Resolution No. 8 of 22 November 2016 on Constitutional Case No. 17/2016
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the President of the Republic seeking a binding interpretation of Article 99, paragraph 7, first sentence of the Constitution, which provides: “In the cases under paragraphs 5 and 6, the President may not dissolve the National Assembly during the last three months of his or her term of office.” The applicant raises the following question: “During the last three months of his or her term of office, may the President of the Republic call new elections without having dissolved the National Assembly?”
Summary of the Court’s Reasoning
The provision whose interpretation is sought states that the President does not have the power to dissolve the National Assembly during the last three months of his or her term of office. Article 99, paragraph 7, first sentence of the Constitution is entirely clear, namely - where no agreement has been reached for the formation of a government, the President appoints a caretaker government pursuant to the second sentence of paragraph 7 of the Constitution. The interpretation of that second sentence has not been requested and does not fall within the subject matter of the present constitutional case. A comparison between the second and the first sentence of paragraph 7 of Article 99 of the Constitution outlines, within the context of the present case, what the President may and may not do during the last three months of his or her term. The President has the power to appoint a caretaker government but does not have the power to dissolve the National Assembly. The prohibition is unequivocal. The norm is mandatory. It provides an answer to the question raised by the President in the request.
For the Constitutional Court to provide a binding interpretation, a legal interest must be present. In the present case, such an interest is lacking, given the clarity of Article 99, paragraph 7, first sentence of the Constitution, which ensures a balance in the exercise of state power in a situation involving the resignation of the Council of Ministers, the inability to form a regular government due to the failure of the exploratory mandate, as well as the exercise of the President’s power to appoint a caretaker government and the actions of that government. The Constitution, in Article 99, paragraph 7, reflects the principle of separation and cooperation of state powers (Article 1, paragraph 1, and Article 8 of the Constitution). The Constitutional Court has repeatedly emphasized the existence of a legal interest as a necessary precondition for issuing a binding interpretation of constitutional provisions (see, for example, Ruling No. 4 of 14 August 2007 on Constitutional Case No. 9/2007).
The Constitutional Court is not an advisory body; it exercises its power of binding interpretation only where there is a substantiated interest. There is no constitutional problem, no conflicting interpretation, and no risk of inconsistent application of Article 99, paragraph 7, first sentence of the Constitution. In the absence of ambiguity or incompleteness in the legal regulation, and in the absence of divergent views or a legal dispute between state institutions, to undertake an abstract binding interpretation would exceed the Constitutional Court’s competence in this regard.
Grounds for the Ruling and Disposition
Pursuant to Article 19 of the Constitutional Court Act (the competence to rule on the admissibility of a request), the Constitutional Court dismisses the request of the President of the Republic of Bulgaria for a binding interpretation of Article 99, paragraph 7, first sentence of the Constitution.
The resolution was adopted with dissenting opinions by two judges and with a concurring opinion on the reasoning by one judge.