modern jurisdiction, research into the history of law now tends to regard a high proportion of settlements also as proof for the effectiveness of the legal system. ^*56 However, regarding the Oberappellationsgericht of the four free cities, one should be much more careful in arguing like this. In particular, the case described of the Dora shows the enormous work that the members of the court also had to do in those cases that finally ended through settlement. While the high courts of the Holy Roman Empire could save the trouble of issuing a final judgement by initiating numerous settlement proceedings — a point that still makes settlements attractive today ^*57 — the Oberappellationsgericht of the four free cities had to deliver four judgements before the parties were able to settle. Thus, the transaction costs of settlements were very high, especially in those cases that were ended by settlement. Still, that the judges of the Oberappellationsgericht in Lübeck had a lot of work to do because of these cases, despite the settlements finally reached, did not seem to trouble contemporaries at all. At least the public perception of the court did not suffer from this, as it was the tangible judicature of the interlocutory judgements and the findings of fact that made the court famous, not the few final judgements.

3. Results

The most important result of this study appears astonishing and seems to contradict the so far self-evident modern theory. A specific maritime law is not tangible in the early judgements of the Oberappellationsgericht in Lübeck. This shows especially well the consequent scientific treatment of legal problems that had to be provided by the court. The judges were able to analyse the incoming cases in principal respects and to reduce them to basic general questions of law. Thus, cases of maritime law were integrated into the general law of obligations and judged according to principles of the universal doctrine of contract. But not only questions of maritime law were converted into the area of the law of obligations. A striving for representative results can also be found in the application of law. Special law was often used only to confirm results that the court had found on the basis of general principles of law anyway. Thus, even in the former cities of the Hanseatic League, maritime law was not of great importance. Often the court referred back to Roman and Canon law and compared it to sources of maritime law but also to sources of general private law from other countries, such as Portugal or Sweden.

The judgements of the early time of the Oberappellationsgericht in Lübeck are of especially great importance. The judgements analysed in this study were delivered at a time in which Thöl’s and Goldschmidt’s books — so renowned later — had not yet been written and Heise’s lectures on commercial law had not been published, either. ^*58 Thus, the relationship between judicature and science as factors in the modernisation of commercial law in the 19^th century seems to appear in a different light. Possibly, academically grounded practice in the 1820s did not refer to scientific law but preceded it or at least contributed considerably to it. ^*59

Notes:

^*1 Art. 12 Abs. 3 Deutsche Bundesakte 1815: Text available in E. R. Huber (ed.). Dokumente zur deutschen Verfassungsgeschichte. Vol. 1: Deutsche Verfassungsgeschichte 1803–1850. Stuttgart, etc. 1978, p. 88.

^*2 K. Polgar. Das Oberappellationsgericht der vier freien Städte Deutschlands (1820–1879) und seine Richterpersönlichkeiten. Frankfurt am Main 2007, pp. 97–134.

^*3 C. Bergfeld. Handelsrechtliche Entscheidungen des Oberappellationsgerichts der vier freien Städte Deutschlands. – K. O. Scherner (ed.). Modernisierung des Handelsrechts im 19. Jahrhundert. Heidelberg 1993, p. 71.

^*4 M. Braunewell. Georg Arnold Heise. Biographie und Briefwechsel mit Savigny und anderen. Frankfurt am Main 1999; B.-R. Kern (ed.). Zwischen Romanistik und Germanistik. Carl Georg von Waechter (1797–1880). Berlin 2000; J. Eckert. Johann Friedrich Martin Kierulff (1806–1894). Vom Universitätsprofessor zum Präsidenten des Oberappellationsgerichts zu Lübeck. – J. Eckert, P. Letto-Vanamo, K. Å. Modéer (eds.). Juristen im Ostseeraum. Dritter Rechtshistorikertag im Ostseeraum 20.–22. Mai 2004. Frankfurt am Main 2007, pp. 31–43; of the 28 judges in total, 13 had been professors before their appointment, thereto K. Polgar (Note 2) p. 159.

^*5 B. Windscheid. Carl Georg von Waechter. Leipzig 1880, pp. 14–15; the citation can be found in B. Kusserow. Das gemeinschaftliche Oberappellationsgericht der vier freien Städte Deutschlands zu Lübeck und seine Rechtsprechung in Handelssachen. Diss. jur. Kiel, Düsseldorf 1964, p. 91.

^*6 R. von Jhering. Agathon Wunderlich. Ein Nachruf. – [Jherings] Jahrbücher für die Dogmatik des heutigen römischen und deutschen Privatrechts 1879 (17), pp. 156.

^*7 K. O. Scherner. Die Modernisierung des Handelsrechts im 19. Jahrhundert. – K. O. Scherner (ed.) (Note 3), pp. 9–17.

^*8 Facts in Archiv der Hansestadt Lübeck (AHL) OAG L I 153, unquadr. Relation von Cropp vom 9. September 1831.

^*9 A. Cordes. Flandrischer Copiar Nr. 9. Juristischer Kommentar. – C. Jahnke, A. Graßmann (eds.). Seerecht im Hanseraum des 15. Jahrhunderts. Edition und Kommentar des Flandrischen Copiar Nr. 9. Lübeck 2003, p. 126.

^*10 K.-J. Lorenzen-Schmidt. – Gesamtinventar der Akten des Oberappellationsgerichts der vier Freien Städte Deutschlands. Vol. 2. Cologne, Weimar, Vienna 1994/96, p. 513: he mixes up Riga with Tallinn.

^*11 Archiv der Hansestadt Lübeck = AHL OAG L I 153 Q 21: Entscheidungsgründe, p. 3.

^*12 AHL OAG L I 153 Q 20: Urteil vom 22. Dezember 1831; in detail also in C. A. T. Bruhn (ed.). Sammlung von Entscheidungen des Ober­appellationsgerichts zu Lübeck. – Lübecker Rechtssachen 1858 (1) 97, pp. 387. Imprecisely in B. Kusserow (Note 5), pp. 171–172.

^*13 To the negotiorum gestio of the common law cf. U. Floßmann. Österreichische Privatrechtsgeschichte. Wien, New York 2005, p. 283; R. Zimmermann. The Law of Obligations. Roman Foundations of the Civilian Tradition. Reprint Munich 1993 of the edition Cape Town, 1990, pp. 433–450.

^*14 AHL OAG L I 153 Q 21: Entscheidungsgründe, p. 4.

^*15 AHL OAG L I 153 Q 21: Entscheidungsgründe, p. 7, with reference to the Revidiertes Lübecker Stadtrecht 1586 6, 1, 8, and the Hansische Seerecht Tit. 3, Art. 19; Tit 9, Art. 4; also in B. Kusserow (Note 5), p. 180, with reference to C. A. T. Bruhn (Note 12), pp. 389.

^*16 AHL OAG L I 153 Q 21: Entscheidungsgründe, p. 8, with reference to J. A. Engelbrecht (anonymus). Der wohlunterwiesene Schiffer. Lübeck 1792, Abt. 2, chapt. 3, § 24, p. 58.

^*17 Extensive J. K.-H. Montag. Die Lehrdarstellung des Handelsrechts von Georg Friedrich von Martens bis Meno Pöhls. Die Wissenschaft des Handelsrechts im ersten Drittel des 19. Jahrhunderts. Frankfurt am Main 1986.

^*18 Heise’s Handelsrecht. Nach dem Originalmanuskript hrsg. v. Agathon Wunderlich. Frankfurt 1858, pp. 2, 6, 10; methodical critique about Heise being too descriptive in P. Raisch. Die Abgrenzung des Handelsrechts vom Bürgerlichen Recht als Kodifikationsproblem im 19. Jahrhundert. Stuttgart 1962, p. 18; regarding differences between Heise’s and Georg Friedrich von Martens’ conceptions of commercial law cf. J. K.-H. Montag (Note 17), p. 68.

^*19 J. Rückert. Handelsrechtsbildung und Modernisierung des Handelsrechts durch Wissenschaft zwischen ca. 1800 und 1900. – K. O. Scherner (ed.) (Note 3), p. 44; regarding Heise’s closeness to Savigny — without references to commercial law — cf. O. Lenel. Briefe Savignys an Heise. – Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) 1915 (36), pp. 96–156.

^*20 Regarding the dispartment of the locatio conductio in the 19th century cf. P. Oestmann. Mietvertrag. – M. Schmoeckel, J. Rückert, R. Zimmermann (eds.). Historisch-kritischer Kommentar zum BGB. Vol. 3. Forthcoming.

^*21 AHL OAG L I 153 Q 21: Entscheidungsgründe, pp. 8-9, with reference to D. 19, 2, 55, 1 and D. 43, 10, 1, 3.

^*22 Therefore, D. 19, 2, 15, 6 is quoted; regarding this aspect of the judgement cf. B. Kusserow (Note 5), pp. 185–189.

^*23 AHL OAG L I 153 Q 21: Entscheidungsgründe, pp. 17–18: reference to D. 19, 2, 24, 4 and D. 19, 2, 27 pr.

^*24 Reference to Rôles d’Oléron Art. 4; regarding the Rôles d’Oléron cf. J. Schweitzer. Schiffer und Schiffsmann in den Rôles d’Oléron und im Llibre del Consolat de Mar. Ein Vergleich zweier mittelalterlicher Seerechtsquellen. Frankfurt am Main 2007.

^*25 Reference to „Leges Dammenses Vonn[esse] 4“, cited by the Oberappelationsgericht from J. M. Pardessus. Collection des lois maritimes antérieures au XVIIIe siècle. Vol. 1. Paris 1828, p. 373; regarding the Vonnesse van Damme cf. M. Ryckaert. Art. Damme, Seerecht. – Lexikon des Mittelalters III. 1986, col. 475.

^*26 Reference to “Wisbysches Seerecht Art. 16, 37 (edit. v. Engelbrecht)”; regarding the source cf. G. Landwehr. Das Seerecht im Ostseeraum vom Mittelalter bis zum Ausgang des 18. Jahrhunderts. – J. Eckert, K. Å. Modéer (eds.). Geschichte und Perspektiven des Rechts im Ostseeraum. Frankfurt am Main 2002, pp. 279–280, 283–284.

^*27 Reference to Preußisches Seerecht von 1727 Tit. 5, Art. 31; Allgemeines Preußisches Landrecht Teil 2, Titel 8 § 1703; regarding the Prussian maritime law cf . G. Landwehr. Das preußische Seerecht vom Jahre 1727 im Rahmen der europäischen Rechtsentwicklung. – Zeitschrift für Neuere Rechtsgeschichte 1986 (8), pp. 123; id. Seerecht im Ostseeraum (Note 26), pp. 288–289, 296–298.

^*28 Regarding the history of this problem J. Rückert. Vom casus zur Unmöglichkeit und von der Sphäre zum Synallagma. Weichenstellungen bei der Risikoverteilung im gegenseitigen Vertrag, entwickelt am Beispiel des Dienstvertrages. – Zeitschrift für Neuere Rechtsgeschichte 1984 (6), pp. 40–73 ( with examples to maritime law on p. 51).

^*29 AHL OAG L I 153 Q 21: Entscheidungsgründe, pp. 18–19, with reference to D. 19, 2, 9, 1, D. 19, 2, 33 and D. 19, 2, 36; Rôles d’Oléron Art. 4; Ordonnance de la Marine Buch 3, Titel 3, Art. 11, 22; Code de Commerce Art. 296; Niederländisches Handelsgesetzbuch Buch 2, Titel 5, Art. 28; Hamburger Statut Teil 2, Titel 14, Art. 3; Preußisches Seerecht von 1727 Tit 5, Art. 31; Allgemeines Preußisches Landrecht part 2, Titel 8, §§ 1702, 1705; Schwedisches Seerecht Hauptstück 2, chapt. 12.

^*30 AHL OAG L I 153 Q 21: Entscheidungsgründe, pp. 19–23.

^*31 Similarly B. Kusserow (Note 5), p. 242; for the contemporary science J. Rückert (Note 19), p. 45.

^*32 This judgement is documented in detail in C. A. T. Bruhn (N ote 12), pp. 385–397.

^*33 AHL OAG L I 22a No. 1: Einführung und Rechtfertigung der Appellation, p. 2; No. 19: Urteilsgründe, pp. 13–14.

^*34 R. von Jhering (Note 6), p. 156.

^*35 AHL OAG L I 22a Nr. 1: Einführung und Rechtfertigung der Appellation, p. 57.

^*36 AHL OAG L I 22a Nr. 1: Einführung und Rechtfertigung der Appellation, p. 60.

^*37 AHL OAG L I 22a Nr. 1: Einführung und Rechtfertigung der Appellation, p. 59.

^*38 With the same argument Rudolf von Jhering later on defends the strict adherence to formal requirements, thereto cf. R. von Jhering. Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung. Part 2, Sect. 2. Leipzig 1858, cited after 2^nd edition 1869, pp. 475–476.

^*39 AHL OAG L I 22a Nr. 1: Einführung und Rechtfertigung der Appellation, pp. 61–62.

^*40 Footnote in the written pleading, reference to G. F. von Martens. Primae lineae iuris gentium Europaearum practici in usum auditorium adumbratae. Göttingen 1785, Cap 3, §§ 105, 106.

^*41 Definition in Brockhaus Conversations-Lexikon. Vol. 7. Amsterdam 1809, p. 240: „Contraband (aus dem Italienischen) heißt alles, was einem Verbote wegen Einfuhr fremder Waaren zuwider ist.“

^*42 AHL OAG L I 22a Nr. 10: Widerlegung der Einführung und Rechtfertigung der Appellation, pp. 3, 5.

^*43 AHL OAG L I 22a Nr. 18: Urteil.

^*44 C. A. T. Bruhn (Note 12), pp. 110–124; H. Thöl (ed.). Ausgewählte Entscheidungsgründe des Oberappellationsgerichts der vier freien Städte Deutschlands. Göttingen 1857, No. 248, pp. 334–339: one of the more detailed accounts in Thöl.

^*45 AHL OAG L I 22a Nr. 19: Urteilsgründe, pp. 5–6.

^*46 Quoted are E. de Vattel. Le droit des gens ou principes de la loi naturelle, appliqués à la conduite et aux affaires des nations et des souverains. Vol. 1. 1758, chapt. 6, § 76; Estrangin. Additions ou supplément to: R. J. Pothier. Traité du contrat d’assurance. Paris 1810, p. 91.

^*47 AHL OAG L I 22a Nr. 19: Urteilsgründe , p. 7, with further reference to B. M. Emerigon. Traité des assurances et des contrats à la grosse. 2 volumes. Marseille 1783, part 1, chapt. 8, Sect. 5, pp. 210 ff.; J. A. Park. A system of the law of marine insurances, with three chapters of bottomry, on insurances of lives, and on insurances against fire. London 1787, p. 390; F. J. Jacobsen. Handbuch über das practische Seerecht der Engländer und Franzosen in Hinsicht auf das von ihnen in Kriegszeiten angehaltene Eigenthum, mit Rücksicht auf die englischen Assecuranz-Grundsätze über diesen Gegenstand. Vol. 2. Hamburg 1805, pp. 77–79; reference to this judgement also in B. Kusserow. Oberappellationsgericht (Note 5), pp. 182–183.

^*48 AHL OAG L I 22a Nr. 19: Urteilsgründe, p. 9.

^*49 AHL OAG L I 22a Nr. 19: Urteilsgründe, p. 9.

^*50 AHL OAG L I 22a Nr. 19: Urteilsgründe, p. 10.

^*51 1762–1832, to him M. Lobban. Art. Abbott. – Oxford Dictionary of National Biography 2004. Available at http://www.oxforddnb.com/view/article/12 (14.01.2009).

^*52 C. Abbott. A treatise of the law relative to merchant ships and seamen with an addenda relative to some laws and customs of the United States. Philadelphia 1802, p. 280.

^*53 AHL OAG L I 22a Nr. 19: Urteilsgründe, p. 33, with reference to D. 21, 1, 14, 10 and VI 5, 12, 31: “Eum, qui certus est, certiorari ulterius non oportet.”

^*54 AHL OAG L I 111 Nr. 15: Entscheidungsgründe, pp. 10–13. The judgement is also based on several books from older and newer times: E. de Vattel (Note 46), vol. 2, chapt. 6 § 76; Estrangin (Note 46); B. M. Emerigon (Note 47), part 1, chapt. 8, sect. 5, pp. 210 ff.; J. Klefeker. Sammlung der Hamburgischen Gesetze und Verfassungen in Bürger- und Kirchlichen, auch Cammer- Handlungs- und übrigen Policey-Angelegenheiten und Geschäften samt historischen Einleitungen. Vol. 7. Hamburg 1769, §§ 484–486; S. Marshall. A Treatise on the Law of Insurance. Vol. 1. London 1823, chapt. 3, sec. 1, pp. 54–57; W. Benecke. System des Assekuranz und Bodmereiwesens [...] für Versicherer, Kaufleute und Rechtsgelehrte. Vol. 1. Hamburg 1808, p. 34; F. J. Jacobsen. Handbuch über das practische Seerecht der Engländer und Franzosen in Hinsicht auf das von ihnen in Kriegszeiten angehaltene Eigenthum, mit Rücksicht auf die englischen Assecuranz-Grundsätze über diesen Gegenstand. Vol. 2. Hamburg 1805, pp. 77–79; P. S. Boulay-Paty. Cours de droit commercial maritime d’après les principes et suivant l’ordre du Code de commerce. Vol. 4. Rennes 1823, p. 29.

^*55 AHL OAG L I 202; cf. K.-J. Lorenzen-Schmidt (Note 10), vol. 2, p. 522.

^*56 B. Diestelkamp. Das Reichskammergericht im Rechtsleben des 16. Jahrhunderts. – H.-J. Becker, G. Dilcher, G. Gudian, E. Kaufmann, W. Sellert (eds.). Rechtsgeschichte als Kulturgeschichte. Festschrift für Adalbert Erler zum 70. Geburtstag. Aalen 1976, pp. 435–480; also in B. Diestelkamp. Recht und Gericht im Heiligen Römischen Recht. Frankfurt am Main 1999, pp. 257.

^*57 P. Hartmann. § 278 ZPO Rn. 6. – A. Baumbach, W. Lauterbach, J. Albers, P. Hartmann. Zivilprozeßordnung mit Gerichtsverfassungsgesetz und anderen Nebengesetzen. Munich 2008; W. R. Wrege. Richten und Schlichten! Plädoyer für die Güteverhandlung im Zivilprozeß. – Deutsche Richterzeitung 2003, pp. 130–132.

^*58 H. Thöl. Das Handelsrecht. Vol. 1. Göttingen 1841; L. Goldschmidt. Handbuch des Handelsrechts. Vol. 1. Stuttgart 1864; Heise’s Handelsrecht (Note 18).

^*59 Concerning the influence of the jurisdiction of the Oberappellationsgericht of the four free cities on Heinrich Thöl cf. H. Thöl (Note 58), Preface; E. Landsberg. Geschichte der Deutschen Rechtswissenschaft. Vol. III/2. Reprint Aalen 1978 of the edition Munich, Berlin 1910, p. 627; E. Döhring. Geschichte der deutschen Rechtspflege seit 1500. Berlin 1953, p. 348; U. Falk. Art. Thöl. – M. Stolleis (ed.). Juristen. Ein biographisches Lexikon von der Antike bis zum 20. Jahrhundert. Munich 2001, p. 626.

The lack of a generic definition cannot invalidate the fact that for several decades, terrorism has been a serious security problem demanding both domestic and international countermeasures. The latter are especially important, as the leading terrorist factions operate internationally in order to gain wider exposure and, as a result, more success, but also to find supporters — namely, states that sympathise with their political objectives. The relevant international countermeasures are naturally associated with the Security Council, to whom the states have conferred primary responsibility for the maintenance of international peace and security. ^*2 The Security Council, a constantly attentive executive organ, has considerable means, of a broad range, at its disposal for that purpose, starting with diplomatic or economic sanctions and ending with military measures. ^*3 But before the Security Council can utilise these means, it must first determine whether terrorism falls within its competence. For example, does terrorism constitute a threat to peace that justifies its response?

The present article examines this matter from three perspectives. Firstly, why is the determination of the existence and nature of this situation important? Secondly, what is the nature of a threat to peace in general? Thirdly, can terrorism, generally or specifically, constitute a threat to peace? These questions are discussed in the light of the collective security system envisaged in the United Nations Charter and administered by the Security Council.

1. Determination of the situation

The Security Council is a guardian of international peace and security. Although it is composed of only 15 member states ^*4 , the Security Council acts on behalf of all UN member states when carrying out its duties in connection with maintenance of international peace and security. ^*5 Despite being a political organ whose decisions are, and also have every right to be, linked to political motivations not necessarily congruent with legal considerations, the Security Council’s activity has legal consequences. It is the one organ of the United Nations that can impose legally binding obligations and non-military or military sanctions on the member states. ^*6 Such means are called (collective) enforcement measures if adopted under the charter’s Chapter VII in order to maintain or restore international peace and security.

1.1. The importance of determination

The Security Council cannot avail itself of enforcement measures at any given moment; it is supposed to follow certain procedure to establish that the conditions for the use of such measures are satisfied. The primary condition is the existence of a threat to peace, a breach of the peace, or an act of aggression. ^*7 Through the construction of the sentence in Chapter VII ^*8 , the determination that a relevant situation has arisen is clearly singled out as a condition for the exercise of powers described in said chapter. ^*9 So, once a positive determination is made, the door is automatically opened to enforcement measures of a non-military or military nature. ^*10 Nevertheless, this is a procedural rather than substantive limitation, basically demanding that the Security Council as a collective organ reach consensus before imposing enforcement measures. Yet such a limitation may equally help to ensure consistency in the Security Council’s practice if the determination is not made on the basis of political expediency but after a genuine assessment of the situation and comparison of the latter with other, similar situations.

The practice demonstrates that the Security Council has not always determined that a threat to peace, a breach of the peace, or an act of aggression existed before it imposed sanctions. The situation in Kosovo had deteriorated to such a point by March 1998 that the Security Council decided to impose a mandatory arms embargo on the Federal Republic of Yugoslavia, including Kosovo, without first determining the situation. ^*11 For the first time, the Security Council dispensed with declaring that the application of its powers under Chapter VII was based on a determination that there was a threat to peace. ^*12 Later the United Kingdom insisted that such determination was implied ^*13 , but the Russian Federation declared, while voting in favour, that the situation under consideration did not constitute a threat to peace. ^*14 If a majority had shared the latter position, the resolution in question would have been an ultra vires act.

Two more aspects should be taken into account. Firstly, there is no need to expressly refer to Article 39 when making the determination. Indeed, in a significant number of resolutions, the Security Council has established the threat to peace without a proper reference and therefore leaving the legal basis in doubt. ^*15 Secondly, a determination is not necessary in cases of resolutions following on from previous resolutions that did contain a determination. The latter are cited in the preambles to the former; therefore, the necessary link and legal basis are established. ^*16 In terms of time, the validity of a determination does not expire ^*17 ; that is, it remains valid until the Security Council decides otherwise, even if there is a change in the facts on the ground. While the keeping in place of enforcement measures inevitably implies that the threat continues to exist ^*18 , one cannot generally infer from their suspension or termination that there has been a reduction in threat ^*19 , because such a step may well be influenced by considerations of a humanitarian nature or by the wish to further encourage a peace process. ^*20 In other cases, the removal of an item from the Security Council’s agenda or the termination of enforcement measures as their objective has been achieved leaves no doubt that, at least temporarily, the threat to peace has ceased to exist. ^*21

1.2. Security Council discretion

The discretionary power of the Security Council is very broad under Article 39, in terms of decision of both when to act and how to act. At the San Francisco Conference when the United Nations Charter was adopted, various proposals were made that the regulations should be more detailed with regard to the conditions for the applicability of Chapter VII, but, in the end, the present wording was preferred. ^*22 It was expressly stated that the lack of more specific criteria was necessary if the Security Council were to be allowed to decide how to act on a case by case basis. ^*23 Therefore, the International Criminal Tribunal for the Former Yugoslavia has aptly stated that “it is clear [...] that the Security Council plays a pivotal role and exercises a very wide discretion”. ^*24 However, there are some who adhere to a view that discretion is not unlimited here. ^*25 The legal source of potential limitations remains unclear.

A determination is essentially a judgment based on factual findings and the weighing of political considerations that cannot be measured by legal criteria. The latter usually prevail. As a result, the decisions made in the interest of international peace and security are almost exclusively taken in accordance with (national-level) political considerations. ^*26 The political nature of Article 39 is further emphasised by the fact that the permanent members ^*27 of the Security Council have a power of veto. However, as a non-judicial organ, the Security Council is not required to give reasons for its decisions. ^*28 Nonetheless, once it has made a determination, this is conclusive and all member states must accept the Security Council’s verdict, even if they do not share its opinion. ^*29

The Security Council is not obliged to make a determination and subsequently take any enforcement measures. ^*30 Both the drafting history of the United Nations Charter and the practice of the Security Council indicate that the council does not have to respond to all situations that would seem to call for exercise of its competencies but, rather, operates selectively and with discretion. ^*31

2. The nature of threat to peace

‘Threat to peace’ is the most flexible and dynamic of the three terms in Article 39, and it is here that the Security Council enjoys the widest discretion. It is equally true that within this discretion lies the possibility of subjective political judgment. Hans Kelsen has expressed concern that the “threat to peace [...] allow[s] a highly subjective interpretation” ^*32 , but at the same time claimed that “it is completely within the discretion of the Security Council as to what constitutes a threat to the peace”. ^*33 Michael Akehurst worded this position perhaps even more bluntly by stating that “a threat to the peace is whatever the Security Council says is a threat to the peace”. ^*34 This is the accepted reality nowadays. Obviously, here one should distinguish this discretion from the necessity of sufficient explanation to the states of the characteristics of a specific threat to peace. While this may not be necessary in cases of more traditional threats (preparing an armed attack against a state), it may well be vital if the Security Council is referring to a continuous state of affairs (inability to demonstrate the denunciation of terrorism) or an abstract phenomenon (international terrorism).

The Security Council’s determinations involve almost exclusively threats to peace, whereas the existence of breaches of peace and acts of aggression is usually not specifically declared, even if obvious. ^*35 In the most typical situations, a threat to peace precedes a breach of the peace or an act of aggression. However, the range of situations potentially giving rise to a threat to peace now reaches far beyond these confines. In the United Nations Charter, there are two somewhat similar terms — namely, “threat to peace” in Article 39 and “threat of force” in Article 2 (4). Although they may look alike, the former is broader than the latter, as a ‘threat to peace’ is not necessarily linked to a past, present, or future use or threat of armed force. ^*36 A threat to peace is not even linked to any breach of international law. ^*37 In the words of Yoram Dinstein, “a threat to the peace is not necessarily a state of facts: it can be merely a state of mind; and the mind that counts is that of the [Security] Council”. ^*38

In order to understand the threat to peace, it is also important to reflect on the meaning of the word ‘peace’. The latter can be defined either negatively (narrowly) or positively (widely). In the negative sense, the word refers to the absence of organised use of armed force; therefore, in order to constitute a threat to peace, the situation in question must have the potential of provoking armed conflict between states in the short or medium turn. ^*39 Still, an actual outbreak of armed conflict is not necessary. The term ‘threat to peace’ is sufficiently flexible and dynamic to include all major forms of serious international misconduct. However, in every case, a threat to peace is a situation that objectively can be characterised as destabilising and potentially explosive.

The positive concept of peace is wider and includes also friendly relations between states, as well as other political, economic, social, and environmental conditions that are needed for a conflict-free international community. ^*40 There is some textual support for the positive notion of peace in the United Nations Charter; for example, Article 1’s sections 2 and 3 speak about the strengthening of universal peace through the development of friendly relations and co-operation among nations. In a statement of the president of the Security Council, it was equally stated that the “absence of war and military conflicts amongst States does not in itself ensure international peace and security” and that the “non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security”. ^*41

The Security Council is a reaction-oriented organ and not authorised or equipped to prevent all possible long-term tensions; its functions are normally limited to military conflicts. ^*42 The long-term problems need the attention of and integrated measures by the General Assembly as well as the Economic and Social Council, with their sub-organs. Such an approach was also envisaged in the above-mentioned statement, which included comment that “the United Nations membership as a whole, working through the appropriate bodies, needs to give the highest priority to the solution of these matters”.

Nevertheless, when examining the Security Council’s practice, one notices that very different situations may qualify as a threat to peace. Over the years, the following types of situations have been deemed a threat to international or regional peace: (1) non‑international armed conflicts ^*43 ; (2) serious violations of human rights ^*44 ; (3) violations of democratic principles ^*45 ; (4) violations of international humanitarian law ^*46 ; and (5) proliferation of nuclear, chemical, and biological weapons, as well as their means of delivery. ^*47

As the Security Council is not obliged to respond to all situations that are potentially a threat to peace, it has turned a blind eye even to some clear-cut threats to peace or, perhaps more correctly, to existing breaches of peace. The response may also be delayed. In June 1948, the Security Council determined that the situation in Palestine constituted a threat to peace two months after the war had started. ^*48

In terms of enforcement measures, it is worth mentioning that the Security Council may initiate an anticipatory war against a future breach of the peace or act of aggression, regardless of whether it is imminent or, by contrast, remote and uncertain in time. This is a privilege withheld by the United Nations Charter from states acting individually or collectively. ^*49

3. Relationship with terrorism

The Security Council was slow in joining the fight against terrorism. ^*50 The first resolution to use the term ‘terrorism’ was adopted only in December 1985. ^*51 However, since the end of the Cold War, the body has gradually become more active in this respect and finally assumed a central role after the events of 11 September 2001. By now, the Security Council has on several occasions designated terrorism as a threat to peace.

3.1. Reaction to different situations

In a number of cases, insufficient action of states against terrorism has been deemed a threat to peace. One such situation was related to Libya’s involvement in the Pan Am Flight 103 bombing over Lockerbie in December 1988. ^*52 The investigation found that the bomb was planted by two Libyans. The United Kingdom and the United States, and later also France in connection with another bombing, demanded their extradition, but Libya refused. Finally, in January 1992, the Security Council intervened by condemning the destruction of a civilian aircraft and denouncing the failure of Libya to co-operate. ^*53 The resolution urged Libya to contribute to the “elimination of international terrorism” and demanded the surrender of the two nationals for trial. Libya ignored the demand, and, in its following resolution ^*54 , the Security Council determined that “the failure by the Libyan Government to demonstrate by concrete actions its renunciation of terrorism and in particular its continued failure to [extradite the designated persons] constitute a threat to international peace and security”. So, under specific circumstances, failure to renounce terrorism and to extradite people may result in a threat to peace. A refusal to extradite particular persons could pose a threat to peace in the sense that it may provoke a unilateral military action (in this case, against Libya by the states mentioned above), but also because these persons might commit another terrorist act. Indeed, the United States had previously bombed Libya for its suspected terrorist activities. ^*55 One must keep in mind that the Pan Am Flight 103 bombing was a case of state terrorism ^*56 and potentially a violation of the prohibition to use armed force in international relations. ^*57

A similar approach was taken when Sudan refused to extradite three persons suspected in connection with an attempt to assassinate the president of Egypt in Addis Ababa, Ethiopia, in June 1995. ^*58 Sudan was enjoined to generally “desist from engaging in activities of assisting, supporting and facilitating terrorist activities and from giving shelter and sanctuaries to terrorist elements” and more specifically to “undertake immediate action to extradite to Ethiopia for prosecution the three suspects sheltering in the Sudan”. Again, the refusal of co-operation was followed by a new resolution, in this case determining that the “non-compliance by the Government of Sudan with the requests [to desist from engaging in terrorism and to extradite the designated persons] constitutes a threat to international peace and security”. ^*59 Unlike in the case of Libya, this situation did not involve state terrorism, as the suspected persons were not agents of Sudan. However, the reasons whereby the non-compliance constituted a threat to peace were similar. The United States attacked a pharmaceutical factory in Khartoum ^*60 and, as a result, itself endangered international peace and security.

The Security Council had been attentive to the situation in Afghanistan for some time already, but the first associated resolution concerning terrorism and a threat to the peace was adopted after the simultaneous attacks on the embassies of the United States in Nairobi, Kenya, and Dar es Salaam, Tanzania, in August 1998. ^*61 The Taliban regime was required to stop providing sanctuary and training for international terrorists and their organisations as well as to co-operate with efforts to bring indicted terrorists to justice. ^*62 Afghanistan was given almost a year before the Security Council determined that the Taliban’s failure to meet these demands constituted a threat to international peace and security. ^*63 The case of Afghanistan is different from that of Libya (in which terrorists were agents of the state) and Sudan (where terrorists were not agents of state) in that the relationship between the state and the terrorists was not clear. It is not implausible that the members of Al Qaeda were de facto agents of Afghanistan according to the law of state responsibility. ^*64 If this was the case, then the situation in Afghanistan was also one of state terrorism and therefore similar to that of Libya. Once again, the engagement in terrorism and non-compliance with the demands of the Security Council led to use of armed force, with the Unites States and its allies attacking Afghanistan on 7 October 2001.

The events of 11 September 2001 brought about a new approach. The Security Council condemned unequivocally in the strongest terms these horrifying terrorist attacks and regarded “such acts, like any act of international terrorism, as a threat to international peace and security”. ^*65 This determination goes further than previous determinations did, as it was not confined to merely the terrorist attacks in question but extended to all present and future terrorist acts. Moreover, this was not an isolated incident immediately after these unprecedented attacks invoking global solidarity but the beginning for a series of similar resolutions. ^*66 Resolution 1373 was the first one enacted specifically under Chapter VII to reconfirm this position. ^*67 A little while later, the Security Council declared that “acts of international terrorism constitute one of the most serious threats to international peace and security in the twenty-first century”. ^*68 Resolutions 1368 and 1373 recognised in their preamble the right to self-defence, hinting that a terrorist attack can be considered an ‘armed attack’, which is a precondition to exercise of self-defence under Article 51.

3.2. Evaluation of the Security Council’s approach

The Security Council’s decision to condemn terrorist acts so strongly and decisively was certainly welcomed, but the approach that was adopted brought with it certain problems also. To borrow the words of Judge Kooijmans, the novelty of these resolutions lies in classifying “acts of international terrorism, without any further qualification, a threat to international peace and security [...] without ascribing these acts of terrorism to a particular State”. ^*69

The first problem is that terrorism was not defined in the resolutions adopted after 11 September 2001. ^*70 The lack of definition was deliberate because then there was no consensus on the definition and states did not want to jeopardise the adoption of the resolutions, including the measures therein. ^*71 To some extent, the Security Council has adopted an approach of ‘we know it when we see it’. ^*72 The inability to adopt a binding definition of terrorism is certainly contributing to instability and unpredictability in the context of terrorism as well as undermining the legal validity of the action against terrorism. ^*73 Indeed, how can one determine the existence of a threat to peace when using undefined terms? This ambiguity and the Security Council’s demands to take effective measures against terrorism have presented several states with a welcome opportunity to enact broad-reaching anti-terrorism laws directed against the political opposition or other inconvenient persons instead. The Human Rights Committee has criticised numerous states for defining the crime of terrorism and especially the association with terrorism too vaguely ^*74 or for imposing the death penalty for such crimes. ^*75 One should not refrain from trying to define terrorism merely because this definition seems to be an unrealistic task or because someone might find a way around the definition and claim that the conduct in question is therefore legal. Respect for the principle of legality should override the practical conveniences or fears of potential but fixable loopholes.

The second problem concerns the scope of the Security Council’s authority to designate a generalised indeterminate phenomenon, not a specific incident, as a threat to peace. ^*76 Moreover, there are neither temporal nor geographic limits here. Even though a determination regarding a specific incident (such as violation of international humanitarian law in the former Yugoslavia) is formally binding for all member states, it is not, however, likely to affect many of them in connection with the matter, on account of, for example, geographic distance. By contrast, in the case of an indeterminate phenomenon having no temporal or geographical limits, all member states are affected and potentially subject to different sanctions. Once again such a situation is open to abuses by individual states both domestically and internationally. The Security Council’s determination may serve as a blanket excuse for illegitimate and forceful settlement of other disputes. One should keep in mind that the Security Council is a reaction-oriented organ, not equipped to prevent all possible long-term tensions. Therefore, it is somewhat irresponsible to provide blanket excuses and impose unspecific duties that may, if implemented overzealously, endanger international peace and security. As the threat to peace continues until the Security Council decides otherwise, the latter has placed itself in a very tricky position — a declaration that there is no longer a threat to peace would indicate that the problem of terrorism has been eliminated.

That the Security Council recognised the right to self-defence in the case of the events of 11 September 2001 cannot certainly be taken as general permission to employ armed force in the fight against terrorism. The exercise of self-defence still requires an ‘armed attack’ against a state ^*77 , and the self-defence must be immediate, proportional, and necessary. ^*78 The importance of the relevant resolution lies elsewhere. The Security Council believed that (1) a ‘terrorist attack’ may be an ‘armed attack’ for the purpose of Article 51 and (2) the attacks of 11 September 2001 constituted an ‘armed attack’ in that sense. ^*79 However, if another terrorist attack is sufficient in gravity and the involvement of a state is sufficient in degree, then the target state may use armed force in the exercise of self-defence.

Although misgivings have been expressed, the new approach is supported by several arguments. Firstly, alongside the traditional threats, terrorism is constantly becoming more topical and is an ever more serious international security threat. ^*80 Terrorist acts can certainly threaten international peace and security, but not every terrorist act does so. Overly broad coverage may lead to abuses wherein the states use their obligations to fight terrorism to repress their political opponents or to enact regulations restricting human rights. Secondly, threat to peace is a dynamic, constantly evolving political concept that has been expanding since the establishment of the United Nations. ^*81 Despite the broad and abstract nature of the determination in the new resolutions, it remains within the realm of negative definition of peace. This follows from the explicit reference to the international dimension of such attacks, combined with the fact that the use of armed force against a state would be inherent to terrorist attacks of any kind. Whilst there are novelties in these resolutions, these novelties do not relate to a de‑linking of a threat to peace from the potential outbreak of international armed conflict. ^*82 Thirdly, because the Security Council is entrusted with primary responsibility for the maintenance of international peace and security but also a right to take anticipatory steps, it should take the problem of terrorism most seriously and adopt appropriate measures in order to fight it.

4. Conclusions

Terrorism has been a menace to mankind for two millennia, but in recent decades it has become a pressing domestic and international security problem. The Security Council as a guardian of world order has the authority to take both non-military and military measures in order to maintain or restore international peace and security, provided that it has first determined a threat to peace, a breach of the peace, or an act of aggression to exist. Since 1992, it has gradually acknowledged that different manifestations of terrorism constitute a threat to peace and therefore justify the use of enforcement measures. A determination that certain manifestations of terrorism constitute a threat to peace is essentially a political decision, even more so because there is no generic definition of terrorism or guidelines for identifying threats to peace. The Security Council has repeatedly determined that providing sanctuary and training for terrorists and their organisations, and refusing extradition or to co-operate with efforts to bring indicted terrorists to justice, are a threat to peace. After the events of 11 September 2001, the Security Council embarked on a somewhat troublesome path, as it has classified all terrorist acts as a threat to international peace and security without any further qualification or ascribing these acts of terrorism to a particular state. Instead, the Security Council should describe its understanding of terrorism more specifically and preferably in a resolution adopted under Chapter VII in order to avoid a disagreement as to whether that description is legally binding. Additionally, it should be more cautious with portraying every act of international terrorism as a threat to international peace and security, because not every terrorist act has such potential. Overly frequent referrals to minor terrorist acts may also downgrade the momentum of major terrorist acts. While it is politically convenient not to assess individually every terrorist act brought to the Security Council’s attention but to instead label all as a threat to peace, such an approach endangers numerous fundamental rules and inter-state relations as well as eventually international peace and security.

Notes:

^*1 The search for a legal definition of terrorism resembles the quest for the Holy Grail as periodically eager souls set out, full of purpose, energy and self-confidence, to succeed where so many others before have tried and failed. G. Levitt. Is ‘Terrorism’ Worth Defining? – Ohio Northern University Law Review 1986 (13), p. 97.

^*2 United Nations Charter, Article 24 (1).

^*3 Ibid., Articles 41–42.

^*4 Altogether there are 192 member states in the United Nations.

^*5 United Nations Charter, Article 24 (1).

^*6 Ibid., Article 25. The other organs may legally bind the member states only in certain administrative matters within the United Nations, for example, the General Assembly adopts the budget and determines the amount every member states has to contribute.

^*7 United Nations Charter, Article 39.

^*8 “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” (emphasis added)

^*9 J. Frowein, N. Krisch. Article 39. – B. Simma (ed.). The Charter of the United Nations: A Commentary. 2^nd ed. Vol. I. Oxford University Press 2002, p. 726; T. D. Gill. Legal and Some Political Limitations on the Power of the UN Security Council to Exercise Its Enforcement Powers under Chapter VII of the Charter. – Netherlands Yearbook of International Law 1995 (26), p. 39; but see also B. Conforti. The Law and Practice of the United Nations. 3^rd ed. Leiden: Martinus Nijhoff Publishers 2005, p. 172.

^*10 I. Österdahl. Threat to the Peace: The Interpretation by the Security Council of Article 39 of the UN Charter. Uppsala: Iustus 1998, p. 28.

^*11 SC Res. 1160, 31 March 1998.

^*12 See also G. Nolte. The Limits of the Security Council’s and Its Functions in the International Legal System: Some Reflections. – M. Byers (ed.). The Role of International Law in International Politics. Oxford University Press 2001, p. 316.

^*13 UN Doc. S/PV.3868, paragraph 12.

^*14 Ibid., paragraph 10.

^*15 See, for example, SC Res. 713, 25 September 1991; SC Res. 733, 23 January 1992; SC Res. 748, 31 March 1992; SC Res. 757, 30 May 1992; SC Res. 788, 19 November 1992; SC Res. 807, 19 February 1993; SC Res. 827, 25 May 1993; SC Res. 841, 16 June 1993.

^*16 See, for example, SC Res. 687, 3 April 1991; SC Res. 724, 15 December 1991; SC Res. 771, 13 August 1992; SC Res. 819, 16 April 1993; SC Res. 833, 27 May 1993; SC Res. 844, 16 June 1993.

^*17 See K. Wellens. The UN Security Council and New Threats to the Peace: Back to the Future. – Journal of Conflict and Security Law 2003 (8), pp. 27–28.

^*18 SC Res. 1439, 18 October 2002.

^*19 SC Res. 1022, 22 November 1995.

^*20 SC Res. 1432, 15 August 2002.

^*21 SC Res. 919, 26 May 1994; SC Res. 1367, 10 September 2001.

^*22 G. Nolte (Note 12), p. 172.

^*23 12 UNCIO 505.

^*24 ICTY, Judgment of the Appeals Chamber (Jurisdiction), 2 October 1995, Prosecutor v. Duško Tadić, Case No. IT-95-I-AR-72, paragraph 28.

^*25 See E. de Wet. The Chapter VII Powers of the United Nations Security Council. Oxford: Hart Publishing 2004, pp. 134–144.

^*26 See, for example, L. M. Goodrich, E. Hambro, A. P. Simons. The Charter of the United Nations: Commentary and Documents. 3^rd ed. Columbia University Press 1969, p. 291; D. Bowett. The Impact of Security Council Decisions on Dispute Settlement Procedures. – European Journal of International Law 1994 (5), p. 94.

^*27 France, People’s Republic of China, Russia, United Kingdom and United States.

^*28 J. E. S. Fawcett. Security Council Resolutions on Rhodesia. – British Year Book of International Law 1965–1966 (41), pp. 116–117.

^*29 Y. Dinstein. War, Aggression and Self-Defence. 4^th ed. Cambridge University Press 2005, p. 285.

^*30 J. Frowein, N. Krisch (Note 9), p. 719; H. Kelsen. Collective Security and Collective Self-Defense under the Charter of the United Nations. – American Journal of International Law 1948 (42), pp. 733, 737.

^*31 See I. Österdahl (Note 10), pp. 103–105.

^*32 H. Kelsen (Note 30), p. 737.

^*33 Ibid., p. 727.

^*34 M. Akehurst. A Modern Introduction to International Law. 6^th ed. London: Allen & Unwin 1987, p. 219.

^*35 J. Frowein, N. Krisch (Note 9), p. 722.

^*36 The word “force” in Article 2 (4) refers to “armed force”, not to political or economic coercion. See A. Randelzhofer. Article 2 (4). – B. Simma (Note 9), pp. 117–121.

^*37 R. Kolb. Ius contra bellum: le droit international relatif au maintien de la paix. Bruxelles: Bruylant 2003, p. 68.

^*38 Y. Dinstein (Note 29), p. 284.

^*39 B. Martenczuk. The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie? – European Journal of International Law 1999 (10), pp. 543–544.

^*40 E. de Wet (Note 25), pp. 138–139.

^*41 UN Doc S/23500 (1992).

^*42 J. Frowein, N. Krisch (Note 9), p. 720.

^*43 See, for example, SC Res. 713, 25 September 1991 (Yugoslavia); SC Res. 733, 23 January 1992 (Somalia); SC Res. 788, 19 November 1992 (Liberia); SC Res. 864, 15 September 1993 (Angola).

^*44 See, for example, SC Res. 217, 20 November 1965 (racist minority regime in Rhodesia); SC Res. 688, 5 April 1991 (Kurdish population in the Northern Iraq).

^*45 See, for example, SC Res. 841, 16 June 1993 (Haiti); SC Res. 1132, 8 October 1997 (Sierra Leone).

^*46 See, for example, SC Res. 808, 22 February 1993 (Former Yugoslavia).

^*47 See, for example, SC Res. 1172, 6 June 1998 (India and Pakistan); SC Res. 1540, 28 April 2004.

^*48 SC Res. 54, 15 July 1948.

^*49 Y. Dinstein (Note 29), pp. 182–187.

^*50 For a long time, the question of terrorism was largely consigned to the General Assembly. See, for example, N. Rostow. Before and After: The Changed UN Response to Terrorism since September 11^th. – Cornell International Law Journal 2002 (35), pp. 479–481.

^*51 SC Res. 579, 18 December 1985.

^*52 H. W. Kushner. Encyclopedia of Terrorism. London: Sage Publications 2003, pp. 285–286.

^*53 SC Res. 731, 21 January 1992.

^*54 SC Res. 748, 31 March 1992.

^*55 See G. F. Intoccia. American Bombing of Libya: An International Legal Analysis. – Case Western Reserve Journal of International Law 1987 (19), pp. 177–213.

^*56 The first hint that states can commit terrorist acts is found in the resolution ending the First Gulf War and demanding that Iraq “will not commit [...] any act of international terrorism”. SC Res. 687, 3 April 1991.

^*57 United Nations Charter, Article 2 (4). See R. Värk. The Use of Force in the Modern World: Recent Developments and Legal Regulation of the Use of Force. – Baltic Defence Review 2003 (10) 2, pp. 27–44.

^*58 SC Res. 1044, 31 January 1996.

^*59 SC Res. 1054, 26 April 1996.

^*60 R. Wedgwood. Responding to Terrorism: The Strikes against Bin Laden. – Yale Journal of International Law 1999 (24), pp. 559–576.

^*61 H. W. Kushner (Note 52), pp. 113–116. The terrorist bomb attacks were also condemned. SC Res. 1189, 13 August 1998.

^*62 SC Res. 1214, 8 December 1998.

^*63 SC Res. 1267, 15 October 1999; reaffirmed in SC Res. 1333, 19 December 2000.

^*64 See Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), Article 8; see also R. Värk. State Responsibility for Private Armed Groups in the Context of Terrorism. – Juridica International 2006 (11), pp. 188–190.

^*65 SC Res. 1368, 12 September 2001 (emphasis added).

^*66 See, for example, SC Res. 1438, 14 October 2002 (Bali), SC Res. 1440, 24 October 2002 (Moscow), SC. Res 1450, 13 December 2002 (Kikambala); SC Res. 1465, 13 February 2003 (Bogotá); SC Res. 1516, 20 November 2003 (Istanbul); SC Res. 1530, 11 March 2004 (Madrid); SC Res. 1611, 7 July 2005 (London); SC Res. 1618, 4 August 2005 (Iraq).

^*67 SC Res. 1373, 28 September 2001.

^*68 SC Res. 1377, 12 November 2001.

^*69 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports (2004) 136, Separate Opinion of Judge Kooijmans, paragraph 35.

^*70 See, for example, E. Rosand. Security Council Resolution 1373, the Counter-Terrorism Committee, and the Fight against Terrorism. – American Journal of International Law 2003 (97), pp. 339–340.

^*71 L. Bondì. Legitimacy and Legality: Key Issues in the Fight against Terrorism. – Fund for Peace Report 2002, p. 25.

^*72 Paraphrasing Judge Potter Stewart who once used the words “I know it when I see it” to define pornography. United States Supreme Court, Judgment, 22 June 1964, Jacobellis v. Ohio. – 378 US 184 (1964), p. 197.

^*73 A non-binding working definition recalls that terrorism in the form of “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature”. SC Res. 1566, 8 October 2004.

^*74 Concluding observations of the Human Rights Committee: Estonia, UN Doc. CCPR/CO/77/EST (2003), paragraph 8.

^*75 Concluding observations of the Human Rights Committee: Egypt, UN Doc. CCPR/CO/76/EGY (2002), paragraph 16 (a).

^*76 B. Saul. Definition of ‘Terrorism’ in the UN Security Council: 1985–2004. – Chinese Journal of International Law 2005 (4), p. 158.

^*77 United Nations Charter, Article 51; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits. – ICJ Reports (1986) 14, paragraph 195.

^*78 Ibid., paragraphs 194, 237.

^*79 See R. Värk. Terrorism and the Use of Force: From Defensive Reaction to Pre-emptive Action? – Security and Peace 2004 (22), p. 148.

^*80 A More Secure World: Our Shared Responsibility. Report of the High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2004), pp. 2, 21–30, 52–54.

^*81 S. Talmon. The Security Council as World Legislature. – American Journal of International Law 2005 (99), pp. 179–181.

^*82 E. de Wet (Note 25), p. 172.

Economic theory, econometrics, and game theory have recently shed new light on the study of diverse social phenomena, including the law and the causes of social and economic development. Economic tools have been used in attempts to understand the effect of laws and regulations in the economic development of a given society. If ‘good laws’ and ‘good institutions’ somehow ‘cause’ economic development, it would be worthwhile to try to identify such laws and institutional arrangements, understand how they foster development, and replicate them everywhere.

The World Bank and other international organisations have generated rankings and measures based on these ideas, including those featured in the six Doing Business reports published by the IFC since 2003 (hereinafter ‘the Reports’). ^*2 The Reports focus on business legislation around the world, purporting to objectively measure, compare, and report on the quality of laws and regulations affecting businesses in different countries. ^*3 Their aim is to identify the world’s ‘best practices’ related to the aspects of business regulation their authors consider relevant for entrepreneurship and to benchmark the regulations of other countries in comparison to such best practices. They measure regulation quality, for example, in the categories ‘starting a business’, ‘hiring and firing workers’, ‘getting credit’, ‘registering property’, and ‘enforcing contracts’. The Baltic States have enjoyed high rankings in the Reports, being among the top 30 in the ‘ease of doing business’ ranking since its inception in 2006 (when among 155 countries Estonia ranked 16^th, Latvia 26^th, and Lithuania 15^th) through to the latest, 2009 release (where among 181 countries they ranked 22^nd, 29^th, and 28^th, respectively). ^*4

One of the pillars in the Reports’ consideration of the ease of doing business is the measure of ‘enforcing contracts’, for which Estonia ranks 30^th, Latvia fourth, and Lithuania 16^th. Its aim is to measure the quality of courts, on the basis of the number of procedures, cost for the plaintiff, and the time it takes to enforce a hypothetical contractual dispute in a given economy. The lower these three figures, the higher the ranking.

But does this mean anything? Does a good place in the rankings mean that the Baltic States have ‘better laws’ or ‘better courts’, fostering development better than those of countries with worse ratings? More importantly, does it make sense to reform in order to have a better ranking? Unfortunately, the answer might not be ‘yes’. Using simple law and economics theory, this paper seeks to scratch the surface of the ‘Enforcing Contracts’ section of the Reports, showing that, of the three measures the Reports now employ in relation to contract enforcement, only ‘days to enforce’ seems theoretically sound and giving some suggestions as to how to complement said measure to more meaningfully reflect efficiency in dispute resolution. Of the three measures — procedures, cost, and time — the first needs more solid theoretical foundations, the second is at odds with economic theory, and the third needs improvement to guide policy.

Section 2 offers a brief overview of the Reports, their background, and the issues addressed in this paper. Section 3 critically analyses the measure of number of procedures, and then Section 4 addresses the measure of costs in the light of economic theory. Section 5 looks at the impact of delay in enforcement and makes suggestions for improvement. Finally, Section 6 offers the author’s conclusions.

2. The Reports and enforcing contracts: An overview

The Reports’ stated goals are “to advance the World Bank Group’s private sector development agenda” by “motivating reforms through country benchmarking”, “informing the design of reforms”, “enriching international initiatives on development effectiveness”, and “informing theory”. ^*5 As these statements and the Reports’ titles suggest, the authors — a World Bank team led by economist Simeon Djankov — have a particular view of the effect of the regulatory environment on development. For them, ‘law matters’ for development, and better (frequently fewer) regulations lead to growth and job creation. ^*6 Moreover, they very explicitly try to promote legal reform according to their findings, highlighting “top reformers”, pointing at “who is not reforming”, showing “success stories”, and ranking countries according to the “ease of doing business”. ^*7

Intellectually, the Reports are inspired both by the Law and Finance movement started by Rafael La Porta, Florencio López-de-Silanes, Andrei Shleifer, and Robert Vishny, who tried to apply econometric analysis to the study of the law and legal traditions ^*8 ; and by the ideas of Hernando de Soto, a Peruvian economist who argues that the legal framework could push people toward the informal economy and prevent them from owning property, doing business, and raising themselves and their countries out of poverty. ^*9 These ideas were the origin of the New Comparative Economics movement and of the Reports. ^*10 They are also related to the New Institutional Economics school of thought, founded by Douglass North ^*11 , for which the institutional framework within which the agents of a given economy operate is determinant of the capability of that economy to achieve development. ^*12

Although cutting red tape seems in principle a good idea and the wealth of data the Doing Business project is gathering is remarkable ^*13 , both the Reports and their theoretical background have been subject to serious criticisms. ^*14 Furthermore, because of the impact in the media and the endorsement by the World Bank and other international institutions (most notably, the United States Millennium Challenge Corporation) ^*15 , the shortcomings of the Reports may be potentially harmful. ^*16 For some critics, the procedure for testing the Reports’ underlying hypotheses has been different from the one normally applied in economic research, which involves the risk of the measurement of institutional performance remaining subject to aprioristic policy recommendations:

The indirect cost of [the Reports] from the adoption of defective policies could therefore be huge, for two reasons. Firstly, the authors of the preliminary research are responsible for the subsequent reports. [Although probably insignificant, there could be a] risk that they will tend to search for or interpret the new information in such a way that it confirms their preconceptions[… Secondly], the fact that an institution as relevant as the World Bank is involved in the project covers up its defects and vouches for its conclusions which, in a normal situation, would be taken as preliminary, having a limited effect on policy. For these two reasons — the incorrect procedure and the participation of the World Bank in the project — there is considerable risk that such preliminary conclusions will be taken as final [determinations] and used for establishing wrong ‘best practice’ standards and for taking mistaken decisions in institutional reform. ^*17

In other words, because of the involvement of the World Bank and other international development aid institutions in the crafting of the rankings, and the potential (or effective) conditioning of aid and investment on how well a country scores in those rankings, the indicators have the potential of being very influential. Therefore, such measures have to be designed and tested with the utmost care and, further, have to be methodologically and theoretically sound, to avoid generating widespread implementation of inappropriate reforms or wrongly punishing the right policies. ^*18 This is particularly important in view of the emphasis the Reports’ authors (and, ultimately, the World Bank) place on highlighting the ‘good’ and ‘bad’ economies, those that have reformed according to the Reports’ metrics or not ^*19 , on suggesting the use of the Reports to guide reform ^*20 , and on how ‘what gets measured gets done’ ^*21 , suggesting that reforms that do not get measured or do not help the country improve its rankings may be overlooked despite their necessity or convenience.

The ‘Enforcing Contracts’ chapter focuses on measuring procedural laws and judicial institutions. The authors argue that courts should be “fast, fair and affordable” ^*22 , and they try to measure these qualities by setting up a hypothetical contractual dispute, examine the procedural laws of the countries surveyed to see how the dispute would be handled, check with local counsel, and use the information to build the measurement indices. ^*23 The indices were originally four: number of mandatory procedures requiring interaction between the parties and/or the court; cost incurred by the plaintiff; estimated time to resolve the dispute; and a measure that disappeared with the 2005 report, termed procedural complexity. ^*24 With this information, they rank the surveyed countries, stating that courts in richer countries (which arguably have the most ‘efficient’ courts) have fewer procedures ^*25 , are less costly ^*26 , and take less time to resolve the dispute. ^*27 In the 2004 report, the authors blame poverty, legal tradition, and procedural complexity as the main causes of court ‘inefficiency’, and suggest various reforms. ^*28 The theoretical and methodological background of the indicators and suggestions consists of a research paper authored by Djankov and others (hereinafter ‘the BP’) that argues that legal tradition and ‘formalism’ of procedure are associated with less desirable courts. ^*29

At first glance, the assertions might seem plausible, but this is less clear once the level of scrutiny is increased. If upon close scrutiny the measures do not prove methodologically or theoretically sound, their continued usage in the rankings may mislead governments into pushing for unnecessary or even incorrect reforms, hampering rather than fostering development. If that were to prove the case, the World Bank should reform the Reports forthwith, abandoning such measures for ones more meaningfully reflecting a legal system’s efficiency of enforcement of business contract arrangements.

T he problem is that the ‘enforcing contracts’ chapter does not pass such scrutiny. Firstly, the Reports assume a certain judicial dispute resolution procedure to be ideal, one that has very few steps and formalities. This is most apparent in the BP, which explicitly assumes the ‘ideal’ (in the sense of better justice) of the neighbour dispute and constructs the ‘formalism’ index to measure departures from said ideal. Thus was the ‘Number of Procedures’ indicator derived, under which a country scores better the fewer steps are necessary for enforcing a contract. As Section 3 attempts to show, ranking based purely on number of procedures appears baseless, as claiming the neighbour dispute is ‘ideal’ is a mere assertion without sufficient theoretical or authoritative backing. Moreover, a simple reductio ad absurdum shows the ‘ideal’ justice promoted by this chapter of the Reportsis arguably no justice at all. It may even fail the test of econometric regression. The assertion that using fewer procedures leads to ‘better’, or more ‘efficient’ justice, whatever that may mean, is not obviously true and needs to be argued properly.

Secondly, the Reports, elaborating on the neighbours’ ideal, posit that enforcing a contract in court should be cheap, fast, and fair, meaning that the (hypothetical) plaintiff should be able to go to court, get a judgment, and collect the debt in as short a time as possible, without any lawyers or appeals and paying as little as possible in court and attorneys’ fees. For the Reports, a court system that is able to achieve such a state of affairs would be ‘efficient’. Section 4 seeks to show that this idea is completely at odds with the basic literature on the economic analysis of procedural law and rational choice. For these theories (not disproved or argued against by the Reports or the BP), the aim of procedural law is to minimise the total costs of settling disputes for society as a whole: the ‘administrative’ cost of deciding the claim for the parties and the state and the cost of the case being decided ‘wrongly’ (not according to substantive law), and thus giving the wrong behavioural signals to society (taking into account the number and the quality of cases allowed to be filed). These costs are minimised in principle by doing the contrary of what the Reports prescribe: with out-of-court settlements that save on time and money spent on trials, which are more likely to come about the costlier going to court is for the parties; by enhancing the role of professional lawyers and judges; and through the existence of appeals.

However, the time measure does give some hint of judicial economic efficiency given the disruption that judicial delay may have on plaintiff claims. Section 5 thus argues that costs and procedural hurdles may be redeemed as efficiency gauges if the focus is placed on the issues that exacerbate the disruptive effect of time — particularly the enforceability of settlements themselves.

If the rationale for defining and detecting ‘best practices’ is flawed, the policy implications may be correct only by chance. Therefore, if the Reports are not framing the correct picture as regards enforcing contracts, then using their indicators to inform policy and reform may be harmful and should be discouraged.

3. Puzzling maths: The fewer the procedures, the better the court

3.1. A thin concept of an ideal court

The Reports have a special concept of what desirable courts administering desirable contract enforcement processes look like. For them, an ideal court uses few procedures and specialises in commercial matters; procedures do not require writing, lawyers, or legal argumentation; the judge is a layperson who does not need to give legal justification for the decision rendered; going to court is free or very cheap, with no court or attorney fees; there are few rules of evidence; and there are no appeals. ^*30 Such a court would be ‘fast, fair, and affordable’. Moreover, according to the Reports’ number of proceduresindicator, the fewer procedures necessary to enforce the model contractual dispute, the better the court. ^*31

The description is rather surprising, since it would count as ‘ideal’ procedures that might intuitively not seem fair. In the extreme, the ‘best’ possible court under this scheme would have only one procedure and a (merchant) lay judge. This can hardly be anything else than a plaintiff orally telling her story and the lay judge deciding on the spot without consulting the law, what the defendant has to say, or anything else. Let us imagine, for example, the following dispute settlement process.

D borrows € 100 from P and promises to pay back in three months the € 100 plus € 10 interest. One month later, the legislature validly passes a statute prohibiting and making void charging interest for non-banking loans of less than six months’ time term, but allowing the recovery of the principal. At the end of the third month, D pays P € 100. P claims the interest, D refuses to pay, citing the statute. P goes to the court, which does not charge any fees and therefore has a long queue, and when his turn arrives he explains the situation to the judge orally. She hears P and believes his contention that D owes him € 110 and not € 100. Nobody writes anything down, and she gives no justification for the decision. ^*32 She then asks P to go with the sheriff to D’s house, notify him of the decision, and seize the € 10 from D’s assets. The decision of the judge, who is a layperson, cannot be appealed. Let us imagine the same case, but now D never paid back the € 100, and P is a person with a bad reputation in the neighbourhood. P comes to the courthouse, the judge hears his case, and when P is finished the judge denies the claim immediately without giving any explanation. Again, there is no appeal, and P cannot question the judge’s impartiality.

Albeit arguably extreme, the process depicted above bears many characteristics the Reports consider desirable: it is free, is fast, and has few procedures, with no writing, no lawyers, no legal justifications, and no appeal. It would be almost instant justice — if it were justice at all. And, of course, it is far from being a ‘fair’ procedure. D’s clear legal right to not pay interest was denied in the first case. He had no opportunity to present a defence or correct the judge’s mistake in applying the law. Some procedures can be superfluous, but others may have a justification in adding fairness. For example, without proper notification of lawsuits against her, a person may not be able to adequately defend her rights; the plaintiff has the whole statute of limitations period to prepare the lawsuit, but the defendant may have just a few days to gather all the evidence and counter the plaintiff’s arguments; the participation of lawyers and professional judges charged with the duty of iura novit curia help to ensure respect for the rights of each party; and so on.

More generally, the different procedures and institutions within a dispute settlement process may be devices to, apart from reducing the ‘cost of error’, maintain what Shapiro calls the basic social logic of courts — the triad decision structure of the impartial third party deciding the dispute — from breaking down into a bullying two against one. ^*33 He argues that, although the basic social logic of courts is the triad of the parties and an impartial third, the triad is unstable because when the third decides the social logic becomes a defeat by two against one. Thus, a “substantial portion of the total behaviour of courts in all societies can be analyzed in terms of attempts to prevent the triad from breaking down into two against one”. ^*34 The process’s fairness arguably contributes to convincing the losing party “that he should obey the third man because he has consented in advance to obey” ^*35 by participating in the process.

On a more legalistic note, the International Covenant on Civil and Political Rights sets forth in its Article 14 what a minimally fair procedure should be. The Reports’ ideal court is a far cry from what this covenant prescribes. ^*36 The World Bank being an international institution related to the United Nations — in turn, devoted to fostering respect for human rights as embodied in international law — the Reports adopting such a weak concept of a ‘fair’ process is rather contradictory. ^*37

3.2. In search of a rationale

What is the Reports’ rationale for advocating such a model of dispute settlement? The Reports state that “fewer procedures are associated with reduced time and cost and with perceptions of improved fairness”. ^*38 Let us focus first on the fairness perception. The Reports mention that fewer procedures and less of what they term procedural complexity are associated with “perceived fairness” and “less corruption”. ^*39 These two measures, subjective in nature, are built upon figures from the World Business Environment Survey, a structured survey administered at the managerial level in enterprises around the world. ^*40 That seems odd, because the 2004 report harshly criticises subjective measures a few pages earlier and purports to depart from them ^*41 , on several grounds: “[a] large body of evidence shows that survey questions on perceptions do not always elicit meaningful responses”; are subject to design biases, varying responses due to the different scales used, uninformed answers, lack of a reference point, and sample selection issues; and “are often driven by general sentiment but do not provide useful indicators of specific features of the business environment”. ^*42 Therefore, when one applies the Reports’ own logic, the inference is somewhat questionable. Furthermore, the measures have the problem of reverse causality: it may be the case that because of the negative general perception of the courts, some procedures have been introduced to enhance fairness, not the other way around.

The Reports also mention that “[c]omparing by income quartiles […] the richest jurisdictions […] have the lowest number of procedures” and that “legal tradition is also associated with the efficiency of contract enforcement”, with the countries with Nordic legal origin having on average a lower number of procedures than the ones with a French legal origin. ^*43 However, it is not at all clear how ‘number of procedures’ relates to development or a country being relatively rich, nor is it obvious how a Nordic or French legal origin may be better or worse for development, or what the direction of causality is, despite the claims of the Law and Finance movement. ^*44

More importantly, the theory behind the inferences is not so clear either, the only suggestion being that “a higher number of procedures is associated with more opportunities in the judicial system for extracting bribes”. ^*45 If the judge in a given case is the only official able to take a bribe to speed up the process or favour one party, it may be irrelevant whether she takes, say, 10 bribes of € 100 in an equal number of procedures or one € 1000 bribe just before issuing a judgment. The assertion would make more sense if the procedures that open bribe opportunities have to be performed by different and independent officials, which may lead to a sort of ‘tragedy of the anti‑commons’ bribing scenario. ^*46 Unfortunately, the Reports do not explain in any depth why procedures are relevant to development. We should look for a rationale elsewhere.

The Reports are an elaboration of previous scholarly research studies published in peer‑reviewed journals. ^*47 The idea of the desirable process being very simple comes from the BP, which tries to show that courts’ performance and quality are determined by the level of ‘procedural formalism’ (how the law regulates their operation), trying then to measure empirically the determinants of such ‘formalism’ and its consequences for the quality of dispute resolution in courts. ^*48 The authors loosely apply the concepts of judicial efficiency, effectiveness, performance, and quality. Ultimately, the two measures of outcomes are the estimated duration ^*49 of dispute resolution and the ‘public’ perception of the quality of the legal system (using data from the World Business Environment Survey). ^*50 The two measures are subjective and subject to the objections mentioned above.

It is also apparent from the BP the manner in which the particular ‘ideal’ court notion seen here originated:

In a theoretical model of an ideal court, a dispute between two neighbors can be resolved by a third on fairness grounds, with little knowledge or use of law, no lawyers, no written submissions, no procedural constraints on how evidence, witnesses, and arguments are presented, and no appeal [Shapiro 1981]. […]

According to Shapiro [1981], the essence of an idealized universal court is the resolution of a dispute among two neighbors by a third, guided by common sense and custom. Such resolution does not rely on formal law and does not circumscribe the procedures that the neighbors employ to address their differences. Yet courts everywhere deviate from this ideal. ^*51

Then, the authors generate indices of ‘formalism’ as departures from their ‘neighbour model’, which looks a lot like the hypothetical case at the start of this section. They define seven aspects of it, including professionalism (professional judges and lawyers), whether procedures are oral or written, the need for legal justification, the characteristics of the rules of evidence, the existence of appeal, the characteristics of the engagement formalities (service of process), and the procedure count. ^*52

As above shown, the authors do not argue why they think the ideal court is the neighbour model; instead, they simply cite Shapiro ^*53 as authority. The problem is that Shapiro’s book does not seem to provide much authority for the claims the BP makes. He does not seem to propose a normative ideal court procedure to which all courts should approximate but, rather, suggests what the basic logic of the institution of a court is and how that basic logic has given way to modifications and additions in different countries and regimes. In short, Shapiro’s ‘ideal’ looks not like an ideal in the sense of ‘the best court’ but an ideal in the sense of the ‘basic idea of a court’. ^*54 Moreover, as argued above, procedures could be viewed as efforts to prevent Shapiro’s triad from breaking down; and, in that sense, the prescriptions of the BP and the Report as to the number of procedures and the lack of necessity of active participation of the defendant are directly at odds with what Shapiro describes as the logic of consent. ^*55 The example at the beginning of this section would not elicit D’s consent to the first decision and thus would fail as a triad.

Additionally, comparing the reasoning of the BP and the Reports reveals a peculiar shift. The BP identifies ‘formalism’ as the cause of ‘bad quality’ courts; with legal origins as the root of formalism. That was still the argument in the 2004 report, with ‘procedural complexity’ aggregating all formalism indicators except number of procedures. But since 2005 that indicator has been absent without trace or explanation. The only measured ‘cause’ of the ‘quality’ of courts in the subsequent reports is (apart from cost) the number of procedures. But the number of procedures is notwhat the BP pointed to as ‘cause’. So even if we considered the BP to be correct, it still would not provide support for the claim that fewer procedures is associated with ‘better justice’.

In sum, the court model the Reports promote has yet to be properly argued and justified.

3.3. Having fewer procedures does not mean having faster trials

Additionally, although the 2004 report claims that “fewer procedures are associated with […] reduced time” ^*56 , this claim does not seem to be supported by the data in that report or the subsequent ones. The countries ranking in the top and bottom 10 positions as regards number of procedures seldom match the corresponding top and bottom 10 for average length of proceedings. The 2004 report shows only Tunisia among the top 10 for both variables and only Angola among the bottom 10 for both measures. In the 2008 and 2009 reports, only Singapore and Hong Kong are among the 10 countries with fewest procedures and among the 10 with shortest trials, while only East Timor is among the bottom 10 in both counts. Irish processes, with 20 procedures, are 515 days long; Estonian ones are shorter (at 425 days) even though they involve 36 procedures. Sierra Leone has twice the Irish procedure count but the same process length, and in Brunei the process takes a very similar 540 days but has the highest number of procedures: 58. A simple regression between the two variables, using the data from the Doing Business site (calculated with the 2009 report’s methodology) ^*57 , confirms that the correlation between these variables is weak and procedure number explains less than 10% of the trial length. No correlations ever reach above 0.307, with R² never above 0.094, weakening any claims that having fewer procedures in general means having quicker trials. ^*58

In sum, the contention that the use of fewer procedures to enforce the hypothetical contract is associated with fairer and faster courts needs further argumentation and proof if it is to be convincing. If procedure number is not an independent ‘outcome’ measure of court quality ^*59 , the Reports’ advocacy for trials with few steps seems misplaced. ^*60

4. Forgetting economics: What appears to be cheap justice might be actually costly

Even if one were to concede that a fast and simple judicial process is somehow ‘ideal’ or desirable from the individual plaintiff’s standpoint, the Reports proposed process still may not be the most efficient from the point of view of society as a whole. Another element of the contract enforcement ranking is the enforcement cost for plaintiffs, computed such that a jurisdiction scores better the cheaper it is to go to court and enforce the hypothetical contract. ^*61 The underlying assumption is that justice should be cheap and within the reach of everybody, rich or poor, regardless of the amount the dispute concerns, to promote entrepreneurs resolving their disputes in court and avoid informal justice. For the Reports,

Courts have four important functions. They encourage new business relationships, because partners do not fear being cheated. They generate confidence in more complex business transactions by clarifying threat points in the contract and enforcing such threats in the event of default. They enable more sophisticated goods and services to be rendered by encouraging asset-specific investments in their production. And they serve a social objective by limiting injustice and securing social peace. Without courts, commercial disputes often end up in feuds, to the detriment of everyone involved.

Companies that have little or no access to courts must rely on other mechanisms, both formal and informal — such as trade associations, social networks, credit bureaus, and private information channels — to decide with whom to do business. Companies may also adopt conservative business practices and deal only with repeat customers. Transactions are then structured to forestall disputes. Whatever alternative is chosen, economic and social value may be lost. ^*62

In other words, if it is cheap to go to court for an entrepreneur when a new customer defaults, she does not need to be too careful in choosing customers and making client‑specific investments, expanding her potential market, and improving her capacity to compete. The wide availability of low-cost contract enforcement would promote entrepreneurship and thus be development-enhancing.

This ‘entrepreneur-empowering’ story looks plausible. However, little thought has been given to the efficiency of a cheap judicial contract enforcement scheme. It may well be the case that cheap enforcement for a person as an entrepreneur may mean costly government spending and heavy taxes for her as a taxpayer (or reallocation of funds from other programmes, such as those for hospitals and schools), perhaps an unreasonable high price to pay.

4.1. The bill that the plaintiff picks up is not the whole story

The data notes reveal, interestingly, that the enforcement cost indicator only comprises the cost incurred by the plaintiff as court, attorneys’ and enforcement fees. ^*63 However, the cost of the court system may be much greater, and such costs are not captured by the index. Perhaps in some cases the judicial branch is exclusively funded by explicit fees to the users, but that may not be the case always: the fixed costs of the judicial branch (such as salaries and rental costs) may be borne by the government budget from taxes on businesses and consumers. Moreover, following the Reports’ logic, an ideal commercial court could be one that enforces all contracts for free, coupled with a 100% government subsidy of attorney’s fees, in which case the whole cost would have to be borne by the taxpayers. But if two systems had identical procedures and equal total cost, only differing in that one is 100% funded by fees and the other 100% funded by taxes, it would be odd to say that the second is ‘less costly’ and therefore preferable from society’s point of view. Furthermore, there could be specific taxes paid at the time of signing a contract that make subsequent enforcement in court less expensive, faster, or even possible. In our example, the second system may be funded by a stamp tax paid upon signing a contract as a condition for its validity, making all contracts for which the tax was not paid effectively unenforceable. Such a system would be ‘free’ for the Reports yet clearly increases the cost for the plaintiff. ^*64

That the state bears part of the judicial burden might help to explain why richer countries (with presumably bigger budgets) have faster and ‘cheaper’ (in the Reports’ sense) courts, assuming, for example, that the judiciary’s main costs are fixed, such as salaries and costs of facilities. On the other hand, it could be argued that computing the cost as a percentage of the per capita income ^*65 already incorporates the increased resources available in rich countries. Again, countries with similar per capita income might have different judicial expenditure; countries with a similar judicial budget could use such resources with different degrees of efficiency. In any case, the Reports fail to take into account both a part of the cost and how efficiently it is incurred. ^*66

More importantly, focusing on how affordable courts are for plaintiffs and simplistically stating that the more affordable the better overlooks the simple economic logic of demand and supply of goods and efficient allocation of resources. The lower the price of an item, the greater the quantity demanded. But because the production of that item is not cost-free and resources are not infinite, producing too many of those items would lead to waste. Therefore, there is a point at which the marginal cost of producing an item is equal to the price the demand side is willing to pay for the last unit offered, such that the quantity offered is equal to the quantity demanded, and the price paid is equal to the marginal cost. Producing more or less than this would be wasteful. ^*67

This is no different for contract enforcement services. If going to court is too cheap, there will be just too many lawsuits. ^*68 The service is not costless; it needs judges, books, computers, courtrooms, clerks, lawyers, sheriffs, expert witnesses, juror compensation, and so forth. As in any enterprise, some costs will be fixed and some will depend on how many lawsuits are brought. There will then be a marginal cost of the enforcement service: the cost of having one more lawsuit. In the end, somebody will have to pay the bill. If the only one paying is the government and the cost for the plaintiff is zero, then she will file a suit even if the expected benefit for her is very small, regardless of the litigation cost for society. In a world of limited resources, subsidised demand may lead to queues, inefficient allocation, delay, and waste. A free court would be ideal for the Reports’ cost indicator but would be a nightmare of a court system, with a huge budget that is never enough and full of unresolved cases that will take years to conclude.

Conversely, if the fees are too high, there will be too few lawsuits. ^*69 Lawsuits have ‘positive externalities’, benefits that are perceived not by the parties but by society. For instance, the decision in a case between two persons may clarify a point of law that prevents (or promotes) the filing of similar cases between other people. Likewise, the likelihood that a lawsuit will be successful against a person if she breaches a contract may affect her decision to breach it; that makes publicising the outcome of breach of contract lawsuits important to deter (or positively sanction) contract breaching. ^*70 The Reports’ account of the courts’ development ‘functions’ quoted above could be construed as a story of positive externalities. Therefore, it may be the case that judicial enforcement of contract should be subsidised to promote development. Such considerations, however, should not be translated into a simplistic grading scale in which ‘the cheaper the better’; on the contrary, all cost and benefits should be taken into account if we want to accurately measure court ‘efficiency’.

4.2. The peculiar relationship between cost and chances of settlement

Besides overlooking the cost borne by the state, the Reports fail to consider the courts’ efficiency in generating the usual instruments by which disputes are solved: settlements. As the famous Hollywood quote puts it, “the whole idea of lawsuits is to settle” ^*71 , and some argue that fewer than 10% of the civil disputes filed in the US actually require a trial to be concluded. ^*72 Consequently, the Reports fail to consider more than 30 years of scholarly research in the economics of procedural law. Ever since the seminal work of Landes ^*73 , economic analysis has shown that, for an equal cost of error or quality of judicial decision, a more expensive court proceeding is preferable to a less expensive one because it promotes settlements and discourages frivolous suits, which in turn saves on costs, prevents queues, and promotes efficiency. ^*74

How is that so? Procedural rules have the function of regulating the application of substantive law. ^*75 Their use generates costs, not only ‘administration’ costs (such as courts, lawyers, and time) but also the cost of the court deciding ‘wrongly’ (i.e., contrary to what the substantive law prescribes) and consequently affecting incentives and behaviour in society, what Cooter & Ulen call the ‘error’ cost. ^*76 If we are concerned about court efficiency, we should assess whether the particular procedural law and court system concerned minimises the sum of administrative and error cost. If for a dispute an out-of-court settlement could imitate the outcome of the court decision (i.e., the trial cost of error is the same as the settlement cost of error) and the cost of reaching a settlement is lower than the administrative cost of trial, then it is socially preferable that the dispute be settled out of court to minimise administrative costs. In such a case, the only costs remaining would be the error costs. Arguably, these costs could be minimised by requiring more information from the parties (assuming that the more and better information judges have, the less the chance of error), providing for closer scrutiny of the evidence and its handling, maximising the chances for the parties to interact under the court’s auspices (providing opportunities to negotiate a settlement in an ‘impartial’ environment), requiring extensive and sophisticated legal argumentation from the parties’ counsel (that may better guide the judge in the decision), having professional judges available who understand such arguments, and allowing appeals (which are especially designed to correct mistakes). ^*77 That is the opposite of what the Reports prescribe.

Furthermore, from a rational choice standpoint, an efficient judicial procedure system is one that gives incentives to the parties to minimise costs and thus promotes settlements, discourages frivolous suits ^*78 , and minimises the risk of obtaining wrong judgments. What kind of procedure delivers these outcomes?

A settlement is possible when the expected value of the trial for each party (the judgment’s expected present value net of its expected cost) is lower than the expected value of the settlement net of its cost. In other words, if the plaintiff is better off going to trial than accepting the defendant’s offer for settlement, then she will not co-operate; she will go to trial to get more. If the defendant would lose less by letting the trial continue than the price the plaintiff is demanding to settle, then he will not co-operate and would refuse to settle. Since a settlement could achieve the same outcome as the trial, the only thing the parties would be bargaining for would be the trial’s expected cost — that is, what the parties could save and divide between them. To put it differently, the savings in transaction costs create a co-operative surplus, which is equal to the joint costs of litigating net of the costs of settlement. Therefore, the higherthe expected cost of trial, the lower the non-co-operative reserve price, the greater the co-operative surplus and the wider the room for bargaining to achieve a settlement. Conversely, if the parties have different expectations as to the outcome of the trial (value times probability) and they are both too optimistic, the non-co-operative reserve price would rise, reducing the surplus and with it the chances of settlement. Then, the higher the accuracy with which the parties could predict the judgment, the higher the chances of reaching an agreement. ^*79

Similarly, if the expected cost of suing is too low for the plaintiff but too high for the defendant, the former could file a suit even knowing that the expected net value of the trial judgment is low or negative (a frivolous ‘nuisance’ suit) and ask the defendant to buy her off under the threat of continuing the suit, thus causing the defendant to incur great losses. In such cases, again, the costlier the trial is for the party who would eventually lose (in this case, the plaintiff), via either a high bill or a ‘loser pays all’rule for allocating trial costs, the less the incentive to file nuisance suits. ^*80

4.3. The efficiency of having appeals

Finally, appeals are an instrument to reduce the error cost at low administrative cost, thus promoting social efficiency. ^*81 To consider a hypothetical situation similar to the one Cooter & Ulen use in their book ^*82 , imagine that in a dispute a judge, at an administrative cost of € 1000, has a 40% probability of deciding wrongly, generating € 25,000 of error cost. Then, the expected social cost of the judgment without appeal is € 11,000. Imagine now that a court of appeals is created, that parties file an appeal when the trial judge makes a mistake, and that the appeal court has the same 40% error probability as the trial judge and an administrative cost of € 1000. In such a case, the expected social cost of the dispute settlement would be reduced to € 5400 because the reduction in the cost of error would more than compensate for the higher administrative costs. ^*83 Of course, this is just a numerical example and different numbers yield different results. However, it shows that appeals are not generally ‘inefficient’, as the Reports suggest they are. Quite the contrary, under conservative assumptions, potential efficiency gains are apparent once the error cost is considered. Moreover, the appeal stage is also subject to the strategic interaction for a settlement, which will discourage filing appeals and encourage settlements if appealing is costly and the parties know the expected value of the appellate decision. In fact, few cases would reach appeal, and the plaintiff would consider the appeal’s expected value at the beginning, when deciding whether to sue or not. ^*84 Therefore, appeals may be helpful tools for preventing dispute settlement error cost, rendering the court system more efficientand not less. This is the opposite of what the Reports suggest.

In sum, the economic analysis of procedural law yields findings in direct contradiction with what the Reports depict as desirable courts. The costlier the trial, the greater the chance of a settlement, and thus the lower the social cost of resolving the dispute. Moreover, if trial fees are too low they may generate a non-optimal number of lawsuits. Additionally, the involvement of professionals and the existence of appeals may prevent or reduce the generation of error cost, making a system with professionals and appeals, ceteris paribus,more efficient than a system without lawyers or appeals. In sum, the Reports’ ‘cheap’ justice for the plaintiff is ‘costly’ for society.

Nevertheless, room might remain for the Reports to do some good. Since settlements’ likelihood depends on the parties’ perceptions, the information the Reports provide on the actual costs and length of trials could help parties with cases identical to the hypothetical to calculate better the cost of trial and the value of the surplus to be divided.

5. Hamlet’s dread: The disruptive effects of the law’s delay

Hamlet’s first lines in Act III of that Shakespeare play are among the most famous in world literature. A few words after “To be or not to be”, Hamlet mentions “the law’s delay” as one of life’s tragedies. ^*85 Centuries later, the delay in enforcing contracts around the world is still significant, as the Reports, for instance, point out. ^*86 Although court delay does not obviously relate to development directly ^*87 , it has been argued that strong protection of property rights is a necessary condition for development ^*88 , and having an effective enforcement system addressing property rights violations thus might be development-enhancing.

In the context of a legal conflict, the delay to resolve the dispute may disrupt the underlying property rights — and economic efficiency in general — in several ways. Firstly, and fundamentally, property rights that are in dispute cannot be bought or sold on the market at their usual market value (if they can be sold at all); there is a probability of the seller losing the dispute totally or in part and the right then losing its value or even becoming worthless, determining a risk premium. Every day that passes without the dispute being resolved is one more day in which the affected resources cannot be routed to the most efficient use, one more day of opportunity cost and economic loss.

Secondly, the passage of time allows the evidence backing a legal claim to decay, making it more difficult to gather witnesses (who may forget, become incapacitated, or even die before appearing in court) or necessary documents (which may get lost or damaged), etc. Moreover, delay in resolving a dispute may trigger statutes of limitation of related rights, affecting their value. As the probability of a lengthy process grows, the probability of having a worse case to put to trial also grows, and the value of the legal claim and the underlying right diminishes.

Thirdly, the very interest of the parties in the dispute may shift or disappear with the passage of time. Plaintiffs and defendants may go out of business; corporate parties may be sold, taken over, dissolved or their management be changed or retire; and parties that are natural persons may die or grow tired of going to court. Furthermore, some disputes may be very time-sensitive and the value of pursuing them may change dramatically, depending on whether they could be resolved rapidly or not. For instance, a dispute over a corporate merger that is not resolved quickly may affect the share price of the companies involved, reduce or destroy the profit the parties expect from the deal, and remove the incentive to make it, eliminating the efficiency gains that may result from the merger.

Fourthly, and related to the first issue, time is money and a euro today is worth more than a euro tomorrow. If the successful plaintiff is not granted interest and inflation adjustment on the amount claimed for the time of the enforcement process at the end of it, or the interest rate is lower than the (inflation-adjusted) market rate, every day of delay in enforcement implies economic loss for the plaintiff. Conversely, the defendant may have a financial benefit from the delay, as she does not have to pay unless and until the court’s decision has been issued, upheld (if appealed), and executed.

Finally, parties in court systems subject to the above-mentioned factors may be well aware of them and adjust their behaviour strategically to manipulate the delay to their advantage. For a defendant, for instance, it would often be financially and economically efficient to let the process continue as long as possible because the likelihood of an adverse court decision and its expected amount diminish the later the decision is issued. Conversely, known court delay may also strategically benefit a plaintiff, who may file a frivolous claim against a corporate merger proposal and take advantage of the delay to ‘kill’ the deal. Likewise, a person suspecting she will be sued may engage in perverse forum shopping, precluding the claim against her by filing a counterclaim in a court that lacks jurisdiction but will take too long to issue a decision declining jurisdiction, forcing the appropriate court to wait and improving her negotiating position vis à vis the suing party.

In these contexts, settlements that prevent trials and save on total social cost are less likely. If the delay in the process asymmetrically benefits defendants, if the cost of postponing the dispute resolution (including the present value of the eventual judgment) is lower for her than the cost of settlement, she will have an incentive to try to make the litigation as slow and difficult as possible — filing obstructive appeals, introducing extraneous witnesses, contesting every procedural issue, contesting the court’s jurisdiction, etc. — instead of trying to settle, investing effort, time, and money that may have better uses. Therefore, efficiency would require mechanisms to prevent this kind of abuse. Note that the abuse comes not from the mere existence of appeals or other procedural hurdles but from the economic and financial effect the delay has on the plaintiff’s claim and the underlying property right. In other words, because of glitches in the system, time favours one party over the other, and those problems should be solved just enough for the incentives to be again in favour of settling.

L ikewise, it may be the case that settlement as an institution cannot perform the cost- a nd time-saving function. In some jurisdictions, for instance, settlements may be too expensive or difficult to complete, or they may not even be legally possible. As mentioned above, if the cost of settlement for one party is higher than the cost of trial for him, it will be rational for him to go to trial instead of settle.

Furthermore, even if settlements are not too expensive, they may not be helpful in certain contexts. A settlement in a case may save the parties going to trial but may need another lengthy process to be actually enforced and let the plaintiff collect the amount agreed upon. Many settlements feature the defendant paying a lump sum to the plaintiff and the plaintiff relinquishing her rights and abandoning the trial, all at the same time; the court is notified after the fact that the dispute has been settled and the trial is over. In many situations, however, it would be necessary or convenient that the defendant promise to do additional things (such as refrain from doing something), the parties may have reached an agreement about the legal rights but the amount to be paid is still undecided, or the settlement might be void (unless and) until the judge endorses it. In such cases, some elements would remain pending and there will be a chance of a settlement breach, or, put more plainly, the plaintiff will still have to do a lot to collect her money. Therefore, if a settlement is not equivalent to a court judgment and has to undergo a long process to be enforced, the trial time and cost saved may not be substantial. ^*89 Imagine, for example, a jurisdiction where a court in average trials takes 100 days to issue a decision but it takes a further 100 days for the successful plaintiff to enforce the judgment and finally collect. If the parties reach a settlement that saves half of the first 100 days (for instance, agreeing on the allocation associated with negligence but contesting the damages), or the settlement has the same status as a normal contract subject to breach (in which case, a trial of, let us say, 50 days will ensue), or if the settlement, even if equivalent to the judgment, requires completion of the post-trial execution process, the time and cost saved by settling will account for only a fraction of the total time and cost involved.

Taking into account the considerations stated above, it may be possible to reform the indicators to more accurately measure the effect of court delay and efficiency. Although designing a statistical indicator is beyond the scope of this paper, three areas may be explored to reform the Reports. First, most objections made above to the number of procedures indicator focused on the trial part, wherein the legal rights are determined and fairness has to be attended to particularly. By contrast, the post-judgment part of the process might prompt fewer fairness concerns, as in that stage the legal entitlements have already been defined. Moreover, settlements tend to be better in saving on trials than they are in saving on judgment enforcement (to which they may be subject just as court decisions are). Therefore, the indicator may still play a useful role if its emphasis were to shift to assessing judgment enforcement and enforcement asymmetries between settlements and court decisions. The Reports, although retaining the opacity in how they reach their conclusions, have started to raise these issues by changing their recommendations. ^*90 However, they have yet to shed the mechanical assumption that a system with fewer procedures is automatically better.

Second, settlements are costly and the cost differential for each of the parties between settling out of court and going to trial shapes the incentives that guide their behaviour. If the enforcement cost indicator were to focus not only on court costs but also on the cost of alternative dispute resolution mechanisms and their relative enforcement value, or on the availability of financing for plaintiffs to go to court, without simplistically assuming that ‘cheaper is better’, it could yield a wealth of useful information.

Third, how different jurisdictions deal with the disruptive effect of court delay may be something useful to measure. Therefore, it might be worth knowing how easy obtaining a preliminary injunction is in each jurisdiction, whether there is a gap between the interest rate granted to the plaintiff in judgments and the market rate (or whether adjustment of the claim to offset inflation is allowed), whether there are adequate measures to protect the evidence and the defendant’s solvency, and so forth.

6. Conclusions

The first report was entitled Understanding Regulation. ‘Understanding’ implies a humble enterprise, one of observing, theorising, testing and validating. With later issues, the statements of the Doing Business project unfortunately became bolder and their sweeping conclusions more assertive. In six short years, the focus shifted from the search for knowledge to a push for reform, and in that process the concern for backing the indicators with solid theory was left behind somewhat. Thus, the Reports continue measuring legal institutions according to a preconceived supposed ideal, the neighbours’ dispute settlement, whose basis in reasoning is not solid. The measures that are utilised on such a basis are presented as bold facts, but important shortcomings lie under the surface. From these shattered measures, the Reports go further then, to issue policy recommendations, which have a great chance of being flawed and harmful.

Even if we were to concede that fewer procedures and less formalism lead to better courts, the Reports would still not be saved. For more than 30 years now, the economic analysis of procedural law has shown that the most efficient procedural rules (in the sense of reducing the costs for society as a whole) are the ones that establish a court system that elicits the optimal number of lawsuits, minimises the probability and cost of issuing a wrong judgment, and also minimises the administrative cost of resolving the disputes — by promoting out-of-court settlements. Such a system requires a procedure completely different from, and practically the antithesis to, the Reports’ ideal; that is, the costlier and the more legally sophisticated, the better.

However, court delay may be a significant problem, as the passage of time affects the value of claims and the underlying property rights and also may hamper a court system’s ability to reduce the administrative and error cost of disputes. If the Reports’ measures were to shift their focus back to ‘understanding’ and explore how court systems around the world cope with the disruptive effect of delay and shape litigant behaviour, they could contribute greatly to development and justice.

The Reports have the aim of motivating reforms through country benchmarking, informing the design of reforms, enriching international initiatives on development effectiveness, and informing theory. The ‘Enforcing Contracts’ chapter has certainly missed the target.

Notes:

^*1 This paper elaborates on previous articles written for the Law and Development course held by Prof. Kevin Davis in Singapore in 2007 for the NYU and NUS Dual LL.M. program in Law and Global Economy, and as master thesis for the LL.M. in Law and Economics program of the Universidad Torcuato Di Tella (UTDT) School of Law in Buenos Aires, Argentina. The author wishes to thank Prof. Davis and all the participants in the Law and Development course, Prof. Julio Kelly and Prof. Eduardo Baistrocchi from UTDT, Prof. Tiiu Paas from the University of Tartu, Dr. Carri Ginter from Sorainen, Mr. Ludovico Baistrocchi and Ms. Katri Paas for the encouragement, support and enlightening comments provided. Any opinions and shortcomings of this paper are the author’s exclusive responsibility.

^*2 The Reports are the following: Doing Business in 2004: Understanding Regulation. Washington DC: World Bank 2004. Available at http://www.doingbusiness.org/Documents/DB2004-full-report.pdf (hereinafter ‘Report 2004’); Doing Business in 2005: Removing Obstacles to Growth. Washington DC: World Bank 2005. Available at http://www.doingbusiness.org/documents/DoingBusiness2005.PDF (hereinafter ‘Report 2005’); Doing Business in 2006: Creating Jobs. Washington DC: World Bank 2006. Available at http://www.doingbusiness.org/documents/DoingBusines2006_fullreport.pdf (hereinafter ‘Report 2006’); Doing Business 2007: How to Reform. Washington DC: World Bank 2006. Available at http://www.doingbusiness.org/documents/DoingBusiness2007_FullReport.pdf (hereinafter ‘Report 2007’); Doing Business 2008. Washington DC: World Bank 2007. Available at http://www.doingbusiness.org/documents/DB08_Full_Report.pdf (hereinafter ‘Report 2008’); Doing Business 2009. Washington DC: World Bank 2008. Available at http://www.doingbusiness.org/Documents/FullReport/2009/DB_2009_English.pdf (hereinafter ‘Report 2009’).

^*3 See www.doingbusiness.org, cited in J. Berg, S. Cazes. Policymaking Gone Awry: The Labor Market Regulations and the Doing Business Indicators. – Comp. Labor Law & Pol’y Journal 2008 (29), p. 350.

^*4 See Report 2006, p. 92; Report 2007, p. 6; Report 2008, p. 6; Report 2009, p. 6.

^*5 See, e.g., K. E. Davis, M. B. Kruse. Taking the Measure of Law: The case of the Doing Business Project. – Law & Soc. Inquiry 2007 (32), p. 1098; Report 2004, pp. ix–x.

^*6 See in general, the Reports (Note 2), “Overview” section. See also Association Henri Capitant des Amis de la Culture Juridique Française. Les Droits de Tradition Civiliste en Question: À Propos des Rapports. Doing Business de la Banque Mondiale. Paris: Société de Législation Comparée 2006, p. 16 (hereinafter AHC); K. E. Davis, M. B. Kruse (Note 5); B. Arruñada. Pitfalls to Avoid when Measuring Institutions: Is ‘Doing Business’ Damaging Business? – Universitat Pompeu Fabra Economics and Business Working Paper 2007/1040. Available at http://ssrn.com/abstract=997225 (28.07.2009).

^*7 See, e.g., Report 2007, pp. 1–7; S. Djankov, C. McLiesh. Celebrating Reform. – Celebrating Reform. Washington DC: World Bank 2007, pp. 1–9 (where the authors even give “Oscar” prizes for “outstanding reformers”); B. Arruñada (Note 6), pp. 4–5; K. E. Davis, M. B. Kruse (Note 5), pp. 1114–1116.

^*8 See AHC (Note 6), pp. 14–15; K. E. Davis, M. B. Kruse (Note 5), pp. 1096–1097. The first paper published by the group Rafael La Porta et al. Law and Finance. – Journal of Political Economy 1998 (106), pp. 1113–1155, used econometric regressions to show that “common-law countries generally have the strongest, and French civil-law countries the weakest, legal protections of investors, with German- and Scandinavian-civil-law countries located in the middle” (Paper’s abstract). This paper (and studying the law through mere econometrics) is aptly ridiculed in M. D. West. Legal Determinants of World Cup Success. – John M. Olin Center for Law & Economics (University of Michigan) 2002, paper #02–009.

^*9 See, e.g., Report 2004, pp. vii, x, 17; K. E. Davis, M. B. Kruse (Note 5), p. 1101; H. de Soto, E. Ghersi, M. Ghibellini. El Otro Sendero. Buenos Aires: Sudamericana 1987.

^*10 S. Djankov et al. The New Comparative Economics. – J. Comp. Econ. 2003 (31), pp. 595–619. For a good account on the history of the movement and of the Reports, see C. Ménard, B. du Marais. Can We Rank Legal Systems According to Their Economic Efficiency? – Journal of Law & Policy 2006 (26), pp. 55–80.

^*11 See, e.g., D. C. North. Institutions and Economic Growth: An Historical Introduction. – World Dev. 1989 (17), pp. 1319, 1320, cited in T. Ringer. Development, Reform, And The Rule Of Law: Some Prescriptions For A Common Understanding Of The “Rule Of Law” And Its Place In Development Theory And Practice. – Yale Hum. Rts. & Dev. L.J. 2007 (10), p. 178; K. E. Davis, M. B. Kruse (Note 5), p. 1096.

^*12 See, e.g., M. K. Nabli, J. B. Nugent. The New Institutional Economics and its Applicability to Development. – World Dev. 1989 (17), pp. 1333, 1342, quoted in T. Ringer (Note 11) (“by affecting transaction costs and coordination possibilities, institutions can have the effect of either facilitating or retarding economic growth. The choice of appropriate political institutions, rules and policies enhances economic growth. Moreover, by affecting resource mobility and the incentives for innovation and accumulation, institutions may induce or hinder economic efficiency in the allocation of resources and growth. Institutions affect growth also through their effects on expectations, social norms and preferences”).

^*13 See K. E. Davis, M. B. Kruse (Note 5), p. 1100.

^*14 See, in general, AHC (Note 6); B. Arruñada (Note 6); J. Berg, S. Cazes (Note 3); B. Arruñada. How Doing Business Jeopardizes Institutional Reform. – Universitat Pompeu Fabra, Economics and Business Working Paper 2008/1088, May. Available at www.arrunada.org (28.07.2009). See also K. E. Davis, M. B. Kruse (Note 5).

^*15 Millenium Challenge Corporation. Guide to the MCC Indicators and the Selection Process, Fiscal Year 2008, pp. 3, 23–35; Millenium Challenge Corporation. Guide to the MCC Indicators and the Selection Process, Fiscal Year 2009, pp. 3, 26–35. Available at http://www.mcc.gov/mcc/bm.doc/mcc-fy-09-guidetotheindicators.pdf (28.07.2009).

^*16 See, e.g., B. Arruñada. Will Doing Business Keep Damaging Business? Available at www.arrunada.org (28.07.2009); B. Arruñada (Note 6); J. Berg, S. Cazes (Note 3); C. Ménard, B. du Marais (Note 10); B. Arruñada (Note 14); K. E. Davis, M. B. Kruse (Note 5), pp. 1114–1116.

^*17 B. Arruñada (Note 6), pp. 3–4.

^*18 See, e.g., C. Ménard, B. du Marais (Note 10), p. 57.

^*19 See, e.g., Report 2007, pp. 1–7; Report 2008, pp. 1–8; Report 2005, pp. 1–15.

^*20 See, e.g., Report 2005, p. 10.

^*21 See, e.g., Report 2007, pp. 3–4; Report 2008, pp. 7–8.

^*22 Report 2004, p. 46.

^*23 Ibid., pp. 1–7.

^*24 “[Based on local attorney questionnaire responses] four indicators of […] commercial contract enforcement [efficiency] are developed: 1. the number of procedures, mandated by law or court regulation, that demand interaction between the parties or between them and the judge or a court officer; 2. the time needed for dispute resolution in calendar days, counted from the moment the plaintiff files the lawsuit in court until the moment of settlement or, when appropriate, payment ([including] the days when actions take place and the waiting periods between actions); 3. the official cost of going through court procedures, including court costs and attorney fees; and 4. the procedural complexity of contract enforcement—an index that scores countries on how heavily dispute resolution is regulated.” Ibid., p. 6.

^*25 Ibid., p. 44.

^*26 In terms of income per capita, ibid., p. 109; Report 2007, p. 72.

^*27 Report 2004, p. 48.

^*28 In the Report 2004, pp. 48–53, the suggested reforms are establishing information systems and judicial statistics, taking non-dispute cases out of court, simplifying judicial procedures and establishing specialized courts. This has somewhat changed over the years; in the Report 2007, pp. 51–52, they suggest better salaries for the judges, transparent and merit-based appointment, fighting corruption (perception) through asset disclosing of judges and publicizing imprisonment of corrupt judges, and specialized courts (that provide mass production, simplified procedures and less formalism).

^*29 S. Djankov et al. Courts. – Quarterly Journal of Economics 2003 (118) 2, pp. 342–387. Available at http://www.doingbusiness.org/documents/LexPaperAug211.pdf (28.07.2009).

^*30 See Report 2004, pp. 42–46; BP, pp. 4, 6.

^*31 See Report 2004, pp. 45, 48, 109–10; Report 2008, pp. 50, 80 (“A procedure is defined as any interaction between the parties, or between them and the judge or court officer. This includes steps to file the case, steps for trial and judgment and steps necessary to enforce the judgment”).

^*32 Note that because under the Reports “ideal” there is no need to give any rationale for the decision, the hypothetical judge may use any method she sees fit (under her own criteria) to arrive to a decision, including methods that may not be otherwise regarded as proper for a court, e.g., tossing a coin or rolling dice.

^*33 M. Shapiro. Courts. Chicago and London: The University of Chicago Press 1981, pp. 1–3.

^*34 Ibid., p. 2.

^*35 Ibid.

^*36 See International Covenant on Civil and Political Rights, Article 14. Available at http://www2.ohchr.org/english/law/ccpr.htm (28.07.2009).

^*37 For similar arguments regarding the employing workers indicator and ILO labour standards, see J. Berg, S. Cazes (Note 2); ILO Governing Body Document GB.300/4/1, 300^th Session. November 2007. Available at http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_085125.pdf (28.07.2009).

^*38 Report 2004, p. 46.

^*39 Ibid., pp. 46–47. See K. E. Davis, M. B. Kruse (Note 5), pp. 1111–1112, n. 13.

^*40 Ibid., citing G. Batra, D. Kaufmann, A. H. W. Stone. The Firms Speak: What the World Business Environment Survey Tells Us about Constraints on Private Sector Development. 2003. Available at http://ssrn.com/abstract=541388 (28.07.2009).

^*41 See K. E. Davis, M. B. Kruse (Note 5), p. 1112.

^*42 Report 2004, pp. 12–13 [citations omitted].

^*43 Ibid., p. 48.

^*44 See AHC (Note 6). See also K. E. Davis, M. B. Kruse (Note 5), pp. 1109, 1111–1113.

^*45 Report 2004, p. 47.

^*46 See in general, M. A. Heller. The Tragedy of the Anticommons: Property in the Transition from Marx to Markets. – Harv. L. Rev. 1998 (111), p.  621.

^*47 Report 2004, p. ix.

^*48 BP, p. 4.

^*49 For the lawyers answering the questionnaires. Ibid.

^*50 Ibid., p. 17. From that it could be inferred that the number of procedures and the cost are both independent variables and not “outcome” measures.

^*51 Ibid., pp. 4–6.

^*52 Ibid., pp. 12–17.

^*53 M. Shapiro (Note 33).

^*54 Ibid., pp. 1–2, 36–37.

^*55 Ibid., p. 2.

^*56 Report 2004, p. 46.

^*57 The methodology has changed over the years, cf. Report 2009, pp. viii, 76–77 with Report 2004, pp. 109–110.

^*58 The correlation for 2004 is 0.249, with an R² of 0.062; the correlation for 2005 is 0.215, with an R² of 0.046. The correlation for 2006 is 0.303, with an R² of 0.092; for 2007 it is 0.307 with R² of 0.094. The correlation for 2008 is 0.291 with R² of 0.084; while for 2009 the correlation is 0.301 and the R² is 0.09. The graphs and the correlations are available by request with the author.

^*59 Apparently for the authors it is not, see above Note 51.

^*60 See AHC (Note 6), pp. 71–72.

^*61 See, e.g., Report 2004, p. 46; Report 2008, pp. 50, 82.

^*62 Report 2004, p. 41. See also H. de Soto (Note 9).

^*63 See Report 2004, p. 109; Report 2009, p. 77 and in general the Survey on Contract Enforcement available at http://www.doingbusiness.org/Documents/DBSurvey/FullSurveysDB08/Enforcing_Contracts_Survey2008.pdf (28.07.2009).

^*64 For the reciprocal problem of measuring only ex ante costs regarding the “Starting a Business” section of the Reports, see B. Arruñada (Note  6), pp. 12–14.

^*65 As from the Report 2005, the claimed amount of the hypothetical is defined as 200% of income per capita, and the cost is quoted as percentage of the claim. See Report 2007, p. 72, Report 2009, p. 77, and the Survey (Note 63).

^*66 See B. Arruñada (Note 6), pp. 14–18.

^*67 See, e.g., S. Shavell. Economic Analysis of Litigation and the Legal Process. – Harvard Law School John M. Olin Center for Law, Economics and Business, Dicussion Paper No. 404 (13.02.2003). Available at http://lsr.nellco.org/harvard/olin/papers/404 (28.07.2009).

^*68 Ibid.

^*69 Ibid.

^*70 Ibid.

^*71 The quote comes from Jan Schlichtmann, the character played by John Travolta in the motion picture A Civil Action (Touchstone Pictures, 1998). Available at http://www.imdb.com/title/tt0120633/ (28.07.2009).

^*72 R. Cooter, T. Ulen. Law and Economics. Addison-Wesley 2004, p. 414. See also S. Shavell (Note 69); K. E. Davis, M. B. Kruse (Note 5), p. 1107.

^*73 W. M. Landes. An Economic Analysis of the Courts. – Journal of Law & Economics 1971 (14), pp. 98–103.

^*74 Ibid.; R. Cooter, T. Ulen (Note 72), pp. 391, 398 and 413–427; S. Shavell (Note 69), and literature mentioned there.

^*75 R. Cooter, T. Ulen (Note 72), p. 391.

^*76 Ibid.

^*77 Ibid., pp. 391, 413 and 435–436.

^*78 Ibid.

^*79 Ibid., pp. 414–417.

^*80 Ibid., pp. 418–419. But see S. Shavell (Note 67) (arguing that fee-shifting may worsen the problem of excessive suit).

^*81 Ibid., p. 435.

^*82 Ibid.

^*83 New Exp.Soc.Cost = Trial.Adm.Cost + Prob.Trial Mistake x [App.Adm.Cost + (Prob.App. Mistake x Error Cost)] and thus: New Exp.Soc.Cost = € 1000 + 0.4 x [€ 1000 + (0.4 x € 25,000)] = € 5400.

^*84 Ibid., pp. 392–398.

^*85 After “Th’ oppressor’s wrong, the proud man’s contumely” and “the pangs of disprized love”, Shakespeare. Hamlet, Prince of Denmark. Act III, scene I. – W. Shakespeare. The Complete Works. Oxford: Oxford University Press 1988, p. 670, quoted in Report 2004, p. 41.

^*86 See, e.g., Report 2008, p. 49.

^*87 See K. E. Davis, M. B. Kruse (Note 5), p. 1109.

^*88 See, e.g., G. P. O’Driscoll Jr., L. Hoskins. Property Rights, The Key to Economic Development. – Policy Analysis 2003/482, pp. 8–9.

^*89 I am leaving aside the problem of the proficiency of the parties in developing and drafting the settlements.

^*90 See, e.g., Report 2008, p. 52 (suggests as positive reform making the enforcement of judgments faster and cheaper).

This article will review the question of whether the Estonian national judicial system offers a domestic judicial remedy for individuals complaining that judicial proceedings in which they are involved have taken unreasonable time. The right to have a judgment rendered within reasonable time on one’s civil rights and obligations or on criminal charges is categorised as a fundamental right and as such protected under the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the Convention’). ^*1 Since Estonia is a member of the Council of Europe ^*2 and has ratified the Convention ^*3 , it has the obligation to abide by the latter and also be guided by the case law of the European Court of Human Rights (ECHR). Estonia belongs to the group of European countries for which the Convention has a status by which it is superior to general domestic laws but remains subordinate to the national constitution. ^*4 Section 123 of the Estonian Constitution ^*5 provides that if domestic laws are in conflict with any international treaties ratified by the Parliament (Riigikogu), then the provisions of the international treaty concerned shall prevail. The Constitution has a ‘special’ status since it is the only legal act in Estonia that has been adopted by a national referendum.

The Estonian Supreme Court has on numerous occasions declared that the provisions of the Convention are superior to domestic laws. For example, in a 6 January 2004 judgment of the General Assembly, the following was expressed: “The European Convention for the Protection of Human Rights and Fundamental Freedoms constitutes an international treaty, ratified by the Riigikogu (Parliament), which has priority over Estonian laws or other legislation.” ^*6 Recently the Supreme Court has expressis verbis confirmed that the judgments and decisions of the ECHR are to be directly applied in Estonia in cases similar to those decided by the international court. ^*7 The Supreme Court has not ruled on the question of which judgments have priority in the event of conflict of opinion — the decisions of the ECHR or its own judgments. ^*8 The present article will touch upon this interesting question as well.

These brief introductory remarks are intended to demonstrate that there is no doubt that Estonia has an obligation to apply the Convention standards, and indeed the country has on numerous occasions expressed its willingness to do so. This commitment has been manifested both in theory and in practice — for example, through the law-making activity of the legislative branch of the Estonian state and through the application of laws by the Supreme Court. ^*9 The author of this article has recently argued that explanatory reports accompanying amendments to existing laws or associated with the new proposed laws discussed in the Estonian Parliament often analyse the proposed Estonian legal norm in the context of the Convention as applied by the ECHR. ^*10 The author has also demonstrated that in 2008 the General Assembly of the Supreme Court relied upon the ECHR case law in only one judgment out of 12 ^*11 , which is a considerable decrease from the proportion seen in the years up until 2005, in which era the General Assembly had relied upon ECHR case law in some capacity in 11 judgments out of 26. ^*12 In this way or another, it can be safely argued that both the Convention and the case law of the ECHR have found their way into the Estonian everyday legal discourse, at least at the Supreme Court level.

However, the question of whether the Estonian judicial system offers an effective remedy against unreasonable length of proceedings has become a ‘testing ground’ for the question of whether the Estonian legal system indeed is guided fully by the case law of the ECHR. This is so because until now the latter question had remained mainly theoretical. There have not been any ‘embarrassing’ judgments with respect to Estonia — that is, judgments raising serious questions about the quality of our judicial system as a whole or about certain aspects of it corresponding to the standards set by the ECHR. ^*13 Whether this is so because of diligent work by the Estonian judiciary, unawareness of Estonia’s legal subjects about the protection possibilities offered by the ECHR machinery, or the impact of the Strasbourg ‘filter’ on the outcome of a case — in both the formal and informal meaning of the word — remains beyond the scope of this article. ^*14

At the time of the writing of this article, there seems to be a different principal position taken by the ECHR and the Estonian Supreme Court as to the existence of such an effective national remedy. Both courts seem to stand firmly behind their position. It is therefore a unique possibility to follow how this conflict of courts will be resolved. It also allows one to ask whether reliance on the ECHR caselaw on the part of the Estonian Supreme Court has been only a matter of convenience or need ^*15 in a search for additional argumentation for its judgments, or whether the Supreme Court is indeed willing to change its understanding of certain aspects of law — by reversing or reviewing its previous position written into its judgments — in consequence of the directives stemming from judgments of international courts. Although the author of this article has not noted such change of Supreme Court positions in respect to the judgments of the ECHR ^*16 , the Supreme Court has declared its change of position due to developments in European Court of Justice (ECJ) jurisprudence. Specifically, the Supreme Court has ruled that, since the ECJ judgment of 11 December 2007 in case C-161/06, Skoma-Lux, prohibited imposing obligations on individuals stemming from the Union Law if the respective law had not been published in the Official Journal of the European Union ^*17 , the Supreme Court reversed its position that professionals in the corresponding field needed to abide by the EU rules irrespective of the official publication of these norms. ^*18

The article begins by presenting a short overview of the position of the ECHR concerning an effective national remedy against unreasonable length of proceedings. Then, the article will review the judgments of the ECHR with respect to Estonia regarding complaints in this area — where the ECHR has established the absence of such an effective domestic remedy, counterbalanced by the findings of the Estonian Supreme Court, which suggest that such a domestic remedy is available. The article will conclude with contemplation of possible scenarios for resolving this conflict of courts.

2. The position of the European Court of Human Rights

The ECHR had until 2000 refused to review applications that claimed violation of the Convention’s Article 6 (1) due to the unreasonable length of proceedings and simultaneously argued that the applicant did not have an effective remedy in the domestic judicial system to have this argument decided. According to the position of the ECHR until 2000, the Convention did not bestow upon an individual the right to turn to domestic authorities during the ongoing judicial proceedings with a request to establish the violation of fundamental rights in view of the unreasonable length of these proceedings. The ‘victim’ of the situation had to wait until the final court judgment in the proceedings concerned. The ECHR has explained its former position in one of the most important judgments of the new millennium — Kudla v. Poland ^*19 — by saying that in the situations concerned the court did not examine the violation of Article 13 ^*20 of the Convention because it considered Article 6 (1) to be lex specialis toward Article 13 in respect of claims related to the unreasonable length of proceedings. ^*21

The ECHR explained its change of position through two main arguments:

1)  A complaint about the unreasonable length of proceedings under the Convention’s Article 6 (1) does not incorporate the notion that the individual wishes this complaint to be reviewed by a ‘domestic authority’: “The question of whether the applicant in a given case did benefit from trial within a reasonable time in the determination of civil rights and obligations or a criminal charge is a separate legal issue from that of whether there was available to the applicant under domestic law an effective remedy to ventilate a complaint on that ground.” ^*22

2)  The number of applications to the ECHR concerning the unreasonable length of domestic proceedings might undermine the effectiveness of the Strasbourg system as a whole. The Court noted that “the important danger that exists for the rule of law within national legal orders when ‘excessive delays in the administration of justice occur’ in respect of which litigants have no domestic remedy”. ^*23

For the purposes of this article, it is necessary to note two aspects of this change in the ECHR’s position.

Firstly, the fact of the change itself in the Court’s position was clearly emphasised, with the note that “the Court now perceives the needs to examine the applicant’s complaint under Article 13 taken separately, notwithstanding its earlier finding of a violation of Article 6 (1) for failure to try him within a reasonable time” ^*24 . From the time of this judgment, domestic legal systems had the obligation to provide a national judicial remedy for individuals’ claming to be a ‘victim’ of unreasonably long proceedings. ^*25 It must be noted that the Estonian Supreme Court has not questioned this obligation. Rather, the problem may lie in determining whether national judicial systems actually provide this remedy. ^*26

Secondly, the ECHR changed its rigid requirement concerning the meaning of ‘effective remedy’ in relation to complaints about the unreasonable length of proceedings. The ‘standard’ meaning of the concept of effective remedy was already defined in 1983 and requires simultaneous existence of two remedies — the decision about the substance of the claim and the possibility of obtaining compensation for the violation. The Court has formulated this, regarding the individual who puts forward an ‘arguable claim’ ^*27 of violation of his fundamental rights, as follows: “[H]e should have a remedy before a national authority in order to have his claim decided and, if appropriate, to obtain redress.” ^*28 This approach has remained unchanged to this day, with the clarification, dating back to the last millennium in its substance, that the redress offered for the violation does not necessarily need to be financial compensation. This formulation is the following: “However, article 13 (art. 13) does not go so far as to require any particular form of remedy. Contracting States are being afforded a margin of discretion in conforming to their obligation under this provision.” ^*29

The only type of violations for which the ECHR accepts a departure from this standard are violations related to the unreasonable length of proceedings. The ECHR presented this principle in the case of Mifsud v. France in the following formulation: “Article 13 therefore offers an alternative: a remedy is ‘effective’ if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred.” ^*30 The Court has not elaborated on this further in the decision, nor has it addressed in subsequent case-law the reasons for departing from the standard discussed in the previous paragraph. Neither has the Court explained whether this new position is applicable to other substantive Convention violations. One way or another, the ECHR accepts a situation in which violation of the Convention due to the unreasonable length of proceedings continues and the affected person is only paid compensation.

After the Kudla v. Poland judgment, the ECHR took upon itself the task of reviewing situations in several Member States related to meeting of the need to offer a separate domestic remedy for claims pertaining to unreasonable length of proceedings. The case law can be generalised to argue that three types of situations meet the Convention standards in respect of this new national remedy:

1)  the adoption of a special law providing the remedy for complaints against the unreasonable length of proceedings;

2)  amendments to the existing procedural laws;

3)  directives of the supreme court of the country to lower courts for applying the already existing procedural laws.

The author will briefly present the possibilities these make available to the Member States by considering the example cases of Slovakia, Poland, and Portugal.

According to the interpretation of the ECHR, Slovakia did not meet the Convention’s standards in this respect until 1 January 2002. On this date, change in the Slovakian Constitution took effect ^*31 that provided the possibility for both natural and legal persons to turn to the Constitutional Court with complaints about their fundamental rights’ violation. Here, the Constitutional Court can award just redress if it establishes that a violation has occurred. Previously, Slovakia had lost several cases in the ECHR, where the national government argued that the existing State Liability Act provided the option for potential victims of this violation to seek damages for the delays in the administration of justice. The ECHR considered this option too vague and not to offer any realistic chances of success. ^*32

This new situation was judged to meet the Convention’s standards. In the judgment of Andrá ik v. Slovakia, the ECHR found the remedy through the constitutional complaint to be “effective”, since it gave authority to the Constitutional Court not only to establish the fact of the violation but also to oblige the domestic authorities in question to cease the violation and to award just compensation. ^*33 In the stage of presenting the parties’ observations, the Slovakian government brought to the attention of the ECHR several judgments of the Constitutional Court applying Article 127, and therefore the ECHR had to conclude that “the remedy in question is effective not only in law, but also in practice” ^*34 .

After the Kudla v. Poland judgment, Poland passed the so-called 17 June 2004 Law, which regulates the procedure for complaints about the unreasonable length of proceedings. ^*35 The ECHR analysed this law in the case of Charzyński v. Poland and concluded that it “satisfies the ‘effectiveness’ test established in the Kudla judgment” ^*36 . It has to be mentioned here that the 17 June 2004 Law limits the amount of monetary compensation to a maximum of 10,000 Polish złotych. ^*37 The ECHR did not consider this problematic and indicated that the injured party always has the opportunity to seek additional damages under the amended Civil Code. ^*38 It must be indicated here that, although by the time of the decision in the case of Charzyński v. Poland no final judgments had been made in Poland applying this new law, the ECHR was satisfied with the existence of the legal possibility in theory. ^*39 This clearly signifies departure ^*40 from the well-established principle applied by the ECHR that for a remedy to be effective, the respective government also needs to demonstrate that the remedy is applied in practice by the national courts. ^*41

Still the country may not need to change any laws, but only modify the case law of its courts. This is evident in the example case of Portugal. The Government of Portugal used to submit an argument in cases of the type considered here that Portugal has a law, dating back to 1967 ^*42 , that regulates the state’s non-contractual liability. The ECHR considered this legal provision to be “theoretical” and indicated: “The Government has not cited a single precedent to show that such an action had real prospects of success, although the legal provision in question had been in force for more than twenty years.” ^*43 In the judgment of Paulino Thomas v. Portugal, the ECHR changed its view and accepted the national government’s argument that the domestic remedies for complaints against unreasonable length of proceedings are effective. This was because the government had referred to a judgment of the Supreme Court from 1998 whereby the possibility was accepted of the state being responsible for the violation of the reasonable time limit under the Convention’s Article 6 (1). The Portuguese government likewise presented several court judgments wherein the litigants were awarded monetary compensation for violation of the reasonable time requirement. On this basis, the ECHR established that an effective domestic remedy in Portugal against complaints of unreasonable time did exist. ^*44 This was achieved merely through the Supreme Court directives.

3. The cases from Estonia related to violation of the reasonable time requirement and absence of effective remedy

The ECHR has directed five substantive judgments toward Estonia regarding complaints of unreasonable length of proceedings. In the case of Treial v. Estonia, the ECHR established that there was violation of the Convention’s Article 6 (1). ^*45 In this application, no claim of absence of a domestic remedy for decision on the complaint in the Estonian national legal system was raised; consequently, the Court could not rule on this issue. Similarly, in the case of Mõtsnik v. Estonia, no complaint under the Convention’s Article 13 was raised — here the ECHR did not establish existence of a violation of Article 6 (1) either. ^*46 In the case of Shchiglitsov v. Estonia, violation of the Convention’s Article 6 (1) was established on account of the duration of marital property division: five years and 10 months. ^*47 As in the previous two cases, no argument under Article 13 was raised.

On 8 November 2007, the ECHR issued a judgment wherein it established violation of both Article 6 (1), due to unreasonable length of proceedings, and of Article 13, due to the absence of an effective remedy for having this claim decided domestically. In the case of Saarekallas OÜ v. Estonia, it was established that the litigant had spent seven years and two months in the Estonian courts. ^*48 For the purposes of this article, it is important to note what the arguments of the Estonian government were in defence of the availability of an effective domestic remedy for decision of such a case. The Estonian government made reference to the provisions of the Code of Administrative Court Procedure — according to which the administrative courts were empowered to adjudicate disputes under public law — and the Constitution. Furthermore, it quoted the case law of the Supreme Court, according to which administrative courts were authorised to examine whether public authorities performed their actions within reasonable time. The Supreme Court had found that the administrative courts were authorised to award compensation to individuals for actions — including delay — of public authorities even in cases where no specific legal provisions existed to that effect. The government concluded that a person could file a complaint with an administrative court against delays in judicial proceedings and against inaction of a court and also claim compensation for damage caused thereby. The government concluded that even if the Court were to find that none of the above‑mentioned remedies individually constituted sufficient and effective remedy, the aggregate of remedies nevertheless ensured effective legal protection to the individuals in respect of the length of proceedings. The government contended that there had been sufficient remedies available to the applicant company, which, however, did not make any attempts to make use of them. ^*49

The applicant company pointed out that no example cases had been provided wherein the remedies referred to by the government would have been used and in which they would have been effective. Furthermore, no examples had been given of situations in which compensation would have been paid for excessive length of court proceedings. ^*50

The ECHR noted that the provisions of the Civil Code and the Constitution, referred to by the government, were of a general nature and did not include reference to a specific remedy for complaints against the unreasonable length of proceedings. The decisive argument was as follows: “The applicant company pointed out that no examples had been provided where the remedies referred to by the Government would have been used and where they would have been effective. Furthermore, no examples had been given where compensation would have been paid for the excessive length of court proceedings.” ^*51 The Court did not comment on the arguments of the government regarding the aggregate effect of remedies and that the administrative courts were empowered to review complaints against the delays in general county courts.

The author of this article is of the opinion that at least until the end of 2007 there was no effective remedy available in the Estonian judicial system for having a claim against unreasonable length of proceedings decided. The ECHR may have hinted to the Supreme Court that it could create this effective remedy by directing the practice of the lower-level courts. This is because the Court commented positively on the practice of the Supreme Court when interpreting the provisions of the Constitution broadly.

The Estonian Supreme Court had an opportunity to abide by the findings of the ECHR in its decree of 30 December 2008. The case was brought to the Supreme Court as an individual constitutional complaint by ‘R.P.’, who argued that criminal proceedings (including the pre-trial investigation) directed toward him had lasted more than 12 years. At the time of submission of the application to the Supreme Court Constitutional Review Chamber, the trial was still pending in the court of first instance. R.P. asked the Supreme Court to establish violation of the reasonable time requirement, or as an alternative the absence of an effective remedy within the meaning of the Convention’s Article 13.

The possibility of submitting an individual constitutional review claim to the Estonian Supreme Court is limited. The Constitutional Review Court Procedure Act does not allow an individual to bring a constitutional complaint to the Supreme Court directly. The Constitution provides the right for anyone to ask that a legal norm be declared unconstitutional or not applied, but only in the context of one’s legal dispute. ^*52 However, the Supreme Court has taken a ‘broad’ approach to this limitation. It has reviewed an individual constitutional complaint on 11 occasions and only in one instance issued a substantive judgment. ^*53 In the latter case, the Supreme Court introduced a position according to which the Court “verifies which judicial remedies are available to the litigant for the control of the alleged violation of his fundamental rights” ^*54 In ten cases out of eleven, the Supreme Court has taken the position that proceedings in the administrative or county court provide sufficient effective remedy for the person’s claim concerning violation of fundamental rights. ^*55 It is debatable whether only one judgment decided on the merits through individual constitutional review proceedings satisfies the requirement of an effective remedy or whether instead this should be viewed as theoretical and illusory ^*56 protection of the fundamental rights.

The Supreme Court applies here the so-called gapless court protection doctrine of fundamental rights, which in the view of the Supreme Court is provided by § 15 of the Estonian Constitution. ^*57 In other words, even if the capacity of the administrative or another court to decide a case does not specifically derive from the text of the procedural law, the court is still empowered to discuss the case and issue a judgment on account of the authority granted to it by the Constitution.

Thus the Supreme Court faced a dilemma when deciding on the case brought forward by R.P. It could have decided it on the merits, which would have meant a second judgment on the merits made in an individual constitutional complaint case. This, in turn, would have meant that the Supreme Court could face a mounting number of applications arguing the same type of violation. Or the Supreme Court could have decided that there indeed is no effective remedy available, which could have meant an equivalent situation with complaints mounting. Instead, the Supreme Court applied the ‘gapless court protection’ doctrine. ^*58 It indicated that in its view the reasonable time limit was violated in R.P.’s case, but it did not establish this violation in the formal judgment. While the Supreme Court did not give leave for the application it explained, that county courts discussing criminal cases had to decide on this claim concerning reasonableness of time. The county courts need to decide the claim immediately after it is presented in the course of the proceedings and not wait until the stage of the substantive judgment in the case. Since the criminal courts do not have the authority to decide on appropriate monetary compensation, the Supreme Court provided guidance stating that such claims need to be decided separately in administrative courts under the provisions of the State Liability Act.

As for the remedies, the Supreme Court indicated three possible actions that the county court could take. These are:

1)  termination of the criminal court proceedings;

2)  acquittal;

3)  taking into account the fact of the violation of fundamental rights at the time of sentencing.

The author of this article is of the opinion that the latter option — using the fact of the violation as a mitigating argument in the sentencing — does not meet the criteria for effective remedy. This is because an effective remedy needs to take immediate effect. By contrast, when the criminal court establishes violation of the reasonable time requirement during the proceedings, then it is not known how long the proceedings still may take. In general, during the proceedings it is not known whether the court will find the accused guilty. If it does not, then the person would remain without a remedy for the reasonable time violation.

At first sight, neither the termination of proceedings nor summary acquittal seems to correspond to the meaning of effective remedy either. ^*59 However, on deeper contemplation, this possibility cannot be excluded. According to the position of the ECHR and with application of the principle of subsidiarity, the Member States are in a better position than the international Court to decide which exact type of redress is most suitable for a particular violation. ^*60 Monetary compensation is only one possible type of compensation, and the latter may also constitute actions by the state authority or courts that are intended to remedy the situation.

It still remains open to debate whether these remedies referred to by the Estonian Supreme Court meet the requirements of foreseeability and universality. For example, an individual may not agree to termination of the criminal proceedings, since he is interested in his reputation being cleared via a direct court judgment. It also seems disproportionate to discontinue proceedings in cases involving crimes against life or other serious offences. Therefore, the author of this article is of the opinion that in its 30 December 2008 decree the Supreme Court preferred to rely on the ‘gapless court protection’ doctrine rather than acknowledge that there are indeed gaps in the Estonian judicial system. The latter would have meant admission that there is no effective remedy against claims of unreasonable length of proceedings. The Supreme Court directed the county courts — at least in criminal matters — to apply the ‘gapless court protection’ doctrine while there are not very suitable remedies in the ‘arsenal’ of the county courts. The county courts cannot award monetary compensation in relation to criminal matters to the accused, nor are the remedies of termination or acquittal the most suitable ways of compensating the person concerned for the unreasonable length of proceedings.

Shortly after the 30 December 2008 Supreme Court decree, the ECHR published yet another judgment directed toward Estonia, establishing violation of the Convention’s Article 13 — the judgment in the case of Missenjov v. Estonia. ^*61 Since the arguments of the government were submitted before the 30 December 2008 Supreme Court decree, it is safe to argue that the government could not have been aware, at the time of submitting its arguments, of the Supreme Court’s position. In this case, a litigant who had allegedly taken out a loan from one of Estonia’s commercial banks (AS Eesti Maapank) failed to pay the sums back and the bank lodged a claim against him on 19 October 1999. After years of inactivity, the parties finally reached a settlement, which was approved by the Viru County Court (maakohus)on 29 May 2006. The government advanced arguments similar to those applied in the Saarekallas OÜ v. Estonia case. It further stated that the injured party could have initiated disciplinary proceedings against the judge and also asked for jurisdiction to be transferred to another court. ^*62

If one compares the arguments in the two cases — Saarekallas OÜ v. Estonia and Missenjov v. Estonia —decided on the merits regarding the violation of Article 13 of the Convention, it appears that the arguments of the government are not entirely consistent. While in the Saarekallas case the government admitted that the litigant could not appeal against the decisions to adjourn the hearings ^*63 , in the Missenjov case the government stated that the applicant could have appealed even in the absence of a separate written court ruling whereby the hearing was adjourned. ^*64 In the Saarekallas case, there was no reference to the possibility of requesting disciplinary proceedings. ^*65

Although the ECHR referred to the government’s arguments in the Missenjov case only in part, stating that they mainly followed arguments similar to those in the Saarekallas case ^*66 , it seems that the cornerstone of the government’s position is that the applicants could have filed a complaint with an administrative court against delays in judicial proceedings and against inaction of a court and also claim compensation for damage caused thereby. ^*67 The ECHR has responded to this argument by stating that the provisions of the Code of Administrative Court Procedure were general in nature and, secondly, that the government had failed to produce any court precedents where the litigant’s case was decided by an administrative court and compensation was awarded. ^*68

One needs to distinguish between the position of the government and that of the Supreme Court on the question referred to above. The arguments in proceedings at ECHR level are prepared by the government of the Member State concerned, and the government is not obliged to argue its case via the legal doctrine of the national courts. Furthermore, in the two cases discussed above, the government made minimal reference to the case law of the Supreme Court, probably for the simple reason that such case law was not available. So these were the arguments of the government that the ECHR had to evaluate and analyse. The government’s belief in the existence of an effective remedy through administrative court proceedings is supported also by the information it provided about the measures for complying with the judgment in the case of Treial v. Estonia.The following statement is included in the information: “Anyone may file a complaint before the administrative courts against delays in judicial proceedings or inaction by the courts. In doing so, he may rely on the relevant provisions of the Constitution or of the Convention as well as on the provisions of the Code of Administrative Procedure and the case law of the Supreme Court. It is possible during such proceedings to demand compensation for damage caused by such delays/inaction, and the administrative courts have competence to order payment of compensation.” ^*69 Following the logic of the ECHR, one can only conclude that this remedy is theoretical and illusoryand that until there emerges case law to support this argument it will not be a practical and effectiveremedy. ^*70 Since the ECHR has even considered the provisions of the Code of Administrative Court Procedure to be of too general a nature to satisfy the Convention’s standards, the current position of the ECHR on the remedies suggested by the government needs to be read as stating that there is no such effective remedy in Estonia at any level — not in theory and not in practice.

Ironically, the ECHR thus far has been unable to evaluate the position of the Estonian Supreme Court regarding the existence or absence of an effective national remedy against unreasonable length of proceedings. In this respect, it cannot be argued that there is open conflict of opinion between the ECHR and the Supreme Court in this matter — the former being of the opinion that there is no such effective remedy available and the latter directing the lower courts to apply this remedy immediately in their proceedings once the relevant claim by the litigant or accused has been made. The ‘testing’ of the national remedy suggested by the Supreme Court will be done sooner or later by the ECHR.

If the Supreme Court wishes to follow the Portuguese model and create this remedy through the lower courts’ case law, it is inevitable that this remedy will meet the Convention’s standards as required by the ECHR. Soon the government will be required to be able to produce for the ECHR lower-court judgments implementing the directives of the Supreme Court regarding immediate review of complaints about unreasonable length of proceedings. Then the ECHR may have to decide whether the rather unique remedy suggested by the Estonian Supreme Court — termination of criminal proceedings or acquittal — can be regarded as an appropriate form of redress. If it is, then the concept of ‘gapless court protection’ by the Estonian courts finds a strong supportive argument and perhaps can be regarded as a contribution of Estonian legal thought to European jurisprudence.

As for the potential ‘victim’ of excessive length of proceedings and the legal profession, it is not clear which path to follow in this ‘conflict’ of courts. From one side, the applicant is not supposed to rely on the remedy that in his view is not effective. The belief in the non-effectiveness or even unavailability of a national remedy has been confirmed by the ECHR, so the argument that the potential applicant has not exhausted the domestic remedies would probably not hold water in proceedings with the ECHR. On the other hand, should the remedy suggested by the Supreme Court prove effective, the applicant would lose much time in the ECHR proceedings and in the end may be advised to turn back to the domestic remedy. Therefore, the current situation may be regarded as a ‘window of opportunity’ for only those who may wish to use the ‘conflict of courts’ to their procedural advantage. For purposes of legal certainty, it is advisable that Estonia fulfil its obligations under the Convention soon — whether through the legislative initiative of the Parliament, via the developing case law of the lower courts, or through a combination of these two measures.

4. Conclusions

This article has provided a brief overview of the case law of the ECHR in relation to the Convention’s Article 13 standards in cases arguing the violation of fundamental rights due to unreasonable length of proceedings in civil or criminal matters. The ECHR has, beginning with its judgment in the case Kudla v. Poland ^*71 , requiredthat there be a national remedy under domestic law for having the associated claim decided and, if appropriate, adequate redress made. The ECHR accepts three venues whereby Member States can meet their obligations: the adoption of a special law to deal with the relevant claims, amendment of the existing procedural laws, and directives by the country’s highest court to the lower-level courts on how to guarantee the respective domestic remedy.

The ECHR is of the opinion that there is no such domestic remedy available in Estonia. In the cases of Saarekallas OÜ v. Estonia ^*72 and Missenjov v. Estonia ^*73 , the Estonian government advanced the argument that the administrative courts are empowered to decide claims against delays in court proceedings and also award compensation, if the violation is established. The ECHR has rejected these claims by stating that the provisions of the Code of Administrative Court Procedure are of too general a nature to satisfy the Convention’s standards. The ECHR has also stated that the government has not produced a single court judgment wherein the administrative court has rendered judgment concerning the associated claim. This leads the author to conclude that in the view of the ECHR the respective national remedy does not exist in Estonia — neither in theory nor in practice.

The Estonian Supreme Court’s Constitutional Review Chamber has in its decree of 30 December 2008 directed the lower-level criminal courts to decide any claims about unreasonable length of proceedings immediately after it is presented to the court. The Supreme Court has proposed three possible remedies: termination of the proceedings, acquittal, and taking the fact of the violation into account during sentencing. The author of this article has shown above why the last of these does not meet the conditions for being an effective remedy. As for the other two, although their suitability as an effective remedy cannot be excluded, they cannot at the same time meet the requirements of universality and foreseeability. The ECHR has not yet analysed this approach to effective remedy proposed by the Supreme Court, which differs substantially from what has been offered in the arguments of the government. If the ECHR approves of this position, then the ‘gapless court protection’ doctrine advanced by the Estonian Supreme Court is given great impetus.

Notes:

^*1 Article 6 (1) of the Convention provides the respective fundamental right alongside with other procedural fair trial guarantees. See European Convention for the Protection of Human Rights and Fundamental Freedoms, 4.11.1950, ETS No. 5 (ECHR).

^*2 Estonia acceded to the Council of Europe on 14 May 1993, shortly after the restoration of its independence.

^*3 The Estonian Parliament (Riigikogu) ratified the Convention on 13 March 1996 by adopting The Law on the Ratification of the Convention on the Protection of Human Rights and Fundamental Freedoms (supplemented by Protocols Nos. 2, 3, 5 and 8) and its Protocols Nos. 1, 4, 7, 8, 10 and 11. – RT II 1996, 11/12, 34.

^*4 J. Polakiewicz. The Status of the Convention in National Laws. – R. Blackburn, J. Polakiewicz (eds.). Fundamental Rights in Europe. The European Convention on Human Rights and its Member States. 1950–2000. Oxford University Press 2001, pp. 37–46.

^*5 Eesti Vabariigi põhiseadus (Republic of Estonia Constitution). Adopted in the national referendum on 28 June 1992. – RT 1992, 26, 349 (in Estonian). Available — also in English, at http://www.just.ee/23295.

^*6 SCebd, 6.01.2004, 3-1-3-13-03, paragraph 31. Available — also in English, at http://www.nc.ee. For previous wording see “If Estonian laws or other legislation is in conflict with international treaties ratified by the Riigikogu, then [...] the provisions of the international treaty shall apply.” See CRCSd, 27.05.1998, 3-4-1-4-98, paragraph III.7. Available — also in English, at http://www.nc.ee.

^*7 CRCSd, 30.12.2008, 3-4-1-12-08. Available — also in English, at http://www.nc.ee.

^*8 The text of the Convention does not provide a clear answer on this question, since the Member States have taken the obligation to be bound only by these ECHR judgments where they have been one party. See Convention Article 46.

^*9 For understandable reasons the question about the direct applicability of the ECHR case-law is limited to the question about this direct applicability by the Supreme Court. The author is not aware of any statistically reliable studies about the question how often and in what capacity lower domestic courts of a Council of Europe member state rely on the ECHR case-law. This has not been studied in Estonia either. For reflections about the positions of the domestic judiciary towards the need to apply directly international treaties or court judgments, see R. Clements. Bringing It All Back Home. “Rights” in English Law Before the Human Rights Act 1998. – Human Rights Law Journal 2000 (21), p. 134 ff.; S. Beaulac. National Application of International Law: The Statutory Interpretation Perspective. – Canadian Yearbook of International Law 2003 (XLI), pp. 225, 229; G. W. Anderson. Using Human Rights Law in Scottish Courts. – European Law Review 2000 (25), Human Rights Survey 2000, HR/3; I. Cameron. The Swedish Experience of the European Convention of Human Rights Since Incorporation. – International and Comparative Law Quarterly 1999 (48), p. 20.

^*10 M. Susi. Õigus tõhusale menetlusele enda kaitseks. Euroopa Inimõiguste Kohtu käsitluse ja Eesti õigusruumi näitel (Right to Effective Procedure in One’s Own Defence. On the Example of the Approach of the European Court of Human Rights and the Estonian Legal Space). – Juridica 2009/1, p. 4 (in Estonian).

^*11 Ibid., p. 3.

^*12 K. Merusk, M. Susi. Ten Years Since Ratification — the European Convention on Human Rights and Its Impact on Estonia. – German Yearbook of International Law 2005 (48), pp. 350–353.

^*13 For an overview of the ECHR case-law towards Estonia see the Note above and also M. Susi. Recent Judgments and Decisions of the European Court of Human Rights towards Estonia. – Juridica International 2006 (11), pp. 93–101. In the latter article two main types of Convention violations were reported — of Article 6 (3) “d” due to the failure to provide opportunities for the accused and his counsel to question the witnesses in a public court hearing; and due to Estonia’s prison conditions. Both types do not constitute a structural problem, since the first is only a reflection of errors by an individual judge and the latter is a relic of the Soviet time prison facilities.

^*14 I. Ziemele has argued that Estonia’s relative ‘success’ in Strasbourg is attributable to the ‘compatibility’ exercise carried out by a group of experts prior to Estonia’s ratification of the Convention. See I. Ziemele. The Role of International Organizations in Strengthening Human Rights Performance in the Baltic Sea Region. – German Yearbook on International Law 2000 (43), p. 9.

^*15 It has been noted that the ECHR judgments are hardly ever cited in the Supreme Court judgments and there are usually only formal references to the cases and presentation of some relevant points. See Note 12, p. 351.

^*16 In the recent years the Supreme Court has explained some key legal concepts through relying mainly on the ECHR jurisprudence. For example, the question about the scope of the right not to incriminate oneself is explained through citing one of the key ECHR judgments in this respect, Saunders v. the United Kingdom, judgment of 17 December 1996. – Reports 1996–VI.

^*17 ECJ judgment of 11 December 2007 in case C-161/06 Skoma-Lux paragraph 51: “Article 58 of the Act concerning the conditions of accession to the European Union of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, precludes the obligations contained in Community legislation which has not been published in the Official Journal of the European Union in the language of a new Member State, where that language is an official language of the European Union, from being imposed on individuals in that State, even though those persons could have learned of that legislation by other means.”

^*18 ALCSCd, 13.10.2008, 3-3-1-36-08, paragraph 15 reversed the previous position, expressed in ALCSCd, 10.05.2006, 3-3-1-66-05, paragraph 12.

^*19 ECHR, Kudla v. Poland, judgment of 26 October 2000 (Grand Chamber). – Reports of Judgments and Decisions 2000–XI, p. 146.

^*20 Article 13 of the Convention contains the following fundamental right: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persona acting in official capacity.”

^*21 The ECHR also considers the right to have the reasons and legality of one’s detention reviewed under Convention Article 5 (4) as lex specialis of Convention Article 13. See the following citation of a case, where the applicant argued that his Convention rights under Article 13 were violated: “[...] irrespective of the method chosen by Mr. Chahal to argue his complaint that he was denied the opportunity to have the lawfulness of his detention reviewed, the Court must first examine it in connection with Article 5 paragraph 4 (Articles 5–4)”. See ECHR, Chahal v. United Kingdom, judgment of 15 November 1996. – Reports of Judgments and Decisions, 1996–V, p. 126.

^*22 Kudla v. Poland, p. 147.

^*23 Ibid., p. 148.

^*24 Ibid., p. 149.

^*25 It is quite unusual for the ECHR to change its position regarding a principal legal question abruptly. Usually the Court gives hints from judgment to judgment that it is ready to re-examine its previous position. See, for example, the gradual shift from denying that companies have morals to the understanding that companies can be victims of moral harm. See ECHR, Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, judgment of 19 December 1994, A 302; Comminregsoll S.A. v. Portugal, judgment of 6 April 2000. – Reports of Judgments and Decisions 2000–IV.

^*26 The question of the parameters when the ECHR is likely to establish the violation of a reasonable time requirement is outside of the scope of this article. It is sufficient to note that there are no set time-limits from where the violation is likely to be established. The general position of the ECHR is repeated in almost standard formulation from judgment to judgment: “The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute.” ECHR, Shchiglitsov v. Estonia, judgment of 18 January 2007. For general analysis of the Court’s case law in this question, see also Study on the Effectiveness of National Remedies in respect of Excessive Length of Proceedings adopted by the Venice Commission at its 69^th Plenary Session (Venice, 15–16 December 2006) (CDL – AD (2006)) 036rev.

^*27 Although the ECHR introduced the concept of an effective remedy already in 1978 in the judgment of Klass et al. v. Germany, judgment of 6 September 1978, application No. 5029/71, it subsequently changed its view that an effective remedy should be available to anyone who claims that his fundamental rights are violated. Subsequently the ECHR replaced this approach by saying that an effective remedy should be available to anyone who puts forward an “arguable claim” about the violation of his fundamental rights. Regarding the concept of an “arguable claim”, see M. Susi. The Right to an Effective Remedy — through the Dynamic Interpretation of the European Court of Human Rights. Dissertationes Iuridicae Universitatis Tartuensis. Tartu 2008, pp. 163–164.

^*28 ECHR, Silver v. the United Kingdom, judgment of 25 March 1983, A61, p. 113 (a).

^*29 ECHR, Vilvarjah et al v. the United Kingdom, judgment of 30 October 1991, A215, p. 122. It also needs to be noted that in the case-law of the last decade the ECHR sometimes uses the broader term “relief” instead of the formerly used term “redress”. See Hasan and Chaush v. Bulgaria, judgment of 26 October 2000, application No. 30985/96, paragraph 96.

^*30 ECHR, Mifsud v. France, decision of 11 September 2002, application No. 57220/00, p. 17.

^*31 Article 127 of the Slovakian Constitution, available at www.legislationonline.org.

^*32 ECHR, J.K. v. Slovakia, decision of 13 September 2001, application No. 38794/97 and Havala v. Slovakia, decision of 13 September 2001, application No. 47804/99.

^*33 ECHR, Andraśik v. Slovakia, judgment of 22 October 2002, application No. 57984/00, p. 10.

^*34 The Note above.

^*35 Complaints for delays in the first instance court are reviewed by the district court and complaints for delays in the district court are reviewed by the Supreme Court.

^*36 ECHR, Charzyński v. Poland, decision of 1 March 2005, application No. 15212/03, p. 39.

^*37 Corresponds to approximately 2,150 euros.

^*38 The Civil Code was also amended by the 17 June Law.

^*39 Note 36 above.

^*40 Similar acceptance of a situation where there are yet no domestic judgments, but the written law provides a remedy, is present in the following judgment: “[…] the new remedy at national level is open to the applicant and may address this problem since it not only provides for compensation to be awarded but also obliges the Constitutional Court to set a time-limit for deciding the case on the merits.” ECHR, Nogolica v. Croatia, decision of 5 September 2002, application No. 77784/01, p. 6.

^*41 As a rule, the ECHR defines the concept of an ‘effective remedy’ partly through the ability of the respondent government to present court judgments where the remedy has been applied. For example, the Court has noted: “[…] the Government did not establish the existence of any domestic decision that had set a precedent in the matter. It has therefore not been shown that such a remedy would have been effective”. See ECHR, Rotaru v. Romania, judgment of 4 May 2000. – Reports of Judgments and Decisions 2000–V, p. 70.

^*42 Portuguese Law No. 48051.

^*43 ECHR, Gama da Costa v. Portugal, decision of 5 March 1990, application No. 12659/87. – Decisions and Reports 65, p. 136.

^*44 ECHR, Paulino Thomas v. Portugal, decision of 27 March 2003. – Reports of Judgments and Decisions 2003–VIII.

^*45 ECHR, Treial v. Estonia, judgment of 2 December 2003, application No. 48129/99.

^*46 ECHR, Mõtsnik v. Estonia, judgment of 29 April 2003, application No. 50533/99.

^*47 ECHR, Shchiglitsov v. Estonia, judgment of 18 January 2007, application No. 35062/03.

^*48 ECHR, Saarekallas OÜ v. Estonia, judgment of 8 January 2007, application No. 11548/04.

^*49 Above, pp. 59–61.

^*50 Above, p. 62.

^*51 Above, p. 66.

^*52 The second sentence of § 15 of the Estonian Constitution provides the following right: “Everyone has the right, while his or her case is before the court, to petition for any relevant law, other legislation or procedure to be declared unconstitutional.”

^*53 SCebd, 17.03.2003, 3-1-3-10-02. Available — also in English, at http://www.nc.ee.

^*54 CRCSd, 17.01.2007, 3-4-1-17-06, paragraphs 4–5. Available — also in English, at http://www.nc.ee.

^*55 CRCSd, 3-4-1-12-08, 3-4-1-13-08, 3-4-1-10-08, 3-4-1-3-08, 3-4-1-11-07, 3-4-1-8-07, 3-4-1-17-06, 3-4-1-4-06, 3-4-1-10-05 and 3-4-1-6-05.

^*56 At the same time the approach of the Supreme Court is not in violation of the requirements of the Convention or of the ECHR, since the ECHR does not consider the absence of individual constitutional review proceedings to be a Convention violation. Should the Supreme Court, through its subsequent case-law, introduce a practice through which an individual has a reasonable expectation as to the existence of this right in practice, then the issue of Convention violation may emerge, if the individual does not achieve a complaint review by the Supreme Court in its capacity as a constitutional court.

^*57 CRCSd, 9.04.2008, 3-4-1-20-07, paragraph 18.

^*58 It is worth considering whether the ‘gapless court protection’ doctrine is a procedural question — in principle, for every type of claim there is a suitable domestic court, and the Supreme Court decided an individual constitutional complaint only when due to some exceptional circumstances the particular claim cannot be brought before the court which usually decides respective types of cases. In the other words, the Supreme Court could stand as the guardian of the right of access to court within the meaning of Convention Article 6 (1).

^*59 The ECHR has issued several judgments where the absence of an effective remedy is established due to the lack of the ability of the national court to order compensation for the reasonable time requirement violation. See for example Sürmeli v. Germany, judgment of 8 June 2006, application No. 75529/01.

^*60 ECHR, Liakopoukou v. Greece, judgment of 24 May 2006, application No. 20627/04, pp. 19–25.

^*61 ECHR, Missenjov v. Estonia, judgment of 29 January 2009, application No. 43276/06.

^*62 The Note above.

^*63 Saarekallas OÜ v. Estonia, pp. 56–57.

^*64 Missenjov v. Estonia, p. 36.

^*65 This argument was used in the Missenjov case to which the ECHR responded that there was no causal link established how the disciplinary proceedings could have expedited the proceedings in the main court case.

^*66 Missenjov v. Estonia, p. 36.

^*67 Saarekallas v. Estonia, p. 60.

^*68 The Note above, p. 66 and Missenjov v. Estonia, pp. 49 and 51.

^*69 Appendix to Resolution CM/ResDH (2007) 152, available online at HUDOC.

^*70 The statement that an effective remedy is practical and effective and not theoretical and illusory is perhaps one of the most well-known statements of the ECHR. See for exact formulations: “The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness […].” See Akdivar et al. v. Turkey, judgment of 16 September 1996. – Reports of Judgments and Decisions 1996–IV, p. 66 and “[...] the right of access to court must not only be entrenched in law as a principle but also secured with sufficient certainty in practice”. See Angel Angelov v. Bulgaria, judgment of 15 February 2007, application No. 51343/99, p. 39.

^*71 Note 19 above.

^*72 Note 48 above.

^*73 Note 61 above.

Die richtige Bestimmung des Streitgegenstandes ist eine schwierige, aber unvermeidbare Aufgabe in der täglichen Gerichtspraxis sowie in der Verwaltungsprozesslehre. Von ihr hängen viele zentrale verwaltungsprozessuale Fragen, insbesondere die Konturen der gerichtlichen Kontrolle, die materielle Rechtskraft des Urteils, sowie die Feststellung der Rechtshängigkeit, der Klagehäufung und der Klageänderung ab. Der zu lockere Umgang mit dem Streitgegenstand würde wegen des unklaren Prozessstoffes die Rationalität der Streitlösung beeinträchtigen und die Grenzen der Rechtskraft trüben. Die zu strenge und detaillierte Handhabung könnte indes die Klageerhebung unnötig erschweren sowie die Rechtskraft unsachgemäß verkürzen. Dies haben u.a. die zahlreichen Fälle in der estnischen Rechtsprechung gezeigt, in denen der Kläger sein Klageantrag unrichtig formuliert hat bzw. das Gericht den Streitgegenstand falsch festgestellt hat. Das Ziel des folgenden Beitrags ist nicht rein theoretisch über den zutreffenden Streitgegenstandsbegriff zu polemisieren. Er versucht für den estnischen Verwaltungsprozess ein angemessenes Modell des Streitgegenstands zu finden, das den Leitlinien des effektiven Rechtsschutzes und der Rechtssicherheit entspricht.

2. Begriff des Streitgegenstandes

Die estnische Verwaltungsprozessordnung (halduskohtumenetluse seadustik – HKMS) definiert den Streitgegenstand nicht, setzt den Begriff aber im Kontext der Verhinderung der wiederholten Klageerhebung voraus (§ 11 Abs. 3¹ Nr. 3 und 4; § 23 Abs. 1 Nr. 3 und 4 HKMS). Der Streitgegenstandsbegriff wird auch in der im Verwaltungsgerichtsverfahren subsidiär anwendbaren Zivilprozessordnung (tsiviilkohtumenetluse seadustik – TsMS) nicht ausdrücklich festgelegt. Sie fordert jedoch, dass die Klageschrift einen ausdrücklichen Anspruch (Klagegegenstand) sowie den der Klage zugrunde legenden Sachverhalt (Klagegrund) enthalten muss. ^*2 Das formell rechtskräftige Urteil ist für die Beteiligten so weit verbindlich, wie der Klageantrag bezüglich des für die Klage grundlegenden Sachverhalts entschieden ist. ^*3 Die Rechtskraft des Urteils betrifft damit neben dem Klageantrag im gewissen Maße auch den Klagegrund. Dementsprechend kann man auch im estnischen Verwaltungsprozess – zuerst als Hypothese – vom in der Bundesrepublik Deutschland herrschenden zweigliedrigen Streitgegenstandsbegriff ausgehen: der Streitgegenstand ergibt sich demnach aus dem im Klageantrag geltend gemachten (prozessualen) Anspruch und aus dem Klagegrund. ^*4

Der Klageantrag (Anspruch) ist näher durch den begehrten Richterspruch, sowie durch die umstrittene behördliche Handlung bzw. das umstrittene Rechtsverhältnis bestimmt (z.B. die Aufhebung eines Steuerbescheids). Unter Klagegrund ist nach § 363 Abs. 1 Nr. 2 TsMS der Tatsachenkomplex (Lebenssachverhalt) zu verstehen, aus dem der Kläger sein Recht auf die Befriedigung seines Anspruchs herleitet. ^*5 Der Klagegrund ist nicht mit den vom Kläger vorgebrachten Tatsachen identisch. Auch werden nicht alle vom Gericht inzident geprüften Vorfragen als Elemente des Klagegrunds mit dem rechtskräftigen Urteil verbindlich. ^*6 Der Grund einer verwaltungsprozessualen Klage muss viel abstrakter bestimmt werden. Sicher ist zuerst, dass die Bestimmung des Klagegrunds das Programm der Begründetheits- oder zumindest der Zulässigkeitsprüfung der entsprechenden Klageart berücksichtigen muss. ^*7 Analog zum § 113 Abs. 1 S. 1 und Abs. 5 VwGO erweist sich dabei in Estland wohl das estnische Staatshaftungsgesetz (riigivastutuse seadus – RVastS) ^*8 als maßgeblich. In diesem Rahmen wird zweitens die funktionale und wertende Abwägung notwendig. Besonders unter Berücksichtigung der Gebote der Rechtsicherheit und des effektiven Rechtschutzes sollte man bewerten, welche entscheidungserhebliche Tatsachen für die eventuellen Folgeverfahren verbindlich bleiben müssen und dürfen, sowie welche Kennzeichen eine frühere Streitsache bei der Vermeidung wiederholender Klageerhebungen identifizieren sollen.

3. Der Streitgegenstand einzelner Klagearten

§ 6 Abs. 2 und 3 HKMS kennt vier Grundarten von verwaltungsgerichtlichen Klagen: Anfechtungsklage (3.1); Verpflichtungsklage (3.2); Entschädigungsklage (3.3) und Feststellungsklage (3.4). ^*9

3.1. Anfechtungsklage

3.1.1. Klageantrag

Zuzustimmen ist der Position, dass das Aufhebungsbegehren den Kern des Anfechtungsprozesses darstellt und deshalb nicht aus dem Streitgegenstand verdrängt werden darf. ^*10 Der Gegenstand des Aufhebungsstreits kann sich nicht mit der Feststellung der Rechtsverletzung oder der Rechtswidrigkeit begnügen. Aus der Rechtsverletzung folgt keineswegs unbedingt die volle Begründetheit der Anfechtungsklage, da deren Stattgabe noch von zusätzlichen Voraussetzungen abhängt. ^*11 Die Gegenmeinungen, die den Streitgegenstand der Anfechtungsklage nur in der Feststellung der Rechtsverletzung sehen ^*12 , setzen die Anfechtungsklage unbegründet mit der Feststellungsklage gleich. Das Anfechtungsurteil ist Gestaltungsurteil. Deswegen ist es in diesem Kontext auch unpräzise, über die Feststellung des Aufhebungsanspruchs oder die Feststellung der Unwirksamkeit des angefochtenen Bescheids zu sprechen. Das Gericht muss vielmehr die bisherige, normalerweise trotz der Rechtswidrigkeit bestehende Gültigkeit des Bescheids konstitutiv beseitigen. ^*13 Das Fehlen der feststellenden Wirkung schließt aber die Maßgeblichkeit des Urteils hinsichtlich der Unwirksamkeit des Verwaltungsakts nicht aus. Die Bindungswirkung eines Gestaltungsurteils ist sogar umfangreicher als die Rechtskraft des Feststellungsurteils, da das erste die materielle Rechtslage ändert und dadurch auch die nicht beigeladenen Personen oder Behörden binden kann. ^*14

3.1.2. Klagegrund

Umstritten ist, ob das Aufhebungsurteil neben der Gestaltungswirkung auch die Rechtswidrigkeit oder die subjektive Rechtsverletzung des Klägers feststellt. Sicher ist, dass die subjektive Rechtsverletzung – anders als die objektive Rechtswidrigkeit – im Aufhebungsstreit während der Begründetheitsprüfung relevant ist und deshalb grundsätzlich den Klagegrund darstellen kann. Die rechtspolitischen und die praktischen Erwägungen sprechen eher zugunsten der Erweiterung der Rechtskraft auf die Rechtsverletzung. Im Aufhebungsprozess werden erhebliche Ressourcen für die Klärung des Eingriffs und dessen Rechtmäßigkeit aufgewendet. ^*15 Es lässt sich kaum erläutern, warum das Ergebnis der Beurteilung nicht in möglichen weiteren Verfahren maßgeblich sein soll. Zwar kann die Verbindlichkeit der detaillierten Vorfragen mitunter für die Beteiligten unvoraussehbare Konsequenzen bedeuten. Bei der rechtskräftigen Feststellung der Rechtsverletzung ist dies jedoch grundsätzlich nicht der Fall: so dürfte ein möglicher Schadensersatz- bzw. Folgenbeseitigungsan­spruch aufgrund der Rechtsverletzung die Beteiligten des Aufhebungs­prozesses kaum überraschen. Vielmehr wäre es unbefriedigend, wenn man die Rechtsverletzung eines gerichtlich aufgehobenen Verwaltungsakts im folgenden Entschädigungssprozess verneinen würde. Die Feststellungsklage schütze dann die Rechte des Klägers – ungeachtet des eventuellen Feststellungsinteresses – umfangreicher als die Anfechtungsklage. Die Anfechtungsklage stellt aber das Hauptrechtsmittel gegen belastenden Verwaltungsakte dar. ^*16 Zweitens ist die Feststellung der Rechtsverletzung zum Schutz des Klägers gegen den wiederholten Erlass des aufgehobenen Bescheids nötig. Das stattgegebene Aufhebungsbegehren selbst verbietet den neuen Erlass des Verwaltungsakts nicht; bekanntlich ist der Neuerlass nur dann verboten, wenn die Behörde ihre neue Entscheidung auf die vom Gericht mißbilligten Gründe stützt. Käme der Feststellung der Rechtsverletzung keine präjudizielle Werkung zu, müsste der erfolgreiche Kläger bei der Wiederholung des rechtswidrigen Verwaltungsakts erneut die vollständige Sachprüfung begehren. Dies würde ihn jedoch unsachgemäß belasten. ^*17 Deshalb nimmt die Rechtsverletzung als Grund der Anfechtungsklage an der Rechtskraft teil und das Aufhebungsurteil stellt neben seiner Gestaltungswirkung für die Beteiligten auch die Rechtsverletzung verbindlich fest. ^*18

Die Feststellungswirkung des Aufhebungsurteils ist dadurch begrenzt, dass das Gericht nur die Befolgung derjenigen Normen prüfen darf, die den Kläger subjektive Rechte verleihen. ^*19 Die Verletzung der Rechte von Dritten oder der Normen, die nur das öffentliche Interesse schützen, darf das Gericht in der Regel nicht kontrollieren und damit gar nicht rechtskräftig feststellen. Weitere Konkretisierungen des Klagegrundes hinsichtlich der in der Klage erwähnten Normen oder des vorgetragenen Sachverhalts wären aber zu weitgehend. Nach § 3 Abs. 1 RVastS ^*20 kann jede Rechtsverletzung durch den angefochtenen Verwaltungsakt den Aufhebungsanspruch begründen, so dass sie alle entscheidungserheblich sind. Wegen der Untersuchungsmaxime muss das Gericht sie alle von Amts wegen prüfen, unabhängig davon, ob der Kläger sie vorbringt. ^*21 Außerdem würde die Beschränkung des Klagegrundes nur auf die jeweils vom Kläger vorgebrachte Rechtsverletzung das Verbot der erneuten Klageerhebung unzulässigerweise kürzen. Nach der hier vertretenen Auffassung hat man mit „derselben Streitsache“ im Sinne des § 11 Abs. 3¹ Nr. 2–4 HKMS auch dann zu tun, wenn derselbe Kläger abermals die Aufhebung desselben Verwaltungsakts begehrt, obwohl er sich auf andere Tatsachen, Normen, bzw. Rechte lehnt, die in der erste Klage nicht erwähnt wurden. ^*22 Dies geschieht aus der Grund, dass die mehrfache Anfechtung aufgrund der früher nicht vorgebrachten Tatsachen beeinträchtigt die Rechtssicherheit. ^*23 Dieser abstrakte Rechtsverletzungsbegriff kann sogar in spezifischen Bereichen wie Asylrecht bestehen bleiben, wobei im deutschen Schrifttum ausnahmsweise der eingliedrige Streitgegenstandsbegriff vertreten wird. ^*24 Die Rechtsverletzung im Sinne des § 3 Abs. 1 RVastS umfasst alle mögliche Verfolgungs- und Schutzgründe, die während des Asylverfahrens behandelt worden könnten.

Eine Präzisierung bleibt dennoch unumgänglich. Man muss auch die Fallkonstellationen betrachten, in denen das Verwaltungsgericht während des vorangehenden Anfechtungsprozesses den Eingriff in die Rechtssphäre des Klägers zu Recht verneint und deshalb die Klage abgewiesen hat. Nach dem Inkrafttreten des Urteils kann die Sachlage sich aber verändern, damit jetzt ein Zusammenhang zwischen den Verwaltungsakt und der Rechtsposition des Klägers entsteht. Dies kann etwa bei Vorbescheiden oder Allgemeinverfügungen ^*25 vorkommen. In solchen Situationen könnte der Ausschluss der erneuten Klageerhebung die verfassungs- bzw. europarechtliche Rechtsweggarantie verletzen, da auch die Wiederaufnahme des früheren Gerichtsverfahrens ausgeschlossen ist. ^*26 Es kann also festgehalten werden, dass der wegen der Änderung der Sachlage entstandene neue Eingriff als ein anderer Klagegrund betrachtet werden muss.

3.1.3. Klagegrund bei der erweiterten Klagebefugnis

In Ausnahmefällen ermöglicht das Gesetz die Klageerhebung auch nur zur Prüfung der objektiven Rechtmäßigkeit der Verwaltungsentscheidung bzw. zum Schutz des öffentlichen Interesses: in Estland sind dies die Anfechtungsklagen gegen die Planungsentscheidungen ^*27 , die Klagen in Umweltsachen, die Verbandsklagen und die Klagen der Gemeinden zum Schutz der kommunalen Selbstverwaltungsgarantie. ^*28 Da die subjektive Rechtsverletzung in solchen Fallkonstellationen für die Klagebefugnis irrelevant ist, muss bei diesen der Klagegrund und damit der Streitgegenstand modifiziert werden ^*29 : als Klagegrund wird hier die objektive Rechtwidrigkeit festgestellt.

3.1.4. Das Verhältnis der Anfechtungs- und Rechtswidrigkeitsfeststellungsklage

Ist die Rechtsverletzung durch die Stattgabe der Anfechtungsklage rechtskräftig festgestellt, muss die Feststellungsklage desselben Klägers gegen denselben Verwaltungsakt ausgeschlossen sein. ^*30 Auch nach der Auffassung des estnischen Staatsgerichtshofs umfasst der Aufhebungsantrag rechtslogisch den Antrag auf die Feststellung der Rechtswidrigkeit des Verwaltungsakts. ^*31 Man darf hieraus jedoch nicht zu weitgehende Folgerungen ziehen. Die Anfechtungsklage muss nicht zwingend wegen der fehlenden Rechtsverletzung erfolglos bleiben. ^*32 Derselbe Kläger darf die Feststellungsklage nur dann nicht erheben, wenn der Anfechtungsklage rechtskräftig stattgegeben wird oder gerade wegen der fehlenden Rechtsverletzung rechtskräftig abgewiesen wird. ^*33 Außerdem hat der StGH wiederholt verdeutlicht, dass das Gericht in den Fällen, in denen die Anfechtungsklage trotz der Rechtsverletzung abgewiesen wird, die Rechtswidrigkeit des Verwaltungsakts im Tenor nicht feststellen darf, wenn der Kläger die Feststellung nicht beantragt hat. ^*34 Ohne einen ausdrücklichen Entscheidungssatz kann ein solches „negatives Aufhebungsurteil“ gar keine Feststellungswirkung erlangen. Daraus folgt, dass der Kläger bei einem berechtigten Feststellungsinteresse die Anfechtungsklage mit dem Feststellungsantrag ergänzen oder die Anfechtungsklage zur Feststellungsklage ändern darf. Demnach kann die Feststellungsklage auch trotz der Rechtshängigkeit der Anfechtungsklage gegen dieselbe Verfügung zulässig sein.

3.1.5. Zwischenergebnis

Der Streitgegenstand der Anfechtungsklage ist der prozessuale Anspruch des Klägers auf die Aufhebung des angefochtenen Verwaltungsakts (Klageantrag) sowie die Verletzung der Rechte des Klägers durch diesen Verwaltungsakt (Klagegrund).

3.2. Verpflichtungsklage

3.2.1. Klageantrag

Der Gegenstand des Verpflichtungsstreits ist zunächst das Begehren des Klägers, die Behörde zum Erlass eines Verwaltungsakts oder – in Estland – zur Durchführung eines Realakts zu verurteilen. Auch die Verpflichtungsklage ist keine Feststellungsklage sondern eine Verurteilungsklage. ^*35 Sie stellt den materiellen Anspruch auf die Verwaltungshandlung nicht bloß fest, sondern ermöglicht auch die Vollstreckung durch das Zwangsgeld. ^*36 Für die Bestimmung des Klageantrags muss es unerheblich bleiben, ob der Kläger eine bestimmte Verwaltungshandlung oder nur die (neue) behördliche Bescheidung seines Antrags begehrt. Zu oft ist es für den Kläger nicht vorauszusehen, ob er einen Anspruch auf einen konkreten Verwaltungsakt oder nur auf die Bescheidung hat. Die Möglichkeit der bestimmten Verurteilung hängt zu stark vom gerichtlichen Beurteilungsspielraum ab, um die Erfolgsaussichten des konkreten Verpflichtungsantrags richtig einzuschätzen. Auch die Möglichkeit der Klagebeschränkung bzw. ‑erweiterung und die Belehrungspflicht des Vorsitzenden in der ersten Gerichtsinstanz helfen nur wenig, da das Berufungs- oder Revisionsgericht die Lage abweichend beurteilen kann. ^*37 Um die Risiken des Klägers zu vermeiden, sollte man auf den Bescheidungsantrag nicht völlig verzichten. Verpflichtungs- und Bescheidungsbegehren können auch als der gleiche prozessuale Antrag angesehen werden. Dies entspricht dem Wortlaut des § 6 Abs. 4 und 5 RVastS, der die gerichtlichen Entscheidungsoptionen ohne Rücksicht auf die Bestimmtheit des Verpflichtungsantrags regelt. Die Dispositionsmaxime bleibt unverletzt, da die Bestimmtheit der Verpflichtungsklage m.E. den Umfang des klägerischen Antrags nicht begrenzt; das Gericht muss bei der Wahl zwischen Verpflichtungs- und Bescheidungsurteil nur die materielle Rechtslage berücksichtigen. Demnach ist die strikte Verpflichtungsklage auch in den Fällen der Bescheidung völlig begründet und die Beklagte trägt die Kosten. ^*38 Der Kläger verliert dadurch nicht sein Recht auf die Rechtsmittel in den Fällen, in denen statt des Verpflichtungsurteils ohne Grund ein Bescheidungsurteil ergeht ^*39 , da ein solches Urteil trotz der Stattgabe der Klage seine Rechte verletzt, wenn ihm der strikte Anspruch zusteht.

3.2.2. Klagegrund

Die Bestimmung des Klagegrundes ist im Verpflichtungsprozess erschwert, da hier schon die Elemente der Begründetheitsprüfung umstritten sind. Nach einer Auffassung muss das Gericht sich gemäß § 113 Abs. 5 VwGO von der Rechtswidrigkeit der Versagung oder der Unterlassung des beantragten Verwaltungsakts und von der damit verbundenen subjektiven Rechtsverletzung überzeugen. ^*40 Andere Stimmen behaupten, dass es im Verpflichtungsstreit nur auf den materiellen Leistungsanspruch des Klägers ankommt. ^*41 Laut § 6 Abs. 1 RVastS kann der Kläger den Erlass eines Verwaltungsakts oder die Durchführung eines Realakts beantragen, wenn der Träger der öffentlichen Gewalt dazu verpflichtet ist und seine Pflicht die Rechte des Klägers betrifft. Diese Regelung schließt sich offenbar der letztgenannten Literaturmeinung an. Der materielle Verpflichtungsanspruch bedeutet gerade die Handlungspflicht und das damit verbundene subjektive Recht des Klägers. ^*42 Der StGH dagegen ist der Meinung, dass die Begründetheit der Verpflichtungsklage stets die Rechtswidrigkeit der Versagung oder der Unterlassung voraussetzt. ^*43 Vertieft man in die rechtsdogmatische Struktur dieser Auffassungen, ist im Ergebnis U. Ramsauer darin zuzustimmen, dass sie inhaltlich gleich sind. ^*44 Die Stattgabe der Verpflichtungsklage setzt neben dem Anspruch auch seine Verletzung aus. Die Klage scheitert, wenn der begehrte Verwaltungsakt schon erlassen ist. Dieser Unterschied zwischen der tatsächlichen und der normativen Lage – die Weigerung der Behörde trotz des bestehenden Anspruchs ^*45 – impliziert zwingend die subjektive Rechtsverletzung. Damit schließen die Begründetheitsvoraussetzungen die Rechtsverletzung als Element des Streitgegenstandes der Verpflichtungsklage nicht aus. Das Bedürfnis zur Feststellung der Rechtsverletzung ist im Verpflichtungsprozess zwar nicht so dringend wie bei der Anfechtungsklage (3.1.2), darf aber nicht völlig verneint werden. Anders als im Aufhebungsstreit ist im Verpflichtungsprozess die verbindliche Feststellung der Rechtswidrigkeit nicht für die Vermeidung der wiederholten Rechtsverletzung erforderlich, da das künftige behördliche Handeln durch den Tenor des Verpflichtungsurteils schon hinreichend vorgeschrieben ist. Der Kläger erreicht aber dadurch nicht immer sein Ziel im vollen Umfang. ^*46 Durch den Nichterlass einer Baugenehmigung kann z.B. ein Verzögerungsschaden entstanden sein, der vom Verpflichtungsurteil und sogar vom späteren Erlass der Genehmigung nicht automatisch beseitigt wird. Ein zusätzlicher Staatshaftungsprozess, bei dem die Rechtsverletzung wieder relevant werden kann, ist damit nicht ausgeschlossen. Da die Feststellung der Rechtverletzung andererseits niemanden unsachgemäß schädigen kann, ergibt sich, dass die Bindungswirkung des Verpflichtungsurteils sie dennoch umfasst.

Wie bei der Anfechtungsklage, muss auch hier vom abstrakten Rechtsverletzungsbegriff (oben 3.1.2) ausgegangen werden, d.h. man darf nicht das konkret verletzte Recht, sondern nur die Tatsache der Rechtsverletzung als Klagegrund bestimmen. Sogar dies ist offen zu lassen, ob die Behörde das Recht auf eine bestimmte Leistung oder nur den Anspruch auf die ermessens- und beurteilungsfehlerfreie Bescheidung verletzt hat. Wenn nötig, muss das Gericht im Verpflichtungsstreit die beiden Ansprüche von Amts wegen prüfen. Ein wiederholter Verpflichtungs- oder Bescheidungsantrag aufgrund desselben Sachverhalts muss ausgeschlossen sein. Andererseits ist aber zu bestimmen, welche behördliche Handlung eigentlich als rechtswidrig erklärt wird: der Ablehnungsbescheid, die ehemalige Unterlassung oder die andauernde Weigerung im maßgeblichen Zeitpunkt? Hier muss zwischen Versagungsgegenklage und Untätigkeitsklage differenziert werden. Die behördliche Weigerung muss zwar in beiden Fällen erst im maßgeblichen Zeitpunkt und nicht unbedingt früher die Rechte des Klägers verletzen. Das Gericht hat aber zu berücksichtigen, ob der Nichterlass des Verwaltungsakts schon durch den Versagungsbescheid rechtsverbindlich entschieden ist oder nicht. Der wirksame Versagungsbescheid erlangt Bindungswirkung hinsichtlich des Anspruchs auf die Erteilung des Verwaltungsakts und hat den Anwendungsvorrang vor den abstrakt-generellen Normen. Zwar muss etwa die Ablehnung der Baugenehmigung nicht unbedingt die materielle Rechtswidrigkeit des Bauvorhabens verbindlich feststellen. ^*47 Der Ablehnungsbescheid bleibt aber während seiner Wirksamkeit maßgeblich für die Frage, ob die Baugenehmigung zu erteilen ist. Die Versagungsgegenklage kann nur erfolgreich sein, soweit das Gericht den Ablehnungsbescheid aufhebt. ^*48 Für die Aufhebung ist zu prüfen, ob der Bescheid die Rechte des Klägers verletzt. In Fällen der schweigenden Unterlassung dagegen hängt die Rechtmäßigkeit der Untätigkeit oder der Verzögerung von verbindlichen Verwaltungsentscheidungen nicht ab. ^*49

Anders als in Deutschland, ist nach der deutlichen Rechtsprechung des StGH der maßgebliche Zeitpunkt zur Beurteilung der Begründetheit der Verpflichtungsklage in Estland der Moment der Klageerhebung. ^*50 Wird die Untätigkeit der Behörde erst nach der Klageerhebung rechtswidrig, muss der Kläger durch die Klageänderung den neuen Klagegrund vorbringen oder eine neue Verpflichtungsklage erheben. ^*51 Dementsprechend stellt das Verpflichtungsurteil verbindlich fest, dass die Behörde durch die Versagung oder durch die Unterlassung der Leistung die Rechte des Klägers verletzt hat.

3.2.3. Unbegründete Verpflichtungsklage

Man kann die Rechtskraft des „negativen Verpflichtungsurteils“ in ähnlicher Weise eines die Anfechtungsklage abweisenden Urteils bestimmen. Wird die Rechtsverletzung als Klagegrund in der Urteilsbegründung ausdrücklich verneint, so steht deren Fehlen für die Beteiligten rechtskräftig fest. Beruht die Abweisung auf anderen Begründungen, fehlt die Feststellungswirkung. ^*52

3.2.4. Unterlassungsklage

Durch die estnische Verpflichtungsklage können auch Unterlassungsansprüche geltend gemacht werden. ^*53 Der Klageantrag ist dann der prozessuale Anspruch auf Unterlassen eines Verwaltungsakts oder eines Realakts. ^*54 Auch hier muss die Rechtsverletzung durch (drohende) Verwaltungshandlung als Klagegrund angesehen werden. ^*55

3.2.5. Zwischenergebnis

Der Streitgegenstand des Verpflichtungsstreits ist der prozessuale Anspruch auf den Erlass des Verwaltungsakts oder auf die Durchführung des Realakts (Klageantrag) sowie die Verletzung der Rechte des Klägers durch die Versagung oder der Unterlassung des Verwaltungsakts bzw. des Realakts (Klagegrund).

3.3. Entschädigungsklage

3.3.1. Klageantrag

Im Entschädigungsprozess richtet der Klageantrag sich entweder auf die Entschädigung eines Schadens in Geld oder auf die Maßnahmen für die Beseitigung der rechtswidrigen Folgen eines Verwaltungsakts bzw. eines Realakts. Der Streitgegenstand bestimmt sich demnach zuerst durch die beantragte Leistung und durch den Schaden, der kompensiert werden muss, oder durch die Folgen, die beseitigt werden müssen. Zusätzlich wird das Entschädigungsbegehren durch die Höhe der Forderung beschränkt.

3.3.2. Klagegrund

Aus der Rechtsprechung des StGH folgt, dass auch der Verwaltungsakt oder der Realakt, mit dem nach der Auffassung des Klägers der Schaden oder die rechtswidrigen Folgen verursacht wurden, den Streitgegenstand bestimmt. Derselbe Kläger kann die Entschädigung desselben Schadens erneut beantragen, wenn er sich auf einen neuen Verwaltungs- oder einen neuen Realakt stützt. ^*56 Die Berufung auf eine andere Verwaltungshandlung im derselben Staatshaftungsprozess stellt eine Klageänderung dar. ^*57 Das Gericht hat den Kläger zu belehren, damit er sein Entschädigungsbegehren auf die richtige Verwaltungshandlung richten kann. Von Amts wegen darf das Gericht aber einen neuen Verwaltungs- bzw Realakt nicht in den Staatshaftungsprozess einbringen. ^*58 Die in der Staatshaftungsklage genannte Verwaltungshandlung ist derjenige Lebenssachverhalt, der den Anlass zur Klageerhebung gibt. Er ist damit der Klagegrund im Entschädigungsstreit. Dieses Ergebnis ist auch rechtsdogmatisch und rechtspolitisch begründet. Die Ursache des Schadens ist während der Prüfung der Begründetheit der Entschädigungsklage festzustellen und sie schafft angemessene Konturen für einen Staatshaftungsprozess. Würde sie den Gegenstand des Entschädigungsstreits nicht beschränken, könnte das Gerichtsverfahren uferlos werden. Es besteht im Entschädigungsprozess aber kein Bedürfnis für die verbindliche Feststellung der Rechtswidrigkeit der Schadensverursachung, obwohl sie als ein Tatbestandselement stets geprüft werden muss. Auch die materiell-rechtliche Grundlage des Schadensersatzanspruchs bestimmt den Gegenstand der Entschädigungsklage nicht. ^*59

3.4. Feststellungsklage

3.4.1. Allgemeine Feststellungsklage

Durch eine Feststellungsklage kann in estnischen Verwaltungsgerichten die Feststellung der Rechtswidrigkeit eines Verwaltungsakts bzw. eines Realakts oder das Bestehen bzw. Nichtbestehen eines Rechtsverhältnisses begehrt werden. ^*60 Der Klageantrag und der Klagegrund fallen hier grundsätzlich zusammen – der prozessuale Antrag ist auf die Feststellung der Tatsache gerichtet, deren Vorliegen auch den Grund der Klage darstellt. ^*61 Bei der Rechtswidrigkeitsfeststellungsklage ist diese Tatsache die subjektive Rechtsverletzung. ^*62

3.4.2. Nichtigkeitsfeststellung

Die Nichtigkeitsfeststellungsklage wird in der HKMS nicht ausdrücklich erwähnt. In der Rechtsprechung wird sie aber als eine Sonderform der Feststellung des Nichtbestehens des Rechtsverhältnisses anerkannt. ^*63 Eine maßgebliche Begründetheitsvoraussetzung dieser Klageart ist neben der Nichtigkeit des Verwaltungsakts die subjektive Rechtsverletzung durch die nichtige Verfügung. ^*64 Dies muss nach dem Inkrafttreten des Urteils auch verbindlich fest stehen, da der Kläger bei der Nichtigkeit des Verwaltungsakts nicht schlechter gestellt werden darf als bei der begründeten Anfechtungsklage. ^*65

3.4.3. Fortsetzungsfeststellung

Der Streitgegenstand der Fortsetzungsfeststellungsklage ^*66 ist in der estnischen Rechtsprechung bisher ohne Betrachtung geblieben. In vergleichbaren Situationen, in denen die Anfechtungsklage trotz der Rechtsverletzung abgewiesen worden ist, hat der StGH über den (verbotenen) Übergang von der Anfechtungsklage zur Feststellungsklage gesprochen. ^*67 Demnach ist die Fortsetzungsfeststellungsklage eher eine Sonderform der Feststellungsklage als eine „amputierte Anfechtungsklage“, obwohl die Anfechtungsklage andererseits den Antrag der Rechtswidrigkeitsfeststellung beinhaltet. ^*68 Klar ist, dass sich das Klagebegehren nach der Erledigung des Verwaltungsakts statt auf seine Aufhebung auf die Feststellung der Rechtsverletzung ^*69 des Klägers richtet. Der Streitgegenstand darf damit die Rechtsverletzung nicht ausschließen. Daneben ist in den Streitgegenstand auch die Erledigung des Verwaltungsakts als Zulässigkeitsvoraussetzung der Fortsetzungsfeststellungsklage hinzufügen. Dafür sprechen erhebliche funktionale Gründe, denn nur dadurch kann die eventuelle behördliche Anwendung des Verwaltungsakts trotz seiner Erledigung ausgeschlossen werden. ^*70

4. Schlussfolgerungen

Der vorstehende Blick auf die verschiedenen Klagearten bestätigt, dass der Streitgegenstand im estnischen Verwaltungsprozess stets zweigliedrig ist. Es muss sowohl den prozessualen Klageantrag als auch den Klagegrund beinhalten.

Ohne Berücksichtigung des Klageantrags könnten die Wirkungen von Urteilen nicht präzise genug beschrieben und die Eigenschaften verschiedener Klagearten nicht hinreichend beachtet werden. Der Klageantrag bringt am deutlichsten das klägerische Ziel zum Ausdruck. Gerade über diesen Endpunkt, nicht über die Zwischenfragen, wird vor dem Gericht gestritten. In der Regel ist der Klageantrag durch die angefochtene bzw. begehrte Verwaltungshandlung und durch die vom Kläger gewählte Rechtsschutzform bestimmt. Der bestrebte Richterspruch hinsichtlich dieser behördlichen Handlung ist wesentlich für die Identität des Streitfalles. Unterschiedliche Klageanträge hinsichtlich derselben Verwaltungshandlungen bedeuten zwar unterschiedliche Streitgegenstände; eine früher erhobene Anfechtungs- bzw. Verpflichtungsklage kann jedoch die spätere Rechtswidrigkeitsfeststellungsklage umfassen und ihre Erhebung ausschließen.

Auch bei der völligen Nichtbeachtung des der Klage zugrunde liegenden Lebenssachverhaltes bliebe die Beschreibung der Gerichtssache zu oberflächlich (insb. bei Staatshaftungsklagen) bzw. die Bindungswirkung des Urteils zu kurz (bei Anfechtungs- und Verpflichtungsklagen). Andererseits dürfen nicht alle detaillierte Vorfragen des Falls am Klagegrund teilnehmen. Verschiedene materielle Anspruchsgrundlagen bedeuten nicht unterschiedliche Streitgegenstände. Der Umfang der Feststellungswirkung des Urteils muss voraussehbar bleiben. Außerdem würde die Bindungswirkung aller Vorfragen die Möglichkeit des isolierten Streits über die Begründungen des Urteils voraussetzen. Dieses Ergebnis ist aber offensichtlich zu vermeiden. Der Klagegrund besteht in abstrakten Umständen, die relevant und wesentlich für den Erfolg der Klage sind. Bei den primären verwaltungsgerichtlichen Klagearten (Anfechtungs- und Verpflichtungsklage), sowie bei der Rechtswidrigkeitsfeststellungsklage ist der Klagegrund die Verletzung von Rechten des Klägers durch den angefochtenen Verwaltungsakt oder durch die Weigerung der Behörde. Die in Deutschland vorgenommene Unterscheidung zwischen Verpflichtungs- und Bescheidungsklage soll in Estland flexibilisiert werden. Das Gericht soll nur mit der bestrebten Verwaltungshandlung, nicht mit der Bestimmtheit des Klagebegehrens verbunden sein. Der Klagegrund des Schadensersatzprozesses ist die Verwaltungshandlung, die nach der Auffassung des Klägers den Schaden verursachte. Ein die Klage abweisendes Urteil erlangt die Feststellungswirkung nur insoweit, als die Elemente des Klagegrundes in der Begründung ausdrücklich verneint werden.

Der zweigliedrige Streitgegenstandsbegriff ist in allen Bereichen des Verwaltungsrechts anwendbar. Auch in Sonderfällen ändert sich die zweiteilige Struktur des Streitgegenstandes nicht. In den Fällen, in denen statt der Rechtsverletzung andere Umstände die Klage begründen können, soll der Inhalt des Klagegrundes modifiziert werden.

Anmerkungen:

^*1 Für die freundliche Hilfe danke ich Dr. Christoph Schewe.

^*2 § 363 Abs. 1 Nr. 1 und 2 TsMS. Vgl. § 253 Abs. 2 Nr. 2 ZPO in Deutschland.

^*3 § 457 Abs. 1 TsMS.

^*4 S. dazu B. Clausing. – F. Schoch, E. Schmidt-Aßmann, R. Pietzner (Hrsg.). VwGO. 16. Ergänzungslieferung. München: Beck 2008, § 121 Rn. 56; F. O. Kopp, W.-R. Schenke. VwGO. München: Beck 2007, § 90 Rn. 7; sowie z.B. BVerwG, NVwZ 1994, S. 1115. Auch für F. Hufen ist der Streitgegenstandsbegriff zweigliedrig. Dessen Gliede sind aber erstens der Rechtsbehauptung des Klägers, dass seine Rechte verletzt sind, und zweitens die Klage tragende Elemente des Lebenssachverhaltes, s. Verwaltungsprozessrecht. München: Beck 2008, § 11 Rn. 9.

^*5 Vgl. zum Zivilprozess H.-J. Musielak. ZPO. München: Beck 2008, Einl. Rn. 69; O. Jauernig. Zivilprozessrecht. München: Beck 1991, S. 145.

^*6 Näher B. Clausing (FN 4), § 121 Rn. 45. Zu dem Ergebnis führt auch § 457 Abs. 1 TsMS.

^*7 M. Gerhardt. – F. Schoch u.a. (Hrsg.) (FN 4), § 113 Rn. 64.

^*8 Dies regelt neben dem Schadenersatz-, Folgenbeseitigung- und Erstattungsansprüche auch die materiell-rechtlichen Voraussetzungen der sog. primären öffentlich-rechtlichen Ansprüche wie Aufhebungs-, Unterlassungs- und Verpflichtungsanspruch. S. dazu E. Andresen. State Liability without the Liability of State: Constitutional Problems related to Individual Professional Liability of Estonian Notaries, Bailiffs and Sworn Translators. – Juridica International 2006 (11), S. 146; dies. The for Elimination of Unlawful Consequences and the Claim for Compensation for Damage under Estonian State Liability Law. – Juridica International 2005 (10), S. 168.

^*9 Die Anfechtungsklage und die Feststellungsklage von HKMS entsprechen der Anfechtungsklage und der Feststellungsklage nach § 42 Abs. 1 und § 43 Abs. 1 VwGO. Die estnische Verpflichtungsklage enthält sowohl die Verpflichtungsklage nach § 42 Abs. 1 VwGO als auch die deutsche Unterlassungsklage und die allgemeine Leistungsklage. Die Entschädigungsklage ist eine Sonderform der Leistungsklage für die sekundären staatshaftungsrechtlichen Ansprüche (Schadensersatz und Folgenbeseitigung).

^*10 M. Hößlein. Der Streitgegenstand der verwaltungsgerichtlichen Anfechtungsklage gem. § 113 Abs. 1 Satz 1 VwGO. – VerwArch 2008 (99), S. 127 (131, 147). Anders aber F. Hufen (FN 4), § 11 Rn. 10. Für ihn ist der Aufhebungsanspruch „nur Ergebnis, nicht Gegenstand der Klage“.

^*11 Deutlich so M. Hößlein (FN 10), S. 139. Gemäß § 3 Abs. 2 und 3 RVastS darf die Rechtsverletzung nicht schon beseitigt oder bloß formell sein; auch darf die Aufhebung nicht ausnahmsweise wegen des schutzwürdigen Vertrauens eines Dritten oder aufgrund der Sonderregeln zur Aufhebung der Nebenbestimmungen (§ 26 Abs. 1¹ ja 1² HKMS) ausgeschlossen sein.

^*12 Statt vieler B. Clausing (FN 4), § 121 Rn. 61; vgl. auch F. Hufen (FN 4), § 11 Rn. 9.

^*13 Deutlich M. Sachs. – P. Stelkens, H. J. Bonk, M. Sachs. VwVfG. München: Beck 2008, § 43 Rn. 201; vgl. aber M. Hößlein (FN 10), S. 137; C. Bickenbach. Das Bescheidungsurteil als Ergebnis einer Verpflichtungsklage. Duncker & Humblot 2006, S. 42 f. Der Unterschied zwischen der Kassation und der Feststellung der Unwirksamkeit des Verwaltungsakts ist nicht nur rechtstechnisch. Er spiegelt die rechtswidrigkeitsunabhängige Bindungswirkung des Verwaltungsakts und kann für die Beurteilung der aufgrund des Verwaltungsakts durchgeführten Handlungen maßgeblich werden. Dazu näher I. Pilving. Die Bindungswirkung von Verwaltungsakten in Estland: Deutsche Rechtsdogmatik im Spiegel der Rezeption. – Die Verwaltung 2008 (41), S. 571 (579).

^*14 Vgl. B. Pieroth, B. J. Hartmann. Gewaltenübergreifende Bindungswirkung. Zur Maßgeblichkeit von Gerichtsentscheidungen für Behörden. – Die Verwaltung 2008 (41), S. 463 (469 ff.); B. Clausing (FN 4), § 121 Rn. 37, 94; M. Winkler. Normenumschaltende Verwaltungsakte: Zugleich eine Besprechung zum „Dosenpfand”-Urteil des BverfG. – DVBl. 2003, S. 1490, IV. S. auch zur subjektiven Reichweite der Bindungswirkung von Verwaltungsakten I. Pilving (FN 13), S. 581.

^*15 So M. Hößlein (FN 10), S. 150.

^*16 Zur „Systemwidrigkeit“ M. Hößlein (FN 10), S. 146 f.

^*17 Dazu B. Clausing (FN 4), § 121 Rn. 26; M. Hößlein (FN 10), S. 149.

^*18 So z.B. F. O. Kopp, W.-R. Schenke (FN 4), § 90 Rn. 8. Dagegen C. Bickenbach (FN 13), S. 58. Zu den Ausnahmen unten (3.1.3).

^*19 M. Hößlein (FN 10), S. 130 ff.

^*20 Vgl. § 113 Abs. 1 S. 1 VwGO.

^*21 Zum Umfang des Untersuchungsgrundsatzes etwa F. O. Kopp, W.-R. Schenke (FN 4), § 86 Rn. 2, 4. Vgl. auch zu den inquisitorischen Zivilprozesse O. Jauernig (FN 5), S. 139.

^*22 Anders die h.M. in Deutschland, s. m.w.N. F. Hufen (FN 4), § 11 Rn. 10.

^*23 So Bezirksgericht (BG) Tallinn, Rs. 3-06-1428/7, Rn. 7; s. auch Rs. 3-07-757.

^*24 K. Rennert. Der Streitgegenstand im Asylprozess. – DVBl. 2001, S. 161.

^*25 In Estland z.B. die internen Vorschriften der Gefängnisverwaltung, dazu Staatsgerichtshof (StGH), Rs. 3-3-1-54-07; Rs. 3-3-1-95-07.

^*26 Vgl. § 702 Abs. 2 TsMS; §§ 579 f. ZPO.

^*27 § 26 Abs. 1 PlanS.

^*28 Zu Umweltsachen StGH, Rs. 3-3-1-86, Rn. 16; zu Verbandsklagen StGH, Rs. 3-3-1-43-06, Rn. 24 f.; zu Klagen der Gemeinden StGH, Rs. 3-3-1-86-06, Rn. 16; Rs. 3-3-1-78-05, Rn. 10; Rs. 3-3-1-25-08, Rn. 15. Auch der im estnischen Verwaltungsprozess vorgesehene Behördenprotest (§ 6 Abs. 1 und 2 HKMS) stellt eigentlich eine außerordentliche Klageart (Aufsichtsklage) dar. Bisher ist die Protestbefugnis nur den Landräte gegen die kommunalen Verwaltungsakte gegeben (§ 85 Abs. 4 des Regierungsgesetzes).

^*29 So auch M. Hößlein (FN 10), S. 139 f.; F. O. Kopp, W.-R. Schenke (FN 4), § 90 Rn. 8. Vgl. B. Pieroth, B. J. Hartmann (FN 14), S. 475 f.

^*30 § 457 Abs. 1 TsMS.

^*31 Deutlich so Rs. 3-3-1-47-01, Rn. 3; Rs. 3-3-1-14-02, Rn. 12; indirekt auch Rs. 3-3-1-39-06, Rn. 12.

^*32 M. Hößlein (FN 10), S. 144 f.

^*33 StGH, Rs. 3-3-1-47-01, Rn. 3; anders ohne nähere Begründung Rs. 3-3-1-49-08, Rn. 12.

^*34 Vgl. StGH, Rs. 3-3-1-6-05, Rn. 20; Rs. 3-3-1-18-07, Rn. 25. Vgl. F. O. Kopp, W.-R. Schenke (FN 4), § 90 Rn. 8; M. Hößlein (FN 10), S. 141 ff., 150 f.

^*35 Zu Grundtypen von Klagen R. Pietzner. – F. Schoch u.a. (Hrsg.) (FN 4), Vorb. § 42 Abs. 1 Rn. 1; H.-J. Musielak (FN 5), Vorb. § 253 Rn. 14 ff.

^*36 Vgl. § 98 Abs. 3 HKMS und § 172 VwGO.

^*37 Vgl. C. Bickenbach (FN 13), S. 75 ff.

^*38 So zu den Protzesskosten, StGH, Rs. 3-3-1-46-06, Rn. 19; Rs. 3-3-1-24-06, Rn. 21 f. In Deutschland anders, s. F. Hufen (FN 4), § 26 Rn. 19, 24; R. Pietzner (FN 35), § 42 Abs. 1 Rn. 101 ff.; näher C. Bickenbach (FN 13), S. 69 ff.

^*39 Anders R. Pietzner (FN 35), § 42 Abs. 1 Rn. 102.

^*40 F. Hufen (FN 4), § 26 ff.; F. O. Kopp, W.-R. Schenke (FN 4), § 113 Rn. 183, 186.

^*41 R. Pietzner (FN 35), § 42 Abs. 1 Rn. 91; M. Gerhardt (FN 7), § 113 Rn. 64; C. Bickenbach (FN 13), S. 44. Eine detaillierte Übersicht zu den Literaturmeinungen ebd., S. 36 ff.

^*42 Vgl. zum Anspruchsbegriff ebd., S. 39.

^*43 Rs. 3-3-1-56-08, Rn. 21.

^*44 Den Anspruchsaufbau und den Rechtswidrigkeitsaufbau der Begründetheitsprüfung der Verpflichtungsklage vergleichend, Die Assessorprüfung im öffentlichen Recht. München: Beck 2007, S. 131.

^*45 Vgl. BVerwG, NVwZ 1992, S. 563.

^*46 So aber B. Clausing (FN 4), § 121 Rn. 64.

^*47 In Deutschland umstritten, vgl. M. Sachs (FN 13), § 43 Rn. 60, 125 m.w.N.

^*48 C. Bickenbach (FN 13), S. 63. Grundsätzlich so auch StGH, Rs. 3-3-1-6-02, Rn. 20. Anders M. Gerhardt (FN 7), § 113 Rn. 64; BVerwGE 48, S. 271 (276).

^*49 S. C. Bickenbach (FN 13), S. 67.

^*50 Rs. 3-3-1-56-08, Rn. 22; dem folgend auch BG Tallinn, Rs. 3-07-1434, Rn. 9.

^*51 StGH, Rs. 3-3-1-56-08, Rn. 21 f.

^*52 F. O. Kopp, W.-R. Schenke (FN 4), § 90 Rn. 9.

^*53 § 4 Abs. 2 i.V.m. § 6 Abs. 2 Nr. 2 HKMS.

^*54 Vgl. zur deutschen allgemeinen Leistungsklage F. O. Kopp, W.-R. Schenke (FN 4), § 90 Rn. 10; B. Clausing (FN 4), § 121 Rn. 66.

^*55 S. § 4 Abs. 1 und § 5 Abs. 1 RVastS.

^*56 StGH, Rs. 3-3-1-82-06, Rn. 12; Rs. 3-3-1-50-07, Rn. 9.

^*57 StGH, Rs. 3-3-1-60-06, Rn. 9.

^*58 StGH, Rs. 3-3-1-85-06, Rn. 9.

^*59 Vgl. B. Clausing (FN 4), § 121 Rn. 66; H.-J. Musielak (FN 5), Einl. Rn. 72; BGH, DVBl. 1996, S. 1312, II.2.a.

^*60 § 6 Abs. 3 Nr. 1 und 3 HKMS.

^*61 Vgl. F. O. Kopp, W.-R. Schenke (FN 4), § 90 Rn. 11; B. Clausing (FN 4), § 121 Rn. 67.

^*62 Unter der Rechtswidrigkeit ist genauer die subjektive Rechtsverletzung zu verstehen, so StGH, Rs. 3-3-1-46-03, Rn. 33.

^*63 Grundlegend StGH, Rs. 3-3-1-21-03, Rn. 15.

^*64 Die Unwirksamkeit des Verwaltungsakts schließt die Rechtsverletzung nicht aus, da auch der nichtige Verwaltungsakt die Rechtsnormen, die die Belange des Klägers schützen, verletzen kann.

^*65 Vgl. oben 3.1.2.

^*66 § 24 Abs. 1 Nr. 4 HKMS.

^*67 Insb. Rs. 3-3-1-6-05, Rn. 20.

^*68 Oben 3.1.4.

^*69 Näher F. O. Kopp, W.-R. Schenke (FN 4), § 90 Rn. 8; M. Hößlein (FN 10), S. 135. Für B. Clausing dagegen nur die Rechtswidrigkeit des erledigten Verwaltungsakts (FN 4), § 121 Rn. 67. Dies kann nicht zugestimmt werden, da die objektive Rechtswidrigkeit nicht eine Zulässigkeits- oder Begründetheitsvoraussetzung der Fortsetzungsfeststellungsklage ist.

^*70 So F. O. Kopp, W.-R. Schenke (FN 4), § 90 Rn. 8.

The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ^*2 opened for signing on 25 June 1998 in Aarhus proceeds from the above principle of the Rio Declaration and has become the most important international agreement on environmental rights. Estonia ratified this convention on 6 June 2001 ^*3 , and it entered into force on 30 October 2001. By the beginning of 2009, the convention had been ratified by the European Union and all of its member states, except Ireland. ^*4

The provisions of the convention regarding access to justice have proved the most difficult to implement. ^*5 The most problematic of these provisions is perhaps Article 9 (3). The wording of the paragraph is vague, allowing radically divergent interpretations. The purpose of this paper is to explain the meaning of Article 9 (3) of the convention and to examine whether Estonian administrative court practice complies with this provision upon giving meaning to standing. The wording and interpretation of the convention provision are therefore analysed through examination of the practice of the committee reviewing the implementation of convention requirements, and the extent of the legal standing in Estonian administrative courts and the influence of the convention provision thereon are analysed. As a result of limitations of space, the article does not discuss the compliance of administrative court procedure with the minimum requirements of Article 9 (4), and the relation of Article 9 (3) to other Estonian administrative and court procedures.

1. Article 9 of the Aarhus Convention: Access to justice

Article 9 of the convention consists of five paragraphs. The first two are closely connected to certain aspects of the right of information and participation. Paragraph 1 of Article 9 sets forth an obligation to ensure access to justice upon violation of the right to request information, established in Article 4 of the Aarhus Convention. Paragraph 2 obliges the party to ensure access to justice upon violation of the right to participate in the procedure granting permission for projects with a significant effect on the environment, stipulated in Article 6. A more detailed specification of these projects is provided in Annex 1 to the convention. Both substantive and procedural aspects can be challenged. Filing a complaint pursuant to Article 9 (2), environmental associations are not required to prove either impairment of their rights or sufficient interest.

It must be noted that, proceeding from the practice of the Supreme Court, the scope of application of Article 9 (2) of the Aarhus Convention is broader in Estonia than the text implies. ^*6 The convention enables reference to paragraph 2 not only upon the impairment of Article 6 but also upon infringement of other requirements of the convention if so provided in national law. In the interpretation of the Supreme Court, this means that there is no need for a special regulation that would provide such a possibility — it is sufficient if a decision, act, or omission mentioned in the Constitution is essentially challengeable in an administrative court. Not only compliance with the convention but also compliance with other relevant legislation can be subject to challenge. Therefore, if a decision, act, or omission belongs within the competence of an administrative court, the legality thereof can be checked because of infringement of both convention provisions and other relevant legislation. ^*7

Article 9 (3) of the Aarhus Convention lacks direct association with the right of information and participation. The paragraph provides:

In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

Article 9 (4) of the convention lays down the minimum requirements that the access‑ensuring procedures (established in paragraphs 1 to 3) must meet. Procedure shall be fair, equitable, timely, and not prohibitively expensive. Also, the powers of the body conducting procedures shall be adequate and effective, and the final decision shall be rendered in writing.

Article 9 (5) obliges each party to provide information to the public about the possibilities of access to justice, and to consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.

2. Possible interpretations of Article 9 (3)

The vagueness of the wording of paragraph 3 is not incidental. The negotiations preceding the adoption of the convention featured heated discussions regarding the extent (if any) to which the public should be able to demand adherence to requirements of environmental law. ^*8 The initial purpose of the provision was to allow the broadest possible access to justice, but during negotiations the wording was changed such that the requirements of national law obtained a focal position. ^*9 The final wording of the provision seems to reflect a lack of consensus, allowing radically different interpretations.

According to one radical interpretation, the provision merely constitutes a plea to broaden access to justice and fails to directly bind the parties in any respect. According to another radical interpretation, the provision gives rise to anyone’s right to initiate judicial or other, similar proceedings in private or public interests. There are, naturally, several other interpretations between these extremes. Most EU Member States tended to favour the first line, claiming during the negotiations that paragraph 3 does not presume changing of national law. ^*10 Positions close to the first extreme have also been expressed in academic discussion. These state that the parties enjoy great freedom in decision upon the determination of criteria. In order to implement the provision, it is enough to have the possibility to draw the attention of state supervisory bodies to the violations, and the right to challenge omission on the part of supervisory bodies, if they fail to take relevant measures on the basis of the information. ^*11

In the Implementation Guide to the Convention, instructions regarding the implementation of paragraph 3 remain vague, but the guide seems to exclude extreme interpretations. According to the guide, the convention makes it abundantly clear that it is not only the province of the public authorities to enforce environmental law: the public also have a role to play. The purpose of Article 9 (3) of the convention is to provide certain persons with the right to enforce environmental requirements directly or indirectly. Indirect enforcement constitutes the possibility to participate in state-initiated procedures. A person must have official status in that procedure. The convention nonetheless limits the right of the parties to determine criteria the meeting of which is prerequisite for initiation of enforcement procedure or participation therein. ^*12

At the same time, opinions supporting the other extreme can also be found in the literature. There are, e.g., references to the possibility of considering Article 9 (3) a means for the provision of “the right to a clean environment”, established in Article 1. ^*13 According to another view, paragraph 3 presumes the right of environmental organisations to file altruistic challenges in respect of all environmental matters. ^*14

The author of this article has no doubts that the purpose of the provision is to broaden access to justice. The preamble highlights that the purpose of procedural rights is to ensure the above-mentioned right to a clean environment, on the one hand, and to provide everyone with the obligation to protect and improve the environment, on the other. The preamble also indicates that access to effective judicial mechanisms is given to the public not only for the purpose of protecting their justified interests but also for ensuring the implementation of laws. The public are not able to protect their interests, or meet the expectations imposed on them in environmental protection, if access to justice rests on ordinary restrictive criteria. Reference to this can also be found in the language referring to the criteria, “if any”, laid down in paragraph 3 — if requirements meant ordinary grounds for access, this phrasing would not make sense. On the other hand, it would be odd if, upon the violation of any environmental provision (Article 9 (3)), more extensive access should be provided to justice than with regard to activities with significant environmental effect (Article 9 (2)).

With all of this taken in sum, it can be said that the convention provision is contradictory, and that on the basis of the convention alone it is difficult to decide on the extent of the obligation established in Article 9 (3). Luckily, the past years have brought certain clarity to the content of the provision with a committee reviewing the implementation of convention requirements, having had to interpret Article 9 (3) within the context of specific cases.

3. Interpretation of Article 9 (3) in the practice of the committee reviewing compliance with ­convention requirements

Review of compliance with the requirements of the Aarhus Convention is discussed in Article 15. According to a more detailed regulation approved by the parties, reviewing compliance with requirements is the task of the Compliance Committee, consisting of nine members. One of the tasks of the Compliance Committee is to process communications from the public. The committee reports at the ‘Meeting of the Parties’, which decides on the implementation of appropriate measures upon contravention of convention requirements. ^*15 Possible measures include a declaration regarding the contravention of requirements, but also suspension of rights and privileges under the convention. In view of the generality of Article 15, it is surprising that agreement could be reached on a question such as provision of the right of communication to the public, which essentially means the rights to file challenges regarding the omissions of the convention. Committee Chairperson V. Koester explains this in terms of the countries most opposing the strong convention not becoming signatories to it at once, and thus not participating in the negotiations regarding the organisation of the next convention review. ^*16

The mechanism for reviewing compliance with the requirements of the Aarhus Convention has proved to function well. The main reason for this success is the decision to allow the public to submit communications. In most environmental conventions, this right is granted to only the parties to the convention. As communications regarding contravention of the convention can be considered to be hostile acts, the parties shall submit such communications only if significant national interests are at stake — i.e., very rarely. ^*17 In 2004–2008, the Compliance Committee received 29 communications, 28 of them from members of the public. ^*18 Several of these cases are related to Article 9 (3), but, in order to clarify the contents of the provision, two cases are especially interesting, in which the committee more thoroughly addressed the meaning of Article 9 (3): the communication from the Belgian umbrella organisation for environmental organisations, the BBL, regarding Belgian planning law ^*19 , and the communication from a citizen of Denmark, Søren Wium-Andersen ^*20 , regarding nature conservation law.

The main subject of the communication submitted by the BBL in 2005 was the excessively narrow treatment of the legal standing of environmental organisations in courts. The BBL concluded that these criteria make it especially difficult for local organisations to file challenges, even more so on account of the relevant judicial practice being inconsistent. ^*21 The main content of the communication submitted by Søren Wium-Andersen in 2006 was the lack of possibility to challenge the culling of Corvus frugilegus in the local government of Hillerød. Pursuant to Danish law, the legal standing of both natural and legal persons is based on specific, significant, and individual interest. Although Danish judicial practice regarding the legal standing of environmental organisations is scant, it nevertheless follows that at least some national and local organisations dedicated to nature conservation have the legal standing in disputes related to nature conservation. Natural persons, however, usually lack a legal standing regarding nature conservation. ^*22

Addressing the cases, the committee assumed the position that the purpose of Article 9 (3) of the convention is, firstly, to enable public access to adequate judicial mechanisms in the event of acts and omissions in contravention of environmental law and, secondly, to provide means for the enforcement of environmental law to ensure its effectiveness. According to the committee, Article 9 (3) should be given meaning in compliance with articles 1–3 of the convention, with regard to paragraph 18 of the preamble. ^*23 The committee sees Article 9 (3) as providing the parties with great flexibility. ^*24 The opportunity for the public to address the state and draw attention to the violation of environmental law is nevertheless insufficient for the implementation of the provision. In addition, there must be a possibility to challenge acts or omissions that contravene environmental law in the event that the state fails to take measures in relation to that matter. ^*25 On the one hand, a party is not obliged to allow general actio popularis; at the same time, a party cannot establish or maintain such strict requirements that almost no member of the public has access to justice. Potential access‑restricting criteria may include those of being affected or having an interest, but these criteria cannot exclude access. ^*26 At the same time, Article 9 (3) does not presume that every person should be able to protect public environmental interests. For the implementation of the convention it suffices if a member of the public has access to justice in respect of these issues. ^*27

With respect to the BBL communication, the committee noted that exclusion of the legal standing of certain organizations (such as umbrella organisations) is essentially not in contravention of the convention. At the same time, it is unacceptable to create a situation wherein almost no organisation is able to meet the criteria for the legal standing. It appeared from Belgian judicial practice that, in planning disputes, most if not all environmental organisations lack the legal standing. The committee estimates that the continuation of such a situation would be in contravention of Article 9 (3). ^*28 Addressing the communication from the Danish citizen, the committee concluded that Danish law cannot be considered to be in contravention of Article 9 (3) on the basis of the information at hand. Although it is likely that the person who submitted the communication cannot challenge the culling of Corvus frugilegus in Denmark, it has not been proved that such activity could not have been challenged by an environmental organisation. Rather, the contrary could be presumed on the basis of the scant judicial practice. ^*29

It seems that the committee favours neither of the extreme interpretations of Article 9 (3). The committee recognises the extensive right of discretion of the parties to the convention upon establishment of the access criteria but at the same time presumes that at least some element of the public shall be granted access to justice. It appears from committee practice that access to justice pursuant to Article 9 (3) should be distinguished in the case of private and public interests. From the convention text and committee practice, it is unclear to what extent access to justice should be granted for a person in protection of private interests in cases other than the infringement of the right of information and participation. In respect of protection of the public interest, it is important to note that the committee sees the enforcement of the environmental law as a goal of Article 9 (3). What should also be highlighted is the opinion of the committee that at least some members of the public must have the right to represent public environmental interests. Given the emphasis of the role of environmental organisations in respect of the convention, the role of ensuring appropriate environmental law seems best suited to environmental organisations.

4. Implementation of Article 9 (3) in Estonian administrative court practice

In Estonian law there is no special regulation for the implementation of Article 9 (3) of the convention. There are several relevant procedures, but among them the most pertinent is administrative court procedure. The first reason for this is that most environmental disputes are disputes in public law. Another important factor is limited access under other procedures or problems with the implementation of the requirements of Article 9 (4) of the convention in these procedures.

The Estonian administrative court system has three levels. The courts of first instance are the administrative courts of Tallinn and Tartu. The courts of appeal are the Administrative Chambers of the Circuit Courts of Tallinn and Tartu. The court of cassation is the Administrative Law Chamber of the Supreme Court, whose decisions have central importance for interpretation of the law in practice. The competence of administrative courts includes adjudication of disputes in public law, especially adjudication of appeals filed against administrative acts and measures. Review of legislative acts does not fall within the competence of administrative courts. ^*30

4.1. The basis for access to a review procedure before ­administrative courts and the interpretation thereof in judicial practice

The main grounds for the legal standing of natural and legal persons in Estonian administrative courts involve violation of a subjective public right ^*31 , although some exceptions are set forth in specific laws. ^*32 According to the Supreme Court, the violation of rights means direct contiguity. ^*33 On the basis of the purpose of the violated provision and the importance of the interest of the person, the court must decide whether the provision protects only public interests or that person’s interests too. Only in the event that a provision protects or must protect a person’s interests, that person’s subjective right to request compliance with the provision shall stem from the provision. ^*34 The legal standing of associations of persons is essentially no different from that of natural persons. Proceeding from § 7 (3) of the Code of Administrative Court Procedure (or CACP), an association of persons may file an action in the interests of the members of the association or other persons if the corresponding right is granted to the association by law. The courts have interpreted the provision narrowly, assuming the position that such a right must proceed from law expressly. The fact that an association has been established for the protection of the interests of the members is not enough for the creation of the legal standing. ^*35

As has appeared from committee practice, Article 9 (3) of the convention does not prohibit criteria restricting access to justice. At the same time, these criteria are not to result in a situation where almost no person has access to justice in environmental disputes. A strict implementation of the criterion of violation of subjective rights, however, yields exactly this kind of result. Negative environmental effects are dispersed and generally affect a large number of persons. Upon review before the courts, it is difficult for a person to show that the impact affects him especially and that his interest is different from public or collective interest. Therefore, the violation of a subjective right is considered a very restrictive basic criterion for access to justice in relation to environmental matters. ^*36

Estonian administrative court practice initially seemed to confirm a tendency toward the narrow interpretation. In two decisions handed down in 1999, the Supreme Court noted that a person cannot rest on the violation of environmental protection requirements because this constitutes a violation of public interest. ^*37 Also, in 2000 a court of first instance assumed the position that the legal standing could not belong to a bird protection organisation with a long history and a large membership with regard to a project that allegedly would have had a significant impact on a bird site of international importance. ^*38

In recent years, Estonian administrative court practice has nevertheless significantly broadened the legal standing in environmental matters. Two approaches serve as the basis for a more extensive legal standing: abandonment of the criterion of the violation of a subjective right and recognition of the ‘right to a clean environment’. The first of the two proceeds from Supreme Court practice. Addressing the appeal of a local municipality regarding an environmental impact assessment for extraction of mineral resources, the Supreme Court thought it necessary to note the following:

In matters pertaining to decisions on environmental issues, the legal standing cannot be given meaning identically to in ordinary administrative cases through the violation of a subjective public right. Violation of a subjective right may or may not appear in environmental matters. Therefore, the basis for the right to address the court in respect of matters of environmental protection can be not only the violation of rights but also the contiguity of the complainant by the challengeable administrative act or measure. The complainant must show that the challengeable act concerns his interests. Contiguity does not merely mean the possibility that the activity or planned activity affects the person; such effect should be significant and real. The administrative court must check such contiguity of the complainant by the challengeable activity separately in every case. The requirement for significant and real contiguity excludes filing an appeal in public interests. ^*39

The decision of the Supreme Court to abandon the criterion of the violation of a subjective right in relation to environmental matters seems revolutionary. The weight of the decision is, however, considerably decreased by the fact that the Supreme Court has remained very taciturn. The abandonment of the criterion of the violation of a subjective right was probably due to the wish to broaden the environment-related legal standing, but it is far from clear what kind of connection the requirement presumes to be shown. Possibilities include a very narrow interpretation, which fails to significantly broaden the legal standing as compared with the violation of subjective rights, as well as a very broad interpretation, which enables protecting any collective and dispersed interests that are associated with the person. The only clear instruction is the illegality of an appeal to be filed in public interests.

In some decisions of the courts of first instance and the courts of appeal, another way has been chosen for the broadening of the environmental legal standing, recognising the subjective right to a clean environment. This right is not expressly mentioned in the Constitution of Estonia. The right is most associated with § 53 of the Constitution, in the chapter on fundamental rights and duties, which lays down: “Everyone has a duty to preserve the human and natural environment and to compensate for damage caused to the environment by him or her. The procedure for compensation shall be provided by law.” The Tallinn Circuit Court in particular has assumed the position that there is a fundamental environmental right stemming from the provision. ^*40 Closer attention should be paid to a decision of 2008 that highlights the content of this right and the relation thereof to the legal standing. In the case in question, the Ministry of the Environment had left part of a city park in the ownership of the state, determining its intended purpose to be residential land, and then had decided to sell it as unnecessary. The respective decisions were challenged by a resident of a building adjacent to the park. The court of first instance assumed the position that the subjective rights of the complainant had not been violated. The Circuit Court did not agree. The court concluded that, pursuant to § 53 of the Constitution, a person has a right to demand from the state the preservation of the environment at least in the event that it affects his or her living environment. According to the court, the judicial protection provided under § 53 of the Constitution nevertheless presumes significant and real contiguity. Contiguity cannot be confined to cases where a person's life, health, property, or other fundamental rights are damaged through environmental impact. The fundamental environmental right is directly aimed at the preservation of environmental values, not only at avoidance of violations of other fundamental rights through environmental damage. Environmental impact involves personal contiguity despite the impact on other fundamental rights if a person has used the ordinarily affected environmental resource, if the person often stays in said environment, or if the person has closer contact therewith than the rest of the public, or if the person’s wellbeing significantly depends on the environmental impact in other ways. The court assumed the position that a person’s living environment constitutes not only registered immovable or apartment ownership but also at least the public space immediately surrounding the place of residence, especially parks and green areas in the vicinity of the place of residence, and also areas where the person usually walks, engages in sports, plays with a child, or spends time in other ways. An appeal filed for the purpose of preserving a person’s own living environment and ensuring the possibility of using it cannot be equated with an appeal filed in local government interests or public interests (a public appeal). The fundamental environmental right presumes that concerned persons have been effectively incorporated into making of decisions that can entail changes in their living environment, that such decisions have been motivated, and that damaging a living environment and restricting the use thereof only take place with significant reasons. ^*41

The Circuit Court thus relates the right to a clean environment to significant and real contiguity highlighted by the Supreme Court and gives it meaning primarily with content related to actual usage of the environment. It is, however, impossible to say at present whether the Supreme Court considers this approach to be correct. The decision of the District Court undoubtedly significantly broadens the legal standing as compared with the interpretation of the violation of subjective rights, enabling filing of appeals also in protection of collective and dispersed interests. At the same time, the scope of the legal standing does not become entirely clear from the decision of the Circuit Court. For example, it needs to be specified which elements of a city environment are subject to the right and in which cases “the well-being of a person [may] depend on environmental impact in other ways”.

The impact of Article 9 (3) of the convention on this decision is difficult to determine on the basis of the Supreme Court decision and the Circuit Court decision. The courts do not analyse this provision of the convention nor refer to it directly. The author of this article would still dare to suppose that the provision has been taken into consideration in both cases. In the above-mentioned case and other decisions ^*42 , the Supreme Court has referred to the convention, and it is hard to believe that Article 9 (3) has been left without attention. In the decision of the Circuit Court, consideration of Article 9 (3) of the convention seems to have been even more likely, if one bears in mind that, while addressing the right to a clean environment, the court refers to Articles 1 and 9 of the convention, among other sources. Even if Article 9 (3) has not played a significant role in the deliberations of courts, it can be said that the broadening of the legal standing in administrative court practice is consistent with the purposes of the convention. Although final conclusions cannot be drawn on the basis of scant judicial practice, it seems that giving meaning to significant and real contiguity in the Circuit Court decision complies with Article 9 (3) of the convention and implements it at least on a minimum level.

4.2. Direct application of Article 9 (3)

Pursuant to § 123 (2) of the Constitution of the Republic of Estonia, the sufficiently appropriate provisions of ratified international treaties shall be directly applicable if they are in conflict with laws or other legislation. Courts have repeatedly applied Article 9 (2) of the convention directly with regard to appeals filed by organisations. ^*43

The convention fails to specify the requirements an association of persons must meet such that violation of the rights of the association could be presumed pursuant to Article 9 (2). Pursuant to Article 2 (5) of the convention, the organisation must be non-governmental, promote environmental protection, and meet the requirements established by the parties to the convention. In other words, the convention provides parties with relatively great freedom of decision regarding which criteria an association of persons must meet in order to qualify as an environmental organisation. The applicable Estonian legislation lacks relevant detailed requirements. ^*44 The courts have nevertheless not been held back by the lack of criteria; they have recognised the appeals of several not-profit organisations, the legal standing of a foundation, and also the legal standing of a two-member non-legal-person ad hoc protest group on the condition of it representing the opinion of a significant proportion of local residents. ^*45

Pursuant to Article 9 (3) of the convention, access must be granted for a member of the public who meets the requirements for the right of a party, if such requirements have been established. Considering that Estonian courts have not seen the lack of more precise national requirements as an obstacle in Article 9 (2), one could presume that this would not be a problem in the case of paragraph 3 either. However, Estonian courts have referred to the provision only in isolated cases. Paragraph 3 has been directly referred to in only two decisions of the Tartu Administrative Court. ^*46 In neither of these has that court recognised the legal standing on the basis of the provision, but in principle it did accept the possibility of recognition thereof. The court was of the view that Article 9 (3) can be relied on by a representative of the public upon protection of public environmental interest. It is possible that this situation was a consequence of the Estonian text of the convention, which misleadingly defines a ‘member of the public’ with a term that directly translates as ‘representative of the public’. At the same time, it was considered possible in one of these decisions to apply the provision on the condition that the person was affected by the activity permitted by the challenged administrative act. Another curious example is a decision of the Tallinn Administrative Court ^*47 wherein Article 9 (2) is referred to but the text abstracted by the court adheres instead to the wording of paragraph 3. In this case, an environmental organisation had filed an appeal concerning failure of the Minister of the Environment to revoke the licence of an environmental impact assessment expert who had provided false assessments. The Ministry of the Environment pointed out that retention of the licence does not violate the rights of the environmental organisation and that the organisation cannot rely on Article 9 (2) of the convention, because the provisions of the convention do not regulate the issuing of licences. The court did not agree with the Ministry of the Environment. The court stated that due to its statutes the organisation has sufficient interest that the licence is given only to a person competent to assess environmental impact.

In summary, it is impossible to claim with confidence on the basis of individual decisions that the courts are ready for the direct application of Article 9 (3), although the decisions of the courts of first instance do seem to confirm this. At the same time, it should be stressed that no decision of a higher court that is central with regard to the environmental legal standing has expressly relied on Article 9 (3). The author of this article believes that the courts’ cautiousness in addressing the implementation of Article 9 (3) of the convention can be explained by the vagueness of the provision, poor translation into Estonian, and the radicalism with which the provision seems to change the bases for access to justice. Also, there is no need for direct application of the provision if broad meaning is given to the requirement of significant and real contiguity.

5. Conclusions

The most difficult aspect of implementation of the Aarhus Convention has turned out to be securing access to justice. Among the relevant convention provisions, the most problematic is Article 9 (3), regulating access to justice in the event of the violation of any provision of national environmental law. The paragraph allows radically different interpretations. According to one radical interpretation, the provision merely constitutes a plea to broaden access to justice and fails to directly bind the parties in any respect. According to another extreme interpretation, the provision allows public appeals on all environmental matters. From the text of the convention and related literature, arguments can be found in favour of either interpretation.

In analysis of the practice of the committee reviewing compliance with the convention’s requirements, it appears that the committee favours neither of the extreme interpretations of Article 9 (3). The committee recognises the extensive right of discretion of the parties in establishment of the access criteria, but at the same time it presumes that at least some portion of the public, especially environmental organisations, shall be granted access to justice upon violation of any provision of national environmental law, in order to protect public environmental interests.

The main grounds for the legal standing in Estonian administrative courts is the violation of subjective public rights. The violation of a subjective right is considered a very restrictive criterion for access to justice in relation to environmental matters, because the ordinary interpretation of the criterion presumes direct and special contiguity. Estonian administrative court practice initially seemed to confirm a trend toward narrow interpretation, but in recent years the courts have considerably broadened the environmental legal standing. Two approaches serve as the basis for this more extensive legal standing: abandonment of the criterion of violation of subjective rights and replacement of it with the requirement of significant and real contiguity in the decisions of the Supreme Court, and the recognition of the right to a clean environment in the decisions of the Tallinn Circuit Court. On account of the brevity of the relevant Supreme Court decision, it is unclear how extensive a legal standing the criterion provides. It appears from Circuit Court decisions that the environmental legal standing is broad and follows Article 9 (3) of the convention at least on the minimum level. Neither Supreme Court nor Circuit Court decisions analyse or refer to Article 9 (3) of the convention, but it may be supposed that in both cases the provision has been taken into consideration. Pursuant to the Constitution, it would in principle be possible to apply the provision directly, and some courts of first instance seem to be rather accepting of this possibility. The cautiousness of the courts with respect to the implementation of Article 9 (3) of the convention can be explained by the vagueness of the provision, poor Estonian translation, and the radicalism with which the provision seems to change the bases for access to justice. Also, there is no need for direct application if one wishes to give a broad meaning to the requirement of significant and real contiguity.

Notes:

^*1 Rio Declaration on Environment and Development (Rio de Janeiro, 1992). Available at http://www.unep.org/Documents.Multilingual/Default.asp?documentID=78&articleID=1163 (31.03.2009). Pursuant to § 1 (2) of the Sustainable Development Act (RT I 1995, 31, 384 (in Estonian)), the Estonian National Sustainable Development Strategy is based on the principles stipulated in the decisions of the UN Conference on Environment and Development.

^*2 Available at http://www.unece.org/env/pp/treatytext.htm (31.03.2009).

^*3 RT II 2001, 18, 89.

^*4 The current status of the ratification is displayed on the web page of the Convention at http://www.unece.org/env/pp/ratification.htm.

^*5 Opening remarks of Mr. M. Belka, Executive Secretary of UN Economic Commission for Europe, at the Meeting of the Parties to the Aarhus Convention in June 2008 in Riga, pp. 2–3. Available at http://www.unece.org/env/pp/mop3/web/speechBelkaRigafinal.pdf (22.12.2008).

^*6 ALCSCd, 29.01.2004, 3-3-1-81‑03. – RT III 2004, 5, 47 (in Estonian).

^*7 Ibid., subparagraphs 23–27.

^*8 J. Jendrośka Aarhus Convention and Community Law: The Interplay. – Journal of European Environmental & Planning Law 2005/1, p. 19.

^*9 M. Zschiesche. The Aarhus Convention — More Citizens’ Participation by Setting out Environmental Standards? – ELNI Review 2002/1, pp. 26–28.

^*10 J. Jendrośka (Note 8), p. 19; M. Contiero. Special Report of the European Environmental Bureau (EEB). Your Rights Under the Environmental Legislation of the EU. – EEB. 2004/016, p. 35. Available at http://www.unece.org/env/pp/Media/Your_Rights_2004_e.pdf (22.12.2008).

^*11 V. Rodenhoff. The Aarhus Convention and its Implications for the “Institutions” of the European Community. – Review of European Community & International Environmental Law 2002 (11) 3, p. 349; M. Lee, C. Abbot. The Usual Suspects? Public Participation Under the Aarhus Convention. – Modern Law Review 2003 (66) 1, p. 105.

^*12 UNECE. The Aarhus Convention Implementation Guide, pp. 130–131. Available at http://www.unece.org/env/pp/publications.htm (22.12.2008).

^*13 J. Jendrośka. Public Information and Participation in EC Environmental Law. – R. Macrory (ed.). Reflections on 30 Years of EU Environmental Law. The Avosetta Series (7). Europa Law Publishing 2006, p. 81.

^*14 German Advisory Council on the Environment. Access to Justice in Environmental Matters: The Crucial Role of Legal Standing for Non-Governmental Organisations. Statement. No. 5. February 2005, p. 12. Available at http://www.participate.org/index2.php?option=com_docman&task=doc_view&gid=40&Itemid=50 (22.12.2008).

^*15 Decision 1/7 taken at the Meeting of the Parties; see also decisions 2/5 and 3/6. The Committee has itself also approved several administrative documents. Available at http://www.unece.org/env/pp/ (22.12.2008).

^*16 V. Koester. Review of Compliance under Aarhus Convention: A Rather Unique Compliance Mechanism. – Journal of European Environmental & Planning Law 2005/1, p. 35.

^*17 Statement of Committee Chairperson V. Koester at the Meeting of the Parties to the Convention in June 2008 in Riga, p. 1. Available at http://www.unece.org/env/pp/mop3/web/Veit_Koester_HLS_Panel_1_MOP_3.pdf (22.12.2008).

^*18 The list of communications from the public is available at http://www.unece.org/env/pp/pubcom.htm (22.12.2008).

^*19 Observations and recommendations of the Committee with respect to the communication regarding Belgium. ECE/MP.PP/C.1/2006/4/Add.2. 28 June 2006. Available at http://www.unece.org/env/pp/compliance.archives.htm (22.12.2008) (hereinafter: Communication Belgium).

^*20 Observations and recommendations of the Committee with respect to the communication regarding Denmark. ECE/MP.PP/2008/5/Add.4. 29 April 2008. Available at http://www.unece.org/env/pp/compliance.archives.htm (22.12.2008) (hereinafter: Communication Denmark).

^*21 Communication Belgium (Note 19), items 11–19.

^*22 Communication Denmark (Note 20), items 13–21.

^*23 Article 1 words the purpose of the Convention, which is securing the right of every member of the present and future generations to live in an environment adequate to their health and well-being. Article 2 defines the key concepts. Article 3 stipulates the general provisions of the Convention, e.g., the establishment of a transparent, clear and consistent framework to implement the provisions of the Convention. Pursuant to paragraph 18 of the Preamble, effective judicial mechanisms should be accessible to the public so that its legitimate interests are protected and the law is enforced.

^*24 Communication Belgium (Note 19), items 34–35.

^*25 Communication Denmark (Note 20), item 28.

^*26 Communication Belgium (Note 19), item 36.

^*27 Communication Denmark (Note 20), item 32.

^*28 Communication Belgium (Note 19), items 39–40.

^*29 Communication Denmark (Note 20), items 36−37.

^*30 Halduskohtumenetluse seadustik (Code of Administrative Court Procedure) (RT I 1999, 31, 425; 2008, 59, 330 (in Estonian)) §§ 3 and 4 (hereinafter: CACP).

^*31 CACP § 7 (1).

^*32 Section 26 (1) of the Planning Act (RT I 2002, 99, 579; 2009, 3, 15 (in Estonian)) allows public appeals. Section 23 (1) of the Environmental Liability Act (RT I 2007, 62, 396; 2009, 3, 15; in Estonian) establishes that appeals may also be filed by persons who are affected or may be affected by environmental damage. Also, Subsection 2 presumes the violation of rights and justified interest of environmental protection organisations. These two exceptions nevertheless by far cover all possible cases of the violation of national environmental law.

^*33 ALCSCd, 23.03.2005, 3-3-1-86-04. – RT III 2005, 11, 109 (in Estonian).

^*34 SPSCd, 20.12. 2001, 3-3-1-15-01. – RT III 2002, 4, 34 (in Estonian).

^*35 ACSCr, 10.04.2001, 3-3-1-16-01. – RT III 2001, 12, 125 (in Estonian); see also Tallinn CCr, 7.12.2006, 3-06-2199.

^*36 N. Sadeleer. Synthesis of the National Reports. – N. Sadeleer, G. Roller, M. Dross et al. Access to Justice in Environmental Matters and the Role of NGOs. Groningen: Europa Law Publishing 2005, p. 185.

^*37 ALCSCd, 7.06.1999, 3-3-1-26-99. – RT III 1999, 20, 189 (in Estonian); ALCSd, 25.05.1999, 3-3-1-23-99. – RT III 1999, 18, 171 (in Estonian).

^*38 Saare County Court, 22.12.2000, 4-15/2-2000.

^*39 ALCSCd, 28.02.2007, 3-3-1-86-06. – RT III 2007, 9, 78 (in Estonian).

^*40 See, e.g., Tallinn CCd, 15.12.2004, 2‑3/140/04; Tallinn CCr, 13.08.2007, 3‑07-102; Tallinn CCd, 18.03.2008, 3‑06-1136.

^*41 Tallinn CCd, 18.03.2008, 3‑06-1136.

^*42 See, e.g., ALCSCr, 7.05.2003, 3-3-1-31-03. – RT III 2003, 18, 167 (in Estonian); ALCSCd, 29.01.2004, 3-3-1-81‑03; ALCSCd, 28.11.2006, 3-3-1-86-06.

^*43 ALCSCd, 28.11.2006, 3-3-1-86-06 (Seltsing Roheline Urvaste); see also Pärnu AC, 24.11.2003, 3-119/2003 (MTÜ Eesti Ornitoloogia­ühing), Tartu AC, 2.12.2002, 3-289/2002 (MTÜ Eesti Looduskaitse Selts), Tallinn AC 17.10.2003, 3-1398/203 (MTÜ Eesti Roheliste Liikumine), Tallinn AC, 11.09.2003, 3-1207/03 (MTÜ Nõmme Tee Selts), Pärnu AC, 24.11.2003, in the administrative case No. 3-119/2003 (SA Eestimaa Looduse Fond).

^*44 An exception is the Environmental Liability Act, which defines the concept of an environmental organisation in the context of this Act (§ 24). Pursuant to the provision, a non-governmental environmental organisation means a non-profit association or a foundation which, pursuant to its statutes, promotes environmental protection, also an association promoting environmental protection which is not a legal person and which represents the opinions of a significant part of local residents.

^*45 See Note 43.

^*46 Tartu ACd, 24.04.2006, 3-06-271; Tartu ACd, 23.10.2008, 3-08-1199.

^*47 Tallinn ACd, 17.10.2003, 3-1398/2003.

Section 5 of the Constitution of the Republic of Estonia ^*1 provides: “The natural wealth and resources of Estonia are national riches which shall be used economically.” The riches of Estonian nature are indeed remarkable. A variety of valuable and unique aspects of Estonian biodiversity are worth mentioning. The diversity of Estonian flora and fauna when compared to that of other territories north of the latitude 57° N is among the greatest in the world. This is due to climate conditions and climatic diversity in Estonia that are related to the country’s geographic position, the fact that there are both islands and mainland territory in Estonia, the abundance of sea and inland waters, and the versatility of soil conditions. Plant colonies can be found in Estonia with the largest small-scale diversity of species in the world. There are plant colonies in Eastern Estonian wooded meadowland that have been in use for a long time; that are still thriving; and where, for instance, the number of tracheophytes amounts to 74 species per square metre. ^*2 The general diversity of landscape is great in Estonia as well. These riches must be cherished.

Nature conservation is one of the priorities of European Union environmental policy. It has now been five years already since Estonia joined the EU. Analysis of Estonian legal practice, especially administrative practice, often seems to indicate that we have not joined the European Union yet, as only Estonian law is known and implemented, even when it is in direct contradiction with Community law. European Union law has affected different areas of law differently. Environmental law is undoubtedly one area where the influence of European Union law can be felt at every step, although conflicts between Estonian law and European Union law are not uncommon. A good example is the so-called Suurupi logging case in the Tallinn Administrative Court ^*3 , where Estonian law could not find a reason to prohibit logging, whereas the decision for a ban was quite obvious under European Union law, as the case concerned an area of valuable natural habitats to be conserved, not logged. The court pointed out that the same. Natura 2000 network areas taken under protection pursuant to the European Union nature conservation directives are often a collision ground for nature conservation with economic and related social interests. Such conflicts are not uncommon also in other European Union Member States and have been brought also before the European Court of Justice.

The analysis that follows is largely based on European Court of Justice case law. The European Court of Justice has demonstrated its dedication to nature conservation and regularly given priority to nature conservation considerations. The European Court of Justice called for radical implementation of the precautionary principle in several cases analysed below. At the same time, an infantile understanding prevails in Estonia that economic concerns always outweigh environmental values. Even the Supreme Court found, in the so-called Paluküla sacred grove case, that nature conservation does not prevail at Natura sites but that the need to ensure sustainable development does. ^*4 The objective of this article is to consider which instructions the European Court of Justice’s case law provides to the Member States for resolving the conflict of economic and environmental interests at Natura sites. There are plenty of legal problems with Natura sites; therefore, the primary aim of this article is to determine whether Estonian law provides sufficient protection to Natura sites — i.e., protection in the meaning of the European Court of Justice’s interpretations. Attention is paid primarily to the selection of Natura sites and the so-called Natura assessment. The article begins with an examination of the principles of EU nature conservation law.

2. The main principles of European Union nature conservation law: Member States as keepers of the common European nature heritage

The Supreme Court has touched on the relationship between Estonian law and EU law in the Paluküla sacred grove case, noting that in that particular case there were no grounds for the direct application of European Union law, as Estonian law provides sufficient protection to the pre-selected Natura 2000 Kõnnumaa landscape protection site in accordance with European Union law. This article does not address the direct legal effect of the EU nature conservation directive’s provisions. It does underscore, though, that interpretation of the Natura network protective measures derives from EU law. ^*5

The two pillars of EU nature conservation law are Council Directive 79/409/EEC, on the conservation of wild birds ^*6 (hereinafter ‘the Bird Directive’), and Council Directive 92/43/EEC, on the conservation of natural habitats and of wild flora and fauna ^*7 (hereinafter ‘the Habitats Directive’).

Harmonisation of bird protection measures via the adoption of the Bird Directive is a good example of the application of the principle of subsidiarity. Birds know no ‘state borders’; therefore, national protective measures cannot be sufficient. The Bird Directive compels all Member States to maintain the population of all species of naturally occurring birds at a level that corresponds in particular to ecological, scientific, and cultural requirements, while taking account of economic and recreational requirements. For that the Member States have to establish protected areas and maintain or re-establish habitats for the bird species. Thus, a situation arises wherein the aim of protection of natural resources requires the regulation of certain areas and evaluation of how the environmental impact of various types of activities affects protection of birds and conservation of their natural habitats. ^*8

The Habitats Directive is regarded as the most important legal instrument for nature conservation in the EU. The aim of the Habitats Directive is to ensure the protection of biodiversity in the territory of the Member States through the conservation of natural habitats and of flora and fauna. The directive is based on the following considerations. In the European territory, natural habitats are continuing to deteriorate and an increasing number of wild species are seriously endangered. As the endangered habitats and species are part of the Community’s natural heritage and the threats to them are often of a trans-boundary nature, it is necessary to take measures at Community level in order to conserve them. In order to ensure the restoration or maintenance of natural habitats and species of Community interest with a favourable conservation status, the Member States have to designate areas of conservation and create a coherent European ecological network: Natura 2000. The directive foresees criteria for the designation of conservation sites, and it lists animal and plant species and types of natural habitats of European interest. The main criterion for successful implementation of the directive is maintenance of a favourable conservation status for natural habitats and species. For this purpose, appropriate measures have to be implemented — with regard to not only conservation sites but also any activities outside conservation sites that might adversely affect that area. ^*9

One of the most problematic provisions is Article 2 of both directives is foreseeing that the measures taken pursuant to the Birds Directive and the Habitats Directive should take account of economic and related social circumstances. Many Member States have leaned on that and tried to give preference to development activities over the establishment of conservation areas, preferring economic interests to nature conservation. As shown below, this has been done in Estonia. N. de Sadeleer refers to several cases wherein the European Court of Justice has clearly expressed that nature conservation interests prevail for nature conservation areas established under EU law and that other interests are clearly subordinate to that. ^*10 Many Member States are reluctant to implement that principle. By contrast, in the Supreme Court judgment in the case of the Paluküla sacred grove ^*11 , the court indicated that the aim of the Natura 2000 network created under the European Union nature conservation directives is to support sustainable development, not to rule out all economic activity. The court is right in the sense that, indeed, the Natura conservation scheme does not rule out all economic activity, but it remains unclear what the court regards as sustainable development. The classical concept of sustainable development refers to the balance of economic, social, and environmental interests. That definition does not apply for Natura sites. Several European Court of Justice cases mentioned below prove that nature conservation interests are to be given clear preference over other interests at Natura sites.

The Habitats Directive indicates that the creation of the European Natura network is “an essential objective of general interest pursued by the Community”. The conservation areas that constitute that network are “sites of Community interest”. Thus, EU nature conservation law regards Member States as the guardians of a common natural heritage. Contemporary international environmental law also considers the environment a common heritage of mankind, since nature knows no state borders. P. Sands describes the development of international environmental law as follows. Classical (positivist) environmental law was based on norms that were established and implemented only with the consent of states. This was based on reciprocity, which, in turn, rested on Roman Law’s do ut des principle, according to which the obligations of one (international) contracting party should be equal to the benefits received from the other party to the contract. A turn was taken in the 1970s when several conventions were signed whereby states accepted environmental obligations without receiving any direct benefit from other parties to the contract. P. Sands calls such obligations “obligations erga omnes” — obligations to all — and the aim is to protect interests of humanity as such. As we can see, EU nature conservation law rests on the same principle, underscoring common nature conservation interests and responsibilities. ^*12

In the case of Estonia, all of the above means that, pursuant to international law, and especially EU law, we no longer have an exclusive right to decide over the conservation and use of our precious nature. It is shown below, however, that Estonian environmental law is not entirely dedicated to ensuring protection of the Natura 2000 EU nature conservation network sites, which means that the above-quoted Supreme Court ruling on the inapplicability of EU law is not convincing.

3. Formation of the nature conservation network Natura 2000 in Estonia

The decisive factor in attaining the aim of the Habitats Directive — favourable conservation of natural habitat types and the species’ habitats as indicated in its annexes — is a catalogue of prospective Natura network sites by a Member State. In the First Corporate Shipping (C-371/98) ^*13 case, the European Court of Justice stated that Member States must submit a full list of all sites eligible for identification as sites of Community importance, and that no such site may be omitted.

Estonia ’s list of Natura sites was submitted to the European Commission by 1 May 2004. According to this document, we have 66 Natura bird sites, with an area of 1,236,808 ha, and 509 Natura habitat sites, with an area of 1,058,981 ha. ^*14 The areas of bird sites and habitat sites overlap greatly, which means that the total area of Natura sites is actually 1,422,500 ha, 51% of which is sea sites and 49% areas on land (16% of Estonia’s land is covered by Natura sites).

The selection of Natura sites is a serious task, as Natura site classification usually means significant operational limitations, which can considerably impede property development. It must be mentioned that, unfortunately, the process was poorly regulated legally in Estonia. The main document regulating those activities was Government of the Republic Decree 622-k, of 25 July 2000, ‘Approval of the National Programme (2000–2007) Estonian NATURA 2000’. ^*15 That programme was in essence a planning document and did not regulate the selection of sites or the legal aspects of the procedure. The media ^*16 have said that the selection of Natura sites was done in a rush and incorrectly, and that some Natura sites were assigned that status falsely. The only court case the author is aware of wherein such an oversight is referred to is the Paluküla sacred grove case heard by the Tallinn Circuit Court, in which the court pointed out that a Rapla County Environmental Authority representative had explained at the Circuit Court sitting that the designation of an alvar as a pre-selected area on one slope of the Paluküla sacred grove was outright wrong, since in fact there is no alvar on that slope. The Circuit Court believed this argument, pointing out that alvars are to be found on flat limestone terrain, while the slope in question is a rise and not limestone terrain. ^*17

The National Audit Office pointed out significant limitations in the selection of Natura sites in its audit “Conservation of Valuable Forest Habitats at Natura 2000 sites” ^*18 . The National Audit Office reproaches that, since the Ministry of the Environment did fail to use all available options for gathering information about the extent and location of habitats, some valuable sites have mistakenly been left out of the Natura 2000 network. It was mostly earlier conservation areas that were listed in the Natura network, and the abundance and distribution of habitats in the territory of Estonia was in fact not examined. Limited information about the distribution of habitats impedes the formation of the Natura network, which would help to maintain favourable conservation status and evaluate changes in the status of habitats.

Estonian environmental non-governmental organisations are not satisfied with the selection of Natura sites. In 2005, the Estonian Fund for Nature, in collaboration with the Estonian Seminatural Community Conservation Association and other environmental organisations and experts, prepared the so-called Natura 2000 shadow list. The Natura shadow list was prepared — similarly to other member countries’ lists — before the relevant negotiations between the European Commission and the Member States (the so-called biogeographical seminar), the Estonian part of which took place in December 2005. This shadow list of sites is one of the main sources of information for Member States wanting to add types of habitat and certain habitats of species to the European Commission list. The Estonian shadow list includes 628 larger and smaller sites, with a total area of 845 km². Thus, the shadow sites cover 1.8% of Estonian territory (in addition to the 16% of the ‘official’ Natura pre-selection sites).

The European Commission also has claims against Estonia. The Commission reviewed the Estonian list of habitat sites and found that the Natura sites provide sufficient protection to 22 types of habitat and 15 species. There are 19 types of habitat and 25 species that need elaboration in the database, and nine types of habitat and two species need additional analysis as to whether and to what extent that type of habitat or species is present in Estonia, and whether, and how many, additional sites are needed. The European Commission requires additional sites for the protection of 10 types of habitat and seven species. ^*19

Thus, it can be argued that the Natura network formation process is far from over for Estonia, and the existence or absence of discretionary space in the choice of the sites is still acute for the country. Many other European Union Member States have had similar problems with the registration of sites in the Natura network.

Section 24 of the above-quoted audit by the National Audit Office states: “The Ministry of the Environment has publicly explained that the formation of the Natura network was based not merely on the ecological value of the site. The final approved selection was a range of compromises with land-owners, and several sites were excluded from the Natura network because of land-owners’ protests.” A question arises as to whether other considerations besides nature conservation factors may play a role in the listing. This question has come up also with respect to the potential construction of a bridge to the island of Saaremaa.

The European Court of Justice is of the opinion that only ecological criteria matter in the selection of Natura sites. The most important European Court of Justice case regarding the balance of biodiversity and economic (and related social) development is the Lappel Bank case. ^*20 That case concerned the United Kingdom giving preference to a port extension over a bird conservation site that was obligatory under EU law. The European Court of Justice found that failure to designate an important bird habitat as a conservation site could be justified only by general interests outweighing the ecological interest protected by the directive. At the same time, the court ruled that in the designation of conservation sites economic considerations can never outweigh ecological interests. Thus, the selection and designation of borders is possible only in a manner that bears in mind the ecological criteria. ^*21 The European Court of Justice has clearly ruled also in other cases that at this stage economic, social, and cultural considerations must entirely be left to the side. ^*22 Therefore, if there are sites that because of economic considerations or land-owners’ protests were not listed as Natura sites, as the National Audit Office audit indicates, this is a clear violation of EU law.

An interim conclusion can be drawn here that the selection of conservation sites must depend only on ecological criteria. Theoretically, a Member State does have a certain right of discretion in the selection of sites, but this can be reduced to zero in many cases, if the ecological value of the site requires it to be designated as a conservation site.

The European Court of Justice has stated in the Lappel Bank case that there are certain general interests that outweigh ecological interests linked to Natura sites. An explanation can be found in the materials from the Leybucht case. ^*23 That case concerned the problem of how to deselect or reduce the size of an already-listed site. The case revealed that there can indeed be public interests that outweigh European ecological interests. Extensive land improvement works were carried out on the coast of Germany. A conservation site designated pursuant to the Bird Directive was reduced in size when dams and other barriers were built. Germany justified this with three arguments. Firstly, the construction of dams was necessary in order to avoid floods and thereby save human lives. Secondly, new and valuable habitats are appearing because of those dams. Thirdly, the construction of dams was necessary to allow ships to approach the local port, which was allegedly important because of economic and related social considerations, in order to ensure the development of the region and avoid loss of jobs. The European Court of Justice accepted the first and the second argument but resolutely dismissed the third. The conclusion to be drawn from this is that economic (and related social) considerations do not justify giving up Natura areas, and that Estonia should dismiss such plans. Such proposals have been made in Estonia in connection with, for example, the intention to build a rowing canal and a leisure centre in Tartu, on the Emajõgi River meadow. That meadow is a habitat of the great snipe, a very rare bird in Europe, protected under the Bird Directive. The meadow should therefore be taken under protection as a Natura site. ^*24 A favourable conservation state for great snipe stands in a face-off with economic interests related to the rowing canal and sports and leisure facilities. ^*25 The Lappel Bank and Leybucht cases clearly indicate that the leisure centre construction plans are irrelevant to listing of the Emajõgi River meadow as a Natura site. That would clearly contradict EU law.

4. Ensuring protective measures for Natura sites: Critical analysis of Estonian law

As shown above, economic and social interests should have no weight whatsoever in the selection of Natura sites. The next question is whether economic and social considerations play a role in the implementation of protection measures for the sites already listed as Natura sites. They do somewhat. Designation as a Natura site does not mean complete abatement of human activity, including economic activity.

When the new Nature Conservation Act was prepared in 2004, Estonia decided not to lay down special measures for the protection of Natura sites but rather to regulate them by means of traditional nature conservation instruments, since the system of protected natural objects had worked quite well since 1994. This has not been the case in all Member States. Chapter 10 of the Nature Conservation Act of Finland is entirely devoted to conservation of the Natura network. ^*26 The author is of the opinion that in general the Estonian approach is justified but Estonian law needs significant amendments and to be brought in line with EU requirements.

The two main legal acts that should ensure sufficient protection of Natura sites in Estonia are the Nature Conservation Act ^*27 and the Environmental Impact Assessment and Environmental Management System Act. ^*28 In view of the limited length of this article, the analysis below is limited to only environmental impact assessment as one of the main instruments of ensuring protective measures for the Natura sites.

Environmental impact assessment is prominent also in the Habitats Directive. Article 6 (3) of the Habitats Directive provides that any plan or project likely to have a significant effect on a Natura site shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives.

Implementation of Article 6 (3) of the Habitats Directive involves four main problems: (1) what constitutes a plan or project in the meaning of Article 6 (3) of the Habitats Directive, (2) when a plan or project should be subject to an assessment of its implications for a Natura site, (3) how thorough the assessment should be, and (4) when a plan or project can be granted authorisation in the meaning of Article 6 (3) of the Habitats Directive. Now follows the analysis of how Estonian law (and case law) solves these problems.

4.1. What is a plan or project in the meaning of Article 6 (3) of the Habitats Directive?

The directive defines a plan or project very loosely. ^*29 The problem with Estonian legislation is that it allows an environmental impact assessment only when an action requires official authorisation (permit). Section 3 of the Environmental Impact Assessment and Environmental Management System Act specifies that environmental impact is assessed upon application for development consent or on application for amendment of that consent. Article 6 (3) of the Habitats Directive does not link the term ‘plan or project’ with mandatory authorisation procedure. The directive is based on the premise that many activities do not require authorisation but may nevertheless involve potentially significant adverse impact.

At the same time, it is evident that it is impossible for environmental authorities to control activities that do not require authorisation. Therefore, it could be a good idea to harmonise Estonian law with EU law by extending the list of activities that require authorisation such that it encompasses all activities with potential adverse impact on Natura sites. A good example is the regulation of protection measures for one of the protected natural objects — a special conservation area. The designation ‘special conservation area’ in the meaning of the Nature Conservation Act was intended primarily for the protection of Natura sites. The explanatory memorandum to the Nature Conservation Act ^*30 indicates that the need for a special conservation area derives from Council Directive 79/409/EEC, on the conservation of wild birds, and Council Directive 92/43/EEC, on the conservation of natural habitats and of wild flora and fauna. Section 33 of the Nature Conservation Act foresees notification concerning a special conservation area, and the subsequent official approval thereof, additional conditions, and prohibition of any planned work, as a specific instrument for ensuring the protective measures. The activities subject to notification are listed in Section 33 of the Nature Conservation Act. The list includes such activities also as removal of natural rock or soil, cultivation and fertilisation of natural and semi-natural grasslands and polders, cutting of trees located within areas that have the characteristics of a wooded meadow, and construction and reconstruction of land improvement systems. The question of whether requirement of environmental authorisations and notifications concerning special conservation areas cover all activities with a potential adverse impact must be thoroughly examined. As mentioned above, the list of activities that require authorisation must be open for new entries.

4.2. When should a plan or project be subject to assessment of its implications for a Natura site?

Pursuant to Article 6 (3) of the Habitats Directive, all plans and projects likely to have a significant effect on a Natura site are subject to an assessment. What effect can be classified as significant is to be decided separately for every site, taking into account the aim of protecting that site and its specific characteristics and environmental conditions. The European Court of Justice gave its interpretation of Article 6 (3) of the directive in the Waddenzee ruling. ^*31

The European Court of Justice replied to the Dutch Supreme Court (Raad van State) request for preliminary ruling that any plan or project is subject to an appropriate assessment if it cannot be excluded that it has significant impact on a Natura site. Thus, an assessment must be carried out in all cases where there is a suspicion of absence or presence of significant impact. There is no assessment needed only if all doubt can be excluded. ^*32 It is clear that with such major projects as a bridge between the mainland and Muhu Island no sensible person could exclude significant impact in advance. It is important to take into consideration that the European Court of Justice is of the opinion that all plans and projects that undermine the site’s conservation objectives (e.g., conservation of certain types of bird species) must be considered likely to have a significant effect on that site.

Estonian law does not differentiate between an assessment of possible impact activities (the so-called Natura assessment) and a regular environmental impact assessment for a development project. The author is of the opinion that the Natura assessment procedure should in the future be different from what is provided for in the current regulation. A Natura assessment, in the author’s opinion, has three distinct features.

The first is related to initiation of an assessment. An environmental impact assessment of proposed activity is initiated in Estonia only if the proposed activity has supposedly significant environmental impact; the same applies to a strategic environmental assessment. Section 3 of the Environmental Impact Assessment and Environmental Management System Act provides that environmental impact be assessed upon application for (or application for amendment of) development consent, if the proposed activity that is the basis for the application has potential to result in significant environmental impact. The European Court of Justice found in the Waddenzee case that with regard to plans and projects referred to in Article 6 (3) of the Habitats Directive, it must always be assumed that there is potential significant impact on the site. Therefore, the impact of those plans and projects must always be assessed. No assessment is needed only if significant impact of the plans or projects can be reasonably excluded in advance. This means that the threshold for initiating a Natura assessment is considerably lower than that for other types of environmental assessments, and Estonian law should be amended accordingly.

Secondly, a Natura assessment is more focused and limited, since it places more emphasis on conservation objectives and the integrity of the Natura site, whereas other environmental assessments look at the overall impact of the project on the environment as a whole. What is also important is that when a regular environmental assessment includes consideration of realistic alternatives, then allowing a project with significant adverse impact on a Natura site requires absolute absence of alternatives, regardless of whether any alternative is economically sound from the implementer’s point of view. ^*33

4.3. How thorough should the assessment be?

The question in the heading of this section of the paper is highly relevant in view of the abundance of Natura sites in Estonia, which means that Natura assessments could be quite frequent. In the Saaremaa port case, environmental organisations claimed that the environmental assessment carried out prior to the special exercise of water authorisation was not thorough enough and did not consider all possible effects. The Tallinn Administrative Court ruled as follows:

[C]onsidering the complexity of natural habitat, impacts of a proposed activity can be examined and predicted over a long period of time: such research is a thorough scientific work. The aim of proportional impact assessment procedure is not to make the developer carry out and finance such large and long-lasting research projects. ^*34

The Tallinn Circuit Court ruled similarly, finding that the environmental impact assessment was quite thorough for the issue of water permit and that an assessment should consider the most probable (i.e., not all) effects. ^*35 The position of the Estonian courts is understandable, as both the Tallinn Administrative Court and the Tallinn Circuit Court did not want to broaden the permitting procedure and view the Saaremaa port case on a larger scale, which was the request of the environmental organisations. The author nevertheless dares to suppose that the above rulings are not in line with the objectives of the Habitats Directive. The European Court of Justice has repeatedly highlighted the principle that national courts must interpret national law on the basis of EU law. In order to position the thoroughness of an environmental impact assessment in the context of Natura sites, once again the Waddenzee case applies. In that case, the Dutch Supreme Court asked the European Court of Justice a question about what ‘appropriate assessment’ as provided for in Article 6 (3) of the Habitats Directive meant. ^*36 The European Court of Justice ruled that appropriate assessment in that case meant that “all the aspects […] which can […] affect [site conservation] objectives must be identified in the light of the best scientific knowledge in the field” ^*37 . Thus, the European Court of Justice found that an assessment basically means scientific work and has to be so thorough as to take account of all (not only the most probable) aspects of activities affecting the sites and that all reasonable doubts are eliminated regarding presence or absence of significant impact.

What conclusions can be drawn from the Waddenzee case for Estonian law? Firstly, as a Natura assessment is aimed at quite a specific objective (to ascertain whether the proposed activity could have significant adverse impact on the integrity of the site) and the initiation threshold is low, then the requirement of full environmental impact assessment procedure in cases where the need for the impact assessment arises only because of the Natura assessment need would be a disproportionate burden for the applicant for development consent, and thus an easier and quicker assessment procedure should be provided for. It could be claimed that this is the only possible solution, given the very low threshold for initiation of a Natura assessment and the anticipation of a large number of assessments. Maintaining the current full open procedure in all assessment cases would clearly be burdensome and eliminate some projects that would not adversely affect Natura sites. The author is of the opinion that a simplified Natura assessment procedure should not involve full open procedure with public hearings and discussions, as regular environmental impact assessment requires. An expert survey should answer the specific questions raised and provide a clear answer as to whether significant impact on the conservation objective and integrity of the site is possible or could be reasonably excluded. A Natura assessment may require very specific knowledge about species and habitats — thus, it should be provided in Estonian law that an assessment can be carried out by an expert who may be an individual with extensive knowledge in research of the protected species or habitat and who has given reliable assessments concerning the protection of that species or habitat. Such a qualification requirement would considerably expedite the Natura assessment procedure.

4.4. When may a plan or project be granted authorisation in the meaning of Article 6 (3) of the Habitats Directive?

The final question considered here was also asked by the Dutch Supreme Court in the Waddenzee case. The European Court of Justice found that a plan or project may be granted authorisation only on the condition that the competent authorities are convinced that it will not adversely affect the integrity of the site concerned. ^*38 The European Court of Justice ruled that that is the case where no reasonable scientific doubt remains as to the absence of such effects. ^*39 The court explained its ruling again with the precautionary principle and indicated that only the above authorisation criterion (absence of suspicion of adverse impact) allows effective prevention of adverse effects on the integrity of protected sites created by the plans or projects being considered. The court also indicated that “[a] less stringent authorisation criterion than that in question could not as effectively ensure the fulfilment of the objective of site protection”. ^*40

The Waddenzee case implies the third distinct feature of Natura assessments, which should be stipulated more clearly in Estonian law. A regular environmental assessment is not always binding for the issuer of the development consent: granting of authorisation is often a discretionary decision, wherein other interests besides the environmental are taken into consideration. Existence of discretion is evident in Subsection 24 (2) of the Environmental Impact Assessment and Environmental Management System Act, which provides that “[i]f, upon making a decision to issue or refuse issue of a development consent, the decision-maker fails to take account of the results of environmental impact assessment and the environmental requirements appended to the report, the decision-maker shall set out a reasoned justification in the decision to issue or refuse issue of the development consent”. Hence, it is possible here for the decision-maker to prefer economic and social interests over environmental interests. The European Court of Justice has ruled that a Natura assessment is directly binding on the decision-maker. If suspicion remains regarding adverse impact on the Natura site, the authorisation must not be issued and the plan should not be approved. Hence, unlike a regular environmental impact assessment, a Natura assessment decision-maker has little or no room for discretion.

5. Conclusions

The question posed at the beginning of this article, that of whether Estonian law fully ensures the necessary conservation of Natura sites, must be answered in the negative. Estonian law does not ensure total disregard of economic and social interests in the selection of Natura network sites, which disregard is what EU law requires. Neither is Estonian law in full harmony with EU law with regard to Natura assessments. Estonian law does not allow assessment of activities with environmental impact that do not require environmental authorisation. The Habitats Directive does not mandate Natura assessment merely for those activities that require authorisation. The other respect in which Estonian law is not in line with EU law is related to the low threshold for Natura assessment initiation and the binding nature of Natura assessment for the decision‑maker.

Notes:

^*1 RT 1992, 26, 349; RT I 2007, 33, 210 (in Estonian). English translation available at www.just.ee/23295 (28.07.2009).

^*2 Bioloogilise mitmekesisuse kaitse strateegia ja tegevuskava (Estonian Protection of Biological Diversity Strategy and Action Plan). Available at http://www.envir.ee/orb.aw/class=file/action=preview/id=1993
/Bioloogilise+mitmekesisuse+kaitse+strateegia+ja+tegevuskava.pdf (20.03.2009) (in Estonian).

^*3 Tallinn ACd, 19.12.2007, 3-07-2209. Available at http://kola.just.ee/ (10.07.2009) (in Estonian).

^*4 ALCSCd, 25.09.2008, 3-3-1-15-08. – RT III 2008, 37, 249 (in Estonian).

^*5 Ibid., p. 19.

^*6 OJ L 103, 25.04.1979, p. 1.

^*7 OJ L 206, 22.07.1992, p. 7.

^*8 See also C. L. Diaz. The EC Habitats Directive Approaches its Tenth Anniversary: An Overview. – Review of European Community and International Environmental Law 2001 (10) 3.

^*9 See also N. de Sadeleer. Habitats Conservation in EC Law ± From Nature Sanctuaries to Ecological Networks. – Yearbook of European Environmental Law 2005 (5), pp. 215–252.

^*10 Ibid., p. 218.

^*11 ALCSCd, 3-3-1-15-08, p. 18.

^*12 P. Sands. Principles of International Environmental Law. Frameworks, Standards and Implementation. Manchester University Press 1995, pp. 170–173.

^*13 Available at http://curia.europa.eu/.

^*14 The area of the Republic of Estonia is 4,522,700 ha.

^*15 Riikliku programmi “Eesti NATURA 2000” kinnitamine aastateks 2000–2007. Available at http://trip.rk.ee/cgi-bin/thw?${BASE}=akt&${OOHTML}=rtd&TA=2000&TO=5&AN=1337&KP=2000-07-25 (10.07.2009) (in Estonian).

^*16 Unfortunately no scientific research is available.

^*17 Tallinn CCd, 4.10.2007, 3-05-43, p. 12. Available at http://kola.just.ee/ (10.07.2009) (in Estonian).

^*18 Available at the National Audit Office website http://www.riigikontroll.ee (10.07.2009) (in Estonian).

^*19 Available at http://www.envir.ee/1684 (in Estonian).

^*20 Judgment of the Court, Case C-44/95. Available at http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&numdoc=61995J0044&lg=en (10.07.2009).

^*21 See also L. Krämer. EU Casebook on Environmental Law. Oxford: Hart Publishing 2002, pp. 316–320.

^*22 See, e.g., the judgment of the Court, Case C-371/98. – ECR 2000, p. I-9235.

^*23 Judgment of the Court, Case C-57/89. – ECR 1991, p. I-883.

^*24 Again, the debates are limited to media and scientific sources are unfortunately not available.

^*25 See, e.g., Kas rohunepp ja täpikhuik peaksid sõudekanali ees taanduma? (Should Great Snipe and Spotted Crake Give Way to a Rowing Canal? ). – Tartu Postimees, 2.06.2006. Available at http://tartu.postimees.ee/050606/tartu_postimees/204052.php (23.03.2009) (in Estonian).

^*26 Available at http://www.finlex.fi/fi/laki/kaannokset/1996/en19961096.pdf (23.03.2009).

^*27 Looduskaitseseadus. – RT I 2004, 38, 258; 2009, 3, 15 (in Estonian).

^*28 Keskkonnamõju hindamise ja keskkonnajuhtimissüsteemi seadus. – RT I 2005, 15, 87; 2009, 3, 15 (in Estonian).

^*29 See, e.g., the European Commission article Managing Natura 2000 Sites: The provisions of Article 6 of the ‘Habitats’ Directive (92/43/EEC). Tallinn: Estonian Ministry of the Environment 2001, p. 30.

^*30 Seletuskiri looduskaitseseaduse eelnõu juurde (Memorandum of Explanation to the Draft Nature Conservation Act). Available at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X90008&keel=en&pg=1&ptyyp=RT&tyyp=X&query=LOODUSKAITSE­SEADUS (10.07.2009) (in Estonian).

^*31 Judgment of the Court, C-127/02. Available at http://curia.europa.eu/.

^*32 Ibid., paragraph 44.

^*33 See Managing Natura 2000 sites. The provision of Article 6 of the Habitats Directive 92/43/CEE. European Commission 2000, p. 43. Available at http://ec.europa.eu/environment/nature/natura2000/
management/docs/art6/provision_of_art6_en.pdf (23.03.2009).

^*34 Administrative case No. 3-1152/2004.

^*35 Administrative case No. 2-3/271/05.

^*36 Judgment of the Court, C-127/02, paragraph 21. Available at http://curia.europa.eu/.

^*37 Ibid., paragraph 54.

^*38 Ibid., paragraph 56.

^*39 Ibid., paragraph 59.

^*40 Ibid., paragraph 58.

In many Member States with a continental European legal system, the notary performs state tasks, at the same time standing organisationally apart from the state and holding state authority. The fact that the functions of civil law notaries are performed not by state officials but by independent office-holders has raised the question of whether freedom of establishment as provided by the EC Treaty should be applied to the activities of the notary. Recently, the European Commission initiated proceedings in the European Court of Justice that should provide an answer to the question of whether Article 45 of the EC Treaty can be applied to notaries’ professional activities and would therefore preclude the extension of European Union law on the professional rights of notaries. Many thorough studies have been published on this question. ^*2

The problem is examined from a slightly different point of view in the present article. The aim of this article is to determine the combined effect of national law and Article 45 of the EC Treaty on the public office and on the tasks performed within the framework of that kind of office.

The professional law pertaining to the Estonian notary provides a good opportunity for this examination. The article demonstrates that, although Estonia is among the small number of Member States wherein the requirement of citizenship for notaries has been replaced with a requirement for citizenship of the European Union, the Estonian notary participates in the exercise of state authority. Recent legislative amendments that extended the competence of the Estonian notary provide a strong reason for examining the nature of the tasks that can be suitably performed in the framework of the public office. The main argument of this article is that the notary’s profession can remain in its present organisational form only if the competence of the notary does not in its essence cover entrepreneurship. At the same time, the article indicates that the application of Article 45 may in the long term lead to a situation wherein the state task is transformed into a public task whose performance is not within the competence of the state or other individuals belonging to a state organisation.

1. Public office

There are more organisational forms for fulfilling the state tasks today than there have ever been. Depending on the nature and importance of the task, the state has an opportunity to consider whether to perform the state tasks through its own organs, to create a legal person in public law for performing the tasks, to authorise legal persons in private law or natural persons to perform administrative duties independently under public law regulations, or to decide in favour of different forms of privatisation. One of the organisational forms for performing state tasks, which has been groundlessly overlooked in jurisprudence, is the public office.

As the state is a legal person, it needs natural persons who would exercise state authority on behalf of the state. The office is functionally the smallest entity of the state organisation that denotes a certain amount of state tasks which are given to a natural person for performance. ^*3 Only an individual, one who has been appointed by the state, can be the office-holder here. The office-holder who has received state authorisation through the appointment acts not as an individual but as a holder of state authority. ^*4 The office embodies the state tasks that the office-holder is obliged to perform and he himself cannot choose the tasks accompanying the office. Since the state has reserved the tasks to be performed within the framework of the office as its own, performance of these tasks takes place because of their nature outside the competition that is characteristic of the subjects of private law.

An office can be a part of either the direct or indirect state organisation. In the latter case, the office stands outside the hierarchy of state organs and is an independent organ of state authority. In the Estonian legal order, this office is called public office. ^*5 There can be several reasons for creating a public office. One of the most important factors is creation of sufficient distance between the state and the office-holder to assure the independence of the office-holder from the state. ^*6

The holder of the public office is not a private individual who may be partly involved in performing certain particular tasks carried out by the state. It is true that in both cases the state has decided to withdraw from performing its tasks through state officials, but in the case of the public office, the office-holder is fully subordinate to the public regulation. The holder of public office is a part of state authority not only functionally but also institutionally. At the same time, creating the public office is not any form of privatisation, because performance of the tasks does not happen in a private form but fully in the framework of the state organisation.

2. Connections of the office of notary with European Union law

The influence of European Union law on performance of the state tasks and the state organisation is not limited to only those fields that are regulated by European Union law. Because of the wide scope of application of fundamental freedoms, the institutions of the European Union can have a say in the areas that belong to the competence of Member States. ^*7

The office of notary is, both in Estonia and in many other Member States, an independent public office that is a part of the national system of legal protection. Steady increase in cross‑border legal relations has led to several important developments in the field of recognition of notarial deeds between states, but notaries themselves have been active mainly on the basis of national legislation and within the territory of their country. The notaries’ acts of most Member States prescribe that only a citizen of that Member State may be a notary. The extent of the influence of the European Union on the organisation of the office of notary will become obvious in the near future.

2.1. The polemics over the application of freedom of establishment to the office of notary

Freedom of establishment is an important part of four freedoms of movement, the purpose of which is to guarantee the functioning of the internal market. According to Article 43 (1) of the EC Treaty, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State are prohibited. At the same time, Article 45 also prescribes an exception according to which the provisions of freedom of establishment are not applied, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority in this Member State.

The question of whether the freedom of establishment should be extended for professional activities of notaries has been topical for 20 years already. ^*8 The European Commission has expressed with varying activity the opinion that the professional activities of notaries should be subjected to the provisions of the Treaty. However, those Member States following the continental European legal tradition, where a civil law notary exists, consider the notary to exercise state authority and professional activities of notaries thus should be covered by the exception prescribed in the first paragraph of Article 45, the purpose of which is to defend the sovereignty of Member States.

The European Commission filed an action against six Member States — Austria, Belgium, France, Germany, Greece, and Luxembourg — with the European Court of Justice at the beginning of 2008. ^*9 In 2009, the Netherlands joined these Member States. ^*10 On the side of the seven Member States sued, all states that acceded to the EU in 2004 and 2007 with exception of Cyprus and Malta have become party to the legal proceedings as the European Commission had initiated an infringement proceeding also against them. ^*11 The European Commission is going to file an action also against Portugal, because, although the requirement for citizenship for a notary was abolished there in 1997, under the prevailing interpretation of the Portuguese constitution the office of notary can be held only by citizens of Portugal. ^*12 The polemics over the application of Article 45 of the Treaty affect 18 Member States directly, because, despite the differences in the competence of notaries and the organisation of their office, all these Member States have Latin notaries, who are considered to be exercisers of state authority. Only the Scandinavian countries and those Member States with an Anglo-American legal system, where the office of notary has a different form, do not face this problem. At the same time, lawyers in the United Kingdom in particular have expressed their desire to the European Commission to extend their practice to continental Europe. ^*13

In its actions, the Commission takes issue with only the fact that the Member States in question have a requirement of citizenship for notaries and that, with respect to notaries, the Member States have not adopted the directive on the recognition of professional qualifications. ^*14 In its press release announcing the proceedings against the old Member States, the Commission noted that abolishing the requirement for citizenship would not involve changes in the legal status of the notary, especially in relation to the activities assigned to the notary. The infringement proceedings are claimed not to affect the powers of the Member States to regulate the office of notary, especially in terms of laying down the measures to ensure the quality of notarial acts — for example, arrangement of exams. ^*15 At the same time, it is known that the European Commission wishes to apply the provisions of competition law to restrictions in notarial profession. ^*16

The foregoing shows that the question concerns not only the fact of whether citizens of the state should perform certain tasks of the state. The polemics are even more fundamental. When the European Court of Justice takes the view that the main tasks of notaries do not involve exercising official authority, this does not mean only that the Member States have to abolish the requirement of citizenship for their notaries. In this case, despite the circumstances of the arrangement of the notaries’ professional activities falling within the competence of Member States, the fundamental freedoms guaranteed by the Treaty should be honoured. All of the measures that prohibit or hinder the exercise of fundamental freedoms or make doing so less attractive are considered to be restrictions on the fundamental freedoms. ^*17 Additionally, the question of applying the provisions of competition law should be considered. ^*18 Under this scenario, undoubtedly not only would the office of notary change fundamentally, but, in the longer perspective, there could arise hindrance to performance of the functions of other state institutions — such as registers — that are oriented to preventing legal disputes. ^*19 Therefore, the answer of the European Court of Justice to the question of whether Article 45 is applicable to notaries’ professional activities is of great importance to the future of systems of legal protection in many Member States.

2.2. The practice of implementation of Article 45 of the EC Treaty

Although most of the Member States hold the opinion that regulating notaries’ professional activities is the sovereign right of the national legislator and that the European Union does not have competence in this field, the established case law of the European Court of Justice shows that, on this question, the outlines of sovereignty of Member States are to be decided according to the criteria developed by the European Court of Justice.

To ensure common implementation practice for European law, the European Court of Justice has secured for itself hermeneutical monopoly on elucidating Article 45. ^*20 Thereby, the criterion ‘exercise of official authority’, which has a functional content, is of central importance. Unfortunately, the established case law of the European Court of Justice has not clarified this concept very clearly but has confined itself only to case-based opinions. ^*21 However, Advocate-General Mayras described the exercise of official authority in the Reyners case as follows: “Official authority is that which arises from the sovereignty and majesty of the State; for him who exercises it, it implies the power of enjoying the prerogatives outside the general law, privileges of official power and powers of coercion over citizens.” ^*22

As Article 45 is a norm prescribing an exception, the court has interpreted Article 45 in a manner which limits its scope to what is strictly necessary to safeguard the interests that are allowed to protect by Member States through this exception. ^*23 Therefore, when one is applying the norm in the first place, it is important to consider the reasons for which this exception was created. The European Court of Justice has found that Article 45 has to enable Member States to prevent a non-citizen from performing the functions connected to the exercise of official authority. ^*24 In accordance with the court’s assessment, the objective is fully achievable when Article 45 covers only those activities which “constitute a direct and specific connexion with the exercise of official authority”. ^*25

From the case law of the court, it can be claimed that the concept of exercise of official authority includes certainly the activities connected to coercion. ^*26 At the same time, this is not a decisive criterion. ^*27 When rendering its assessment, the court proceeds from the question of whether the decisions of a person or entity carrying out an activity are binding. ^*28 Also the public real acts (Realakte) are not excluded per se. ^*29 Rather the fact that the scope of application of Article 45 does not cover actions that are complementary or additional to the exercise of official authority or actions that are only of a technical nature is decisive. ^*30

So far, the European Court of Justice has not considered any disputed activity belonging to the exception provided by Article 45. The court has denied that the activities of advocates, private security firms, teachers in private schools, traffic accident experts, auditors acknowledged by insurance undertakings, data processing systems developers (and corresponding programmers and operators), and services connected to arranging games of chance, tax assistance and consulting services of tax consulting centres, as well as activities of private inspection bodies for organic agricultural production are exercise of official authority. ^*31

If the exception provided in Article 45 is to apply, the test of restrictions’ proportionality will not be used. Therefore, it is not important whether another restriction could replace the requirement for citizenship. ^*32 Generally, Article 45 is applicable only to specific activities. Expanding the exception to the whole profession can be possible only when a certain activity is connected to the profession in such a way that, because of freedom of establishment, the relevant Member State would be obliged to allow non-nationals — even occasionally — to exercise the functions appertaining to official authority. ^*33

2.3. The applicability of Article 45 of the EC Treaty to the office of notary

In its case law, the European Court of Justice has highlighted that the applicability of Article 45 should be assessed separately in the case of every Member State, taking into consideration the national provisions regulating the activities and organisation of the profession. ^*34 Although the independent objective of this article is not to answer the question of whether the professional activities of Estonian notaries are covered by Article 45, it is important to stress that the Estonian notary does not perform notarial acts that would have a subsidiary or preparatory role in relation to some other institution and that his or her acts do not need state approval to have a conclusive force. Similarly, the notary does not perform notarial acts “under the active supervision” of some other institution, nor is any other institution responsible for the actions of the notary. ^*35

Despite the fact that the European Commission does not consider Article 45 applicable to the office of notary, in European Union legislation several exceptions have been made for notaries as compared to other professions. For example, the Services Directive is not applicable to the professional activities of notaries. ^*36 Similarly, the European Parliament holds the viewpoint in its resolution adopted in 2006 that Article 45 has to be fully applied to the profession of a civil law notary. ^*37

The literature in which this question has been analysed in depth has adopted mainly the viewpoint according to which Article 45 is applicable to the office of notary. ^*38 The office of notary is often the only profession the literature cites as a specific example belonging to Article 45. ^*39 However, there are also opposing views. ^*40

These differing views refer to the fact that, because of the casuistic practice of the European Court of Justice, it is not possible to predict with sufficient certainty what kind of approach the court will adopt. ^*41

At the same time, the office of notary is a good example based on which the influence of Article 45 on the public office as an organisational form of the exercise of official authority can be assessed. Since in the state organisation the legal status is determined on the basis of the legal nature of the functions to be performed, the starting point should be the national legislator’s assessment of the tasks fulfilled in the framework of the public profession. The multifaceted competence of the Estonian notary offers suitable base material.

3. Organisation of the office of notary in Estonia

3.1. Abolishment of the requirement for Estonian citizenship in the Notaries Act

Estonia was among the Member States against whom the European Commission initiated the infringement proceedings because of citizenship requirement for notaries. Of the new Member States, only Estonia decided to abolish this requirement. ^*42 According to the amendment of the Notaries Act that entered into force on 10 July 2008, a citizen of any member state of the European Union may be a notary in Estonia. ^*43

The reason the Estonian legislator decided to replace the former requirement of Estonian citizenship for notaries with the requirement for the European Union citizenship is not given in the explanatory memorandum of the Act of Amendment of the Notaries Act. It is remarkable that the amendment of the requirement for citizenship is not justified explicitly by the action of the European Commission, and the explanatory memorandum does not even mention the address of the European Commission. It only briefly refers to the fact that the abolishment of the requirement for Estonian citizenship is in accordance with European Union law. At the same time, the explanatory memorandum stresses that abolishing the requirement for citizenship does not reduce state supervision over notaries and that the notary’s oath of office and the requirement for language skills, candidate training, and passing of the notaries’ exam will remain. ^*44

Despite the laconic nature of the Estonian legislator here, it can be assumed that Estonia did not, however, agree with the viewpoint of the European Commission according to which freedom of establishment should be extended to the notary. Estonia’s later activities demonstrate this. Estonia entered the proceedings to support Germany’s requests in the case Commission v. Germany. ^*45 It seems that the decision of the Estonian legislator could have been caused by the consideration that if all other conditions for becoming a notary — especially Estonian language skills — were to remain the same, it is unlikely that abolishing the requirement for citizenship would have a major influence in practice. ^*46 Also, the approach described below demonstrates that the Estonian legislator considers the practice of the notary to be exercise of official authority.

3.2. The tasks of the Estonian notary

The competence and the legal status of the Estonian notary are regulated by the Notaries Act ^*47 (NotA). Pursuant to § 2 (1) of the NotA, the notary performs the tasks assigned by the state. The most important of these are acts of attestation, which are regulated by the Notarisation Act ^*48 (NA). The notary attests both transactions and declarations of intention (substantive attestations) and also attests to the authenticity of signatures and transcripts (authentication). The office of notary is, above all, designed for substantive attestations. A notary has to be turned to when individuals want to enter into a transaction with substantial legal consequences or a property, partnership, family, or succession transaction (e.g., the transactions to transfer and encumber an immovable, or marital property and succession contracts). These transactions become valid only after notarial substantive attestation.

During the notarial substantive attestation, the notary has to clarify the intention of the parties to the transaction, to warn them against the risks arising from the transaction, and to explain impartially to the parties the possibilities for achieving the desired legal consequences (NA, § 18 (1)). The notary has to verify whether parties to a transaction have passive or active legal capacity and the capacity to exercise will; the notary also has to assess whether the objectives of the notarial act are legitimate. If they are not, the notary is required to refuse to perform the act of attestation and the parties cannot enter into the transaction (NA, § 4). If the notary has met all his or her obligations and there are no hindrances to the act of attestation, the notary attests the content of declaration of intention and verified circumstances and prepares the notarial deed.

The legal effects of the notarial deed are not restricted to giving transactions legal force. Although according to § 232 (2) of the Code of Civil Procedure ^*49 no evidence has predetermined force for the courts, § 1 (5) of the NA prescribes that the correctness of notarial deeds and notarial certifications that are prepared within the competence and in compliance with the formal requirements is assumed. Additionally, several important notarised agreements constitute execution documents ^*50 on which the bailiff can rely without verifying the substantial circumstances. ^*51

The state has assigned also succession proceedings to the notary, and these result in the issuing of succession certificates. ^*52 When issuing a succession certificate, the notary decides who is a successor, who has the right of succession, and what size each successor’s share of the estate will be.

In addition to attestation and succession proceedings, the notary may perform several other notarial acts that can, but may not, be connected to attestation. For example, the notary deposits money, securities, and valuables. ^*53 For all notarial acts, the notary is required to prepare the necessary draft documents, verify the data related to the notarial act from the national records, provide legal consultation to the parties, and represent them in connection with the notarial act with the court and administrative authorities (NotA, §§ 30 and 31).

3.3. Extension of competency of the notary

In May 2009, the Estonian Parliament adopted amendments to the Notaries Act according to which the competency of the notary extends considerably. ^*54 The new notarial acts include issuing apostilles, the authentication of entry into a contract of marriage, and divorce, along with preparation of register entries for marriage and divorce. ^*55

Previously, notaries performed only compulsory notarial acts; the new provisions added to the office of notary also the performance of notarial services. The notarial services include, among others, legal counselling outside the framework of acts of attestation, tax counselling and counselling on issues of foreign law both within and outside the framework of acts of attestation, mediation pursuant to the Mediation Act, and acting as an arbitrator through the mediation and arbitration tribunal of the Chamber of Notaries. ^*56 Also a small number of acts of attestation that earlier belonged among notarial acts are considered now to be notarial services: authentication of the results of auctions, voting, draws, and sortitions; authentication of testimony given under oath; and verification of the authenticity of the translation of a document (NotA, § 32).

A notary receives the fees prescribed by law for notarial acts, and departing from these stated fees is forbidden. However, the notary and applicant agree in writing on the fee for a notarial service before the service is provided. In a further distinction from notarial acts, the notary is not obliged to perform notarial services. The notary can decide which notarial services he or she will provide. At the same time, the notary may perform only those notarial services on which he or she has published data on the Web site of the Chamber of Notaries and that are covered under a valid liability insurance contract.State supervision of the notary, professional liability, and disciplinary liability cover both notarial acts and notarial services. ^*57 The obligation of impartiality on the part of the notary and other institutional professional obligations extend to the supply of notarial services.

In the explanatory memorandum to the draft law, the extension of competency of the notary was explained by the need to make the office of notary more flexible and attractive to both notaries and the public, to foster competition of legal practitioners, to create more accessible opportunities for people to attend to their business and solve their problems extra-judicially, and to subject heretofore unregulated activities of notaries to state supervision. ^*58 Therefore, it can be claimed that the main objectives for extending the competency of notaries are to expand the prevention of legal disputes and to ensure the viability of a self-supporting notaries’ office. ^*59

3.4. The legal status of the tasks of the notary

Classifying the professional activities of the notary into notarial acts and notarial services refers to the substantial differences of these tasks.

When performing substantive attestations, the notary prepares a notarial deed by which he or she attests that the transaction is in compliance with the law, confirms that the declarations of intention of the parties correspond to the parties’ actual intentions, and states that he or she has verified that the parties’ identities and the data concerning the transaction are accurate. This control over the legal relationships, being in the majority of cases compulsory, can be performed only with state empowerment. By appointing the notary, the state has granted him or her authority that other state officials and representatives of other professions do not have. Although, according to § 2 (3) of the NotA, the notary holds office on his or her own behalf, his or her professional activities in relation to acts of attestation are attributed to the state. Therefore, the notary adds the impression of a seal with the image of the national coat of arms and the first page of the notarial deed bears the image of the national coat of arms. ^*60 The documents prepared during the notarial act belong to the state (NotA, § 16 (1)). As the notarial act is an act of official authority, its performance is allowed only in Estonian territory (NotA, § 36 (6)).

Similarly to performing notarial acts, the acts of issuing succession certificates, authenticating entry into a contract of marriage or divorce, and issuing apostilles are tasks the performance of which requires state authority. The notary can perform these acts only because the state has provided him or her by law with the right to make binding decisions on behalf of the state. All of these notarial acts are state tasks.

However, several tasks among notarial services — legal counselling not related to acts of attestation, mediation, and acting as an arbitrator — do not require state authority. Additionally, two important characteristics of public office are missing in the case of notarial services: the notary is not required to perform these tasks, and the fee for the services is negotiable. Therefore, the state does not require that these tasks be performed and has left both the supply and the price to competition. The simple circumstances that the notary has to be impartial and apply confidentiality also when providing notarial services and that the state has subjected notarial services to as rigid state supervision and responsibility requirement as it has done by performance of notarial acts do not change the nature of these services. The nature of the notarial services is very similar to that of legal services supplied in the framework of entrepreneurship. For example, the advocate acting as an arbitrator has to be as impartial and independent for the parties as the notary does. Despite the fact that, according to § 2 (1) of the NotA, the notary is an independent official to whom the state has delegated the function of ensuring safety of legal relationships and prevention of legal disputes, all the notarial services, whose objective is to prevent court action and guarantee safety of legal relationships, cannot be regarded as state tasks, i.e., tasks that should be fulfilled by the state. These are merely public tasks in which society has a public interest. The aims of the extension of competency of the notary are undoubtedly legitimate and enable people to arrange their legal relationships even better, but that kind of limitation to freedom of profession is not necessary.

3.5. Compatibility between the legal status of the notary and the notary’s tasks

Although since 1993, when the model of the Latin notaries’ office was restored in Estonia, different terminology has been used in the law at various points in time to describe the legal status of the notary, the latter has remained unchanged. ^*61 According to the new Notaries Act, which entered into force in 2002, the notary is a holder of a public office.

The constitutional position of each profession and limitations to it are dependent on the tasks that are being fulfilled in the framework of that profession. State intervention in relation to professional freedom is allowed only so far as it can be justified by functions of those tasks. Also, the legal status of the notary depends on his or her tasks.

The creation of the public office demonstrates the importance to the state of the tasks being fulfilled within the framework of the profession. When introducing the public profession of notary, the state proceeded from the act of attestation as the main task of the notary. Besides the procedural professional obligations, institutional professional obligations such as impartiality, independence, and confidentiality are required to perform the functions of acts of attestation. Owing to performance of acts of attestation and other state tasks, the obligation to perform notarial acts, the prescribed office district, state supervision, and the provisions of disciplinary and professional liability are justified.

However, the public office is not a suitable organisational form for providing notarial services. Although notarial services that are not acts of attestation are not state tasks by their nature, the same rigorous regulation of the public office applies to them as applies to acts of attestation. At the same time, notarial services are not tasks that the state would reserve to itself because of their importance. Notarial services that are not acts of attestation can be performed also by other professions, and thereby on less limited conditions. The notary has to compete with other professions and at the same time comply with significantly more rigorous regulations.

Although the office of notary belongs to the state organisation, the discussion above demonstrated that, during extension of competency of the notary, there has appeared mixing of the spheres of the state and society. Despite the legal status of the notary, the professional activities of the notary can be considered exercise of official authority only in part.

4. The influence of the EU law on the public office, taking the office of notary as an example

European Union law does not prescribe to Member States the legal form in which the state tasks within their area of competence should be performed. Therefore, European Union legislation and the established case law of the European Court of Justice have not paid much attention to the public office.

The influence of European Union law on the public office is shown through the tasks performed in the framework of the office. The continuation of the office is dependent on the meaning assigned to these tasks by the European Court of Justice. As the practice in implementation of Article 45 of the EC Treaty shows, the application of freedom of establishment would not be precluded only because the performance of the tasks takes place in the framework of the public office or because the public-office-holder performs the tasks that are considered exercise of official authority according to national law. When the activities within the framework of the public office are not in compliance with the criteria for the exercise of official authority that have been elucidated by the European Court of Justice, exercise of the exception to freedom of establishment is not possible under Article 45. In this case, the necessity of limitations to the professional activities is to be assessed in view of the objectives of European Union law, result of which may not coincide with the earlier opinions of national courts on the legitimacy of the same limitations. This revision may cause a situation wherein the state has no possibilities for achieving the public objectives and thus is forced to abandon the performance of the state task. In this way, state task would be transformed into public task that belong to the public sphere. This, in turn, would mean disappearance of the public office.

Also the future of the public office of notary is dependent on the assessment of the European Court of Justice on professional duties of the notary. ^*62 Despite the fact that the current cases of the European Court of Justice will not decide the status of the Estonian notaries’ office, the court’s approach will have a future influence on it.

Estonia did away with the requirement for citizenship when the office of notary included mostly only tasks connected to the exercise of official authority. With the extension of notaries’ competency, several tasks were added, the performance of which pursuant to European Union law cannot be reserved only to nationals of a given Member State. The fundamental freedoms of European Community law need to be safeguarded in performing these tasks. As the office-holder cannot be split in two for performing the two sets of tasks, only those requirements can be imposed on the notary that are required for holding the office as a whole. Therefore, solely from the citizenship standpoint and in view of the later amendments to the law, the legislator could not have retained the requirement for citizenship that was applied to the Estonian notary.

Despite the fact that the Estonian notary has to perform not only state tasks but also other public tasks, the unitary office of notary has been retained and a unitary set of rules is applied to holding of this office. As Article 45 is not applicable to some of these tasks, the fundamental freedoms of the European Community cover these tasks and Member States cannot groundlessly hold back exercise of the freedoms. Therefore, one must acknowledge that there are two distinct groups of tasks: those corresponding to the criteria in Article 45 and thus, can be regulated by the norms of national law; and the rest of the tasks falling under the requirements of the European law.

In principle, this differentiation corresponds to the logic of Article 45, according to which it is specific activities that have to be set apart. However, in the case of the office of notary is this double-regulation at the national level is not acceptable. Estonian national law does not support performing both state tasks and public tasks in the same office. The reason for this is that the state cannot from the national level perform the tasks that can be performed in same manner at the public level. Limitations to the professional activities in the framework of the public office are in most cases unnecessary for performance of merely public tasks and are therefore disproportionate. Furthermore, applying the norms of state supervision, public disciplinary liability and of state liability, is not justified in these cases. ^*63 However, deregulation of the public office would not make it possible to realise the state tasks that are assigned to the public office by the state.

The above shows that the continued existence of the public office is guaranteed only if the state tasks are assigned to the public office and when these tasks constitute the exercise of official authority in the sense of Article 45 of the EC Treaty.

5. Conclusions

Similarly to many Member States, also the Estonian legislator has trusted the notary with tasks that the state considers to be its own. A public office has been created for the notary, through which these tasks are performed. Recently, several new tasks were added to the competency of the Estonian notary. These new tasks are called notarial services. Unlike with notarial acts, the notary can decide whether to perform these or not and the fee for the services is negotiable. Notarial services are public tasks, and there is a public interest in them, but they are not inherently state tasks. Provision of notarial services belongs to the public sphere, and they do not require strict public regulation. Therefore, holding a public office and a private profession cannot be connected in the framework of the office of notary, and the legislator will have to decide in favour of one or the other. However, the notary could provide public services outside the framework of the office of notary on equal bases with other individuals offering similar services.

However, in considering the question of the applicability of European Union law, it is not important whether the office-holder performs state tasks. The national legislator can leave performing state tasks, which are trusted to the public office, to its nationals and to the sphere of influence of national law only if the competence of the notary is determined by only these activities that constitute exercise of official authority as explained in Article 45 of the EC Treaty.

The office of notary, which has remarkably long traditions, has an important place in systems of legal protection in most Member States. The Estonian notary too has served the state down through history. In the last 16 years, the notary has been an independent holder of state authority and the office of notary has grown into a strong and trustworthy institution that is valued highly by parties to legal relationships and the state. Still, the office of notary can continue to exist only if the notarial acts of civil law notaries are valued also at the level of the European Union.

Notes:

^*1 This article was published with support from ESF Grant No. 6464.

^*2 See Notes 38–40.

^*3 On different meanings of the office (“Amt”), see R. Summer. Beiträge zum Beamtenrecht. Mohr Siebeck 2007, p. 48 ff.

^*4 J. Isensee. Transformation von Macht in Recht – das Amt. – ZBR 2004, p. 3.

^*5 Under the current law, the office holders for the public office are the notary, bailiff and sworn translator. More on their legal status in E. Andresen. State Liability without the Liability of State. Constitutional Problems related to Individual Professional Liability of Estonian Notaries, Bailiffs and Sworn Translators. – Juridica International 2006 (11), p. 147.

^*6 The independence, however, is not a constitutive characteristic of the public office. See W. Leisner. Öffentliches Amt und Berufsfreiheit. – AöR 1968, p. 188 ff.

^*7 On the critical analysis of these areas, see G. H. Roth, P. Hilpold (Hrsg.). Der EuGH und die Souveränität der Mitgliedstaaten. Bern: Stämpfli 2008.

^*8 The European Commission’s answer of 19 May 1989 to the Written Question by Mr. Willy Kuijpers No. 2199/88. – OJ 1989 C270, 28. The same question was briefly discussed also when compiling the Treaty of the European Community. On the origin of Article 45, see U. Karpenstein, I. Liebach. Das deutsche Notariat vor dem Europäischen Gerichtshof. – EuZW 2009, p. 164.

^*9 Case C-53/08 Commission v. Austria. – OJ C 107, 26.04.2008, pp. 15–16; Case C-47/08 Commission v. Belgium. – OJ C 128, 24.05.2008, p. 18; Case C-50/08 Commission v. France. – OJ C 128, 24.05.2008, pp. 18–19; Case C-54/08 Commission v. Germany. – OJ C 107, 26.04.2008, pp. 16–17; Case C-61/08 Commission v. Greece. – OJ C 92, 12.04.2008, pp. 20–21; Case C-51/08 Commission v. Luxembourg. – OJ C 128, 24.05.2008, p. 19.

^*10 During the infringement proceedings, the Netherlands had notified the European Commission about the draft that prescribed abolishing the requirement for citizenship in 2007. As the parliament of the Netherlands had not adopted the law by February 2009, the European Commis- sion filed an action also against the Netherlands. See the Press Release of 29 January 2009 of the European Commission “Nationality requirements for notaries: Commission takes the Netherlands before the Court of Justice to ensure compliance with non-discrimination principle” (IP/09/152). Available at europa.eu/rapid/pressReleasesAction.do?reference=IP/09/152&type=HTML&aged=0&language=EN&guiLanguage=en.

^*11 The Press Release of 12 October 2006 of the European Commission “Nationality requirements for notaries: Commission acts to ensure correct implementation of EU law in 16 Member States” (IP/06/1385). Available at europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1385&type=HTML&aged=0&language=EN&guiLanguage=en.

^*12 The Press Release of 19 February 2009 of the European Commission “Nationality requirements for notaries: the Commission takes new steps to ensure compliance with the principle of non-discrimination in Portugal” (IP/09/280). Available at europa.eu/rapid/pressReleasesAction.do?reference=IP/09/280&format=HTML&aged=0&language=EN&guiLanguage=en.

^*13 The United Kingdom is on the side of the European Commission in the joint action. See for example the regulation of 16 September 2008 of the European Court of Justice in regard with lawsuit C-54/08 Commission v. Germany.

^*14 In the actions of the Commission, both Directive 89/48/EC and 2005/36/EC are referred to.

^*15 The Press Release of 27 June 2007 of the European Commission “Nationality requirements for notaries: Commission takes seven Member States to Court of Justice to ensure compliance the principle of non-discrimination” (IP/07/915). Available at europa.eu/rapid/pressReleasesAction.do?reference=IP/07/915&format=HTML&aged=0&language=EN&guiLanguage=en.

^*16 See, e.g., Commission Staff Working Document. Progress by Member States in reviewing and eliminating restrictions to Competition in the area of Professional Services. COM(2005) 405 final. 5.09.2005. SEC(2005) 1064 at paragraph 71 ff. The organisation Conférence des Notariats de l’Union Européenne (CNUE), which associates the civil law notaries of the Member States, holds a different opinion. See Position der europäischen Notare zum Wettbewerbsrecht. 3. Juni 2005. Available at www.cnue-nouvelles.be/pdf/pdf_de_20050609090224-2.pdf.

^*17 In that case, every national restriction — for example, the specified number of positions and districts — has to be analysed to determine whether the restriction is discriminating against the citizens of the other Member States; is creating of such restrictions justified by the overriding public interest — be it then defending the interests of the individuals participating in the legal relationship or the proper functioning of the justice system; are the restrictions suitable for achieving the objective which they pursue and do not go beyond what is necessary to attain the purpose. Case C-55/94 Gebhard. – ECR 1995, p. I–4165 at paragraph 37.

^*18 About the applicability of the provisions of competition law on the public activities, see E.-J. Mestmäcker, H. Schweitzer. Art. 86 Abs. 1, Rn. 15 ff. – U. Immenga, E.-J. Mestmäcker. Wettbewerbsrecht. Kommentar zum Europäischen Kartellrecht. Band I. 4. Aufl. 2007.

^*19 About the possible influence of applying the provisions of the freedom of establishment, see J. Fleischhauer. Europäisches Gemeinschaftsrecht und notarielles Berufsrecht. – DNotZ 2002, p. 349 (the practices of the notary would qualify under the legal services that are similar to the lawyer’s legal aid). U. Karpenstein, I. Liebach. Das deutsche Notariat vor dem Europäischen Gerichtshof. – EuZW 2009, p. 162 (“erosion of the system of preventive legal protection”).

^*20 F. Mancini. Democracy and Constitutionalism in the European Union. 2000, p. 134.

^*21 Critically, it has been called also an apodictic view, see M. Henssler, M. Kilian. Die Ausübung hoheitlicher Gewalt im Sinne des Art. 45 EG. – EuR 2005, p. 195.

^*22 The opinion of Advocate-General Mayras in Reyners, case 2/74. – ECR 1974, pp. 631, 665.

^*23 Case 147/86 Commission v. Hellenic Republic. – ECR 1988, p. 1637 at paragraph 7; C-404/05 Commission v. Germany. – ECR 2007, p. I-10195 at paragraph 37.

^*24 Case 2/74 Reyners. – ECR 1974, p. 631 at paragraph 44.

^*25 Case 2/74 Reyners. – ECR 1974, 631 at paragraph 45; Case C-355/98 Commission v. Belgium. – ECR 2000, p. I-1221 at paragraph 25.

^*26 Case C-114/97 Commission v. Spain. – ECR 1998, p. I-6717 at paragraph 37.

^*27 This is, however, the argument in the action filed against Belgium by the Commission in the Case C-47/08: Commission v. Belgium. – OJ C 128, 24.05.2008, p. 18.

^*28 Case 2/74 Reyners. – ECR 1974, p. 631 at paragraphs 52 to 53; Case C-42/92 Thijssen. – ECR 1993, p. I-4047 at paragraph 21, and Case C-306/89 Commission v. Greece. – ECR 1991, p. I-5863 at paragraph 7.

^*29 A. Randelzhofer, U. Forsthoff. Art. 45 EGV, Rn. 8. – E. Grabitz, M. Hilf, M. Nettesheim (Hrsg.). Das Recht der Europäischen Union. Band II. Loseblatt, Stand May 2001.

^*30 Case C-3/88 Commission v. Italy. – ECR 1989, p. 4035 at paragraph 13; Case C-42/92 Thijssen. – ECR 1993, p. I-4047, at paragraph 22; Case C-114/97 Commission v. Spain. – ECR 1998, p. I-6717 at paragraph 38.

^*31 Advocates: Case 2/74 Reyners. – ECR 1974, p. 631; private security activities: C-283/99 Commission v. Italy. – ECR 2001, p. I-04363; C-355/98 Commission v. Belgium. – ECR 2000, p. I-1221; C-514/03 Commission v. Spain. – ECR 2006, p. I-963; teachers in private schools: 147/86 Commission v. Greece. – ECR 1988, p. 1637; traffic accident experts: C-306/89 Commission v. Greece. – ECR 1991, p. I-5863; auditors acknowledged by insurance undertakings: C-42/92 Thijssen. – ECR 1993, p. I-4047; data processing systems developers, programmers and operators: C-3/88 Commission v. Italy.– ECR 1989, p. I-4035; services necessary for computerization of lottery: C-272/91 Commission v. Italy. – ECR 1994, p. I-1409; tax assistance and consulting services by tax consulting centres: C‑451/03 Servizi Ausiliari Dottori Commercialisti. – ECR 2006, p. I-2941; private inspection bodies of organic agriculture production: C-393/05 Commission v. Austria. – ECR 2007, p. I-10195 and C-404/05 Commission v. Germany. – ECR 2007, p. I-10239.

^*32 A. Randelzhofer, U. Forsthoff. Art. 45 EGV, Rn. 9. – E. Grabitz, M. Hilf, M. Nettesheim (Hrsg.). Das Recht der Europäischen Union. Band II. Loseblatt, Stand Mai 2001. Still, the European Commission uses this argumentation in notaries’ cases. See, e.g., case C-47/08: Commission v. Belgium. – OJ C 128, 24.05.2008, p. 18.

^*33 Case 2/74 Reyners. – ECR 1974, p. 631 at paragraph 46.

^*34 Ibid., paragraph 49.

^*35 Proceeding from these arguments, the European Court of Justice did not acknowledge the activities of private inspection bodies of organic agriculture production as the exercise of official authority within the meaning of Article 45. C-393/05 Commission v. Austria. – ECR 2007, p. I-10195 at paragraph 42 and C-404/05 Commission v. Germany. – ECR 2007, p. I-10239 at paragraphs 43 to 44.

^*36 See Article 2 (2) 1) of the Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services on the internal market. – OJ L 376, 27.12.2006, p. 36. There is a separate provision prescribing that the directive is not applicable to the cases provided by Article 45 (Article 2 (2) i)).

^*37 The resolution of the European Parliament of 23 March 2006 on legal professions and general interest in the functioning of legal systems, p. 17. – OJ C 292E, 1.12.2006, pp. 105–109.

^*38 On the German notary with references to earlier research, see N. Preuß. Der Notar als Außenstelle der Justiz – Erfüllung staatlicher Rechtspflegeaufgaben durch externe Funktionsträger. – DnotZ 2008, pp. 258–277; U. Karpenstein, I. Liebach. Das deutsche Notariat vor dem Europäischen Gerichtshof. – EuZW 2009, pp. 161–167. On the Austrian notary, see G. Holley, B. Raschauer, S. Zleptnig. Niederlassungsfreiheit auch für öffentliche Ämter? – ÖJZ 2007, pp. 525–532.

^*39 For example, A. Haratsch, C. Koenig, M. Pechstein. Europarecht, 5. Aufl. 2006, paragraph 813; U. Karpenstein, I. Liebach. Das deutsche Notariat vor dem Europäischen Gerichtshof. – EuZW 2009, p. 164 with references to the earlier literature.

^*40 The viewpoints that the German notary does not exercise official authority as it is expressed in Article 45 with references to earlier research: S. Haeder. Das deutsche Notariat als Bereichsausnahme von der Niederlassungs- und Dienstleistungsfreiheit? – ZeuS 2007, pp. 117–150; S. Schill. Staatsangehörigkeitsvorbehalt für Notare und europäische Niederlassungsfreiheit – Der Anfang vom Ende eines Privilegs? – NJW 2007, pp. 2014–2018; G. Schiller. Freier Personenverkehr im Bereich der freiwilligen Gerichtsbarkeit? – EuR 2004, pp. 27–51. The viewpoint that the citizenship requirement for German notaries is in conflict with the Community law, see J. Bröhmer. Art. 45 EGV, at paragraph 3. – C. Calliess, M. Ruffert (Hrsg.). EUV/EGV. Kommentar. 3. Aufl. 2007.

^*41 The same viewpoint: M. Henssler, M. Kilian. Die Ausübung hoheitlicher Gewalt im Sinne des Art. 45 EG. – EuR 2005, p. 197.

^*42 On 4 June 2008, Riigikogu, the Estonian Parliament, adopted the Act to Amend Commercial Code, Non-profit Associations Act and Other Acts Related to Them (äriseadustiku, mittetulundusühingute seaduse ja nendega seonduvate teiste seaduste muutmise seadus) that amended § 6 (1) of the Notaries Act. Spain and Italy had abolished the citizenship requirement for notaries already earlier.

^*43 The other requirements — the individual who wishes to become a notary has to complete candidate service, pass the notary exam, have a sound knowledge of oral and written Estonian, be honest and with high moral standards and meet educational qualifications suitable for a judge — remained the same. The citizens of the European Union may also become notary candidates and substitute notaries.

^*44 The Explanatory Memorandum of the Draft Act to Amend Commercial Code, Non-profit Associations Act and Other Acts Related to Them (Äriseadustiku, mittetulundusühingute seaduse ja nendega seonduvate teiste seaduste muutmise seaduse eelnõu seletuskiri). Available at www.riigikogu.ee/?page=en_vaade&op=ems&eid=248053&u=20090329220643 (in Estonian).

^*45 The regulation of the President of the European Court of Justice of 16 September 2008 in case C-54/08.

^*46 Regrettably, it was not analysed whether abolishing the requirement of citizenship is in accordance with the Estonian Constitution. According to § 30 (1) of the Constitution the offices in state institutions and local municipalities are to be filled with Estonian citizens pursuant to law. These offices may, as an exception, be filled with foreign state citizens or stateless persons, in accordance with law. As Estonian notary is a holder of the public office this provision expands on the notary, too.

^*47 Estonian Notaries Act (as at 25 December 2008) is available in English at www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X50001K6&keel=en&pg=1&ptyyp=RT&tyyp=X&query=notariaadiseadus.

^*48 Estonian Notarisation Act (as at 1 January 2008) is available in English at www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X50058K3&keel=et&pg=1&ptyyp=RT&tyyp=X&query=t%F5estamisseadus.

^*49 The Code of Civil Procedure as at 1 January 2006 is available at www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X90041&keel=en&pg=1&ptyyp=RT&tyyp=X&query=tsiviilkohtu.

^*50 The Code of Enforcement Procedure § 2 (1) 18-191. The code as at 1 May 2007 is available at www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X80003K1&keel=en&pg=1&ptyyp=RT&tyyp=X&query=t%E4itemen.

^*51 In Estonian execution proceeding, the principle of formalisation is valid. About the preceding, see Regulation 3-2-1-132-07 of the Civil Chamber of the Supreme Court of 16 January 2008, at paragraph 11. – RT III 2008, 5, 35 (in Estonian).

^*52 As from 1 January 2009, the new Law of Succession Act has been in force in Estonia. Its §§ 165–175 regulate the succession proceeding. The Act as at 1 January 2009 is available at www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=XXX0002&keel=en&pg=1&ptyyp=RT&tyyp=X&query=p%E4rimis.

^*53 The exhaustive list of notarial acts is given in § 29 of NotA.

^*54 The Act to Amend the Notaries Act and the Acts Related to It. – RT I 2009, 27, 164 (in Estonian).

^*55 Notaries start performing these new notarial acts respectively from 1 January 2010 and 1 July 2010.

^*56 The draft of the Mediation Act that is being proceeded in the Riigikogu provides the time of entering into force 1 January 2010.

^*57 As an exception, the provisions of disciplinary liability are not applied in case the notary is acting as an arbiter, except for the notary who has committed an indecent act (§ 2 (2) of the Notaries Disciplinary Action Act). About the notaries’ liability, see E. Andresen. State Liability without the Liability of State. Constitutional Problems related to Individual Professional Liability of Estonian Notaries, Bailiffs and Sworn Translators. – Juridica International 2006 (11), pp. 146–157.

^*58 The Draft Act to Amend the Notaries Act and the Acts Related to It, at paragraph 2. Available at www.riigikogu.ee/?page=en_vaade&op=ems&eid=515598&u=20090402140049 (in Estonian).

^*59 Undoubtedly, the state has to safeguard that the notary’s office were able to fulfil the tasks imposed on it in a proper