Resolution No. 2 of 12 April 2016 on Constitutional Case No. 12/2015
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the Ombudsman of the Republic of Bulgaria, pursuant to Article 150, paragraph 3 of the Constitution, for a declaration of unconstitutionality of the Excise Duties and Tax Warehouses Act (promulgated in State Gazette, issue No. 91 of 15 November 2005; last amended, issue No. 95 of 8 December 2015), in the part concerning the activities carried out by specialised small distillation facilities (SSDF).
Summary of the Court’s Reasoning
Compared with the other entities referred to in Article 150, paragraph 1 of the Constitution, which possess general competence to initiate proceedings before the Constitutional Court, the powers of the Ombudsman under the constitutional provision of Article 150, paragraph 3 are limited to the possibility of submitting a request only under Article 149, paragraph 1, item 2 of the Constitution - for the establishment of the unconstitutionality of a law. Other acts of the National Assembly, as well as acts of the President, are excluded from the scope of review that may be initiated by the Ombudsman (see also Ruling No. 1 of 9 February 2010 on Constitutional Case No. 19/2009). Article 150, paragraph 3 also introduces an additional limitation, namely that the subject of constitutional review may only be a law that infringes constitutional provisions concerning the regulation and protection of the rights and freedoms of citizens.
In all other cases, the Ombudsman, acting as a defender of the rights and freedoms of citizens, may notify the bodies referred to in Article 150, paragraph 1 of the Constitution, which assess whether the grounds under Article 149, paragraph 1 of the Constitution are present and decide whether to refer the matter to the Constitutional Court.
The purpose of the contested regulatory regime is to establish conditions for supervision under which producers and traders of a particular product - in this case, rakia - are placed under equal legal conditions in relation to the tax and customs authorities. Since the contested notification regime cannot be regarded as affecting the rights and freedoms of citizens, the Constitutional Court finds that, in this respect as well, the Ombudsman’s request is inadmissible. Furthermore, the contested provisions concern not the citizen, but another category of legal subject - the sole trader - whose activities and the related legal relations with the tax and customs authorities cannot be the subject of direct protection under Article 150, paragraph 3 of the Constitution.
Grounds for the Ruling and Disposition
Pursuant to Article 19 of the Constitutional Court Act (the Court rules on the admissibility of requests) and Article 26, paragraph 1 of the Rules of Procedure of the Constitutional Court (where it finds that a request is inadmissible, the Constitutional Court shall, by a reasoned ruling, dismiss the request and terminate the proceedings; in such cases the request shall be returned to the applicant), the Court dismisses the request submitted by the Ombudsman of the Republic of Bulgaria for a declaration of unconstitutionality of Article 4, item 8 and Article 60, paragraphs 5 and 6 of the Excise Duties and Tax Warehouses Act and terminates the proceedings.
The resolution was adopted with a concurring opinion on the reasoning by one judge.