Decision No. 7 of 17 April 2018 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 seeking a binding interpretative ruling on 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, within the context outlined by the applicant and through the specific interpretative questions raised.
Following clarification by the applicant at the request of the judge rapporteur, the operative part of the request reads as follows:
“I request that the Constitutional Court provide 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 of the Republic of Bulgaria concerning mixed international agreements of the European Union, such as CETA, by answering the following questions:
1. Under what conditions do mixed agreements concluded jointly by the European Union and the Member States with a third state become part of the domestic law of the Republic of Bulgaria and acquire precedence over conflicting domestic legislation?
2. Does the provisional application provided for in mixed agreements depend on compliance with the requirements of Article 5, paragraph 4 of the Constitution?
3. How should Article 85, paragraph 1, item 9 of the Constitution be interpreted in view of the following:
3.1. Does Article 85, paragraph 1, item 9 of the Constitution apply to mixed agreements concluded jointly by the European Union and the Member States with a third state?
3.2. How should the phrase ‘powers arising from this Constitution,’ used in Article 85, paragraph 1, item 9 of the Constitution, be understood - as referring only to powers expressly provided for in the Constitution, or also to powers regulated by the Constitution and by statutes?
3.3. Does Article 85, paragraph 1, item 9 of the Constitution apply to mixed agreements providing for the establishment of institutions in which the European Union participates but the Member States do not participate, provided that the competence of such institutions includes powers deriving from the Constitution?
4. How should the provisions of Article 19, paragraph 2; Article 20; and Article 5, paragraph 4 of the Constitution, and the relationship between them, be interpreted in view of the following:
4.1. For the protection of which constitutional values may derogations from Article 19, paragraph 2 of the Constitution be permitted?
4.2. Are exceptions to the principle of equality of economic operators in the conduct of economic activity permissible, and under what conditions, in order to achieve balanced development of particular regions within the territory of the Republic of Bulgaria?
4.3. Within what limits are derogations from the principle enshrined in Article 19, paragraph 2 of the Constitution permissible where precedence is accorded to an international treaty pursuant to Article 5, paragraph 4 of the Constitution?”
By its admissibility ruling, the Constitutional Court decided to examine on the merits the President’s request for a binding interpretative ruling insofar as it concerns the interpretative questions set out in items 1 - 3, and dismissed the request with respect to the interpretative questions contained in item 4.
As admitted by the Constitutional Court, the President’s request seeks a binding interpretation of Article 5, paragraph 4; Article 4, paragraph 3; and Article 85, paragraph 1, item 9 of the Constitution in relation to mixed agreements, such as the Comprehensive Economic and Trade Agreement between the European Union and its Member States, of the one part, and Canada, of the other part (hereinafter referred to for brevity as “CETA” - Comprehensive Economic and Trade Agreement), in connection with the interpretative questions set out above. The request is motivated by constitutional-law issues that have arisen concerning the manner in which such agreements are incorporated into the national legal order, their legal effect, supremacy, and provisional application, as well as the applicability of the special ratification regime under Article 85, paragraph 1, item 9 of the Constitution.
Summary of the Court’s Reasoning
The Constitutional Court undertakes a systematic and teleological interpretation of the relevant constitutional provisions in the light of European Union law, including the founding Treaties and the case-law of the Court of Justice of the European Union. The Court proceeds from the understanding that the European Union constitutes an autonomous and self-contained legal order, integrated into the national legal systems of the Member States and characterised by the principles of primacy, direct effect, and universal applicability.
With regard to mixed international agreements, the Court finds that their nature is determined by the division of competences between the European Union and the Member States. Such agreements contain provisions falling both within the exclusive competence of the Union and within the retained or shared competences of the Member States, which is why they are concluded jointly by the European Union and the Member States. The Constitutional Court draws a clear distinction between the effect of such agreements in the part that falls within the competence of the EU and in the part that affects national competence. The provisions falling within the powers of the Union become part of EU law and enjoy primacy over national law not by virtue of Article 5, paragraph 4 of the Constitution, but by operation of the principle of primacy of EU law. By contrast, provisions falling within the competence of the Republic of Bulgaria acquire effect and primacy within the domestic legal order only after the requirements of Article 5, paragraph 4 of the Constitution have been fulfilled (“International treaties ratified in accordance with the constitutional procedure, promulgated, and having entered into force for the Republic of Bulgaria, shall form part of the domestic law of the State. They shall take precedence over any conflicting provisions of domestic legislation.”).
With regard to the provisional application of mixed agreements, the Court holds that such application concerns only those provisions falling within the exclusive competence of the European Union and is carried out on the basis of acts adopted by the institutions of the Union. Accordingly, provisional application does not depend on compliance with the requirements of Article 5, paragraph 4 of the Constitution.
The Court also analyses the relationship between Article 4, paragraph 3 and Article 85, paragraph 1, item 9 of the Constitution, emphasising that the latter provision is intended for international treaties effecting a transfer of powers from the Bulgarian State to the European Union, such as those which arise upon accession to the Union or upon revision of the Founding Treaties. Mixed trade agreements, such as CETA, do not confer new powers upon the European Union, but are concluded within the framework of competences already conferred and therefore do not fall within the scope of Article 85, paragraph 1, item 9 of the Constitution.
Pursuant to Article 25, paragraph 2 of the Rules of Procedure of the Constitutional Court, the Court may rule on the admissibility of a request at any stage of the constitutional proceedings.
In accordance with its conclusion regarding interpretative question No. 3.1, the Constitutional Court finds that interpretative questions Nos. 3.2 and 3.3 bear no relevance to mixed (trade) agreements such as CETA, in the context of which the interpretation of the specified constitutional provisions was sought. […] The Court therefore holds that there are no grounds for exercising its jurisdiction under Article 149, paragraph 1, item 1 of the Constitution in relation to those questions; accordingly, the request in respect of questions Nos. 3.2 and 3.3 is inadmissible, and the proceedings in that part of the case must be terminated.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 1 of the Constitution (the competence to provide binding interpretations of the Constitution), the Constitutional Court holds as follows:
1. In response to interpretative question No. 1:
The provisions of mixed agreements concluded jointly by the European Union and the Member States with a third party, such as CETA, insofar as they concern powers of the European Union, become part of EU law from the moment they enter into force and, on that basis, enjoy primacy over conflicting provisions of domestic law.
The provisions of such agreements falling within the competence of the Republic of Bulgaria acquire primacy over conflicting provisions of domestic law subject to the requirements of Article 5, paragraph 4 of the Constitution.
2. In response to interpretative question No. 2:
The provisional application of provisions of mixed agreements falling within the competence of the European Union does not depend on compliance with the requirements of Article 5, paragraph 4 of the Constitution.
3. In response to interpretative question No. 3.1:
Article 85, paragraph 1, item 9 of the Constitution does not apply to the mixed trade agreements referred to in point 1.
4. The Court dismisses the request in respect of interpretative questions Nos. 3.2 and 3.3 and terminates the proceedings in that part of the case.
The decision was adopted with dissenting opinions by four judges.