Decision

DECISION № 4 OF 8 JULY 2008 ON CONSTITUTIONAL CASE № 4 / 2008

Drawing on Art. 149, para 1, subpara 2 of the Constitution the Prosecutor General of the Republic of Bulgaria challenged the constitutionality of § 92, para 2 of the Transitional and Concluding Provisions of the act amending the Forestry Act by which the National Assembly made it binding on the Council of Ministers within three months following the entry into force of the act amending the Forestry Act to transfer a piece of public state property to the State Forestry Agency to manage it.

In the opinion of the Constitutional Court, the National Assembly has the power to make it binding on the Council of Ministers to take steps and within a definite period of time to provide a building, which is public state property to a state institution for its activities. However, the Legislature shall not interfere with the Executive power's functions in organizing the upkeep of the state property. The National Assembly does not have a prerogative to pinpoint a specific piece of property as appropriate for the needs of the respective State institution. As the text challenged in fact prejudges the specific content of the acts that the Council of Ministers is to pass , it is insupportable interference with the Council of Ministers powers that Art . 106 of the Constitution grants .

Pursuant to Art. 106 of the Constitution the determination of the way in which the State Forestry Agency is to be provided with a suitable building, which is public state property, is a prerogative of the Council of Ministers. The Constitution gives the management and upkeep of state-owned property to the Council of Ministers as an arm of the Executive in the Republic of Bulgaria. Decision № 19 of 21 December 1 993 on Constitutional Case № 11 / 1993 gives the Constitutional Court's interpretation of Art. 106 of the Constitution, the part that gives the Council of Ministers the power to organize the management of State assets. The Constitutional Court assumed that this is a ,,typical management function” which is a set of innumerable diverse activities that are impossible to describe in detail. As the Constitutional Court notes, the Council of Ministers does not deal with these activities as ,,it is neither necessary nor is it possible to deal with all of them”. Therefore, the provision that reads that the Government shall organize the management of State assets, gives power to the Council of Ministers to take decisions that it considers to be the most appropriate.

In the understanding of the Constitutional Court, the National Assembly shall not usurp the Council of Ministers operational management functions in the upkeep of State assets. If this happens, the Constitution-established balance of powers is upset and powers that the Constitution gives to the Executive are usurped which compromises the principle of the separation of powers (Art. 8 of the Constitution). The passage by the National Assembly of § 92, para 2 in the Transitional and Concluding Provisions in the act amending the Forestry Act, outran the competence as defined in Art. 84 and Art. 85 of the Constitution and exercised prerogatives that Art. 106 of the Constitution vests in the Council of Ministers.

The generation of substantive conditions, in which the Constitution-established institutions function is a factor that conduces to the building and functioning of these institutions. Should these conditions change, the autonomy, representation and importance of the relevant institutions must be borne in mind. This is to be deduced from the Constitution-defined status of the institutions in question and is a requirement that can be justified by the position and competences that the Constitution assigns to each of these institutions. When a Council of Ministers decreeing act affects the substantive preconditions for the functioning of Constitution-established institutions and by doing so puts up substantive and practical impediments to their functioning, the Council of Ministers decreeing act conflicts with Art. 8 of the Constitution. The Constitutional Court noted in its Decision № 14 of 12.09.1995 on Constitutional Case № 23 / 1995 that it deems such acts should be issued ,,in consultation with the institutions concerned” in order to guarantee the functioning of those institutions and respect for those institutions as holders of the competence that the Constitution grants them.

The Constitution-established status of the institutions of the State can be infringed on not just by interference and subjugation that would constitute a straightforward violation of the principle of separation of powers but also by spoiling their prestige and dignity in a way that is not directly related to the performance of their functions. With consideration for those reasons related to the cited decision, the Constitutional Court ruled that whenever the Government's decreeing actions affect entities that relate to the needs of Constitution-established institutions other than the Government, such actions shall not remain entirely within the domain of the decision-taker's good judgment. Unilaterally issued administrative acts that enable the organization and upkeep of State-owned assets generate conditions that invite negligence for the Constitution-enshrined prestige of the other institutions of the State and lead to disregard for it. An immediate consequence is the emergence of possible difficulties and even the likelihood of practical impossibility for the institutions of the State to function. To prevent the occurrence of such consequences that are unacceptable in terms of the Constitution, such acts should be issued in consultation with the institutions concerned.

The usurpation of functions that the Constitution gives to the Council of Ministers by the National Assembly constitutes a breach of the principle of the separation of powers, of the principle of the state

committed to the rule of law and of the supremacy of the Constitution. It is anticonstitutional to pass an act that makes it binding on the Government to take a specific obligation and practically to take and give public State property as described in the said act. On its part, the Council of Ministers could not perform these actions if there is no consent on the part of Constitution-established bodies that are independent of the Executive and whose interests and Constitution-established status are affected. It goes beyond the powers of the National Assembly to determine the specific property to be given to the State Forestry Agency. If the Council of Ministers acted in compliance with the cited acts of the transfer of the said piece of property to the State Forestry Agency, it would have acted as an administration that is bound by a specific binding prescription which appears to be normative in form but not in substance inasmuch as the challenged text from the act contains a provision for the transfer of a specific piece of property.

Hence the rule on noncompliance with the Constitution of § 92, para 2 of the Transitional and Concluding Provisions of the act amending the Forestry Act challenged by the Prosecutor General of the Republic of Bulgaria.

Председател: Румен Янков