Type of act
Decision
Date
19-04-2007 year
To the case

Decision №6

София, 19 април 2007г.

Конституционният съд в състав:

Chairman:

Румен Янков

Members:

Васил Гоцев
Евгени Танчев
Людмил Нейков
Димитър Токушев
Лазар Груев
Благовест Пунев
Емилия Друмева
Пламен Киров
Владислав Славов
Красен Стойчев

DECISION No 6 OF 19 APRIL 2007 ON CONSTITUTIONAL CASE No 3/2007

The case was initiated by 51 Members of the 40 th National Assembly who challenged the constitutionality of § 100, 101, 102, 103 and 104 of the Transitional and Concluding Provisions of the 2007 National Budget Act of the Republic of Bulgaria ( DV , No 108 / 2006).

The case was heard on the grounds of Art. 149, para 1, subpara 2 of the Constitution. The texts in question amend the following existing pieces of legislation: § 100 – the Excises and Tax Warehouses Act; § 101 – the Value Added Tax Act; § 102 – the Money Laundering Act; § 103 – the Administrative Breaches and Sanctions Act; and § 104 – the Accountancy Act. The Members of Parliament claimed that § 100 - 104 of the Transitional and Concluding Provisions of the 2007 National Budget Act defy Art. 87, paras 1 and 2 of the Constitution of the Republic of Bulgaria for these paragraphs had not been introduced by MPs or by the Council of Ministers as the Constitution prescribes. Further, the floor voting procedure did not conform to Art. 4, para 1 and Art. 88, para 1 of the Constitution for the texts in question had been voted only on second reading in disregard to the mandatory first reading as the Constitution prescribes. Also, the MPs alleged that in defiance to Art. 4, para 1 of the Constitution reading that the Republic of Bulgaria shall be a s tate governed by the rule of law and shall be governed by the Constitution and the laws of the country the National Assembly had ignored Art. 10 and Art. 122 of the Normative Acts Law.

The challenge of the constitutionality of § 100 - 104 the Transitional and Concluding Provisions of the 2007 National Budget Act of the Republic of Bulgaria did not receive the majority required. As neither view was supported by a majority vote, the Court could not formulate a commonly agreed stand .

I. In the view of Justices Lazar Grouev, Emilia Droumeva, Evgeni Tanchev, Dimiter Tokoushev, Plamen Kirov and Krassen Stoichev the challenged texts do not contravene Art. 87, paras 1 and 2, Art. 88, para 1 and Art. 4, para 1 of the Constitution of the Republic of Bulgaria, therefore the challenge should be dismissed with the following arguments:

А. While the challenge mentions the misconduct voting procedure, it does not dispute the texts themselves. The prescription of Art. 88, para 1 of the Constitution reading that b ills shall be read and voted upon twice, during different sessions , corroborates the conclusion that the Constitution provision had been observed inasmuch as the ,,two readings” are the two crucial phases of the legislating process which is the floor discussion and voting in Parliament. However, Art. 79 of the Constitution provides that apart from sessions, the standing parliamentary committees shall discuss and vote bills. Before being introduced for its first reading in the floor a bill is discussed by the committees to which it has been assigned by the Speaker of Parliament. When the bill is approved on first floor reading, ,,as a whole and in principle”, there follows a phase of propositions in writing that the MPs may have on the bill. Such propositions, if any, are sent to the rapporteur committee, which incorporates them in its report. The Constitution does not specifically deal with this phase which is treated in Art. 70, para 2, subpara 1 and Art. 71, para 2 of the National Assembly's Standing Orders. Inasmuch as the debate proceeds within the standing rappoteur committee and the mover of the bill does not participate in this phase, there is no way in which he can make propositions on his own bill. Therefore, the accusation that the challenged texts that were approved on the basis of propositions after the first reading had not been initiated by the Council of Ministers is untenable.

The bill was reported to the Budget and Finance Committee and approved by the Members of Parliament who are members of the Committee and who attended the session. The Committee's Chairman proposed that § 100 - 104 be incorporated into the bill and the proposition received the majority of votes. Therefore the allegation that the adoption of § 100 - 104 is noncompliant with Art. 87, para 1 of the Constitution is untenable. The Chairman of the Budget and Finance Committee is a Member of Parliament and therefore free to propose amendments to the texts of a bill that has been approved on first reading. If the rest of the MPs who are members of the Committee agree with the proposed amendments, they must be incorporated into the report on the bill as amendments proposed by the Committee.

B . The MPs claimed that there had been a violation of the mandatory bill voting procedure as defined in Art. 88, para 1 of the Constitution, viz. that b ills shall be read and voted upon twice, during different sessions.

Art. 71, para 2 of the National Assembly's Standing Orders reads that f or the purposes of the second vote only proposals brought forward by Members in writing shall be considered, together with any proposals by the main Rapporteur Committee included in its report . Since the legislating process is subject to the rule of the two floor votes as crucial phases in the adoption of any bill, then the laws enacted will contain, by definition, texts that will be discussed and adopted only with one vote on the second floor reading for they have been proposed between the first and second reading of the bill. This rule does not contradict the Constitution's Art. 88, para 1 of the two votes as the vote of the propositions made between the first and the second reading is part of the second reading while the propositions are elements of the legislating process after the first reading. Any move in the legislating process is conditioned by the preceding one : there will not be a second reading if the phase of proposed amendments , in writing, to the bill, by the MPs, is skipped.

The amendments proposed by the standing Parliamentary Budget and Finance Committee were discussed, voted and approved by the session of the second reading of the 2007 Bulgarian National Budget Act. The MPs discussed the proposed amendments and proposed further changes. Then all propositions were put to the vote in the order of Art. 56, para 1 of the National Assembly's Standing Orders: first, the MPs voted the propositions to reject; next, they voted the texts which were approved by a majority vote. Therefore, the allegation that the MPs did not have the chance to propose amendments to the challenged texts is untenable. The MPs have expressed their opinion on the motion both at the standing committee's session which approved the bill motion report and at the floor session during the vote for the second reading.

The texts challenged do not clash with the objectives and scope of the bill that was approved on first reading but rather add to the general sprit and principles that are underlying it. The standing committee's proposed amendments are designed to bring revenues to the budget as planned and in general to guarantee the budget implementation.

In view of the above, the claimants have no reason to insist that the said paragraphs were adopted on second reading only. The whole act of which the challenged texts are part was voted twice during different sessions in keeping with Art. 88, para 1 of the Constitution of the Republic of Bulgaria.

C . The MPs claim that the challenged § 100 - 104 of the Transitional and Concluding Provisions of the 2007 National Budget Act of the Republic of Bulgaria disagree with Art. 4, para 1 of the Constitution which reads that the Republic of Bulgaria shall be a s tate governed by the rule of law and that it shall be governed by the Constitution and the laws of the country. However , the provisions challenged have been approved by the National Assembly in compliance with Art. 87, paras 1 and 2 and Art. 88, para 1 of the Constitution. Therefore the claim that Constitution provisions have been disrespected and which led to a collision with the fundamental norm of Art. 4, para 1 of the Constitution is not seen as tenable.

D . The MPs expressed the view that the voting of § 100 – 104 of the Transitional and Concluding Provisions of the 2007 National Budget Act of the Republic of Bulgaria was not what Art. 10 and Art. 11 of the Normative Acts Law prescribe. The Constitutional Court checks for compliance with the Constitution with the sole purpose to detect a breach of the Constitution provisions. The Constitutional Court does not check the compliance of one piece of legislation with other pieces of legislation for if it does, it goes beyond the competence that is laid down in Art. 149, para 1 of the Constitution of the Republic of Bulgaria ( Decision No 28 of 1998 on Constitutional Case No 26 / 1998 ; Decision No 1 of 1999 on Constitutional Case No 34 / 1998 ; and Decision No 4 of 2002 on Constitutional Case No 14 / 2002).

With the above premises, it is to be concluded that the voting of § 100 - 104 of the Transitional and Concluding Provisions of the 2007 National Budget Act of the Republic of Bulgaria was not inobservant of Art. 87, paras 1 and 2, Art. 88, para 1 and Art. 4, para 1 of the Constitution.

II. The Justices Roumen Yankov , Vassil Gotsev , Lyudmil Neikov , Vladislav Slavov and Blagovest Pounev found that the challenged texts constitute a violation of Art . 88, para 1, sentence one of the Constitution.

The 2007 National Budget Bill that the cabinet submitted to Parliament did not contain the amendments of § 100 – 104 . The first floor voting of the bill took place on 16 November 2006. Following a proposition from the Chairman of the Budget and Finance Committee, the texts challenged were first put in the Committee ' s report on the Council of Ministers bill on 14 December 2006 as part of the report for the second voting on 19 December 2006. Evidently , the texts have been first proposed by the Committee between the first and second reading of the bill. While these texts do not essentially amend the National Budget Act, they make changes in five other pieces of legislation and the changes in the Value Added Tax Act comprise over fifty new texts.

While the short provision of Art. 88, para 1 of the Constitution prescribes that b ills shall be read and voted upon twice, during different sessions , it seeks to ensure a possibility for debate, to make possible interpretation of the proposed draft and to eliminate omissions and mistakes in a legal text that has already been approved. Such an assessment cannot be made if the proposition to incorporate texts that were not in the initial draft is made after the first voting.

While the Constitution does not preclude changes in the bills between the first and second voting, it calls to have such changes in legal texts that have already been discussed and adopted, in principle though and with the first voting. New texts that are incorporated for the first time in the bill after the first reading are in fact discussed and adopted by a single ballot (the second voting). In the case treated here § 100 - 104 are propositions that fall outside the scope of the bill as approved by the first voting. They pertain to changes in other pieces of legislation which, even if they generate revenue for the 2007 budget, have significance that goes far beyond that end.

In view of the above and on the basis of Art. 149, para 1, subpara 2 and Art. 151 of the Constitution the Court dismissed the challenge of the 51 Members of the 40 th National Assembly of the constitutionality of paragraphs 100, 101, 102, 103 and 104 of the Transitional and Concluding Provisions of the 2007 National Budget Act of the Republic of Bulgaria ( DV , No 108 / 2006).


Председател: Румен Янков