Decision No. 10 of 6 July 2017 on Constitutional Case No. 10/2016
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by a group of Members of Parliament from the 43rd National Assembly. The subject matter of the case is the constitutionality of the provision of Article 5, paragraph 4 of the Financial Supervision Commission Act (promulgated in State Gazette, issue No. 8 of 28 January 2003; last amended and supplemented, issue No. 76 of 30 September 2016), according to which irregularities in the election of a member of the Commission do not vitiate its decisions. The request argues, as its main ground for unconstitutionality, that the provision is contrary to Article 4, paragraph 1 of the Constitution (the rule of law).
Summary of the Court’s Reasoning
The provision of Article 5, paragraph 4 of the Financial Supervision Commission Act, which is the subject of the present constitutional review, undoubtedly restricts the right of persons affected by the issued acts to obtain effective judicial protection when challenging them before a court - a right grounded in Article 120, paragraph 2 (citizens and legal persons may challenge all administrative acts that affect them, except those expressly excluded by law) in conjunction with Article 56 (right to defence) of the Constitution. This is so because it deprives them of the possibility to invoke the nullity of the administrative act on the grounds of illegitimacy (lack of competence) of the commission that issued it. The contested provision does not exclude but, on the contrary, allows the possibility that all members of the administrative body may have acquired their authority in violation of the law or the rules governing their election by the National Assembly, without this affecting the capacity of the act issued to produce legal effects. Its scope is so broad that it even encompasses the possibility that the majority of the members of the Financial Supervision Commission may have been unlawfully elected and yet the decisions adopted are to be regarded as valid, even when subject to judicial review.
The law cannot go to either extreme - neither to provide that any breach of the rules governing the election of a member of an administrative body always vitiates its acts, nor that every such breach, regardless of its nature, is irrelevant to the legal validity of the respective act. In a state governed by the rule of law, the specific assessment of whether, and to what extent, a defect in the election of a member of a collegiate body affects the act issued by it may be carried out only by a court. Therefore, insofar as the contested provision excludes the possibility of such judicial assessment, it is contrary to Article 4, paragraph 1 of the Constitution.
In the case of Article 5, paragraph 4 of the Financial Supervision Commission Act, judicial review is not formally excluded, but in practice it is rendered meaningless, as the court is deprived of the possibility to assess whether a defect in the election of a member of the collegiate body has affected the validity of the act issued by it. For this reason, the Constitutional Court holds that the contested provision is contrary to Article 120, paragraph 2 of the Constitution.
By the provision subject to constitutional review, the legislature not only allows itself to violate the rules governing the election, but also disregards its own unlawful acts, without distinguishing whether such violations are substantial or insubstantial, whether they are contrary to the Constitution and the law, or merely to the Rules of Procedure of the National Assembly and to ad hoc rules adopted for the specific election.
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 declares unconstitutional the provision of Article 5, paragraph 4 of the Financial Supervision Commission Act (promulgated in State Gazette, issue No. 8 of 28 January 2003; last amended and supplemented, issue No. 76 of 30 September 2016).