Decision No. 4 of 4 July 2013 on Constitutional Case No. 11/2013
The proceedings conform to Art. 149, para 1, item 2 of the Constitution of the Republic of Bulgaria.
The Ombudsman of the Republic of Bulgaria challenged the constitutionality of Art. 28, para 5 of the Hunting and Game Protection Act (DV, No. 78/26.09.2000, last amendment No. 15/15.02.2013) (HGPA). The challenge was issued on its merits by a Constitutional Court resolution of 23.05.2013.
The Ombudsman claimed that as per Art. 28, para 2 of the HGPA fees are chargeable on citizens for the issuance and certification of hunting licenses, and as per the challenged Art. 25 para 5 of the HGPA a fee is due for the administrative service of issue and certification of a hunting license, as a matter of fact citizens have to pay two fees for the delivery of one and the same service. The Ombudsman saw the challenged text as noncompliant with Art. 4, para 1 of the Constitution, being a violation of the principle of the state committed to the rule of law that calls for order and rules in the exercise of power and for a consistent and predictable Legislature that will not let contradictions in terms in the legislation.
The Court judged the tenability of the Ombudsman’s challenge and the arguments of the parties concerned and to make a pronouncement, considered as follows:
The challenged Art. 28, para 5 of the HGPA reads that a fee shall be due for the administrative service of issue and certification of a hunting license; the amount of the said fee shall be determined by a tariff of the Council of Ministers and shall be remitted to the relevant state forest enterprise or state game reserve. The text was created by § 16, item 11 of the Transitional and Concluding Provisions of the Forestry Act (FA) (DV, No. 19/08.03.2011, last amendment, No. 27/15.03.2013). The motivation to the bill did not contain a motive that a new fee needs to be imposed; on the contrary, in general the motivation read that measures had been mapped out to ease the administrative burden. Reading the verbatim reports of the National Assembly sitting on 18.02.2011 when the Forestry Act was voted on second reading, it is to be learned that § 16 of the FA Transitional and Concluding Provisions was approved without discussion and debate, as it was worded by the Additional Report Drafting Committee.
Eligible to the acquisition of the hunting right are citizens of full legal age having completed a dedicated course involving theoretical and practical training and having passed a theoretical and practical examination (Art. 22 of the HGPA). Hunting rights may only be exercised by individuals who have a membership card and a hunting licence duly certified for the ongoing calendar year, as well as a hunting permit (Art. 23, para 1 of the HGPA). For passing an examination under Art. 28, para 1 of the HGPA for the issuance and certification of hunting licences fees shall be chargeable rated in a tariff issued by the Council of Ministers. Due to the availability of three different services under Art. 28, para 2 of the GHPA and their costs that vary in type and amount, for any of the services in the Tariff of Fees that are charged under the HGPA – Appendix 1 to Art. 1 Council of Ministers Decree No. 283/27.12.2000 (DV, No. 2/05.01.2001, last amendment, No. 58/31.07.2012) are as follows: BGN 35 for a theoretical examination and BGN 25 for a practical examination; BGN 100 for the issuance of a hunting license and an annual sum of BGN 15 for the certification of a hunting license. Fees collected for these services shall be appropriated to the budget of the Executive Forestry Agency to be expended for game management, protection and security activities, as per Art. 28, para 4 of the HGPA. The challenged Art. 28, para 5 of the HGPA was the premise on which a new paragraph 3 of Article 2 of the Tariff was created (DV, No. 58/2012), to fix a fee of BGN 2 for the delivery of the administrative service – viz. the issuance of a hunting license and the certification of a hunting license.
Fees are a financial payment due to the State or to municipalities for activities performed or services delivered to corporate entities and individuals. The theory of finance describes fees as payments by a natural or legal person to the National Budget for the usage of a service or for an activity which has to be performed by a Government institution and of which the payer is the beneficiary. Art. 60, para 1 of the Constitution reads thus: “Citizens shall pay taxes and duties established by law proportionately to their income and property.” Unlike taxes that are irreclaimable and payable by citizens who don’t stand to be rendered a service in return or to get demands satisfied, the essential distinctive element is that fees are always charged for the delivery of a service or the performance of an activity. The activity or the service is not a valuable consideration; they are an element of the actual composition of the fee. The Constitutional Court operation abides by the concept that the differentiating feature between a tax and a fee is the element “service” and that the delivery of a service or the performance of an activity by a State institution for a beneficiary – the fee payer – is the justification for the fee payment and that in principle a fee is payable for a service delivered and the amount of the fee is fixed to be commensurate with the cost of the service. One fee should be fixed and collected for an individual service or activity. However, if the activities that the delivery of a service comprises are distinctly set apart and separate, multiple fees may be charged separately for each service component. The Lawmaker shall determine the type of fees and the principles to calculate the fees by the competent central and local authorities unilaterally with Acts of State. Hence the administrative legal modus for the relationship between the authorities and the legal entities and citizens as beneficiaries of the activities and services. As a rule fees are appropriated to the National Budget in the broad sense of the word as these are performed and delivered by the central government institutions and the local authorities that are financed by the National Budget and by the judicial authorities (Art. 1 of the Stamp Duty Act, DV, No. 104/28.12.1951, last amendment, No. 82/16.10.2009). By way of exception fees may be appropriated to the budget of an enterprise to which the Government has outsourced any of its proper functions related to a service or an activity and the fees are intended to support the enterprise’s costs. Concerning the specific case, Art. 28, para 4 of the HGPA provides that fees collected in accordance with Art. 28, para 2 of the HGPA shall be appropriated to the budget of the Executive Forestry Agency which, on behalf of the Minister of Agriculture and Food, shall control the hunting rights management (Art. 14, para 3 of HGPA) and shall be expended for game management, protection and security activities. Along with, the management of forestlands that are owned by the Government but that are not put in the care of agencies or legal entities shall be in the hands of state-owned enterprises with a two-tier system comprising a central office and local offices – the state forest enterprises and the state game reserves as per Arts. 163 and 164 of the Forestry Act. Art. 163, para 2 of the FA reads that these shall be legal entities enjoying the status of state-owned enterprises in line with Art. 62, para 3 of the Commerce Act whose assets include assets that are provided by the State and assets that are gained from their business.
The adoption of the challenged Art. 28, para 5 of the HGPA conformed to the Constitutional Court’s practice by virtue of which fees shall be established by a law that is passed by the National Assembly and the amount of the fees shall be fixed by a bylaw that is passed by the Executive branch of power.
The Constitutional Court judged that once Art. 28, para 2 of the HGPA provides for the delivery of services to citizens who pay appropriate fees due, it is improper to let another text, namely Art. 28, para 5 of the HGPA, provide that a fee shall be due for the “administrative service” whose content is not described while the fee is due only for the issuance and certification of a hunting license. The services to be provided under Art. 28, para 2 of the HGPA constitute the performance of activities on behalf of the State for the onetime issuance of hunting licenses to be held by citizens and the annual certification of the hunting licenses, including the confirmation of the service delivery. Given all this, citizens are not beneficiaries of any activities or services within the framework of the envisaged now explicitly termed “administrative service”. The Court found that the Council of Ministers charges fees for the issuance of a hunting license and the certification of a hunting license, i.e. for services that differ essentially in amounts that differ substantially whereas for the “administrative service” which the Lawmaker has “superimposed” on the two services under Art. 28, para 2 of the HGPA the amount of the fee is one and the same. Not least, it is only Bulgarian citizens who have to pay for the “administrative service” termed “issuance of a hunting license” and “certification of a hunting license” whereas foreign nationals who stay or reside in the Republic of Bulgaria and the members of diplomatic missions are exempted of the surcharge though they are bound to pay the respective fees for the issuance of a hunting license and the certification of a hunting license.
The Court found that the new fee for a standalone service termed “administrative service” that was codified in the Hunting and Game Protection Act was tantamount to yet another financial burden thrust on citizens who don’t benefit from any new service or activity in return.
The provision challenged disagrees with the nature of the fees that are to be established by the Lawmaker in tune with clear rules and in a way that will not constitute a new redundant and legally untenable financial burden on legal entities and citizens.
To charge two fees by one and the same article of the Hunting and Game Protection Act is a violation, in the Constitutional Court’s view, of the principle of the state committed to the rule of law as per Art. 4, para 1 of the Constitution which demands that the legislation should be clear, coherent and uncontroversial if it is to smoothly regulate relations within the society. Compliance with the Constitution prescriptions for the sake of compliance is sufficient if a law adds surcharges that spoil the fundamental nature of the settlements by citizens.
In consideration of the above arguments the challenged provision was seen as inconsistent with Art. 4, para 1 of the Constitution and accordingly the Court declared it unconstitutional.