Summary

The principles of law and their importance on the European Communities level also characterise the EC law as a whole. As the principles of EC law are already having an influence on the Estonian law and in some cases should also be applicable in our courts, it is essential to know them.

The author focuses on the principles of EC law in general and primarily on the principle of democracy as a fundamental principle of law. In the light of the principle of democracy, the author examines public access to information, the relations between the executive and legislative powers, and competence and its limitation in the European Union. The author explores democracy in the EC law and the role of the European Court of Justice in shaping the principle.

The author argues that the democracy of the Member States does not automatically mean that the European Union functions according to the principle of democracy. For that, the European Communities’ activities, the openness and legitimacy of their institutions and corresponding court decisions must be based on the principle. In ensuring the principle of democracy on the level of the Member States, it is important whether and how the Union ensures the democracy of its Member States.

The author finds that, although the European Union must be democratic, we must not forget that democracy on that level is of a different quality. It is not possible to demand that the Communities observe the principle of democracy in the manner and to the extent as the Member States and therefore the comparison of the functioning of democracy in a Member State and the Union is questionable.

The European Court of Justice exercises supervision over the observance of the principle of democracy. It is the case law of the European Court of Justice through which the principle of democracy is shaped in the EC law.

of control over the activities of public authority by the courts, the article is mainly focused on the three elements of the principle developed in the German case law – the suitability of an implemented measure for the attainment of the objective, the necessity of the measure, and proportionality in the narrower sense. The Estonian Constitution also recognises the principle of proportionality and the Supreme Court has referred to it on several occasions. For this reason, the author takes a closer look at the criteria of the principle of proportionality. The author relies on the treatment of the principle of proportionality in the German legal doctrine as this treatment has also influenced EC law. Further, the author examines the limitations established by the courts to the use of the principle. The author agrees that a court should not get involved based on the principle of proportionality if the relation between the measures and the damage caused is not optimal. Involvement starts where limitations become excessive.

In analysing the case law of the Supreme Court, the author argues that the treatment of the principle of proportionality by the Supreme Court is relatively close to the German three-element scheme.