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Chancellor of justice concurs with president over law's unconstitutionality

Legal amendments to two acts as adopted by the Riigikogu on December 18 last year after being tied to a vote of confidence in the government, is inconsistent with the Constitution, Chancellor of Justice Ülle Madise says.

The acts being amended are the Land Tax Act and the Tax Organization Act.

The justice chancellor's line on this legislation is similar to that held by President Alar Karis; during a legislative deadlock which ran through much of 2023 at the Riigikogu, the Reform-Eesi 200-SDE coalition routinely tied votes on legislation to a motion of confidence in itself.

While with 60 seats at the 101-seat chamber the government was in no danger of losing this vote (if it had, it would have had to exit office), it also meant that the substantive content of bills was not debated on or voted on.

In an opinion submitted to the Supreme Court, Ülle Madise wrote "I find that the law amending the Land Tax Act and the Tax Organization Act as passed by the Riigikogu on December 18, 2023 contradicts the Constitution."

"... the amending legislation was not key from the perspective of adopting the state budget for the year (ie. 2024 – ed.). Linking it to the matter of confidence here would not have been constitutional, even if the purpose of the filibuster had been substantive opposition to the adoption of the amending law: Achieving a more favorable result for the represented social groups ,or at least demonstrating any struggle that had taken place on behalf of their interests and of a sense of legitimacy," the justice chancellor went on.

The chancellor of justice pointed out in her opinion that the head of state has the right to evaluate the procedure for adopting the law when deciding on the promulgation of same, and if significant procedural errors emerge as a result, to return that law to the Riigikogu for a fresh debate and decision.

"The government connected the adoption of the amending law to the issue of confidence, claiming that the fast-track adoption of this legislation was required ahead of the adoption of the 2024 state budget amd before the beginning of the fiscal year. Some of the members of the Riigikogu had begun to filibuster the Riigikogu's functioning overall, and over a period of time, had wanted to artificially call for emergency elections using this route. Based on amendments submitted to the amending bill, it can be stated that the filibuster was not directed against the content of this law," Madise went on.

The filibuster was being carried out by the three opposition parties and primarily the Conservative People's Party of Estonia (EKRE).

"This type of filibuster should be treated differently than obstruction set up for other purposes. /.../ In this case, the fact that the amending law was not important in respect of the adoption of the state budget for the year would be sufficient to consider its tying to the issue of confidence [in the government] unconstitutional."

Madise added that, due to the course of the bill's processing, the Riigikogu had not discussed the substantive changes planned by the law in question, and which may have a significant impact on the fundamental rights of individuals in Estonia – in other words both tying the bill to a motion of no-confidence was unconstitutional and the content of that bill itself could potentially be unconstitutional, once it came into effect.

"First of all, it is dubious as to whether the new conditions, which were established for the delivery of documents from the Tax and Customs Board (EMTA) as sent to non-profit organizations (MTÜ – ed.) and foundations (SA – ed.), are in terms of content in accordance with the constitution."

The amending act stipulates that if a legal entity which uses the EMTA's e-environment has not opened the document uploaded to that e-environment, the document sent thereto is deemed to have been delivered five working days after the notification, unless earlier receipt of the document has been proven.

The amending act provides for a similar requirement for a document sent to e-mail addresses.

"Since, so far, it has been considered correct that a company which is a legal entity has an obligation to organize its correspondence, one can somehow understand the extension of the same duty of care to e-mail," the justice chancellor noted.

The purpose of the bill was also unclear, Madise went on.

"Questions arise as to whether it is right to impose any such obligation on non-profit organizations and foundations, within the tax field."

According to Madise, it is not viable to understand from the changes in question why it is necessary to make very important and fundamental changes in the rules for the delivery of administrative acts to non-profit organizations and foundations.

In addition, the impact of the bill on the areas in question had not been analyzed, while the bill was based on an unverified presupposition that non-profit organizations and foundations actually have the opportunity and willingness to meet the new requirements.

Furthermore, the application of the new conditions for the delivery of an administrative act would limit the right to find out about the content of that administrative act and, with that, the opportunity to appeal to the courts via a complaint, Madise summed up.

The justifications for these restrictions are thin on the ground, and their effects have not been analyzed, she concluded.

Riigikogu chief of office: No contradiction with the Constitution

Antero Habicht, head of the Office of the Riigikogu, denies that there is any contradiction between the above legislation and the Constitution.

In an opinion, also sent to the Tartu-based Supreme Court, Habicht wrote: "The Riigikogu has adopted the law amending the Land Tax Act and the Tax Management Act in accordance with the provisions of the Constitution and the Riigikogu's Rules of Procedure (RKKTS), and, during the course of its proceedings at the Riigikogu, neither the Constitution nor the RKKTS norms were transgressed. The legislation is in accordance with the Constitution, both formally and materially."

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Editor: Andrew Whyte

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