Ruling No. 16 of 19 December 2024 on Constitutional Case No. 41/2024
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by 68 Members of Parliament from the 51st National Assembly for a binding interpretation of Article 130, paragraph 4 in conjunction with Article 1, paragraph 1 (“Bulgaria shall be a republic with a parliamentary system of government.”) and paragraph 2 (“All state power derives from the people […]”), Article 4, paragraph 1 (rule of law), Article 8 (separation of powers), and Article 117, paragraph 2 (independence of the judiciary) of the Constitution, as well as §23 of the Transitional and Final Provisions of the Law Amending and Supplementing the Constitution of the Republic of Bulgaria (TFP of the LAS of the Constitution), with a view to answering the following questions: “Upon expiry of the mandate of the members of the Supreme Judicial Council, does the Council continue to exercise its constitutional powers in full? Is it permissible for such powers to be limited by statute or by any other act of the National Assembly? Is §23 of the TFP of the LAS of the Constitution, promulgated in SG No. 106/2023, amended in SG No. 66/2024, applicable after Decision No. 13/2024 of the Constitutional Court of the Republic of Bulgaria?” The request states that “clarification of the meaning of the cited provisions would be of essential importance for the manner in which the National Assembly exercises its constitutional powers.”
Summary of the Court’s Reasoning
І. Admissibility of the request concerning the first interpretative question
А. According to Judges Pavlina Panova, Nadezhda Dzhelepova, Sonya Yankulova, Borislav Belazelkov, Desislava Atanasova, and Galina Toneva:
In the factual situation “such as the one present in the current case (where the National Assembly does not form a political will to elect members of the Supreme Judicial Council in accordance with constitutional requirements)” (Ruling No. 7/2023 on Constitutional Case No. 9/2023), which as such lies outside the Constitutional Court’s assessment because the Court does not rule on factual circumstances (including on a persistently established factual state of affairs, as it has no such powers, unlike certain other constitutional courts), the only action available to the Court is, within its interpretative competence under Article 149, paragraph 1, item 1 of the Constitution, to give priority protection to one of the two supreme values - fixed mandates or institutional continuity - in order to guarantee the functioning of the constitutional state bodies (Ruling No. 7/2023 on Constitutional Case No. 9/2023).
On the question raised by the petitioner, the Constitutional Court has already had the opportunity to rule in Ruling No. 7/2023 on Constitutional Case No. 9/2023. Although in the present proceedings the question is not identically formulated, its meaning is identical to that raised by the Prosecutor General in his request on Constitutional Case No. 9/2023.
The essence of the question raised concerns what actions the National Assembly should undertake in a specifically described situation, and does not constitute a request for interpretation of a constitutional provision (Ruling of 14 November 2013 on Constitutional Case No. 21/2013). What actions the National Assembly will take to resolve the specific issue lies solely within its competence. Its decision is subject to constitutional review if and when the Court is seized.
B. According to Judges Atanas Semov, Krasimir Vlahov, Yanaki Stoilov, Sasho Penov, and Nevin Feti:
In the present case, there is a problem concerning the performance of the constitutionally assigned obligations of the national representative body. This problem arises from the National Assembly’s continuing failure to exercise its power to elect members of the Supreme Judicial Council, which is directly related to the principles of the separation of powers and the independence of the judiciary (including because such inaction hinders the selection of members of the SJC by the judicial authorities). The essential question is whether, when this inaction continues for an extended period after the expiry of the mandate of the elected members of the Supreme Judicial Council, the Council may exercise its powers in the same manner and to the same extent as it does when it satisfies all constitutionally prescribed requirements regarding the formation of its composition. We firmly maintain that the ruling on the admissibility of the request must reflect our understanding of the Constitutional Court’s own responsibility to overcome a persistently established factual situation that reveals significant tension with the foundational principles of the constitutional order enshrined in the Basic Law.
We consider that the Constitutional Court has not ruled on the question as thus formulated, and therefore the negative procedural prerequisite within the meaning of Article 21, paragraph 6 of the Constitutional Court Act is not present.
II. Admissibility of the request concerning the second interpretative question
The reasoning submitted in support of the requested interpretation does not set out arguments identifying specific ambiguities that the Constitutional Court is expected to resolve in the course of the constitutional proceedings.
In its practice, the Court upholds the understanding that, in exercising its interpretative powers, it cannot decide on matters which the Constitution leaves to the discretion of the National Assembly as the legislative authority. The opposite would place the Constitutional Court in the position of a "positive legislator" who replaces the will of the legislator with his own, which is constitutionally inadmissible (Decision No. 8/2022 on Case No. 15/2022).
The Constitutional Court emphasizes that "it is not an advisory body, but exercises the power of binding interpretation when there is a legitimate interest in doing so.
There are no grounds in the present case for the Constitutional Court to depart from its established case-law; therefore, it finds the request concerning the second question inadmissible.
ІIІ. Admissibility of the request concerning the third interpretative question
As formulated, the question does not concern interpretation, and therefore does not engage the Court’s competence under Article 149, paragraph 1, item 1 of the Constitution, but rather seeks clarification of the legal effect of §23 of the Transitional and Final Provisions of the Law Amending and Supplementing the Constitution, i.e. concerns the application of that provision, which falls outside the scope of the Court’s interpretative powers.
In Decision No. 5/2005 on Constitutional Case No. 10/2004, the Court explicitly held that “a ruling on transitional provisions after the expiry of their period of validity is unnecessary,” because transitional and final provisions have effect limited in time.
With respect to the third interpretative question, the Constitutional Court finds no grounds to depart from this view, and therefore the request is inadmissible. In addition, the Constitutional Court has already had the opportunity to address the matter raised in the third question in the reasoning of Decision No. 13/2024 on Constitutional Case No. 1/2024.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 1 of the Constitution (competence to provide binding interpretations of the Constitution) and Article 19, paragraph 1 of the Constitutional Court Act (ruling on submitted requests by means of a ruling), the Constitutional Court dismisses the request of 68 Members of Parliament from the 51st National Assembly for a binding interpretation of Article 130, paragraph 4 in conjunction with Article 1, paragraphs 1 and 2, Article 4, paragraph 1, Article 8, Article 117, paragraph 2 of the Constitution of the Republic of Bulgaria, and §23 of the Transitional and Final Provisions of the Law Amending and Supplementing the Constitution, with respect to the questions set out in the request.
The ruling was signed with one dissenting opinion.
Председател: Павлина Панова