Decision No. 3 of 23 April 2025 on Constitutional Case No. 18/2023
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by the President of the Republic of Bulgaria. The subject matter of the case concerns the constitutionality of Article 2, paragraph 4, in the part “and for agro-photovoltaics - under conditions and according to a procedure established by an ordinance of the Minister of Agriculture and the Minister of Regional Development and Public Works” (an exception to the prohibition on construction on agricultural lands), Article 17a, paragraph 3, in the part “for facilities for the generation of energy from renewable sources”, Article 23, paragraph 3, and Article 24, paragraph 7, in the part “or the construction of a facility for the generation of energy from renewable sources” of the Agricultural Land Protection Act (ALPA).
The request cites as arguments for unconstitutionality the alleged violations of Article 15 (protection and reproduction of the environment, preservation of biodiversity, and the rational utilization of natural resources) and Article 21, paragraphs 1 (the land shall be an essential national resource […]); and 2 ([…] any change of the designated use of agricultural land shall be permissible as an exception, provided the necessity has been proved, and under terms and according to a procedure established by law) of the Constitution.
Summary of the Court’s Reasoning
Following the issuance of the ruling admitting the President’s request for consideration on the merits, the 49th National Assembly, in a session held on 7 December 2023, adopted a Law Amending the Tax and Social Security Procedure Code (LATSSPC), whereby §7, item 2 of the Transitional and Final Provisions (TFP) of this law amended Article 23, paragraph 3 ALPA, replacing the word “fifth” with “seventh.” Following this amendment, Article 23, paragraph 3 ALPA acquired a new content and meaning, thereby introducing a new subject matter into the case, which was neither requested by the petitioner nor referred to the Constitutional Court.
During the phase of consideration of the case on the merits, at the session held on 8 February 2024, the 49th National Assembly adopted a Law Amending and Supplementing the Energy Act (LASEA) (promulgated in State Gazette Issue No. 16 of 2024), whereby §7, item 1 of the TFP of LASEA deleted the words “or the construction of a facility for the generation of energy from renewable sources” in Article 24, paragraph 7 ALPA. The Constitutional Court holds that, according to its well-established case law, once the challenged statutory provision is no longer part of the legal order, the Court cannot consider a request for the establishment of its unconstitutionality due to the fact that the subject matter of the request has ceased to exist.
The amendment to Article 2, paragraph 4 ALPA expands the scope of the exception introduced by the legislator to the prohibition of construction on agricultural land. It provides that, without changing the designated purpose of agricultural land, construction is also permitted for the category of “agro-photovoltaics,” under conditions and according to a procedure established by an ordinance. Only the regulation by law of the essential elements of social relations related to the protection of agricultural land fulfills the constitutional requirement for its use solely for agricultural purposes and prevents circumvention of the constitutional mandate that any change may only be allowed exceptionally, upon proven need, and under conditions and procedures provided by law. It is impermissible for fundamental legal provisions to be established for the first time through a secondary legislation in order to fill gaps in the law. It is even less permissible for long-standing social relations to be regulated solely at a secondary regulatory level, without the possibility of invoking the law due to the absence of legal regulation.
The prohibition on construction on agricultural land without changing its designated purpose aims to prevent potential harmful impacts that could lead to its destruction or make it impossible to use in accordance with its purpose as defined in the Constitution. The definition of “agro-photovoltaics” introduced in the Additional Provisions of the law, according to which they “allow the peaceful and unobstructed use of agricultural land,” cannot, in itself, be considered a sufficient basis for applying the exception to the general prohibition on construction, in compliance with Articles 15 and 21 of the Constitution. It is necessary to establish a clear, precise, and sufficiently determinable criterion that justifies the need for the envisaged exception and ensures its strict interpretation and application - something that Article 2, paragraph 4 ALPA, in the part challenged by the petitioner, does not provide. The rule established by the law, that construction on agricultural land may be carried out only after a change of its designated purpose by the competent authorities under Chapter Five of the Agricultural Land Protection Act, loses its character as a general and fundamental rule and becomes subordinated. Although, formally, a general rule and an exception are established, the two rules become equally applicable, creating the possibility of circumventing the procedure prescribed by law without explicitly providing for a change in the land’s designated purpose. Viewed in this context, the provision of Article 2, paragraph 4 ALPA, in the part challenged by the petitioner, creates the possibility of deviating from the application of a general rule through the establishment of an exception.
Article 17a, paragraph 3 ALPA enumerates the cases in which a change of the designated purpose of agricultural land for non-agricultural needs may be carried out without requiring the approval of a site or route for planning. According to the provision, the conduct of the first stage is not necessary when the change of purpose of the agricultural land is provided for in a legally effective general spatial development plan, as well as in cases of the construction of industrial parks under the Industrial Parks Act, facilities for the generation of energy from renewable sources, and the implementation of a concession agreement. The provision of Article 17a, paragraph 3 ALPA challenged by the petitioner, in the part referring to “facilities for the generation of energy from renewable sources,” provides that the simplified procedure also applies to the construction of such facilities.
Excluding the first stage from the proceedings under Chapter Five of the Act (editor's note: the decision of the commissions under Article 17, paragraph 1 ALPA) deprives agricultural land, as a limited natural resource and as national wealth, of the protection that the legislator is required to ensure in accordance with Articles 15 and 21 of the Constitution. The role of the competent commission under Article 17, paragraph 1 ALPA as the body responsible for the protection of agricultural land is eliminated. It is deprived of the authority to assess, for each individual case, whether the need for the change of purpose, taking into account the productive qualities of the land, the objectives of the change, and the requirements of special laws, is justified and demonstrated. It is precisely this assessment that guarantees compliance with the constitutional requirements that such changes be made solely exceptionally and upon proven need.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (empowering the Court to rule on requests for the establishment of the unconstitutionality of laws […]), the Constitutional Court declares unconstitutional Article 2, paragraph 4, in the part “and for agro-photovoltaics - under conditions and according to a procedure established by an ordinance of the Minister of Agriculture and the Minister of Regional Development and Public Works” and Article 17a, Paragraph 3, in the part “for facilities for the generation of energy from renewable sources” of the Agricultural Land Protection Act. The Court dismisses the request for a declaration of unconstitutionality of Article 23, paragraph 3, and Article 24, paragraph 7, in the part “or the construction of a facility for the generation of energy from renewable sources” of the Agricultural Land Protection Act (promulgated in State Gazette Issue No. 35 of 1996, last amended and supplemented in Issue No. 41 of 2024) and terminates the proceedings in this part.
The decision is signed with a dissenting opinion regarding the constitutionality of Article 2, paragraph 4, and Article 17a, paragraph 3 ALPA by two Constitutional Court judges.
Председател: Павлина Панова