Dear reader, This Juridica International, titled International and National in Law, on the one hand seeks to continue a tradition that was born with its very fi rst issues published in the second half of the 1990s—to serve as an Estonian journal of law. On the other hand, the vocabulary and content of the articles imply international target audi- ences. There is also another tradition that we have committed ourselves to preserv- ing, namely to dedicate each issue to a certain topic that consolidates approaches located at various distances from the centre, while some are closer and some are further away. There are inherent controversies in both aspirations. To focus on a single topic in an issue would turn it into a collective monograph, probably adding research value; yet with a population of 1.3 million, Estonia simply lacks suffi cient research capacity for such efforts. Abandoning a central axis would certainly expedite the work of an author, but he or she would no longer need to con- sider the matters that are existential to Estonian research—to avoid ambiguity, to seek to address the most important topics, with little regard to perhaps intriguing but still marginal issues. Focussing one’s attention on only internationally signifi cant topics would dis- count the simple fact that the law in the world these days is still largely national law, and it is the development of national law that drives the progress in classical inter- national, supra- and transnational as well as European law. If the reader now takes a look out of the window, he or she will immediately realise that there is no abstract global national environment but it is the tree growing by his or her window that is unique. The constitutional rules must pass an international human rights’ test, while the Constitution still governs the functioning of a particular country and its popula- tion. A referendum must be carried out with due regard to democratic principles, but it is the people who vote, not abstract subjects of law. Consumer protection has been thoroughly regulated on the EU level, but it is essentially experienced as the treat- ment you receive in a nearby supermarket or the amount of trust you have in your publisher’s agent. The second part of the title, Reciprocal Impact, sets out to demonstrate that it is a two-way street. The above reference to Estonia’s population implies that we do not have the resources available to address all research topics. Yet we do not distinguish strictly between important and unimportant topics. All the topics discussed here are important, and only time will tell in due course which of them will have more infl u- ence on us and which will become our contribution to the development of interna- tionally recognised jurisprudence. Perhaps some topics will sink into oblivion, but we are lucky not to know that yet; this is not likely either, given the substance and quality of the articles. Dear reader, come and learn about Estonian law by reading this issue. And do not be concerned, you will not be leaving the international dimension while you go through the articles, based on their content and level. Estonian law does not detach itself from international jurisprudence, it is the very jurisprudence. Jaan Sootak Member of Editorial Board JURIDICA INTERNATIONAL XVIII/2011 1 Contents: Ülle Madise, Constitutionality of Remote Internet Voting: 4 Priit Vinkel The Estonian Perspective Ero Liivik Referendum in the Estonian Constitution: Historical 17 and Comparative Constitutional Aspects Gaabriel Tavits International Standards for Social Security and Their Fulfi lment in Estonia: 27 Changes in Pension and Health Insurance and Their Constitutionality Annika Talmar-Pere, Applying the Concept of Better Regulation to Internal Security Policy 44 Raul Narits, Aare Kasemets Margus Kingisepp, The Notion of Consumer in EU Consumer Acquis and the Consumer 44 Age Värv Rights Directive—a Signifi cant Change of Paradigm? Karin Sein Protection of Consumers against Unfair Jurisdiction and Arbitration 54 Clauses in Jurisprudence of the European Court of Justice Piia Kalamees Hierarchy of Buyer’s Remedies in Case of Lack of Conformity of the Goods 63 Olavi-Jüri Luik Do the Principles of European Insurance Contract Law Go Too Far 73 in Protecting the Policyholder? Maarja Torga Characterisation in Estonian Private International Law— 84 a Proper Tool for Achieving Justice between the Parties? Margit Piirman Patentability of Inventions Related to Human Embryonic Stem Cells 94 Elise Vasamäe A Collective Licensing Scheme for Lending of Phonograms from 104 Digital Libraries Irina Nossova Cold Arctic and Hot Caspian Side by Side: New Legal Regimes Emerging? 113 A Russian Perspective Kaarel Relve Defi nition of an Environmental Organisation in the Arhus Convention, 121 Environmental Directives and Estonian Law Hannes Veinla Problems in Transposing the European Union’s Nature Conservation 132 Directives into Estonian Law and Plans for Solving Them 2 JURIDICA INTERNATIONAL XVIII/2011 Contents Anu Kõve Current and Savings Deposits in Conventional and Islamic Retail Banking 142 in the EU Kaspar Lind VAT Fraud and the Fight against It in Estonia: 152 Laws and the Practice of the Administrative Law Chamber of the Supreme Court Kristjan Kask Comparison of Knowledge of Law Enforcement and Lay People Regarding 161 Eyewitness Testimony Julia Laffranque FIDE—Uniting Great Minds of European Law: 173 50 years of the International Federation for European Law Raul Narits Iurisprudentia est divinarum atque humanarum rerum notitia, 182 iusti atque iniusti scientia JURIDICA INTERNATIONAL XVIII/2011 3 Ülle Madise Priit Vinkel Professor of Constitutional Law Assistant, University of Tartu University of Tartu Advisor, Elections Department of the Chancellery of Riigikogu Constitutionality of Remote Internet Voting: The Estonian Perspective 1. Introduction Estonia has used remote Internet-based voting in fi ve elections: twice each in municipal and Riigikogu (parliamentary) elections and once in European Parliament elections. The number of ‘I-voters’ has grown sharply from less than 10,000 in 2005’s municipal elections to over 140,000 in the 2011 parliamentary elec- tions. The latter account for 24.3% of all votes cast and 56.4% of the advance votes. Initially, no individual complaints claiming unconstitutionality of I-voting were fi led in court. In 2011, the situation has changed: critical public debate has re-emerged, followed by several complaints. Only Estonia, Switzerland, Norway and a few other countries allow legally binding remote I-voting, though some countries are on their way toward its countrywide use. The list of countries that have aban- doned the use of e-voting in various forms is much longer, including the US, Germany, Finland, and the Netherlands.*1 France, for example, tries to keep alive the tradition of voting only at the polling station, as this ritualises citizenship*2, but has allowed proxy voting and recently remote I-voting from abroad. The reasons for allowing or giving up on I-voting are different, but constitutional questions of whether fair and free voting can be secured in the case of remote I-voting have always been raised. We are facing the pressure of the information society*3: people require e-services, yet, on the other hand, cyber-threats are more serious than ever before.*4 Social changes have already forced countries to allow remote postal or proxy voting.*5 We have to admit that holding on to old traditions (one single elec- 1 See the database for the Competence Center for Electronic Voting and Participation, at http://db.e-voting.cc/. German constitutional court decision to declare the use of voting machines unconstitutional: BVerfG, 2 BvC 3/07 vom 3.3.2009, Absatz-Nr. (1-163). Available at http://www.bverfg.de/entscheidungen/cs20090303_2bvc000307.html (9.10.2011). The core of the decision in German: Der Grundsatz der Öffentlichkeit der Wahl aus Art. 38 in Verbindung mit Art. 20 Abs. 1 und Abs. 2 GG gebietet, dass alle wesentlichen Schritte der Wahl öffentlicher Überprüfbarkeit unterliegen, soweit nicht andere verfassungsrechtliche Belange eine Ausnahme rechtfertigen. Beim Einsatz elektronischer Wahlgeräte müssen die wesentlichen Schritte der Wahlhandlung und der Ergebnisermit- tlung vom Bürger zuverlässig und ohne besondere Sachkenntnis überprüft werden können. 2 L. Monnoyer-Smith. How I-voting technology challenges traditional concepts of citizenship: An analysis of French voting rituals. – R. Krimmer (ed.). Electronic Voting 2006: 2nd International Workshop Co-organised by the Council of Europe, ESF TED, IFIP WG 8.6, and E-Voting.CC. Bonn: Gesellschaft für Informatik 2006, pp. 63–64. 3 W. Drechsler. Dispatch from the Future. – The Washington Post, 5.11.2006. 4 J. Farwell, R. Rohozinski. Stuxnet and the Future of Cyber War. – Survival 2011 (53) 1, pp. 23–40. 5 See, e.g., the thorough overview of remote postal voting in N. Kersting. Briefwahl im Internationalen Vergleich. – Öster- reichische Zeitschrift für Politikwissenschaft 2004 (33) 3, pp. 325–328. 4 JURIDICA INTERNATIONAL XVIII/2011 Constitutionality of Remote Internet Voting: The Estonian Perspective Ülle Madise, Priit Vinkel tion day, casting of paper ballots in a controlled environment as the only option, etc.) will not be possible in the future, but free and fair elections, anonymity of the vote, and the principle of uniformity must be guar- anteed. The Council of Europe has adopted recommendation*6 and guidelines*7 for electronically enabled elections, and the OSCE/ODIHR is looking for ways to observe and evaluate various forms of e-voting, including I-voting. Estonia’s I-voting experience is internationally followed with special attention; any fail- ures would have very negative consequences not only for Estonian democracy but for all I-voting projects, worldwide. The concept of the Estonian I-voting system is described and analysed here in the light of theoretical literature, judgements of the Supreme Court of Estonia, and the empirical data available.