The contribution made by Ilian Beslemeshki, Partner at Georgiev, Todorov & Co., Lena Borislavova, LL. M. Harvard Law School and Monika Markova, LL. B. University of Manchester provides comparative analysis…
The Constitutional Court of Republic of Bulgaria ruled on the case initiated on 11.12.2017 related to the mandatory interpretation of Article 125(2) of the Constitution of Republic of Bulgaria on the following matter: “Does the provision of Article 125(2) of the Constitution of Republic of Bulgaria require the Supreme Administrative Court to rule as a court of first instance on disputes on the legality of the acts of the Council of Ministers and of the ministers?”, which was filed by the Plenum of the Supreme Administrative Court.
The Constitutional Court invited the institutions concerned and prominent representatives of the legal science to provide written legal opinions on the subject matter and after discussing their opinions and the arguments of the petitioner, it declared its interpretative decision. Prof. Todorov responded to the invitation and gave his expert legal opinion that the provision of the constitution requires the Supreme Administrative Court to rule as a court of first instance on disputes on the legality of the acts of the Council of Ministers and of the ministers. This interpretation is laid down in the decision of the Constitutional Court and, as seen from its grounds, the legal considerations stated by Prof. Todorov have been taken into account in the provision of the mandatory interpretation.
The opinion provided by the lawyer Ivan Todorov, who is a professor in administrative law and managing partner of “Georgiev, Todorov & Co.” Law Offices, sets out some fundamental arguments, which have been accepted and discussed in the detailed grounds of the decision of the Constitutional Court. The first key argument is that the subject matter of the court of first instance investigation is the administrative act, whereas the cassation control focuses on the investigation of the decision of the court of first instance. Next, the cassation proceedings are instituted at the initiative of a party to the proceedings, which is why the constitutional legislator did not take into account the cassation phase in the provision of Article 125(2) due to the lack of obligation and certainty on the initiation thereof.
In his opinion, Prof. Todorov highlights that the moment for comprehensive reform of the procedure for challenging administrative acts has already come, so as to free capacity for the highest judicial authority to focus on the harmonisation of administrative case law.
By its Decision No. 8 of 23.04.2018, the Constitutional Court made a major contribution to ensuring the constitutionally defined role of the Supreme Administrative Court by ruling on the scope of acts, on which the Supreme Administrative Court is required to exercise control with respect to legality:
“The provision of Article 125(2), proposal first of the Constitution requires the Supreme Administrative Court to rule as a court of first instance on disputes on the legality of administrative acts issued by the Council of Ministers and by the ministers in exercising their functions and powers laid down in the constitution and related to guiding and exercising state governance.”
The Constitutional Court criticises the appeals to acts of the prime minister and of the ministers, issued in fulfilment of their functions as appointing bodies, which is expressly addressed in the opinion of Prof. Todorov. The constitutional judges agree that “Due to the available legislative possibility for the prime minister and the ministers to delegate their powers as appointing bodies, disputes of the same type and legal side are practically handled by the Supreme Administrative Court as a court of first instance or by the respective administrative court, based on the body that has issued the act”, which they find unacceptable.