Decision No. 3 of 8 February 2024 on Constitutional Case No. 13/2023
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by 49 Members of Parliament from the 49th National Assembly for the establishment of the unconstitutionality of the Decision on the Proposal for holding a national referendum, submitted by an Initiative Committee on 7 April 2023, with the question: “Do you agree that the Bulgarian lev should be the sole official currency in Bulgaria until 2043?”, adopted by the National Assembly on 7 July 2023. The petitioner justifies the request for establishing unconstitutionality by alleging a lack of competence of the National Assembly to adopt the contested decision, substitution of the will of the Members of Parliament, as well as procedural violations in the adoption of the decision. The petitioner requests that the Constitutional Court independently establish the compliance of the question contained in the proposal for holding a national referendum with the Constitution.
Summary of the Court’s Reasoning
The compliance of the question contained in a proposal for holding a national referendum with the Constitution cannot be subject to review for constitutionality by the Constitutional Court independently of the decision of the National Assembly on the proposal for holding a national referendum.
Subject to constitutional review is not only a decision of the National Assembly supporting the holding of a national referendum, but also a decision rejecting a proposal for holding a national referendum, as is the case in the present matter. A law, including a law regulating the direct participation of citizens in the exercise of state power, cannot alter the parameters of the Constitutional Court’s competence established in the Basic Law.
In exercising its powers under Article 84, item 5 of the Constitution (adopting a decision on holding a national referendum), the National Assembly, when seized with a proposal for holding a national referendum supported by a petition signed by more than 400,000 citizens with voting rights, independently forms its will regarding the proposal, assessing it both in terms of compliance with the required organization and procedure established by the current legislation pursuant to the explicit constitutional mandate, and with respect to the conformity of the question contained in the proposal for the initiated referendum with constitutional requirements.
Regarding the validity of the will expressed by the Members of Parliament, the relevant factors are the clarity of the question - subject to the conducted vote - the freedom of the Members of Parliament to form and express their will, and the unambiguous final result of the voting, which in the present case was confirmed even in the repeated vote.
When a collective body such as the National Assembly deliberates and adopts an act, the motives of such an act are objectively derived from the discussions held. In the present case, the deliberations clearly reveal the motives of the contested decision, on the basis of which the majority of the National Assembly voted to reject it. From the stenographic record of the plenary session of the Parliament, when the contested decision was adopted, the rationale motivating the majority to adopt the decision is clear - the understanding that the question contained in the proposal for a national referendum would constitute a direct violation of the Treaty of Accession of Bulgaria to the European Union, as well as of Article 140 of the Treaty on the Functioning of the European Union.
From the criteria, competences, and procedures established in the provisions of the Treaty on the Functioning of the European Union, it is evident that a treaty which, from the perspective of Article 85, paragraph 1, item 9 and paragraph 3 of the Constitution, constitutes an international treaty ratified by the National Assembly under the special conditions of Article 85, paragraph 2 of the Constitution (an international treaty conferring powers on the EU derived from the Constitution is ratified by Parliament with a qualified majority and may be amended or denounced only in accordance with the procedure specified in the treaty itself), and which, from the perspective of Union law, constitutes a source of an autonomous legal order, operating simultaneously with domestic law on the basis of principles established in Union law and respected by the Member States, the national parliament of a Member State cannot unilaterally adopt a decision that would effect a change in the content of the relevant provisions of Articles 139 and 140 TFEU for that State.
Because there is no legal possibility for the national parliament, through its own act, to unilaterally effect a change in the Accession Treaty, the Treaty on European Union, or the Treaty on the Functioning of the European Union with respect to the matter addressed in the proposal for holding a national referendum, there is likewise no possibility for this to be done by the sovereign through a national referendum.
Holding a national referendum on a question that falls outside the constitutionally established competence of the National Assembly also constitutes a violation of Article 4, paragraph 1 of the Constitution, according to which Bulgaria, as a state governed by the rule of law, is governed in accordance with the Constitution and the laws of the country. The Constitutional Court consistently maintains in its case-law that the principle of the rule of law “means, among other things, that the foundations of the legal order enshrined in the Constitution apply equally to the legislative, executive, and judicial authorities, as well as to all legal subjects” (Decision No. 22 of 1996 on Constitutional Case No. 24/1996). As the bearer and source of state power, the sovereign people, when exercising state power directly, are also bound by fundamental constitutional principles that embody the common will for a constitutional order.
Grounds for the Ruling and Disposition
Pursuant to Article 13 (the Constitutional Court independently determines whether a question submitted to it falls within its competence) and Article 19 (the Court rules on the admissibility of a request) of the Constitutional Court Act, and Article 149, paragraph 1, item 2 of the Constitution (competence to rule on a request for establishing the unconstitutionality of laws and other acts of the National Assembly), the Constitutional Court: 1. Dismisses the request of the Members of Parliament for an independent ruling on the constitutionality of the question “Do you agree that the Bulgarian lev should be the sole official currency in Bulgaria until 2043?”, which is the subject of a proposal for holding a national referendum submitted to the National Assembly by an Initiative Committee on 7 April 2023, and terminates the proceedings in this part; 2. Rejects the request to establish the unconstitutionality of the Decision on the Proposal for holding a national referendum, submitted by the Initiative Committee on 7 April 2023, with the question: “Do you agree that the Bulgarian lev should be the sole official currency in Bulgaria until 2043?”, adopted by the National Assembly on 7 July 2023.
The decision is adopted with one dissenting opinion and one separate opinion on the reasoning.
Председател: Павлина Панова