Decision No. 2 of 6 February 2024 on Constitutional Case No. 8/2023
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by a three-member panel of the Supreme Administrative Court. The subject matter of the case is the constitutionality of the provision of Article 55, paragraph 2 of the Law on the Court of Audit, which provides that final audit reports are not subject to judicial review. In the request, the main argument for unconstitutionality is based on the alleged conflict of this provision with Article 120, paragraph 2 of the Constitution, according to which all administrative acts affecting natural and legal persons are subject to appeal before the courts.
Summary of the Court’s Reasoning
The concept of “affecting” has been addressed by the constitutional jurisdiction, which, in Decision No. 21/1995 on Constitutional Case No. 18/1995, held that an administrative act “affects,” within the meaning of Article 120, paragraph 2 of the Constitution, natural and legal persons when it violates or threatens their rights or lawful interests. The objective violation or endangerment of a subjective right or lawful interest of a citizen or legal entity constitutes the substantive legal basis for including the administrative act among those subject to judicial review.
The recommendations contained in the final audit reports issued by the Court of Audit with respect to the audited activity do not constitute a declaration of will, the implementation of which the issuing authority can independently and coercively impose on the addressee. Non-compliance by the audited entity with the recommendations issued to it in a final audit report results in a legal consequence different from that provided by the legislator for the non-performance of an administrative act - namely, compulsory enforcement. The legislator has not empowered the Court of Audit to act as an enforcement authority within the meaning of Article 271 of the Administrative Procedure Code. The only power provided is under Article 50, paragraph 3 of the Law on the Court of Audit, namely to submit a report with proposals for action to the National Assembly, the Council of Ministers, or the municipal council. In this way, the Court of Audit is granted solely a referral function vis-à-vis other authorities that may implement the corresponding type of legal responsibility.
The undertaking of actions by the competent authority so notified, in accordance with the recommendations of the Court of Audit, through a specific act subject to judicial review, ensures the right of defense of persons in the event that their rights and lawful interests are affected. For this reason, the exclusion of final audit reports from judicial review should not be regarded as a deviation from the principle of the rule of law.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (competence to rule on a request for establishing the unconstitutionality of laws), the Constitutional Court rejects the request to establish the unconstitutionality of Article 55, paragraph 2 of the Law on the Court of Audit.
Председател: Павлина Панова