ALLAR JÕKS ⟩ I have a constitutional right to dream of a country where a satisfied entrepreneur is not subjected to the “must have fooled the state” look

Allar Jõks. Photo: Sander Ilvest

I have a constitutional right to dream of a country where the premise of creating laws is not the belief that an entrepreneur is an enemy of the people. A country where, seeing a satisfied entrepreneur, people do not think that they have succeeded in fooling the state, attorney-at-law and former chancellor of justice Allar Jõks writes on social media.

I have a constitutional right to dream of a country where the premise of creating laws is not the belief that an entrepreneur is an enemy of the people. A country where, seeing a satisfied entrepreneur, people do not think that they have succeeded in fooling the state, attorney-at-law and former chancellor of justice Allar Jõks writes on social media.

Many years ago, on the order of the government, Entrepreneurs' Day was celebrated on October 8 to value entrepreneurship.

I remembered this fact when I happened to read the opinion of Social Democratic Party (SDE) member Mark Gerassimenko (EPL 07.10.2024). The scheme presented in the opinion piece is as follows: we have expensive communication services because the Competition Authority does not have enough power given by law to fine "bad" entrepreneurs. As a result, law-abiding companies are forced to suffer due to competitors who disregard the rules, while the consumer's wallet is increasingly hit by price increases. The faster the coalition passes the draft amendment to the Competition Act in the Riigikogu, the faster the Competition Authority can really start working and consumers will be happy.

I understand that the piece was written by a young SDE politician, and therefore its ideological content is understandable. However, I need to make some clarifications.

Firstly. The communication services market has not been examined by the Competition Authority not because the law is insufficient. An analysis of the retail market of communication services is in the authority’s 2025 plan, so it is not a priority this year. This is how I understood the response of the minister of justice and digital affairs to an interpellation in the Riigikogu on October 6.

Secondly. In the opinion of the author, the opposition is naturally to blame for the fact that the amendment of the Competition Act (administrative penalties draft) has been delayed in the Riigikogu: "Unfortunately, the adoption of the bill has been delayed due to the opposition's opposition and Estonia 200's non-committal position. /.../ The adoption of the Competition Act is currently supported by SDE and Reform Party MPs. However, so far, Estonia 200 politicians have had a hesitant attitude towards the bill.“

I understand that the author wants to support one’s own, however, the water divide or the front line in terms of amending the Competition Act unfortunately runs elsewhere.

On one side is the ruling majority of business organizations and legal experts, on the other side is part of the coalition. If you don't believe this, read the materials of draft 384SE, which is being processed by the Riigikogu. As a member of the fundamental rights committee of the Estonian Bar Association and a member of the board of the Estonian Service Industry Association, I have read them in more detail than the average Estonian.

The picture that emerges from the opinions prepared on the draft is as follows. The draft is contrary to the Constitution, as it obliges entrepreneurs to present evidence of themselves for conviction in the proceedings conducted by the Competition Authority. In addition, additional bureaucracy would be generated by creating an entirely new administrative procedure and administrative court procedure. This would be done at a time when the current law has all the necessary procedures to investigate competition violations and to impose the corresponding penalty in case of violations. Furthermore, the sitting government's core promise is to reduce bureaucracy, not increase it.

Due to the mentioned deficiencies, the chancellor of justice has twice proposed to improve the draft. Otherwise, she is considering an appeal to the Supreme Court. The Faculty of Law of the University of Tartu has taken a similar position.

The draft Competition Act is contrary to the Constitution, as it obliges entrepreneurs to present evidence of themselves for conviction in the proceedings conducted by the Competition Authority. In addition, additional bureaucracy would be generated by creating an entirely new administrative procedure and administrative court procedure.

Business organizations have expressed an unprecedented unanimous opposition to the draft due to the identified shortcomings.

It is even understandable that SDE is pushing the unconstitutional bill forward. The approach of the author of the opinion piece is simply as follows: the worse it is for the entrepreneurs, the better it is for the consumer. From here it is only a step to the belief that the time of the market economy is over in Estonia.

Why the Reform Party, as a historically entrepreneur-friendly party, is supporting such a version of the bill remains incomprehensible to me. Especially considering that in June 2022 the government of Kaja Kallas confirmed the priorities of Estonia's EU policy, where it explicitly emphasized that the transposition of EU law would not blur the line between administrative proceedings and criminal proceedings, meaning a new procedure for investigating competition violations would not be created.

Perhaps a friend from the Reform Party could explain?

Laws cannot be made based on the belief that the entrepreneur is an enemy of the people.

But what turns me into an emotionally heated middle-aged white man is the justification used to unthinkingly increase the powers of state power: the honest have nothing to fear.

Go ask, for example, the conclusively acquitted judge Eveli Vavrenjuk or the attorney-at-law Olev Kuklase about the impact of a five-year judicial toil in the center of public attention as a designed enemy of the people.

I have a constitutional right to dream of a country where the premise of creating laws is not the belief that an entrepreneur is an enemy of the people. A country where, seeing a satisfied entrepreneur, people do not think that they must have succeeded in fooling the state. And where the recognition of entrepreneurial spirit is not just limited to a flag day.