Special Workshop Abstract

Uno Lõhmus

Pursuant to § 56 of Estonian Constitution the supreme power of state shall be exercised by the people through citizens with the right to vote by electing the parliament and through a referendum. The citizens with the right to vote of our republic have not yet said yes to the accession of our state to the European Union. The referendum which will decide on amending the Constitution to determine the relationship between Estonian law and the directly and normatively applicable European Community law, has not yet taken place. The necessity to amend Estonian Constitution arises, first and foremost, from the fact that the law created within the exclusive competence of European Community has supremacy over the laws of the Member States of the European Union.

Estonian legislator has hurried on in advance and has passed several Acts, regulating the areas under discussion and has made amendments to the currently valid Acts. Leaving aside the issue of whether the parliament had a mandate to do that prior to a referendum, it is clear that it will ensure that we are prepared for the new conditions, arising from the EU Treaty and the EC Treaty. The referred Acts will enter into force upon accession to the European Union.

Matters relating to the European Union citizenship shall be regulated by the following important laws:

1) European Union Citizen Act, passed by the parliament on 20 November 2002. This Act regulates the legal basis for European Union citizens and their family members to stay in Estonia.

2) European Parliament Election Act, passed on 18 December 2002. This Act regulates the election of members of European Parliament in Estonia.

3) The Local Government Election Act, passed on 27 March 2002, contains provisions on EU citizens' right to vote and to stand as a candidate at the elections of Estonian local government bodies. The provisions concerning European Union citizens, as well as the other two referred Acts, shall enter into force upon Estonia's accession to the European Union.

These Acts guarantee the basic rights of EU citizens (right of freedom of movement and possibility to stay freely, right to elect local governments and the European Parliament in the member state where the EU citizen resides).

Although under the Maastricht Treaty all nationals of Member States have become citizens of the Union, there are two levels of EU citizenship: EU nationals, who live in their country of origin, and EU nationals who have used their right of freedom of movement. Only the citizens of a Member State living within the border of that state enjoy all rights, conferred upon the citizens of that state by the domestic legislation of the State. Because of the partial discretion of Member States the extent of rights of EU citizens in different Member States may differ. The analysis of Estonian legislation regulating the rights of EU citizens allows to come to a conclusion that, in certain aspects, the EU citizens who are not Estonian nationals, have been granted more extensive rights than the rights given to Estonian nationals in some other Member States. Accession negotiations revealed that several present Member States do not wish to immediately open their labour markets fully to Estonian nationals who are EU citizens, consequently, the extent of the rights of those EU nationals who have used their right of freedom of movement, is different, too. Although Estonia is entitled to implement, in regard to citizens of a present Member State, measures equivalent to those implemented by that Member State to Estonian nationals, the referred Acts contain no pertinent provisions. On the other hand, we can find provisions allowing for greater freedom of movement of labour. For example, the European Union Citizens Act recognises as a family of a European Union citizen not only his or her spouse but also a person living in the same dwelling or sharing a household with him or her. Thus, Estonia indirectly recognises homosexual couples as family.