Decision No. 11 of 3 July 2018 on Constitutional Case No. 8/2018
Referring Authority and Subject Matter of the Case
The constitutional case was initiated upon a request submitted by the Ombudsman of the Republic of Bulgaria pursuant to Article 150, paragraph 3 of the Constitution. The request is seeking a declaration of unconstitutionality of the phrase “which constitutes an individual administrative act” in Article 36a, paragraph 2 of the Energy Act (EE) (promulgated in State Gazette, issue No. 107/2003; new, State Gazette, issue No. 74/2006; amended, State Gazette, issue No. 54/2012; last amended, State Gazette, issue No. 38 of 8 May 2018, effective as of 8 May 2018).
According to the applicant, the challenged statutory qualification is contrary to Article 4, paragraph 1 of the Constitution (the principle of the rule of law), Article 56 (the right to defence), and Article 120, paragraph 2 (the right to judicial review of administrative acts), insofar as it restricts the ability of electricity consumers to protect their rights and lawful interests. The request advances the argument that the decision under Article 36a, paragraph 2 of the Energy Act directly and immediately affects the rights and lawful interests of an indefinite number of citizens as consumers of electricity and should therefore be classified as a general administrative act.
Summary of the Court’s Reasoning
The Constitutional Court first delineates the limits of its review arising from the Ombudsman’s powers under Article 150, paragraph 3 of the Constitution: constitutional review may be exercised only insofar as a violation of the rights and freedoms of citizens is alleged and established. The Court emphasises that where the Constitution itself narrows the possibilities for a particular applicant validly to seize the Court, its ex officio review cannot exceed those limits. A contrary approach would expand the powers of the referring authority beyond the restrictions expressly imposed by the Constitution and would unjustifiably place it on an equal footing with those constitutional actors entitled to refer matters to the Court without any such limitations as to the permissible grounds.
On the merits, the Court examines the nature of the decision under Article 36a, paragraph 2 of the Energy Act, by which the Energy and Water Regulatory Commission determines maximum prices. The Court underlines that the decision operates within the framework of contracts under general terms concluded between licensed energy enterprises and consumers. The maximum price established in this manner constitutes a restriction preventing the supplier from offering a price higher than that determined by the Commission’s decision under Article 36a, paragraph 2 of the Energy Act, and that restriction arises prior to the making of an offer to the consumer. In view of this, the Court does not accept the argument that the Commission’s decision - an administrative act which the Commission is duly empowered to issue - could affect the rights of an unlimited number of persons. According to the Court, the rights and interests that may be directly affected are solely those of the individually identified licensed energy enterprises seeking approval of new prices or amendments to existing ones.
Regardless of the foregoing, the Court, referring to Decision No. 21 of 26 October 1995 on Constitutional Case No. 18/1995, emphasises that “ [t]he statutory or doctrinal classification of an administrative act as normative, individual or general, internal or external cannot serve as a constitutional criterion and does not ex constitutione exclude such an act from the scope of the acts subject to judicial review,” and that “[t]he assessment whether an administrative act infringes or threatens the rights or lawful interests of citizens and/or legal persons may be carried out only by the competent court, after clarifying the specific circumstances and interpreting the specific administrative act.”
On the basis of all its arguments, the Constitutional Court concludes that the mere classification of the decision as an “individual administrative act” does not infringe the right to defence or the right to judicial review guaranteed by Article 56 and Article 120, paragraph 2 of the Constitution, nor does it contradict the principle of the rule of law under Article 4, paragraph 1. The Court does not establish any other violation of the rights and freedoms of citizens that falls within the scope of the Ombudsman's powers.
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 Ombudsman’s request to declare unconstitutional the provision of Article 36a, paragraph 2 of the Energy Act (promulgated in State Gazette, issue No. 107/2003; new, State Gazette, issue No. 74/2006; amended, State Gazette, issue No. 54/2012; last amended, State Gazette, issue No. 38 of 8 May 2018, effective as of 8 May 2018) in the part stating “which constitutes an individual administrative act”.
The decision was adopted with dissenting opinions by two judges.