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JURIDICA INTERNATIONAL. LAW REVIEW.
UNIVERSITY OF TARTU (1632)

The Right to Issue Regulations and its Constitutional Limits in Estonia

Kalle Merusk
pp. 38-45

The right to issue regulations and its limits is a topical issue in the developing Estonian legal system both from the legal-political and theoretical perspectives. This issue is connected with the need to specify the competence of the legislature and the administration in legislative drafting. Attributes characteristic of young democracies of Central and Eastern Europe can also be observed in the Estonian legal system. According to G. Nolte (1993)*1, parliaments in these countries are trying to ensure substantial legal regulation by on the one hand, passing laws which in itself, overburdens the parliaments and slows down the legislative drafting process, and on the other hand, by granting an overly extensive authority to the administration to issue regulations. This inevitably leads to the creation of an authoritarian regime and rule by the administration. Both objective and subjective factors influence the process. The subjective factors include, first and foremost, a lack of knowledge and experience, and of court practice. The above-mentioned attributes were characteristic of Estonia primarily in the first years of re-establishment of its independence. However, the Constitution adopted by a referendum in 1992 provided objective criteria for specifying the right to issue regulations. Commencement of the activities of the Supreme Court as the constitutional review court in 1993 and evolving court practice have considerably influenced the application of the Constitution in the field of regulations. The Legal Chancellor as a constitutional body who reviews the legislation of the legislative and executive powers and of local governments for conformity with the Constitution and the laws has also significantly contributed to ensuring the constitutionality of regulations. Several theoretical analyses have been published concerning the right to issue regulations and its constitutional limits.*2 Despite improvements, the author believes that cases still occur in practice where the legislator oversteps the constitutional limits on delegation of the right to issue regulations. Therefore, this issue requires an in-depth theoretical analysis.

Definition of regulation and classification

In legal theory, the concept of regulation has been defined in several ways, although, in essence, these definitions often coincide. According to G. Jellinek (1919)*3, a regulation is a state act of will, a substantive law which is adopted in a definite form and has the same effect as a rule of law created by legislation or derived from common law. L. K. Adamovich (1935)*4 considers a regulation to be any rule of law of general application which is not created in the form of a law. L. K. Adamovich (1982)*5 treats a regulation as a general regulatory act of state power which is issued by the administration and which has an external effect. F. Ermacora (1970)*6 notes that any regulation which is general in nature, in that it concerns an abstract number of cases and is binding on the addressee has the same effect as a law, although it is not a law in the formal sense but a law in the substantive sense. H. J. Wolff (1994)*7 defines a regulation as a unilateral, abstract and, as a rule, generally binding precept of state power which is issued in a definite form by government or administrative bodies to regulate general relationships of state power and which has the nature of a substantive law. Generalising the above definitions, a regulation can be viewed as a generally binding precept issued in a definite form which governs an abstract number of cases and impersonally creates rights and duties. Thus, a regulation is a substantive law since it contains rules of law created by the executive power.

The right of the executive power to issue regulations is, in essence, an exercise of the legislative function and, therefore, constitutes an exception in the system of separate legislative and executive powers. The practical function of the executive power’s right to issue regulations is to reduce the work load of the legislature. This also allows the possibility to confer the technical elaboration function of rules to the executive power ensuring a flexible administration. An effective division of labour between laws and regulations avoids the overloading of laws with overly specific areas of regulation.

However, the constitutional principle of the priority of law which German legal researchers call Vorrang des Gesetzes*8 should also be taken into consideration. This principle reflects the connectedness of the executive power with law and demands that the executive power not perform acts which are unconstitutional. This principle is established in paragraph 1 of § 3 of the Constitution of Estonia under which the powers of state are exercised solely pursuant to the Constitution and the laws which are in conformity therewith. The principle of the priority of law is also provided for in § 139 of the Constitution, under which the Legal Chancellor reviews the legislation of the legislative and executive powers and of local governments for conformity with the Constitution and the laws.*9 In both legal practice and theory, regulations are also regarded as legislation of general application. Thus, the duties of the Legal Chancellor also include the review of regulations issued by the executive power for conformity with the Constitution and the laws.

Regulations may be classified according to several principles. By their regulatory scope and connection with laws, regulations may be classified as intra legem, praeter legem or contra legem regulations. Intra legem regulations (Durchführungverordnungen) are legislative acts whereby the executive power is authorised to implement a law in force. Such regulations specify the rules for a law to be implemented and must be in conformity therewith. In theory, researchers are of the opinion that intra legem regulations may only specify the regulation of areas which are regulated by law.*10 Praeter legem regulations (gesetzesvertretende Verordnungen) are legislative acts governing areas which are unregulated by law. In this respect, such regulations substitute for laws. Contra legem regulations (gesetzesändernde Verordnungen) amend and repeal laws.

Pursuant to clause 87 6) and paragraph 2 of § 94 of the Constitution of Estonia, the Government of the Republic or a minister must issue regulations on the basis of and for the implementation of law. These provisions must be considered together with paragraph 1 of § 3 of the Constitution, under which the powers of state are to be exercised solely pursuant to the Constitution and the laws which are in conformity therewith. The latter provision is the basis for the creation of the principle of legality under which the executive power is authorised to issue intra legem regulations. The Supreme Court also supports this position.

In its decision of 12 January 1994 “Review of proposal of the Legal Chancellor made under paragraph 2 of § 142 of the Constitution to repeal, pursuant to paragraph 2 of § 152 of the Constitution, clause 2 of the Government of the Republic Regulation No. 233 of 23 July 1993 ”Approval of “By-laws of the Estonian Security Police Administration” and “Temporary Procedure for Implementation of Operational-Technical Special Measures”, the Constitutional Review Panel of the Supreme Court noted that, pursuant to clause 65 1) of the Constitution, the Riigikogu, the parliament of Estonia, passes laws. Pursuant to clause 87 6) of the Constitution, the Government of the Republic issues regulations and orders on the basis of and for the implementation of law. The above-mentioned provisions establish the constitutional hierarchy of legislation, and, consequently, the executive power may not regulate by praeter legem regulations areas which, in accordance with the Constitution, are governed by legislation with the force of law.*11 Intra legem regulations may not depart from the limits of implementing and specifying the rules of law, otherwise rules of law will be created which are unconstitutional. The Constitutional Review Panel of the Supreme Court also made this point in its decision of 7 December 1994 “Review of request of the Legal Chancellor to repeal paragraph 3 of clause 1.5 of the Income Tax Act Implementation Guide”. Specifically, subsection 38 (1) of the Income Tax Act grants the Minister of Finance authority to establish the procedure for implementation of the Act. The Income Tax Act Implementation Guide approved by a regulation of the Minister of Finance established a completely new rule which provided for the accrual of individual income tax to the extent of 48 per cent for the state budget and to the extent of 52 per cent for a local government budget. In connection with this, the Supreme Court held:

Subsection 38 (1) of the Income Tax Act provides that the procedure for the implementation of this Act is established by the Minister of Finance. Therefore, the Minister of Finance was required to fulfil the function assigned to him by law and to approve the Income Tax Act Implementation Guide. However, the Income Tax Act or other laws did not assign to the Minister of Finance the function to arrange for the accrual of individual income tax to the extent of 48 per cent for the state budget. In consequence, paragraph 3 of clause 1.5 of the Income Tax Act Implementation Guide is contrary to paragraph 1 of § 3 of the Constitution under which the powers of state are exercised solely pursuant to the Constitution and the laws which are in conformity therewith.*12

Thus, in accordance with the Constitution, only intra legem regulations are, as a rule, legal. This always applies to regulations which are connected with the exercise of public authority. In other words, rules which prescribe the legal status of the addressee of the rules must be contained in a law and not in a regulation. A regulation may only implement or specify such rules. Consequently, praeter and contra legem regulations are, in this respect, unconstitutional.

However, paragraph 1 of § 3 of the Constitution cannot be understood only on the basis of linguistic interpretation. The content of the principle of legality of executive power is not based on this provision alone, but also on other rules of the Constitution. Thus, pursuant to clause 87 2), the function of the Government is to direct and co-ordinate the activities of government agencies. Since the Government is competent to issue regulations solely on the basis of and for the implementation of law, these regulations could include praeter legem regulations issued on the basis of a general delegation of authority. Such regulations may govern internal matters of administrative organisations and the administration of the activities of agencies. This position is also supported by L. K. Adamovich and B.-Chr. Funk (1982)*13 who relied in their analysis on subsections 18 (1) and (2) of the Constitution of Austria, under which the entire public administration is based on law, and every administrative authority may, on the basis of a law, issue regulations within its sphere of competence. The above-mentioned principle is also provided for in subsection 27 (3) of the Government of the Republic Act*14, under which the Government of the Republic may issue regulations for the management of the structure, operations and work of government agencies, and for the exercise of supervisory control over government agencies. This provision does not require such a regulation to contain a reference to the provision of law which is the basis for its issuance. This requirement, however, applies to other regulations (subsection 27 (2)). In the context of the corresponding provisions of the Constitution, it can be concluded that internal matters of an administrative organisation may be subject to praeter legem regulations on the basis of the general delegation of authority which is provided for in subsection 27 (3) of the Government of the Republic Act. Regulations of this type do not substitute for laws in a specific area, but their effect only extends to the limit where regulation by law commences. In this respect, such regulations have a subsidiary function. In theory, such regulations are also known as law supplementing regulations (gesetzesergänzende Verordnung). According to R. Walter and H. Mayer (1985)*15, these regulations may be issued by way of exception, without the basis of law, and, unlike law substituting regulations (gesetzesvertretende Verordnungen), they do not substitute for law. In analysing the relationship between a regulation and a law, Estonian researchers have differentiated three types of regulations, and therefore, praeter legem regulations have been interpreted in a broader sense than solely law substituting regulations.

The Constitution permits, as a rule, only the so-called non-independent regulations (unselbständige Verordnungen), except decrees of the President. Under clause 87 6) and paragraph 2 of § 94 of the Constitution, the legal basis for non-independent regulations is the law. The legal basis for independent regulations is the Constitution. In the case of the latter, their content need not be determined by law.*16 Independent regulations are, for example, decrees of the President which are issued pursuant to § 109 of the Constitution if the Riigikogu is unable to convene and if this is required by urgent state need. Such regulations can be considered extraordinary regulations (Notverordnungen). Some Estonian legal researchers have viewed decrees of the President as emergency decrees.*17 Researchers of Germany, Austria and other countries classify such regulations as extraordinary regulations.*18 Yet, decrees of the President have had no practical implications in Estonia so far. They are prescribed for emergency situations such as a state of emergency or a state of war.

Legal practice and literature also make a distinction between administrative regulations and legal regulations.*19 This classification is based on the addressees of the rules. Administrative regulations (Verwaltungsverordnungen) are orders of superior bodies to subordinate ones whereby the competence of the executive power is exercised. Such regulations are generally binding and abstract in nature and solely directed to regulating the internal structures of an administrative organisation. The Estonian legal system does not make this distinction among regulations of the Government and ministers. Likewise, administrative and legal regulations are not regarded as distinct terminologically. The term “regulation” is used with a general meaning. Differentiation between various types of regulations has primarily a theoretical value. To some extent, directives can be treated as administrative regulations in the Estonian legal system. Directives are issued by way of subordination. Under subsection 74 (1) of the Government of the Republic Act, a director general of an executive agency or inspectorate may issue directives concerning service-related issues pursuant to law, a regulation or order of the Government of the Republic, or a regulation or directive of a minister. In content, a directive has a dual nature: it may contain generally binding abstract orders or regulate individual issues such as the appointment to and release from office of an official. Thus, the title of a piece of legislation does not always indicate whether it is a regulation or order from the perspective of administrative legislation theory. For this, the content of the legislation has to be examined. Generally binding abstract directives may only regulate service-related issues, and therefore, they have an internal function.

The Constitution treats the right to issue regulations only in connection with the competence of the Government of the Republic and ministers. By other laws, this right is also granted to several institutions with autonomous competence. Under subsection 7 (1) of the Local Government Organisation Act*20, a council and the Government have the right to issue regulations as general legislation. Further, this Act designates the areas which may be governed by regulations of local government bodies. For example, the establishment of local taxes, amendment of tax rates, imposition of fees and the establishment of the procedure for granting subsidies are within the exclusive competence of a rural municipality or city council. Local government regulations whereby the exclusive competence of a local government is exercised are decentralised legislation in comparison with regulations of state administrative bodies. These regulations need not be in conformity with regulations of superior state administrative bodies.

The Riigikogu has also delegated the right to issue regulations to the Bank of Estonia. Under subsection 1 (5) of the Bank of Estonia Act*21, the Board of the Bank of Estonia adopts decisions, and the President of the Bank of Estonia issues regulations and directives. The Act does not specify the cases in which the President of the Bank has the right to issue regulations and directives. Subsection 11 (6) of the Act provides that only regulations and directives of the President of the Bank of Estonia which are issued pursuant to law, decisions of the Bank of Estonia or other legislation having regulatory effect (i.e. contain rules of law) must be published in the Riigi Teataja. Hence, every issue of a regulation presumes a special delegation of authority by a law, decision of the Board of the Bank or other legislation. Although the Act does not specify to whom regulations and directives are addressed, it may be assumed on the basis of the legal system that directives are issued for the management of the internal work of the Bank, and regulations, for the management of cash flow and other external matters of the Bank. Regulations are addressed to institutions other than the Bank of Estonia.

Delegation of authority

Pursuant to clause 87 6) and paragraph 2 of § 94 of the Constitution of Estonia, the Government of the Republic and ministers may issue regulations on the basis of and for the implementation of law. Based on these provisions, the issue of delegation of authority arises. Does the executive power have the right to implement law by a regulation on the basis of a constitutional general delegation of authority or is, in each specific case, a special delegation necessary? If the latter is obligatory, the issue concerning the conditions and requirements for delegation of authority arises. To provide answers to these issues, the corresponding legal practice in other democratic European countries and the theoretical positions discussed in the legal literature should be examined.

Under paragraph 1 of Article 80 of the Constitution of the Federal Republic of Germany, the Federal Government, a federal minister or the Land Governments may be authorised to issue regulations which have the force of law.*22 Further, a law must set out the content of authority (i.e. the issues to be governed by a regulation), its purpose (i.e. the purpose to be served by a regulation) and its scope. N. Achterberg (1986)*23 notes that, although the legislator often provides the general content and purpose of authority, its scope remains undefined. According to German researchers, the German Constitutional Court holds no definite position in this matter. The Constitutional Court is of the opinion that it is sufficient if the content, purpose and scope of authority can, on the principles of interpretation, be derived from other rules and the purpose and drafting history of a given law.*24 This is further elaborated by the formulation that a rule concerning delegation of authority is void if it is unclear in which cases it is to be used and which regulations may be issued on its basis. At the same time, German researchers share the position that paragraph 1 of Article 80 of the German Constitution only permits regulations which implement law (gesetzesausführende Verordnungen) but do not substitute for law (gsetzesvertretende Verordnungen).*25

Under paragraph 2 of Article 18 of the Constitution of Austria, an administrative authority may issue regulations “on the basis of law”.*26 The authority to issue regulations must be established by law itself. Such authority must be carefully defined, and it may be conferred either by delegation by a formal law or by subdelegation.*27 The content of a regulation to be delegated must, in principle, be provided by law. Delegated authority is sufficient if the regulation characteristics of a law enable the Constitutional Court to review a given regulation.*28 In the view of L. K. Adamovich and B.-Chr. Funk, expressly stated authority to issue a regulation pursuant to law (see Article 4 (2) of the Constitution of Austria) corresponds to the current administrative practice in Austria.*29 According to the Constitutional Court of Austria, the designation of an incorrect legal basis of a regulation does not render the regulation unconstitutional. However, the possibility to refer to the legal basis of a regulation is essential. Loss of the legal basis of an intra legem regulation does not bring about the retroactive invalidity of the regulation, but results only in the concurrent loss of legal effect of the regulation. As a rule, only intra legem regulations are legal. The issuance of praeter legem and contra legem regulations requires constitutional authority.

In accordance with the Constitution of Switzerland, independent regulations may only be issued pursuant to the Constitution. Non-independent regulations may only be issued on the basis of a delegation of authority expressly stated by law. Such regulations are valid solely within the limits of competence conferred upon the executive power by the legislator and must correspond to the purposes established in a formal law. Non-independent regulations must be legal. The legality of such regulations is based on the fact that the regulations comply with the rules of law, and that the scope of competence has not been exceeded.*30

Article 37 of the Constitution of France provides that matters other than those that fall within the sphere of legislation may be determined by a regulation.*31 Under

§ 21, the Government exercises regulatory powers (i.e. the right to issue regulations).*32 French legal theory and practice follow the principle that the public administration may only issue regulations in conformity with the direct prescription of the legislator.*33

Under clause 87 6) and paragraph 2 of § 94 of the Constitution of Estonia, both the Government of the Republic and ministers may issue regulations on the basis of and for the implementation of law. How should the legal construction “on the basis of and for the implementation of law” be interpreted? Does this mean that both these conditions, that is, “on the basis of law” and “for the implementation of law”, must be met for the issuance of a regulation? The two elements of the construction are joined by the conjunction “and” which has a conjunctive rather than disjunctive function. By linguistic interpretation, it may be concluded that the issuance of a regulation requires the fulfilment of both these conditions. The requirement of “on the basis of law” presumes a delegation of authority provided by law (i.e. a formal legal delegation). The construction “for the implementation of law” provides a regulation with limits, meaning that the regulation may specify and implement only those rules which are authorised by the legislator. To ensure legality of the activities of the executive power, the delegation rule must be clearly formulated. Formulations of the delegation rule such as “... the procedure for the implementation of this Act shall be established by the Minister of Finance” or “... the implementation of this Act shall be effected by the Government of the Republic” are of questionable value. Since, in the case of regulations, the legislative function is delegated to the executive power, which is an exception to the general rule (i.e. in accordance with the Constitution, legislative power is vested in the Riigikogu), the delegation rule must precisely specify the content of the corresponding authority, the purpose intended by and the scope of the regulation. The above-mentioned regulations are intra legem regulations and the rules established thereby can only be secondary. The Fishing Act*34 provides a positive example of a correctly formulated delegation rule. Under subsection 17 (1) of the Act, the fishing procedure in all bodies of water and the procedure for gathering water plants is to be established by the Government of the Republic by fishing rules. Subsection 17 (2) establishes the spheres to be regulated by the rules, such as prohibited fishing periods and zones, etc. Subsection 17 (3) of the Act contains the definition of fishing.

The principle provided in subsections 27 (2) and 51 (2) of the Government of the Republic Act that a regulation of the Government of the Republic or a minister must refer to the provision of law which is the basis for its issuance has also contributed to the harmonisation of administrative practice and assists in ensuring the legality of executive power.

In accordance with the Constitution of Estonia, the addressee of a delegation of authority is the Government of the Republic and ministers. The Constitution does not specify any other subjects. Since, with the issuance of regulations, the legislative function is delegated, the holders of this right may only be derived on the basis of the Constitution. Thus, pursuant to the Constitution, other subjects do not have the right to issue regulations, except autonomous regulations. However, there are cases where the legislator has violated this constitutional principle. For example, subsection 38 (1) of the Accounting Act*35 authorises the Accounting Committee to issue rules to direct accounting activities. The legislator does not specify the content and limits of the use of this authority in more detail. These rules are addressed to all legal persons registered in Estonia and natural persons engaged in enterprise. If such rules depart from the limits of methodical recommendations, which in fact has already occurred, and establish corresponding conditions and procedures, then regardless of their name, such rules are regulations, the issuance of which the given government agency has no constitutional authority. Consequently, such legislation is unconstitutional.

In the law in force, the use of subdelegation of authority has caused problems. Delegation of the right to issue regulations which, in essence, is the delegation of competence is not permitted according to the principle valid in public law of potestas delegata delegari non potest.*36 However, in theory and practice, subdelegation is permitted, by way of exception, only on the basis of an authority based on law.*37 Thus, the legislator must grant the authority for the subdelegation. Delegation of authority may be effected by a regulation, however the addressee of the subdelegation must have the right to issue regulations. In positive law, delegation by the Government of the right to issue regulations to a minister may be possible. In accordance with the Constitution, the legislator may delegate the right to issue a regulation directly to a minister, but only on certain grounds, or the legislator may grant the Government the right of delegation of authority and the latter will decide whether it will issue a regulation for the implementation of a rule of law itself or authorise a corresponding minister to do so. The Government has followed these principles especially in the case of subdelegation rules adopted in recent years. For example, the following subdelegation of authority provided for in subsection 5 (2) of the Traffic Act*38 should be considered correct:

Road conditions must secure safe and unobstructed traffic and be in conformity with the requirements of the Republic of Estonia established by a regulation of the Government of the Republic or, by its authorisation, of the Minister of Transport and Communications.

Limits on delegation of authority

In ensuring the legality of the right to issue regulations, the limits on delegation of authority which are based on the Constitution are essential. The Constitution of Estonia contains the following primary and interconnected principles for the determination of delegation of authority for the issuance of regulations:

1) The Law Reservation Principle. In the German legal system, this principle is known as “der Grundsatz des Vorbehalts des Gesetzes” (Gesetzesvorbehalt). The law reservation theory is dealt with in Swiss, Austrian, German and French legal literature.*39 Under this principle, the executive power may act if the law grants it authority to do so. In other words, the executive power may not act without a legitimate democratic authority based on law and granted by the parliament. Subsection 3 (1) of the Constitution of Estonia establishes the exclusive law reservation principle which also exists in the Constitution of Austria (subsection 18 (1)). Consequently, the legislator is unable to authorise the Government or a minister to issue regulations which provide the legal bases for the activities of government agencies in the exercise of state power. Both, such delegation of authority and the regulations issued on its basis would be unconstitutional. The above-mentioned principle is specified in the Government of the Republic Act in § 1 under which the Government of the Republic exercises executive power pursuant to the Constitution and the laws of the Republic of Estonia. Executive power is exercised by the Government directly or through government agencies. According to subsection 39 (3) of the Act, government agencies are ministries, the State Chancellery and county governments, as well as executive agencies and inspectorates, and their regional offices with authority to exercise executive power. Other government agencies may also be prescribed by law.

The exercise of executive power on the basis of its own law is not legal

2) The Democracy Principle. This principle presumes that the main decisions of the state are adopted by formal laws, that is, that only the parliament elected democratically by the people and thereby rendered legitimate is entitled to establish rules which affect citizens. In particular, this concerns the regulation of the basic rights and freedoms of persons. The Constitutional Review Panel of the Supreme Court noted the following in its decision of 12 January 1994 referred to previously:

Pursuant to § 11 of the Constitution, rights and freedoms may only be restricted in accordance with the Constitution. Section 26 of the Constitution prohibits state agencies and their officials from interfering with the private or family life of any person, except in the cases and pursuant to procedure provided by law. The Constitution does not prescribe other possibilities for the establishment of restrictions on the basic rights and freedoms. This principle is absolute and precludes the possibility to establish restrictions on the basic rights and freedoms by legislation secondary to law.*40

The Constitution also provides for other areas important to citizens which may be legally regulated only by formal laws. For example, under § 113 of the Constitution, state taxes, duties, fees, fines and compulsory insurance payments must be provided by law. Section 114 establishes that the procedures for the possession, use and disposal of state assets must be provided by law. Th. Fleiner (1977)*41 and other authors are of the opinion that the democracy principle also requires the regulation by law of such values which are not provided for in the Constitution but which are particularly important to people and have been regulated over a long period of time. On the basis of rulings of the German Constitutional Court, German lawyers have developed the so-called Wesentlichkeitstheorie, under which essential decisions of the state must be adopted by the parliament by formal laws.*42 However, according to F. Ossenbühl, attempts to implement the Wesentlichkeitstheorie in practice have so far not been successful.*43 On the basis of positions expressed in the theoretical literature, it may be concluded that there are no exactly measurable integral criteria concerning the implementation of the democracy principle in practice. Consequently, in each specific case, other criteria based on the Constitution should also be considered.

3) The Rule of Law Principle. Section 10 of the Constitution provides that the rights, freedoms and duties set out in the Constitution must not preclude other rights, freedoms and duties which arise from the spirit of the Constitution or are in accordance therewith, and conform to the principles of human dignity and of a state based on social justice, democracy and the rule of law. This means that the Constitution of Estonia establishes the rule of law principle which requires that the legal relationships between the state and citizens must be regulated by formal laws. However, in the view of the author of this article, the Estonian legislator has not always followed this principle. For example, § 19 of the Police Act*44 provides that the conditions and procedures of the police service are to be established by the Government of the Republic. At present, this area is governed by the Police Service Regulations approved by a Government regulation.45 The Regulations, inter alia, provide for the bringing of disciplinary action against police officials, their transfer from one office to another and their release from office. Thus, the legal status of police officials as one category of civil servants is established by a regulation, although this area should be the subject of regulation by a formal law. Under § 29 of the Constitution, an Estonian citizen has the right to freely choose his or her sphere of activity, profession and place of work. Further, the conditions and procedure for the exercise of this right may be provided by law. An essential aspect of the rule of law principle is legal security and preclusion of the possibility of arbitrary action by the executive power. Legal security presumes an exact formulation of a delegation of authority which, upon its interpretation, precludes arbitrary action by the executive power. However, any interpretation must allow for a creative approach within the limits of specification of a rule. Therefore, interpretation results may differ. If a delegation of authority is formulated too broadly allowing for different possibilities in the interpretation of the delegation rule, such delegation cannot be regarded as in accordance with the rule of law principle. The delegation rule must be clearly understandable to citizens, who should be able to observe whether a regulation has been issued on the basis of the rule.

In conclusion, the Constitution of the Republic of Estonia contains relatively distinct criteria for ensuring the legality of the right to issue regulations and which constitute a basis for the exercise of constitutional review.

Notes:

1 G. Nolte. Ermächtigung der Exekutive zur Rechtsetzung. Archiv des öffenlichen Rechts. 118. Band (1993). Tübingen, p. 379.

2 K. Merusk. Kehtiv õigus ja õigusakti teooria põhiküsimusi. (The Law in Force and Main Issues of the Theory of Legislation.) Tartu, 1995.
R. Maruste, J.-E. Truuväli. Teooria ja praktika probleeme seonduvalt põhiseaduslikkuse järelevalvega. (Problems of Theory and Practice in Constitutional Review.) Juridica, 1995, 7, pp. 304-310.

3 G. Jellinek. Gesetz und Verordnung. Staatsrechtliche Untersuchungen auf rechtsgeschichtlicher und rechtsvergleichender Grundlage. Tübingen, 1919, p. 385.

4 L. Adamovich. Grundriss des österreichisches Staatsrechtes. Wien, 1935, p. 13.

5 L. K. Adamovich, B.-Chr. Funk. Österreichischen Verfassungsrecht: Verfassungsrechtslehre unter Berücksichtigung von Staatslehre und Politikwissenschaft. Wien, New York, 1982, p. 216.

6 F. Ermacora. Allgemeine Staatslehre. Vom Nationalstaat zum Weltstaat. Zweiter Teil. Berlin, 1970, p. 1031.

7 H. J. Wolff, O. Bachhof, R. Stober. Verwaltungsrecht I. München, 1994, pp. 276-277.

8 H. Maurer. Allgemeines Verwaltungsrecht. München, 1994, p. 224.
H.-U. Erichsen. Allgemeines Verwaltungsrecht. Berlin, New York, 1995, p. 174.

9 Eesti Vabariigi põhiseadus. (The Constitution of the Republic of Estonia.) Publication of Riigi Teataja. Tallinn, 1994.

10 R. Walter, H. Mayer. Grundri des dsterreichischen Bundesverfassungsrechts. Wien, 1985, p. 148.

11 Riigi Teataja I, 1994, 8, 130.

12 Riigi Teataja I 1994, 91, 1567.

13 L. K. Adamovich, B.-Chr. Funk. Allgemeines Verwaltungsrecht. Wien, New York, 1984, pp. 104-105.

14 Riigi Teataja I 1995, 94, 1628.

15 H. Walter, H. Mayer. Op. cit., p. 185.

16 see W. Antoniolli. AllgemeinesVerwaltungsrecht. Wien, 1954, p. 75.

17 see R. Maruste, E.-J. Truuväli. Op. cit., p. 307.

18 see H.-J. Uibopuu. Die Kompetenzen des estnischen Staatspräsidenten nach der Verfassung 1992. Salzburg, 1993, pp. 60-62. Th. Fleiner-Gersten. Grundzüge des allgemeinen und schweizerischen Verwaltungsrecht. Zürich, 1977, p. 76.

19 F. Ermacora. Op. cit., p. 1031.

20 Riigi Teataja I 1993, 37, 558.

21 Riigi Teataja I 1993, 28, 498; 1994, 30, 463.

22 Grundgesetz für die Bundesrepublik Deutschland. Sartorius I. Verfassungs und Verwaltungsgesetze der Bundesrepublik Deutschland. Stand vom 15. Januar 1992. München, 1.

23 N. Achterberg. Allgemeines Verwaltungsrecht. Heidelberg, 1986, p. 132.

24 see H.-U. Erichsen. Op. cit., p. 127.

25 see E. Stein. Staatsrecht. Tübingen, 1976, p. 48.

26 The Republic of Austria. Constitution and Legislation. Moscow, 1985.

27 see F. Ermacora. Op. cit., p. 1032.

28 see W. Antoniolli. Op. cit., pp. 76-77.

29 see L. K. Adamovich, B.-Chr. Funk. Op. cit., pp. 112-113.

30 see Th. Fleiner-Gersten. Op. cit., pp. 75-76.
Z. Giacometti. Allgemeine Lehre des rechtstaatlichen Verwaltungsrecht. Zürich, 1960, pp. 158-167.
B. Knapp. Grundlagen des Verwaltungsrecht. Band I. Basel und Frankfurt am Mein, pp. 64-80.

31 Republic of France. Constitution and Legislation. Moscow, 1989, p. 39.

32 Op. cit., p. 35.

33 Zh. Veden. Administrative Law of France. Moscow, 1973, p. 142.

34 Riigi Teataja I 1995, 80, 1384; 1996, 27, 567.

35 Riigi Teataja I 1994, 48, 790.

36 see H. Triepel. Delegation und Mandat im öffentlichen Recht. Stuttgart und Berlin, 1942, p 126.
L. K. Adamovich, B.-Chr. Funk. Op. cit., p. 113.

37 see U. Häfelin, W. Haller. Schweizerisches Bundesstaatsrecht. Ein Grundri. Zurich, 1984, pp. 298-299.
H. Maurer. Op. cit., p. 320.

38 Riigi Teataja 1992, 12, 193; RT I 1995, 2/3, 3; 1996, 16, 268.

39 see Th. Fleiner. Die Delegation als Problem des Verfassungs- und Verwaltungsrecht. Rechtsvergleichender Beitrag zur Rechtsprechung auf dem Gebiet der Gewaltentreunung. Universitätsverlag Freiburg. Sweiz, 1972, p. 112.

40 Riigi Teataja I 1994, 8, 130.

41 Th. Fleiner. Op. cit., p. 132.

42 see H. H. Arnim. Zur “Wesentlichkeitstheorie” des Bundesverfassungsgerichts. Deutsches Verwaltungsblatt 1987, pp. 1241-1249.

43 H. -U. Erichsen. Op. cit., p. 180.

44 Riigi Teataja 1990, 10, 113; RT I 1993, 20, 355; 1994, 34, 534; 40, 654; 86/87, 1487.

45 Riigi Teataja 1991, 6, 101; RT I 1994, 7, 69, 1056; 1996, 10, 192.





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