Finland

III - Changes to Constitutional Law

Nature national instruments       
III.1
What is the character of the legal instruments adopted at national level to implement Euro-crisis law (constitutional amendment, organic laws, ordinary legislation, etc)?

In Finland, the implementation of euro crisis law has not required amendments to the Constitution. The level of ordinary legislation has been used.

Constitutional amendment     
III.2    
Have there been any constitutional amendments in response to the Euro-crisis or related to Euro-crisis law? Or have any amendments been proposed?

There have been no proposals by the Government involving amendments to the Constitution. However, the major opposition party has constantly questioned the constitutionality of the proposed Acts used to implement the relevant measures. This is of a particular relevance because the constitutionality of international agreements and implementing laws is in Finland controlled by the Constitutional Law Committee in Parliament. Although the Constitutional Law Committee enjoys a clear judicial function in this respect it is composed of members of Parliament and reflects the power relations in the Parliament. In the statements concerning the constitutionality of the proposals relating to the implementation of euro crisis legislation, the Committee statements always contain a dissenting opinion of the members from the True Finns Party.

It should also be noted that since 2012 when the latest amendment of the Constitution entered into force, the Finnish Constitution includes new provisions explicitly providing that a significant transfer of state powers to the EU or international organization requires the two-thirds majority of the given votes in Parliament (Sec. 94, subsec. 2 and Sec. 95, subsec. 2). This also means that the transfers of ‘insignificant” powers can be decided by simple majority. Whereas for example the EU membership in 1995 was brought into force internally by the use of the institution of exceptive enactment, [1] the current Constitution expresses a constitutional commitment towards the Union and provides a specific provision for transfer of the powers to the Union. Now, only a significant transfer of powers to the EU requires a qualified majority and the application of the Finnish institution of exceptive enactments is no longer needed for such transfer.

Constitutional context
III.3
If national constitutional law already contained relevant elements, such as a balanced budget rule or independent budgetary councils, before the crisis that are now part of Euro-crisis law, what is the background of these rules?

The question is based on a presumption of a strict categorisation and division of national and EU-based rules. In Finland, it had been understood that for example the balanced budget rule has been applicable as a part of EU legislation. Now the Parliamentary Act bringing into force the provisions of legislative nature of Fiscal Compact reiterates this principle (Act No 869/2012) (see also question IX.2). Although, prior to the Fiscal Compact there were no independent budgetary councils, the National Audit Office operating in affiliation with the Parliament as Finland’s Supreme Audit Institution had similar functions. According to Section 90 of the Constitution “[a]n independent body affiliated with the Parliament, the National Audit Office, exists to audit the financial management of the state and compliance with the budget. More detailed provisions on the duties of the National Audit Office are laid down by an Act.” A part of its function has specifically been to audit the state’s finances and evaluate fiscal policy. Its tasks were revisited and specified when implementing the Fiscal Compact and now they clearly include the functions envisaged in the Treaty.

Purpose constitutional amendment   
III.4
What is the purpose of the constitutional amendment and what is its position in the constitution?

As indicated above, no constitutional amendments were made following the Fiscal Compact.

Regarding both stability mechanisms and economic governance, both types of measures have been generally understood to affect Finnish sovereignty. When addressing the European stability mechanisms and Fiscal Compact (see questions VIII.1, VIII.2 and IX.I), the Constitutional Law Committee has shown reluctance but ultimately concluded that the proposed measures have been compatible with the Constitution, and the subsequent amendments to legislation have not been understood as a significant limitation of sovereignty in terms of Section 94.2 and 95.2. Thus in order to approve the measures, a qualified majority in the Parliament – otherwise connected with measures affecting the Constitution – was not deemed necessary nor were there proposals made by the Government to amend the Constitution.

Relationship with EU law          
III.5
Is the constitutional amendment seen as changing the relationship between national and European constitutional law?

Not applicable.

Organic law       
III.6
Have there been changes to organic laws or other types of legislation that are of a different nature or level than ordinary legislation, in relation to Euro-crisis law or the budgetary process?

Finnish constitutional law does not recognise a formal category of organic law, which would be enacted in a different procedure than ordinary legislation and have a higher level in hierarchy than ordinary Parliament laws. There are no organic laws or types of legislation other than the ordinary acts of Parliament and delegated legislation (Government decrees or Ministry decrees or orders). However, the constitutional law doctrine sometimes describes ordinary laws concerning the relationship between the institutions of the state as organic law or in the wider sense as ‘constitutional law’. In this sense, the Act implementing the Fiscal Compact Treaty (No. 869/2012, see question IX.2) contains provisions falling under this category, dealing for example with the responsibilities of the Government towards the Parliament and the tasks of the National Audit Office.

Constitutional amendment and ordinary law 
If ordinary legislation was adopted in conjunction with a constitutional amendment, what is the relationship between the two?

Not applicable.

Perception source of legal change     
III.8

In the public and political discussions on the adoption of ordinary legislation, what was the perception on the appropriate legal framework? Was the ordinary legislation seen as implementing national constitutional law, or Euro-crisis law?

As explained above, there have been views claiming that the new international Treaties on stability mechanisms and economic governance would not be compatible with the Finnish Constitution.

Interestingly and perhaps as an indirect reply to these concerns, the Finnish Constitutional Law Committee of the Parliament stressed in its early statement on the six-pack legislation the need to safeguard the division of competence based on the Treaties, and that the institutional balance at the European Union level should not be altered by secondary Union legislation. This concern has been repeated in several Constitutional Law Committee and Grand Committee Statements (see questions VII.1, VII.6 and VII.8).

Miscellaneous
III.9
What other information is relevant with regard to Finland and to changes to national (constitutional) law?

The euro crisis has caused a clear friction in the Finnish political scene. Finnish European Union politics have traditionally been integration-oriented and provoked little passion in national debates. This is linked to how the membership in the Union generally and participation in the EMU more specifically has been understood in positive and beneficial terms.

In constitutional law the sovereignty doctrine is based on the idea of the specificity of the European Union relationship with the Finnish constitutional order, demonstrating greater tolerance of limitations on sovereignty stemming from EU membership than those derived from other international obligations. This is reflected in the current interpretations of the constitution (by the Constitutional Law Committee and constitutional law experts) too. However, some Finnish positions – for example during the ESM Treaty negotiations insisting on unanimous decision making in the ESM board of governors instead of qualified majority voting, and explaining that other solutions would infringe national sovereignty and the budgetary competence of the Finnish Parliament – do not quite fit into previous line of interpretation and could be understood in reflecting tightening interpretations of the limitations of sovereignty tolerable in the context of the Finnish Union membership.

 

[1] For an introduction to the Constitution of Finland, see e.g. J. Husa, The Constitution of Finland: A Contextual Analysis (Hart Publishing 2011. See also T. Ojanen, ‘The Impact of EU Membership on Finnish Constitutional Law’, Vol 10 European Public Law (2004) p. 531.