Decision No. 8 of 23 April 2018 on Constitutional Case No. 13/2017
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the Plenum of the Supreme Administrative Court (SAC). The subject matter of the case concerns the issuance of a binding interpretative ruling on Article 125, paragraph 2 of the Constitution in connection with the following question: “Does Article 125, paragraph 2 of the Constitution of the Republic of Bulgaria require the Supreme Administrative Court to adjudicate disputes concerning the legality of acts of the Council of Ministers and of ministers as a court of first instance?” In the request, the judges of the Supreme Administrative Court argue, as their principal submission, that the constitutional provision whose interpretation is sought is unclear and ambiguous. They substantiate both the legal issue and their legal interest in the requested interpretation by reference to the functions of the Supreme Administrative Court under Article 125, paragraph 1 of the Constitution to exercise supreme judicial supervision over the precise and uniform application of laws in administrative justice through its powers to act as a cassation instance and to adopt interpretative decisions, as well as its functions under Article 125, paragraph 2 to adjudicate disputes concerning the legality of acts of the Council of Ministers and of ministers, along with other acts specified by law.
Summary of the Court’s Reasoning
The Constitutional Court finds that Article 125, paragraph 2, first limb of the Constitution does not expressly specify the judicial instance in which the Supreme Administrative Court acts in the relevant hypothesis, and that an ambiguity therefore exists which must be resolved through constitutional interpretation.
According to the Court, the provision subject to interpretation was not created by the constituent power to serve as a substantive legal basis for the judicial reviewability of acts of the Council of Ministers and of ministers, but rather to achieve other objectives. First, it is intended to emphasize unequivocally that, in a state governed by the rule of law, acts of the Council of Ministers and of ministers are subject to direct judicial review as to their legality. Second, the provision demonstrates that the so-called “enumerative approach” to determining which acts of the Council of Ministers and ministers are subject to judicial review has been abandoned, and that a general clause permitting challenges against such acts has been adopted. Furthermore, the provision identifies the Supreme Administrative Court as the competent court to rule on the legality of the aforementioned acts (at the time the Constitution was adopted, administrative disputes were adjudicated by the ordinary courts and by a division within the Supreme Court). Last, but by no means least, the rule contained in Article 125, paragraph 2, first limb of the Constitution was entrenched at constitutional level in order to guarantee its permanence and to prevent attempts by the legislature, on grounds of legislative expediency, to exclude some or all acts of the Council of Ministers and of ministers from the jurisdiction of the Supreme Administrative Court - a possibility that is, in principle, excluded under Article 125, paragraph 2, first limb of the Constitution, unlike the second limb of that provision.
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 that Article 125, paragraph 2, first limb of the Constitution requires the Supreme Administrative Court to adjudicate, as a court of first instance, disputes concerning the legality of administrative acts issued by the Council of Ministers and by ministers in the exercise of their constitutionally assigned functions and powers relating to the direction and implementation of state governance.