Resolution No.2 of 31 October 2017 on Constitutional Case No. 7/2017
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the President of the Republic of Bulgaria for the issuance of a binding interpretation of the provisions of Article 5, paragraph 4; Article 4, paragraph 3; Article 85, paragraph 1, item 9; Article 19, paragraph 2; and Article 20 of the Constitution, in the context of mixed international agreements of the European Union, such as the Comprehensive Economic and Trade Agreement (the Agreement).
The request raises questions concerning the conditions under which mixed agreements become part of domestic law, their provisional application, the scope of Article 85, paragraph 1, item 9 of the Constitution, as well as the permissible derogations from the principles of free economic initiative and equality of economic operators. The applicant substantiates his legal interest with the need for clarity regarding the constitutional implications of the participation of the Republic of Bulgaria in “new-generation” international agreements concluded by the European Union and its Member States jointly with third countries.
Summary of the Court’s Reasoning
The Court takes into account the development of the European Union’s common commercial and investment policy, as well as the significance of “new-generation” international trade agreements for the fulfillment of the constitutional commitment of the Republic of Bulgaria under Article 4, paragraph 3 of the Constitution to participate in the construction and development of the European Union. In this sense, the Constitutional Court holds that there exists a legal interest in the issuance of a binding interpretation of the provisions of Article 5, paragraph 4, Article 4, paragraph 3, and Article 85, paragraph 1, item 9 of the Constitution.
With regard to the questions raised under item 4 of the request, the Court considers them inadmissible for abstract interpretation, as they concern relationships which, by their nature, require a specific assessment of proportionality. The interpretation of principles related to the equality of economic operators and the permissible derogations therefrom cannot be carried out outside a specific factual and legal context, nor outside the framework of Article 4, paragraph 1 of the Constitution, the interpretation of which has not been requested.
Grounds for the Ruling and Disposition
Pursuant to Article 19, paragraph 1 of the Constitutional Court Act (the Court rules on the admissibility of requests by a ruling), the Constitutional Court hereby: admits for consideration on the merits the request of the President of the Republic of Bulgaria for the issuance of a binding interpretation of Article 5, paragraph 4, Article 4, paragraph 3, and Article 85, paragraph 1, item 9 of the Constitution with respect to the interpretative questions set out in items 1 to 3; dismisses the request in the part under item 4 as inadmissible.
The resolution is signed with dissenting opinions of five judges in the part by which the request under item 4 is dismissed, with dissenting opinions of five judges in the part by which the questions are admitted, and with a concurring opinion of one judge.