Resolution No. 4 of 29 July 2016 on Constitutional Case No. 10/2016
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by 48 Members of Parliament of the 43rd National Assembly, raising three separate claims:
First, the applicants seek a declaration of unconstitutionality of the Decision of the 43rd National Assembly of the Republic of Bulgaria of 15 July 2016 adopting Procedural Rules governing the conditions and procedure for nominating candidates for Chairperson of the Financial Supervision Commission (FSC), the submission and public disclosure of documents, the hearing of candidates before the Committee on Budget and Finance, and the procedure for election by the National Assembly (hereinafter, for brevity, the “Procedural Rules”). They contend that the Procedural Rules, as adopted by that decision of the National Assembly, are contrary to Article 73, in conjunction with Article 84, item 8 of the Constitution of the Republic of Bulgaria, as well as to Article 89 of the Rules of Organization and Procedure of the National Assembly, setting out arguments for unconstitutionality in that regard.
Second, the Members of Parliament request a declaration of unconstitutionality of Article 5, paragraph 4 of the Financial Supervision Commission Act (FSCA), arguing that the provision is inconsistent with the principles of legality and justice enshrined in Article 4, in conjunction with the Preamble of the Constitution of the Republic of Bulgaria.
Third, the applicants request the Constitutional Court to rule on the binding nature of the provision of Article 89 of the Rules of Organization and Procedure of the National Assembly and on the consequences of its non-compliance by the National Assembly, having regard to the stability of the act electing the respective state bodies, including the Chairperson of the Financial Supervision Commission, and the subsequent lawfulness of their acts adopted where irregularities related to their election have occurred.
Summary of the Court’s Reasoning
The decision of the National Assembly on election under Article 84, item 8 of the Constitution constitutes an individual legal act by which a constitutional power of the National Assembly is exercised. Undoubtedly, it is subject to review for constitutionality by the Constitutional Court. The adoption of this act is preceded by a procedure conducted under conditions and in accordance with rules adopted by the National Assembly. These procedural rules do not possess independent legal significance. They have limited, one-off internal effect, notwithstanding that they are formally framed as decisions. They may be reconsidered and amended by the National Assembly at any time. The constitutive act - such as, in this case, the act electing the Chairperson of the Financial Supervision Commission - neither is nor can be constrained in its effects and consequences by the acts preceding its adoption. Irregularities in the procedure and deficiencies in the preparatory acts, in themselves, are not relevant to the constitutionality of the decisive act of election.
In the present case, the Constitutional Court holds that the purpose and function of the procedural rules adopted by the contested decision is to establish the conditions and procedure for the creation of a specific legal act - namely, the election of the Chairperson of the Financial Supervision Commission - and they cannot be assessed independently and in isolation from the final act, i.e. the decision on the election of the Chairperson of the Financial Supervision Commission.
The Constitution further precludes consideration on the merits of the request by the Members of Parliament for a ruling on the binding nature of Article 89 of the Rules of Organization and Procedure of the National Assembly and on the consequences of its non-compliance by the National Assembly, with regard to the stability of acts electing state bodies, including the Chairperson of the Financial Supervision Commission. There is no constitutional provision conferring such a competence upon the Constitutional Court. The subject matter of the request falls outside the scope of the expressly and exhaustively enumerated grounds under Article 149, paragraph 1 of the Constitution of the Republic of Bulgaria; accordingly, it must be dismissed as inadmissible, and the proceedings in this part must be terminated.
Grounds for the Ruling and Disposition
Pursuant to Article 19 of the Constitutional Court Act (the Court rules on the admissibility of requests), the Constitutional Court dismisses the request in the part seeking a declaration of unconstitutionality of the Decision of the 43rd National Assembly of the Republic of Bulgaria of 15 July 2016 adopting Procedural Rules governing the conditions and procedure for nominating candidates for Chairperson of the Financial Supervision Commission, the submission and public disclosure of documents, the hearing of candidates before the Committee on Budget and Finance, and the procedure for election by the National Assembly (promulgated in the State Gazette, No. 55 of 19 July 2016), as well as the request for a ruling on the binding nature of the provision of Article 89 of the Rules of Organization and Procedure of the National Assembly (promulgated in the State Gazette, No. 97/2014, last amended SG No. 86/2015) and the consequences of its non-compliance by the National Assembly, and terminates the proceedings in this part of the case.