Decision No. 2 of 14 February 2023 in constitutional case No. 1/2022
Referring entity and subject matter of the case
The case has been initiated upon request of the full court of the Supreme Administrative Court (SAC) seeking binding interpretation of Article 4, para 1; Article 119, para 2; Article 120, para 1; and Article 125 of the Constitution in relation to the following question, ‘Does the rule of law principle enshrined in Article 4, para 1 of the Constitution require all disputes on the legality of the acts and actions of the administrative authorities be subject to the jurisdiction of the administrative courts including the Supreme Administrative Court laid down in Article 119, para 1 and Article 125 of the Constitution, and the specialized administrative courts set up by virtues of Article 119, para 2 of the Constitution?’. The request specifies that ‘the issue of jurisdiction of disputes in administrative justice is not consistently and uniformly dealt with in the legislation currently in force’. It is further on underscored that ‘the legislator has been mainly lead by the principle that disputes on the legality of the acts and actions of the administrative authorities shall be subject to the jurisdiction of the Supreme Administrative Court and the administrative courts set up under the Judicial System Act. Nevertheless, in a number of cases the legislator deviates from this principle and selectively excludes certain administrative legal disputes from the jurisdiction of the specialized courts, stipulating that these disputes shall be reviewed by the general courts’.
Summary of the reasons
The judicial review of legality of the acts and actions of the administrative authorities provided for in Article 120 of the Constitution is a manifestation of the rule of law and the classic maxim whereby justice is the fundament of the state (Iustitia fundamentum regnorum est). This review is a guarantee that the provision of Article 4, para 1 of the Basic law whereby the Republic of Bulgaria shall be a state governed by the rule of law, and shall be governed by the Constitution and the laws of the country is not just a declaration but a genuinely applicable in practice legal principle that reflects the understanding that in a rule of law state everyone – governing and governed alike – shall be equally subject to the law and shall be equal before the law.
Pursuant to the Basic Law, the legality review of the administrative activity exercised by an independent court, which is designed to guarantee the rights of individuals during state governance, is not limited to direct judicial review in case of appeal of administrative acts, i.e. administrative justice strictly within the meaning of Article 125, para 2 of the Constitution. Legality review according to the constitutional legislator is a general competence of the courts stemming from rule of law principle to review the legality of the acts, actions and omissions of the administrative authorities and officials in the framework of a public and adversarial procedure, and to decide on their legal effects when this is required to serve justice, while in accordance with their judicial competence on the dispute in question they protect rights and legality impaired by the illegal act, action or omission.
The provision of Article 120, para 2 of the Constitution provides for the possibility for individuals and legal persons to challenge all administrative acts that affect them save for those expressly specified by the law. Within the meaning of the Basic Law, a functioning administrative justice requires that individuals and legal persons avail of a venue guaranteed by law to seek protection by an independent court against acts and actions of the administrative authorities that affect them, i.e. a procedure for the protection of their rights and legitimate interests.
It is precisely because according to the Constitution administrative justice (and justice in general) is premised on the access to court as guaranteed by law rather than on setting up certain justice administration structures with special competence, the Court expressly points out in interpretative decision No. 13 of 22 July 1993 in constitutional case No. 13/1993 that ‘administrative justice within the judicial system of the Republic of Bulgaria is established by virtues of the provision of Article 120 of the Constitution and is in effect as of 13 July 1991 as a means of review of legality of all administrative acts save for those expressly specified in the law. By the time a new organization of the judiciary is established, administrative justice shall be effected by the courts of the status quo judicial system, pursuant to § 9 of the Transitional and Final Provisions’. Thus, the constitutional criterion for administrative justice is functional and is based on the Basic Law rather than organisational, i.e. conditioned on setting up structures different from the judicial authorities listed in the Constitution.
The Constitution allows but does not call for setting up specialized courts for administrative justice (as well as any other specialized courts within the meaning of Article 119, para 2 of the Basic Law outside those established by the Constitution).
The Constitutional Court holds that no requirement follows from the Basic Law that all disputes on the legality of the acts and actions of the administrative authorities be assigned to the specialised administrative courts set up by virtue of Article 119, para 2 of the Constitution.
Grounds for the ruling and decision
Pursuant to Article 149, para 1, item 1 of the Constitution of the Republic of Bulgaria (power to provide binding interpretations of the Constitution), the Constitutional Court holds that the rule of law principle enshrined in Article 4, para 1 of the Constitution does not require that all disputes on the legality of the acts and actions of the administrative authorities be reviewed by the specialised administrative courts set up by virtue of Article 119, para 2 of the Constitution.
Председател: Павлина Панова