Decision No. 8 of 27 June 2017 on Constitutional Case No. 1/2017
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the Ombudsman of the Republic of Bulgaria. The subject matter of the case is the constitutionality of the provisions of §69 and §70 of the Transitional and Final Provisions of the Act Amending and Supplementing the Ministry of Interior Act (TFP AASMIA). The Ombudsman maintains that the contested provisions are unconstitutional, as they do not comply with paragraphs three and five of the Preamble to the Constitution and are contrary to Article 4, paragraphs 1 and 2 of the Constitution, according to which the Republic of Bulgaria is a state governed by the rule of law and guarantees the life, dignity and rights of the individual. In additional submissions, the Ombudsman argues that the unilateral restructuring of the legal status of employees of the Ministry of Interior substantially affects both the property and personal aspects of their lives and therefore contravenes Article 17 (right to property) and Article 32 (right to privacy) of the Constitution.
Summary of the Court’s Reasoning
The Constitutional Court holds that it falls within the discretion of the legislature to determine what categories of employees shall exist within the Ministry of Interior and under which legal regime, and subject to which statute, their status shall be regulated. When Parliament acts within the limits of its constitutionally defined competence, it may, through legislation, give expression to considerations of political and economic expediency, motivated by changed socio-economic conditions. Such expediency, in itself, is not subject to review for constitutionality.
In the present case, the legislative amendments are not disproportionate, since, with regard to employees whose legal relationships have been transformed, conditions are created for their equal treatment with all other persons employed under the Civil Servants Act and the Labour Code. The contested provisions lead to the transformation of existing legal relationships from those governed by the Ministry of Interior Act into relationships governed either by the Civil Servants Act or by the Labour Code. They have immediate effect and affect, prospectively, the rights and obligations of the employees concerned. The rights acquired by these employees under their existing legal relationships under the Ministry of Interior Act are fully preserved.
The Court finds that the right under Article 48, paragraph 3 of the Constitution - namely, the right of every citizen freely to choose their profession and place of work - has not been infringed. It depends solely on the will of the employees whose legal relationships have been transformed whether they wish to be appointed as civil servants under the Civil Servants Act or to conclude employment contracts for the performance of the same work under a different type of legal relationship. Conversely, for the Ministry of Interior, acting as the appointing authority or employer, the contested provisions create an obligation to appoint or to conclude employment contracts with all employees under specific, facilitated conditions.
From the overall content of the contested provisions, it is apparent that the legislature has sought to preserve the acquired “social package” and to regulate the consequences arising from the establishment of legal relationships under the Civil Servants Act and the Labour Code for the civil servants of the Ministry of the Interior falling within the scope of the amendments, in accordance with the principle of substantive justice as an element of the rule-of-law state.
The contested provisions do not affect the pensions already acquired by employees whose legal relationships have been transformed; they affect only, for the future, the entitlement to special pensions under a more favourable regime. Nor is the right to paid annual leave of those employees affected.
The Court does not share the Ombudsman’s additional arguments alleging a violation of the right to property under Article 17 of the Constitution in respect of the employees covered by the contested provisions.
The Court finds that the contested provisions do not affect the acquired rights of the employees, nor do they infringe the rights of the individual, their dignity and security as a supreme constitutional principle. The contested provisions affect the professional sphere of two groups of employees without altering the nature of their activities or their affiliation with the Ministry of Interior; therefore, they do not contravene the principle derived from Article 4, paragraph 2 of the Constitution.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (the competence to rule on requests for a declaration of unconstitutionality of laws), the Constitutional Court rejects the request for a declaration of unconstitutionality of §69 and §70 of the Transitional and Final Provisions of the Act Amending and Supplementing the Ministry of Interior Act.
The decision was adopted with one dissenting opinion.